"'^'t ss^^. ^ HIGH COURT OF CHHATTISGARH. BILASPUR f 7/6^ CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha. J. Criminal Appeal No.278 of 1993 Ram Jiyawan (dead) and others Vs. The State of Madhya Pradesh (NowState of Chhattisgarh) JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA J Forconsid!::ration Sd/- Sunil Kumar Sinha Judge Sd/- Chief Justice PostforJudgment : /^/10/2010 ^ / Sd/- Sunil KumarSinha Judge •-?"-•——-;-TT?-'±"!' ^'-^•^ES.S. -UITI HIGH COURT OF CHHATTISGARH.BILASPUR CQRAJW: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble ShriSunil Kumar Sinha, J. APPELLANTS RESPONDENT ..-1. Criminal Appeal No.278 of 1993 1 Ram Jiyawan son of Mewa Ram Rathor, aged about 60 years , (Dead- Name' deleted vide order dated 15.4.2010) 2 Rameshwar. son of Ram Jiyawan Rathor, aged about 30 years 3 Kesheo son of Ram Jiyawan Rathor, aged abput 23 years 4 Mool Chand son of Ram Jiyawan Rathor, aged about 18 years 5 Somwati Bai wife of Rameshwar Rathor, aged about25years All R/o Village - Patganva, P.S. Pendra, District Bilaspur Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal ApRealUnder Section 374 of the Codeof Criminal Procedure) ADpearance: * Mr. H.S. Ahluwalia, Counsel for the appellants. Mr. Akhil Mishra, Dy. Government Advocate for theState. JUDGMENT (J9.10.2010) \ Following jadgment of the Court was delivered by Sunil Kumar^rtiha, J. ''-<- (1) , This appeal is directed against the judgment dated 27.02.1993 passed in S.T. No.312/91 by VII Additional Sessions Judge, Bilaspur, whereby, the appellants have been convicted under Section 302/34 IPC and.sentenced to undergo imprisonment for life. y 1 |!..,|,;:..:4 ^ CnminalABpeal No.278of 1993 (2) Appellant No.1 - Ram Jiyawan died during the pendency of the appeal. His name was deleted vide order dated 15.04.2010. Therefore, the appeal filedon behalf of appellant No.1 stands dismissed as abated. (3) The facts, briefly stated, are as under:- Deceased Girija Bai was the wife of appellant No.3 Kesheo. Appellant No.1 Ram Jiyawan was father-in-law, appellant No.2 Rameshwar was brother-in-law (Jeth), appellant No.4 Mool Chand was brother-in-law (Devar) and appellant No.5 Somwati Bai was sister-in-law (Jethani) oi ihe deceased. The deceased was married to appellant No.3, 6 years pn'Or to the date of the incident, which took place on 26.05.1990. The case of the prosecution is that the husband of the deceased had developed illicit relations with his bhabhi i.e. appellant No.5. When the deceased came to know about this and she started opposing, the appellants administered poison on the deceased. On 26.05.90, the deceased had gone to work in the field. The allegations are that appellant No.4- Mool Chand took meal for the deceased in the field.When the deceased took the meal, she started vomiting. She was brought to the house. The family members of the deceased were informed. The mother and brother ofthe deceased came in the night. The deceased was treated in the house, but she' died during the course of her treatment at about 2:00 a.m. on 27.05.1990. Funeral was performed at about 7-8 a.m. on?27.05.90. After 4 days, brother of thedeceased namely Daduram (PW-1) lodged a written complaint (Ex.P/1-A) in the coneerned Police Station, on which, First Information .Report (Ex.P/1) was registered. The Investigating ^ / Officer readhed to the house of the appellants and seized various articles. Since the dead bo'dy was already burnt, bone ashes from the pyre 'of the deceased'were seized. They were sent for chemical examination to;the Forensic Science Laboratory, Sagar (M.P.),but the F.S.L; Report was negative, as no poisonous substance was foynd in the bone ashes sentfor examination. ^ ') S .^ Criminal Appeal No.278 of 1993 After completion of usual investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Pendra Road, who in turn commitfed the matter to the Sessions Court, Bilaspur, from where, it was received on transfer by VII Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellants as aforementioned. (4) Admittedly, there were no eye-witnesses to the incident and the case of the prosecution was based on circumstantial evidence. The learned Sessions Judge relied on the evidence of Daduram, brother of the deceased (PW-1), Champa Bai (PW-7) and Butu Bai, mother of the deceased (PW-9) and heldthat the attaining circumstances and the conduct of the appellants were sufficient to hold them guilty of the offence punishable under Section 