R. K. SHUKLA, J. ( 1 ) APPELLANT Mansoor Ahmad has preferred this appeal against the judgment and order dated 23-9-1978 passed by the Turd Additional District and Sessions Judge, Saharanpur whereby he has convicted the appellant under Section 328 Indian Penal Code and sentenced him to imprisonment for three years R. I. ( 2 ) BRIEF facts of the prosecution case are that appellant Manzoor Ahmad has been sending the complainant Mushtaq P. W. 1, aged about 15 years with some packed wooden boxes to New Delhi. Mushtaq remained away from his house for about ten days. The complainant Mehandi Hasan came to know about this fact on the return of Mushtaq on 26-3-74. He reprimanded Mushtaq and directed him not to go to Delhi at the instance of Manzoor Ahmad, appellant. On 23-7-1974 Manzoor Ahmad, appellant again requested Mushtaq to go to Delhi as he used to go in past but Mushtaq declined. It is said that the appellant took Mushtaq to the shop of Shabbir and again requested him to take one last trip to Delhi and promised that he will not send him Delhi in future. On Mushtaqs reply that he has headache the appellant escorted him to Shabbirs tea shop situate at Rome distance. Going inside the tea shop the appellant placed an order with the shopkeeper for two glasses of milk, 250 grams each. When milk was supplied to them, the appellant took out a Pudia from his pocket and dropped the contents thereof in the glass of milk saying that it was an effective medicine for headache and told Mushtaq to drink that milk. Mushtaq took that milk mixed with Pudia contents supplied by the appellant. The appellant consumed the contents of the other glass. ( 3 ) THEREUPON the appellant paid for the milk: and went away. Mushtaq left for his house. While Mushtaq was on his way to his house, he felt unconsciousness and fell down exhausted. Mushtaq was taken to his house where be vomitted in a tray (Tasla) and when his condition became serious his brother Mehendi Hasan, P. W. 4 went to the Police Station Mandi in the district and city of Saharanpur and lodged the first information report at 7. 45 p. m. on 27 -3-1974. The victim Mushtaq was sent to S. B. D. Hospital where he was looked after by Dr. 45 p. m. on 27 -3-1974. The victim Mushtaq was sent to S. B. D. Hospital where he was looked after by Dr. Sushil Kumar, P. W. 5. ( 4 ) A case was registered under Section 328 Indian Penal Code and investigation was entrusted to Sub-Inspector Jai Prakash Garg, P. W. 6 on 28-3-1974. The Investigating Officer went to the house of Mehandi Hasan, interrogated him there and took into his possesion the vomitted matter lying in the courtyard of the house of complainant in a container. The stomatch-wash taken and preserved by the Medical Officer and the vomitted matter collected by the Investigating Officer from Mushtaqs house were sent in a sealed container for chemical examination. The report of the Chemical Examiner in original is Ex. Ka. 7 on the record. From the report, it is clear that Copper Sulphate (a poison) known as Neela Tutiya was found in small quantity in both the containers. ( 5 ) AFTER completing the investigation, the chargesheet was submitted against the appellant on 15-8-1974. The case was committed to the Court of Session and the Sessions Judge framed charge against the appellant under Section 328 Indian Penal Code. ( 6 ) THE prosecution has examined six witnesses in support of its case out of which Mushtaq, P. W. 1, Irshad, P. W. 2 and Rizwan, P. W. 3 are the eye-witnesses of the incident of administering poisonous matter mixed with milk by the appellant to Mushtaq at Shabbirs tea shop in Mohalla Topia Sarai in city and District Saharanpur. Mehandi Hasan, P. W. 4, is the elder brother of the complainant, who lodged the first information report. Rest of the witnesses are aforesaid Dr. Sushil Kumar and the Investigating Officer. The accused-appellant pleaded not guilty by denying that Mushtaq was employed with him or that he administered any poisonous matter to him. Under Section 313 Criminal Procedure Code, he has further stated that Mushtaq used to play cards in front of his house below the electric pole, when he restrained him, he challenged him to see. ( 7 ) THE aforesaid prosecution story has been supported by the evidence of the abovementioned three eye-witnesses. Mushtaq, P. W. I, is the victim himself. He has unfolded the whole prosecution story as aforesaid. ( 7 ) THE aforesaid prosecution story has been supported by the evidence of the abovementioned three eye-witnesses. Mushtaq, P. W. I, is the victim himself. He has unfolded the whole prosecution story as aforesaid. Irshad, P. W. 2, is the customer who was taking tea at the shop of Shabbir at the time of occurrence. He has been declared hostile in the Sessions Court. Even if disputed portion of his statement is excluded from consideration, the undisputed portion supports the prosecution case partially. Rizwan, P. W. 3 is the son of Shabbir, tea shopkeeper. The presence of this witness at his shop is natural. He has corroborated the statement of Mushtaq, p. w. 1. ( 8 ) THE above prosecution story finds support from the evidence of Dr. Sushil Kumar and Chemical Examiners report, Ex. Ka-7. It is quite clear from the chemical examination that Copper Sulphate, a poison known as Neela Tutiya was found in small quantity in both the matters. It is clear from the statement of the Investigating Officer, J. P. Garg and affidavits of Kunwar Radha Raman, a Clerk in the office of the C. M. O, Mohd. Yamin and constable Jagdish Prasad that sealed containers having vomitted matters and stomach wash were properly kept and ultimately sent to the Chemical Examiner with seals intact. There is consistent and reliable evidence on the record to show that Mushtaq vomitted and felt uneasy a few minutes after he had been administered Copper Sulphate with milk by the appellant at Shabbirs tea shop on 27. 