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2017 DIGILAW 558 (CAL)

Muktar Khan v. Salim Khan

2017-06-21

RAKESH TIWARI, SHIVAKANT PRASAD

body2017
JUDGMENT : Rakesh Tiwari, J. This appeal has been preferred against the judgment and order of acquittal dated 21st December, 2009 passed by the Additional Sessions Judge, Fast Track, First Court at Paschim Medinipur in Sessions Trial no. filed on 25th May of 2007. By the said judgment and order both the accused persons have been acquitted of the charges under Sections 302/34 of the Indian Penal Code (In short 'I.P.C.') by recording a finding that the accused persons facing trial are not guilty under the aforesaid Sections of the I.P.C. and are discharged from their respective bail bonds. 2. The facts of the case are that Muktar Khar, son of late Tarap Khan of village Balihati, P.S. Kharagpur local, District Paschim Medinipur lodged a first information report (In short 'F.I.R.') at 14.35 hours being no. 138/06 dated 28th June, 2006 under Section 302 of the I.P.C. It was registered in the general diary at serial no. 1835. 3. The allegation in the written complaint was that at about 8.30 a.m. on 28th June, 2006 his son Mossaraf Khan went to the house of his Jethu (uncle) Salim Khan and came back after sometime. He (P.W. 1) found smells of pesticide coming from the hands and mouth of his son. When he and his wife asked Mossaraf, he told them that his Jethima (wife of Salim Khan) i.e. Jarina Bibi one of the accused persons gave him guava to eat which he was eating and also showed the chewed guava to them. His son Mossaraf (since deceased) also told that his Jethu (Salim Khan) had bought this guava from the market. The hands and mouth of Mossaraf (since deceased) were washed by his parents who by then became restless and froth was coming out from his mouth. Seeing this, arrangement for transfer of Mossaraf to hospital was made with the help of village people but he died on his way. Perusal of the complaint further shows that the defacto complainant alleged that to his assumption due to litigation regarding wasteland from before with Salim Khan for which the accused persons had killed his 7 years old son out of grudge by feeding him guava containing poison. He prayed for the investigation to be held in respect of the aforesaid incident and proper punishment be given to the guilty persons. 4. He prayed for the investigation to be held in respect of the aforesaid incident and proper punishment be given to the guilty persons. 4. Investigation was taken by Sri Jagannath Panda, S.I. (P.W. 18) who on 28th June, 2006 found the dead body of the deceased Mossaraf lying on the cot made of rope, having his head at the north side and feet at the south side with froth coming out from the mouth of the deceased. His fingers of two hands were slightly bent, palm and nail of the hands and feet were looking bluish. It was presumed that the deceased died due to consumption of poison. Witnesses as to the cause of death were also interrogated and during primary investigation, the investigating officer came to know that the house of Selim Khan uncle (jethu) was situated by the side of the house of the deceased Mossaraf Khan; that Salim Khan and Jarina Bibi gave a guava to the deceased and after eating it Mossaraf Khan died. 5. The opinion of the police officer as well as of the witnesses to the cause of death who were present at the site of inquest is that Mossaraf died after eating the poisonous guava. However, to ascertain the proper cause of death all the papers along with the dead body were sent to Kharagpur Sub-Divisional Hospital through constable (No. 1293) Sri Sunil Dubey for post-mortem examination. The report with the index of the place of occurrence was submitted by Sri. Jagannath Panda, the investigating officer on the same day i.e. 28th June, 2006. 6. The body of the deceased was brought to the aforesaid hospital by constable being No. 1293. The autopsy surgeon started post-mortem examination at about 2 p.m. on 29th June, 2006 on the cadaver of deceased Mossaraf. On external examination of the body, the doctor holding post-mortem found cyanosis and rigor mortis present. Mouth was half opened. Blood from left nostril and saliva and froth from left of mouth were also found by the doctor. Lungs were also found to be congested. Liquid blood was found to be present in both chambers of the heart and heart was also found to be in enlarged condition. Abdominal wall was found to be distended with bluish discolouration of the whole amount of the same. Small quantity of pasty material with bits of solid in it was found in the stomach. Liquid blood was found to be present in both chambers of the heart and heart was also found to be in enlarged condition. Abdominal wall was found to be distended with bluish discolouration of the whole amount of the same. Small quantity of pasty material with bits of solid in it was found in the stomach. The gall bladder was found to be congested. 