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2009 DIGILAW 134 (JHR)

Abdul Hassan v. State of Bihar

2009-01-28

D.K.SINHA

body2009
JUDGMENT :- The sole appellant Abdul Hussan has challenged his conviction recorded under Sections 328 and 379 of the 2 Indian Penal Code by the 3rd Additional Sessions Judge, Dhanbad in S.T. No. 220 of 1992 whereby the appellant was sentenced to undergo rigorous imprisonment for five years and two years respectively on each count. 2. The prosecution story in short was that on 14-1-1992 at about 8 p.m. while the in formant Azmat Khan along with his cousin (brother) Javed Khan was waiting for Howrah bound train at platform No.1 of Dhanbad Railway Station. an unknown old man aged about 50/55 years claded in Dhoti and Kurta with blanket wrapped on body with his frontal teeth broken appeared before them and inquired from the informant as to where he was about to go, to which his cousin apprised the stranger that they were about to go to Howrah and thereafter all the three came at the Tea stall where the informant offered and the said old man accepted the tea as offered by him. After sometime the old man also brought a cup of tea and biscuits for the informant and his brother. When the informant refused the offer, the stranger reminded that as he had accepted their tea and that as he was a driver in the railway. he would take them to Horwah without ticket. Being tempted by such offer the informant and his brother both took tea and biscuits offered by the stranger old man. Meanwhile the stranger suggested that as the train was 20 minutes late so they should await it by sitting in a static bogie on the different track. Pursuant to such suggestion both the informant and his cousin boarded a static bogie but after some time they felt giddiness and became unconscious. The informant found himself at the D.V.C. hospital Chandra-pura and also his cousin, when he gained his senses. Both were treated at the hospital. The informant alleged that on search he found Rs. 900/missing whereas Rs. 600/- and a HMT Gautam wrist watch were found removed from the possession of his cousin. The informant claimed that the stranger old man served tea and biscuit to them after mixing some intoxicant, as a result of which they became unconscious and taking advantage of the situation, the stranger old man escaped with their belongings. 900/missing whereas Rs. 600/- and a HMT Gautam wrist watch were found removed from the possession of his cousin. The informant claimed that the stranger old man served tea and biscuit to them after mixing some intoxicant, as a result of which they became unconscious and taking advantage of the situation, the stranger old man escaped with their belongings. The occurrence as alleged took place at about 8 p.m. on 14-1-1992 but the case was instituted on 16-1-1992 vide Dhanbad G.R.P.S. Case No.4 of 1992 on the statement of the informant recorded on 15-1-1992 at about 19 hours at D.V.C. hospital. Chandra-pura. In course of investigation and on identification of the informant, the appellant was apprehended by the police at Dhanbad Railway Station itself and the police submitted charge sheet against him under Sections 328 and 379 of the Indian Penal Code and the appellant was put on trial, convicted and accordingly sentenced as referred to herein above which is the subject matter of appeal. 3. The learned counsel for the appellant assailed the judgment impugned by submitting that the trial Court grossly erred by not taking into consideration that the cousin brother of the informant, who was also a victim of the alleged occurrence; was withheld from the trial Court whose statement was having corroborative value. The allegation of administering intoxicant by mixing it in the tea and biscuit could not be substantiated by the medical evidence except the suspicion raised by the Doctor in course of treatment of the victims but no medical evidence could be produced as to the nature of the treatment of the diagnosed ailment and medicine administered in course of their treatment. Even the sample of their mouth wash was not sent to Forensic Science Laboratory to find out its nature and its impact on human bodies. Similarly it could not be established except the presumption that the appellant had removed the belongings of the informant and his cousin. The prosecution even failed to seize any biscuit or any other incriminating material or medicine from the possession of the appellant on his arrest except some medicines but the prosecution failed to connect in any manner that the medicines which were seized from the possession of the appellant were served upon the informant and his cousin which caused giddiness and ultimately they became unconscious. 4. 4. The learned counsel finally submitted by pointing out the contradiction between the statement of the informant and the Investigating Officer on material particulars. 