JUDGMENT 1. The main point in this appeal is, 'Whether an act of—causing death, or attempting to cause death, or administering poison—without intention or knowledge that the act may cause such injuries, is an offence or not.' 2. The aforesaid question arises in this criminal appeal against the order of conviction and sentence dated 22.06.1998 passed by the Fifth Additional Sessions Judge, Bilaspur, District Bilaspur (the ASJ) in Sessions Trial No. 501 of 1997 convicting Ram Khelawan (the Appellant) under sections 302, 307 and 328 of the Indian Penal Code (the IPC). 3. The Appellant was awarded no separate sentence under section 328 IPC, but was awarded life imprisonment under section 302 IPC and rigorous imprisonment for 18 years under section 307 IPC. THE FACTS 4. The pedigree of the complainant side is not disputed. It was stated by the prosecution witnesses. It is as follows: Dhanilal Shyama Bai = Ramesh Virendra = Santoshi (PW-7) (PW-8) (PW-1) (Deceased) (PW-3) (Informant) Maya 5. Virendra (the Deceased) and Ramesh (PW-1) are brothers, though not real. They and other family members namely Santoshi (PW-3) (wife of the Deceased), Shyama Bai (PW-8) {wife of Ramesh (PW-1)}, Dhanilal (PW-7) {brother in law (Sala) of Ramesh (PW-1)}, and Maya {daughter of Ramesh (PW-1)} consumed a herbal formulation for strength on 21.07.1997 at 16:30 hours (PW-3, PW-7 and PW-8 are jointly referred to as 'the other Affected Persons' in this judgment). They started feeling uneasy and were taken to the hospital by PW-1. 6. Dr. Arvind Kumar Shukla (PW-11) examined them in the hospital. Nothing wrong was found with Maya, however, the Deceased and the other Affected Persons showed symptoms of poisoning. Subsequently, on the same day, the Deceased died at 21:30 hours. 7. Dhanilal (PW-7) (the Informant) lodged an unnumbered First Information Report (the FIR) on 21.07.1997 at 22:05 hours. It was later numbered and registered as crime No. 173 of 1997 under section 328 IPC at the police Station Tarbahar, District Bilaspur. 8. The allegations in the FIR (Ex. P-27) are as follows: (a) The Informant studies in college and lives in a rented premises along with one Manilal Saket in the neighbourhood of his brother-in-law (Jija) Ramesh (PW-1); (b) The Deceased is the younger brother of Ramesh (PW-1). Santoshi (PW-3) is wife of the Deceased. 8. The allegations in the FIR (Ex. P-27) are as follows: (a) The Informant studies in college and lives in a rented premises along with one Manilal Saket in the neighbourhood of his brother-in-law (Jija) Ramesh (PW-1); (b) The Deceased is the younger brother of Ramesh (PW-1). Santoshi (PW-3) is wife of the Deceased. She was not well and used to have fits; (c) The Appellant is a village doctor (baiga) and had come from Narmada Kota. Initially, he gave herbal formulation to the Informant's sister Shyama Bai (PW-8). Thereafter, the Appellant had given the formulation to the Informant as well as to Maya, and then also to the Deceased and his wife Santoshi (PW-3); (d) Some herbal formulation was on the grinding stone, which was kept outside. It was eaten by the chickens, and they have died. (e) The persons who had taken the herbal formulation also started loosing consciousness and feeling uneasy. It is at this stage that they realised that the Appellant had given poison in the formulation; (f) Ramesh (PW-1) came back in the evening. They informed him and he took them to the hospital in a Rickshaw; (g) The report be lodged and appropriate proceedings be taken. 9. The police submitted the police report alongwith charge-sheet against the Accused under section 302, 307 and 328 IPC. The case was committed to the Session Court for trial and was registered as ST number 501 of 1997. 