'3^ ^q|<qi^^, ?S>T{1'yJI(S, fs)<7'>l^^< ^.A ^ Ul] /o5 ^Wvi\ sbNlcb'"""""""""""""""""""""''"""""^ 200 31T^?T 1CT3TO ( lllc<^<^) ^T^F^T R^ich ^^T^^TT^T $h^li<=h ?^?w:'nf^r w^r SB: HON?BLE AND HON*BLB »HPJT.P. SHAltMA, JJ. APPBLLAMT (m JAIL) RESPONDBNT 15-5-^UUS Han| Raiiladhia Distjfc VERSUS Sf-at^ of Chhattisgaiii Shri Anaiid Paiidey, Advo^ Shri Akhil Mishra, Paael Tliis crmiuial appeal is coiiviction aiid order of sentenci 79/2001 whereby leaiiied 9th coiivicted tlie appellaiit under hiiu to iindergo unprisonment defaxilt ofpayment offine, to 2. Case of tlie prosecutionj cM^f<n<4lTi 'RR^rf ^r f^st {Fsi^K ^3TRfH3:IT^T Lal, aged aboiit 53 years, S/o Sahu, R/o Kinia, P,S. Newa, Raipur (CG) fcate for the appellaiit. II/alx7\rer, for the state. directed against tlie jzidgment of dated 21-7-2003 passed m S.T. No. A^iditional Sessions Judge, Haipur has tSection 302 of i,P.C, aiid sentenced for life witli fiiie of Rs. 500/- aiid iii futther iindergo R.I. for six months. ui brief, is fliat the appellaiit was uiisatisfied witli the partitioii <^fiected by his fatlier Rainadhiii aad because of tiiis aniiaus, he coijispired witli Puhuplal to munler hnn aiid brotlier Deendayal, He pur^ fatlier Ram.adhiii (P.W. 1) and| repUed tliat bring the liqzior ^ back. At 7.00 iii tlie eveiiiiigj liquor. The bottle was already <j ^hased English Mquor aiid went to his asked hiiii tliat his son-in-law is to coiiie in Uie eveniiig, he has se|it. the liquor, keep it. Wheii his father 7hen his son-m-iaw comes, he went he agaiii retunied with a bottle of )pened. He mrtlier stated that he has GRPRJ- ~3:S^ ^WW^, yiTfl^^KS, fsl^>iy^< ^INdl sb^Jch "^ 200 3n^?r ^^K (<ic<^<^) ^n^T.^T R-ii^ TT^T3TT^T ^qj^ ^TT^Trf^T^T^T ah'eady taken sonie Uquor from| rest aiid consziiae it wifli De^l cr>i^<fll ^w^K ^ 'ft^ ipsi^K '^3TRW3^T Deendayal (deceasd), he told hu^. mat Harilal has left bottle ofiiciiior aiicl tliereafter Deendayal con fhe liquor, Deendayal imiaed Ramadhiii asked hiia to go and Uie bottle and he should keep tlie ;ndayal aad mother. Ou retuni of mmed one peg aiid unmediately shouted "don't take flie liquor, itt is too bittera? whereiipon he spitted liately became deepfy mtoxicateci. b$ee the condition of his brother as he had also consumed the above li^iior and while he was gouig towards tiie cloor, he was staggeriiig. R^ tlie deceased Anupa aiid Lakh^ his room. He was taken to M| comiag ozit from his moiitii. Laiadhiii with tlie help of the wtfe of ii, son of Haiilal took the deceased to ssion Hospital, Tilda. FToUi started [ter 011, when he eiiquired about the appellaiit, he leanit Uiat tlie ap^eUaiit aiicl Puhuplal had absconded. However Deendayal died on lj5-1-2001 at about 8.30 P.M. Merg iiitiniation was given by v|llage Kotwar, After receiviiig tiie uiformation, merg enquiiy wAs conducted by S,H,0. Satyendra Pandey (P.W. 15) who lodged ti^ 21.30 hrs aft.er merg enquiry, 3. Duriiig enquiiy, uiquest preparccl vicle Ex. P-2. Dead l^ A.A. Siddiqui (P.W. 13) conductj Ex, P-12. Viscera of the deceasl The botfle of Uquor, cup wim| L—IY- .e repoit of Ex. P-17 on 16-1-2001 at ^jver the person of the deceased was |ody was sent for antopsy where Dr. ^d post morteBi and gave his report of fcd was sent for cheiBical examtiiation. Mquor aiid the steel cup wiUi liquor GRPRJ- 7S5T ^t'410^, ^Tfl'M41<o, fs|<ri>l^^< ^IMdl 'gTq^--" ••••-•"•••••••••—••. .