Allahabad High Court
Smt. Kaushalya vs State Of U.P. on 28 August, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment Reserved On 29.02.2024
Judgment Delivered On 28.08.2024 Neutral Citation No. 2024:AHC:138198-DB
Court No. - 47
Case :- CRIMINAL APPEAL No. - 4577 of 2005
Appellant :- Smt. Kaushalya
Respondent :- State of U.P.
Counsel for Appellant :- Satyendra Narayan Singh,Girdhar Prasad Tripathi,Jagdish Prasad Mishra,P.K. Singh,Ravi Agarwal,Shishir Prakash,Swetashwa Agrawal
Counsel for Respondent :- Govt. Advocate, Onkar Singh
Hon'ble Rajiv Gupta, J.
Hon'ble Mohd. Azhar Husain Idrisi, J.
(Per :- Hon'ble Mohd. Azhar Husain Idrisi, J.)
1. The present appeal has been oscillating before this Court from the year 2005, the accused appellant Smt. Kaushalya has been convicted u/s 302, 328 IPC and sentenced to life imprisonment. Swinging of the appeal years together due to procedural technicalities and change of counsel is only a device to narrow down the advancement of fair justice, which cannot be gainsay to a person who has been gasping with life in jail. Since the accused appellant has been incarcerating in jail from 2004, and paper book has been prepared way back in the year 2022, therefore, this appeal cannot be permitted to remain hanging on any technicality. The basic objective of concluding a trial is to protect the life and liberty of a person, serving a sentence in jail. The life and liberty of the accused cannot be downsized on the score of any technicality or negation of counsel to address the Court.
2. The instant appeal has been preferred on behalf of the appellant Smt. Kaushalya, u/s 374(2) Cr.P.C., assailing the judgment and order dated 05.09.2005, passed by the learned Special Additional Sessions Judge, Muzaffar Nagar, in Sessions Trial No.1040 of 2004 (State versus Narendra and Another), arising out of Case Crime No. 81 of 2004, Police station Rtan Puri, District-Muzaffar Nagar, under Sections 302, 328 Indian Penal Code 1860 (in short, further referred as IPC), whereby the accused appellant Smt. Kaushalya was convicted for the offence under Sections 302, 328 IPC, and sentenced for the offence punishable under sections 302 IPC to undergo life imprisonment and for the offence punishable under section 328 IPC to serve out ten years rigorous imprisonment. Both sentences were directed to run concurrently.
3. The genesis of prosecution story, as emanates from record, in a narrow compass, is that on 27.06.2004 at about 12.05 p.m. Pramod Kumar father of the deceased, informed to the P. S. Ratan Puri that he went to his field alongwith his three children daughter Annu aged about 11 years, and sons Shivam aged about 8 years and Satyam aged about 4 years, He sent the children to fetch water from government hand-pipe located in the vicinity to harijan temple, near chak road. When returned, they fell unconscious and fainted. He informed about the incident to his elder brother Prem, who alongwith Ram Niwas taken the children to hospital of Dr. Narendra Tyagi at khetauli where he declared Shivam and Satyam to have been brought dead and later Annu also died. This information was enterd in the G.D. No.16 at 12.05 p.m. dated 27.06.2004 at police station Ratan Puri. On the basis of this information SHO went on the spot, inquest proceedings were conducted and the deceased children were sent for autopsy.
4. On 28.06.2004, at about 08.00 a.m. informant Prem gave a tehrir, scribed by Rakesh Kumar Sharma, reiterating above facts and divulging some additional facts, against Narendra (since deceased) and the accused/appellant Smt. Kaushalya, (wife of Narendra), at Police Station Ratan Puri, in respect of the incident occurred on 27.6.2004 at about 9.30 a.m. divulging therein that on 27.6.2004, Pramod Kumar, elder brother of complainant Prem, had gone to his field at about 7.30 a.m. on a Buggi along with his daughter Annu aged about 11 years, and sons Shivam aged about 8 years and Satyam aged about 4 years. Pramod Kumar had sent his children to fetch water from government hand pump, situated in the proximity of Harijan Temple. When his children were coming back taking water and reached near the Chakroad, the accused Narendra (since deceased) and his wife Kaushalya (the appellant) hailing to Brahman community supplied them devotional offering (prasad) in the shape of cardamom seeds, coated with sugar (Ilaychi Dana) wrapped in a pieces of newspaper. At that crucial moment, Krishna Pal s/o Shiv Ram and Praveen s/o Deep Chand who were going to their fields via Chakroad, had seen appellant supplying the devotional offering (Prasad) to those children. The children lost their consciousness and fainted in the field. Pramod informed him about the incident. They had taken the children to nursing home of Dr. Narendra Kumar Tyagi, located at Khatuli. where doctor declared them dead. The children of Pramod died on account of devouring poisonous devotional offering (Prasad) given by Narendra (since deceased) and Smt. Kaushalya (present appellant). The said incident/ fact had come in his notice on the information given by the witnesses.
5. On the basis of the aforementioned tehrir Ext. Ka-1, Case Crime No.81 of 2004 under Sections 302/328 IPC was registered against the accused i.e. present appellant Smt. Kaushalya and her husband Narendra (since deceased). Particulars of the same were drawn in Kaimi G.D. No. 12, Ext. Ka-6, at about 08.00 a.m. dated 28.06.2004 P.S. Ratan Puri. Simultaneously entries were made in chik FIR, Ext. Ka-6, also. Investigation was entrusted to S.I. D.N Verma SHO.
6. As stated above the Investigating Officer (I.O.) reached at the spot and after nominating the witnesses launched inquest proceedings of the corpse of the children Shivam, Annu and Satyam, on 27.06.2004, from 12:05 p.m. to 12:30 p.m. Inquest proceedings were completed in the presence of the witnesses. According to the opinion of the witnesses of the inquest, the death of those children happened on account of devouring of poisonous stuff. I.O. subscribed to the opinion of the panchan (witnesses). Panchnamas (Inquest reports) of the deceased children were duly prepared on 27.6.2004 and signatures of witnesses were obtained over the inquest reports.
7. After carrying out the necessary formalities, inclusive of handing over of letter to C.M.O, Photo Lash, Lash Challan etc, dead bodies of children duly wrapped in the cloth and sealed and then were taken to the mortuary for autopsy. The documents with regard to autopsy of the deceased children were handed over to constable 165 Ram Beer and constable 73 Chatar Pal. The post mortem of the deceased children namely Annu aged about 11 years, Shivam aged about 8 years and Satyam aged about 4 years was conducted on 27.6.2004 at about 10.00 p.m. onward at District Hospital Muzaffar Nagar by Dr. Yogendra Tirkha ad postmortem reports of all the three deceased children Ext Ka-3, Ka-4, Ka-5 were prepared by the autopsy surgeon.
8. The Investigating Officer recorded statement of the witnesses under section 161 Cr.P.C., prepared site plan Ext Ka-23. On 27.6.2004 recovered a piece of news paper on which 12th June and in the margin Chaurasi and Gujarat riot etc. words were written in the box and in one side photo was stuck and on a piece of that newspaper some cardamom was kept. A sample of cardamom (Prasad) was taken from it. The said cardamom was put in one polythene as well as one piece of newspaper was also collected and kept. It was opined that three children died of devouring that cardamom. The polythene in which cardamom (Prasad) was kept was duly sealed after conducting all necessary formalities. Memo of recovery, Ext. Ka-22, was duly prepared, signed by I.O. and the witnesses.
9. On 28.06.2004, the accused Narendra and Kaushalya were arrested and on their pointing a newspaper "Royal Bulletin", dated 13th June, in which the news of 12th June, was published. The said newspaper was having 12 pages, of which below the main page on the right side, a portion was split. The torn portion as below the page no.9, on the right side, was taken out from the drawer of dressing table of the accused persons. It was unfolded by them that on a piece of that newspaper, they had given cardamom (prasad) to Annu, Shivam and Satyam, near the tubewell of Pramod Kumar. The said incriminating material was taken into possession by the police and recovery memo of the same was prepared. The pieces of the newspaper were kept in a polythene without seal because a piece of that newspaper on which the mark of cardamom (Prasad) was existing, was recovered from the place of occurrence on 27.6.2004. The said portion of newspaper was kept for tallying. The said recovery memo was prepared by constable 778 Dharm Pal Singh and was duly signed by the witnesses. The recovered incriminating articles were sent to chemical analyst. In the report of the chemical analyst Aluminum phosphide, pungent smell was found in the recovered article tallying with the cardamom. The report of the chemical analyst was duly marked as Ext. Ka-26.
10. The investigation officer after collecting the credible and clinching material and evidence showing the complicity of the accused appellant and her husband (Narendra-since deceased) and after duly conclusion of investigation, submitted the charge sheet, Ext. Ka- 25, under Sections 302/328 IPC, before the learned Chief Judicial Magistrate Muzaffar Nagar, against the accused. Learned CJM took cognizance of the case. Since it was exclusively triable by the court of Sessions, hence, he committed it to the Sessions, vide his order dated 21.09.2004, where it was registered as S.T. No. 1040 of 2004 and in turn learned sessions judge transmitted the same to the court of Additional Sessions Judge Court No.6 Muzaffar Nagar for trial.
11. Learned trial judge framed charges against the accused appellant Kaushalya and her husband Narendra (since deceased) under Sections 302/328 IPC. The accused persons abjured the charges and claimed to be tried. Thus, the trial commenced against the accused persons.
12. To bring home the charges, the prosecution examined as many as seven witnesses in ocular evidence as under:-
Sl. No. Name of witnesses PW No. Remarks i ii iii iv
1.
Prem P.W.-1 Informant
2. Krishan Pal P.W.-2 Public witness
3. Parvindra Sharma P.W.-3 Public Witness
4. Dr. Narendra K. Tyagi P.W.-4 Doctor
5. Dr. Yogendra Tirkha P.W.-5 Doctor P.M.R.
6. H.C. Harendra P.W.-6 Formal witness
7. D. N. Verma P.W.-7 SHO / I.O.
13. In order to further substantiate the charges, leveled against the appellant, prosecution has also adduced following documentary evidence as under :-
Sl. No. Particulars PW No. Remarks (A) (B) (C) (D)
1.
