-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 588 OF 2007 Milind Madhukar Datar : .. Appellant. Age 39 years, : (Org.Accused no.1) Convict prisoner No.C-4142 : undergoing sentence at Kolhapur : Central Jail, Kalamba & previously: residing at Kachare Hsg.Society, : Plot No. 147, Jaysingpur, : Tal. Shirol, Dist. Kolhapur. : V/s. The State of Maharashtra : .. Respondent. (At the instance of Miraj Railway : Police Station, Sangli) : ---- (Through Jail) Mr.Murtaza Najmi, Advocate appointed for the Appellant. Mr. A.S. Shitole, APP for the State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 10th FEBRUARY,2009 DATED : 10th FEBRUARY,2009 DATED : 10th FEBRUARY,2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant is convicted by the Addl. Sessions Judge-2, Sangli vide his Judgment and order dated 23rd of March, 2007 for the offence punishable under section 328 read with section 34 of the Indian Penal Code and sentenced to suffer R.I. for ten years. The appellant accused is further convicted for the offence punishable under section 379, read with section 34 of the IPC and -: 2 :- sentenced to suffer R.I. for three years. 2. The prosecution case in short is as follows : i. Complainant-PW-1, Balasaheb Rajaram Shelake, the resident of Pandharpur had gone to Mumbai on 26.05.2005 to attend the marriage of one Jayshree Ashok Kothawale, resident of Sangli. After attending the said marriage, PW-1 complainant returned to Sangli and halted there. On 28.05.2005 at about 11.30 a.m., he boarded the train scheduled to Pandharpur from Miraj. It is alleged that the present appellant alongwith absconding accused one Deepak Shivsharan offered "Chiwada" to the Complainant. Initially, the complainant refused, however, at the later stage in view of the insistence of the appellant, the complainant eat the said Chiwada. After about 15 minutes, the complainant felt giddiness and his mouth got dried and he became restless. On the next day, i.e. 29.05.2005 at about 11 a.m., the complainant regained consciousness; he found himself at Sangola and also found that his mobile phone, charger alongwith bag of clothes are missing. The complainant, thereafter, came to Pandharpur by Jeep and went to the house of his in-laws. The mother-in-law of the complainant PW-2 Kasturbai -: 3 :- suspected that the complainant might be under influence of liquor. However, after the complainant disclosed the story, he was taken to the hospital of PW-7 Dr. Benare. ii. On 2nd of June, 2005 the PW-4-Police Head Constable Shri Narute at about 2.30 p.m. found the appellant in suspicious condition, wandering at S.T.Stand, Pandharpur. The complainant was taken to the Pandharpur Police Station. The enquiry regarding mobile phone in appellant’s possession was made. The appellant told that the same belongs to his friend. At that time, there was a call on the said mobile which was received by the PW-4 Police Head Constable -Narute. The person calling was inquiring as to how the mobile came in possession of the PW-4 police constable. On inquiry by the PW-4, the person calling on the said mobile gave his name as Vikram Rajaram Shelake and told PW-4 that somebody had administered stupefying drugs to his brother, the complainant and has stolen the mobile set, clothes and cash in a running train from Miraj to Pandharpur. Vikram Rajaram Shalake PW-3 alongwith the complainant came to the police station. PW-1 identified the accused and his mobile set, clothes etc. -: 4 :- 3. Since the alleged offence was committed at Miraj Railway Station, the Pandharpur Police Station registered the offence at zero entry and transferred the same to the Miraj Railway Police Station. PW-9 and PW-10 are the investigation officers attached to the Miraj Railway Police Station, who recorded statements of the witnesses and ultimately chargesheet was filed against the present appellant by the PI Chavan in the court of Judicial Magistrate, First Class, Miraj for the offences stated herein above. Since the offence punishable under section 328 was exclusively trible by the court of sessions, the case was committed to the court of Sessions Judge, Sangli. 4. The charge was framed against the accused at Exh. 2 for the offence punishable under section 328 and 329 read with section 34 of the IPC. The same was explained to the accused in vernacular, however, the accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. 5. In order to prove the guilt of the accused, the prosecution examined 10 witnesses. At Exh. 5, PW-1 Complainant-Balasaheb Rajaram Shelake was examined. PW-2- Smt. Kasturbai Aneba Hunde, the mother in law of the complainant was examined at Exh.8. PW-3 Vikram Rajaram -: 5 :- Shelke was examined at Exh.9 to corroborate the version of the complainant PW-1. PW-4 Oghsindha Somanna Narute, Police Head Constable was examined at Exh.13. PW-5 Sikandar Makbul Mulla, the panch witness was examined at Exh.14 in order to prove recovery of clothes. PW-6 Santosh Janardhan Shelake is examined at Exh. 21 in order to prove panchanama of the attached mobile set, charger and one bag of the accused. PW-7 Dr. Shankar Govind Benare is examined at Exh. 27 to prove the medical case papers of the complainant. PW-8 Head constable Deelip Baburao Sherkhande is examined at Exh. 31 to prove the report. PW-9 PSI Isbar Babalal Sayyad is examined at Exh.35 and PW-10 Smt. Suvarna Prasad Patki, API is examined at Exh.36. 6. At the outset, Mr. Najmi, learned counsel for the appellant submitted that there is enough evidence on record regarding appellant’s complicity in an offence punishable under section 379 of the I.P.C.. Therefore, he does not challenge appellant’s conviction for that offence. 7. Mr.Najmi, however, submitted that the prosecution failed to make out a case of administration of Dhotra seed’s powder to the complainant PW-1. In order to substantiate this submission, he took me through the -: 6 :- evidence of PW-7 Dr. Benare and pointed out that the doctor has admitted that the symptoms which PW-1 complainant was suffering are possible by consumption of Ganja or Dhotra flower. He invited my attention to the admission of PW-7 Dr. Benare, that he found pupils of PW-1 were constricted. He submitted that if a person consumes Dhotra/ Dhatura, his pupils get widely dilated. He also submitted that PW-5 was examined to prove the site or spot where the Dhotra/ Dhatura tree was situated. However, nothing was seized from the place where Dhotra tree was found. Prosecution failed to seize any samples of leaves, flowers, or seeds of Dhotra tree. He submitted that in the absence of such samples, the prosecution cannot be said to have proved beyond any reasonable doubt that in fact the tree which was shown by the appellant was that of Dhotra. 