.;i»!WT;^"S!f'^s HI6H COURT OF CHHATTIS6ARH. BILASPLflt CriminaLABeealNo.37of2002 APPELLANT: Cln Jail) RESPON&ENT; Mahadev -Versus- State of Chhattisgarh ...ffl|itr JU&6MENT FOR CONSIGERATEON Sd/- L.C. Judge HON'BLE MR. JUSTICE SUNIL KUMAR SINH4 ^f^e-^' Sd/- Sunil Kumar Sinha Judge POST FORPRONgUNCEMENT OFJU&0MENT ON^^ScTOBER. 2007 ^ < 5 /-16-2007 ^' HI6H COWT OF WHATnSeAm. BILASnjR Criminal ^Dpeaf No.37 pf 2002 APPELLANT: On Jait) -Versus- RESPQN&ENT: Mahadev, S/o Kariyaram Chandra, Aged about 45 years, R/o Viltage Singhra, Tehsil; Sakti, bistt. Janjgir, Police Station: AAalkharouda (Chhattisgarh) State of Chhatf-isgarh, Throu9h District Magistrate, JonJ9ir (Chhati-isgarh) Present: - Shri Vishnu Koshta, Adyocate: For the appellant. Shri Ashish Shukla, Addt Public Prosecutor: For the State/fespondent. DIVISION BENCH*: - HON'BLE SHRI L.C. BHADOO AND HON'BLE SHRI SUNIL KUMAR SINHA. JJ. JU D6M ENT (Detivered on 3) ^'' October, 2007) .iydgfflent pf the Court was delivered bv L. C. . 3'.- 1. By this nppeai under Section 374 (2) of the Cr.P.C. appelbnt Mahodey has questioned legality and correctness of the jud9ment of conviction wd order of sentence dated 20 December, 2001 passed by the ^ecial Judge, Scheduled Castes & Scheduled Tribes yrevention of Atrocities) Act, 1989, Bila^>ur, in 5.T. hto.62/2001 whereby leamed Speciat Judge after holding the accused/appetlant guitty for commission of offence under Section 302 of the I.P.C., sen-tencecf him to undergo imprisonment for life & to pcy a fine of Rs.500/-, in default df payment of fine to further undergo 5.1. for 3 months. Howgyer, learned Special Judge acquitted the <iccused/cppetl<mt of the charges under Sections 3(l)(i) & 3(2)(v) of the Scheduled Castes <& Scheduled Tribes O'revention of Atrocities) Act, 1989. 2. Case of the prosecution, in brief, is thot Yadram, son of present accused/appeltant Mahadev, committed rape on Suddi, aged about 16 years, as a result of which she became pregnant & delivered a mate child on 26 August, 2000, that boy was named as Hari Prasad. When fiuddi Bai was pregnant by 7 months,a Ponchayat was convened in the village, but the accused/oppellant refused to marry Suddi Bai with his son. Therefore, &iddi Bai lodged a report for cominission of rape. After investigation, charge sheet was filed against Yadram, son of the appellant. In the nnornin9 of 27-1-2001 Suddi Bai went to brush her teeth & her son Hari Prasad, aged about 5 months, was sleeping on the cot. When she returned after- brushing her teeth, she saw accused/appetlant Mahadev at the gate of the house running away. Thereafter, when she saw her son, smell was emanating from his mouth, therefore, she raised cries that Mahadev has administered poison to her son. She disclosed this fact to neighbour Sonai Bai. 5he rushed to inform her mother, as she was working in a house which was 2-3 houses away from their house. She informed her mother. The father of 6uddi was not at residence, therefore, mother of Suddi went to call her husband Dujram and informed him about the incident. Thereafter, they took Hari Prasad to the doctor and from there to the Police Station. He died in the hoqaital. 3. Suddi Bai lodged a report (Ex.P/5) in the Police Station Malkharoda. Head constable retumed from the hospital and gave written communication of the doctor that l-1ari Prasad, a boy aged about 5 months, is admitted in the hospital in serious condition and treatment is being giyen. It appears that some poisonous substance has been administer-ed to him, which was wri^en in Rojnamcha, copy of the 'same is Ex.P/7. Therefore, on the same doy merg intimation Ex.P/18 was given by 1-lawaldar on being infonned by the hospitat, based on ft»nisc«s'-' that, first information report Ex.P/19 was registered. The investi9ating officer prepared inquest Ex.P/20 on the body of Hari Prasad. The body of f-1ari Prasad was sent to the Primary Health Centre, Malkharoda under Ex.P/15 where &r. R.P. Kurre conducted postmortem on the body of Hari Prasad. He opined that cause of death is cardio respiratory arrest due to organo phosphorous poisoning. tSeath is homicidal in nature. He prepared postmortem report Ex.P/16. Viscera of Hari Prtxsad were preserved, sa.me. were sent to the Forensic Science Laboratory, Sagar from where report Ex.P/24 was received. 4. After completion of the investigation, charge sheet was fited in the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the case to the Sessions Judge, Bilaspur, from where learned Special Judge received the case on transfer for tridl. 5. The prosecution in order to estabfish the charge against the accused examined 14 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. in which he denied material appearing against him in the prosecution evidence, stated that he is innocent and has been falsely implicated in the crime. He further stated tiiat Suddi demanded Rs.l takh. She said that otherwise she will implicate him in a fa\se case. 6. Learned Spectat Judge after hearing learned counsel for the respective parties, convicted and sentenced the accused/oppellant as aforesaid. 