Patna High Court
Braj Kishore Tiwary vs State Of Bihar on 27 July, 1999
Equivalent citations: 1999(3)BLJR1888
Author: M.L. Visa
Bench: M.L. Visa
JUDGMENT M.L. Visa, J.
1. This appeal is directed against the judgment and order dated 13th January, 1987 passed in Sessions Trial No. 51 of 1978 by 1st Additional District & Sessions Judge, Saran, Chapra, convicting and sentencing the appellant to undergo life imprisonment under Section 302/34 of the Indian Penal Code.
2. The facts of the prosecution case, in short, are that on 4-3-76 at about 7-7.15 p.m. there was an uproar in the student class of Jyoti Cinema Hall situate at Chapra, P.S. Town, District Saran, that a boy had become unconscious. At that time, the evening show from 6 p.m. to 9 p.m. was going on. The boy was brought out from the Student Class by a man who claimed himself to be uncle of that boy. The boy was taken to the office of the Manager of Cinema Hall where drops of water were sprinkled on his face and the boy then vomitted and thereafter he regained some consciousness but before the could reply to the questions about his name and address, he again became unconscious. In the meantime, one doctor came there, who after examining the unconscious boy, advised for taking him to hospital and thereafter, the boy was sent to Chapra Hospital along with that man claiming to be the uncle of boy Baiju Tudu (P.W. 10). The boy after some time died in the hospital the same day and the man who was claiming himself to be the uncle of boy after getting the prescription for bringing medicine left the hospital and escaped.
3. Panchdeo Singh (P.W. 5), the informant, at that time was gate keeper of Student Class of Jyoti Cinema Hall and he got his fardbeyan (Ext. 1) recorded by A.S.I., T.N. Mukherjee (P.W. 13) on 4-3-76 at 8.30 p.m. in the office of the Jyoti Cinema Hall. He at the time of recording his fardbeyan handed over to police the vomit of the boy which was collected and kept in a pot and some Rasgullas (sweetmeat) found thrown into the drain of Cinema Hall because the informant after departure of the boy to the hospital had come to know that before start of cinema show the man who was with the boy and was claiming to be the uncle of the boy had given some Rasgullas (sweetmeat) to the boy and had thrown away remaining Rasgullas in the drain. The police registered a case under Section 302, I.P.C, against unknown and took up investigation of the case during which the appellant was identified in the T.I. parade as the man who on the date of occurrence was with the deceased-boy and had claimed himself to be uncle of the boy. After investigation, the police submitted charge-sheet against the appellant as well as against three others, namely, Birendra Kumar Singh, Ajay Kumar Singh and Savitri Devi, out of them Ajay Kumar Singh during the pendency of trial died and thereafter the appellant, co-accused Birendra Kumar Singh and Savitria Devi were put on trial and charges under Section, 302/34, I.P.C. were framed against them put after trial co-accused Birendra Kumar Singh and Savitri Devi were found not builty and they were acquitted but so far the case of the appellant is concerned, he was held guilty under Sections 302/34, I.P.C. and accordingly, he was convicted and sentenced to undergo imprisonment for life.
4. The case of appellant before the Court below as it appears from the trend of cross-examination of prosecution witnesses was complete denial of the charge and his false implication in this case,
5. In order to prove its case, the prosecution has examined 18 witnesses, besides Shambhu Nath, the doctor, who had held autopsy on the dead body of the deceased and he is Court witness No. 1. He, in his evidence, has stated that on 5-3-76 at 1 a.m. he held post-mortem examination on the dead body of deceased Shatrughan Singh and found it to be a suspected case of poisoning and he kept the viscera preserved for chemical examination. The chemical examination report granted by the Director of Forensic Science Laboratory, Patna, (Ext. 4) shows that the viscera of the deceased contained eldrine which is highly poisonous and commonly used for agricultural purposes. So, the aforesaid evidence establishes the fact that deceased died of poisoning. Now, it has to be seen what evidence has been led by the prosecution against the appellant for holding him responsible for administering poison to the deceased.
