Chattisgarh High Court
Manrakhan Prasad Miri vs State Of Chhattisgarh on 16 February, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Cr.A.No.396/2014
Page 1 of 21
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.396 of 2014
{Arising out of judgment dated 14-2-2014 in Sessions Trial No.88/2012 of
the Additional Sessions Judge (FTC), Korba}
Manrakhan Prasad Miri, S/o Hiralal Miri, aged about 28 years, R/o
Pantora, Police Station Baloda, Civil and Revenue District Janjgir-
Champa (C.G.)
(In Jail)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, Police of Police
Station Chowki Manikpur, City Kotwali, District Korba (C.G.)
---- Respondent
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For Appellant: Ms. Laxmeen Kashyap, Advocate.
For Respondent/State: Mr. Sudeep Verma, Deputy Govt. Advocate and
Mr. Neeraj Pradhan, Panel Lawyer.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Radhakishan Agrawal, JJ.
Judgment On Board (16/02/2023) Sanjay K. Agrawal, J.
1. Sole appellant / convict herein has preferred this appeal under Section 374(2) of the CrPC, questioning legality, validity and correctness of the impugned judgment dated 14-2-2014, by which he has been convicted under Sections 302, 307 & 309 of the IPC and sentenced to undergo imprisonment for life & pay a fine of ₹ 2,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year; rigorous imprisonment for seven years & fine of ₹ 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months; and rigorous imprisonment Cr.A.No.396/2014 Page 2 of 21 for six months, respectively.
2. Case of the prosecution, in short, is that on 8-8-2012 at 1:30 p.m. at Amraiyapara, Korba, the appellant administered insecticide to his elder son Nikhil Miri and to his younger son Vinay Miri by which Nikhil Miri died and also attempted to cause the death of younger son Vinay Miri and he himself also took the insecticide - Salphaz and attempted to commit suicide and thereby committed the aforesaid offences. Further case of the prosecution is that the appellant was married to Seema Mahant (PW-2) and out of their wedlock, they have been blessed with two sons Nikhil (now deceased), aged about 7 years (at the time of death), and Vinay, aged about 3 years 6 months, and he was at that time working in Hotel Central Point, Korba and staying in a tenanted accommodation at Amraiyapara, Korba in the house of Sardar Singara Singh. It is also the case of the prosecution that the appellant was suspecting the character of his wife and he used to be unhappy and in order to give quietus to his life, he decided to terminate his life and further considering that after his life, there will be no future of his sons and thus, he also decided to end the life of his two sons and accordingly, he himself took insecticide - Salphaz and also administered the same to his two sons and thereafter, he started omitting, then his wife Smt. Seema Miri (PW-2) called her neighbour Dhanbai (PW-15) who came to the house of the appellant and they have taken the appellant and his both sons to District Hospital, Korba with the help of a three wheeler and during treatment, elder son of the appellant Nikhil Miri died. Though out of Cr.A.No.396/2014 Page 3 of 21 fear, the appellant absconded from the hospital, but considering his position, he was brought back to the hospital and he was readmitted. Police Chowki Manikpur registered the offence in zero number and thereafter, it was converted to regular offence under Crime No.824/2012 registered at Police Station City Kotwali, Korba for the offences punishable under Sections 302, 307 & 309 of the IPC against the appellant. Morgue intimation was registered vide Ex.P-16 and FIR was registered vide Ex.P-12. Thereafter, inquest over the dead body of Nikhil was conducted vide Ex.P-9 and dead body was subjected to postmortem vide Ex.P-24 which was conducted by Dr. O.S. Kanwar (PW-14) who opined that cause of death could not be confirmed as it can be ascertainable after the chemical examination, and viscera was preserved for chemical analysis. Thereafter, memorandum statement of the appellant was recorded vide Ex.P-1 and omit of the accused was seized vide Ex.P-2 and insecticide was also seized vide Ex.P-3. All the seized articles were sent for chemical analysis to the Forensic Science Laboratory, Raipur from where report was received vide Ex.P-28 and on chemical analysis, the seized poisonous substance was found to be aluminium phosphide. Statements of the witnesses were recorded under Section 161 of the CrPC and the matter was investigated.
3. After completion of due investigation, charge-sheet was filed against the appellant for offences under Sections 302, 307 & 309 of the IPC before the jurisdictional criminal court which was committed to the Court of Sessions, Korba from where the learned Additional Cr.A.No.396/2014 Page 4 of 21 Sessions Judge (FTC), Korba, received the case on transfer for trial and for hearing and disposal in accordance with law.
