HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.285 of 2003
Chingada alias Chamara
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Shri Alok Dewangan, counsel for the appellant
^ Shri Arun Sao, Govt. Advocate for the State/respondent
Honble Shri Dhirendra Mishra, Honble Shri R.N. Chandrakar, JJ.
Dated: 29/06/2010
: Judgement
J U D G M E N T
(Delivered on 29th June, 2010)
The following judgment of the Court was delivered by
Dhirendra Mishra, J.
1. The appellant has preferred this appeal against the
judgment of conviction and order of sentence dated 11th July,
2002 passed in S.T. No.271/2002 whereby learned 4th Additional
Sessions Judge (FTC), Bastar at Jagdalpur, after holding the
appellant guilty for committing murder of Sharad Chandra
Yadav, has convicted him under Section 302 of the IPC and
sentenced to undergo imprisonment for life and to pay a fine
of Rs.200/-, in default of payment of fine to further undergo
additional R.I. for 4 months.
2. The case of the prosecution, in brief, as projected in
the impugned judgment is that, on 5-2-2000 at about 9 pm the
appellant came with two bottles of liquor in the house of
Sharad Chandra. Both of them consumed liquor from one bottle.
When the deceased opened second bottle, the accused went away.
Deceased Sharad after consuming liquor fell sick, suffered
stomachache and started writhing. His wife Meena went in
search of the accused and returned back, as she did not find
him. Looking to the condition of her husband, she called
doctor and on his advise, she took him in a rickshaw to the
hospital where the deceased died on 6-2-2000 at 11.30 am.
3. Merg was registered on 6-2-2000 on the basis of
information received from hospital vide Ex.-P/4. After
preparing inquest over the dead body vide Ex.-P/10, the dead
body was sent for autopsy to Maharani Hospital, Jagdalpur vide
Ex.-P/11, where Dr. M.A.H. Rizvi (PW-7) conducted postmortem
and gave his report vide Ex.-P/5 on 7-2-2000. One bottle of
English wine containing liquid of yellow colour was taken into
possession on 9-2-2000 at 15.00 hours on being produced by
Meena Yadav in Police Station vide Ex.-P/1.
4. Crime was registered on 1st March, 2000 on information of
Raj Kumari Pandey, Assistant Sub Inspector vide Ex.-P/2. Two
plastic sealed containers containing viscera of the deceased
preserved during postmortem and received from hospital was
taken into possession vide Ex.-P/3.
5. In reply to query dated 23-2-2000 by the IO, Dr. Rizvi
gave his opinion on 1-3-2000 vide Ex.-P/7. Site plan was
prepared by the I.O. on 2nd March, 2000 vide Ex.-P/8. In
reply to other query dated 27-2-2000, Dr. V.K. Joshi (PW-10)
gave his opinion vide Ex.-P/13.
6. Bottle containing liquor and two bottles containing
viscera of Sharad Chandra Yadav and solution of salt were sent
for chemical examination to FSL, Sagar and the report of FSL
is Ex.-P/15. As per the report of the FSL, liquor in the
bottle contained Mono Chrotophos and ethyl alcohol and the
container containing viscera also contained Organo Phosphorous
insecticide Monochrotophos and ethyl alcohol.
7. After completing usual investigation, charge sheet was
filed against the appellant in the Court of Chief Judicial
Magistrate, Jagdalpur, who in turn committed the case to the
Court of Sessions Judge, Jagdalpur and the same was received
on transfer for trial by learned Additional Sessions Judge.
8. Learned Additional Sessions Judge framed charge under
Section 302 of the IPC against the appellant, who abjured
guilt.
9. The prosecution examined 15 witnesses in all. Thereafter
statement of the accused was recorded under Section 313
Cr.P.C. in which he denied the circumstances appearing against
him in the prosecution case and pleaded innocence and false
implication.
10. The trial Court after hearing learned counsel for the
respective parties, convicted and sentenced the appellant as
mentioned in para-1 of the judgment.
11. Sharad Chandra Yadav’s death on account of poisoning has
not been disputed. From the following unrebutted evidence
also, it is established that the deceased died as a result of
consuming poisonous substance organo phosphorous insecticide
Monochrotophos.
“Meena (PW-2) has deposed that after
consuming liquor from the second bottle,
condition of her husband started
deteriorating and she took him to the
hospital. Dr. Rizvi (PW-7) has conducted
postmortem and on internal examination found
that pungent foul smell like suspected organo
phosphate type was emanating from abdomen.
