Decided on January 03,1969

E.O.CHRISTIAN Respondents


- (1.)THE State has preferred this appeal against the acquittal of the four respondents by the Judicial First-Class Magistrate, Asifabad of the charges framed against them under section 304-A, Indian Penal Code. THE case against the four respondents (accused) is this : THEy are employed in the health centre, Collieries Hospital at Bellampalli. Accused No.1 was the Sanitary Inspector. Accused No. 3 was a vaccinator and accused No. 4 was compounder-cam-store-keeper in the Collieries Hospital. 2. It was one of the duties of accused No. 4 to receive stocks of medicine, maintain the stock register and disburse the medicines as and when indented by the concerned officers and make relevant entries in the stock register. It was the main function of accused i to 3 to conduct vaccinations with due diligence and care. On 2 ist February, 1966, the Sanitary Inspector (accused No. i) received vials of triple antigen vaccine from the compounder (accused No. 4) for vaccinating 105 school children of the primary school, Hanuman Basti, a part of Bellampalli. Seventy vials of triple antigen were indented by accused No. i through accused No. 3, the vaccinator. Accused No. 4 while issuing triple antigen vials, also issued scoline vial and all these vials were entrusted by accused No.1 to accused Nos. 2 and 3 for giving triple antigen injections to the school children. Accused Nos. 2 and 3 used those vials obtained from the stores through accused No.1 and injected nearly 172 children. Accused No. 3 was given the duty of drawing out the vaccine from the vials into the syringes and changing the needles while accused No. 2 was entrusted with the work of injecting the vaccine. Accused No. 3, it is the case of the prosecution, without verifying whether the vial from which he was drawing into the syringe was triple antigen vial or scoline vial, which is a poisonous drug, drew from out of scoline vial and gave the syringe for injecting to the school children. This Scoline vial was used for injecting 10 children and four of them, viz., (1) K.Vijaya Kumar, 7 years ; (2) M. Satyanarayana, 10 years; (3) D. Rajanna, 7 years, and (4) B. Ganapathi, 12 years died on the way to hospital and the remaining six survived after timely medical aid was given to them at the hospital. It is for the reason that accused No. 4 gave scoline vial negligently when the indent was made for triple antigen vials and accused No.1 without verifying whether what was intended for was given to him or not and accused Nos. 2 and 3 without taking any further care as to from what vials they were drawing the vaccine, they were negligent in injecting the medicine from the scoline vial which resulted in the death of four innocent boys and endangered the life of 6 others, that these four respondents (accused Nos.1 to 4) were charge-sheeted for an offence under section 304-A, Indian Penal Code. THE defence of the accused was that accused No. 3 who went to the stores to bring the vaccine checked the vials and handed them over to accused No. 2 and that no scoline vial was issued to accused No. 3 on the indent made by accused No.1 and that what was injected into the boys was from out of triple antigen vials and therefore they were not in any way negligent or rash in the discharge of their duties and as such not directly or indirectly responsible for the death of the affected school boys. THE Magistrate, on a consideration of the entire evidence, was of the view that scoline vial was not issued by accused No. 4 on the indent placed by accused No.1 and that what was injected into the unfortunate boys was only from out of the triple antigen vial and that therefore the death of the boys is not due to the negligence of the accused. He therefore acquitted all the accused holding that the prosecution failed to bring home the guilt of the respondents beyond reasonable doubt. 3. Mr. Somakonda Reddi appearing for the Public Prosecutor contended that the Magistrate has not correctly appreciated the evidence placed before him, that the evidence of P. W. 5, the Medical Officer at Bellampalli hospital and the evidence of P.W. 8, the Assistant District Medical Officer who later conducted the autopsy on the bodies of the deceased school children, goes to establish that the death of the four boys was due to their having been injected the poisonous drug from scoline vial and that the symptoms noticed by the Medical Officer (P.W. 5) in the inpatients that were brought to him leave no room for doubt that what was used for injecting on the deceased boys was scoline drug and not triple antigen vaccine. Mr. Somakonda Reddy also relied upon the other evidence to show that accused Nos. 2 and 3 were grossly negligent when they used the vials which were issued to them and the death of the school children was the direct result of the criminal negligence of accused 2 and 3. Mr. Rasheed Ahmed appearing for the respondents contended that the respondents had, taken due care both at the time when the vials were issued and also at the time when they were used for giving injections to the school children and that the death of the unfortunate four children cannot at all be attributed to the negligence of rashness, of any one or all the accused. 