Allahabad High Court
Nand Lal Chaubey @ Chintamani Chaubey vs State Of U.P. on 19 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 2806
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 01.02.2019
Delivered on 19.07.2019
Court No. - 34
Case :- JAIL APPEAL No. - 3458 of 2013
Appellant :- Nand Lal Chaubey @ Chintamani Chaubey
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail, Abhay Kumar Singh, Dr. D.K. Tiwari, Sita Ram Sharma (A.C.)
Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This jail appeal under Section 383 Cr.P.C. has been filed by accused-appellant Nand Lal Chaubey @ Chintamani Chaubey through Senior Superintendent, Central Jail, Varanasi against judgment and order dated 27.08.2011 passed by Sri J.P. Yadav, Special Judge (E.C. Act), Mirzapur in Sessions Trial No.237 of 2007, under Sections 302 and 307 IPC. By the impugned judgment, accused-appellant has been convicted under Section 302 and 307 IPC. Under Section 302 IPC, he has been sentenced to undergo life imprisonment along-with fine of Rs.2,000/-, In the event of default of payment of fine, he has to undergo further one year's additional Rigorous Imprisonment (hereinafter referred to as "RI"). He has been sentenced to undergo seven years RI, under Section 307 IPC and also with a fine of Rs.2,000/-. In case of default in payment of fine, one year's additional RI has to be suffered by him. Both the sentences have been directed to run concurrently.
2. The facts emanating from Fist Information Report (hereinafter referred to as "FIR") and the material available on record may briefly be stated as under, for adjudication of this appeal:-
3. It appears that on 28.01.2007, an application Ex.Ka-15 was allegedly given at Police Station Ahiraura, District Mirzapur by PW-7 Arif written by accused-appellant Nand Lal Chaubey @ Chintamani Chaubey, stating that at 08:00 AM, he had gone to Robertsganj and when he came back to his house, he saw that his wife Monika, Sharad, Johny, Baby, Manisha and other two children Kavita and Ajit having taken their meal were planning to sleep. He was asked by his wife Monika to take meal but he did not take. He was offered cake which had been received from Duddhi but as soon as he wanted to eat the cake, his elder son Johny fell down and become unconscious. Accused-appellant became nervous and called his neighbors for help and asked for vehicle but no vehicle could be arranged. Thereafter he went to hospital and from there he arranged for the vehicle and took them to hospital.
4. PW-5, Dr. C.M. Tiwari, District Hospital Robertsganj, Mirzapur was posted on emergency duty on 27.01.2007 when Monika, her daughter-in-law Baby (wife of Johny) and her son Tony, Manisha wife of Ramesh and Johny were admitted in hospital for treatment. All were brought by Smt. I. Soloman and Nand Lal Chaubey @ Chintamani Chaubey, accused-appellant. It was told to the Doctor that they had consumed poisonous substance. Information of incident was sent by PW-5 Dr. C.M. Tiwari to In-charge Inspector, Robertsganj, District Mirzapur, which is Ex.Ka-8 on record. Doctor found that Baby, Monika and Tony were already dead. During course of inspection, remaining two patients Johny and Manisha were found in unconscious state and admitted for treatment in hospital. Doctors at Robertsganj Hospital had administered treatment on Johny and Manisha for reducing effect of poison. On 28.01.2007 at 02:30 PM, both were referred to Banaras Hindu University (hereinafter referred to as "BHU") for treatment. On 28.01.2007 the said Doctor PW-5 was also assigned duty for conducting autopsy on the dead bodies of the aforesaid three persons. Dead bodies were sealed by Constable Kaushal Kumar and Vinod Kumar. Inquest and other police documents were prepared and dead bodies were sent for postmortem.
5. PW-5 Dr. C.M. Tiwari conducted autopsy on the dead body of Baby (wife of Johny Maseeh) on 28.01.2007 at 02:30 PM. According to him, deceased was aged about 20 years and about ¾ day had passed since her death. No ante mortem injury was found on her body. Cause of death could not be ascertained. Visecra was preserved for chemical examination. Postmortem report (Ex.Ka-11) was prepared by PW-5, who also conducted autopsy on the dead body of deceased Monika Chaubey on 28.01.2007 at 03:00 PM. According to him deceased was aged about 40 years and about ¾ days had passed since his death. No ante mortem injury was found on her person. Cause of death could not be ascertained. Viscera was preserved for chemical examination. Autopsy report in respect of Monika prepared by doctor is Ex.Ka-12 on record. Similarly postmortem of Tony was conducted by the same Doctor on 28.01.2007 at 03:30 PM. He was found to be aged about 18-19 years and about ¾ day had passed since his death. In his case also, no ante mortem injury was found on her person. Cause of death could not be ascertained and viscera was preserved for chemical examination. Doctor prepared postmortem report Ex.ka-13 in respect of deceased Tony.
