PRADIP MOHANTY, J & B.K.NAYAK, J. JCRA NO.20 OF 2002 (Decided on 21.04.2011) SUBASH NAYAK @ ALUA …. …Appellant. .Vrs. STATE OF ORISSA ……..Respondent. EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.104. For Appellant - Mr. Biswanath Rath. For Respondent - Mr. Anupam Rath (Additional Standing Counsel) PRADIP MOHANTY, J. The appellant, who has been convicted by the Sessions Judge, Khurda at Bhubaneswar in Sessions Trial Case No.178 of 2000 for commission of offence under Sections 302/328 I.P.C. and sentenced to undergo imprisonment for life for the offence under Section 302, IPC and R.I. for two years and to pay a fine of Rs.200/- in default to undergo R.I. for one month for the offence under Section 328 I.P.C, has preferred this appeal from jail. 2. The case of the prosecution is that on 13.3.2000 after cooking dry fish curry when the deceased (Bhudi Bewa) went out of the house, the appellant, who is the step grandson of the deceased, entered into the house and administered insecticide into the dry fish curry. On return, the deceased sent a bowl of the curry to her neighbour-Basanti Naik (P.W.2). Both the deceased and P.W.2 took the dry fish curry in the dinner and went to bed. When they suffered from nausea accompanied with vertigo and started vomiting, initially they were shifted to the Pipili hospital, as the son of the deceased (P.W.1) who is a Florist resided at Pipili. From Pipili, they were shifted to the Capital Hospital, Bhubaneswar where the deceased died of poisoning at 11:35 PM on 14.3.2000 and P.W.2 luckily survived. Basing upon the report of the Medical Officer, Capital Hospital, Bhubaneswar, U.D. case was registered at Capital Police Station. On 16.3.2000, P.W.1 lodged the F.I.R. at Balianta Police Station and after due investigation, police submitted charge-sheet under Sections 302/328 I.P.C. against the appellant. 3. The plea of the appellant was one of complete denial of the allegations. 4. In order to prove its case, prosecution examined as many as fourteen witnesses including the doctor and the I.O. and exhibited twenty one documents. The defence examined none. 5. Learned Sessions Judge, who tried the case, has convicted the present appellant under Sections 302/328 I.P.C. basing upon the evidence of P.Ws.3, 4, 5, 7 and 9 before whom the extra judicial confession was made by the appellant, the evidence of P.W.11 from whom the appellant had brought insecticide two days prior to the death of the deceased, and the recovery of remnants of pesticide (poison) made at the instance of the appellant on the basis of disclosure statement made by him. 6. Mr. Rath, learned counsel for the appellant assails the impugned judgment on the following grounds: (i) There was delay in lodging the FIR and the same has not been properly explained by the prosecution. (ii) There is no evidence that the appellant had visited the house of the deceased in the night of occurrence and that he had previous enmity with the deceased; and (iii) P.W.2 stated that her husband (P.W.6) had also taken the dry fish curry but he did not fall ill. (iv) There are major contradictions in the evidence of the prosecution witnesses. 7. Mr.Rath, learned Additional Standing Counsel vehemently contends that in the instant case prosecution has been able to complete the chain of circumstances. The motive of the appellant has been proved through P.W.2 and also P.Ws.3, 4, 5, 7 & 9. The appellant collected the poison from P.W.11 and administered the same in the food of the deceased. He also made an extrajudicial confession before the villagers (P.Ws.3 to 5, 7 and 9). On dissection, the doctor found 30 gms of semi-digested material with identifiable rice and dark particles at places with pungent smell. The chemical examiner also detected Phoret (Thimet) and insecticidal poison in the viscera of the deceased. P.W.2, the other victim of poisoning who was admitted in the hospital along with the deceased but luckily survived, has categorically deposed as to how the deceased and she herself vomitted and got senseless after consuming the poisonous dry fish curry. Therefore, learned Sessions Judge has not committed any illegality or irregularity in convicting the present appellant. 8. Perused the LCR. P.W.1 is the son of the deceased and informant of the case. He stated that in his absence the occurrence took place. His brother Laxmidhar and cousin brothers Kailash and Sadasiva, who took the deceased and P.W.2 to Pipili P.H.C, told him that his mother and Basanti (P.W.2) fell ill with vertigo after taking the dry fish curry in the night. The doctor, after examining the deceased and P.W.2, referred them to the Capital Hospital, Bhubaneswar, since it was a case of poisoning. On 14.03.2000 at about 11:45 PM, the deceased died and P.W.2, after recovery, was discharged on 19.03.2000. The post mortem examination was conducted on 15.03.2000. He further deposed that coming to learn that on 13.03.2000 the appellant made an extra judicial confession before Kabuli @ Tribikram Dash (P.W.7) that he had mixed the poison in the dry fish curry, which was taken by the deceased and P.W.2, on 16.03.2000 he lodged the F.I.R. (Ext.1). In cross-examination, he admitted that except Kabuli no one was present when the appellant made the confession. P.W.2 is the sister-in-law of P.W.1. She deposed that in the night