4. The trial Court has framed charges under Sections 302, 307 & 309 of the IPC against the appellant and proceeded on trial. The accused / appellant abjured guilt and entered into defence stating that he has not committed the offence and he has been falsely implicated.
5. The prosecution in order to bring home the offence examined as many as 16 witnesses and exhibited 28 documents Exhibits P-1 to P-28, whereas the defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of the CrPC in which he abjured guilt and pleaded innocence.
6. The trial Court after completion of trial and after appreciating oral and documentary evidence on record, convicted the appellant under Sections 302, 307 & 309 of the IPC and sentenced him to undergo imprisonment for life and other sentences as noticed in the opening paragraph of this judgment against which this appeal under Section 374(2) of the CrPC has been preferred by him.
7. Ms. Laxmeen Kashyap, learned counsel appearing for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant, as the four circumstances as held by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 in paragraph 165 of the judgment, have not been established beyond reasonable doubt and clear motive of the 1 (1984) 4 SCC 116 : AIR 1984 SC 1622 Cr.A.No.396/2014 Page 5 of 21 accused to administer poison to his sons was also not established. Furthermore, it has not been proved that the accused had poison in his possession. Therefore, it cannot be said that the accused / appellant had opportunity to administer poison to his sons. As such, the aforesaid three circumstances are missing and furthermore, the seized poison vide Ex.P-3, which was seized on 11-8-2012, was neither sealed nor it was kept in safe custody, as it was deposited by the Office of the Superintendent of Police, Korba before the State FSL, Raipur for chemical analysis on 27-8-2012, which was received by the FSL on 31-8-2012 and there is no register of malkhana produced stating that immediately after seizure vide Exs.P-2 & P-3 the seized poisonous substance was kept in safe custody till it was sent to the FSL. As such, the possibility of tampering with the alleged poisonous substance cannot be ruled out and therefore conviction and sentences imposed upon the appellant are liable to be set aside and the appellant deserves to be acquitted by allowing the appeal.
8. Mr. Sudeep Verma and Mr. Neeraj Pradhan, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to prove the offence beyond reasonable doubt and in light of the decision of the Supreme Court in Sharad Birdhichand Sarda (supra), paragraph 165, all the four incriminating circumstances have been proved justifying the conviction of the appellant for offences punishable under Sections 302, 307 & 309 of the IPC and the appeal deserves to be dismissed.
Cr.A.No.396/2014Page 6 of 21
9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
10. It is the case of the prosecution that the appellant himself has also consumed insecticide / poisonous substance as well as he administered the same to his two sons and thereafter, one of his sons Nikhil Miri died and his younger son Vinay Miri's life has been saved and though he remained hospitalized, but he was discharged from the hospital thereafter. As such, it is a case of poisoning.
11. Now, the question, is whether the prosecution has been able to prove that it is the appellant who has caused the death of his elder son Nikhil Miri by poisoning?
12. The law in this regard is well settled. In the matter of Anant Chintaman Lagu v. The State of Bombay 2, their Lordships of the Supreme Court have laid down the parameters to be established by the prosecution in case of murder by poisoning and it has been held that the prosecution must establish in a case of poisoning that the death took place by poisoning; the accused had the poison in his possession; and that the accused had an opportunity to administer the poison to the deceased. In the aforesaid matter, the following has been observed by their Lordships:
"The prosecution must establish in a case of poisoning
(a) that death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. Though these three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning 2 AIR 1960 SC 500 Cr.A.No.396/2014 Page 7 of 21 will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of doubt will have to be given to the accused person. But if circumstantial evidence, in absence of direct proof of the three elements, is so decisive that the court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it."
13. Thereafter, in Sharad Birdhichand Sarda (supra), which was a case of cyanide poisoning, for which, the husband of the deceased was tried for murder, their Lordships of the Supreme Court stressed that the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction. The following was thus held in paragraphs 164, 165 and 166:
"164. We now come to the mode and manner of proof of cases of murder by administration of poison. In Ramgopal case8 this Court held thus :
Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question ? (secondly), had the accused the poison in his possession ? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased ? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death.
165. So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:
(1) there is a clear motive for an accused to administer poison to the deceased, Cr.A.No.396/2014 Page 8 of 21 (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased.
