JUDGEMENT SURINDER SINGH,J (oral): The appellant Anil Kumar @ Lucky and his co- accused namely Bir Singh @ Sunny, Anil Chandel, Rakesh Kumar and Naresh Kumar were charge-sheeted for the offences punishable under Sections 395, 328, 304 read with Section 120-B of the Indian Penal Code. They were put on trial. At the end of trial, except the appellant, others were acquitted, whereas, the appellant was convicted for the offences punishable under Sections 328 and 304-II of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of five years and to pay a fine of ‘25,000/- under Section 328 of the Indian Penal Code and simple imprisonment for a period of seven years and to pay a fine of ‘75,000/- under Section 304 of the Indian Penal Code with default clauses and the fine amount, if realized, was ordered to be paid to the legal representatives of deceased Sugreev. Both the sentences were ordered to run concurrently. The benefit of Section 428 of the Code of Criminal Procedure was also accorded to the appellant. Feeling aggrieved by the impugned judgment of conviction and sentence, the present appeal has been directed by the convict-appellant. 2. The factual background of the case is that PW15 Uday Bhan, Lucky @ Balvinder and Tej Partap Singh were the Security Guards in “M/s Medoz Pharmaceuticals”, located near Baddi, Tehsil Nalagarh, District Solan, H.P. The said ‘Medoz Pharmaceuticals’ used to manufacture ‘Albendazole’.(ii) According to the prosecution case, during the intervening night of 23rd/ 24th March, 2008, the appellant alongwith his co-accused hatched a conspiracy to commit the dacoity in the aforesaid Pharmaceuticals. This factory was owned by PW12 Rakesh Aggarwal and others. PW13 Nikhil Patel was a Chemist in the said factory.(iii) On the day of alleged occurrence, Lucky @ Balvinder and Tej Partap Singh, Security Guards were on duty in the said factory. The factory premises had some raw-material lying in the store- room, the value whereof was ‘77,490/-. It is alleged that the appellant was also on duty during the same night in the said factory alongwith other Guards. He hatched a conspiracy with his co- accused and managed to provide the liquor mixed with ‘Nitrazepam’ to the Security Guards so that they would become unconscious and it may facilitate them in committing dacoity. It is alleged that the appellant was also on duty during the same night in the said factory alongwith other Guards. He hatched a conspiracy with his co- accused and managed to provide the liquor mixed with ‘Nitrazepam’ to the Security Guards so that they would become unconscious and it may facilitate them in committing dacoity. This was also the case of the prosecution that the appellant also took a sip of the liquor from his tumbler alongwith others, but he spit it out and left the place on the pretext that he was to attend a telephonic call. The other Security Guards, namely, PW14 Tej Partap Singh, PW15 Uday Bhan, deceased Sugreev and one Deepak a Safai Karamchari of the said factory kept on taking liquor alongwith their meals. They fell unconscious and the appellant alongwith his accomplices managed to commit dacoity of the raw material from the factory premises and escaped.(iv) PW13 Nikhil Patel, a Chemist in the said Pharmaceuticals came next morning to the factory on his duty at 9 a.m. and noticed that many workers had gathered there, the lock of the store­room was found broken and raw-material missing. Security Guards were lying unconscious. He intimated the owner of the factory PW12 Rakesh Aggarwal. Since the Security Guards were taken on hire from M/s Lucky Security Limited, they were informed and the police was also apprised of the above facts.(v)PW12 Rakesh Aggarwal reached the factory premises. Police had already arrived. He lodged complaint Ex.PW9/A, which culminated into FIR Ex.PW9/B. Police prepared site plan Ex.PW9/D of the spot and recorded statements of PW12 Rakesh Aggarwal, Atul Kumar and Nikhil Patel. At that time offenders were not known.(vi) According to PW9 ASI Raghuveer Singh when he reached the spot, all the five persons including appellant who had taken liquor together were found unconscious and were removed to the Nalagrah hospital from where, they were referred to PGI Chandgiarh. (vii) On 24.3.2008, photographs of the place of incident were also taken. On 26.3.2008, one Deepak and PW15 Uday Bhan were opined to be fit to make the statement, accordingly their statements were recorded by ASI Raghuveer Singh aforesaid. Police also took into possession one bowl containing cooked food and two Chapattis which were sealed and taken into possession vide seizure memo Ex.PW1/A. (viii) On 26.3.2008, PW6 Dr. On 26.3.2008, one Deepak and PW15 Uday Bhan were opined to be fit to make the statement, accordingly their statements were recorded by ASI Raghuveer Singh aforesaid. Police also took into possession one bowl containing cooked food and two Chapattis which were sealed and taken into possession vide seizure memo Ex.PW1/A. (viii) On 26.3.2008, PW6 Dr. N.K. Dixit medically examined Deepak , PW14 Tej Partap Singh, PW15 Uday Bhan, Sugreev and appellant Anil Kumar. They were not responding and were found unconscious, their gastric lavage was done and its sample alongwith blood of each of them was taken. Samples were sealed and all of them were referred to PGI Chandigarh for further examination. He suspected the consumption of poison with ethyl alcohol and issued Medico Legal Certificate Ex.PW6/A to E qua them.