JUDGMENT : N. UNNI KRISHNAN NAIR, J. Heard Mr. M. U. Mondal, learned counsel for the appellant. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor, appearing for the State. 2. The present appeal has been instituted assailing the Judgment dated 12-09-2013 passed by the learned Sessions Judge Goalpara, in Sessions Case No.143/2011, convicting the appellant, herein, under Section 328 IPC and sentencing him to undergo Rigorous Imprisonment for 5 (five) years along with payment of fine of Rs. 10,000/- (Rupees Ten Thousand) in default to undergo Rigorous Imprisonment for another 6 (six) months. 3. The prosecution case in brief is that one Maza Sheikh of village Simlabari in the district of Goalpara had lodged an FIR before the Officer-In-Charge Lakhipur P.S on 29.05.2010. The said FIR was registered as Lakhipur P.S Case No.149/2010 under Sections 328/457/380 IPC. In the said FIR, it was alleged that after breaking open the door of the house of the informant, the appellant, herein, who had administered stupefying substance to the informant and his family members making them loose their senses, along with 2 other co-accused committed theft in respect of some jewelry articles including a cash amount of Rs.24,500/- (Rupees Twenty Four Thousand Five Hundred). It was further alleged that on the following day of the incident, the appellant, herein, was rounded up by the members of the village defence party and he was subsequently handed over to the police. The offence committed by the appellant, herein, was projected to have been committed on the night of 28.05.2010. It is the projection of the prosecution of the incident, that the appellant, herein, on 28.05.2010 at around 7 p.m., had visited the house of the informant. At the relevant point of time, the wife of the informant was inside the kitchen, cooking dinner. After having paced up and down, the appellant by lighting his ‘biri’ had gone inside the kitchen and thereafter, he had taken out something and threw it in the curry that was being cooked on the hearth and then left the place. It is alleged that the appellant had again come back to the house of the informant after a short while and enquired whether all the inmates of the house had taken their meal. The informant and his family members, after finishing their household works, had taken dinner together. It is alleged that the appellant had again come back to the house of the informant after a short while and enquired whether all the inmates of the house had taken their meal. The informant and his family members, after finishing their household works, had taken dinner together. After taking the dinner, the members of the household, barring Regina Khatun, i.e. the daughter of the informant who had not taken dinner, were in deep sleep. Regina Khatun woke up at midnight on feeling the weight of the hand of one of her sisters on her body and then she noticed that the front door of the house was open. She raised a hue and cry, hearing which neighbouring people came to the spot and they found all the inmates of the house in senseless condition and to be vomiting endlessly. The family members of the informant were shifted to the hospital where they were provided treatment. On regaining senses, the following day, the FIR came to be lodged by the informant. On receipt of the said FIR, Lakhipur P.S Case No.149/2010 under Section 328/457/380 IPC came to be registered. On conclusion of the investigation, the police laid a charge-sheet against the appellant and others under Sections 328/457/380 IPC. The other accused were shown as absconders. The case being found to be triable by the Court of the learned Sessions Judge, the same was committed to the said Court. In the meanwhile, the other co-accused had also surrendered before the Court. The learned Trial Court on appreciating the materials coming on record framed a charge under Sections 328/457/380 IPC against the appellant and the other co- accused. The charge on being read over and explained to the appellant and other co-accused, they having pleaded not guilty and claimed to be tried, a trial ensued. During the Trial, the prosecution examined 10 (ten) witnesses. Thereafter, the appellant and the other co-accused were examined under Section 313 CrPC. The accused including the appellant, herein, had taken a plea of total denial and false implication in their statements made during their examination under Section 313 CrPC. During the Trial, the prosecution examined 10 (ten) witnesses. Thereafter, the appellant and the other co-accused were examined under Section 313 CrPC. The accused including the appellant, herein, had taken a plea of total denial and false implication in their statements made during their examination under Section 313 CrPC. The learned Trial court upon conclusion of the Trial, on appreciating the evidences coming on record proceeded vide Judgment dated 12-09-2013 to exonerate the accused persons including the appellant, herein, from the offence under Sections 457/380 IPC holding that the same was not established by the prosecution beyond all shadows of doubt. However, basing on the evidences coming on record and holding the same to establish the guilt of the appellant, herein, of commission of an offence under Section 328 IPC, the appellant, herein, was convicted under Section 328 IPC and sentenced as noticed hereinabove. Being aggrieved, the appellant has instituted the present appeal. 