JUDGMENT Navkar, J. 1. This is an appeal against an order of conviction by the Additional Sessions Judge, Datia, in Sessions Trial No. 75 of 1976 convicting the appellant under section 304 and 328 of the Indian Penal Code and sentencing him to three years' rigorous imprisonment on each count with the direction to run the sentences concurrently, given through judgment dated 22-1-1977. 2. This is a case causing the death of Guddan son of Mahabir Prasad and causing hurt of several persons by means of poisoning the milk. Accused Santosh Kumar and Shankar Prasad have been charged under section 304 read with section 34, I.P.C. and section 328 read with section 34, I.P.C. but only Santosh Kumar has been convicted as mentioned above, while the other accused has been acquitted of the charges. 3. The prosecution story in short is that Ramkishan alias Lalla of Kheri (PW 7) was, distributing the milk for the past 7 or 8 years, in the police Lines Datia and to the Hotels near the Octori post near the police lines He used to distribute his milk in the residential quarters of the police lines and he had a milk shop at Tegelia where he used to sell his milk to the public. At the relevant time accused Shankar was running a hotel opposite the Octori-post. Laxmibai Maton (PW 8) was running her tea stall just near Ramkishan (PW 7) used to collect the milk from Bajni village in two cans which is about 30 kilograms. and used to distribute it. On the date of incident, Ramkishan (PW 7) collected milk as usual from different persons belonging to village Bajni and came at the octori post near the police lines and the Circuit House with two milk cans on his bicycle. These facts are not disputed. 4 According to the prosecution on 20-11-1974, Ramkishan ( PW 7) came as usual with the two milk cans on his cycle at the Octroi post and gave the milk first to the daughter of Raghubir Sharan (PW 2) and then to Anwar son of Allu. The time of distributing milk was at about 7.00 am. Thereafter both the accused Santoshkumar and Shankar came with their servant to Ramkishan (PW 7) and asked for milk. But the mikman stated his inability to supply it due to shortage. Accused Shankar insisted that he will have to supply the milk. The time of distributing milk was at about 7.00 am. Thereafter both the accused Santoshkumar and Shankar came with their servant to Ramkishan (PW 7) and asked for milk. But the mikman stated his inability to supply it due to shortage. Accused Shankar insisted that he will have to supply the milk. So, Ramkishan (PW 7) supplied him I kilogram of milk and in the meantime accused Santosh dipped his hand in the milk can, The accused thus got a chance to drop a small bottle containing Endrine poison, in the milk can. Therefore, Ramkishan (P W 7) distributed the milk to Luxmibai Maton (PW 8) and other persons in the Police Lines and at his Tigelia shop from the same milk can. Due to this milk poisoning, constable Suryanarayan Dubey, his daughter Manish Kumari, Babli daughter of Mahesh Singh, Constable Mahesh Singh, Munni, daughter of Mahavir Prasad of Holipura, Datia, Manoj son of Mahabir Prasad of Holipura, Datia, Shila Devi wife of Tulshidas Dubey, Holipura, Datia, Tulsidas son of Kalikaprasad of Holipura, Datia Ramsingh Raghubanshi c/o Police Prosecutor Datia and Guddan son of Mahabir Prasad fell seriously ill and Guddan died in the hospital. When so may persons were admitted in the hospital for treatment due to this poisoning, Dr. R. S Singh [PW 13] sent the report to S. O. Kotwali, Datia, Ex. P/6 report is written and signed by Dr. R S. Singh [P N 13]. Ramkumar Chansoriya, S. O. Kotwali, Datia [PW 10] received this report and he registered a case under section 326 and 328, I.P.C The first information report is Ex. P. 7. He entrusted the investigation of the case to Shri M. C. Mishra, Sub-Inspector [PW. 14]. After investigation R. K. Chansoriya, S O. (PW 10) challaned the accused persons under section 326, 328 and 302 read with section 34, I.P.C. the learned Sessions Judge, Gwalior transferred the case to the learned Additional Sessions Judge, Datia who decided the matter. 5. The charges were read over to the accused persons but they claimed to be tried after denying the said charges. Their plea was that they have been falsely implicated. Accused Shankar Prasad pleaded that there was some enmity between him and Luxmibai (PW 8) and because she bore a grudge towards him, this, false implication has been made against him and, therefore, the whole proceedings are started because of enmity. Their plea was that they have been falsely implicated. Accused Shankar Prasad pleaded that there was some enmity between him and Luxmibai (PW 8) and because she bore a grudge towards him, this, false implication has been made against him and, therefore, the whole proceedings are started because of enmity. In