ORDER S.D. Singh, J. - The Applicant Pardeshi has been convicted u/s 328 of the IPC and sentenced to undergo two year's rigorous imprisonment thereunder. His appeal having been dismissed by the Addl. Sessions Judge, Deoria, he has come up in revision to this Court. 2. One Dulare was returning to his village Machhli Gaon within the jurisdiction of Police Station Anand Nagar in district Gorakhpur from Howrah. He was carrying with him about Rs. 550/- cash and some other articles. He reached Bhatni Railway Station at about 8 p.m. on 3-11-1964 and there came in contact with the Applicant Pardeshi. A little later the two boarded the same train for Gorakhpur and satin the same compartment on seats facing each other. Pardeshi is then said to have enquired from Dulare if he would take tea and on his replying in the affirmative and even, giving 12 nP. for the purpose, Pardeshi went to the tea stall and brought two cups (kulhars) on tea and handed over one of them to Dulare. Dulare took about half the cup of tea but, not having liked it and feeling some bitter taste in it, threw away the rest. Pardeshi then offered him some tobacCompany Dulare tasted the tabacco as well, but spat away the same, as he did not like it either. Thereafter, Dulare felt giddy and became unconscious. This fact was noticed by other fellow passengers in the compartment. The matter was reported to the railway authorities at Chaurichaura Railway Station, but by that time it is said, Pardeshi had slipped away. Dulare was taken out of the compartment in an unconscious state at Gorakhpur Railway Station and was sent to the hospital for treatment. He was attended to by Dr. P.N. Mehrotra, who found in him symptoms resembling those of Dhatura poisoning. After Dulare regained consciousness, he reported the case at the Railway Police Station at 7 p.m. on 4-11-1964. Thereafter, an investigation followed, resulting in the arrest of the Applicant for the com-mission of this offence. He was put up for identification and was identified by Dulare and one other person, Mohammad Kalim (PW 2), who was travelling in the same compartment. 3. The Assistant Sessions Judge, as well as the Addl. Thereafter, an investigation followed, resulting in the arrest of the Applicant for the com-mission of this offence. He was put up for identification and was identified by Dulare and one other person, Mohammad Kalim (PW 2), who was travelling in the same compartment. 3. The Assistant Sessions Judge, as well as the Addl. Sessions Judge, who heard the appeal, both considered the evidence and arrived at the conclusion that Pardeshi brought tea from the tea stall, gave it to Dulare and even offered him tobacco thereafter; and on the basis of the evidence given by Dr. P.N. Mehrotra that Dulare's symptoms, when he was brought to the hospital, resembled those of Dhatura poisoning, it has been held that Pardeshi administered Dhatura poison to Dulare. 4. It was contended on behalf of the Applicant that even assuming that Pardeshi brought tea for Dulare and also offered him tobacco, there is nothing in the evidence to show that Dhatura was administered to Dulare by him either in the tea or tabacCompany But if Dulare was found to have been administered Dhatura, then, on the basis of the findings that it was he who brought tea and even offered tobacco to him, it will have to be concluded that Pardeshi did administer poison to Dulare. The only question, therefore, which remains to be determined, is whether Dhatura was, in fact, administered to Dulare; and the evidence may now be looked into from that point of view. 5. It is in the statement of Dulare that it was after taking tea that he started feeling giddy and it may also be that it was because of the effect of tobacco, which was offered to him by Pardeshi, that he ultimately became unconscious; but even then the question whether dhatura was administered to Dulare in the tea or tobacco, or both, cannot be easily answered. Dulare may have become unconscious after he had taken tea and the tobacco, but from this it does not necessarily follow that he became unconscious as a result of his having taken tea and/or the tobacCompany It has to be proved as a fact that dhatura was actually administered to him; and this could be established by evidence, which has not been produced in this case. The prosecution has solely relied upon the testimony of Dr. The prosecution has solely relied upon the testimony of Dr. P.N. Mehrotra in support of the contention that Dulare became unconsious as a result of dhatura poisoning. Dr. P.N. Mehrotra has certainly deposed that Dulare's symptoms, when he was brought to the hospital, resembled those of dhatura poisoning; but there is difference between certain symptoms resembling those of dhatura poisoning being noticed and the detection of dhatura poison itself in the articles which were passed on to Dulare by Pardeshi. It is stated by Dr. P.N. Mehrotra that he retained the stomach-wash of Dulare and S.I. Shyamraj Singh (P.W. 9) has admitted that this stomach-wash was sent to the Chemical Examiner for examination; but, curiously enough, the report of the Chemical Examiner was not placed cm the record of the case. S.I. Shyamraj Singh merely stated that the report was not received from the Chemical Examiner by the time the investigation remained with him. That is, however, to explanation for not producing the report of the Chemical Examiner on behalf of the prosecution. It is only this report which would have proved conclusively that dhatura was found in the stomach-wash; and if dhatura was detected there, it could be concluded almost conclusively that it must have been administered to Dulare either in the tea or the tobacco or in both. There is absolutely no explanation forthcoming as to why the report of the Chemical Examiner was withheld; and it is a little surprising that neither the State Counsel, who conducted the case in the Sessions Court, nor the Assistant Sessions Judge, before whom the-Applicant was tried, cared to see that this evidence was brought on record. The only conclusion, which can be drawn from this omission on the part of the prosecution, is that the report of the Chemical Examiner, if brought on record, would have gone against the prosecution case. It may be that the Chemical Examiner had reported that dhatura was not detected in the stomach-wash and it was on account of it that the report was withheld by the prosecution. In any case, the view, which I am taking, is supported by illustration (g) to Section 114 of the Indian Evidence Act. It may be that the Chemical Examiner had reported that dhatura was not detected in the stomach-wash and it was on account of it that the report was withheld by the prosecution. In any case, the view, which I am taking, is supported by illustration (g) to Section 114 of the Indian Evidence Act. This report of the Chemical Examiner would have been clinching evidence of the fact that dhatura was administered to Dulare and in the absence of the same, it has to be inferred that the finding of the Chemical Examiner would have gone against the prosecution. 6. A reference was made by the Learned Counsel for the Applicant to Modi's Medical Jurisprudence, 1963 Edn. (p. 473), in which he has observed that symptoms of some diseases, such as cholera, apoplexy, acute pancreatitis and rupture of the stomach, may appear all of a sudden soon after taking a meal or drink and that a criminal may take advantage of some epidemic disease occurring at the time and may administer a poison producing the symptoms almost similar to those of the epidemic. This observation by Modi is not by itself sufficient to lead to an inference that the symptoms in Dulare's case, which were noted by" Dr. P.N. Mehrotra to be resembling those of dhatura poisoning, were similar to any of the aforesaid diseases mentioned by Dr. Modi. It is again surprising that Dr. P.M. Mehrotra was not cross-examined from that point of view; but, even so, the omission on the part of the prosecution to place on record the report of the Chemical Examiner does make the case against the Applicant doubtful. It cannot be held with any amount of certainty that dhatura must have been administered to Dulare. In the circumstances, the Applicant would be entitled to get benefit of doubt and acquitted of the charge levelled against him. 7. The application is allowed. The conviction of the Applicant u/s 328 of the IPC and the sentence of two years rigorous imprisonment awarded to him thereunder are set aside. The Applicant is already on bail. He need not surrender to his bail bonds, which would stand cancelled.