HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRIR.L.JHANWAR.JJ. Criminal ApDealNo. 869/2003 APPELLANT (iniain RESPONDENT Gulab Soni, S/o Brindawan Soni, agecl about 36 years,R/o Near Bus Stand, Pendra, Police Station Pendra, Distt. Bilaspur(Chhattisgarh) VERSUS State of Chhattisgarh, through the Station House Officer, Police Station Pendra, DistrictBilaspurCChhattisgarh) CRIMINAL APPEAL UNDERSECTION 374 OF THE CRIMINAL PROCEDURE CODE. 1973 Appearance: Shri Sandeep Shrivastava, counselfor the appellant. Shri Arun Sao, G.A. for the State/respondent. ORALJUDGMENT (Passedon30.11.2010) Per R.L.Jhanwar, J. This appeal is directed against the judgmentofconviction and order of sentence dated 10.07.2003 passed in Sessions Case No. 226/99 by Additional Sessions Judge F.T.C., Pendra Road by virtue of which the appellant was convicted under Section 302 of the I.P.C. andsentenced to life imprisonment with fine of Rs.500/- and in defauit to undergofyrther 6 months simple imprisonment for commission of homicidal death amounting to murderofVirendraKumarGupta. 2. The conviction is impugned on the ground that there is not even iota of evidence against appellant and despite that the Court below has convicted and sentenced the appellant as aforesaid and thereby committed illegality. 3. Brief facts of the prosecution story are that Virendra Kumar Gupta (since deceased) and the accused/appellant Gulab Soni were doing business and used to go to weekly market and were also involved in doing business of cloths, silver and gold. On 5.5.98 the deceased Virendra Kumar Gupta went to do his business and on the same date the deceased sent his peon namely Dayaram to have some water from a nearby hotel situate at Kotmi Bazaar at about 12.00 noon by giving him a small steel pot. When Dayaram went to nearby hotel, Jaiprakash was present in the hotel. Jaiprakash filled the water in that steel pot and when Dayaram was returning with steel pot containing water, on way, the appellant met him and asked him to bring betel leaves by snatching the steel pot containing from him, whereupon Dayaram told him that would not go to betel shop, then the appellant put the steel pot on the loft (^TFT) of betel shop. Thereafter, Dayaram took the steel pot containing water and gave it to his owner VirendraKumar Gupta who had just having a sip and then he felt it to be bitter. Thereafter, the deceased again sent Dayaram to have some water by throwing the water from the steel pot. When Dayaram returned with water, the deceased was not present in his shop and Dayaram again returned to Hotel then he saw one Bunty Musalman carrying Virendra Kumar Gupta to his shop on his motor cycle and laid him down. Thereafter, Virendra Kumar Gupta told that he was not feeling well and was unable to move. On this, neighboring shopkeepers came there and later on he was taken to Pendra by Jeep. One Harikishan was atl along present with Virendra Kumar Gupta and Dayaram did not go with his owner as he has to look afterhis owner's shop. At about 2.00 p.m. when Harikishan and one Rakesh Jain went to the shop of Virendra Kumar Gupta and asked him to give that steel pot to which you had brought the water, on this Dayaram had accompanied to Rakesh Jain by his motor cycle along with steel pot to Pendra. On way, Dayaram emerged the fact of snatching of steel pot by the appellant. When all the persons reached Pendra Hospital, unfortunately, Virendra Kumar Gupta died during his treatment. Merg intimation was sent to Police Station Pendra vide Ex.P.15. Inquest on the dead body was ^:"';'^A ^: •^:";-- • -y:-^ (S prepared wherein Dayaram and other witnesses stated that the appellant Gulab Soni snatched the steel pot containing water for Virendra Kumar Gupta and dipped his thumb into it.Dead body ofVirendra Kumar Gupta was sent for autopsy vide Ex.P.12 to Primary Health Center, Pendra, where Dr. R.C.Mishra P.W.21 conducted autopsy vide Ex.P.21 and found no external injury over body. According to him, cause of death was syncope due to failure of cardio respiratory and viscera were preserved in order to determine the cause of failure of cardio respiratory. Thereafter, viscera were sent for chemical examination. Vide Ex.P.2 viscera containing stomach; small and long intestines were seized. On 7.5.96 again dead body of deceased was sent for autopsy to S.P.Hospital, Bilaspur, Camp Pendra where Dr. Jeetpure and Dr. A.P.Rai conducted autopsy on the dead body and found no external injury over the body. However, they could not give