A medical practitioner cannot be charged under S.304 IPC for an unintentional act without knowledge of likely death; S.304A IPC is applicable for negligent acts.

1. Invoking revisional jurisdiction of this Court under S.397/401 of the Code of Criminal Procedure, 1973 , petitioner herein has filed this criminal revision against the impugned order dated 19-5-2011 by which learned Additional Sessions Judge, Balod, District Durg framed charge for the offence punishable under S.304, IPC.

2. The core facts required for judging the legality and correctness of the impugned order are as under : -
2.1 That the petitioner is a registered medical practitioner having passed Ayurved Ratna and practicing in alternative system of medicine administered injection to Lalita Bai aged about 30 years wife of Mahesh Kumar some time in the month of August, 2010. The said injection was administered in the Thai region, later on after 2-3 days Lalita Bai suffered pain in that place followed by swelling. The husband of Lalita Bai contacted petitioner and thereafter petitioner found formation of pus in that place, for which she was subjected to cut by the petitioner herein which resulted in septicemia and thereafter the petitioner got Lalita Bai admitted in Government Shahid Hospital, Dallirajhara on 27-8-2010 and after long treatment of one month she died on
29-9-2010.
2.2 Upon memo of Government Shahid Hospital, Dallirajhara, an offence under S.304, IPC was registered against the petitioner and body of. Smt. Lalita Bai was subjected to the post - mortem. In the post - mortem, it is found that cause of death is septicemic shock due to extensive ulcer.
2.3 Upon investigation charge - sheet for the offence punishable under S.304, IPC was filed before the jurisdictional criminal Court.
2.4 The Court of Session on 19-5-2011 framed charge for the offence punishable under S.304, IPC i.e. culpable homicide not amounting to murder against the petitioner, this criminal revision has been filed challenging the order framing charge.

3. Mr. Awadh Tripathi, learned counsel appearing for the petitioner would submit that the Trial Court has committed manifest legal error in framing charge under S.304, IPC. Elaborating his submission, he would further submit merely on the basis of alleged administration of injection to the deceased Lalita Bai by the petitioner, it cannot be held that petitioner administered the injection with knowledge that his said act, would cause death, as there was no intention to kill the deceased and there is no sufficient material to frame charges under S.304, IPC is available on record.

4. Opposing the said submissions, Mr. Prasun Bhaduri, learned counsel appearing for the State / respondent would submit that the petitioner not being a qualified doctor, administered the injection to the patient - Lalita Bai without studying its effect. The charge under S.304, IPC has rightly been held to be made out by the Trial Court ; therefore, revision deserves to be dismissed.

5. I have heard learned counsel appearing for the parties and have also perused the record of the Court below with utmost circumspection.

6. In order to consider the question raised, it would be proper to notice certain undisputed and admitted facts, which are thus: -
(i) that the petitioner is registered medical practitioner certified by Council for Alternative System of Medicines, having passed Ayurved Ratna;
(ii) that he administered injection some time in the month of August, 2010 to Lalita Bai to arrest her fever, which she was suffering;
(iii) that at the place of injection, she developed swelling followed by formation of pus and on complaint being made, the petitioner made a cut on that place, which resulting into septicemia, thereafter, the petitioner got her admitted in the Government Shahid Hospital, Dallirajhara o