302/34 IPC. Two Doctors namely Dr. Sitaram Goinka and Dr. L.N. Patel, who had treated the deceased in the night were examined as DW-1 and DW-2. They deposed that the deceased died on account of vomiting and loose motions and it was not a case of administration of poison on the deceased, but their testimonies were not believed by the Sessions Judge^ (5) Mr. H.S. Ahluwalia, learned counsel appearing on behalf of the appellants, argued that there were no incriminating circumstances against the appellants to hold that they had administered poison on the deceased. H6 referred to the FSL report, in which, no poison was found in the bone ashes. He further argued that the evidence of two doctors, who had treated the deceased in the night, proves that it wascase of food poisoning;and the deceased died on account ofvomiting and loose motions. ^:; -l~t. Criminal Appeal No.278 of 1993 (6) On the other hand, Mr. Akhil Mishra, learned Dy. Government Advocate appearing on behalf of the respondent, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. J'" . . . • . '• (8) In Sharad Birdhichand Sarda vs. State of Maharashtra. (1984) 4 S.C.C. 116. the Supreme Court held thatthe following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence : (1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, ^ (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances. should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, ahd (5) there must be chain of evidence so complete as not to leave /any reasonable ground for the conclusion consistent with the , innocence of the accused and must show that in all human '~^- probability the act must have been done by the accused. (9) Itwas further held that in a case of death by poisoning the Court must carefully scan the evidence and determine the four important ,^, circumstahces which alone can justify a conviction: <^, ;<' Criminal Appeal No.278 of 1993 (1) thece is a clear motive for the 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, (4) that he had an opportunity to administer the poison tothe deceased. (10) In case on hand, the learned Sessions Judge has placed reliance on the evidence of Daduram (PW-1). Daduram deposed that on the fateful day at about 9:00 p.m,, Rameshwar (appellant No.2) andhis friend came to their village and told that the deceased was serious. On this information, he went to village Patganva. His mother Butu Bai (PW-9) had also accompanied him. They saw that Girija Bai was lying on the cot; froth was coming from her mouth. She was suffering from frequent loose motions. He had a talk with his sister, who told that some food was sent from the house in the field at about 2:00 p.m. and after eating the food, she is vomiting and suffering from loose motions. He also deposed that Dr. Sitaram Goinka and a compounder were called. The doctor stated that it was a case of poisoning; therefore, he will not treat the deceased. On this, Ram Jiyawan gave in writing for treatment and thereafter, she was treated. In the cross-examination, he admitted that he did not mention all these facts in the written report lodged by him. He could not explain the delay in lodging the written report, as the incident took place •4 . ' • on 26.05.90 and the report was lodged on 29.05.90. There were many discrepancies in his Court evidence and his statementrecorded under Section 161 Cr.P.C. He did not mention in the 161 statement that froth was.coming out from the mouth of his sister and her body had become •y Criminal Appeal No.278 of 1993 blackish. In 161 statement, marked as 'A to A', he stated that he had no talk with his sister. However, in the Court evidence, he deposed that he had a talk with her. He deposed in the Court that after the death of his sister, Ram Jiyawan had a talk with the Doctors, on which, the Doctors advised that they should burn the dead body immediately, whereas, it is also an omission in the First Information Report (Ex.P/1-A) and his case diary statement (Ex.D/1). (11) Champa Bai (PW-7) was a neighbour of the appellants. She has also deposed about the conduct of the appellants, but there were many omissions and contradictions in her Court evidence and the statement before the Police. She deposed that when shereached to the house of the appellants, she saw that mother-in-law of the deceased was giving ghee to the deeeased. "Lila Bai was holding small pot (katon), Lalji Ram was holding the head of the deceased and Sudama was standing there. These facts were not mentioned in her case diary statement (Ex.