M.R.VERMA,J. - (1.) This appeal has been preferred by the appellant -convict -accused (hereafter referred to as the accused1) against the judgment dated 21.9.2004 passed by the learned Sessions Judge, Kullu whereby the accused has been convicted under Section 328 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for four years and fine of Rs.5,000/ -and in default of payment of fine to undergo further imprisonment for six months.
(2.) Case of the prosecution briefly stated is that complainant Gullu Devi (PW -3), a widow and issueless women, resides alone in her house in village Barman Behar. On 2.11.2003 at 8. p.m. the accused came to her house and stated that his relations also resides in the vicinity of PW -3. He was informed by PW -3 that she had pain in her knees and the accused revealed that he was also a victim of the same disease and that he was having some medicine for treatment of the disease and offered 7 -8 green coloured pills to PW -3 and advised her to take all the pills with water. After taking the pills, PW -3 became unconscious and had to be removed to the hospital at Kullu where she regained consciousness on the next day. It was then found that the golden ornaments, i.e. one pair of ear -rings of 20 Kundus (small earrings) of gold; which she was wearing, were missing. She was discharged from the hospital on 7.11.2003. In the meanwhile, Purkhu (PW -1) had already made a complaint ExtPW -1/A to the police. On 8.11.2003 when Sub Inspector Tameshwar (PW -8) was present in the village for the purpose of enquiring into the complaint, Ext.PW -1/A, he recorded the statement of PW -3 Ext.P -3/A on the basis of which formal FIR Ext.PW -9/A was recorded. As per the contents of Ext.PW -3/A, it was also alleged that a sum of Rs. 7,000/ - two nose -pins of gold, pyle, Ghumni and Chooris were also found missing from the house of PW -3 and that she could identify the person who had come to her house, as aforesaid. During investigation, wearing apparels i.e. Salwar and a shirt of PW -3 were taken in possession vide Memo. Ext.PW -1/B. The copies of the record relating to her treatment in the hospital and MLC Ext.PW -5/B regarding her medical examination were also taken in possession. The wearing apparels of PW -3 taken in possession, her Pyjami and slides of her vaginal smear taken at the time of her medical examination were sent for chemical analysis and vide report Ext. PA from the Forensic Science Laboratory nothing incriminating was found on Salwar, shirt and Pyjami. However, some blood traces incapable of further tests were found in the vaginal smear. It was also found during investigation that the accused had been coming to the village and staying in the house of Pradeep Kumar and that said Pradeep Kumar was also a privy to the commission of the offences. On completion of investigation, charge sheet was submitted against the accused and said Pradeep Kumar and they came to be tried , by the learned Session Judge, Kullu on a charge under Section 120 -B, 328 and 380 of the Indian Penal Code against said accused and a charge under Section 120 -B and 212 of the Indian Penal Code against the Pradeep. To prove the charges against them, prosecution examined 11 witnesses. Statements of the accused and said Pradeep Kumar were recorded under Section 313 Cr.P.C. wherein they denied the case of the prosecution as a whole and claimed to be innocent. They, however, did not lead any defence evidence.
(3.) On appreciation of the evidence on record, the trial Court held the accused guilty of the commission of an offence under Section 328, I PC and also held that the remaining heads of charge against the accused and all the charges against Pradeep Kumar were not proved. Therefore, Pradeep Kumar was acquitted and the accused was also acquitted of the heads of charge Sections 120 -B and 380, . IPC. The accused was however, convicted and sentenced under Section 328, IPC as aforesaid. Hence, this appeal by the accused.;