Ashok Kumar Prasad vs State Of Jharkhand

The sole appellant has preferred this appeal being aggrieved and dissatisfied by the judgment of conviction and order of sentence dated 24.03.2004

passed by Ist Addl. Sessions Judge, Dhanbad in S.T. No.310 of 2002 whereby the appellant has been convicted for the offence U/s 328 IPC and has

been sentenced to undergo R.I for Seven years with a fine of Rs. 2000/- and he has been further convicted U/s 379 IPC and sentenced to undergo

R.I for two years and in default of payment of fine, he has further to undergo S.I for three months.

The appeal was filed on 29.04.2004 and on 07.05.2004, it was admitted for hearing, LCR was called for and during pendency of this appeal, the

appellant was admitted on bail.

The prosecution case, in brief, is that the fardbeyan of the informant-Komal Harijan was recorded by A.S.I. Y.P.Singh, G.R.P. Dhanbad on

03.10.2001 alleging therein that on 01.10.2001 he came to Dhanbad Station and purchased ticket from booking counter for going to his native place

Dulhepur and waiting for train at plat form no.3. It is further alleged that an unknown person came there and asked about his destination, he replied

that he has to go to Mau. He also asked about the destination of that man, he replied that he has to go to Mohania. He asked him to sit there as he has

to go to meet with the T.T. After some time the said person came and gave biscuits to him. It alleged that when the informant ate the Biscuit, he

became senseless. The informant further alleged that unknown person took Rs. 7000/- which was kept in a plastic bag alongwith cold oil and frock

which was purchased for his daughter. Thereafter, the accused persons fled away.

On the basis of the aforesaid allegation Dhanbad (Rail) P.S.case no.114/2001 dated 03.10.2001 U/s 328/379 IPC was instituted against unknown

persons.

The I.O after investigation submitted final form no.140/2001 dated 29.12.2001 U/s 328,379/34 IPC.

The case was committed to the court of Sessions, which was numbered as S.T. No.310/2002 and charges had been framed U/s 328,379 IPC and

the appellant was put on trial.

The prosecution, in support of its case, has examined altogether 10 witnesses. P.W.1 is Ramdeo Harijan, P.W.2 is Satyanarayan Prasad, P.W.3 is

Sunil Pall, P.W 4 is Dr. Renu Bala, P.W.5 is Dr. Sudhir Kumar Singh, P.W.6 is Dr. R.K.Agrawal, P.W.7 is Komal Harijan, who is informant of this

case, P.W.8 is Yogendra Prasad Singh, P.W.9 is Dhirendra Kumar Mishra, J.M. At Dhanbad, P.W.10 is Mohan Sharma, who is I.O of this case.

Ext.1 is signature of P.W.2 on the seizure list, Ext. 1/1 is signatory of P.W.3 on the seizure list, Ext. ½ is the signature of Dr. S.K.Singh on the

letter no.1758 dt. 06.10.2001, Ext. 2 is the report of Dr. S.K.Singh dated 06.10.2001, Ext. 3 is the report of Dr. R.K.Agrawal, Ext.4 is the fard-beyan,

Ext. 4/1 is the Endorsement on the Fardbeyan, Ext. 5 is the Formal FIR, Ext.6 to 6/3 are four seizure lists and Ext.7 is the T.I.P. Chart.

P.W.7 Komal Harijan is the informant of this case. He in his examination-in-chief has deposed that the occurrence is of 1 ½ years back, when he

was present at platform no.3 of Dhanbad Station, one person came and made some query with him and after some time, he gave him Biscuit. After

eating the Biscuit, he became senseless. When he got sense, he found himself in Railway Hospital. Thereafter, he gave his statement that Rs. 1100/-

kept in his pocket, Rs. 7000/- kept in a Bag alongwith oil, Cloth, soap etc. were stolen away alongwith pass book and Identity Card. It is stated that

police recovered Rs. 1100/- from the accused-appellant and identified the accused-appellant in the dock. In the cross-examination at para-9, he has

stated that he was suffering from eye disease since 6-7 years. In para-10 he had identified the accused.

Learned counsel for the appellant has submitted that in the TIP held in the jail, he identified the accused person but in the dock, he could not

identify the accused. So there is difference of version of the informant and hence, the same cannot be relied upon.

P.W.1 Ram Deb Harijan has supported the prosecution case and stated that he has not seen the occurrence from his own eye. P.W.2

Satyanarayan Prasad is seizure list witness but he has been declared hostile. P.W.3 Sunil Pal is also a seizure list witness and has been declared

hostile.

