>HI DIVISION BENCH APPELLANT RESPONDENT GH COURT OF CHHATTISGARH BILASPUR CRIMINAL APPEAL NO. 580 OF 2001 HON’BIIE SHRI L.c. BHADoo & HON’BLE SHRI DHIRENDRA MISHRA Ji . // Krishna Versus State of Chhattisgarh. N JUDGMENT FOR CONSIDERATION / // / / N HON’BLE SHRI L.C. BHADOO J r, Sdl- Dhirendra Mm“? ‘ Judge *73/7/2’55; Sd/— L.C. BHADOO Judge [7/2007 Pos'r ON [473ULY 2007 M - SKI/— ‘ ; DHIRENDRA MISI—mA ‘ i Judge V7§77l266§'"i f (go HIGH COURT OF CHHATTISGARH BILASPUR CRIMINAL APPEAL NO. 580 OF 2001 DIVISION BENCH HON’BLE SHRI L.C. BHADOO, 8% HON’BLE SHRI DHIRENDRA MISHRA, JJ APPELLANT Krishna Son of Pardeshi alias Laxmi Narayan, aged about 19 years, R/ o Nayapara (Dhawaihapara) P.S. Pali, Distt’ Korba (C.G.) Versus RESPONDENT : State of Chhattisgarh, through S.H.O. — Pali, Distt. Korba. Present Mr. C.K’ Kesharwani, counsel for the accused/appellant. Mr. D.K. Gwalre, Additional Public Prosecutor for the State / respondent. JUDGMENT ( wrJuly 2007) Per Dhirendra Mishra, J The appellant has preferred this appeal against the judgment dated 29th June 2001 passed in Sessions Trial No.257/2000, whereby the learned Sessions Judge, Bilaspur after holding the accused/appellant guilty of causing homicidal death of Santoshi Bai, has convicted him under Section 302 of the IPC and sentenced him to undergo imprisonment for life. 2. Briefly stated case of the prosecution is that husband of the deceased Ramkhilawan (PW-1) lodged First Information Report (EXP/9) in Police Station Pali, Distt. Korba at about 12.00 noon on 1.5.2000 mentioning therein that he and Santoshi Bai were married two years before the date of incident and 15 days before the incident he had taken Santoshi after Gouna. On 23.4.2000 he along with his wife Santoshi-had gone to Navapara (Dhawaihapara). On 30.4.2000 his wife Santoshi complained of stomach—ache in the morning, then his mother-in-law told Santoshi that she is going along with Ramkhilawan to forest for bringing rope and after returning from forest they shall call the doctor and both of them proceeded to forest. His sister—in-law Nini went to the marriage function, his wife Santoshi remained alone in the home. They returned from forest at 3.00 p.m. and he asked his wife to give him soap for Washing the .1, . i2 I f merin law to bring soap clothes whereupon his Wife asked his oth— - ‘and h1s mother 1n law brought soap and thereafter he went to the 'pond to wash clothes He returned at 8 OO p In from the pond at “that tlme Santoshl was takmg her d1nner, he also 301ned her w1th h1s vmotherjm—law. However, Santosh1 stood up and started vommng. They called the neighbourers Rajkumar Budhram ’Jugutram and others came there and m thelr presence Santoshl was asked as to how she was vomxtmg, then Santoshr mformed that Krxshna ha ) s 'admmlstered medmme from a contamer saymg that 1t 1s a medmme ' for stomach ache and after keepmg the contamer m a plast1c polythene he has placed the same ms1de k1tchen of the house H15 mother-1n—1aw also mformed hlm that Krtshna had come to the house at about 7 00 1n the evenmg and entered the kltchen and thereafter, went from there 1mmed1ate1y By that tune other Vtllagers had also reached there and asked h1s mother-1n-1aw to see as to what Kr1shna has placed 1ns1de the kttchen Hls mother—1n law Went 1ns1de and saw . that there was a contamer of democron pest1c1de 1n the polythene Vand some medlcme was st1ll rematnlng. Hls >s1ster-1n law 1nformed that Krishna had Come at 12.00 noon and he was 'massaging'the legs of his sister with his legs. Krishna‘had deliberately administered democron pesticide to her sisterr‘sayiing that it is a‘ medicine for stomach-ache and has‘committed her murder Krishna was called in the mght itself and his Wife told 1n presence of all about ‘ admimstratlon of medicme to her and thereafter, she became " unconsolous and d1ed at about 2.00 1n the nlght. a 3. After reglstering the offence spot map of Ex P/ 10 was prepared Inquest over the dead body of deceased Santoshi was prepared Vide EX.P/ 3 after duenot-tce to the Witnesses 1n their presence. The bottle was seized from Devkunwar vide EXP/2 Dead body was ’sent for ’_ postmortem to Community Health Centre Pall Vide EX P/ 7 where Dr , ‘ Pradeep Agrawal (PW 7) and Dr S S Paikra conducted postmortem. ‘ and submitted thelrvreport of EX P/ 7—A Vomitus of Santoshi Bal and, 1 pla1n so1l were taken 1nto possess1on Vide EX P/ 13 Three sealed Jars contamlng pleces of lung, liver