JUDGMENT : PRITINKER DIWAKER, J. 1. This appeal arises out of the judgment of conviction and order of sentence dated 3.2.2012 passed by the Sessions Judge, Janjgir - Champa in ST No.57/2011, convicting the appellant under Section 302 of IPC on two counts and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5000/- on each count with default stipulation. 2. In the present case, there are two deceased namely Hanuman Prasad Sahu and Amidas. Previously wife of the appellant namely Nohar Devi was Sarpanch of Gram Panchayat-Darri and she was succeeded by Anita Sahu, wife of deceased Hanuman Prasad. It is said that fishing rights of the village pond were given to a society, of which the appellant was the President. Further case of the prosecution is that wife of deceased Hanuman Prasad used to demand the agreed amount from the appellant, over which the appellant got annoyed and on 24.1.2011 called Hanuman Prasad, who was the village doctor, in his house for his treatment. Hanuman Prasad came to the house of the appellant and he also called PW-6 Amarnath to have liquor in the house of the appellant. Further case of the prosecution is that deceased Hanuman gave Rs.50/- to the appellant for bringing liquor, which was brought by the appellant and then all the three i.e. Hanuman Prasad, appellant Karamchand and PW-6 Amarnath consumed the liquor. While going the appellant gave another bottle of liquor, white in colour, to PW-6 Amarnath for consuming the same with Hanuman and when he refused to accept the same saying that he has already consumed enough, the appellant gave said bottle to deceased Hanuman and then he (PW-6) along with Hanuman went towards Basti. It is further case of the prosecution that while Hanuman Prasad and PW-6 Amarnath were returning they met other deceased Amidas and all the three sat in the house of PW-6 Amarnath for consuming liquor. In two separate glasses said liquor was poured whereas the some liquor was left in a bottle to be consumed by PW-6. Hanuman Prasad and Amidas both consumed the said liquor and complained about its taste to PW-6. When PW-6 tasted the liquor he too found its taste something different and immediately spat the same. All these three persons became unconscious thereafter and were taken to hospital by their relatives with the help of other villagers. Hanuman Prasad and Amidas both consumed the said liquor and complained about its taste to PW-6. When PW-6 tasted the liquor he too found its taste something different and immediately spat the same. All these three persons became unconscious thereafter and were taken to hospital by their relatives with the help of other villagers. In the hospital, Hanuman Prasad and Amidas were declared brought dead whereas PW-6 remained hospitalized for some days and his MLC is Ex.P/30 conducted by PW-20 Dr. Ramayan Singh. After the death of both the deceased persons, unnumbered merg Ex.P/23 & 24 were recorded on 25.1.2011 whereas numbered merg Ex.P/18 & P/19 were recorded on 27.1.2011. Inquests over the dead bodies were conduced vide Ex.P/2 & P/4 on 25.1.2011. Postmortem on the dead bodies were performed on the same day vide Ex.P/28 & P/29 by PW-18 Dr. RD Gupta. According to the autopsy surgeon, nails of deceased Hanuman Prasad had turned bluish, face was cyanosed; his pupils were dilated; brain membrane, brain tissue, membranes of ribs, lungs, trachea, membrane of the heart and spleen were congested, mucus membrane was reddish. The cause of death of Hanuman Prasad was asphyxia because of poisoning. However, the doctor advised for chemical examination of the viscera. Likewise, the doctor noticed that nails of deceased Amidas had turned bluish, there were abrasions on both the forearms, conjunctiva was congested; brain membrane, intestine membrane, lungs, liver, spleen were congested, mucus membrane was reddish. In his opinion, the cause of death was asphyxia due to poisoning and he advised for chemical analysis of the viscera. As per FSL report (Ex.P/34 & 35) in the viscera of both deceased Amidas and Hanuman Prasad, poisonous substance namely organophosphorus pesticide chlorpyrifos was found. 3. On the memorandum of the appellant Ex.P/9 recorded on 5.2.2011, seizure of one plastic box, two plastic bottles containing pesticide were seized vide Ex.P/10. As per FSL report Ex.P/33, in Article A i.e. the said plastic box, chlorpyrifos and cypermethrin pesticide was found whereas in Article-B i.e. a plastic bottle, cyhalothrin pesticide and in another bottle (Article C), ketazine (fungicide) were found. On the basis of merg enquiry, on 4.2.2011 FIR (Ex.P/37) was registered against the appellant under Section 302 of IPC. While framing charge, the trial Court framed charge under Section 302 of IPC against the appellant on two counts. 4. On the basis of merg enquiry, on 4.2.2011 FIR (Ex.P/37) was registered against the appellant under Section 302 of IPC. While framing charge, the trial Court framed charge under Section 302 of IPC against the appellant on two counts. 4. So as to hold the accused/appellant guilty, the prosecution examined 22 witnesses in all. Statement of the accused was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned above. 