ld HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Guota. C.J. & Hon>ble Shri Sunil Kumar Sinha, J. Criminal Apoeal No. 643 o{2001 Mannu ^ o y^ - Vs. State of C.G. JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON»BLE SHRI JUSTICE RAJEEV GUPTA o ' b <^L-^/yt-^-' Sd/- Chief Justice Post for Judgment :^3/06/2009 Sd/- SunU Kumar Sinha Judge ^) HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Guota. C.J. & Hon^ble Shn Sunil Kumar Sinha, J. Criminal Aooeal No. 643 of 2001 k*^ APPELLANTS 1 2. 3. 4. RESPONDENT Mannu S/o Paltu, aged about 30 years, Caste Sahu Paltu Sahu, s/o Kurso Sahu, aged about 70 years, Roopotin Bai, wife of Mannu Sahu, aged about 25 years Sundar Bai, wife of Paltu Sahu, aged about 65 years (since dead, her name was deleted by Court order dated 05.03.2009) All residents of village Dwartara, Nawadoh, P.S. Bagbahara, Tahsil and Distt. Mahasamund (C.G). Versus State of C.G. Through Police Station Bagbahara, Tahsil and District Mahasamund (C.G.) (Appeal under Section 374 (21 of The Code of Criminal Procedurel Anpearance: Shri Vaibhav A. Govardhan, Counsel for the appellants. Shri Praveen Das, Deputy Govt. Advocate, for the State. ^ ^, '^. Cr.A.No.643/2001 JUDGMENT (23.06.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J, (1) The appellants have been convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life by the Second Additional Sessions Judge, Mahasamund (C.G) in Sessions Trial No.279/2000 on 10.07.2001. Appellant Mannu is the uncle, Appellant Paltu is the grand father and appellant Roopotin Bai is the aunt of deceased Rajendra Kumar, whereas, appellant Sunder Bai, who died during the pendency of the appeal, was the grand mother of the deceased. (2) The facts, briefly stated, are as under: On 21.2.2000 at about 9 a.m., deceased Rajendra, aged about 3 years and his sister Basanti (P.W.3), aged about 4-5 years, were playing near a Mahuwa Tree near their house. Appellant Roopotin Bai came there and called them inside her house. Basanti (P.W.3) was stopped in the court-yard near Tulsi Chowra (a platform meant for Tulsi plant} and the deceased was taken inside the room. The allegations are that appellant Paltu caught the legs of the deceased, appellant Mannu caught the hands of the deceased, appellant Sunder Bai pressed the nose of the deceased and appellant Roopotin forcibly poured the poison (Rat Killer) in his mouth and made him to swallow it. This was witnessed by Basanti (P.W.3). Thereafter Dhan Bai (P.W.2, mother of the children) called them for going to take bath in tank. On this, the deceased and his sister Basanti (P.W.3) came out from the house of the appellants and accompanied their mother to the tank. ^.' !.L ^ Cr.A.No.643/2001 The deceased started vomiting in the tank. Dhan Bai asked hiin as to why he is vomiting, on which, Basanti (P.W.3) stated that Rat Killer has been administered on the deceased by the accused persons in the above manner. Dhan Bai immediately rushed to Ratram (P.W.6) and Pustan for making arrangements for treatment of the deceased, but nothing could be done. At about 2 p.m., father of deceased, Lakhan (P.W.Jt), came to the house and took the deceased to Community Health Center, Khariar Road, where he was treated by Dr. Shyam Prasad Satpathi (P.W.ll). The doctor also collected sainple of voniit of the deceased and handed over it to Lakhan (P.W.l). The deceased died in the hospital during his treatment in the evening. Intimation was given to the concerned Police Station on which the merg (Ex.P.8) was registered. The inquest (Ex.P.2) on the body of deceased was prepared and it was sent for postmortera examination which was conducted by Dr.B. Negi (P.W.4), who prepared his report Ex.P.1. The autopsy surgeon opined that the cause of death was asphyxia which might have occurred due to poisoning. He also opined that the poison may be Zink Suplhate - Rat Killer. The sample of the vomit, which was collected and handed over to Lakhan (P.W.l), father of the deceased, was seized under Ex.P.l. The said sample and the preserved viscera were sent for their chemical examination to Forensic Science Laboratory, Sagar (M.P) under Ex.P.10, from where, a report Ex.P.12 was obtained. According to the F.S.L. report, Zinc Phosphate was found in the vomit and viscera of the deceased. The statenients of witnesses were recorded and the First Information Report was registered under Ex.P-9. After coinpletion of usual investigation, the charge sheet was filed in the Court of Chief Judicial Magistrate, Mahasaniund, who in turn conimitted the matter to the concerned Sessions Court from where it was received on ^^•^'•"^ t^€<%. G.. "i ^'^:..