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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: RAMNATH PRASAD & ORS.

DATE OF JUDGMENT:       09/12/1997

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      These appeals  by special  leave are filed by the State of Bihar  against the  judgment and  order of the Patna High Court in  Criminal Appeal  Nos. 493 of 1980 and 20 and 49 of 1981.   The High  Court allowed the three appeals, set aside the order  of conviction and sentence passed by the Court of Additional Sessions  Judge, Sitamarhi  in Sessions Trial No. 79 of  1979/15 of  1980 and acquitted the accused of all the charges levelled against them.      The incident  which led  to  the  trial  of  the  three respondents took  place in  village Bairgania on 9.2.1979 at about 8.30 p.m. There is a Power House at Bairgania.  It was lying closed  since a  long time and in order to see that it started again, the people of Bairgania had organised a relay fast  near   the  Rest  House  of  that  Power  House  since 28.1.1979.   The relay  fast was  to continue  for 24  hours everyday and  on 9.2.1979  it was  the  turn  of  Bishwanath Prasad Rajgaria  (deceased), Bigu  Ram, Ram  Narayan Prasad, Ram Gopal  Rajgaria and  Jagannath Prasad  to sit  there and observe fast.  AT about 8.30 p.m. on that day accused Rajdeo (respondent No.2)  reached that place.  he was soon followed by accused  Ramnath (respondent  No.1).   They sat  for some time with  the persons  who were  on fast  and then  accused Ramnath took  out a small packet from his pocket and offered powder like substance to Bishwanath Prasad and told him that it was  ’prasad’ from  Varanasi.   As Bishwanath  Prasad and others were  observing fast  they declined  to  take  it  by saying that  it would  not be proper to eat anything as they were on  fast.   But Rajdeo  persuaded them  to take  it  by stating that  it was  ’prasad’ of  God and  by taking it, it cannot be  said that the prasad’ of God and by taking it, it cannot be  said that the fast was broken.  Ramnath then gave the ’prasad’  to Bishwanath Rajgaria, Bigu Ram, Ram Narayan, Ram Gopal and Jagannath.  While the ’prasad’ was being given to those  person Hari  Narayan and Bishwanath Chaudhary also came there.   They  requested Ramnath  to give  ’prasad’  to them.   Ramnath, therefore,  gave  ’prasad’  to  them  also. After two  or three  minutes accused Rajdeo left that place. Ramnath continued  to sit  there.   After  about  15  to  20

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minutes all  the seven  persons who  has taken ’prasad’ felt uneasiness and  giddiness and  had difficulty  in breathing. Bishwanath Prasad Rajgaria, therefore, enquired from Ramnath as to  what he  had given to them, Ramnath did not reply and left that place.  Those persons started vomiting and purging and  their   condition  started   deteriorating.    So,  Dr. Vishwanath Prasad  was called.   Even after he treated them, their condition  did not  improve and,  therefore, two other doctors were  went for.   In spite of the treatment given by the doctors  condition of  those persons  did  not  improve. Bishwanath Prasad Rajgaria died at about 3.30 a.m. The other six affected  persons were removed to Sitamarhi Hospital and with better  treatment there  they survived.   Dr. Kameshwar Prasad had  sent information to the police station regarding the condition  of those  seven persons  and, therefore,  the police came  to the  Rest House at about 5 a.m. and recorded the complaint  of Chandradeo  Prasad alias Raj Guru.  In the complaint he  stated  he  was  suspecting  that  Rajdeo  and Ramnath had  deliberately and  knowingly  administered  some poisonous  substance   to  those   persons  and,  therefore, Bishwanath Prasad  Rajgaria had  died and  others had became ill.   A case was registered on basis of the said complaint. After completion  of the  investigation and  filing  of  the charge -  sheet the three accused were charged and tried for committing  the   murder  of  Bishwanath  Rajgaria  and  for attempting to  commit the  murders of Bigu Ram, Ram Narayan, Ram Gopal Rajgaria, Hari Narayan and Bishwanath Chaudhary by administering poison  to them.   Accused Ramnath was charged under section  302 IPC  and also  under sections 307 and 328 IPC. Rajdeo  was charged under sections 302, 307, 328/34 and 302/109 IPC. Banwari Lal (respondent No.3) was charged under section 120B  IPC for  having entered into a conspiracy with the other  two  accused  in  pursuance  of  which  poisonous substance was  administered to  the deceased and six others. The  accused   totally  denied   their  involvement  in  the incident.  