JUDGMENT : 1. Heard the parties. 2. The appellant has preferred this appeal being aggrieved by the Judgment of conviction dated 27.02.2006 and Order of sentence dated 28.02.2006 passed by the learned 1stAdditional Sessions Judge, Hazaribagh, in Sessions Trial No. 7 of 2001 by which the learned trial court has held the appellant guilty for the offence punishable under Sections 328, 498A of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act and sentenced him to undergo Rigorous Imprisonment for five years and fine with default clause for the offence punishable under Section 328 of the Indian Penal Code, Rigorous Imprisonment for three years and fine with default clause for the offence punishable under Section 498 A of the Indian Penal Code and Rigorous Imprisonment for six months with fine and default clause for the offence punishable under Section 4 of the Dowry Prohibition Act respectively. 3. The case of the prosecution as unfolded in the fardbeyan of the informant in brief is that the informant married the appellant-accused. Ten days before the date of occurrence, from her paternal house she reached her matrimonial house at Padma in the District of Hazaribagh. Demand of Rs.20,000/- was made by the in-laws of the informant. When the informant expressed her inability to meet the said demand as her father is a poor farmer, the appellant-accused person along with the co-accused persons directed the informant to get out of their house and threatened that otherwise she will be killed. Thereafter, the informant was assaulted but the informant did not go outside but remained inside the house. On 05.02.1998, at about 10:00 A.M., the appellant-accused person along with the co-accused persons who have been acquitted, assaulted the informant and during the course of assault, two co-accused persons caught hold of the informant and the appellant-accused person forcibly administered some liquid on the guise of the same to be medicine. It is alleged by the informant that the liquid thus forcibly administered to her was poison. After being administered the liquid, the informant became senseless. The father of the informant upon getting the information about the incident reached her matrimonial house and brought the informant to hospital for treatment. After regaining sense, the police recorded fardbeyan of the informant on 06.02.1998 at Sadar Hospital, Hazaribagh where she was undergoing the treatment. After being administered the liquid, the informant became senseless. The father of the informant upon getting the information about the incident reached her matrimonial house and brought the informant to hospital for treatment. After regaining sense, the police recorded fardbeyan of the informant on 06.02.1998 at Sadar Hospital, Hazaribagh where she was undergoing the treatment. It is the further case of the informant that because of non-fulfillment of demand of dowry, the in-laws of the informant used to assault her and a Panchayati was also convened but the same did not yield any result. 4. On the basis of the fardbeyan of the informant, police registered Barhi P.S. Case No. 31 of 1998 and took up investigation of the case. After completion of the investigation, police submitted police report and upon commitment of the case to the Court of Session, charges for the offence punishable under Section 498A/307/328 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act were framed against the appellant-accused person and the co-accused persons who faced the trial. Upon the appellant-accused person pleading not guilty, he was put to trial along with the co-accused persons. 5. In support of its case, the prosecution has altogether examined 8 witnesses. Out of the 8 witnesses examined by the prosecution, P.W.3 – Sanju Devi is the informant of the case. She has stated that her marriage was solemnized with the appellant-accused person in the year 1994. She was alright in her matrimonial house for about two years. Thereafter, the appellant-accused person along with the co-accused persons demanded Rs.20,000/- and a Colour T.V. They dropped the P.W.3 in her paternal house but the father of the P.W.3 was unable to fulfill the demand. One and a half month thereafter, the appellant-accused person brought her to her matrimonial house and she was again compelled to fulfill the demand of dowry of money and Colour T.V. When she intimated about her inability of her father to fulfill the demand of the accused persons, they assaulted her with stick and compelled her to go out of her matrimonial house but she did not leave her matrimonial house. On 05.02.1998 at about 10:00 A.M., the appellant-accused person along with two co-accused persons administered poison to the P.W.3 by saying that they are administering medicine to her. She became senseless and fell down on the ground after she was administered poison. On 05.02.1998 at about 10:00 A.M., the appellant-accused person along with two co-accused persons administered poison to the P.W.3 by saying that they are administering medicine to her. She became senseless and fell down on the ground after she was administered poison. She regained her sense in hospital. Police recorded her fardbeyan in the hospital which was marked Ext. 1/1. In her cross-examination, she has stated that she was administered poison in the fifth year of her marriage. The demanded articles were not the condition of the marriage. At the time of incident, she