Document Fragment View

Matching Fragments

15. The basic thrust of argument of Ld. Counsel for accused persons is on the point that prosecution has not been able to establish its case with regard to Section 328 of IPC.

It is relevant here to reproduce Section 328 IPC, which reads as under:

"328. Causing hurt by means of poison, etc., with intent to commit an offence.- Whoever administers to or causes to Aparna Swami Date:

25. Even in the case of Prashant Bharti Vs. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court quashed the charge under Section 328 IPC observing that allegations levied by the prosecutrix of having been administered some intoxicant in a cold drink could not be established by the cogent evidence. The relevant observation is read as under:

"23.9. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence."

26. In the case of Mukesh Chand Vs. State (Govt. of NCT of Delhi) 2010 SCC OnLine Del 379, it was held:

"21. Surprisingly, no chemical report about the "stomach wash" has been proved on record. It is well settled that in order to prove Section 328 IPC, the prosecution is required to prove that the substance in question was a poison."

27. Further, in the case of Santosh Kumar Vs. State, (2008) JCC 2019, Hon'ble Apex Court while stressing upon the importance and relevancy of medical evidence to establish guilt under Section 328 IPC, has held as under:

28. In view of the aforesaid discussion, this court is of the view that prosecution has miserably failed to establish the ingredients of offence punishable under Section 328 IPC qua both the accused persons Philip @ Vicky and Suraj.

29. Coming to the next accusation on the accused persons i.e. the charge under Section 379 of IPC.

The offence of 'theft' is defined under Section 378 of IPC:

"as whoever intending to take dishonestly any movable property out of the possession of any person without the consent of that person, in order to take such property, is said to commit theft."