JUDGMENT : Hon'ble Umesh Chandra Tripathi, J. 1. This appeal is directed against the judgment and order dated 31.01.2003 passed by Additional Sessions Judge/ Court No. 10 Varanasi in Sessions Trial No. 277 of 1997 (State Vs. Babloo and others) arising out of Case Crime No. C5 of 1995, Police Station Badagaon, District Varanasi, whereby appellants Babloo Yadav, Sachcha Ram, Lal Bahadur and Sita Ram were convicted for offence punishable under Section 324/34 Indian Penal Code (here-in-after referred to as "I.P.C.") and sentenced to rigorous imprisonment for a period of three years each. 2. The brief facts of the prosecution case are that on 12.04.1995, Shri Jai Prakash, nephew of informant Durga Prasad, was coming from Varanasi city to his residence. When he reached near to "Pancho Shivala" which is about 4 Km. from his residence, at about 8:00 p.m., appellants/accused Babloo, Sachcha, Lal Bahadur and Sita Ram met him. They were sitting on the tea shop of Bharat Yadav. They caught hold Jai Prakash and on the point of country made pistol (Katta), they forcefully administered him something poisonous in tea. Jai Prakash became unconscious. On 13.04.1995 at 5:00 a.m. informant came to know from Somnath that Jai Prakash is lying on the road in unconscious condition. Informant took Jai Prakash to S.P. Gupta hospital, at Varanasi where Jai Prakash was admitted. After treatment he became conscious and narrated informant about incidence. On 15.04.1995, informant (Durga Prasad) went to police station but his report was not lodged. He sent written information to Senior Superintendent of Police, Varanasi by registered post but police has not taken any action. On application under Section 156(3) Cr.P.C. of the informant Durga Prasad, by order of concerned Magistrate, F.I.R. has been lodged on 03.05.1995 at Police Station Badagaon under Section 307 and 342 I.P.C. against accused/appellants. Jai Prakash was examined by Dr. C.M. Tiwari on 13.04.1995 at about 7:00 a.m. at S.P. Gupta hospital, Varanasi. As per medical report, there was no external injury on his body. Jai Prakash was conscious but he cannot walk, stand and sit independently. This was suspected case of poisoning. Stomach wash was preserved by Dr. C.M. Tiwari but same was not sent to chemical examination. 3. After investigation police has submitted charge sheet against accused/appellants under Sections 307 and 342 I.P.C. 4. Jai Prakash was conscious but he cannot walk, stand and sit independently. This was suspected case of poisoning. Stomach wash was preserved by Dr. C.M. Tiwari but same was not sent to chemical examination. 3. After investigation police has submitted charge sheet against accused/appellants under Sections 307 and 342 I.P.C. 4. Learned trial court has framed charges under Section 307/34, 342/31 I.P.C. against accused persons and explain charges to them. They have pleaded not guilty and claimed to be tried. 5. To substantiate charges against the accused, prosecution has been examined PW-1 Durga Prasad (Inormant), PW-2 Somnath and PW-4 Jai Prakash (Injured) as a witnesses of facts and PW-3 Dr. C.M. Tiwari and PW-5 Sub Inspector Gopal Singh (Investigating Officer) as formal witnesses. 6. After closure of prosecution evidence, statement of accused persons under Section 313 Cr.P.C. were recorded wherein they claimed their false implication and stated that witnesses of fact are deposing against them due to enmity. 7. In defence DW-1 Ramji @ Bhagat has been examined. 8. Upon detailed consideration of evidence on record, learned trial court found the guilt of accused persons for the offence punishable under Section 324/34 I.P.C. proved beyond reasonable doubt and passed the impugned order of conviction. 9. Aggrieved by the order of learned trial Judge, the appellants have preferred the instant criminal appeal. 10. Heard Shri P.C. Pandey, learned counsel for appellants and Shri L.D. Rajbhar, learned Additional Government Advocate for the State. 11. Learned counsel for appellants contended that F.I.R. of the incident has been lodged after inordinate delay without any explanation. There is material contradictions in statements of witnesses of facts. Prosecution story is unnatural and improbable. Even though learned trial court has passed the impugned order of conviction without properly appreciating the evidence on record, which is not sustainable. 12. Per contra, learned A.G.A. Contended that there is no error or infirmity in the impugned order passed by trial court and as such, the appeal is liable to be dismissed. 