Tehrir Ext. Ka-1 P.W.-1
2. Report Ext. Ka-2 P.W.-1
3. P.M Report Shivam Ext. Ka-3 P.W.-5
4. P.M. Report Annu Ext. Ka-4 P.W.-5
5. P.M. Report Satyam Ext. Ka-5 P.W.-5
6. Chik FIR Ext. Ka-6 P.W.-6
7. Inquest report Shivam Ext. Ka-7 P.W.-7
8. Photolash, Shivam Ext. Ka-8 P.W.-7
9. Letter to CMO, Shivam Ext. Ka-9 P.W.-7
10. Letter to RI, Shivam Ext. Ka-10 P.W.-7
11. Challan Lash Shivam Ext. Ka-11 P.W.-7
12. Inquest report Annu Ext. Ka-12 P.W.-7
13. Photolash, Annu Ext. Ka-13 P.W.-7
14. Letter to CMO, Annu Ext. Ka-14 P.W.-7
15. Letter to RI, Annu Ext. Ka-15 P.W.-7
16. Challan Lash Annu Ext. Ka-16 P.W.-7
17. Inquest report Satyam Ext. Ka-17 P.W.-7
18. Photolash, Satyam Ext. Ka-18 P.W.-7
19. Letter to CMO, Satyam Ext. Ka-19 P.W.-7
20. Letter to RI, Satyam Ext. Ka-20 P.W.-7
21. Challan Lash Satyam Ext. Ka-21 P.W.-7
22. Recovery Memo of News paper Wrapped ilaichi dana Ext. Ka-22 P.W.-7
23. Site Plan Ext. Ka-23 P.W.-7
24. Recovery Memo of part of News paper from residence Ext. Ka-24 P.W.-7
25. Charge Sheet Ext.Ka.-25 P.W.-7
26. F.S.L. Report Ext. Ka-26 P.W.-
14. On conclusion of the prosecution evidence accused/ appellant Smt. Kaushalya is confronted with evidence on record against her, to explain defence version. Her statement under Section 313 Cr.P.C. was recorded on 27.06.2005, in question-answer form as follows:-
प्रश्न संख्या- 1- अभियोजन साक्ष्य में आया है कि प्रमोद कुमार अपने तीन बच्चों सत्यम आयु 4 वर्ष, शिवम आयु 8 वर्ष, कुमारी अन्नू आयु 11 वर्ष, को दिनांक 27.06.2004 को, सुबह के 07:30 बजे, बुग्गी में लेकर खेत पर काम करने गया था इस वारे में आपको क्या कहना है?
उत्तर- पता नहीं।
प्रश्न संख्या- 2- अभियोजन साक्ष्य में आया है कि खेत से बच्चों को पिता प्रमोद ने तीनो बच्चों को गांव में हरिजनो के मंदिर के पास सरकारी नल से डिब्बे में पानी लेने भेज दिया बच्चे पानी लेने चले गये थे। इस वारे में आपको क्या कहना है?
उत्तर- ग़लत है।
प्रश्न संख्या- 3- अभियोजन साक्ष्य में आया है कि जब तीनो बच्चे डिब्बे में पानी भरकर चले और चकरोड के सामने समय करीब 9.30 बजे आये तो आप व अभियुक्त नरेन्द्र ने बच्चो को प्रसाद के रूप में इलायची दाना अखबार के टुकड़ों में रखकर खाने के लिए दे दिया था। उस समय गवाहान कृष्णपाल व प्रवीन अपने खेतो की ओर जा रहे थे, जिन्होने आपको बच्चो को प्रसाद देते देखा है। इस बारे में आपको क्या कहना है?
उत्तर- गलत है।
प्रश्न संख्या- 4- अभियोजन साक्ष्य में आया है कि जब तीनो बच्चो ने प्रसाद इलायची दाना खाया तो वे खेत पर जाकर बेहोश हो गये। इसकी सूचना बच्चो के पिता प्रमोद ने गांव में अपने भाइयों को दी। तीनो बच्चो को लेकर इलाज के लिए कस्बा खतौली के डाक्टर नरेन्द्र कुमार के नर्सिंग होम पर ले गये जहाँ पर तीनों बच्चो को मृत घोषित कर दिया। इस बारे में आपको क्या कहना है?
उत्तर- गलत है।
प्रश्न संख्या- 5- अभियोजन साक्ष्य में आया है कि इस घटना मे आप वा व अभियुक्त नरेन्द्र व द्वारा बच्चो को इलायची दाना प्रसाद देने की जानकारी प्रेम को गवाहान कृष्णपाल व प्रवीण के बताने पर हुई। आप अभियुक्त नरेन्द्र व श्रीमति कौशल्या ने जहरीला प्रसाद इलायची दाना तीनो बच्चो को देकर उनकी हत्या कर दी। इस बारे में आपको क्या कहना है?
उत्तर- गलत है।
प्रश्न संख्या- 6- अभियोजन साक्ष्य में आया है कि आपके खिलाफ वादी प्रेम ने लिखित तहरीर राकेश कुमार शर्मा से लिखवाकर थाना रतनपुरी में दिनांक 28.6.2004 को दी वह रिपोर्ट प्रदर्श क-2 है। इस बारे में आपको क्या कहना है?
उत्तर- झूठी रिपोर्ट लिखाई।
प्रश्न संख्या- 7- अभियोजन साक्ष्य में आया है कि वादी प्रेम की लिखित तहरीर के आधार पर पी०डब्लू-5 एच०सी० हरेन्द्र सिंह ने चिक रिपोर्ट तैयार की जो प्रदर्श क-6 है जिसका खुलासा थाने की जी०डी० में किया, जी०डी० दिनांक 28.6.2004 प्रदर्श क-7 है। इस बारे में आपको क्या कहना है?
उत्तर- फर्जी कागजात तैयार किए।
प्रश्न संख्या- 8- अभियोजन साक्ष्य में आया है कि पी०डब्लू०-4 डा० नरेन्द्र कुमार त्यागी ने तीनो बच्चो को अपने नर्सिंगहोम मे देखा और अपने ओ०पी०डी० रजिस्टर मे बच्चों के नाम दर्ज किये और एक बच्चे अन्नु का इलाज किया और उन्हे मृत घोषित किया। उनका ओ०पी०डी० रजिस्टर प्रदर्श क-2/1 है। इस बारे में आपको क्या कहना है?
उत्तर- पता नही प्रश्न संख्या- 9- अभियोजन साक्ष्य में आया है कि प्रमोद कुमार की दिनांक 27.6.2004 को पुलिस को दी गयी। सूचना पर उपनिरीक्षक मुन्शीलाल ने थानाध्यक्ष पी०डब्लू०-7 डी०एन० वर्मा के निर्देशन मे मृतक तीनों बच्चो शिवम, कुमारी अन्नु, सत्यम के शव का पंचायतनामा उनसे सम्बन्धित कागजात तैयार किये तीनो शवो को सील मोहर सर्वे मोहर करके पोस्टमार्टम कराने के लिए सिपाहियो के सुपुर्द किया। शिवम का पंचायतनामा प्रदर्श क-7, फोटो लाश प्रदर्श क-8, चिट्ठी सी०एम०ओ० प्रदर्श क-9, चिट्ठी आर०आई० प्रदर्श क-10 चालान लाश प्रदर्श क-11 है। कुमारी अनु का पंचायतनामा प्रदर्श क-12 फोटो लाश प्रदर्श क-13, चिट्ठी सी०एम०ओ० प्रदर्श क-14, चिट्ठी आर०आई० प्रदर्श क-15, चालान लाश प्रदर्श क-16 है। सत्यम का पंचायतनामा प्रदर्श क-17, फोटो लाश प्रदर्श क-18, चिट्ठी सी०एम०ओ० प्रदर्श क-19, चिट्ठी आर०आई० प्रदर्श क-20, चालान लाश प्रदर्श क-21 इस बारे में आपको क्या कहना है?
उत्तर- कागजात थाने पर तैयार किया।
प्रश्न संख्या- 10- अभियोजन साक्ष्य में आया है कि मृतक शिवम, अनु व सत्यम के शवो का पोस्ट मार्टम पी०डब्लू-5 डा० योगेन्द्र तिरखा ने किया और पोस्ट मार्टम रिपोर्ट तैयार की। शिवम की पोस्टम मार्टम रिपोर्ट प्रदर्श क-3 है। कुमारी अन्नु की पोस्ट मार्टम रिपोर्ट प्रदर्श क-4 है। सत्यम की पोस्ट मार्टम रिपोर्ट प्रदर्श क-5 है। मृत्यु का कारण जानने के लिए तीनो का अलग-अलग विसरा जग मे लेकर सील मोहर सर्वे मोहर किया जिसको विधि विज्ञान प्रयोगशाला आगरा में जाँच के लिए भेजा गया। इस बारे में आपको क्या कहना है?
उत्तर- पता नही प्रश्न संख्या- 11- अभियोजन साक्ष्य में आया है कि पी०डब्लू०-7 थानाध्यक्ष डी०एन० वर्मा ने इस केस की विवेचना की। घटना स्थल खेत प्रमोद से एक अखबार का टुकड़ा जिसमें इलायची दाना लगा था। इलायची दाना को सील मोहर करके रसायनिक परीक्षण के लिए विधि विज्ञान प्रयोगशाला आगरा भेजा गया अखबार का टुकड़ा जिसमें प्रसाद रखा था। उसको कब्जे पुलिस में लिया। अखबार का टुकड़ा वस्तु प्रदर्श-1 है। उसकी फर्द मौके पर तैयार की। फर्द प्रदर्श क-22 है। इस बारे में आपको क्या कहना है?
उत्तर- फर्जी कार्यवाही की।
प्रश्न संख्या- 12- अभियोजन साक्ष्य में आया है कि अभियुक्त नरेन्द्र व कौशल्या को पी०डब्लू-7 थानाध्यक्ष डी०एन० वर्मा ने गिरफ्तार किया आपने जिस अखबार मे तीनो बच्चो को जहरीला प्रसाद दिया था। उसका शेष भाग अपने घर से बरामद कराया। उसकी फर्द मौके पर तैयार की। फर्द प्रदर्श क-24 है। अखबार का शेष भाग वस्तु प्रदर्श-2, पोलिथीन व वस्तु प्रदर्श-3 है। इस बारे में आपको क्या कहना है?
उत्तर- गलत है।
प्रश्न संख्या- 13- अभियोजन साक्ष्य में आया है कि पी०डब्लू०-7 विवेचनाधिकारी डी०एन० वर्मा ने घटनास्थल जहाँ पर तीनों बच्चो को आपने जहरीला प्रसाद खाने को दिया था उसका स्थल निरीक्षण करने के बाद स्थल चित्र तैयार किया जो प्रदर्श क-23 है और विवेचना पूर्ण करने के बाद अभियुक्तगण के विरुद्ध आरोप पत्र प्रदर्श क-25 न्यायालय में प्रस्तुत किया। इस बारे में आपको क्या कहना है?