the Sessions Court, evidence was recorded by the learned Additional Sessions Judge, while on behalf of defence about five witnesses were examined. The learned Additional Sessions Judge framed the following points for consideration:- (I) Whether Endrine poison was mixed into the milk of vendor Ramkishan (PW 7) by the accused persons? (2) Whether such poisoned milk sold by Ramkishan caused injuries or hurts to persons who used it? (3) Whether Guddan s/o Mahavir died a homicidal death due to the use of this poisoned milk? (4) Whether the accused did mix the above poison in the milk with intention to cause hurt or knowing it to be likely that he would thereby cause hurt? 6. The first point he has taken for consideration is whether Endrine poison was mixed into the milk of vendor Ramkishan by the accused persons. He has referred to Ramkishan (PW 7) who has stated that when he came from Bajni as usual with the milk in his two cans he delivered some milk to Natthu Hotelwala near the Railway station. Thereafter, he came to the Octroi post near the police Lines and first of all supplied the milk to Raghubir [PW 2] and the son of Allu. Thereafter accused Santosh and Shankar with their servant came to him and asked for the milk but he was told that due to shortage he was not in a position to supply the milk. He, however, gave only one kilogram or milk to him. Meanwhile, accused Santosh dipped his hand in his milk-can containing the milk. But it was objected to ai1d then he took out his hand and said that the milk is not of a good quality and it contains more of water. After this the accused and his servant went away and thereafter the milk was supplied to different persons. The persons affected by milk are Manish Kumari, Ramsingh, Suryanarayan Dubey, Shila Devi. Tulsidas, Mahvir. Munni daughter of Mahavir Prasad, Manoj son of Mabavir Prasad, Babuli and others. What were the symptoms when they were admitted in the hospital, I will consider afterwards. The persons affected by milk are Manish Kumari, Ramsingh, Suryanarayan Dubey, Shila Devi. Tulsidas, Mahvir. Munni daughter of Mahavir Prasad, Manoj son of Mabavir Prasad, Babuli and others. What were the symptoms when they were admitted in the hospital, I will consider afterwards. But as far as dipping of the hand and dropping the bottle in the can is concerned I am of the opinion that there is sufficient evidence produced by the prosecution to come to a conclusion that hand was dipped in the can and also the bottle was dropped in the can which has been corroborated by evidence of Ramkishan [PW 7] who has stated that the milk was taken in one vessel from the can and when it was poured in the vessel, a bottle [about 2" long] and of white colour was found in the milk. Therefore, from this evidence it is clear that at the time of dipping of the hand, the alleged bottle was dropped in the milk. As far as dipping the hand it is also supported by the evidence of Ramkishan [PW 7] who has stated that while one kilogram of milk was being given Santosh dipped his hand in the milk and when he caught hold of his hand, he took it out. But he said that because he has sold adulterated milk: he will have to suffer for that. Therefore in my opinion, there is sufficient evidence to uphold that a bottle was dropped in the can by accused Santosh after dipping his hand in the milk. 7. The second point the learned judge has taken into consideration is whether such poisoned milk sold by Ramkishan (PW 7) caused injuries or hurt to persons who used it. I have already mentioned the persons who were affected by purchasing the contaminated milk. Now what were the symptoms of the-illness which they got after consuming the milk, I will consider. The symptoms have been described by Dr. R. S. Singh (PW 13). The Symptoms of all the persons who suffered after taking milk are practically similar. They are vomiting diarrhea, dryness of mouth, convulsion, witching of mussels and others. The bottle and the milk were sent for chemical analysis after it was seized and the opinion of the expert is that it contained Endrine drug belonging to DDT Group. The Symptoms of all the persons who suffered after taking milk are practically similar. They are vomiting diarrhea, dryness of mouth, convulsion, witching of mussels and others. The bottle and the milk were sent for chemical analysis after it was seized and the opinion of the expert is that it contained Endrine drug belonging to DDT Group. Therefore, relying on the evidence it can safely be inferred that Endrine was mixed with the milk which was supplied to different persons, The postmortem examination conducted on Guddan also shows the same thing. But here, I may mention that when the Doctor was cross-examined regarding the cause of death of Guddan, he has stated as under:- "Endrine is a drastic purgative and acts as a