Lipa Mohli And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Two persons were put on trial in S.T No.97 of 1990/60(A) of 1994 on the charge of administering poisonous wine to Ram Prasad Mahto @ Ram Prasad Mohali.

Both the accused persons, the appellants, have been convicted under section 302/34 I.P.C and sentenced to R.I for life for the said offence.

By an order dated 09.10.2002 the appellant, namely, Hakim Lal Gope was granted bail and vide order dated 12.03.2003 the appellant, namely, Lipa Mohli has been granted bail by this Court.

On the basis of the statement of Ram Prasad Mahto @ Ram Prasad Mohali recorded on 28.08.1986, Nawadih P.S Case No.50 of 1986 was registered on 02.09.1986 under section 328/302 I.P.C against the appellants.

During his treatment at P.M.C.H, Dhanbad, Ram Prasad Mohali died on 28.08.1986.

The post-mortem examination report was tendered in evidence under section 294 Cr.P.C, without objection.

During the trial, the prosecution has examined six witnesses; two sons of the deceased, namely, Shankar Prasad Mahli and Mahendra Prasad Mahli and his dauughter-in-law, namely, Pyari Devi have been examined by the prosecution.

Dr. Nand Kishor Mishra who has conducted the post-mortem examination has observed 200 cc of brownish fluid in the stomach of the deceased. He has not rendered any opinion on the cause of death of Ram Prasad Mohali, however, viscera of the deceased was preserved and sent for FSL report. The viscera report reads like this:

"Methyl Alcohol along with Ethyl Alcohol was detected in the dark-brown fluid described above. Methyl Alcohol is highly poisonous whereas Ethyl Alcohol is the intoxicating ingredient of all alcoholic beverages."

Sri B.M. Tripathi, the learned Senior counsel for the appellants submits that ; (i) there is no certificate by the doctor on condition of Ram Prasad Mohali, (ii) the investigating officer has not been examined, (iii) the important witnesses were not produced during the trial, (iv) the doctors who have treated Ram Prasad Mohali have not been examined, and (v) what treatment was given to Ram Prasad Mohali has not been disclosed by the prosecution. Contention raised by the learned Senior counsel is that the appellants have suffered serious prejudice and the charge under section 302/34 I.P.C against the appellants has not been proved.

Referring to the evidence of the prosecution witnesses and FSL report on viscera of the deceased, Mr. Arun Kumar Pandey, the learned A.P.P submits that the prosecution has conclusively proved the case against both the accused persons under section 302/34 I.P.C.

In his statement recorded on 28.08.1986, Ram Prasad Mohali has stated that he had drinks together with Lipa Mohli and Hakim Lal Gope, the appellants. He has further stated that he had asked his son, namely, Mahedra Prasad Mahli to bring more wine from the shop of Chotu. After having drinks together, according to the informant, Lipa Mohli took out one small bottle of wine from his pocket and asked him to drink. The informant, since deceased, says that since he was in drunken state he took wine from the bottle given by Lipa Mohli.

The daughter-in-law of the deceased, namely, Pyari Devi-P.W 1 has deposed in the court that both the appellants had forced her father-in-law to drink something spurious which was smelling like kerosene oil. The son of the deceased, namely, Shankar Prasad Mahli-P.W 3 has also stated that both the appellants had forced his father to drink liquor which was kept by Hakim Lal Gope. P.W 3 has, thus, contradicted the statement of the deceased, who has stated that the accused persons forced him to take the drink offered to him by Lipa Mohli. The name of the accused who has offered drink in the bottle is also different according to the deceased and his son. P.W 1 has stated that she gave a glass to the police in which her father-in-law had taken drink. The FSL report of the glass seized by the police, vide Exhibit-B records that no metallic, alkaloidal, glycosidal, pesticidal or volatile poison could be detected in the washings of stainless steel tumbler contained in paper packet marked 'A' and glass phial contained in paper packet marked 'B'.

In his statement recorded on 28.08.1986, Ram Prasad Mohali has stated that after he took wine offered by Lipa Mohli he felt dizziness and fell on the ground and thereafter he was taken to Giridih where he was treated by Dr. Hari Prasad Gope and Rohan Mahto. He has further stated that thereafter his condition deteriorated. None of the prosecution witnesses has proved this fact that at the time when Ram Prasad Mohali was treated at Giridih he was conscious. All that the prosecution has tried to prove is that the deceased was in his sense when he gave his statement to the police. It has come in the evidence that the deceased was heavily drunk. From the statement of the deceased recorded on 28.08.1986 all that can be inferred is that he had suspicion on the drink offered by Lipa Mohli, but then, the prosecution witnesses have contradicted each other on this aspect. Contrary to what the informant himself has said, both P.W 1 and P.W 3 have stated that it was Hakim Lal Gope who had offered liquor to Ram Prasad Mohali.

True, it is not a universal rule that in every case the dying declaration must be supported by a certification of the doctor, but the dying declaration must inspire confidence. The manner in which the prosecution witnesses have narrated the story does not corroborate the statement of Ram Prasad Mohali recorded on 28.08.1986. Dr. Nand Kishor Mishra-P.W 5 has not found any external injury on Ram Prasad Mohali. The medical evidence contradicts the evidence of P.W 1 and P.W 3 who have spoken of forcible administration of drink to Ram Prasad Mohali. The investigating officer and the doctors who have treated Ram Prasad Mohali at Giridih, however, were not examined during the trial. And, above all, the prosecution has failed to establish that the drink taken by the deceased before he drank the wine offered by one of the accused persons was not poisonous. In these facts, the FSL report, vide Exhibit-5, that is, the viscera report does not establish that the drink offered by one of the accused persons was poisonous.

From the evidences led during the trial; (i) FSL report on Exhibit-A, (ii) contradiction in the medical evidence and the ocular evidence, (iii) statement of Ram Prasad Mohali recorded on 28.08.1986 under suspicious circumstance and non-examination of the investigating officer and other important witnesses, we find that the prosecution has failed to establish the charge under section 302/34 I.P.C against the appellants.

In view of the above, the appellants, namely, Lipa Mohli and Hakim Lal Gope are acquitted of the charges framed against them.

Accordingly, the judgment of conviction dated 31.05.2001 and the order of sentence of R.I for life dated 1.06.2001 under section 302/34 I.P.C passed by the learned Addl. Sessions Judge-I, Bermo at Tenughat in Sessions Trial No.97 of 1990 /60(A)/1994 against the appellants are set-aside.

Both the appellants, who are on bail, would stand discharged of liability of the bail-bonds furnished by them.

In the result, Criminal Appeal (D.B) No.194 of 2001 is allowed.

Let a copy of the judgment be transmitted to the court concerned through 'Fax'.

Let lower-court records be sent to the court concerned forthwith.