They also led evidence in defence.      In order to prove its case the prosecution had examined the following  eye-witnesses:    Chandradeo,  the  informant (PW.2), Ram  Gopal Rajgaria  (PW.5),  Kamal  Prasad  Jaiswal (PW.6) and  Bigu Ram (PW.9).  Out of the persons who were on relay fast  the prosecution  had tendered  Jagannath (PW.32) and Ram Narayan Prasad (PW.34) for cross-examination. Others were not  examined on  the ground that they were won over by the defence.  The prosecution had also tendered Hari Narayan (PW.3) for  cross-examination. The  prosecution had examined Dr. Ashok  Kumar Gupta  (PW.13) and  Dr.  Vishwanath  Prasad (PW.31) who  had treated  the affected  person at Bairgania. The prosecution  had also examined Kamal Prasad Jaiswal (PW- 6) and  Kodai Shah  (PW.28) who were present when Chandradeo gave his  complaint and  who had  also signed the same.  One Dharmnath Prasad  (PW.27) was  examined to prove that he was told by  Bishwanath Chaudhary  and Hari Narayan that accused Ramnath had  given ’prasad’  to them.   Other  corroborative evidence was  also led  by the  prosecution but  it  is  not necessary to  refer to  the same.   One  the  basis  of  the medical  evidence   and  the   reports  regarding   chemical examination of  blood, vomit and stool the trial court found that Bishwanath  Prasad Rajgaria,  Hari Narayan and Bigu Ram were administered  glycosides of  oleander (kanar)  and that oleander is  a  highly  poisonous  substance.    Though  the chemical examination  reports of  the other affected persons did not  show presence  of oleander,  on the  basis  of  the medical evidence  it was  held that  they had  also suffered effects of  eating a poisonous substance.  It also held that the death  of Bishwanath  Prasad Rajgaria  was  due  to  the

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poison given  to him.    The  trial  court  disbelieved  the evidence of  Dharamnath Prasad (PW 27) who during his cross- examination stated  that when  he had gone to the Rest House at about  3.30 p.m. he had seen the persons sitting on relay fast eating  ’Chura’ and  ’Bhuja’  and  at  that  time  Hari Narayan was  present.  This version was suggested to some of the prosecution  witnesses also.   It was disbelieved on the ground that  Dharam Nath  being a  cousin of  Rajdeo  Prasad wanted to help the accused as was evident from the fact that he had not so stated in his police statement and had falsely denied that  he was examined by the police. His evidence was disbelieved also because of Hari Narayan in his evidence has categorically stated  that he  and Bishwanath  Chaudhary had gone to  the Rest House at about 8.30 P.M. and he was not at all cross-examined  on this  point.   Moreover, there was no evidence whosoever  to support  the version that the persons who were  on relay  fast had  taken ’Chura’  and ’Bhuja’  at about 3.30 p.m. Though no motive could be established by the prosecution the  trial court  held that  the evidence of PWs 2.5, 6  and 9  was sufficient  to establish that Ramnath had given the  ’prasad’ that  Rajdeo had  persuaded the  persons sitting on  relay fast  to eat  it. The  trial court further held that  Ramnath had  given poisonous  substance  with  an ulterior motive  and accused  Rajdeo had  definite knowledge about it.  The trial  court also  believed the corroborative evidence given  by Kailash  Mahto and  Dr. Vishwanath Prasad (PW.31) who  have stated  that when  they had  enquired from Bishwanath Rajgaria  as to what was the cause of his ailment Bishwanath  Rajgaria  had  told  them  that  after  he  took ’prasad’ given by Ramnath the symptoms of giddiness etc. had developed and that Rajdeo had insisted that they should take that ’prasad.   The trial court rejected the contention that the evidence of Dr. Vishwanath Prasad should not be believed because the  other  doctors  had  not  so  stated  in  their evidence for  the reason  that the  other doctors  were  not asked any  question on that point.  Even dharamnath therefor had stated that at about 3.30 p.m. the persons on relay fast had taken  ’Chura’ and ’Bhuja’, admitted that he had gone to the Rest  house at  9 p.m. and when he had enquired what had happened to  Bishwanath Prasad  Rajgaria and  others he  was told that  Ramnath had  given  some  ’prasad’  to  them  and thereafter their  condition had  become serious.   The trial court also  relied upon the circumstance that soon after the incident accused Ramnath and Rajdeo had disappeared from the village.   On the basis of all this evidence the trial court came to the conclusion that complicity of Ramnath and Rajdeo was established beyond doubt by the prosecution.  