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2009 DIGILAW 526 (JHR)

Bibi Samrath v. State of Bihar (now Jharkhand)

2009-04-09

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT : By Court. - Though this appeal was initially preferred by two convicts namely Bibi Samrath and Samijan Bibi but during the pendency of the appeal, the appellant no. 1 Bibi Samrath died on 15.8.2002 and, therefore, the appeal as against appellant No. 1 Bibi Samrath stood abated. Therefore, we are now concerned with the appeal of appellant no. 2 Samijan Bibi only. 2. This appellant Samijan Bibi and 4 others were charged found put on trial for commission of the offence under Sections 302/34 IPC for committing the murder of four persons in furtherance of common intention. They were also charged under Section 120B IPC for entering into an agreement to administer poison in food for causing death of the family members of the informant. 3. By the impugned judgment, the learned Sessions Judge, Godda, vide his judgment dated 20th July, 1991 in Sessions Case No. 4 of 1989, acquitted the three accused namely, Masru Mian @ Masruddin Mian, Sonabhan Bibi and Samsuddin Mian holding that the prosecution failed to prove the charges against them beyond all reasonable doubt but convicted Samijan Bibi, the present appellant and Samrath Bibi (now dead) under Section 302 read with Sections 34 and 120B of the Indian Penal Code and sentenced them to undergo R.I. for life for the offence under Section 302/34 IPC. No separate sentence was passed for the offence under Section 120B IPC. It is against this judgment of conviction and sentence this appeal has been filed. 4. In short, the prosecution case is that on 21.1.1970, one Chamru Mian (now dead) lodged a first information report alleging therein that on the date of occurrence when he was not present in his house, in his absence "Khichdi" was being cooked for being consumed by his family members. After consuming the food, all those persons, who had eaten it, were taken ill and four of them namely Bibi Latifan, Bibi Asiran, Rahim and Suleman Mian died but others could survive. On Post Mortem examination of the dead persons poisoning was suspected. Visceras were preserved and sent for chemical examination where it was found that "Parathion" an oregano phosphorus insecticide, used for killing pests, was present. The police also seized the left out portion of "Khichdi" and "Bhurta" and their samples were sent for chemical examination and it was found that "Khichdi" was also containing Parathion, which was highly poisonous. Visceras were preserved and sent for chemical examination where it was found that "Parathion" an oregano phosphorus insecticide, used for killing pests, was present. The police also seized the left out portion of "Khichdi" and "Bhurta" and their samples were sent for chemical examination and it was found that "Khichdi" was also containing Parathion, which was highly poisonous. The informant alleged that he had some dispute with Manager Mian and Bandhu Mian of his village, who were nephew and cousins of his wife Latifan Bibi and for that suit was also pending in the Court at Godda and, therefore, they were nursing grudge and enmity with him. The informant further alleged that when he came back to his house after hearing the sad news, he found his wife and daughter-in-law dead and he wanted to go to the police station but his neighbours Manager Mian and Sonu Mian and the accused Masru Mian @ Masruddin bluffed him giving out that they had already sent information to the police. The FIR was registered against unknown but in course of investigation it came to light that three females namely, Samrath Bibi (now dead), Sonabhan Bibi and Samijan Bibi, the present appellant, had come to the house of the informant when the food was being cooked on the pretext of taking fire from the oven and, therefore, it was suspected that they had hands in mixing poison in the "Khichdi". 5. In course of trial though altogether six witnesses were examined on behalf of the prosecution but as it appears that the learned trial court has convicted and sentenced the appellant only on the basis of the statement of PW-1 Ulfat Mian, i.e. the son of the informant, who was also a victim of poisoning as he had also 'consumed the said "Khichdi" in his house but luckily he survived. It further appears that on the basis of the evidence of PW-1 itself, the other three accused namely Masru Mian @ Masruddin, Sonabhan Bibi and Samsuddin Mian were acquitted from the charges. . 