4. The learned counsel for the appellant summits that the learned Trial court for the purpose of convicting the appellant, herein, had relied on the evidences of the PW-2 and PW-3 to hold that the appellant had mixed stupefying substance in the meal that was being cooked in the kitchen on the fateful night. He summits that the ingredients requisite for bringing home a charge of commission of offence under Section 328 IPC against the appellant, herein, admittedly is not available from the evidences adduced in the matter by the prosecution. Accordingly, the learned counsel for the appellant has submitted that the conviction of the appellant under Section 328 IPC would mandate an interference. 5. Mr. M. U. Mondal, learned counsel for the appellant has further submitted that from the tenor of the evidences coming on record, it is the prosecution case that the appellant, herein, had mixed stupefying substances in the dinner being cooked in the kitchen of the informant on the fateful night with an intention to commit or facilitate commission of an offence. He submits that there was no evidence led to establish that the stupefying drug was administered by the appellant with the knowledge that it is likely to cause hurt. He submits that the appellant having been acquitted from the charge under Sections 457/380 IPC, the conviction of the appellant under Section 328 IPC would not be maintainable and would call for an interference by this Court. Mr. He submits that the appellant having been acquitted from the charge under Sections 457/380 IPC, the conviction of the appellant under Section 328 IPC would not be maintainable and would call for an interference by this Court. Mr. M. U. Mondal, has further submitted that the allegation being of mixing stupefying substance by the appellant, herein, in the meal cooked on the fateful night in the kitchen of the informant and the same purportedly having been witnessed by the PW-2 and PW-3, the police had not made any attempt to seize the said food articles and send it for forensic examination to determine as to whether any stupefying substance was found mixed, therein. He submits that in absence of any such evidence being adduced, it was not permissible to the learned Trial Court to conclude that the informant and his family members had suffered stomach upset and were rendered unconscious on account of stupefying substance mixed in their dinner. He further submits that the appellant, herein, was also not permissible to be connected with the said aspect of the matter. 6. In the above premises, the learned counsel for the appellant has submitted that the impugned Judgment and Order dated 12.09.2013 would mandate an interference from the Court. 7. Per contra, Mr. R. J. Baruah, learned Additional Public Prosecutor, appearing for the State, submits that the evidences coming on record had established beyond reasonable doubt the presence of appellant, herein, on the fateful night, in the kitchen of the informant. The evidence adduced by PW-1(informant), PW-2 and PW- 3, would go to establish the presence of the appellant on the fateful night in the kitchen of the informant and also of his removing the lid of the cooking utensil on fire and putting something in the food in the guise of lighting his biri. It was further brought on record from the evidence of PW-1 and PW-2 as well as of the evidence from PW-3 that the appellant, herein, had again come back after some time and enquired as to whether the informant and his family members had their dinner. He further submits that the informant and his family members barring PW-2 had lost their senses. The family members after taking their dinner had slept off. 8. Mr. He further submits that the informant and his family members barring PW-2 had lost their senses. The family members after taking their dinner had slept off. 8. Mr. R. J. Baruah, further submits that PW-2 who had not taken dinner the fateful night had woken up in the middle of the night and on finding the door of the house open, she had raised a hue and cry. He further submits that the neighbours having gathered in the house had found the informant and his other family members barring PW-2 to be in a stupor. Thereafter, it was found that the informant and his other family members, other than PW-2 were vomiting incessantly for which they were rushed to the hospital for treatment. He submits that the evidence of PW-3 corroborated by the evidence of PW-1 and PW-2, would reveal that the stupefying substance consumed by the informant and his family members, barring PW-2, being mixed with the dinner cooked at the relevant point of time in the kitchen of the informant, by the appellant, herein. Accordingly, he submits that the conviction of the appellant under Section 328 IPC would not mandate an interference by this Court. 