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2013 DIGILAW 253 (CHH)

SHIV KUMAR @ MUNNA v. STATE OF C. G.

2013-08-29

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

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JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. :- 1. This appeal is directed against judgment dated 31-3-1998 passed by Additional Sessions Judge, Janjgir, District Bilaspur in Sessions Trial No. 166/95. By the impugned judgment, accused/appellant Shiv Kumar @ Munna has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: Marriage of deceased Neera Bai was solemnized with the appellant 8-9 months prior to the incident. After marriage deceased was residing with the appellant. The deceased used to omit. The appellant suspected her chastity and some quarrel took place between the appellant and the deceased. Thereafter, the appellant got birds' killing poison from his friend Ashok Kumar (PW-3) and administered it on the deceased and also pressed her neck. The appellant took the jewellery of the deceased and sold it to one Jagsai (PW-12) and consumed liquor. Thereafter, the appellant took blessing by touching the feet of his father, Kapil Prasad (PW-1) and brother Shivshankar @ Bade Munna (PW-14) and narrated the incident to them and left a letter (Ex.-P/10) before his elder brother Shivshankar @ Bade Munna (PW -14). Just before the incident the appellant was present in his room alongwith the deceased. In the evening, when the deceased did not come out from the room, Ambika Bai (PW-4, mother-in-law of the deceased) called her, when the deceased did not reply, then she went to the room and saw that the deceased was lying. She called her husband Kapil Prasad (PW-1). Kapil Prasad (PW-1) went inside the room and he found that the deceased was dead. Kapil Prasad (PW -1) lodged First Inforn1ation Report (Ex.-P/1) and merg intimation (Ex;-P/2) in Police Outpost Baloda. Thereafter, regular First Information Report (FIR) (Ex.-P/25) and regular merg intimation (Ex.-P/24) were registered in Police Station, Akaltara. The Investigating Officer reached to the place of occurrence, gave notices (Ex.-P/3 & Ex.-P/5) to Panchas and prepared inquest (Ex.-P/4) on the dead body of the deceased. The dead body was sent to Community Health Center Baloda Bazar for post mortem examination vide EX.-P/14. The postmortem examination was conducted by Doctor S.C. Mishra (PW-7). He gave his report (Ex.-P/15), in which he opined that the cause of death was asphyxia due to poison, like cyanide, and the death was suicidal in nature. The dead body was sent to Community Health Center Baloda Bazar for post mortem examination vide EX.-P/14. The postmortem examination was conducted by Doctor S.C. Mishra (PW-7). He gave his report (Ex.-P/15), in which he opined that the cause of death was asphyxia due to poison, like cyanide, and the death was suicidal in nature. In further investigation; steel thali, Katori and mala were seized from the place of occurrence vide EX.-P/6. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide EX.-P/9 and at his instance, a letter (Ex.-P/10) was seized from the appellant vide Ex.-P/11. Viscera of the deceased was seized vide EX.-P/12. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class; Janjgir, who, in turn, committed the case to the Court of Session, Bilaspur, from where it was received on transfer by the Additional Sessions Judge, Janjgir who conducted the trail and convicted and sentenced, the appellant as mentioned above. 3. Shri V.C.Ottalwar, learned counsel appearing for the appellant, submitted that the appellant has been falsely implicated. The prosecution has relied upon evidence of Ashok Kumar (PW-3) but on the basis of his evidence, the prosecution has not been able to prove that the appellant administere4 poison on the deceased. He further argued that there was, no eye-witness to the incident and the case of the prosecution was based, on circumstantial evidence. The circumstances were not fully established nor they were of conclusive nature and tendency and all the circumstances allegedly proved against the appellant were capable of being explained. EX.-P/10 can not be treated as extrajudicial confession of the appellant and it can not be used against the appellant for conviction. Therefore, the conviction based on the above circumstantial evidence can not be sustained. He placed reliance upon Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 . 4. On the other hand, Shri Sudhir Bajpai, learned Deputy Govt. Advocate appearing on behalf of the State/respondent, has opposed these arguments and supported the impugned judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 166/95. 6. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on the circumstantial evidence. 5. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 166/95. 6. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on the circumstantial evidence. The main circumstances which the learned Additional Sessions Judge appears to have taken note of are thus:- (i) the appellant brought birds' killing poison through his mend Ashok Kumar (PW-3); (ii) the appellant administered the poison on the deceased and the appellant remained present in the room along with the deceased prior to death of the deceased; and (iii) extra judicial confession of the appellant regarding commission of murder of the deceased vide letter (Ex.-P/10). 7. In Sharad Birdhichand Sardal, (1984) 4 SCC 116 (Supra), it was held that the following condition must be fulfilled before a case against the accused can be said to be fully established on circumstantial evidenced:- The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully, established; ii. The facts so established should be consistent only, with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii. The circumstances should be of a conclusive nature and tendency; iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be chain of evidence so complete as to not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 8. It was further held that in a case 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 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 his possession; (4) That he had an opportunity to administer the poison to the Deceased. 