4. THErefore it is necessary to see, from the evidence placed, whether the prosecution has established, beyond reasonable. doubt, that the death of the four unfortunate school boys was the direct result of the negligence of the four respondents. I may, in the first instance, refer to the evidence of D.W. 1, the Assistant Medical Officer, South Central Railway, Vijayawada. He holds a degree in Master of Surgery and also Master of Anesthesiology. Scoline, according to him, is a short- acting muscular relax and used in anesthesia and surgery for relaxation purposes. Scoline injection, it is opined by him, is partly hydrolised in the body and partly exuded in urine. After the injection, according to him two to three per cent, of it, viz., scoline can be detected unchanged in the urine and Chemical Examiner can detect scoline of the above percentage in the urine as well as cellular fluid. He, however, admitted in cross-examination that scoline is easily hydrolised in children and that symptoms of scoline will be destroyed within a few minutes (two to six minutes). Separate needles also have to be used for giving scoline injections whenever it is sought to be given to. different individuals, and oxygen is simultaneously administered whenever scoline is given as a protection. It is therefore obvious from the evidence of this defence witness that scoline gets absorbed in the body and since it is a poisonous drug oxygen also is simultaneously administered as a necessary precaution whenever scoline is given. THE further fact that emerges from his evidence is that the needles have to be changed every time the drug is injected into the body of different persons and the question of Chemical Examiner detecting scoline in urine will arise only if the dose given is beyond a particular limit and not otherwise. THE question now, as already stated, is whether a scoline vial was used instead of triple antigen vial for injecting the school boys and whether the death of the four boys is the direct consequence of the use of the scoline vial. 5. P.W. 1 was the Head Mistress of the Primary School which had a strength of about 200 boys and girls including the four ill fated boys. She saw accused No. 3 breaking up the vials and drawing out from them into the syringes and accused No. 2 giving injections to the children. Ten of the school children including the four deceased boys, who were given injections, fell down in her presence unconscious. Immediately thereafter she rushed to the hospital, brought an ambulance car and then had the ill fated boys removed to the hospital and closed the school for the day. She learnt subsequently that four out of the ten boys died. THEre is nothing in the cross-examination of this witness to show that accused No. 2 did not give the injections when syringes were handed over to him by accused No. 3 after drawing out from the vials. 6. P.W. 2 is an employee of the Health Department at the Collieries. He was given a medicine box containing the vials and he took that box to the school. He was put in charge of sterilising the syringes and needles. Accused No. 3, according to him, was filling the syringes with the drug drawn from the vials and accused No. 2 was giving the injections to the school boys. He was noting down the names of all the school boys who had taken the injections on that fateful day. After he saw 3 boys falling unconscious, accused No. 2 sent him to fetch accused No.1 from his house and he accordingly brought him into the school. THE deceased four boys were the last to be injected on that day as per the list prepared by him. He did not wash the' syringes and needles after the boys fell down unconscious. He kept the scoline vial and needles (M.O.1 series) as they were at the spot. 7. P.W. 3 was a chaparsi in the school and he also saw accused No. 2 giving the injections and accused No. 3 cleaning the syringes after drawing out from the syringes. He was not present at the time when the four boys were given injections. P.W. 4 was studying and standard and was one of the boys removed to the hospital in a precarious condition and luckily for him, he survived. After accused No. 2 gave the injection, he says, he felt a feeling sensation and then fell down unconscious. He noticed the same effect on the other boys who were similarly injected along with him. He was inpatient in the hospital for a few days. 8. THE evidence of P.W. 5 has a great bearing on the case. He was Medical Officer at Bellampalli Collieries. THE Chief Medical Officer, who came to inspect his hospital on 12th February, 1966, gaye oral instructions to him to carry out vaccination of triple antigen. So he accordingly directed accused No.2 to carry out the orders of the Chief Medical Officer. His (Chief Medical Officer's) instructions were that boys below 12 years should be given triple antigen vaccine and the witness asked accused No.1 to make the necessary indent for triple antigen vials from the medical stores. An indent was accordingly placed for 100 vials. He came to know only at the hospital that while injections were being given to the school children, two or three of them felt giddy and fell down unconscious. When the affected boys were brought to him he found