anydefinite opinion but opined that duration of death at the time of post-mortem was about 36 to 48 hours and further opined that preserved viscera be sent to chemical examination. In the meantime, vide Ex.P.4 and P.5 spot map and Panchanama were prepared by Patwari. On 5.5.98 yeast came out from the mouth of the deceased was preserved in a bottle for examination vide Ex.P.7. Steel pot was seized on the same date vide Ex.P.8. At the instance of Dayaram, water contained soil and plain soil were seized vide Ex.P.9 from the place where water from steel pot was thrown out. Viscera containing pari:s of the body and preserved yeast came out from the mouth of the deceased were sent for chemical examination to F.S.L. and upon examination, a report of F.S.L.was received vide Ex.P.19 wherein it was found to contain 'potassium cyanide' in the yeast. Thereafter, investigation took place and on the basis of F.S.L. report, F.1.R. was lodged vide Ex.P.18 on 11.9.98 at21.DO p.m. 4. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the J.M.F.C. Pendra Road, who in turn committed the case to the learned Sessions Judge. Charge was read over and explained to the appellant. Thelearned Additional Sessions Judge received thecase on transfer for trial. 0£) c. 5. In order to appreciate the guilt of the appellant the prosecution examined as many as 27 witnesses. Accused person was also examined under Section 313 of the Cr.P.C. where he denied the circumstances appearing against him and pleaded his false implication and innocence in crime in question. 6. After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 7. Shri Sandeep Shrivastava, learned counsel for the appellant and Shri Arun Sao, learned counsel for the State are heard. Judgment impugned and record of Court below perused. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is substantially based on the evidence of Dayaram P.W.12 whose evidence does not inspire confidence and trustworthy and is not reliable because he has not seen who has mixed poison into water and the steel pot which was seized by the police was completely dry. According to Dayaram P.W.12, before going to take water in second time, the steel pot was washed by him, then in that situation the report of F.S.L. Ex.P.19 cannot be relied on because the steel pot was completely washed and was dried. Prosecution has not seized any poison from the possession of the appellant and has failed to prove that from where accused has got the potassium cyanide. It was also contended that water mixed soil and plain soil seized from the place where water was thrown out by the deceased after sipping slightly, did not contain any content of potassium cyanide. Therefore, it cannot be said that the water which was brought first by Dayaram was mixed withpotassiumcyanide. He also argued that why the accused appellant asked Dayaram to bring betel from betel shop, as stated by Dayaram, and that the steel pot which was snatched from his was put by the accused on the bench of betel shop. He further argued that the seizure of steel pot is also suspicious because the same was seized from one Rakesh Jain. After recovery of steel pot, the same has been seized, which was also not proved by the prosecution. In this way, prosecution has failed to prove the charges ^^.. 1 m- '%. '^ '^. •i il // 'y against the accused beyond reasonable doubt. Therefore, the accused be given benefit of doubt and on the ground he should be acquitted. 9. On the other hand, tearned counsel for the State while supporting the judgment stated that the evidence of Dayaram P.W.12 is reliable because he has clearly stated that accused has snatched the steel pot and dipped his thumb into water. Certainly it could have contained potassium cyanide and after sipping the water slightly, the deceased felt unwell and was taken to Pendra Hospital where he died. Potassium cyanide was found in viscera by F.S.L. Therefore, it is clear that accused has given potassium cyanide through water to the accused. He also argued that there was business rivalry between them. Thus, the motive is also proved. After appreciating the evidence available on record, the learned trial Court rightly convicted and sentenced the appellant. 10. In order to appreciate the arguments advanced on behalf of the pari:ies, we have examined the evidence led by the prosecution. In the present case, the death ofVirendra Kumar Gupta as a result of consuming potassium cyanide has not been substantially disputed on behalf of the appellant, on the other hand also established by the report of F.S.L. Ex.P.19. 