7. We haye heard Shri Vishnu Koshta, learned counsel for the appelloint and Shri Ashish Shukla, Additional Public Prosecutor for the State/ respondent. 8; Shri Koshta argued that in this case there is no direct or ocular evidence regardin9 complicity of the accused/appellant in the crime in question. He further argued that in this cass PW-2 Suddi Bai is the only witness, who has stated that she saw the accused running away. She did not see the accused administering poison to Hari Prasad nor any poisonous substance or container has been seized from the accused/oppellant, therefore, based on the single testimony of PW-2 Guddi Bai, which is not reliable, the accused/appellont has wrongly been hetd guilty. He also argued that even Sonai Bai (PW-5) with whom Suddi Bsi said to have been talking at the time when she saw the accused mnning away, has not corroborated the evidence of (PW- 2) Guddi Bai. Moreover, PW-2 ©uddiBai lodged a report against son of the accused/oppellcmt namely, yadram, for commission of offence under Section 376 of the IPC, in that case also Yadram has been acquitted. Therefore, the accused has been falsely implicated. 9. On the other hcind, Shri Ashish Shukla, learned Additiona! Public Prosecutorsupported the judgment of the triai Court. 10. Havin9 heard leamed counsel for the parties, we have perused record of the trial Court. It is admitted position that in this case there is no ocular or direct evidence in order to connect the accused with the crime in question. The whole case rests on the circumstantial evidence. The Apex Court in the matter of Sharad Birdhichand Sarda V. State of Maharashtra while considering murder by poison or suicide has held in para-165 of the judgment that:- "So far as this matter is concemed, in such ccises the court must carefully scon the evidence ond determine the four imporf-ant circumstances which alone can justify a conviction: (1) there is a clear motive for <m accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, ' (1984) 4SCC 116 (3) that the accused had the poison in his possession, (4) that he had on opportunity to administer the poison to the deceased." 11. In the matter of Bhupinder Singh V. State of Punjab the Hon'bie Apex Court has doubted the availability of the above third circumstance as necessary to establish the case of murder by poisoning. Paragraphs 25 & 26 of the above judgment are reproduced hereunder; "25. We do not consider that there should be acquitt-al or the failure of the prosecution to proye the possession of poison with the accused. Murder by poison is invariably commitl'ed under -the cover and cloak of secrecy. Nobody will administer poison to another in the presence of others. The person who administers poison to another in secrecy will not keep a portion of it for the investigating officer to come aind collect it. The person who commits such murder would naturally take care to efiminate and destroy the evidence agoinst him. In such cases,it would be impossible for the prosecution to prove possession of poison with the cccused. The prosecution mcy,however, establish other circumstances consistent only with the h^iothesis of the guilt of the accused. The court then woutd not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused. 26. The poison murder oases are not to be put outside the rule of circumstantial evidence. There may be obvious yery many facts and circumstances out of which the court moy be justified in drawing permissible inference that the accused wcts in possession of the poison in question. There moy be very many facts and (1988) 3 5CC 513 ^i,.^*sGSSSS circumstances proved against the accused which may call for tacit assumption of the factum of pos^ssion of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. It would mean to introduce an extraneous in9redient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like ony other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the court can tegitimatety draw from the circumstances an jnference on any matter one way or the other." i2.Now, we shall proceed to examine the evidence adduced by the prosscution in the light of principles of law iaid down by the Hon'ble Apex. Court in the aforesaid judgments to ascertain whether in the present case the four imporhant circumstances have been established or not. > Whether ther® is a clear motive for the accused to administer poison to the deceased? 13. As far as this circumstance is concemed, PW-2 Suddi Bai has stated that Yadram, son of the appetlant, had committed ro.pe on her, as a result of which she beco.me pregnouit. She delivered a child on 26 August, 2000. In cross-exainination, she has stated that Ponchayat was convened when she was pregnant by 6-7 months, in that Panchayat Mahadev was called, but he did not appear. PW-3 Bharatlal is the Sarpanch of the village, who has stated that child of 6uddi was through Yadram, as she became pregnant on accounl- of physical ^^^v^. 