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2014 DIGILAW 404 (CHH)

Satanand Tiwari v. State Of Chhattisgarh

2014-11-19

INDER SINGH UBOWEJA, T.P.SHARMA

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JUDGMENT : T.P. Sharma, J. 1. Criminal Appeals Nos. 741/10, 743/10 & 744/10 filed against the judgment of conviction and order of sentence dated 12.8.2010 passed in S.T. No. 138/08 are being disposed of by this common judgment. Challenge in the above appeals are to the judgment of conviction and order of sentence dated 12.8.2010 passed by the 9th Additional Sessions Judge, (FTC), Durg in S.T. No. 138/08 whereby & whereunder the trial Court after holding the appellants guilty for administering poison to deceased Upendra Sao and causing homicidal death amounting to murder in sharing common intention, convicted them under Sections 302/34 of the Indian Penal Code (for short "IPC") and sentenced each of them to undergo R.I. for life & fine of Rs. 3,000/- in default to undergo additional R.I. for 06 months. 2. Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted & sentenced the appellants, as aforementioned, and thereby committed illegality. 3. As per case of the prosecution, some money of appellant Shesh Narayan was due against deceased Upendra Sao, on 29.2.2008 at evening unfortunate deceased Upendra Sao was called by appellant Shesh Narayan in his shop where other appellants were also present. Some altercation took place between them, Malti (PW-2), wife of deceased, requested appellant Shesh Narayan to release her husband but he did not release him. Thereafter appellant-Satanand Tiwari sent appellant-Sharad for bringing some packet then he came with some packet and given it to appellant Satanand Tiwari who dissolved the same in some bottle and then all the appellants caught hold the deceased and forcibly put the liquid i.e. solution, in the mouth of the deceased then Malti (PW-2) fled from the shop of appellant Shesh Narayan to save herself and for informing about the incident to others. At the same time, the deceased reached to his house, made dying declaration that appellant Shesh Narayan has administered poison to him and thereafter he started vomiting and became unconscious. His son Ashok (PW-7) brought him to Channulal Chandrakar Hospital for treatment where he was admitted and examined by Dr. S. Verma (PW-10). Before admission, the deceased made dying declaration before Raju Sao (PW-1), Malti (PW-2), Ashok Sao (PW-7) & Rajmati (PW-8). He died on 1.3.2008 at 8.05 a.m. in the hospital while undergoing treatment. Death was intimated to Police Station Supela vide Ex. S. Verma (PW-10). Before admission, the deceased made dying declaration before Raju Sao (PW-1), Malti (PW-2), Ashok Sao (PW-7) & Rajmati (PW-8). He died on 1.3.2008 at 8.05 a.m. in the hospital while undergoing treatment. Death was intimated to Police Station Supela vide Ex. P-1 with death certificate of Ex. P-12. Smt. Malti Bai (PW-2), wife of deceased, also lodged merg vide Ex. P-8. The Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-1, inquest of the dead body of the deceased was prepared vide Ex. P-2. Material of vomiting, plain cotton & one bed-sheet were seized from the spot vide Ex. P-3. FIR was registered vide Ex. P-25. At the instance of Devkumar (PW-6), shop of appellant Shesh Narayan was searched and some containers were Sized vide Ex. P-5. Clothes of the deceased were seized vide Ex. P-6 from his son Ashok (PW-7). At the instance of Devkumar (PW-6), one steel glass & container of paint were further seized from the shop of appellant Shesh Narayan vide Ex. P-7. Dead body was sent for autopsy to the District Hospital, Durg where Dr. S. Verma (PW-10) conducted autopsy vide Ex. P-14 and noticed pungent Smell from the abdomen of suspected poison. Viscera was preserved, sealed & seized vide Ex. P-11. Sealed articles were sent for chemical examination to the FSL, Raipur and as per report of FSL, presence of poison - Organo Chloro insecticide i.e. Endosulphan, has been affirmed in the viscera and vomiting material of the deceased. Statements of witnesses were recorded under Section 161 of Cr.P.C. 4. After completion of investigation, charge sheet was filed before the Judicial Magistrate 1st Class, Durg who, in turn, committed the case to the Court of Sessions from where learned Additional Sessions Judge has received the case on transfer for trial. In order to prove guilt of the appellants, the prosecution had examined as many as 16 witnesses. The appellants were examined under Section 313 of Cr.P.C. where they denied the circumstances appearing against them and pleaded innocence and false implication. They have also examined Mohd. Amir Ahmed (DW-1), Soumendra Mukherjee (DW-2), Dr. Prabhat Pandey (DW-3) & Hoshiyarmal (DW-4) and tried to take defence that the deceased came to the shop of appellant Shesh Narayan, his body language was showing that he was under the influence of liquor. They have also examined Mohd. Amir Ahmed (DW-1), Soumendra Mukherjee (DW-2), Dr. Prabhat Pandey (DW-3) & Hoshiyarmal (DW-4) and tried to take defence that the deceased came to the shop of appellant Shesh Narayan, his body language was showing that he was under the influence of liquor. Laloo Mukherjee (DW-2) told him to go home then he went from the shop of appellant Shesh Narayan. After the death of deceased, his relatives demanded money from appellant Shesh Narayan. He was suffering from several other diseases like severe anaemia, hypoproteinemie, thrombocytopenia and chronic renal failure. 