HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No 949 of 2003
Suruti Bai
...Petitioners
Vs
State of Chhattisgarh
...Respondents
! Shri K K Singh counsel for the appellant
^ Shri Sandeep Yadav Dy Govt Advocate for the State
CORAM: Honble Shri Dhirendra Mishra & Honble Shri R N Chandrakar J
Dated: 28/07/2010
: Judgement
J U D G M E N T
Delivered on 28 72010
Criminal Appeal under Section 374 2 of the C r P C
Per Rangnath Chandrakar, J.
1. The appellant has preferred this criminal appeal
under Section 374(2) of the Code of Criminal Procedure
against the judgment of conviction and order of sentence
dated 14-2-2003 passed in Sessions Trial Case No. 171 of
2002, whereby learned 2nd Additional Sessions Judge (FTC)
Korba, has convicted the appellant under Section 302 of
the Indian Penal Code for committing murder of Krishna
Kumar, a child aged about 3 – 4 years and sentenced her
to undergo life imprisonment and to pay fine of Rs.500/-,
in default of payment of fine to undergo further RI for
three months.
2. The case of the prosecution, in brief, as projected
in the impugned judgment is that on 19-2-2002 in the
morning, Vishwanath (PW/1) along with his wife Sheet Bai
(PW/15), his father Sonauram and his son Khemlal (PW/17)
went to the field of Murari Jaiswal of their village for
making bricks, leaving Manoj Kumar (PW/16) and Krishna
Kumar (the deceased) in the house. After some time, Manoj
Kumar also came there along with Krishna Kumar (deceased)
whereupon Vishwanath sent back Krishna Kumar along with
Khemlal to the house. Thereafter, at about 10:00 a.m.
Khemlal (PW/17) brought Krishna Kumar to him in the field
and stated that Krishna Kumar was given some medicine to
drink by the appellant as a result of which he was
suffering from stomachache. On this, Vishwanath smelt the
breathing of Krishna Kumar and detected the foul smell
coming from his mouth. On asking, Krishna Kumar replied
that the appellant gave him some medicine to drink.
Thereafter, Krishna Kumar was brought to the house where
he was caused to vomit and was examined by one Firatram
Yadav (PW/19) an employee of the Govt. Hospital of the
village, who advised to take Krishna Kumar to Govt.
Hospital, Korba immediately. Krishna Kumar was taken to
the Govt. Hospital, Korba where he died after some time
during treatment. Dr. D.K. Shrivastava (PW/18) sent
morgue intimation (Ex.P/15) to police out post Rampur
where morgue intimation (Ex.P/7) was registered at zero.
Thereafter, inquest (Ex.P/1) was prepared over the person
of the deceased by A.S.I. Grahan Singh Rathore (PW/12) and
sent the (Ex.P/7) to police station, Kartala for
registration of crime where morgue intimation (Ex.P/17)
was registered. Thereafter, the S.H.O. M.P. Tondon
(PW/13), police station, Kartala proceeded to village
Chiknipali, the place of occurrence and after recording
the statements of witnesses, recorded Dehati Nalisi
(EX.P/10) on the basis of which FIR (Ex.P/11) was
registered in police station, Kartala. Postmortem of the
dead body of Krishna Kumar was conducted by Dr. D.K.
Shrivastava (PW/18), spot map was prepared by Patwari
Nand Kishore Singh (PW/14) and `monochrotophos’ pesticide
in a plastic container was seized vide Ex.P/6 on being
produced by Firturam (PW/7), the husband of the appellant.
3. The viscera preserved from the body of the deceased
during postmortem was sent to FSL for chemical examination
and report thereof was received (Ex.P/18), according to
which presence of organo phosphorous pesticide
Monochrotophos was found in the viscera of the deceased .
4. After completing the investigation, charge sheet was
filed against the appellant and after committal of the
case to the Court of Sessions Judge, learned Additional
Sessions Judge, received the case on transfer for trial.
Learned Additional Sessions Judge framed charges under
Sections 302 of the IPC for causing death of Krishna
Kumar, a child aged about 3-4 years. The appellant abjured
her guilt.
5. Prosecution in order to establish the charges against
the appellant examined 20 witnesses in all. Thereafter
the statement of the accused/appellant was recorded under
Section 313 of the Code of Criminal Procedure, in which
she denied the circumstances appearing against her and
pleaded her innocence and false implication.
6. The trial Court after hearing counsel for the
respective parties convicted and sentenced the appellant
as mentioned in paragraph one of the judgment.
