Criminal Appeal (SJ) No.240 of 1997 Against the judgment dated 04. 07. 1997 and order of Sentence dated 05. 07. 1997 passed by Shri Roop Chand 1st Additional Sessions Judge, Nalanda at Biharsharif, In Sessions Trial No. 400 of 1994/76 of 1996. Ravindra Mahto, S/o Muneshwar Mahto, resident of Village- Bhobhi, P.S. Nagarnausha (Chandi), District- Nalanda. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. Anjani Kumar, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 328 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 1,000/- and in default further sentenced to undergo rigorous imprisonment for two months. 3. The prosecution case as alleged in the F.I.R. by the informant Chandra Bhushan Prasad, Dafadar that while he was roaming in the village then he learned from the people that wife of Ravindra Mahto was administered poison. Then he went to the house of Ravindra Mahto. 2 On query about the death of the deceased accused Ravindra Mahto did not give satisfactory reply. It was further learnt that deceased is a resident of Village- Machhariyama and her husband, father-in-law, mother-in- law and other family members used to subject her to cruelty for non-fulfillment of demand. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted for offence under Sections 328, 302/34, 498A and 304 of Indian Penal Code. Cognizance taken and the case was committed to the Court of Sessions. After commitment, charge was framed against father-in- law, mother-in-law and husband of the victim. 4. During trial, nine witnesses were examined as P.W. 1, Ganauri Singh, P.W. 2, Naresh Prasad, P.W.3, Keshwar @ Jhoparhi Mahton, P.W. 4, Chandra Bhushan Prasad, P.W.5 Dr. Sharwan Kumar, P.W. 6, Suresh Prasad Singh, P.W. 7, Meghnath Jaiswal, P.W. 8 Pappu Kumar and P.W. 9, Sita Devi. 5. However, after considering the oral and documentary evidence, trial court acquitted the accused persons for offence under Sections 302, 498A and 304B of Indian Penal Code holding that death of the deceased 3 was not within seven years and murder was not for demand of dowry and even 498 A have not been established. However, acquitted the father-in-law and mother-in-law, but convicted the appellant for offence under Section 328 and sentence recorded as stated above. 6. Learned counsel for the appellant, however, contends that conviction and sentenced under Section 328 I.P.C. as there is neither any evidence that victim was administered poison by the appellant nor there is anything in the evidence that victim died out of poison. Doctor’s report suggest that death occurred due to poisoning. The viscera preserved for report of chemical examination, but no report has been received or proved in evidence. Hence, conviction and sentence is not maintainable. 7. Nine witnesses were examined. The informant, P.W. 4, has stated in the Fardbeyan that he learnt from the people from the vicinity that wife of Rabindra Mahto died due to poisoning. However, he has not mentioned the name of the people from whom he learnt and in his evidence stated that people told him that she has died due to poisoning. He has further stated that Deepak Paswan, Chaukidar, came and on query, he 4 disclosed that he heard that deceased had taken poison and that he also told that the members of the family of the sasural of the deceased used to commit cruelty on her. However, Deepak Paswan has not been examined as witness. The Doctor, P.W.5 who conduct Post Mortem examination in his evidence has stated that he found brain meninges, both lung and heart congested and intact. On dissection of abdomen, he found stomach containing 2 ounces of liquid. He has stated that in mucosa found petecheal hemorrhage with congestion. He also found all the abdominal visras congested and intact. He has opined that death occurred due to poison. He preserved the viscera of stomach and its contents, loop of intestine, right kidney, a portion of liver and a portion of spleen for chemical analysis by Forensic Science Laboratory, Patna. He has proved post mortem examination report which is Ext. 2. In cross-examination, he has stated that he had not found any foam like discharge from the mouth of the deceased. The testimony of P.W. 5 support the fact that the death of the deceased occurred due to poison on food. But in the investigation of stomach, it did not contain any food either digested or undigested. However, evidence of 5 the Doctor that there was poison, but has not been confirmed by the chemical examination report of vicera. However, there is neither evidence that poison administered nor any evidence that any poison was found. 8. P.W. 6 (I.O.) Suresh Prasad Singh stated that viscera was sent for chemical examination, but he did not receive viscera report. He investigated the case regarding poison, whether any poison or any in suspicion of the occurrence. However, in the interest of justice, there is not mentioned that foam comes out from the mouth of the patient. Doctor has also stated that he has not found any foam like discharge from the mouth of the deceased. 9. However, motive for said poisoning as alleged that appellant having illicit relation with ‘Sali’ of his younger brother which may persuaded him to administer poisoning. But there is no evidence regarding administering poison by the appellant nor there is any evidence about intention, preparation or attempt for administering poison except suspicion. 10. However, how grave suspicion may be it cannot be taken the place of prove as there is great distance between may be proved and must be proved. This 6 distant must be travel by cogent reliable and unimpeachable evidence. 11. However, having regard to the facts and circumstance, since there is no specific evidence for attempt for poison it cannot be infer that prosecution has proved the charge beyond reasonable doubt. 12. Hence conviction of the appellant mere conjecture and surmises as well as on suspicion. Hence the appellant is entitled for benefit of doubt as the prosecution has not been able to prove the charges for offence under Section 328 of I.P.C. beyond all reasonable doubt. 13. Hence, order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed and the appellant shall discharge from the liability of the bail bond. Patna High Court The 28th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)