10. The ASJ framed charge on 27.12.1997 charging the Appellant under section 302, 307 and 328 IPC. 11. Among others, the prosecution filed the following documents: Memorandum of seizure of yellow material in white polythene with gram, sugar and roots (Ex. P-1); Memorandum of seizure of parts of chicken (Ex. P-2); Duty certificate of Gauri Shankar (PW-2) that he should get postmortem of the hen as well as the chickens done and obtain report (Ex. P-3); Memorandum of seizure of yellow colour medicine (Ex. P-4); Notice under section 175 CrPC (Ex. P-5); Inquest (Ex. P-6); Unnumbered First Information Report (Ex. P-7); Memorandum of seizure of grinding stone with yellow material (Ex. P-8A); Medical Report of Maya, Santoshi (PW-3), Dhani Lal (PW-7), Shyama Bai (PW-8), and the Deceased (Ex. P-9, P-10, P-11, P-12 and P-12A); Memorandum of seizure of Viscera of the Deceased (Ex. P-13); MLC report of Ku. Maya, Santoshi (PW-3), Dhanilal (PW-7), Shyamabai (PW-8), and the Deceased (Ex. P-7); Memorandum of seizure of grinding stone with yellow material (Ex. P-8A); Medical Report of Maya, Santoshi (PW-3), Dhani Lal (PW-7), Shyama Bai (PW-8), and the Deceased (Ex. P-9, P-10, P-11, P-12 and P-12A); Memorandum of seizure of Viscera of the Deceased (Ex. P-13); MLC report of Ku. Maya, Santoshi (PW-3), Dhanilal (PW-7), Shyamabai (PW-8), and the Deceased (Ex. P-14, P-15, P-16, P-17 and P-18); Memorandum of seizure of stomach wash of the Affected Persons (Ex. P-20); Spot map prepared by Patwari (Ex. P-24); FSL report (Ex. P-26); First Information Report lodged (Ex. P-27); Memorandum of arrest of the Appellant (Ex. P-28); Post-mortem report (Ex. P-29). 12. In order to prove its case, the prosecution examined the following witnesses: (a) Ramesh Kumar (PW-1): He is the Informant. He had taken Deceased, the other Affected Persons, and Maya to the hospital. He stated that the Deceased alongwith the Appellant had gone to get herbs; (b) Gauri Shanker (PW-2): He is witness of memorandum of seizure of parts of chicken (Ex. P-2) and duty certificate (Ex. P -3). (c) Santoshi Bai (PW-3): She is widow of the Deceased. She stated that: A week before the Deceased died, the Appellant was called to give her medicine for jaundice. However, she continued to be weak. On the date of the incident, the Appellant and the Deceased had gone to purchase the herbs. The Appellant had prepared the herbal formulation and given to the Deceased as well as to the other Affected Persons for strength. (d) Ganesh Prasad Bhatt (PW-4): He is a witness of memorandum of seizure of yellow coloured formulation (Ex. P-4). He stated that nothing was recovered in front of him but admitted his signatures; (e) Naresh Kumar Sakley (PW-5) and Paras Ram Panika (PW-6): They are the witnesses of notice under section 175 CrPC (Ex. P-5) and Inquest (Ex. P-6); (f) Dhanilal Sakat (PW-7): He is the Informant and broadly supported the FIR version. He stated that: The herbal formulation was prepared by the Deceased on the instructions of the Appellant; In the herbal formulation, the Appellant had mixed the herbs in baked gram, sugar and got it grounded and sautéed in ghee; The Informant ate the herbal formulation on the request of the Deceased. (g) Shyamabai (PW-8): She is the sister of the Informant and sister-in-law (Bhabhi) of the Deceased. (g) Shyamabai (PW-8): She is the sister of the Informant and sister-in-law (Bhabhi) of the Deceased. She stated that: The Deceased has asked her husband to help him to find someone, who could treat (jhad-fuk) his wife; The Appellant had come and treated the widow of the Deceased (PW-3). The Deceased had prepared herbal formulation for strength on the instructions of the Appellant; (h) Kaushal Prasad Dhankar (PW-9): He is a witness of memorandum of seizure of grinding stone with yellow material (Ex. P-8A); (i) Mani Lal (PW-10): He is the witness of memorandum of seizure of yellow material in white polythene with gram, sugar and roots (Ex. P-1); (j) Dr. Arvind Kumar Shukla (PW-11): He is the doctor who conducted medical examination of the Deceased, the other Affected Persons and Maya. He found that Maya was not affected; whereas, the Deceased and the other Affected Persons were showing symptoms of poisoning; (k) Motiram Dahire (PW-12): He is the witness of memorandum of seizure of Viscera of the Deceased (Ex. P-13); (l) Salim Tigga (PW-13): He is the Investigating Officer (the IO); (m) Dr. YK Verma (PW-14): He is the doctor who conducted the postmortem. 13. The Appellant neither got any documents exhibited nor examined any witness in his defence. 