HIGH COURT OF CHHATTI$€ARHI BILAS?U§ Cr-M'mai Appeai Nagg? af 2961 Dhuku Ram, S/o Hakihar Khadia, aged (in Jaii} abwf 35 years, Rio Viiiage Amom, ’fham Tumgaon, Chouki Paf‘fewa, D is?1n Mah ammund (C6) A13PELLANT: Versus RESPONDENT: $m‘1’e 0f ChhaHisgarh, Through "Disfric’r MagiSWaTe, Mnhosamund ECG) {Criminal appea§ under Seci'iorz 374 cf fhe Code 9f Crimimi Procadure, 1973} Presem': Mrs. Im‘im Tripaihi, counseE for fag appaiianf. Mr. Suc§hir Bajpai, Depufy 60W. Advoccd’e for 'fha Shh/respondent Single gench: Han'bie Mr, T,P. 5harmai J GRAL JUbéAfiENT (10—2-200§') 1. This gapeai is diracfed agamsw‘ The judgmam of Eonvicfian & order of ' sén‘rence dafed 11-10-25'01 passed by fha 2nd Adsé‘rimd Sessions Judga, Ma%msamund 3N $essi0ns Trini No.1§7/ZOQT‘L, whereby iaarned éddi‘rioml Sessions Judge affer hddmg ‘fhe appeHan? guihy for commission 01" offence undar Sec‘i’ions 273, 304 ?ar"r-I1, 328 of fhe I.P.C. &. 49-A (1) (iii) of fhe Ch’na'iiisgarh Excise Act 1%5, semenced him “r0 unsergo RI. for six mowihs & pay finz of Rs.500/—, in dafauh‘ of paymam‘of fine To fur-inst" undergo RI’ for 1 % monihs; i0 undergo El. for i'en years 6i pay fine of Rs.2,000/-, in defaui‘i of paymen‘i of fine 1‘0 fur‘ii'iei" undergo RI. for six monihs; 'io undergo RI. for Ten years & pay fine of Rs.2,000/-, in defoui‘i’ oi: paymem of fine 1'0 furiher undergo RI. for six mon‘i‘ns and ‘i’o undergo RI. for fen years é’i pay fine of Rs.2,000/~, in defouli of poymenf of fine i0 fur‘ii’ier undergo RI. for six mon‘rhs, respeci'iveiy. 2. Jodgmeni of convic‘iion is chaiienged on fine ground ‘rhoi wi‘i'houi any evidenoe of oominis'iering poison or seiiing poisonous alcohol, the (Lauri below has convicrecl e34 senknczd ‘rhe appellan’r in T%’Ie afaresaid manner and fheruaby commi’r‘fad iiiegalify. . Case of file prosecufion, in brief, is The? fne accused/appelloni is a seller of liquor and he, used ‘m Sal! Hqum‘ a? Vilicge Kacharidih. 3n 8—4-2001, SuriWam (since dgceaseo) ? purcnasad I 250 mL of liquor" from fha accused. 5urifmm, Amwdmm (since deceased) r34 Jaevr‘akhan consumed The iiquor purchasea! by SurHmm from fhe accused. Jug? af+2r cermuming “the liqum‘ They becama umonsciwa Immedia'feiy ‘rhey wane shEffed To Medical COHege Hospifai, Raipur’ where 1‘hey wera admh‘?ed and were examined by Dr'. Samash Kumar Bhandar‘i {PW—11) On examinm‘ion, fhe doc1‘or foui'ld 5ur-iTmm danar-mol and seam-conscious vide EXP—10A. The. docfor- Tried To ge‘i‘ The §iquor/liquid vomifed by Surifm‘m wNcivx he consumed, fhe same was preserved in we bo’Hle and seized. He also examlmed Anaradmm vide EX~P~11A Anandrmm was uncanscious, hie vamif subgfance was Taken and sealed. Tl'le dac‘lor‘ fur’fher examined Jeevmkhom {PW-2) vide EXP—12A. Jeevmkhcw was in semi—consclous smge. His vomi‘r was also sealed. Ouf 0f ‘l’he$e 'I’lfmee persons, 5ur“i1'mm (3:, Amedmm died on 9-4-2001. Merg was inlima?ed vide EXP—é and FEAR. was reglsfer‘ed vide EX‘P‘L A baffle con‘l‘aining 10 gm$, of liquor unused by ‘l’he deceaeecl persorls & Jeevmkhan was seizeei vide EXP—2. On i‘l'ie basis of infimafion ExP-e cf +l1e dea‘rh of Anuno‘mm, merg was recorded vide Ex‘P—T. On The basis of infimaiion of ihe dea’i‘h of 5Uri+mm vide ExPw‘L, mer‘g was recarded vide EXP-10‘ Afier summoriing ”rile wi‘messes, Penchmma (we? fhe dead bodies (if Amandmm & Surifmm was prepared vide ExsP-24 and P—25. Dead body oi: Anamdram was sem' for au‘ropsy vide Ex‘P—27 and {zufapsy was conducfed by