7. Krishna Kumar’s, a child death on account of
poisoning has not been disputed. From the evidence of Dr.
D.K. Shrivastava (PW/18), who conducted post-mortem and
opined that the cause of death was shock and coma as a
result of ingestion of some poisonous material and also
from the FSL report Ex.P/18, it is established that the
deceased died as a result of consuming poisonous substance
Monochrotophos.
8. Shri K.K. Singh, learned counsel for the appellant
vehemently argued that in order to sustain conviction in
the case of murder by poisoning, the prosecution is duty
bound to establish that the accused had a clear motive for
administering poison to the deceased. 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 her possession and
that she had an opportunity to administer poison to the
deceased. There is no eye-witness to the incident and the
sole case rests on the circumstantial evidence and the
prosecution has utterly failed to connect the chain of the
circumstances and there are so many contradictions,
omissions and improvements in the statements of the
prosecution witnesses. Therefore, the conviction and
sentence is not sustainable.
9. On the other hand, Shri Sandeep Yadav, Dy. Government
Advocate, appearing on behalf of the State supported the
impugned judgment.
10. We have heard learned counsel for the parties and
perused the record of the trial court as well as the
impugned judgment.
11. 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:
(i) there is a clear motive for an accused to administer
poison to the deceased;
(ii) that the deceased died of poison said to have been
administered;
(iii) that the accused had the poison in his
possession;
(iv) that he had an opportunity to administer the poison
to the deceased.”
12. This court in the matter of Krishna Vs. State of C.G.
{(2008 (1) CGLJ 107 (DB) } following the above judgment 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 and the manner adopted in administering poison,
had acquitted the appellant.
13. There is no eye-witness to the incident and the case
rests upon the circumstantial evidence, therefore, we
propose to examine the oral evidence adduced by the
prosecution in the light principles of law laid down by
the Hon’ble Supreme Court in the matter of Sharad
Birdhichand Sarda (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?
14. The trial Court neither considered nor discussed
about this important circumstance in its judgment and
drawn adverse inference in para 22 of the impugned
judgment on the basis of the defence taken by the
appellant that she was falsely implicated because of the
illicit relation between her husband the mother of the
deceased. The Trial Court wrongly held that the illicit
relation between the husband of the appellant and the
mother of the deceased was the motive to cause death of
the deceased by the appellant. From the evidence of
Firturam (PW/7),husband of the appellant and Sheet Bai
(PW/15), mother of the deceased, it is clear that both of
them denied the illicit relation between them and for the
sake of argument, if it is accepted then also the motive
is not proved because by causing death of the deceased
the appellant gets nothing and her problem remains
unsolved. It is pertinent to mention here that the
appellant did not have any grudge against the deceased but
she was having grudge with her husband Firturam and Sheet
Bai, the mother of the deceased. Thus, the inference
drawn by the trial court is unsustainable and declined
holding that the prosecution failed to establish the most
important circumstance against the appellant.
15. So far as the second circumstance is concerned, it
is clear from the deposition of Dr. D.K. Shrivastava
(PW/18) and FSL report (Ex.P/18) that the deceased died
due to consumption of Organo-Phosporous pesticide
Monochrotophos as we have already discussed in foregoing
paragraphs.
16. Now coming the third circumstance, whether the
accused appellant was in possession of the alleged poison
at the time of incident? It is clear from the evidence
available on record that the alleged poison was seized in
the Police Station being produced by Firturam (PW/7),
who deposed that on the date of incident he was not
present in his house and had gone to Shakti market from
where he returned after two days. He had concealed the
alleged poison seized vide Ex.P/6 in his house so that no
body could consume it. In his cross-examination in para
10 he admitted that the seized poison was brought out from
the place where it was kept by him. The other witnesses
of seizure are Amar Prasad (PW/9) and Hariram (PW/10), the
village Kotwar. Amar Prasad (PW/9) deposed that he did
not know from where the seized poison was brought by
Firturam as he had not gone with him to his house.
Hariram (PW/10) stated in his cross examination that the
seized poison was neither discovered by the Police nor
by him and Amar Prasad from the house of Firturam but the
same was brought out by Firturam himself. Both the
seizure witnesses also stated that they signed the seizure
memo (Ex.P/6) in Police Station and leaving it in the same
condition in which it was brought to the police station
went to their house. They did not know what was done with
the seized container of poison by the police after seizing
the same. Thus, from the aforesaid evidence, it is clear
that the alleged poison was not seized on the basis of
memorandum of accused/appellant from her possession. It
is also clear that the seized poison was not sealed before
the witnesses and on scanning the evidence of Firturam
(PW/6) it is nowhere found that the seized poison was
within the knowledge of the appellant. Thus, the
prosecution failed to prove that the appellant was in
exclusive possession of the alleged poison.