^ 200 3Ti^?r T^w (4c(f^<yr) ^? -^T^Tj^T^rtcF ^iTW^T ^TTRR- ^TTW^fi'H^n^T seized from the place of o< examiiiation to FSL vide Ex. -18 4. After uivestigation, chai^ Judicial Magistrate First Class, case to tlie Sessions Jzidge frojju Judge received Uie same on tia4sfer 5. Diiiliig trial, the proseci tliereafter tlie statenient ofacci Uie evidence appearing agains pleaded innoceuce aiid false mii 6. The question for consider (i) whetlier tlie deceased poison'? (ti) If yes, whetlier he wa| appellaiit with aii mteuti^u 7. The bottle of liqiior of br^ filled with liqiior like Ucjuid, aii< like liquicl were seized vicle Ex. conductuig post mortem observje extenial injuiy, His brahimeml^ was also congested. Respu'at^n5 <yl<fltl TTR^f ^* Fs^l <ps1^1< ^3TRPT3^T tciuTence were sent for chemical aiidUieTeportofF.S.L. is Ex. P-20. sheet was med iii fhe Court of Raipiir who iii tum comimtted tlie where leanied Additional Sessions for trial. ition examiiied 15 witoesses m. atl, sed was recorded ui which he denied hiBi ui the prosecutiou case aiid ^lication, ition before tliis Coiirt.is :- died as a reszilt of admm.istrat.ion of adniuiistered poisou by tlie present to cause his death ? ncl AfHe Man Fuie Whisicr?, a ciip half other steei cup haif fillecl with Uquor P-7. Dr. A.A, Siddiqui (P.W. 13) aiter ?d that the deceased did uot have aay raiie aad braia were congested, Heart ti'ack was also congested, Blood GRPRJ—J '3^ •^i'41^^1, ^>x{i<-!^<S, R|<?I>!^^< ^ Y MWv{[ (h^Jcb' •^ 200 3ff^T ^^ (^\^^) ^n^T^Tf^ToF 'SFHW ^iT^^H^^T mbced froth was present iii tlie were healthy, congested, fhoug|i was present ui the heart chaBilber was congested. He furtlier opia^ adinuiistration of poison. Viscer^ sent for chemical exainuiation ^i cups, from the place of occur dated 27th March, 2001 has coi aiid Potassium Cyaaide ia liqu<j Ex. 'C' aiid Viscera contaiaed evidence oftlie Dr. A.A, Sicidiqiiji it is estabUshed that tiie adnmiistration of Potassium. Alcohol. 8. Leaiiied cozinsel for the CM^f<rt<fll 'RFT^f ^f ft^ 'tf^^R '^sfRwaT^r t'espiratoiy track. Bofh tlie chaiiibers slight sweUing was present, blood t>er, nails were cyaaosed aacl viscera |id caiise of deatli as asphyxia due to preserved ui Uvo sealed bottles were loiig with the botUe of liquor aiid two ^ence. The reportofF.S.L. Ex. P-20 lifirmed the prcsence of EtJiyl Alcohol Tbottle Ex. 'A\ cupEx. "B', steel cup n Ex. -'D? aiid Ex. 'E'. Thiis from tlie (P.W. 13) aiid from tlie F.S.L. report, deceased Deendayal died due to Cyaiiide poison mixed with Ethyl .ppellaiit ai'giied that ia the matter of deatli due to poisou, the pro^ecution is rec]uu'ed to establish the followiag cu:cumstances which yone caii justi^7 conviction :- (i) Tliere is a clear poison to the dece^ diotive for the accused to admiaister ^sed; (ii) That the decease^ admiiiistered; diecl of poison said to have beeii (iii) That the accused liaci the poison m liis i3ossession; aiid GRPRJ—F 3^?T ^||<4)0^, ^>Tl1'yll<S, fsf01'M^< ^W<^\ 5b41cb' •^ 200 an^ x^r^ (^f^^) a^r^ft^ H^T^TT^T $h^i<=h ?