heart kidney, pieces of stomach and, sample of liquid sent by Community Health Center, Pali were taken ‘ into possessmn Vide EX P/17 The seized articles ie three Jars, vomitus, ‘plainisoil and bottle of democron were sent for chemical analysis toxForen‘sic Science Laboratory,” Sagar vide EX.P/ 15 and the IX? awtvimaimn ’ ‘ ‘ ' .r ; We have heard learned perused the material available counsel for the respective parties and 5 [a on record. l / \l 8. Dr. Pradeep Agrawal (PW—7) has proved the postmortem report of Ex.P/7—A. The postmortem was performed on 2nd May 2000 around 9.00 a.rn. In the postmortem report the doctors have observed that mouth was partly open, tongue was inside, both eyes were closed, rigor mortis were present, postmortem blisters were present over chest and face, bloody froth was coming out of nostrils, face was swollen, abdomen was distended, the whole body was bluish, the finger nails were bluish, postmortem stains over the back and body were present, fickle matter was coming out from the anus, no any external injury was found on her person. However, the doctors were not able to opine the cause of death and they preserved the viscera for chemical examination. In the F.S.L. report presence of organophosphorus pesticide phasphamidon (democron) has been confirmed in the seized viscera, vomitus of deceased Santoshi and liquid in the democron container. Thus, from the F,S.L. report of EXP/16 death of Santoshi Bai due to consumption of poison is established. 9. Ramkhilawan (PW—l), the complainant has reiterated the version given by him in the FIR. The sum and substance of the evidence of this witness is that he returned from forest with his mother—in-law at 5.00 p.m., at that time Santoshi was complaining stomach-ache. By the time he returned from the pond after taking bath, his wife had already taken her meal and after some time she started vomiting. On being asked she informed that Krishna had come and administered some medicine for stomach—ache. After some time Santoshi died. Santoshi informed that Krishna came with the medicine in a container and after administering her medicine, he placed the container in the house of DevkunWar. In cross— examination, he has stated that when he went to the forest his sister— in-law Nini was at home with Santoshi, Nini informed that Krishna came to their home and had massaged the hand and leg of Santoshi. l However, she did not tell anything about administration of medicine by Krishna to Santoshi. Santoshi was aunt of accused Krishna. On he day his wife Santoshi died, his mother—in—law did not tell him anything. She did not tell him on the date of incident that Krishna had come and left from there after some time, He has further denied the suggestion that he suspected illicit relationship between accused Krishna and deceased Santoshi, therefore he has implicated the t C} Lp/ appellant in a false case. When he returned from the forest, Nini @ Basanti was at home. 10. Devkunwar (PW-2), mother of the deceased, has also stated that on the date of incident she along with her son-in—law had gone to forest for collection of firewood, at that time Santoshi complained of stomach-ache, however, she has stated that when she went to forest Nini had gone to the venue of marriage. They returned from forest in. the evening. Thereafter, she went to shop to fetch soap and returned immediately. On her return, her daughter expressed desire of having chicken. Thereafter, Krishna came to her house and asked for water, at the time Santoshi was sleeping in the courtyard. Krishna asked Santoshi whether she got rid of stomach—ache or not, to which Santoshi replied that she has stomach-ache, whereupon Krishna advised “aunty if your stomach is aching, take medicine 77 . However, she did not see who was keeping the medicine and who gave medicine to Santoshi Bai as she was sitting inside the home and from there she heard the conversation. Thereafter, her daughter said that she is feeling hungry and asked for rice. When she came out of the house, she saw a container in Krishna’s hand which he threw inside her house. She and Santhoshi took rice and after some time Santoshi complained that she is not feeling well. On being asked, she told that Krishna has administered some medicine from the container, at that time Krishna was not there. She went to look for Krishna in the village and found him sleeping in his home. Krishna denied administering any