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Showing contexts for: section 328 penal code in State vs . Sandeep @ Raju Etc Fir 475/13 ... on 7 April, 2018Matching Fragments
"Section 328 - Causing hurt by means of poison, etc. with intent to com mit an offences - Proof - In a case under Section 328 IPC mere oral as sertions are not sufficient to hold an accused guilty of the offence. To hold an accused guilty for the offence, the oral assertions ought to be corrobo rated by other circumstances and evidence. In absence of any medical ev State Vs. Sandeep @ Raju etc FIR 475/13 (56620/16) idence corroborating allegation of injured, convicting appellants for the offence under Section 328 of IPC does not seem to be justified, especially when prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicat ing or unwholesome drug. Prosecution has also not produced any witness to rebut the plea of alibi on behalf of appellants except that of the injured witness. Defence witnesses specifically deposed before court that appel lants were not present at the spot and came later and removed the victim to hospital. Benefit of doubt extended to appellants. Acquitted.
85. As said earlier, dishonest and fraudulent intention coupled with deceit and delivery of property are essential ingredients of offence U/s 420 IPC. In this case, there is no charge against the accused persons of having committed offence of theft Punishable U/s 379 IPC. The only Charge beside Section 328 IPC is of commission of offence Punishable U/s 420 IPC. In concluding the same, it is essential that PW1 said that he had delivered the amount of Rs.17 State Vs. Sandeep @ Raju etc FIR 475/13 (56620/16) lacs to these accused persons. It is not the case. Neither in Ex.PW 1/DA nor in his Court statement does PW1 said that he had actually delivered the said amount to the accused persons.
87. The above analysis of evidence therefore clarifies that in both the segments of the alleged crime, the ingredients of Section 420 IPC are found missing.
88. Thus, I revert back to the Prosecution's case so far as it pertains to Section 328 IPC. The defence has cited from several Judgments which have been recorded above in preceding paragraphs. It has been categorically held in Joseph Kurian Philip Jose Vs. State of Kerela, supra that for proving offence U/s 328 IPC, the Prosecution is State Vs. Sandeep @ Raju etc FIR 475/13 (56620/16) required to prove that the substance in question was a 'Poison' or any stupefying intoxication or unwholesome drug etc; that the accused had administered such substance to the Complainant; 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 offence.
100. It was important for the Prosecution to have established that this amount of Rs.2 lacs that is allegedly recovered from A1 is the property that was obtained from and only from PW1 and none other.
101. In view of above observations of this Court, it is held that the testimony of PW1 who is Star witness of the Prosecution does not inspire confidence and is not of unimpeachable value. There is absence of ingredients of offence Punishable U/s 420 IPC. Commission of Offence U/s 328 IPC has not been proven. There are doubts in the testimony of Prosecution witness i.e. PW1. Support to it cannot be derived from testimony of PW2 as he is not the witness to any of the incident. There are glaring lapses by the case IO on this aspect. Case U/s 411 IPC is also not proved beyond reasonable doubt.