JUDGMENT 1. THIS is an appeal against conviction under section 307 of the Indian Penal Code. 2. THE prosecution case is as follows : The deceased Dulal chowkidar had some love intrigues with the appellant Narayani Dasi wife of niranjan Sardar of village Dakshin joy krishnapore. Dulal's marriage was arranged by his mother. Shortly before this in the night of 27th Magh 1366 B. S., the appellant offered Dulal some sweets. Taking the sweets Dulal felt uneasy and when he complained about it the appellant replied, this was the last meal she was giving him and the last meal he was to take. Dulal slept after food in the verandah of his house that night but began to feel a burning sensation in his heart, and started vomiting. A homeopathic doctor was called to whom he stated that he had Rasamundi offered by the appellant and since then felt uneasy. He told this to many relations and neighbours who came on the spot and thereafter he was taken to the hospital where he made similar statement to the doctors. He was in the hospital upto 14th and doctors found him cured. He came back home on the 17th but died thereafter. On chemical examination of his viscera arsenic poison was found. The defence is plea of innocence. The post-mortem report read with the report of the chemical examiner disclosed the presence of arsenic in viscera. In the hospital also he complained that he was given some sweets by the appellant and after taking that sweet he felt uneasy and vomiting started. In the hospital also he was treated for poison and after a few days' treatment he was found to be recovering. The doctor recommended him liquid diet but unfortunately he was given solid diet which resulted in setback and ultimately he died. The death therefore is not due to poisoning but due to maltreatment, but then the evidence disclosed that poison was administered to him which necessitated his removal to hospital and treatment. 3. THE next question is whether the prosecution has proved that poison was administered by the appellant. On this point the evidence is the dying statement of the appellant corroborated by the discovery of arsenic in the viscera. Immediately after he took that sweets he felt uneasy and started vomiting. 3. THE next question is whether the prosecution has proved that poison was administered by the appellant. On this point the evidence is the dying statement of the appellant corroborated by the discovery of arsenic in the viscera. Immediately after he took that sweets he felt uneasy and started vomiting. He was vomiting yellow thing and he at once stated that since he took the sweets, he felt uneasy. He also stated that the appellant told him that this was last meal taken by him and this was last meal served by her to him. He made similar statement to P. Ws. 3, 4, 5, 6, 11, 12 and many others. Both, in the village and in the hospital and the hospital record also disclosed that he made such statement. It is not illegal to convict the appellant on the dying statement alone but the dying statement is corroborated by detection of arsenic poison in the viscera. The evidence of these witnesses who hear from Dulal about the nature of the sweets given to him and of the statement made by her, and the immediate effect of that food clearly show that the appellant offered him sweets mixed with arsenic and that Dulal was subject to arsenic poison though he finally died due to maltreatment. The dose of arsenic is apparently not sufficient for the purpose of killing him and according to medical evidence he was recovering. The appellant therefore is not guilty either for committing murder or for attempt to murder. The story is that she was in love with Dulal. Since Dulal's marriage was arranged, she offered the last food to her lover and obviously she did not intend to kill nor did she administer sufficient quantity which might kill Dulal. She had however given him food mixed with arsenic which is a poison and she is guilty under section 328 of the Indian penal Code and not under section 307 of the Indian Penal Code for attempt to murder. The proper section for conviction in the facts and circumstances of the case is under section 328 of the Indian Penal Code by causing hurt by means of poison with intent to commit an offence. The proper section for conviction in the facts and circumstances of the case is under section 328 of the Indian Penal Code by causing hurt by means of poison with intent to commit an offence. That intention to commit an offence is apparent from the facts and circumstances of the case and on the evidence there seems to be no doubt that it is she who administered rasamundi mixed with arsenic poison. We, therefore, find the appellant guilty under section 328 of the Indian penal Code. 4. IN the result the conviction of appellant is altered to one under section 328 of the Indian Penal Code. This appeal therefore fails subject to this that conviction is altered to one under section 328 of the Indian Penal Code. On the question of sentence we feel that in the facts and circumstances of the case, the sentence of rigorous imprisonment for two years would meet the ends of justice. The appeal is therefore dismissed subject to alteration of the conviction and reduction of sentence. The appellant must surrender to his bail bond and serve out the sentence imposed upon him.