1. This is a jail appeal against the appellant's conviction and sentence Under Sections 304 and 328, I.P.C., read with Section 109, I.P.C.
2. The, case for the prosecution in brief was: About three years ago, Sm. Dhapu with her husband Rama went to her father's village Phuta Ka Baria in Rajasthan, where there is a temple of Ramdeoji known as Ramdeora. Pema was the Pujari and Bhopa of the temple. Dhapu had two daughters but no son. She and her husband went to the temple and in the presence of the accused Fema made a promise that if Dhapu had a son, they would give a feast to the villagers and Rs. 25/-to the deity which was to be received by the Bhopa of the temple. After sometime, a son was born to Dhapu, but she made an offering of cocoanut only' at the temple Ramdeora, and told the accused Pema that she would fulfil her promise whenever her son attained the age of 5.
In May 1953, the marriage party of the, the brother of Dhapu, went to village Andhi Deori,. where the husband of Dhapu lived. On the third day of the arrival of the marriage party, the accused Teja went to Dhapu's house and told her that Pema had sent a 'Prasad' of Gur for her. She asked him to place the Gur in a shelf. Next morning when Dhapu was going out of the house, she-placed the Gur in a tray on the flour and when she returned, she found her son Ladu eating it. Dhapu took away the Gur from Ladu as she thought it would give him loose motions and she herself ate-away the remaining quantity. After a short time Dhapu and her son Ladu became unconscious. Ladu vomitted and dhatura seeds were found in the vomit. Ladu was taken to the Beawer hospital where he died.
3. The accused Pema pleaded not guilty. The learned Sessions Judge believed the prosecution case and convicted and sentenced the appellant Under Sections 304 and 328 read with Section 109, I.P.C.
4. It is urged in appeal that no case against the appellant had been made out. Notice was issued to-the. accused and he has appeared in person. The Public Prosecutor appears on behalf of the State.
5. It is clear from the evidence of Dhapu and her husband Rama that the accused Pema had a motive for administering dhatura to their son. They had made a promise of giving a feast and Rs. 25/- ', for the deity if a son were born. But after the birth of the son, they only made an offering of cocoanuts. It is not the case for the prosecution that in administering the dhatura Pema wanted to cause the death of Ladu. The motive of Pema is-said to have been only to cause unconsciousness so that he may be called as a Bhopa, and by curing Ladhu he may acquire reputation as a Bhopa. Dhapu stated that Teja told her that the gur had been sent as 'Prasad' by Pema. She has been corroborated by Bhoma who is said to have been present all the time. Immediately after Ladu and Dhapu became unconscious, Anna who is a pensioner and a village Lambardar and also a Surpunch, was, called and on inquiry by him, Teja admitted that the Gur had been given as 'Prasad' by Pema. Sohart '-all, P.W. 3, was also then present. Anna and Sohanlal are independent witnesses and no reason has been suggested why their evidence should, be disbelieved.
The prosecution finds strong support in the evidence of Uda P.W. 9, brother of Dhapu. He stated that on the last Akha Teej his marriage party went from Phuta Ka Bari to Andi Deori and that he-invited Pema, but he did not join the marriage-party, but Teja joined it. A day before the marriage party left the village Teja slept at his house. Next morning Pema came to his house and woke up Teja. It is further in the evidence of Uda that while Teja and Pema were talking, he went out to answer the call of nature and on return, found5 Pema giving something tied in a pink piece of cloth to Teja. Uda has further stated that on the way to Andhi deori, he wanted Teja to put the packets of Biri in his pocket but he told him that his pocket was already full with the packet containing the 'Prasad' sent by Pema for the children of Dhapu.
It is further in evidence that on the information given by Teja the accused Pema was arrested and dhatura seeds were recovered from his possession. Also a dhatura plant was found standing in his house. This by itself may not be very important, but the recovery of the dhatura seeds from the possession of Pema is a strong circumstance in support of the prosecution.
6. The evidence in support of the plea of alibi is highly unsatisfactory and has been rightly disbelieved by the learned Sessions Judge.
7. On a consideration of the evidence. I am of the opinion that the case against the accused Pema .lias been fully made out.
8. The accused Pema had been rightly convicted Under Section 304, I.P.C., read with Section 109, I.P.C., as it could not be unknown to him that administering the dhatura seeds in the Gur was likely to cause the death of the person eating the gur. But the conviction Under Section 328, I.P.C., is not sustainable for according to the prosecution itself, the accused had no intent to cause hurt or to commit or to facilitate the commission of an offence.
9. Considering all these circumstances, the sentence of five years Under Section 304 read with Section 109, IPC is by no means severe.
10. For the reasons given above, the appeal is partly allowed and the conviction and the sentence of the accused Pema Under Section 328, read with Section 109, I.P.C., are set aside, but the conviction and sentence Under Section 304, read with Section 109, I.P.C., are maintained.