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P.S. Lahori Gate

13. The offence against which the accused are also charged with is Section 328 IPC. The necessary ingredients of which are laid down in the citation titled as Sunil Mishi @ Silly vs. State of NCT of Delhi in CRL. A. 610/2013 & Harmeshlal s/o Ajit Singh vs. The State of Maharashtra 2016 ALL MR (Cri) 1980.

30. Section 328 I.P.C. reads thus :-

"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 drug, or other thing with intent to cause hurt to such person, or with intent 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 description for a term which may extend to ten years, and shall also be liable to fine."

10. Administration of substance or drug had its own consequence in this case which was in the nature of rendering the appellant incapacitated thereby fulfilling the second ingredient of the offence punishable under Section 328 I.P.C. The second ingredient is about administering a poison or stupefying substance etc. with an intention to cause hurt or injury or commit an offence or facilitate commission of an offence or with the knowledge that the act is likely to result in causing of hurt. Hurt as defined in Section 319 IPC is bodily pain, disease or infirmity. Unconsciousness is a mental and physical condition of a person which incapacitates him completely in the sense that he is incapable of doing anything. Dictionary meaning of the term 'infirmity' is physical or mental weakness (See: Concise Oxford Dictionary, Indian Edn. p.729). If physical or mental weakness or both make a man infirm, his being in unconscious state will make him all the more infirm. Therefore, inducing unconsciousness of a person by means of a poison, stupefying substance etc. as contemplated under Section 328 IPC amounts to causing of hurt.

19. Both the ingredient of Section 328 IPC are proved to be conjunctively and they are dependent on each other. In absence of proof of first ingredient it cannot be said that accused has intention to cause hurt or to commit facilitation of commission of an offence or that there was knowledge on the part of accused person that the result of their act was likely to cause hurt to PW-1. Hence, it is held that prosecution has P.S. Lahori Gate failed to prove ingredient of Section 328/34 IPC against all the accused and they are acquitted under said offence.

21. The basis of charging accused person under Section 307/34 IPC was for the reason of administering some stupefying substance. The prosecution has not taken the charge in the alternative under Section 328 IPC and Section 307 IPC. The nature of offence of Section 307 IPC is offence affecting human life. The nature of offence under Section 328 IPC is of causing hurt. Both the offence are affecting human body. There is no medical evidence on record that why such administration of potato vegetable to PW-1 her life was negatively affected. There is no medical opinion that with such eating of potato vegetable such bodily injury was going to be cost to PW-1 which is so imminently dangerous which can cause in all probability death or such bodily injury likely to cause death. When the offence when caused under Section 328 IPC and specifically dealt with thereunder then it is not open to the prosecution to charge the accused person under Section 307 IPC. Section 307 IPC is more serious offence than Section 328 IPC and when the Section 328 IPC covers all the facts of the prosecution in the present case then that particular Section has to be proceeded with and not Section 307 IPC until and unless it is shown by such medical evidence that death was likely to be caused by administration of such stupefying such substance. Or that such stupefying substance was administered only for the purpose to kill the PW-1. There is no evidence in above respect with the prosecution during P.S. Lahori Gate the trial or before framing of charge and therefore, no occasion arose to charge the accused person under Section 307 IPC.