four of them already dead and four others finding it difficult to breathe. THE rest of the boys were found to be all right. He and the other team of Medical Officers gave artificial respiration to all the children who were affected by the injections. In his opinion the symptoms found in the boys to whom artificial respiration was given were indicative of scoline having been injected into them. Scoline, in his opinion, produces paralysis of the muscles and relaxation and is used only at the time of operations. After attending to the affected boys he went to the school he saw the vial box (M.O. 1) in which the vials were supplied by accused No. 4. It has 35 vials of triple antigen vaccine and one empty vial of scoline (M.Os. 2, 5 and 6) were the two syringes used for injecting the boys. One vial of triple antigen, according to this Medical Officer, can be used for 10 to 12 children depending upon their age and the date of expiry as noted on the vials was August, 1965. 9. Since the vials were kept in the refrigerator, it is opined by him that even if they are injected after the date of expiry it will not cause any harm or reaction. THE stock register of the stores disclosed a stock of 6 scoline vials, but he found one vial of scoline less on that day and he noted the shortage of one scoline vial as evidenced by Exhibit P-3. He had not drawn any scoline vial for two or three months prior to this incident. It was elicited from him in cross-examination that triple antigen vaccine will not produce bad effects and that scoline causes respiratory failure and in the case of the four children who died there was respiratory failure. He was firm in his opinion that scoline will be destroyed in the body normally within 6 minutes after it is injected into the body. 10. THE evidence of P.W. 5, therefore, establishes that after attending to the boys who were brought to him for treatment he went to the school and found in the vial box (M.O. i), one empty vial of scoline (M.O. 2) and that there was shortage of one vial of scoline in his stores. THEre is absolutely no reason to disbelieve P.W. 5, the Medical Officer of the hospital against whom nothing has been suggested in the cross-examination. THE fact that an empty vial of scoline was found at the spot where the boys were given injections establishes that scoline vial was used by accused Nos. 2 and 3 on that fateful morning. 11. P.W. 8, the Assistant District Medical Officer, conducted the autopsy on all the four deceased boys. On external examination of the body of deceased Ganapathi he found frothy mucus in the nostrils, rigor mortis present in both the limbs and four marks of injections on the right arm. On dissection he found trachea and bronchial congested and slight frothy mucus in the trachea. Both the lungs were congested and were dark red in colour. Mucus exudate was present on cutting the lungs. He preserved the viscera and sent it to the Chemical Examiner. THE cause of death in his opinion was due to asphyxia and shock. 12. THE next autopsy was conducted on the body of deceased Satyanarayana. He (the witness) noticed the same symptoms and the same condition of the lungs as in the case of Ganapathi. In his case also his viscera was sent for chemical analysis. THE death of Satyanarayana, according to him, was due to asphyxia and shock. Rajanna was the other boy on whose corpse he conducted autopsy and noticed the same symptoms as in the case of the other deceased P.W. 8's opinion regarding effects of scoline is this : " Death can be caused if injections of scoline are given to children below 10 years........Scoline is given as a muscle relaxant. It relaxes respirative muscles also upto the extent of temporary paralysis. If action of scoline is delayed and no artificial respiration or oxygen are given, death may occur due to asphyxia Scoline is given during operation to relax the muscles and during tracheal intubation." It is also stated by him (the witness)that scoline contains succiline choline chloride which is poisonous. THErefore, there is no doubt,from the opinion expressed by P.W. 8, the medical officer who conducted the autopsy on the corpses of the four unfortunate school boys that they died not due to their having been given triple antigen injections but due to asphyxia and shock and scoline injection, when given will cause congestion and frothy mucus in lungs and other symptoms referred to above by him. 13. THE 1st accused when questioned under section 342, Criminal Procedure Code, stated that he had never seen a scoline vial and that there was no scoline vial in the vials brought on his indent. THE defence of accused No. 2 was that triple antigen vaccine supplied to him and accused No. 3 was the one the use of which was prohibited after the date of expiry and that he has not been negligent nor responsible in any manner, for the death of the four boys. Accused No. 3 stated that accused No. 2 was drawing out vaccine from the vials and handing over the syringes to him and that he injected whatever was drawn from the vials by accused No. 2, and has not been negligent or rash in the performance of his duty. So far as accused No. 4 is concerned it is his case that he kept all the medicines in the stores in alphabetical order and correctly maintained the register and that he did not issue scoline vial on the indent placed by accused No.1. 