Hon’ble Shri Kant Tripathi, J.—Heard the learned counsel for the appellant and the learned A.G.A. for the respondent and perused the record.

2. By this appeal, the appellant Gopi Jaiswal has impugned the judgment and order dated 28.2.2009 rendered by Mr. SN Agnihotri, the then Additional Sessions Judge/Special Judge (E.C.Act), Gorakhpur in S.T. No. 96 of 1993 (State v. Gopi Jaiswal) whereby the learned Additional Sessions Judge has convicted and sentenced the appellant Gopi Jaiswal under Sections 328, 379 and 411 IPC.

3. The prosecution story leading to this appeal is that on 23.8.1992, the complainant Hari Ram Prasad Gupta (P.W.-1) and other victims, namely, P.W.-2 Baij Nath, P.W.-3 Nand Lal, P.W.-4 Moti and others were travelling in the 114 Down, Gwalior -Chhapra Mail, and when they reached the railway station Unnao few other passengers boarded in the Bogie of the train and they developed intimacy with the complainant and other victims and one of them provided intoxicated biscuits to the complainant and other victims, consequently, all of them became unconscious and remained in that condition even when the train arrived at the Gorakhpur railway station on 24.8.1992. P.W.-6 Shesh Nath Singh and other Police officials took the complainant and other victims from the aforesaid train to the District Hospital, Gorakhpur and got them admitted in the hospital. P.W.-9 Dr. ML Jaiswal medically examined the complainant and other victims on 24.8.1992 between 9.30 a.m. to 10.30 a.m. and found all of them semi conscious and accordingly prepared medical reports (Exhibit Ka 4 to Ka 9). It may also be mentioned that on 25.8.1992, the complainant and other victims regained consciousness. In the meantime, before the complainant and other victims could regain consciousness another development took place. The police of GRP, Gorakhpur arrested the appellant Gopi Jaiswal on 24.8.1992 at about 20.30 hours at the Gorakhpur railway station and recovered three suitcases containing various articles detailed in the recovery memo from his possession and accordingly lodged an FIR (Crime No. 405 of 1992 under Sections 441/411 IPC) against the appellant Gopi Jaiswal at GRP, Gorakhpur. When the complainant and other victims regained consciousness on 25.8.2009, they identified the appellant as the person, who provided them intoxicated biscuits. Thereafter, the complainant Hare Ram Prasad gave an FIR of the incident at P.S. GRP, Gorakhpur on which basis the police registered the Case Crime No. 408 of 1992, under Sections 328/379 IPC. In view of the fact that both the matters related to the same incident, the trial was held jointly at Gorakhpur. Stomach wash of the complainant and other victims was done in the hospital and samples of the stomach wash contents were sent to the Forensic Science Laboratory, Lucknow for analysis. The Forensic report opined that the stomach wash contents had intoxicated substance (poisonous substance) and accordingly submitted its report (Exhibit Ka 11). The Investigating Officer after concluding the investigation submitted charge-sheet against the appellant.

4. The learned trial Court charged the appellant Gopi Jaiswal under Sections 328/379/411 IPC who denied the charges and claimed to be tried.

To prove the aforesaid charges, the prosecution examined as many as 11 witnesses. P.W.-1 Hare Ram Prasad, the complainant and victim, supported the prosecution story. P.W.-2 Baij Nath, one of the victims, also supported the prosecution story regarding the incident but stated in the Court that the appellant was not the person, who gave intoxicated biscuit to him. P.W.-3 Nand Lal, one of the victims, also supported the prosecution story, including the involvement of the appellant. P.W.-4 Moti and P.W.-5 Mahendra Kushwaha also supported the prosecution story to certain extent but did not give any statement regarding the involvement of the appellant. P.W.-6 Shesh Nath Singh is a formal witness, who got deboarded the complainant and his