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2010 DIGILAW 189 (CHH)

Surutibai v. State of C. G.

2010-07-28

DHIRENDRA MISHRA, R.N.CHANDRAKAR

body2010
JUDGMENT R.N. 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 Jaiswat 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. 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. 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 v. 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. 12. This Court in the matter of Krishna v. 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 of principles of law laid down by the Hon'ble Supreme Court in the matter of Sharad Birdhichand Sarda (1984)4 SCC 116 (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. 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. 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. 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 eyewitness 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. 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.