éwallant ’1“ jvCd m THE HIGH CUJRT OF JUDICATURE AT JABALPUR, QRL Criminal Appeal No. . . . . n . u/S 308 IoPoc. n /99c $an§en% R I far life and fine of Rs. 1000/. 1n default of non payment of fine R I far six months R.I £01: 7 yrs, " sentence to run concurrently. almmAL APPEAL [mom sEcuoN 314 (a) a3,_g.c, “ax, s— Kanal Narayan aged 50 yrs, son of Thakur Ram, R/o village Laha'rti, ?.s. Rajim Distt Raipur, M.P. 0 V§x§n§n nnmlirant z—State of M P through P s aajim _. Distt Raiwr M P Wavictian U/s 304 (1 ) I.P.C. CF0000062488 m mm: CGLRT r3? huaaa“. Siate cf C‘nhaitlsgarh DT “1’1s. «5- . EGr " CGESlderaulz'Ji’i ‘ 4- ' * Sd/- V.K. Shrivastava Judge ytfhogaoaé Han; ble $hri Sd/- L.C. BHATDOO Judge —09—2906 “a Ec$t far Z/é—09-'7“§5 Sd/- 77> ‘ V.K. Shrivastava, Judge u m iqfW’D7HVF wVl-g35‘lu Iu‘EnuIL'IA LJUI5 H$€ H&I.L $1.“; -l- Tg u V f" t Dkadnn Hi; UV I U ,T u i‘ Hsn’ble Shri V.K. Shrivastava, EPEAL iii). 2421 '31? Kama}. 'Narayan HIGH COURT OF CHEATTISGARH : BILASPUR ' (Division Bench) cam: Hon'bie shxi Lc. nhadoo as Hon’ble Shri V.K. Shrivastava, JJ. CRIMINAL APPEAL No. 2421.]99 Appellant - ‘ Kamal Narayan, aged 502years, (In Jail) s/o, Thakur Ram, r/o. viilage ‘ LohmL'PS: Rajim, Dist. Raipux, (CG). Vs. State of Chhattiagarh Respondent PRESENT Ms. Minn Banexjee; counsel for the‘ appellant. Mr. U.N.S. Deo, Additional Public Pmsecutor with MI. Akhjl Mishra, Pane}, Lawyer for respondent/ Stats. JUDGMENT (Demand on 2é {09l2006} Per Viiav Kuniar, shtivastava, J. This appeal under Section 374 g2) of the Cr. P. C. is directed against the judgment of conviction and ordcr of sentence dated 11/08] 1999 pa$sed by VII Additional Scssions Judge, Raipur, in Sessions Trial No. 157/99 whereby leamcd Additional Scssions Judge, after holding the appellant guilty. for committing od’encepunishable under Sections 304 Part 1, 308 and 328 of the I.P.C., sentenced him under Section 304 Part I of the IPC to undergo imprisonment for life and. to pay a nne’ of Rs.1000/- (Rupees one Thousand), in default of payment of fine to further undergo RJ. for six months and under Section 308- of the, IPC to undetgo rigorous imprisonment for seven years. As the a llant N _ v was/ sentenced under Section 308 of the IPC, no adch'tional punishment under Section 328 0f the IPC has bcen imposed. 2) The cése of thc prosecution, in brief, is that Pushpabai had illicit relation with Ganeshmm, therefore, appenant convened a community meeting aud accordihg to the decision of community, Pushpabai was alloweo to live with Ganeshmm and. an amount of Rs.750/— was paid to appellant towards his matrimonial expenses, therefore, appellant was annoyed with his community members. On 14/02] 1999 appellant’s community i.e., Sahu Samaj organized an inaugural y ceremony of Dharmshala building constructed by Sahu Samaj and to celebrate this event, Satyanarayan Pooja and lunch were also organized. Appellant was assigned the work of preparation of holy Prasad, its distribution and to serve drinking water to the guests. Appellant in order to take revenge with the community mixed aluminum phosphate commonly known as salphas in holy prasad and when Pooja was over, the holy prasad was distributed amongst persons who were attending the Pooja. After Pooja a procession was also started nom the place of Pooja, but the procession after, covering some distance, was interrupted because a number of persons (men, women and children) started vomiting. 3) An intimation was given to Police Station; Rajim. Information was recorded in Police Station and Station House Omcer K.K. Mudliar rushed to the place of the occurrence and on the report of Dhaniiam, SHO recorded iirst information report under Sections 328 and 307 of the IPC and started investigan'on. In the meanwhile, on receiving the information, Dr. Pzlétudesia and Dr. A.K. Sakhiya reached the place of occurrence and provided medical aid to persons who had consumed holy prasad. The persons who were infected on acccunt of consuming holy prasad, were medically examined by both the medical ohicers. A child namely Mukesh who had also consumed holy prasag, was examined by the medical ohicer, who subsequently died on the same day. After receiving intimation in the village itself, Station House O$cer K.K. Mudiliar, recorded merg intimation, conducted inquest and sent the dead body of Mukesh for postmortem. 