The charge against Banwari  Lal was  held proved  on the  basis of  the evidence of  Pws. 11,  33, 40,  41 and  42. The trial court, therefore, convicted  Ramnath  and  held  him  guilty  under sections 302,  307 and  328 IPC.   It convicted Rajdeo under Sections 302  read with  sections 34  and  109,  307/34  and 328/34 IPC.   Banwari  Lal was  convicted under section 120B IPC.      All the  three respondents  challenged their conviction before the  High Court by filing separate appeals.  The High Court held  that there  was practically  no evidence against banwari Lal  and the  three circumstances  which were relied upon for  establishing the  charge of conspiracy against him were not  sufficient to  lead to  that conclusion.   It held that the only circumstance proved against Rajdeo was that he had included  the fasting  people to  take ’prasad’ and that was not  sufficient to  establish the  charge of abetment or sharing of  common intention  as there  was nothing  to show that he  had any  knowledge that what was offered by Ramnath

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was a  poisonous substance.  With respect to Ramnath it held that there  was no  motive for  him to give poison either to Bishwanath Prasad Rajgaria or to any other person.  Moreover the name  of Ramnath  or any other accused was not disclosed to any authority including the police even though the police station was  only one kilometre away.  Till 5 a.m. the names of Ramnath and others were not disclosed even to the doctors who were  treating to  the affected  persons right from 9.30 p.m.   The High  Court also  pointed out  that Dr. Kameshwar Prasad (PW.30)  had himself  gone to  the police station and had given information regarding the incident but Ramnath and other accused  were not  named as  accused. The  High Court, therefore,  held   that  the   names  of  the  accused  were introduced by  the informant with an oblique motive. It also held that  it was improbable that accused Ramnath would have given a  poisonous substance to Bishwanath Chaudhary who was his servant  and Ram Narayan Prasad who was his relative. It also held  that the  extent of  vomiting and purging made it doubtful that  the affected  persons had  not taken anything from morning till about 8.30 p.m: and, therefore, it was not possible to  say that  what had happened to them was because of taking  the ’prasad’  given to them by Ramnath.  The High Court also  held  that  the  fasting  people  always  remain surrounded by  a few  others  and,  therefore,  it  was  not probable that  Ramnath would  have distributed  ’prasad’  to them in  their presence.   It,  therefore, held  that he was entitled  to   the  benefit  of  doubt.    The  High  Court, therefore, allowed  the  appeals  and  acquitted  the  three accused.      The State  of Bihar,  therefore,  applied  for  special leave to  file an  appeal against  the judgment and order of the High  Court.  This Court granted leave to appeal against Ramnath Prasad  and  Rajdeo  Prasad  only.    Special  leave petition against respondent No.3 Banwarilal was dismissed. As regards  respondent No.2  Rajdeo, the learned counsel for the State  was not  able to  point out  any  other  evidence except the  evidence of  PWs.5, 9,  32, 34 and 35 which only proves that  he had  come to  the Rest  House a  few minutes after Ramnath  Prasad had  gone  there  and  that  when  the persons sitting  on fact were reluctant to take the ’prasad’ he had told them that they should take it as it was ’prasad’ of God  and by  taking it  fast cannot  be said to have been broken.  Nothing else was alleged against him.  Even if this evidence is  believed it  does not  establish  that  he  had shared any  criminal intention  with Ramnath.   It cannot be said with  reasonable certainty  that he  knew that what was given by Ramnath was poison.  In our opinion. the view taken by the  High Court is quite reasonable and does not call for any interference.      We will  now deal  with the  reasons given  by the High Court for  acquitting Ramnath.  They can  be  summarised  as under: (1)  Ramnath had no motive to give poison to those persons. (2)  Ramnath’s name was not disclosed to anyone till 5 a.m. (3)  Ramnath would not have given the poisonous substance to      Bishwanath Chaudhary  and Hari Narayan as they were his      servant and relation respectively and this circumstance      indicated that  the whole  version of the witnesses was      improbable. (4)  Besides the  persons sitting  on relay  fast there were      other  persons   also  and,   therefore,  it   was  not      believable  that   Ramnath  would  go  there  and  give      poisonous substance  to the  persons sitting  on  relay      fast in their presence (5)  The quantity  of vomit,  stool and  urine was excessive