168. The facts of the case cited above were very much similar to the present appeal. Here also, the Court found that circumstances afforded a greater motive to the deceased to commit suicide than for the accused to commit murder. This view was reiterated in Dharambir Singh case10 where the Court observed as follows :
Therefore, along with the motive, the prosecution has also to establish that the deceased died of a particular poison said to have been administered, that the accused was in possession of that poison and that he had the opportunity to administer the same to the deceased; (see Mt. Gajrani v. Emperor11). It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, in a case of circumstantial evidence, that the poison was administered by the accused to the deceased resulting in his death.
* * *"
14. The principle of law laid down by the Supreme Court in Anant Chintaman Lagu (supra) and Sharad Birdhichand Sarda (supra) was subsequently followed in the matter of Bhupinder Singh v.
State of Punjab3, in which, it was held that even if there is failure of the prosecution to prove the possession of poison with the accused, the same is not fatal, if the prosecution clearly proves that it is a case of circumstantial evidence. The following was thus held in paragraphs 26 & 27 :
3 (1988) 3 SCC 513 Cr.A.No.396/2014 Page 9 of 21 "26. The poison murder cases are not to be put outside the rule of circumstantial evidence. There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like any other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw from the circumstances an inference on any matter one way or the other.
27. The view that we have taken gets support from the decision of this Court in Ananth Chintaman Lagu v. The State of Bombay, AIR 1960 SC 500 where Hidayatullah, J., has given an anxious consideration to the three propositions laid down in Dharambir Singh case. The learned Judge did not consider them as invariable criteria of proof to be established by the prosecution in every case of murder by poisoning. ..."
15. The aforesaid decisions of the Supreme Court in Anant Chintaman Lagu (supra), Sharad Birdhichand Sarda (supra) and Bhupinder Singh (supra) have been followed recently in the matter of Sandeep Kumar and others v. State of Uttarakhand and another4.
16. Reverting to the facts of the present case in light of the decisions of the Supreme Court in Anant Chintaman Lagu (supra), Sharad 4 2020 SCC OnLine SC 980 Cr.A.No.396/2014 Page 10 of 21 Birdhichand Sarda (supra), Bhupinder Singh (supra) and Sandeep Kumar (supra), it is quite vivid that in the instant case, the prosecution was required to establish the following circumstances: -
1. there is a clear motive for the accused / appellant to administer poison to the deceased;
2. that the deceased died of poison said to have been administered;
3. that the accused / appellant had the poison in his possession;
and
4. that he had an opportunity to administer the poison to the deceased.
17. We will consider each of the aforesaid circumstances one by one to find out as to whether the prosecution has established all the four incriminating circumstances to justify the conviction of the accused / appellant herein.
Motive for the offence: -
18. The prosecution has alleged that the appellant used to suspect the character of his wife and that is the motive for committing the offence of murder of his elder son Nikhil and also attempt to commit murder of his younger son Vinay and he himself has also consumed poison. But surprisingly, there is not an iota of evidence available on record to establish the said motive allegedly attributed against the appellant. Smt. Seema Miri (PW-2), who is wife of the appellant, is the best witness to say in this regard so as to establish Cr.A.No.396/2014 Page 11 of 21 the fact of motive that the appellant used to suspect her character and that is the reason for committing the murder of his son Nikhil, but she has not stated a single word about the appellant having suspected her character at any point of time, rather she has not supported the case of the prosecution and she had come out with a case of accidental poisoning, as the poison is said to have fallen on the cooked food. However, in the FIR, a different picture has been portrayed by the prosecution stating that on account of ill financial condition and on account of his large family to support his two sons, the appellant always remained disturbed and on that account, he decided to commit suicide and further, considering that after his death there will be no one who could competently take care of his two sons, he decided to administer poison to both of his sons, which was supported by his wife in her statement recorded under Section 161 of the CrPC, but in her statement before the Court she has not stated anything about the alleged motive of having administered poison to his two sons on account of financial constraints which also finds place in the roznamcha sanha (Ex.P-
15) proved by A.K. Khandekar (PW-9), but since it is a statement that has been made to the police in shape of roznamcha sanha (Ex.P-15), it is inadmissible in evidence. As such, it cannot be held that the prosecution has been able to prove clear motive of the offence beyond reasonable doubt.
