^@7y:w^- '':"rt: APPELLANT; RESPONOENT! HKSl COURT OF JUDICATURE AT BILASPUR (C.G.) Criminal Appeal No.557 of 20Q3 Nohar Kewot, S/o boyarom Kewat Aged about 40 yews. R/o Rampur', Khatutola, P.S. Chichola. Churiya, District Rcunaridgaon, (C.G.), Presently R/o villcge C)hiri, Chakradhari Itta Bhatta, P.5. Somni, Djstrict Rajnandgaon. -Verais- State of Chhattisga'h, Throigh P.S. Somni, District- Rcynandgaon (C.S.) JUDGMENT POR CONSr"""'-^'"""-*-1—-—— Sd/- L.C.BHADOO Judge HON'BLE THE CHIEF JUSTICE f-^yy^ ChiefJustice •^3 ss" POST FOR JUDGMENT ' Sd/- JUDGE '3±^July,2003 Criminol Aopeal No.557 of 2003 APPELLANT: RESPONDENT; Nohar Kewat, S/o t>ayoram Kewat Aged about 40 years, R/o Rampur, Khatutola, P.S. Chichola, Churiya, District Rcynand90on, (C.6.), Presently R/o villoge Dhiri, Chakradhari Itta Bhatto, P.S. Somni, District Rajnandgaon. State of Chhattisgarh, Throigh P.S. Somni, bistr-icf- Riynandgcon (C.6.) Shr-i Anup Mqjumdar, counsel for the appellant. Shri Prafulla Bharat, Panel Lowyer for the State/respondent. Division Bench; - Hon'ble Shri K.H.N. Kura»ga, C.J. and Honble Shri L.C. Bhadoo, J. JU&&MENT (Delivered on_ July, 2003) The following_.iudanient of the Court was delivered by Justice LC. Bhadoo: - 1. The accused / appellant has preferred this criminal appeal under Section 374(2) of the Cr.P.C., being aggrieved by the judgment of conviction and sentence dated 17-9-2002 passed in S.T. No. 35/2002 by the l Additional Sessions Jud9e Riynangdaon, by which the ieamed Additional Sessions Judge after holdin9 the occused / appellant guilty for the offences punishable under* Section 302 of the I.P.C., sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default of poyment of fine to further undergo R.I. for one month. 2 2. Briefly stated the prosecution story is that Brijlal Kewcst's wife died in the year 2000 and he was residin9 in one room of brick kiln with his daughter Manisha. The daughter of the accused narnsly, t>han Bai, a9ed about 16-17 years, used to come to the house of Brijlal. They developed physical relatlons. Accussd Nohar Kewat the father of t>han Bai came to know about this. therefore, he stopped Dhan Bai from going to Brijlal's house. Dhan Bai met Brijlal Keufat on 31s Morch 2001 i.e. Saturday in the market of brick ki!n and during that rnesting Brijlal gifted a bra to t>hon bai which came to the knowledge of the accused and he become angry cnd with the intention to take revenge he planned to murder Brijlal and in furtherance of the same on 1 April 2001 i.e. Sunday he invited the deceased Brijlal for dinner. VVhen the deceased Brijial came to the house of the accused he offered liquor and Namkeen, the accused also consumed the liquor. The Lota (metal vessel meant for kseping water) in which water was kept for mixing with liquor fell down <md the water splashed. On this the accused took the Lota to other room and again put the water mixed with poison in the Lota and the accused after putting the liquor En the Tumbler of the deeeased put the water also from Lota which was mixed with poison, but he did not put that water in his liquor. When the deceased consumed that iiquor he told the accused that some peculiar* smeil is coming out. On this the accused said that there is nothirg, ond the deceased consumed the whole liquor in the tumbler. The accused offered more liquor to tha deceased but he refused to taks, on wihlch the accused slapped him and asked him to tske more liquor. The accused once more mixed the water which was mixed with poison in the liquor. Thereafter the deceased refused to take more iiquor and ogain the accused slapped him and said that noav you will reach the correct place. At that time 2 to 4 persons came, and the accused informed them that deceased Brijlal has consumed excessive liquor. Thereafter the deceased went to his house cnd without taking weal he had gone to sleep. In the morning at about 4.00 a.m. Brijlal storted writhing in pain, froth started coming out from his mouth and he storted vomiting. On this, his daughter Manisha went to Ramsharan, the clerk of the owner of the brick kiln, and informed him about -the condition of her father. On this Ramsharan provided a truek in which Brijlal was td<en to the District Hospital, Dur9 and there the doctor declared him dead. 3. The merg intimatton wce given to the Police Station and the Police after registering the merg intimation 0/2001, (Ex.-P/6) sent requisition for the postmortem on the body of deceased Brijlal. The Doctor conducted the postmortem and prepared the rsport Ex.-P/S. The doctor opined that the cause of the death wos asphyxia oin account of consumption of poison. The viscera were preserved by the doctor and sent to the Forensic Science Laboratory, Sagar from where the report Ex.