^nw ^rf^T 3:n^r (iv) That he had axi op^ tlie deceased, In the iiistaat case, the convi^ evidence of P,W. 1 Rainadhiii, fat{ Anupa Safau, wife of tlie deceas^ witness of meetmg wliich was h^ in the said ineetuig, the appeU.4 hold ofthe coUar ofhis fafher fot received by huu aiter his retir^ motive. 9. It was ai'guect tliat Uie ^ before tlie preseut mcideut aiid appellaiit is farfetched aiid th(^ appellaiit for murdeiTiig his o^ menibers. He fiirtlier argiied Ramaclhui, his father aiid P.^ CM^4ii TTR^f^ ft1^ <r^^i< i:)'3TRFT37T^T ortxinity to admuiister tlie poison to i^tion of Uie appellant is based on fatpier of Uie appeUaiit aiid P.W. 2 Smt $4d. P.W, 5 Rijheram Saliu who is the |lld two yeai's beforc tlie iiicident. aiicl l^iit was charged that he had caught )|r not affectiiig partition of tlie money ameiit and tlius he is a witaess of lUegeci iiiciaent occuiTeci t^vo years Flierefore, tlie Giotive attribiited to tlie saine cannot be a motive for the 7n brotlier, father aiid ofher fainily deceased is highly iinnamral 411€t mlProbal:)le' P.W/2 Smt Aiiupa Saliu has deposed in paragraplij cn this account for tlie last oil favoured her husban.d, the app^ that tlie veiBion given by P.W, 1 , 2 Smt. Anupa Saliu, wife of the 6 that tliere was a dispute between tlie appeUaiit aiid her husbaiip. ui connection wifh pailition as the appeUaiit was not satisfiecl wifiji the partition. They were quaiTeling year. They were not in the taikiiig teiTiis aiid they did not visit h^use of each otlier, Suice RaBiadhui llaiit did not talk to hiei also aiid did GRPRJ ^?^^^^ J^..-"^ ^-C7C| ^WW^, t$Tfi'M4Ko, fs|<?i)iy^< ^>€. ^l^dl ^^R"--••—••••••"••— •—•••^ 200 3iT^?T X15R7 (^f^^) ^?T^T^i+ ^SH^TT?^ ^qr^ ^^<tl^R <M^a ^n^r appe4aiit iiot visit the house of Raoiadhui. beUeved, iii that case, tlie bottle of liquor aiid asked tliem | highly iinprobable aiid uiinatu report, tlie Uquor contaiiied there is evidence available 011 ret RaBiadhin aud his wife also bottle aiid there is no evidence affect 011 these Uwo persons as hospitalized or treated, Therefor^ is wholly luireliable aiicl cont evidence. 10. On the otlier haiid, leaiiiet impiigned judgment. 11. We have hearcl leanied cni^?<rt<i)i *ij^<riT ^ ^S <pji^|< ^3fRTH3TI^T ! If Uie version of tliis witiiess is to be visited fheir hoiise twice with a |to consume tliesame, appears to be |ral. Even otherwise, as per F.S.L. C^aiiide, a deadly poisou and 'oixl th.at not only flie deceased, but the saine liquor of tlie saine |that tlie poisonous Mqzior had aiiy Ithere is no evidence Uiat tliey were L the evicleuce oftliese two witnesses ^ictiou caiinot be based on tlieir PoNssium coilsuined perused the record of the trial C^iirt as aiso tlie impugned judgmeiit, 12* Relyuig upon fhe version Anupa Saliu aiid fiirtlier appeUaiit aiid Uie deceased aiic| doct-or has opined tliat fhe Mquor brought by the appella^it appellaiit. 