Judgment:
1. Appellant, Rajesh Mahto who has been found guilty for an offence punishable under Section 328 IPC, 379 IPC vide judgment dated 17.01.2012 and sentenced to undergo R.I. for seven years as well as also fined appertaining to Rs.500/- in default thereof to undergo R.I. for six months additionally, R.I. for two years respectively under each head vide order of sentence dated 18.01.2012 passed by Additional Sessions Judge, FTC-II, Samastipur in Sessions Trial No.506 of 2010 / 284 of 2011 challenged the same under present appeal.
2. Rajesh Paswan (PW-1) gave his fardbeyan on 20.06.2010 at about 07:30 AM. at Platform No.1 of Darbhanga Junction before police officials of G.R.P. Darbhanga disclosing therein that he along with his maternal brother Vikash Paswan, aged about 12 years proceeded from Delhi on 18.06.2010 through Vaishali Express and reached at Samastipur on 19.06.2010 at 07:00 P.M. where they began to wait Katihar Passenger at Platform No.6. At that very time two young chap in between 25 to 30 years came near them and inquired from him regarding his destination. He had disclosed that he has to go to Hayaghat over which they also disclosed that they will also go there. At about 10:00 P.M. Katihar Passenger came. All of them boarded. Subsequently thereof, one of them offered tea as well as mixture. After consuming the same, he along with his brother gone to deep sleep. After regaining his sense he found himself at Darbhanga Station. While his brother still happens to be unconscious. He began to search his belongings and during course thereof, he found one of them along with his article in a train standing at Platform No.3 where upon he raised alarm and with the help of passengers, the aforesaid miscreant was apprehended along with article and has been produced before the police. It has further been disclosed that the apprehended accused had disclosed his identity as Rajesh Mahto while Kranti Sahni as his accomplice who manage to escape. It has further been disclosed that save and except cash appertaining to rupees five thousand, all his belongings were intact. It has further been disclosed that he had given the fardbeyan in presence of his brother-in-law Ajay Kumar Paswan (PW-5).
3. The aforesaid fardbeyan was transmitted to Samastipur GRP as a result of which Samastipur Rail P.S. Case No.49 of 2010 was registered and subsequently thereof, charge sheet was submitted followed with trial concluded in recording conviction of appellant, subject matter of instant appeal.
4. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence as well as false implication. However, neither any DW nor any exhibit has been brought up on record.
5. In order to substantiate its case prosecution had examined altogether ten PWs out of whom PW-1 is informant, Rajesh Paswan, PW-2 is Birendra Poddar, PW-3 is Dilip Kumar, PW-4 is Md. Laish, PW-5 is Ajay Kumar Paswan, PW-6 is Lal Babu Paswan, PW-7 is Vikash Kumar Paswan, PW-8 is Subhash Kumar the Investigating Officer, PW-9 is Satyendra Kumar Singh, the GRP Darbhanga police officials who had recorded the fardbeyan as well as production-cum-seizure list and PW-10 is Raj Kumar Sah who was tendered.
6. The Prosecution had also exhibited Ext.-1 Signature of PW-1 over fardbeyan, Ext.-2 “ Formal FIR, Ext.-3 Signature of PW-6 over production-cum-seizure list, Ext.-4 “ Fardbeyan, Ext.-5 - production-cum-seizure list.
7. From the evidence of PW-1 as well as PW-2 coupled with signature on Ext.-5 production-cum-seizure list apprehension of appellant Rajesh Kumar on 20.06.2010 is found conclusively proved. The only question remains whether appellant Rajesh Mahto is responsible for administering poison to the prosecution party during midst of journey as well as stealthily taking away belongings of PW-1 and was apprehended along with the stolen article. To dwell upon the issue, when the evidence of the witnesses is looked into, it is evident that nothing was recovered from the possession of appellant Rajesh Mahto by the police official rather from Ext.-5, it is apparent that the articles were produced by informant Rajesh Paswan in presence of two witnesses Ajay Kumar Paswan and Lal Babu Paswan. From the fardbeyan itself it is apparent that Ajay Kumar Paswan happens to be his brother-in-law who has been examined by the prosecution PW-5. He had not supported the case of the prosecution and was declared hostile but surprisingly enough the prosecution failed to draw his attention with regard to his signature over production-cum-seizure list as well as over fardbeyan. Another production-cum-seizure list witness happens to be PW-6, Lal Babu Paswan who also failed to substantiate the case of the prosecution although had admitted his signature over the production-cum-seizure list as Ext.-3. Non-supporting by own family member over production-cum-seizure list is a circumstance which attracts more attention in the background of the fact that from the fardbeyan, it is evident that the informant PW-1 had stated presence of Vikash being unconscious which neither been reiterated by PW-5, Ajay Kumar Paswan as well as PW-9 the police official who had recorded the fardbeyan. Another circumstance is visualizing from the evidence of PW-1, informant wherein he even during his examination-in-chief had not disclosed that at Darbhanga platform his brother Vikash was still under unconscious rather he had not cared to name him or shown his presence at Darbhanga Station. Furthermore, the aforesaid Vikash Kumar has not been examined during course of trial nor there happens to be any sort of explanation at the end of prosecution regarding his non-examination. PW-8, the Investigating Officer failed to acknowledge him during course of investigation. Not only this PW-8 as well as PW-9 never disclosed that either the informant PW-1 or the Vikash Kumar was ever taken to hospital for medical treatment and in likewise manner there happens to be absence of Vikash Kumar during course of evidence of PW-5, Ajay Kumar Paswan.
8. Appellant was charged for an offence punishable under Section 328 IPC, 307 IPC, 379 IPC and 411 of the IPC. From the judgment impugned, it is evident that the learned trial court had acquitted the appellant for an offence punishable under Section 307, 411 of the IPC. Contrary to it had convicted for an offence punishable under Section 328 IPC as well as 379 IPC.
9. Nowhere, right from fardbeyan the informant had alleged that he was ever intoxicated at the end of appellant along with others rather he had stated that just after consuming tea and snacks he fell asleep. During course of his evidence PW-1 had stated that just after taking of snacks he along with his brother became unconscious. Neither he nor Vikash had gone to hospital so that one could have traced out the contents whether was mixed with any kind of sedative. Furthermore, for want of examination of Vikash, the evidence of PW-1 remained the sole witness on that very score and taking into account the lapses on his part as well as on the part of the Investigating Officer and further finding inherent improbabilities in the evidence of PW-1, it looks unsafe to infer that the snacks which was administered by the appellant and other was mixed with any kind of sedative substance.
10. Now coming to next part of conviction and sentence, neither PW-1 on his own deposed that appellant had stealthily taken away his belongings rather as per his own version appellant was found in possession of the article in a train standing at Platform No.3 and on account thereof, it was a case to be covered under Section 411 of the IPC instead of 379. Had there been such kind of finding by the learned lower court, then under the garb of illustration 1 of Section 114 of the Evidence Act, automatically there would have been application of Section 379 of the IPC. However, having acquitted under Section 411 of the IPC makes the instant trial worthless for any purpose.
11. As such, after analyzing the evidence available on the record, the judgment of conviction and sentence rendered by the learned trial court appears to be non-sustainable in the eye of law and is accordingly, set aside. Appeal is allowed. Appellant is under custody, hence is directed to be released forthwith, if not wanted in any other case.