Richards and Karamat Husain, JJ.
1. In this case Ram Prasad and Bhagwan Din have both been convicted under Sections 328 and 304, Indian Penal Code. Bhagwan Din has been sentenced to seven years' rigorous imprisonment under each section to run consecutively, Ram Prasad has been sentenced to four years under each section to run concurrently. Both Earn Prasad and Bhagwan Din have appealed. When the appeal came before Mr. Justice Knox he ordered that notice should go to the accused to show cause why they should not be convicted under Section 329 of the Indian Penal Code and the sentences enhanced. The learned Judge was of opinion that the case did not fall under Section 304, Indian Penal Code. After the case had come up before a Bench of two Judges an appeal was instituted on behalf of the Government against the acquittal of the accused under Section 302, Indian Penal Code. The evidence has been most carefully dealt with in the judgment of the learned Sessions Judge, and we have not the smallest doubt about the facts of the case, which are shortly as follows: Bhagwen Din in the guise of a sadhu and Ram Prasad, a youth with him, administered dhatura poison to some four travellers whom they met on the road between Cawnpore and Allahabad, the motive being unquestionably to rob these persons. Sidhua, one of the persons poisoned, died as the result of the poisoning There was a small boy with the two accused of the name of Mahadeo, and he was, as we think, very properly acquitted. We agree with our learned brother that the case does not fall under Section 304. If the accused administered the dhatura 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 they were likely by administering the dhatura to cause death, they would be guilty of culpable homicide and their act would not have come within any of the exceptions mentioned in Section 300. We, however, think that the accused cannot be convicted under Section 329. That section provides that whoever voluntarily causes grievous hurt for the purpose of extorting, etc, Extortion is defined in Section 383, Indian Penal Code, and although we think that grievous hurt was caused to Sidhua, it was not for the purpose of 'extortion' within the meaning of Section 329. Possibly the case might have come under Section 326, Indian Penal Code, but that is not the section under which notice went to the appellants.
2. With regard to the appeal of the government, we do not feel absolutely convinced that the accused or either of them had any intention to cause bodily injury likely to cause death, or knowledge that their act was likely to cause death. Dhatura is not exactly a deadly poison, and may often be given for the purpose of merely stupifying a victim. We think, however, that the offence so far as Bhagwan Din is concerned was a very serious one and deserves serious punishment.
3. Ram Prasad is about 14 years of age and may be considered to have been under the influence of Bhagwan Din. We dismiss the appeal of the Government. We alter the conviction of Bhagwan Din from a conviction under Section 304 to a conviction under Section 325, but maintain the sentence of seven years' rigorous imprisonment. We set aside the conviction and sentence of Ram Prasad under Section 304 and acquit him of the charge under that section.
4. The appeal of Bhagwan Din under Section 328 is dismissed. The two sentences of coven years each imposed upon Bhagwan Din will run consecutively. The conviction and sentence on Ram Prasad under Section 328 will also remain in full force, and his appeal against his conviction under this section is dismissed. The rule issued to the two appellants is discharged.