JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) The appellant has preferred this appeal against the judgment of conviction dated 25th July 2005 and order of sentence dated 28th July 2005 passed by the learned 9th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 346 of 2003 arising out of Sadar P.S. Case No. 199 of 2002 by which the appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs.2000/-and in default of payment of fine rigorous imprisonment for six months under Section 328 IPC and rigorous imprisonment for life and a fine of Rs.2000/- under Section 302 IPC and in default of payment of fine further to undergo rigorous imprisonment for six months. Both the sentences have been directed to run concurrently. 2. According to Fard Beyan (Ext. 2) of the informant Tetari Devi (P.W. 6) on 10.10.2002 at 8 a.m. at her Darwaja in village Khabara, the prosecution case, in brief, is that her husband Amichand Das (deceased) transferred his two dhurs of homestead land on 8.10.2002 in favour of Shiv Shanker Ojha (D.W.-1) for a consideration of Rs.20,000/- through registered deed. Roopdhari Das (the appellant) was present at the time of registration of sale deed at Muzaffarpur Registry Office. Her husband (deceased) returned to his house and told her that consideration money of Rs.20,000/- had been given to Roopdhari Das (appellant) for safe custody. Later on, her husband demanded the money but it was not returned by the appellant to the deceased. Geeta Devi (P.W. 4), the elder daughter of the informant told her that on 9.10.2002 at about 4.30 p.m. the appellant was seen with her husband (deceased) in the shop of illicit liquor and the appellant was serving the illicit liquor to the deceased. At 8 A.M. the deceased came to his house in drunken condition, wept and told her that Roopdhari Das (appellant) did not return Rs.20,000/-, sale proceed even after demand and served the liquor mixed with the poisonous substance, as a result of which his condition was deteriorating. He vomited twice and again he vomited blood. Thereafter, he became senseless and died. The informant had firm belief that her husband died due to poisonous liquor served by Roopdhari Das (appellant). 3. On the basis of fard beyan Sadar P.S. Case No. 199 of 2002 dated 10.10.2002 was registered under Sections 328/302 IPC. He vomited twice and again he vomited blood. Thereafter, he became senseless and died. The informant had firm belief that her husband died due to poisonous liquor served by Roopdhari Das (appellant). 3. On the basis of fard beyan Sadar P.S. Case No. 199 of 2002 dated 10.10.2002 was registered under Sections 328/302 IPC. After investigation charge-sheet was submitted against the appellant for the offence punishable under Sections 328 and 302 IPC. Cognizance was taken and the case was committed to the Court of Sessions. Charges were framed against the appellant for the offence punishable under Sections 328 and 302 IPC to which he denied and claimed to be tried. 4. The defence of the appellant is that he did not take money from the deceased Amichand Das nor served poisonous liquor and he claimed to be innocence as such the trial proceeded. After the trial the appellant has been found guilty and sentenced by the learned trial court as aforesaid. 5. This Court is now required to reappraise the evidence as to whether the prosecution has been able to substantiate its charge against the appellant beyond shadow of all reasonable doubts or not ? 6. The prosecution has examined nine witnesses to prove its charge. They are P.W. 1 Nagendra Rai, P.W. 2 Dr. Mumtaz Ahmad, P. W. 3 Ram Chandra Das, P.W. 4 Gita Devi, P.W. 5 Ramdulari @ Ram Pukari Devi, P.W. 6 Tetari Devi, P.W. 7 Shankar Prasad Yadav, P. W. 8 Radha Raman Prasad, and P.W. 9 Md. Ayub, out of them P.W. 1 and 3 are hostile witnesses they have not supported the prosecution case as such their evidence is not helpful to the prosecution. 7. P. W. 2 has held the post-mortem on the dead body of Amichand Das aged about 65 years on 10.10.2002 at 12.30 P.M. while he was posted as Associate Professor, FMT Department, SKM College Hospital, Muzaffarpur and found as follows:- The body was average built. Rigor mortis was present in all limbs of the body. No ante-mortem injury was found either externally or internally. Following viscera were preserved in soturotated solution of common salt- 1. Stomach with its contents 2. A portion of liver 3. A portion of spleen 4. One kidney. The opinion of cause of death was kept reserved. The post-mortem report has been marked as Ext. 1. No ante-mortem injury was found either externally or internally. Following viscera were preserved in soturotated solution of common salt- 1. Stomach with its contents 2. A portion of liver 3. A portion of spleen 4. One kidney. The opinion of cause of death was kept reserved. The post-mortem report has been marked as Ext. 1. In cross- examination, he has stated that it could not be detected about reason of death. On call on 28.4.2005 this witness has stated that chemical analysis report of viscera of Amichand Das was sent vide P. M. No. 567/2002 dated 10.10.2002. Result of chemical analysis shows that thimat was detected in the dark brown fluid of glass Jar. Thimat is an organo, Phosphosis pesticide which is widely used in agriculture for killing pests and is highly poisonous. In his cross-examination he has stated that thimat has high smelling power. 