3. 74 at 11. 30 a. m. ( 9 ) THE learned counsel for the appellant has vehemently contended that assuming all the facts alleged by the prosecution to be correct, no offence u/s. 328 I. P. C. is made out against the appellant because the quantity of the administered Copper Sulphate is not known and small quantity of Copper Sulphate for emitting is permissible. In support of his contention, he relied on Modias Medical Jurisprudence and Toxicology, Twentieth edition, page 558, which reads as under: Copper Sulphate is given as an emetic in 0. 3 to 0. 6 G doses. In large doses it acts as an irritant poison. In support of his contention, he relied on Modias Medical Jurisprudence and Toxicology, Twentieth edition, page 558, which reads as under: Copper Sulphate is given as an emetic in 0. 3 to 0. 6 G doses. In large doses it acts as an irritant poison. It is also probable that small doses of the coarsely powered salt, repeated frequently, would produce gastric and intestinal irritation and cause death, especially if prescribed when the mucous membrane of the intestinal canal is in a congested state. Treatment-There is no need to use emetics, as vomitting occurs in five or ten minutes after taking the poison. Wash out the stomach with a one per cent solution of potassium ferrocyanide, which forms insoluble cupric ferrocyanide. Administer white of egg or milk as an antidote. The albumen contained in them will form an insoluble salt, albuminate of copper. Give demulcent drinks ( 10 ) AFTER hearing the learned counsel for the parties at great length, the Chief Medical Officer, Allahabad was summoned on their request to clerify some doubt regarding poisoning. Dr. K. M. Chandra, Chief Medical Officer, Allahabad after looking into the entire relevant papers including Chemical Report (Ex. Ka-2) has stated on oath that it cannot be said that there was no sign of poisoning because the Chemical Examiner has found Copper Sulphate in the vomitted and stomach-wash matter. He has admitted in reply to question No. 1 of the learned counsel for the appellant that Copper Sulphate given in small quantity will have an emetic effect but it is not normally used as an emetic. In reply to question No. 4 in cross-examination, he has stated that: I agree that Copper is a normal constituent of the body and is present in certain amounts in the organs but it is not normal to get it in the vomited matter. He bas emphatically denied the question No. 11 whether an emetic could be used for relief of headache? He has stated in reply to Courts question whether Copper Sulphate is ever used for giving relief to headache, that not in Allopathy. He could not say about other Pathy. About the quantity of Copper Sulphate, he has stated it is difficult to answer In reply to question No. 2 in cross-examination whether the quantity mentioned by Dr. Modi 0. 3 to 0. He could not say about other Pathy. About the quantity of Copper Sulphate, he has stated it is difficult to answer In reply to question No. 2 in cross-examination whether the quantity mentioned by Dr. Modi 0. 3 to 0. 6 grams for giving an emetic will also have poisonous effect, the doctor has stated no, because it will produce vomitting and the whole amount will come out. But it varies from man to man and the state of body. From the report, Ex. Ka-2, it appears that no sign of poisoning was found. This indicates that probably whatever was taken, the major portion of that has been vomitted out. But in reply to question No. 3 mentioned above, he has not agreed with the opinion of the doctor produced in the trial court that there was no sign of poison and clearly stated that poison was administered to the child, because the Chemical Examiner has found Copper Sulphate in the vomitted and stomach wash matter of the child. ( 11 ) AFTER going through the entire evidence on record, I agree with the learned counsel for the appellant to this extent that perhaps the intention of the appellant was not to give poison to Mushtaq to kill him and his act will not come in the first and second parts of Section 328 Indian Penal Code. But the question remains whether it can be said that the accused knew it to be likely that he will thereby cause hurt to the complainant. Copper Sulphate is a dangerous poison and everybody knows that it is dangerous to life. A person of the age of the appellant must be presumed to know that such drug is poisonous. There is no doubt that he administered Copper Sulphate to the complainant. Under these circumstances, he must be presumed at least to know that it is likely that he will thereby cause hurt to the complainant. The word Thurt is