उत्तर- गलत है।
प्रश्न संख्या- 14- अभियोजन साक्ष्य में आया है की मृतको का विसरा विधि विज्ञान प्रयोग शाला आगरा मे भेजा गया और अखबार में मिला इलायची दाना जो बच्चो ने खाया था। उसका शेष बचा हुआ इलायची दाना विधि विज्ञान प्रयोग शाला आगरा भेजा गया। संयुक्त निदेशक विधि विज्ञान प्रयोगशाला आगरा की रिपोर्ट प्रदर्श क-26 है। इस बारे में आपको क्या कहना है?
उत्तर- रिपोर्ट गलत है।
प्रश्न संख्या- 15- अभियोजन साक्षीगण अ०सा०-1 प्रेम, अ०सा०-2 कृष्णपाल, अ०सा०-3 प्रवीण अ०सा०-4 डा० नरेन्द्र कुमार त्यागी, अ०सा०-5 डा० योगेन्द्र तिरखा अ०सा०-6 एच०सी० हरेन्द्र सिंह, अ०सा०-7 उपनिरीक्षक डी०एन० वर्मा आपके विरुद्ध साक्ष्य क्यों देते है?
उत्तर- प्रेम पाल, कृष्णपाल, प्रवीन रंजिश से गवाही देते है।
प्रश्न संख्या- 16- आपके ख़िलाफ मुकदमा क्यों चला ?
उत्तर- रंजिशन।
प्रश्न संख्या- 17- क्या कुछ और कहना है ?
उत्तर- कोई प्रसाद नहीं दिया है।
15. The accused/appellant has examined DW-1 Abdul Haq, in ocular defence evidence.
16. The learned trial court, after examining the entire material on record, scrutinizing testimonies of the prosecution witnesses and also evaluating the oral and documentary evidence, came to the conclusion that there is a complete chain of evidence showing the complicity of the accused appellant in the commission of said crime and the prosecution has proved its case beyond reasonable doubts, pointing the guilt against the accused person including, appellant, Smt. Kaushalya under Sections 302 and 328 I.P.C, and sentenced her as stated herein above. Felt aggrieved, the appellant preferred the present criminal appeal.
17. We have heard Sri Arvind Kumar Mishra as well as Giridhar Prasad Tripathi, learned counsel appearing on behalf of appellant and Sri Onkar Singh and Sri Arun Kumar Pandey, learned counsels appearing on behalf of complainant, and learned AGA representing the State, in extenso and taken through entire record.
18. Learned counsel for the appellant assailed the impugned judgment of conviction and sentence on various grounds and advanced several arguments in this respect. He submitted that accused/ appellant has been falsely roped in the case. I.O. has involved him in the instant case on basis of presumptions. The impugned judgment and order of the learned trial court is against the facts, law and weight of evidence on record. Learned trial court completely misread, misappreciated and miscrutinized the evidence on record and had sentenced appellant too severely.
19. Learned counsel for the appellant further argued that the appellant is a lady and is languishing in jail merely on the dint of suspicion. There on material inconsistencies and discrepancies in the prosecution version. There are blatant and glaring contradiction between the statement and witnesses of the prosecution had made improvements in their deposition and had narrated the manner of incident in such a way which cannot be perceived by ordinary course of diligence and prudence. There is material inconsistency in the postmortem reports. The investigation was also done in a pedantic and lackadaisical manner with the oblique motive of implicating the appellant on the undue pressure of witnesses of fact. The recovery of incriminating articles on the pointing of accused appellant is also highly untrustworthy and dubious. There is no material from the side of the prosecution to evince that the accused appellant had harbored any vengeance against the complainant Pramod as a consequence of which she had given poisonous devotional offerings, mixed with aluminum phosphide to his three children. The witnesses of fact are kith and kin of complainant and have supported the prosecution case fabricating a false story. The presence of the prosecution witnesses at the place of occurrence was highly doubtful and do not really commend any acceptance for their testimony. Tangible materials were elicited from the evidence of the prosecution witnesses in cross examination by which their testimony is not found to be trustworthy. The chain of evidence and circumstances is also not complete, so as to conclusively establish that the accused/appellant is the actual perpetrator of dreadful crime. Some unknown miscreants who were nurturing animus and grudge against him, succeeded in their venomous and filthy design of eliminating his children by offering cardamom mixed with aluminum phosphide. The accused/appellant had no animus against the complainant and his children, whereby she had taken drastic step of offering cardamom with aluminum phosphide to them . The prosecution could also not prove any motive against the accused/appellant which actuated her to take such a drastic step of ruining her own life. In a gruesome cases where witnesses of fact are expected to give an account of true version, there is always probability of tutoring them because of influence of interested and partisan persons. There is no independent and impartial witness to support the prosecution version. The prosecution has failed to show that in all human probability, the act must have been done by the accused appellant. The conviction and sentence awarded to the accused/appellant under Sections 302/328 IPC is not sustainable and the impugned order dated 05.09.2005 may be set aside and the accused appellant may be set at liberty. It is also to be noted that the chain of facts and circumstances pointing towards the guilt of the accused appellant is not complete. The defence witness had given his statement in a very fair and impartial manner on the basis of which the entire prosecution story rests. The prosecution has failed to prove the guilt beyond reasonable doubt.
20. Per contra, learned AGA has opposed the contention raised by the learned counsel for the appellant contending that there is no embellishment in the prosecution version. The children died on account of devouring the devotional offerings (Prasad) mixed with aluminium phosphide. The prosecution witness has narrated entire incident in a very intrinsic and natural way. It is a case of homicidal death. The incident has taken place in broad day light at the public place in the presence of the witnesses, who supported the prosecution version in examination-in-chief as well as cross examination. There is a chain of evidence to demonstrate that deceased children were supplied cardamom mixed with aluminum phosphide, as a result of which, they fainted and ultimately succumbed to their injuries. The supplying of cardamom mixed with aluminum phosphide is sufficient to demonstrate that the accused-appellant had already nurtured animus and grudge to eleminate the victims. The accused-appellant was taken into custody and confessed to her guilt. The incriminating materials were recovered on her pointing out. In case, there is any variation or omission in the examination will not dismantle the entire prosecution version and will absolve the accused appellant from the guilt. The non-examination of any witness, who was illustrated in the list of charge-sheet will also not destroy the prosecution version in entirety.
21. In order to prove their case, parties have adduced the evidence. Let us examine, analyse and scrutinize the contentions, advanced by the learned counsel for the appellant and learned A.G.A, on anvil of the evidence adduced by them, the undisputed facts and circumstances and entire material on record. This opens door for us to enter into the prosecution evidence on record.
22. The prosecution has examined P.W.-1 Prem s/o Rajaram, who has deposed that present incident had occurred on 27.06.2004, He was present at his house. His younger brother Pramod in the company of his three children namely Annu aged about 11 years, Shivam aged about 8 years and Satyam aged about 4 years, had gone in a Buggi at his field at about 7.30 a.m. Pramod had sent his children to fetch water from the hand-pump located near the temple of Harijans. When they were returning towards the field, taking water in a container and appeared on the chakroad in front of road, Narendra (now deceased) and his wife Kaushalya (present appellant) gave cardamom to those children in a pieces of newspaper. Krishan Pal and Parveen alias Pravindra, hailing to the same village, were going towards their field had witnessed the process of handing over of devotional offer to those children. After devouring the devotional offering, those children had fallen fainted and withered. On information, the complainant, his brother Pramod and younger brother Ram Niwas, as well as, his son Sunil arranged to carry and admit those children in the nursing home of Dr. Narendra Kumar Tyagi, located at Khatauli. All the three children namely Annu aged about 11 years, Shivam aged about 8 years and Satyam aged about 4 years were declared dead by the doctor. Subsequent thereto, those children were brought at home. On 28.06.2004, when children were taken to bury, then Kishan Pal and Parveen disclosed that Narendra and Kaushalya had supplied cardamom to those children before him. On 28.06.2004 he had given information to the Police Station Ratanpuri through a written tehrir, scribed by Rakesh Kumar Sharma and duly signed by him, with respect to that incident. The said written report was duly marked as Ext. Ka-1. He had given application before the District Magistrate concerned on 27.04.2004 for autopsy deceased children because the doctors of the hospital were not conducting the post mortem. He had also proved the application exhibited as Ka-6/1. During the course of cross examination of PW- 1 this fact surfaced that Raj Pal and Kishan Pal s/o Sheo Raj were hailing from the same lineage and were witness of that incident. Praveen alias Pravindra s/o Daulat Ram was also hailing to the same pedigree and was also witness of the incident. The brother of Praveen was Om Prakash and the son of Om Prakash was Aadesh. He was also a witness of the incident. The complainant and Pramod were living in the same house. The house of Kishan Pal was located at a distance of 60 yards. The field where Pramod was working was in his possession. There was a demarcation line between the field of Praveen and Pramod. The field of Kishan Pal was located in the south east of the field of Pramod. The field of Shriniwas was located towards west. There was a distance of about 180 yards from the field of Pramod towards south path of temple. The house of the culprit was situated at a distance of 200 yards from temple. There were 8-9 houses in between. There was no school in the vicinity of offenders. He was informed by the children about the incident. At the place of occurrence, Pramod, Ram Niwas Sunil and a number of persons of the locality were present. Unconscious children were lying on the chakroad running towards the field of Pramod. Those children who were taken to Khatauli in unconscious condition were brought back at about 11.45 a.m. in dead condition. Pramod, Ram Niwas and Sunil had gone at the hospital in a motor cycle. The full particular of the complainant was noted by the doctor. Two children were declared brought dead. One child who was in an unconscious condition was being treated and during treatment he died. Pramod had gone at the police station from Khatauli. Aadesh Kumar had also gone to Khatauli. Pramod had comeback to village in between 15-20 minutes after arrival of complainant. It was about 12.15 (noon) and the police personnel had also come with Pramod. He had not seen Praveen and Kishan Pal at the place of occurrence. When the corpse of children was brought from Khatauli, he did not see them. There was a gathering on the arrival of police personnel. The police personnel stayed in the village about 3'1/2 to 4 hours. In the meantime, he did not see Praveen and Krishna Pal. He could not recollect as to whether any person from the family of Praveen was present there. The daughter in law of Krishna Pal was present. Rajpal, Tejpal, daughter in law and his son were present there. The complainant and Pramod had accompanied to the police personnel who were carrying the corpse of those children. Praveen and Kishan Pal came across to the complainant on the next day at about 4 to 5 'O'clock, when the corpse of those children were to be buried. After autopsy the corpse of those children came in the village at about 1'1/2 to 2 'O'clock. Praveen and Kishan Pal and other people of village did not come at the night. There was distance of 14 to 15 house from the house of Praveen and 6-7 house from the house of Kishan Pal. Kishan Pal and Praveen did not come across to him on 27.06.2004. After burying the corpse of those children, the report was got written by Rakesh. Praveen and Kishan Pal were not present at the moment of getting the report lodged. The message was sent to relatives on telephone and Rakesh had come on the same night. Rajpal and Attar Singh had gone at the police station with the complainant. The house of the offenders was situated at a distance of 200 to 250 yards. This fact was not incorporated in the first information report that Kaushalya and her husband were playing the skill of black magic (Tantrik). This fact was divulged by him in his statement. The house of Sripat was located at a distance of 50-60 yard. The house of Sivani s/o Preetam was situated at a distance of 300 yards. Srikrishna and Siwani were also playing the skill of hocus pocus but they were not distributing the devotional offering. The complainant or his relative never approached the miscreants for the purpose of black magic. Narendra had got a case registered against complainant and Krishna Pal with respect to mar peet in which he was sent to jail and was released on bail. The said incident had occurred prior to 6-7 years. There has not been any property dispute between complainant and Narendra. He was not aware with respect to any legal proceeding between Deep Chand and Praveen. The police personnel arrived at the village in a span of 1-2 hours after registration of report. The team of police remained in the village at about 10-11 hours. The police personnel had gone at the place of occurrence. The police personnel came back at his house from the place of occurrence. The police personnel remained present at the field about 5 to 7 minutes. The devotional offering was not distributed to the village folk by the person who were getting the black magic done. He supported the prosecution version and the defence could not derive anything to belie the prosecution case. He narrated the prosecution story in a most natural way. He denied that he had lodged the first information report against them on account of grudge and animus. The narration of facts with respect to happening of said incident perpetrated by the accused leaves no shadow of doubt to suspect their conduct.