9. In Mohan Vs. 9. In Mohan Vs. State of Uttar Pradesh, AIR 1960 SC 659 , Hon'ble the Supreme Court observed thus:- "In the case of a murder by administering poison, the prosecution has, along with the motive, 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 same to the deceased. Thus, where the evidence in the case shows that the accused gave the deceased three "peras" and within half an hour, he became ill and died within two hours, that the food which the deceased had taken did not contain any poison, that the deceased did not take any other food apart from the peras and lastly it was clear from the result of the chemical examination that he had died of arsenic poisoning." 10. Ashok Kumar (PW-3) deposed that Shiv Kumar (appellant) came to him and asked for birds' killing poison. On being repeated request made by the appellant, he brought a birds' killing poison from Korba and gave it to the appellant. He further deposed in para 5 of his deposition that it is true that he purchased poison from shop which is situated near Meera Dhalan Transport Nagar, Korba. Ashok Kumar (PW-3) deposed in his examination-in-chief that Shiv Kumar (appellant) did not ask him to bring the poison and also he did not ask that he will also kill birds. 11. The incident took place on 09-02-1995 and statement under Section 161 Cr.P.C. of Ashok Kumar (PW-3) was recorded on 23-02-1995 i.e. after 14 days of the incident. Initially, Ashok Kumar (PW-3) denied regarding purchasing of poison. He specifically deposed that the appellant did not ask him for bringing the poison. When prosecution cross-examined him then only he deposed that on being asked by the appellant, he brought poison and gave it to the appellant. The delay in recording statement of witnesses by itself is not sufficient to suspect prosecution version if the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible. However, delay in recording statement of important witnesses without reasonable explanation creates doubt about genuineness of prosecution case. In the instant case, Ashok Kumar (PW-3) is a material witness. However, delay in recording statement of important witnesses without reasonable explanation creates doubt about genuineness of prosecution case. In the instant case, Ashok Kumar (PW-3) is a material witness. The prosecution has not offered any proper and plausible explanation relating to delay in recording the statement of Ashok Kumar (PW-3). In the absence of aforesaid explanation, evidence of Ashok Kumar (PW-3) appears to be doubtful. 12. Kapil Prasad (PW -1) deposed that the appellant was not used to commit marpeet with the deceased. On the date of incident, when his son Anjani came to his shop for bringing the vegetable, at that time appellant Shiv Kumar came to motor stand. He further deposed he does not know whether at that time appellant was in drunken condition or not. He further deposed that Anjani Kumar went home after purchasing vegetable and left the vegetable in the home and returned back to the shop within half an hour and told him that his mother has called him. Thereafter, he left Anjani Kumar in his beetle shop and went home then Ambika Bai informed him that in noon, the appellant and the deceased were in the room and in evening 3.00 pm appellant Shiv Kumar went towards the basti and his daughter-in-law (deceased) did not come out from the room till evening. She also informed him that some guests came to their home but the deceased did not come out from the room even after calling 2-3 times by her. After going of the guests, when she went to the room of the deceased, she saw that the door was open and her daughter-in-law (deceased) was lying on the floor. Thereafter, he went inside the room along with his wife Ambika Bai (PW-4), Anjani and Umashakar and saw that his daughter-in-law (deceased) is lying straight on the floor. She was dead. At that time appellant Shiv Kumar was not present, there. 13. Jagsai (PW-12) deposed that on 09-02-1995, he was present in his house. He saw that appellant Shiv Kumar was going through his mohalla. On being asked he told that he was going to his employer. After 10-15 minutes, the appellant returned back and on being inquired he replied that he was not feeling well so he returned back. He went to his house. He saw that appellant Shiv Kumar was going through his mohalla. On being asked he told that he was going to his employer. After 10-15 minutes, the appellant returned back and on being inquired he replied that he was not feeling well so he returned back. He went to his house. Jagsai (PW-12) further deposed that there was no conversation regarding money between him and the appellant and he denied that appellant Shiv Kumar gave him pairpatti expressing the necessity of money. He further deposed that he had not given Rs.135/-to appellant Shiv Kumar. Appellant Shiv Kumar did not tell him that his wife was ill. 14. Firangi Lal (PW-13) deposed that after 4-8 days of the marriage of the deceased when he had taken the deceased to her parental house from matrimonial house the deceased had told him that the appellant does not do any work, consumes liquor and he used to sell kitchen articles and jewellery of the house for consuming liquor. He commits marpeet with the deceased. He further deposed that some quarrel took place between the appellant and the deceased, so mother and father of the appellant separated him from the family and Neera Bai (deceased) used to cook meal for herself and the appellant separately. 15. Shivshankar @ Bade Munna (PW-14) deposed that wife of appellant Shiv Kumar has died. Appellant Shiv Kumar was residing along with his wife (deceased) in a separate room of their house. He denied that on the date of incident at 4.00-5.00 pm, appellant Shiv Kumar came to his shop and at that time he was in drunken condition and was weeping. He further denied that appellant asked for a paper and pencil and wrote a letter and had left it in his shop and went therefrom. 