created noise but none reached the place of occurrence till she was in sense. She could not say the nature of the poison. She regained her sense between 09:00 P.M. to 09:30 P.M. She vomited in the hospital and the same was preserved in a foil. She did not disclose the demand of dowry to the other members of her matrimonial house or the villagers of her matrimonial village. She was working as a teacher at the time of her deposition in court. She was also working as a L.I.C. Agent but she stopped doing that. The appellant-accused was not relishing her doing the job of teacher. Her husband has not solemnized a second marriage. In paragraph no.21 of her cross-examination, she has stated that she did not disclosed any person in her paternal village or matrimonial village about the demand of Rs.20,000/- or T.V. In paragraph no. 20 of her cross-examination, she has stated that she did not sustain any bleeding injury but there were marks of assault with stick which she showed to the doctor. In Paragraph no. 19 of her cross-examination, she stated that the appellant-accused person is doing contracts jobs of poultry and till the time she was in her matrimonial house with her husband, she used to help him in his work. 6. P.W.1–Kishori Prasad Mehta is the father of the informant. He has stated about the solemnization of marriage between the informant and the appellant-accused person and also stated about demand of Rs.20,000/- and a Colour T.V. as dowry and because of non-fulfillment of such demand, the informant was subjected to cruelty and that the informant was beaten by her in-laws. A Panchayati was also convened but the same did not yield any result. A Panchayati was also convened but the same did not yield any result. On 05.02.1998, he got information that poison was being administered to the informant and reached the matrimonial house of the informant. He found the informant in unconscious condition. He brought the informant to hospital for treatment and the doctor opined it to be a case of poisoning. After regaining sense, the informant informed him about the incident of 05.02.1998 at 10:00 A.M. when the appellant-accused person along with co-accused persons assaulted her and forcibly administered poison. The informant was in the house of the P.W.1 till 10 days before the incident. In his cross-examination, he has stated that though Panchayati was convened, the matter was not reported to police. P.W.1 got the information about the incident at about 02:00 P.M. but he cannot say the name of the person who informed about the occurrence to him. The P.W.1 on reaching the matrimonial house of the informant found all the accused persons of the case trying to cause vomiting of the informant. The informant regained her consciousness in the morning on 06.02.1998 and the vomit of the informant was preserved in a glass bottle. In paragraph no. 12 of his cross-examination, he has stated that he brought the informant to hospital from her matrimonial house at 09:00 P.M. In paragraph no. 17, the P.W.1 has stated that the informant was working in a private school under the Jharkhand Education Project and also an agent of L.I.C. 7. P.W.2 – Ajay Kumar Mehta is the brother of the informant. He has stated that the occurrence took place on 05.02.1998. The informant was brought to the hospital in a scooter by the P.W. 1 and 2. He has also stated about the demand of Rs.20,000/- and a Colour T.V. made by the appellant-accused person and others and for non-fulfillment of the same, the informant was administered poison. In his cross-examination, he has stated that he could not state the name of the person who intimated him about the informant being administered poison. In paragraph no. 22 of his cross-examination he has stated that the appellant-accused person and others were there in the house but none of them prevented the P.W.2 and his father from taking the informant to hospital. 8. P.W.4 – Prabha Devi is the mother of the informant. In paragraph no. 22 of his cross-examination he has stated that the appellant-accused person and others were there in the house but none of them prevented the P.W.2 and his father from taking the informant to hospital. 8. P.W.4 – Prabha Devi is the mother of the informant. She has stated about the demand of Rs.20,000/- and Colour T.V. by the appellant-accused person and the co-accused persons and due to non-fulfillment of such demand, the informant was subjected to torture and cruelty and she was administered poison. In her cross-examination, she has stated that the demand of money and T.V. was made in her presence and the same was narrated to her by her husband being the P.W.1. After marriage, the informant stayed for about four years in her matrimonial house. First two years she was alright and in the last two years there used to be dispute. The appellant-accused person is a farmer. In paragraph no. 13 of her cross-examination, she has stated that the informant has no issue out of the wedlock but she did not know why the informant did not have any issue. 