Emperor vs Israil Mahto

Courtney-Terrell, C.J.—This is a reference by the Sessions Judge of Patna u/s 307, Criminal P.C., in the case of one Israil Mahto who was charged, but acquitted by the jury of attempting to poison his half brother Sobhi Mahto and the two children of Sobhi Mahto, Ram Lakhan, a boy of 12 years, and Sundri a girl of nine.

Sobhi and the accused Israil were the sons of one Lakhraj Mahto by different wives. Sobhi is about 40 years old and Israil is a youth of about 20 years. Lakhraj before his death divided his property between the two sons. Israil was seven or eight years old at the time of his father''s death and his share of the properties was managed by his mother, the stepmother of Sobhi, until her death some ten years ago. After the death of the mother of Israil Sobhi looked after the property and as a result of a panchayati Israil had to give up one and a half bighas of land to Sobhi for his jethans. Israil became angry with Sobhi and the two brothers were on bad terms because Sobhi protested against the extravagant habits of Israil. The two brothers lived in the same house, but separately Israil preparing his own food. Sobhi''s wife is dead and the little girl Sundri does the cooking for him. On the evening of the occurrence Sobhi was away cultivating his fields and the child Sundri was cooking the evening meal of dal and rice at the chulha. Israil was watching her and sent her out of the room to fetch some water for his own cooking and offered to stir the dal she was preparing while she was away. She went to the well and drew the water and then returned.

Sobhi came home arid a meal was served by Sundri to Sobhi and his son Ram Lakhan and shortly after Israil consumed the plain rice which he had himself prepared. Seeing that he was preparing no dal to eat with his rice Sobhi had offered Israil some of his own dal but Israil had refused to take it. Sobbi noticed that the taste of the dal was bitter but attributed this to the fact that it had been prepared by a young child. After her father and brother Sundri herself took some of the dal and rice. She then noticed that her father seemed to be ill and was twitching his hands and feet about in a restless manner. She got frightened and ran out to call the neighbours. In the meantime the boy had gone to the house of a Brahmin priest where he was in the habit of reading in the evening. The Brahmin priest noticed that he staggered about as though he was drunk and that he was drowsy and therefore took him back to Sobhi''s house and there found Sobhi lying insensible. The child Sundri also came back to the house with neighbours and herself became insensible. A number of villagers assembled and having obtained an emetic from a baid and a hakim they administered it with most successful results and it was probably owing to this fact that these three people did not succumb to the poison. The symptoms displayed by all of them were clearly those of dhatura poisoning such as parching of the throat, drowsiness and restlessness followed by insensibility. A chaukidar had gone off to the thana nine miles away and returned on the following morning with the Sub-Inspector who found the patients had recovered consciousness. The villagers seemed to have been under the impression that Israil was the person who had administered the poison and some of them questioned him but he would not reply. To one of them however he said on the next day that he was under the chaukidar''s surveillance and when the witness asked why this was, Israil admitted to him that he had got seeds from a man named Deokinandan (in whose uncle''s name Israil had executed a kabala) and had put them into Sobhi''s food. Fortunately the pot of dal still contained some food and this has been analyzed and found to contain the alkaloid of dhatura. The verdict of the jury is astonishing. They came to the conclusion that Sobhi and his children had been feigning unconsciousness in order to implicate Israil in a false case. There is not the faintest evidence to support such a suggestion although in the course of cross-examination the suggestion was made by the defence pleader. A point of law has been raised on behalf of the accused to the effect that in any event the case comes u/s 511, I.P.C., and not u/s 307. This point of law has given some trouble and is the cause of conflicting decisions in the Indian Courts. It is however in the circumstances of this case not necessary to decide it. The accused is a youth and there are indications that he acted under the instigation of a person who has absconded. There is a possibility that he may after discipline become fit to be a safe member of society. In the particular circumstances even if he were convicted u/s 307 we should not inflict a greater sentence than one of ten years'' rigorous imprisonment. Now it is perfectly clear that whatever may be the law as to the applicability of Section 307 another section, that is Section 328, I.P.C., is applicable which makes punishable with ton years'' rigorous imprisonment whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt. We therefore accept the reference and convict the" accused under that section and sentence him to ten years'' rigorous imprisonment and it is not necessary to deal with the legal difficulties involved in applying Section 307, I.P.C.

Kulwant Sahay, J.

I agree to the order proposed.

Dhavle, J.

So do I.