Judgment Nirmal Singh, J. 1. This appeal has been directed against the order dated 17.7.1996 passed by learned Additional Sessions Judge, Jagadhri vide which the appellant has been sentenced to undergo R.I. for a period of five years and to pay a fine of Rs. 500/- under Section 307 IPC. In default of payment of fine, he was further directed to undergo R.I. for one month. The appellant is further directed to undergo R.I. for five years under Section 328 IPC. Both the sentences were ordered to run concurrently. 2. The prosecution story in brief is that on 31.7.1993, Ramesh Chand was called by Krishan Chand to have a talk with regard to agricultural land. On this at about 8.30 p.m. Ramesh Chand went to the house of Krishan Chand where Krishan Chand served him with a glass of milk. While taking a sip of the milk, Ramesh Chand felt smell of kerosene oil. He told Krishan Chand about the same and refused to consume the rest of the milk. On this, Krishan Chand added some more sugar in the milk and insisted Ramesh Chand to drink it. Ramesh Chand again took one sip and left the milk as he could not find it tasty. He kept the glass and started for his house. On the way, he felt giddiness and started vomiting and fell unconscious. He was taken to the hospital of Dr. R.K. Gupta at Yamunanagar by his brother Satish Chand. From there, he was shifted to Civil Hospital, Jagadhari. The doctor sent ruqa Exh. PJ to the police. S.I. Des Raj, went to the Civil Hospital, Jagadhari and moved an application Exh. PK before the doctor to know whether Ramesh Chand was fit to make statement. The doctor opined vide Exh. PK/1 that Ramesh Kumar was fit to make statement and that statement Exh. PF was recorded on the basis of which formal FIR Exh. PF/2 was recorded. 3. Krishan Kumar was arrested on 2.8.1993 and made disclosure statement Exh. PB in the presence of Phool Singh, Sarpanch and Puran Singh, Ex-sarpanch. On interrogation, the accused got recovered one vial of Sulphose. The same was taken into possession vide recovery memo Exh. PA. After completion of investigation, challan against the accused was presented in the Court of Illaqa Magistrate. As the case was exclusively triable by the Court of Sessions, it was sent to that Court. On interrogation, the accused got recovered one vial of Sulphose. The same was taken into possession vide recovery memo Exh. PA. After completion of investigation, challan against the accused was presented in the Court of Illaqa Magistrate. As the case was exclusively triable by the Court of Sessions, it was sent to that Court. On commitment, the case was entrusted to the learned Additional Sessions Judge, Jagadhari. The accused was tried under Section 307 read with Section 328 IPC, to which he pleaded not guilty and claimed trial. 4. To prove its case, the prosecution has examined PW-1 Suresh, elder brother of Ramesh Chand, PW-2 Ajaib Singh, a formal witness, PW-3 Puran Chand, PW-4 Devi Dayal, he has prepared the site plan, PW-5 Ramesh Chand, complainant, PW-6 Narain Singh, PW-7 Phool Singh, PW-8 Des Raj, A.S.I. Investigator of the case, PW-9 Dr. Rajbir Singh, who has medico-legally examined Ramesh Chand. Prosecution also tendered into evidence the affidavits of formal witnesses along with the report of F.S.L. and closed its evidence. 5. When the appellant was examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing in the prosecution evidence, he denied simplicitor and alleged false implication. Krishan Chand, appellant pleaded that the present case been registered in order to put pressure on him to withdraw the civil cases pending against Phool Singh who wanted to grab his land. The appellant was called to lead defence. In defence, he did not examine any witness. 6. After hearing the Public Prosecutor, counsel for the appellant and perusing the record, the learned Additional Sessions Judge, Jagadhri convicted and sentenced the appellant as stated in para 1 of the judgment. Aggrieved by which, the present appeals have been preferred. 7. Mr. S.S. Dinarpur, learned counsel for the appellant assailed the judgment of the trial Court on the ground that the learned trial Court has not appreciated the evidence on record in the right perspective. He contended that as per the complainant Ramesh Chand, the appellant has administered Aluminium Phosphide by mixing the same in milk. He further contended that Aluminium Phosphide gives such an despicable and pungent smell that the same cannot be administered to a person under some mis-representation. He pointed out that Aluminium Phosphide has not been received from the house of the appellant. He further contended that Aluminium Phosphide gives such an despicable and pungent smell that the same cannot be administered to a person under some