6. After getting information from District Hospital that three persons had died and two others were in unconscious state having consumed poison, PW-9, S.O. Shaturghan Prasad Chaudhary, Police Chauki Sukrit, Police Station Ahiraura, District Mirzapur visited the spot and collected food remains and vomit, sealed them in separate five packs for the purposes of forensic examination. He prepared recovery memos, Ex.Ka-24 to 26.
7. On receiving information of death of three deceased, namely, Monika, Tony and Baby @ Gudiya at District Hospital Robertsganj, PW-12, S.O. Prem Lal, visited District Hospital Robertsganj and prepared panchayatnama, (Ex.Ka-40 to Ka-42), in respect of the three deceased.
8. PW-16, SI Anil Kumar Gupta, had sealed the bitch and four puppies lying death on the spot after consuming poisonous food and sent the same to Veterinary Hospital for postmortem. He also made certain queries from the complainant PW-1 about the incident.
9. Postmortem on the dead bodies of bitch and puppies was conducted by Veterinary Dr. Dilip Kumar Pandey, PW-8, posted at Rajgarh Veterinary Hospital, District Mirzapur. He had prepared reports Ex.Ka-17, 18, 19 and 20 in respect of four puppies and Ex.Ka-21 in respect of bitch. Since no ante mortem injury was found on the person of bitch and puppies, the case of death could not be ascertained by the Doctor and he preserved viscera for forensic examination.
10. From the record, it appears that on 02.02.2007, Complainant, PW-1, had given an application at Chauki Sukrit, Police Station Ahiraura, District Mirzapur, mentioning the details of incident and praying for investigation into the matter. Since no investigation was done, she made application to Higher Police Authorities also, but they did not investigate the matter. When Police took no interest in the matter, PW-1, I. Soloman complainant made an application, (Ex.Ka-4), under Section 156(3) Cr.P.C. on 16.03.2007 before Chief Judicial Magistrate (hereafter referred to as "CJM"), Mirzapur with the allegation that accused-appellant Nand Lal Chaubey @ Chintamani Chaubey is a cheater and clever person who enticed her daughter Monika and got an agreement of marriage executed before Sub Registrar, Varanasi on 13.11.1999 and started living as husband and wife at Madhupur, Chauki Sukrit, Police Station Ahiraura, District Mirzapur. Out of their wed-lock three children Johny, Tony and Manisha @ Guddan were born. It is stated in the application that about six years ago from the date of filing of application under Section 156(3) Cr.P.C., accused-appellant abandoned Informant's daughter Monika and her children, and after accepting Islam religion, changed his name as Mohd. Iqbal. Thereafter he married a girl named Jamila Khatoon. On 27.01.2007 at 09:13 PM, accused-appellant come to the house of Informant and asked to hurry up for going to hospital as all had taken poisonous food and died. He also asked to keep quiet and not to make any noise. Thereafter Informant, PW-1, went to Hospital along-with accused-appellant, where she found that her daughter Monika aged about 45 years, Monika's son Tony aged about 22 years and Monika's daughter-in-law Gudiya @ Baby aged about 17 years had died of consuming poison. Two other children of Monika, namely, Johny and Manisha could be saved with great efforts of doctors. It is stated that accused-appellant is a mischievous person and acts as broker in hospital. Informant was of the firm opinion that accused-appellant had killed her daughter Monika, Monika's son Tony and her daughter-in-law Gudiya @ Baby by administering poison on them. He is trying to hush up the matter in connivance with Hospital and Police personnel. Two children who fortunately are alive and under treatment have also disclosed that poison was mixed by the aforesaid accused-appellant in vegetable and since they had not consumed vegetable, they could escape the death but others consumed all the food, and dead. It is asserted in the application that a complaint of the incident was given at Chauki Sukrit, Police Station Ahiraura, District Mirzapur but no action was taken. Accused-appellant was pressurizing PW-1, Complainant and threatening her to life. Complainant had also sent applications to Superintendent of Police (hereinafter referred to as "SP"), Mirzapur , Deputy Inspector General of Police (hereinafter referred to as "DIG") Vindhyachal Division, Mirzapur and Station Officer (hereinafter referred to as "SO"), Ahiraura, Mirzapur praying for chemical examination of vegetable (sabzi), vomit and also bitch and puppies who died on consuming poisonous food and also for investigation of the case by Police after registering FIR. Since police authorities failed to take any action against accused-appellant, Complainant, PW-1, filed aforesaid application under Section 156(3) Cr.P.C. with a prayer for lodging an FIR and investigation into the matter by Police.
11. On the aforesaid application, learned CJM prima-facie found that a cognizable offence was made out and sufficient ground existed for investigation into the matter. Accordingly, vide order dated 03.04.2007, he directed Police Station Ahiraura, District Mirzapur for registering the case and investigate the matter.
