1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.635 of 2006 - - - - Against the judgment of conviction and order of sentence dated 9.5.2006 and 11.5.2006, respectively, passed by the Additional Sessions Judge- cum-Fast Track Court-V, Bettiah, West Champaran, in Sessions Trial No. 236 of 2004/199 of 2004. - - - - Ashok Chaudhary son of Badri Chaudhary, resident of Village Bagaha-2 Narainpur, P.S.Bagaha, District West Champaran, Bihar .... .... Appellant Versus The State Of Bihar .... .... Respondent Appearance : For the Appellant : Shri Ravi Shankar Sahay, Adv. Shri Ajay Nandan Sahay, Adv. Shri Anand Kishore Chaudhary,Adv. For the Respondent : Shri Ajay Mishra,A.P.P. - - - - P R E S E N T THE HONOURABLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The solitary appellant was tried by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-V, Bettiah, West Champaran, after being charged under Sections 379 and 328 of the Indian Penal Code in Sessions Trial No. 236 of 2004/ 199 of 2004 and by judgment dated 9.5.2006 was found guilty of committing those offences. After being heard on sentence, the learned trial Judge was directing the appellant by his order of sentence dated 11.5.2006 to suffer rigorous imprisonment for three years as also to pay a fine of 2000/- under Section 379 of the Penal Code. As regards the conviction of the appellant under Section 328 of the Penal Code, the appellant was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs. 5,000/-. In case of default in payment of fine, the appellant was directed to suffer simple imprisonment for six months. Because there was no alternative direction in case of default in payment of fine, this Court assumes that a composite order for suffering S.I. for six months was passed on account of 2 non-payment of the fine on the above two counts. However, the learned trial Judge directed the sentences to run concurrently. 2. S.I. Raj Kumar Prasad Singh, P.W. 2, who was posted in G.R.P.S., Narkatiaganj, recorded his self statement on 8.2.2004 at 1.30 P.M. stating therein that while he was on patrolling duty on the same Narkatiaganj Junction railway platform, he found that a man was coming out of the rear bogey of the train carrying with him an attaché case. The informant entered inside the bogey to find that a man was lying unconscious. He got suspicious and asked the man carrying the briefcase to stop. The man started running. The informant and his companions chased to catch the man and it was this appellant who was not carrying the keys of the attaché case which was containing some belongings of someone. The appellant was also found carrying Rs. 1150/-. The attaché case and the money recovered from the possession of the appellant were seized by preparing the seizure report Ext-1. The man was brought out from the bogey and he was hospitalized. 3. The man came around and regained his consciousness and pointed out that the attaché case belonged to him. He also produced the keys of the attaché case and the attaché case was unlocked. On enquiry the man P.W. 6 Umesh Sahni pointed out his name and also pointed out that he had been picked of Rs. 1150/- and on being shown the money he claimed the same as belonging to him. The attaché case was containing a few clothes and two Philips radios and those were also identified by the victim P.W. 6 Umesh Sahni. 4. On the basis of self statement of P.W. 2, Raj Kumar Prasad Singh, the F.I.R. of the case was lodged and the investigation was carried out 3 which ended in the trial of the appellant and his ultimate conviction and sentence as pointed out at the very out set of the present judgment. 5. Learned counsel for the appellant has submitted that it might be true that some of the witnesses who are police personnel have supported the above story, but the real witness P.W. 6 did not identify the appellant as the person who had committed the offence. It was contended that the Doctor who treated Umesh Sahni, (P.W. 6) was not examined and, as such, there was complete lack of evidence as regards the offence under Section 328 of the Penal Code. The contention was that on account of the victim not identifying the appellant, the charge under Section 379 of the Penal Code was also suspected and not proved. 6. Shri Ajay Mishra, learned A.P.P. appearing on behalf of the State submitted that it might be a case that P.W. 6 had not identified the appellant but if the court peruses his evidence it may come to a conclusion that he had, nonetheless, supported the prosecution story which gets corroborated from the evidence of the informant which has been corroborated by other police personnel. The document Ext. 3 indicates the seizure of the attaché case and Rs. 1150/- and the evidence of P.W. 6 indicates that he had keys with him by which the attaché case was unlocked whereafter he identified the articles kept inside it and that he had indicated the details of the articles to the informant. 7. For proving the charge under Section 328 of the Penal Code it is necessary for the prosecution to establish by evidence that the accused had in his custody a poisonous or any stupefying substance. It has also to be established by the prosecution that the accused had an opportunity and that opportunity he had availed and thereafter he administered the 4 poisonous or stupefying substance to the victim of the offence as a result of which loss of consciousness or life was caused to him. If any of the above ingredients is not established by evidence then the law is too well known that the charge under Section 328 of the Penal Code shall stand not proved. It is not disputed in the present case that the Doctor who had treated P.W. 6 had not been examined and, as such, there was no evidence that P.W. 6 had been administered any poisonous substance on account of which he had lost his consciousness. Even, this Court assumes that his unconsciousness was induced as is told by P.W. 6 by the tea which was taken by him and which as per P.W. 6 was offered by the present appellant. There is no evidence to show that the tea which was blended or poisoned with stupefying substance was given by the appellant and further that particular substance was in possession of the present appellant. In that view of the matter, this Court upholds the contention of the learned counsel for the appellant that the charge under Section 328 of the Penal Code was not established to the hilt as a result of which the conviction of the appellant Ashok Chaudhary under Section 328 of the Penal Code cannot be upheld. 8. So far the conviction of the appellant under Section 379 of the Indian Penal Code is concerned, there is no direct evidence on the proof of the charge that any one had seen the appellant picking up the briefcase or further picking up the pocket of the victim P.W. 6 so as to taking away Rs. 1150/- from his possession. But, the circumstantial evidence appears of direct nature as all the witnesses have stated that the briefcase was found being carried by the present appellant and further he was found carrying Rs. 1150/- which money was picked up from the pocket of P.W. 6. 5 Umesh Sahni. P.W. 6 has stated to this effect also that the keys of the attaché case were with him and P.W. 2 and others have stated that the keys were produced by P.W. 6 by which the attaché case was opened. It is true that the victim was asked to point out the contents of the brief case and on opening the briefcase, the articles found kept therein were tallying with them which were claimed kept by the victim inside it. The pick pocketing of P.W. 6 was also seen by P.W. 2 and others and on being shown the money, he was identifying it. Thus, there is clear evidence that this appellant had removed the belongings of the victim P.W. 6 from his possession when the victim was made to lose his consciousness by anyone or maybe by the appellant with an intention to cause loss of property to P.W. 6 wrongfully and, thereby, committed the offence by wrongfully gaining himself. Thus, the offence under Section 379 of the Penal Code was fully established and the conviction of the appellant for that offence is upheld. 9. In the result, the appeal partly succeeds. The appellant is acquitted of the charge under Section 328 of the I.P.C. and the order of sentence inflicted upon him for committing that offence is hereby set aside. As regards the conviction of the appellant for committing the offence under Section 379 I.P.C., the same is hereby upheld and the sentence inflicted upon him under that count is left undisturbed. 10. The appellant is in custody since 8.2.2004.He is directed to be released from custody forthwith if he has served the period of three years which was inflicted upon him as sentence under Section 379I.P.C. If he has not been released and is still in custody, then on account of his remaining in custody the sentence of fine shall stand waived because he is 6 supposed to have served the sentence for more than three years and six months from the date of very inception of the present case. ( Dharnidhar Jha, J.) Patna High Court The 11th July, 2011 Kanth/N.A.F.R.