'A^^s&ssS- relationdiip with Yadram. Panchayat was convened in which Mahadey was called. When Yadram was called, he was not at his residence. He asked Mahadev to keep Guddi but he denied and said that he will fight the case. Ponchonama Ex.P/5 was written. Notice Ex.P/6 was given. PW-6 Bhuri Bai, mother of Guddi, has corroborated the above evidence that 6uddi became pre9nant throu9h Yadram, son of the accused/dppellant. Similar is the eyidence of PW-7 Dujram, father of Suddi. It has also come in the evidence that 6uddi lodged a report against Yadram in which charge sheet wcis filed for commission of offence under Section 376 of the IPC against Yadram, however, he hos been acquitt-ed. Therefore, in view of the above evidence, it is established that on account of physical relations with Yadram, son of the accused/appellant, ©uddibecame pregnant & she delivered a male child namety, Hari Prasad, who was aged about5 months at the time of the incident. Even Panchayat was convened Sn which Mahadev was asked to keep Suddi but he refused. It is admitt-ed position that 6udd\ is 5C lady, therefore, she was not married. There was pressure on Mahadev to keep Guddi, therefore, there was motive behind the crime to elinninate the boy. > Whether the deceased died of poison said to have been adminlstered? L As far as this circumstance is concerned, PW-2 Suddi Bai has categorically stated that on 27+ January, 2001 when she was returnin9 after brushin9 her teeth, she saw Mflhadev at the gate of their house while running away. Immediately, she saw that there was smell from the mouth of her child. 5he raised cries that Mahadev had administered poison. The boy was immediately taken to the police & from there to the hospital. He died on account of poisoning. In Rojnamcha report Ex.P/5 which was lodged by her at 11.10 a.m. in the Police Station Malkharoda, she has categorically stated that in the morning she saw Mahadev running away. She has doubt that he has administered somethin9 to her child, os a result of which he has 8 become sick. PW-6 Bhuri Bai, mother of Gudd'i. has also stated that 6uddi immediately came and informed her about the incident that Mahadev has administered poison to her child. When she returned to the house, she saw that froth was coming out from the mouth of Hari Prasad. PW-5 Sonai Bai has also stated that on the fateful day when ©uddiretumed to her house after brudiing her teeth, she raised cries that somebody has administered poison to her child. The boy was taken to the hospital. PW-11 t)r. R.P. Kurre has stated that on 27-1-2001 he conducted postmortem on the body of the child namely, Hari Prasad, aged about 5 rrionths. He noticed that saliya was coming out from the nose and mouth. Froth wus coming out from the mouth which was dried up. There was er-osion of mucous membrane of oesophagus. Blood collected in both the chambers of heart. Fluid in the stoiriach was stinking just like kerosene oil. Viscera and clo'thes of the deceased were preserved fpr chemical examination. He was of the opinion that the deceased died on account of administration of poison. PW-13 Nandkishore Mishra, investigating officer, has also statsd that in the Sovernment Hospital, Matkharoda he seized one bed sheet under Ex.P/8 on being produced by Suddi. There vws mark of fall of liquid on that bed sheet. PW-10 t>.R. Achla, 1.0., has stated that he seized one pfastic container containing btood, clothes of the deceased and one glass bottle under Ex.P/11. Viscera were sent for chemical exomination to the Forensic Science Laboratory, Sagar under the letter of Superintendent of Police dated 1-3-2001. Report of viscera Ex.P/24 was received from FSL, Sagar in which it has been mentioned that in viscera of the deceased as well as bed sheet seized by the police contents of carbonate poison (Begon) were found. Therefore, in view of the above circumstantial evidence, it is estciblished that l-1ari Prasad died on account of poisoning. ' > Whether the accused had the poison in his possession? •^•s;^^~^' w^ 15. As far as this circumstance is concerned, in fact, the prosecution has not been able to adduce any evidence to establish the fact that the accused was in possession of the poison. Even search of the house of the accused was conducted by the police. Search memo Ex.P/2 was prepared but nothing was detected in the house of the accused regarding poison in his possession or any container of the poison in his possession. Therefore, the prosecution has failed to establish this circumstance. > Whether the aecused had en opporhinity to ad(ninist®rthe poison to the deceased? 16. As far as this circumstance is concerned, PW-2 Suddi Bai has stated in her evidence that on 27-1-2001 when she retumed after brushing her teeth, she saw that the accused was running away from the house after administering the poison to her son. There was smell emanatin9 from the moutli of Hari Prosad, therefore, she raised cries that accused Mohadev had administered poison to her son. She disclosed this fact to Sonai, sister-in-law, that Mahadey had administered poison to her son, thereafter she went to call her mother and father. In cross-examination, she has stated that her son was sleeping when she went to brush her teeth. She was at a distance of 25-30 ft. There is wall between courlyard and Kola where she went to brush her teeth. She saw Mahadevat the door. He vws about to cross the door, by that time he did not cross the door. i-1e was in the Parchi when she raised the cries, nobody came there. In para-15, she has stated that whatever stated above that she raised cries when she saw Mahadev is not correct. She raised cries after shs saw her son. Therefore, in fact, it appears from her evidence that Mahadev had already left, thereafter she saw her son, thereafter she raised cries. In the first instonce, she lodged report Ex.P/5 in the police station at about 11.10 a.m. in which she has mentioned that todcy Mahadev went in the courtyard of the house that is why she is doubting that he must have administered something to her son as a result of which her son '^.