4) During investigation, statements of witnesses were recorded under Section 161 of Cr.P.C. F‘mm the syot, plain earth and earth having vomiting were collected and seized. Sample of holy prasad was also xecovexed and seized. Appellant was taken into custody and his memorandum statement was recorded and at his instance one container of aluminum having three tablets of aluminum phosphate and one packet of zinc phosphate were seized, a full pant, worn by him after getting it Iemoved hem his body was also seized. Both the medical emcers who examined a number of persons at the request of Police omcers, opined that those persons were vomiting as a result of. consuming suspected p01somngV s) body of Mukesh, preserved viscera and opined that the deceased died due to asphyxia as a result of suspected poisoning. All the articles collected and seized Were sent for chemical examination. Chemical examiner on examining the sample of holy pmsad, earth containing vomiting material, viscera, full pant recovered hem the Dr. P. Kudesia (PW/ 14) who conducted autopsy of the aypellant and three téblsts having aluminum phosphate commonly known a$ salyhas. After due investigmion, challan was filed in the Court of Judicial Magistrate, 1st Class, Gariyabrmd who committed tha case to the court of Sessions, Raipur for mall. 6) Charge under Sections 328, 304 alld 307 of ihe P‘C. re med agt the appellant and he same were read over and expld to him who abjurmi the guilt and pleadd that he is cent and has been falsely implicated hi the case by his own rother Hiralal (and. Hemkumar. Learned trial ourt after appreciating the evidence held appelht guilty for the complete episode and convicted and sentenced him accmdingly. ‘7; l)r. P. udesia (PW/ 14) in his statement deposed. that on 15/02] 1999 he conducted postmorte on he ody of Mukesh aged about-4 yers s/o. Omrakash Sahu and on ostmortem he found that the deceased Mukesh died due to aphyxia as a result of suspected poisoning. He preserved viscera and after adopting procedure regarding sea the articles, he sent viscexa to Police Station: Rajim for chemical examination and his report is EX‘3. In his cross examination othing has been elicited which may cause his evidence untrustworthy or unreliable. From the statement of Investigating Ohicer K.K. Mudiliar (PW/9), it is established that vide EX.P/ 132, all the seized articles were sent to FSL, Rapur and report Ex.P.133 thereof was received. As per report Ex‘P. 133 the presence of aluminum phosphate commonly known as salphas was found in viscera, thus, it is established that i> as a result of that Mukesh died t of asphyxia i due i to poisoning. l l7, r' s L we ains t aine e inno b C la K m t b a p p s ling P3 n l y @ 8) Dr. P. Kudesia (PW! 14) in his statement stated that he sxamined Gendlal, Nohar, Nikita, Rekha, Tikeswari, Sonbai, Ku. Pumima, Varsha, Kejabai, Ho‘manlm, Paxvatibai, Panics'hiram, Vishaham, Tominbai, Ghanshyam, Jitcndra. Champabai, Neelkama‘l, Ritumm, Chandrika Plasad, Ramkumar, Deendayal, Sukluram, Sontishibai, Khileswar, Champabai, Dayaxam, Phoolbai, Sukhvatinbai, Shikhar Yadav, KW Sahu, Shyamlal, Kamoutinbai, K.P.’l‘iwan', Chhabilal, Sunitabai, Dwan‘ka Prasad Rajkumar, Radhabaj, Janakmm, Santibai, Bisahjnbai Lakshman, Champeshwari, Upender, Nitu, Bhupendxa, Lokeshwar, Devanand, Jugal Kishore, Kanii'bai, Manju, Digeswari, Sukaro, Dulambai, ’l‘ikeshwari, Lakshminarayan, Chameli, Slmita, Meenabai, Kejabai, Neelaram, Johatmm, Devnarayan Ku.Akta ’I‘iwari, Polamm, Lomasram, Yogeshwar, SV Kumar, Samadhruv, Kulcshwari, Dayabai, Bhagwatin, ’I‘oran Sahu, Thaneshwar, Ku. Pappi, Chetan, Mahesh Kumar, Champeshwar and his mport is Exs.P/ 12 to 92. Dr. AK. Sakhiya (PW/ 15) in his statsment deposed that he examinad Ku. Dcvu'nbai, Dhancsh Sa’hu, Komalram Sahu, Yogesh, Bhuneshwaxi, Abhisha, Gulshankumar, Kunj‘bai, Sushil, Kavita, Dihuram, Santoshkumar, Kuntibai, Sonia, Sahodxabai, Shyamkaii, Vijay. Lakshmi, Roshni, Ku. Rani, Pumima, Dcepak Sahu, Gita‘bai, Krami Sahu, Sumj Sahu, Shravan Knmar, Yogendra Sahu, Chaman Sahu, Samj Sahu, Likeshwari, Bhushan, Govinda, Mitbj1& Kam‘lesh and his report is Exs. P; 94 to P/ 126. After examination, both the medical o$cers “only on the basis, of histoxy of vo@ have given their opinion of suspected poisoning. 