JUDGMENT
1. The sole appellant Kesho Matha has preferred this appeal against the judgment and order dated 18.12.1995 passed by 1st Additional Sessions Judge, Godda in Sessions Trial No. 64 of 1994/28 of 1995 whereby and whereunder the appellant has been convicted under Section 328 of the Indian Penal Code and sentenced to undergo R.I. for 10 years. He has further been convicted under Section 302/120B of the Indian Penal Code and sentenced to R.I. for life on both counts and all the sentences to run concurrently.
2. Brief facts leading to this appeal are that in the night of 14.12.1993 the informant PW 17 Srikant Tiwary, the Assistant Jailor of Godda Sub Jail was informed by PW 6 Head Warden that some jail inmates have fallen ill. According to the informant he along with PW 6 rushed to the premises of the jail and found that in ward No. 3, two prisoners, namely, Matal Tudu and Ram Bilash Singh were ill, to rush them to Godda Sadar Hospital. Immediately two other inmates Nuneshwar Yadav and Sheoji Yadav fell ill and they were also sent to hospital for their treatment. However during treatment in the Sadar Hospital Ram Bilash Singh, Matal Tudu and Nuneshwar Yadav were declared dead but Sheoji Yadav could survive. According to the prosecution case, when the gate of the Ward No. 3 was opened to remove the above named inmates, Sohan Yadav and appellant Kesho Matha were shouting that another inmate Triveni Sharma has mixed. poison in the milk to kill them. The informant further expressed suspicion that the incident was knowingly caused by some jail inmates in furtherance of their conspiracy and put poison in the food to create disturbance in the jail.
3. The Officer-in-Charge, Godda Police Station recorded the statement of the informant at about 1.15 a.m. and registered Godda P.S. Case No. 326 of 1993. After completion of investigation a charge sheet was submitted against the appellant Kesho Matha and one Chutari Matha since acquitted by the trial Court. Both accused persons were tried for offences under Sections 328, 302/34 and 120B of the Indian Penal Code for alleged offences. They were committed for their trial as mentioned above on 7.6.1994. The appellant has pleaded not guilty. However, the learned trial Court after examining the witnesses found and held the appellant Kesho Matha guilty under Sections 328, 120B and 302 of the Indian Penal Code and sentenced him as mentioned aforesaid but acquitted co-accused Chutari Matha of the charges.
4. The present appeal has been preferred on the ground that the learned trial Court has not considered the improbability of the offences alleged to have been committed by the appellant. It is also asserted that the very basis of the prosecution that the appellant has administered poison in the milk said to have been taken by the deceased inmates has not been proved beyond doubts. It is also asserted that out of 28 witnesses, except PWs 4, 9, 17 and 27 non of the witnesses had any relevance with the prosecution case. The learned Counsel for the appellant Sri K.P. Deo further stressed before us that the conviction under Section 302 as well as 120B of the Indian Penal Code is based on surmises and conjectures. According to the learned Counsel, the post mortem report proved by PWs 13, 14 and 20 did not find any milk in the stomach of the deceased and the poison found in the viscera by PW 27 is available freely in the market. According to the learned Counsel, the informant PW 17 has lodged this FIR just to exonerate himself of the responsibility that the inmates died due to food poisoning. It is also stressed before us that the very basis of allegation that the appellant has mixed poison in the milk for the purpose of killing these inmates are not supported by any evidence on record. Therefore the appellant deserves to be acquitted of the charges.
5. We have anxiously considered the submissions of the learned Counsel along with the materials on record. The prosecution version that four undertrial prisoners developed symptoms of food poisoning in the night of 14.12.1993 stand established from the evidence on record. It further appears that out of four inmates three of them Matal Tudu, Ram Bilash Singh and Nuneshwar Yadav were declared dead. The only surviving inmate Sheoji Yadav has been examined by prosecution as PW 22. This witness has not supported the prosecution case that the appellant has given him the milk resulting in his illness. He was declared hostile by the prosecution. During cross examination he admitted that he was not examined by the I.O. He refused to identify the appellant in the dock. We further find that PWs 2, 8, 19, 23, 24 and 25, all of them jail inmates said to be present on 14.12.1993, have not supported the prosecution version and were declared hostile. Further more PW 3 another jail inmate, PW 8 Kapildeo Sah Jail warden, PW 10 another Jail inmate, PWs 12, 15. 16 and 19 are hearsay witness of the occurrence. They simply said that they heard about the incident and at that time the appellant was also confined in the jail PWs 5,6 and 7 are jail wardens who supported the prosecution version that four persons developed illness and were referred to Sadar Hospital, Goda where three of them died.