(ix) Sugreev aforesaid died on 27.3.2008 at 6.15 a.m. in PGI, Chandigarh. His autopsy was performed by PW5 Dr. Dalbir Singh. On the postmortem examination, he noticed that there was blood tinged froth at the mouth and nostril and pungent alcoholic odour was coming out from the mouth. There was no injury on the body, but his organs were congested. Viscera was sent for chemical analysis and issued postmortem report Ex. PW5/A. (x) The report of the Forensic Science Laboratory is Ex.PW5/B. There were contents/ traces of ‘Nitrazepam’ and ‘Ethyl-alcohol’ in the viscera of the deceased aforesaid and in the blood and urine samples of PW15 Uday Bhan, PW14 Tej Partap Singh, Deepak and the appellant. The doctor did not over-rule the possibility of excessive consumption of Nitrazepam alongwith excess liquor, causing death of Sugreev. The inquestpapers were prepared by the police in the presence of PW15 Uday Bhan and Ashok Singh.(xi) During investigation, police came to know that Bir Singh @ Sunny and Anil Chandel were interrogated in another FIR No.71/08 registered on 17.6.2008. They all stated to have disclosed that the appellant who was posted as Security Guard in the said Pharmaceuticals was also with them. On 20.7.2008, the appellant was arrested. It was during his interrogation it came to the light that one Dev @ Dola Ram handed over a bottle of Rum alongwith powder of ‘Nitrazepam’, which was mixed in the bottle of Rum and was provided to the Security Guards of the ‘Medoz Pharmaceuticals’. On 20.7.2008, the appellant was arrested. It was during his interrogation it came to the light that one Dev @ Dola Ram handed over a bottle of Rum alongwith powder of ‘Nitrazepam’, which was mixed in the bottle of Rum and was provided to the Security Guards of the ‘Medoz Pharmaceuticals’. Appellant also took a sip alongwith others, but he spit it out deliberately and left the place on the pretext that he was to attend a telephonic call. The others consumed liquor mixed with Nitrazepam and took their meal and fell unconscious. Out of them one Sugreev who was removed to the hospital had later died. The raw material with respect to the theft committed from the factory was allegedly recovered from the house of the co-accused Bir Singh which was worth ‘25,000/-. It was taken into possession vide seizure memo. The mastermind Dev @ Dola Ram could not be traced and he was declared, proclaimed offender by the Judicial Magistrate. (xii) After completion of the investigation, police came to the conclusion that the appellant alongwith co-accused were involved in the offences aforesaid, accordingly a challan was prepared under the aforesaid sections and presented in the Court for their trial. 3. The appellant alongwith co-accused were charge-sheeted for the offences aforesaid. They pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined its witnesses. Recovery of the alleged theft property could not be proved and the link of the other co-accused with the appellant was not established, as such, they were acquitted, whereas the appellant was convicted for the offences punishable under Sections 328 and 304-II of the Indian Penal Code, as stated above. 5. The appellant directed present appeal through the Superintendent, Jail. Vide order dated 7.10.2010, Shri Naveen Bhardwaj, Advocate was appointed as counsel for him. The paper book was supplied to him and the matter heard. 6. Shri Naveen Bhardwaj, learned counsel for the appellant forcefully argued that no recovery was effected from the possession of the appellant and further that the very story of the prosecution stands falsified as the appellant was also a victim, he was hospitalized and his Medico Legal Certificate is Ex.PW6/D and forensic report Ex.PW5/A corroborates this version as the traces of ‘Nitrazepam’ and ‘Ethyl-alcohol’ were found in the samples of gastric lavage and blood as also happened in the case of others viz. Deepak, Tej Partap Singh, Uday Bhan and deceased Sugreev. He further ventilated that all the five persons, who had taken the liquor together fell unconscious and they were removed to the hospital for their treatment first to local hospital at Nalagarh and then referred to PGI, Chandigarh, where they were provided medical treatment. It was also pointed out that there is no evidence about providing the bottle and Nitrazepam by the absenting accused and also that initially there was no case till July, 2008 against the appellant whereas PW14 Tej Partap Singh and PW15 Uday Bhan were available to the police but no such statement involving the appellant was given by them. Therefore, the statement of PW14 Tej Partap Singh and PW15 Uday Bhan is not inspiring confidence and the learned trial Court wrongly relied upon it to convict the appellant. 7. Contra, Shri A.K. Bansal, learned Additional Advocate General has supported the impugned judgment of conviction and sentence and forcefully argued that the statements of PW14 Tej Partap Singh and PW15 Uday Bhan are worthy of putting reliance as their testimonies had not been shattered in the cross- examination. 8.I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the record. 