Judgment R.N.Sahay, J. 1. Appellant, Gobind Oraon, aged 21 years, has been convicted for infanticide as also under Sec. 328 of the Indian Penal Code and has been sentenced to life imprisonment. The Sessions Judge, Gumla, before whom the appellant was tried, did not impose any separate sentence under Sec. 328 of the Indian Penal Code. The victim in this case was aged only 2 months and it is stated by the informant that he was the illegitimate son of the appellant through Parmila Oraon, P.W.5. 2. According to the prosecution story, Bimla Kumari (P.W. l) who is the sister of Parmila Oraon (P.W. 5) had returned from school on 19.2.1988 at about 4 p.m. It may be stated that the appellant and the prosecution witnesses are residents of village Basua Bans Toli P.S. Gumla, Dist. Gumla. Bimla Kumari saw the appellant and one Prakash Oraon sitting on a cot in front of the house of the appellant. The witness took the child of Parmila in her lap for playing with her. She asked Pramila to wash the utensils. At about 5 p.m. the appellant came and told the witness to hand over the child to him as he wanted to play with her. As soon as the child was handed over to the appellant, the appellant forced some liquid from a small bottle into the mouth of the child. When the witness asked as to what he was doing, the appellant said that he was giving medicine. The child was then handed back to the witness. The witness saw froth coming out of the mouth of the child. She raised alarm and the appellant fled away. An attempt was made to catch the appellant by the father and another person who arrived there but the appellant is said to have threatened them. The infant died after two hours. 3. The First Information Report of the incident, was recorded on information of Bimla Kumari at Gumla Sadar P.S. at 9.45 a.m. on the next morning. In the Fardbayan the informant narrated the facts stated above. She further stated that her sister Pramila was having affair with the appellant and she had given birth to the child, a month earlier. A case under Sec. 238/302, I.P.C. was registered and investigation commenced by the Officer-in-charge of Gumla Sadar Police Station. 4. Dr. In the Fardbayan the informant narrated the facts stated above. She further stated that her sister Pramila was having affair with the appellant and she had given birth to the child, a month earlier. A case under Sec. 238/302, I.P.C. was registered and investigation commenced by the Officer-in-charge of Gumla Sadar Police Station. 4. Dr. S.C. Agrawal, P.W. 9 of M.G.M. College, Jamshedpur performed autopsy on the dead body of the deceased child. The doctor detected that there was presence of milky watery fluid, which had foul smell. No other positive finding was made. The death, in the opinion of the doctor, was caused due to possible poisoning of tissues leading to failure of vital organs like heart an respiratory system. The viscera report was not produced by the prosecution. 5. In support of the charges framed against the appellant, the prosecution called 9 witnesses including the Investigating Officer and the doctor who had performed autopsy. Other witnesses who were examined are Bimla Kumari (P.W. 1), Tetri Oraon (P.W. 2), Shyam Bihari Oraon (P.W. 3); Ajay Oraon (P.W. 4); Pramila Drain (P.W. 5); Naktu Oraon (P.W. 6): Rikua Oraon (P.W. 8). 6. Learned Sessions Judge having scrutinised the evidence held the charges to be proved beyond reasonable doubt. At this stage it will be convenient to notice the material evidence produced in this case. The evidence of P.W. 1 Bimla Kumari has already been referred to above. In her crossexamination, P.W. 1 stated that she had never seen Folidoi. She was told by Shyam Bihari that what was administered to the child was Folidoi. She has further stated that the appellant played with the child for about 15 minutes and then administered liquid to him. The evidence of P.W. 2 Tetri Drain is not very material. She has only stated that on hearing hulla of her daughter in law she came out of her house and then Bimla told her to what had happened. The child was dead by then. Shyam Bihari Oraon (P.W. 3) has deposed that he was told by Bimla Oraon that the appellant had administered liquid in the mouth of the child. The next important witness is Parmila Drain, P.W.5 the sister of the informant. She has testified that at about 5 p.m. on the date of occurrence, she handed over her child to her sister Bimla and got engaged in washing utensils. The next important witness is Parmila Drain, P.W.5 the sister of the informant. She has testified that at about 5 p.m. on the date of occurrence, she handed over her child to her sister Bimla and got engaged in washing utensils. After some time, she heard the shouts of her sister. She came out and found that froth was coming out of the mouth of her child. Her sister told her that