Document Fragment View
Fragment Information
Showing contexts for: section 328 penal code in State vs . Raju on 27 February, 2012Matching Fragments
10. The first issue which arises for consideration is whether in absence of finding of poisonous substance in gastric lavage/stomach wash of victim is fatal for the prosecution case or not. To appreciate this, it is necessary to dwell upon the necessary ingredients of Section 328 IPC, which reads as under : Section 328 :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 be S.C No. 125/08 State vs. Raju etc. 8/16 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 this Section.
12. Let us examine whether in the present case the prosecution, from the testimony of its witnesses and documents placed on record, has been able to bring out the essential ingredients required to constitute an offence U/S 328 IPC and successfully proved commission of an offence U/S 328 IPC by the accused.
13. The provisions of Section 328 IPC came up for consideration before the Hon'ble Bombay High Court in a case of Madhukar Damu Patil Vs. State of Maharashtra, 1996 CRI.L.J. 1062. The facts of the said case were that 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 S.C No. 125/08 State vs. Raju etc. 9/16 furtherance of his common intention with his coaccused, 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 failed to adduce evidence to the effect that any poison was administered by appellant or his companion.
After critical analysis of Section 328 IPC, it was observed in this judgment that : "... An analysis of the provisions contained in the Section exposes the fallacy of Mr. More's contention that in order to constitute an offence under Section 328 I.P.C., it is incumbent that some evidence should be led by the prosecution to prove that any poison was administered to the victim. The language of the Section clearly shows that the act of administering any stupefying intoxicating or unwholesome drug or any other think with the intention to cause hurt to a person or with the intention to commit or to facilitate commission of an offence or knowing it to be likely that hurt would be caused, would also fall within the mischief of the Section. ....."