9. P.W.6 – Dr. Amitabh Ganguly is the doctor who conducted the medical examination of the informant. He has stated that on 05.02.1998, on examination of the informant, he found that it was a case of suspected poisoning. The vomiting material was preserved for medical analysis, hence he reserved his opinion about the same. He did not find any injury mark on the body of the informant. The age of injury was 14:00 hours. His medical examination report was marked Ext.2. He examined the informant at 11:45 P.M on 05.02.1998. In his cross-examination he has stated that he cannot say in the absence of the report of chemical examination that it was a case of poison or not. 10 P.W.7-NareshPaswan is the Investigating Officer of the case. He has stated that on 06.02.1998 he was entrusted with the investigation of the case and on being proved by him, the fardbeyan was marked Ext.1/2 and the endorsement regarding registration of the case was marked Ext.1/3. The formal FIR has been marked Ext.3. During the course of investigation, the P.W.7 recorded the statement of P.W.3 and other witnesses and collected the medical examination report of the informant from the hospital. The formal FIR has been marked Ext.3. During the course of investigation, the P.W.7 recorded the statement of P.W.3 and other witnesses and collected the medical examination report of the informant from the hospital. The requisition for medical examination of the injured on being proved by P.W.7 has been marked as Ext.4. He described the place of occurrence with its boundaries. P.W.7 submitted charge sheet against this appellant-accused person and P.W.5 is the second I.O. of the case, has submitted charge sheet against the co-accused persons after being entrusted with the investigation upon transfer of the P.W.7. 11. P.W.8-Gopal Jee Jha is an Assistant of Forensic Science Laboratory, Ranchi. He produced the chemical analysis report along with the letter of the forwarding addressed to the court. The forwarding letter was marked Ex.7 and the chemical analysis report was marked as Ext. 8. He further stated that on examination following was found:- “On the basis of chemical analysis conducted in the Laboratory, “Zinc- Phosphide” was detected in the contents of the glass bottle described above, Zinc-Phosphide is a gastro-intestinal irritant, which is used for killing rats and is poisonous.” He cannot say under whose signature the substance examined was packed in the container. In his cross-examination, he has stated that he cannot say whether the seal contained the signature of the medical officer. He cannot say that the vomit sent for analysis is of the year 2004 or before that year. He has not enquired from the medical officer as to why there was delay in sending the sample for chemical analysis. The stomach wash was sent in the year 2004 but he cannot say when the same was packed. There is difference between the vomit and dirty water. He has not mentioned the method of the test. 12. After closure of the evidence of the prosecution statement under Section 313 Cr.P.C. of the appellant accused person regarding the circumstances appearing in evidence against him was recorded wherein he denied the circumstances appearing in evidence against him and took the plea of false implication. 13. He has not mentioned the method of the test. 12. After closure of the evidence of the prosecution statement under Section 313 Cr.P.C. of the appellant accused person regarding the circumstances appearing in evidence against him was recorded wherein he denied the circumstances appearing in evidence against him and took the plea of false implication. 13. In his defence the appellant-accused person and the co-accused persons of the case examined three witnesses but they have all been examined on the point of alibi of the co-accused person namely Badri Prasad Mahto and his family being not present at the place of occurrence as Badri was involved in election duty and his family members were staying with him. 14. After considering the evidence, both oral and documentary, in record, learned court below convicted and sentenced the appellant-accused person as already indicated above. 15. Mr. Anil Kumar, the learned Senior Advocate appearing for the appellant submits that the learned court below failed to appreciate the evidence in its proper perspective and failed to consider the major contradictions in the testimonies of the witnesses of the prosecution. It is further submitted by learned Senior Advocate that there is an inordinate delay and unexplained delay in registration of the F.I.R. because as per the prosecution case, the fardbeyan was recoded on 06.02.1998 but the F.I.R. was registered only on 27.02.1998. Further there is unexplained delay in forwarding the F.I.R. to the court because the F.I.R. was placed before the Chief Judicial Magistrate, Hazaribagh only on 04.03.1998 and though this question was specifically put to the Investigating Officer being the P.W.7, in his cross-examination he failed to come out with any explanation for the same and this inordinate delay creates a doubt about the veracity of the prosecution case and the learned court below erred by not considering this important fact. It is further submitted by the learned Senior Advocate that though the occurrence of the alleged vomit was made on 05.02.1998 but the same was sent to the Forensic Science Laboratory only on 03.06.2004 and there is absolutely no evidence in the record as to where the said vomit was for all the six years and the P.W.8 has categorically stated that he cannot say whether the same was sealed by the medical officer and the prosecution has failed to bring on record any evidence in this respect, this also creates doubt about the chemical analysis report of the alleged vomit and hence the chemical analysis