Sanjay Kumar alias Sanjeev vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal revision and has been directed against the order dated 26.8.1997 passed by the Court of Additional Sessions Judge, Rohtak, who dismissed the application of the present two petitioners S/Shri Sanjay Kumar alias Sanjeev and Sanjeev Madan for discharging them in case F.I.R. No. 266 dated 4.5.1996 under Sections 420 and 304A read with Section 34 I.P.C. registered in Police Station City Rohtak. Rather the learned Additional Sessions Judge, Rohtak decided to frame charge under Section 304 read with Section 34 I.P.C. and Section 419 read with Section 34 I.P.C. against the petitioners.

Few facts are necessary before I discuss the rival contentions of the parties with the help of the case law. The present two petitioners were arrested by the police of Police Station City Rohtak for causing the death of one Narain Kumar, a young boy of 19 years, on the allegations that they administered a wrong medicine on 3.5.1996 to Shri Narain Kumar, as a result of which he died on 4.5.1996 at about 3.30 A.M. The complaint was made by the father of the deceased Shri Prem Chand on 4.5.1996 alleging that his son Narain Kumar was having pain in his stomach for the last about 3/4 days prior to his death. He was being treated by the petitioners, who were running a clinic in the name and style of `Madan Hospital'' on the approach road. According to prosecution on 3.5.1996 at about 8.00 P.M. Narain Kumar deceased had a severe pain in the stomach and the complainant took him to Madan Hospital. The petitioners administered some medicines and also gave some injections to him. It is further alleged by the complainant that both the petitioners did not allow him to shift his son to the Medical College Hospital, Rohtak and at about 3.30 A.M. on 4.5.1996 said Narain Kumar breathed his last on account of wrong injections given to him by the petitioners. Certain other allegations against the petitioners were also levelled that they were not qualified doctors and that they had given wrong medicines/injections to the deceased and the deceased had died on account of their negligence. After the completion of the investigation of the case both the petitioners were challaned under Sections 304 and 420 read with Section 34 I.P.C. The petitioners were committed to the Court of Sessions vide commitment order dated 24.1.1997. At the stage of the charge the petitioners made an application before the learned trial Court on the ground that no case was made out in the absence of any evidence and material on record. It was stated that earlier the challan was prepared under Section 304 read with Section 34 I.P.C. and Section 420 I.P.C. and prima facie the ingredients of Section 304 I.P.C. are not made out. The application of the petitioners for discharge was resisted by the State. The learned trial Court rejected the contentions of the petitioners and decided to frame the charges under Sections 304/34 and 419/34 I.P.C. The reasons given by the learned trial Court are contained in paras No. 5 to 9 of the impugned order which are as under :

"5. As indicated earlier, according to the prosecution, the accused were not qualified doctors. However, they administered allopathic medicines and injections to Narain Kumar, culminating into his death. They did not allow the complainant to shift his son to the Medical Collect Hospital, Rohtak, for their greed. So much so, both the accused, who are real brothers gave their names Sanjeev Kumar son of Ramji Dass, but later on one of them was found to be Sanjay Kumar son of Ramji Dass.

The argument of learned defence counsel that there is no material and evidence on record to frame the charge against the accused under section 304 of the Indian Penal Code, is neither tenable nor the judgments cited by her in case Jugan Khan v. State of Madhya Pradesh, AIR 1965 S.C. 831, Dr. J.S. Parwana v. State (Union Territory), 1985(1) Recent C.R. 276 and Bhupinder Nath v. State of Bihar, 1992(2) C.P. 146 are applicable to the facts of the present. In Jugan Khan''s case, supra, the appellantaccused was convicted and sentenced under section 302 of the Indian Penal Code. His conviction was upheld by the Hon''ble High Court. In the wake of his appeal, the Hon''ble Suprme Court has observed, that, where the accused, who was a registered as Homoeopath, administered to the patient 24 drops of Stramonium and a leaf of Dhatura, without studying its effect, on the peculiar facts and circumstances of that case, the accused cannot be held guilty under Section 302 of the Indian Penal Code. Similarly, in Dr. J.S. Parwana''s case, supra, while setting aside the commitment order, it was observed that the order of the Magistrate committing the case for trial under section 304 IPC, appears to be lacking restrain and propriety. It was left open to the Magistrate to enquire and try the matter and then, if he consider it fit then have recourse to the provisions of Section 323 of the Code of Criminal Procedure if the evidence and circumstances so warrant. Similarly, in Bhupinder Nath''s case, supra, it was observed that in criminal case, the cause of death has to be ascertained conclusively and on the facts and circumstances of that case and other discrepancies in the prosecution case, the accused was acquitted.

