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2011 DIGILAW 52 (CHH)

Hariprasad @ Kishan Sahu v. State of C. G.

2011-02-09

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 9-3-2006 passed by the Special Judge constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'), Bilaspur, in Special Criminal Case No. 19/2005, whereby & whereunder learned Special Judge while acquitting the Appellant of charge under Section 3 (2) (5) of the Act, convicted him under Section 302 of the IPC for causing culpable homicide amounting to murder of Bisahu Singh Uike, and sentenced him to undergo imprisonment for life & pay fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for one year. 2. Conviction is impugned on the ground that without any iota of evidence the trial Court has convicted & sentenced the Appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on 22-7-2003 the Appellant administered liquor to Bisahu Singh Uike (since deceased), thereafter, he added poison in the liquor and provided to Bisahu. After consuming such poisonous liquor, Bisahu felt problem in breathing and he was badly affected by poison, but some how he came to his house and fell down in the verandah. Bisahu made dying declaration before his wife Ganesh Bai (PW-2), Anita Porte (PW-3), Sukwara Bai (PW-4), Rajesh Kumar (PW-5) and Bhagwati (PW-7). Thereafter, Bisahu was examined by Dr. Sudesh Verma (PW-1) who noticed pungent smell from the mouth of Bisahu and he immediately directed the relatives of Bisahu for shifting Bisahu to Government hospital. Relatives of Bisahu shifted Bisahu to Government hospital and same was intimated by the doctor to the police vide Ex.P-1. During treatment Bisahu died on 23-7-2003 at about 3.30 p.m. and death was intimated to police vide Ex.P-3. Merg was recorded vide Exs.P-4 & P-6. After summoning the witnesses vide Ex.P-10, inquest over the dead body of deceased Bisahu was prepared vide Ex.P-9. Dead body was sent for autopsy to CIMS, Bilaspur vide Ex.P-5A. Dr. A.K. Shukla (PW-18) conducted autopsy vide Ex.P-13 and found following symptoms: • Swelling in brain membrane, trachea, lungs and kidney. • Viscera were preserved, same was sent for chemical examination and presence of organo phosphorous insecticide was confirmed in viscera vide Ex.P-14. Finally, on the basis of merg inquiry, FIR was registered vide Ex.P-11. The accused was arrested vide Ex.P-8. 4. • Viscera were preserved, same was sent for chemical examination and presence of organo phosphorous insecticide was confirmed in viscera vide Ex.P-14. Finally, on the basis of merg inquiry, FIR was registered vide Ex.P-11. The accused was arrested vide Ex.P-8. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Bilaspur who committed the case to the Court of Special Judge constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bilaspur, where trial of the case was conducted. 5. In order to prove the guilt of the Appellant, the prosecution has examined as many as nineteen witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him, pleaded innocence and false implication. He has also examined Pardeshi Ram Gond (DW-1) who has deposed that from 19-7-2003 to 23-7-2003 the Appellant was present in his house at Raipur and thereby, the Appellant has taken the defence of alibi. 6. After affording opportunity of hearing to the parties, learned Special Judge convicted & sentenced the Appellant in the aforesaid manner. 7. We have heard learned Counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned Counsel for the Appellant vehemently argued that in case of murder by administering poison, the prosecution is required to prove the fact that the accused was having clear motive to administer poison to the deceased and that the deceased died as a result of poison, the accused was in possession of poison and was having sufficient opportunity to administer poison to the deceased. In the present case, the prosecution has not proved any of the aforesaid conditions and in absence of such proof, conviction & sentences of the Appellant are not sustainable under the law. Learned Counsel further argued that conviction of the Appellant is substantially based on the dying declaration made before his relatives which does not inspire confidence and it is not trustworthy. As per case of the prosecution, the Appellant has administered poison to Bisahu on 22-7-2003, but in the present case. Learned Counsel further argued that conviction of the Appellant is substantially based on the dying declaration made before his relatives which does not inspire confidence and it is not trustworthy. As per case of the prosecution, the Appellant has administered poison to Bisahu on 22-7-2003, but in the present case. FIR has been lodged on 3-11 -2004 after more than one year four months and thereafter, statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. The prosecution has not recorded statements of the witnesses on the date of incident or within considerable time, but