14. It is not in dispute that accused I, made an indent for triple antigen vials and accused 4 issued the vials from the stores though accused 4 denied that he issued one scoline vial. It is an admitted case that accused 2 was giving injections and accused 3 was filling up the syringes from the vials supplied to them and kept in the medicine box M.O.1. Although accused No. 4 says that he did not give any scoline vial, the fact remains that an empty scoline vial was found by P.W. 5 when he went to the scene of occurrence and later when he checked the stores, one scoline vial was found less in the stock. THErefore, there is no truth in the statement of accused No. 4 that he did not issue one scoline vial. Similarly there is no truth in the statement of accused No.1 when he says that he checked the vials and handed over the box (M.O.1) to accused Nos. 2 and 3. If he had only checked each vial carefully he could have certainly noticed one scoline vial. THEre can be no doubt that he has not bestowed that amount of care that is expected of him and has been negligent enough in not making a proper check of the vials supplied to him and that he accepted the vials as sent to him and passed them on to accused Nos. 2 and 3. 15. THE Chemical Examiner no doubt opined as per Exhibits P-21 to P-24 that he did not find any poison in the viscera. THE report of the Chemical Examiner, however, shows that the empty scoline vial (M.O.2) contained scoline, i.e., succinyl choline chloride. If the Chemical Examiner could not trace any poison in the viscera it is because of the fact that scoline when injected will not last more than four to six minutes and gets easily absorbed in children. That is the opinion expressed by D.W.1 and P.Ws. 5 and 8, the Medical Officers and P.W. 7, the Drug Inspector. THErefore, the absence of any poison in the viscera on chemical analysis does not in any way help the accused in view of the opinion expressed by three Medical Officers and P.W. 7, the Drug Inspector and the symptoms found by P.W. 5 when the effected children were brought to him and also in view of the post mortem findings. THE question is whether the death of the four illfated boys was the direct result of the negligent act of all the accused or any one, two of three of them. 16. It is not every act of rashness or negligence that can be called culpable negligence or rashness so as to render a person guilty of rash and negligent act liable for punishment. One of the earliest cases where a person was indicted for the death of a boy, by a chemist's negligence is Regina v. Noakes, Foster and Finlason's Reports Vol. IV (1865-67) P. 920. That was a case where a chemist committed a mistake by putting a poisonous liniment into a medicine bottle, instead of liniment bottle ; in consequence of which, the liniment was taken by his customer internally with fatal result. THE verdict of the jury was that he was not guilty as the act committed by him (accused) did not amount to such criminal negligence as would warrant conviction for manslaughter. Erle, C.J., strongly put it to the jury that they ought not to call upon the prisoner for his defence ; and that the case was not sufficiently strong to warrant them in finding the prisoner guilty on a charge of felony. THEy could not, he said, convict on such a charge, unless there was such a degree of complete negligence as the law means by the word felonious. That was a case where the customer sent a bottle of his own and in that bottle the liniment was put. THErefore in the charge to the jury on the summing up made by Erle, C.J., the jury returned a verdict of not guilty as there was no sufficient evidence to support the conviction in a criminal case. 17. This case (1) is not of much avail to the respondents for the reason that a duty is cast upon the respondent (accused) to verify the vial before they drew out the vaccine for the injections. It is not as if the bottles were supplied by the boys and without bestowing sufficient care injections were given, one of them drawing out from the vials and the other using the syringes. It was for the two accused persons (accused Nos. 2 and 3) to examine each vial before the vaccine was drawn into the syringe or before the syringe was used. 18. Another case which may be referred to in Reg v. Spencer, Cox's criminal cases, X, 1864-67, p. 525. 