Possibly, no one can dispute about the observation made in the aforesaid judgments but these judgments would not come to the rescue of the accused at this stage because in those cases the accused were qualified and authorised to administer the medicines but in the present case, from the very beginning, the case of the prosecution is that the accused are not qualified doctors. They are quacks. The matter does not end there. During the course of investigation, a Board of Doctors was constituted. The Board submitted its report dated 8.3.1997, in which it has been concluded that as per the prescription slips issued by Madan Hospital, the deceased Narain had 67 vomittings, painabdomen with dehydration and was in a state of shock having B.P. 70 mm of Hg. and administration of Injection Baralgan (mentioned on the prescription slip and empty vial recovered) is contraindicated in collapse state. Moreover, vasopressor drugs, essential for raising blood pressure, were not been given as per requirement of this situation. Injection Calmpose which contains diazepam recovered from the dust bin if given can cause harm in the form of respiratory depression. These lapses are likely to contribute to the cause of death.

Another argument of learned defence counsel that one of the accused, Sanjeev Kumar son of Ramji Dass Madan is holder of diploma in N.E.H.M., so he was authorised to administer allopathic medicines, is again devoid of merit, because N.E.H.M. of India, vide its report dated 9.5.1996, has mentioned in para No. 2 that their organisation is authorised for promotion, development and research of Electropathy by using Electropathic medicines only. Other pathy''s medicines cannot be used on his practice. Similarly, the Board of doctors of the Medical College and Hospital, Rohtak, vide its report dated 8.3.1997, has also mentioned that the qualification of N.E.H.M. is not a recognised qualification. The accused were not competent and qualified to use the medicines prescribed by them and recovered from their clinic. Thus, the bare persual of the report of N.E.H.M. of India dated 9.5.1996 and the report of Medical Board of Medical College and Hospital, Rohtak, would go to show that the accused were neither competent nor authorised to administer the allopathic medicines to the deceased. They wrongly administered the same causing the death of Narain Kumar. So much so both the accused have cheated by giving same name i.e. Sanjeev Kumar son of Ramji Dass, later on one of them was found to be Sanjay. Besides the complaint of the complainant, the prosecution has collected ample evidence against the accused, which is available on the record of the case.

The learned defence counsel has also raised another feeble argument that even if the allegations of the prosecution are taken at its face value even then the offence punishable under section 304 of the Indian Penal Code is not made out, as according to her the intention of murder is lacking. I have considered this argument, which again strictosensu deserves to be ignored because Section 299 of the Indian Penal Dode postulates that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Knowledge of such act to cause death is sufficient to constitute the offence under section 304 of the Indian Penal Code, which can easily be gathered from the fact that the accused, who are quacks, administered the allopathic medicines culminating in the death of Narain Kumar."

Aggrieved by the said order, the present revision, which I am disposing of with the assistance rendered by Shri Baldev Singh, learned counsel appearing on behalf of the petitioners and Shri S.N. Gaur, learned Deputy Advocate General, appearing on behalf of the State.