He had preserved viscera and advised chemical
examination. In reply to the query, he had
submitted his report of Ex.-P/6 and opined
that it was possible that the deceased could
die due to organo phosphate and ethyl alcohol
vide his report of Ex.-P/6. However, he had
opined that it is not possible to tell the
cause of death vide his report of Ex.-P/7
dated 1st March, 2000. The report received
from FSL (Ex.-P/15) also mentions that the
bottle containing yellow liquid marked as Ex.
`A’ and 2 containers containing viscera of
the deceased marked as Ex. `B’ and `C’
contained Organo Phosphorous insecticide
Monochrotophos and ethyl alcohol.”
12. Learned counsel for the appellant vehemently argued that
in order to sustain conviction in the cases of murder by
poisoning, the prosecution is duty bound to establish that the
accused had a clear motive for administering poison to the
deceased. In the instant case, wife of the deceased has
clearly stated that the appellant frequently visited her house
and they used to consume liquor together and he did not have
any enmity with them. There is no evidence available on
record that the appellant had any motive for committing murder
of the deceased. There is no evidence that the accused had
poison in his possession and that he had an opportunity to
administer poison to the deceased. On the contrary, on the
date of the incident, the deceased consumed liquor with Ten
Singh Thakur at about 6 pm. His conviction is based on the
evidence of Meena (PW-2), wife of the deceased, and Shankar
(PW-3), father of the deceased. Meena claims to be the
witness of the fact that the appellant brought 2 bottles of
liquor. Both of them consumed liquor with the first bottle.
When her husband opened second bottle, the appellant went away
and only after consuming liquor from the second bottle, the
deceased fell sick and ultimately died. Liquor in the second
bottle contained poison. The bottle containing liquor was not
seized from the appellant and the same was seized after 4 days
of the incident on 9-2-2000 on being produced by Meena in
police station. In these circumstances, there is material
discrepancy in the description of the bottle and colour of the
liquid in bottle given by Meena Bai. There is inter se
contradiction in the version of Meena Bai and her father-in-
law Shankar Yadav (PW-3). There is evidence that there was
quarrel between his son Praveer and Sharad. His father has
admitted that he did not work and consumed liquor and,
therefore, there used to be some quarrel between the husband
and the wife and Sharad used to beat her. From overall
evidence, it is evident that the prosecution has failed to
establish that the appellant alone had an opportunity to
administer poisonous liquor to the deceased. The trial Court
has given undue importance to the fact that the appellant
remained absconding after the incident for more than 2 years.
The appellant is rustic villager of 21 years. The above fact
alone cannot be considered to be a circumstance to fasten
charge of murder. Even otherwise, no evidence has been
adduced by the prosecution that the appellant was absconding
for more than 2 years and the above circumstance has also not
been put to the appellant in his examination under Section 313
of the Cr.P.C..
13. On the other hand, learned counsel for the State
supported the impugned judgment.
14. We have heard learned counsel for the parties. We have
perused the record as also the impugned judgment.
15. The Hon’ble Supreme Court in the matter of Sharad
Birdhichand Sarda Vs. State of Maharashtra {(1984) 4 SCC 116}
while considering murder by poison or suicide has held in
paragraph 165 of the judgment thus:
“So far as this matter is concerned, in such
cases 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 an accused to administer
poison to the deceased,(2) that the deceased died 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.”
16. In the matter of Bhupinder Singh Vs. State of Punjab
{(1988) 3 SCC 513}, the Hon’ble Apex Court has doubted the
availability of the above third circumstance as necessary to
establish the case of murder by poisoning. Paragraphs 25 & 26
of the above judgment are reproduced hereunder:-
“25.We do not consider that there should be
acquittal or the failure of the prosecution
to prove the possession of poison with the
accused. Murder by poison is invariably
committed under the cover and cloak of
secrecy. Nobody will administer poison to
another in the presence of others. The
person who administers poison to another in
secrecy will not keep a portion of it for the
investigating officer to come and collect it.
The person who commits such murder would
naturally take care to eliminate and destroy
the evidence against him. In such cases, it
would be impossible for the prosecution to
prove possession of poison with the accused.
The prosecution may, however, establish other
circumstances consistent only with the
hypothesis of the guilt of the accused. The
court then would not be justified in
acquitting the accused on the ground that the
prosecution has failed to prove possession of
the poison with the accused.
26.The poison murder cases are not to be put
outside the rule of circumstantial evidence.
