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2010 DIGILAW 33 (CHH)

BELWANTI v. STATE OF C. G. .

2010-02-02

R.L.JHANWAR, T.P.SHARMA

body2010
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 5.5.2004 passed by the Sessions Judge, Surguja (Ambikapur), in Sessions Trial No.41/2003, whereby & where under learned Sessions Judge after holding the appellant guilty for commission of culpable homicide death amounting to murder of her husband Sarju, sister-in-law Shanti Bai, mother-in-law In joriya and father-in-law Nanka@ Nanwa, convicted under Sections 302,302,302 & 302 of the Indian Penal Code and sentenced her to undergo imprisonment for life for each conviction and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo simple imprisonment for three months. 2. Judgment is impugned on the ground that without there being any clinching and credible evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution, in brief, is that the present appellant was wife of deceased Sarju, sister-in-law 'of deceased Shanti Bai, daughter-in-law of deceased Injoriya and deceased Nanka. The appellant was residing with her husband, father-in-law and mother-in-law. On the fateful day of 21.10.2002, her sister-in-law (Nanad) was also present in the house of the appellant at village Batwahi, district Ambikapur. The appellant was not having cordial relation with her husband and deceased persons used to beat her. On the dote of incident, the appellant mixed democran poison in the liquor and provided to the deceased Satju, Shanti Bai, Injoriya and Nanka @ Nanwa. After drinking poisonous liquor, all the persons become unconscious. Jamuna Ram (PW-7) took unconscious Sarju, Injoriya and Shanti to District Hospital, Ambikapur. Injured Injoriya and Sarju died on 21.10.2002. Jamuna Pam lodged merg intimation vide Ex.P/11. Shanti Bai also died in the hospital. Radheshyam informed the police and merg intimation was recorded vide Ex.P/12. Death of Nanka was also intimated by Jamuna Ram (PW -7) vide EX.P/10. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses vide Exs.P/1 and P/2, inquest over the dead body of deceased Sarju, Shanti Bai and Injoriya were prepared vide Exs.P/3 to P/5. Investigating officer also summoned the witnesses vide EX.PIl4 and prepared inquest over the dead body of deceased Nanka vide Ex.P/15. Spot map was prepared by patwari vide Exs.P/6 and P/13. Dead body of deceased Narum was sent for outopsy to District Hospital, Ambikapur vide Ex.PIl6. Investigating officer also summoned the witnesses vide EX.PIl4 and prepared inquest over the dead body of deceased Nanka vide Ex.P/15. Spot map was prepared by patwari vide Exs.P/6 and P/13. Dead body of deceased Narum was sent for outopsy to District Hospital, Ambikapur vide Ex.PIl6. Autopsy was conducted by Dr. J.K .Bhutani (PW -10) vide Ex.P/29 and opined that death was as a result of asphyxia. Viscera were preserved. Dead body of deceased Injoriya was also sent for autopsy vide Ex.P/26 A. Autopsy was conducted by Dr J.K Bhutani (PW -10) vide Ex.P/26 and opined that death was as a result of asphyxia. Viscera were preserved. Dead body of deceased Shanti Bai was also sent for autopsy vide EX.P/27. Autopsy was conducted by Dr. J.K. Bhutani (PW -10) vide Ex.P/28 and opined that death was as a result of asphyxia. Dead body of deceased Sarju was also sent for autopsy vide EX.P/30. Autopsy was conducted by Dr J.K. Bhutani (PW -10) vide ExP/31 and opined that death was as a result of asphyxia. During the course of investigation, the appellant was taken into custody. She made disclosure statement of bottle of democran vide Ex.P/18 and produced the same. After taking the same from soil, same was recovered from the appellant vide Ex.P/19. One earthen water pot used for liquor and two bottles of liquor were seized from Atam vide Ex.P/17. Glasses and bottles containing liquor were also seized from the spot vide Ex.P/18. Sample of preservative were seized vide Ex-P/19. Finally, the F.L.R. was lodged vide Ex.P/21 on 20.1 0.2002. Seized articles and viscera & bottle of democran were sent for chemical examination vide Ex P/24. Presence of ethyl and methyl alcohol were confirmed in the alleged liquor seized from Ataru vide Ex.P/25. Presence democran insecticide (organo prosperous) were confirmed in viscera of the deceased Smju, Shanti Bai, Injoriya, Nanka and plastic bottle recovered at the instance of the appellant by chemical examination vide Ex-P/32. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). After completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the case to the Court of Sessions, Ambikapur. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 13 witnesses. After completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the case to the Court of Sessions, Ambikapur. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where she denied the circumstances appearing against her and pleaded innocence and false implication in the crime in question. 