Walsh and Ryves, JJ.
1. Nanhu and Bhagga were convicted by the learned Additional Sessions Judge of Bareilly under Section 304 of the Indian Penal Code with reference to the death of one Tika, and under Section 328 of the Indian Penal Code for administering dhatura poison in the food served to Gopal and Raghbar. They were sentenced to seven years' rigorous imprisonment under each section, the sentences to run concurrently. They appealed from jail and a learned Judge of this Court directed that notice should issue to the appellants to show cause why they should not be convicted under Section 302 of the Indian Penal Code for poisoning Tika and why their sentence should not be enhanced or other suitable order passed. Notice has been served but no appearance has been made. The facts of the case admit of no dispute, On the 26th of May, 1922, these two accused, who are kurmis by caste but who represented themselves to be Banias, made friends with three young men Tika, Gopal and Raghbar, who were returning to service, at the Dharamsala adjoining the Bareilly junction. They got into conversation with them; and in the evening they proposed to cook dal and roti for them and did so. Shortly after partaking of this food all three became more or less insensible. Tika died eventually. Gopal and Raghbar wore taken to hospital and they ultimately recovered after treatment. The cause of Tika's death was dhatura poisoning. The property which these persons had, had been removed by the accused. Subsequently the accused were arrested and property which had belonged to their victims was recovered from their possession. There can be no doubt of these facts. In our opinion the charge should have been framed under Section 302. Under Section 299 of the Indian Penal Code, which defines the offence of culpable homicide, it is said, '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.' And having regard to the 3rd and 4th paragraphs of Section 300, such culpable homicide is murder. Now, there cannot be the slightest doubt that these two persons knew, when they administered dhatura recklessly in the food they had prepared for those persons, that it was likely to cause death. If authority is wanted for this proposition see Emperor v. Gutali (1908) I.L.R. 31 All 148 and Jeoli v. Emperor (1917) 15 A.L.J. 13. We do not, however, propose to order a fresh trial in this case under Section 302. We content ourselves with passing the maximum sentence under Section 304, namely transportation for life. If people deliberately and recklessly poison travellers with the intention of robbing them while they are insensible under the effects of the drugs given to them, and take advantage of the facilities provided by the Railway authorities for the comfort of passengers and cause death, they must take the consequences. We therefore enhance the sentence under Section 304 of Nanhu and Bhagga to transportation for life with effect from the date of their conviction. We retain the conviction and sentence under Section 328. The terms of imprisonment will be concurrent. The appeal is dismissed.