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    and that  indicated that  the persons  sitting on relay      fast had  taken some  food and  plenty of water earlier      and, therefore,  it was  not possible  to say  that the      symptoms of poisoning were because of eating ’prasad’ . (6)  If really  Ramnath had  given the  poisonous  substance      knowingly to  the persons sitting on fast then he would      not have remained there for some time after giving it.      We find  that the second reason given by the High Court is not  factually correct.   The High Court was not right in observing that  the three  doctors namely  vishwanath Prasad (PW.31), Kameshwar  Prasad (PW.30)  and  Ashok  Kumar  Gupta (PW.13) were  at the  Rest House from 9.30 p.m. onwards. Dr. Kameshwar  Prasad   (Pw.30)  was  working  as  Head  of  the Department of  Forensic Medicine,  S.K. Medical  College  at Muzaffarpur. He had conducted the post-mortem examination of the dead body of Bishwanath Prasad Rajgaria on 10.2.1979. He had not  at all  gone to  village Bargania on 28.1.1979.  He had not  at all  gone to  village Bargania  on 28.1.1979  to treat any  those of  affected persons.  The first doctor who had reached  the Rest  House was  Dr. Vishwanath Prasad.  he has stated in his evidence that while he was sleeping in his quarter one  Dharamnath Prasad  (PW.27) woke  him  at  about 11.15 p.m.  and had  requested him to go to Rest House where condition of  seven persons was serious.  He has stated that after going  there he  had started  treating them  and while treating Bishwanath Prasad Rajgaria he had inquired from his as to     what had  happened and  he was  told that  it  was because of  eating ’prasad’  given by  Ramnath at about 8.30 p.m. He has further stated that as condition of the patients was becoming  serious, he  had sent  for other  doctors  for assistance.   Dr. Ashok  Kumar Gupta (PW.13) had stated that while he  was sleeping  Dr. Kameshwar  Thakur, In-charge  of Medical Officers,  Hospital of Bargania woke him up and told him to  accompany to  the Rest House as the persons who were sitting on  relay fast were seriously ill.  They had reached there at  about 2.30  a.m.   From the  symptoms he diagnosed that it  was a  case of  poisoning.   However, in his cross- examination  he   stated  that   "none  told  us  about  the poisoning, nor any one told me the name of anybody" and this answer was  heavily relied  upon by  the High  Court for its finding.   From the  evidence  of  these  two  witnesses  it becomes quite clear that they had not reached the Rest House at 9.30  p.m. and,  therefore, it  can be said that the High Court  has  misread  that  part  of  their  evidence.    Dr. Vishwanath Prasad  had reached the Rest House at about 11.30 p.m. and  Dr. Ashok Kumar Gupta and Dr. Kameshwar Thakur had reached at  about 2.30  a.m. Dr.  Kameshwar Thakur  was  not examined but  the certificate  issued by  him  supports  the version of  Dr. Ashok  Kumar Gupta  as it  is stated in that certificate that he was informed about the incident at about 2 a.m.   The  evidence  of  Dr.  Vishwanath  Prasad  further establishes that he was informed by Bishwanath Rajgaria that Ramnath had  given ’prasad’  to him,  and developed.  By the time the  other two  doctors had  reached  the  rest  House, condition of  the affected  persons had  become serious  and some of  them had  lost consciousness.   They  were busy  in giving treatment.   If  under these  circumstances, they did not inquire  and nobody  told them  as to  who had given the poisonous  substance,  it  cannot  be  said  that  even  the affected persons  did not  know the culprit.  Kailash Mahto, who was the Police Constable at Bargania Police Station, has stated that  when he had returned from the police station to the Rest  House at  about 11  p.m. he  had seen seven person vomiting and  passing stools  and he  was told that all that had happened after eating ’prasad’ given by Ramnath.  It is,

