A person who is not qualified to give medical treatment and who undertakes to do so, and in the course of such treatment causes the death of a patient, is guilty of rash and negligent act under Section 304A, I.P.C.

( 1 ) THE petitioner has been convicted by the Additional District Magistrate of Indore under Section 304a, I. P. C. and sentenced to six months' rigorous imprisonment. His appeal against the convictions and sentence was rejected by the Third Additional Sessions Judge of Indore. The accused has now preferred this revision petition.

( 2 ) THE facts found are that on 11th March 1957, Sub-Inspector Mohite was feeling tired and exhausted at about 6 p. m. and so he sent for the petitioner, who is a Hakim registered under Section 46 of the Madhya Bharat Indian Medicines Act, 1952. On arrival, the petitioner examined Mohite and found that he had no temperature. He, however, advised Mohite to take a Procain Penicillin injection. Mohite accepted the suggestion. The petitioner then gave a Penicillin injection to Mohite, who immediately after he was injected perspired profusely, vomitted and died. The petitioner got scared at the effect of the injection and ran to Dr. Akbarali for help. Mohite expired before Dr. Akbarali could reach his residence. The petitioner, while admitting that he went to fetch Dr. Akbarali, denied altogether having given any injection to Mohite. The facts that the applicant gave a Procain Penicillin injection to Mohite and that immediately after receiving the injection Mohite died are amply established by the evidence on record and were not rightly disputed before me by the learned counsel for the applicant.

( 3 ) LEARNED counsel for the petitioner, however, contended that the giving of the injection was not a rash or negligent act on the part of the applicant within the meaning of Section 304a, I. P. C. , inasmuch as the applicant was a qualified Hakim' and was registered as such and had previously given injections to several people of the same nature; that he had received training in the art of giving injections; and that he had never before caused the death of a patient by giving an injection. Learned counsel referred me to Rex v. Bateman, (1925) 94 LJKB 791 where it was held that to render a medical practitioner criminally responsible for the death of his patient, it must be established that his negligence or incompetence passed beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State, and that a medical practitioner who undertakes the treatment of a patient owed a duty to the patient to use a fair and reasonable standard of care and competence in administering the treatment.

( 4 ) IN my opinion, it is impossible to acquit the petitioner of the offence of which he has been convicted. The applicant is a Hakim. It matters not whether he was a registered or unregistered Hakim. The question is whether he had any knowledge of penicillin treatment of the precautions to be taken before giving a Penicillin injection and of the methods of counter-acting any adverse reaction of the injection. As a Hakim he clearly had no occasion to make a study of Penicillin injections or for the matter of that of any injection given Sn allopathic treatment. Hakim treat maladies of human beings in way totally different from that followed in allopathic treatment. The petitioner sought to prove by the evidence of one Dr. Apte that he had received training in giving injections. He also relied on the statement of Dr. Akbarali that on several occasions he had taken some patients to Dr. Akbarali for consultation and Dr. Akbarali had advised him to give some intra-muscular injections to the patients. These statements at the most show that the petitioner knew the technique of giving injections, that is to say, he knew all that had to be done to a syringe and a needle for making them ready for giving an injection, how to fill it with the liquid to be injected, and as to how and where to pierce the needle for giving an injection. These statements cannot be read as meaning that the accused had all the knowledge of the subject of penicill