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Showing contexts for: section 328 penal code in State vs Bittoo @ Babloo P.O. 2 Ors on 30 October, 2023Matching Fragments
25.It is to be ascertained by way of analysis of evidence led on record whether accused Sunil Kumar was one amongst those people who had hired the rickshaw and whether he administered any substance in the nature of poison or stupefying or intoxicant to Firoz and whether he had any role in causing theft of erickshaw as well as the mobile phone.
26.Accused has been charged with commission of offence punishable under Section 328 I.P.C., which makes administration of any substance delirious for human consumption, with the intention of causing hurt or any offence punishable. It reads as under : "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 SC No.1072/2016 State vs Bittoo @ Babloo & Ors 10 of 38 with intent 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."
Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in Section 328 IPC."
28.Further in the case of Joseph Kurian Philip Jose vs State of Kerla (AIR 1995 SC 4), the Hon'ble Apex Court held that elements constituting offence punishable under Section 328 IPC are to be established by way of direct, reliable and cogent evidence and observed as under: "In order to prove offence under Section 328 IPC, the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome SC No.1072/2016 State vs Bittoo @ Babloo & Ors 11 of 38 drug, etc., that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In other words, the accused may accomplish the act by himself or by means of another. In either situation direct, reliable and cogent evidence is necessary. ..."
29.The importance of medical evidence to establish guilt under Section 328 IPC has been emphasized in case of Santosh Kumar (supra), wherein His Lordship observed as under:
"Simply on the basis of the statement of PW5 alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit. "
31.In Mahinder Kumar Vs. State, 2017 SCC OnLine Del 8327, Hon'ble Delhi High Court observed that sole testimony of injured witness without Medical Evidence is not sufficient to prove charge u/s 328 IPC, the relevant portion is extracted under :
"20. In view of the aforesaid discussion, scrutiny of testimonies of prosecution as well as defence witnesses and the MLC of the victim, it is clear that the findings rendered by the learned Trial Court are based only on the testimony of injured witness. But in the absence of any medical evidence corroborating the allegation of the injured, convicting the appellants for the offence under Section 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. Prosecution has also not produced any witness to rebut the plea of alibi on behalf of the appellants except that of the injured witness. However, the appellants have produced two witnesses in their defence and merely because they did not prove the presence of the appellants at the spot, therefore, they were declared hostile.