of the occurrence, she had taken the dry fish curry, which was sent by the deceased. Her husband also tested a bit of it. At about 2:00 AM in the very same night, the deceased came to her house and knocked the door in a state of delirium and started vomitting. At 2 about 4:00 AM, after vomitting, she (P.W.2) herself vomitted and lost her sense. She along with the deceased was shifted to the Pipili P.H.C. and from there they were referred to the Capital Hospital, Bhubaneswar. While they were under treatment at the Capital Hospital, the deceased died in the night of 15.03.2000 and she luckily survived and was discharged from the hospital. In her examination-in-chief, she admitted that her husband (P.W.6) had got information from the villagers that due to the quarrel with the deceased, the appellant had administered poison in the dry fish curry. In cross- examination, she admitted that 4 to 5 days prior to the occurrence, there was a quarrel between the deceased and the appellant over theft of brinjal from the backyard of the deceased. P.W.3 is a co-villager who specifically stated that the deceased and P.W.2 fell sick after taking the dry fish curry and were admitted in the hospital. The day following the death of the deceased, the appellant made an extra judicial confession before the villagers, namely, Dhadu Mohapatra, Rabi Mohapatra, Babu Mohapatra, Kabuli @ Tribikram Dash, that he had mixed poison in the dry fish curry. He stated that the appellant confessed further that as the deceased used to scold him, he had mixed the poison. In cross-examination, he stated that the appellant made confession at the village street in front of his house and that there was a gathering of 100 to 150 persons when the appellant made the extra judicial confession. P.W.4 is yet another co-villager. He deposed that before P.Ws.3, 5, 7 and 9 and other villagers, the appellant made an extra judicial confession that he had administered ‘DANADAR’ poison into the dry fish curry. In cross-examination, he admitted that none of the family members of the appellant was present when the appellant made the confession. P.W.5 is another co-villager who corroborated the statement of P.W.4. P.W.6 is the husband of P.W.2 who corroborated the statement of P.W.1 and proved the inquest report (Ext.2). P.W.7 is a witness to the extra judicial confession who corroborated the testimony of P.W.3. P.W.8 is a witness to leading to discovery. He deposed that the appellant while in police custody gave information to have kept remnants of pesticide wrapped in a paper concealed in the thatch of the house. Saying so, he led the police and the witness to the place of concealment and brought out a paper packet containing pesticide from the thatch which the police seized under Ext.4. The police also seized under Ext.5 the frying pan (Karei), in which the dry fish curry was cooked, and the dry fish curry under Ext.6. This witness proved Exts.4, 5 and 6. In cross-examination, he admitted that he was present when the appellant made the disclosure statement before the police and he followed the appellant when he brought out the paper wrapper from the thatch. P.W.9 is a co-villager who corroborated the evidence of P.Ws.3 to 5 and 7 with regard to extrajudicial confession made by the appellant. In cross-examination, he admitted that P.W.6 was not present when the appellant made confession, since at that time he was at the hospital. P.W.10 is the doctor who conducted autopsy over the dead body of the deceased and found no external injury. On dissection, he found the stomach had 3 contained 30 grams of semi-digested material with in-identifiable rice, dark particles at places with pungent smell. He opined that the cause of death was due to ingestion of insecticidal poison. He collected and preserved the viscera in a sealed bottle and sent it to the I.O. through the Constable B.B. Das for sending it to the State F.S.L. for chemical examination. He proved the chemical examination report of the viscera (Ext.8). He specifically deposed that the report reveals that insecticidal poison was detected from the viscera of the deceased. P.W.11, who is a co-villager, deposed that as a cultivator he used to spray pesticides at his paddy field during agricultural season. The appellant came to him and collected some insecticide from him and on being asked the appellant told that he was in need of the same for killing the rats. Two days thereafter, P.W.11 came to know that the appellant had mixed the insecticide in the dry fish curry prepared by the deceased and the deceased died after taking the same in the dinner. P.W.12 is the S.I. of Police. He received the F.I.R. (Ext.1), registered the case, examined the witnesses, visited the house of the deceased and arrested the appellant. The appellant while in custody disclosed about the concealment and led him (P.W.12) and the witnesses to the place of concealment and brought out the paper packet containing pesticide kept in the thatch of his (appellant’s) house and he seized the same under Ext.4. He also sent the seized articles for chemical examination. In cross- examination, he admitted that other than P.W.8 and Ashok Mishra, no body was present when appellant gave information of concealment. P.W.13 is the doctor who treated P.W.2, the other victim of poisoning who was recovered. He stated that P.W.2 was admitted in a serious condition in the Capital Hospital, Bhubaneswar. P.W.2 had the symptoms of ingestion of organ phosphorus poison and was treated for the same. She was hospitalised till 19.03.2000. P.W.14 is the A.S.I. of Capital Police Station, Bhubaneswar, who held inquest over the dead body of the deceased. On 14.7.2000, he received the post mortem report which revealed a case of murder due to poisoning. He accordingly closed the enquiry of the U.D. case and submitted a report. 