Chattisgarh High Court
State Of Chhattisgarh vs Indira Bai 4 Wpc/1549/2016 Prakash ... on 29 January, 2018
Author: Ram Prasaanna Sharma
Bench: Prashant Kumar Mishra, Ram Prasanna Sharma
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 24 of 2013
Judgment reserved on 9-1-2018
Judgment delivered on 29-1-2018
• State of Chhattisgarh Thhrough - P.S. Salhewara , Chhuikhadan , Distt.
Rajnandgaon C.G. , Chhattisgarh
---- Appellant
Versus
• Indira Bai W/o Lallu Aged About 52 Years R/o Village Podi , P.S. Salhewara,
Chhuikhadan , Distt. Rajnandgaon C.G. , Chhattisgarh
---- Respondent
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For Appellant/State Mr. Arvind Dubey, Panel Lawyer
For respondent Mr. Pragalbh Sharma, Advocate.
Hon'ble Shri Prashant Kumar Mishra,
Hon'ble Shri Ram Prasanna Sharma, JJ
CAV Judgment
Per Ram Prasaanna Sharma, J
1. This acquittal appeal is preferred against the judgment dated 30-7- 2012 passed by the Additional Sessions Judge, Khairagarh, (for short, "the trial Court") Sessions Division Rajnandgaon in Sessions Trial No. 6 of 2011 wherein the trial Court acquitted the respondent for commission of murder of her grand-daughter namely Ku. Ganga who was four months old.
2. Facts giving rise to this appeal are that the respondent is mother of 2 one Dinesh who was married to Fulbati Bai. Deceased Ganga who was four months old was born out of wedlock of Fulbati Bai and Dinesh. Lallu is husband of the respondent Indira Bai. All four persons namely Lallu, respondent Indira Bai and their son Dinesh and daughter-in-law Fulbati Bai were residing jointly in one house. It is alleged that respondent treated the child Ganga as illegitimate child of Fulbati Bai and also disliked her daughter-in-law Fulbati Bai. It is alleged that respondent administered some poisonous substance to child Ganga and she was hospitalized in Government Hospital, Salhewara where she died after vomiting.
3. Upon information by the hospital, merg intimation (Ex.P/15) was registered at Police Station Salhewara and dead body of Ku. Ganga was subjected to autopsy by Dr. G.S. Thakur (PW/5). After autopsy he opined that death is caused by respiratory paralysis and vagal inhibition due to indigestion of the suspected poison. Vomiting substance viscera and one article namely sutai seized from the respondent were sent for chemical examination to Forensic Science Laboratory, Raipur in which one Organic Chlorella pesticide (poison) namely Benzene Hexachloride was detected.
4. . During investigation one sutai was seized on discovery statement of respondent and same was sent for examination to FSL in which poison substance was found and that was tallied with poison substance found in vomiting substance and viscera of the deceased. After completion of investigation charge-sheet was filed against the respondent. Respondent did not plead guilty, therefore, trial was conducted. After examination of prosecution witnesses, statement of 3 respondent under Section 313 of Cr.P.C., was recorded and after hearing both the parties, the trial Court acquitted the respondent as mentioned above.
5. Learned State counsel submits as under:
i) Present is a case in which poison substance Benzene Hexachloride was found in article seized from the respondent and same poison substance was found in viscera vomiting substance of the deceased and the evidence adduced by the prosecution is clinching against the respondent which is over looked by the trial Court.
ii) Seizure witnesses are trustworthy and reliable and they have given true version of the occurrence but the trial Court ignored the same.
Iii) Finding of the trial Court is not inconsonance with the material placed before it; and
iv) As per version of Fulbati Bai, who is mother of the deceased, she has seen administering poison to her child by the respondent but the trial Court has mis-
directed itself in not believing the same.
6. On the other hand, learned counsel for the respondent submits that the finding arrived at by the trial Court is strictly in accordance with law and based on admissible evidence and same is not liable to be interfered while invoking jurisdiction of the appeal.
7. The first question for consideration is whether this Court can disturb the finding of acquittal recorded by the trial Court and whether any limitation should be placed upon such power.
8. In Shoe Swarup vs. King Emperor reported in AIR 1934 Privy 4 Council 227, it is held that Criminal Procedure Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power. Again in Athley Vs. State of UP reported in AIR 1955 SC 807, it is held that "In our opinion, it is not correct to say that unless the appellate Court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion. Again in Sanwat Singh Vs. State of Rajasthan reported in AIR 1961 SC 715, it is observed that there was no difficulty in applying the principles laid down by the Privy Council and accepted by the Supreme Court. The appellate Court not only shall bear in mind the principles laid down by the Privy Council but also mist give its clear reason for coming to the conclusion that the order of acquittal was wrong.
9. The foregoing discussion yields the following results: (1) an appellate Court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup Case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (I) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and 5
(iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.' Again in Animireddy Venkata Ramana and Others Vs. Public Prosecutor, High Court of Andhra Pradesh reported in (2008) 5 SCC 368, it is held that when there were very serious infirmities in the judgment of the trial Court both in regard to the legal propositions as also appreciation of evidence and there were non-consideration of material facts and consideration of irrelevant facts, the appellate court's interference with the judgment of acquittal would be warranted.