mis-representation. He pointed out that Aluminium Phosphide has not been received from the house of the appellant. As per the prosecution, a plastic bottle of sulphos was recovered from the house of the appellant in the presence of S.I. Des Raj and the same has been taken into possession, but as per the report of Chemical Examiner, no poison was detected in the bottle. He further contended that the sample which has been analysed by the Chemical Examiner was not contained in the plastic bottle but it was in a metallic container. He submitted that in the blood sample of the complainant Ramesh Chand, Aluminium Phosphide was not found. He contended that entire story has been concocted by the Ramesh Chand to grab his land by putting pressure on him to withdraw the civil litigation. He also submitted that appellant has filed a civil suit against Phool Chand, relative of appellant. He contended that appellant is unmarried and he has no close relative in the village and due to that the complainant with the connivance of Phool Chand has concocted the false story and has implicated him. He contended that appellant has no motive to kill the complainant Ramesh Chand. 8. On the other hand, Mr. K.S. Chauhan, learned DAG submitted that the motive is immaterial in a criminal case. He contended that appellant called Ramesh Chand to his house and mixed Aluminium phosphide in the milk and offered the same to Ramesh Chand. He further contended that Aluminium phosphide is such a dangerous poison that if it is given to some one under some misrepresentation and he consumes it, the chances of survival are lean. He submitted that Ramesh Chand vomited in the way to his house, therefore, he survived otherwise he would have died. He pointed out that from the act of the appellant, offence under Section 307 IPC is made out. 9. I have given my thoughtful consideration to the rival contentions of the parties and perused the record. 10. The story putforth by the prosecution is a fairy tale that Ramesh Chand has taken Aluminium Sulphide (Aluminium phosphide ?) under some mis- representation which was mixed in a glass of milk by the appellant Krishan and Ramesh Chand has consumed the same. 10. The story putforth by the prosecution is a fairy tale that Ramesh Chand has taken Aluminium Sulphide (Aluminium phosphide ?) under some mis- representation which was mixed in a glass of milk by the appellant Krishan and Ramesh Chand has consumed the same. 11. As per the report published in the Journal of Forensic Medicine and Toxicology, the physical properties and absorption and results of Aluminium Phosphide Poisoning are as under :- "Aluminium Phosphide (ALP) is a solid fumigant pesticide, and in use as a pesticide since 1940s. In India, it is marketed as tablets of Celphos. Alphos, Quickphos, phostoxin, phosphotext etc. ALP has the advantage of being cheap, efficacious, easy to use and freely available in the market. On coming in contract with moisture, ALP liberates phosphine (PH3) which is toxic to the pests, insects and rodents. Human toxicity which is usually acute, occurs due to the tox (toxic ?) effects of phosphine which is released in the stomach after ingestion of ALP. PH3 is widely absorbed from the gastrointestinal tract. Isolated reports of fatal exposure to phosphine gas have been reported when ALP was used as a grain fumigant for bulk shipment of wheat. Phosphine - Physical properties and absorption : ALP is available in the form of white coloured tablets, each weighing 3 g. Each tablet of Celphos or Quickphos (3.0 g) contains 56% ALP and 44% Ammonium carbonate, and has the capacity to liberate 1.0 g. of PH3. The gases liberated by ALP during its reaction with water are PH3. The chemical reaction is accelerated by the presence of HCl in the stomach. In pure form Phosphine (PH3) a hydrogen phosphide is colourless odorless gas; ALP however has a foul odour (like garlic or decaying fish) due to the presence of substituted phosphines and diphosphines (P2 H4). Phosphine in air reacts with hydroxyl radical and is removed by this mechanism with a half life of 5 to 24 hrs. After fumigation, the non-toxic residues left in the grains are the PHOSPHITE & HYPOPHOSPHITE of Aluminium. In general the residues are below the WHO/FAO recommended permissible levels of 0.1 mg/kg of PH3 for raw cereals which do not lead to any ill effects in humans on consumption. Phosphine after liberation in the stomach is rapidly absorbed from the gastro-intestinal tract by simple diffusion. It is also rapidly absorbed from the lungs after inhalation. In general the residues are below the WHO/FAO recommended permissible levels of 0.1 mg/kg of PH3 for raw cereals which do not lead to any ill effects in humans on consumption. Phosphine after liberation in the