Dre Ari/ind Neralwrir (PW—17) vide EXP—28. {imise of death was syncope as a resulf 9f eeisaning. Dead bady of Surin‘ram was also sen? for au‘ropsy and aufopey woe conduofed by Dry ervind Neralwar (PW-17) vide EXP—30. Cause of dea‘i’h was syncope as r1 resulf of poisoning. The accused was faken info cusfody, lie mode disclosure sm’remenf of fhe conminer of liquor vide EXP-4 and oi: his insiance emn‘iy confainer of liquor, a con‘miner con‘mining 2—3 gms. of iiquor and one eycie “iube which was used for keeping liquor was seized EXP-3 liiscem of Anandrom & Surifrom’ was preserved i l :l and The same was seized Vida Ex P3: Jeevmkhan vomlrad durmg his iiiness and drv $oxl confammg his vormf was ¢eazed Vlde Ex P 12 Sna‘r map was prepared wde Ex P i9 Numbwed T R was wglsfered Vida Ex P 21 Seized amclw were saw ft} Farensxc Sczence Laborafory Sagcw Sinai! quanfm of liquor was im‘? by Th9 damaged parsons & Jeevmkhah. Pre<m1ce m” Aium um P hida & EThvl aico'hoi was carrfirmed on the Viscem af Euwfmm (34 Anmdmm Fraspnce 0f Alummium Phosphme <34 E‘I’hyi aicohci Wm also con {Irmad m “me vomn‘ of dacaased Sumfmm & Amndmm. OH chami‘ca! qmlysisi paison wuss no? fourld in fhe cohminers 64 liquid seized from fhe accused cm aka in “the dry so}, conmining +he vomif of Jeevmkhan. The F.S.L. repoh‘ is Ex.P—32. . Af‘rer compiefion of inves?iga+ion, charge sheaf was filed before 'H'ie Coum‘ of Judiciui AfiaaisWtzie Firs? Cia<s Mahasamuhd who ih “mm, commiffed The case 1'0 fhe Cour"? of sess:o..s JLdge, Rmyur ‘rom where iearned 2“ Addihomi Sessmns Judge; Mahasamundi received The case an fransfer for Triad. In orcier‘ f0 prove ihe guiiw‘ of The accused persans’ ‘Irhe prosecu‘rion has examined as many as hinefeen wifheses Smfemeni’ of fhe accused was remrded under 5ec+i¢n 313 cf ‘rhe Cr.P.C. in which he denied The circumsmnces appearing deems? him. He pieaded innocehce &. false impiicefion . Afier affordin9 oM3ori‘uni of hearina To ‘ihe Per‘l‘ies learned Com“? below h s xr‘l‘ed c§ senfence& the agpe lcm'l as aforemenhoned . I have heard learned counsel “for The parties and per-used The jue’gmeni‘ impugned as aiso The record of ‘rhe friql Court . Learned counsel fer ‘fhe appellqnf submifs fha‘l ihis is a case of poisoning by liquors The prosecuiion is required 1'0 prove fha‘i The accused has sold ‘ liquor 1'0 1'he aeceosed or any person ano fhey have consumed The liquor soid hv The occused whieh was poisonous as a resulr of such poiSon deceased Surirmm 34 Anandmm died. 9L1? in ihis ease, The prosecufion has foiled f0 adduce evidence ‘i'haf +he appellanf has sold 'rhe poisonous liquor, . ‘r‘ne deceased parsons & Jaavmkhan had consumed iiquor which was poisonous and cm a ras'ul‘r sf cansumpfian 01F poisonous liquar Suri‘fmm & Ancmdmm died and Jeavmkhan was serimusiy injurad. In absence of such evidence, e$pesia§ly in We !igh+ of fhz F‘SL. reporf EXP-32 which fhe pmsecui'ior: has rgHéd upon, fha accusad Es no? liable far any convim‘ion‘ 9. 