14. The statement of the Appellant under section 313 CrPC was recorded on 15.12.1998. He expressed his ignorance to most of the questions, however, he denied some of them. He stated that: He was neither a village doctor (baiga) nor does any treatment (jhad-fuk); He is the chowkidar. Persons bear enmity against him for this reason; He is innocent and has been falsely implicated in the case. 15. The ASJ after considering the evidence on record convicted the Accused on 22.12.1998 and awarded punishment as detailed in the opening paragraphs (paragraphs 2 and 3) of the judgment. Hence, the present appeal by the Appellant. POINTS FOR DETERMINATION 16. We have heard counsel for the parties. The following points arise for determination in this case: (i) Whether the herbal formulation was prepared by the Appellant; (ii) Whether the Deceased and the other Affected Persons had consumed the herbal formulation; (iii) Whether the herbal formulation contained poison; (iv) Whether an act of—causing death, or attempting to cause death, or administering poison—without intention or knowledge that the act may cause such injuries, is an offence or not. (v) Whether the act of the Appellant is punishable under sections 302, 307, and 328 IPC; (vi) Whether or not any offence was committed by the Appellant; (vii) In case answer to the preceding question is in affirmative then what offence has been committed by the Appellant. 1st & 2nd POINTS: APPELLANT PREPARED THE HERBAL FORMULATION 17. A prompt FIR (Ex. P-7) was lodged on the date of the incident with the allegations mentioned under the heading 'THE FACTS' (paragraph 8). It contains allegation that Appellant had prepared the herbal formulation that was consumed by the Deceased as well as by the other Affected Persons. 18. The fact that the Appellant had prepared the herbal formulation is stated by Ramesh (PW-1), Santoshi (PW-3), Dhani Lal (PW-7), and Shyama Bai (PW-8). 19. Santoshi (PW-3) stated that she was suffering from jaundice for which the Appellant was called to give medicine. This is also supported by Ramesh (PW-1), the Informant (PW-7), and Shyama Bai (PW-8). 20. Ramesh (PW-1), Santoshi (PW-3), and Shyama Bai (PW-8) have also stated that the Deceased and the Appellant had gone to the market to purchase the ingredients. 21. The Informant (PW-7) and Shyama Bai (PW-8) have stated that the herbal formulation was prepared by the Deceased on the instructions of the Appellant. It was consumed by the Deceased as well as the other Affected Persons. 22. It is also stated by the aforesaid witnesses that Maya had also taken the medicine. However, she was not affected; presumably because she had vomited. 23. There is neither any reason for the aforesaid witnesses to falsely state nor is there anything in their cross examination to disbelieve their statements. 24. In our opinion, the prosecution has proved that: The Appellant was called to treat Santoshi (PW-3); The Deceased and the Appellant had gone to the market to purchase herbs; The Deceased prepared the herbal formulation on the instruction of the Appellant. It was consumed by the Deceased as well as by the other Affected Persons. 3rd POINT: FORMULATION HAD POISON 25. Modi's Medical Jurisprudence and Toxicology 23rd Edition, page 464 observes: Cerberra thevetia or Thevetia nerifolia or pila kaner is a plant belonging to Apocynacea, and is widely cultivated as an ornamental shrub in gardens in the plains in India. It was consumed by the Deceased as well as by the other Affected Persons. 3rd POINT: FORMULATION HAD POISON 25. Modi's Medical Jurisprudence and Toxicology 23rd Edition, page 464 observes: Cerberra thevetia or Thevetia nerifolia or pila kaner is a plant belonging to Apocynacea, and is widely cultivated as an ornamental shrub in gardens in the plains in India. It has linear lanceolate leaves, large, yellow bell-shaped flowers and a green, globular fruit containing a single nut, light brown in colour and triangular in shape with two cells, each enclosing a pale yellow seed. The plant is highly poisonous and contains an active principles, two glycosides, namely thevetin and cerberin.' (The portion marked bold is by us). 26. Dr. Arvind Kumar Shukla (PW-11) medically examined the Deceased and other Affected Persons when they were admitted in the hospital. He stated that they had symptoms of poison. 