IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36080 of 2007 UMESH PANDEY, S/o Hari Pandey, Resident of Village: Bargaon, Police Station: Fatehpur, District: Gaya. ……..Petitioner. Versus 1. THE STATE OF BIHAR. 2. Birendera Singh alias Biro Singh, S/o Dwarika Singh, Resident of village: Bargaon, Police Station: Fatehpur, District: Gaya. ……Opposite party. ----------- 05. 29.01.2010 1. Heard both the parties. 2. The petitioner is aggrieved by the order dated 28.06.2007 passed in Sessions Trial No. 595 of 2007/576 of 2005 by the Additional Sessions Judge, F.T.C.-1, Gaya by which he has refused to discharge the petitioner even though there was absolutely no material against the petitioner. 3. The facts of the case accounting to the present First Information Report instituted against the present petitioner and some others is that the accused persons had been seen going with a person at 2.30 A.M. on their back which the accused threw away and the informant discovered it to be the dead body of his nephew Bunnu Singh. It was alleged in the First Information Report that it was suspected that the deceased had been killed by administering - 2 - poison to him. In the First Information Report a reference has been made about the kidnapping of the present petitioner’s daughter. During investigation the superior police officials dissented with each others’ views but finally a charge-sheet was submitted and cognizance was taken by the Magistrate concerned under Sections 328 and 302/34 of the Indian Penal Code. 4. It is noteworthy that 15 days before the occurrence the petitioner’s minor daughter Gudia had been kidnapped by the deceased for which a substantive case numbered as Fatehpur P.S. Case No. 62/02 was instituted. It transpired during investigation of the present case that when the girl was recovered, Bunnu Singh was admonished due to which he consumed a grain preservative Sulphos tablet and unfortunately died. This fact was supported by all independent witnesses examined during investigation. 5. Importantly in the Post Mortem Report Arvind Prasad Dr. of ANMC, Gaya noted Annexure-2 as follows:- “No external and Internal Injury was found any where over - 3 - Body. As it is a suspected case of poisoning following Visera have been preserved in a glass jar containing sadeemed solution of common salt 1. A portion each of lung, liver & spleen 2. one kidney & 3. Stomach with its contents. Stomach continued a cim parts like substance luding strong small (Sarlicks) of celphos, Macus membrned grossly. Conjested. Haemorhage parts were scuttered all over. Time since death-within 24 to 36 hrs. Cause of death is shock and comma & asphyxia by poisoning with Celphos the glass jar was properly labelled and sealed and was handed over to concerned constable. I.O. is directed to send the Visera immediately to Director F.S.L. Patna for chemical analysis it needed. Sd./ Dr. Arvind Prasad 25.6.02 Assoc. Prof. Dept. of F.M.T. A.N.M. Medical College-Gaya” However the final viscera report was never received so effectively apart from an oral allegation that the deceased was poisoned to death there is no cogent proof of the same. 6. After complying with the provisions of Section 207 Cr.P.C. the case was committed to the Court of Sessions and the present petitioner filed an application for discharge under Section 227 Cr.P.C. - 4 - on the ground that no offence is made out against them. 7. Undisputedly there is no eye-witness to the occurrence and the case is based on circumstantial evidence. The two circumstances appearing against the petitioner that the petitioner was seen going along with co-accused with somebody on the back who was later thrown away and discovered to be the dead body of Bunnu Singh and the second circumstance is the motive for the occurrence. 8. It appears too much of a co-incidence and quite unbelievable that the informant would in the middle of the night at 2.30 A.M. chance upon the accused carrying a dead body in an open field only to be found out to be that of his nephew the deceased. And even if believed there is no material to substantiate that it was the petitioner who administered poison to the deceased in absence of which no offence under Sections 328 and 302/34 of the Indian Penal Code would be made out. In absence of any positive material that it was the petitioner who administered poison to the deceased merely having a - 5 - motive to commit the crime is of no importance. It has been laid down by the Hon’ble Supreme Court in a decision reported in (2008) 10 SCC 394:- “Chapter XVIII CrPC lays down the procedure for trial before the Court of Session, pursuant to an order of commitment under Section 209 CrPC. Section 227 CrPC contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228 CrPC. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected, nay bound to decide whether there is “sufficient ground” to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him. It is trite that the words “not sufficient ground for proceeding against the accused” appearing in Section 227 CrPC postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each - 6 - case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused.” In view of the fact that there is just a vague suspicion not grave enough since there is no cogent material to support the factum of the petitioner having administered poison to the deceased and the death having been caused on account of poisoning, I am of the view that the petitioner is entitled to be discharged. In the result, the application is allowed and the order dated 28.06.2007 passed in Sessions Trial No. 595 of 2007/576 of 2005 by the Additional Sessions Judge, F.T.C.-1, Gaya is set aside. Vikash/- (Anjana Prakash, J.)