8. Mr. Shitole, learned APP submitted that there is ample evidence on record to establish the prosecution case about the appellant’s guilt under section 328 of the IPC. He supported the impugned judgment and ultimately prayed for dismissal of the appeal. 9. It is the specific case of the prosecution that the appellant/accused administered powder of Dhotra Seeds to the complainant and therefore, it was obligatory on the -: 7 :- part of the prosecution to prove beyond reasonable doubt that the powder of Dhotra seeds was administered to the complainant/ Balasaheb Rajaram Shelake. The prosecution in this regard examined PW-1- complainant, PW-5- the panchas to the spot panchanama and PW-7 Dr. Benare. PW-1 complainant in his evidence only stated that the accused offered him Chiwada and after eating the same, within 15 minutes he felt giddiness and restless and as such became unconscious. When he regained conscious on the next day he was at Sangola. He has not stated in his evidence that powder of seeds of Dhatura was administered to him by the accused. Thus the evidence of PW-1 is not helpful to the prosecution to establish that the powder of Dhatura seeds was administered to the PW-1 Balasaheb Rajaram Shelake by the appellant-accused. 10. PW-7 Dr. Benare whose evidence is relied upon by the prosecution in order to prove that the powder of Dhotra seeds was administered to the complainant/PW-1. However, after the perusal, I find the same is not helpful to the prosecution to prove it’s case. Dr. Benare on examination of PW-1 Complainant on 30.05.2005 found him in semi-consciousness state. The PW-7 doctor Benare also found that the PW-1 was feeling giddiness and dryness of the mouth. He further found that his pupils were constricted. In examination in chief itself Dr. Benare -: 8 :- testified that these symptoms are possible if somebody consumes ganja or Dhotra flower. The evidence of Dr. Benare if taken as it is, it cannot be said that the prosecution proved beyond reasonable doubt that the PW-1 complainant was administered powder of dhotra seeds. Medical certificate at Exh. 28 which is proved by PW-7 Dr. Benare mentions that pupils of the PW-1 complainant were got constricted. This symptom is contrary to the symptoms of consumption of Dhotra/Dhatura given in Chapter 42 of medical jurisprudence and toxicology written by Dr. K.S. Narayan Reddy. Chapter 42 deals with deliriant poisons. In this chapter the symptoms of consumption of dhotra tree are given. It is mentioned in the said book that if the dhotra seeds are eaten, symptoms appear within half an hour, if a decoction of the seeds is given within a few minutes and if alkaloids are used almost immediately. While describing symptoms itself, it is mentioned that the face become flushed, conjuctivae congested, and pupils widely dilated. Thus there appears to be reasonable doubt regarding the substance which was allegedly administered to PW-1 complainant by the accused. Benefit of which in my view must be given to the accused. 11. The prosecution exmained PW-5 to prove panchanama at Exh.15. PW-5 deposed that on 05.06.2005 he was called in police station alongwith another panchas and at that -: 9 :- time appellant/accused had shown spot from where he collected the seeds of Dhotra. He further deposed that the said spot is near narrow guage railway tickets office at Miraj. He also deposed that the accused had shown yellow flowers of the trees and its buds, containing small seeds of Dhotra and accordingly, the panchanama was prepared. It is surprising to note that the investigating officer neither seized leaves, flowers or seeds of the alleged dhotra trees or samples thereof. In the absence of the same, it cannot be emphatically claimed that what was shown by the appellant was the Dhotra tree. The prosecution, in my view, in this regard in order to prove that the tree which was shown by the appellant was Dhotra tree, ought to have taken samples of leaves, flowers or seeds of the said tree and sent the same to the chemical analyser and got the report from the C.A. to that effect. Thus this evidence of PW-5 is also not helpful to the prosecution to prove the charge under section 328 of teh IPC. In any case, the spot panchanama at Exh 15 and the deposition of PW-5 at the most show that the accused had knowledge that the Dhotra tree was there at the spot. This knowledge, however, is without any significance in the absence of any further attempts on the part of the prosecution as stated herein above. 12. In order to establish that the PW-1 complainant -: 10 :- sufferd food poisoning it was absolutely necessary for the prosecution to put on record the result of the tests such as urine, blood test etc.. The stomach wash of the PW-1 also ought to have been taken. However, record does not show that the complainant PW-1 did undergo any of the above mentioned tests. 13. The circumstances mentioned above, thus show that there is absolutely no material brought on record by the prosecution to prove, PW-1 complainant was administered seeds powder of Dhotra tree by the appellant accused. As such the prosecution failed to prove beyond reasonable doubt the charge under section 328 of the IPC. 14. In the facts and circumstances of the case, the Appeal is partly allowed. The appellant’s conviction and sentence under section 328 of I.P.C. is quashed and set aside. The appellant’s conviction under section 379, however, is confirmed. The appellant is in custody since last more than three years,therefore, he be set as liberty forthwith, if not required in any other case. 15. Before parting with the judgment, I put on record my appreciation for the efforts taken by Mr. Najmi, the learned counsel for the appellant accused. -: 11 :- (R.V.MORE,J.) .....