0n fha Q‘H'Isar hamd, !eqr'ned counsel appaaring on behaff of The S‘haTa/ re$pohdem subwifs fha‘r by acular and scienfific evidence Tha prosecufien has pmved i’rs caga beyand doub? ‘rha-f Th2 uccusad is the parser: who has said poisnnous liquor“, and as a resul’r af cansumpfinn of such paisamus liquor, Suri‘imm & Anandmm chad and Jeevmkhan was seriwsiy injumd. . In order +0 appraaia’re The canfen'iions of The pari'ies, I have examined The evidence adduced on behalf of The pmsecufian. Jeevmkhan (PWu2) is: fhe malarial wi'iness and he is The sufferer. He has sm'iecl in his evidence lhm‘ on 'l‘he da’ie cf inciden‘l Sur-i'l came wi+h 250 ml‘ (one quar‘i’er) liquor, buT he daes rm? know from whese Surii 901' ‘i'he liquor. He aiang wi‘rh Anand x3 Surif censumed fhe liquor. Affer five minu’res of consuming liquor, he became unconscious and afier 2—3 days when he regained consciousness, he came “to knew “ihm' Anond éi Surii’ died. i5urjs Bei {PW—3), wife of Suri+mm, hos deposed fhm‘ her husband Suri‘iram, énendrom 6: Jeevmkhon had consumed liquor, of'l’er consuming liquor, when Surifram came “io +he house, he siorfed vomiiing, she 'iook him fa ihe hospi‘i‘ol and finally he was shif'i'ecl ‘l'o Roipur where he died. She has specifically s‘ioi‘ied Thai of The iime of vomifing, her husband has specifically fold her The? he had purchased *rhe liquor from accused Dukhurom and he along wh‘h Anandram di Jeevrakhan had consumed liquor in The ki‘iahen garden of Anondram. Bisohin Bai (PW—4), mofher of 5uri+ram, has also smfed The same Thing. 12. Sukhruram (PW-l) has also shied fha’r Suri‘iram fold him fha'f he has purchased ‘ihe liquor from accused Dukhurom end he consumed fhe liquor along wifh Anondram d. Jeevrakhani Affer some Time, 5uri‘l'ram became unconscious and lasfiy he died. Darshon (PW-14) has also supported fhe version of Sukhruram (PW-1) 13‘ Peefambar (PW—16) haS sfa'fed ‘rhm‘ Gn The da're of incidanf The villagers fook. $ur‘i‘i’mm, Anawdmm (34 Jeevmkhan 'm the hospimL members (pf their families were weeping, he enquired “H12 mm‘fer and came Tc; know fhcd’ ‘fhe viliagers had Taken ”rhe afaresaid fhr‘zz persons from fha 9min yard 0f Anandmm where (me empfy bo‘Hle was iying. He was also irlformed by fhe viilagers ‘H’xa‘r The aforesaid persons had consumed liquor and bacame unconscious. He. found 'Hm‘r an emp‘ty bof'rle was lying in The kii‘chan gar-den of Anandmm. He poured some water in fhe empfy boifle and Tasfacl The wafer, i'l' was unpleasant The prosecu‘l'ion hos declared him hos‘rile as ha has. no‘i suoporled lilo case of fhe. prosecu‘lion 14. Dr. Sanlosh Kumar‘ Bhonclm'i (PW-i1) has daposed fha'i on 9—4-2001 he had ; examined .Sur‘i“rrom, Anonclmm &. Jeavmkhah vide ExsP—1OA, 11A é; P—12A, They were unconsoious, fheir vomim wera pre§ervad, la's’rly Amndmm &. Surifmm died and he inlima‘red To fhe Police. 15. Dr. Arvihd Nemlwah (PW-17) hog conducled am‘opsy on The dead bodies of Annndmm 61. Surifmm vide ExsiP—28 64 P-30. He preserved fheir viscera He has specifically smied +ha'l' The cause of deai'h of Anonolmm & l i Sur'i‘imm was syhcope as o resul‘l' of poisoning. 16. OTher wi‘tnesses had supported ‘lhe facts of seizure of viscera, seizure of empfy confoiner from fhe océused’ arr his ins‘mme, seizure of ihe boh‘le found in +he ki‘ichen garden/grain yard of Ahondram which according To ‘ihe prosecu'iion was iefi' hy Anandram, Suri‘imm & Jeevrakhan offer consuming liquor, vomi‘i’ of Jeevrakhan éi “ihe deceased persons and also ‘ihe dry soil containing vomi‘r of Jeevrokhan (PW-2). .Seized ariicles were serif for chemical analysis ’ro Forensic Science Laboratory, Sagar from where The reporf EXP-32 was received and presence of Aluminium Phosphide di Efhyl alcohol was confirmed in The vomi‘r and viscera of deceased Suri‘i'ram d Anandrarhi The bo'r’rle con‘iaining some drops of liquid found a‘l' Jrhe place of inoidem‘ offer consuming liquor by fhese Three persons was also examined by the F.S.L. bul‘ presence of only Efhyl alcohol was confirmed in 'i'he same, no chemical \\ poison ice. Aluminium Phosphide was found. Dry soil (Exb) confaining vomif \\\\ . 