1. The main point in this appeal is,

'Whether an act of—causing death, or attempting to cause death, or administering poison—without intention or knowledge that the act may cause such injuries, is an offence or not.'

2. The aforesaid question arises in this criminal appeal against the order of conviction and sentence dated 22.06.1998 passed by the Fifth Additional Sessions Judge, Bilaspur, District Bilaspur (the ASJ) in Sessions Trial No. 501 of 1997 convicting Ram Khelawan (the Appellant) under sections 302, 307 and 328 of the Indian Penal Code (the IPC).

3. The Appellant was awarded no separate sentence under section 328 IPC, but was awarded life imprisonment under section 302 IPC and rigorous imprisonment for 18 years under section 307 IPC.

THE FACTS

4. The pedigree of the complainant side is not disputed. It was stated by the prosecution witnesses. It is as follows:

Dhanilal Shyama Bai = Ramesh Virendra = Santoshi (PW-7) (PW-8) (PW-1) (Deceased) (PW-3) (Informant)

Maya

5. Virendra (the Deceased) and Ramesh (PW-1) are brothers, though not real. They and other family members namely Santoshi (PW-3) (wife of the Deceased), Shyama Bai (PW-8) {wife of Ramesh (PW-1)}, Dhanilal (PW-7) {brother in law (Sala) of Ramesh (PW-1)}, and Maya {daughter of Ramesh (PW-1)} consumed a herbal formulation for strength on 21.07.1997 at 16:30 hours (PW-3, PW-7 and PW-8 are jointly referred to as 'the other Affected Persons' in this judgment). They started feeling uneasy and were taken to the hospital by PW-1.

6. Dr. Arvind Kumar Shukla (PW-11) examined them in the hospital. Nothing wrong was found with Maya, however, the Deceased and the other Affected Persons showed symptoms of poisoning. Subsequently, on the same day, the Deceased died at 21:30 hours.

7. Dhanilal (PW-7) (the Informant) lodged an unnumbered First Information Report (the FIR) on 21.07.1997 at 22:05 hours. It was later numbered and registered as crime No. 173 of 1997 under section 328 IPC at the police Station Tarbahar, District Bilaspur.

8. The allegations in the FIR (Ex. P-27) are as follows:

(a) The Informant studies in college and lives in a rented premises along with one Manilal Saket in the neighbourhood of his brother-in-law (Jija) Ramesh (PW-1);

(b) The Deceased is the younger brother of Ramesh (PW-1). Santoshi (PW-3) is wife of the Deceased. She was not well and used to have fits;

(c) The Appellant is a village doctor (baiga) and had come from Narmada Kota. Initially, he gave herbal formulation to the Informant's sister Shyama Bai (PW-8). Thereafter, the Appellant had given the formulation to the Informant as well as to Maya, and then also to the Deceased and his wife Santoshi (PW-3);

(d) Some herbal formulation was on the grinding stone, which was kept outside. It was eaten by the chickens, and they have died.

(e) The persons who had taken the herbal formulation also started loosing consciousness and feeling uneasy. It is at this stage that they realised that the Appellant had given poison in the formulation;

(f) Ramesh (PW-1) came back in the evening. They informed him and he took them to the hospital in a Rickshaw;

(g) The report be lodged and appropriate proceedings be taken.

9. The police submitted the police report alongwith charge-sheet against the Accused under section 302, 307 and 328 IPC. The case was committed to the Session Court for trial and was registered as ST number 501 of 1997.

10. The ASJ framed charge on 27.12.1997 charging the Appellant under section 302, 307 and 328 IPC.

11. Among others, the prosecution filed the following documents:

Memorandum of seizure of yellow material in white polythene with gram, sugar and roots (Ex. P-1);

Memorandum of seizure of parts of chicken (Ex. P-2);

Duty certificate of Gauri Shankar (PW-2) that he should get postmortem of the hen as well as the chickens done and obtain report (Ex. P-3);

Memorandum of seizure of yellow colour medicine (Ex. P-4);

Notice under section 175 CrPC (Ex. P-5);

Inquest (Ex.