There may be obvious very many facts and
circumstances out of which the court may be
justified in drawing permissible inference
that the accused was in possession of the
poison in question. There may be very many
facts and circumstances proved against the
accused which may call for tacit assumption
of the factum of possession of poison with
the accused. The insistence on proof of
possession of poison with the accused
invariably in every case is neither desirable
nor practicable. It would mean to introduce
an extraneous ingredient to the offence of
murder by poisoning. We cannot, therefore,
accept the contention urged by the learned
counsel for the appellant. The accused in a
case of murder by poisoning cannot have a
better chance of being exempted from
sanctions than in other kinds of murders.
Murder by poisoning is run like any other
murder. In cases where dependence is wholly
on circumstantial evidence, and direct
evidence not being available, the court can
legitimately draw from the circumstances an
inference on any matter one way or the
other.”
17. This Court in the matter of Krishna Vs. State of C.G.
{2008(1) CGLJ 107 (DB)} following the above judgments of the
Supreme Court, considering that the motive was not proved for
administering poison and also considering material
contradictions in the evidence of prosecution witnesses
regarding time and manner in administering poison, had
acquitted the appellant.
18. We propose to examine the oral evidence adduced by the
prosecution in the light of principles of law laid down by the
Hon’ble Supreme Court in the matter of Sharad Birdhichand
Sarda (Supra) and Bhupinder Singh (Supra) to ascertain whether
in the present case the four important circumstances have been
established or not.
Whether there is a clear motive for the
accused to administer poison to the deceased?
19. The trial Court in para-25 of the impugned judgment on
the basis of evidence of PW-3 Shankar has observed that
Praveer is the elder brother of the deceased, who resides
separately and on last Holi i.e. on 5-3-99 Praveer had
attacked Sharad Chandra by arrow and bow and the case was
registered against him. Further referring to the written
report lodged by Meena, reproduced in the first information
report, it has been observed that when Meena went to enquiry
about the accused to Praveer’s house, he got annoyed and
abused her and became ready to beat her. Thereafter he also
ran away with the accused. On the basis of this evidence, it
has been observed that the appellant committed this heinous
offence in the interest of his brother-in-law knowing fully
well that by consuming poisonous alcohol Sharad Chandra would
die.
20. PW-2 Meena, in her cross-examination at para-5, has
categorically deposed that Chingda often came to their house
and consumed liquor with her husband. He had no enmity with
them.
21. PW-3 Shankar has deposed that he has two sons. His elder
son’s name is Praveer whereas younger is Sharad. In para-3, he
has deposed that there was some dispute between the two sons
and they were not in talking terms. There was some quarrel
between them at the time of Holi festival. PW-2 has also
deposed that she had given written complaint to the police and
in her complaint, she had mentioned that Praveer had attacked
her husband by bow and arrow on 7-3-99. From the evidence of
this witness, it is also evident that there was frequent
quarrel between Meena and the deceased on account of
consumption of alcohol. He used to beat her also. PW-3
Shankar has also deposed the above fact.
The finding of the trial Court that the appellant
might have administered poisonous alcohol to the deceased
in the interest of his brother-in-law Praveer, who had
inimical relationship with his real younger brother
Sharad, is perverse and based on conjectures and surmises
in view of the categorical assertions of Meena Bai that
her husband used to consume liquor with the accused and
he did not have any enmity with them. The trial Court
was wholly unjustified in reaching to positive conclusion
that the appellant had a motive to commit murder of the
deceased and accordingly, we hold that the prosecution
has utterly failed to prove that the appellant had any
motive to commit murder of the deceased. On the
contrary, we hold that the appellant had cordial
relations with the deceased. He used to frequently visit
the house of the deceased in his life time.
Whether the deceased died of poison said to
have been administered?
22. So far as this circumstance is concerned, we have already
held that the deceased died on account of organo phosphorous
insecticide Monochrotophos.
Whether the accused had the poison in his
possession and whether the accused had an
opportunity to administer the poison to the
deceased?
23. The bottle containing poisonous liquor has been seized
from Meena PW-2 on being produced by her on 9-2-2000 in the
Police Station vide Ex.-P/2. Meena has deposed that her
husband had consumed liquor from one bottle and some part of
another bottle. At that time she was present in the house and
saw him consuming liquor. The appellant was with him and both
were consuming liquor. Chingda consumed liquor from the first
bottle with her husband, however, he did not take liquor from
the second bottle and ran away. Her husband had consumed
liquor from the second bottle also and his condition started
deteriorating whereupon she went to the house of Praveer to
call Chingda, however, he was not present in his house,
thereafter she took her husband to Maharani Hospital where he
died on Sunday at about 8-9 am. She had gone to lodge report
and had given written report to the police. Colour of the
liquor was red. In cross-examination, she has stated that
Chingda had brought 2 bottles of liquor. Both bottles were
`Half’ (Adhdhi). Her husband had opened first bottle with the
help of knife, however, he had opened second bottle by hand.