9. As per the case of the prosecution, the alleged incident had taken place during the intervening night of 23rd/ 24th March, 2008. The facts on record prove that the appellant, PW14 Tej Partap Singh, PW15 Uday Bhan, Safai Karamchi Deepak and deceased Sugreev, all of them consumed liquor together in the factory premises and fell unconscious. Next morning, when PW13 Nikhil Patel, a Chemist in the aforesaid factory, came around 9 a.m. to attend his duty, he noticed that there was crowd in the factory premises and five persons were lying unconscious. He reported the matter to the owner of the factory PW12 Rakesh Aggarwal and also to the police. Rakesh Aggarwal aforesaid reached the spot and by that time, police had already arrived. Statement of Rakesh Aggarwal was recorded and according to PW9 ASI Raghuveer Singh, on getting information he visited the spot, took photographs and prepared the site plan. He reported the matter to the owner of the factory PW12 Rakesh Aggarwal and also to the police. Rakesh Aggarwal aforesaid reached the spot and by that time, police had already arrived. Statement of Rakesh Aggarwal was recorded and according to PW9 ASI Raghuveer Singh, on getting information he visited the spot, took photographs and prepared the site plan. However, there is nothing in his statement to show that the bottle of liquor and the tumblers which were used by the deceased as well as the appellant and other persons were taken in to possession for forensic examination to know its contents, hence there is nothing on record to show that the liquor which PW14 Tej Partap Singh and PW15 Uday Bhan had taken alongwith the appellant himself and also the deceased Sugreev was having the traces of ‘Nitrazepam’. The appellant in the above factual scenario was also a victim. He was hospitalized and as per the report of the forensic examination, his blood as well as urine also had the traces of ‘Nitrazepam’ and ‘Ethyl alcohol’. The story of his fleeing and committing dacoity is totally falsified. 10. According to PW6 Dr. N.K. Dixit, in case the ‘Nitrazepam’ is taken excessive alongwith alcohol, it may cause unconscious and this drug is taken by the patient, who suffers sleeplessness. The consumption of aforesaid liquor mixed with Nitrazepam by the Sugreev proved fatal to him and he died. 11. It is to be carefully noted that PW14 Tej Partap Singh and PW15 Uday Bhan both were available to the police in the month of March, 2008 itself. They did not make any statement against the appellant as they made in the Court during the trial. For the first time, their statement under Section 161 of the Code of Criminal Procedure came to be recorded in the month of July, 2008, whereas according to PW9 ASI Raghuveer Singh, he had recorded statements of Deepak, Uday Bhan and also of the appellant on 26.3.2008, which is not a part of challan whereas PW1 1 Inspector Madan Kant stated that he also recorded the statement of PW14 Tej Partap Singh, PW15 Uday Bhan, Sanjay and Ashok Rawal on taking up the investigation of this case later but conveniently ignored to record the statement of the appellant. 12. 12. According to PW14 Tej Partap Singh, the appellant provided a bottle of liquor and he alongwith Uday Bhan, Deepak and Sugreev had consumed it and complained of its bitter taste. He further stated that the appellant consumed liquor partially, thereafter he spit it out saying that it was bitter in taste, whereas, PW15 Uday Bhan stated that a bottle of Rum was brought by the appellant from Manpura, which was offered to them. It tasted quite bitter and they complained to the appellant that it was bitter in taste and he also took a sip and spit it out and left the place on the pretext that he had to attend a telephonic call. This version given by the aforesaid witnesses is self contradictory. They did not make any mention that the appellant also fell unconscious alongwith and was also hospitalized. If it was in the knowledge of the appellant that the liquor was adulterated with ‘Nitrazepam’, he could not have taken the liquor and fell unconscious. I find that PWs14 and 15 have not come out with truth. Their statements are contrary to the record and there is no supportive evidence to show that the bottle of liquor and the tumblers used by them to consume the liquor, had the traces of ‘Nitrazepam’. Further their testimonies are also doubted on account of delay complaining against the appellant with due promptness and lacks supporting evidence. The police also did not know as to who was involved in the alleged episode. They for the first time came to know as per police report on the arrest of Bir Singh respondent in the month of July, 2008 in another FIR. In my considered opinion, against the above factual background, putting reliance upon the statements of PWs 14 and 15 is quite hazardous. 13. For the reasons stated above, I find that the prosecution story is not worth inspiring confidence and the prosecution case lacks probity. As such, the impugned judgment of conviction and sentence is unsustainable, accordingly set-aside. In result, the appellant is acquitted by the charges against him by giving him the benefit of doubt, consequently, the appeal is allowed. 14. Since the appellant is undergoing sentence, in this case, he is ordered to be released forthwith, if not required in any other case. 15. In result, the appellant is acquitted by the charges against him by giving him the benefit of doubt, consequently, the appeal is allowed. 14. Since the appellant is undergoing sentence, in this case, he is ordered to be released forthwith, if not required in any other case. 15. The Registry to take appropriate steps and issue the release warrant forthwith in conformity with this judgment. The fine amount, if any deposited, shall be refunded to the appellant. 16. Record of the Courts below be returned forthwith. The matter stands disposed of. ***************************************************************