medicine to Santoshi. She brought Krishna and her father to their home and asked Santoshi in presence of Krishna and Santoshi repeated her allegations. Santoshi also abused Krishna for administering medicine. However, after some time Krishna fled from there. She called the persons from vicinity and told them about the condition of Santoshi. Santoshi also informed the villagers about Krishna administering her medicine. Santoshi died in the night. She has stated that after return from the forest her daughter Nini did not tell her anything, however, she further stated that Nini told her that Krishna came to their house and was massaging the legs of Santoshi Bai. In the cross~examination she has stated that the medicine container was seized from her house. Santram had taken the container to his house, however, when police came, Santram handed over the container to the police. On the N \\ v \X demand of Santoshi she had given her rice, chicken and as soon as \ she ate, she started vomiting 11. PW—3 Basanti Bai @ Nini, sister of the deceased, has stated that Santoshi and Ramkhilawan had gone to their home in connection with marriage function, she recognized Krishna, she had gone to the marriage venue. Krishna came to her house, when she returned she saw Krishna sitting in the home and he was massaging the legs of antoshi. Thereafter, she again returned to the marriage i venue. hen he reurned, Santoshi complained that she was not feeling well and told that rishna ad given her medicine, at that time Krihna was not present and at tht time Rakkhilawan and her mother had gone to Deorbata. Santoshi told her about Krishna aministering her medicine and Santoshi died i the same night. In cross-examination she has stated that she saw Krishna massaging Santosi Bai in the evening and thereafter, Krisna did not return. She has further sted that one adcate ha tutored her as to what statement she was to give in the Court. 12 Independent witnesses Pyar Singh (PW—4), Rohan Singh Raj (—5), Santram (PW—6) and Rajkumar (PW-8) have not supported the prosecution case and they were declared hostile and cross-examined by the prosecution. 13. The Hon’ble Supreme Court in the matter of reported in while considering murder by poison or suicide has held in paragraph 165 of the judgment thus:- a “So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his pOSSESSlOI’l, S W s t K h s a h d n h h ta vo d . PW Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 @ (4) that he had an opportunity to administer the poison to the deceased. 14. In the matter of Bhupinder Singh Vs. State of Punjab reported in (1988) 3 SCC 513 the Hon’ble Apex Court has doubted the availability of the above third circumstance as necessary to establishthe case of murder by poisoning. Paragraphs 25 85 26 of the above judgment are reroduced hereunder: “5. We do not consider that there should be acquittal o e filure of the prosecution to prove the possession of poison with the accused. Murder by poison i invariably ommitted under the cover and cloak of secrecy. Noy will administe poison to another in the pence o thers. The person who administers poison to notr in seccy will not keep a portion of it for the ivestitin office o come and collect it. The person W- commits suc murder would naturally take care to eliminae an es the evidence against him. In such cases, it e impossib for the prosecution to rove possessio pon with the accused. The prosecution may, hover, establis other circumstances consistent only with te hypotesis of the guilt of the accused. The court ten would not be justid in acquitting the acused on the grod that the prosecution has failed to prove pssion 0f the poison with the accused. 26. The oison murder cases re not to be put outside the rul of crcumstantial evidence. There may be viu vy ny facts an circumstances out of which th court my be justified in drawing permissible ierec that the accused was in 'possession of the piso in question. There may e very many fac and uace proved against e accused which may c fo tacit assumption of the factum of possession of posn th the cd. he instence on prf ’of sesso io t the acsed invariably in every case is neither esirabe no practicable. It would ean t ntroduce a exraneos ingredient to the offence f p 2 r th a s c bod r res f o ahe re ngag r t ho h t d dtroy would b le p n of iso we h h h h fie c un osse p a e i obos er ma d e a nfne on b ts circmstns th all r io wi acuse T is oo " posin of posn wih cu dl r m o i n tu o murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like any other murder. In cases Where dependence is wholly on circumstantial evidence, and direct evidence not being available, the court can legitimately draw from the circumstances an inference on any matter one way or the other. 