5. On the other hand the learned Addl. Public Prosecutor opposed the contention by submitting that the charge framed against the appellant under Sections 328 and 379 of the Indian Penal Code were well ' proved by the prosecution and the trial Judge after meticulously adjudging the entire circumstances and appreciating the evidence produced on the record against the appellant and having been satisfied with the testimony of the informant, convicted the appellant. The informant had every reason and occasion to identify the appellant as the appellant after mixing with him and obtaining his confidence by accepting their tea and tempting the informant and his cousin that he would take them to Howrah free on rail. On such allurement the informant and his cousin accepted biscuit and a cup of tea respectively offered by the appellant without anticipating foul play and they became unconscious and gained their senses on subsequent date at the D.V.C. hospital. Chandrapura during treatment where the statement of the informant was recorded and it was forwarded to the Dhanbad GRP (Government Railway Police) where the police case was registered. The informant testified in the trial Court that he spotted and identified the appellant at the Dhanbad Railway Station on 17-1-1992 where he was found sitting with a woman and children. The identification of the appellant at the railway station as also in the trial Court was the natural conduct of the informant who was the victim of the circumstances at the hands of the appellant and there was no occasion for the informant P.W.1 Azmat Khan to implicate the appellant falsely as neither of the two was known to each other nor they belong to a similar place or living in the neighbouring village. Nevertheless, on search of the person of the appellant several medicines including the medicines used in sedation, spirits and other articles were recovered to which seizure list was prepared and the witnesses P.W.2 and P.W.3 put their signature on the seizure list. Admittedly the articles seized from the possession of the appellant were sent to the Forensic Science Laboratory but the report could not be received before submission of the chargesheet. Admittedly the articles seized from the possession of the appellant were sent to the Forensic Science Laboratory but the report could not be received before submission of the chargesheet. Finally the learned A. P. P. submitted that the informant (P.W.1) identified the appellant after occurrence at the platform on 17-1-1992 and again in the dock during his statement in the trial Court. The judgment of the trial Court is well discussed. reasoned and convincing which do not call for interference and therefore, the trial Court had every reason to convict the appellant. 6. Regard being had to the facts and circumstances of the case, the charges against the appellant was framed under Sections 328 and 379 of the Indian Penal Code and after trial, the appellant was convicted on both counts. The specific allegation against the appellant was that he served tea and biscuit by mixing intoxicant/poison to the informant and his cousin (brother) at the platform of Dhanbad Railway Station and pursuaded both of them to a static vacant bogie where they became unconscious and when they regained their sense at the DVC hospital at Chandrapura after treatment on the subsequent day on 15-1-1992. both of them found missing of Rs. 900/- and Rs.600/- and a wrist watch from the wrist of his cousin and therefore, the informant P.W.1 Azmat Khan had no alternative except to believe that it was none other than the appellant who had stealthily removed cash dishonestly from his possession and also from the possession of his cousin thereby putting wrongful loss to them. The wrist watch of the cousin was also found removed. 7. I find that the prosecution failed to produce any medical report on the record of the Forensic Science Laboratory that the mouth wash of the informant or his brother contained intoxicant substance, sufficient to cause sedation if administered in required quantity. P.W. 5 Dr. Purnendu Sarkar had simply presumed in his testimony of the case of poisoning and the witness proved the discharge slips of the victims. In such a situation of suspected case of poisoning the burden is heavy upon the prosecution to prove conclusively that poison or intoxicant was administered to the victim. The treatment of the victims was made at the D.V.C. hospital. Chandrapura in a slip shod manner and no prescription was prepared diagnosing the nature of ailment and the treatment. In such a situation of suspected case of poisoning the burden is heavy upon the prosecution to prove conclusively that poison or intoxicant was administered to the victim. The treatment of the victims was made at the D.V.C. hospital. Chandrapura in a slip shod manner and no prescription was prepared diagnosing the nature of ailment and the treatment. In that manner I find that the prosecution failed to prove that any poising or any stupefying, intoxicating or unwholesome drug was administered to the P.W.1 with the intent to cause hurt so as to attract charge under Section 328 of the Indian Penal Code. 8. Similarly. I find that the prosecution failed to establish nexus of the appellant with the cash amount of the P.W. 1 and the cash as well as the wrist watch of the cousin of the P.W.1 informant so as to establish charge under Section 379 of the Indian Penal Code except the circumstances and presumption against the appellant as the prosecution failed to prove that the appellant was thereby wrongful gainer. The P.W.1 informant in his testimony did not claim having seen the appellant taking' away cash from his possession. The prosecution even failed to correlate that the medicines recovered from the possession of the appellant as per seizure list were used against the informant P.W.1 and his cousin so as to draw inference against the appellant to the alleged charge under Section 328 of the Indian Penal Code. 9. In that manner I find that the prosecution evidence adducted, before the trial Court could not conclusively prove the charge under Sections 328 and 379 of the Indian Penal Code against the appellant and a reasonable doubt is created as to his complicity for the alleged charge and for that the appellant deserves benefit. 10. In the circumstances, I find merit in this appeal accordingly allowed. The appellant Abdul Hassan is acquitted under benefit of doubt in Sessions Trial No. 220 of 1992 arising out of Dhanbad G.R.P.S. Case No. 4 of 1992. His bail bond stands discharged. Appeal allowed.