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Criminal Appeal No. 21 of 1954, decided on 4th November 1954.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 23rd September, 1953, in Criminal Appeal No. 189 of 1953).
‑Prosecution to prove‑Question in cross‑examination by accused's counsel assuming that the accused Rab Nawaz was a partner of "Nawaz Brothers" ‑Assumption not evidence in case‑Identity not established by such assumption.
On the record there was no evidence whatsoever that the appellant was a partner of Nawaz Brothers' and the finding that he was so was merely based on a question in cross examination by the appellant's counsel who, on the assumption that the appellant was a partner of Nawaz Brothers', put one aspect of the defence case to the witness whom he was cross examining .
Held : This assumption by case which could be made the foundation of a finding and it the absence of evidence that the appellant. was in fact a partner of Nawaz Brot'ters', the dying declaraton of the decease did not connect the appellant with the administration o poison.
,
S. 304 A‑Quintessence offence is .eh or negligent act" which causes death‑Intention "rash knowledge not necessary.
Mahmud Shah, Advocate, Federal Court, instructed by Virasat Hussain Naqvi, Attorney, for Appellant.
A. R. Changez, Advocate‑General, Punjab (S. A. Mahmud Advocate, Federal Court, with him) instructed by Ajaz A, Attorney, for Respondent.
Date of hearing : October 13 and 20, 1954.
‑This appeal by special leave appellate order of a single Judge of the Lahore High Court by which the conviction of Rab Nawaz, appellant under section 304 (A) of the Penal Code was affirmed and the sentence reduced to one year's imprisonment.
The dead man of this case, Rafi Ullah, was suffering from some urinary ailment. According to the findings of the High Court he went to the appellant's shop on the 12th July, 1952, and asked for a certain quantity of Qalmi Shora (Potassium Nitrate) The appellant, however, gave him a corresponding quantity of Sodium Nitrite, which is a deadly poison. Rafi Ullah took the scuff with less and was dead within an hour On these facts the High Court has found that the appellant was guilty of a 'rash and negligent act ' inasmuch as he gave to the deceased Sodium Nitrite, a highly poisonous stuff, for Potassium Nitrate, which is a harmless substance, and that Rafi Ullah's death was directly attributable to this rash and negligent act, making the appellant liable to conviction under section 304 (A) of the Penal Code.
Three points have been raised on behalf of the appellant before us. These are
(1) that the heart failure which brought about the death of Rafi Ullah might have been due to anuria and not to the taking of Sodium Nitrite ;
(2) that there is no evidence that the Sodium Nitrite was given to the deceased by the appellant, and
(3) that assuming that the appellant gave to Rafi Ullah Sodium Nitrite when the latter had asked for Potassium Nit. rate, it cannot be held that the death of the deceased was caused by any rash or negligent act of the appellant.
The first contention needs no serious consideration. Dr Muhammad Yaqoob, who performed the pose modem examina tion, found that the mouth, pharynx, oesophagus, stomach and its contents, small intestines and their contents and kidneys of the deceased were congested and that the death was due to heart failure, though he proceeded to say that the possibility of the heart failure having been due to anuria could not be ruled out. He added that the congestion in the stomach and small intestines and the presence of poison in the stomach and small and large intestines could only point to death being due to poisoning. The Chemical Examiner, on the facts stated to him and the result of his own chemical examination of pieces of stomach and small and large intestines, gave the opinion that death was caused by taking Sodium Nitrite which is a highly poisonous salt in place of Potassium Nitrite which is a harmless medicine. There is no evidence of any symptoms which precede death by anuria. On the contrary the evidence is that immediately after taking Sodium Nitrite, Rag Ullah began to feel acute disorder in his stomach and pain in the heart and died within an hour of taking it. The Doctor who held the autopsy found all the symptoms of poisoning present.
There can thus be no doubt that the del duo to poisoning by Sodium Nitrite.
On the second point there is no direct evidence and the finding of the High Court is based on the oral dying declara tion of Raft Uhah made to Dr. Nur Muhammad Khan, in the presence of his own brother Faizullah and Compounder Abdul Khaliq, when after taking the supposed medicine. lie became ill and went to the doctor and told him that he had taken Qalmi Shora which Rab Nawaz of ' Nawaz Brothers' had given him. The appellant denied having given Sodium Nitrite to Rafi Ullah and said that there were a number of shopkeepers of the name of Rab Nawaz in Mianwali.