the appellant poured Folidoi in the mouth of the child. She saw the appellant feeling away. Shyam Bihari and others tried to apprehend the appellant, but they could not succeed. This witness has frank by stated that she had illicit relationship with the appellant for last 1.5 years and the child was the outcome of that relation. The appellant had become indifferent towards this witness and she suspected that this was the reason why the appellant had killed the child. Naktu Oraon, P.W. 6 is the father of P.W. 1 and 5 and husband of P.W. 2. he was in the Bari of his house at the time of occurrence. He heard shouts of Bimla and went to her when he was told about the occurrence. Sita Ram Pas wan (P.W.7) is the Investigating Officer of the case. This witness has stated about various steps taken by him during the course of investigation. 7. In the background of this evidence, the crucial question arises for consideration is as to whether conviction of the appellant under Secs. 302 and 328, I.P.C. is proper and fit to be upheld? Sri A.K. Chaturvedi appearing in support of the appellant made a valiant effort to pursuade us to hold that there was no eye-witness of the occurrence and the appellant was implicated on suspicion. 8. We have carefully scrutinized the evidence and we do not find any infirmity in the evidence of, the witnesses, particularly, P.Ws. 1 and 5. Counsel has not been able to point out any serious flaw in the evidence. In our opinion all the witnesses are natural witnesses and have narrated the incident with clarity. In our opinion, the evidence of the witnesses accepted by the trial court is convincing and must be accepted. 9. Now the only question that remains to be considered is as to where the conviction of the appellant under Sec. 302, I.P.C., is permissible in the facts and circumstances of the case? In our opinion, the evidence of the witnesses accepted by the trial court is convincing and must be accepted. 9. Now the only question that remains to be considered is as to where the conviction of the appellant under Sec. 302, I.P.C., is permissible in the facts and circumstances of the case? The doctor who performed post-mortem examination was not in a position to state with certainty as to what was the cause of the death. In our opinion, the contention of the counsel that the conviction of the appellant under Sec. 302, I.P.C. was not proper is correct, but we cannot accept the contention of the counsel that conviction of the appellant under Sec. 328, I.P.C. is also not proper because no poison was detected. Sec. 328 of the Indian Penal Code reads as follows:- "328. Causing hurt by means of poison etc. with intent to commit an offence Whoever administers to or causes to be taken by any person any poison or any stupefying intoxicating or unwholesome other thing with intent to cause hurt to such person, or with drug, or intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt shall be punished with imprisonment of either ascription for a term which may extend to ten years and shall also billable to fine." A close reading of the section would show that it is not necessary that the substance administered must be poison. The words other things in the section are very significant 10 In Emperor V/s. Aushi Bibi a Division Bench of the Calcutta High Court held that in view of the fact that the chemical analysis did not disclose how much arsenic was found in the powder, it was difficult to say whether the case would come under Secs. 302 or 328, Indian Penal Code," in the facts and circumstances of that case. We respectfully do not agree with the view taken by the Hon ble Court that even Sec. 328, I.P.C. cannot be invoked in view of the fact that quantity of arsenic was not found in the postmortem examination. Our view is fortified by a decision of the Division Bench reported in A.I.R. 1957 A.P. 4562. We respectfully do not agree with the view taken by the Hon ble Court that even Sec. 328, I.P.C. cannot be invoked in view of the fact that quantity of arsenic was not found in the postmortem examination. Our view is fortified by a decision of the Division Bench reported in A.I.R. 1957 A.P. 4562. The appellant in the case before Andhra Pradesh High Court was sentenced to death on the charge that he had administered sodium nitrite poison in the drinks, which resulted in death of the victim. The learned Judges of the Andhra Pradesh High Court in Paragraph 22 of the judgment held that the conviction under Sec. 302, I.P.C. was not sustainable. It is useful to quote paragraphs 22 and 23 of the judgment: - "22. Sri G.V. Raghavayya for the appellant has strongly pressed the contention that the evidence does not establish that the cause of the deceaseds death was sodium nitrite poisoning. He relies on Modis Medical Jurisprudence and Toxicology (12th Edition) 1955 in which it is