27. Chickens had also eaten part of the herbal formulation and had died. The parts of the chickens were sent to the Forensic Science Laboratory at Sagar (the Laboratory). Viscera of the Deceased (Ex. P-13) as well as stomach wash of the other Affected Persons (Ex. P-20) were also sent to the Laboratory. The FSL report (Ex. P-26) shows that glycosides of yellow oleander ¼ihyk dusj½ was found in all of them. 28. It is clear from the statement of Dr. Arvind Kumar Shukla (PW-11) as well as the FSL reports (Ex. P-26) that the herbal formulation prepared by the Appellant contained the toxic (poisonous) substance known as 'Yellow Oleander' ¼ihyk dusj½ 29. The Deceased and other Affected Persons had consumed herbal formulation for strength on recommendation of the Appellant. It contained poisonous and toxic substance 'yellow oleander'. The Deceased died and other Affected Persons fell ill. Nevertheless, the question still remains, whether the Appellant is guilty under sections 302, 307, and 328 IPC, or was he negligent. 4th POINT: INTENTION, KNOWLEDGE NECESSARY U/S 299, 302, 307 & 328 IPC Mens rea is Inbuilt in Our Penal Law 30. Unlike England, our penal law is statutory. Mens rea is inbuilt in our statutory law—however, its extent is different in different sections, and is indicated therein. This is an improvement on English criminal law worked out by Macauley and his colleagues. 31. Unlike England, our penal law is statutory. Mens rea is inbuilt in our statutory law—however, its extent is different in different sections, and is indicated therein. This is an improvement on English criminal law worked out by Macauley and his colleagues. 31. Shri MC Setalvad in his Hamlyn Law Lectures 'The Common Law in India' explains it is as follows: 'Unlike in England all offences in India, excepting contempts of the courts of record like the Supreme Court and the High Courts, are statutory. The offences defined in Penal Code and also in various other statutes incorporate in the definition of the offence itself the guilty mind needed in order that the crime may be committed. Under the English common law mens rea may vary from crime to crime. So does it vary in the Indian statutory definitions of crime. What the Indian Code seems to have done is to incorporate into the common law crime the mens rea needed for that particular crime so that the guilty intention in generally to be gathered not from the common law but from the statute itself. This may be regarded as a modification of the common law worked into the code by Macaulay and his colleagues to make it suit Indian conditions. By adopting this course they have also avoided the doubt and obscurity which has not frequently arisen in regard to the mens rea required for certain common law crimes like homicide, assault and false imprisonment. It has been pointed out that the English system, in which changes in the law are made gradually by judicial decisions, has often created a situation in which old and new doctrines have been employed in the course of the same period, according as the judges are inclined one way or the other, giving rise to conflicting principles with puzzling results. Kenny, Outlines of Criminal Law, op. Cit., p. 25, Such uncertainty cannot exist in India as the necessary guilty mind is indicated in the statutory definition of the crime.' (The portion marked in bold is by us) Necessary Ingredients of Sections 299, 300, 302, 304 IPC 32. Chapter XVI of the IPC is titled as 'of offences affecting the human body'. It has many sub-chapters. The first sub-chapter is titled as 'Of offences affecting life'. It contains sections 299 to section 311. Third sub-chapter is titled as 'Of hurt'. Chapter XVI of the IPC is titled as 'of offences affecting the human body'. It has many sub-chapters. The first sub-chapter is titled as 'Of offences affecting life'. It contains sections 299 to section 311. Third sub-chapter is titled as 'Of hurt'. Section 328 is in this sub-chapter. 