15. We propose to examine the oral evidence adduced by the prosecution in the light of principles of law laid down by the Hon’ble Supreme Court in the matter of Sharad Birdhichand Sarda (supra) and Bhupinder Singh (supra) to ascertain whether in the present case the four important circumstances have been established or not? (I) Whether there is a clear motive for the accused to administer poison to the deceased ? 16. From the evidence available on record the prosecution has not been able to establish that the accused had any motive to commit murder of Santoshi Bai by administering her poison. Though suggestions have been made to the Witnesses in their cross- examinations that the accused had some illicit relationship with the deceased, however, the witnesses have either denied the suggestion or expressed ignorance about any such relationship. On the contrary, there is evidence that the deceased was aunty (mother’s sister) of the accused, they had cordial relationship. Even on the date of incident in the afternoon the accused was massaging the legs of the deceased Without any objection by her. Complainant Ramkhilawan (PW-1) has stated that he was married to the deceased two years before the incident and Gouna had taken place after one year of the marriage. There is no evidence on record that after marriage relationship between the accused and the deceased became bitter, on the contrary, there is evidence that even after marriage the accused visited house of the deceased and they had cordial relationship. Even if it is assumed that the accused had any relationship with the deceased, the same cannot be a motiVe for the \V / x: W accused to cause death of Santoshi as there was no dispute or altercation between the two in this regard and therefore, in our opinion present one is not a case in which it can’be held that the accused had any motive to administer poison to the deceased. Thus, from the evidence available on record, we are of the considered opinion that the prosecution has failed to prove that the accused had any motive to administer poison to the deceased with an intention to cause her death. (II) Whether the deceased died of poison said to have been administered? 17. So far as this circumstances is concerned, on the basis of report of the F.S.L. we have already held that the deceased died because of organophosphorus pesticide phasphamidon (democron) po1son. (III) Whether the accused had the poison in his possession? 18. The container of the poison democron has been seized from Devkunwar Vide seizure memo of EXP/2 on 1.5.2000 at about 15.45 hours. PW-2 Devkunwar in paragraph 2 of her statement has stated that after she returned from the shop Krishna came to her home, he enquired from Santoshi about her stomach—ach and advised to take medicine. She did not see who was keeping the medicine and she also did not see as to who gave her medicine as she only heard their talks. Her daughter asked for meals, when she came out she saw Krishna holding a container which he threw inside her house. In cross-examination she has stated that» Santram took the container of medicine to his house and handed over the same to police. However, she stated that she could not identify the container. On the other hand, Ramkhilawan has lodged the FIR in which it is mentioned that his mother-in—law informed that Krishna came to their house at 7.00 p.m., entered in the kitchen and left immediately. There is no mention that Devkunwar informed that Krishna was holding‘any container which he threw inside her house or that the container was taken by Santram and the same was produced by Santram before the police. Even the alleged conversation between the deceased and Krishna is not mentioned. 