9. I have heard the learned counsel for the parties and perused the materials coming on record. 10. The appellant having being convicted under Section 328 IPC, this Court would examine the said provision of Section 328 IPC, the provision of Section 328 IPC being relevant is extracted hereinbelow: “ 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, 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 term which may extend to ten years, and shall also be liable to fine.” 11. A perusal of the Provision of Section 328 IPC would bring to the forefront that the prosecution would be required to establish that the accused had administered poison or any stupefying, intoxicating or unwholesome drug or other thing with the intent to cause hurt to such person, or with the intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt. 12. As noticed hereinabove, from the deposition of PW-2 and PW-3, the prosecution had projected that the appellant, herein, had mixed stupefying substance in the meal that was being cooked in the kitchen of the informant on the fateful night of 28.05.2010. The evidence adduced by PW-3 was corroborated by the evidence adduced by PW-2 i.e. the wife and the daughter of the informant. The evidence adduced by PW-3 would reveal that she had observed the appellant, herein, lifting the lid of the pan in which the meal was being cooked and administrating there some stupefying drugs. However prosecution has not explained as to why on such mixing of substance by the appellant, herein, being observed by the PW-3, she had not asked the appellant, herein, about the same nor informed others about such action being committed by the appellant, herein. 13. The learned Trial Court with regard to the charge framed against the appellant under Section 328 IPC had drawn the following conclusions; “All the inmates of the house were brought to hospital as because they all suddenly suffered physical debilitation. There is no escape but to infer that something serious has happened to them. It suggested by the defence that they were victims of food poisoning which happened accidentally due to fall of a lizard or some other poisonous substance The specific case of the prosecution is that it was accused Jahidul who administered stupefying drugs in the curry that was cooked inside the kitchen at the relevant time under the pretext of lighting his Biri there. At is also confirmed by PW-10 that PW-1 had not stated before him that Rejina Khatun told him that the accused entered into their house while vegetables were being cooked. This contradiction only needs to be completely brushed aside as there is ample evidence on record on that score. At is also confirmed by PW-10 that PW-1 had not stated before him that Rejina Khatun told him that the accused entered into their house while vegetables were being cooked. This contradiction only needs to be completely brushed aside as there is ample evidence on record on that score. It is recounted by PW-2 being supported and corroborated satisfactorily by PW-3 that, in the eventful night, accused Jahidul happened to visit their house and he under the pretext of lighting his Biri, entered into the cooking shed and he lifted the lid of pan in which curry was cooked and he administered there some stupefying drugs. ……………………………………..It has been confirmed by PW-10 that this witness has not stated in her evidence that she was cooking meal inside the kitchen; the accused lighted a Biri; then, he opened his clasped hand and threw something in the curry, then he made enquiry whether they had taken meal or not and some other effects. I have given a serious thought to this matter and have found that this witness was flabbergasted due to the turn of events that occurred on that particular night. All her family members became ill after consuming night meal. As a result, this witness must have been in a state of shock. She would not have narrated the entire matter in details because of that. The question is whether even if occurrence of such contradiction, her evidence can be relied upon. To that effect, I have drawn my serious and careful attention to the evidence on record and have found that her evidence as well as evidence of PW-3, the wife of the informant, though suffered from some infirmity in the form of contradictions occurring here and there, has an aura of truth and it suffers from no serious infirmities. It is pleaded by the defence that the accused had not visited the house of the informant. In that sense, if we analyse the matter in the light of the evidence on record, then it baffles the mind of the court as to why all the PWs will be out in the open implicating an innocent person. It comes on the evidence on record that the accused was a frequenter to the house of the informant. He had a very good relation with them. It comes on the evidence