11. As regards complicity of theappellant in crime in question, substantially conviction of the appellant is based on the evidence of P.W.12 Dayaram. As per Dayaram P.W.12, on the date of incident he was the servant working under the deceased Virendra Kumar Gupta, who is a resident of Pendra Road and used to go to weekly market for selling cloths, silver and gold articles. Accused was also having the business of same. On the date of incident, both accused and the deceased have been to Kotmi market. Dayaram was also with the deceased Virendra Kumar Gupta. It was further deposed that upon being asked by his owner, he went to Hotel of Ramnarayan to have water for his owner and the said Hotel is situated in half furlong away from the shop of Virendra. According to him, when he was about to return taking water in the steel pot (^T), on the way accused met him and snatched that steel pot (^T) and dunk his four fingers into steel pot having water, whereupon Dayaram asked him why did you snatch that steel pot and allow him to go or else he will be .-^ @ \ 'N scolded by his owner. Thereafter, the appellant told him to bring betel for him and upon refused to bring betel from betel shop, accused appellant returned that steel pot to Dayaram. It was further deposed that he came to his owner Virendra Kumar Gupta and gave water to him. After sipping the water, the deceased Virendra felt it to be bitter and thrown out the same by saying Dayaram to have again water, upon which he again went to bring fresh water and when he returned back with water, his owner was not present in his shop. He has also deposed that thereafter he enquired about his owner and was informed by one customer that Virendra was sleeping in the Hotel of one Kushal Sahu and when he was on halfway to Hotel of Kushal Sahu, one person called Banty brought Virendra on his motor cycle and got him (Virendra) asleep in his shop. According to him, Virendra Kumar was not feeling well, therefore, he was taken to Pendra Hospital where he died. 12. Having thus discussed, it is clear from his evidence that after returning from Ram Narayan Hotel with water, accused Gulab Soni met him on way and snatched his steel pot and dunk his fingers and after that he was told to bring betel for him, whereupon he refused to bring betel for him then the appellant returned that steel pot to Dayaram. All this happened before him (Dayaram). After reaching the shop of Virendra, water was given to Virendra. Dayaram in his examination in chief stated that after consuming some water, he thrown the water out on the soil, which was seized vide Ex.P.9. In his cross-examination in para 21, he has stated the same. He has further deposed in his cross-examination that after snatching that steel pot, accused put it on the loft of nearby betel shop. He has further stated that before he went to bring water in second time, he washed the steel pot and got the same cleaned, then only he brought water from the Hotel. In the report of F.S.L. Ex. P.19, potassium cyanide was found to contain in article (B and C' i.e. viscera of the deceased. Articles 'E & F' are viscera of deceased, which also contained potassium cyanide and in Articles I & J' also potassium cyanide was found in yeast came out from the mouth of the deceased and steel pot whereas Article 'K' is soil mixed with water, which was thrown out immediately after consuming some part of water, in which potassium cyanide was not found. /" . . ^. '.\ 13. So far as potassium cyanide alleged to have been found in steel pot, it is not possible because if the evidence of Dayaram that when he went to bring water in second time, he has completely cleaned and washed the same and then only brought fresh water from that steel pot, which was seized after cleaning and washing is taken into consideration, then it creates serious doubt in prosecution story that how potassium cyanide was found to contain in that steel pot. It becomes also suspicious that if the potassjum cyanide was found to contain in steel pot, then certainlycontent of potassium cyanide could have also found inthe place where water was thrown out by the deceased after sipping it slightly and from the sameplace sampte of soil mixed with water was seized vide Ex.P.9 but as per report of F.S.L Ex.P.19, content ofpotassium cyanide was notfound in the soil which was seized vide Ex.P.9. 