7. Doctor did not give any opinion as to the cause of death but kept his opinion pending till receipt of chemical examiner's report for which he collected viscera of stomach with contents, small intestine with contents sample of liver, kidney (on behalf of each) spleen, sample of blood on gauz piece (dried) and portion of lung. The viscera were collected on 29th June, 2006 and sent to forensic laboratory on 5th September, 2006 and received on 6th September, 2006. Charges under Sections 302/34 of the I.P.C. were framed against the accused persons thus: "That you, on or about the 28th June, 2006 at Balihati, P.S. Kharagpur local, District Paschim Midnapore, in furtherance of the common intention of you both, committed murder by intentionally or knowingly causing the death of Musaraf Khan and thereby committed an offence punishable under section 302/34 I.P.C. and within the cognizance of this court. And I hereby direct that you be tried by this court on the said charge." Sd/- Additional Sessions Judge, 1st Fast Track Court, Paschim Midnapore, 28.2.08" 8. The said charges were read over and explained to the accused persons in vernacular language to which they pleaded not guilty and claimed to be tried. 9. The prosecution produced as many as eighteen witnesses to prove the charges against the accused persons as aforesaid. 10. Muktar Khan, the defacto complainant being P.W. 1 deposed before the trial Court that his son had gone to the house of Jarina Bibi (his Jethima) and Salim Khan (his jethu), the accused persons at about 8 a.m. on the date of incident and after a few months he returned from their house saying that he was feeling uneasy with pain in chest and abdomen. P.W. 1 received poisonous smell from the mouth of the deceased, Mossaraf Khan (his son). P.W. 1 received poisonous smell from the mouth of the deceased, Mossaraf Khan (his son). It was also deposed that on being query made to Mossaraf, he informed that his Jethu (uncle) and Jethima (aunt) had given him a guava to eat which he had eaten and thereafter he became restless. P.W. 1 also stated that on hearing hue and cry Amir Khan, Boktar Khan, Rajia Bibi, Aleya Bibi, Jabbar Mallick and Ershad Khan had come to their house in whose presence Mosarraf Khan (his son) stated that he had taken guava given by the accused persons due to which he had become restless having pain in his chest and abdomen. Arrangement for shifting him to hospital was made and on his way to hospital, son of P.W. 1 died. The motive that has been pointed out in the statement of P.W. 1 is that he (P.W. 1) had purchased a piece of land from Amir Khan, the brother of the accused Salim Khan and for that reason Salim Khan had become furious as a result of which he had killed the son of the defacto complainant. In cross-examination P.W. 1 stated that he knew Jonab Khan, Jabed Khan, Mintu Khan, Laltu Khan, Santu Khan, Pintu Khan, Ektar Khan, Sektar Khan, Barik Khan, Moktari Khan and Moslem Khan who were his close neighbours and he had no enmity with those persons. He also stated that he had seen his son chewing guava who stated to him that he had eaten guava. Seeing the remnants of guava inside his (deceased) mouth, those were taken out from the mouth of the deceased and shown to Daroga Babu. But he did not remember whether the remnants of guava were taken by the Daroga babu at the time of his visit. P.W. 1 also felt the smell of poison from the mouth of his son. He also stated that no phena was coming out from the mouth of his son but saliva was coming out from his mouth and he had become restless. P.W. 1 also felt the smell of poison from the mouth of his son. He also stated that no phena was coming out from the mouth of his son but saliva was coming out from his mouth and he had become restless. In his cross-examination, P.W.1 also stated that after five to six minutes of reaching the house, his son became senseless and thereafter when the condition of his son was deteriorating, Jalal Mallick (Mustuto bhai), Chand Mohammad took his son to the hospital and according to P.W. 1 the distance between Balihati village and Midnapaore Sadar Hospital was about 2 k.m. and his son expired at Mohanpur bridge on the way to hospital. 11. P.W. 2 in her examination in chief deposed that on hearing hue and cry Rajia Bibi, brother of Salim Khan, Ershad Khan, Jabbar Mallick and other persons came to her house. She also deposed that she asked her son in presence of the above persons the reason of his illness to which her son replied that he had gone to the house of Jarina Bibi and Salim Khan where he had been given guava by them to eat and after eating the same, he felt ill and symptom of abdomen and chest pain had developed. It was also deposed that he was taken away for hospital but died in his way. In cross-examination, P.W. 2 stated that the house of Jabbar Mallick and Haru Khan was situated at a few distances from her house. She also deposed that at that point of time Amir Khan was residing at his father in law's house which was situated on the western side of the village and her house was situated in the eastern side of the village and in between their house and Amir's house, there were 100/150 houses. She also deposed that house of Jalal Khan and her house intervened by some houses. 12. P.W. 3 Sisir Ghosh is the scribe of the written complaint. He deposed that he wrote the written complaint as per dictation of Muktar Khan, P.W. 1 and after writing he read it over and explained the same to P.W. 1, the complainant. 