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2003 DIGILAW 160 (CHH)

SHIVMANGAL v. STATE OF chhattisgarh

2003-08-13

K.H.N.KURANGA, L.C.BHADOO

body2003
L. C. BHADOO, J. ( 1 ) ACCUSED/appellant shivmangal has preferred this criminal appeal under Section 374 (2) of the Code of criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 30-8-2002, passed by the learned additional Sessions Judge, Bilaspur in sessions Trial No. 526 of 2001 by which the learned Additional Sessions Judge after holding the accused/appellant guilty of the offence punishable under Section 302 of the indian Penal Code convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/- in default of payment of fine to further undergo rigorous imprisonment for fifteen days. ( 2 ) THE case of the prosecution in brief is that the wife of the accused/appellant namely Jospheena died in the intervening night of 12th and 13th August 2001 at about 12. 00 Oclock. The accused/appellant informed this fact to the parents of Jospheena. On 13-8-2001 the parents of deceased-Jospheena came and they advised the accused to report the matter to the Police. On 14-8-2001 the accused/appellant along with village Kotwar Umed Das went to the Police station, Ratanpur and gave the Merg intimation (Ex. P/7) to the Station House officer stating that on 12-8-2001 his wife had loose motions many times. When he returned at about 3. 00 p. m. by that time she had loose motions for 4-5 times and after his return also she had loose motions many times. He informed his neighbours Ramlal and Bandhu. They advised him to call the doctor. Thereafter he called the doctor but by that time his wife passed away and he informed his in-laws in the night. After recording this Merg intimation the Investigating officer reached the place. He gave the notices (Exs. P/8 and P/9) to the witnesses and prepared the inquest Panchanama (Ex. P/2) of the dead body of the deceased and sent the dead body for post-mortem examination. Dr. N. K. Samdariya (P. W. 2) conducted autopsy on the dead body of the deceased. The post-mortem report is Ex. P/6. The Investigating Officer prepared the site plan Ex. P/10. On 16-8-2001 Baldev (P. W. 1)gave the information to the Station House officer that accused Shivmangal had committed the murder of his wife Jospheena by administering poison mixed with wine. Upon receiving this information the Station House officer of Ratanpur Police Station recorded dehati Nalishi (Ex. P/6. The Investigating Officer prepared the site plan Ex. P/10. On 16-8-2001 Baldev (P. W. 1)gave the information to the Station House officer that accused Shivmangal had committed the murder of his wife Jospheena by administering poison mixed with wine. Upon receiving this information the Station House officer of Ratanpur Police Station recorded dehati Nalishi (Ex. P/11) and registered the first information report (Ex. P/12 ). while in police custody accused Shivmangal gave a memorandum (Ex. P/3) and in pursuance of that memorandum one bottle containing liquid was recovered and seized under Ex. P/4 and another bottle was recovered and seized under Ex. P/5. the viscera of the deceased contained in three jars were also seized under Ex. P/13 and the same were sent for chemical examination. The report of the Chemical Examiner is Ex. P/19. The police after completing the investigation filed the charge-sheet against the accused/appellant in the Court of Chief Judicial Magistrate, bilaspur who committed the case to the Sessions Court, Bilaspur and the sessions Judge in turn transferred the case to the Court of Additional Sessions Judge, bilaspur. ( 3 ) THE learned Additional Sessions Judge after hearing the arguments of the APP and the counsel for the accused/appellant and after perusal of the material available on records reached the conclusion that there is sufficient material to frame charge under section 302 of the Indian Penal Code. Accordingly he framed the charge against the accused for the commission of the offence under Section 302 of the Indian Penal Code. The accused/appellant denied the charge and claimed to be tried. ( 4 ) THE prosecution in order to prove the charge against the accused/appellant examined in all five witnesses at the trial. The statement of the accused/appellant was recorded under S. 313 of the Code of criminal Procedure. He admitted that Jospheena was his wife and their marriage took place in the year 1994. He also admitted the death of Jospheena and the fact of giving Merg intimation (Ex. P/7) to the Police. But he denied of making any extra-judicial confession before Baldev. The fact of post-mortem and the fact of having loose motions by jospheena also admitted by the accused/ appellant. But he denied the evidence of the prosecution witnesses and stated that baldev was his enemy as he had old animosity against him. P/7) to the Police. But he denied of making any extra-judicial confession before Baldev. The fact of post-mortem and the fact of having loose motions by jospheena also admitted by the accused/ appellant. But he denied the evidence of the prosecution witnesses and stated that baldev was his enemy as he had old animosity against him. He is a poor man and has been falsely implicated in the case. He further stated that he was not present at the time of incident. ( 5 ) AFTER hearing the arguments of the learned Additional