Chattisgarh High Court
State Of Chhattisgarh vs Krishna Ram And Ors. 14 Wpc/334/2018 ... on 7 February, 2018
Author: Ram Prasanna Sharma
Bench: Prashant Kumar Mishra, Ram Prasanna Sharma
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 38 of 2010
Judgment reserved on 18-1-2018
Judgment delivered on 7-2-2018
• State Of Chhattisgarh
---- Appellant.
Versus
1. Krishna Ram
2. Vimal Kumar S/o Kishnuram
3. Ghasiyaram S/o Kishnuram
4. Ramelal S/o Narsingh All Are R/o Village Khajrawan, P.S. Narharpur, Distt.-
Kanker, C.G.
---- Respondents
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For Appellant/State Mr. Satish Gupta, Govt. Advocate
For respondents Mr. R.K. Pali, Advocate.
Hon'ble Shri Prashant Kumar Mishra,
Hon'ble Shri Ram Prasanna Sharma, JJ
CAV Judgment
Per Ram Prasanna Sharma, J
1. This acquittal appeal is preferred against the judgment dated 5-7- 2003 passed by the 2nd Additional Sessions Judge, Kanker, (for short, "the trial Court") Sessions Division Jagdalpur (CG) in Sessions Trial No. 5 of 2003 wherein the trial Court acquitted all the four respondents of the charges under Section 302 and 201 read with 2 Section 34 of the IPC for commission of murder of Akhilesh @ Nanhi and Kishanbati on 18-2-2001 at village Khajravan and causing disappearance of the evidence of said offence with intention to screening them from legal punishment.
2. As per case of prosecution, deceased Akhilesh is Rajput by caste and deceased Kishanbati is Kalaar by caste. Marriage between them was not permissible under the custom prevailing in both communities, but both were in love affair and that is why family members of these two persons were annoyed with them. On 18-2-2001 deceased Kishanbati left her house to meet deceased Akhilesh at Shitla Temple of their village Khajravan, Police Station Narharpur. When they were seen in compromising position at Shitla temple, all the four respondents reached there and assaulted the deceased Akhilesh by club and administered poisonous substance to him. When Kishanbai tried to flee away, they also caught hold her and administered poison to her. It is alleged that one Ramelal and his uncle Nandlal informed Kamlesh, who is brother of deceased Akhilesh, about the incident and Kamlesh rushed to the spot where deceased Akhilesh informed him that he and Kishanbati did not consume poison, but all the respondents have administered poison to both of them. Akhilesh and Kishanbati died due to effect of poison. The matter was reported to Police Station, Outpost Dudhava by one Chandra Bhuwan Singh (PW/2) as per Ex.P/2. After getting information, Police swung into action and certain articles were seized from the spot. Poisonous substance was sent for chemical examination and poisonous substance Democron was found in the bottle seized from the spot. 3 After completion of investigation charge-sheet was filed against the respondents. Respondents did not plead guilty, therefore, trial was conducted. After examination of prosecution witnesses, statements of respondents under Section 313 of Cr.P.C., were recorded and after hearing both the parties, the trial Court acquitted the respondents as mentioned above.
3. Learned State counsel submits as under:
i) As per evidence of Kamlesh (PW/1), Chandrabhuwan Singh (PW/2), Dhansingh (PW/3) and Tulesh Kumar Nishad (PW/5), it is established that deceased Akhilesh made oral dying declaration that the respondents administered poison to Akhilesh and Kishanbati, but the trial Court failed to consider the same.
ii) As per evidence adduced by the prosecution, injury on the back side of head of Akhilesh was found, but the trial Court ignored the fact by saying that same is not material for deciding the issue as the death is caused by poisonous substance.
iii) As the trial Court failed to appreciate the prosecution witnesses supporting version of the prosecution case , the finding arrived at by the trial Court is not in the fitness of the factual matrix and legal aspects of the matter.
4. On the other hand, learned counsel for the respondents 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 with invoking jurisdiction of the appeal.
5. We have heard learned counsel for the parties and perused the record.
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6. Invoking jurisdiction of the appeal, this court is having jurisdiction to re-appreciate the evidence and coming to its own conclusion. To substantiate the charge prosecution has examined as many as 13 witnesses. To nullify the charge, defence side has examined one witness.