13. P.W. 4 being constable no. 1293 carried the dead body to the Chandmari hospital at Kharagpur for the purpose of holding post-mortem and proved the challan of the dead body as Exhibit 3. 14. 13. P.W. 4 being constable no. 1293 carried the dead body to the Chandmari hospital at Kharagpur for the purpose of holding post-mortem and proved the challan of the dead body as Exhibit 3. 14. P.W. 5 Jabbar Mallick in his examination in chief deposed that he knew all the accused persons who were his relatives. He deposed that Mossaraf Khan (since deceased) was aged about 7 years and at the time of incident which took place on 13th Ashar, at 9 A.M./9.30 A.M. he heard hue and cry coming from the house of Moktar Khan regarding poisoning of the son of Moktar Khan, P.W. 1 and after reaching at the house of P.W. 1 he saw many people including Amir Khan, Moktar Khan and his wife, wife of Bohtar Khan, Saptar Khan and his wife gathered there. He also saw that Mossaraf Khan son of P.W. 1 was in very restless condition and his throat was drying. When P.W. 1 asked his son (since deceased) what he had taken, he (the deceased) replied that Salim Jatha and Jarinabibi had given him guava and after eating guava he was restless. According to P.W. 5 they advised Muktar to shift his son to the hospital immediately and thereafter Mossaraf was taken to hospital on motorcycle and on the way he (Mossaraf) expired and thereafter they returned with his dead body. He also stated that Muktar, P.W. 1 purchased bastuland from Amir Khan and for that reason there might be grievance of the accused persons. According to P.W. 5 Muktar went to police station and inquest was conducted in his presence. In his cross-examination he stated as follows: "I am son of Ant of Moktar Kha, Sattar Kha, brother Moktar Kha is husband of my sister namely Jerina Bibi. Haru (sic) Kha is my neighbour. There are 70/80 houses situated in between house of Haru and Moktar Kha. There are 2 houses in between the house Jalal Kha and Moktar Kha. It is not fact that there are not 30/35 houses in between of Jalal Kha and Moktar Kha." 15. P.W. 6 Amir Kha stated in his deposition that hearing hue and cry coming from the house of Mossaraf he went to his house and saw that Mossaraf was lying on the bed and Muktar, Baktar and their wives were present. It is not fact that there are not 30/35 houses in between of Jalal Kha and Moktar Kha." 15. P.W. 6 Amir Kha stated in his deposition that hearing hue and cry coming from the house of Mossaraf he went to his house and saw that Mossaraf was lying on the bed and Muktar, Baktar and their wives were present. After two minutes P.W. 10 Ersad came to the house of Mossaraf. After four minutes P.W. 5 Jabbar Mallick came to the place of occurrence. Muktar and his wife asked Mossaraf what was reason for his such condition and he replied that his Jethima and Jatha had given him a guava to eat. It was also deposed by P.W. 6 that after eating the said guava Mossaraf was suffering chest pain, burning inside chest and he would die soon and thereafter Mossaraf was shifted to the hospital and expired on the way to the hospital. 16. P.W. 7 deposed that on the date of incident he went to purchase wood for his business in the village when he found that villager rushed towards the house of Muktar. He also stated that when he enquired it was informed to him that someone had given poison to the son of Muktar and on hearing this he rushed to the house of Muktar where he found many persons to be present and the child (Mossaraf) stated that he was feeling pain in his abdomen and also burning sensation in his chest. P.W. 7 also corroborated that on enquiry from Muktar and his wife, Mossaraf (deceased) replied that he went to the house of Jarina Jathima and Salim Jatha and they gave guava to him (deceased) to eat and after eating guava he was facing such condition. In his cross-examination he has stated that at the time of incident, relationship between Selim, myself, my brother Moktar and Sattar was good. He did not deny the fact that no such incident took place, which he deposed before the court below. It was not a fact that burning sensation in chest and abdomen of Mosaraf are false one or it was not a fact that he did not hear the eating of poisonous guava given by Selim and Jarina Bibi or that he was given false evidence due to inimical relation with the accused persons. It was not a fact that burning sensation in chest and abdomen of Mosaraf are false one or it was not a fact that he did not hear the eating of poisonous guava given by Selim and Jarina Bibi or that he was given false evidence due to inimical relation with the accused persons. P.W.8, Jalal Kha, was declared hostile by the cross-examination and, therefore, no reliance can be placed on his deposition. P.W.9, Haru Khan, was not present at the time of occurrence of incident and, therefore, his evidence is only hearsay. P.W.10, Ersad Khan, stated that he had also supported the evidence of other witnesses including P.W.1, Muktar Khan with regard to eating of guava given by the accused person and after seeing the serious condition of Masaraf, son of