In a case like this it is the duty of the prosecution to prove that the poison which caused death was given by the accused. This basic position was present to the mind of the learned Judge in the High Court, who dealt with it in the following manner :‑
" The question is whether what the deceased told the doctor, sufficiently connects the appellant Rab Nawaz with the sale of the alleged Qalmi Shora to the deceased. In my opinion the answer should be in the affirmative. A question was put in cross‑examination to Faizullah (P. W. 16) sug gesting that on hearing that his brother had got something from one, Rab Nawaz, and also that Rab Nawaz was a part ner of 'Nawaz Brothers', he had concluded that he was the present accused and fabricated false evidence against him. The witness denied the suggestion but the question itself assumes that the appellant was a partner of 'Nawaz Bro thers.' I have therefore no hesitation in holding that it. was the appellant who sold the stuff which the deceased took in lassi in Peete Shah's shop holding it out as Qalmi Shora. Support is lent to this conclusion by the fact as deposed to by Dr. Nur Muhammad, that a prescription was found in the shirt of the deceased which mentioned Qalmi Shora 2 totas and some tablets of M. B. 693. The inference would be legitimate that on the strength of this prescription, the deceased must have asked for Qalmi Shora from the appellant and was given the stuff which he took in the lassi."
It is clear from these observations that if the learned Judge had not found that the appellant is a partner of 'Nawaz Bro thers' he would not have held that the Rab Nawaz mentioned by the deceased in his dying declaration was the present appellant. On the record there is no evidence whatsoever that the appellant is a partner of 'Nawaz Brothers' and the A finding that he is so is merely based on a question in cross examination by the appellant's counsel who, on the assump tion that the appellant was a partner of 'Nawaz Brothers,' put one aspect of the defence case to the witness whom he was cross‑examining. This assumption by counsel was not evi dence in the case which could be made the foundation of a finding and in the absence of evidence that the appellant was in fact a partner of 'Nawaz Brothers,' the dying declaration of the deceased did not connect the appellant with the admin istration of poison. On this ground, therefore, I would accept the appeal, set aside the conviction and sentence of the appellant and acquit him.
In view of the finding recorded above it should have been wholly unnecessary to deal with the legal question whether, even if it be assumed that the poisonous stuff which caused Rafi. Ullah s death was given by the appellant, it would make section 304 (A) of the Penal Code applicable to the case. But since my brother Cornelius takes the view with which, I regret, I cannot agree that in the circumstances supposed section 304‑ (A) is not attracted, and the law laid down by this Court in this respect has to be followed by the Courts in this country, it does become necessary for me to express my own opinion on this legal aspect of the case.
There is no evidence of the nature of the business the appellant carries on. In his statement he alleged that he is neither a doctor nor a hakim and that he stocks only caustic soda, spirit and acids. It is, however, proved that about a pound of Sodium Nitrite was recovered from his shop. In this state of the evidence, therefore, it will have to be assumed that the appellant does not prescribe and that Rafi Ullah did not disclose to him the purpose for which he needed potassium nitrate. But dealer in chemicals as the appellant is and in view of the small quantity of potassium nitrate which Rafi Ullah asked him to supply, he should have known that the stuff might be used by Rafi Ullah internally as a‑medicine. The Chemical Examiner has described Qalmi Shora (potassium nitrate) as a harmless substance and books on Medical Jurisprudence record that though the ordinarily fatal dose of this substance is one ounce, i.e., 437,5 grains, recovery has occurred even after four ounces. On the contrary the lethal dose of sodium nitrite is 30 grains and the poisonous properties of this substance must have been known to the appel lant who deals in it. In the present case the deceased has asked for two tolas of the stuff, of which he took about one half and the remaining half weighing 160 grains was found in a packet left by him on Peete Shah's shop. Now there can be no doubt that if a man asks for a harmless stuff, as for instance, two tolas (350 grains) of potassium nitrate and he is given that quantity of a deadly poison like sodium nitrite of which only 30 grams can kill a man the person giving such poison for a harmless medicine must be said to have done a 'rash or negligent act', and if that poison is taken in the belief that it is a harmless