12. Pursuant to order of Magistrate dated 03.04.2007, PW-4 Head Constable Lalta Prasad Yadav lodged FIR and prepared chik report Ex.ka-5 on 25.06.2007 at 12:50 hours. He also made corresponding General Diary (hereinafter referred to as "GD") entry at report no.27 at 12:50 hours (Ex.Ka-7).
13. Consequent upon registration of FIR as case crime no.01 of 2007, SI Ajay Kumar Rai, PW-14, undertook investigation on 25.06.2007. He made entries of relevant documents in the GD and recorded statements of Head Constable PW-4, Complainant, PW-1, and other witnesses; inspected spot, prepared site plan Ex.Ka-46. He made entry of Forensic report regarding viscra sent for chemical examination to Forensic Science Laboratory in respect of deceased Monika, Tony and Baby. According to Forensic report, poison of 'aluminum phosphide' was found therein. Viscra report is Ex.Ka-47 to 49 on record. Thereafter on 29.06.2007, accused-appellant was arrested and relevant entry was made in the case diary (hereinafter referred to as "CD").
14. Forensic report in respect of five sealed packs of vomit and remaining food material etc. was received on 05.06.2007, reference whereof is also noted in the CD. After transfer of PW-14, Ajai Kumar Rai, investigation was continued by PW-15, SO, Lallu, who after receipt of viscra report from Forensic Science Laboratory, Lucknow in respect of food remains collected from spot as well as viscra of Bitch and Puppies, recorded the same in CD. The reports mentioned that viscra and vomit and food remains contained 'aluminum phosphide' poison Viscra report is Ex.Ka-15.
15. After conclusion of investigation, PW-15, SI, Lallu Ram Bhasker, submitted charge-sheet (Ex.Ka-50) against accused-appellant in the Court of CJM, Mirzapur.
16. It is pertinent to mention here that according to viscera reports, (Ex.Ka-47 to 49), received from Forensic Science Laboratory, U.P. Lucknow in respect of Baby, Monika and Tony respectively, the aforesaid viscera of all the persons contained poison, 'aluminum phosphide'. Likewise viscera report, (Ex.Ka-51), in respect of bitch and puppies also, finding was that it contained 'aluminum phosphide' poison. Ex.Ka-51 also stated that the articles, namely, vomit, food material etc. recovered from the spot also contained same poison.
17. CJM, Mirzapur took cognizance of the offences against accused-appellant on 26.09.2007.
18. Case, being exclusively triable by Court of Sessions, was committed to Sessions Court on 24.10.2007, and registered as Sessions Trial No.237 of 2007. Subsequently Sessions Trial was transferred to the Court of Special Judge (E.C. Act), Mirzapur who framed charges against accused-appellant on 11.01.2008, as under:-
"eSa] ch0Mh0 oekZ] fo'ks"k U;k;k/kh'k bZ0 lh0 ,DV] fetkZiqj ,rn~}kjk vki vfHk;qDr uUn yky pkScs mQZ fpUrkef.k pkScs dks fuEu vkjksiks ls vkjksfir djrk gwWA izFke& fnukad 27-1-2007 dks le; djhc 9-00 cts jkr cgn xzke e/kqiqj Fkkuk vgjkSjk ftyk fetkZiqj esa vkius okfnuh eqdnek Jherh vkbZ-lksykseu dh yM+dh eksfudk o eksfudk iq= Vksuh o yM+dh cgq xqfM+;k mQZ csch dks tgj nsdj ekj MkykA bl izdkj vkius tku cw>dj Hkk0 na0 la0 dh /kkjk 302 ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA f}rh;& ;g fd mDr frfFk le; o LFkku ij vkius e`rdk eksfudk ds cPps tkuh o euh"k dks bl vk'k; Kku o ,slh ifjfLFkfr esa [kkus esa tgj fn;k ;fn mlls mu yksxksa dh e`R;q gks tkrh rks vki gR;k dh dksfV esa vkus okys vijk/k ds nks"kh gksrsA bl izdkj vkius tku cw>dj Hkk0 na0 la0 dh /kkjk 307 ds vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk eSa funsZf'kr djrk gwW fd mijksDr vkjksi esa vkidk ijh{k.k blh U;k;ky; }kjk fd;k tk,xkA"
"I, B.D. Sharma, Special Judge (E.C. Act), Mirzapur hereby charge you, accused Nand Lal Chaubey @ Chintamani Chaubey with the following charges: -
Firstly - That on 27.01.2007 at about 09:00 PM within Village Madhupur, Police Station Ahiraura, District Mirzapur, you killed Monika D/o complainant I. Soloman and her son Tony and daughter-in-law Gudiya @ Baby by administering poison on them. Thus you have intentionally committed an offence punishable under Section 302 IPC which is within the cognizance of this court.