6. After affording an opportunity of hearing to the parties, learned Sessions Judge, Ambikapur has convicted and sentenced the appellant as aforementioned. 7. We have heard Mr. J.S. Baraik, counsel for the appellant and Mr. Pakesh Kumar Jha, Deputy Government Advocate for the State and perused the impugned judgment and record of the Court below. 8. Learned counsel for the appellant vehemently argued that this is the case of administering poison and the prosecution was required to prove that, (1) The appellant was in possession of liquor and poison, (2) She was having sufficient opportunity to mix poison in the liquor, (3) She has provided poisonous liquor to the deceased persons and the deceased persons have consumed poisonous liquor provided by the appellant. But in the present case, the prosecution has utterly failed to prove the aforesaid circumstances sufficient for drawing inference that the appellant was the person who has administered poison. Learned counsel further submits that the conviction is based on extra judicial confession made by the appellant to the witnesses which are not reliable and does not inspire confidence. 9. On the other hand, learned State counsel supported the impugned judgment and argued that the conviction is based on extrajudicial confession made by the appellant to different witnesses while corroborated by the disclosure of poison at the instance of the appellant within two days of the incident. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant is the person who has administered poison. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material adduced on behalf of the prosecution. In the present case, unnatural death as a result of poisoning of the deceased Sarju, Shanti Bai. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the material adduced on behalf of the prosecution. In the present case, unnatural death as a result of poisoning of the deceased Sarju, Shanti Bai. In joriya and Nanka has not been substantially disputed, on the other hand also established by the evidence of Dr J.K. Bhutani (PW -10), autopsy reports Exs.P/26, P/28, P/29 and P/31 and medical examination report Ex.P/32 which reveal that democran insecticide (organo prosperous) was found in viscera of the aforesaid deceased persons. 11. As regards the complicity of the accused/appellant in the crime in question, the presence of the appellant at the time of incident i.e. when the deceased persons consumed liquor is not disputed. Liquor was brought by the deceased Shanti Bai from the house of Gangapuriha. Liquor has been seized vide EX.P/l7 and same was sent for chemical analysis and report Ex-P/25 reveals that no democran insecticide (organo phosperous) was present. The conviction is based on extra judicial confession of the appellant made to Gangaram (PW -1), Veeru Ram (PW -3), Birbal (PW -4) and Triveni (PW -6). Gangaram (PW -1) has deposed in his evidence that the appellant made disclosure statement that liquor was brought from the house of Gangapuriha and democran was added in the liquor, therefore. she has not taken liquor and other persons took liquor. In para 7 of his cross-examination, he has specifically admitted that deceased Shanti Bai has brought liquor from the house of Gangapuriha. Beeru Ram (PW-3) has deposed in his evidence that the appellant has made disclosure statement that she has added democran in the liquor, and thereby four persons died, but in his cross-examination. he has deposed that the appellant has made extra judicial confession before the police. The evidence of this witness relating to extra judicial confession made by the appellant is not admissible in evidence and is hit by Sections 25,26 and 27 of the Evidence Act. 12. Birbal (PW-4) has deposed in his evidence that he saw dead body of Nanka, then he asked the appellant that as to how he died, then the appellant told him that she had added poison in the liquor consumed by deceased Nanka. 12. Birbal (PW-4) has deposed in his evidence that he saw dead body of Nanka, then he asked the appellant that as to how he died, then the appellant told him that she had added poison in the liquor consumed by deceased Nanka. Triveni (PW -6) has deposed in his evidence that democran was in possession of the appellant and she made disclosure Statement that she has added democran in the liquor which four persons consumed and finally they died. In para 5, he has specifically deposed that when they came from Ambikapur after postmortem of four dead bodies, then the appellant told him that she has added democran in glasses of all the deceased and has added one drop in each glass. In para 9 of his cross-examination, he has stated that the police came to village and interrogated the appellant, but the appellant herself has stated that she has added 13. Extra judicial confession is generally a weak type of evidence, but once it is proved to be true, then same may be sufficient for conviction of the accused. While dealing with the evidentiary value of extra-judicial confession made under Section 24 of the Evidence Act, the Apex Court in the matter of Baldev Singh Vs. State of Punjab1 has held that extra-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 1. 