10. From the above principles it is clear that the appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
11. To substantiate the charge, prosecution has examined as many as 15 witnesses.
12. Dr. G.S. Thakur (PW/5) conducted autopsy of deceased Ku. Ganga. As per version of this witness, death is caused by respiratory paralysis and vagal inhibition due to indigestion of the suspected poisoning and same is caused within 12 - 24 hours of the 6 examination. Version of this witness is unshaken during cross examination and there is no other expert opinion in the record of the trial Court. Viscera and vomiting substance of the deceased were sent for chemical examination along with one sutai allegedly seized from the respondent and poison substance Benzene Hexachloride was found in the articles. From the medical evidence and laboratory's report, it is established that the deceased died to Benzene Hexachloride
13. Sumitra Bai (PW/1) is neighbour of Fulbati Bai who went to the house of Fulbati Bai on her calling and found abnormal condition of her daughter Ku. Ganga and advised them to take her to hospital. PW/2 Rimeshwar Das Sahu is a person who visited the house of Fulbati Bai for census purpose. Deepak (PW/3) is a person before whom some article was seized in hospital by the Police. PW/4 Hinda Ram Verma is Patwari who prepared the spot map. Constable Anil Shukla (PW/6) is the person who took the deceased to Government Hospital, for autopsy. PW/9 Sona Bai, PW/10 Dinesh, PW/11 Lallu, PW/ 13 Kumari Bai and PW/14 Paltan Yadav are the persons who received information regarding incident.
14. PW/12 Fulbati Bai is the mother of the deceased and before the trial Court she claimed to be an eye-witness of the incident. In her examination-in-chief she deposed that she went to well for fetching water and when she returned she found that her daughter Ganga was vomiting and then she stated that respondent administered poison to her daughter, but as per statement recorded under Section 161 of the CrP.C., which is marked as Ex.D/2, this witness has not stated before 7 the Investigating Officer that incident was seen by her or she is eye- witness. It is settled principles of law that if a witness states different versions at different stages, his version on that point is not to be relied upon. it is settled law that it is quality of the evidence which is to be weighed. When this witness did not state before the Investigating Officer that she has seen administering poison by the respondent, her version on this count before the court can be accepted only when she gives reliable explanation for the same, but no explanation was given by this witness before the trial Court, therefore, it cannot be held that she is an eye-witness of the incident.
15. PW/7 Mohtu and PW/8 Nohar Das are the witnesses of seizure. As per version of PW/7 Mohtu, respondent stated before the Police that one sutai is there at the place where garbage is stored, but he deposed that sutai was searched by Kotwar and when Kotwar found one sutai in garbage, the same was seized, but Kotwar PW/8 rebutted version of this witness. As per version of Kotwar PW/9 Nohar Das, respondent has not made any discovery statement before the Police and no article was seized on the basis of discovery statement.
16. Now the point for consideration is whether on the basis of statement made by Mohtu PW/7, it can be held that sutai was seized on discovery statement of respondent. Discovery statement is Ex.P/6 and seizure is Ex.P/7. Both documents have been prepared by one Probationary Sub Inspector (Police) Awadh Ram Sahu, but he is not examined before the trial Court. When Police Officer is not examined, then only two witnesses are there to establish the factum of discovery statement and seizure but statement of both the witnesses 8 is opposite to each other. Even from the statement of PW/7 Mohtu, it is not established that said sutai was searched by the respondent. But as per his version, Kotwar searched sutai, but Kotwar Nohar Das (PW/8) flatly denied the factum of discovery statement and seizure of sutai. It is cardinal principle of criminal jurisprudence that "graver the offence, stricter the proof". The case of the prosecution is based on seizure of sutai and two witnesses examined to establish the same are making statements in rebuttal of each other. It is difficult for us to hold that the said sutai was seized on the basis of discovery statement made by the respondent.
17. It can be a case of may be true,. But there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. Case of "may be true" is worthless for the prosecution.
18. When an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is applied. For applying Section 106 of the Evidence Act, first the prosecution has to lead such evidence to conclude that the offence is committed by the person charged in secrecy of that house and that is not the case here. Therefore, Section 106 of the Evidence Act has no application in the facts and circumstances of the instant case.
19. In the instant case, prosecution has not been able to establish that 9 respondent was in possession of poison for some criminal act and not for innocent purpose. As the possession of poison is not established by the prosecution through clear and unimpeaching evidence, the finding arrived at by the trial Court is not liable to be interfered.
20. Accordingly, the appeal is liable to be and is hereby dismissed.
Sd/- Sd/-
Judge Judge
(Prashant Kumar Mishra) (Ram Prasanna Sharma)
Raju
10
HEAD NOTE
(I) In case of murder by poison, prosecution has to establish that culprit was in
possession of the same poison which is found in the body of the deceased and possession was for criminal act and not for innocent purpose. (II) Statements of the witnesses who claimed to be eye-witnesses must be stable right from the first day of the incident. If such claim is not before the Investigating Officer, the version is different version at different stage and not reliable.
(III) Investigating Officer before whom discovery statement and seizure are affected, has to be examined. Non-examination of the said officer is serious lacuna on the part of the prosecution.
1- fo"k nsdj gR;k ds ekeys esa vfHk;kstu }kjk ;g izekf.k fd;k tkuk vfuok;Z gS fd vkjksih mlh fo"k ds dCts esa Fkk tks e`rd ds 'kjhj esa ik;k x;k gS rFkk ;g dCtk vkijkf/kd dk;Z ds fy, Fkk] u fd fdlh funksZ"k iz;kstu ds fy, A 2- tks fd p{kqn'khZ lk{kh gksus dk nkok djrk gS fd mldk dFku ?kVuk fnukad ls fLFkj gksuk pkfg, gS A vuqla/kkj ds nkSjku ;fn p{kqn'khZ gksus dk dFku ugha fd;k x;k gS rks fofHkUu izdze ij fHkUu&fHkUu dFku djus ds dkj.k vocacuh; ugha gksxk A 3- ftl iqfyl vf/kdkjh us [kksth dFku ,oa oLrqvksa dh tIrh dh dk;Zokgh dh gS mlds dFku dk vHkko vfHk;kstu ds izfrdwy gksxk A By Order (R. SATYANARAYANA RAJU) Deputy Registrar 11