6. As mentioned above, we find that the prosecution case thereafter hinges on the statement of PW 4 Charka Mian, PW 9 Sohan Yadav two Jail inmates and PW 17 the informant as PWs 1 and 28 are formal in nature, PW 9 Sohan Yadav is said to be target of the appellant whom he wanted to finish with the help of poison mixed milk. This witness has asserted that the appellant has brought milk from Jail mess, which was taken by the deceased persons, According to him the appellant has tried to give the said milk to him which he did not accept. He further asserted that when he offered to drink the milk along with him. Kesho refused. However, this witness has admitted in cross examination that the usual time of taking food in Jail was before 6 p.m. He admitted that he has seen the appellant bringing milk in the ward in a small aluminum dekchi. According to him the milk was brought for the first time inside the ward. However this version is not supported by PW 4 and asserted that PW 9 and appellant used to extort milk from jail mess every day and eat together. However on the fateful day they ate separately in spite of invitation by PW 9 to appellant. He further asserted that the appellant has invited all the ward members to take milk and four of the inamtes after taking milk became ill. However this witness has admitted in cross examination that no milk is offered to any inmate in the jail. He further asserted that the appellant with PW 9 used to extort milk and had a personal Chulha out side the ward. He further asserted that all the four inmates used to take food along with the appellant and PW 9. He has contradicted his statement before the 1.O. He further admitted in para 26 that on the date of occurrence Raghav Singh and Waras Ali has also taken milk. He is a frequent visitor of jail being involved in several cass vide para 29.
7. Therefore, we find that there are contradictions in the statement of PWs 4 and 9 on the point whether milk was offered to the deceased persons by this appellant or not. Further more the I.O. PW 26 has admitted that he found aluminum Dekchi inside the ward having some grams along with water in it. He seized that Dekchi but failed to sent it for forensic examination. He asserted that many of the inmates declared hostile have asserted before him that the appellant has given the milk to the deceased persons. The hostile witness Sheoji Yadav has given some different version regarding the prosecution case. He admitted that he has not taken the statement of appellant though he preferred to take the statement of co-accused Chutari Matha. He further admitted that the viscera report was not available with him when the charge sheet was submitted.
8. We have examined the statement of PW 17 the informant of this case along with the evidence of PW 21 the Executive Magistrate Incharge of Godda Jail at that date. It appears that in the night of 14.12.1993 four jail inmates developed symptoms of poisoning and were removed to Godda Sadar Hospital where during treatment three of them breathed their last. According to PW 17, in the morning of 15.12.1993 when he reached ward No. 3 the appellant alleged that one jail inmate Tiveni Sharma has tried to poison the milk to kill PW 9 Sohan Yadav. He supported the prosecution version that the milk was brought, by the appellant which was consumed by the deceased inamtes. According to him since Sohan Invited the appellant to drink milk with him and he refused, the milk was poisoned by the appellant. The said witness Assistant Jailor of the Godda Jail has admitted in cross examination that no stove or chulha is permitted to any of the jail inmates. He further admitted that though he has lodged the FIR, he did not give any report on his enquiry, However, this does not thrown any light on the fact that the milk was brought by Kesho Matha and further the said the milk was poisoned by him with intention to cause death. The prosecution version that the appellant offered milk to Sohan Yadav who did not agree to take the milk after which four unfortunate jail inmates took the milk on his request, is not proved by any cogent evidence. Whatever be the matter the prosecution is duty bound to prove that the appellant has intentionally given the milk laced with poison with intention to cause death. The victims PW 22 Sheoji Yadav did not support the prosecution case PWs 4 and 9 Charka Mian and Sohan Yadav have partly supported the story that the Kesho has brought the milk inside the ward and the same was consumed by the deceased persons. However they also admitted that the milk was intended to be consumed by the appellant and PW 9 themselves and they did not take it due to some dispute. All these facts contradict the prosecution version that the milk was poisoned and intended to cause death of Sohan Yadav as Sohan Yadav has admitted in cross examination that he has no enmity with the appellant. It has also come on record that the appellant and Sohan Yadav used to dominate other jail inmates together.
9. In the facts and circumstances, discussed above, we find that the prosecution has not been able to prove beyond reasonable doubts that the appellant Kesho Matha has conspired to cause death of the deceased inmates and in furtherance of that object has poisoned the milk which was consumed by them. The milk contained poison further has not been proved beyond doubts as the aluminum container of the said milk has not been sent for forensic examination nor any report has been brought on record to prove it.
10. Accordingly, We find that the present appeal has got merit in it and deserves to be allowed. In the result, this appeal is allowed and the conviction of the appellant is hereby set aside. The appellant on bail, stand released from the liabilities of his bail bond. Appeal allowed.