Secondly - That on the aforesaid date, time and place, you, mixed poison in the food of Johny, Manisha children of deceased Monika deliberately and intentionally knowing that had they died by your aforesaid act, you would have been guilty of murder and thus you have committed an offence punishable under Section 307 IPC which is within the cognizance of this Court.
Hence, I hereby direct that you be tried by this court for the aforesaid charges."
(English Translation by Court) (Emphasis added)
19. Accused-appellant pleaded not guilty and claimed trial.
20. In order to prove the guilt of accused, prosecution examined as many as sixteen witnesses out of whom PWs 1, 2, 3, 7 and 13 are witnesses of fact. Rest are formal witnesses including Doctors and Police personnel.
21. PW-1, Smt. I. Soloman, is the Complainant and mother of deceased Monika. PW-2 Gudiya (wife of Arif) is the daughter of Complainant, PW-1, and sister of deceased Monika. PW-3, Manisha, is daughter of deceased Monika and grand daughter of Complainant, PW-1. PW-7, Arif, is husband of PW-2, Gudiya (daughter of PW-1), and has deposed that he had taken the application dated 28.01.2007 written by accused-appellant to the Police Station and has proved the same as Ex.ka-15. PW-13 Johny Masih is the son of deceased Monika. All the prosecution witnesses have supported prosecution version in material particulars.
22. PW-4 Head Moharrir Lalta Prasad Yadav had registered FIR pursuant to direction of CJM on application under Section 156(3) Cr.P.C. and proved Chik FIR Ex.Ka-5 and 6. He has also proved copy of GD entry, Ex.Ka-47. PW-5 is Dr. C.M. Tiwari who was present at the Hospital at Robertsganj, at the time of admission of patients after consuming poison and had conducted postmortem. He has also proved Ex.Ka-8, information sent to In-charge Inspector Robertsganj regarding consuming poison by Baby, Monika, Tony, Manisha and Johny. He has also proved Bed Head Tickets of Manisha and Johny, Ex.Ka-9 and 10, in respect of treatment administered for reducing the effect of poison. He has also proved postmortem reports of Baby, wife of Johny; Monika; and Monika's son Tony, Ex.Ka-11 to 13, respectively. PW-6 Head Constable Bhupendra Narayan Singh has appeared to depose that on the application dated 28.01.2007 signed by accused-appellant Nand Lal Chaubey @ Chintamani Chaubey sent through Arif, he had made entry in the GD and proved a copy of the same, Ex.Ka-14. PW-8 Dr. Dilip Kumar Pandey, Veterinary Doctor at Rajgarh Veterinary Hospital, District Mirzapur, had conducted autopsy on the dead bodies of one bitch and four puppies and proved postmortem reports, Ex.Ka- 17 to 20, pertaining to four puppies, and Ex.Ka-21 in respect of bitch. He had also sent viscera of aforesaid puppies to Police Chauki, Sukrit, after sealing in five separate packs . He has proved Ex.Ka-23, the letter written by him to Indian Institute of Toxicology Research, Lucknow who had refused the same and sent back, whereafter the same was sent by him to Forensic Science Laboratory, Lucknow. PW-9, SO, Shaturghan Prasad Chaudhary, has proved recovery memo in respect of food remains and vomit collected from the house of the deceased. He had first visited the place of occurrence on getting information of occurrence. PW-10 Constable Sujeet Kumar Singh had carried viscera of deceased Baby, Monka and Tony along-with relevant documents and letter of SP Mirzapur, marked as Ex.ka-27 to 32. He has also proved acknowledgment of sealed packets as well as Ex.Ka-22, viscera of bitch and puppies along-with original dockets which he had deposited in Forensic Science Laboratory for examination. PW-11 Dr. Subodh Rath of Jeevant Jyoti Christian Hospital, Reobertsganj, Sonbhadra, (an Eye surgeon) has proved admission and Bed Head Ticket of Manisha as Ex.Ka-34 and 35 and her discharge Ex.Ka-36 as also Bed Head Ticket and discharge in respect of Johny, Ex.Ka-37, 38 and Ex,Ka-39.
23. PW-12, SO, Prem Lal, on receiving information on 28.01.2007 about death of three deceased had gone to Hospital and prepared panchayatnama (inquest), Ex.Ka-40 to 42, in respect of three deceased Monikas, Baby and Tony. He has also proved necessary documents, i.e. request for postmortem, namely Ex.Ka-43 to 45.
24. PW-14 Ajay Kumar Rai is first Investigating Officer (hereinafter referred to as 'I.O.') who initiated investigation on 25.06.2007 after registration of FIR, pursuant to order of Magistrate on the application of Complainant, PW-1, under Section 156(3) Cr.P.C. He had gone to the spot and prepared site plan, Ex.Ka-44, and proved viscera report received from Forensic Science Laboratory in respect of Monika, Tony and Baby, Ex.Ka-47 to 49.
