IMPORTANT POINT
Conviction under Section 328 of the IPC requires corroborative medical evidence; mere oral testimony is insufficient.

JUDGMENT :

Prakash Chandra Gupta, J.

This appeal has been filed by the appellant/accused person under section 374 of the Code of Criminal Procedure, 1973, being aggrieved by the judgment of conviction and order of sentence dated 9-3-2000 passed by the Sessions Judge, Ratlam, in Sessions Trial No. 98/1998, whereby learned trial Court has convicted the appellant under section 328 of Indian Penal Code sentenced him to undergo Rigorous Imprisonment for 3 years with fine of Rs. 1,000/- and in default of payment of fine to undergo additional R.I. for 2 months.

2. It is an admitted fact that the complainant Omprakash was known to the accused since the year 1983. The appellant used to live in Delhi where he worked in a cloth shop. Smt. Shakuntala is wife of the complainant Omprakash. On 6-3-1998, at around 09:13 PM, the appellant had gone to complainant’s house and asked Shakuntala (PW/2) that had complainant Omprakash returned or not? Shakuntala (PW/2) called her neighbours and made the appellant stay in her house at night. On the next day, Shakuntala (PW/2) sent the appellant to Police station along with Gram Pradhan. On 11-3-1998, Alok Kumar Sharma (PW/5) was posted as SHO Police Station Gautam Buddha Nagar and he had arrested the appellant on the same day.

3. Prosecution story, in brief is that the complainant is resident of Noida City, Police Station Gautam Buddha Nagar, Uttar Pradesh. The appellant lived in Delhi and used to work in a cloth shop. On 4-3-1998, the complainant carrying Rs. 70,000/- cash along with the appellant departed from Delhi to Surat by train. When the train had stopped at railway station, Ratlam, the appellant had offered him milk and banana. After consuming the same, the complainant swooned off. He got conscious after 2 days. Thereafter 2 constables helped him to get into a train going to Delhi. When he came back, he came to know that the appellant had already come. It is alleged that the appellant had made the complainant consume stupefying substance in milk and banana and took his luggage carrying Rs. 70,000/- cash in it. Then on 11-3-1998, the complainant took the appellant to Police Station Sector 24, Noida along with his relative and gave a written complaint (Ex.P/1) on the basis of which report (Ex.P/2) was lodged and case diary was sent to GRP, Ratlam, where FIR (Ex.P/3) was lodged. After completion of investigation, charge-sheet was filed. The matter was committed to the trial Court.

4. Learned trial Court framed charges against the appellant under section 328 of Indian Penal Code. The appellant abjured his guilt and claimed to be tried. In turn, the prosecution examined witnesses namely, Omprakash (PW1), Shakuntala (PW/2), ASI H. L. Yadav (PW/3), SHO GRP Vinay Sharma (PW/4) and SHO Police Station Sector 24, Gautam Buddha Nagar, Noida Alok Kumar Sharma (PW-5) to prove its case. After completion of prosecution evidence, the accused person was examined under section 313 of Criminal Procedure Code. He had taken defence that he has not committed the offence and has falsely been impleaded in the case due to old animosity. Though he has not examined any witness in his defence.

5. Learned counsel for the appellant/accused submits that the appellant has not committed the offence and has falsely been implicated in the case. It is further submitted that the impugned judgment is perverse and bad in law. Learned trial Court has not properly appreciated the evidence available on record. The written complaint was filed 4-5 days belatedly, without any acceptable cause. There is no medical evidence in the case that the appellant got unconscious due to consumption of intoxicating/stupefying substance. No incriminating material was recovered from the possession of the appellant. The wife of the appellant stated that she had sent the appellant on 7-3-1998, while the complainant has mentioned in written complaint (Ex.P/1) that he took the appellant along with his neighbours at police station. Therefore, the prosecution has