9) K.K Mudiliar — Invesn‘gating Oh‘icar (PW/ 19) vicie Ex.P/ 16 collccted plain earth and earth containing vomiting fmm Omprakash Sahu and pmvgd the document. in Court by his statement. From his statement, it is also clsar that those aniclss have been collected from the spot, i.e., the house of deceased Mukesh. Both the articles axe examined by chemical‘ examiner and vide his report Ex?! 133, earth containing vomin'ng material was found with aluminum phosphate, therefore, vomiting of Mukesh was containing the poisonous material. To establish that all other persons except Mukesh who consumed holy, prasad had consumed poisonous holy prasad that caused vomiting, it was necessary to collect the vomiting material of all those persons and was required to be examined. But, during investigation no such attempt has been made by the prosecution neither pmsecution collected the vomiting material of others nor got it examined, Therefore, except Mukesh, rest of the ‘ persons also consumed poisonous prasad was not proved beyond 10) doubt. 11) As far as law regarding murder by poison is L ‘ concerned, Hon’ble the Apex Court rendering the judgment passed in Amnt Chintaman LaguVs. The state of-Bombay, reported in AIR 1960 so 500 (v 47 c 85), held that: “The prosecution mus: establish in a case of poisoning: (a) that death took place by poisoning; (b) that the accused had, the poison in his possession; and (0} that the accused had an opportunity to administer the poison to the deceased. Though these three propositions must be kept in mind 12) inaugural present on that occasion and was assigned the work of serving the Omprakash Sahu (PW/ 2) in his evidence has deposed that the work of cooking food and hbly prasad namely Vijay and Neelkant who cooked holy prasad and kept it Lomasram Sahu (PW/ 3) in his evidence has deposed that the work of preparation of holy Prasad was allotted to Neeikant, Vijay, Bisru and watar. Vijay holy prasad and appellant was present there, After PmPanng holy prasad, they kept 1t 1n the school Appellant PmPa-“ng mmamed there chopping the vegetables f always, the su a‘ency of the evidence direct or cimumstantial, to establish murder by yoisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference thai deaih is the result of poisoning bemse of the failure of the prosewtion to prove She fact satisfaaon'ly, either directly or by cirmmstan'tial evidence, then the benefit of the doubt wiIZ have to be given to the aomsed person But If cirwmstantiai evidence, in the absence of direct proof of the three elements, is so decisive that the court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person then the oonviction can be rested on it. Cr.A.No.12O of 1957, D/- 1 9-2-1 958 (SC) and Cr.A.No. 98 of 1 958, D/ 4-1 1 -1 958 (SC) Ref " *\, appellant was assigned the work of supplying (kinking (PW/6) in his statement stated that they were drinking water to the guests. ,r e ww-Md.‘k Appellant did not dispute that on the date of incident ceremony of Dharmshala was organized and he was was allotted to appellant-Kamalnamyan and others 13) In their cross examinaiion we do not mid any substantial mamrial so as to disbelieve them. Therefore, [ism their evidence, it is established ihat when the holy prasad was prepared and kept, appeilant was present there and was remained in isolazion nearby holy prasag; 14) Shiv Kumar (PWI4) in his evidence has stated that afi‘Er eating holy prasad persons started vomiting, themfom, persons involved in preparing the holy prasad were enquired and at that time it was told that appellant was ileeing, thereafter he was caught and brought Who in the first spell denied mixing anything in holy prasad, but later when he was again asked he confessed that he had mixed insecticide tablets, (Chuha