1 counsel for the State supported tlie counsel for the parties. We have of P.W. 1 Ramadhm aiid P.W. 2 Smt. that relationship between fhe his father was not ainicable aiid tlie died of consuming poisonous it, the trial Coiirt has convicted flie consi^leiing de^eased GRPRJ-- ^ser <^i<<i0<q, y>Tfiy<i^, fsf^iy^ NWdl tbNlcb" WI, 200 ^afi ^^K (ycii^^) ^n^Tj^r R'licb WT 3?^T '$r>*iw ^IW^f^FT 3?TT^T cni<if<n<ilti 'HFRff ^f fe^[)"rf^5R ^^fRpT^n^r 3. The Hon^ble Suprcme Cj irdhicfaasad Sarda ~v- State ^ mrder by poison or siucide 1~| idgnienttlius:- "'So far as this matter is c4 must carefully scaii tlie importaiit circumstances coiiviction:- burt iii the matter of Sfearad f Maha|rasfatra1 while considermg as held iii paragraph 165 of tlie >Hceme<;i, ui such cases the Court svideuce aiid determiiie tlie four which alone caii justify a (i) there is a clear mo^ive for aa accTised to administer poison to fhe deceas^d, (ii) That, tlie deceased ^iied of poison said to have been admuiistered, (ui) That the accused ha^ (iv) That he had aii opp<| tlie deceased. 14. In the matter of Bhupind^ the poison in his possession, >rtunity to admiiiister the poison to Honl3le Apex Courf has doubtec] cu'cuinstaiice as necessarv" to| ] (1984) 4SCC 11.5 2 (1988) 3 SCC 513 lr 8iag!i -v- State of Puaiab 2, the the availabilitv of flie above third estabiish the case of miirder by ^ii^^i^ ^NN ;00. 75^ ^TPTT^T, ?$T{I<I<I<S, lsi^iy^< W^v{[ *Nlch' ^L 200 3ff^?r 'q^^ (^cif^^) ^iT^rj^rRl^icb WT 3H??T )1 's^nw ^rf^f 3:n^r poisoniiig. Pai'agraphs 25 ai' reprodziced hereunder:- prosecutjpn "25. We do not consicler failure of the witli the accused. Murd' under tlie cover mid cl< poison to another 111 thi admiiiisters poison to an< of it for fhe Investigatini person who coininits suc} eUmuiate and destroy fh^ it. woulct De im.possiDle to| of poison with tlie accu estabUsh' other circTiml hypothesis of tlie guilt oj not be justified iii acquij the prosecution has fai^ witli the accused, 26, The poison niurd^: i-ule of cu'cumstaiitial maiiy facts ancl circiim^ justified ia dx^wiiig in possession of tlie poji cr»i<if<n<il-i *iM<iT'^f^rll ipsS^K '^^fRpT^n^r |d 26 of tlie above judgment are jtliaf there should be acquittal or Uie to prove the possession of poison ^r by poisoxi is invariable committed }ok. ol secrecy. Nobody will admiiiister presence of others. The person who >ther io. secrecy will nof keep a portion Officer to come aad collect it. The murcier would naturally taise cai'e to evidence agamst hmi. In such cases, Uie prosecution to prove possession $ed. The prosecution may, however, rtaiices consistent oniy with the the accuseci. The Coiirt. then would tiiig the accused 011 the groiind that 3d to prove possession of the poison cases are not to be put outsicie tlie ^vidence, There may be obvioiis veiy .taiices oiit ofwhich the Court may be pen(aissible iiiference that me accusecl was 3011 iii question. There may