6. Out of 18 witnesses examined on behalf of the prosecution, Rajdeep Chaudhary (P.W. 1), Shri Krishna Singh (P.W. 2), Ram Narayan Singh (P.W. 17) and Balbhadra Singh (P.W. 18) are formal witnesses who have proved fardbeyan (Ext. 1), formal F.I.R. (Ext. 2), carbon copy of letter in the writing and signature of T.N. Mukherjee (P.W. 13) which is marked 9C' for identification and signature (Ext. 3/1) of Rameshwar Prasad Sinha (P.W. 3) on the fardbeyan. Krishna Kumar Baitha (P.W. 8), Pandey Thakur Sharan Sinha (P.W. 9) and Mohan Prasad (P.W. 11) have been tendered by prosecution. Prabhunath Prasad Yadav (P.W. 7) has been declared hostile by the prosecution. Udai Shankar Prasad (P.W. 15) and Bindeshwari Prasad Yadav (P.W. 16) are Judicial Magistrates who had conducted T.I. parades on two different dates in which appellant was identified by witnesses. Tej Narayan Singh (P.W. 14) is father of the deceased. Rameshwar Prasad Sinha (P.W. 3) the then Manager of Jyoti Cinema Hall, Bindeshwar Raj (P.W. 4), a hawker selling 'Bhuja' at the relevant time in the premises of Jyoti Cinema Hall, Panchdeo Singh (P.W. 5) the informant, who at that time was gate-keeper of Student Class of Jyoti Cinema Hall and Kanhaiya (P.W. 6), cycle stand keeper of Jyoti Cinema Hall, had on the date of occurrence seen the deceased in unconscious condition in the Cinema Hall and they had also seen the appellant with him when appellant had claimed himself to be uncle of deceased. Baiju Tudu (P.W. 10) at the relevant time Was living in the house of one Thakur Babu, a retired Dy. S.P., in whose house the deceased was also living and this witness on the date of occurrence on hearing 'halls' had gone to Jyoti Cinema Hall at about 6.30 p.m. where he found the deceased lying unconscious and appellant was also there who was claiming himself to be the uncle of deceased and he then along with appellant took the deceased to hospital where the appellant disclosed his name and when the doctor gave prescription to the appellant for medicine, the appellant left the hospital but never returned and 5-7 minutes thereafter, the deceased died. Ram Pravesh Singh (P.W. 12), in his evidence, has stated that on the date of occurrence at about 5 p.m., he had seen the appellant taking tea along with co-accused Birendra Kumar Singh and Ajay Kumar Singh and the appellant had kept Rasgulla (sweetmeat). In an earthen pot and a syringe, his attention was drawn towards the fact that whether in his statements before the police had he stated the fact about keeping Rasgulla (sweetmeat) and syringe by the appellant to which he answered in affirmative but T.N. Mukherjee (P.W. 13), I.O. of the case, has stated that this witness did. not state before him that appellant was having some Rasgullas (sweetmeat) in an earthen pot and a syringe. So the evidence of this witness that appellant was seen in possession of some Rasgullas (sweetmeat) and syringe becomes doubtful and it cannot be accepted.
7. Tej Narayan Singh (P.W. 4), father of the deceased, has stated that on 5-3-76 he received information that his son had been killed by administering Jison and he then came to Chapra on the same day and went to Jyoti Cinema Hall where he met the police who recorded his statements and from the staff of Jyoti Cinema Hall, he came to know that his deceased-son was administered poison and from the description of the person offering Rasgulla (sweetmeat) to his deceased-son as given by the staff of the Jyoti Cinema Hall, he inferred that he was appellant. He has further stated that appellant used to look after his agricultural work but on 26-2-76 a dispute had taken place between his two sons, namely, Bharat Singh and deceased Shatrughan Singh on one side and uncle and cousins of appellant on the other side on the point of theft of a dog and before this another altercation had also taken place between his deceased-son on one side and cousin and mother of cousin of the appellant on the other .side. According to him, he came to know from one Jagarnath Sab. that appellant was planning to commit murder of his two sons Bharat Singh and deceased Shatrughan Singh and after getting this information he removed the appellant from his service. His evidence is on the point of motive of offence.
8. In this case, there is no eye-witness on the point of administering poison by the appellant to the deceased. The case of prosecution is based on circumstantial evidence. In the case of murder by administering poison the apex Court, in the case of Sharad Birchichand Sarda v. State of Maharashtra , has set out the following four circumstances which are required for conviction:
(i) there is a clear motive for an accused to administer poison to the deceased,
(ii) that the deceased died of poison, said to have been administered,
(iii) that the deceased had the poison in his possession,
(iv) that he had an opportunity to administer the poison to the deceased.