5. The trial Court, after providing opportunity of hearing to the parties, convicted and sentenced the appellants as mentioned in Paragraph-1 of this judgment. 6. We have heard learned counsel for the parties and perused the impugned judgment and record of the trial Court. 7. Learned counsel for the respective appellants vehemently argued that this is the case of causing homicidal death amounting to murder by administering poison and in case of causing homicidal death by administering poison, as held in the case of Sharad Birdichand Sarda v. State of Maharashtra : AIR 1984 SC 1622 the prosecution is required to prove that there is clear motive for an accused to administer poison to the deceased; the deceased died of poison said to have been administered and that he had an opportunity to administer the poison to the deceased. In the present case Malti (PW-2), wife of deceased, had lodged merg in which she has specifically informed that she had followed her husband up to the shop of appellant Shesh Narayan but he ousted her then she came back to her house and after sometime her husband came and told that he wants to sleep and thereafter he started vomiting therefore he was hospitalized in the hospital where he died i.e. she was not the eyewitness, she was not present in the shop or near the shop of appellant Shesh Narayan and the deceased had not made any dying declaration to any person. However, in support of this document, Malti (PW-2) has further stated in her statement (Ex. b-4) recorded under Section 161 of Cr.P.C., but after six days of incident i.e. on 6.3.2008, her additional statement (Ex. However, in support of this document, Malti (PW-2) has further stated in her statement (Ex. b-4) recorded under Section 161 of Cr.P.C., but after six days of incident i.e. on 6.3.2008, her additional statement (Ex. D-2) under Section 161 of Cr.P.C. was recorded in which she became the eyewitness and stated that she was present in the shop of appellant Shesh Narayan at the time of preparing and administering poison was brought by appellant-Sharad, it was in a packet, but Endosuplhan is a liquid and it cannot be packed in a packet i.e. As per Ex. D-2, only appellant Shesh Narayan had administered poison but as per her Court statement, the deceased had made dying declaration that all the appellants have administered poison. Rajmati (PW-8) had deposed that only appellant Shesh Narayan had administered poison but Raju Sao (PW-1) & Ashok Sao (PW-7) have deposed that the deceased has made dying declaration that all the appellants have administered poison. Their statement under Section 161 of Cr.P.C. has been recorded on 6.3.2008 and Merg was recorded against unknown persons. They further submit that evidence of the prosecution witnesses is completely contradictory in nature and not sufficient to prove that the appellants have administered poison. As per undisputed story of the prosecution, the deceased was called by appellant Shesh Narayan, thereafter the deceased went to his house where he started vomiting therefore he was shifted to the hospital where he died. In absence of any other evidence it would be difficult to presume that the appellants have administered poison and the deceased himself has not consumed poison or other persons had not administered poison. Even otherwise, for recovery of Rs. 1,200/- the appellants will not kill any person. In absence of cogent and reliable evidence, conviction of the appellants under Section 302 of the IPC is not sustainable under the law. 8. On the other hand, learned counsel for the State opposed the appeals and submitted that conviction of the appellants is substantially based on the evidence of Malti (PW-2) and evidence of dying declaration of Raju Sao (PW-1), Malti (PW-2), Ashok Sao (PW-7) & Rajmati (PW-8) before whom the deceased had made dying declaration. 8. On the other hand, learned counsel for the State opposed the appeals and submitted that conviction of the appellants is substantially based on the evidence of Malti (PW-2) and evidence of dying declaration of Raju Sao (PW-1), Malti (PW-2), Ashok Sao (PW-7) & Rajmati (PW-8) before whom the deceased had made dying declaration. Although there are contradictions, omissions and inconsistencies in the evidence of these witnesses but Malti (PW-2) has clearly deposed that she has seen the preparation & administration of poison, virtually thrusting of poison in the mouth of the deceased by all the appellants. These evidences are sufficient for proving the guilt of the appellants. 9. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 10. In the present case, death of the deceased as a result of poisoning has not been substantially disputed on behalf of the appellants. Even otherwise, from the evidence of Raju Sao (PW-1), Malti (PW-2), Ashok Sao (PW-7), Rajmati (PW-8), FIR (Ex. P-25), Dr. S. Verma (PW-10), autopsy report (Ex. P-13), Dr. Rupa Mukherjee (PW-9), report (Ex. P-11), Dr. Akhilesh Yadav (PW-11), report (Ex. P-14), FSL report (Ex. P-21), it is established that the death of deceased Upendra Sao was as a result of poisoning. 