Moktar, was taken to the hospital and on the way to hospital Masaraf died. P.W.11, Asgar Khan and P.W.12, Rajia Bibi tendered by the cross-examination. P.W.13, Ahadi Khan, stated that he had heard from the villagers that the reason of death of Mosaraf Khan was due to heart disease and, therefore, it appears that he did not corroborate the version of the other prosecution witnesses and hearsay. P.W.14, Sabir Khan, did not support the prosecution by saying that he did not know the reason of death of Mosaraf Khan. P.W.15, S.I. Sunil Praharaj, on receipt of the written complaint from Moktar Kha recorded the Kharagpur Police Case No. 138/06 dated 28th June, 2006 under Section 302 IPC. P.W.16, Dr. Nemai Chand Dutta, who had conducted the autopsy over the dead body of the deceased. He proved the post-mortem report but stated in evidence that it was not possible for him to draw conclusion the cause of death from the F.S.L. report. P.W.17, S.I., Jaganath Panda, was conducted the investigation. He approved the report with the sketch of the place of occurrence and had submitted the charge-sheet against the accused person. 17. The learned Court below after hearing the learned Counsel for the parties and examining the prosecution evidences came to a conclusion that the evidence given by the defacto complainant and his wife, P.W.1 and P.W.2 were corroborated fully with the evidences of P.W.5, 6, 7, 9 and 10. 17. The learned Court below after hearing the learned Counsel for the parties and examining the prosecution evidences came to a conclusion that the evidence given by the defacto complainant and his wife, P.W.1 and P.W.2 were corroborated fully with the evidences of P.W.5, 6, 7, 9 and 10. According to the evidences of the witnesses, the death of Mosaraf Khan son of Muktar Khan was due to eating of poisonous guava given by Salim Khan and his wife Jarina Bibi. The Court answering the moot question as to whether the allegation of defacto complainant has been proved beyond reasonable doubt or not and considering the circumstantial evidence of the case in favour of the defacto complainant, the Court held that it appears from the post-mortem report that medical officer did not find any remnants of guava in the stomach of the deceased Mosaraf but it appears that Mosaraf Khan died within 3-4 hour of eating of the said guava. According to the learned Court below the remnants of guava in the stomach of the deceased was essential. He had died within an hour of taking the said guava but human body would not be able to digest the guava immediately due to effect of poisoning as alleged. The court has also relied upon the FSL report, which stated "the jar contained portions of viscera said to be of Musaraf Kha, as collected on Autopsy by the Hospital Authority. The viscera was in highly decomposed State." 18. The conclusion drawn by the learned Court below from the viscera report was that it appears from the FSL report that there is no definite conclusion regarding presence of poisoning in the viscera as it was highly decomposed it and under the circumstances, the Court found it difficult to return of finding that Moktar Khan had died as a result of taking poisonous guava. Hence the accused persons given benefit of doubt holding that prosecution had failed to prove to hold under Section 302 IPC by cogent and sufficient evidence. 19. Learned Counsel for the appellant has stood to argue that from the evidence on record as well as from the finding of the learned Court below it is clearly established that death of Mosaraf son of Muktar had a clear nexus with the eating of guava poisoned by Salim Khan and his wife Jarina Bibi given to him to eat. Learned Counsel for the appellant has stood to argue that from the evidence on record as well as from the finding of the learned Court below it is clearly established that death of Mosaraf son of Muktar had a clear nexus with the eating of guava poisoned by Salim Khan and his wife Jarina Bibi given to him to eat. It is apparent from the statement of the accused person Salim Khan under Section 313 Cr.P.C., 1973 that there was a land dispute between him and the defacto complainant due to sell of land by Amir Khan to him. 20. Per contra, learned Counsel for the accused/respondents submits that neither the guava was poisoned by the accused persons nor they are responsible for the death of Musharaf Khan. He submits that there is a clear contradiction between the allegations made in the F.I.R./written complaint and the oral evidence given by the witnesses for prosecution. 21. It appears from record that death of Musharaf Khan took place within an hour of eating the guava. Therefore, the remnants of undigested food ought to have been found by the doctor in the stomach of the deceased, but the post-mortem report shows that the stomach contained some small quantity of pasty materials with bits of solid in it. According to him, if Musharaf Khan (since deceased) had eaten the guava and immediately became ill due to poisoning, his stomach would not have been able to digest the guava and remnants of undigested seeds of guava would have been found with the pasty materials contained in the stomach. He would then argue what was the poison alleged to have been administered by the accused persons in the guava is not known and even the post-mortem and the F.S.L. reports failed to shed any light on this question. 