2009AIR SCW 3730 14. While dealing with the same question, the Apex Court in the matter of Mohd. Azad @ Samin Vs. State a/West Bengal2 has held that if extra-judicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and confession will have to prove like in any other evidence. Para 22 of the said judgment reads as under 2. 2009 AIR SCW 752 "22. An extra-judicial confession. If voluntary and true and made in a tit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied up or the conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility.'" 15. While dealing with the same question, the Apex Court in the matter of State of Punjab Vs. Harjagdev Singh3 has held that every inducement, threat or promise does not vitiate a confession. Normally extra-judicial confession is a weak type of evidence and shall not be relied upon without further corroboration from other sources. 3. 2009 AIR SCW 4133 16. In the present case, Gangaram (PW -1) has only deposed in his evidence that the appellant has not consumed liquor because democran was added in the liquor. Beeru Ram (PW -3) has specifically deposed in para 4 of his evidence that the appellant has made extra judicial confession before the police and not before him, therefore, his evidence is of no use. Birbal (PW -4) has deposed in his evidence that the appellant made disciosure statement that she has added poison in the liquor and as a result of drinking of poisonous liquor, Nanka died. Birbal (PW -4) has deposed in his evidence that the appellant made disciosure statement that she has added poison in the liquor and as a result of drinking of poisonous liquor, Nanka died. The evidence of Triveni (PW -6) reveals that when they came after post-mortem of all the deceased persons, then the appellant made extrajudicial confession to him that she has added democran in the liquor, but in para 9 of his cross-examination, he has deposed that he has stated to the police that the appellant has made extra judicial confession that she has added one drop democran in each glass, but this fact does not find in his statement Ex.D/1 recorded under Section 161 of the Code. He has also deposed that the appellant also used to take liquor, but on that day she did not take liquor. This is the case of death of four persons, as a result of democran poison and presence of democran is confirmed by the report of the Forensic Science Laboratory, Raipur vide Ex.P/32 in viscera of the four deceased and jeny can containing small quantity of liquor. 17. The prosecution has also adduced evidence relating to recovery of remaining part of democran and bottle at the instance of the appellant. Sub Irispector V.N. Singh (PW -9) has deposed in his evidence that he has interrogated the appellant on 22.10.2002 after taking her into custody. She has made disclosure statement that she has buried bottle under banana tree under soil and same was recorded b) him vide Ex-P/8. He went along with the witnesses and the appellant, the appellant exhumed the bottle of democran containing some drop of liquid from the soil which he has seized from the appellant vide Ex.P/9. Jamuna (PW-7) has corroborated the factum of disclosure statement given by the appellant and recovery of bottle of democran at the instance of the appellant in his evidence. The defence has cross-examined Birbal (PW -4) and Jamuna (PW - 7) in detail, but has not been able to elicit anything in their cross-examination to discredit their testimony relating to factum of disclosure statement and recovery of bottle of democran at the instance of the appellant. Both the witnesses have admitted that the place from where the appellant exhumed bottle of democran was open kitchen garden and insecticide is usually found in the house of the villagers. Both the witnesses have admitted that the place from where the appellant exhumed bottle of democran was open kitchen garden and insecticide is usually found in the house of the villagers. It reveals from the evidence of Birbal (PW -4) and Jamuna (PW -7) that bottle of democran was exhumed by the appellant under banana tree from kitchen garden and kitchen garden was open place. 18. In order to attract the provisions of Section 27 of the Evidence Act, the prosecution is required to prove that the fact disclosed by the accused/appellant was previously not within the knowledge of the investigating officer or facts disclosed was such of nature which was only in the knowledge of the accused and was not within the knowledge of other persons from whom investigating officer may receive such information. 