23. In authentication of its stand, the prosecution has examined P.W.-2 Krishna Pal who has averred that he was well familiar with the accused Narendra and his wife Kaushalya. They are resident of same village. He was also well conversant with Satyam aged about 4 years, Shivam aged about 8 years and Km. Annu aged about 11 years, offspring of Pramod. The progeny of Pramod namely Satyam, Shivam and Km. Annu died of about 1'1/2 years back. On the fateful day of occurrence, the P.W.2 Krishnapal and Praveen hailing to the same village were going towards their field. It was about 9.30 a.m. when the aforesaid children reached in the proximity of Chak road, P.W.2 Krishna Pal and Praveen were also going towards that chakroad. Narendra (accused) tore a piece of paper and supplied to Kaushalya (now appellant). In the piece of newspaper, cardamom was placed. The said children began to devour the cardamom before them. The children proceeded towards their field and P.W.2 Krishna Pal and Praveen proceeded towards their fields. P.W.2 Krishna Pal came back from his field at the evening, it was informed by his wife that three children of Pramod had expired. The last rites of the children was held next day morning.
24. It was divulged by P.W.2 Krishna Pal to Prem at the crematory ground that the accused had supplied devotional offering (Prasad) to those children. He had given the description of the adjoining area. There is a chakroad towards east abutting the field of Pramod. The field of Praveen is located towards east of chakroad. The field of P.W.2 Krishna Pal was not located towards south of the field of Pramod. The field of Ram Niwas and Vinod was located. The field of P.W.2 Krishna Pal was located towards east-south. The sugarcane crop was standing in the field of Praven at that point of time. The tubewell was installed in the direction of north-west of the field of Pramod. The tubewell was standing towards the corner of field and Chakroad. The field of Sriniwas was located towards west of Pramod. Sriniwas did not have any other field except that one. P.W.2 Krishna Pal had about 75 Bigha land and Praveen had about 20-22 bigha land adjoining to each other towards south. Pramod had about 8-9 Bigha land. P.W.2 Krishna Pal did not have any information what Pramod was doing in his field. In the field of Pramod, the crop of sugarcane was existing and the height of sugarcane was upto knee. P.W.2 Krishna Pal had seen Pramod. Pramod was working with shovel in his field. P.W.2 Krishna Pal was looking after his bottle gourd (Lauki). P.W.2 Krishna Pal was not aware with respect to functioning of Praveen. He could not see Pramod and Praveen from his field. His house was situated at a distance of 5-6 house. The house of Rajpal and Tejpal was situated in the vicinity of his house. P.W.2 Krishna Pal remained present at night in his house. During cross-examination, it has come in light that accused Narendra had lodged a report against P.W.2 Krishna Pal, Tejpal, Sudhir, Rajpal and Prem in the year 1999 with respect to marpit. In that case, P.W.2 Krishna Pal was released on bail. He has proved his presence in his field at the crucial moment of incident. He supported the prosecution case and has unfolded the incident without any embellishment.
25. In corroboration of occurrence, the prosecution has also examined P.W.-3 Parvindra Sharma who has averred that he was well conversant with accused Narendra and his wife Kaushalya. On 27.06.2004 he along with Kishan Pal was going towards their fields at about 9.30 a.m. Annu aged about 11 years, Shivam aged about 8 years and Satyam aged about 4 years, the children of Pramod, were going towards their field taking water in a container. Narendra and Kaushalya were behind the children. Narendra, taking out from his pocket, gave cardamom in wrapper to his wife Kaushalya and piece of news paper Kaushalya had given the said cardamom to those children, who devoured the same and proceeded towards their field in front of these P.W.3 Parvindra Sharma and Kishan Pal proceeded towards their field. He returned from his field in the evening. His wife informed him that three children of Pramod had expired. P.W.3 Parvindra Sharma immediately went at the house of Pramod. There was none at his house. The ladies were lamenting and bewailing. He told the fact supplying cardamom to those children after their last cremation, to Prem at about 6-6:30 a.m. Narendra and his wife were playing black magic. In his cross-examination, the witness stated that those children had met him at the turning point of chakroad leading to road. He is at a distance of 200 metres. He had gone to remove the shrubs from his field. Pramod was present and was doing some work in his field at a distance of 60 paces from Tubewell. The tubewell of Pramod was located at a distance of few paces from chakroad. There was a chakroad in between his field and field of Pramod. The field of Kishan Pal was also located towards south to his field. The field of Vinod and Ram Niwas was located towards south to the field of Pramod. This fact was brought in the notice of Station Officer concerned that Narendra was playing black magic and in case Station Officer concened did not mention it in his statement, he could not be held responsible for it. He made his best to prove the prosecution case and the defence could not elicit anything to belie it. The defence had not been able to cull out any aberration or deviation in the prosecution to create any suspicion about its genesis rather P.W.3 had fully proved his presence on the fateful day of occurrence and divulged the shape of incident in a very intrinsic and natural manner.
26. In corroboration of the prosecution case P.W.-4 Dr. Narendra Kumar Tyagi was examined, who has deposed that he had set up a Nursing Home in Kasba-Khtauli, which has got its popularity in the name and style of Tyagi Nursing Home. On 27.06.2004 at about 10:45 a.m. Ram Niwas had brought three children namely Annu aged about 11 years, Shivam aged about 9 years and Satyam aged about 3 years, for treatment in his Nursing Home. Ram Niwas stated that he is Tau of the children. He examined those three children. Shivam and Satyam had expired prior to their admission in his nursing home. Km. Annu was struggling with life. He statrted treating Annu by drip injection hydrocortison 100 ml and injection Periset. After lapse of about 5 minutes, she succumbed to cardiac arrest. The doctor opined that all the three children died of devouring poisonous stuff. P.W.4 Dr. Narendra Kumar Tyagi had presented relevant OPD Register in which at the serial numbers 2457 name of Shivam, at 2458 Satyam and 2459 name of Annu respectively was mentioned. He proved that this material was exhibited as Ex. Ka-2/1. It was also proved that those children were brought by Ram Niwas. The children were drenched in excreta and urine. He proved the OPD Register and after tallying from original represented photo copy registered and proved it Ext. Ka-2/1. There was clear mention with respect to admission of Shivam, Satyam and Annu in Tyagi Nursing Home in the OPD register. Defence could not draw any benefit to create suspicion in prosecution story.
27. The prosecution has examined PW- 5 Dr. Yogendra Tirkha, who conducted autopsy of the deceased children. He has stated that he was posted as Physician in District Hospital Muzaffar Nagar on 27.06.2004. On that fateful day, in compliance of the directions of District Magistrate Kritrim Prakash and Chief Medical Superintendent, District Hospital, Muzaffar Nagar, he had conducted autopsy of the deceased children as under:-
(I)- Post-mortem of deceased Shivam:- aged about 8 years. The body was brought by Constable 4165 Ram Veer and Constable 73 Chatarpal in a sealed cover and the same was identified by them. He conducted autopsy of Shivam on 27.06.2004 at about 10.00 p.m. The death of that child had occurred half day before autopsy. The child was average built. There was rigor mortis all round the body. The lip, tongue and nail were of blue colour. There was no external injury on the person of that child. In the internal examination membranes of brain was congested. Both lungs were congested. The membranes of stomach was congested. There was semi-digested food. Cause of death could not be ascertained. Hence, the Viscera was preserved. The viscera was sealed in two containers and was given to the constables.
(II) Post mortem of deady body of Km. Annu:- Deceased was aged about 11 years. The corpse of Annu was brought by the same police personnels. The corpse was duly identified by them. He conducted autopsy on 27.06.2004 at about 10:30 p.m. The death had occurred about half day before the autopsy. The girl was of average built. There was rigor mortis all over the body. Lips, tongue and nail were of blue color. There was no visible injury on external examination of the corpse. In the internal examination, congestion was found in the membranes of brain, both lungs, stomach and spleen. Semi-digested food of black colour was found in the stomach. Uterus was not gravid. The cause of death could not be ascertained. Hence, Viscera was preserved. It was sealed in two containers and was given to the police personnels.
(III)- The autopsy of Satyam, aged about 4 years, was done at about 11:00 p.m. The corpse of Satyam was conducted on 27.06.2004 at 11.00 p.m. brought by the same police personnel. The corpse was duly identified by them. The death had occurred about half day before the autopsy. The boy was of average built. There was rigor mortis all over the body. The lip, tongue and nail were of blue colour. There was no injury on external examination. In the internal examination, congestion was found in the membranes of brain, both lungs, membranes of stomach, and spleen. There was semi-digested food of black colour in the stomach. The cause of death could not be ascertained, viscera was preserved. The viscera was sealed in two container and was given to the constables, who brought the dead bodies.