1925-26) (Edited by Herman Cohen) P. 8,a case before Norfolk Circuit, Winter Assizes. THE accused in that case was a duly qualified medical man and indicted for manslaughter of one Clara Simpkin. That was "a case where the doctor, instead of giving bismuth, gave strychnia. Bismuth powder was similar in colour and appearance to strychnia. THEre was no evidence to show in that case how and where the prisoner kept his drugs, or how the strychnia got into the bottle, but it was suggested by the Counsel for the prosecution, that the fact of the prisoner, who dispensed his own medicines, and had no assistant, having sent out a bottle containing so large a quantity of a dangerous poison, showed such a prima facie case of negligence, as, if not explained, would justify the jury in finding him guilty. THE jury, however, returned a verdict of not guilty on hearing the summing up of Willes, J. in that case. THE learned Judge (Willes, J.) in his summing up pointed out how it was possible that strychnia got into that bottle through accident by some one else and therefore the prisoner may not be criminally responsible for the act. THE Court of Criminal Appeal in England had to consider what constitutes manslaughter by negligence. Hewart, L.C.J., laid down the following tests in Percy Bateman's case, (Cr. A.RVol. (XIX, May to December. "To support an indictment for manslaughter by negligence the prosecution must prove (1) a duty to take care, (2) failure to discharge that duty, and (3) that the death was due to that default, and, further, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment." In Andrews v. Director of Public Prosecutions, (1937) 2 All.E.R.552, the definition given by Lord Ellen-borough to the word "Criminal" came to be considered by Lord Atkin. Quoting Lord Ellenborough as hereunder: "To substantiate that charge (of manslaughter) the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention." Lord Atkin proceeded to state : "THE word ' Criminal' in any attempt to define a crime is perhaps not the most helpful, but it is plain that Lord Ellenhorough meant to indicate to the jury high degree of negligence. So at a much latter date in R. v. Bateman, (1925) 19 Cr. A. R. 8, a charge of manslaughter was made against a qualified medical practitioner in circumstances similar to those of Williamson's case, (1807) 3 C.& P. 635. In a considered judgment of the Court, Lord Hewart, L.C.J., after pointing out that, in a civil case, once negligence is proved the degree of negligence is irrelevant said, at page 11: " In a criminal Court on the contrary, the amount and degree of negligence are the determining question. THEre must be metis rea". After citing Cashill v. Wright, (1856) 6 E. & B. 891, a civil case, Lord Hewart, L.C.J. proceeds : " In explaining to juries the test which they should apply to determine whether the negligence in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as "culpable", "criminal", "gross", "wicked", " clear", " complete". But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence nor to the ideas of crime and punishment in themselves carry a jury much further in deciding whether, in a particular case, the degree of negligence shown is a crime and deserves punishment.............. Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied " reckless " most nearly covers the case. It is difficult to visualise a case of death caused by " reckless" driving, in the connotation of that term in ordinary speech, which would not justify a conviction for manslaughter, but it is probably not all embracing, for " reckless" suggests an indifference to risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction." 19. THErfore it is obvious from what has been stated by Lord Atkin that mere simple lack of care is not enough and for purpose of criminal law a very high degree of negligence is required to be proved. In John Oni Akerele v. THE King, A.I.R.1943 P.C.72, the Privy Council had occasion to consider a case where a doctor by dissolving powder in water and injecting several persons who gravely fell ill, was sought to be held criminally responsible. Lord Porter observed : "A doctor is not criminally responsible for a patient's death unless his negligence or incompetence passed beyond a mere matter of compensation and showed such disregard for life and safety as to amount to a crime against the State. THE degree of negligence required is that it should be gross, and neither a jury nor a Court can transform negligence merely by giving it that appellation. Care should be taken before imputing criminal negligence to a professional man acting in the course of his profession." That was a case where the doctor used the correct drug for injecting but the only mistake committed by him was to give a stronger dose than what was really necessary. THErefore the Privy Council held :- "the only negligence was the single act of dissolving the powder in water before giving inoculations, it was immaterial that the symptoms were revolting or that the result was to make many persons ill, the act had already taken place and its observed consequences which only showed themselves at a later date could not add to its criminality. THE negligence to be imputed depended upon the probable, not the actual, result. Criminal negligence could not be said to have been proved merely because a number of persons have been made gravely ill after receiving the injection. Merely because too strong a mixture was once dispensed and a number of persons were made gravely ill, a criminal degree of negligence could not be said to have been proved." 20. THE instant case is different from the one which the Privy Council had to consider. THEre their Lordships were considering a case where a doctor gave a correct drug for injections and the only act of the doctor being that he gave too strong a mixture which made several people gravely ill, not immediately but at some later date. So, it was not as if the doctor was not careful enough in administering the correct drug. It was a case where he gave a stronger dose than really necessary as in his opinion the patients required a stronger dose. On the facts of that case the Privy Council held that it was not a case of culpable or criminal negligence. 