substance like potassium nitrate the consequent death must be held to be directly due to such ' rash or negligent act.' The quintessence of the offence under section 304‑A is that the accused should have done a 'rash or negligent act' and that death should have been caused by that act. If the appellant can be held to have given 320 grains of Sodium Nitrite to Rafi Ullah when the latter asked for an equivalent quantity of Qalmi Shora (potassium nitrate); he was undoubtedly guilty of a rash or negligent act and the evidence puts it beyond question that the death of the deceased was caused by that act, because but for that act death would mat: ' have occurred. It is riot at all necessary that the poison in such cases should have been actually administered by the accused himself. The very fact that a matt, gives poison where a harmless stuff is asked for is sufficient to wring the accused's case within the limits of the section, if the poison is taken and death is caused. Neither the intention to cause such bodily as is likely to cause death nor ‑the know ledge that death would be caused is a part of the crime punishable under section 304 (A). Indeed with such intention or knowledge the act may amount to culpable homicide, to even murder, and the section expressly excludes such cases from its ambit. Thus, in the present case; if the appellant believing that Raft Ullah wanted the Qalmi Shora for internal use, gave him instead sodium ' nitrite with full knowledge of its properties, it is difficult to see how he could escape from a charge of murder in view of the definition of that offence in section 300, clause fourthly, of the Penal Code. It is the absence of such intention or knowledge that takes such cases out of the definition of culpable homicide and makes them punishable under section 304 (A) simply as cases of causing death by negligence.
: I agree and I only desire to say a few words of my own. Section 304‑A of the Penal Code is expressly restricted in its application to " rash or negligent act not amounting to culpable homicide ". Cases, therefore, where there is intention to cause death or knowledge that death would be the likely result of the act, i.e, offences of culpable homicide punishable under section 302 or section 304 of the Penal Code, would be outside the range of section 304‑A. Under section 304‑A all that is necessary is that there must be negligence or rashness providing a direct cause of death.
In the case before us in place of potassium nitrate which was sought to be purchased by Rafiullah . deceased, sodium nitrite, a substance which is very different in its nature an effect was supplied to Rafi Ullah. by mistake with the result that taking it internally as a cure for a certain ailment Rafiullah died in the course of an hour or so. In the circum stances above mentioned I think the requirements o section 304‑A were completely fulfilled so that whoever was responsible for selling that stuff to Rafiullah, was guilty of an offence under that section. The act became an offence not on account of any intention or knowledge but owing to the substance supplied not being what it was represented o purported to be and the use thereof resulting in death.
The crucial point in the case seems to me to be whether the identity of the appellant with the person who gave the stuff to Rafiullah was established, but on that point the evidence on the record can hardly be considered to be such as can sustain the conviction of the appellant in the case.
.‑In my opinion, this appeal should be allowed, and the accused should be acquitted.
In the view I take of the case, the act held proved against the appellant, viz., the delivery, presumably. by sale, to the deceased of sodium nitrite, in place of potassium nitrate, cannot be regarded as a rash or negligent act, constituting the direct or proximate cause of the death of Rafiullah, unless it can be shown that the appellant knew or had reason to believe that Rafiullah was taking the stuff for internal consumption.
On this point, the record is completely silent, in so far as it is credible. These witnesses who said that Rab Nawaz prepared the drink for Rafiullah, which led to his death soon after, have been totally disbelieved by the Courts below. The solitary proof of a credible natural regarding the circum stances of the supply is furnished by the dying man's statement, proved by Dr. Nur Muhammad, at whose clinic he died; a compounder Abdul Khaliq, and the deceased's brother Faizullah Khan. All have testified that the deceased said only that he had got qalmi shora, i.e., potassium nitrate from Rab Nawaz : nothing else was said as to the circumstances of the supply, e.g., whether the deceased said what he intended to do with the stuff ; whether there was anything else mentioned which might have served to inform Rab Nawaz that the thing he was supplying would be consumed internally.