25. PW-15, SI Lallu Ram Bhasker, is second I.O. after transfer of PW-1 Ajay Kumar Rai and had taken over investigation on 25.08.2007. He recorded statements of witnesses and has also proved viscera report in respect of bitch and four puppies, Ex.Ka-51. He has proved charge-sheet, Ex.Ka-50. PW-16, SI Anil Kumar Gupta, had sealed the bitch and four puppies and sent to Veterinary Hospital for postmortem. He had also some made interrogation on the application of PW-1 complainant and toled that accused-appellant was not present at the time of taking meal along-with his family.
26. After evidence of prosecution concluded, accused-appellant Nand Lal Chaubey @ Chintamani Chaubey was examined under Section 313 Cr.P.C. He has stated that he has been falsely implicated; Monika had married with him of her own sweet will; charges levelled against him are false; and, witnesses are deposing falsely. He has stated that in 2001, he had come to know that complainant PW-1 and Ramesh Chandra Pandey had got Monika married with one Shyam Bihari Rai, just 26 days prior to the marriage of accused-appellant with Monika. In this respect, accused-appellant extended threat to Complainant PW-1 and Ramesh Chandra Pandey warning for taking legal action against them and for that reason, their relations had broken and he has been falsely implicated.
27. After hearing learned Counsel for parties and scrutinizing evidence available on record, Trial Court has recorded verdict of conviction and sentenced accused-appellant, Nand Lal Chaubey @ Chintamani Chaubey, in the manner stated in paragraph-1 of this judgment. Trial Court has come to the conclusion of guilt of accused-appellant recording its findings as under :-
(I) Accused-appellant married Monika on 13.11.1997 executed a marriage agreement registered in the Office of Sub-Registrar, Varanasi and started residing in the house of Baliram near Madhupur Chawki, Police Station Ahiraura.
(II) For earning livelihood, Monika opened Grocery / General Merchant shop.
(III) Monika came to know that accused-appellant was already married after adopting Islam and his another wife was residing at Sajaur. She became annoyed and left the house of Baliram and starting to live in the house of Amar Nath Patel at Madhupur by hiring it and left company of Nand Lal Chaubey.
(IV) Accused-appellant made attempts to reconcile with Monika and with the help of complainant, the relations became normal for a short time.
(V) On 26th January, 2007, at 11.30 in the night, Nand Lal Chaubey phoned Complainant from the house of Monika asking her to come earlier since Toni had consume poison. Complainant accompanied by her daughter Gudiya and his husband Arif immediately came to Madhupur and found that Toni was continuously conversing, Gudiya immediately suggested accused-appellant to take Toni to some doctor, but he said that he has given salted water and everything would get normal.
(VI) On 27.1.2007, accused-appellant, around 9:30 PM, reached the house of complainant by a vehicle (Marshal) and informed her that every body has taken poison and he has brought them in the vehicle and they are dying. He also said that they tried to administer poison to him but themselves have taken and dying. He suggested to move to the hospital without any noise, whereafter, complainant along with all five persons, who had consumed poison, came to Robartsganj hospital where Monika, Toni and Gudiya @ Baby were declared dead. Manisha and Johny after treatment, at District Hospital and thereat BHU, recovered.
(VII) PW-1, complainant stated that accused-appellant visited the house of Monika at 6:00 in the evening on 27.1.2007 and thereafter incident occurred. All other had taken food but despite request accused-appellant did not eat anything. This shows that poison was administered by accused-appellant and that is why he did not take any food.
(VIII) PW-2 sister of Monika and daughter of complainant PW-1 also supported statement of PW-1 regarding disturbed marital affairs between accused-appellant and Monika and cruel behaviour of accused-appellant towards Monika. Firstly on 26.1.2007, in the night at 11:00 PM, she received telephonic call from complainant stating that accused-appellant has informed on phone that Toni has consumed poison, whereupon she accompanied by her husband Arif reached Madhupur and saw that accused-appellant had given salted water to Toni. PW-2 and her husband suggested to take Toni to Hospital but accused-appellant said that he has given salted water and Toni will be recovered. Around 3:00 p.m. in the night, Toni was considerably recovered and when asked, he told that around 8:00 or 9:00 PM in the evening, he has taken food, and thereafter fell ill. On the next day, Complainant, husband of PW-2 and Monika took Toni to Hospital.
(IX) Around 9:30 PM in the night of 27.1.2007, Nand Lal Chaubey reached the house of complainant, PW-1, at Primary Health Centre, Kakrahi through Marshal Jeep and told her that all have consumed poison and dying and they should be taken to Hospital quickly. In the Jeep all five were lying unconscious. They were taken to District Hospital where three out of five i.e. Monika, Gudiya @ Baby and Tony were declared dead.
(X) Johny and Manisha, who recovered, told subsequently that they had taken pulse and rice in the evening, immediately, after cooking of food by Manisha and had not taken vegetable. After cooking food, Manisha and Gudiya @ Baby went for natural call and Tony went to collect a cassette. Accused-appellant came around 6:00 PM and prepared his bed at the same place where cooked food was kept. When all other came back and took food, Monika, sister of PW-2 requested accused-appellant also to take food but he refused. After taking food by family members, food was also taken by Bitch and Puppies, who died.
(XI) PW-2 said that she is confident that poison was mixed by accused-appellant.
(XII) PW-3 Manisha is the daughter of accused-appellant and deceased Monika. She also fell ill in the same incident and was present in the house. She categorically stated that at 6:30 PM, in the evening on 27.1.2007, when food was being cooked by PW-3 and his sister-in-law Gudiya @ Baby, at that time accused-appellant came and lay down after preparing bed at the place where food was being cooked. After preparation of food, rice and pulse was given to the children. PW-3 and her mother Monika went to attend natural call and Toni went out for collecting a cassette. PW-3 and her mother returned after half an hour when accused-appellant was lying at the same place. Food was served to all family members at around 8:30 in the night but accused-appellant refused to take food. After taking food, both brothers, sister-in-law and mother of PW-3 fell down, when PW-3 asked accused-appellant to see what is happening, whereupon he replied that she will also fell down quickly since he has given poison in the vegetable and since children had already taken food, otherwise they would have also met the same fate. PW-3 also feeling unconsciousness, ran and reached the Hotel of father of Dheeraj and told him that something has happened to his mother and thereafter she gained unconscious. She became consciousness at Rabartsganj Hospital.
(XIII) The motive was that Monika earlier married to one Heera Maseeh and Johny, Toni and Manisha were born, out of said wedlock. Nand Lal Chaubey married Monika when she had above three children. He subsequently, also contracted another marriage with Zamila Khatoon.
(XIV) The factum that death of three has occurred due to poison is proved by medical and viscera report.
(XV) PW-5 said that all five persons, who have consumed poison reached Hospital at around 10:00 PM in the night and accompanied by complainant Smt. I. Soloman and accused-appellant, Nand Lal Chaubey. Three of them had already died before reaching Hospital and Manisha and Johny were unconscious. The two persons accompanying patients informed that poison has been consumed whereupon information was given to Police by PW-5 in writing at 11:00 p.m. in the night. Statement of Manisha was recorded by Magistrate on 28.1.2007. In viscera report 'aluminium phosphide' poison was found.
(XVI) PW-7, Arif besides other, said that Johny and Manisha, after getting well, told that poison was mixed in the food by accused-appellant. He was requested to take food but refused. He also stated that out of wedlock of Monika and Nand Lal Chaubey, there was no issue.
(XVII) Death of Bitch and Puppies, who consumed remaining food, due to poison of aluminium phosphide has been proved by PW-8, who conducted post-mortem of Bitch and puppies.
(XVIII) PW-13, who also fell ill due to poison but survived has also supported and fortified version of PW-3, Manisha (his sister) and has proved that for some time when all other family members were not present in the house after preparation of food, Nand Lal Chaubey alone was present there.
(XIX) Trial Court, therefore, said that Nand Lal Chaubey was present at the time when incident took place. He had motive. He was the only person who could have mixed poison in the food and It is fortified by the fact that, all other family members when took food, though it was also served to him but he did not eat. Therefore, prosecution has proved its case beyond reasonable doubt and held him guilty.
28. Aggrieved by this judgement, present appeal has been filed.
29. We have heard Sri Abhay Kumar Singh, learned Counsel for appellant and Sri Rishi Chaddha, learned A.G.A for State-respondent at length and gone through the record carefully with the valuable assistance of learned Counsel for parties.
30. Learned counsel for accused-appellant, assailing the judgement, contended :-
(i) There is no eye witness to prove that accused-appellant mixed poison in the food.
(ii) No body has seen accused-appellant when came to the house, carried with him any poison and mixed the same.
(iii) The mere fact that accused-appellant did not take food when other family members took food, is a co-incident and for that reason alone, it cannot be said that the accused-appellant is guilty of mixing poison in the food, to cause death of three family members including his wife Monika.
(iv) Accused-appellant himself took all the ailing persons to Hospital by hiring a Jeep. He first rushed to the place of complainant, who was a Supervisor in Primary Health Centre and could have given a better advice in the matter. He himself sent an application informing about the incident to police which has been proved by husband of PW-3.
(v) It has not been proved as to which food item contains poison.
(vi) The entire prosecution story implicating accused-appellant is founded on conjunctures and surmises.
(vii) There was no reason for the accused-appellant, who was continuously trying to have cordial relations with Monika and her children, to make any attempt for their death and the alleged motive is nothing but a sheer conjuncture on the part of complainant and other witnesses having no substance.
