JUDGMENT : K.J. Thaker, J. The present appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 30.12.1996 passed by the learned Addl. City Sessions Judge, Court No. 5, Ahmedabad in Sessions Case No. 126 of 1995, whereby, the learned Addl. City Sessions Judge, Court No. 5, Ahmedabad has convicted the appellant under section 328 of IPC and sentenced to undergo imprisonment of 5 years and to pay a fine of Rs.1000/-, in default, to undergo further S/I for 2 months. The appellant is also convicted under section 379 of IPC and sentenced to undergo R/I for a period of 2 years and to pay a fine of Rs.500/-, in default, to undergo further S/I for 1 month, which is impugned in this appeal. 2. The brief facts of the prosecution case is as under: 2.1 That one Mangilal Prabhuji dealing in money lending had come to Ahmedabad from Bombay at railway station platform no. 12. At a relevant time, he met one Narsaram Khetaram there. As said Narsaram was also to go to Bhinmal and was known to the complainant Mangilal. They were waiting for the train Jodhpur Express. In the evening at about 8.00pm to 8.30pm accused ( one person ) met them. After having chit-chat, accused also told them that they all would go together in Jodhpur Express. Necessary sitting accommodation in the compartment would be occupied by him for all of them. After the arrival of the train, all the three occupied seat in compartment. Thereafter, accused alighted and brought 3 Frooti (cold drink). All the three enjoyed Frooti and thereafter Mangilal and Narsaram occupied upper berth. At that time, accused offered Hindi magazine to Mangilal for the purpose of reading. But, Mangilal felt drowsiness, therefore, he refused to read. Narsaram also refused magazine. Thereafter, on the next day, i.e. 29.5.94, both found themselves at Mehsana Civil Hospital where they gained consciousness. Both had no knowledge as to what had happened in between 9.30pm ( of previous day-departure time ) and 4.00pm of 29.5.94. After gaining consciousness, they came to know that they both were brought to Civil Hospital, Mehsana by railway police. Thereafter, on the next day, i.e. 29.5.94, both found themselves at Mehsana Civil Hospital where they gained consciousness. Both had no knowledge as to what had happened in between 9.30pm ( of previous day-departure time ) and 4.00pm of 29.5.94. After gaining consciousness, they came to know that they both were brought to Civil Hospital, Mehsana by railway police. It was told that they had to be brought to hospital as there was intoxicant or stupefying substance in frooti (drink) given by accused with intent to commit or facilitate the commission of offence of theft, both became unconscious and in the meantime accused robbed/stole Rs.3500/-, a golden chain worth Rs.7000/-, and also currency notes of Rs.700/-, one wrist watch etc. from the person of Manginal. Likewise, Narsaram had to part with Rs.700/-. In short, accused had stolen currency notes, golden chain, wrist watch etc. worth Rs.22,400/- from both of them. In this regard, FIR was lodged by Mangilal with P.S.I. Mehsana Railway Police Station. The alleged offence was said to have been committed within the jurisdiction of Ahmedabad Railway Police Station, the investigation was transferred to Railway Police, Ahmedabad. In the meantime, accused was arrested at Jodhpur in connection with other offence. Ahmedabad Railway Police was informed by Jodhpur Police in respect to the offence of identical nature. The accused was arrested by Ahmedabad Railway Police on 2.8.1994 by transfer warrant. 3. It is relevant to state that in absence of name of accused and or suspect, earlier police had prepared "A" Summary in the present case i.e. I.C.R. No. 205/94. Along with the accused, police went to Bombay and from the shop of witness Dalaram Pratapbhai, one golden ingot and cash of Rs.400/- etc. were seized under panchnama. Police also arranged test identification parade before the Executive Magistrate in respect to accused and panchnama was drawn. It is the case of the prosecution that after obtaining medical certificate of the complainant and witness Narsaram from Civil Hospital and report of FSL, the accused came to be charge-sheeted on 1.11.1994 before the Court of the learned Metropolitan Magistrate, Court no. 5, for the alleged offence punishable under section 328 and 379 of IPC. The case was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 126/1995. 4. 5, for the alleged offence punishable under section 328 and 379 of IPC. The case was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 126/1995. 4. The accused was charged vide at Ex. 2. The appellant - accused pleaded not guilty and claimed to be tried. 5. In order to bring home the charge levelled against the appellant-accused, the prosecution has examined the following witnesses: 1 PW-1 Mangilal Prabhuji Ex. 7 2 PW-2 Dr. Shobha Madanlal Gupta Ex. 12 3 PW-3 Narsaram Khetaji Patel Ex. 20 4 PW-4 Dalaram Pratapbhai Khavas Ex. 22 5 PW-5 Baldevbhai Rambhai Patel Ex. 23 6 PW-6 Ghanshyam Dayashanker Dave Ex. 27 7 PW-7 Nanjibhai Kababhai Ex. 29 8 PW-8 Chandrasinh Bahijibhai Chauhan Ex. 30 9 PW-9 Bhairvubabu Ex. 32 6. The prosecution has also produced the following documentary evidence before the trial Court. 