-D/2). When she was confronted with her earlier statement, shedeposed that she has stated all this to the Police and she cannot tell the reasons about not mentioning them in her case diary statement. She also deposed that the Doctors had taken in writing frpm Ram Jiyawan and then only, they had treated the deceased, but this fact was also missing in her case diary statement. There are other discrepancies also. . / (12) Butu Bai (PW-9) also~4eposed in similar fashion. Though she stated that'she had a talk with her daughter, but all these facts were missing in her case diary statement (Ex.P/3). .-•-N Criminal Appeal No.278 of 1993 (13) It is on all this evidence, the learned Sessions Judge held that the conduct of the appellants was incriminating and it has no reasonable explanation except that they were guilty of administration of poison on the deceased. The doctors who had treated the deceased in the night are Sitaram Goinka (DW-1) and Dr. L.N. Patel (DW-2). According to these doctors, it was a case offood poisoning. They have very clearly deposed that they did not find any symptom of poisoning while examining the deceased; it was a case of vomiting and loose motions. Dr. Sitaram Goinka (DW-1) wasa private practioner. According to him, he was MBBS from Jabalpur and was running dispensary in Pendra Road since 1969. Dr. L.M. Patel (DW-2) was an Assistant Surgeon and was posted in Sanatorium Pendra since 1988. The evidence of these two witnesses were recorded on 19.10^.92 and 16.12.92. They have deposed about the incident of the fateful night and the manner of their treatment. The Sessions Judge disbelieved the testimonies of these two witnesses on the ground that how they would be able to depose about the details of the treatment given by them on the date of incident, which took place almost 2 years ago. We do not feel that it was a good ground to reject the testimonies ofthe two Doctors. In small villages, the Doctors are not so busy that it can be held impossible for them to give details of the treatment of a patient in a case like present one. The learned Sessions 'Judge, therefofe, erred in law in discarding the evidence of these two Docfors, who had treated the'*deceased in the night of 26.05.90 and nothing adverse could be brought on record against them. In appreciation of the entire evidence available on record, we find that it was not established by the prosecution that the deceased died of poison, said -^ '^- -w'^ Criminal Appeal No.278 of 1993 to have been administered by the appellants and it was also not established that the appellants had poison in their possession. (14) In AnantChintaman Laau vs. The State of Bombav. AIR 1960 S.C. 500(alsorelied by the learned Sessions Judge), it was held that a criminal trial is not an enqujry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. The Supreme Court further held that the prosecution must establish in a case of poisoning : (a) that death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased.Though these three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the'benefit of the doubt will have to be given.to the accused person. But if circumstantial evidence, in the t, . • -absence of ^lir^ct proof of the three elements, is so decisive that the couri: can urihesitatingly hold that death was a result of administration of poison (thOugh not detected) and that the poison must have been administered by the accused person, then theconviction can be rested on it. s ' - ' . . ' - •^ . ' - : '^' ' , •— Criminal Appeal No.278 ofl993 -,A (15) In case on hand,none of the above 3 circumstances, in fact, were proved. We also do not find that the evidence of conduct of the appellants, in absence of direct proof, was so decisive that the learned Sessions Judge would have held that.certainly the death was a result of administration of poison and that the poison myst have been / administered by the appellants. Therefore, we are of the considered view that the appellants were entitled to benefit of doubt and conviction based onsolitary circumstance of theiralleged conduct cannot be sustained. (16) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellants under Section 302/34 IPC are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appeHants are on bail. Their bail bonds are cancelled and the sureties stand discharged. Sd/- ChiefJustice Sd/- Sunil KumarSinha Judge