(viii) F.I.R. has been lodged with a long delay which shows that the incident has subsequently been manipulated and is an after thought and with due consultation and advice.
(ix) The alleged second marriage of accused-appellant has not been proved by adducing any evidence.
(x) PW-5 said that kind of poison found in the food smell so much, that if mixed in food, one may not take the food due to smell. An otherwise view expressed by another witness has been accepted by Court below without giving any reason for rejecting opinion of PW-5.
(xi) No forensic expert in this regard has been examined.
(x) Prosecution is not based on any ocular version but it is a case of circumstantial evidence having no complete chain but there are much gaps, therefore, conviction of appellant is bad in law.
(xi) Cake was brought by Johny. It was also recovered from the place of incident vide Ex.Ka-24. It has not been examined, whether said food item (Cake) which was consumed by all family members except accused-appellant, was itself poisonous or not. Therefore, there was every possibility that poison may have been in the cake which was consumed by all family members and resulted into death of three family members.
31. Learned AGA on the contrary submitted that accused-appellant was present on the spot. Admittedly when food was being cooked, kept after cooking and other family members went out side the house, accused-appellant continued to remain thereof. All family members took food except appellant though it was served to him which shows that food item(s) contained poison to the knowledge of accused-appellant, hence, he did not eat. This shows his complicity. His relation with Monika were strain since out of first marriage she had three children of substantial age and as per PW-3, he did not like those children. Death of three persons has been proved due to poison and there was none else except accused-appellant, who could have committed the crime, therefore, chain of circumstantial evidence is complete and he has been rightly convicted by Court below.
32. In the light of rival submissions, we have to examine, "whether it can be said that accused-appellant has committed murder of three of his family members and injured two others by administering poison and chain of circumstantial evidence proved by prosecution is complete so as to lead an interference of guilt against accused-appellant only and none-else, and prosecution has successfully proved its case beyond reasonable doubt."
33. Some facts which are not disputed before us, and learned counsel for the appellant has also not raised any serious objection thereto, are :-
(i) Food items, all or some of them or any one of them contained poison, 'aluminium phosphide'.
(ii) The food was taken by five members of family, three of them died and two became seriously ill but subsequently, recovered.
(iii) Food remains were eaten by bitch and puppies, present in the house, and they also died of the aforesaid poison.
(iv) The sample of vomit collected by police shows presence of same poison i.e. aluminium phosphide.
(v) Three persons, namely, Monika, Gudiya @ Beby and Toni died before reaching hospital because of poison.
(vi) When family members were taken food, accused-appellant was present in the house but had not taken meals.
34. Therefore, the place at which offence was committed, i.e. poison was mixed, was the house, where food was cooked and kept and death took place due to intake of poison through meals, in the manner as stated by prosecution in the F.I.R. as also stated by PWs-1, 3 and 13. This fact is duly proved and virtually there is no substantive argument to challenge the said fact.
35. The actual attempt of learned counsel for appellant is that accused-appellant has not mixed poison in the food and there is no evidence to prove this fact, hence, the very basis on which accused-appellant has been held guilty, being no-nest, the entire prosecution story falls and judgement in question is liable to be set aside.
36. It is no doubt true that here is not a case where anybody has seen accused-appellant mixing poison in the food item(s). In case in hand there is no eye witness of occurrence. Case of prosecution rests on circumstantial evidence and extra-judicial confession.
37. It is well settled that conviction on circumstantial evidences is sustainable; though degree of proof is slightly higher and circumstances have to be examined with due caution.
38. The circumstances from which conclusion of guilt is to be drawn must or "should be" and not merely "may be", fully established. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explicable through any other hypothesis except that the accused was guilty. Moreover, the circumstances should be conclusive in nature. There must be a chain of evidence so complete so as to not leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must show that in all human probability, the offence was committed by the accused.
39. Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, is the basic judgment on appreciation of evidence, when the case depends only on circumstantial evidence, which has been consistently relied in later judgments. In this case as long back as in 1952, Hon'ble Mahajan, J, expounded various concomitant of proof of a case based purely on circumstantial evidence and said:
"... circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved...... it must be such as to show that within all human probability the act must have been done by the accused."
40. In Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.
41. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(emphasis added)
42. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:
"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-
the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and, (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(emphasis added)
43. In C. Chenga Reddy and Others v. State of Andhra Pradesh, 1996(10) SCC 193, Court said:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " (emphasis added)
44. In Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
(emphasis added)
45. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno v. State of U.P., 2015(7) SCC 178.