on record that the accused was a frequenter to the house of the informant. He had a very good relation with them. There was no previous enmity or animosity that might have occasioned for deposing falsely against them by the inmates of that house. The evidence when closely and minutely assessed, appears to have be cogent, convincing and worth reliance and from the evidence of these three PWs, it stands abundantly established that, on the eventful night, the accused happened to come to the house of the informant and he paced forward and backward in the verandah and, thereafter, he went inside the kitchen by taking advantage of PW-3 leaving the work of cooking in the hands of PW-2 and finding her a little girl and under the pretext of lighting a Biri and then he lifted the lid of the pan in which the curry was cooked and then he administered stupefying drugs in it.” 14. Having drawn the above conclusions, the extra judicial confession made by the appellant, herein, was discarded by the learned Trial Court, basing on the evidence of PW-8 and PW-9 on the ground that it was not a voluntary one. However, the learned Trial Court concluded that the evidences brought on record established beyond reasonable doubt that the appellant, herein, had mixed stupefying drugs with the intention to cause harm to the inmates of the house and accordingly held the charge under Section 328 IPC framed against the appellant to be established. From the tenor of the evidence adduced by the prosecution witnesses it is apparent that the appellant had administered some stupefying drug with a intention to commit or to facilitate commission of an offence. The prosecution case is that the appellant, herein, had mixed stupefying drugs in the meal being cooked on the fateful night in the kitchen of the informant, with a view to commit robbery in the house of the informant after rendering the inmates imbalanced on account of the stupefying drug so administered. 15. This Court has examined the conclusions drawn by the learned Trial Court in connection with the charge under Section 328 IPC against the appellant. This Court finds that the conclusions so drawn to be based on a presumption, which is however not supported from the evidences coming on record. 15. This Court has examined the conclusions drawn by the learned Trial Court in connection with the charge under Section 328 IPC against the appellant. This Court finds that the conclusions so drawn to be based on a presumption, which is however not supported from the evidences coming on record. This Court on perusal of the evidence of PW-2 and PW-3 finds the same to be not reliable. The PW-2 and PW-3 while adducing evidence to the effect that it was seen that the appellant had mixed stupefying substance in the meal that was being cooked had not deposed of having asked the appellant as to what was mixed by him in the meal that was being cooked. Further there is no evidence as record to demonstrate that the inmates of the house has suffered on account of being administered with some stupefying substance. Accordingly, this Court is of the considered view that the allegation that the accused had administered stupefying substance in the meal cooked for the inmates of the house stood on the fateful night of 28.07.2010 cannot be held to be established beyond reasonable doubt against the appellant. It is also to be noticed that the extra judicial confession made by the appellant was discarded by the learned Trial Court on the ground that it not voluntary. Further, the appellant was acquitted from the charge under Sections 457/380 IPC, accordingly the motive for administering stupefying substances to the inmates of the house of the informant, by the appellant has also not been established. 16. The said ingredients of Section 328 IPC not being established by the prosecution, the commission of offence under Section 328 IPC against the appellant could not have been said to have been established beyond all reasonable doubt. In view of the above conclusion reached by this Court, this Court is of the considered view that the evidences coming on record does not establish the commission of offence under Section 328 IPC by the appellant, herein, beyond all reasonable doubt and accordingly he is entitled to be acquitted from the said charge so framed against him by the learned Trial Court. Accordingly the conviction and consequential sentencing of the appellant, for commission of an offence under Section 328 IPC stands set aside. 17. Accordingly the conviction and consequential sentencing of the appellant, for commission of an offence under Section 328 IPC stands set aside. 17. The impugned Judgment and Order dated 12.09.2013 passed by the learned Sessions Judge, Goalpara, in Sessions Case No.143/2011 also stands set aside. The petitioner is set at liberty and the bail bond executed by the appellant stands discharged. 18. Accordingly, the Criminal Appeal stands allowed. 19. Registry to send down the Records of the Case to the learned Trial Court forthwith.