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18. The accused Keshav is charged for commission of offence punishable under Section 328 IPC. Section 328 IPC provides that "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 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 description for a term which may extend to ten years, and shall also be liable to fine".

20. Section 328 IPC may be invoked where hurt is caused by the means of poison etc. with intention to commit an offence. It is true that in the present case in order to invoke Section 328 IPC the prosecution is required to prove that the 'hurt' has been caused to the Page no.10 of total 16 State Vs. Keshav SC No. 377/23; FIR no. 284/21; PS Sagarpur complainant/victim. 'Hurt' is defined in section 319 IPC which reads as under:

3/A and PW-9/A which contain endorsements that the victims were unfit for making a statement. In respect of each of the victims, the endorsement of Dr. Jyoti is to the effect that "the stomach wash could not be preserved so that the final report could not be given."

7. Admittedly Dr. Jyoti left the service of the hospital without leaving her present address and therefore, she could not be examined as a prosecution witness. In the present case in the absence of the evidence of the doctor who examined the victims after they were brought to the hospital and the stomach wash not being able to be sent for examination, it was extremely unsafe for the trial court to convict the Appellants here for the offence under Section 328 IPC. This Court cannot be determinative on whether what was administered was poisonous in order to attract the offence under Section 328 IPC".

28. Accused is also charged for commission of offence punishable under Section 411 IPC. However, in view of conviction of the accused under Section 392 IPC with regard to the same case property, there is no justification for convicting him for commission of offence punishable under Section 411 IPC with regard to recovery of same case property.

29. In view of aforesaid discussions, I am of the considered opinion that there is sufficient cogent material on record to convict the accused Keshav for commission of offence punishable under Section 392 IPC. The prosecution has failed to prove the necessary ingredient of Section 328 IPC. Therefore, accused is acquitted for commission of offence punishable under Section 328 and 411 IPC.