-P/21 was received in ivhich it was opined that jn the viscera Rogor (Organo Phosphorous) insecticide and Ethyi Aleohol were found present. The F.I.ft.. Ex.-P/19, was registered in the Police Station Somni. The site map of the place of ths incident was pr-epared on 26 January 2002. The accused gave information under 5ection 27 of the Evidence Act, Ex.-P/14 and in pursuance of that information one alLiminium bottle containing half bottie liquid was 4 recovered after digging the earth from near Babool tree which was seized under &<.-P/15. The police after completing -the investigation filed the challan against the occused / appellant. The case wcss committed to the Sessions Judge, Rajnandgaon from uyhera the 1 Additional Sessions Judge received it on transfer'. The Isarned ^dditional Sessions Judge after perusing the records and hearing the learned counsel for the accused framed the charge under Saction 302 of the I.P.C. against the accused / appellont. The accused denied ths charge and asked for trial. 4. The prosecution in order to prove the offence against the oeeused / appellant examined in all 16 witnesses. Ths statement of the accused was recorded under Section 313 of the Cr.P.C. in which the accused admitted that he was working in the brick kiln and the deceased was also working thera, but he refused that the deceased consumsd liquor in his house and stated it is also false that he mixed poison in the liquor'. However, he refused that there was any ralation between the deceased ond his daighter Ohan Bai. He pleaded ignorance about the postmortem and the cause of the death of the deceased, However, he admitted that on knowin9 about the deoth of Brijlal from the newspaper his daughter Dhan Bai consumed some substance mistakeniy thinking the same as sweet bwerage and she was admitted En the hospitai and was in the hospital for 2-3 days. He pleaded ignorancs os to whether Dhan Bai consumed the poison. as he had not gone to the hospital and ultimately he stated thot the dau9hter of the deeaased Manisha deposed against him on account of old enmity and he hos been implicated in the false case. He stated that he is innocent. The learned lAdditional Sessions Judge after hearing the eounsel for the accused / appellant and the Public Prosecutor convieted and sentenced him as mentioned above. We have heard Shri Anup Majumdar, the learned counsei for the cppellant and 5hri Prafulla Bharat, learned Panel Lawyer* for the Stata /respondent. As far as the question of the nature of the death of deceased Brijla! os homicidal is concer'ned. the lear-ned counsel for the accused / appellant has not disputed. PW-8 doctor Ashok Soni said thot he conducted the postmortem on the dead body of Brijlal. On opening the stomach of the deceased foul smell was coming out. Kidney and lever were congested and the yellow liquid was present in the stomach. The viscera was preserved and the same wcs sent to police for getting it chemically examined. The cause of the death wos csphyxia due to consumption of the organo phosphorous insecticide. The report, Ex.- P./21 also shows that in the viscera Rogor (organo phosphorous) insecticide and the ethyl alcohol were present. Therefore, in view of the above, it stands proved that deceased Brijlal died on account of consumption of the insecticide namely organo phosphorous, and the natur-e of the death of the deceased was homicidal. Now comin9 to the question of involvement of the accused by administering poison to the deceased is concerned, the whoie ccse rests upon circumstantial evidence cnd in order to prove the offence against the accused based on circumstantial evidence it is settied law that that the Court can record conviction, but it must satisfy itself that the circumstancss from which an inference of guilt could be 6 drawn have been established by unimpeachtible evidence led by the prosecution and that all the circumstances put together ore not on!y of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and ars not capoble cf ony explanation which is not consistent with the hypothesis of the guilt of the accused. 