22. It appears from the statements of the witnesses except Amir Khan, that there was no enmity between the accused persons and the defacto complainant. It may be that Amir Khan, brother of accused Salim Khan, who had sold the land about 12 years before the incident took place harboured grudge against Salim Khan. 22. It appears from the statements of the witnesses except Amir Khan, that there was no enmity between the accused persons and the defacto complainant. It may be that Amir Khan, brother of accused Salim Khan, who had sold the land about 12 years before the incident took place harboured grudge against Salim Khan. It may also be that there was enmity between Amir Khan and Salim Khan which may be his reason that he deposed against the accused Salim Khan to implicate him saying that there was enmity between Salim Khan, the accused and Muktar Khan, the defacto complaint. 23. After hearing learned Counsel for the parties and on perusal of record, we find that Salim Khan had purchased guava fruit in a basket from the market. The family of Salim Khan, the accused and the family of Muktar Khan, the defacto complainant father of deceased Mossaraf had good visiting terms. It is also apparent from the evidence of other witnesses for the prosecution except Amir Khan who stated that there was strained relations. Salim and Muktar, all other witnesses confined of good relation between the families of the two. Moreover, it appears from the statement of P.W.6, Amir Khan that relationship between the accused and the defacto complainant became strain after the death of Musharaf. 24. It further appears from the statement of the witnesses for the prosecution that the guava was from the basket full of the said fruit, which the accused had purchased from the market and after eating the guava condition of Mossaraf became critical. It is evident from the evidence of P.W.1, defacto complainant that there was smell of pesticide coming from the guava inside the mouth of the deceased, Musharaf but whether the pesticide was used by the seller for ripening the guavas is a fact which remains unknown. 25. Musharaf (since deceased) had stated that the guava was given to him by jethima Jarina Bibi. There is no evidence of poisoning the guava by the accused any of the persons before Musharaf ate it. Post-mortem report is also of no help as the medical officer conducting the autopsy on the deceased did not find any remnants of guava nor gave any opinion with regard to death of Musharaf. There is no evidence of poisoning the guava by the accused any of the persons before Musharaf ate it. Post-mortem report is also of no help as the medical officer conducting the autopsy on the deceased did not find any remnants of guava nor gave any opinion with regard to death of Musharaf. Taking into consideration the facts that the death of Musharaf has occurred within an hour and in the circumstances which developed after eating of guava, the Court below has rightly come to the conclusion that after eating the guava the victim would be unable to digest within a short period of about an hour after immediately taking it due to effect of poisoning as particularly when the effect of poisoning was found in the stomach of the body of Mossarraf. 26. We also find that even the F.S.L. report does not help us to come to a definite conclusion for poisoning where it has disintegrated. 27. The arguments of the learned Counsel for the accused/respondents that there was much distance between the place of occurrence and the house of some witnesses and as such they could not hear the hue and cry coming from the house of the Muktar are of no consequence, as the witnesses have stated on hearing the hue and cry or knowing of the incident from the village persons they went to the place of occurrence where many people were already present there. The news about the condition of Mossaraf (since deceased) had travelled fast in the village. The statement of the witness is also to the extent that guava was given to him to eat by the accused persons. He had not stated anywhere as to whether the fruit was infected with poison by the accused persons rather the P.W.1 defacto complainant himself averred in written complaint that he found smell of pesticides which was coming from the remnants of guava in the mouth of Mossaraf who told him that he was given guava by the accused to eat and after eating the same his condition was deteriorated. The symptom shows that mostly pesticide and chemical is used by fruit seller for ripening, which is injurious or dangerous to health. It appears that Mossaraf had taken out the guava from the basket to consume it without washing. 28. The symptom shows that mostly pesticide and chemical is used by fruit seller for ripening, which is injurious or dangerous to health. It appears that Mossaraf had taken out the guava from the basket to consume it without washing. 