10 In the matter of Bhupinder Singh (supra), the necessity of establishing the third circumstance i.e. the accused had the-poisons in his possession, has been doubtedJt has been held that there may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accusedinvariably in every case is neither desirable nor practicable. However, in the present case we do not find any abnormality in the conduct of the accused as from the evidence \ available on record, the Witnesses have stated that immediately after 1n the incident‘rvvhen they went to the house of the'accused, they found him sleeping in his house and on being asked he immediately came to their house. Had the accused administered any poison to the deceased then he would not have thrOVvn the same in the house of Devkunwar and that too, in full view of Devkunwar, therefore, we are of the considered opinion that the prosecution has not been able to establish even the third circumstance by adducing reliable and cogent evidence that the appellant was in possession of the poison a before the same was given to the deceaSed and subsequent thereto. (IV) Whether, the accused had an opportunity to administer the poison to the deceased? 19. Now coming to the fourth circumstance, the'prosecution has tried to establish this circumstance on the basisof statements of Ramkhilawan, Devkunwar and Basanti Bai @ Nini. The prosecution has also examined independent witnesses Pyar Singh (PW-4), Rohan Singh Raj (PW—5), Santram (PW-6) and Rajkumar (PW—8). However, they have not supported the prosecution case and they have been cross-examined by the prosecution after being declared hostile. These witnesses haVe been examined by the prosecution to establish this fact that deceased Santoshi Bai allegedly made statement before these witnesses that the accused/appellant administered poison on the pretext of medicine for stomach—ache, we' are, therefore, called upon to examine the evidence of PW-l Ramkhilawan, PW—2 Devkunwar and PW—3 Basanti Bai @ Nini to find out Whether the Court below was justified in relying upon their testimony and believing the statement alleged to have been made by Santoshi while she was suffering under the influence of poison. 11 20. The Hon’bel Supreme Court in the matter of Heikrujam Chaoba Siligh Vs. State of Manipur reported in 1999 (4} Crimes 327 (SCI, While coneidering the reliability of an oral dying declaration 'has held thus: “An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration an be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. 21. We have substantially reproduced the statements of Ramkhilawan, Devkunwar and Basanti Bai @ Nini on whose statements the trial Court has based the conviction of the appellant. However, their versions do not inspire our confidence because of the following reasons: (i) that complainant Ramkhilawan has stated that when he returned after taking his bath Santoshi told him that Krishna has given medicine for stomach—ache and only after some time she died. She told that Krishna brought the medicine in a container and after giving the medicine from that container he placed it in the house of Devkunwar whereas in the FIR he has stated that he returned at 8.00 p.m. after washing his clothes and at that time Santoshi was taking her meal, he along with his mother-in—law also joined her. Whereas Devkunwar has stated» that she along with Ramkhilawan returned from forest in the evening and thereafter, she went to fetch soap and immediately returned. After that Krishna came to her house and asked Santoshi-about her stomach- ache and suggested her to take medicine, she c heard this from inside and When her daughter s‘aid that she was hungry, she came out and saw Krishna holding a container which he threw inside her house. Thereafter, she dined rice With her daughter Santoshi After some time Santoshi complained uneasmess and on enquiry she told that Krishna had admlnlstered some med1c1ne from the contalner. This Witness does notmention about the presence of Ramkhilawan at the time of dinner and at the‘ time When Santoshi started. vomiting. There . is also discrepancy; in the statements of these two WitneSses that after Santoshi consumed medicine Devkunwar called Krishna to her house and Santoshi abused Krishna as to What med1c1ne he has administered whereupon Krishna fled from there Whereas th1s fact 1s not stated by Ramkhilawan a On the contrary, Ramkhilawan has categorically stated that on the ‘date of‘incident'her mother-in-law did not tell him anything; she'ra‘lsodid not tell him that Krishna came there and after some time went away That in the FIR it ls mentioned that his mother—in- law told that Krishna had come at about 7 00 p m entered 1n the kitchen and went from there immediately, however, the'fa‘ct that her mother-in- law heard Krishna advising Santoshi to take