8. P.W. 4 Geeta Devi is the daughter of the deceased and the informant (P.W. 6). She has stated that on the date of occurrence the deceased and the appellant was taking wine near Katahi bridge at about 8.30 P.M. His son informed her that someone has served poison to his grandfather (nana) and he died on that day. Her son Sanjay (not examined) was in the house of the deceased. She has further stated that she heard from her mother that two days prior to the occurrence the deceased had sold two dhurs of land for a consideration of Rs.20,000/- and had gone to market with the appellant. The money could not be deposited in the bank. She has further stated that the appellant administered liquor with poison in temptation to get money. In her cross-examination she has stated that after getting information through her son she went to her father’s house at about 8 P.M. She has further stated that her mother (informant) told her that the appellant had served wine with poison. He has further stated that she cannot say as to whether the deceased or the appellant was having money. 9. P.W. 5 Ramdulari is another daughter of the deceased. He has further stated that she cannot say as to whether the deceased or the appellant was having money. 9. P.W. 5 Ramdulari is another daughter of the deceased. She has stated that her father (deceased) told her mother two days prior to the occurrence that he had sold two dhurs of homestead land in favour of Shiv Shankar Ojha (DW 1) for a sum of Rs.20,000/- and her father gave money to the appellant Roopdhari for keeping it but he did not return. She has further stated that in the evening Shivshankar Ojha (DW 1) and the appellant accompanied her father to his house by rickshaw and both of them returned. Her father told her that the appellant served liquor and asked her to get Rs.20,000/- from the appellant. Her father vomited twice and at third time he vomited blood. In her cross-examination she has stated that the appellant and her father used to drink. She has further stated that her mother told her that her father had given Rs.20,000/- to the appellant. In paragraph 9 she has stated that her sister (PW. 4) told her mother (P.W. 6) that the deceased and the appellant were taking wine together. 10. P. W. 6 is the informant and wife of the deceased. She has stated that on the date of occurrence she was at her house. Shivshankar Ojha (DW 1) got transferred two dhurs of land from her husband Amichand Das for a consideration of Rs.20,000/-. After registration of the deed the money from her husband was taken by the appellant and the appellant told him that he would return money. Later on, her husband demanded money but the appellant did not return it. She has further stated that her daughter Geeta Devi (PW 4) saw her father Amichand Das (deceased) in the wine shop near Katahi bridge. The appellant was also accompanying him. Geeta asked her father to return to his house but the appellant asked her to go and he would take the deceased to his house. Later on, the appellant came with his father to his house. The deceased was in drunken condition and asked her to take Rs.20,000/- from the appellant. Thereafter, the deceased vomited twice. Blood also came out from his mouth. A rickshaw was searched for taking him to hospital but in the meantime he died. Later on, the appellant came with his father to his house. The deceased was in drunken condition and asked her to take Rs.20,000/- from the appellant. Thereafter, the deceased vomited twice. Blood also came out from his mouth. A rickshaw was searched for taking him to hospital but in the meantime he died. She has further stated that at the time of giving fard beyan Gita Devi (P.W. 4) was present and she also put her thumb impression. The dead body was sent to the hospital for post-mortem. In her cross-examination, she has stated that she does not know what was the amount of consideration for the sale of the land. She does not know that according to sale deed the consideration money was Rs.8000/- She has further stated that Ramdulari (P.W. 5) and Geeta Devi (P.W.4) are her daughters. Ramdulari was married to village Bahilbara and Geeta Devi lives in Bankroad. She has further stated that on the date of death her husband returned to his house at 8 p.m. and within an hour he died. 11. P.W. 7 is the Investigating Officer. He has stated that on 10.10.2002 he was posted as Assistant Sub-Inspector in Sadar Police Station. He got information on telephone by Chaukidar (not examined) that a person died due to poison. He went to the place of occurrence and saw the dead body of Amichand Das was lying there. He took the fard beyan of his wife Tetari Devi (P.W. 6). He has proved the fard beyan (Ext. 2) and the formal FIR (Ext. 3). He also prepared the inquest report and sent the dead body to S. K. M. College Hospital, Muzaffarpur for post-mortem. He inspected the place of occurrence, the opened door of the informant and the adjacent land by the side of pitch road lying north- south. He took the statement of the witnesses. After investigation and obtaining post-mortem he submitted charge-sheet. In his cross-examination, he has stated that the informant did not state before him in her restatement that her husband (deceased) asked money but Rupdhari did not pay. He took the statement of the witnesses. After investigation and obtaining post-mortem he submitted charge-sheet. In his cross-examination, he has stated that the informant did not state before him in her restatement that her husband (deceased) asked money but Rupdhari did not pay. He has further stated that the informant did not state before him that Geeta (PW 4) requested her father to go to his house then Rupdhari asked her to go and he would take Mausa (deceased) to Khabra (house of the deceased) nor did she say that Amichand returned in the evening with Rupdhari (appellant). 