stated at page 566 that the fatal dose has been calculated to be about 30 grains of sodium nitrite. Such calculation is the normal method for determining the fatal dose - see Taylors Medical Jurisprudence, Vol. II at page 340 (9th Edition, 1934). The learned counsel points out that only about I grain of sodium nitrite was detected in the deceaseds viscera and urged that the fatal dose necessary to cause death has not been accounted for and that the death of the deceased is therefore not proved to be due to sodium nitrite poisoning. Sri S. Malakonda Reddy for the prosecution refers to the mention in the same page of Modis book that nitrite is easily decomposed and destroyed in the system and therefore sometimes not detected in the viscera. He urges that the detection of only one grain in the viscera is not inconsistent with the fatal dose having been administered. No other treatises available to us mention the fatal dose. But P.W. 23 himself has stated in his examination in chief: "A dose of about 20-30 grains will kill a normal human being" 23. In spite of this evidence, the prosecution made no attempt whatever to account for the detection of only grain in the viscera of the deceased. They left the shortage from the fatal dose to be a matter for speculation and conjecture. In spite of this evidence, the prosecution made no attempt whatever to account for the detection of only grain in the viscera of the deceased. They left the shortage from the fatal dose to be a matter for speculation and conjecture. P.W. 23s final opinion that the deceased died of sodium nitrite poisoning is based only on the detection of only I grain of sodium nitrite in the viscera. There is nothing to establish that the lethal dose must have been administered to the deceased in which event alone it can be said to prove that the deceased died of the poison alleged. We are fortified in this position by the decision in A.I.R. 1930 All 532 (H) & A.I.R. 1933 All 837 (I). No doubt sodium nitrite IS not an ordinary ingredient of food and it is unreasonable to postulate as was sought to be done by the learned counsel for the appellant that the sodium nitrite found in the deceased viscera might have been derived from sources other than the drink given by the appellant. The detection of sodium nitrite in the scrapings from that wall and floor also strongly points to the conclusion that the drink given by the appellant contained sodium nitrite But there is a complete lacuna in the evidence as to the quantity of the poison administered by the appellant and in the absence of evidence to show that the lethal dose must have been administered it cannot be said to have been proved that the deceaseds death was caused by sodium nitrite poisoning. It is possible-that the effect of a smaller quantity of the sodium nitrite administered in the drink might have been aggravated with the interaction with the other food previously taken by the deceased. It is also possible that the appellant administered less than the fatal dose as it was sufficient for the purpose with the watchmen merely became unconscious. The benefit of the doubt arising from the absence of proof that the lethal dose must have been administered by the appellant has to be given to him But there can be no doubt from the evidence that the appellant did administer about one grain or more the poison to the deceased, although it might have been short of the lethal dose. Learned Judges of the Hon ble High Court, as appears from the aforesaid passage, dismissed the charge under Sec. 302, I.P.C. because "in the absence of evidence to show that the lethal dose must have been administered it cannot be said to have been proved that the deceaseds death was caused by sodium nitrite poisoning." Learned Judges however, altered the conviction to one under Sec. 328, I.P.C. because it was established that the appellant did administer poison which was short of the lethal dose. This decision is fully applicable in the facts and circumstances of the case. 11. We are of the view that the appellant cannot escape conviction under Sec. 328 of the Indian Penal Code in view of the medical evidence. 12. For the reasons stated above, the conviction of the appellant under Sec. 302, I.P.C. is set aside. However, conviction of the appellant under Sec. 32-8, I.P.C. is affirmed and he is Sentenced to undergo rigorous imprisonment for four years and also fine of Rs. 2,000 and in default to undergo further rigorous imprisonment for one year. The amount of fine, if realised, is ordered to be paid to Pramila Orain (P.W. 5). The trial court will send due information in that behalf to her. Of course, the period already spent by the appellant in jail will be set off from his substantive sentence. 13. In the result, this appeal is partly allowed as indicated above. Narinder Singh Rao, J. 14 I agree.