report in the facts of this case cannot be relied to conclude that the alleged vomit of the informant contained any poisonous substance. In support of his contention, learned Senior Advocate has relied upon the judgment of Hon’ble Supreme Court in the case of Sree Vijaya kumar and Another vs. State reported in (2005) 10 SCC 737 wherein in the facts and circumstances of that case, the Hon’ble Supreme Court has held as under:- 12. …. …. ….. … Curiously, there is no evidence to the effect that the items sent to the Magistrate for onward transmission to the chemical examiner were the same that were handed over to him by PW 9 and that they were sealed by the hospital authorities. Though PW 9 stated that the skin taken from the leg was preserved in sodium chloride solution for chemical analysis, he did not state that any seal was affixed thereon and handed over to the Inspector. The IO, PW 14 who sent the requisition to the Magistrate or any other police officer did not state that he received the preserved sample of skin form the hospital with the seal of the hospital. Even if the sample was collected from the hospital, the possibility of meddling with it in the absence of seals cannot be ruled out especially when there was a time lag of nearly three months in sending the article to the Magistrate. No doubt, a suggestion would arise only if the IO had deposed to the factum of collecting the sample from the hospital and sending it to the Magistrate in the same form. No doubt, a suggestion would arise only if the IO had deposed to the factum of collecting the sample from the hospital and sending it to the Magistrate in the same form. It is, therefore, not safe to rely on the chemical examiner’s report to reach a conclusion that petrol was splashed on the deceased by A-1 before the burning lamp was thrown at him by A-2.” It is further submitted by the learned Senior Advocate that the fardbeyan of the informant is silent about the demand of colour T.V. and the demand of colour T.V. was introduced for the first time in the deposition of the prosecution witnesses, is the improvisation of the fardbeyan of the informant and it is further submitted that in the backdrop of the unusual delay in registration of the case and non-examination of the A.S.I. Upendra Singh who recoded the fardbeyan of the informant, makes the case of the prosecution further doubtful and withholding of the independent witnesses of the case who were cited as witnesses in the charge sheet without any plausible reason also is a circumstance which creates doubt about the case of the prosecution. Mr. Anil Kumar, learned Senior Advocate further submits that as per the testimony of the P.W.3 she regained sense between 9.00 p.m.-9:30 p.m. on 05.02.1998 whereas the same is contradicted by the testimony of the P.Ws.1 and 2 as according to them the P.W.3 regained sense only in the morning on 06.02.1998. Further the examination by the doctor of the P.W.3 at 11:45 p.m. on 05.02.1998 indicates that the P.W.3 regained sense by that time as nothing has been mentioned in the injury report of informant marked as Ext.2 to suggest that she was unconscious at the time of medical examination. It is next submitted that there is contradiction in the testimonies of the P.W.6 and P.W.3 in the sense that though the P.W.3 has stated that she has shown the marks of injury of stick to the doctor but the P.W.6 has categorically stated that he did not find any sign of injury on any part of the body of P.W.3. It is further submitted that by deliberately withholding of the fact that the P.W.3 regained sense on 05.02.1998, indicates that the P.Ws.1 and 2 are not truthful witnesses. It is further submitted that by deliberately withholding of the fact that the P.W.3 regained sense on 05.02.1998, indicates that the P.Ws.1 and 2 are not truthful witnesses. It is also submitted that there is contradiction in the testimonies of P.Ws.3, 2 and 1 in respect of the container in which the vomit was kept as the P.W.3 has stated that the alleged vomit was kept in the foil whereas the P.Ws.1 and 2 has stated that it was collected in glass bottle. It is further submitted that as it is admitted case of the prosecution that the demand of dowry was not condition of the marriage and that for two years, the marriage of the informant with the appellant-accused person was going on smoothly, it is highly improbable that suddenly one fine morning the appellant-accused person will demand Rs.20,000/- and a Colour T.V. as dowry, more so, when admittedly the appellant-accused person is not a service holder and the informant after the alleged occurrence is on a job as a teacher and was also working as an L.I.C agent. Mr. Anil Kumar, learned Senior Advocate further submits that there is evidence in record that the P.W.3 did not have any issue out of the wedlock and that the appellant-accused person was not willing to allow the informant to work as a teacher and the same appears to be most probable reason for disharmony in the marriage between the appellant-accused person and the informant has cooked up the story of demand of dowry and administering of poison to her, in order to make out a ground for dissociating herself from the appellant-accused person. Hence, it is submitted that the appellant accused person be acquitted by at least giving him the benefit of doubt. 16. Learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the report of the Forensic Science Laboratory marked as Ext.8 has categorically stated presence of poison being Zinc Phosphide in the sample of vomit which is ordinarily used for killing rats and is poisonous. 16. Learned Addl. P.P. on the other hand defended the impugned judgment and submitted that the report of the Forensic Science Laboratory marked as Ext.8 has categorically stated presence of poison being Zinc Phosphide in the sample of vomit which is ordinarily used for killing rats and is poisonous. The P.W.3 who is the sole eye-witness of the incident of 05.02.1998 has categorically stated about the appellant-accused person along with co-accused persons having forcibly administering poison to her and has also stated about the demand of dowry of Rs.20,000/- and a Colour T.V. and thus her testimony has been corroborated by the material witnesses being the P.Ws.1 and 2 and also the medical evidence of the P.W.6- the doctor who examined her. Hence, the evidence in record is sufficient to establish all the charges for which the appellant-accused person has been convicted and sentenced and thus the learned court below having rightly convicted and sentenced the appellant-accused person, this appeal being without any merit be dismissed. 17. Having heard the submissions made at the Bar and after carefully going through the record, I find that there is an inordinate and unexplained delay in registration of the FIR as also forwarding the FIR to the court. There is absolutely no evidence in record that the vomit was forwarded to the Magistrate for its onward transmission to the chemical examiner in the Forensic Science Laboratory. There is absolutely no evidence as to who is the person who sealed the container of the said vomit and where the said sample was kept for about six years and why the same was not sent for chemical examination for about six years. Though the P.W.8 has categorically stated that there is distinction between the vomit and dirty water yet perusal of Ext.8 shows that the glass bottle from which the liquid was used for chemical analysis contained 50 ml of dirty water as liquid. There is no mention of the same being as vomit. Under such circumstances keeping in view of the decision Hon’ble Supreme Court in the case of SreeVijaya kumar and Another vs. State (supra)under similar facts this Court is of the considered view that in this case also it will not be safe to rely upon the chemical examination report marked as Ext.8 to reach the conclusion that the vomit contained poisonous substance. Hence this court is of the considered view that the evidence in the record is insufficient to establish the charge for the offence punishable under section 328 of the Indian Penal Code. So far as the evidence regarding the offence punishable under Sections 498A of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act are concerned, except for the incident of 05.02.1998, there is no specific evidence of any other incident having ever taken place. Admittedly the marriage of the appellant-accused person with the informant-P.W.3 was going on smoothly for two years. The appellant-accused person is not a job holder. There is discrepancy in the testimonies of P.Ws.3 and 4 regarding exactly what he was doing as the P.W.3 has stated that he was involved in contract work of poultry but P.W.4 has stated that he was a farmer. Admittedly the P.W.3-informant after this alleged occurrence has been working as a teacher and also as an LIC agent and thus she is having much more potential of earning then her husband and also there is evidence that the appellant-accused person was not inclined to allow the informant-P.W.3 to work as a teacher. When the husband is having less ability to earn than his wife but still he is not inclined to allow his wife to join a service, it is improbable that such a husband after two years of smooth marriage will on one fine morning suddenly start demanding dowry. There is evidence in record, as already indicated above that the P.W.3 did not disclose about the demand of dowry to anybody in her matrimonial village or her paternal village. The independent witnesses have stated before the P.W.7-Investigating Officer that the appellant-accused person never demand any dowry nor ever assaulted the P.W.3. In this backdrop, considering the facts and circumstances of the case as discussed above, this Court is of the considered view that this is a fit case where the appellant-accused person be acquitted by giving him the benefit of doubt. 18. Accordingly, the appellant-accused person namely Tulsi Prasad Mehta is acquitted of all the charges for which he has been convicted by giving him the benefit of doubt. 18. Accordingly, the appellant-accused person namely Tulsi Prasad Mehta is acquitted of all the charges for which he has been convicted by giving him the benefit of doubt. Accordingly the impugned Judgment of conviction dated 27.02.2006 and Order of sentence dated 28.02.2006 passed by the learned 1stAdditional Sessions Judge, Hazaribagh, in Sessions Trial No. 7 of 2001 being not sustainable in law is set aside. 19. Perusal of the record reveals that the appellant-accused-Tulsi Prasad Mehta is in custody. In view of his acquittal, he is directed to be released from custody unless his detention is required in connection with any other case. 20. Let a copy of this Judgment be sent to the learned court below forthwith. 21. In the result, this appeal is allowed.