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1. This judgment will adjudicate the charges leveled against the accused Ekant Bansal in the FIR number 385/2009 registered at police station Narela under sections 328/379/411/34 and 174A of IPC as judgment dated 30.05.2018 qua remaining persons has already been passed, whereby, accused Shamshad was acquitted of charges U/S 379 IPC, accused Irshad Ali was convicted U/S 379 IPC and he was acquitted for charges U/S 328 IPC, accused Sanjay is acquitted of charge U/S 411 IPC. Accused Ashok Kumar and Rafiq were already declared PO vide orders dated 10.11.2017 & 16.05.2012 respectively and whenever, they both will be apprehended, they would be put to further trial.

SECTION 328 IPC

33.For adjudicating the guilt of accused Ekant Bansal under Section 328 of IPC, the said provision is hereby reproduced as under:-

Section 328 in The Indian Penal Code, 1860 Causing hurt by means of poison, etc., with intent to commit an offence.
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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 FIR No.385/2009 PS Narela Industrial Area term which may extend to ten years, and shall also be liable to fine.

35.In the present case, both the victims were taken to Hospital, whereby, they were admitted in SRHC Hospital. Patient Devinder was admitted vide MCL No.3129/09 whereas, second Satender got admitted with MLC No.3128/09. The said MLCs of both the victim were proved by PW-6 Dr. Rupender Kumar, who identified the signatures of Dr. Ankur Jain & Dr. Anju. The MLC of Satender Singh is exhibited as Ex.PW6/A. Further, as per said MLC, the symptoms were mentioned wherein it is recorded that patient Satender is suffering from unknown case of poison whereas, his condition is stated to be drossy and he is vomiting in between. Further, both the victims were given treatment and viscera samples were sent for medical examination. The State has placed on record the report of the Viscera Sample, which is exhibited as Ex.PX. However, it is categorically mentioned in its report dated 23.05.2012 on the FSL examination of both the exhibites of Viscera sample of victim that no specific substance could be identified due to which, victim was unwell. Further, it is categorically mentioned in the said report that it is not the case of metallic poison, alkaloids, barbitals and tranquilizer, therefore, to conclude, the State has failed to established the substance which were allegedly given to both the FIR No.385/2009 PS Narela Industrial Area victims. The burden of establishing the case is upon the prosecution. However, the prosecution has failed to establish the said substance, which has caused drowsiness, diarrhea (vomiting) and unconsciousness to both the victims. Since, one of the ingredients of Section 328 IPC could not be established by the prosecution, therefore, this court is of the considered opinion that State has failed to prove the charges under Section 328 IPC against accused Ekant Bansal, hence, he is acquitted from the charges punishable under Section 328 of IPC.

40.Conclusion:-

i. On the basis of the discussions above, this court is of the considered opinion that offence under Section 378 of IPC is made out against accused Ekant Bansal, hence, accused Ekant Bansal is held guilty for the offence punishable under Section 378 read with Section 379 of IPC; ii. Accused Ekant Bansal is also held guilty for the offence punishable under Section 174(A) of IPC.
iii. Since, the State has failed to prove the charges under Section 328 IPC against accused Ekant Bansal, hence, accused Ekant Bansal @ Akant Bansal is acquitted from the charges punishable under Section 328 of IPC.