Document Fragment View

Matching Fragments

Kishanganj, Bihar. Age: 31 yrs ( Labour)

3.Ompal @ Raju S/o Sh.Khacheru Saini R/o Village Salempurgosain, PS Gajrola, Distt. J.P.Nagar Amroha (UP) Age: 24 yrs (Rikshawpuller)

4.Devender Singh @ Pawa S/o Sh. Dori Singh R/o Village Maarpur, Post Sharif Nagar, PS Thakur Dwara, Distt. Muradabad (UP) , Age: 24 yrs (vegetable vendor) 6 Offence complained of U/s 328/379/411/34 IPC 7 Offence charged of U/s 328/379/411/34 IPC 8 Plea of guilty Pleaded not guilty 9 Final order Acquitted 10 Date on which order reserved 24.03.2012 11 Date on which order announced 24.03.2012 Page 1/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 BRIEF REASONS FOR DECISION

Page 5/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012

18.PW12 SI Sunil Negi of PS GRP Ghaziabad joined investigation on 30.12.2010 with IO and supported the case of the prosecution .

19. Section 328 IPC runs as under :

Causing hurt by means of poison, etc., with intent to commit an offence ­Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, 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.

20.Ingredients of offence - The essential ingredients of the offence under Section 328 IPC are as follows:

Accused administered poison­
(a) with the intention of causing hurt;
(b) with knowledge that it is likely to cause hurt ; and
(c) to facilitate the commission of an offence.

21.Perusal of record reveals that even though it is claimed that PW2 Harsh Duwasha was administered poisonous drug between Indore and Delhi but in the absence of any stomach wash or corresponding forensic report qua existence of any poisonous , intoxicating or stupefying drug in the body of Page 6/12 of Judgment State Vs. Mohd.Rafique & Ors dt. 24.3.2012 victim, no finding of commission of offence U/s 328 IPC can be passed.

22.In case titled, " Sanjay Singh Vs. State " 2007 (7) AD Delhi 151 Hon'ble High Court while dealing with 328 IPC matter observed, " The essential element of Section 328 is that the victim should be administered poison or any stupefying , intoxicating or unwholesome drug or thing the forensic examination of the stomach wash in order to determine whether the substance administered was poison is therefore imperative the commission of offence U/s 328 IPC. The opinion of the victim who is rendered unconscious after taking the substances may not be stated finally as to whether the drug administered was either poison or any stupefying , intoxicating or unwholesome drug... ......... The endorsement of the Doctor is to the effect that the stomach wash could not be preserved ... extremely unsafe for Trial Court to convict U/s 328 IPC. "