6. Counsel for the appellant submits as under: (i) that had there been any poison in the liquor, the accused/appellant would also have suffered the same fate as has been suffered by the deceased persons. (ii) that the prosecution has not led any evidence as to from where the appellant procured the poison and said bottle has even not been sent to FSL. (iii) that no evidence has been led by the prosecution as to where the appellant mixed poisonous substance with the liquor. (iv) even if two alleged glasses which were used for consuming liquor were washed by the kids, the prosecution was duty bound to seal the same and send it to FSL. (v) that the appellant himself fell sick after consuming liquor and therefore, the possibility of some 3rd person mixing poisonous substance with the liquor cannot be ruled out. (vi) that it has also not been proved by the prosecution as to what was the motive with the appellant to commit murder of the deceased persons. (vii) that apart from chlorpyrifos, other pesticides i.e. cypermethri, cyhalothrin were also found in plastic bottles allegedly seized from the appellant therefore, it cannot be said that these two poisons were mixed in the liquor and had it been so, the other poisons would also have been found in the viscera. 7. On the other hand, State counsel supporting the impugned judgment has submitted as under: (i) that the appellant had consumed different liquor along with Hanuman Prasad and PW-6 Amarnath and never consumed the liquor in which poison was mixed and was offered to PW-6. (ii) the appellant fell sick after consuming excessive liquor and not on account of consumption of poisonous liquor. (ii) the appellant fell sick after consuming excessive liquor and not on account of consumption of poisonous liquor. (iii) that after finishing the normal liquor, a separate bottle of liquor was given by the appellant to PW-6 by saying that he can consume the same separately with Hanuman Prasad and ultimately it was consumed by deceased Hanuman Prasad and unfortunately by Amidas also which resulted in their death. She submits that PW-6 was fortunate enough as he did not consume that liquor because Hanuman Prasad and Amidas after consuming the same had complained about its taste to him and PW-6 after tasting the same found its taste unusual and immediately spat it. (iv) that in the viscera of the deceased persons vide FSL reports Ex.P/34 & 35 the same poisonous substance was found as was found in the plastic box seized from the appellant vide Ex.P/10 as per FSL report Ex.P/33. She further submits that as per PW-7 as many as four bottles of liquor were purchased by the appellant, out of which two were consumed in the house of the appellant whereas the third one was given to PW-6 Amarnath which was mixed with pesticide. (v) that deceased Hanuman also made oral dying declaration before PW-3 Bundkunwar Sahu and this has been duly proved by PW-3. (vi) that the appellant has also not offered any probable explanation in his statement under Section 313 of CrPC. 8. Heard counsel for the respective parties and perused the material on record. 9. PW-6 Amarnath Suryavanshi has stated that he knew both the deceased persons as well as the appellant. Wife of the appellant was the Ex-Sarpanch of the village whereas wife of deceased Hanuman is the present Sarpanch of Village-Darri and that Hanuman was the village doctor. On 24th January while returning from his workplace, he had purchased chicken and his wife was cooking the same when deceased Hanuman came to him and asked for having liquor. He and Hanuman went to the house of the appellant where Hanuman gave Rs.50/- to the appellant for bringing liquor and the appellant brought two quarters of liquor from liquor shop. One quarter was consumed by him whereas the other quarter was consumed by the appellant and Hanuman. He and Hanuman went to the house of the appellant where Hanuman gave Rs.50/- to the appellant for bringing liquor and the appellant brought two quarters of liquor from liquor shop. One quarter was consumed by him whereas the other quarter was consumed by the appellant and Hanuman. After some time, the appellant gave another bottle of liquor to him for consuming the same with Hanuman and when he refused to accept the same saying that he has already consumed enough, the appellant gave it to Hanuman and then he and Hanuman went towards Basti. He states that on the way they met Amidas who also joined them and all of them came to his house where in two glasses said liquor was poured and some liquor was left in the bottle for him. When he went to see chicken being cooked by his wife, both the deceased had consumed their share of liquor, however, they complained about its taste and when he tasted the same, he too found its taste somewhat different and spat it. Thereafter, all of them fell unconscious, they were taken to hospital by the villagers where he regained consciousness, however, Hanuman and Amidas had expired. He further states that it is on account of consumption of the poisonous liquor given to them by the appellant that they fell unconscious and both Hanuman and Amidas died. In cross-examination, he denies the suggestion that the liquor was brought by Hanuman and states that it was brought by the appellant and payment of which was made by Hanuman. He further states that the liquor given to them by the appellant was not sealed. It is relevant to note here that in his diary statement (unexhibited) recorded under Section 161 of CrPC he has disclosed all these facts. 