powerful irritant to the alimentary canal when taken in large dosage." He had also to say that he does not remember whether he has seen Gudda alive in the hospital or not, He has further stated that fatal dose of Endrine 15 to 30 grains and not 10 to 20 gains, He has stated in para 8 of his cross-examination: In this particular case of Guddan, death occurred due to respiratory failure and this respiratory failure might have occurred due to many causes such as Bronchopnumina, Gestro Entrytis and Dehydration etc, But he has not said that the death have occurred because of Endrine poison Added to this, when he was asked to bring the bed head ticket of Guddan from the hospital he has said that: I have searched out the bed head ticket but I did not find them' Now there is no possibility of getting the said bed head ticket. It is also not proved by the prosecution by qualitative analysis as to how much Endrine was found in the milk. 8. The next important point which was urged in this case before me by the learned counsel for the appellant is that after distributing the milk to the effected persons, the accused has also distributed milk to Anwar son of Allu, but Anwar has not suffered at all. This goes to show that the milk was not contaminated. I will consider this point also. 9. The third point the learned trial judge has considered is whether Guddan son of Mahavir died a homicidal death due to the use of this poisoned milk. This goes to show that the milk was not contaminated. I will consider this point also. 9. The third point the learned trial judge has considered is whether Guddan son of Mahavir died a homicidal death due to the use of this poisoned milk. The learned counsel did not dispute seriously that Guddan died a homicidal death, but he certainly contested that it was due to the use of poisoned milk that Guddan died. He submitted further that the three ingredients which are to be proved by the prosecution in a case of poisoning have not been proved. Therefore in such a case where the conviction is to be based on circumstantial evidence, all possible doubt should be re moved first by the prosecution and the chain of events must clearly show that the accused and the accused alone is responsible for the act. I will discus; the point in detail in my judgment. 10. The last point the learned trial Judge has considered is whether the accused did mix the above poison in the milk with intent to cause hurt or knowing it to be likely that he would thereby cause hurt. By the evidence of prosecution, I am not satisfied that there was any motive in the mind of the accused to mix poison in the milk. The enmity of Laxmibai Maton (PW 8) which the Court considers a sufficient cause for enmity and for mixing of the alleged poison by the accused, I am not in a position to accept. I do not hold that there was any enmity proved by the pro section so as to hold that the accused had an intention or had a knowledge that by mixing Endrine he will cause hurt or death of Guddan. 11. Now, what is to be proved in a case of poisoning came before the Supreme Court in Anant Lagu v. State of Bombay AIR 1960 SC 500 It is laid dawn in that case as under : "A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence and his preparation for the commission of the offence are also secret. The greater his knowledge of poisons, the greater the secrecy, and consequently the greater the difficulty of proving the case against him. What assistance a man of science can give he gives. The poisoner seldom takes another into his confidence and his preparation for the commission of the offence are also secret. The greater his knowledge of poisons, the greater the secrecy, and consequently the greater the difficulty of proving the case against him. What assistance a man of science can give he gives. but it is too much to say that the guilt of the accused must in all cases be demonstrated by the isolation of the poison, though in a case where there is nothing else such a course would be incumbent upon the prosecution. There are various factors which militate against a successful isolation of the poison and its recognition. The discovery of the poison can only take place either through a post mortem examination of the internal organ or by chemical analysis. Often enough the diagnosis of a poison is aided by the information which may be furnished by relatives and friends as to the symptoms found on the victim, if the course of poison has, taken long and others have had an opportunity of watching its effects. Where however, the poison is administered in secrecy and the Victim is rendered unconscious effectively there is nothing to show how the deterioration in the condition of the victim took place and if not poison but disease is suspected, the diagnosis of poisoning may be rendered difficult. Circumstantial evidence in