mm,m,W ‘ym m 111. 200 3mm (W) 'mmw ammm \ \ W \ mmm mmii‘sém avafmm ;u APPELLANT Raj Is Darsh: aged ( Iumar alias Kashiram Son of in Lal 'I‘iwan' (Brahman Tiwam‘) 35 years, at present 37 years, msidem of Village Kotari BS. Lormi, Distric V Brsus Chhattisgarh, through District RESPONDENT as a CRIMINAL APPEAL u s 37 OF THE CODE OF CRIMINAL PRO DUKE D.B.: HON’BLE SHRI l ON’BLE SHR a ORAL L.C. Bhadoo, J:- Shri Kamal Pandey, oo Smt. Anju Ahuja, Dy. Ad Heard. ‘ Sccond Additional Session Bila pur m Sessions Trial N t Bilaspur (.Chhattisgafh} Staté" Magisxiexte, i Bilaspur (Chhattisgarh) L.c numoo, J, an NIL KUMAR s’mHA J. H I U DGMENT ocate Gene1§1 for the State. .46/2001, whexeby, the learned Criminal Aggeal No.264l2003 s \ @ HW,W§,W . C 14 MW 'ai 200 mm (W) mmma‘wm “NM“ €y, .9awg‘wi,mw¢y.m_. XI—HC 78 WW (W) WWW ‘ x \ WW1¥WW %§mm wmm mmm 3 § 13/1 and Ex.- P/1 Atother l P/2) on the body of Alka ‘: vomiting of Alka Bai un w ’anchas and prepamd inquest (Ex.- Bai. He also lifted the remains of Ex.P/3. Site Plan (Ex.P/5) was Body of Alka Bai was sent for i postmortem examinatio the Community imalth Centre, 14mm“ under Ex.P/7, whem Dr. Rx. Agmwal, (PW-3) conducted the postmpltem and opin d that the gause of death asphyxia due to some s spected poisoning. Viscera were pi%se1ved and handed over the Police for getting it examined. The postmodern report wa prepared under (EXP/8)., Lata Baj was examined and no in was found onkher body. Accused - Raj Knmar was also medic y examined, no injury was found on his body and report (Ex-P] 12) was prepared. On the request of S.H.O., Police Sfation, L Dr. R.K.. Agrawal (PW-l3) gave report that viscera of Alka ai and twins foetuses ale preserved and there is a case of s spected poisoning. The age of the foetuses wexe about 6—7 m nths. He gave his report (Ex—Pl 14). Dming the police custody, d prepared by HaTka Pat V Was »a a memorandum (Ex.P/ 15), container was seized co Phosphate (Sulphas) under sent for chemical examin §agar nom where report (Ex report, in the viscera of Alk; seized at the instance of ccused/appellant — Rajkumar gave in pursuance of that, one plastic taining 8 tablets of Aluminum Ex.P[ 16 . The seized articles‘were n to Forensic Science Laboratory, .-P/ 27)‘was received. As per the said a Bai, tablets of sulphas, which were the accused] appellant, as also the r . n j o ‘ 'o a \\ \ WW,W,W q A, é k1 mm 1:1 200 mm (W) WWW mania m \ I; icimnm stantial evidence. As bonvict ‘ an accused based on WW ’1§@W %aw‘f%ma11%$r r the settled law, in order to e circumstantial evidence, the 1Hon'b1e Apex Court in the matt of Sharad Birdhichand Sarda ‘vs. state of Maharashtra. Al ~. 1 ‘ \ 1984 S C. 1622 held that the followmg cond1t10ns must be fulmled befom a case agamst an accused based on cucumstanual ev1dence can be sald to be fully ‘ egtfabh'shed ; to be proved only when them is A case can be saic‘. convicted on pme moral 4 V <59— 3/2007 —30,000. certain and explicit evidence and no pexson can be conviction. 1. the circumste noes nom ifvhich the conclusion of guilt is to be drawn should be fully ‘ established. The circumstances concerned « ‘must or should’ and not ‘may be’ established. 2. the facts so estabJished should be consistent only with the hypothesis‘of the guilt of the accused, that is to say, they should not be explainable In any other hypothesis except that the acc ed is guilty. 3. the circums ces should be of a conclusive nature and ndency 4. they shoul exclude evely possible hypothesis except the one to be proved, and 5. there must be a 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 tae act must have been done by the accused. mmm- Q WWW wm $afmm ass, the pmsecuh‘onTaas tried to cn’me in question on the following In/Ihe yresent c1 connect the accused with the cimnmstances : mar had also accompanied her to 11). When Dr. Minj and Snehlata now being advanced stage of pregnancy, it is not possible to abort the child, she threatened the accused mat she will co vene a Panchayat and will disclose this fact before the Pancha . The accused in tuln thieatened her that he will not leave her alive if she disclosed it. Fixst Circumstance tance is concemed, in the mt -1) ‘and Panchmm (PW-5) have stated that on 21.10.2000, Alka Bai had died. When Saidha The accused -— Raj Ku meet Snehlata Pandey (PW- Pandey apprised .Alka Bai As far as this cir instance, Sardha Yadav’ t s ( y t c 1. That Alka Bai diéd on account of administration of poison i.e. A1 ' um Phosphate (Suiphas). 2. Deceased - a Bai‘ had made oral dying V: declaxan'on. ‘ 3.- That 8 tablets Aluminum Phosphate (Suiphas) were seized at th instance of the accused. A 4. ” That accused — aj Knmar had physical relations ‘with Alka Bai, s a result of which, she became and he at the advanced stage of piegnant piegnancy appro ched Dr. (Smt.) M.’I‘. Minj (PW-9) and Snehlata Pandey (PW— 1 1) for abortion. X1-HC—78 éi W m é Iq’ZéV “i 200 mlm (W) m$§ g mmm ' 4. mm§§m Yadav came tolmow aboq‘t the ill—health of Alka Bai, he went near her house, whem 2-4 persons were standing, he saw that Alka Bai was wn‘thing in pain and she was saying to him to save mam her as to what had happened to Lata Bai has given some poison ‘ r dlsclosed that Rajknmar @ ‘ uKashImm had phys1cal re atlons w1th her, therefore, she has become pregnant and she led on the spot. Shn Bhazrav Prasad Mlshra Head Constab‘iq (PW- 10) stated that on 21/ 10/2000 he went to village —. Kotri for investigation in connecnon With Merg No.44] 2000 of Alka Bai. On that day, he collected the remains of vomiting of Alka Bai nom the place'of occurrence under Ex.P/3 and thereafter, the body of Alka Bai was sent for posunortem Health Centre, Lormi. PW— on 22.10.2000, in the evenj body of Alka Bai, viscera examination. There were in the womb of Alka Bai 1 her, on which, he enquired her and she disclosed t mmed w1th Jaggery She has under Ex.P/7 ito the Community 3 — Dr.R.K. Agrawal has stated that ng, he conducted postmortem on the ere preserved and sent for chemical '_ s d account of consumption of Olson Investigating O$cer, A SI Naxendra Pujan (PW 12) has also stated that the s articles were sent for Chemical examination under EX P/2 and Ex P/26 to Forensic Solence Laboratory, Sagar horn wh re report (Ex -P/ 27) was received A perusal of the FSL rep foetuses aged about 6 -7 months as per his opinion, she died on reveals that 1n the Viscera and h‘ t e ” ' e’ d \ o ’ Wm @ WW, Wm,W . ........Q/AaeV/Oj w 200 Wm (W) mmm' g vomiting 'of Alka Bai, the < (Sulpahs) was present. There Wm%’wm §Nfhsni§1 ,ontents of Aluminum Phosphate ‘ f01e, 1n ~ View - of the above ewdence, - it is established that Alka Ba} had died on account of poisoning. 'k second Circumstan ce n So far as this cimums tance is concerned, PW-l -Saniha ~Yadav has stated that on $902000, when he came to know ai, he wenfto her house and saw 2- lka Bai was writhing/in pain. Alka her. On enquily, she stated that .. hg' mixed with jaggery. She further Lj Kumar @ Kashumn had physical Islau'ons with her, on acco about the ill-health of Alka B: ,4 persons.sfanding them. A Bai was saying him to save Lata Bai has given somethi statsd that fhc accused — Ra of which, she became pregnant. PW-5 —- Panchram has c0 bomted the above evidence of Sardha Yadav and stated that Alka Bai made oral dying declaxation regalding her th that Lata Bai had given her something mixed with jag 1y. PW—2 —- Kheeruram has also stated that Alka Bai made ml dying declaration that Lata Bai ‘has given to her something mixed with jaggery. PW-6- Rajjulal even though has been i examined regarding oral dying _ declaration, but he has not upported the prosecution. In View of the evidenc of these witnesses, administration t a ‘ s. {prosccution has examined Puja‘n' (PW—12). Pw-4 — mop Das has stated in his examination-in-chief that n enquity mm Raj Kmnar, he (iisclos'ed f0 the police that the tablets have been kept in the sugamane held under a tie in a plastic container. ,The Police " alongwith the accused went to the said place, whem, Raj Kumar brought the plastic co and gave it to the police, which was seized. Memorandum ( x.P/_15) and seizure (EX.P/ 16) bears his signature, but in the c ss-examination he has stated that only 5 persons i.e. he ngvv'ith S.H.O., Head Constable, Panchmm and Manglu went to the held, where 4-5 trees t say how many 1rees were there. e say that the police persons brought the plastic container in the village, where the papers re written and that was not read. over to him. He further s ted that the S.H.O. read over the same to him, but now, he is not in a posin‘on to tell what he read. In cross—examination of this Witness, he has categorically were standing, but he ‘The trees were standing on Bai was administered with Amnin‘nm Phosphate (Sulphas ) and she dicd on account of poisoning. Third circumstance As far as this circumstance is concerned, 8 tablets of Aluminnm Phosphate (Sulp as) contained in plastic container, were seized at the instan e of the accused?appellant. The mop Das (PW—4) and Narendm Medh in the held. It is correct to a a n r o S o c e 3W m‘raa, m,W W m Q".:..&m‘..:....%§‘.€1.7[§.w3“ 200 mm (Watt) m?§aé§if m mmm‘ )O WW§§¢W aaeimm is no clear or dfec? evitfence Ito brought by th¢ police. There show that in fact, the accu‘Eed/ appellant went to tho place as concealed or he pointed out the container was seized by the police, ling recoveiy of plastic container at ppellant is not established 2r, A.S.l. Nai‘endra Pujaxi (PW—12) )OO, he made enquily nom the randum Ex.P/ 15, which bears his and between ‘C’ to ‘C’ signature of Raj Kumar was taken. He seizedthe plastic container containing Aluminum Phosphate (Sulphas), which is.‘.Ex.-P/ 16. The above evidence of Narendxa Pujari does not satisfy the requirement of Section 27 of the Evidence Act because he has not clearly stated that what information mganiling place and plastic container was given by the accused to him. Where the plastic container w placc and at his instance the therefore, the evidence regarc the instance of the accused/a u f The Investigating O$c‘ has ‘statai that on i24.10.2« accused and prepared Memo signature hetween ‘B’ to ‘B’ He has further not stated that in fact, the place nom whexe the plastic container was seized was pointed out by the accused, therefore, this recovery cannot be held to be made at the instance of the accused. On the contrary, this Investigating O$cer has the plastic container, but he brought the said container ' no independent witnesses at theinstance of the accused/appellant, therefore, the whole stated that the accused produced has not stated that &om Where he d produced before him. There is aiding memorandum and recovery WWW, Wm,W W m &’ A2ékjom 3 200 3mm (WW) XI-HC—~78 1W m OL A. (L@103m 200 warm (13W) WWW “1 ‘ioetus, she threatened the cused that she will convene a 1 panchayat and will disclose thxeatened her that if she is oing to tell his name, he will not i WWWIWW awimm c s name, upon which, the accused l not adduced any evidence to s the poison was given by administexed the poison t ‘ a leave her alive. From the above discus ions of point Nos.1, 2 85 3, it is i clear that the prosecution establish that (i) accused wa in possession of poison (ii) that to Lam Bai and Lata Bai Bai at the instance of the a ‘acc‘used, bec'ause as per the \ecision of the Apex Court in the :xmatter of Sharad Bixdhich d Sarda Su ra to connect the accused with the crime on th basis of adminisnation of poison, the prosecution is xequhed to stablish that (1) there is a clear mo ve for an accused to administer s 'ed of poison said to have been administered. (3) that the accused had the poison in his possession. (4) that he had an opportunity to administer the poison to the deceased. poison to the decea (2) that the deceased On the basis of foregomg discussions, it is established that Alka Bai died on account of adminisuation of poison. Even the accused had the mon've, because when Snehlata refused for aborh'on of Alka Bai saying ‘hat being the advanced stage of o \ g9 mw,m,m m m éa/r} .....2, (mi/0% 200‘ g 3mm (W) mmm )3 m$§i§fm w 1: pregnancy, iris not possible #0 aboxt thc faotus, Alka Bai said to the accused that she will convene a Panchayat and will expose / _ f \ the mlations fact with that him. she Thereaftr‘n‘, became lpregnant the accused on account threatened of physical her that if she is going to do it,’ he Will‘not leave her’ alive. But the prosecuu‘on has failed to elstablish other two points i.e. the 2 "‘ f accused had poison Vin his ssession and the prosecution has point that the accused had an failed {o establish this 4'3) £opportumLty to administer the poison. Therefore, in view of the foregoing reasons, the» prosecution has not been able to complete the chain of circumstances in onier to} establish the crime against the accused. The chain of the cimnmstance is not complete, because the prosecution hal not been able to establish that the accused was in possessi n of the poison ie. Aluminum Phosphate (Sulphas), that Irata who administered the Sulphas xed with jaggery to Alka Bai was at the instance of the ccuse themfore, we are ‘of the consideied opinion that the accused is entitled for bene ht of doubt as prosecution has not been abl to establish the cn‘me against the accused beyond e 'reasonable doubt. The judgent of th ' Court convicting and sentencing h acued/appe for commission of the oh‘ence under Sectios 302 and 328 I cannot be sustained. \ In the result, the an a1 succeeds. mi ad, m e te csllant n ofP \\ p 1 1 / "‘x1-Hc—‘7s W 3am m, ., @A ”as Wm 03 ./ wt 200 WWW )k/ mwiwm is acquitted of charges under ’C. He be set at liberty forthwith, if :, because as per the onier of the etention since 25.10.2000. L Sdl- Sunil Rumar Sinha Judge WW The accused] appellant Sections 302 and 328 ofthe If not required in any other ca51 -trial Court, the accused is in d Sdl- 1'; L.C.BHADOO Judge 7W.“ AN, mum (W)