13. Here, it must be noted that PW-1 Durga Prasad and PW-2 Somnath are not the witnesses of the occurrence. PW-1 Durga Prasad has presented application under Section 156(3) Cr.P.C. on information of his nephew Jai Prakash. PW-2 Somnath has seen the injured Jai Prakash lying on the street and inform about this fact to informant Durga Prasad. Only PW-4 Jai Prakash (Injured) is witness of this incident. PW-1 Durga Prasad has presented application under Section 156(3) Cr.P.C. on information of his nephew Jai Prakash. PW-2 Somnath has seen the injured Jai Prakash lying on the street and inform about this fact to informant Durga Prasad. Only PW-4 Jai Prakash (Injured) is witness of this incident. The application under Section 156(3) Cr.P.C. stating the fact of this incident has been presented before Chief Judicial Magistrate, Varanasi on 27.04.1995 after fifteen days of the occurrence. In this application, it is stated that informant Durga Prasad had gone to police station on 15.04.1995. From the perusal of medial examination of Jai Prakash on 13.04.1995 at 7:00 a.m., it is evident that he was in conscious position. Even though F.IR. has not been lodged and informant has not tried to inform the police before 15.04.1995. This creates serious doubt about prosecution version. Dr. C.M. Tiwari has stated in his statement that this was the case of suspected poisoning but he could not firmly stated before the court that this is a case of poisoning. Only on the basis of suspicion, it cannot be said that this was a case of poisoning. Stomach wash was preserved but prosecution has not produced any evidence to show that it has been sent for chemical examination or as per chemical examination this is a case of poisoning. Jai Prakash in his cross examination stated that he told the name of accused person, who administered him poison, to Dr. C.M. Tiwari at hospital but Dr. C.M. Tiwari in his statement stated that injured Jai Prakash has not told him the name of accused person. As per F.I.R. and application under Section 156(3) Cr.P.C. occurrence has taken place at distance of 4 Km. From the residence of informant at Shivala but PW-4 Jai Prakash admitted in his cross examination that the place of occurrence is at a distance of 400 mtr. from his residence. 14. PW-4 injured Jai Prakash admitted that at the time of occurrence, tea shop of Bhagat Yadav was opened and also admitted this fact that in front of tea shop of Bhagat Yadav, there is a tea shop of Pakhandu. On the place of occurrence there is also shop of Sharda Yadav and Chedi. This fact is also corroborated by site plan Exhibit Ka-5, wherein a numbers of shops have been shown on the place of occurrence. On the place of occurrence there is also shop of Sharda Yadav and Chedi. This fact is also corroborated by site plan Exhibit Ka-5, wherein a numbers of shops have been shown on the place of occurrence. Occurrence has taken place as per prosecution version, at about 8:00 p.m. Even though it is surprising that no person has tried to save Jai Prakash. Jai Prakash has not sustained any injury. This is also not natural that a person was administered poison by his enemies and he has not tried to struggle and save himself. If Jai Prakash tries to save himself and struggle, then it was not possible that he sustain no injury. Jai Prakash further stated before court in his cross examination that at the time of occurrence, he could not see whether other shop situated on the spot were open or not. He also could not see whether at that time, people are coming or going from the spot or not. He further stated that he tried to escape but he could not succeed. Accused caught him and pressed his mouth and forcefully administered tea in his mouth. This is not possible for four person to forcefully administer tea to a young man. He further admitted that he had not make any alarm after incident. If his enemies forcefully administered him poison then his natural conduct was to make alarm. All these facts and contradictions in the statement of Jai Prakash and circumstances of the case show that Jai Prakash is most unreliable witness and occurrence is most unnatural and improbable. 15. As per prosecution version, incident has taken place at the tea shop of Ramji @ Bhgat but Ramji @ Bhagat, has been examined from the defence side and stated before court that no such incident has taken place in front of his shop. 16. PW-4 Jai Prakash has admitted this fact before court that there is land dispute between him and accused. There is also civil and criminal litigation between them, in such circumstances due to enmity probability of false implication cannot be ruled out. 17. For the aforesaid reasons, I am of the considered view that prosection has miserably failed to prove the guilt of appellants/accused and accused are liable to be acquitted for the offence punishable under Section 324/34 I.P.C. 18. Accordingly, appeal is allowed. 17. For the aforesaid reasons, I am of the considered view that prosection has miserably failed to prove the guilt of appellants/accused and accused are liable to be acquitted for the offence punishable under Section 324/34 I.P.C. 18. Accordingly, appeal is allowed. Conviction of appellants Babloo Yadav, Sachche, Lal Bahadur and Sita Ram under Section 324/34 I.P.C. is hereby set aside and they are acquitted. The appellants are on bail, their bail bonds shall stand cancelled. 19. Office is directed to send a certified copy of this order to Sessions Judge, Varanasi for its compliance. Let the lower court's record be remitted back to the court concerned.