[ \ HIGH COURT OF CHHATTISGARH BILASPUR DIVISION BENCH HON’BLE MR. T.P. SHARMA AND HON’BLE-MR. R.L. JHANWAR, JJ. CORAM: Criminal Appeal No.324 of 2006 Hariprasad @Kishan Sahu — ersus - tate of Chhattisgarh r JUDGMENT FOR CONSIDERATI /ON —\ 551/. T.P. SHA V”Judge $ HON’BLE MR. JUSTICE~R.L. JHANWAR . Sdl- R.L. Jhanwar Judge 9-2420 1" ost for pronouncement of judgment on 9"‘Februarv. 201 1 f x V S # ? u P \ HIGH COURT OF CHHATTISGARH BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLEMR. R.L. JHANWAR, JJ. Criminal Aggeal No.324 of 2006 APPELLANT: ' Hanprasad @ Klshan Sahu S/o Panch (In Jail) Ram Sahu aged about 30 years ‘ \reSIdence of Vlllage Pachara A Budhwarlpara Ratanpur Thana Ratanpur Dlstt Bllaspur(CG) Versus RESPONQENT: State of Chhattisgarh through the District I t Magistrate Bllaspur(CG) {Criminal appeal under Section 374 (2) of Cr.P.C.}. 3 .. Present; _ Mr Yogeshwar Sharma counsel forthe appellant Mr S R J Jaiswal Panel Lawyer forthe State/respondent JUDGMENT (9th February, 201 1) The following iudgment of the Court was passed by T.P. Sharma, J: — 1.‘ Challenge in this appeal is to the judgment of conviction & order of sentence dated 9-3—2006 passed by the Special Judge constitutedunder Vthe Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’), Bilaspur, in Special Criminal C‘ase'lw No.1_9/2005, whereby & whereunder learned Special Judge while acquitting the appellant of charge under Section 3_ (2) (5) of the Act, convicted him under Section 302 of the IPC for causing culpable i homlcrde amounting to murder of Bisahu Singh Uike and sentenced him, to undergo Imprisonment for life & pay fine of Rs 1 OOOI- In default of I payment of fine to further undergo RI for one year. 2 K é 5 ‘2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution‘ on 22-7-2003 the appellant administered liquor to Bisahu Singh Uike (since deceased), thereafter, he added poison in the liquor and provided to Bisahu. After consuming such poisonous liquor, Bisahu felt problem in breathing and he was badly affected by poison, but some how he came to his house and fell. dOWn in r the verandah. Bisahu made dying declaration before his wife Ganesh ‘ Bai (M—Z),‘Anita Porte (PW-3), Sukwara Bai (PW-4), Rajesh .Kumar" " (PW-5) and Bhagwati (PW-7). Thereafter, Bisahu was examined by Dr. i Sudesh Verma (PW-1) who noticed pungent smell from the mouth of Bisahu and he immediately directed the relatives of Bisahu for shifting Bisahu to Government hospital. Relatives of Bisahu shifted Bisahu to Government hospital and same was intimated by the doctor to the police;~‘:l vide Ex.P-1. During treatment Bisahu died on 23-7—2003 at about 3.30 p.m. and death was intimated to police vide Ex.P-3. Merg was re'cordedw i t ‘ ‘vide Exs.P—4 & P—6. After summoning the witnesses vide Ex.P-10,r ‘ inquest over the dead body of deceased Bisahu was prepared vide Ex.P— / ’ '9. Dead body was sent for autopsy to CIMS, Bilaspur vide Ex.P-5A. Dr. ' A.K. Shukla (PW—18) conducted autopsy vide EXP—13 and found following symptoms: - > Swelling in brain membrane, trachea, lungs and kidney. > Viscera were preserved, same was sent for chemical examination ‘ and presence of organo phosphorous insecticide was confirmed in'“ ° viscera vide Ex.P-.14. Finally, on the basis of merg inquiry, FIR was registered vide EXP-11. \ , The accused was arrested vide Ex.P-8. \ 3 . @ V 4. Statements of the witnesses were recorded under Section 161 ‘of the r CrPC and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Ciass, Biiaspur who committed the case to the Court of Special Judge constituted. under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bilaspur, where trial of the case was conducted. 5. in order to prove the guilt of the appellant, the prosecution has examined as many as nineteen witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances ' appé‘ating against him, pleaded innocence and false implication. He has ’l also examined Pardeshi Ram Gond (DW—1) who has deposed that from 19—7-2003 to 23-7.;2003 the appellant was present in his house at Raipur and thereby, the appellant has taken the defence'of alibi. 6. After affording opportunity of hearing to the parties, learned Special Judge convicted & sentenced the appellant in the aforesaid manner. .7: 7. We have'heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8.