6 of Jeevmkhan was aiso examined, buT no paisonous chamicai was found in H. No chemical subsfance was aiso found on The confqiner 0f Hquor seized from ‘rhe accused. 18. F,S.L. vapor? Ex.P—32¥ has been refied upon by The prosecufion. According 1'0 Ex.P-32 presenca of chemicu} subsmnce Le. Aluminium Phosphide was confirmed in viscermggi vomif of The deceased persons, bu? no such chemicai poison viz, Aluminium Phospnide was found in The vami‘f (dry soil) of Jeevmkhan. Likewise, no chemical poison was found in The baffle conmining small quan‘l’i‘ry of liquid lafl by The deceased persans dig Jeeymkhan afier consuming ‘rhe liquor. No chemicai paisan was found in The confainer seized from ‘Hqe accused 19. F.5.L. repom‘ Ex.P-32 clearly shows “rho? viscera (£4, vomif of The deceased persons were confaining chemical poison Le. Aluminium Phosphide. Deceased persons Sur‘ifr’am & Anandmm had consumed liquor from one baffle along wii’h Jeevmkhan. Jeevrakhan had also consumed liquor from ‘rhe same boffle. According ‘to The case of ihe prosecu‘iion, Jeevmkhan was also unconscious/sensi—conscio‘us, his vomi‘f was also examined by ihe FASL. buf no chemical poison was found in if. No chemical poison was also found in the liquid found in lhe conlainer/bo’n‘le lefl by fhe deceased persons 64. Jeevrakhan offer consuming liquor. This shows fha‘r either V ihese fhree persons had no? consumed ”the liquor purchased from fhe accused or Jeevrakhan (PM/#2) had nm‘ consumed liquor along wi‘l’h Surl‘i'ram d1 Anandmm or fhe con‘l'ainer lef‘f affer consuming liquor is no‘l‘ one and The same which would have been lef+ by Suri‘rram d: Anandram af‘rer consuming ‘lhe liquor or They had consumed The liquor confaining Aluminium Phosphide other than rhe liquor purchased from The accused. 20.In The case of liquor poisoning or selling of poisonous liquor ‘r'ne prosecufion is required fro prove ‘l‘he fac‘l‘ fhaf The accused was in possession of poisonous liquor, he has sold rhe same fo fhe persons and as ’a resulf of consuming “rhe said poisonous liquor, The persons became injured or died. In “rhis case, +wo persons died and one person was seriously injured. The reporf of ihe ESL. shows 1’ha‘f Jeevrakhan (Phil-2) had no? consumed poisonous liquor, haweveri he had S‘m'fed thu‘r he has consumed liquor along wi’rh Annndmm $1. Surifmm from fhe swine bof‘rk. 21in The lighf of The repor‘r of fhe F.S.L.4 i'l' is difficul‘f 1'0 hold Tha‘f ‘rhe Iiguor sa§d by fha accused was poisonous and as o msuif of consuming such poisonous liquor, 5uri17ram & Anandram died and Jeevmkhcm bacame injured. In fhis case, ‘Hqe prosecu‘i’ion has uiTer-ly failed To prove Thai ‘i'he liquor soid by The accused was poisonous. The Couri’ beiow has no? considered fhe repor'i of The F.5.L. and has reached ‘ro a wrong conciusion. Conviction (Ki semences imposed upon ihe oppeiiam‘ ore no"? sus‘l'aimbie. 22.Consequen‘Hy, The appeal is allowed‘ Convic‘lion :31. senfences of appellanf Dukhuram under Seciions 273, 304 Par'r—II, 328 of The I.P.C. d; 49—A (1) (iii) of ‘i‘he Chha'l’fisgarh Excise Ac‘r, 1915 are hereby sei‘ aside. The appellan‘l’ is acaui‘i‘fed of The said charges. He be se'l' a‘i liber'iy for'ihwi‘ih, if no? required in any oiher case. i Sd/- T. P. Sharma Judge Somo \