be ven' i>ll^'=^^ ^t7T H ^^n^Tj^T R^icb WT 311^¥T sb^Jcb :3:5?T ^TPn^T, ^xll^l^, fa^iy^ NWdl sbNlcb' WI, 200 3IT^?r -q^R (^rf^^T) ?;Rim^f^r3n^r cr»i<iF<n<Ili *iH<viY'^f fe<<3 <n>{^|< RPT^I^I maiiy facts aiid circun^staiices proved agaiast the acciised which may call for tacit ^sszimptton ofthe factiini ofpossession of poison with the aq possession of ]»isonwifji tlie acciised iiivariabiy in eveiy case is neither desirable i| iiitroduce aii extraiieousl by the leaimed counsel f<| of aiurder by poisonuig j exenipted from. saiictio| Murder by poisoniiig i^ 'iised, The uisistence on proof of or practicable. !t woiild mean to uigrcdient to the offesice of murder by poisoniug, We caiinot, ipierefore, accept the contention urged )r the appellaat. The accusecl iii a case |caiinot have a better chaiice of being \is thaii iii other kinds of miirders. ? niu like aiiy oUier murder. In cases where dependence is wgioUy on circumstautial evidence, aiicl du'ect evidence not beui g available, flie Court caii legitmiately draw from Uie cu'cuinst^iices aii iiiference on auy matter one way or tlie other/" 15. We propose to 1 prosecution ui tlie light of 1 Hon'F'ble Suprcnie Couit ti:i tli^ le tlie oral evidence addiiced by the [lie piinciples of law laid down by the matter of Sharad Bsrdhicliand Sarda1 aiicl Bhiiplnder to ascjertaiii vdietlier iii tlie prcsent case the above miportaiit cu'ciimstaiic^s have been established or not. (Ij Comssag to the questiQ] ttte aeciised to adsaiisslj [i whether there ss a motsve for iter poison to the deeeased ? ^tl^l<^1^ ^. /),GOO. XI-pC—78 10 f^ • '^^VT- ^-^^^:^ 37T^T ^T f<Tli<=b ^T^T 'STI^T 5b^i°b Y 3=5£T^IHI^, ^ixQ^^Ko, (s|<?')l^^< ^Wv\\ *NI<*» '•^ 200 3n^?T X|3T^ (4^^<^) '^TTW^Tf^T 3?IT^T The case of tlie fhat the appellaiit was he did not elTect partitlon retirement. From the evi|c above dispute was iakel when tlie meetmg was there is evideuce availabl wife of me deceased tlia^ fatlier Raiiiadhiii were snatched total social r< considerecl opinion that conimittiiig the. olfeuce is Uiat the appellaiit would his father, mother aiid ev| the prosecutiou has faile|d commission ofthe above pr^secution (II) Wetlsey the accul whetiier the aceiised to the deeeased.'? In the present a RaBiadhiii aad his daui appellaiit brought bottle tihere is no evidence that obl^{d^1T1 ^l^l<yff ^fe^ <Fai^i< ^^tRm^Ti^T as alreadv iiarrated hereiiiabove is i4iisatisfied witli tlie conduct ofhis fatlier as of money which he received after his ^lence of P.W. 5 Ryheraiii, we fiiid that Uie P. up some two yeai's before the iiicident, for the above purpose aud thereafter le on record iii the form of statement of tlie the appeilaiit and the deceased as also his |not m tlie talking terms aiid tiiey had dationship aiid, therefore, we are of the |the motive attributed to the appellaiit for too farfetched aiid it does not appeal to us Iresort to admuiister poison to Uie deceased, ?n son-ui-law ancl we are of tlie opinioii tliat to iiupzite clear niotive to the acciised for 'rime beyond reasonabie doubt. tu|^ed had poisosi m isis aad fa^d opportiissity to admiaister tlie polsoB ^se, except tlie oral evidence of P.W. 1 thter-in-law P.W. 2 Aniipa Sahu that the ^f liqiior aiid gave it to them for consziBiiag, |the appellaat. purchased the said bottle from ^I-fl&-78 11 \ 3TT^T^T R'licb T[^T 3TR?T 5b^lct» 3^q- ^fl^l^, ^>T{|'MII(o, (st^l^y Nl^ldl 9b^ll^ "•^ 200 3H^?T XRT^ (4^r^<^T) ^CTW^f^T^I^T any iiquor shop or that iii tlie liqiior with iiiten others. 