12. P.W. 8 was the Assistant in the Registry Office, Muzaffarpur. On 7.1.2003 the office-in-charge came to his Office and asked the sale deed dated 8.10.2002. He had presented sale deed to the Officer-in-Charge. He does not remember as to whether it was executed by Amichand Das in favour of Shivshankar Ojha or not. In his cross-examination, he has stated that it was not a fact that he stated before the Investigating Officer that the land was sold for a consideration of Rs.8000/- as it appeared from the sale deed. 13. P.W. 9 is the technician in the Regional Forensic Science Laboratory, Muzaffarpur. He has proved the FSL report (Ext. 4). 14. D. W. 1 has been examined on behalf of the defence. He has stated that on 8.10.2002 he purchased two dhurs of land from Amichand Das for a consideration of Rs.8000/-. He gave money to Amichand Das (deceased) to count the money and keep with him. The sale deed also bears the photograph of Amichand Das. The sale deed has been marked as Ext. A. He has further stated that after transfer of the land mutation has also been made in his favour and rent receipt has been issued in his favour which has been marked as Ext. (X). In his cross-examination, he has stated that he did not pay money other than Rs.8000/- to Amichand Das. He has further stated that it is not a fact that Roopdhari Das was with Amichand Das. 15. D. W. 2 is a formal witness who has proved the rent receipt issued by Block Karmchari Shivchand Das which has been marked as (Ext. B). 16. Learned counsel for the appellant has submitted that there is vital contradiction in the evidence of the witnesses. No independent witness has supported the prosecution case. P.Ws. 15. D. W. 2 is a formal witness who has proved the rent receipt issued by Block Karmchari Shivchand Das which has been marked as (Ext. B). 16. Learned counsel for the appellant has submitted that there is vital contradiction in the evidence of the witnesses. No independent witness has supported the prosecution case. P.Ws. 4, 5 and 6 are the daughters and wife of the deceased. 17. According to Fardbeyan informant (P.W. 6) has got information from her elder daughter Geeta Devi (P.W. 4) that the appellant was serving liquor to the deceased. P. W. 6 has stated in her evidence that her daughter Geeta Devi saw her father (deceased) and the appellant in the wine shop near Katahi Bridge and Geeta Devi (P.W. 4) asked her father to return to his house but the appellant asked her to go and he would take Mausa (deceased) to his house. 18. It appears that Geeta Devi examined as P. W. 4 has stated that on the date of occurrence at about 8 p.m. her son Sanjay (not examined) informed her that his Nana (grandfather) had been administered poison. On that date her son was in the house of her father. P. W. 5 is another daughter of the appellant. She has stated that in the evening of the occurrence Shivshankar Ojha (D. W. 1) and the appellant brought her father (deceased) to his house by rickshaw. She has further stated that two days prior to the occurrence her father told her mother about the execution of sale deed for transfer of the land for a consideration of Rs.20,000/- by registered sale deed in favour of Shivshankar Ojha. It also appears that sale deed (Ext. A) has been executed by the deceased in favour of Shiv Shankar Ojha (D.W. 1) for a consideration of Rs.8000/-. There is no evidence on the record to show that the money was given to the appellant by the deceased. There is vital contradiction in the evidence of P.W. 4, P.W. 5 and P.W. 6 and their evidence does not inspire confidence. No independent witness has supported the occurrence. It is settled principle of law that the evidence of interested witness cannot be discarded but the evidence of interested witnesses has to be considered with care and caution. There is vital contradiction in the evidence of P.W. 4, P.W. 5 and P.W. 6 and their evidence does not inspire confidence. No independent witness has supported the occurrence. It is settled principle of law that the evidence of interested witness cannot be discarded but the evidence of interested witnesses has to be considered with care and caution. P. W. 4 and P. W. 5 are the daughters of the deceased and P.W. 6 is the informant and wife of the deceased. The evidence of all these witnesses is full of contradiction and their evidence does not inspire confidence and as such their evidence is not fit to be relied upon. It appears that no one has seen the occurrence. 19. Considering the facts and circumstances, we find and hold that the prosecution has not been able to substantiate its charge beyond reasonable doubts. The appellant is entitled to get the benefit of doubt. He is acquitted by giving him the benefit of doubt. 20. In the result, the impugned judgment of conviction and sentence is not fit to be sustained and it is set aside. The appeal is allowed. The appellant is directed to be released forthwith, if not wanted in any other case. 21. Let a copy of the first and last page of the judgment be handed over to the appointed Amicus Curiae Mr. Pramod Ranjan, Advocate who has assisted the Court satisfactorily and he will get the prescribed fees from the High Court Legal Services Committee, Patna.