has recorded statements on 6-12-2004 and 16-11-2004 and the prosecution has not explained the delay in recording such statements. At the time of autopsy, doctor has not given any opinion relating to cause of death of the deceased, he has simply preserved viscera. Autopsy report does not reflect presence of liquor or smell of liquor, though same has been noticed by Dr. Sudesh Verma (PW-1) at the time of examination of the deceased when he was alive. These discrepancies are fatal to the prosecution and in absence of cogent, credible and clinching evidence, conviction of the Appellant is not sustainable under the law. 9. Learned Counsel for the Appellant placed reliance in the matter of State of Uttar Pradesh v. Shri Krishan 2005(1) CCSC 450 in which the Supreme Court has held that statement of sole witness under Section 161 of the Code of Criminal Procedure recorded after 13 days without proper explanation and other discrepancies are fatal to the prosecution. Learned Counsel further placed reliance in the matter of Prem Narain and Anr. v. State of Madhya Pradesh 2007(1) CCSC 60 (SC) in which the Supreme Court has held that statement of the witness recorded after six weeks under Section 161 of the Code of Criminal Procedure without any explanation is fatal to the prosecution. 10. On the other hand, learned State counsel vehemently opposed the appeal and submitted that in the present case, documents and evidence adduced on behalf of the prosecution are sufficient for drawing inference that the deceased died as a result of poisoning, the Appellant has administered poison to the deceased, he was having sufficient opportunity to administer poison to the deceased and on account of enmity, he has administered such poison to the deceased. In the present case, FIR has been recorded after more than one year four months, but merg has been recorded on the same day i.e. 23-7-2003 vide Ex.P-4 which clearly reveals that cause of death of the deceased was poisoning. Viscera was sent for examination and viscera report has been received by the Investigating Officer on 27-8-2004, thereafter FIR was registered and statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. Before registration of FIR, statement under Section 161 of the Code of Criminal Procedure was not possible, but the witnesses were examined in the merg enquiry. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 12. In the present case, death of deceased Bisahu as a result of poison has not been substantially disputed on behalf of the Appellant, otherwise also it is established by the evidence of Dr. A.K. Shukla (PW-18), autopsy report Ex.P-13, viscera examination report Ex.P-14, initial intimation by doctor to police Ex.P-1, merg report Ex.P-3 and merg Ex.P-4 that the deceased died as a result of poisoning and organo phosphorous insecticide was found in viscera of the deceased. 13. Death as a result of poison by itself is not homicidal death, but same is abnormal death. The prosecution is required to prove that death of the deceased was not suicidal and was homicidal and that the Appellant has administered poison to the deceased. 14. As held by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984)4 SCC116 in cases of death by poisoning 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 the 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 possession, (4) that he had an opportunity to administer the poison to the deceased. 15. In the present case, death of the deceased was as a result of poisoning. 16. 15. In the present case, death of the deceased was as a result of poisoning. 16. As regards administering of poison by the Appellant, the Appellant has taken defence of alibi by adducing the evidence of defence witness Pardeshi Ram Gond (DW-1) who has deposed that in the year 2003 he was residing at Raipur, on 19-7-2003 the Appellant visited his house at Raipur and informed him that he will attend some rally to be held on 20-7-2003, the Appellant attended the rally, thereafter he stayed till 23-7-2003 and on 23-7-2003 the Appellant left his house. In his detailed cross-examination this witness has denied the suggestion that the Appellant has not visited his house on 19-7-2003 and he has not stayed in his house. 