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belongs.

3. The offence against which the accused is 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.

and pesticides could not be found in Ex.1 & 2. Ex.1 is the vomiting of PW-6 alongwith MLC with urine sample of PW-6. Ex.2 is brown colour turbid liquid. Hence as per the said FSL report no poison was established in the collected samples against the accused persons. Hence prosecution has failed to establish the first ingredient of Section 328 IPC.

3.2 The second ingredient must be established to show that the intention of such person was to cause hurt to PW-1 or PW-6 to facilitate the commission of the offence or there was such knowledge on the part of the accused person. The requirement of Section 328 IPC is that both the ingredients must be established conjunctively. It is already held above that the first ingredient is not established by the prosecution and in such circumstance the prosecution has failed to establish the commission of offence of Section 328 IPC. Further the prosecution has failed to establish facilitation of commission of offence under Section 392/394 IPC against the accused persons as discussed below hereunder and for the sake of brevity the same is not repeated herein. In view of the above it is held that the prosecution has failed to prove the ingredients laid under Section 328 IPC and the accused persons stand acquitted of the above offence.

33.1 The Section 34 involves constructive liability and also recognizes the principle of vicarious liability in criminal jurisprudence and therefore it is not applicable in reference to U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.

Section 392 and Section 394 IPC in view of the citation titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021. Hence Section 34 has to be seen in reference to Section 328 IPC and Section 411 IPC. The ingredient of mens rea is essential to establish the offence of Section 411 IPC. Section 34 can be applicable under Section 411 IPC as there could be common intention and common mens rea between the 2 accused to obtain and retain the stolen property. Similarly Section 34 IPC could be applicable under Section 328 IPC as common intention to cause the offence or common knowledge to cause the hurt could be existing between 2 of the accused.