33. Culpable homicide is defined under section 299 IPC. If it is covered under main section (excluding the exceptions) of 300 IPC then it is murder and is punishable under section 302 IPC. 34. If murder was committed because of any reasons mentioned in any exceptions in section 300 IPC, then it is not murder but is 'culpable homicide not amounting to murder' and is punishable under Part-I or Part-II of section 304 IPC depending whether there was intention or knowledge. 35. However, the important point is that before a case may be covered under section 300, 302 or 304 IPC, it has to be a case of 'culpable homicide'. 36. Section 299, 307 and 328 IPC are as follows: 299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 307. Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty or murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is here in before mentioned. Attempts by life convicts.-When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. ... 328. Attempts by life convicts.-When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. ... 328. Causing hurt by means of poison etc., with intent to commit an offence.?'Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 37. In section 299, 307 and 328 mens rea is included therein. The basic ingredient of these sections is that there should be intention or knowledge. In case the Appellant had intention to administer poison, or knowledge that he was administering poison to them—causing death of the Deceased and illness to the other Affected Persons—then he is undoubtedly guilty under these sections; otherwise, he cannot be punished under these sections: he would be exempted from the liability. 38. Shri Setalvad in his Hamlyn Law Lectures 'The Common Law in India' explains the 'Exemptions from Liability' in case of culpable homicide as follows: '[Culpable] homicide ... is an offence under section 299 of the Code ... Homicide will not be an offence if death is caused by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act, in a lawful manner, by lawful means and with proper care and caution, Indian Penal Code, s. 80. It will be excused if it is caused by a child under seven years of age or by a child above seven and under twelve years of age who has not attained sufficient maturity of understanding or by a person of unsound mind or by a person under intoxication and incapable of knowing the nature of the act, Ibid, ss. 82, 83, 84, 85. Again homicide will not be an offence if it is caused unintentionally by an act done in good faith for the benefit of the person who died ... or if he is minor or a lunatic, his guardian has consented to the doing of the act, Ibid, ss. 87, 88 and 89. 82, 83, 84, 85. Again homicide will not be an offence if it is caused unintentionally by an act done in good faith for the benefit of the person who died ... or if he is minor or a lunatic, his guardian has consented to the doing of the act, Ibid, ss. 87, 88 and 89. Nor will it be an offence when death occurs by reason of an act done to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to give his consent, Indian Penal Code, s. 92. Homicide will also be justified in the following cases: if it is caused by a person who by reason of a mistake of fact in good faith believes himself bound by law to do it, Ibid, s. 76; by a judge when acting judicially in the exercise of any power which is or which in good faith he believes to be given to him by law, Ibid, s. 77; by a person acting pursuant to a judgment or order of a court of justice, Ibid, s. 78; by a person who is justified by law, or who by reason of a mistake of fact, in good faith believes himself to be justified by law, for example, the causing of death in the apprehending of a murderer in the act, Ibid, s. 79; by a person acting without any criminal intention to cause harm, and in good faith, for the purpose of preventing or avoid other harm to person or property, Ibid, s. 81. Finally as every person has a right, subject to certain restrictions, to defend his own body or the body of any other person against any offence affecting the human body and his property against certain offences against property, no offence of homicide will be committed if death is caused in the exercise of such a right of private defence of person or property, Ibid, ss. 96 to 103. It will be recognized that almost all these exceptions, excepting in a certain measure that based on the right of private defence, are in a smaller or greater degree exemptions in English law' (The portion marked in bold is by us). 