10. PW-3 Bundkunwar Sahu, mother of deceased Hanuman, states that in the evening the accused/appellant called her son for his treatment and did not return even for having meals. In the night she came to know through one Lala @ Avadesh that her son Hanuman is lying unconscious, she went to the said place and found him lying semi-conscious. On being asked, her son informed that the appellant had administered some poison to him and then again fell unconscious. She noticed that Amidas was also lying there unconscious but she did not have any talk with him. On being asked, her son informed that the appellant had administered some poison to him and then again fell unconscious. She noticed that Amidas was also lying there unconscious but she did not have any talk with him. She further states that two days prior to the date of incident there was some dispute between her son Hanuman and the appellant over repairing of fishing pond. In cross-examination she reiterates about the oral dying declaration of the deceased and the dispute between the appellant and her son Hanuman over the pond. 11. PW-1 Anita Sahu, wife of deceased Hanuman, has stated that the deceased Hanuman left his house by saying that he has to go for treatment of the appellant and in the night she came to know that her husband is not well and then she informed about the same to her mother-in-law PW-3 Bundkunwar, who along with other villagers rushed to the house of PW-6. When PW-3 did not return for quite some time, she also went to the house of PW-6 where she found her husband Hanuman lying unconscious and that PW-6 was also lying on the floor in intoxicated condition but he was talking. She has also stated about animosity between the appellant and her husband Hanuman over payment of installments of the fishing contract. In cross-examination this witness remained firm. 12. PW-2 Radhabai Manikpuri, wife of other deceased Amidas, has not stated anything specific against the appellant. PW-4 Mahavir Sahu, elder brother of deceased Hanuman, has stated that notice was given by Anita, wife of deceased Hanuman, to the appellant for making payment of the installments of the fishing contract and on account of this there was animosity between the appellant and family of the deceased Hanuman. PW-5 Shyamlal Patel, Panchayat Secretary, has also stated about the motive. He is also a witness of inquest. PW-7 Nanbutti Suryavanshi, younger brother of PW-6 Amarnath, has stated that on the date of incident the appellant came to his liquor shop for purchasing liquor and purchased total four quarters, two earlier and two later. On that day itself he came to know that his brother PW-6 is not well, whereupon he went to his house, found him lying unconscious; Hanuman and Amidas were also lying there unconscious. On that day itself he came to know that his brother PW-6 is not well, whereupon he went to his house, found him lying unconscious; Hanuman and Amidas were also lying there unconscious. However, PW-6 was in a position to talk and on being asked he informed that they fell unconscious after consuming the liquor brought by the appellant. PW-9 Manmohan Kumar Sahu is a witness to memorandum of the appellant Ex.P/9 and seizure Ex.P/10 as also the inquest Ex.P/2 & P/4. PW-10 Muktavandas Manikpuri, Village Kotwar, is a witness to inquest. He has also stated about the motive attributed to the appellant. PW-11 Jaichand Singh Rathore is a witness to seizure of viscera Ex.P/12 and P/13. PW-12 Jagdish Prasad, Police Constable, assisted in the investigation. PW-13 Priyank Suryavanshi, daughter of PW-6, is a witness to seizure Ex.P/15 whereby liquor bottles, socks, shoes, slippers were seized. PW-14 Chhotelal Suryavanshi is a witness to Ex.P/15 & P/16. PW-15 Digpal Singh, Patwari, prepared the spot map Ex.P/17. PW-16 Anil Tiwari, Head Constable, assisted in the investigation whereas PW-17 JR Sidar did part of investigation. 13. PW-18 Dr. RD Gupta conducted postmortem on the body of both the deceased persons vide Ex.P/28 & P/29. According to the autopsy surgeon, nails of deceased Hanuman Prasad had turned bluish, face was cynosed; his pupils were dilated; brain membrane, brain tissue, membranes of ribs, lungs, trachea, membrane of the heart and spleen were congested, mucus membrane was reddish. The cause of death of Hanuman Prasad was asphyxia because of poisoning. However, the doctor advised for chemical examination of the viscera. Likewise, the doctor noticed that nails of deceased Amidas had turned bluish, there were abrasions on both the forearms, conjunctiva was congested; brain membrane, intestine membrane, lungs, liver, spleen were congested, mucus membrane was reddish. In his opinion, the cause of death was asphyxia due to poisoning and he advised for chemical analysis of the viscera. As per FSL report (Ex.P/34 & 35) in the viscera of both deceased Amidas and Hanuman Prasad, poisonous substance namely organophosphorus pesticide chlorpyrifos was found. 