Criminal Appeal (SJ) No.327 OF 1994 (Appeal against the Judgment and Order dated 3.9.1994 passed by the Sessions Judge, Gopalganj, in Sessions Trial No. 117 of 1987) 1. HOSILA PANDEY, SON OF GANESH PANDEY 2. DINANATH PANDEY, SON OF BIGU PANDEY BOTH RESIDENTS OF VILLAGE CHINTU TOLA, P.S. THAWE, DISTT. GOPALGANJ. ------ APPELLANTS Versus THE STATE OF BIHAR -----------RESPONDENT For Appellants : Mr. Vikas Kumar, Advocate. For the State : Mr. R.B. Roy „Raman‟, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard. The Appellant has been convicted under Section 328 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years by a Judgment dated 3.9.1994 passed by the Sessions Judge, Gopalganj, in Sessions Trial No. 117 of 1987. The prosecution case is that on 6.1.1986 while the Informant was travelling on a train, two unknown persons came into the Compartment and gave him some sweet stating that it was “Prasad”. As soon as he had the same, he started feeling unwell on which he looked out of the window and saw one person standing at the Platform who was pointed out to the Policeman standing nearby and on chase he was arrested. He disclosed his name as Hosila Pandey and the name of the other co-accused as Appellant No. 2, Dinanath Pandey. 2 During trial, the prosecution examined six witnesses out of whom PW-1 was the Assistant Station Master at Thawe Railway Station whereas PW-2 is the Investigating Officer. PW- 3 is the Informant. PW-4 is a hearsay witness. PW-5 is a tendered witness and PW-6 is the Doctor who medically examined the Informant. On going through the evidence of PW-1 it appears that he has stated that the Appellant Dinanath Pandey had been arrested with poisoned „Batasha‟. Further, the same was also chemically examined and it was reported to be containing some drugs. PW-3 the Informant also gave a vivid picture as to how he was unwittingly given “Batasha” by the accused persons on consuming of which he became unwell. The Doctor (PW-6) who medically examined the Informant confirmed the fact that the Informant had been administered some drug. However, on going through the entire materials adduced on behalf of the prosecution it is difficult to hold that the Appellants had intended to cause hurt to facilitate the commission of an offence. Admittedly, the Appellant No. 1 is said to have offered the “Prasad” and had gone out of the Compartment. Mere offering of the incriminating sweet to the Informant, in my opinion would not make out a case under Section 328 of the Indian Penal Code. Moreover, it is also an admitted position that the accused persons have filed a case against the prosecution witnesses and, therefore, the possibility 3 of false implication cannot be ruled out. Under the circumstances, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Trial No. 117 of 1987 by the Sessions Judge, Gopalganj, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna Dated, the 21st April, 2011 NAFR/S.ALI ( Anjana Prakash, J.)