39. 96 to 103. It will be recognized that almost all these exceptions, excepting in a certain measure that based on the right of private defence, are in a smaller or greater degree exemptions in English law' (The portion marked in bold is by us). 39. In our opinion, Intention or knowledge is necessary for offence of murder (s. 302 IPC) or attempt to murder (s. 307 IPC) or injury by administering poison (s. 328 IPC); It is not an offence if the act was done unintentionally and in good faith for benefit of the affected persons. 40. However, the question in the present case is—whether the Appellant intended to, or had knowledge that he would cause such injuries resulting into death of the Deceased and making the other Affected Persons ill; whether the hurt was caused unintentionally, in good faith, for the benefit of the Deceased and the other Affected Persons; was the Appellant negligent in doing the same. 5th TO 7th POINTS: NO INTENTION OR KNOWLEDGE—GUILTY U/S 304IPC 41. The scientific name of Oleander is Nerium Oleander, Oleandri Polium, Thevetia Peruviana. Broadly, there are of two types of oleander namely white or sweet scented oleander and yellow oleander. A description of their properties are mentioned in the succeeding paragraphs. 42. In the book of Dravyagun Vigyan written by Professor PV Sharma, Indian Oleander is referred as ^djohj^ and Yellow Oleander is referred as ^ihr djohj^ . Both are described to be poisonous. Their uses are mentioned as below: djohj (Indian Oleander) ... A description of their properties are mentioned in the succeeding paragraphs. 42. In the book of Dravyagun Vigyan written by Professor PV Sharma, Indian Oleander is referred as ^djohj^ and Yellow Oleander is referred as ^ihr djohj^ . Both are described to be poisonous. Their uses are mentioned as below: djohj (Indian Oleander) ... iz;ksx nks”kiz;ksx & ;g dQokr’kked gSA LkaLFkkfud iz;ksx & cká & dq”V] oz.k rFkk ‘kksFk es ewy dks ihl dj ysi djrs gSA fo’ks”kRk% mina’k vkSj fQjax ds oz.kks ij bldk ysi djr gSa i=Lojl us=jksxks es vkW[kks es nsrs gSA vkH;arj ikpulaLFkku & vfxzek|] mnj jksx rFkk foca/k es nsrs gSA jDroglLaFkku & g`n;jksx rFkk jDrfodkjks es iz;qDr gksrk gSA g`n; nqcZy gksdj tc vdk;Z{ke gks tkrk gS vkSj mlds dkj.k tc ‘okld”V] ‘kksFk] nkScZY; vkfn y{k.k izdV gksrs gS rc djohj dk iz;ksx djrs gSA ‘olulaLFkku & ‘okljksx es djohji= dh HkLe dk iz;ksx djrs gSA fo’ks”kr% ;g g`n;fodkjtU; ‘okld”V es ykHkdj gksrk gSA ew=oglaLFkku & ew=d`PkNª vkSj v’ejh es iz;qDr gksrk gSA Ropk & dq”B es nsrs gSA rkidze & fo”keToj es Toj mrjus ij ˆ0 fe-xzk- dh ek=k es bldk ?kUkRo nsus ls iqu% Toj dk osx :drk gSA ;g vkS”kf/k [kkyh isV ugh nsuh pkfg;sA fo”kkDr y{k.k & vf/kd ek=k es nsus ls volkn] ukMhnkScsY;] g`n; rFkk ‘oklvojks/k ls e`R;q gks tkrh gSA mipkj & bles vkek’k; dk ‘kks/ku djus ds ckn ?kh fiykrs gSA iz;ksT; vax & ewy] ewYkRodA ek=k & pw.kZ …0 & ƒ„‡ fe-xzk-A fof’k”V ;ksx & djohjk| rSy] djoh;ksxA ihr djohj (Yellow Oleander) iz;ksx & djohj ds leku gh bldk iz;ksx g`nnScZY; rFkk rTtU; ‘okldkl ,oa ‘kksFk es fd;k tkrk gSA blls g`n; dh dk;Z{keRkk c<+rh gS] ew= Hkh i;kZIr vkus yxrk gS ftlls tyksn vkSj ‘kksFk de gks tkrk gSA (The portion marked by italics is by us) 43. The American Cancer Society on its website, (www.cancer.org) points out: 'Even though oleander is poisonous, heavily diluted oleander preparations have been promoted to treat a variety of conditions including muscle cramps, asthma, corns, menstrual pain, epilepsy, paralysis, skin diseases, heart problems, and cancer. It has also been used in folk remedies as an insecticide and to kill rats. ... Although, this plant is poisonous, products made from oleander have been used for centuries as herbal medicine. Historical records show that the Mesopotamians in the 15th century BC believed in the healing properties of oleander. It has also been used in folk remedies as an insecticide and to kill rats. ... Although, this plant is poisonous, products made from oleander have been used for centuries as herbal medicine. Historical records show