(IV)- All the three deceased met with their death because of taking some poisonous substance. Their death is possible on 27.06.2004 at about 9-10 a.m. The post-mortem reports of those dead children were prepared by Doctor PW-5 Dr. Yogendra Tirkha in his own hand-writing and signature. Doctor has proved the autopsy report of of the three deceased as Ext. Ka-3, Ka-4 and Ka-5 respectively. In his cross-examination DW- 5 Dr. Tirkha has opined that the cause of death could not be ascertained, so viscera was present. Aluminum sulphide is a substance of expunjent. He cannot say that after taking aluminum phosphide expunjent smell originate because such smell also comes after taking other kind of poisonous substance. He do not remember that any expunjent smell was found or not from the dead bodies. He has not observed any remark about omitting and dysentery which is soaked in his cloth. Generally, such remarks are made on demand of the police. After two to three hours of consuming aluminum phosphide, the body of the person taking it, starts swelling.
Some gas is formed that the body starts bursting at various places after some time. It could be affirmed only by forensic experts.
28. The prosecution, has examined P.W.6 H.C.-169 Harendra, in order to substantiate the prosecution version. He stated that on 28.6.2004, he was posted at Police Station Ratanpuri, District Muzaffar Nagar. On that day, he had prepared the Chik FIR vide Case Crime No. 81 of 2004 in his hand-writing and signature. He proved chik FIR as Ext. Ka- 6. He drew kaimi G.D. No.12 at 8:00 a.m. on 28.06.2004 and simultaneously, prepared its carbon copy in the same process of original in his own writing and signature. A written information (tehrir) was given at the police station concerned with respect to said occurrence of 27.06.2004. The station officer D.N. Verma proceeded at the place of occurrence. D.N. Verma, Station Officer did not come back on 27.06.2004. The other constables namely Munshi Lal Sub-inspector, H.C.P. Yashpal Singh, C-217 Ashok, C-659 Saifuddin, C-754 Arun Kumar, C-73 Chatar Pal, C-165 Ramveer also did not come back at the Police Station on 27.06.2004. The Station Officer D.N. Verma came back at the Police Station on 28.06.2004 at about 6:20 a.m. alongwith all constables except two, who carried the corpse of those children. On returning at the Police Station, D.N. Verma, Station Officer, had produced one sealed bundle, one newspaper dated 13th June and the inquest report. These articles were deposited at the Malkhana. Station Officer D.N. Verma again departed at 8:00 a.m. on the same day. He came back at 6:30 p.m. No other case was registered at the Police Station concerned barring to the present one. Pramod had named three persons, namely, Kishan, Narendra and Simakshi with respect to distribution of devotional offerings Prasad. This fact was incorporated in the report that his children had succumbed to death on account of devouring cardamom. The defence could not draw any material suspicion in the cross examination of P.W.6 Harendra. He had presented vivid description with respect to the manner of incident and proved the same.
29. To bring home the charges leveled against the accused, the prosecution examined P.W.7 D.N. Verma, Station House Officer, He has disclosed that he was posted as Station House Officer Ratanpuri on 27.06.2004. He had entered in G.D. the narration of case on the basis of written information furnished. On the said information, he reached at the place of occurrence, where the dead body of children were lying. He visited the house of Pramod Kumar in the company of S.I. Munshi Lal, H.C.P. Yash Pal Rana, Constable Ramveer, Constable Ashok Kumar and constable Chatarpal. The inquest report of dead children was prepared on his direction. He proved the signature and writing of S.I. Munshi Lal, who was posted with him at Police Station Ratanpuri. He described the process of preparing the inquest report and sending the dead bodies of children to mortuary for autopsy. He proved the recovery of cardamom and the piece of news paper, in which, devotional offering was given to the deceased children. P.W.7 D.N. Verma had described the entire thing in a very natural and fair manner. Nothing was left to be proved by him which would have created a suspicion in the manner of incident and process of proving the recovery of cardamom and the piece of newspaper in which few cardamom was stuck. All the materials were duly exhibited.
30. Subsequent thereto, on 28.06.2004, Prem had given a written information (tehrir) Ext Ka-1 at the Police Station concerned, on the basis of which, a Case Crime No. 81 of 2004, under Sections 302/328 IPC was registered against Narendra (since deceased) and Smt. Kaushalya.
31. During the course of investigation, on 28.06.2004 he had copied the written information in the case diary and noted down the statement of scribe of FIR. He noted in the case diary, the statement of first informant, inquest report with respect to Annu, Shivam and Satyam, recovery of devotional offering (cardamom) and the pieces of newspaper etc. The statement of the witnesses of inquest were also recorded. The statement of Krishna Pal, the witness of the incident was recorded. He prepared the site plan of chak raod, place of occurrence, on the pointing of witnesses and informant. The original site plan was duly verified and proved by him. The said document was marked as Ext. Ka-23. The accused persons were arrested on 28.06.2004 at the tip off of police sympathizer. Accused Narendra had confessed the offering of cardamom to three children. He also disclosed that from which newspaper, a piece was torn could be brought from the house. Thereafter, accused Smt. Kaushalya was interrogated she disclosed that poisonous devotional offering was given. The remnant of devotional offering was lying in her house which could be given. The police personnel went at the house of accused persons where Narendra and his wife, they recovered incriminating devotional offerings from the drawer of pretty deck in the presence of Dharmpal and Rajpal. The recovered incriminating articles and piece of newspaper were marked as Ext. Ka-24. The said materials were duly proved by him. Both accused persons were kept at the police station at 18:50 'O'clock. On 30.06.2004, constable Ramveer Singh was given incriminating materials collected from the place of occurrence with respect to the said incident in six containers inclusive of viscera pertaining to deceased Annu, Shivam and Satyam for chemical analysis. This material aspect was also entered in the Case Diary. On 04.07.2004, the statement of Smt. Poonam w/o Pramod Kumar and the witnesses of fact namely Suneel, Praveen was entered in the Case Diary. On 10.07.2004, the statement of Dr. Narendra Kumar Tyagi was recorded. After carrying out the investigation, the Investigating Officer submitted the charge-sheet against the accused appellant and Narendra. In the court of Learned CJM. The witness duly proved the charge sheet as Ext. Ka-25. Viscera preserved was sent to forensic laboratory Agra.
32. The viscera report of the forensic laboratory Agra with respect to absorption of aluminum phosphide in the cardamom as a devotional offering, was obtained and proved as Ext. Ka- 26.
33. In Viscera report following facts were found:-
Sl. No. Exhibits Particulars Sl. No. Exhibits Particulars 1 stomach 11 Spleen 2 आंत का टुकड़ा 12 परिरक्षी सूखा नमक 3 लीवर का टुकड़ा पित्ताशय सहित 13 stomach 4 एक किडनी 14 आंत का टुकड़ा 5 Spleen 15 लीवर का टुकड़ा पित्ताशय सहित 6 परिरक्षी सूखा नमक 16 एक किडनी 7 stomach 17 Spleen 8 आंत का टुकड़ा 18 परिरक्षी सूखा नमक 9 लीवर का टुकड़ा पित्ताशय सहित
19.
पैकेट में थोड़ा सा सफेद और भूरे रंग का पदार्थ जिसको प्रसाद इलायची दाना बताया गया है 10 एक किडनी
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परिणाम:- विसरा के भाग (1-5),(7-11), (13-17) व (19) में एल्युमिनियम फॉस्फाइड विष पाया गया है, किन्तु यह वस्तु (6), (12) व (18) में नहीं था| रसायनिक विधिया प्रयोग की गई| अन्य रसायनिक विष के प्रयोग नकारात्मक रहे, प्रयोग के समय समस्त सावधानिया ध्यान में रखी गई| Aluminum phosphide is a highly toxic stuff, which causes profound shock, myocarditis and multi-organ failure leading to death. The defence could not draw any material to belie the prosecution case, rather there has been consistent material in support of prosecution pointing towards the guilt of accused persons.
34. During the course of interrogation in the trial, opportunity was given to the appellant to put his defence and explanation in rebuttal of the charges leveled against her.
35. The defence had produced D.W.1 Abdul Haq, Assistant Record Keeper, Muzaffar Nagar. He had produced the daily activities register. Police Station Ratnapuri. According to Daily Activities Register, on 27.06.2004, Constable Dharmpal Singh was entrusted the work of surveillance of Police Station. The said constable was not sent anywhere on 27.06.2004. In Report No.16 at 18:05 hours, it is incorporated that Constable Dharmpal Singh was entrusted the work of serving summon to Ram Manohar, in Government Hospital, Muzaffar Nagar. That summon dated 30.06.2004 was issued from the A.D.J., Court No.1. Thereafter, there was no mention of any return of Constable Dharam Pal Singh on 27.06.2004. According to Daily Activities Register dated 28.06.2004, the return of Constable Dharmpal Singh was entered in Report No.11 at about 7:45 a.m. There was no mention in Daily Activities Register with regard to further departure of Constable Dharmpal Singh on 28.06.2004. According to Daily Activities Register dated 27.06.2004, in Report No.16 at about 12:05 'O'clock, there is mention of written information of Pramod Kumar. The said information was copied in G.D. There is also mention of departure of D.S. Verma, Station Officer in the said G.D., with police personnel, but there was no mention of return of D.S. Verma, Station Officer in the G.D. dated 27.06.2004. He did not lend support to G.D. dated 27.04.2004 and 28.04.2008. It was disclosed by him that G.D. was in the supervision of Surendra Kumar Sharma, Record Keeper, S.S.P. Office. In his absence, D.W.-1 Abdul Haq used to look after his work. There is cutting in G.D. Report No.22 at about 22:30 hours on 27.06.2004. D.W.-1 Abdul Haq could not mention the duty hour of Constable Dharmpal Singh on 27.06.2004. There was also overwriting in G.D. dated 27.06.2004 bearing Report No.6, site plan bearing Serial No.15. There was no signature on the cutting. D.W.-1 Abdul Haq could not disclose the name of person, who had put signature on G.D. dated 28.06.2004 bearing Report No.11 at about 7:45 hours. He disowned that he had given this statement in collusion with accused persons. There had been some aberration and deviation in the statement of defence witness Abdul Haq, who had created some suspicion with respect to verity and probity of prosecution story.
