Laxman vs State

Nevaskar, J.—A Challan was submitted against accused Laxmansingh and his companion Jagannath under S. 328 I.P.C. in the Court of Railway Magistrate Indore. The learned Magistrate discharged the accused Jagannath but committed the accused Laxmansingh to the Court of Session, to stand his trial u/s 328 I.P.C. The learned Sessions Judge on trial found him guilty u/s 328 I.P.C. and sentenced him to rigorous Imprisonment for three years. The accused has preferred this appeal against his conviction.

The prosecution case against the accused is that complainant Ramkishan who was a resident of Shamshabad, district Agra, got down at Shujalpur railway station at 10 p.m. by Bhopal-Ujjain train. He was resting in the third class waiting-room of Shujalpur railway station. At that time accused Laxman and his companion Jagannath were sitting on a bench in the same waiting room. It is said that Jagannath asked Laxman to give ''Mahabir''s Prasad'' to the complainant Ramkishan. Thereupon the accused Laxman gave some sweets to Ramkishan. Sometime after Ramkishan had taken the sweets, he began to feel giddy. Ramkishan thereupon went to the Assistant Station Master on duty and told him that he had been given something to eat by two persons. He, thereafter, returned to his bed. At that time, it is said, the accused Laxman put his hand into the pocket of the complainant but some people came there and the accused tried to run away but was pursued and caught by members of me station staff. The Assistant Station Master sent Ramkishan, the victim, and accused Laxman and Jagannath to the Police Station Shujalpur and lodged the First Information Report. Both the accused Laxman and Jagannath were thereupon formally arrested. Ramkishan was treated by the medical officer Shujalpur; his stomach-wash was sent to the chemical analyser, Maharaja Yeshwantrao Hospital, Indore, Mr. Jaivant V. Gaikwad. The report indicated that the stomach contents of Ramkishan of that day had some pieces of Dhatura-seeds contained in it. On these facts the accused was prosecuted. The evidence against the accused, as appears from the judgment of the learned Sessions Judge, was regarding the conduct of the accused in runing away immediately after the incident, regarding the existence, of pieces of Dhatura-seeds in the stomach contents of Ramkishan and regarding the recovery of Dhatura-seeds from a place by tie side of a river at a distance of three miles from the place of the incident, and besides there was the oral testimony of two witnesses complainant Ramkishan and P.W. 10 Gulabchand Complainant. In his statement, speaks of the accused Laxman having given sweets as Mahabir''s Prasad at the instance of his companion Jagannath. He further says that after about 20 or 25 minutes, he began to feel giddiness. Thereupon he made a complaint to the Assistant Station Master against the accused and his companion. According to him, thereafter he returned to his bed which he had spread in the waiting-room. At that time accused Laxman put his hand into the pocket of the complainant; two or four parsons in the neighbourhood were awakens finding this the accused tried to run away but was pursued and caught. According to the complainant, he had a gold ring and there were about Rs. 35/- worth notes in his pocket. In the cross-examination attention of the complainant was drawn to his statement to the police Ex. D-1 A to A wherein he bad stated that Mahabir''s Prasad was given by the accused to three or four more passengers also. In the police statement the complainant had also said that the person who had put the hand into his pocket had a bald-head. In his statement in the Committing Magistrate''s Court, it appears that he changed his position and said that it was Jagannath who had put his hand into pocket. In the Court of Session, he reverted to his original position that it was this accused who had put his hand into his pocket. P.W. 10 Gulabchand is Mahajan by caste claiming to be a cultivator residing in Shujalpur Mandi. According to him he had found the accused Laxman a day prior to the incident on the river-bank crushing something. On the nest day he found the same person along with the police at the same place. The witness did not know the accused from before nor was any identification parade held in order to identify this accused at the instance of the witness, if the, fact which the witness deposed was of material assistance to the prosecution. The evidence of the chemical analyser Mr. Jaivant vs. Gaikwad did establish the fact that the stomach contents of the complainant of the date of the incident bad pieces of Dhatura poison in it. Two material witnesses were examined by the prosecution with regard to the conduct of the accused in running away immediately after the incident. These witnesses are P.W. 2 Harkishan and P.W. 3 Khairatikhan. According to these witnesses, when the complaint was made by Ramkishna to the Assistant Station Master, the latter asked them to find out as to who were the culprits. Harkishan and Khairatikhan went to the waiting room side. At that time they found the accused trying to run away. They chased him and caught hold of him. The learned Sessions Judge considered the conduct of the accused in trying to run away when a complaint was made by the complainant Ramkishan to the assistant station master as a material piece of evidence. He also relied upon the circumstance with regard to the recovery of Dhatura seed from a place by the side of the river at a distance of three miles from the place of the incident, as material. He relied upon the statement of P.W. 10 Gulabchand who is said to have seen the accused a day prior to the incident, crushing something on the river bank. Lastly be took into account the statement of the chemical analyser with regard to the stomach contents of the complainant of that day. On consideration of all these circumstances he held the case against the accused established beyond reasonable doubt. He therefore convicted him as aforesaid.