that the Mesopotamians in the 15th century BC believed in the healing properties of oleander. The Babylonians used a mixture of oleander and licorice to treat hangovers. Pliny, the Elder of ancient Greece, wrote about the appearance and properties of oleander. Arab physicians first used oleander as a cancer treatment in the 8th century AD. During the 1960s, Huseyin Z. Ozel, MD, a Turkish physician began his studies of oleander as an anti-cancer treatment. He developed an oleander extract that he patented and trademarked in the United States and Euprope as Anvirzel. He began his study because of folk traditions that suggested that an extract of oleander was effective against leukemia.' 44. Modi's Medical Jurisprudence and Toxicology, (Twenty-Third Edition – page 464) also records that: 'Prof. S. Rangaswami has isolated peruvoside, said to be one of the world's best cardiac drugs, from yellow oleander, News Item, Indian Journal Medical Science, March, 1969, 162'. 45. In Dravyagun Vigyan written by Professor PV Sharma, it is mentioned that it is also used in case of weakness. The website of the American website and Modi's Medical Jurisprudence indicate that the oleander including yellow oleander though poisonous and toxic may have some medicinal properties. This may be true as experiments in this regard are being done. It also shows that in folk lore it was thought that it could be used as medicine and was so used. 46. It is not relevant whether the medicinal properties of yellow oleander is proved or not. But relevant point is that in Ayurveda and the folk traditions in villages it is used in preparing herbal formulations to be used as medicine. 47. The prosecution case as well as the prosecution evidence is that: The Appellant had not given the medicine of his own choice. But relevant point is that in Ayurveda and the folk traditions in villages it is used in preparing herbal formulations to be used as medicine. 47. The prosecution case as well as the prosecution evidence is that: The Appellant had not given the medicine of his own choice. He was called by the Deceased to give medicine to his wife {see the statement of Ramesh (PW-1), Santoshi (PW-3), Dhanilal (PW-7) (the Informant), and Shyam Bai (PW-8)}; The Appellant had not gone alone to the shop to purchase the herbs but had gone alongwith the Deceased to purchase herbs {see statements of Ramesh (PW-1) Santoshi (PW-3), and Shyama Bai (PW-8)}; The Deceased had prepared the herbal formulation on the instructions of the Appellant {see statements of the Informant (PW-7) and Shyama Bai (PW-8)}. 48. The Informant (PW-7) has stated as to how the herbal formulation was prepared. He stated that: The Deceased told the Appellant that he was very weak and wanted the Appellant to give him medicine for strength; The Appellant had mixed the herbs in a baked gram, sugar and got it grounded by the Deceased; Thereafter, the mixture was sautéed in oil (ghee); He had taken the herbal formulation on saying of the Deceased. 49. Santoshi (PW-3) was suffering from jaundice. She was given herbal formulation by the Appellant a week before the incident. However, she continued to feel weak and the Appellant was requested to give medicine for strength. 50. The Deceased was also suffering from jaundice. He had also taken the herbal formulation for strength. The other Affected Persons had also taken the herbal formulation for the same reason. 51. The ingredient and method of preparation show that the Appellant was asked to come to treat the victim's family; he intended to prepare a medicine for strength; the Deceased had also gone for purchasing the herbs, then helped in preparing the herbal formulation; the Deceased had also requested the victims to take the herbal formulation. 52. The Appellant had not given the herbal formulation with intention to cause injury, or with the knowledge that poison was being given and it might cause death. It was given as medicine for strength. The Deceased as well as other Affected Persons had also taken the herbal formulation as medicine for strength. 53. 