1. The appellant has been convicted of an offence under Section 328 of the Indian Penal Code in administering some drug in a ball of jaggery to a boy named Arimuthu, who is said to have died of the effects rather more than three days later. There is nothing to indicate the nature of the drug but the Sub-Assistant Surgeon (P. W. No. 7) is of opinion that the boy died of irritant poisoning, but after a careful scrutiny of his evidence and of the Chemical Examiner's report which shows that no trace of poison could be detected in the boy's internal organs, I cannot feel that the cause of death is free from doubt.
2. However this may be, I see no reason for doubting that as deposed by the prosecution witnesses the appellant gave the boy some jaggery in the evening before he was taken ill; and if we accept the evidence of P. W. No. 5, it would appear probable (though by no means certain) that the jaggery contained something in the nature of a love-philtre, designed to secure the affections of the boy's sister-in-law. But there is nothing in the evidence to indicate that the accused had any idea that this love-philtre was likely to be injurious and the open way in which he distributed the jaggery and disclosed his intention to prosecution witness No. 5, is opposed to such a supposition. It may be that this love-philtre contained something which disagreed with the boy and ultimately caused his death: but there is nothing from which either of the intents or the knowledge specified in Section 328 of the Indian Penal Code can be inferred. He may have contemplated the commission of an offence in respect to Alamelu as the Sessions Judge surmises; but the administration of the drug to the boy which is the subject of the present charge could not facilitate this.
3. I would set aside the conviction and sentence and order the release of the appellant.
4. I cannot accept the evidence of P. W. No. 5. On the rest of the evidence, I am not satisfied that it is proved that the jaggery was offered to the boy with the intention to cause hurt to him. It is not alleged that anything was administered to the boy with the intent to commit or facilitate the commission of an offence.
5. The case seems to me to be. one of suspicion, but I do not think that all the elements of an offence under Section 325 of the Indian Penal Code are satisfactorily-proved.
6. I, therefore, agree in the order proposed by my learned brother.