Public Prosecutor and the learned counsel appearing for the accused/ appellant and after believing the evidence of the prosecution witnesses, extra-judicial confession made by the accused/ appellant before Baldev (P. W. 1), believing the fact of recovery of the poison from the house of the accused, the post-mortem report and the report of the Chemical Examiner, the learned sessions Judge convicted and sentenced the accused/appellant in the manner mentioned above. ( 6 ) WE have heard Mr. Utkarsha Verma, advocate for the appellant and Mr. P. S. Koshy, Govt. Advocate, for the State/respondent. ( 7 ) IN this case it is admitted that there is no eye-witness or direct evidence. The whole case rests on the circumstantial evidence. The Honble Apex Court In Sharad birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 : (1984 Crlj 1738) has held thus : it is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In the cases of murder by administration of poison, 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. (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased. ( 8 ) NOW coming to the question of motive the learned trial Court has not believed the prosecution case regarding the motive and in para 45 of its Judgment the Court has held that the prosecution has not been able to prove that the accused/appellant was having relations with another girl namely sheelo. In order to prove this fact the prosecution has simply produce a photograph (Ex. P/16) in which the accused and the girl sheelo were found together. Apart from this, there is no other evidence to prove that the accused had any relations with the girl sheelo. We are of the opinion that the learned trial Court has rightly held that the prosecution has utterly failed to prove the alleged motive for the accused to commit the murder of his wife by administering the poison. ( 9 ) AS far as second point is concerned, p. W. 2 Dr. N. K. Samdaria has stated that on 14-8-2001 he conducted the autopsy on the dead body of deceased-Jospheena. He found that rigor-mortis was present on the body. He saw that the froth with the blood was coming out from the mouth and the nostrils of the deceased. Her lips became bluish. The face was in a swollen condition and was bluish in colour. Theabdomen was distended and foul smell was present. There was no external injury on the body of the deceased. On internal examination of the body it was found that the clotted blood was present underneath the skin of the skull. The brain membrane was congested. There was haemorrhage in the brain. Both the lungs were congested and in a swollen condition. The heart was enlarged. Semi digested foodgrains (rice) was present in the abdomen and smell of chemical was coming out of the stomach. The spleen was enlarged and congested. The liver and kidney were congested and the liver was enlarged. He preserved the viscera for chemical examination in the jars. In the opinion of the doctor the deceased died as a result of cardiorespiratory failure due to the consumption of insecticide poison. The post-mortem report is Ex. P/6. A perusal of the report of the Chemical Examiner (Ex. The liver and kidney were congested and the liver was enlarged. He preserved the viscera for chemical examination in the jars. In the opinion of the doctor the deceased died as a result of cardiorespiratory failure due to the consumption of insecticide poison. The post-mortem report is Ex. P/6. A perusal of the report of the Chemical Examiner (Ex. P/19) reveals that the viscera contained democron organo phosphorous and ethyl alcohol was found in the visceras and the post-mortem report shows that the deceased died on account of consumption of poison. The finding of the learned trial Court on this point is correct. We do not find any illegality and infirmity in this finding. ( 10 ) NOW coming to the points 3 and 4, the only evidence in this case regarding the administration of the poison by the accused/ appellant to the deceased is the extra-judicial confession made by the accused/appellant before Baldeo P. W. 1. In order to place reliance upon the extra-judicial confession it is settled law that the confession must be voluntary, true, unambiguous and is in unequivocal terms. The extra-judicial confession is a very weak type of evidence where the Court finds that the extra-judicial confession is not inspiring confidence in the mind of the Court then it must be corroborated by some other evidence. In the light of the above principle, first we shall examine as to whether the poison was found in possession of the accused/appellant. The investigating Officer D. S. Shukla (P. W. 5) has stated that on 16-8-2001 at about 14 : 30 hours he enquired from the accused/appellant in presence of the witnesses namely, baldeo and one Alhad Tigga. The accused/ appellant gave a memorandum (Ex. P/3) that she had thrown the liquor bottle in the orchard (Badi) and kept the bottle of the Karanj oil in his house. Thereafter the accused/ appellant after searching the bottles in the orchard brought one 180 ml bottle of liquor and there was 2-3 ml. light blue colour liquid present. The Investigating Officer seized the liquor bottle under Ex. P/5 and the oil bottle which was brought by the accused/ appellant from his house was seized under ex. P/4. The witness of memorandum Alhad tigga has not been examined by