19. The Supreme Court in the matter of State of U.P. v. Kishanpal5 has highlighted the importance of motive in cases of circumstantial evidence and held as under in paragraphs 38 & 39: -
5 (2008) 16 SCC 73 Cr.A.No.396/2014 Page 12 of 21 "38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
20. Similarly, in the matter of Pannayar v. State of T.N.6, the Supreme Court has clearly held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.
21. Furthermore, in the matter of Babu v. State of Kerala7, which is a case of poisoning, the Supreme Court has held that in a case of circumstantial evidence, motive must be established at least to a certain extent and relying upon its earlier decisions in Kishanpal's case (supra) and Pannayar (supra), their Lordships of the Supreme Court observed as under:
"56. No motive was attributed except that Benny (PW
10) had deposed that the appellant was not satisfied with the sexual behaviour of Sweety, the deceased. While the High Court was satisfied with this alleged motive, it failed to notice the glaring contradiction that surrounded 6 (2009) 9 SCC 152 7 (2010) 9 SCC 189 Cr.A.No.396/2014 Page 13 of 21 it. On the one hand, the prosecution case alleges that the motive behind the appellant's murder of his deceased wife was that she was refusing to have sexual relations with him. On the other hand, the prosecution case is that the deceased Sweety, was taking an ayurvedic contraceptive at the behest of the appellant. There is absolutely no explanation that has been provided for why the deceased Sweety would have taken a contraceptive if she was not having sexual relations with her husband or anyone else.
59. In a case of circumstantial evidence, motive must be established at least to a certain extent. Had there been a motive on the part of the appellant to get rid of the deceased and he had purchased sodium cyanide on 26-5-2000/27-5-2000 from Xavior (PW 7), it is difficult to believe that he was waiting up to 1-6-2000 and that he would have advised his wife to take cyanide under the guise of an ayurvedic contraceptive medicine at the residence of her parents."
22. Thus, though the present case is based on circumstantial evidence and the Supreme Court in Sharad Birdhichand Sarda (supra), Ramgopal v. State of Maharashtra8, Kali Ram v. State of Himachal Pradesh9, Dharambir Singh v. State of Punjab 10 and the Allahabad High Court in the matter of Mt. Gajrani v. Emperor11 have clearly emphasized the need for proof of motive, but in the instant case, the prosecution has miserably failed to establish clear motive for the accused to administer poison to his son Nikhil and as such, clear motive on the part of the appellant to administer poison to deceased Nikhil Miri is held to be missing and it is held so accordingly.
Possession of poison, opportunity to administer poison and 8 (1972) 4 SCC 625 9 (1973) 2 SCC 808 10 Criminal Appeal No.98 of 1958, decided on November 4, 1958 printed on green papers in bound volumes 11 AIR 1933 All 394 Cr.A.No.396/2014 Page 14 of 21 consequent death of the deceased on account of poisoning: -
23. Since all the above three circumstances are related to each other, they have been clubbed together and are taken-up together for consideration.
24. It is the case of the prosecution that the date of incident is 8-8-2012 in the afternoon and when the appellant and his two sons started omitting, Smt. Seema Miri (PW-2) - wife of the appellant, called Dhanbai (PW-15) - neighbour, and they have hired an auto-
rickshaw and took the appellant and his two sons to Indira Gandhi District Hospital, Korba, where they were admitted on 8-8-2012 and treated and during treatment, Nikhil - elder son of the appellant, died and the appellant and his younger son Vinay, both, survived and said to have been discharged from the hospital on 11-8-2012 as per the un-exhibited document available on record. Immediately thereafter, on 11-8-2012 at 12 noon, memorandum statement of the appellant was recorded outside the house of one Manrakhan at Amraiyapara vide Ex.P-1 pursuant to which the left out poisonous substance along with tin was seized vide Ex.P-3 at 12:30 p.m., on being produced by the appellant. A careful perusal of the said seizure memo would show that sample seal is missing on the same which was required to be sealed as per Rule 506( v)(1) of the Chhattisgarh Police Manual and Regulations. It is nowhere available on record that as to where the left out substance seized vide Ex.P-3 was kept, as the Superintendent of Police, Korba by its memo dated 27-8-2012 had sent the seized articles Exs.P-2 & P-3 and the viscera seized vide Ex.P-19 (sample seal missing) to the Cr.A.No.396/2014 Page 15 of 21 State FSL, Raipur for chemical analysis which was ultimately deposited on 31-8-2012 vide Ex.P-25 to the State FSL, Raipur. It is also not reflected from the record that the seized article viscera was sealed on 11-8-2012 and the left out poisonous substance seized vide Ex.P-3 was sealed on 11-8-2012. Ultimately, as per the FSL report dated 19-10-2012 (Ex.P-28), aluminium phosphide - chemical substance of poison, has been found on Article A - remains of omitting, Article B - seized insecticide and Articles C & E - viscera of deceased Nikhil Miri, and on that basis, the appellant has been convicted.