7. Dr. Naresh Goyal (PW/12) conducted autopsy of deceased Akhlesh Singh @ Nanhi brought by Constable Anjore Singh and found one injury on his occipital region and opined that cause of death may be due to inhailing of poisonous substance and same is caused since 12- 24 hours from examination.. He further deposed that he conducted autopsy of Ku. Kishanbati also on the same day and after examination he opined that her death is caused due to inhailing of poisonous substance. He further opined that injury caused on occipital region of Akhilesh Singh is not the reason of his death.
8. Version of this witness is unrebutted during cross examination and there is no other expert's opinion in the record of the trial court in rebuttal of the same. We have no reason to discard the expert's opinion and on the basis of his opinion, it is established that cause of death of both deceased is consumption of poisonous substance. One plastic box seized from the spot and viscera of both deceased were sent for chemical examination and after examination, it is found that poisonous substance Organic Phosphate (pesticide) Phepsa Demo- cran was found in the articles sent for examination. From the statement of prosecution witnesses and report of laboratory, it is established that Democran was found in the body of the deceased and as per expert's opinion and FSL report, it is established that 5 cause of death of both deceased is due to consumption of poisonous substance Demo-corn.
9. Now the point for consideration is whether all the four respondents or any of them have administered Democran to both deceased. There is no eye-witness account to the incident. No poisonous substance is seized from any of the respondents. Plastic box containing Democran was seized from the spot where the dead bodies of the deceased were found. Case of the prosecution is based on oral dying declaration made by deceased Akhilesh to his brother Kamlesh. As per version of PW/2 Chandrabhuwan Singh, PW/3 Dhansingh and PW/5 Tulesh Kumar Nishad, Kamlesh informed them that before his death Aklhilesh had made oral dying declaration that respondents have administered poison to Akhilesh and Ku. Kishanbati. Version of these witnesses is hearsay in nature. Hearsay evidence is not received as relevant evidence. In Kalyan Kumar Gogol vs. Ashotosh Agnihotri, reported ion (2011) 2 SCC 532, Hon'ble the Supreme Court has held as under:
"(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me",
(b) truth is diluted and diminished with each repetition and
(c) if permitted, gives ample scope for playing fraud by 6 saying "someone told me that...........". It would be attaching importance to false rumour flying from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible."
10. Admittedly, there is no eyewitness to the incident. The case of the prosecution is based on circumstantial evidence. In the matter of Jaharlal Das Vs. State of Orissa1, it is held by Hon'ble the Apex Court as under:
"In cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. When the main link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be short step between moral certainly and the legal proof. At times, 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."
1 (1991) 3 SCC 27 7
11. PW/1 Kamlesh Bnhadoriya deposed that before his death, his brother Akhilesh made oral dying declaration that all the respondents have administered poisonous substance Democran to him, but this is not mentioned in his previous statement recorded under Section 161 of the Cr.PC. It is settled principles of law that it is the quality of the evidence that has to be weighed and when this witness has not informed the Police authorities regarding oral dying declaration, his version before the court can be accepted only after acceptable explanation given by him for not stating the same before the authorities, but no explanation is offered. From his evidence it is established that he is stating different version at different stage and that renders his testimony unreliable. He has stated that oral dying declaration made by the deceased Akhilesh was intimated to one Chandrabhuwan Singh (PW/2) by him, but Chandrabhuwan Singh, who gave merg intimation to Police Station as per Ex.P/2 has not mentioned this material thing in his report.
12. It is cardinal principle of criminal jurisprudence that "graver the offence, stricter the proof". In the present case, theory of so called dying declaration is not reliable, therefore, it is difficult to hold that poisonous substance was administered by any of the respondents. Further more, there is no struggle marks on the face or on the body of the deceased which also negatives theory of forcible inhailing of poison. Injury found on the occipital region of the deceased Akhilesh is also not connected with any of the respondents as per evidence led by the prosecution.
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13. Looking to the evidence adduced by the prosecution before the trial Court, no other view is possible than the one recorded by the trial Court and same is not liable to be interfered with invoking jurisdiction of the appeal.
14. Accordingly, the appeal is liable to be and is hereby dismissed.
Sd/- Sd/-
Judge Judge
(Prashant Kumar Mishra) (Ram Prasanna Sharma)
Raju
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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 10