19. While dealing with the question of evidentiary value of disclosure statement given by the accused under Section 27 of the Evidence Act, the Apex Court in the matter of Karan Singh Vs. State of U.P4 has held that the prosecution is required to prove that the facts disclosed was not within the knowledge of the police prior to such disclosure statement given by the accused. 4. (1973) 3 SCC 662 20. While dealing with the same question, the Apex Court in the matter of Thimma Vs. The State of Mysore5 has held that once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused. Relevant para of the said judgment reads as under:- 5. AIR 1971 SC 1871 "10. . . . . . . . One once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary...." 21. While dealing with the same question, the Apex Court in the matter of Jaffer Husain, Dastagir Vs. The State of Maharashtra6 has held that if the facts are within the knowledge of the police, then disclosure of statement of the accused is inadmissible in terms of Section 27 of the Evidence Act. While dealing with the same question, the Apex Court in the matter of Jaffer Husain, Dastagir Vs. The State of Maharashtra6 has held that if the facts are within the knowledge of the police, then disclosure of statement of the accused is inadmissible in terms of Section 27 of the Evidence Act. 6. AIR 1970 SC 1934 22. While dealing with the question of the place from where fact disclosed is recovered, the Apex Court in the matter of Maruti Rama Naik Vs. State of Maharashtra7 has held that recovery of article from the place which was easily assessable by other people and that too after 9 days of the incident would not at alt be sufficient to base a conviction without further acceptable corroboration. Relevant para of the said judgment reads as under: 7. AIR 2003 SC 3884 "7. . . . . . The only other piece of evidence relied by the prosecution to support its case against these two appellants is that of recovery which even according to prosecution, was made from a place which was not in the exclusive possession of the appellants and the said place was easily accessible by other people and also the fact that recovery was made almost 9 days after the incident in question, in our opinion, this piece of evidence also would not at all be sufficient to base a conviction of these appellants without further acceptable corroboration. Therefore, we are of the opinion that these appeals must succeed. . . . . . ." 23. In the present case, admittedly, kitchen garden was open place, but bottle of democran was not lying in open place, it was hidden and buried and after exhuming from the soil it was recovered on the basis of disclosure statement made by the appellant. It clearly shows that bottle of democran was hidden under the soil and was recovered on the basis of disclosure statement made by the appellant. The defence has not suggested anything to show that this fact was within the knowledge of the police or other persons prior to disclosure statement made by the appellant. In these circumstances, recovery of bottle of democran on the basis of disclosure statement made by the appellant from hidden place is admissible in terms of Section 27 of the Evidence Act. 24. In these circumstances, recovery of bottle of democran on the basis of disclosure statement made by the appellant from hidden place is admissible in terms of Section 27 of the Evidence Act. 24. Recovery of bottle of democran on the basis of disclosure statement made by the appellant is capable of two interpretations: (1) She was the person who concealed the bottle, and (2) She had the knowledge of the place where it was hidden. But no presumption can be drawn on the basis of recovery of bottle at the instance of disclosure statement of the appellant that the appellant was author of the crime. 25. The Apex Court in the matter of Pohalya Motya Valvi Vs. Stale of Maharashtra8 has held that where the information led to disclosure of weapon of the offence, it was capable of two interpretations i.e. (1) he was the person who concealed the weapon, or (2) that he had the knowledge of the place where it was hidden. Hence, the accused could not be convicted for murder on the basis of such information. 8. AIR 1979 SC 1949 26. Seized bottle of democran containing some liquid was sent for chemical examination and presence of democran insecticide (organo prosperous) was confirmed by the Forensic Science Laboratory, Raipur vide its report Ex.P/32. The Forensic Science Laboratory has also confirmed the presence of democran and ethyl alcohol in viscera of the aforesaid four deceased persons. On the basis of aforesaid report, it may be presumed that bottle of democran was containing democran insecticide (organo phosphorous) and the san1e was also found in viscera of the aforesaid four deceased persons. 