9. In Sharad Birdhichand Sarda V. State of Maharashtra; AIR 1984 SC 1622 the apex Court has held that in the cases of murder by administration of poison, 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 possession; and (4) that he had an opportunity to administer the poison to the deceased.” 10. Keeping the aforesaid ratio in view, this Court examined the oral and documentary evidence available on record. P.Ws.3, 4, 5, 7 and 9 have categorically 4 deposed that while the appellant was making extrajudicial confession had disclosed before them that he had borne grudge against the deceased as she had scolded him and his family members alleging that they had committed theft of brinjal grown in her backyard. P.W.2 in cross-examination has admitted the said fact. From this, it can be safely inferred that the appellant had motive to commit the crime. Coming to the next circumstance as to whether the deceased died of poisoning, the post-mortem doctor (P.W.10) opined that the cause of death of the deceased was due to ingestion of insecticidal poison. By referring to the chemical examination report of the viscera (Ext.8), he further deposed that the report reveals that insecticidal poison was detected from the viscera of the deceased. In the face of this evidence, it can be safely concluded that the deceased died of poisoning. The next circumstance is whether the appellant had poison in his possession. P.W.11 has testified that the appellant had collected insecticide from him on the plea of killing the rats and two days thereafter he came to know that the appellant had mixed the insecticide in the dry fish curry and the deceased died after taking the same in the dinner. Furthermore, as is evident from the evidence of P.W.8 and the investigating officer (P.W.12) the appellant while in police custody made disclosure and led the police and the witnesses to the place of concealment and gave discovery of a paper packet emitting smell of pesticide. The chemical examination report reveals that phoret (thimet) and insecticidal poison were detected in two of the wrappers of the packet. It transpires from the evidence of the I.O. (P.W.12) and the doctor (P.W.10) that earth mixed remnants of dry fish curry and the paper wrappers emitting smell of insecticide which was recovered consequent upon the information given by the appellant. There is thus no doubt that the appellant had poison in his possession. Next it is to be seen whether the appellant had opportunity to administer poison. It is in the evidence of P.W.7 that the deceased as well as the appellant and his family members had been residing in two different parts of one house separated by a partition wall. As such, the appellant had the advantage of watching the movements of the deceased so as to administer poison to the dry fish curry she had cooked for dinner during her temporary absence from the house. 11. As regards delay in lodging the FIR, undisputedly the F.I.R. was lodged on 16.03.2000 whereas the occurrence took place on 13.03.2000 in the night. Soon thereafter, the deceased was shifted to the Pipli hospital first and from there to the Capital Hospital, Bhubaneswar where she died on 14.03.2000 at 11:35 PM. Post- mortem was conducted on the next date, i.e., 15.03.2000 and P.W.1 received the dead body of the deceased and cremated in their village on 15.03.2000. P.W.1 heard from the villagers about the involvement of the appellant and then lodged the F.I.R. on 16.03.2000. Under the circumstances, this Court holds that the prosecution has successfully explained the delay and, therefore, the delay in lodging the FIR cannot be fatal to the prosecution. 12. For the reasons recorded above, this Court is of the considered opinion that the prosecution has been able to establish that it is the appellant and the appellant alone who has committed murder of the deceased by poisoning. 13. As regards the charge under Section 328, IPC, P.W.13, the doctor, who treated P.W.2, has stated that P.W.2 was admitted in a very serious condition with the symptoms of ingestion of organ phosphorus poison. As already stated, the appellant with a view to committing murder of the deceased had mixed pesticide in the dry fish 5 curry. There is no evidence on record that the appellant had intended to cause hurt to P.W.2. Therefore, the conviction of the appellant under Section 328, IPC cannot be sustained and he is acquitted of the said charge. 14. In the result, therefore, the conviction and sentence of the appellant for the offence under Section 302, IPC is upheld. But, his conviction and sentence for the offence under Section 328, IPC is set aside and he is acquitted of the said charge. The impugned judgment and order of the trial court is modified to the extent indicated. The JCRA is accordingly disposed of. Appeal disposed of. 6