16. Gyan Chand (PW-15) was the employer of the appellant. He deposed that appellant Shiv Kumar came on work 5-7 days prior to death of his wife. Thereafter he did not come on work. On the date of incident, the appellant came to his shop and caught his legs. He was weeping and saying that he would not do work here, he would not come on work and he was asking to forgive him for his mistakes. 17. Sadhusharan Dewangan (PW-16) deposed that on the date of incident, when he was going for lunch, he met with the appellant in Bus Stand. He was weeping and saying that he would not do work here, he would not come on work and he was asking to forgive him for his mistakes. 17. Sadhusharan Dewangan (PW-16) deposed that on the date of incident, when he was going for lunch, he met with the appellant in Bus Stand. He was talking with Bihari. At about 4.00 pm, the appellant came to his shop. He was weeping. On being asked the reason, he did not reply. Thereafter, he went from there. He deposed that the appellant remained about 10-15 minutes in his shop. 18. In the instant case, learned Additional Sessions Judge has relied upon the letter (Ex.-P/10) and has held that the appellant made extra judicial confession through EX.-P/10. Therefore, Ex.-P/10 can be based for conviction of the appellant. 19. Doctor S.C.Mishra (PW-7) deposed that he had conducted postmortem on the dead body of the deceased on 10-02-1995 at about 4.15 pm. He opined that cause of death was asphyxia (respiratory failure) due to poison like cyanide and the death was suicidal in nature. Doctor S.C.Mishra (PW-7) has deposed that he found no external injury on the neck of the deceased. 20. In EX.-P/10, it is mentioned that :- ^^cM+s eqUuk pj.k Nqdj iz.kke vkxs eSa xyrh dj fy;k gw¡ rqEgkjh cgw dks tgj xksyh f[kykdj ekj jgk Fkk og ugha ih jgh Fkh rks xyk nckdj ekjk xyrh gks xbZ {kek dj nsuk vkSj eq>s ryk’k er djuk eSa tk jgk gw¡A /kU;okn** 21. Looking to the contents of Ex.-P/10, it appears that when the deceased did not consume poison, then the appellant killed her by pressing her neck. If the death was caused due to throttling, then Doctor S.C.Mishra (PW7), who conducted autopsy on the dead body of the deceased, would have found injury on the muscles of the neck. In internal examination he would have also found injuries on arteries larynx and hyoid bone etc. But above symptoms were not found on the dead body of the deceased. Doctor S.C.Mishra (PW-7) specifically mentioned in Ex.P/15 that cause of death was due to poison like cyanide and the death was suicidal in nature. 22. According to the prosecution case, Ex.-P/10 was left with Shivshankar @ Bade Munna, but it was recovered at the instance of the appellant on the basis of his discovery statement. The death of the deceased was suicidal in nature. 22. According to the prosecution case, Ex.-P/10 was left with Shivshankar @ Bade Munna, but it was recovered at the instance of the appellant on the basis of his discovery statement. The death of the deceased was suicidal in nature. In Ex.-P/10, it is mentioned that when the deceased did not consume poison then the appellant killed her by throttling. Thus there is material contradiction between medical evidence and contents of Ex.-P/10. We are of the view that Ex.-P/10 can not be treated as extra judicial confession of the appellant. Ex.-P/10 was contrary to the medical evidence, therefore, the conviction can not be based on Ex.-P/10. 23. In the instant case, it has been proved that deceased Neera Bai has died due to poison (potassium cyanide) and it has also been proved that she was residing with the appellant in the same room, but the prosecution has not been able to prove that the appellant had the poison in his possession and he had an opportunity to administer the poison on deceased Neera Bai. 24. Looking to the evidence of Panchram (PW-5), Jagsai (PW-12), Gyan Chan (PW-15) and Sadhusharan Dewangan (PW-16), it appears that at about 1.00 pm, the appellant went to the shop of Gyan Chand (PW-15) where he was working. Thereafter, the appellant met with Sadhu Sharan (PW-16). Then he came to the shop of Gyan Chand (PW -15) and was present there till 4.00 pm. Looking to the evidence of the above witnesses, as also the parents of the appellant, it appears that at the time of incident the appellant was not present in the house. 25. That apart, we find that the prosecution has not at all established the 'motive' for the accused/appellant to administer poison on the deceased. It was thus not established that the appellant has an opportunity to administer the poison and the appellant had the poison in his possession and the prosecution has not been' able to lead evidence that the appellant had secured potassium cyanide from the particular source. 26. On due appreciation of the entire evidence available on record, we find that the prosecution has not been able to prove circumstantial evidence against the appellant; the circumstances were not fully established against the appellant and the circumstances set-forth by the prosecution were not of conclusive nature and tendency and they were capable of being explained. 27. 26. On due appreciation of the entire evidence available on record, we find that the prosecution has not been able to prove circumstantial evidence against the appellant; the circumstances were not fully established against the appellant and the circumstances set-forth by the prosecution were not of conclusive nature and tendency and they were capable of being explained. 27. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. The appellant is acquitted of the charge framed against him. It is stated that the appellant is on bail. His bail bond shall continue for a period of 6 months in view of the Section 437-A Cr.P.C. Appeal Allowed.