52. The Appellant had not given the herbal formulation with intention to cause injury, or with the knowledge that poison was being given and it might cause death. It was given as medicine for strength. The Deceased as well as other Affected Persons had also taken the herbal formulation as medicine for strength. 53. The intention was to prepare the herbal formulation for strength and was given to the victims to strengthen them and not to cause any injury that might have any adverse effect. 54. From the aforesaid circumstances and evidence, it is clear that: The sole intention or purpose of administering herbal formulation was medicinal. It was administered to the Deceased as well as the other Affected Persons to give them strength; The act was done unintentionally in good faith for the benefit of the Deceased and the other Affected Person; There was neither any intention to cause any injury nor was there knowledge that such injury would be caused; Yellow oleander was included in the herbal formulation not because it was poisonous and toxic but was used for medicinal purpose of giving strength. 55. Yellow oleander is used for some medicinal purpose. It is also sold in the market. The Appellant could be wrong in including the same as part of the herbal formulation or had by mistake included higher quantity than was required. Nonetheless, it cannot be said that there was any intention to, or had knowledge that it would, cause death or injury or hurt. 56. In our opinion, the offences under sections 302, 307 and 328 IPC are not proved. 57. However, the Appellant was not a qualified doctor: he could not practise medicine. The Appellant was merely a village doctor (baiga). He could be said to be negligent in preparing the herbal formulation. In view of the same, the Appellant is guilty under section 304A IPC. 58. We also find support for our conclusions in the Supreme Court decision in Juggan Khan vs. State of Madhya Pradesh ( AIR 1965 SC 831 ) (the Juggan-Khan case). 59. In the Juggan-Khan case, a homoeopathy doctor had administered 24 drops of mother tincture stramonium and a leaf of Dhatura for treatment of 'guinea worm' to a patient, who died. 60. In homoeopathic system mother tincture stramonium and Dhatura leaves are given for treatment of 'guinea worm'. 59. In the Juggan-Khan case, a homoeopathy doctor had administered 24 drops of mother tincture stramonium and a leaf of Dhatura for treatment of 'guinea worm' to a patient, who died. 60. In homoeopathic system mother tincture stramonium and Dhatura leaves are given for treatment of 'guinea worm'. The Supreme Court set aside the conviction under section 302 IPC and convicted him under section 304-A IPC, observing, 'It appears to us that S. 299, IPC does not apply. It cannot be held that the Appellant administered the stramonium drips and the Dhatura leaf with the knowledge that he was likely by such an act to cause the death of the Deceased. Accordingly, we hold that the Appellant must be acquitted of the charge under S. 302.' CONCLUSIONS 61. Our conclusions are as follows: (a) In our penal law mens rea is inbuilt in the statute; (b) Intention or knowledge is necessary for offence of murder (s. 302 IPC) or attempt to murder (s. 307 IPC) or injury by administering poison (s. 328 IPC). It is not an offence, if the act was done in good faith for benefit of the victim; (c) The Appellant neither had any intention to, nor had knowledge that herbal formulation would cause such injury or hurt. He had given the herbal formulation in good faith believing that it would give strength to the Deceased and the other Affected Persons; (d) The Appellant is not guilty under sections 302, 307 and 328 IPC, but is guilty under section 304A IPC. 62. In view of our conclusions, the appeal is partly allowed. The conviction of the Appellant under sections 302, 307 and 328 IPC is set aside. He is convicted under section 304A IPC. 63. The maximum punishment under section 304A IPC is two years. The Appellant has already been in jail for more than seven years. He was granted bail in the year 2004. He has already served maximum punishment under section 304-A IPC. In view of the same, it is not necessary to put him back in jail. 64. The Appellant is on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of section 437-A of the CrPC.