-^ *iiat*lri*irf __M (® 10 ^.^'Jf %^a-ss-y has become sick. PW-5 Sonai Bai with whom she hcxs stated to be talking cnd to whom she informed -that Mahadev hdd administered poison to her son, has tumed hostile. She has stated that Suddi was wcishing her moutti, thereafter she returned to her house. As soon as she returned to her house, she started crying that somebody has administered poison to her son but she did not take the name of anybody. 17. It is settled position that evidence of hostile witness cannot be rejected en bloc. The Court would be slow to act on his testimony and would iook for corroboration. But the Court has at teast to be aware that prima facie, a witness who makes different statements at different times has no regards for truth. His evidence has to be read ond considered as a whole with a yiew to find out whether any weiqh-t should be attached to the sowe. The Court should be slow to act on the testimony of such a witnes^ and, normally, it shoutd look for corroboration to his evidence. The said view has been taken by the Apex Court in the matter of Stote of Rajasthan V. Bhawani & another . She has not corroborated the evidence of PW-2 ©uddiBai to the extent that Suddi Bai raised cries that Mahadev has administered poison. IS.Question remains as to whether testimony of single witness namely, PW-2 Suddi Bai inspire full confidence of the Court in order to reach conclusive conclusion thatMahadey in factadministered poison to Hari Prasad. The eyidence of PW-2 Gudd'i Bai is not that co9ent <md clear in order to arrive at conclusive concfusion that Mohadev, in fact, administered poison for the reason that in the first instance, even as per the evidence of PW-2 Suddi Bai, she hod not seen him administerin9 poison. As far as her evidence that she saw him while he was going out of the gate of the house is concerned, even Mahadev ; was not seen nearby Hari Prasad. In the first instance, she hos AIR 2003 SC 4230 ^.K^- .;~'."J~ /y^\ 3 -%r^ 1 S ,^:iSSe 1 'u. 11 ^ ^f* •'y.^'f stated that she nxised cries after seeing Mahadev but in cross- examination she has stated that in the first instance, she saw her son. When she saw that there was smell from his mouth, then she raised cries that Mahadev had odministered something to her son. 5he has not stated that when she saw her son, any saliya was coming out from nose or mouth of the deceosed or any froth was conting out of the mouth of the deceased. She has simply stated that she saw that smell was coming out from the mouth. 19. Further question which comes up for consideration is that smell of Begon is not that which con be noticed without taking her mouth near the mouth of Hari Prasad and goin9 near to Hari Prasad, it was not possible for her to notice smell of Begon. She has not stated that she took her mouth near the mouth of Hari Prasad to notice smell. Therefore, based on testimony of this witness, it is difficult to reach conclusive conclusion that Mahadev had, in fdct, an opportunity to administer poison to the deceased. 20. For the foregoing discussion, in the first instance, no poisonous substance or any container of the poison has been seized from the possession of the (ypellant in order to establish •t+iat he was in possession of poisonous substance. Moreover, PW-2 6uddi Bai hos not been able to suy with certainty that in fact she saw the oppellant administering poison to her son. even if her- evidence is taken on its face value, even then she saw Mahadev while 9oin9 out of the gate. Moreover, neighbour PW-5 Sonai Bai with whom Suddi is said to have been talking has also not corroborated the evidence of this witness to the extent that she raised cr-ies that Mahadev had administered poison to her son. Therefore, the prosecution has not been able to establish these two circumstances beyond reasonable doubt, hence, explicit reliance connot be placed on the evidence of PW-2 Suddi Bai in order to reach to the conclusion that the appellant had administered the poison. He is entitled for benefit of doubt. ^=^^-». '•::?S3&,- l' . '"""•A ^'^-€A 12 21.In the result, the appeal succeeds. Conviction and sentence imposed upon the accused/oppellant under Section 302 of the I.P.C. are set aside. He is acquitted of the said charge. He is in detention since 2001, thereby he is in detention for more than 6 years, therefore,he be set at liberty forthwith if not required in any other case. ^_/75____.. ^-----:- Sd/- Sunil Kumar Sinha Judge Sd/- L.C.BHADOO Judge licii'v'i