6. It further appears that on the basis of the evidence of PW-1 itself, the other three accused namely Masru Mian @ Masruddin, Sonabhan Bibi and Samsuddin Mian were acquitted from the charges. . 6. In this view of the matter, we have carefully gone through the evidence of PW-1 Ulfat Mian and on close scrutiny we find that according to this witness, he saw three ladies namely, Samrath Bibi, Sonabhan Bibi and Samijan Bibi coming together to his house and, thereafter, Samijan Bibi started taking out fire from the oven and Samrath Bibi was standing there whereas Sonabhan Bibi was grinding Dal. In Para-2 of his evidence he has stated that "Maine Dekha Ki Samrath Bibi Hath Badhakar Bhat Ke Hadia Mein Kuch Daal Rahi Thi". Meaning thereby, he saw only Samrath Bibi pouring something in the vessel in which the food was being cooked. Therefore, this witness has clearly stated that it was Samrath Bibi, who was adding or mixing something in the "Khichdi". In cross-examination, this witness in para-5 has stated that he also consumed "Khichdi" and, thereafter, fell unconscious and he regained senses only in the Hospital. He admitted that he did not disclose about the occurrence to his father even after he regained sense. In para-14 of his cross-examination, he further stated that when he saw Samrath Bibi adding something in the vessel, he neither raised hulla nor he disclosed it to his mother, who was present there. He further stated that Samrath Bibi added something from a bottle which looked like oil. 7. On close scrutiny of the evidence of this PW-1 Ulfat Mian, we find the conduct of this witness PW-1 to be most unnatural because of the fact that when he saw the accused Samrath Bibi adding/ mixing something in the "Khichdi" while it was being cooked then what prevented him in disclosing this fact to his mother, who was also there. The most natural conduct in such a situation would have been for him to tell about those facts to his mother, who was cooking "Khichdi". The next most unnatural conduct of this witness is that when he himself fell victim of consuming "Khichdi" and fell unconscious but curiously enough after he regained senses, he did not disclose to his father or any member of his family that he saw Samrath Bibi mixing something in the "Khichdi". The next most unnatural conduct of this witness is that when he himself fell victim of consuming "Khichdi" and fell unconscious but curiously enough after he regained senses, he did not disclose to his father or any member of his family that he saw Samrath Bibi mixing something in the "Khichdi". The conduct of this witness raises suspicion in our mind about his truthfulness/veracity of his testimony. 8. In any view of the matter, even if we accept the statement of PW-1, we find that the whole allegation has been made against Samrath Bibi and not against this appellant Samijan Bibi. Only statement, which has been made by PW-1 against this appellant, is that she came to his house alongwith two other ladies, i.e. Samrath Bibi and Sonabhan Bibi and this appellant Samijan Bibi was seen by him taking fire from the oven and, thereafter, she left his house. Nothing has come in the evidence so as to come to the conclusion that this appellant was also conspiring with Samrath Bibi or any other accused in commission of the offence alleged. There is nothing to infer or presume that Samrath Bibi (now dead) and this appellant Samijan Bibi had agreed prior to the occurrence to mix poison in the food for causing death to the family members of the informant. In absence of any such evidence either direct or indirect or circumstantial to show that Samijan Bibi, the present appellant also came to the house of the informant with common intention to mix poison in the food or that she also conspired with Samrath Bibi or any other accused in mixing poison in the food, which was being cooked in the house of the informant for causing death of his family members, in our view, the evidences on record are not sufficient so as to infer the criminal conspiracy or common intention of this appellant to commit the offence for which she was charged alongwith other accused persons. 9. In view of the discussions and findings above, we hold that the learned trial court was not right in convicting and sentencing the appellant Samijan Bibi for the aforesaid charges. Accordingly, this appeal is allowed. The conviction and sentence passed by the trial court against this appellant Samijan Bibi is hereby set aside. The appellant, who is on bail, is discharged from the liabilities of her bail bonds.