Document Fragment View
Matching Fragments
PW-2 on 28.08.06 and from facts stated by the witness during his deposition, the Ld. Metropolitan Magtistrate, took cognizance u/s 328 IPC against the accused under provision of section 323 Cr. P.C. As offence under section 328 IPC was exclusively triable by the court of sessions, the case came to be transferred for further trial to sessions Court on 09.10.06.
7. A charge u/s 328/34 IPC was framed against accused on 26.10.06. The accused did not plead guilty and claimed trial.
39. Another contention raised by Ld Defence Counsel is that in the absence of any medical evidence to support the testimony of PW-1, the prosecution has failed in proving its charges U/S 328 IPC against the accused. The offence U/S 328 IPC is complete even if no hurt is caused to the person to whom the poison or any other stupefying, intoxicating or unwholesome drug is administered. Section 328 is merely an extension of provisions of Section 324, however, unlike Section 324 mere administration of poison is sufficient to bring offender to justice. Admittedly in the present case complainant has not been subjected to medical examination by Investigating Officer nor any effort was made by the Investigating Officer to examine concerned doctor witnesses, Cont...
Cont...
3544. Let us see whether in absence of medical evidence having been collected and placed on record and non examination of mother and wife of complainant as well as other witnesses by the Investigating Officer has caused any prejudice to the accused in the present case.
45. The necessary ingredients required to be proved by prosecution in order to fulfill requirements of Section 328 IPC have already been mentioned in details in forgoing paragraphs. The provisions of section 328 IPC were also discussed at length in the case of Madhukar Damu Patil Vs. State of Maharashtra, 1996 CRI.L.J. 1062. The matter for consideration before the court was challenge to conviction of appellant U/S 328/34 IPC. In the said case a simple, innocent lady, aged about 50 years, was administered some stupefying, intoxicating or unwholesome drug or any other thing mixed in sugarcane juice, by the accused, in furtherance of his common intention with his co-accused, in a planned and calculated manner in a public place. Thereafter, ornaments which the lady was wearing were stolen by the accused persons. One of the grounds of challenge which came up for consideration before the court was whether offence committed by the appellant would not fall in ambit of section 328 IPC because the prosecution had Cont...
Cont...
37Notwithstanding lapses on the part of Investigating Officer to collect crucial evidence to link the accused with the offence, under section 328 IPC, the testimony of PW-1 by itself is sufficient to prove offence U/S 328 IPC against the accused. As is clearly reflected from above discussed case law and provisions of section 328 IPC, the essential requirement of Section 328 IPC is that some stupefying or intoxicating or unwholesome drug or something should be administered to the victim and this has been established from testimony of PW-1. Thus even otherwise no prejudice has been caused to the accused by failure/lapse/omission on the part of Investigating Officer to collect medical evidence and to examine other link witnesses whose examination could have aided the prosecution in making its case against accused foolproof.