36. Learned counsel for the appellant has submitted that appellant has been falsely roped in the case, as complainant had grudge anguish and animosity against her. Learned A.G.A. refuted the contention of the appellant and submitted that there was no enmity of complainant against the appellant. In this behalf, it may be mentioned that it is axiomatic that enmity is a double edged weapon. On the one hand, it may be instrumental to rope the accused in a false case, at the same time it may be the real cause of the incident too. Therefore, benefit of the enmity may go to either of the parties, depending upon the facts and circumstances of each case. The moot point is whether at the time of incident there existed any enmity between complainant and the appellant.
37. PW-1 Prem has stated in his testimony that accused Narendra has lodged a criminal case against him and Krishna Pal regarding an incident of marpeet, 6-7 years ago in the year 1999 before the present incident. PW-2 Krishna Pal has corroborated the statement of PW-1. However, both the witnesses denied lodging of any FIR against the appellant-accused and testifying out of jealousy. PW-3 has stated that Narendra has never lodged any report against him. There is no land dispute between Narendra and him. However, a lis is pending between his Tau and Narendra, but he has no concerned with his Tau. Learned counsel for the appellant has tried to show that the appellant has been falsely implicated due to incident between the complainant and the appellant. The complained incident related to simple marpeet. The said incident is about 6-7 years old to the present incident. Even if, taken it to be true, the burden of proving this facts lies upon the appellant that she was roped due to that enmity, but appellant failed to discharge her burden in this behalf. It is common knowledge that in villages some disputes arise on trivial pretext amongst the rustic villagers. But they are solved due to lapse of time suo motu. In the present case, the said incident of small marpeet, has occurred 6-7 years prior to the present incident. Even FIR has not been lodged of that incident by either of the parties. Therefore, it could not be said to be of such a nature, which could be the reason to rope appellant falsely, leaving the real culprit. Therefore, the argument of learned counsel for the appellant pertaining to enmity is not tenable.
38. Learned counsel for the appellant has audaciously urged that there was no motive for the appellant to commit the aforesaid crime. The prosecution could also not prove any motive against the accused/appellant which actuated her to take such a drastic step of ruining her own life. In a gruesome cases where witnesses of fact are expected to give an account of true version, there is always probability of tutoring them because of influence of interested and partisan persons. Learned A.G.A. has refuted this argument of the learned counsel for the appellant. He went on arguing that accused-appellant had strong motive of eliminating to the children as she was well aware that aluminum phosphide is highly toxic inorganic compound and can cause irritation of the nose, mouth, throat and lungs leading to death of the consumer. The testimony of the witnesses is trust worthy and reliable. No explanation has been given by the accused appellant as to how and in what manner the victims died of devouring devotional offerings. The evidence led by the prosecution witnesses is consistent with the hypothesis of the guilt of the accused appellant. There is no other hypothesis except the guilt of the accused appellant. Mere conviction and sentence as well as incarceration of the accused/ appellant will not assuage or mitigate the severity and barbarity of offence wherein innocent children have died of in a grotesque and ruthless manner. The death of the minor children in such a planned manner shook the heart of the general folk. The appellant has failed to bring on record any material as to why she was implicated leaving to the actual culprit. It has also been argued by learned AGA that even in case there is no motive but prosecution case is proved by eye witness account of credible and reliable evidence, motive looses its importance. He relied upon Ramasheesh vs, Jagdish Singh 2005 A.I.A.R. 62 in support of his argument.
39. In view of the above submissions of learned counsels for the parties it may be mentioned that every criminal trial is a voyage of discovery in which nectar in the form of quest is churned and gleaned from the fathomless ocean. A duty is cast on the Presiding Officer to explore every avenue in order to discover the truth and advance the cause of justice.
(I) In present case incident has taken place in broad day light, in open place. PW- 2 Krishna Pal, PW- 3 Pravindra Sharma and PW- 7 D.N. Verma has proved the prosecution case by there cognate, credible and trustworthy evidence. In Ramasheesh (supra) and in a plethora of other cases Hon'ble Apex court has held that were prosecution case is proved by a eye witness upon of relible and credible evidence, motive looses its importance and occupies the backseat.
(II) Besides, PW- 1 Prem, PW- 2 Krishna Pal and PW- 3 Pravindra Sharma has clearly stated in their statement that accused/ appellant who hails from Brahman Community are engaged in black magic activities for personal gains. There are many other people in the village who are engaged in the same activities. Such people used to do these activities adopting tantra mantra (occult) techniques in favour of their clients. Appellant might have been actuated to commit the incident in order to do favour of some client or even for herself, for she knew the consequences of taking aluminum phosphide and there is clear evidence that supplying the poison in sugar coated cardamom to the innocent teen-aged children without showing any humanitarian attitude.
(III) Learned counsel for the appellant has contended that appellant is not engaged in necromancy activities and there is no reference in FIR of this fact and the same disclosed by the witnesses for the first time in their deposition in the Court. It is nothing but afterthout improvement in the prosecution version. Learned AGA opposed this contention. In this behalf it may be mentioned that it is well settled that FIR is not an encyclopedia, where in each and every minutes detail of incident be mentioned. In a case where three minor innocent children have died in a family, it is not expected that the complainant will think the things in technical manner or with a view to involved criminal litigation in a criminal court. All the three witnesses of facts have vividly deposed that appellant are engaged in occult activities. Although appellant in her statement under section 313 Cr.P.C has taken a defence that she has not distributed prasad. However, she has not adduced any evidence in corroboration of her statement. Distribution of such kind of devotional offering (prasad) to innocent victims might be a technique to impress upon their clients.
(IV) As it will be further discussed hereinafter that the prosecution has successfully proved by direct and credible evidence, its case, against the appellant. Hon'ble Apex court in a catena of decisions have observed that where in a criminal trial prosecution has established it case by direct and credible evidence, motive looses its importance and occupies backseat. In the present case also prosecution has established its version by credible and trustworthy evidence,therefore, motive looses its importance. Besides, there is a strong motive to commit the crime in view of occult activities of the appellant. therefore, motive is diluted and did not affects the prosecution case by any means.
40. Learned counsel for the appellant has vehemently argued that witnesses produced by the prosecution are partisan, inimical to the appellants and interested and not independent witness. They are unreliable and as such no credence can be attached to their testimony and their deposition is not reliable. Hence, their evidence deserves to be discarded. Learned A.G.A. refuted the contention of the learned counsel for the appellant. He submitted that ordinarily a closed relative would not spare the real culprit who has caused the death and implicate an innocent person. It will be beneficial to have a bird's eye view of the law on the issue and evaluation of testimonies of such witnesses.
41. The aforesaid submission of the learned counsel for the appellant that prosecution witnesses are partisan and inimical to appellant, was thoroughly considered by the Hon'ble Apex Court in case of Daleep Singh Vs. State of Punjab reported in AIR 1953 SC 364 and enunciated the following principles:-
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
42. In a three Judges Bench of the Supreme Court of India in Hari Obula Reddy Vs. State of A.P. reported in (1981) 3 SCC 675 observed as under:-
"13. ...it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
43. Again, in S. Sudershan Reddy and others Vs. State of A.P reported in (2006) 10 SCC 163, the Hon'ble Supreme Court has held as under:-
"12. We shall first deal with the contention regarding interests of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.
15. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dilip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses."
44. It is well known that there may be three kinds of witnesses:-
(I) Wholly reliable,
(ii) Wholly unreliable, and
(iii) Partly reliable and partly unreliable, There is no problem to evaluate testimony of wholly reliable or wholly unreliable witnesses, but it is different to deal with the witness, who are partly reliable and partly unreliable. The court has to be very careful in evaluation of such kind of witnesses.
45. Thus, Hon'ble Apex Court in its enumerable decisions has categorically held that if evidence of an eye-witness, is found truthful, it can not be discarded simply because the witnesses were relatives of the deceased. The only caveat is that the evidence of relative witnesses should be subjected to careful scrutiny and accepted with caution.
46. It is germane to point out here that the prosecution has examined as many as seven witnesses in support of its version. Out of which PW-1 informant Prem, is the elder brother of the Pramod, whose deceased children has fallen prey of the incident and Tau of the deceased children. Although, he is not an eye-witness of the incident, but on receiving the information about the diabolic and faint state of health of the deceased children, he reached at the spot and was instrumental in taking the deceased children for medical treatment to Tyagi Nurshing Home at Khetauli and informing police for afterward proceedings and inquest, postmortem and cremation of the deceased children PW-2 Krishna Pal and PW-3 Ravindra Sharma are public witnesses of facts. PW-4 Dr. Narendra Kumar Tyagi and PW-5 Dr. Yogendra Tirkha are the witness of medical treatment and post-mortem. PW-6 is the head moharrir and formal witness, while PW-7 S.H.O. D.N. Verma is the Investigating Officer. Thus, PW-4 to PW-7 are formal witnesses. PW-2 and PW-3 are independent witnesses, so there is no possibility for them to implicate the appellant falsely. As discussed herein above, defence has not been able to point out any such enmity of PW-1 informant Prem, PW-2 Krishna Pal and PW-3 Ravindra Sharma, against appellant which could be considered a cause of false implication of the appellant. Therefore, their evidence could not be said to be devoid of credence and could not be discarded. Nevertheless, in view of the law discussed above they should be subjected to careful scrutiny and accepted with caution.