Mar G011) and on search materials found in holy prasad, similar to those were found in his pocket having smell of insecticide. He was given holy prasad, but he denied to eat the same. On close scrutiny of his statement, We do not lind any substandal material so as to hold his evidence incredible. Therefore, mm his statement, it was established that when the persons after consuming holy prasad were in trouble and wete suh‘en‘ng from vomiting, aypellémi attempted to flee from there who on enquiry initially denied administering some poisonous substance in- holy prasad, but subsequently confessed it and material found in holy prasad similar material were found in his pocket with smell of insecticide. Investigating Onicer, K.K‘ Mudiliar (PW/ 19) in his statement deyosed that on 15/02] 1999 he collected 100 grams of sample of holy prasad and seized the sameJnde EXP/8. He took 15) the aypellant into custody, moordgd his memorandum statement EX.P.11 and at his instance insecticids tablets (Chuha Mar Goli) Vida EXP/9 mm his possession along with container were seized. Full pant of appellant was ao seized vide EXP. 10. His statement ls has been corroborated by the evidence of Bhuneshwar Sahu (PW/9) who supports the seizure of sample of holy rasad, ‘Ap memorandum statement of ppellant, recovexy of full pant, ad recovery of inseciicide mm the possession of appellant. He further stated that the maten‘als were sent to FSL, Sagan for examination vide Ex.P/ 132 ad teport EXP] 133 thereof s received. Nothing as been elicited in their cross exaination so a to disbelieve their version. Therefoxe, nom their statements, it s established that at the instance of the appellant, insecticide tablets kt insid e Dibbi and packet were seized. His fu pant and ple of holy prasad were seize On chemical examination it was found tha d. t the holy prasad, full pant and insecticide found in Dibbi were alumnu phosphate commonly known as salphas. im Therefore, it is established that the goison iound in wession 0t the aQgeIIam g and was found mixed in holy prasad 16) From the above proved circumstances, when each one is put in a chain, it makes clear that the appellant collected the insecticide tablets i.e., aluminum phosphate commonly lmown as salphas, kept those in his house and for administering the same in holy prasad, crushed some of those tablets kept in his pocket and when he was present in isolation near the holy prasad got an opportunity to mix the same into holy pig’sgdi and he did it, a n n wa h m s i ep e th ll sam was the same goison that was kegt by the Q&llam in his goeket 4 Rajy 10 thereafter when the distn’bution of hoiy prasad was over, he left the place, but was caught and brought when: on, enquiry he contbssed that he mixed inscctic’ide tablets and When he too was offered holy prasad, he refused to eat the same. On search made by public, maten‘al found in holy prasad were also fomd m hj$ pockot and his pocket was tilled with smell of insecticide. 17) Omprakash Sahu {PW/2) in his statement deposed that after holy prasad was distributed to them, he and his son Mukesh took the holy prasad and ate it, after an hour they started vomiting, they were treated by doctor, but his son Mukesh died in the night. Nothing has‘been brought to discredit his statement. From his evidence and foregoing cimumstances, it is pmved that deceased Mukesh got the holy prasad, ate it and as a result of consuming poisonous holy prasad he started vomiting, subsequently as a result of that poison he died due to asphwda., and that holy prasad was made poisonous by the appellant by administering the poisonous substance i,e., aluminum phosphate. 18) In the result, the appeal partly succeeds. Conviction under Section 328 of the IPC and conviction under Secuon 308 of the IPC and sentence imposed for committing the oifence under Section 308 of the IPC are set aside. Conviction and cider of sentence passed by the trial Court against the appellant fo committing oEence under Section 304 Part I of the IPC axe ‘\‘ i~ . "*\a ., r ‘maintained. ‘ Sd/— Sd/_ i W 1. } V.K. Shrivastava L.C. BHAnoo : L Judge Judge i ‘ V L T