P.W.4 Dr. Renu Bala is formal witness and has stated that on 06.10.2001, she was on leave and Dr. S.K.Singh, Professror H.O.D of Medicines

was the Incharge in my place on the post of Superintendent o P.M.C.H. Dhanbad and the report prepared in my office which bears signature of Dr.

S.K.Singh and she identified the signature of Dr. S.K.Singh, which is marked as Ext. ½..

P.W.5 is Dr. Sudhir Kr. Singh,who in his examination in chief has stated that on 06.10.2001 he was posted at PMCH and on that date Dhanbad

Police brought Narendra Tiwary, Dinesh Giri, Manoj Kumar and Ashok Kumar Prasad ( appellant) for medical examination and from his possession

Activon-2 mg 4 tablets and Larpose-2 mg 6 tablets was recovered which is used as anti depression and after taking said medicine a person become

unconscious. In cross examination, he has deposed at para-4 that the seized medicine was not before him when he was deposing in the court.

P.W.6 Dr. R.K.Agarwal, who examined the informant ( P.W.7) on 18.10.2001 and found that eye was normal, nothing abnormal detected. Gastric

lavage done and sent for forensic lab examination. The report is marked as Ext. 3. He has further stated that the nature of poison can be ascertained

after FSL report is received. This witness has categorically stated that he can not say what poison was administered to P.W.7.

P.W.8 is the I.O of this case and he has stated that on 01.10.2001 he received information that one person is lying at platform no. 2/3, of Dhanbad

Railway station, he went there and sent him to hospital. On 03.10.2001 when the person become conscious, he recorded his fardbeyan. Accordingly,

Dhanbad Rail P.S.case no.114/2001 dated 03.10.2001 was instituted U/s 328,379 IPC.

P.W.9 Dhirendra Kumar Mishra, J.M. Ist Class, Dhanbad,who conducted the TIP of the informant, which was marked as Ext.7.

P.W.10 is Mohan Sharma,I.O of this case. He has deposed that he had obtained the criminal antecedent report of the accused from the concerned

P.S.which shows that the appellant is also involved in Chapra GRPS case no.27/2000. He has further deposed that he also received medical report of

the informant from PMCH in which Doctor found the case of suspected poisoning and on completion of investigation, he submitted the charge sheet.

He also identified the appellant in dock.

Learned counsel for the appellant while assailing the judgment has submitted that the appellant has been held guilty U/s 328 IPC and in order to

prove the guilt of the accused under the aforesaid section, the prosecution must have to prove that the person who supposed to be hurt by

administering poison or unwholesome drug with intent to cause hurt or commit to death.

In the instant case, some medicines were seized from the possessions of the appellant but it was never sent to FSL of its chemical examination nor

the vomit was taken and sent to FSL for its examination and hence, it cannot be established that the appellant has administered poison to the informant

( P.W.7).

All the three doctors have been examined but none them has stated any thing about the nature of poison. P.W.6 Dr. R.K.Agarwal, who had

examined the informant had conclusively opined that some poisonous substance was administered to P.W.7. So it was submitted tat the prosecution

has failed to prove its case beyond all reasonable doubts.

On the other hand, learned Addl.P.P has produced the evidence of P.W.5 in support of its case.

Further, it is submitted that the appellant was also held guilty U/s 379 IPC, which provides punishment for theft. In the instant case, it is alleged

that the police has recovered Rs. 1100/- from the accused-appellant but the same was not in TIP and the informant-P. W.7 has filed to identify the

accused in dock.

Taking all these facts, it is submitted that the prosecution has failed to prove its case beyond all reasonable doubts.

After hearing learned counsel for the parties and also going through the evidence both oral and documentary, I find force in the version of the

appellant that neither the medicines recovered from the possession of the accused-appellant were sent to FSL nor the vomit of the informant was

taken and sent to the FSL and the doctor who examined the informant could not identify the nature of the poison which was said administered to the

informant and the informant could not identify the accused-appellant in the dock. So the prosecution has failed to prove its case beyond all reasonable

doubts.

In the result, this appeal is allowed and the impugned judgment of conviction and order of sentence dated 24.03.2004 passed by Ist Addl. Sessions

Judge, Dhanbad in S.T. No.310 of 2002 is, hereby, set aside. The appellant is discharged from the liability of his bail bonds.