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5. Subsequently, Sub-Inspector D.P. Singh (PW-10) prepared the Recovery Memo of Pepsi bottle, on 21.06.2010. In the said memo, it is mentioned that the under trial prisoners namely Ram Bachan Yadav, Wasim Ahmad and Guddu @ Rajkumar drank Pepsi before they lost consciousness. In that bottle, small quantity of Pepsi was remained. The same has been sealed with cloth and on which the witnesses have affixed their signatures. The Recovery Memo has been marked and exhibited as Exhibit Ka-6.

6. Thereafter the Panchayatnama of the deceased Wasim Ahmad was conducted on 23.06.2010 between 1.30 pm - 2.30 pm, in the presence of Ramjeet Maurya-(PW-1), which is marked and exhibited as Exhibit Ka-1. Likewise the Panchayatnama of Ram Bachan Yadav was also done on 22.06.2010 between 3.50 pm to 4.50 pm, which is marked and exhibited as Exhibit Ka-5A. The Panchayatnama of the third deceased, Guddu @ Raj Kumar was done on 26.06.2010 between 12.30 pm to 01.30 pm by the Medical Officer L.B.S. Government Hospital, Ram Nagar, Varanasi, which is marked and exihibited as Exhibit Ka-15.

12. In the examination-in-chief, Ritesh Singh alias Bantu Singh (PW 3) has stated that he was prisoner in the District Jail, Ghazipur on 21.06.2010 at about 4:30 p.m., he was present near the jail canteen. At that time, prisoner Manoj Kumar Gupta and prisoner Ajay Chaubey were also present there. Both were looking towards the toilet situated behind the jail canteen, whereupon he too looked in that direction. At that time, Ajit Chaubey, Durga Chaubey, and Krishn Kant also came there and were looking towards the said toilet. Then accused Ram Singh took out a paper packet from his pocket and handed it over to accused Surendra Yadav. Thereafter, Ram Singh, with the assistance of Surendra Yadav, mixed a powder-like substance into the bread. On being asked, the prisoners standing nearby quietly informed the witness that Ram Singh and Surendra Yadav were mixing poison in the bread and planning to kill someone. The witness further stated that accused Ram Singh and accused Surendra Yadav also kept the bottle of Pepsi and plastic glasses, with them. Thereafter, three prisoners, namely, Wasim Ahmed, Ram Bachan, and Guddu, came and sat there. At that moment, accused Ram Singh remarked that they had been waiting for them for a long time to have snacks. He then served the bread, mixed with the poisonous substance from the aforesaid packet, to the said three prisoners, who ate the bread and also drank Pepsi. Accused Ram Singh himself also drank Pepsi. The witness categorically stated that after consuming the bread and Pepsi, the three prisoners, namely Wasim Ahmed, Ram Bachan, and Guddu, said that they are going to their respective barracks. Accused Ram Singh remarked the work has been done. He had heard and seen the whole incident. Soon thereafter, the health of the aforesaid prisoners deteriorated. Whereupon, they were first taken to the jail hospital and thereafter referred to an outside hospital. On the next day, he came to know that prisoner Wasim Ahmad and Ram Bacchan had died. The very next day, Guddu @ Raj Kumar also died. It was informed that the cause of death of the three aforesaid prisoners was due to consumption of poisonous bread. During cross examination conducted on 29.11.2012, he deposed that the deceased were given bread at about 4:30 p.m. Thereafter, he returned to his barrack at about 5:00 p.m., and deceased Ram Bachan also returned to the barrack at about 4:45 p.m. The witness admitted, that out of fear, he did not inform any person that poison had been mixed in the bread of the deceased. He also deposed that Ajit Chaubey returned to the barrack with him, at about 5:00 p.m. and further admitted that he did not disclose this incident to anyone, on that day.

21. After, the completion of the prosecution evidence, statements of accused persons were recorded by the Court on 3.10.2010 under Section 313 Cr.P.C. Both the accused persons stated they had been falsely implicated. After hearing the prosecution and the defence, the learned trial court convicted the appellants, as stated earlier

22. Heard the learned counsel for the appellants and the learned AGA for the State.

23. At the first instance the learned counsel for the appellant submitted that the report of the incident was filed two days later, on June 23, 2010. This delay raises doubt about the prosecution version and suggests that the jail administration may have sought to protect the jail officials and its staff. Secondly, Brijesh Chandra Yadav (PW2) admitted that the barracks were searched after the incident, but no incriminating material was found during the inspection by senior officers. This proves that no poisonous material was found in the District Jail after the incident. In his cross-examination, (P.W-2) had stated that neither Pepsi bottle was recovered in his presence, nor any report was prepared about the same. The evidence indicates that the investigation officer recovered a Pepsi bottle from the prison after the incident. Thirdly, Ritesh Singh (P.W-3) stated that he witnessed the entire incident from a distance of 8-10 feet. Yet, he could not identify the direction of the broken toilet. He stated, he was disoriented and therefore, could not tell the direction. At the time of the incident, the accused were speaking loudly while they were mixing the poison, which is very unusual for this nature of secret act, amounting to preparation and commission of most heinous offence. It creates doubt about the credibility of his testimony. Fourthly, Ajay Chaubey (P.W-4), categorically denied that he had gone to the canteen at 4:00 p.m. on the day of occurrence, or that the accused had purchased Pepsi, glasses, or bread in his presence. He also denied having heard any conversation between the accused to mix poison in the Pepsi or to serve it to the three deceased and one injured prisoners. He was declared hostile witness by the ADGC and with the courts permission, was cross-examined. However, in his cross-examination, the witness denied his statements under Section 161 of the CrPC. The witness has stated that bread and Pepsi were not sold in the prison canteen. Thus, the statement of this witness provides no support to the prosecutions case. Next Manoj Kumar (P.W-5) supported the prosecution case in his examination-in-chief. During his cross-examination conducted on the same day, he resiled from his version on the very next day and denied his earlier statements. Question arises as to how far such a witness can be trusted. Who supported the prosecution case in the examination-in-chief and also supported the prosecution case in the cross-examination conducted on the same day but on the very next day denied the statements made in the examination-in-chief. Lastly, the defence also suggests that prosecution fabricated the story to gain a desired advantage.

24. First submission of learned counsel for the appellant is that the report of the incident was filed two days later, on June 23, 2010. This inordinate and unexplained delay shows that the administration wanted to protect the jail authorities. It has further been submitted by learned counsel for the appellant that Brijesh Chandra Yadav (PW-2) had admitted that the barracks were searched after the incident but no incriminating material was found by senior officers. This proved that no poisonous material was found in the jail after the incident. Therefore, the story and recovery of Pepsi and bread containing poisonous substance is highly doubtful. It has further been said that the whole prosecution story begins with the report submitted by (P.W-2) Brijesh Chandra Yadav, who happens to be the Jail Superintendent of the district jail, Ghazipur. In the instant complaint, the prosecution story raises the narration of administering poisonous substance mixed with Pepsi by the prisoners to the prisoners whereupon three died but no report regarding examination of the recovered Pepsi was received to establish that there any poisonous substance was mixed in the Pepsi. The prosecution has, changed the whole story and a new story emerged later stating that some poisonous substance was mixed with the bread served to the prisoners, that caused their deaths.