stomach is rapidly absorbed from the gastro-intestinal tract by simple diffusion. It is also rapidly absorbed from the lungs after inhalation. After ingestion of ALP, some of the compound is also absorbed along with PH3 and is metabolised in the liver where PH3 is slowly released accounting for the prolongation of symptoms (in one reported case upto 11 days). The absorbed PH3 is oxidised slowly to oxyacids and excreted in the urine as Hypophosphite. It is also excreted in significant amounts in unchanged form through the lungs. "Results : Aluminium phosphide is a lethal poison; in the present study even half a tablet was found to be sufficient to kill an adult. In 96 (87.3%) patients it was ingested with the intention of committing suicide. In the remaining 14 (12.7%) cases, the intent could not be determined as they were brought by the police or relative in a state of coma and died soon thereafter. There was no instance in which the tablets were taken accidentally or had been administered by someone else. The gross autopsy findings are given in Table IV. In 51 (46.36%) subjects intense odour like that of garlic was present at the mouth and hostrils whereas in 76 (69.09%) cases a small amount of blood tinged froth was also seen. In 42 (38.20%) subjects, there was similar smell in the gastric contents, in 8 (7.27%) cases, pieces of aluminium phosphide tablets were also recovered from the stomach." 12. As per the results of Aluminium Sulphide poisoning, there was no instance in which the tablets were taken accidentally or had been administered under some mis-representation. 13. In the instant case, PW-9 Dr. Rajbir Singh, Medical Officer, Civil Hospital, Jagadhari has medically examined Ramesh Chand on 1.8.1993 at 1.25 p.m. and gave the following report :- "Patient came with the complaint of giddiness and vomiting since yesterday. He was conscious, walking and talking, pulse was 84 p.m. regular B.P. 124/88 mmhg. Both pupils were normal and reacting to light normally. There was no abnormal smell of any kind from breath. There was no neurological deficient. CVS-NAD chest NAD. Urine and blood sample taken and sealed. Copy of the MLR is Ex. He was conscious, walking and talking, pulse was 84 p.m. regular B.P. 124/88 mmhg. Both pupils were normal and reacting to light normally. There was no abnormal smell of any kind from breath. There was no neurological deficient. CVS-NAD chest NAD. Urine and blood sample taken and sealed. Copy of the MLR is Ex. PO which bears may signatures. After going through the report of FSL Exh. PH patient might have or might not have consumed Aluminium Phosphide. However, possibility of consuming aluminium phosphide in view of the report Exh. PH cannot be ruled out." 14. In the cross-examination, Dr. Rajbir Singh has deposed that if the patient has consumed aluminium phosphide which has not come into contact with air and moisture then the symptoms would be entirely different than those which I have mentioned in the MLR. If a person takes aluminium phosphide, it immediately produces the symptoms. It is correct that in the report Ex. PH, no poison was detected in the urine. 15. From the above, it is clear that when Ramesh Chand was examined by Dr. Rabjir Singh on the next day, he was absolutely normal. Even if a small portion of Celphos tablet is consumed by someone, even by force, the chances of survival are very rare. 16. The evidence of prosecution witnesses is discrepant on the point that Ramesh Chand remained unconscious and he vomited for the whole night on the day of occurrence i.e. on 31.7.1993. 17. Ramesh Chand, complainant, while appearing as PW-5 has deposed that on 31.7.1993 at 8.30 P.M. he went to the house of Krishan and Krishan served him a glass of milk. While taking the milk, he felt smell of kerosene oil in the milk. Krishan put more sugar in the glass and asked him to take it. Then he took half a glass of milk. He then left for his house. On the way to his house, he started feeling giddiness and fell and became unconscious. His elder brother Suresh took him to the house where he vomited. Then he was taken to hospital of Dr. Ramesh Gupta, Yamunanagar and on the next morning, he was referred to Civil Hospital, Yamunagar where his statement was recorded. When cross-examined, Ramesh Chand has deposed that he did not vomit in the house of the accused. His elder brother Suresh took him to the house where he vomited. Then he was taken to hospital of Dr. Ramesh Gupta, Yamunanagar and on the next morning, he was referred to Civil Hospital, Yamunagar where his statement was recorded. When cross-examined, Ramesh Chand has deposed that he did not vomit in the house of the accused. He further deposed that he vomited in his house and that he remained unconscious right from the time he reached his house till the next day in civil hospital. 