It is true that at the stage of the charge, the merits of the case are not supposed to be seen. As per the provisions of Sections 227 and 228 of the Code of Criminal Procedure, if the trial Court considers that there is not sufficient ground for proceeding against the accused, the trial Court has the power to discharge such accused. However, if the trying Judge after considering the matter is of the opinion that there is ground for presuming that the accused has committed a particular offence, he shall proceed with the framing of the charge. So in these circumstances, the trial Court was required to see if there is any prima facie case that the accused had committed any offence under Section 304 I.P.C. Section 299 I.P.C. defines `culpable homicide'' and as per the provisions of this Section whosoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. The emphasis can be on the word `knowledge'' that he is likely by such act to cause death. Now it is to be seen if there was nay prima facie evidence before the trial Court to come to the conclusion that both the petitioners had the knowledge that their act was likely to cause the death of Narain Kumar. The case set up by the complainant is that deceased Narain Kumar complained of some pain in the stomach besides vomitting. Before he could be brought to the clinic of the petitioners he was taken to the shop of Dr. V.K. Chawla at about 8.00 P.M. where he was treated for a period of 4 hours. What medicines were prescribed by Dr. Chawla or what medicines were administered to the patient is not known to the Court. According to the allegations of the prosecution, the deceased was brought to the clinic of the petitioners at about 12.30 A.M. on the night intervening 3/4.5.1996. The petitioners after noticing the symptoms of pain etc. gave Baralgan and Calmpose. But the deceased could not survive and ultimately expired at about 3.50 A.M. on the night intervening 3/4.5.1996.

Now the point to be seen is whether the petitioners at any point of time had the knowledge that by giving these medicines/injections, their act was likely to cause death of the deceased or not. The trial Court had decided to frame the charge under Section 304 I.P.C. primarily on the ground that the petitioners were quacks. They were simply holders of diploma in N.E.H.M. and they were not authorised to administer allopathic medicines. The reliance was also placed by the learned trial Court on the report of N.E.H.M. of India dated 9.5.1996 and as per that report the petitioners were neither competent nor authorised to administer the allopathic medicines to the deceased. In short, it can be said that since the petitioners were the holders of N.E.H.M. diploma, therefore, they were not entitled to connect these medicines in Electropathy. Assuming for the sake of argument and by giving all allowances to the prosecution, the allegations of the prosecution are taken on its face value still the trial Court was supposed to see whether the alleged act of the petitioners could prima facie establish that they had the knowledge that by giving allopathic medicines such as baralgan and calmpose, the deceased was likely to die. It is also the common case of the parties that baralgan does not contain a poisonous salt nor the injection calmpose. It is also not established on record prima facie that the earlier history of the deceased was ever made known to the petitioners. It also cannot be said with sly or certainty that the medicines/injections which could have been administered by Dr. V.K. Chawla had the affect on the person of the deceased. In these circumstances, we are left with the possible evidence which has been collected by the Investigating Officer. Whether the ingredients were prima facie there so as to justify the learned trial Court to frame the charges against the petitioners ? This Court is of the considered opinion that from the acts of the petitioners the element of knowledge cannot be attributed to them. At the most, the petitioners were negligent when they did not enquire from the attendant or from the patient about the past history. Their act squarely falls within the purview of Section 304A I.P.C.

The learned counsel for the petitioners relied upon a judgment of Hon''ble Supreme Court Jugan Khan v. The State of Madhya Pradesh, AIR 1965 Supreme Court 831, where it was held as follows :

"Where the accused, who was registered as a Homoeopath, administered to the patient suffering from guinea worm, 24 drops of stramonium and a leaf of dhatura without studying its effect and the patient died of poisoning, the accused was guilty under Section 304A and not under Section 302, Penal Code. The poisonous contents of the leaf having not been satisfactorily established, the prosecution failed to prove that the dose given to the deceased was necessarily fatal. Therefore, Section 299 did not apply and it cannot be held that the accused administered the stramonium drops and dhatura with the knowledge that he was likely by such an act to cause the death of the deceased."

The ratio of the Hon''ble Supreme Court can be safely applied to the facts in hand in order to determine whether the petitioners at any point of time had the knowledge that by their act the death of the deceased was the likely result. No law to the contrary has been cited. Therefore, this Court is of the opinion that the learned trial Court has committed a patent illegality and material irregularity in charging the petitioners under Section 304 read with Section 34 I.P.C. and Section 419 read with Section 34 I.P.C. Resultantly, the present revision is hereby allowed, the impugned order dated 26.8.1997 is hereby set aside and directions are given to the learned Additional Sessions Rohtak not to proceed with the case and to remit the same to the Court of Chief Judicial Magistrate, Rohtak to proceed with the trial according to law.