1. FIR Ex. 33 2. Medical certificate of Mangilal Ex. 13 3. Medical certificate of Narsaram Khetuji Ex.14 4. Despatch note issued by Medical officer Ex.15 5. Report of FSL Ex. 16 6. Yadi to Executive Magistrate by PI Railway Police dated 1.9.1994 Ex. 25 7. Panchnama relating to TI Parade Ex. 26 7. Thereafter, after examining the witnesses, further statement of the appellant-accused under section 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution. 8. After considering the oral as well as documentary evidence and after hearing the parties, learned Addl. City Sessions Judge, Court no. 5, Ahmedabad vide impugned judgment and order dated 30.12.1996 held the appellant - accused guilty to the charge levelled against him under section 328 and 379 of IPC and convicted and sentenced the appellant accused, as stated above. 9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. City Sessions Judge, Court No. 5, Ahmedabad City, the present appellant has preferred this appeal. 10. Heard Mr. Champaneri learned advocate for the appellant and Ms CM Shah learned APP for the respondent-State. 11. Mr. 9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. City Sessions Judge, Court No. 5, Ahmedabad City, the present appellant has preferred this appeal. 10. Heard Mr. Champaneri learned advocate for the appellant and Ms CM Shah learned APP for the respondent-State. 11. Mr. Champaneri learned advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under section 328 of IPC is not made out as FSL does not show that any poison was there, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Champaneri learned advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves to be quashed and set aside. Mr. Champaneri has further submitted that the trial Court has erred in relying on the evidence for operating the poisonous substance and has also erred in appreciating and considering the medical evidence, and therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside. 12. Per contra, learned APP Ms. Shah has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Shah learned APP further submitted that it is not only poison but finding by the FSL that there were unwholesome drug or other thing with intent to cause hurt to such person to facilitate the commission of an offence, and hence, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused to undergo rigorous imprisonment of five years. He is a habitual offender and this fact has also been noted by the learned trial Judge, and therefore, the present appeal deserves to be allowed. 13. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. He is a habitual offender and this fact has also been noted by the learned trial Judge, and therefore, the present appeal deserves to be allowed. 13. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. Section 328, 378 and 379 of IPC read as under: 328. 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, intoxication 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 term which may extend to ten years, and shall also be liable to fine." 378. Theft. - Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." 379. Punishment for theft.-Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 14. The provisions of section 328 and 378 of Indian Penal Code has been rightly appreciated by the learned trial Judge. Both the sections do not say only about poison administering and then taking moveable property. I am in complete agreement with the submission made by Ms. Shah that it is not only poison but finding by the FSL that there were unwholesome drug or other thing with intent to cause hurt to such person to facilitate the commission of an offence, and hence, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused to undergo rigorous imprisonment of five years. He is a habitual offender and this fact has also been noted by the learned trial Judge. In that view of the matter, the ground urged by Mr. Champaneri learned advocate cannot be accepted, and therefore, this appeal qua conviction and sentence imposed under section 328 of IPC is dismissed. 15. He is a habitual offender and this fact has also been noted by the learned trial Judge. In that view of the matter, the ground urged by Mr. Champaneri learned advocate cannot be accepted, and therefore, this appeal qua conviction and sentence imposed under section 328 of IPC is dismissed. 