14. PW-19 Balram Sidar lodged merg intimations Ex.P/23 & P/24. PW-20 Dr. Ramayan Singh medically examined PW-6 Amarnath and the accused/appellant and found PW-6 in unconscious condition. According to him, the appellant was also complaining of giddiness, his blood pressure was 200/100, he was in semi-conscious condition and appeared to have drunk. PW-21 Dr. 14. PW-19 Balram Sidar lodged merg intimations Ex.P/23 & P/24. PW-20 Dr. Ramayan Singh medically examined PW-6 Amarnath and the accused/appellant and found PW-6 in unconscious condition. According to him, the appellant was also complaining of giddiness, his blood pressure was 200/100, he was in semi-conscious condition and appeared to have drunk. PW-21 Dr. RK Gupta, Senior Scientist in FSL, Raipur, gave reports Exs.P/33, 34, 35 & 36 and proved the same. PW-22 DL Mishra, investigating officer has duly supported the prosecution case. 15. In cases of murder by poison, the prosecution must prove beyond doubt (i) that the deceased died of a particular poison; (ii) the accused was in possession of the same; (iii) he had opportunity to administer the same to the deceased; and (iv) he had motive for doing so. Possession of poison may some times be difficult to prove. There can be evidence that the accused gave medicine and shortly thereafter indigestion started and death occurred with symptoms of poisoning. Proof of possession of poison need not always be insisted upon. Court should consider the entire evidence, bearing in mind that murder by poison is a secret crime and the accused may take care to eliminate traces. 16. In the present case, as per unrebutted evidence of PW-18 Dr. RD Gupta, the autopsy surgeon, the cause of death of both the deceased persons was asphyxia because of poisoning and he advised for chemical examination of their viscera. FSL reports (Ex.P/34 & 35) confirm presence of poisonous substance namely organophosphorus pesticide chlorpyrifos in the viscera of both deceased Amidas and Hanuman. Thus, from the above, it is proved beyond all reasonable doubt that the death of both the deceased persons was the result of administration of poisonous substance i.e. organophosphorus pesticide chlorpyrifos. 17. The next thing to be seen is whether the appellant was in possession of that particular poisonous substance. Pursuant to memorandum of the appellant (Ex.P/9), seizure of one plastic box, two plastic bottles containing pesticide were seized vide Ex.P/10. Witness to memorandum and seizure namely Manmohan Kumar Sahu (PW-9) and the investigating officer PW-22 DL Mishra have proved the factum of recovery of aforesaid articles at the instance of the appellant. Pursuant to memorandum of the appellant (Ex.P/9), seizure of one plastic box, two plastic bottles containing pesticide were seized vide Ex.P/10. Witness to memorandum and seizure namely Manmohan Kumar Sahu (PW-9) and the investigating officer PW-22 DL Mishra have proved the factum of recovery of aforesaid articles at the instance of the appellant. As per FSL report Ex.P/33, in Article A i.e. the said plastic box, chlorpyrifos and cypermethrin pesticide was found whereas in Article-B i.e. a plastic bottle, cyhalothrin pesticide and in another bottle (Article C), ketazine (fungicide) were found, and according to the postmortem reports, the cause of death of both the deceased persons was asphyxia because of poisoning, which was ultimately found be organophosphorus pesticide chlorpyrifos after examination of their viscera vide FSL reports Ex.P/34 & 35. As such, possession of the particular poison with the appellant at the relevant time also stands proved beyond doubt. 18. Now it is to be seen whether the appellant had the opportunity to administer the said poison to the deceased persons. From the evidence on record it emerges that on 24.1.2011 the accused/appellant called deceased Hanuman for his treatment and Hanuman left for his house after informing his wife PW-1 Anita Sahu. She has admitted the fact that her husband Hanuman used to consume liquor. As per evidence, the deceased had first gone to the house of PW-6 Amarnath and asked him to join for having liquor in the house of the appellant and after reaching the house of the appellant, he gave Rs.50/- to the appellant for bringing liquor. As per evidence of PW-7 Nanbutti Suryavanshi the appellant came to his liquor shop and purchased two quarters of liquor and prior to that he had already purchased two quarters of liquor from his shop. 19. According to PW-6 Amarnath, in the house of the appellant one quarter of liquor was consumed by him whereas the other quarter was consumed by the appellant and deceased Hanuman. He has further stated that when the deceased Hanuman and