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. 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