Two other factors should be considered along with this lacuna in the evidence. The first is the total absence of indication that anything for human consumption is sold at Rab Nawaz's shop. The record is totally silent on the point. It was ascertained from counsel for the appellant that chemicals for agricultural, domestic and industrial use are sold at the shop. It is not suggested at all that it is a chemist's shop. No presumption can therefore be raised that the chemical was supplied for the purpose of internal con sumption, or with the knowledge that it would be or was likely to be, so used.
Secondly, although sodium nitrite is a deadly poison (30 grains is a fatal dose), it may be sold openly to a public, without licence, which suggests that its uses are mainly industrial or domestic; etc., e.g., dying, as to which see Modi's standard work on medico‑legal jurisprudence. its use for internal consumption by human beings would seem to ‑be very restricted. Potassium nitrate too is employed mostly for industrial and other similar purposes. e.g., in the manufacture of fireworks. Reference to Modi's work which has been mentioned above shows that the smallest known fatal dose of potassium nitrate is 2 drams, which is a quarter ounce, equalling about five‑eighths of a tola. Since the deceased appears to have consumed a whole tola of the chemical, the E death might have resulted, even if he had been given qalmi shora, but this would not affect the liability of the accused for causing death by a negligent act, provided it were established that he knew or had reason to believe that Rafiullah intended to take the stuff internally. There being no evidence or other indication' justifying such a conclusion, the inference must be that, having regard to the business done at the shop, the article was acquired for an industrial, or domestic, or other similar use, which was indeed its primary use.
The offence rendered punishable by section 304‑A of the penal Code is that which in the English Jurispudence ist C;, described as " manslaughter by negligence." It is well‑settled ‑that in order to constitute the offence "the negligence must have been the direct and immediate cause of the death" so that "if the particular negligence imputed to the prisoner was not the proximate and efficient cause of the death, he cannot be convicted" (Halsbury Hailsham Edition, Vol. IX, pp. 441-45).
The requirement of a "subjective mental element", in order to constitute the crime of "manslaughter by negligence" is the subject of careful comment in the well‑known treatise on Crime by Russel. In one aspect, this element is exhibited G by the degree of negligence displayed, on which point I may cite with advantage, the following passages from leading English cases. In R. v. Bateman (19 Crim. App. Rep.8), Lord Hewart C. J. observed that‑‑
"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 amount to a crime against the State and conduct deserving punishment."
And in the latter case of Andrews (1937 A C 576), Lord Atkin in leading speech declared, with reference to R. v. Bateman,' that "the substance of the judgment is most valuable and in my opinion is correct", and reiterated the principle that a very high degree of negligence was necessary before manslaughter by negligence could be established.
The requirement of "disregard for the life and safety of others" in a high degree, in order to constitute the crime furnishes to my mind the clue to perhaps the most important aspect of the "subjective mental element" which underlies the crime of 'manslaughter by negligence.' I find myself in full agreement with the conclusion stated by the learned author in Russell on Crime, 10th Edition, p. 643 in the following words:‑
'In spite of the confusion in which the law of manslaughter has, always been involved, there has been one main thread running through all the line of development in the past two hundred years, namely, the fact that the prisoner brought about a death when engaged in what he must have realised was exposing someone's person to the certainty or the risk of some physical harm."
I am not aware that the terms of section 304 A, P P. C. have been construed in the sub‑continent in any different sense. No authority to the contrary was cited in the course of the arguments.
Almost all chemicals employed for domestic or industrial purposes are dangerous to life; if consumed internally. Such commonly used cleansing materials as solution of ammonia, or caustic soda are stated by Modi to cause death through consumption of so small a quantity as half an ounce If bought at a shop dealing in such chemicals, and not at all in articles for human consumption, the presumption should be, in the absence of further evidence, that such materials are brought for human consumption, at least so far as the vendor is concerned. If, thereafter, the purchaser or some other person consumes a lethal quantity of such a material, the direct and proximate cause of the death will be, not the supply, but the consumption, and that would be the deceased s own affair exclusively. Therefore, while it is to be regretted that Rafiullah should have lost his life; I am unable to find that this was due to the act of Rab Nawaz, as the direct or proximate cause.
A. H. Appeal accepted.
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