17. Ganesh Bai (PW-2) - wife of the deceased has deposed that on 22nd July, 2003 (Tuesday) her husband went to society for purchasing kerosene & sugar, he came thereafter with aforesaid articles, he stayed in his house and thereafter he went to the house of Rammilan Nai to attend Chatti function and then he went to the forest for collecting wood, but he did not come back at night. At about 7 a.m. on 23-7-2003 she saw her husband who was lying in verandah, sound (ghar ghar) was coming from his neck on which she called her neighbours. Condition of her husband was serious. Her husband directed her to call Kotwar whereupon she called Kotwar Bhagwati and before Kotwar & other persons, he made dying declaration that while he was going to forest, he was called by Appellant Hariprasad on which he went to the house of Hariprasad where they consumed liquor. Her husband has further stated that after consuming two glasses of liquor, Appellant Hariprasad added some thing in third glass of liquor and on being asked, Hariprasad told him that he has added medicine for substantiating the effect of liquor. They immediately called Dr. Sudesh Verma (PW-1) who initially examined her husband and directed to shift him to Bilaspur hospital, then they shifted her husband to Bilaspur hospital. She has deposed in para 6 of her evidence that there was long enmity of the deceased with the Appellant on account of land dispute. Her evidence has been corroborated by the evidence of her daughter Anita Porte (PW-3), Sukwara Bai (PW-4)- neighbour & Rajesh Kumar (PW-5). 18. She has deposed in para 6 of her evidence that there was long enmity of the deceased with the Appellant on account of land dispute. Her evidence has been corroborated by the evidence of her daughter Anita Porte (PW-3), Sukwara Bai (PW-4)- neighbour & Rajesh Kumar (PW-5). 18. Bhagwati (PW-7) - Kotwar has not corroborated the evidence of aforesaid witnesses and the prosecution has declared him hostile. He has deposed in his evidence that when he went to the house of the Appellant, the Appellant was not present in his house, his wife told him that the Appellant has gone to attend rally. 19. Dr. Sudesh Verma (PW-1) has corroborated the evidence of Ganesh Bai (PW-2) and has deposed that he is practicing doctor, he was called by relatives of Bisahu (since deceased) and on 23-7-2003 he has examined Bisahu, his breathing was abnormal, some pungent smell and smell of liquor was coming from his breath, his condition was serious and the patient (the deceased) informed him that he has consumed liquor with some known person on which he (this witness) directed to shift Bisahu to Bilaspur hospital. This witness has further deposed that wife of Bisahu told him that Bisahu has consumed liquor with some person who added some jadi buti. 20. Defence has cross-examined Ganesh Bai (PW-2) in detail. In her detailed cross-examination, para 8, she has specifically deposed that on the fateful day the Appellant was present in the village and has denied the suggestion that the Appellant had gone to attend rally on 23-7-2003, She has denied the suggestion that her husband has not made dying declaration before her and she is falsely implicating the Appellant. 21. Defence has also cross-examined Anita Porte (PW-3) - daughter of the deceased in detail and in her detailed cross-examination she has admitted the fact that her father has encroached upon land and constructed house. She has denied the suggestion in para 12 of her cross-examination that her father was not in a position to talk. She has further denied the suggestion that the Appellant has made complaint against her father relating to payment of compensation. She has also denied the suggestion that the Appellant was not present in the village on the date of incident. But, she has admitted the suggestion in para 15 that pungent smell was coming out from the mouth of her father. 22. She has also denied the suggestion that the Appellant was not present in the village on the date of incident. But, she has admitted the suggestion in para 15 that pungent smell was coming out from the mouth of her father. 22. Defence has also cross-examined Sukwara Bai (PW-4) but has not suggested anything to this witness relating to dying declaration or the fact that the Appellant was not present in the village. In cross-examination, another witness Rajesh Kumar (PW-5) has denied the suggestion that the deceased was not in a position to talk and has not made any dying declaration. 23. Definitely, statements of witnesses Dr. Sudesh Verma (PW-1) & Ganesh Bai (PW-2) under Section 161 of the Code of Criminal Procedure, Exs.D-1 & D-2, respectively have been recorded after more than one year four months of the incident. In the present case, FIR has been lodged on 3-11-2004 and thereafter, statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. Prior to recording of FIR, recording of statement under Section 161 of the Code of Criminal Procedure is not possible, but FIR has been registered on the basis of merg inquiry. Defence has not asked anything to these witnesses whether they have not been interrogated by the Investigating Officer during merg inquiry. In these circumstances, delay in recording statement under Section 161 of the Code of Criminal Procedure would not be fatal to the prosecution. 24. In the matters of State of Uttar Pradesh1 (supra) and Prem Narain1 (supra), the Supreme Court has held that delay in recording statement of witness under Section 161 of the Code of Criminal Procedure by itself is not fatal to the prosecution, but if it is not explained same is fatal to the prosecution. 