16. Now comuig to t| witnesses, we are takei^ detail by the counsel for| witoesses have also st4 mother of fhe dec| Biidhiyaiiabai has not because of consiimptioi^ her husbaiid RaBiadhiii poison. it is highly 11113 deceased was wanied by poison iii the liqiior axid Uie flrst sip of Uqzior an consume the Uquor as spitted the Uquor as poisoiiiiig whereas 110 d/< For the aioresaid reason, P.W. 1 Ramadhin aiidP.' 17. Suice accorduig t^ liquor was given by the the hotise, it cannot be chl^fd^l^ ^HdT '^\fex^ <Pn^i< '^stRw^TT^T ie also procurecl poison for mixiag me same on to cause the death of the deceased aiid le reUabiIity of tlie evidence of Uiese two to tlie evidence of tliese two witaesses in |the appellaiit aiicl we observe that me a^bove fced that tlie Uquor was consunied by tlie ^ased namely Budhiyariiibai, however been examiaed. There is 110 evidence that of the poisonous liquor, BzidhiyaiTiibai or |developed aiiy symptonis of coiisuniption of latural and miprobable that even after tlie |his wife Uiat the appellaiit might have mixed Itlierefore he shoiild uot consiime it, he took |d ii2imediately shouted at his father not to fhe saaie is too bitter, he must have also R|amadiiui did, however Deeudaygl died of ^mage was cloiie to his mother or his faflier. |we ai'e uiiable to accept the version given by ^. 2 Aniipa Saliii, the case of tlie proseciition, the botf.ie of ^pellaiit to Raiaadliia aiid thereafter he left s^id that tlie appeilant aloiie had opportunity tXI4IC—78 37T^T ^T fqiicft TT8ff3TT^T 5h^lict? /•• p/ 12 3^q- ^ji^i^, ^>Tfl'M<i<o, (cx^i-y^ ^) Nl^tdl ^hw^ "^ 200 3^?r xnw (4^flc<<^) '^nw^n^TT^T to admiiiister the poisonc|i ser^ed to the deceased aft( are of the coiisidered opi?|iion iii relyiiig upon the test.m4ony for reachiiig to tlie coiiclu| given by tlie appeUaiit deceased aiid who clied aflt the opuiiou that tlie Coiitl doubt to tlie appellaiit. aflpeal 18. In the resiilt, the under Section 302 of l.P.i that section ai'e set aside.l set at Uberty forthwitii if nbt Sd/- Dhirendra Mishra Judge <=hl4fd^T1 'RFT^f '^,feT^t <F»l^l< ^r ^tRFf ^q^T is liquor particiilaiiy when the Uquor was 'r some time ia his absence, therefore, we tliat the Coiirt below was not justified ofP.W. 1 Raniadhui and P.W.2 Anupa don that Uie poisouous Uquor was, ia fact, o Ramadhiii who iii tzini gave it to the :er consuinption of the saiue aiid we ai'e of below oiight fo have exteuded beiiefit of is allowed, Conviction ofthe appellajit ;. aiici sentence iraposed upon hioi iinder He is acquitted ofthe above chai'ge, He be required iii aiiy other case. Sd/- T.P. Sharma Judge