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6.2 On the other hand, Ld. Counsel for accused has submitted that prosecution has miserably failed to prove the main offence u/s 328 IPC as FIR No. 155/2016 State v. Maqsood Khan Pages 12/23 admittedly no medical examination of the complainant was got conducted and no reasonable explanation has come forth for such omission. Ld. Counsel for accused has relied on the judgment of Hon'ble High Court of Delhi in Mahender Kumar & Anr. v. State 2017 SCC Online Del 8327 to press upon the point that in the absence of the medical evidence, a person cannot be convicted for offence u/s 328 IPC on the basis of only oral testimony. He has argued that accused has given detailed narration of the facts under which the complainant hired his auto and the phones came in his possession. He has argued that defence of the accused is consistent and even the complainant was examined on the same lines. It is argued that complainant has been evasive and inconsistent in his cross examination and same shows that complainant has tried to hide the true facts of the case from the court. He has argued that it has come in the cross examination of the owners of the auto that same was GPS enabled but no record of such GPS was procured by the IO since it would have gone against the case of prosecution. Likewise, the IO has omitted to file the call detail record of phone of complainant of the alleged night and the location ID of the phone during said period. It is submitted that withholding of such information further shows that IO has suppressed the facts of the case as same would have been corroborative of the defence taken by the accused. Accordingly, it is submitted that accused is entitled to be acquitted from all the charges.

7. POINTS FOR DETERMINATION 7.1 Section 328 IPC provides "Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, FIR No. 155/2016 State v. Maqsood Khan Pages 13/23 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".

8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The main charge against the accused is u/s 328 IPC. As per complainant, he drank the water offered by the accused and thereafter lost his consciousness.

Accordingly, as per the version of complainant, he has been administered some intoxicating substance by the accused in the water. However, he admitted in his cross examination that he was not subjected to any medical examination by the police at any point of time. Even the IO has deposed that complainant was not subjected to any medical examination. It is not the case of prosecution that complainant reported the offence after a long gap and therefore the medical examination was not feasible or would not have been fruitful. Rather, as per complainant he regained consciousness about 5.00/6.00 am and as per the FIR, same was registered at 08.30 am. Accordingly, there appears no reason as to why the complainant was not medically examined. In the cases of intoxication the IO ought to have obtained the blood sample of the complainant or the gastric lavage of the complainant or both as per the advice of the doctor. However, no efforts whatsoever was made regarding the same. In the judgment relied upon by the Ld. Defence Counsel (Mahender Kumar & Anr. v. State 2017 SCC Online Del 8327) it has been held by Hon'ble High Court of Delhi that "in the absence of any medical evidence corroborating the allegations of injured, convicting the appellants for the offence u/s 328 of IPC does not seem to be justified in the facts of the present case, especially when the prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicating or unwholesome drug". The Hon'ble High Court has further held "this court is of considered opinion that in FIR No. 155/2016 State v. Maqsood Khan Pages 15/23 a case u/s 328 IPC mere oral assertions are not sufficient to hold an accused guilty of the offence. To hold an accused guilty for the offence, the oral assertions ought to be corroborated by other circumstances and evidence".

Thus, in the present case there is nothing else regarding the allegations u/s 328 IPC except the oral evidence of the complainant. Hence, in view of aforesaid judgment, prosecution has failed to lead the requisite evidence for proving the offence u/s 328 IPC.

8.2 As far as the offence u/s 379/411 IPC is concerned, the accused has not disputed that phones were recovered from him. He has not even disputed that he got such phones from the complainant. However, he has told a different story altogether regarding the circumstances leading to the phones coming into his possession. Now the main question is whether the version stated by the accused is a probable one or it is the testimony of complainant which is credible on the given facts. It is to be noted that complainant and accused were strangers and, therefore, they appears no motive with the complainant to make any false allegation against the accused. Further, he has stood the test of detailed cross examination. More importantly, the scrutiny of his cross examination shows that questions put to him regarding the defence of the accused were way off the defence taken by the accused in his examination u/s 313 CrPC. Same are discussed in the succeeding para.