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2. In this regard on the same day ASI Inder Singh received DD No.18 A vide mark X' for investigation. On receipt of the said DD I.O. along with Ct. Ashok (DHG) went to GTB Hospital and collected MLC of injured Raj Karan on which doctor had mentioned the injured 'unfit' for statement with the alleged history of unknown poisoning. Thereafter, I.O. collected exhibits as well as MLC of injured from the hospital and deposited the same in the malkhana.

3. On regaining consciousness of injured I.O. recorded statement of injured Raj Karan vide Ex.PW1/A. Thereafter, the exhibits and sample seal were sent to CFSL, Hyderabad after taking permission from DCP. After obtaining the result from CFSL Office to the effect that exhibits was containing Diazepam, i.e. a benzodiazepine group of drug, IO made endorsement on the statement of complainant for registration of FIR u/s 328/34 IPC vide Ex.PW9/A. As per the CFSL U/s 328/34 IPC report diazepam was found in the stomach wash. The present case FIR was got registered in the Police Station vide Ex.PW6/A. IO also recorded statement of witnesses.

4. Accused persons namely Ajay Kumar and Ashok were arrested in the present case vide their arrest memos Ex.PW9/B, Ex.PW9/C, Personal Search Memos Ex.PW9/D and Ex.PW9/E respectively. Accordingly, accused persons were booked for the offence u/s 328 / 34 IPC.

5. This case was committed to the Sessions Court on 04.03.2008. After hearing arguments on charge, the ld. Predecessor of this Court framed a charge for the offences u/s 328/ 34 IPC against accused persons to which they did not plead guilty and claimed trial vide court order dated 30.04.2008.

The essential ingredients of the offence u/s 328 IPC are as follows:-
The act must be done : 
            a)       with the intention of causing hurt;
            b)       with knowledge that it is likely to cause hurt; and
            c)       to facilitate the commission of an offence.





U/s 328/34 IPC

            Sec.34 IPC
" When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

24.It was opined in the MLC vide Ex.PW3/A that he was administered some unknown poisonous substance and this substance in the form of 'gastric fluid sample' which was sent to CFSL Hyderabad for examination. It was revealed in the CFSL result vide Ex.PW8/A that unknown poisonous found to be poisonous substance namely diazepam. To this effect PW8 Dr. R K Sareen, Dy. Director Toxicology Division, CFSL was examined and he got exhibited his report vide Ex.PW8/A. This sequence of event forms a complete chain with regard to the identification of poisonous substance i.e. diazepam. The crucial question in this case comes to stand that whether any pre or post act with regard to the giving water bottle to the victim, has been brought on record by the prosecution to establish the guilt of the accused persons for the offence punishable u/s 328 / 34 IPC. In this regard the pre act of the accused persons neither has been brought on record nor any material fact with regard to this U/s 328/34 IPC incident has been proved on record. So long as the post act of the accused persons is concerned, in this regard neither the recovery of the bottle nor the remaining water in the bottle has been brought on record by the prosecution side nor any recovery has been effected from the accused persons in this regard. If we determine the fate of this case in light of these observations we certainly reach to the conclusion that administration of water to the victim by the accused persons goes to indicate that motive is absent, which is very crucial to establish the premises of conviction against the accused persons for the offence u/s 328 / 34 IPC. Further, the prosecution has also failed to bring on record the preparatory measures with regard to the collection of bottle and the material substance contained in it which also goes to the root of this case. Besides, the person who could have been joined as a material witness in this case is Babloo who took the victim along with PW5 Sonu at the residence of victim. But unfortunately neither his statement was recorded by the investigating officer nor the prosecution felt necessity to examine him as witness in this case. Apart from this it is also on record that there was enmity between the accused persons and the victim. All these facts go to indicate something otherwise contrary to the establishment of the case against accused persons qua the victim. U/s 328/34 IPC