28. Further more, the land dispute which has cropped up in the evidence between the defacto complainant and the accused appears to be a stale one. The land was sold by Amir Khan, the brother of the accused, to the defacto complainant about 12 years before the incident took place. Mossaraf was not even born at that time and was born after about five years after the sale. May be the dispute was pending but the families of the accused and the defacto complainant had been on visiting terms as it appears from the evidence of prosecution witnesses. Mossarraf, the deceased was aged about 7 years, if there was any grudge with regard to sale of land between them it would have been between the accused and his brother Amir Khan but not between the accused and the defacto complainant particularly when they were on good terms all these years. 29. We are supported in this regard by the fact that the defacto complainant had seen that Mossarraf, his son had gone to the house of Salim, the accused, but he had not stopped him. If there was a grudge between them this would not have been the natural response and he would have certainly stopped him from going there. 30. Taking into the facts and circumstances in totality particularly, the post mortem report and the viscera report, we find that there is no positive proof of knowingly poisoning Mossarraf, the deceased by the accused persons. The statement of doctor also is a pointer in this regard. 31. Cross-examination of I.O., P.W.18, the investigating officer that "I had examined five witnesses namely, Jabbar Mallick, Amir Khan, Baktar Khan, Jalal Khan and Haru Khan on 28.6.2006." P.W. 5 did not state to him that he heard the hue and cry from the house of the Moktar Khan regarding poisoning of his son namely, Mossarraf Khan. He had neither stated about the fact of many persons gathered in the house of Moktar Khan where he had seen Amir and his wife nor he stated in the clear term before the I.O. that the Salim Jetha had given a poisonous guava to Mossarraf. He had neither stated about the fact of many persons gathered in the house of Moktar Khan where he had seen Amir and his wife nor he stated in the clear term before the I.O. that the Salim Jetha had given a poisonous guava to Mossarraf. P.W. 6 also did not state to the I.O. that Jetha had given guava to Mossarraf. Similarly, P.W.7 too did not make any such statement to the I.O. that the parents of Mossarraf asked Mossarraf as to what had happened. It is also not the statement of P.W.7 made at the earliest point of time to the I.O. that on reaching the house of Moktar he found Moktar and his wife, Alea Irshad Khan and his wife were present there. P.W.6 had also not made the statement to the I.O. that before the incident took place Musharaf went to the house of Salim Khan and returned his house after 15 minutes and saw Musharaf was lying on the bed when Muktar, Baktar and their wives were present. About the fact having stated in the examination-in-chief by the P.W. 6, who had also not made any such specific statement to the I.O. that after 2 minutes Arshad Khan and after 4 minutes Jabbar Mallik had come to the house. 32. Thus, we find that the statement of the prosecution witness appears to have been made afterthought during the evidence in court which they did not make to the I.O. at the earliest point of time. The fact is evident on record in crystal clear terms that they had developed the inimical terms on account of land dispute and it appears to us that out of grudge and inimical relation there is every scope of prosecution witness developing the prosecution case with a view to see it that Salim Khan and his wife Zarini Bibi have committed the crime. Furthermore it appears from the cross-examination of P.W.1, that Jonab Khan, Mintu Khan, Laltu Khan, Santu Khan, Pintu Khan, Ektar Khan, Sektar Khan, Barik Khan, Moktari Khan and Moslem Khan who are the close neighbours have no enmity with the accused persons and they were present at the place of occurrence. The P.W.8, Jalal Khan became hostile. 33. It appears that the inimical relationship was falsely developed by the prosecution to implicate the accused persons. The P.W.8, Jalal Khan became hostile. 33. It appears that the inimical relationship was falsely developed by the prosecution to implicate the accused persons. On giving an anxious conclusion that the facts and circumstances of this case and having regard to evidence of the witnesses as aforesaid and on further consideration of the fact that there is no scientific inference drawn by the medical officer in the post mortem report and in the F.S.L. that the guava was infected when it was given to the deceased. We are of the view that it would not be safe to convict the accused persons for the charge under Section 302 I.P.C. Therefore, the views, findings and the conclusion of the learned Court below that in the circumstances it is difficult to come to a definite conclusion that Mossarraf Khan died of having taken guava knowingly poisoned by the accused persons the benefit of doubt was rightly given to the accused persons. It is jurisprudence principle that benefit of doubt always go in favour of the accused persons. 34. For all the reasons above, we do not find this to be a case for any interference with the judgement impugned. 35. The appeal is accordingly dismissed.