25. It is appropriate to mention that first of all the appellant remained hospitalized up to 11-8-2012 and he was discharged on the same day and immediately, thereafter, his memorandum statement was taken and vide Ex.P-3, the left out poisonous substance was seized. As the appellant remained hospitalized, the house was in possession of his wife Smt. Seema Miri (PW-2), it was not in the possession of the appellant and on the day when he came from hospital, his memorandum statement was immediately recorded and as per the seizure memo Ex.P-3, it appears that the poisonous substance has been seized on being produced by the appellant. It has not been pointed out by the prosecution as per the seizure memo, at which place the poisonous substance was kept and it was in the exclusive knowledge of the appellant, he only knew about the said substance and no other member was knowing about it apart from his exclusive possession and he remained in hospital till the afternoon of 11-8-2012. As such, the exclusive possession Cr.A.No.396/2014 Page 16 of 21 of the appellant as per the requirement of Section 27 of the Evidence Act, is not established beyond reasonable doubt.
26. Apart from this, the left out poisonous substance seized vide Ex.P-3 does not bear the sample seal by which it was sealed. Similarly, viscera was seized vide Ex.P-19, but in Ex.P-19, sample seal of either the Investigating Officer or the doctor, is missing. Even in Ex.P-2 - vomit of the deceased and in Ex.P-3 - left out poisonous substance, no sample seal has been affixed. Thereafter, seized articles Exs.P-2, P-3 & P-19 were seized on 11-8-2012 and the same were sent to the State FSL, Raipur, by the Superintendent of Police, Korba, who authored the demi-official letter on 27-8-2012 vide Ex.P-24 and ultimately, the same were deposited with the FSL vide Ex.P-25 on 31-8-2012, but it was not apparent on record, where the said seized articles Exs.P-2, P-3 & P-19 were kept from 11-8-2012 to 31-8-2012; whether they were kept in safe custody or not, no copy of malkhana register demonstrating that the same were kept in safe custody from 11-8-2012 till their production on 31- 8-2012, has been produced. The safe custody of vomit sample, left out insecticide and viscera (seized articles) of the deceased is required to be established by the prosecution beyond any shadow of doubt.
27. In the matter of Santa Singh v. State of Punjab 12, the Supreme Court has held that if there exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated.
28. Similarly, in the matter of Amarjit Singh alias Babbu v. State of 12 AIR 1956 SC 526 Cr.A.No.396/2014 Page 17 of 21 Punjab13, the Supreme Court has held that non-sealing of the revolver at the spot was a serious infirmity as the possibility of tampering could not be ruled out and observed in paragraph 7 as under: -
"7. The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW 4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW 4 that he did not test-fire the revolver."
29. Thereafter, in the matter of Mahmood v. State of U.P. 14, their Lordships of the Supreme Court have emphasized the need for fair and cautious investigation by holding that there should be fair and cautious investigation and Investigating Officer should rule out possibility of fabrication and his conduct should dispel suspicion. It has been observed in paragraphs 15 & 18 of the report as under: -
"15. Further, the investigator did not take all the necessary precautions which could be taken to eliminate the possibility of fabrication of this evidence, or to dispel suspicion as to its genuineness. Admittedly, he sealed the box with his own seal which thereafter remained with him throughout. He did not take the signatures of the witnesses on the parcel containing the gandasa. He did not after sealing the parcel entrust his seal to the 13 1995 Supp (3) SCC 217 14 (1976) 1 SCC 542 Cr.A.No.396/2014 Page 18 of 21 Sarpanch or any other respectable person of the village. According to the prosecution the fingerprints found on the gandasa could possibly be bloodprints and that the blade of the gandasa was all smeared with human blood. But this gandasa was never sent to the Chemical Examiner or the Serologist. No explanation of the same is forthcoming. This being the case, the contention of Mr. R.K. Garg at the Bar, that the gandasa, Ex. 1, or smear of the alleged blood on it was not sent to the Chemical Examiner for fear of the fabrication being detected and exposed, cannot be rejected outright.