27. As regards extrajudicial confession of the appellant is concerned, the evidence of Birbal (PW-4) and Triveni (PW-6) relating to extrajudicial confession made by the appellant to them are unchallenged in their evidence and further corroborated by the evidence of Triveni that the appellant was in habit of drink liquor, but on that day she did not drink liqnor which finds support from the evidence of Gangaram (PW-1). From perusal of paras 3 and 4 of the evidence of Birbal (PW -4), it reveals that the appellant refused to drink liquor on the ground that democron was added in the liquor. 28. In case of administration of poison for commission of murder, the Apex Com1 in the matter Mohan Vs. From perusal of paras 3 and 4 of the evidence of Birbal (PW -4), it reveals that the appellant refused to drink liquor on the ground that democron was added in the liquor. 28. In case of administration of poison for commission of murder, the Apex Com1 in the matter Mohan Vs. State of Utter Pradesh9 has held the following three ingredients necessary to prove guilt of the accused/appellant:- 9. AIR 1960 SC 659 (1) Whether the person died of the poison in question? (2) Whether the accused was in possession of poison? (3) Whether the accused was having on opportunity to administer the poison in question to the deceased? Para 8 of the said judgment reads as under:- "8. The learned advocate for the appellant has first contended that the conviction is wrong in law in view of the decision of this Court in Dharambir Singh Vs. The State of Punjab, Cri App. No. 98 of 1958 (SC). That was a cast of murder by poisoning. It was there said: "Three questions arise in all such cases, viz., (firstly), did the deceased die of the poison in question? (secondly), had the accused the poison in question in his possession? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased? Therefore, along with the motive, the prosecution has also to establish that the deceased died of a particular poison said to have been administered, that the accused was in possession of that poison and that he had the opportunity to administer the some to the deceased...." 29. While dealing with the same question, the Apex Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra10 has held that 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: 10. AIR 1984 SC 1622 (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. 30. AIR 1984 SC 1622 (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. 30. In the present case, Triveni (PW -6) has specifically deposed in para 3 of his evidence that during the course of rainy season, he and Sarju, husband of the appellant, had purchased democran which was kept in the house of Sarju i.e. husband of the appellm1t. It reveals that democran was kept in the house of the appellant. The appellant has made extra judicial confession to Birbal (PW-4) and Triveni (PW-6) that she has added democran in the liquor which ultimately the deceased persons have consumed. The appellant has made disclosure statement of bottle of democran which was found in the hidden position and was buried in the soil. The appellant has not offered any explanation that who had buried the bottle in the soil and how she knows the fact that bottle was buried in the soil. The appellant, who is in habit of drinking liquor, has not drunk liquor on the elate of incident, especially her husband, her father-in-law, her mother-in-law and her sister-in-law i.e. her two women relatives had taken liquor. If these circumstances are considered together, then only irresistible inference would legally be possible that the appellant was the person, author of the crime and has administered poison having sufficient opportunity to administer the poison to the deceased persons and as a result of such administering of poison, the aforesaid four persons died. 31. In the present case, the conviction of the appellant is based on the evidence of extra judicial confession and recovery of poison on the basis of disclosure of statement of the appellant. The circumstances proved against the appellant are sufficient for drawing inference that the appellant has administered the poison and as a result of such administering of poison, Sarju, Smt. Shanti Bai, Smt. Injoriya and Nanka @ Nanwa died. 32. After appreciating the evidence available on record, learned Sessions Judge has convicted the appellant under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.2000/-. 32. After appreciating the evidence available on record, learned Sessions Judge has convicted the appellant under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.2000/-. The conviction is based on credible, clinching and legal evidence sustainable under the law. The Court below has awarded minimum sentence prescribed under the law. 33. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned. The appeal being devoid of merit is liable to be dismissed and is accordingly dismissed. Appeal Dismissed.