IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 220 of 1998 Decided on : April 28, 2010 State of H.P. …Appellant Versus Lachhman Dass ...Respondent Coram: The Hon’ble Mr. Justice Surjit Singh, Judge The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr. N.K. Thakur and Mr. Ramesh Sharma, Advocates. For the Respondent: Mr. Rajinder Dogra, Additional Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (oral) This appeal by the State is directed against the judgment, dated 1.1.1998, of learned Sessions Court, Una, whereby respondent Lachhman Dass, who was tried for offence, under Section 328 IPC, has been convicted of offence, under Section 328 read with Section 511 IPC and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs.1000/-; in default of payment of fine to undergo imprisonment for a further period of three months. 2. Prosecution’s case is that on 31.3.1996 PW-1 Jiwan Kumar was selling Chhola-Bhatura and Dahi-Bada on Whether reporters of the local papers may be allowed to see the judgment? …2… a Rehdi at Old Bus Stand, Una, when around 6.30 p.m. respondent Lachhman Dass, living in the same locality as PW-1 Jiwan Kumar, went there and purchased a plate of Chholas. PW-1 Jiwan Kumar went to a nearby shop to buy plastic bags, when the respondent was still eating Chollas. Jiwan Kumar saw the respondent pouring something in the container of Dahi-Bada. He raised alarm. His uncle PW-2 Kabal Singh, who was present nearby, was attracted by the alarm raised by him. Both of them overpowered the respondent. In the meanwhile, PW-3 Constable Ashwani Kumar and PW-6 ASI Bidhi Chand also reached the spot. Dahi-Bada was poured into a plastic container. That container was made into a parcel and sealed. Statement, under Section 154 Cr. P.C., of PW-1 Jiwan Kumar was recorded. The same is Ext. PA. Case, under Section 328 IPC, was registered on the basis of this report, vide FIR Ext. PW6/A. Sealed parcel, containing Dahi-Bada, was sent to Chemical Examiner, who vide report Ext. PC, reported that Dahi-Bada contained traces of aluminum phosphide. 3. Respondent was challaned. He was charged with offence, under Section 328 IPC. He pleaded not guilty. Therefore, he was tried. 4. Prosecution examined Jiwan Lal as PW-1, his uncle Kabal Singh as PW-2, Constable Ashwani Kumar as PW-3 and ASI Bidhi Chand as PW-6. 5. Respondent in is statement, under Section 313 Cr. P.C., denied that he had gone to the Rehdi of PW-1 …3… Jiwan Kumar or had added anything to the container of Dahi-Bada. He claimed that he had been falsely implicated, because father of PW-1 Jiwan Kumar owed a sum of Rs.800/- to him, which he had been repeatedly demanding, but was not being paid to him. 6. Trial Court came to the conclusion that it was a case of attempt to voluntarily cause hurt by means of poisonous substance and consequently convicted the respondent, under Section 328 read with Section 511 IPC and sentenced him, as aforesaid. 7. State is aggrieved by the finding of the trial Court that this is a case of attempted hurt by poison and the quantum of sentence. So, it has filed the present appeal. 8. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. 9. In our considered view, the evidence on record does not prove the commission of any crime by the respondent, beyond reasonable doubt. No container of poison or anything else, not even a piece of paper in which the poison might have been carried by the respondent, was recovered from the respondent, though he was overpowered and apprehended on the spot, per prosecution evidence. Respondent could not have carried the poison, which was in the shape of powder, according to prosecution …4… version, in his fist. Non-recovery of any container or a piece of paper etc. renders the prosecution case doubtful. 10. Also, we notice some contradictions in the evidence of the prosecution. According to PW-1 Jiwan Kumar, respondent after adding poisonous powder in Dahi- Bada, ran towards Santokhgarh and was given a chase and overpowered at a distance of about 10 feet from the site of Rehdi. However, his uncle PW-2 Kabal Singh stated that the respondent was overpowered at the site of Rehdi itself. 11. Though PW-6 ASI Bidhi Chand claimed to have reached the spot on hearing hue and cry raised by PW-1 Jiwan Kumar, statement of PW-3 Constable Ashwani Kumar suggests that PW-6 ASI Bidhi Chand was not on the spot. The witness has stated that after the respondent was overpowered and nabbed, he was taken by him, PW-1 Jiwan Kumar and PW-2 Kabal Singh to the Police Station and the container of Dahi Bada had also been carried by them to the Police Station. Testimony of PW-3 Constable Ashwani Kumar gives a complete lie to the statement of PW-6 Bidhi Chand, who says that he poured the contents of Kunda, containing Dahi-Bada, into a plastic jar on the spot and sealed the same. 12. Further, even though statement of PW-1 Jiwan Kumar, under Section 154 Cr. P.C., purports to have been recorded on 31.3.1996 itself and the FIR on the basis of that statement also purports to have been recorded on that very day, the copy of the FIR was despatched to Magistrate …5… and other superior officers on 2.4.1996, as is clear from the date recorded against the column in the FIR, regarding date and despatch of FIR. Copy of FIR reached the Magistrate on 3.4.1996, per endorsement made by him. In view of the above stated position, we set aside the conviction and the sentence of the respondent for offence, under Section 328 read with Section 511 IPC. Consequently, the appeal filed by the State becomes infructuous and is dismissed. (Surjit Singh), J April 28, 2010(ss) (V.K. Sharma), J.