21. In Emperor v. P.U. Desouza, I.L.R. (1920) 42 All. 272 : (1965)2 S.C.R. 622. ; A.I.R. 1965 S.C., the Allahabad High Court considered a case falling under section 304-A, Indian Penal Code, where an unqualified person was in charge of a dispensary and in making up quinine mixture, used strychnine hydrochloride as the wrapper on that bottle indicating " poison" was not there. Tudball, J., held that the unqualified person was guilty of criminal negligence under section 304-A, Indian Penal Code. 22. THE Supreme "Court in Kurban Hussain Mohamedalli Rangawalla v. State of Maharashtra, 2(1966)1 S.C.J. 160 (1966)M.L.J.(Crl.) 1616, held that to impose criminal liability under section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the cause causans, it is not enough that it may have been the causa sine qua non. That was a case where fire broken out in a paint and varnish factory as a result of the appellant's negligence and omission to take proper care in breach of the conditions of the licence. THE evidence disclosed that the cause of fire was not merely, the presence of the burners in the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out. 23. THEir Lordships therefore, observed : "But what section 304-A requires is causing of death by doing any rash or negligent act. It appears that the direct or proximate cause of the fire which resulted in seven deaths was the act of Hatim. It seems to us clear that Hatim was apparently in a hurry and, therefore he did not perhaps allow the rosin to cool down sufficiently and poured turpentine too quickly.............. It is clearly the negligence of Hatim which was the direct or proximate cause of the fire breaking out, though the fact that burners were kept in the same room in which turpentine and varnish were stored was indirectly responsible for the fire breaking out and spreading so quickly. Even so in order that a person may be guilty under section 304-A, the rash or negligent act should be the direct or proximate cause of the death. In the present case it was Hatim's act which was the direct and proximate cause of the fire breaking out with the consequence that seven persons were burnt to death, the act of the appellant in allowing turpentine and varnish being stored at a short distance was only an indirect factor in the breaking out of fire........THE death in this case was therefore, in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient cause without the intervention of another's negligence. THE appellant must, therefore, be acquitted of the offence under section 304-A." This case, I am afraid, is not of very much help to accused Nos. 2 and 3 although it is helpful to accused Nos.1 and 4. 24. We may notice another earlier decision of the Supreme Court in Juggankhan v. THE State of Madhya Pradesh, (1965) M L J. (Crl) 439 : (1965) 2 S.C J. 119 : (1965) 1 S C R. 14 : A.I.R. 1965 S C. 831. That was a case where a Homoeopathic practitioner administered poisonous medicines to a patient without studying the effects of the medicine given to the patient. THE Homoeopathic practitioner was held guilty under section 304-A and not under section 302, Indian Penal Code. THE Homoeopathic practitioner gave admittedly dhatura leaf as prescription to his patient. THE evidence in the case disclosed that in no system of medicine, except, perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worms. THE Homoeopathic practitioner presciibed dhatura leaf as medicine for guinae worms without properly studying or realising the after-effects of administering dhatura leaf as medicine for guinea worms. THE Supreme Court therefore held that it was a rash and negligent act on the part of the Homoeopathic practitioner to prescribe poisonous drugs without studying their proper effect. In Suleman Rahman Mulani and another v. State of Maharashtra, (1968) 2 S.C.J. 364 : (1968) M L J. (Crl.) 556 : (1968) 2 S C.R. 515 : A I R. 1968 S C. 829. the Supreme Court again considered the applicability of section 304-A and held that there must be direct nexus between the death and the rash and the negligent act of the accused and proof of that nexus is essential. In a later case in Bhalchandra and another v. THE State of Maharashtra, 3. (1969) 1 S.C.J. 6 : (1969) M.L.J. (Crl.) 36: (1968) 3 S.C.R. 766 : A.I.R. 1968 SC. 1319. it was again pointed out by the Supreme Court that the criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. That was a case where a factory was manufacturing fire works etc., and it was located in close proximity to residential quarters. THE explosion of the factory resulted in injuries to and death of some persons. It was found out that explosives which are highly hazardous and dangerous in their nature and possession of which was prohibited under the notification issued under the Explosives Act, 1884 were stored in the premises of the factory at the time of the explosion. THE Supreme Court, however, found on the facts of that case that the appellants, who were licence-holders for manufacturing explosives in the factory, were liable to be convicted under section 304-A and 337, Indian Penal Code, although there was no direct evidence of the immediate cause of the explosion. THE manufacturers undoubtedly displayed a high degree of negligence by allowing or causing to be used explosives of sensitive compositions and substances in the manufacturing of fire works, which must be the efficient cause of explosion. 