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therefore, not  correct to  say that name of Ramnath was not disclosed as  the person  responsible till  5 a.m.    Thakur Prasad Singh (PW 46) was the In-charge Officer of the Police Station, Bairgania.  On  being  informed  by  Fr.  Kameshwar Thakur about the incident he had proceeded to the Rest House at 5  a.m. There he recorded Fardbeyan of Chandradeo Prasad. In view  of their  conditions, the  persons who  were ailing could not have gone to the police station. Doctors were also busy in treating them.  The circumstances were such that not approaching the  police till the ailing persons were sent to the hospital  cannot lead  to an  inference that nobody knew till 5.00 a.m. who was responsible for what had happened.      The reason  given by  the High  Court for  treating the version of  the prosecution  witnesses as improbable is also not correct.   What  the High Court has failed to appreciate is that there was no evidence to show that when the ’prasad’ was given  by Ramnath  other persons except those named were there.   So far as Bishwanath Choudhary and Hari Narayan are concerned they  were not  offered ’prasad’ by Ramnath but it was given  to them when they had demanded it.  Ramnath could not have  said not  to them  at  time  as  that  would  have immediately raised a suspicion.  These relevant aspects have not been considered by the High Court.      The fifth  reason given  by the  High Court is also not sustainable.   Merely  because  no  witness  had  positively stated that  the doctors  had made  them drink water to wash their bowels  it was  not proper  to jump  to the conclusion that possibly the persons sitting on relay fast had consumed some food  and plenty  of water  earlier than  8.30 p.m. The evidence of  Doctors Vishwanath Prasad and Ashok Kumar Gupta discloses that  all  the  three  doctors  were  continuously giving treatment to the patients and it was most likely that sufficient water  was given  to them  to wash  their bowels. The evidence  of Kamal  Prasad Jaiswal (PW.6) also discloses that glucose  water was  also given to them as a part of the treatment.   It was,  therefore, not reasonable to hold that the symptoms  of greediness,  vomiting and  passing of stool were not  the result  of eating the Prasad given by Ramnath. it was  not put to any of the doctors that intake of a small quantity of  oleander would  not have  the effects  as  were noticed in case of those affected persons.      Thus the  findings recorded by the High Court are based upon misreading  of the  evidence or  are unreasonable.  The High Court  was not  justified in discarding the evidence of eye-witnesses  on   the  ground   that  their   version  was improbable.   The High  Court also failed to appreciate that there was  no reason  for PWs.  2, 5,  9, 32  and to  depose falsely against Ramnath.      We are  of the opinion that the High Court was wrong in holding that  the prosecution  has failed  to establish that Ramnath had given by way of ’prasad’ the poisonous substance to those  five persons  who were  on relay  fast and also to Bishwanath Chaudhary  and Hari Narayan and that because they ate it  Bishwanath  Prasad  Rajgaria  died  and  others  had suffered harm as stated above.      The next  question to  be considered  is  what  offence Ramnath can  be said to have committed.  The prosecution has not been  able to  establish any  motive  strong  enough  to induce Ramnath  to kill  any of  those five  persons even if some enmity  with Bishwanath Prasad Rajgaria is assumed.  He did not  have  any  enmity  with  others.    If  really  his intention was  to kill  them he  would not  have given  that poisonous substance so openly and in presence of others.  It is, therefore,  not possible  to infer  from the  facts  and circumstances of the case that Ramnath had given the same to

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Bishwanath Prasad  with any  intention to  cause his  death. However, he ought to have known that as what he had given to Bishwanath  Prasad  Rajgaria  and  others  was  a  poisonous substance, it  was likely  to cause  grievous hurt  and even death.      We, therefore,  hold  him  guilty  for  committing  the offence  punishable  under  Sections  304  Part-II  IPC  for causing the  death of Bishwanath Prasad Rajgaria and for the offence  punishable   under  Section  326  IPC  for  causing grievous hurt  to Bigu  Ram, Ram  Narayan Prasad,  Ram Gopal Prasad Rajgaria, Jagannath Prasad and Hari Narayan.      We, therefore,  allow Criminal  Appeal No. 357 of 1987, set aside  the judgment and order passed by Patna High Court in Criminal  Appeal No.  49 of  1981 and  convict respondent Ramnath for  the offence punishable under Sections 304 Part- II and  326 IPC.   For  the offence punishable under Section 304 Part-II  he is  ordered to  suffer rigorous imprisonment for five  years.   For the  offence punishable under Section 326 he  is ordered  to suffer rigorous imprisonment for four years in  respect of  each of  the persons  to whom hurt was caused viz.  Bigu Ram,  Ram Narayan Prasad, Ram Gopal Prasad Rajgaria, Jagannath Prasad and Hari Narayan.  We direct that all the sentences shall run concurrently.      Criminal Appeal  No. 358 of 1987, filed against Rajdeo, is dismissed.