Full Judgment
Burn, J.
1. The appellant was tried by the learned Sessions Judge of Coimbatore on a charge of murder (Section 302) and two charges of administering poison with intent to commit an offence. The facts found against him were that on the night of the 6th December last at Pollachi he gave some food with which dhatura was mixed to three Malayalees in order that he might rob them of whatever they had on their person. The three men were found next morning lying out in the open and they were taken to the hospital. The medical evidence showed that all of them had been given dhatura. Two of them recovered completely. The third developed pneumonia and died on the 13th December,
2. There is no reason to differ from the finding of the learned Sessions Judge with regard to these facts. The learned Public Prosecutor has taken me through the evidence of the important prosecution witnesses, P.Ws. 1 and 2. These are the two men who recovered from the dhatura poisoning. P.W. 1 is the son of the deceased. This man identified the accused at parades held on different dates some time after the Occurrence. The accused at the trial merely pleaded that he knew nothing and that the case was false. He was not able to say why any of the witnesses should have given false evidence against him.
3. The only point that needs discussion is whether the conviction of the accused for the offence of murder is correct. The conviction for the two offences under Section 328 of poisoning P. Ws. 1 and 2 is clearly correct and the sentences of seven years' rigorous imprisonment passed upon the accused for those offences are not excessive. With regard to the person who died the learned Sessions Judge has convicted him of murder finding that he died of pneumonia consequent upon the exposure occasioned by coma or unconsciousness produced by the poison. The learned Judge refers to a case reported in Emperor v. Nanhu I.L.R.(1923) All.557. There is however one important difference between the Allahabad case and this. In the Allahabad case it was proved that the deceased died within a very short time of the dhatura poisoning and the learned Judges held that the accused ought to have been charged under Section 302, Indian Penal Code, and that his offence clearly fell within the third and fourth paragraphs of Section 300. In the present case however death was not due to dhatura poisoning. The doctor's evidence is clear that the victim recovered from dhatura poisoning and that he died of pneumonia. The question therefore is whether pneumonia was a likely consequence of the administration of dhatura. If it was likely that the victim after being given dhatura and thereby being rendered unconscious would develop pneumonia, a disease which is very often fatal, then the pneumonia can be said to be so connected with dhatura poisoning that the act of the accused in administering dhatura had caused the death of the victim. But there is no evidence that pneumonia was a probable consequence of sleeping out at Pollachi on the night of the 6th December. The doctor does not say that any one who slept out in the open on that night was likely to get pneumonia. He says merely that the man 'developed pneumonia on account probably of exposure in the open maidan on 6th December, 1940'. Thus it is not established that the pneumonia was in fact caused by the exposure. Moreover the doctor did not say that pneumonia was a probable consequence of sleeping out; and as a matter of fact it appears that the other two men who were poisoned, P. Ws. 1 and 2, although they also slept out in the open for the same length of time, did not develop pneumonia.
4. In these circumstances it is clear that the act of the accused in administering dhatura to Kunjan Nayar has not been shown to have caused his death. The conviction of the appellant for the offence of murder cannot therefore be sustained and it is set aside. The appellant must be convicted in the case of Kunjan Nayar also of an offence under Section 328, Indian Penal Code. I set aside the sentence of transportation for life and for the offence under Section 328, Indian Penal Code, I sentence the appellant to ten years' rigorous imprisonment, the sentence to run concurrently with the other two sentences of seven years' rigorous imprisonment.