14. In the present case, the other prosecution witnesses i.e. P.W.16 Shivkumar Halwai, P.W.20 Sri Ajay Gupta, P.W.23 Prabhat Gupta and P.W.25 Harikrishna are merely a hearsay witnesses because they were told by Dayaram P.W.12 about the incident. But P.W.12 Dayaram did hot state thathe has stated about the incident to above witnesses. So far as the case of poisoning, the prosecution is required to prove the chainof circumstances properly and onus thereof is on prosecution to link the appellant in regard to administration of poison. 15. In the cases of murder by administration of poison, as held by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984 Cri. LJ. 1738 = AIR 1984 SC 1622), the prosecution is required to prove following circumstances: - (1) there is a clear motive for an accused to administer poison tothedeceased. (2) that the deceased died of poison said to have been administered. (3) that the accused had the poison in his possession. (4) that he had an opportunity to administer the poison to the deceased. > • •: • ' . .' • '•.'• • . ' . :.' • 16. In the present case, the prosecution has examined Dayaram (PW- 12)as substantial witness. His evidence is self-contradictory and not ./y-.'^ fG:>^ ^ ^^' ..:^.1''. '."' ..--^.s^ 1. ,.• I/,/ . • ^^-s€^' '^•^^•^"- < substantially corroborated by the evidence of other witnesses. As per the evidence of Dayaram (PW-12), the deceased has thrown more quantity of water containing in the tumbler near his shop and the soil cohtaining such water has been recovered by the Investigating Officer vide Ex.P-9 onthe same day i.e. 5-5-98. Steeltumbler used forprovidingwatercontaining theallegecl poison, was also seized from Rakesh Kumar Jain (PW-7) vide Ex.P-8. Although Rakesh Kumar Jain (PW-7) has notdeposed anything relating to such seizure of tumbler, but as per Ex.P-8, fheseizure of tumbler, tumbler was not containing any water at the time of seizure. As per the evidence of Dayaram (PW-12), he has again brought water for his master after washing the tumbler. The prosecution has alsosent the tumbler for chemicalexamination. As perchemical examination report Ex.P-19, potassium cyanide was found in the washed solution of tumbler (Art. J). When the tumbler was not washed and the splutioh was not sealed by the Investigating Officer, how the washed solution was available for examination? As per Ex.P-19, Forensic Science Laboratory, Sagar has also received empty'tumbler as Art. J, but its report reveals that potassium cyanide wasfoundin the washed solution oftumbler. Evidence of Dayaram (PW-12) also does not find support from chemical evidence i,e. chemjcal examination report of soil containing such water and report relating to Art. J, the tumbler. 17. This is crimjnal case and the prosecution was under obligation to prove its case beyond all reasonable doubts. Conviction ofthe appellant is based on circumstantial evidence especially murder by admihistrationof poison. Proving the aforesaid circumstances as held by the Supreme Court in the matter of Sharad (supra), was s/ne qua non for the prosecution, but the prosecution has not proved the aforesaid circumstances for drawing definite conclusion that only the appellant has administered poison for causing death of deceased Virendra Kumar Gupta, he was in possession of poison and he was having opportunity to administer poison with clear motive for causing death by administration of poison. However, the prosecution has not proved the case beyond all reasonahle doubts and, therefore, the accused is^entitled for benefit of doubt. In absence of proof of such circumstances, convictipn of the appellant under Section 302 of the I.P.C. for commission of culpable '^-.. :-.^^ ^•!x: homicide amounting to murder of Virendra Kumar Gupta by administering poison, is not sustainable underthe law. 18. While appreciating the evidence on record, the Court below did not considerthemostmaterial fact, as stated above in precedent paragraphs and thereby committed illegality. 19, On close scrutinyofthe evidenceavailableon record, we find merit and substance in the appeal filed by the appellant and convictionof the appellant under Section 302 of the I.P.C. and the sentence awarded thereunder are liable to be 'set aside. 20. Consequently, the appeal is allowed. Conviction of the appellant under Section 302 of the I.P.C. and the sentence awarded thereynder imposed by the Court below is set aside. The appellant is entitled to benefit ofdoubt. 21. A copy ofthejudgmentbesenttotrial Courtimmediatelyforthe release of appellant forthwith, if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge