APPELLANT: (In Jail) HIGH CQURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.101 of 2006 Smt. Shyam Bai, W/o Dhansai Uraon, aged 45 years, Occupation Housewife, R/o Village Kotaktal, Police Station Patna, Distt. Koria RESPONDENT: Versus State of Chhattisgarh Through Police Station , Patna Distt. Koria(C.G.) {Appeal under Section 374 (2) ofthe Code of Criminal Procedure} Present: Mr. J.A. Lohani, counsel forthe appellant. Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. DivisionBench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar. JJ. ORALJUDGIVIENT (28-6-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 23-9-2004 passed by the Additional Sessions Judge, Baikunlhpur in Sessions Trial No.60/2004, whereby & whereunder learned AdditionalSessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of. Shivlal & ManiyarQ Bai by administering poison andattemptto commit murder of Jagesia, convicted the appellant under Sections 302, 302 & 307 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for three months, to undergp imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for three months and to undergo Rl fpr ten years & pay fineof Rs.1,000/-, in default of payment of fine to furtherundergo Rl forthree months, respectively. 2. Conviction is impugned on the ground thatwithout any iotalof evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. r :-^ ^ .^ ••y fwi.^' : VI 3. As per case of the prosecution, on 2-12-2003 at about 8 a.m. on account of sterilization (bandhyakaran) of bulloek of the appellant, the appellant was celebrating a function and provided kosna, a kind of intoxicated liquor, to Shivlal (since deceased), Maniyaro Bai (since deceased), Jagesia, Tejman and others persons, but at the time of providing kosna, the appellant administered poison (oleander seeds powder) in the liquor of Maniyaro Bai, Shivlal, Jagesia & Tejman. Shivlal & Jagesia consumed liquor/tosna. Jagesia Bai (PW-9) consumed small quantity ofliquor and on account of bad taste, she thrown remaining part of liquor and she became unconscious. Shivlal & Maniyaro Bai after consuming liquor had vomited and finally they died. Dehatinalsi was lodged vide Ex.P-21, FIR was lodged vide Ex.P-22 and merg was recorded vide Exs.P-13 & P-14. Injured persons were sentfor medical examination. After summoning the witnesses vide Exs.P-6 & P-7, inquest over the dead bodies of Shivlal & Maniyaro Bai were prepared vide Exs.P-8 & P-9. Their dead bodies were sent for autopsy to Government Hospital, Patna. Dr. A.K. Sharma (PW-5) conducted autopsy vide Exs.P-4 & P-5 He noticed congestion of internal parts and suspected cause of death as poisoning of oleander seeds. He preserved visceras of both the deceased and same have beenseized videEx.P-1. During the course of investigation, an earthen pot and alleged kosna w^re seized vide Ex.P-10. Spot maps were prepared vide Exs.P-15 & P-16. Small piece of stone, one steel glass and one steel bowl (/<ator/) were seized vide Ex.P-18. Oleander seeds were seized vide Ex.P-19, from the appellant. Vomit of Shivlal was seized vide Ex.P-20. Seized articles were sent for chemical examination vide Ex.P-24 and presence of oleander seeds i.e. poison in viscera of deceased persons Shivlal & Maniyaro Bai and vomit of Shivlal was confirmed vide Ex.P-26. • 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Baikunthpur who cdmmitted the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge received the case'on transfer for trial. 5. In order to prove the guilt of the accused/appellant, th6 prosecution has examined as many as sixteen witnesses. The accused/appellant was examined under Section 313 of the CrPC in which she denied the Itiil —:4 circumstances appearing against her, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Jydge, convicted and sentenced the appellant as aforementioned. 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 although this is case of murder of two persons and attempt to commit murder of one person that too by poison, but in order to convict a person for administering poison, the prosecution is required to prove the following ingredients: - . (1) there is a clear motive for the accused to administer poison to the deceased, (2) thatthe deceased died ofpoison 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. In the present case, the prosecution has not proved aforesaid ingredients of the offence. In the circumstances, evidence of Jagesia Bai (PW-9) may be sufficient for suspicion that the appellant may have committed theoffence, but same is not sufficient for drawing definite conctusion that the appellant has committed aforesaid offence. In absence of credible and clinching evidence, the appellant is entitled for acquittal. 