25. In the present case, firstly merg inquiry was conducted, viscera was sent for chemical examination and after receiving viscera report, FIR has been registered. Before registering FIR, recording of statement of witness under Section 161 of the Code of Criminal Procedure would not be possible. This is sufficient explanation in the present case. 25. In the present case, firstly merg inquiry was conducted, viscera was sent for chemical examination and after receiving viscera report, FIR has been registered. Before registering FIR, recording of statement of witness under Section 161 of the Code of Criminal Procedure would not be possible. This is sufficient explanation in the present case. As held by the Supreme Court in the matters of State of Uttar Pradesh 1 (supra) and Prem Narain2 (supra), in the aforesaid circumstances, the prosecution has offered proper explanation and such delay in recording statement under Section 161 of the Code of Criminal Procedure is not fatal to the prosecution. 26. In the present case, inquest Ex.P-9 has been prepared by the Investigating Officer on 24-7-2003, second day of the incident. Ex.P-9 reveals that the witnesses have stated at the time of inquest that the deceased has earlier consumed liquor, thereafter Appellant Hariprasad has added something i.e. jadi buti in the liquor and told that by this the effect of liquor would be diluted. Same thing is mentioned in Ex.P-5 -request for autopsy prepared on the same day. These crucial documents reveal that on first day the witnesses have informed that the Appellant has added some material in liquor which the deceased consumed and thereafter, position of the deceased became deteriorated and finally he died. 27. Evidence of Ganesh Bai (PW-2) - wife of the deceased, Anita Porte (PW-3) - daughter of the deceased, Sukwara Bai (PW-4) - neighbour & Rajesh Kumar (PW-5) relating to dying declaration made by deceased Bisahu reveal that after drinking liquor with the Appellant, the Appellant has added some material in liquor and told him that it will dilute the effect of intoxication, but instead of diluting such effect, position of the deceased became deteriorated and finally he died. These facts are well corroborated by the promptly prepared inquest Ex.P-9 and request for autopsy Ex.P-5. Autopsy was conducted by Dr. A.K. Shukla (PW-18) who has deposed that he has preserved viscera of the deceased and same has been sent for chemical examination. Viscera report Ex.P-14 reveals that presence of organo phosphorous insecticide was found in the viscera. These facts are sufficient to establish the fact that the Appellant was having sufficient opportunity to administer some material in the liquor of the deceased which the deceased has consumed. Death of the deceased was a result of poison. Viscera report Ex.P-14 reveals that presence of organo phosphorous insecticide was found in the viscera. These facts are sufficient to establish the fact that the Appellant was having sufficient opportunity to administer some material in the liquor of the deceased which the deceased has consumed. Death of the deceased was a result of poison. Organo phosphorous insecticide was found in viscera of the deceased which shows that the deceased has consumed the aforesaid insecticide i.e. poison. Evidence of aforesaid witnesses before whom the deceased has made dying declaration clearly reveal that the deceased has not taken anything after drinking liquor in which some material has been added by the Appellant which completely rules out the possibility of administering poison by another person or administering poison subsequent to the act of the Appellant. 28. As regards question of motive, as per para 6 of the evidence of Ganesh Bai (PW-2), there was previous enmity between the Appellant & the deceased on account of land dispute. The Appellant himself has suggested to this witness in para 13 relating to complaint made by him for getting legal compensation. These facts are sufficient to establish that the Appellant was having motive for commission of murder of the deceased. 29. Aforesaid evidence adduced on behalf of the prosecution is sufficient for drawing following inferences: (1) The Appellant was having motive for causing murder of deceased Bisahu. (2) The Appellant was having opportunity to administer poison to the deceased. (3) The Appellant was in possession of poison at the time of such administration. (4) Deceased Bisahu died as a result of poison. 30. As held by the Supreme Court in the matter of Sharad3 (supra), aforesaid circumstances are sufficient for drawing inference that only the Appellant has committed murder of deceased Bisahu by administering poison. 31. After appreciating the evidence available on record, learned Special Judge has convicted & sentenced the Appellant in the aforesaid manner. On close scrutiny of evidence, we do not find any illegality in conviction & sentences of the Appellant requiring interference in exercise of appellate jurisdiction. 32. Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed.