Criminal Appeal (SJ) No.27 of 1999 Against the judgment and order of conviction dated 25. 01. 1999 and order of sentence dated 27. 01. 1999, passed by Shri Arun Kumar, Additional District & Sessions Judge IV, Gopalganj, in Sessions Trial No. 82 of 1997/38 of 1997. Anil Kumar Pandey @ Anil Pandey, son of Sri Bhagwan Pandey, Resident of Village- Barkagaon, Police Station- Mirganj, District- Gopalganj. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant : Mr. Sudhir Singh, Advocate. Mr. Raghwamand, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. For the Informant : Mr. Md. Anis Akhtar Asif Kalim. PRESENT THE HON’BLE 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 I.P.C. and sentenced to undergo rigorous imprisonment for five year and further convicted under Section 465 I.P.C. and sentenced to undergo rigorous imprisonment for one year. However, both the sentences shall run concurrently. 3. The prosecution case as alleged in the complaint petition by the complainant Jai Kishore Pandey that while the complainant was cutting grass in his maize field, accused Anil Kumar Pandey requested him to follow 2 to his house for some talk. The complainant went to the house of Anil kumar Pandey. It is alleged that accused Anil Kumar Pandey offered Barfi to the complainant and after taking said Barfi the complainant felt giddiness and he became unconscious. It is alleged that in the meantime accused person took thumb impression of the complainant on some paper. Thereafter, the complainant gain consciousness after two-three hours and raise alarm. Thereafter, it is alleged that Panchayati was convened. It was demanded to return the paper on which thumb impression has been taken which was refused by the accused so the complaint petition has been filed. 4. On the complaint, the complainant was examined on solemn affirmation under Section 200 Cr.P.C.. After taking cognizance, inquiry proceeded and the process was issued against the accused and subsequently trial proceeded after appearance and framed charge. 5. During pendency of the trial, the complainant died, hence his evidence could not be recorded but five witnesses were examined on behalf of the prosecution. P.W. 1 is the brother of the complainant has come to support the prosecution case that the complainant was 3 taken to the house of the accused Anil Kumar Pandey. There he was given sweets by which complainant got unconscious and his thumb impression was taken. However, this witness, P.W. 1 has stated in his cross- examination in para 25 that at the time when he went to the house of Anil Kumar Pandey, his brother was unconscious. He has further stated that he took his brother to the doctor. He has further stated that his brother gain conscious on the next day. He has further stated that in the complaint the name of the doctor has not been given. Hence apparently he is not a witness to give sweets nor a witness of taking thumb impression nor able to say the name of the doctor who treated the complainant. 6. P.W. 2 Mohan Mahto is Bataidar of the complainant. However, in his evidence has stated that accused person administered Laddu and after taking Laddu Jai Kishore Pandey got unconscious. He has also stated that Jai Kishore Pandey was taken to the doctor for treatment and there he was treated. He has admitted that he is Bataidar of Jai Kishore Pandey and plowing the land of the complainant and has admitted that there was enmity with the accused person. 7. P.W. 3 has come to depose that complainant 4 was being administered poison and thereafter be became unconscious. P.W. 4 has turned hostile and not supported the prosecution case. P.W.5 is hearsay witness. 8. However, taking into consideration the evidence of witness, trial court taking into consideration the evidence of the witnesses as well as taking into consideration the fact that complainant having been examined under Section 200 Cr.P.C. on Solemn Affirmation on the complaint. Hence treated the statement of the complainant under Section 200 Cr.P.C. admissible in evidence under Section 33 of the Indian Evidence Act and hold that prosecution has been able to prove that accused persons administered Pedda or Barfi which was poisonous and took thumb impression on plain paper to forge document and convicted the appellant under Section 328 and 465 of Indian Penal Code. However, acquitted the appellant for the charge under Section 384 of Penal Code. 9. Learned counsel for the appellant however, contended that evidence of P.Ws. 2, 3, 4 and 5 suffer from contradiction to each other regarding administration of poison. In the complaint petition it is stated that Barfi was administered P.W. 2 stated that Laddu was administered 5 and P.W.3 stated that poison was administered. Further, though, witnesses have deposed that after administering Pedda, Laddu or poison etc. the victim became unconscious and was taken to doctor for his treatment and on his treatment he gain conscious on the next day. However, no evidence regarding treatment of the victim by the doctor who treated the complainant has been brought on record nor the name of the doctor even disclosed. 10. Hence having regard to the fact that neither doctor has been named as witness nor doctor has been examined to corroborate the prosecution story regarding unconscious of the victim is fatal to the prosecution story with regard to the part of the prosecution case that victim was got unconscious on taking Pedda or Laddu or poison whatever may be. 11. So far admissibility of the statement of complainant under Section 200 Cr.P.C. is concerned, the said statement of complainant under Section 200 Cr.P.C. is not admissible in evidence under Section 33 of the Evidence Act in view of the fact that second proviso to Section 33 of the Evidence Act has not been complied. The evidence of witness in judicial proceeding before any 6 authority of law is relevant in a subsequent judicial proceeding or in the later stage of the same judicial proceeding regarding the fact, if the adverse party in the first proceeding had right and opportunity to cross- examine the witness. Hence the statement recorded under Section 200 Cr.P.C. on the complaint of the complainant. At the stage the accused has no way at that stage the accused has neither the right nor had opportunity to cross- examine the complainant and hence the statement recorded under Section 200 Cr.P.C. of the complainant is not admissible in evidence under Section 33 of the Evidence Act and this view is supported by decision reported in A.I.R. 2004 SC 1495 (Sachi Jena Vrs. Khadal Swain). Hence conviction under Section 328 I.P.C. based on statement of complainant as evidence admissible under Section 33 of the Evidence Act is not sustainable. 12. Having regard to the fact that statement of complainant made under Section 200 Cr.P.C. is not admissible in evidence than would remain the evidence of P.W. 1, 2, 3, 4 and 5. However, the P.W. 4 has been declared hostile. P.W. 5 is hearsay witness and P.W. 3 is a chance witness. However, evidence of P.W. 1, 2 and 3 regarding administering poison is suffered from 7 contradiction regarding substance which was administered. P.W. 1 however, stated that he came to the place of occurrence after the complainant became unconscious and he had no opportunity to see about administering of sweets. Moreover, the fact that witness, though, supported that the victim was taken to the doctor, but the said doctor has neither been named nor has been examined. Hence prosecution case and evidence that victim fell unconscious is not corroborated by medical evidence. Hence, I find and hold that prosecution has not been able to prove the charge beyond reasonable doubt under Section 428 of Penal Code and hence order of conviction and sentence recorded by the lower court for offence under Section 428 I.P.C. is hereby set aside. 13. So far offence under Section 465 of Penal Code is concerned, it has alleged that after the complainant became unconscious by taking sweets his thumb impression was taken on the plain paper by the accused. However it is strange how the complainant learnt that his thumb impression was taken when he become unconscious. The prosecution case of the complainant that he gain conscious after two-three hours whereas evidence of the witnesses that the complainant was taken 8 to the doctor and he gain conscious on the next day and hence having regard to the fact that taking thumb impression on the plain paper also suffer from discrepancies. However, it has been stated that thumb impression was taken on the plain paper, there is no evidence that said plain paper was used for any document or whether a forged document. 14. To the contrary of the defence of the accused person Exhibit. A that an agreement for sale in which injury between the parties and the accused person was pursuing the complainant to fulfill the agreement and the complainant was evading to do so and was designing for false implication of the appellant for which a Informatory Petition was filed prior to occurrence which is Exhibit. C. 15. Hence having regard to the fact and circumstance that the evidence regarding taking thumb impression on plain paper does not inspire confidence as well as merely taking thumb impression on plain paper an offence under Section 465 of Penal Code is not made out. 16. Moreover, fact that charges were framed under Section 428 and 384 of Penal Code. However, trial court recorded the conviction under section 428 I.P.C. and acquitted for offence under Section 384 I.P.C., but 9 convicted under Section 465 I.P.C. when the charge was not framed under Section 346 I.P.C. 17. Hence, conviction under Section 465 I.P.C. cannot be sustained. Section 465 I.P.C. is not minor offence of Section 384 I.P.C. and hence conviction under Section 465 I.P.C. without framing of the charge under Section 465 I.P.C. can not be sustained. Hence on both counts conviction for offence under Section 465 I.P.C is not sustainable and hence order of conviction and sentence recorded by the lower court is hereby set aside the appellant is discharge from all the liabilities of the bail bond, if any. 18. Appeal is allowed. Patna High Court. The 14th December, 2011. NAFR/m.p. ( Gopal Prasad, J.)