15. This takes this Court to the next offence under section 379 of IPC. Section 379 of IPC has been rightly examined by the learned trial Judge and the finding of fact in para 19 reads as follows: "19. Prosecution has examined Dr. Shobha Madanlal Gupta, PW-2 at Ex. 12. She is a medical officer at Civil Hospital Mehsana. On 29.5.94, at about 8.45 pm, police constable brought two unknown persons. On inquiry, she could know that their names were Mangilal Prabhulal Jain and Naresh Khetuji. Mangilal Jain was examined by her and she found out following: "He was drowsy-unable to speak and used to open eyes by shaking the body. His vision system was blocked up. Pulse rates were in order. Pupils were normal." The patient gained consciousness at 3.00pm. He was treated as indoor patient and was given discharge at 7.00 p.m. On 29.5.94. History was given by Police Constable who brought him. That he was fallen down from berth of compartment. He told that somebody might have given him something in food. She had issued certificate in this regard vide exh.13." 16. The offence under section 379 of IPC was committed with the aid of section 328 of IPC, and therefore, the evidence of doctor and certificate ex. 13 will not permit this court to take a different view than that taken by the learned trial Judge. Even the stolen property i.e. golden chain and wrist watch were converted into ingot and were found at the instance of accused himself. This incriminating fact also goes against him. The accused has been identified properly in the TI parade. The prosecution's evidence has been amply discussed by the learned trial Judge in para-14, recording his finding: 14. Prosecution has examined complainant Mangilal Prabhuji (PW no.1) at exh. 7. According to him, he has been residing at Bombay having business of money lending. His native place is Bagoda, taluka Bhinmal, Dist. Zalor (Rajasthan). On 28.5.94, he started from Bombay Central on way to Bagoda, Bhinmal via Ahmedabad. Prosecution has examined complainant Mangilal Prabhuji (PW no.1) at exh. 7. According to him, he has been residing at Bombay having business of money lending. His native place is Bagoda, taluka Bhinmal, Dist. Zalor (Rajasthan). On 28.5.94, he started from Bombay Central on way to Bagoda, Bhinmal via Ahmedabad. At a relevant time, he had suitcase, one bag of Hafus mangoes, a golden necklace which was placed in his pocket, notes of Rs.300/- and Rs.700/- in different pockets of pant. He had also watch on his wrist. He arrived at Ahmedabad railway station by Gujarat Express at about 3.30 or 4.00pm. On platform he met Narsaram Khetaji who also hails from nearby village. As both had to go to Bhinmal and the departure time of Jodhpur Express being 8.30pm, they both waited on platform. In the meantime, one person (accused) appeared. He also suggested that he wanted to go to Jodhpur. He was tall and fat and had put on pant and bushirt. All 3 waited for the train on platform. He also told them that he would get in train and occupy the seat. On arrival of train, he went inside and occupied seat and thereafter both were called. When train was about to start, he offered Mango Frooti to both of them. Harsaram was having one attachee and abag. After having Frooti, accused suggested them to go to sleep on upper berths. On the next day when they regained consciousness, they were in the hospital at Mehsana. They stayed there for 24 hours. They were more or less under intoxication. Police had come to drop then to Bhinmal. Witness was interrogated by police at Mehsana Hospital where he stated before police that his golden chain of 18 grams, cash of Rs.3700/- and wrist watch were stolen. He gave FIR in this regard vide exh. 33. he can identify his Rico made leather belted wrist watch. He was called by police for the purpose of TI parade on 1.9.94. At 3.00pm, he was called in the court room. From the line of 8-10 persons he identified the accused person. He has also identified the accused in the court room. 17. The learned trial Judge, in para-47 and 48 has given elaborate reasons why he has convicted and sentenced the accused to undergo R/I for 5 years. At 3.00pm, he was called in the court room. From the line of 8-10 persons he identified the accused person. He has also identified the accused in the court room. 17. The learned trial Judge, in para-47 and 48 has given elaborate reasons why he has convicted and sentenced the accused to undergo R/I for 5 years. In that view of the matter, I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and I am of the view that no other conclusion except the one reached by the trial Court is possible in the instant case. There is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 18. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence passed by the learned Addl. City Sessions Judge, Court No. 5, Ahmedabad in Sessions Case No. 126/95 is hereby confirmed. Bail bond stands cancelled. R & P to be sent back to the trial court forthwith. 19. The appellant - ori. Accused is on bail. He is directed to surrender before the Jail Authority within a period of four weeks from the date of this order, failing which, the concerned authorities shall procure the presence of the appellant-ori. Accused, so that he may serve his remaining sentence. He shall be granted set-off for the period during which he was an under-trial prisoner or convict prisoner. Appeal dismissed.