The question for consideration in this appeal is as to whether the conclusions arrived at by the learned Sessions Judge are correct. In order to consider the question of fact involved in this case, it is necessary to consider the ingredients of offence u/s 328. This section leads as follows:--

Whoever administers to or causes to be take 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 to be 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.

It is plain from this section that--(1) the accused must administer the complainant any poison or stupefying, intoxicating or unwholesome drug or other thing; (2) this he must do with intent to cause hurt to such person of with intent to commit or facilitate the commission of an offence; or (3) with knowledge that it is likely that he will there by cause hurt to the complainant. What is necessary to be proved is the administering of poison or other stupefying, intoxicating or other unwholesome drug. For this purpose it roust be established that the accused knew what he was administering and must do it with necessary intent or knowledge as indicated in the section. In the present case as regards the recovery of Dhatura-seeds from the bank of the river, this has hardly got any criminal significance against the accused. The place at a distance of three miles from the place of incident on the bank of the river nearby could not be considered to be a material fact of criminal significance as being specially within the knowledge of the accused. The recovery of Dhatura-seeds from that place by taking the accused there has absolutely no value. The evidence of P.W. 10 Gulabchand is also worthless. The witness never knew the accused before, there was no identification parade. According to the witness on that day he found a person with a "Safa" crushing something and on the next day he found him with the police at about 4 or 5 P.M. it is difficult to believe that the witness who might have casually seen somebody crushing something on the bank of the river while passing, Could remember and identified the person whom he had never seen before. At any rate if that matter was considered materia) for the purpose of the prosecution, the prosecution ought to have held an identification parade in order to lend assurance to the fact of identification of the accused through this witness. Both these pieces of evidence relied upon by the learned Sessions Judge do not deserve, according to my opinion, any credence. The only evidence that Is against the accused consists of two pieces of circumstantial evidence; v.z. (1) that when the complaint was made by the complainant to the assistant station master of the accused and his companion having given him something which caused him to feel giddy, the accused tried to run away (2) recovery of pieces of Dhatura-Seeds from the stomach contents of the complainant of that day.

AS regards this alleged conduct, the complainant''s version is that after he complained to the assistant station master, he returned to his bed. The accused then tried to put his hand into his pocket which was seen by three or four persons in the neighbourhood. It is at that stage that the accused tried to run away. The statement given by two members of the station-staff, Harikishan and Khairatikhan is that when the assistant station master asked them to find out who the culprits were, they went hurriedly to the side of the waiting-room when the accused was found to be running away. It may be that when these members of the station staff wanted to catch-hold of the accused, he in order to escape from an embarrassing situation, might have tried to escape. But from that circumstance not much can be made. As regards second circumstance, the complainant no doubt and that he had taken his meals in the morning and that thereafter he too nothing until he was given Mahabir''s Prasad by the accused, bat the matter entirely rested on his memory. Then no portion of the ''Prasad,'' said to hare been given by the accused to the complainant, has been recovered in order to lend assurance to the feet that is was this which contained pieces of Dhatura-seeds. Outwardly what was given by the accused to the complainant was some sweets. There is no-direct evidence to indicate that the sweets contained Dhatura-seeds. Moreover amusing that the sweets contained some pieces of Dhatura-seeds, there is no evidence to indicate that the accused had knowledge of it. There are also conflicting statements of the complaint regarding the alleged conduct of the accused in posting hand into his pocket. He changed his statement three times. Once he stated to the police that it was the person with held-head who bad put his hand into his pocket. Second time he said that the earlier statement was wrong and it was Jagannath who had put his hand into his pocket, and in the Court of Session he reverted to the original version, and stated that it was the accused who had put his hand into his pocket. Having regard to the entire evidence, it is difficult to say that the case has been proved against the accused beyond reasonable doubt. All that is proved in the case is that some sweets-were given by the accused to the complainant and that the stomach-contests of the complainant of that day contained pieces of Dhatura-seeds, From these circumstances alone it is difficult to say that the accused administered Dhatura with intent to facilitate the commission of theft as is suggested by, the prosecution. There is no evidence worth the name to indicate constituent''s of the sweets or knowledge of the accused that they contained Dhatura pieces. His conduct in trying to escape under tire circumstances cannot be said to be decisive to point out to his guilt. In order that a person can be convicted on the basis of circumstantial evidence that evidence should be so complete as not to give any room for the least doubt about the guilt. It must lead to one and the only inference that the accused is guilty of the offence with which he is charged. It may be that the complainant bona fide suspected that the accused had given him some intoxicating poisonous substance. It may be that the subsequent discovery of places of Dhatura poison may have confirmed that suspicion. But with all that it cannot be said that it went beyond the stage of suspicion it is well established as held by Their Lordships of the Privy Council in AIR 1946 38 (Privy Council) that more suspicion is not proof. The conviction of the accused, therefore, cannot stand. It is hereby set aside and the accused is acquitted. He shall be set at liberty if he is not required in any other case.