himself (PW-6) were leaving the house of the appellant, the appellant gave him another bottle of liquor by saying that he and Hanuman can consume the same subsequently and when PW-6 declined saying that he has already consumed enough, the appellant gave the said bottle to Hanuman and thereafter, both of them (PW-6 and Hanuman) left the house of the appellant. Evidence further reveals that PW-6 and Hanuman while going to the house of PW-6, took another deceased Amidas with them and in the house of PW-6, Hanuman and Amidas consumed the liquor given by the appellant and some liquor was left in the bottle for PW-6. After consuming the said liquor when both the deceased complained about its taste, PW-6 also had a sip of it and he too noticed its taste somewhat different and immediately spat it. Thereafter, all the three fell unconscious, they were taken to hospital where both the deceased persons died whereas PW-6 was discharged after 2-3 days from the hospital. PW-6 Amarnath has duly supported the prosecution case to the above extent. In cross-examination, PW-6 has categorically stated that the liquor given to them by the appellant was not sealed. 20. The evidence of PW-6 Amarnath finds corroboration from the statement of PW-3 Bundkunwar Sahu, mother of deceased Hanuman. According to her, in the evening the accused/appellant called his son for his treatment and in the night she came to know that her son Hanuman is lying unconscious. When she reached the place of occurrence, she found Hanuman lying semi-conscious and Amidas was also lying there unconscious. On being asked, her son Hanuman informed her that the appellant had administered some poison to him and then again fell unconscious. Her evidence on the point of oral dying declaration remains firm in cross-examination. This apart, PW-7 Nanbutti Suryavanshi, younger brother of PW-6, has stated that having come to know about the condition of his brother PW-6 when he went to his house and asked PW-6 as to what has happened, PW-6 informed him that they have fallen unconscious after consuming the liquor brought by the appellant. It is noteworthy to mention here that there is no cross-examination of this witness and as such, the above fact has not been disputed by the defence. Thus, from the above it is very much clear that the appellant had every opportunity to administer poison to the deceased persons and it is he who administered poison to them by mixing the same in the liquor. Thus, from the above it is very much clear that the appellant had every opportunity to administer poison to the deceased persons and it is he who administered poison to them by mixing the same in the liquor. As regards the argument of counsel for the appellant that apart from chlorpyrifos, other pesticides i.e. cypermethri, cyhalothrin were also found in plastic bottles allegedly seized from the appellant therefore, it cannot be said that these two poisons were mixed in the liquor because in the viscera no such poison was found, from the above it is clear that the cause of death of both the deceased was asphyxia due to poisoning i.e. organophosphorus pesticide chlorpyrifos which was admittedly recovered from the possession of the appellant and administered by him to the deceased persons. In these circumstances, non-administration of other poisons seized from the appellant does not make any difference. 21. The last circumstance is the availability of motive with the appellant to commit the offence. According to PW-3 Bundkunwar Sahu, two days prior to the date of incident there was some dispute between her son Hanuman and the appellant over repairing of fishing pond. PW- 1 Anita Sahu, wife of deceased Hanuman, has also stated about animosity between the appellant and her husband Hanuman over payment of installments of the fishing contract. PW-4 Mahavir Sahu, elder brother of deceased Hanuman, has stated that notice was given by Anita, wife of deceased Hanuman, to the appellant for making payment of the installments of the fishing contract and on account of this there was animosity between the appellant and family of the deceased Hanuman. PW-5 Shyamlal Patel, Panchayat Secretary, and PW-10 Muktavandas Manikpuri, Village Kotwar have also stated about the motive attributed to the appellant. Evidence of the aforesaid witnesses remain firm in the cross-examination on the point of motive. Thus, it is evident that the appellant had a strong motive to commit murder of the deceased by administration of poison to them. 22. On the basis of aforesaid discussions, we are of the considered opinion that the prosecution has successfully proved guilt of the appellant based on the evidence, oral and medical, adduced by it and as such, the findings recorded by the trial Court holding him guilty of commission of murder of two persons cannot be faulted with. 23. In the result, the appeal fails and is, accordingly, dismissed. 23. In the result, the appeal fails and is, accordingly, dismissed. The appellant is reported to be in jail, therefore, no further order regarding his arrest/surrender etc. is required to be passed.