^ l^^--.r": Cr.A.No.643/2001 transfer by the Second Addl. Sessions Judge, Mahasamund who conducted the trial and convicted and sentenced the appellants as aforementioned. (3) The conviction of the appellants is based upon the eye- witness account of Basanti (P.W.3) supported by evidence of father and mother of the deceased namely Lakhan (P.W.l) 85 Dhan Bai (P.W.2). (4) Shri Vaibhav Govardhan, learned counsel appearing on behalf of the appeUants, argued that Basanti (P.W.3) is a child witness, the contents of her evidence would show that she is not reliable as she appears to be a tutored witness who has never seen the occurrence. He also argued that the conduct of Lakhan (P.W.l) and Dhan Bai (P.W.2) would show that they are also unreliable witnesses and they have tried to falsely implicate the appellants in crime in questlon. (5) On the other hand, Shri Praveen Das, learned Dy.Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) Basanti (P.W.3) was aged about 4-5 years on the date of incident. She deposed that on the relevant date and time she was playing with her brother (deceased) near a Mahuva Tree. Her aunt came there and took them to her house. She was stopped at the Tulsi Chowra of the house and Rajendra was taken inside the room. Her grand father caught the legs of ff "^.^^^ \ h1^^ ' ^. Cr.A.No.643/2001 Rajendra, her uncle caught his hands, her grand mother caught his nose and thereafter her aunt forcibly opened the mouth of Rajendra and poured rat killer inside his mouth which was swallowed by him. Thereafter, she along with her mother and Rajendra went to the tank for taking bath where Rajendra started vomiting. They immediately returned to their house and when his father canie to the village, her brother was taken to the hospital. She also deposed that deceased had stated to her m.0ther that her aunt had given tea to them. She further stated that she also told her mother that they were called by the aunt and she had administered medicine. In the cross examination, she admitted that Tulsi Chowra is in the court yard of the house. She also admitted that on the date of incident she had taken meals along with her father and thereafter she had gone to school. She further admitted that on the date of incident one Kaushalya Bai had gone to call her from school. (7) Lakhan (P.W.l) father of the deceased deposed that at about 9 a.m., he had gone to village Bagbahara. He returned at about 2 p.m. When he returned to his house, his wife and the daughter stated that the appellants had administered rat killer pn Rajendra. Then he took his son to the hospital where he died in the evening. (8) From the evidence of Lakhan (P.W.l) and Basanti (P.W.3), it appears that both had left their house at about 9 a.m. and nothing had happened till then. P.W.3 had gone to her school |NNNNW»NI> ^..; ^IIIINI <p. Cr.A.No.643/2001 and ultimately she was called by one Kaushalya when the condition of Rajendra started deteriorating. Therefore, the story set forth by P.W. 3 regarding administration of poison by the appellants over the deceased appears to be doubtful. The manner and way in which she has deposed in paragraph 3 of her examination-in-chief also creates doubt on her testimony. She has tried to give a detailed version regarding the role played by each appellant and the manner in which the poison was administered. It appears that she has been tutored to depose even the minor details relating to the alleged commission of the offence which appears to be an unnatural conduct of a child