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2013 DIGILAW 39 (CHH)

DUGESHWARI SAHOO v. STATE OF C. G.

2013-01-24

R.S.Sharma, T.P.SHARMA

body2013
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :– 1. Challenge in this appeal is to the judgment of conviction and order sentence dated 27.7.2006 passed in ST No.06/2006 whereby and whereunder the Additional Sessions Judge, Dhamtari after holding the appellant guilt for causing death of deceased Baraturam by administering poison, convicted her under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs. 100/-. 2. Conviction is impugned on the ground that without an iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned, and thereby committed illegality. 3. As per case of prosecution, on account of claim over property, appellant Durgeshwari Sahoo - wife of Chaman Sahu (PW-1) administered poison to her father-in-law Baratu Ram by mixing poison in the tonic, which the deceased used to drink. The appellant and the deceased were residing under the same roof. On 17.4.2005, the appellant mixed insecticide endosalfan (poison) on the medicine/tonic of the deceased, which the deceased used to take daily. On the next day, i.e. on 18.4.2005 at about 11.am, deceased Barathu Ram took his medicine/tonic. He noticed some bad smell coming from the medicine and within few minutes, he became unconscious. He was immediately shifted to Govt. Hospital from where he was referred to Raipur. During the course of treatment, he died and the death was reported by husband of the appellant Chaman Sahu (PW-1) vide Ex-P/1. Investigation officer reached to the hospital and gave notice to panchas and inquest over the dead body of the deceased was prepared. Spot map (Ex-P/4) was prepared and medicine/tonic was seized from Chaman Sahu (PW-1). Dead body was sent for autopsy to Govt. Hospital Nayapara vide Ex-P/15. Dr. C.V. Gupta conducted autopsy and gave his report vide Ex-P/16-A and noticed suspected case of poisoning. Visra was preserved and sent to Forensic Science Laboratory for examination and as per the report of the Doctor (Ex-P/9) presence of endosulfan was confirmed in visra and tonic vide Ex-P/11. Finally FIR was lodged vide EX.P.17. Container of endosulphan was seized on 04.05.2005 from Chaman Sahu vide Ex-P/5. 4. Statement of witnesses were recorded under Section 161 of Code of Criminal Procedure. Finally FIR was lodged vide EX.P.17. Container of endosulphan was seized on 04.05.2005 from Chaman Sahu vide Ex-P/5. 4. Statement of witnesses were recorded under Section 161 of Code of Criminal Procedure. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Dhamtari, who in turn committed the case to the Court of Sessions, Raipur, who conducted trial and convicted and sentenced the appellant as mentioned above. 5. In order to prove the guilty of the appellant, prosecution has examined as many as 17 witnesses. The accused was examined under Section 313 of Cr.P.C. in which she denied the circumstances appearing against her, pleaded innocence and false implication. 6. After affording an opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the impugned judgment 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 poisoning, the accused was in position to poison and was having sufficient opportunity to administer poison to the deceased. 9. In the present case, the prosecution has not proved any of the aforesaid conditions and in the absence of any such proof, conviction and sentence of the appellant are not sustainable under the law. Learned counsel for the appellant further argued that conviction of the appellant is substantially based on the evidence of Nomesh Kumar (PW-6) who has deposed that he has seen the appellant while she mixing the poison with the medicine/tonic of the deceased, but his statement was recorded after two months of the incident. No explanation has been offered by the prosecution for delay in recording his statement. The prosecution has not collected any evidence to connect the appellant with the crime in question. The evidence of motive to murder the deceased by itself is not sufficient for convicting the appellant and it also failed to prove that the appellant has caused the sudden death of the deceased. 10. The prosecution has not collected any evidence to connect the appellant with the crime in question. The evidence of motive to murder the deceased by itself is not sufficient for convicting the appellant and it also failed to prove that the appellant has caused the sudden death of the deceased. 10. On the other hand, learned counsel for the State/respondent opposed the above statement and submitted that in the present case documents and evidence adduced on behalf of the prosecution are sufficient for the drawing inference that the deceased died as a result of poisoning, the appellant has administered poison to the deceased and the Court below has rightly convicted and sentenced the appellant. 11. In order to appreciate the arguments advanced by the learned counsel on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 12. In the present case, homicidal death of deceased Barathu Ram as a result of consuming poison has not been substantially disputed on behalf of the appellant. Even otherwise also it is established by the evidence of Dr. DK Gupta (Ex-16/A) and FSL Report (Ex-P/11) that the death of deceased was homicidal in nature. 13. As regards the complicity of the appellant in crime in question is concerned, the prosecution has adduced two sets of evidence. (1) that the appellant was having motive for commission of offense. (2) She has mixed the poison in the tonic of the deceased knowing well that the deceased will use the tonic and thereby administered poison to the deceased. As per the evidence of Chaman Sahu (PW-1) - son of the deceased, the deceased had taken the tonic and as a result of consuming it, the deceased died. Subsequently it was found that the tonic was mixed with poison. Sukmant Bai (PW-2) - wife of the deceased, Rameshwar (PW-3), Bahuram (PW-4) and Anwati (PW-5) have deposed that after consuming the tonic, the deceased immediately told the appellant that she succeeded in passing the examination by administering the poison. This evidence can be considered as motive for commission of offense, but the motive itself is not sufficient for conviction of the appellant. 14. The prosecution has examined Nomesh Kumar (PW-6) as eye witness, before whom the appellant has mixed insecticide endosulphan in the tonic of the deceased. This evidence can be considered as motive for commission of offense, but the motive itself is not sufficient for conviction of the appellant. 14. The prosecution has examined Nomesh Kumar (PW-6) as eye witness, before whom the appellant has mixed insecticide endosulphan in the tonic of the deceased. Nomesh Kumar (PW-6) is maternal grand son of deceased Barathu Ram and as per his evidence, he was present on the spot on 17.04.2005, at the time of mixing of the poison in the tonic of the deceased by the appellant. On the next day, tonic, mixed with poison, was used by Barathuram and ultimately he died. As per para 5 of his deposition, Nomesh Kumar has stated this fact to the police on 17.4.2005. His statement under Section 161 of Cr.P.C. has been recorded on 17.6.2005, i.e. after two months by Investigating Officer RK Sharma (PW-17). RK Sharma (PW-17) has deposed in his evidence that he had recorded Ex-D/4 on 17.6.2005 and not on 17.4.2005. The prosecution has not offered any explanation about the delay in recording the statement of substantive witness Nomesh Kumar (PW-6), inter alia, investigation has been conducted against unknown person. 15. As held by the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 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 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. 16. In the present case, the prosecution has failed to satisfy the aforesaid conditions necessary for establishing the guilty of the appellant in the case of murder by administering poison. In the absence of any cogent evidence, conviction and sentence of the appellant is not sustainable under the law. 17. Accordingly, 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 charges framed against her. She shall be released forthwith if not required to be detained in any other offence. Appeal Allowed.