9. On the other hand, learned State counsel opposes the appeal and submits that conviction is based on evidence of Kumari Nirita (PW-3) before whom Maniyaro Bai & Shivlal have made dying dedaration and also on evidenceof Jagesia Bai (PW-9) - injured witness. Evidence of aforesaid witnesses inspire confidence, their evidence is trustworthy and safe to rely for conviction of the appellant. 10.1n orderto appreciate the arguments advanced on behalf ofthe parties, we have examined the evidence adduced on behalf of the prosecution. 11.1n the present case, homicidal death ofdeceased Shivlal & Maniyaro Bai as a result ofpoison has not been substantially disputed on behalfofthe appellant, even othecwise, it is established by evidence of Dr. A.K. Sharma (PW-5), autopsy reports Exs.P-4 & 5, seizure of viscera and viscera report Ex.P-26 which reveals that presence of oleander glycosides has been confirmed on visceras of deceased Shivlal & Maniyaro Bai and also on vomits of deceased Shivalal, that death of deceased Shivlal & Maniyaro Bai was homicidal in nature. 12.As regardscomplicity ofthe appellant in the crime in question, conviction of the appellantis substantially based on evidence ofJagesia Bai (PW-9) who has deposed in her evidence that on account of sterilization (bandhyakaran) of bullock of the appellant, the appellant was celebrating function and she provided kosna, a kind of intoxicant, to Shivlal, Maniyaro Bai & also to herself (this witness); Shivlal & Maniyaro Bai consumed kosna; at the time.of consuming kosna she (this witness) felt some uneasiness and bad taste then she thrown the rest part of tosna, thereafter, she started vomiting and became unconscious. Maniyaro Bai & Shivlal died as a result ofsuch intoxication. 13.Tejman (PW-10) - son of Shivlal (since deceased) has deposed that the appellant provided kosna to his father Shivlal and thereafter to him, kosna provided by the appellant to him (this witness) was sweet in taste, when his elder mother Maniyaro Bai was also drinking the kosna provided to her by the appellant, taste of such kosna was not good then she thrown away the said tosna. After consuming kosna, Shivlal and his elder mother came to house, they were vomiting, he was searching for vehjcle for shifting them to hospital and at the same time his father & elder mother died. He shifted his mother Jagesia Bai to hospital where she was treated. The appellant made extra judidal confession before this witness that she has administered kaner beej i.e. oleander seeds in the kosna provided to Shivlal, Maniyaro Bai & Jagesia Bai. 14.Kumari Nirita (PW-3) - daughter of Sukhlal, has deposed that Shivlal & Maniyaro Bai have made dying declaration before herthat the appellant has administered poison in tosna. Defence has cross-examined this witness at length, but has not been able to elicit anything in her cross- examination to discredit her testimony relating to the fact that deceased Shivlal & Maniyaro Bai have not made dying declaration before her. .Likewise, defence has not been able to elicit anything in the cross- examination of Tejman (PW-10) relating to extra judicial confession made by the appellant before him. •CT *ai*inm—n 15.As held by the Supreme Court in the matter of Sharad Birdhichand Sarda v. Stateof Maharashtra, (1984) 4 SCC 116, the prosecution is required to establish the following four important circumstances to convict an accused for cpmmission of murder by poisoning: - (1) there 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) thatthe accused had the poison in his possessipn, (4)that he hadan opportunity to administer the poison to the deceased. 16.1n the presentcase, the appellant has provided /<osna i.e. intoxicant to Shivlal, Maniyaro Bai & Jagesja Bai the taste of whichwas not good,but the tosna provided to Tejman (PW-10) was good which shows that the appellant has used^osna of different tastes viz., the tosna providedto Shivlal, Maniyaro Bai & Jagesia Bai was different and the tosna provided to Tejman was different. As a result of consumption of such kosna which is of bad taste, Shivlal, Maniyaro Bai & Jagesia Bai have become unconscious and finally Shivlal& Maniyaro Bai died. Presence of oleander seeds was confirmed vide Ex.P-261ti the visceras of Shivlal & Maniyaro Bai which shows that the appellant has used oleander seeds i.e. poison in the /(osna provided to Bhivlal & Maniyaro Bai and also in the /cosna provided to Jagesia Bai. This shows that the appellantwas having opportunity to administer such poison, she was in pbssession of such poison and she administered such poison. -p- 17.After appreciating the evidence available on record, learned Additional Sessions Judge convicted & sentenced, the appellant. On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment. IS.Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. ( R.L. Jhanwar Sd/- T.P. Sha^ma Judse Judge