17. So far as fourth circumstance that whether the
accused had an opportunity to administer the poison to the
deceased is concerned, there were two witnesses to this
fact namely Khemlal (PW/17) and Prakash (PW/5). Prakash
(PW/5) was discharged without examination, as he was not
found competent for recording his evidence by the trial
court. Now, the entire prosecution story rests upon the
evidence of Khemlal (PW/17), the elder brother of the
deceased. He deposed that on the date of incident he along
with his parents, elder brother Manoj Kumar and deceased
went for making bricks. At about 10.00 a.m., he brought
Krishna Kumar (deceased) to the house and started
collecting clothes and soap for going to bath, as he had
to go to school. At that time, the deceased was playing
along with Prakash (PW/5) in the street where the
appellant came and took them to her house. He inquired
from the appellant about the deceased as to whether he was
in her house, the appellant replied in negative.
Thereafter, when he returned to his house after taking
bath from hand pump, the appellant brought out the
deceased from her house after giving him some medicine to
drink and went towards her kitchen garden with an axe.
The deceased was weeping and on query that who beat him,
he replied that the appellant made him to drink some
medicine. Thereafter, he took the deceased to his parents
and asked his father to smell the mouth of the deceased
whereupon his father smelt the breathing of the deceased
and asked him then the deceased replied that the appellant
made him to drink some medicine. His mother took the
deceased to the house at that time he was to become
unconscious. The village doctor Yadav was called who
advised to take the deceased to Korba whereupon his father
took the deceased to Korba where he died. In the cross
examination, he admitted that he neither saw the deceased
drinking anything nor was made to drink anything by
anybody. Apart from this, there are so many
contradictions, omissions and improvements in his
statement as pointed out by the defence.
18. Vishwanath (PW/1) and Sheet Bai (PW/15) are the
parents of the deceased. Both the witnesses deposed that
Khemlal (PW/17) brought the deceased to them and they
smelt the foul smell of medicine (poison) coming from the
mouth of the deceased. Khemlal narrated them about
administering poison to the deceased by the appellant.
Both of them made contradictory statement before the
court. On the one hand, they made the statement that
when the deceased was brought to them the deceased told
them that he was given some medicine to drink by the
appellant whereas Vishwanath in para 7 categorically
stated that when the deceased was brought to him, he was
in unconscious condition and same statement was made by
Sheet Bai in para 12 of her cross examination. In view
of the aforesaid contradictions in their statements, it
cannot be held that when the deceased was brought to his
parents, he was in a condition to narrate the incident.
Vishwanath also admitted in para 9 that there was no
previous enmity with the appellant. Apart from the above,
apparently, there are material contradictions, omissions
and improvements in their statements as pointed out by the
defence.
19. In view of the aforesaid analysis, we find that
there is no eye-witness to the incident and Prakash
(PW/5) who was said to have been along with the deceased
at the time of incident was discharged without examination
being found incompetent for recording his evidence by the
trial court. The other witnesses examined by the
prosecution are not material witnesses being hearsay
witnesses. The case of the prosecution mainly rests upon
the testimonies of Khemlal (PW/17), Vishwanath (PW/1) and
Sheet Bai (PW/15) who were not the eye-witnesses and there
are material contradictions, omissions and improvements in
their statements. In such condition, their statements
cannot be held reliable. Further, the alleged poison was
neither found nor seized from the exclusive possession of
the appellant and there is no evidence on record that
after seizure the same was sealed in presence of the
witnesses. It is also evident that there was no motive for
the appellant to cause death of the deceased. Thus, the
prosecution also failed to prove the circumstance that it
was only the accused/appellant who had an opportunity to
administer poison to the deceased.
20. For the aforesaid reasons, we are of the opinion that
the prosecution has failed to establish the case against
the appellant beyond all reasonable doubt as the chain of
circumstantial evidence has not been proved to fasten the
guilt on the accused/appellant.
21. Accordingly, the appeal succeeds and is hereby
allowed. The impugned judgment of conviction passed by the
trial Court convicting the appellant under Section 302 of
the IPC, is set aside. The appellant is in jail. She be
set at liberty forthwith, if not required in any other
case.
JUDGE