8. Now we shall examine the evidence cvailable on the record by which the prosecution has sought to prove the offence ogainst the appellant and his involvement in administering the poison to the deceased. The prosecution hos relied on ths following circumstances;- (i) 9. (ii) that in the intervening night of 1s* April 2001 and 2"i 2001, the accused imited the deceased at his residence for dinner and there the deceased consumed the liquor and in that the accused administered the poison to the deceased. the deceased mcde dying declwation before his doiughter Manisha that the accused forced him to consume liquor mixed with poison and on account of that his condition has worsen. Now comin9 to the evidence the trial Court has relied on the deposition of PW-13 Dhan Bai. Even thoigh this witnsss has beesi declared hostile, but in para-5 of her cross-examination by the Public Prosecutor, she has stated that in the fateful night deceased Brijlcl came to their- house and he consumed liquor with her father and 'm the morning he died. But at the same time she has stated that it is incorrect to say that her father mixed poison in the watef which wcs put in the liquor. She has furttier stated that it is true thct her father informed the people of the vicinity thot the daceased has consumed excessive liquor. Relyirg on this evidence, the learned Additional Sessions Judge has held that it is establishsd thct the 7 deceased consumed liquor at the residence of the accused. But the accused has denied in his statement under Section 313 of the Cr.P.C. that the deceased consumed liquor at his residence. PW-13 t)han Bai is the daughter of the accused. There is no reason to disbelievs her evidence and there is no reason for her to depose against hsr father. Therefore the conclusion of the trial Court that the deceased consumed the liquor in the fateful night at the residence of the accused is correct and stands proved on the basis of the evidence of PW-13 Dhan Bai. 10. Now coming to the question whether the accused mixsd^poison in the water and that water was mixed with the liquor is concerned, PW-13 Dhan Bai and the accused have denied this fcct, therefore, there is no dif-ect evidence on this point. As such only we have to look into the circumstantial evidence leading to the poisoning of the deceased. As per the evidence, after consuming the iiquor at the residence of occused the deceased went to his house and thereafter in the eariy morning at about 4;00 a.m. his condition became precarious. Then he was taken to the Durg hospital where he wos declared decci, PW-6 Ramsharon has depossd thot at 5:00 a.m. the daughter- of deceased Manisha came to him and informed cbout the condition of Brijlal on which he went to the house of Brijlal and he SOSM that Brijla! was iyinc on the ground. He called the persons of vicinity and arranged the vehicle and sent Brijlol to hospital. PW-4 Manisha hcs deposed that her father came to the house in the fateful night without taking food he had gone for* sleep and in the morning when the condition of her father became precorious, she went to Ramsharan and thereafter her 8 father was taken to the hospital. This fact has also been proued by PW-3 Sagar. PW-1 bhansai has also deposed thot on coming to know about the condition of Brijlcl he went to his house, he had taken Brijlal to hospital on a truck and there the doctor" declarsd him dead. Tho viscero were preserved which were taken from his body at the time of the postmortem by Dr. Ashok Soni, PW-8 and as per the report, Ex.-P/21, those viscera were found containing Rogor (organo phosphorous) insecticide and ethyl olcohol. 11. The trial Court has also considered other factor that t>han Bai after comin9 to know on 2 April 2001 through newspaper that Brijiol has died in the hospitat also consumed poison and her condition became pr'ecar'ious, die was admitted to the hospitol, she remained in the hospitol for 2, 3 days. PW-8 &r. Ashok Soni, the same doctor who conducted postmortem of the decd body of deceased Brijlal treated her and stated that he examined t)han Bai. She was unconscious. The pulse rate was 100 and the blood pressure wos 130/80 and she w/os sweating and her eyea were squeezed ond in the opinion of the doctor condition of Dhon Bai became precor-ious on account of the consumption of the organo phosphorous insecticide and for this the report is &.-P/13. A perusal of the r-eport Ex.-P/13 which was prepared by the doctor on 2"d Aprii 2001 at 9:40 p.m., shows that t)han Bai consumed oregono phosphorous poison. T1iis instance lends support to the prosecution story that Dhan Boi had relations with the deceased and that ultimateiy became the motive for the accused for committing this heinous crime. Even though other witnesses have said that they have no knowledge about the relation between Dhan Bai and the deceased, Mcnisha (P.W.4) has stoted that Dhan Bai used to come to their* house. 