9. In the instant case, so far clear motive of appellant to administer poison to the deceased is concerned, as stated above, there is only evidence of Tej Narayan Singh (P.W. 14), father of the deceased, that appellant was his employee who had been removed from the job after getting information from one Jagarnath Sah that appellant was planning to commit murder of deceased and his brother Bharat Singh. About the reason for removing the appellant from the job, father of the deceased has stated that because a quarrel had taken place between the deceased and his brother Bharat Singh on one side and uncle and cousins of appellant on the otherwise on the point of theft of a dog, therefore, the appellant was removed from his job and thereafter, he was planning to commit murder of the deceased. Admittedly, the quarrel had not taken place between the deceased and the appellant. Besides this, Jagarnath Sah who is said to have given information to the father of the deceased that appellant was planning to commit murder of deceased and his brother Bharat Singh has not been examined. In this view of the matter, it cannot be said that the appellant had a clear motive to administer poison to the deceased. About the circumstances that deceased died of poison, as stated above earlier, it has been established by the evidence of doctor and the viscera report (Ext. 4) but about the circumstance that the appellant had the poison in his possession, there is absolutely no evidence in this case. It is true that Ram Pravesh Singh (P.W. 12) has stated that appellant was found in possession of some Rasgulla kept in an earthen pot and syringe on the date of occurrence but then he has not said that those Rasgulla (sweetmeat) contained poison and besides this, as stated above, this part of his evidence has not been found free of doubts because this fact was not stated earlier when he was examined by the I.O. (P.W. 13). Kanhaiya (P.W. 6), in his evidence, has said that on the date of occurrence he saw two persons taking sweetmeat but one of them spitted out the sweetmeat and on the same day at about 7,30 p.m. he heard 'halla' and when he went to the gate of student class of Cinema Hall, he found a boy lying unconscious and the appellant standing there who claimed himself to be uncle of that boy but he has not said that the boy and the appellant were those two persons who earlier on the same day were seen by him taking sweetmeat. So his evidence that he had seen two persons taking sweetmeat on the date of occurrence in no way helps the case of prosecution in proving the charge against the appellant.
10. About the circumstance that the appellant had an opportunity to administer the poison to the deceased, the evidence of prosecution witnesses is that when a halla was raised in the student class of the Cinema Hall that a boy had become unconscious the appellant brought out the boy from the student class. Only on the basis of this circumstance, it cannot be said that appellant had an opportunity of administering poison to the deceased.
11. The identification of appellant in T.I. Parade is itself doubtful because Ram Pravesh Singh (P.W. 3), the Manager of Cinema Hall has said that earlier he had seen the appellant in connection with ticket concession and this fact flashed to him at the time of identification of appellant in the T.I. parade and he accordingly identified the appellant. Kanhaiya (P.W. 6), in his cross-examination, has admitted that photograph of the accused was shown to him by the police at the Police Station on the date when he identified the appellant in T.I. parade. Besides this, Bindeshwari Rai (P.W. 4) who at the time of recording his evidence identified the appellant in dock as a man who was with the deceased claiming himself to be the uncle of the deceased, in his cross-examination has stated that that his statements were recorded by the police 1-2 days after the occurrence where he had not stated that he can identify the man who was with the deceased and he has clearly stated that the man who was with the deceased and who had told that he was uncle of the deceased was not identified by him. All these facts create very reasonable doubt about the very presence of appellant with the deceased on the date of occurrence as has been stated by some of the prosecution witnesses. Besides this, Tej Narayan Singh (P.W, 14), father of the deceased, in his evidence has stated that 2-4 days prior to the date of occurrence, the deceased had come to Chapra for appearing in Matriculation Examination and he was residing in the house of one Pandey Thakur Sharan, a retired Dy. S.P. Baiju Tudu (P.W. 10) has supported this fact and has stated that at the relevant time, the deceased was residing in the house of a Dy. S.P. There is no evidence on record to show that on the date of occurrence, the appellant met the deceased at Chapra and took him to Cinema Hall. Tej Narayan Singh (P.W, 14), father of the deceased, has stated that appellant who was his employee had been removed some days prior to the occurrence following a dispute between the deceased and his brother on one side and close relations of appellant on the other side on the point of theft of a dog. Under these circumstances, it is very difficult to believe that deceased would have accepted any sweetmeat from the appellant. Notwithstanding this fact, in absence of any evidence that the appellant was in possession of the poison which was the cause of death of deceased, and he had any opportunity to administer the same poison to the deceased, the charge against the appellant cannot be said to be proved.
12. Considering the entire evidence on record, I find that in this case prosecution has not been able to lead any evidence either direct or circumstantial warranting the conviction of the appellant.
13. In the result, this appeal is allowed and the judgment and order of the Court below convicting and sentencing the appellant under Section 302/34, I.P.C. is hereby set aside. The appellant who is on bail is discharged from the liability of the bail bonds.
R.N. Prasad, J.
14. I agree.