‘ Learned counsel for the appellant vehemently argued that in case of murder by administering poison, the prosecutionis required to prove‘the y . tr. y fact that the accused was having clear motive to administer poisori to.the ‘ deceased and that the deceased died as a result of poison, the accused was in possession of poison and was having sufficient opportunity to administer poison to the deceased. ln the present case, the prosecution has not proved any of the aforesaid conditions and in absence of such proof, conviction & sentences of the appellant are not sustainable under ' the law. Learned counsel further argued that conviction of the appellant , is substantially based on the dying declaration made before his relatives ' —-—y# @ E V which does not inspire confidence and it is not trustworthy. As per case k’ ’ i V of the prosecution, the appeliant has administered poison to Bisahu ,onw W,“ 22-7-2003, but in the Vpresent case, FIR has been lodged on 3-11-2004 after more than one year four months and thereafter, statements of/the witnesses were recorded under Section 161 of the CrPC. The r prbsecution has not recorded statements of the witnesses on the date of incident or Within considerabie time, but has recorded statements on 6— 12-2004 and 16-11-2004 and the prosecution has not' explained the delay in recording such statementsf At the time of autopsy, doctor has not gimgn any opinion 'relatingto cause of death of the deceased, he has ‘i ' simply preserved‘viscera. Autopsy report does not reflect presence of ‘ liquor or smell ofliquor, though same has been noticed by Dr. Sudesh V Verma (PW-1) at the time of examination of the deceased When he was alive. These discrepancies are fatal to the prosecution and in'absence of cogent, credible and clinching evidence, conviction of the appellant is not E; sustainable under the law. i ' v » A» /, r ,.. "v‘ ,t 4' f 9. Learned counsel for the appellant placed reliance in the matter of State ‘ . t of Uttar Pradesh v. Shri Krishan1 in which the Supreme Court has held that statement of sole witness'under Section 161 of the CrPC recorded V after 13 days without proper explanation and other discrepancies are fatal to' the prosecution. Learned counsel further placed reliance in the matter of Prem Narain and another v. State of Madhya Pradesh2 in which the Supreme Court has held that statement of the witness recorded after six weeks under Section 161 of the CrPC without any“, ' explanation is fatal to the prosecution. \< , 12005-(1) ccsc 450 \ 2 2007 (1) ccsc 60 (so) W 10 On the other hand learned State counsel vehemently opposed the ‘ appeal and submitted that In the present case documents and eVIdence adduced on behalf of the prosecution are sufftcuent for drawmg Inference that the deceased died as a result of poisoning, the appellant has administered poison to the deceased, he was having sufficient opportunity to administer poisonto the deceased and on accOunt of enmity, he has administered such poison to the deceased. in the present case, FIR has been recorded after more than one year four months, but merg has been recorded on the same day i.e. 23-7-2003 ‘ videkEx.P-4~ which clearly reveals that cause of death of the deceased / t > was poisoning. Viscera was sent for examination and viscera report has been received by‘the investigating Offlcer on 27 8-2004 thereafter FIR was registered and statements of the Witnesses were recorded under“, , Section 161 of the CrPC Before registration of FIR statement under Section 161 of the CrPC was not pOSSIble but the Witnesses were examined in the merg enqUIry /A. i 1"‘i 11.ln order to appreciate the arguments advanced on behalf of the parties, . we have examined theevidence adduced on behalf of the parties. 12 ln the present case death of deceased Bisahu as a result of p0ison has ‘ not been substantially disputed on behalf of the appellant othervvise also it is established by the eVIdence of Dr A K Shukla (PW-18) autopsy report Ex.P—1 3, Viscera examination report Ex.P—14, initial intimationby doctor to‘police Ex.P-1, merg report EXP-3 and merg EXP—4 that the deceased died as a result of poisoning and organo phosphorous insecticide was found in viscera of the deceased. " i, #//\ 13.Death as a result of poisonby itself is not'homicidal death, but same‘ is abnormal death. The prosecution is required to prove that death of'the \\ _,i‘~,-, deceased was not suicidal and was homicidal and that the appellant has K1 , administered poison to the deceased. 14.As held by the Supreme Court in the matter of‘Sharad Birdhichand Sarda v. State of Maharashtra? in cases of death by poisoning the Court must carefully scan the evidence and determine the four important circumstanCes which alone can justify a conviction: — (1) there is a clear motive for the accused to administer poison to the deceased (2) that the deceased died of pmson said to have been administered (3) that the accused had the pOIson In possessron (13that he had an opportunity to administer the p0ison to the L k, l LL ‘ , deceased 15. ln the present cas‘e', death of the deceased was as a result of poisoning. 16.As'regards administering of p’oison by the appellant, the appellant has taken defence of alibi by adducing the evidence of defence witness Pardeshi Ram Gond (DW-1-) who has deposed that in the year 2003 hie-u was residing at Raipur, on 19—7—2003 the appellant visited his house at“ ' i Raipur and informed him that he will attend some rally to be held on 20- 7-2003, the appellant attended the rally, thereafter he stayed till 23-7— 2003 and on 23-7-2003 the appellant left his house. In his detailed “ . cross-examination this witness has denied the suggestion that the appellant has not visited his house on 19-7-2003 and he has‘not stayed in his house. 