47. Learned counsel for the appellant has urged that first information report in this case is inordinately delayed and ante-timed. It is the result of embellishment which is a creation of after thought. The incident in the case alleged to have occurred on 27.06.2004 at 09:30 a.m., while its FIR has been lodged on 28.06.2004 at 08:00 a.m. the distance of the place of occurrence from the police station is about six kilometers only. The prosecution has not furnished any satisfactory explanation of this delay. Learned A.G.A has dispelled the contention of the appellant, and argued that it was a case of day light murder of two teenaged brothers and a sister. After taking the sugar coated cardamom seeds (elaichi dana) all the three children reached in the sugarcane field, where their father Pramod was working. They lost their consciousness and fainted in the field. Pramod informed to his elder brother Prem about their condition, then Prem and Ram Niwas reached there and taken them to the hospital of doctor Narendra Kumar Tyagi, for treatment. By then two of the children were found already dead, while the third one died after some time. Pramod father of the deceased children informed to the police station concerned. The perusal of the record shows that his information was entered in to the General Diary No.16, 12:05 p.m. dated 27.06.2004, Police Station Ratan Puri. The carbon copy of this G.D. is on record. PW-7 Investigating Officer D.N. Verma has proved its entry in G.D. by uttering that he has entered the scribed information given by Pramod Kumar on 27.06.2004 at about 12:05 p.m., in this G.D. He has further stated that on the basis of the information he proceeded to the place of occurrence i.e. the house of Pramod kumar, where the corpses of the children were lying and under his supervision the inquest proceeding were conducted, over which, signatures of the witnesses were obtained. He proved the inquest reports as Ext. Ka-7, 12 & 17 respectively. After completion of inquest proceedings, Photo Lash, Chitthi C.M.O., Chitthi R.I., Challan Lash, were prepared and the dead bodies of the children were wrapped in clothes and sealed. The witness proved these papers as Ext. Ka.-7, Ka.-8, Ka.-9, Ka.-10 and Ext. Ka.-11. Ext. Ka.-12 to Ext. Ka.-16 and Ext. Ka.-17 to Ext. Ka.-21. The dead bodies were sent to the district hospital for the postmortem. All the proceedings were completed on 27.06.2004 on the basis of information entered in to above stated G.D. No.16 by PW-6. From the facts and the circumstances of the case it emanates that the crime has been committed in a very brutal and diabolical manner shaking the conscience and heart of public at large. Naturally the entire family of the deceased children would be engulfed in utter disturbance and sorrow. Nevertheless, the investigation continued through out and further on-wards when on 28.06.2004 the written tehrir was presented by the complainant Prem, wherein he disclosed the names of the accused also. Thus, there was no time and opportunity to torn and twist the facts of the case and to lodge the F.I.R. with complete details disclosing the name of real culprits as furnished by the eye witnesses PW-2 and PW-3. Thus, the delay in lodging the FIR in a formal way is self-explanatory and it did not adversely affect the prosecution case.
48. Learned counsel for the appellant has argued that prosecution has not examined prime witnesses mentioned in charge sheet, nor has it explained as to why theses witnesses has not been examined. On this count adverse inference may be drawn against the truthfulness of the prosecution case. Learned A.G.A. has repelled the contention of the learned counsel for the appellant. In a very illustrating judgment Vadivelu Thevar v. State of Madras AIR 1957 SC 614, the Apex Court has held as under:-
11. ".The contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section. 134 which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognized maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. ."
The prosecution having examined two eye witnesses, of the incident PW-2 Krishan Pal PW-3 Parvindar Sharma, who have witnessed appellant giving sugar coated cardamom to the deceased children. PW-7 I.O. D.N. Verma has recovered the pieces of news paper in which sugar coated cardamon in wrapped and supplied to the deceased children from the place of occurrence and from the dressing table of the appellant. Above all the cardamom and Viscera of the deceased sent to the forensic laboratory Agra has confirmed administering of Aluminum phosphide to the children. In these circumstances prosecution case established beyond reasonable doubts, Although several names of the witnesses are mentioned in the charge sheet but the law as discussed above there was no necessity of multiplying the number of witnesses and no adverse inference could be drawn against the prosecution merely on the ground that some of the witnesses mentioned in the charge sheet has not examined. If the incident had not taken place as suggested by the prosecution but had happened in a different manner, there was no impediment in the way of the accused-respondents to examine the aforesaid left out witnesses as defence witnesses, but they did not chose to do so.
Having given our careful consideration to the submissions made by learned counsel for the parties, we are of the opinion that only on the basis of the non examination of the left of the witnesses discarding the prosecution case are also unsustainable in law.
49. Learned counsel for the appellant has argued that the learned trial court has not been afforded the opportunity to be heard on the sentencing as it is mandatory under Section 235(2) Cr.P.C. Learned AGA had vehemently opposed this argument. He submitted that a perusal of the impugned judgment and order dated 05.09.2005 itself exhibit that ample opportunity was accorded to the appellant to present her case on sentencing. The perusal of the impugned judgment also reveal that she had utilized the opportunity and presented her case on the point of the sentencing before the learned trial pronounced final verdict. In corroboration of this facts following relevant extract from the judgment is reproduced here under :-
".......... वर्तमान मामले में अभियुक्तगण के विरुद्ध पर्याप्त विश्वस्नीय साक्ष्य पत्रावली पर उपलब्ध है प्रत्यक्षदर्शी साक्षियों ने अभियुक्तगण को स्वयं इलायची दाना अखवार में दिया जाना देखा, जिसके खाने से तीनो बच्चों की मृत्यु हुई और उक्त मृत्यु का समर्थन भली भाती डॉक्टरी परीक्षण रिपोर्ट व विधि विज्ञान प्रयोगशाला द्वारा दी गई रिपोर्ट से होता है अभियुक्तगण के विरुद्ध उन्हें झूठे फ़साये जाने का कोई आधार पत्रावली पर नहीं है मेरे विचार से अभियुक्तगण के विरुद्ध अभियोजन मामले को सिद्ध करने में सफल रहा है और वह दोष सिद्ध किये जाने योग्य है| दंड के प्रश्न पर यदि वो कुछ कहना चाहता है तो उन्हें सुनवाई का अवसर प्रदान किया जाता है| ए.स./डी.
दिनांक: 05.09.2005 विशेष अपर सत्र न्यायाधीश
मैने अभियुक्त को दंड के प्रश्न पर सुना|
आदेश
अभियुक्त नरेंद्र की मृत्यु होने के कारण उसके विरुद्ध कार्यवाही समाप्त की जाती है तथा उसकी पत्नी को धारा 328 भा. दं. सं. के अंतर्गत दस वर्ष के कठोर करावास के दंड से तथा धारा 302 भा. दं. सं. के अंतर्गत आजीवन करावास के दंड से दंडित किया जाता है| उक्त दोनो सज़ाये साथ-साथ चलेंगी| एस/डी दिनांक: 05.09.2005 विशेष अपर सत्र न्यायाधीश यह निर्णय आज दिनांकित और हस्ताक्षरित होकर खुले न्यायालय में सुनाया गया| दिनांक: 05.09.2005 एस/डी (विशेष अपर सत्र न्यायाधीश) Thus, we fined that the argument the learned counsel for the appellant is devoid of force.
50. Learned counsel for the appellant has also contended that there is no reference of the statement of the appellant under section 313 Cr.P.C. which indicated learned trial court has passed the impugned judgment in a hurry with out taking care of the defence case. Learned AGA audaciously opposed the argument of the learned counsel for the appellant and submitted that statement of the appellant was recorded on every point of evidence which goes against the appellant, in a marathan exercise in question and answer forms and appellant has answered each question voluntarily. So it is ridiculous that no mention of the statement 313 Cr. P.C. has been taken while pronouncing the impugned judgment.
51. In view of the rival contentions of the learned counsels for the parties on the issue raised herein above, it will be beneficial have an bird eye view of the provision of section 313 Cr.P.C which reads as under:-
"Section 313. Power to examine the accused:-
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
[(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.]"
52. Thus, Section 313 Cr.P.C. envisages the power of the trial court to examine the accused to explain the evidence against the accused. It is fundamental principle of natural justice is that no one should be condemned unheard. It provides an opportunity to the accused to enable him to explain the facts and circumstances of the case and adduced evidence against him. If the lower court fail to give an opportunity to him, he is entitled to ask appellate court to place him in the same position as he would have been in, had he been asked. However it is the discretion of the court to question at any stage of the trial.
53. It was held by Honorable Supreme Court in the case of Raj Kumar Singh @ Raju @ Batya Vs State Of Rajasthan reported in AIR 2013 SC 3150, in para no.25 that :-
"In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration."
54. The purpose, procedure and consequences of examination of accused in 313 examination was discussed elaborately by Apex Court in Sanatan Naskar & Anr vs State Of West Bengal reported in AIR 2010 SC 3507:-
" ....The answers by an accused under Section 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.PC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, 54.made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) of Cr.P.C. explicitly provides that the answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against the accused in any other inquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.P.C. as it cannot be regarded as a substantive piece of evidence."
55. In Mohan Singh Vs. Prem Singh reported in 2002 SC 3582, Dehal Singh Vs. State Of H.P. reported in AIR 2010 SC 3594, State of M.P. Vs. Ramesh reported in (2011) 4 SCC 786, Rajkumar Singh alias Raju Vs. State of Rajasthan reported in AIR 2013 SC 3150 and in a plethora of cases, it has been held by the Hon'ble Apex Court that it is settled proposition of law that statements or answers given by accused is not substantive piece of evidence and it is not sole base for convicting the accused. The statements of accused can be used for proper appreciation of evidence to accept or reject it.
56. Non-examination of accused under Section 313 of Cr.P.C. does not vitiate the entire proceedings or case of prosecution. Accused can make good of the same even at appellate stage. It is not sole base for eviction unless accused shown miscarriage of justice. In State (Delhi Administration) Vs. Dharampal reported in AIR 2001 SC 2924, the Hon'ble Apex Court has held as under:
"Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate Court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him..."
57. In Gyan Chand and Others Vs. State of Haryana reported in AIR 2013 SC 3395, plea to non-compliance of the provisions of Section 313 Cr.P.C. was taken for the first time before the Supreme Court. But there was no material showing as to what prejudice has been caused to the accused persons, if facts of conscious possession was not put to them. Thus the court held that the trial was not vitiated for non compliance of the provisions of Section 313 Cr.P.C. Mere defective/ improper examination under Section 313 Cr.P.C. is no ground for setting aside the conviction of the accused, unless it has resulted in prejudice to the accused. Unless the examination under Section 313 Cr.P.C. is done in a perverse way, there cannot be any prejudice to the accused. See SC Bahri v. State of Bihar; AIR 1994 SC 2420, Shobhit Chamar v. State of Bihar; AIR 1998 SC 1693.
58. The law mandates every incriminating evidence should be put to the accused separately. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Trial judge should taken care that questions of an inquisitorial nature should be put an accused, simply because statements given by accused under this section is not sole base for conviction, presiding officer cannot be treat it as formality as it carries much importance in appreciation of evidence.
