Tottenham and Ghose, JJ.
1. The appellant is a kobiraj who has been convicted by the Sessions Judge of Rungpore of an offence under Section 304A, of the Penal Code, and has been sentenced to suffer rigorous imprison meat for one year. He caused the death of a patient by performing what in shown to be a very dangerous operation, namely, the cutting out of internal piles. He was unable to stop the consequent bleeding, and the patient died the following: day. This has been held by the Sessions Judge to be a rash act within the meaning of Section 304A.
2. Baboo Ishar Chunder Chuckerbutty for the appellant contended before us that it was not a rash act within the meaning of that section, inasmuch as the prisoner was a kobiraj and had previously performed surgical operations in one or two cases of the same nature and in other cases of a different character ; and that it has not been shown that he ever before caused the death of a patient. The vakeel also contended that if, notwithstanding these considerations, the Court should still be of opinion that the act was a rash one within the meaning of Section 304A, the prisoner would nevertheless be entitled to the benefit of Section 88 of the Penal Code, because he did the act in good faith, without any intention to cause death, and for the benefit of the patient who bad accepted the risk.
3. We are of opinion that the prisoner is not entitled to the benefit of Section 88. It is quite true that he had no intention to cause the death of the patient. Nobody accuses him of such intention. Id is also true that he acted, as he thought, for the benefit of the patient. But it is very doubtful whether he can be said to have acted in good faith, regard being had to the definition of good faith in Section 52 of the Penal Code, namely, nothing is said to be done in good faith which is done without due care and attention. The prisoner is admittedly uneducated in matters of surgery. He has had no regular education in matters of medicine.
4. It has been contended on his behalf that he had no idea that the operation that he undertook to perform, and did perform, would be attended with danger to the patient. But it was proved by expert medical evidence adduced by the prosecution that the operation which he performed was one so imminently dangerous that educated surgeons scarcely ever attempt it. They treat the complaint of internal piles, in a totally different way. It seems almost impossible therefore to say that the prisoner, in experimenting in the way he did without any knowledge of the subject, was acting in good faith within the meaning of the definition already referred to. But apart from that, we think that Section 88 will not apply to the case, because it is not shown that the patient did indeed accept the risk which turned out to be fatal to him. A patient can hardly be said to accept a risk of which he is not aware. We think it was for the defence pleading, the exception to show that the patient in the present case did accept the; risk, and that consequently he was aware of it. But no attempt was made to show that the patient did know what risk he was undertaking. The evidence is only to the extent that he consented to the operation with great unwillingness, and that the only information communicated to him by the prisoner on the subject was that if he submitted to the operation he would be cured. Upon that understanding he did submit; and died. It seems, therefore, quite impossible to say that he accepted the risk of the prisoner's act.
5. The question then remains whether the prisoner is guilty under Section 304A. There is no doubt that by his act he caused the death of the deceased. In England he would have been indicted for manslaughter. In this country the provisions of Section 304A seem to apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. It was pleaded for the prisoner that, inasmuch as he had successfully performed similar operations on other persons, be could have no knowledge that he was likely to cause death in this case.
6. We are willing to accept this view of the matter; but, as I have already observed, the prisoner's ignorance only made his act the more rash. We think it is impossible, to acquit him of the offence of which he has been convicted. We have no wish by this decision to deter kobirajes from legitimately exercising their profession. In many cases, no doubt, they do very successfully treat certain disorders; but we think it very important that the public, especially the poorer part of the public, who mostly have to rely upon such practitioners as kobirajes, should be protected from ignorant experiments in surgery.
7. We think, therefore, that the conviction must be affirmed. But we do not think it necessary for the ends of justice to sustain the severe sentence passed upon the prisoner. Similar acts by really professional men have been visited in this country with much less punishment. We think that, as this is the first case from the Mofussil with which we have had to deal, it would be sufficient to inflict the penalty of a fine instead of imprisonment.
8. The sentence of one year's rigorous imprisonment will, therefore, be set aside, and a fine of a hundred rupees imposed upon the prisoner. In default of payment he must suffer three months' rigorous imprisonment.