He consumed liquor from the second bottle, however, the
accused did not consume liquor from the second bottle as he
had gone out. She had taken only one bottle to the police
station. She has also stated that she lodged report after 8
days of the incident. She has further stated that she had
given written report in the office of the Superintendent of
Police and along with her application, she had handed over
bottle containing liquor.
24. PW-3 Shankar has deposed that his son poured liquor in
two glasses and was handing over to him. He went to ease out
and by the time he returned, Sharad had taken liquor from the
glass and asked him not to drink as poison has been mixed.
Thereafter, he started complaining stomach pain and writhing.
In cross-examination, he has deposed that he saw the appellant
and Sharad consuming liquor in his house, however, they did
not quarrel in his presence. Chingda had come to his house at
7-8 pm. When Chingda came to his house, he offered liquor
when he returned after watching TV.
25. PW-4 Ten Singh Thakur has also deposed that on the date
of the incident he had consumed liquor with the deceased at 6
pm. The deceased fell sick 2-3 hours after consuming liquor.
He was complaining pain in the stomach and vomiting. He was
admitted in the hospital where he died. He has categorically
deposed that he did not see the appellant visiting Sharad’s
house.
26. Thus, from the above evidence of the witnesses, it is
clear that on the date of the incident, the deceased consumed
liquor with Ten Singh Thakur as well as the appellant. There
is evidence that two bottles of liquor were brought by the
appellant, however, during investigation, neither second
bottle allegedly brought by the appellant nor glasses which
were used for consuming liquor were promptly seized and
sealed. Second bottle of liquor has been seized from the
possession of Meena on 9-2-2000 in the police station on being
produced by her. Thus, the bottle remained in possession of
Meena in unsealed condition for 4 days. She has also deposed
that she had given bottle of poison in the office of the
Superintendent of Police along with her written complaint
which she claims to have lodged after 8 days. The bottle
which has been seized on 9-2-2000 from Meena has been
forwarded to the FSL. In these circumstances, the finding of
the trial Court that bottle of poisonous liquor was the same
bottle which was allegedly brought by the appellant is not
proper and evidence adduced by the prosecution in this regard
does not inspire confidence. In the absence of any evidence
that bottle which the appellant brought was in fact seized and
the same contained poison and the same was sent for chemical
examination to the FSL; on mere evidence of Meena Bai and
Shankar that the deceased and the appellant both consumed
liquor brought by the appellant and on account of consuming
liquor from the second bottle, the deceased died, it cannot be
held that the appellant alone had an opportunity to administer
poison to the deceased, particularly, in the light of
uncontroverted evidence of Ten Singh, who has also deposed
that he along with the deceased consumed liquor on the same
day at about 6 pm and 2-3 hours thereafter he complained pain
in the stomach and vomited and died in the next day in the
hospital.
27. For the aforesaid reasons, we are of the opinion that the
prosecution has also failed to prove the circumstance that the
appellant alone had an opportunity to administer poison to the
deceased. We have already observed that there was absolutely
no apparent reason for the appellant to administer poison to
the deceased as there is evidence that the appellant had
cordial relations with the deceased.
28. The Hon’ble Supreme Court in the matter of Jaipal Vs.
State of Haryana {(2003) 1 SCC 169}, has referred to the
judgment of Sharad Birdhichand Sarda (Supra) with approval and
in paragraph 33 of the judgment it has been held thus:-
“33. Dealing with a case of circumstantial
evidence the court has to be circumspect. A
note of caution was sounded by a Constitution
Bench of this Court in Raghav Prapanna
Tripathi Vs. State of U.P., quoting (at AIR
p.89, para 60) from R. v. Hodge:
“The mind was apt to take a pleasure in
adapting circumstances to one another, and
even in straining them in little, if need be,
to force them to form parts of one connected
whole; and the more ingenious the mind of the
individual the more likely was it,
considering such matter, to overreach and
mislead itself, to supply some little link
that is wanting, to take for granted some
fact consistent with its previous theories
and necessary to render them complete.”
29. We are unhesitatingly of the opinion that the prosecution
has utterly failed in proving such chain of circumstantial
evidence as would fasten the guilt on the accused leaving no
room for doubt.
30. In the result, the appeal is allowed. The conviction of
the accused under Section 302 of the IPC and the sentence
passed thereon by the trial Court are set aside. The
accused/appellant is acquitted. He shall be released
forthwith if not required to be detained in any other offence.
J U D G E J U D G E