18. PW-1 Suresh is the brother of Ramesh Chand. He has deposed in his statement that Ramesh had gone to temple in the village. There Krishan called him at his house and served him milk. Then Ramesh came to the house at about 9 p.m. and told them that Krishan gave him poison in the milk and he complained about the giddiness and slept in the kotha and he came down and fell on the ground. We took him to C.H. Jagadhari in the car of Phool Singh. Then he started vomiting and they gave him lemon juice. 19. PW-7 Phool Singh is the father of Ramesh Chand. He has deposed that he had taken the land of Krishan on lease for 99 years @ Rs. 2000/- per year. One year prior to this occurrence, Ramesh his son came back to the house at 8.30 p.m. in a precarious condition. Suresh was standing on the hand pump. Suresh took Ramesh inside the house. Foam was coming out of his mouth. They took Ramesh on a tractor trolley in the hospital at Yamunanagar but the doctor of private hospital did not admit him. Then he was taken to Civil Hospital, Yamunanagar. 20. In his cross-examination, Phool Singh PW has deposed that Ramesh had vomited in the house 3/4 times. They gave him desi ghee. Ranesh gained consciousness in the civil hospital on the very day. Whereas PW-1 Suresh has deposed that Ramesh did not vomit when he came to their house. Ramesh has also deposed that his elder brother Suresh took him to his house where he vomited. 21. They gave him desi ghee. Ranesh gained consciousness in the civil hospital on the very day. Whereas PW-1 Suresh has deposed that Ramesh did not vomit when he came to their house. Ramesh has also deposed that his elder brother Suresh took him to his house where he vomited. 21. On scrutiny of the statement of Ramesh Chand PW-5, Suresh PW-1 and Phool Singh PW-7 it is crystal clear that this story seems to have been concocted, otherwise the material discrepancy which has come in the statements of these witnesses could not have come even though they have been examined after a long time. As per Ramesh Chand complainant, after taking a glass of milk he started giddiness and on the way to his house he became unconscious and his brother Suresh took him to his house where he vomited. Whereas, as per the evidence of Suresh, Ramesh came home at 9.00 P.M. He told that he was given poison by Krishan and he was feeling giddiness. Ramesh slept in the kotha and came down and fell in the ground. Phool Singh PW-7 has deposed that Ramesh came home at 8.30 P.M. in a precarious condition. Suresh was standing at the hand-pump. Foam was coming out from the mouth of Ramesh. They took him to the doctor. Therefore, it clearly shows that the three material witnesses have given different versions with regard to the condition of Ramesh. There is no doubt that minor discrepancies in the statements of the prosecution witnesses are likely to occur with the lapse of time as the human memory is not a photographic memory. But, in the instant case, the discrepancies are not minor in nature. There are not only discrepancies in the statements of the prosecution witnesses but also the witnesses are giving contradictory version which cannot be believed. 22. The appellant has no motive to kill Ramesh Chand complainant by administering poison. Rather there is a motive on the part of the complainant to lodge a false report after concocting a fairly tale. 23. Phool Chand PW-7 is the father of complainant Ramesh Chand. He had taken the land on lease for 99 years from the appellant for Rs. 2000/- per year. This fact has not been denied by Phool Chand while appearing as PW-7. He has also admitted that there was a civil litigation between the appellant and him. 24. 23. Phool Chand PW-7 is the father of complainant Ramesh Chand. He had taken the land on lease for 99 years from the appellant for Rs. 2000/- per year. This fact has not been denied by Phool Chand while appearing as PW-7. He has also admitted that there was a civil litigation between the appellant and him. 24. Ramesh Chand complainant has admitted in his cross-examination that after retaining 1 acre of land, he had given possession of the remaining land to Krishan without paying any sale consideration. In this way, the complainant party wanted to put pressure upon the appellant for leaving the possession of the land with the complainant party. Under these circumstances, the false implication of the appellant cannot be ruled out. Therefore, the conviction and sentence awarded by the trial Court cannot sustain. 25. For the reasons recorded above, I accept this appeal by giving benefit of doubt to the appellant and acquit him of the charge. The appellant is on bail. His bail bonds and surety bonds stand discharged.