17 Ganesh Bai (PW-2) Wife of the deceased has deposed that on 22nd July, 2003 (Tuesday) her husband went to scolety for purchasmg kerosene & sugar, he came thereafter with aforesaid articles, he stayed in his house and thereafter he went to the house of Rammilan Nai to \ t attend C'hatti function and then he went to the forest for collecting wood, \\ 3 (1984) 4 soc '116 4r ‘ ' 7 @ but he did not cdme back at ’night. At about 7 a.m. on 23-7-2003 She ' K K V saw her husband who was lying in verandah, sound (ghar ghar) was coming from his neck on which she called her neighbours. Conditionof her husband was serioush Her husband directed her to call Kotwar whereupon she called Kotwar Bhagwati .and before Kotwar & other M persons, he made dying declaration that while he was going to forest, he l ' was called by appellant Hariprasad on 'which he went to the house of i . Hariprasad where they consumed liquor. Her husband hasfurther stated ,.that after consuming two glasses of liquor appellant Hariprasad added somegthing In third glass of liquor and on being asked Hariprasad told I; him that he has added medicme for substantiating the effect of liquor They immediately called Dr. _Sude’sh Verma (PW-1) who initially , examined her husband and directed to shift him to Bilaspur hospital, then . they shifted her husband to Bilaspur hospital She has deposed in para 6 of her eVIdence that there was long enmity of the deceased With thee appellant on account of land dispute Her eVIdence has been corroborated by the eVIdence of her daughter Anita Porte (PW-3) Sukwara Bai (PW—4) -— neighbour ’& Rajesh Kumar (PW—5). ‘_18.Bhagwati (PW-7) — Kotwar‘has‘ not corroborated the evidence of aforesaid Witnesses and the prosecution has declared him hostile He has deposed in his eVIdence that when he went to the house of the appellant, the appellant was not present in his house, his wife told him that the appellant has gone to attend rally. 19. Dr. .Sudesh ‘Verma (PW-1) has corroborated the evidence of 'Ganesh Bai (PW 2) and has deposed that he is practicmg doctor he was called by v / . relatives of Bisahu (Since deceased) and on 23 7 2003 he has examined l Bisahu his breathing was abnormal some pungent smell and smell of N l, “l x 1‘_. l ' l liquor was coming from his breath, his condition was serious and the \ 8 . @ patient (the deceased) informed him that he has consumed Iiquor with K some known person on which he (this witness) directed to shift Bisahu to/ l Bilaspur hospital. This witness has further deposed that wife of Bisahu told him that Bisahu has consumed liquor with some person who added i some jadi buti. 20.Defence has cross—examined Ganesh Bai (PW-2) in detail. ‘ In her ‘ detailed cross-examination, para 8, she has specifically deposed that on the fateful day the appellant was present in the village and has denied the suggestion that the appellant had gone to attend rally on 23-7—2003; She ha<§fdenied the suggestion that her husband has not made dying declaration before her and she is falsely implicating the appellant.‘ 21.Defence has also cross-examined Anita Porte (PW-3) — daughter of the deceased in detail and in 'her detailed across—examination she-has admitted the fact that her father has encroached upon land and constructed house. She has denied the suggestion in para 12 of‘her cross—examination that her father Was not in a position to talk. She has further denied the suggestion that the appellant has made complaint against her father relating to payment of compensation. She has also denied the suggestion that the appellant was not present in the village on the date of-incident. But, she has admitted the suggestion in para 15 that‘pungent smell was coming out from the mouth of her father.‘ l 22.Defence has also cross-examined Sukwara Bai (PW—4) but has not suggested anything to this witness relating to dying declaration‘or-the - fact that the appellant was not present in the‘village. ln cross- examination, another witness Rajesh Kumar (PW-5) has denied‘the ./////// / I. \ l suggestion that the deceased was not in a position to talk and has not "‘ \ ma‘deany dying declaration. @ 9 23.Deflnitely, statements of witnesses Dr. Sudesh Verma (PW-1) & Ganesh ‘Ki‘ V Bai (PW-2) under Section 161 of the CrPC, Exs.D-1 & D~2, respectively have been recorded after more than one year four months of the incident. In the present case, FIR has been Iodged on 3-11-2004 and thereafter, statements of the witnesses were recorded under Section 161 n of the CrPC. Prior to recording of FIR, recording of statement under Section 161 of the CrPC is not possible, but FIR has been registered on the basis of merg inquiry. Defence has not asked anything to these , witnesses whether they have not'been interrogated by the Investigating Officer: during merg inquiry. in these circumstances, delay in recording ‘ It ’ statement under Section 161 of the CrPC would not be fatal to the prosecdtion. e i »»,,iii 24.ln the matters of State of Uttar Pradesh (supra) and Prem Narain (supra), the Supreme Court has held that delay in recording statement of witness under Section 161 of the CrPC by itself is not fatal to the i prosecution, but if it is not explained same is fatal to the prosecution. 