18. Secondly, even if it is assumed that the handle of this gandasa bore the fingerprints of the appellant, then also it would not inexorably and unmistakably lead to the conclusion that the appellant, and none else was the murderer of Dwarka, unless it was firmly proved further that the fatal injury to the deceased was caused with this weapon. Definite proof of this link was lacking in this case. The missing link could be best supplied by showing that there was blood on this gandasa, and that blood was of human origin. But this was not done."
30. A Division of the M.P. High Court in the matter of Vijay Singh v. State of M.P.15 held that there is no explanation regarding the period of ten days during which articles were available with the prosecution and due to lack of evidence regarding sealing of the articles in a proper manner and its identification, the seizure of material and consequential report regarding the said article / material cannot be believed.
31. Reverting to the facts of the case, it is quite established that in the instant case, sealing of seized articles vide Exs.P-2, P-3 & P-19 has not been established by the prosecution beyond reasonable doubt. Admittedly, there is no sample seal on all the seized articles vide Exs.P-2, P-3 & P-19 and in light of the decision of the Supreme Court in Amarjit Singh alias Babbu (supra), the non- 15 (2004) 4 MPLJ 543 Cr.A.No.396/2014 Page 19 of 21 sealing of the aforesaid articles is a serious infirmity because in absence thereof the possibility of tampering cannot be ruled. Similarly, though the articles were seized vide Exs.P-2, P-3 & P-19 on 11-8-2012 and ultimately submitted to the FSL authorities on 31- 8-2012, but no evidence has been brought on record to establish that these articles were kept in safe custody till 31-8-2012 when it was deposited with the FSL authorities, which runs contrary to the decision rendered by the Supreme Court in Babu (supra) as the investigator did not take all necessary precautions which could be taken to eliminate the possibility of fabrication and to dispel suspicion as to its genuineness.
32. Consequently, all these circumstances raise suspicion of tampering and possibility of fabrication cannot be altogether ruled out, out- rightly and therefore the report of the FSL Ex.P-28 cannot be accepted as it is and it cannot be held that the appellant was in possession of the poisonous substance vide Ex.P-3 which was said to have been administered to deceased Nikhil Miri and which was found in his viscera seized vide Ex.P-19.
33. Reverting to the facts of the present case finally, it is held that the prosecution has failed to prove clear motive qua the appellant to administer poison to deceased Nikhil Miri and further failed to prove that the appellant had poison in his possession, as the recovery of poisonous substance vide Ex.P-3 pursuant to the memorandum statement has not been established beyond reasonable doubt, because panch witnesses Sanjay Tiwari (PW-1) & Sanju Kumar (PW-12), both, have turned hostile and the FSL report Ex.P-28 Cr.A.No.396/2014 Page 20 of 21 cannot be believed as the poisonous substance seized vide Ex.P-3 was neither sealed properly nor was kept in safe custody from 11- 8-2012 to 31-8-2012 till it is deposited with the FSL, as per the decisions of the Supreme Court in Amarjit Singh alias Babbu (supra) and Babu (supra). Since the prosecution has failed to prove that the accused has poison in his possession beyond reasonable doubt, the question of administering poison by him does not arise.
34. As such, the three important ingredients laid down by their Lordships of the Supreme Court in Sharad Birdhichand Sarda (supra) i.e. clear motive of the accused to administer poison to the deceased, the accused had poison in his possession and he had an opportunity to administer poison to the deceased are absolutely missing in the present case and the prosecution has failed to establish the offence punishable under Section 302 of the IPC against the appellant beyond reasonable doubt. Since chemical analysis report has not been accepted by this Court, on that basis, it cannot be concluded that deceased Nikhil Miri died on account of poisoning. Similarly, conviction of the appellant under Sections 307 & 309 of the IPC are also not well merited. Thus, the appellant is entitled for acquittal on the ground of benefit of doubt.
35. We hereby set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 14-2-2014 passed by the Additional Sessions Judge (FTC), Korba, in Sessions Trial No.88/2012. The appellant is acquitted of the charges under Sections 302, 307 & 309 of the Cr.A.No.396/2014 Page 21 of 21 IPC. He is in jail. He be released forthwith unless his custody is required in any other case.
36. The appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Soma