11. As regards the question of complicity of the appellants' in crime in question, conviction is substantially based on the evidence of Raju Sao (PW-1), Malti (PW-2), Ashok Sao (PW-7) & Rajmati (PW-8). As per evidence of Malti (PW-2), she had witnessed the factum of administering poison. She was hiding herself in Sulabh Complex (toilet) and witnessed the incident committed in the shop of appellant- Shesh Narayan. She saw that the appellants had called poison then she fled from Sulabh Complex on the presumption that they will administer poison to her. She was shouting near her house. She had informed her son Ashok Sao (PW-7) and thereafter they rushed towards the shop of appellant-Shesh Narayan, however, they saw that the deceased was coming from the shop of appellant Shesh Narayan. He was not in a position to walk properly and froth was coming out from his mouth. Being asked by them, he made dying declaration that appellant Shashi Narayan has trusted poison. He was not in a position to walk properly and froth was coming out from his mouth. Being asked by them, he made dying declaration that appellant Shashi Narayan has trusted poison. They immediately shifted him to Chandulal Chandrakar Hospital where he died on the second day morning at 8.05 a.m. Malti (PW-2) had lodged merg vide Ex. P-8 on 1.3.2008 in which she has specifically stated that the appellants directed her to go then she came back to her house, after some time her husband came and told that he wants to sleep but he started vomiting, therefore, he was hospitalized and finally he died. In Ex. P-8 she has not stated that she was an eyewitness or the deceased has made dying declaration before any person. Although in her statement recorded under Section 161 of Cr.P.C. as Ex. D-4 on 1.3.2008 she has stated some thing but in her second statement recorded under Section 161 of Cr.P.C. as Ex. D-2 on 6.3.2008 she has stated that she is an eyewitness of the incident and she has witnessed the incident. This is in complete contradiction with the merg of Ex. P-8 and her Court evidence. 12. As per evidence of Raju Sao (PW-7), the deceased made dying declaration that Shashi Narayan, Monu, Sharad & Satanand have administered poison to him. As per evidence of Ashok Sao (PW-7), son of deceased, his father made dying declaration that all the appellants have administered poison to him which was in contradiction with Ex. D-3, his previous statement recorded under Section 161 of Cr.P.C. Rajmati (PW-8) has also deposed in Para-2 of her evidence that the deceased made dying declaration that appellant-Shashi Narayan administered poison to him. As per these contradictory evidence and in the light of statements of Malti (PW-2) and Merg i.e. Ex. D-2, Ex. D-4 & Ex. P-8, and court statement of Malti (PW-2), it is difficult to hold whether she was an eyewitness, whether she was present on the spot and whether the deceased had made dying declaration or not? Even otherwise, as per evidence of dying declaration of Rajmati (PW-8), only appellant Shesh Narayan had administered poison. Whereas, as per evidence of dying declaration of Raju Sao (PW-1) and Ashok, Sao (PW-7), the deceased made dying declaration that all the appellants have administered poison. 13. Even otherwise, as per evidence of dying declaration of Rajmati (PW-8), only appellant Shesh Narayan had administered poison. Whereas, as per evidence of dying declaration of Raju Sao (PW-1) and Ashok, Sao (PW-7), the deceased made dying declaration that all the appellants have administered poison. 13. Container seized from the house of appellant-Shesh Narayan did not show presence of poison. In the light of evidence of Malti (PW-2), Rajmati (PW-8), Raju Sao (PW-1) & Ashok Sao (PW-7) relating to dying declaration is also difficult to hold that actually who had administered poison to the deceased. In the light of evidence of prosecution witnesses it is further difficult to hold that whether the deceased had consumed poison in the shop of appellant Shashi Narayan or in the way or at any other place. The prosecution was under obligation to prove its case beyond shadows of doubt but in the present case the prosecution has utterly failed to establish four essential ingredients of offence, as held in the case of Sharad Birdichand, in case of a homicidal death by poisoning. In absence of cogent, credible and reliable evidence, conviction & sentence of the appellants under Section 302/34 of the IPC are not sustainable under the law. While convicting and sentencing the appellants, the trial Court has not considered the aforesaid complete contradictory and unreliable evidence and thereby committed. 14. Consequently, all the appeals are allowed. Conviction and sentence of all the appellants under Section 302/34 of the IPC are hereby set aside. They are acquitted from the aforesaid charge. They be set at liberty forthwith if not required in any case. Certified copy as per rules.