defined in Section 319 Indian Penal Code as meaning either bodily pain or disease or infirmity to any person. The bodily pain or infirmity may either be permanent or temporary. If a person by the administration of Copper Sulphate is thrown into unconsciousness vomitting with the possible risk of his life by becoming unconscious for the time being, it is clear that both bodily pain and infirmity are caused. The bodily pain or infirmity may either be permanent or temporary. If a person by the administration of Copper Sulphate is thrown into unconsciousness vomitting with the possible risk of his life by becoming unconscious for the time being, it is clear that both bodily pain and infirmity are caused. Infirmity has been interpreted by Sir Suleman, J. in the case of Anis Beg v. Emperor1 as under: Infirmity has been defined by one author as inability of an organ to perform its normal function which may either be temporary or permanent. In my opinion this definition seems to be correct. I respectfully agree with the above interpretation of infirmity and hold that both bodily pain and infirmity were caused to the complainant by the appellant. It was the grace of God that the condition of the complainant did not deteriorate further and he was saved. In these circumstances, there can be no doubt that. the appellant must be deemed to had knowledge that administering of Copper Sulpbates (Neela tutia) was likely to cause hurt to the complainant within the meaning of Section 319 Indian Penal Code. Therefore, the appellant is liable for conviction under the third part of Section 328 Indian Penal Code because appellant knew it to be likely that he will thereby cause to the complainant who was a child aged about 15 years. ( 12 ) THE learned counsel for the appellant relying on the case of Mrs. Veeda Menezes v. Viiciif Vhn IIii Thrhim Vhn nh nrthr iirnri that it ic rir frrm th Mphiri pwirlpnrp that the condition of the complainant was normal and there was no risk his life, therefore, this offence will be covered under Section 95 Indian Penal Code. Hence, the appellant has committed no offence. There is no doubt that if the harm is so light that no person of ordinary sense and temper would complain of it, is only excluded by section 95 Indian Penal Code:. The cases of administering poisonous drug like Copper Sulphate to a child of about 15 years which caused vomitting green colour, loose motions and made his tongue moisted, will certainly come under the definition of hurt under Section 319 Indian Penal Code. It was the grace of God that the condition of the complainant did not deteriorate further and he was saved. It was the grace of God that the condition of the complainant did not deteriorate further and he was saved. But it cannot be said that this is such a harm which can be ignored following the above mentioned decision of the Supreme Court. There is no mention of any illustration of poisoning in that case. On the facts and circumstances of this case, I am fully satisfied that this is not such a case which can be ignored under Section 95 Indian Penal Code. ( 13 ) AT the end, Sri R. K. Jam, the learned counsel for the appellant urged that appellant is a young man and no useful purpose will be served by sending him to Jail. He made statement on behalf of the appellant that the appellant will not treat it as enhancement of sentence if his sentence of three years R. I. is modified to the period already undergone and some fine is imposed in lieu of the remaining sentence of imprisonment. In this connection, he drew may attention towards two applications dated 14-7-1978 (paper No. 20 kha and 21 kha) moved in the trial court for permission to compromise the matter which were rejected by the Sessions Judge because the offence under Section 328 Indian Penal Code is not compoundable. The occurrence took place in 1974. At that time, the age of the appellant was about 28 years. Since then, Ten years have passed. At one stage, parties had agreed to compromise. Under these circumstances, I am inclined to agree with the argument of the learned counsel for the appellant that no useful purpose will be served by sending the appellant back to jail. From the record, it appears that he had remained in jail for only one day. In this view of the matter, I feel that the ends of justice will be fully met if the appellant is convicted under Section 328 Indian Penal Code and sentenced to the period already undergone and a fine of Rupees One Thousand. Out of the fine realised, Rs. 500/ (Rupees Five Hundred) only should be paid to Mushtaq Ahmad as compensation for his hurt. Out of the fine realised, Rs. 500/ (Rupees Five Hundred) only should be paid to Mushtaq Ahmad as compensation for his hurt. ( 14 ) IN the result, the conviction of the appellant under Section 328 Indian Penal Code is confirmed But the sentence is modified to this extent that instead of three years R. I. , the appellant is sentenced to the period already undergone and a fine of Rs. 1000/- (One Thousand) only. In default of payment of fine within 3 months from today, he will have to undergo one year R. I. On realization of the fine, Rs. 500 (Rupees Five Hundred) only shall be paid to Mushtaq Ahmad, complainant. With this modification, the appeal is dismissed.