25. In the present case, firstly merg inquiry was conducted, viscera was sent . for chemical examination and after receiving viscera report, FIR has ' been registered. Before, registering vFIR, recOrding of statementpf . ,, witness under Section 161 of the CrPC would not be possible. This is sufficient explanation in the present case. As heldby the Supreme Court in the matters of State of Uttar Pradesh (supra) and Prem Narain (supra), in the aforesaid'circumstances, the proseCution has offered proper explanation and such delay in recording statement under Section 161 of'the CrPC is not fatal to the prosecution. \\'26.ln the present case, inquest Ex.P-9 has been preparedkby thew-y _ I \ Investigating Officer on 24-7-2003, second day of the incident. EXP—9 _10‘ @ reveals that the Witnesses have stated at the time of Inquest that the deceased has earlier consumed liquor thereafter appellant Hanprasad“ l has added something Le. jadl buti in the liquor and told that by this the effect of liquor would be diluted. Same thing is mentioned in E'x.P‘—5 — request for autopsy prepared on the same day‘. These crucial documents reveal that on first day the witnesses have informed that the appellant has added some material in liquor which thevdeceased consumed and thereafter, position of the deceased became deteriorated and finally he died. s ‘ r 27.Evidé‘n?:e of Ganesh Bai (PW-2) — wife of the deceased Anita Porte (PW 3) daughter of the deceased Sukwara Bai (PW 4) — neighbour & Rajesh Kumar (PW-5) relating to dying declaration made by deceased Bisahu reveal that after drinking liquor With the appellant the appellant has added some material in liquor and told him that it Will dilute the effect of intOXication but instead of diluting such effect posmon of theV" ' deceased became deteriorated and fnally he died These facts are well/ ‘lcorroborated by the promptly prepared inquest EXP-9 and request for autopsy Ex.P-5. Autopsy was conducted by Dr. A.K. Shukla (PW-18) who has deposed that he has preserved viscera of the deceased and ' same has been sent for chemical examination. Viscera'report Ex.P-14 reveals that presence of organo phosphorous insecticide was found in the viscera These facts are sufficient to establish the fact that the appellant was havmg sufficient opportunity to administer some material“. , in the liquor of the deceased which the deceased has consumed. Death of the deceased was a result of poison. Organo phosphorous insecticide wasfound‘in viscera of the deceased which shows that the deceased ‘ has consumed the aforesaid insecticide ie poison EVIdence of \ aforesaid Witnesses before whom the deceased has made dying / ;.- M...” , .. \ \ \\ ' \ declarahon clearly reveal that the deceased has not taken anythmg after .drlnklng Ilquor In which some materlal has been added by the appellant which completely rules out the possrbllrtyvof admmrstermg polson by another person or administering poison subsequent to the act of the appellant. I l 28.As regards question ofmotive, as per para 6 of the evidence of Ganesh ’Bai (PW-2), there was previous enmitv between the appellant &‘the deceased on account of land dispute The appellant himself has suggested to this wrtness In para 13 relating to complaint made by him for getting legal compensation These facts are suffrcrent to establish that the appellant was having motive for commission of murder of the A a ' . deceased. x i 29.Aforesaid evidence adduced on behalf of the prosecution is sufficient for drawing following inferences — (1) The appellant was havrng motive for causrng murder of deceased . Bisahu 7 ‘ ’ I (2) The appellant was having opportunity to administer poison to' the deceased. I ’ , (3) The appellant'was in possession of poison at the time of such administration. y ' (4) Deceased Bisahu died as a result of poison. $0.As held by the Supreme Court in the matter of Sharad (supra), aforesaid circumstances are sufficient for drawing inference that only the appellant x has committed murder of deceased Bisahu by administering poison. 31.After appreciating the evidence available on record learned Specral Judge has convrcted & sentenced the appellant in the aforesaid manner On close scrutiny of eVidence we do not find any illegality in conViction & sentences of the appellant requmng interference in exerCIse of appellate I Jurisdiction. /. l .1" Soma 1 32.Consequen‘tly, the appea’I is devoid of merit, same is liable‘to be/ ismissed and it is hereby dismissed. sm- Ty. SHARMA Sdl- R.L. Jhanwar Judge 2@ \ \ d /\ \