the prosecution. light blue colour liquid present. The Investigating Officer seized the liquor bottle under Ex. P/5 and the oil bottle which was brought by the accused/ appellant from his house was seized under ex. P/4. The witness of memorandum Alhad tigga has not been examined by the prosecution. As far as the evidence of Baldeo (P. W. 1) is concerned, he had stated that the liquor bottle was recovered on 15-8-2001 and it was not recovered on 16-8-2001. Baldeo has stated in his evidence that the bottle which was recovered was one feet long. There was no identification mark on the bottle. Nothing was visible in the bottle. When he reached the spot the bottle was with the police and no recovery was made in his presence from the accused/appellant. Therefore, in view of this evidence it can be held that the recovery was not effected in the presence of the Baldev nor the enquiries were made from the accused/appellant in his presence. The other memorandum witness Alhad Tigga has not been examined by the prosecution. Therefore, only the evidence of O. S. Shukla (P. W. 5) remains. There is overwriting in the recovery memo. The date has been converted from 15 to 16. No independent witness has supported the recovery of the articles and moreover, the memorandum Ex. P/3 does not bear the signature of the accused/appellant. Even as per the evidence of O. S. Shukla (P. W. 5) the accused/appellant brought one bottle from the orchard. He has not specifically stated that the bottle was buried and the accused/ appellant took out the same from the concealed place. The bottle was recovered from an open place. In view of this evidence the recovery of the bottle does not Inspire confidence in the mind of the Court and the same has not been corroborated by any independent witness. Moreover, Baldeo (P. W. 1) has stated in his evidence nothing was visible in the bottle. Therefore, this circumstance also does not prove that the accused/appellant was in possession of the poison. ( 11 ) AS far as the extra-judicial confession made by the accused/appellant before (P. W. 1) Baldeo is concerned, Baldeo (P. W. 1)has stated that the In-laws of the accused/ appellant came to him and he along with them went to the house of the accused/appellant. On enquiry, the accused/appellant had not stated anything. ( 11 ) AS far as the extra-judicial confession made by the accused/appellant before (P. W. 1) Baldeo is concerned, Baldeo (P. W. 1)has stated that the In-laws of the accused/ appellant came to him and he along with them went to the house of the accused/appellant. On enquiry, the accused/appellant had not stated anything. Second time he enquired from the accused/appellant but the accused/appellant had not said anything. Thereafter since the accused had not taken meal for 1-2 days, he thought that the accused/appellant was perturbed and, therefore, he took the accused to his house and provided him with food. Then again he enquired from the accused/appellant what had happened, then the accused/appellant disclosed to him that he gave wine to his wife mixed with the poison. Thereafter he asked the other persons to take the accused/ appellant and he immediately informed the police. In para 30 of his cross-examination he has clearly stated that he said to the accused/appellant that if he tells him the truth, he would save him. He advised the accused/appellant and induced him also. He also gave threat to the accused/appellant that if he would not disclose the truth, he would be sentenced. On giving threat of conviction and sentence the accused/appellant disclosed the fact to him. ( 12 ) AS discussed above, even the recovery of the poison has not been provid frorn the possession of the accused/appellant and the evidence of this witness to the effect that he enquired from the accused/appellant 2-3 times but the accused/appellant did not tell anything, and thereafter on threatening him of conviction and sentence, the accused/appellant disclosed that he administered the poison mixed with wine to his wife jospheena, therefore, in these circumstances, it is difficult to say that the extra-judicial confession in this case is voluntary. This extra-judicial confession is not corroborated by any other circumstantial evidence. Moreover, this witness is an interested witness in (sic) the parents of Jospheena. We are of the opinion that it is unsafe to believe this extra-judicial confession. ( 13 ) FOR the foregoing reasons, we are of the opinion that the findings of the learned trial Court to the effect that the accused/ appellant made extra-judicial confession before Baldeo (P. W. 1) and the recovery of the poison at the instance of the accused/ appellant cannot be sustained. ( 13 ) FOR the foregoing reasons, we are of the opinion that the findings of the learned trial Court to the effect that the accused/ appellant made extra-judicial confession before Baldeo (P. W. 1) and the recovery of the poison at the instance of the accused/ appellant cannot be sustained. Therefore, the prosecution has not been able to bring home the guilt against the accused/appellant. ( 14 ) IN the result, the appeal of the accused/appellant succeeds and the same is allowed. The accused/appellant is acquit ted of the charge under S. 302 of the IPC. He be set at liberty forth (sic) if not required in any other case. Appeal allowed. --- *** --- .