Judgment

SIKRI, J. : This is an appeal by special leave directed against the judgment of the High Court of Madhya Pradesh confirming the conviction and sentence of the appellant under S. 302, I.P.C.

2. The case of the prosecution, in brief, which has been accepted both by the Sessions Judge and the High Court, is as follows. The appellant is a registered Homoepathic medical practitioner under Madhya Pradesh Homoeopathic and Bio-chemic Practitioners Act (Madhya Pradesh Act XXVI of 1951).

3. In about May, 1960, he started residing and practising at Akodiya Mandi. He issued a pamphlet advertising that among other things he treated Naru (guinea worm). Lured by this Smt. Deobi, aged about 20 years, who had been suffering from guinea worm for six weeks, accompanied by her uncle Ghisaji (P.W. 3), mother Daryaobai (P.W. 4) and aunt Gulab Bai (P. W. 5) went to the clinic of the appellant on May 30, 1961, at about 8 A.M. She was examined by the appellant and administered 24 drops of mother tincture stramonium and a leaf of dhatura. After taking this medicine, she started feeling restless and ill, various antidotes were given but she was not relieved. She vomited twice but the vomits were not preserved and sent for examination to the chemical examiner. Ultimately at about 5 P.M. she died.

4. Dr. Patodia (P.W. 7) performed the autopsy on May 31, 1961, and reported that the cause of death could be ascertained only after the result of chemical analysis is received. He sent to the Chemical Examiner the stomach with its contents and pieces of liver, spleen and kidney. The Chemical Examiner, however, reported that no poison could be detected in any of these items. This is seized by the learned counsel for the appellant and he has urged that it has not been proved that death resulted from dhatura poisoning. But both the Courts below have found against him. He further urges that what was administered was not a fatal dose and he has seriously challenged the calculations made by the learned Sessions Judge of the contents of poison in the leaf alleged to have been given to the deceased. He has also challenged the concurrent findings of the Courts below that a dhatura leaf and 24 drops of mother tincture of stramonium was administered to the deceased. His final contention is that on the facts found it was set a case of murder under s. 302, I.P.C., but of an offence under S. 304-A, I.P.C.

5. We have looked into the evidence but we are unable to say that the concurrent finding of the Courts below that 24 drops of stramonium and a leaf of dhatura were administered is manifestly wrong. They have relied on the evidence of Ghisaji, deceased s uncle P 14, a register of patients maintained by the appellant, P-10, the prescription written by the appellant, and the evidence of Shyam Swaroop Mishra, P.W. 14, who recognized the handwriting of the appellant. We think they were right in relying on the above evidence.

6. We are also of the opinion that the Courts below were right in conclusion that death resulted from poisoning. It is true that Dr. Patodia could not say what poison caused her death. But he could say that death was due to something that was an irritant, and it could be due to dhatura or belladonna or any other poison. The deceased, according to Ghisaji, P.W. 3, was a healthy woman, and had not taken any other medicine before arriving at the clinic. She was at the clinic from 9 A.M. till she died. The only medicine she took, apart from antidotes, was what was administered, i.e., 24 drops of stramonium and became ill soon after taking these things. On these facts the conclusion of the Courts below that death was the result of dhatura poison cannot be said to be erroneous.

7. The only question that remains is about the nature of the offence committed by the appellant. Should he be convicted under S. 302 or S. 304-A, I.P.C. ? In our opinion, the appellant is liable to be convicted under S. 304A and not S. 302, I.P.C.

8. Dr. Choudhary, P. W. 17, registered med