witness. She has very specifically stated that Rate Killer was administered on the deceased. Even assuming that she had witnessed the occurrence, how she could come to know from a long distance that the substance which was allegedly administered on the deceased was a Rat Killer. In a natural way, if she had seen the occurrence that something was administered forcibly on the deceased, she would have stated that some powder like substance or some liquid, whatsoever it may be, was administered on the deceased and not that the Rat Killer only was administered on him. This conduct of the child witness is also quite unnatural and we hesitate to act on her testimony. (9) P.W.2 Dhan Bai deposed that when she saw that the children are not there at Mahuva Tree, she called them and then all of them went to the tank. In the tank, Rajendra started ne (^. T4 Cr.A.No.643/2001 vomiting. Then she asked Rajendra and he stated that appellant Roopotin Bai had offered tea to him. When he denied to take tea, Roopotin Bai got him laid down and he was forcibly made to take the tea. This version of Dhan Bai (P.W.2) is destroying the evidence of Basanti (P.W.3). Basanti (P.W.3) has never stated about giving tea by Roopotin Bai. She has simply stated about giving Rat Killer. The version of P.W.3 is also falsified on account of her further conduct. If she had seen that her brother has been administered poison by the appellants then when the brother and sister came out from the house of the appellants and had met the mother for going to take bath in the tank, in a natural manner, she would have immediately disclosed to her mother fhat her brother has been administered poison. Why she kept mum till her brother started vomitmg in the tank ? The above conduct of Basanti (P.W.3) is also unnatural. (10) The version of P.W.2 Dhan Bai and P.W.3 Basanti is further falsified by the evidence of P.W.6 Ratram and P.W.7 Angara Bai. Ratram (P.W.6) stated that at about 12.00 - 1.00 in the noon, Dhan Bai met him on the way. He was returning from his work. Dhan Bai stated that her son Rajendra is voraiting. He saw Rajendra. At that time, Rajendra was vomiting some black substance and he was almost unconscious. He never deposed that Dhan Bai told him that some poison has been administered on the deceased. Angara Bai (P.W.7) also deposed that Dhan Bai came to her house Cr.A.No.643/2001 along-with her son Rajendra and told her to see as to why Rajendra is vomiting. Rajendra was vomiting some block substance. She called her brother-in-law and thereafter she went inside her house. In the meanwhile, Dhan Bai had taken her son to her own house. (11) Admittedly, Dhan Bai met Ratram (P.W.6) and Angara Bai (P.W.7) while she was retuming from the tank. According to Dhan Bai (P.W.2) and Basanti (P.W.3), by that time, every thing was clear to Dhan Bai. Then why she will ask Ratram (P.W.6) and Angara Bai (P.W.7) to see as to why her son is vomiting ? As she claimed that she was knowing the cause, therefore, instead of saying to find out the cause of vomiting, she would have mentioned something about the story disclosed to her. (12) For the foregoing reasons, in appreciation, we do not find the evidence of Basanti (P.W.3), the child witness and her mother Dhan Bai (P.W.2) as reliable. The conviction based on the evidence of these witnesses cannot be sustained. The learned Sessions Judge erred in law in resting conviction on the testimonies of these witnesses. (13) Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellants are set aside. The appellants are acquitted of the charges framed against them. It is stated that appellants 1 85 3 are in jail and the sentences imposed against the appellants 2 & 4 were suspended. ^^ppellant no.4 has died during the pendency of the appeal and "^.;\ .\ •^ '•^-^^ '%^^^""" Cr.A.No.643/2001 her appeal has been abated. Therefore appellants 1 8s 3 Mannu and Roopotin Bai be set at liberty forthwith, if not required, in any other case. The sureties of appellant no.2 Paltu also stand discharged. —_ Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge Rao