12. The learned counsel for the accused / appellant argued that though the sample of the poison was taken crt the instance of the accused, the report of chemical examination of the same has not been produced. Similarly vomit of t>han Bai wos not preserved and merely on the visua! examination it cannot be said that Dhan Bai consumed insecticide. It !s true thot the chemical examination report of the sample has not been produced nor- the vomit of Ohan Bai was sent for chemical examination. As the recovery at the instance of accused was almost after a month, not much value can be attached to the scnne. Even otherwise, these tests were required to be conducted to shav that the materiat wos poison. But even if the chemical examination report has not been produced by the prosecution that does not itself falsifies the prosecution case, if it stands proved by the other reliable, convincing and le9al circumstantial evidence. As has mentioned obove that report is just to support the case of the prosecution. In absence of that report if other legol convincing evidence is available then the offence can be treated to have been provad on the basis of the same. 13. Thare is evidence produced b/ the prosecution that the deceassd after consuming liquor directly went to his house and as per the evidence of Manisha PW-4 the deceased hod not taken anything and he had gone to sleep directly and therecfter in the morning his condition became precarious. He was taken to the hospitat where he was declared dead. The doctor preserved the viscera and as per the 10 15. report Ex.-P/21 those viscera were found containing poison / insecticide. The same day when Dhan Bai came to know about the deoth of deceased Brijlal Kewat she aiso consumed that liquid and her condition also became serious and shs wos taken to the hospita! where she was kept for 2, 3 days and the doctor PW-8 Ashok Soni hss stated that he examined C)han Bai and in his opinion, she consumed organo phosphorous poison, the same substance which was found in the viseerQ of the deceased. Even though Dhan Bai has tried to explain that she consumed that liquid thinking that the same was sweet bevarage and she had not consumed it for committing suicide, the fact remains that some poisonous substance was present in tha house of the occused and on coming to know that Brijtcl has died Dhan Bai olao consumed that substance and her condition became precarious and she was taken to the hospitol. It has not come in the evidence that the liquid which t)han Bai consumed was brought by her from any place outside. bhan Bai and the accused both hove admitted that t>han Bai consumed poison arid thereafter her condition became prscarious. Therefore, from these circumstances it stands proved that the deceased consumed liquor at the residence of the accused in the ni9ht of 1 April 2001 and in the mornin9 of 2 April 2001 he died. t3han Bai daughter of the accused took the liquid and as per the opinion of the doctor that WQS poison. The circumstantiol evidence produced in this case by the prosecution stand up to the tests laid down by the Hon'ble Apex Court tas mentioned above, ond only the irresistible inference ccn b®dt-awn from the circumstantial evidence that the occused is the only person 11 a^o -ASiW 16. 17. administered poison to the deceased and there is no possibility which exc!ude the invoh^ement of the accused in the heinous crime. In view of the above it stands proved that the accused administered poison ncmely Rogor (organo phosphorous) insecticide by mixing the same in the water and then mixing the said water in the liquor and offering th®same to the decscssd to consume. Now coming to the statement of Manisha which was racorded by the ice after 10 months of the incident in which she has stated that the deceased told her that he has consumed liquor at the residence of the accused and the accused has administered the poison in the liquor, this statement was recorded at a belated stage after 10 months of the incident. The Investigating Officer was knowing that Manisha was present in the liouse. It is not knotvn why her statement was not recorded on 2 April 2001 itself or thereafter at the earliest possibie, about the fact that the deceased made dying declaration before his daughtsr" that the accused has administered the poison to him. Thersfore this part of the evidence has not been abte to stand up to the test or is of worth reliance or inspiring confidence of the Court. In the result, we do not find any illegality or infirmity in the judgment of the triol Court. The same is based on the sound reasoning and on the legal convincing evidence. The conviction and sentence passed by the trial court is affirmed. Accor'dingly, the apped is liable to be dismissed and it is dismissed. Chief Justice Sd/- L.C.BHADOO Judge )^