59. It is germane to point out that the learned trial court has put, as many as 17 questions to the appellant regarding each and every incriminating evidence, against her and thus, affording opportunity to her to answer and explain her stand and to put her defence case. She has shown her ignorance about the death of the deceased children in answer to question no.1. She negated giving any prasad to the deceased children. In answer to question no.2, 3, 4, 5 she denied committing any crime, in answer to question no.6, she told the report against her to be false, in answer to question no.7, she stated to have prepared of the forged document, in answer to question no.8, 9, 10, she showed her ignorance and in answer to question no.11, she told the report against her is false, for the rest of the question, she answer that witnesses Prem Pal, Krishna Pal and Praveen is giving false evidence, in answer to question no.16, she stated that she has been implicated due to enmity and in answer to question no.17, when she was asked, she denied to give any prasad to deceased children. Thus, she has explained and answered each and every evidence incriminating her. Her statement under Section 313 Cr.P.C. is well discussed by the trial court as well as in the present decision. In the impugned judgment her statement duly considered by the learned trial judge, in the impugned judgment and order at page no.2. Not only this learned trial court has given her opportunity to examine D.W.-1 Abdul Haq as to strengthen her defence. Thus, we are of the considered opinion that no prejudice has been caused in respect of her statement under Section 313 Cr.P.C. She was afforded adequate opportunity to be heard and to explain her defence case. She has utilise opportunity to lead the defence evidence. Consequently, the argument of learned counsel for the appellant contains no force.
60. The accused-appellant had strong motive of eliminating to the children as she was well aware that aluminum phosphide is highly toxic inorganic compound and can cause irritation of the nose, mouth, throat and lungs leading to death of the consumer. The testimony of the witnesses is trust worthy and reliable. No explanation has been given by the accused appellant as to how and in what manner the victims died of devouring devotional offerings. The evidence led by the prosecution witnesses is consistent with the hypothesis of the guilt of the accused appellant. There is no other hypothesis except the guilt of the accused appellant. Mere conviction and sentence as well as incarceration of the accused appellant will not assuage or mitigate the severity and barbarity of offence wherein innocent children have died of in a grotesque and ruthless manner. The death of the minor children in such a planned manner shook the heart of the general folk. The appellant has failed to bring on record any material as to why she was implicated leaving to the actual culprit. The learned Trial Judge has passed the order of conviction and sentence after appreciating the entire evidence on record and has rightly arrived at the conclusion that it was the accused appellant who committed the serious offence of taking away the life of these innocent children hence the judgment and order passed by the learned Special Judge deserves to be sustained and upheld. The testimony of prosecution witnesses can not be discarded merely because of their relationship or slight aberration and deviation in their testimony. Every criminal trial is a voyage of discovery in which nectar in the form of quest is churned and gleaned from the fathomless ocean. A duty is cast on the Presiding Officer to explore every avenue in order to discover the truth and advance the cause of justice.
61. Learned counsel for the appellant has submitted that considering the manner in which the incident had occurred and the role attributed to the appellant, the present case does not travel beyond the scope of the offence u/s 304 Part II IPC, causing injuries with the knowledge that it was likely to cause death but without any intention to cause death. He has further submitted that the conviction of the appellants u/s 302 IPC is a result of misappreciation of evidence on record. At the most the appellant can be convicted for the offence u/s 304 Part II of IPC.
62. Having considered the rival submissions made by learned counsel for the parties and having gone through the material available on record the question is whether the conviction of the appellant will fall within the scope of Section 300 of I.P.C. or it is a case of culpable homicide not amounting to murder punishable under Section 304 Part-I or Part-II of I.P.C. These provisions invokes the concept of motive, intention and knowledge.
63. Sections 299 and 300 of the IPC deal with the definition of 'culpable homicide' and 'murder', respectively. In terms of Section 299, 'culpable homicide' is described as an act of causing death-
(i) with the intention of causing death or
(ii) with the intention of causing such bodily injury as is likely to cause death, or
(iii) with the knowledge that such an act is likely to cause death.
A bare perusal of this provision, reveal that it emphasises on the expression 'intention' while the latter upon 'knowledge'. Both these are positive mental attitudes, however, of different degrees. The mental element in 'culpable homicide', that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners, noted-above, it would be 'culpable homicide'. Section 300 IPC, however, deals with 'murder', although there is no clear definition of 'murder' in Section 300 of IPC.
64. In Rampal Singh vs. State of U.P. reported in (2012) 8 SCC 289 it has been held by this Court, 'culpable homicide' is the genus and 'murder' is its species and all 'murders' are 'culpable homicides' but all 'culpable homicides' are not 'murders'.
65. In another case Pulicherla Nagaraju @ Nagaraja Reddy vs State of A.P. reported in 2006 (11) SCC 444, the Hon'ble Supreme Court has laid down various relevant circumstances from which the intention could be gathered. Some relevant considerations are the following :-
(i) The nature of the weapon used,
(ii) whether the weapon was carried by the accused or was picked up from the spot,
(iii) whether the blow is aimed at the vital part of the body,
(iv) the amount of force employed in causing injury,
(v)whether the act was in the course of sudden quarrel or sudden fight,
(vi) whether the incident occurred by chance or whether there was any premeditation,
(vii) whether there was any prior enmity or whether the deceased was a stranger,
(viii) whether there was a grave or sudden provocation and if so, the cause for such provocation,
(ix) whether it was heat of passion,
(x) whether a person inflicting the injury has taken undue advantage or has acted in a cruel manner,
(xi)whether the accused persons has dealt a single blow or several blows.
66. Thus, requirements of law with regard to intention may be satisfied for holding an offence of culpable homicide. It is also necessary to prove specific intentions Even when such intention is not proved, the offence will be culpable homicide, if the doer of the act causes the death with the knowledge that he is likely by his such act cause death i.e. with the knowledge that the result of his act may be such as may result in death.
67. Having regard to the overall facts and circumstances of the case and discussions of the evidence and material on record, there is no manner of doubt about the complicity of the accused appellant in offering cardamom to those children as a result of which they succumbed to injuries after some hours. The witnesses were cross examined by the defence but no contradiction could be elicited so as to discard the version regarding the involvement of the accused appellant in committing such a brutal and inhumane act of taking away the life of innocent children. The medical evidence, post mortem report as well as the chemical analyst report, adduced by prosecution relating to offering of cardamom to the children stood fully proved. The prosecution story will not stand demolished for the fault of the investigating officer. The trial court had assessed and analyzed the entire evidence and defence of the accused appellant on the yardstick of its reliability and trustworthiness and has rightly reached at the conclusion that the appellant is the real perpetrator of the crime of offering cardamom to the children mixed with aluminum phosphide. There is clear and categorical evidence to establish and prove the accusations of offering cardamom mixed with aluminum phosphide. There is no reason to ignore such solitary evidence so as to absolve the perpetrator of such grotesque crime.
68. After scrutinizing the entire materials on record and the evidence led by prosecution, it emanates that there is no reason to implicate the accused appellant falsely leaving the actual culprit. Nothing tangible could be elicited from the evidence of the witnesses in cross examination by which the prosecution version could be doubted or discarded. If courts are to insist on plurality of witnesses in proof of any fact, it will be directly encouraging subornation of witnesses. If the situation and circumstance arise that there is only a single person available to give evidence in support of the prosecution version, the court naturally has to weigh carefully and cautiously such a testimony and if the court is satisfied that the evidence is trustworthy, reliable and free from all taints and flaws, then a duty is cast upon the court to act upon such testimony. In case, the witness is not found to be reliable and there are some circumstances which may show that credibility is shaken by adverse circumstance, then the court will not insist upon such evidence. It is a platitude to elaborate here that it is the quality and not the plurality of witnesses who are required to prove the testimony. The dispensation of justice would be affected and hampered if number of witnesses are to be insisted upon.
69. Learned counsel for the appellant submits that there are material inconsistencies and contradictions in the statement of prosecution witnesses and the investigation has not been fairly conducted. Learned A.G.A. refuted the said argument. It is well settled principle of law that accused appellant cannot be given benefit of laches in investigation or non-material contradictions and inconsistencies in the prosecution witnesses. In Ram Bali Vs. State of U.P. 2004 A.I.A.R. Crl. 417 the Apex Court has held that failure or negligence or omission on the part of I.O. is not fatal to the prosecution case, in case testionmony of eyewitnesses corroborated by medical evidence fully establishes the prosecution version. In the present case, appellant has failed to point out any material negligence or omission in the investigation, on the basis of prosecution version could be discarded.
70. In the light of prolix and verbose discussions made herein above and also regard being had to the entire facts and circumstances of the case, we are of the opinion that the prosecution has proved its allegations beyond reasonable doubt pointing unerringly guilt of the accused appellant.
71. Now, we recapitulate the facts and circumstances of the case. PW-2 Krishna Pal and PW-3 Pravindra Sharma, who are eye-witnesses, had seen the appellant giving sugar coated cardamom seeds in paper which was enquired by PW-7 Investigating Officer D.N. Verma. In forensic chemical examination, elaichi danas were having elements of aluminum phosphide, as a result of which, three innocent children died. Thus, looking to the nature of allegations, the materials on record and also manner of executing the crime, it appears that the accused appellant did not have any strong motive and animosity, as a result of which, she has given devotional offerings mixed with aluminum posphide. The accused appellant has acted in a sudden emotion without pre-concerted plan. She might have no immediate intention to cause death of the deceased children but she has a knowledge that if someone take aluminum posphide he might be dead. Hence, the accused-appellant deserves to be convicted and sentenced under Section 304 Part-I of IPC. The judgment and order dated 05.09.2005 passed by learned Special Additional Sessions Judge, Muzaffar Nagar is modified to the extent of awarding the conviction and sentence under Section 304 Part-I of IPC only. The conviction and sentence awarded under Section 328 IPC shall remain intact.
72. Accused-appellant is in actual incarceration for last about 20 years and about 6 years remission earned. Thus, she has served about 26 years of the sentence awarded.
73. Resultantly, the instant criminal appeal is partly allowed to the extent that the appellant is convicted under Sections 304 Part-I and 328 I.P.C. So far as the quantum of sentence is concerned, learned trial court has not imposed the fine in either of the Sections, which is integral part of the sentence under these sections. It will serve the ends of justice, if she is released for the period already undergone under Section 304 Part-I of IPC and a fine of Rs.2,00,000/-, which will go to the to their father. In case, he is not alive, the amount will go to their surviving mother or their legal heirs, as compensation. In case of default, she will serve one year's additional imprisonment. The conviction and sentence awarded under Section 328 IPC shall remain intact with the modification that she will further pay a fine of Rs.1,00,000/-, which will go to the to the father of the deceased. In case, he is not alive, the amount will go to their surviving mother or to their legal heirs, as compensation. In case of default, she will serve six months additional imprisonment.
74. Certify the judgment to the trial court to incorporate entry of the result of this appeal in the relevant register. The compliance be reported to this court within fifteen days.
75. Trial court record be sent back.
Order Date:- 28.08.2024 Israr