this context means a combination of facts creating a network through which there is no escape for the accused because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the finding of the medical man who conducted the post mortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with un-erring certainty the autopsy and the chemical analysis taken by themselves may be most misleading. No. doubt, due weight must he given to the negative findings at such examination But bearing in mind the difficult task which the man of medicine performs and the limitation under which he works his failure should not be taken as the end of the case for on good and probative circumstances an irresistible inference of guilt can be drawn." The other case I would like to refer is Mahabir v. State of Bihar AIR 1972 SC 1331 . That was also a case of murder by poisoning and it was laid down in that case as under:- "Where in a prosecution for murder by administration of poison if the circumstial evidence is so decisive that the Court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it. AIR 1960 SC 500 followed, AIR 1964 SC 30 distinguished. The 'pathologist' part in the diagnosis of poisoning is secondary and that several poisons particularly of the synthetic help notices and vegetable alkaloids grounds do not leave any characteristic signs which can be noticed on post mortem examination." Added to this the prosecution has to prove the following points as held in Mr. Gajrani v. Emperor AIR 1963 All 324 The relevant observations from this judgment are as under :- "In a case of murder by poison there are three main points to be proved firstly. did the deceased die of the poison in question, secondly had the accused got the poison in question in his or her possession and thirdly, had the accused an opportunity to administer the poison in question to the deceased. If these three points are proved a presumption may under certain circumstances be drawn by the Court that the accused did administer poison to the deceased and did cause the death of the deceased. The evidence of motive which is frequently given in these cases is of subsidiary importance and the mere fact that the accused had motive to cause the death of the deceased is not a fact which will dispense with the proof of the second and third points that the accused had the poison in his or her possession, and that the accused had an opportunity to administer the poison." 12. In the present case there are persons who showed signs that some unwholesome things were mixed in the milk which they swallowed. There is other evidence also to show that there are other persons who, even after consuming the alleged milk, did not suffer. Their condition did not indicate that anything unwholesome was mixed in the milk and that they swallowed it. The medical evidence and the opinion of the Doctor is not conclusive in the matter. There is other evidence also to show that there are other persons who, even after consuming the alleged milk, did not suffer. Their condition did not indicate that anything unwholesome was mixed in the milk and that they swallowed it. The medical evidence and the opinion of the Doctor is not conclusive in the matter. It is inconclusive also to show that if Endrine is swallowed, death will be the definite result. The medical evidence does not show that Guddan died because of Endrine poison alone. Added to this, the bed head ticket is not available, which could have indicated the condition of the patient when he was admitted to the hospital. From the post-mortem examination also, the examination of the organs does not conclusively prove that death of Guddan occurred due to swallowing of poison. This the Doctor has admitted in his cross-examination. Therefore, taking into consideration all these aspects of the case, it will be difficult for me to hold that the accused is guilty under section 304, I.P.C. That being the case, I will have to set aside the conviction of the appellant under section 304 I. P. C. and also I will have to set aside the sentence imposed against him. 13. I will have to consider now whether the prosecution has proved the guilt under section 328, I. P. C. also, section 328, I. P. C. requires the proof of the following things: (a) That the accused had any poison or any stupefying intoxicating or unwholesome drug, or other thing and that- (b) There was an intention to cause hurt to such person with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt. In my opinion the prosecution bas not proved that there was an intention to cause hurt on the part of the accused. Therefore, an offence under section 328, I. P. C. is also not made out, 14. The result, therefore, will be that the appeal is allowed and the conviction and sentences are set aside. The appellant is already on bail. His bail bond shall stand discharged.