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15. As to issuance of process under Section 304, IPC, the counsel submitted that even if it is assumed for the sake of argument that whatever is stated by the complainant is true, the appellant is a Doctor and it is well- established that in exercise of his professional conduct, no criminal liability can be imposed on him. The process under Section 304, therefore, deserves to be quashed. According to the learned counsel, at the most process could have been issued under Section 304A and not under Section 304, IPC. There can neither be intention (mens rea) nor `knowledge' on the part of the appellant that his act would result or likely to cause death of the patient. Hence, even if all the allegations are treated to be true, it is an act of negligence covered by Section 304A, IPC.

(iv) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II).

27. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus;

304A. Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

29. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the `motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.

34. The next question relates to applicability of Section 304A, IPC. The learned counsel for the appellant submitted that the law on the point is settled by various pronouncements of this Court, the latest in the line is a three-Judge Bench decision in Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC

1. In that case, one Jiwan Lal Sharma, father of the complainant was admitted as a patient in a hospital. Jiwan Lal felt difficulty in breathing. The complainant's elder brother approached the duty Nurse who tried to contact a doctor, but no doctor was available for about half an hour. The appellant then reached to the room of the patient. Oxygen cylinder was brought and an attempt was made to ensure that breathing problem of the patient does not aggravate. The oxygen cylinder, however, was not working. Another cylinder was brought. But by the time it could be made active, the patient died. An offence was registered under Section 304A, IPC against the doctor which was challenged by him under Section 482, CrPC and prayer was made for quashing of criminal proceedings. The High Court dismissed the petition. The aggrieved appellant approached this Court.