25. THErefore there is no doubt from the various decisions referred to above, that to make out an offence under section 304-A, Indian Penal Code, the prosecution must establish that the negligence of the accused went beyond mere carelessness and that the death of the persons involved is the direct result or causa causans of the rash or negligent act committed by the accused person without the intervention of another's negligence. 26. In this case P.W. 7, the Drug Inspector, stated that triple antigen and scoline vials can easily be distinguished as the colour of the two drugs is different. THEre is also difference not only in colour but also in the packing, the outside labels, for the two being different. THE Drug Inspector, (P.W. 7) sent samples of both the drugs (triple antigen and scoline) to the Government analysts; triple antigen to Central Research Institute, Kasanli and scoline to Central Drug Laboratory, Calcutta. THE reports received by him are that the drugs are of standard quality. THErefore there is absolutely no substance in the argument that by reason of the fact that triple antigen was injected into the boys after the expiry of the date for its use, it caused the death of the four deceased in this case. P.W. 7 has also stated that scoline is a muscular relaxant and it will produce respiratory failure resulting in death if given in material doses. 27. Accused No. 4 though issued scoline and was negligent enough in not looking at the label before issuing the vial, he is not the direct cause for the death of the four school children as there are other intervening causes. Similarly accused No.1 who made the indent for triple antigen cannot be found guilty although he was careless enough in not checking the vials before he handed over the box containing the vials to accused Nos. 2 and 3. Though accused Nos. 1 and 4 have in a way contributed to the ultimate result, viz., the death of the four unfortunate school children they are not directly responsible and the death of the school children is not the causa causans of the negligence of accused Nos.1 and 4. THEy are therefore entitled to the benefit of doubt. 28. It was the duty of respondents 2 and 3 (accused 2 and 3) who have been entrusted with the duty of giving triple antigen injections to school boys to see before the vial was opened and the vaccine was drawn out into the syringe whether the vial which they were using was triple antigen vial or not. THE fact that the indent was made for triple antigen vials is no ground for accused Nos. 2 and 3 for not bestowing that amount of care which they ought to and is required of them. THE label on scoline and also the colour of the drug is different. Accused No. 3 who was taking out vials from the box (M.O.1) and drawing out from the vials should have known when he took out, the scoline vial that its colour was different and label attached to it was also different. It was for him to see why there was that difference in colour which was not there till the scoline vial was opened. A duty is cast on accused 2 similarly before he mechanically injected the drug to see whether what he was injecting was triple antigen or some other drug. He could have easily noticed when a syringe loaded with scoline was given to him that it did not have the colour of the vaccine. Each vial of scoline, it is in evidence, can be used for 10 to 12 children and he could have easily noticed it, at least after the first or second injection was given. THE fact that accused No. 2 went on giving injections unmindful of the giddiness complained of by the effected school boys and the further fact that accused No. 3 went on loading the syringe from the scoline vial in utter disregard of the symptoms appearing in those boys to whom scoline was injected, goes to show that they (accused Nos. 2 and 3) acted in utter disregard to the safety of the innocent boys who had come there for vaccination to protect themselves against possible attacks of diseases like diphtheria etc. Accused Nos. 2 and 3 displayed gross and unpardonable negligence in the discharge of their duties which has been the direct result of the death of the four illfated boys. THE fact that an empty vial of scoline (M.O. 2) was found goes to establish, beyond reasonable doubt, that scoline vial was fully used by accused Nos. 2 and 3. It is a case where accused Nos. 2 and 3 are directly responsible for the death of the four school children by their high degree of negligence. I therefore set aside the acquittal of accused Nos. 2 and 3 and convict them under section 304-A, Indian Penal Code, and sentence each one of them to two years rigorous imprisonment. Accused Nos.1 and 4 are given the benefit of doubt and their acquittal is confirmed. THE State appeal is accordingly allowed. Appeal allowed.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.