ABDUL HASSAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant Abdul hussan has challenged his conviction recorded under Sections 328 and 379 of the indian Penal Code by the 3rd Additional Sessions Judge, Dhanbad in S. T. No. 220 of 1992 whereby the appellant was sentenced to undergo rigorous imprisonment for five years and two years respectively on each count.

(2.) THE prosecution story in short was that on 14-1-1992 at about 8 p. m. while the informant Azmat Khan along with his cousin (brother) Javed Khan was waiting for Howrah bound train at platform No. 1 of Dhanbad railway Station, an unknown old man aged about 50/55 years claded in Dhoti and Kurta with blanket wrapped on body with his frontal teeth broken appeared before them and inquired from the informant as to where he was about to go, to which his cousin apprised the stranger that they were about to go to Howrah and thereafter all the three came at the Tea stall where the informant offered and the said old man accepted the tea as offered by him. After sometime the old man also brought a cup of tea and biscuits for the informant and his brother. When the informant refused the offer, the stranger reminded that as he had accepted their tea and that as he was a driver in the railway, he would take them to Horwah without ticket. Being tempted by such offer the informant and his brother both took tea and biscuits offered by the stranger old man. Meanwhile the stranger suggested that as the train was 20 minutes late so they should await it by sitting in a static bogie on the different track. Pursuant to such suggestion both the informant and his cousin boarded a static bogie but after some time they felt giddiness and became unconscious. The informant found himself at the D. V. C. hospital Chandra-pura and also his cousin, when he gained his senses. Both were treated at the hospital. The informant alleged that on search he found Rs. 900/-missing whereas Rs. 600/- and a HMT gautam wrist watch were found removed from the possession of his cousin. The informant claimed that the stranger old man served tea and biscuit to them after mixing some intoxicant, as a result of which they became unconscious and taking advantage of the situation, the stranger old man escaped with their belongings. The occurrence as alleged took place at about 8 p. m. on 14-1-1992 but the case was instituted on 16-1-1992 vide Dhanbad G. R. P. S. Case No. 4 of 1992 on the statement of the informant recorded on 15-1-1992 at about 19 hours at D. V. C. hospital, Chandra-pura. In course of investigation and on identification of the informant, the appellant was apprehended by the police at Dhanbad Railway Station itself and the police submitted charge sheet against him under Sections 328 and 379 of the Indian Penal Code and the appellant was put on trial, convicted and accordingly sentenced as referred to herein above which is the subject matter of appeal.

(3.) THE learned counsel for the appellant assailed the judgment impugned by submitting that the trial Court grossly erred by not taking into consideration that the cousin brother of the informant, who was also a victim of the alleged occurrence, was withheld from the trial Court whose statement was having corroborative value. The allegation of administering intoxicant by mixing it in the tea and biscuit could not be substantiated by the medical evidence except the suspicion raised by the Doctor in course of treatment of the victims but no medical evidence could be produced as to the nature of the treatment of the diagnosed ailment and medicine administered in course of their treatment. Even the sample of their mouth wash was not sent to Forensic Science Laboratory to find out its nature and its impact on human bodies. Similarly, it could not be established except the presumption that the appellant had removed the belongings of the informant and his cousin. The prosecution even failed to seize any biscuit or any other incriminating material or medicine from the possession of the appellant on his arrest except some medicines but the prosecution failed to connect in any manner that the medicines which were seized from the possession of the appellant were served upon the informant and his cousin which caused giddiness and ultimately they became unconscious.