46. When we analyses the evidence available in this case, in the light of above exposition of law, we find that Complainant PW-1, Smt. I. Soloman, at the time of incident was around 61 years of age and mother of deceased Monika and mother-in-law of accused-appellant. She was married to one M.J. Soloman in 1960 begot five children, comprising four daughters and one son. The son who was eldest, had already died. The second eldest daughter was Shalini married to one Anirudh Singh residing at Jangiganj, PS. Gopiganj, District Sant Ravi Das Nagar. Monika was third child, who was married to one Heera Maseeh and from that wedlock had one daughter Manisha and two sons, Toni and Johny. Gudiya (PW-2) is the fourth child i.e. third daughter and younger to Monika. she was married with Arif and residing at Babhnauli, P.S. Rabartsganj, District Sonbhadra. At the time of incident, she (PW-2) was present with her mother i.e. PW-1. The fifth child i.e. forth daughter, Guddo Maseeh, was married and residing at Bahraich. Monika separated from her earlier husband, Heera Maseeh due to matrimonial disputes, after about 15-16 years of marriage, and came to reside with PW-1. Johny, after some time went to reside with his father Heera Maseeh at Duddhi. Monika initially joined service in an Oil company and thereafter became teacher in Saraswati Gyan Mandir. During this time, she developed relations with Nand Lal Chaubey, accused-appellant and a contract marriage was solemnized by them by getting an agreement registered in the Office of Sub-Registrar, Varanasi on 13.11.1997. Monika went to live with accused appellant but subsequently, came to know that he has another wife, then left him and started living separately.
47. It is evident from record that accused-appellant used to visit her though she was residing separately. PW-1 (Complainant) has also clarified that she also married twice and from the first husband, Maris Jhon Soloman, who was working in Malaria department, she had two daughters and one son i.e. Anil Soloman, Shalini Soloman and Monika Soloman. Her husband died in 1969, whereafter, she contacted second marriage with one Arshad Alam Khan, who also later died but from second marriage, she had two daughters. Manisha (PW-3) was around 24 years old at the time of death in 2007 and was married to one Ramesh Pandey, had two children Amit and Kavita, who were residing with their maternal grand mother i.e. deceased Monika.
48. On 27.1.2007, when incident took place, PW-3 Manisha and PW-13 Johny, both were present in the house. Their evidence is crucial to appreciate as to what had happened in the matter. Prior to a day from the date of incident i.e. on 26.1.2007, Tony fell ill, after taking food. At that time also accused-appellant was present, who gave salted water to Toni which caused some relief. Ultimately, on the next day, Tony was examined in the hospital and returned there from at around 2:00 P.M. on 27.1.2007.
49. In the evening, Gudiya @ Baby (deceased) and Manisha, PW-3 cooked food. While food was in preparation, around 6:00 P.M., Nand Lal Chaubdy reached the house and placed his bed where food was being cooked and lied there. After preparing rice and pulse, two minor children of PW-3 Manisha namely, Amit and Kavita, who were also present in the house, were given food and after eating, minor children went to sleep. Vegetable was under preparation at that time. After some time, Monika went to pay some dues to a shop keeper; Tony went to the market and Manisha (PW-3) and Gudiya @ Baby (deceased) went to attend their natural call. Johny Maseeh (PW-13) also went to market to collect a cassette. Nand Lal Chaubey remained alone in the house. The family members returned after some time and took dinner around 8:00 P.M. Monika requested accused-appellant also to take dinner but he said that he has come after taking meals and does not want to eat anything. After some time of taking meals, first Johny felt uneasiness and simultaneously, Gudiya @ Baby and Manisha also started vomiting. Johny at that time, fell unconscious.
50. Manisha (PW-3) has categorically said that after taking food when her both brothers and mother fell down, she asked accused-appellant to see what is happening whereupon accused appellant replied that you (Manisha) would also fall just now since he has given poison in vegetable and if children of PW-3 would not have taken food earlier, they would also have suffered the same consequences. Statement of Manisha (PW-3) is very categorical and reads as under :-
pkScs us [kkuk ugha [kk;k Fkk eSaus Hkh [kkuk [kk;k FkkA [kkuk [kkus ds ckn esjs nksuksa HkkbZ fxj iM+s] mlds ckn eEeh fxj iM+h rks eSaus dgk fd pkScs vady th nsf[k, ;s D;k gks jgk gS\ rks pkScs us dgk fd vHkh rqe Hkh fxjksxh] D;ksafd eSaus lcdks lCth esa tgj ns fn;k gS Bhd gqvk fd rqEgkjs cPps igys gh [kk fy, ugha rks mu yksxks dk Hkh ogha gky gksrkA Chaube had not taken food. I too had taken food. After taking their meals, both my brothers fell down; thereafter, my mother fell too. On this, I stated to Chaube uncle, "Look, what is happening?" Chaube replied, "You will fall too, because I have poisoned the sabji (cooked vegetables). It is good, your children have taken their meals earlier, otherwise they might have met the same fate."
(English Translation by Court) (Emphasis added)
51. We do not find anything in cross-examination extracted on this aspect from the statement of PW-3 to discredit her. In fact there is not even a suggestion that this statement of PW-3 is incorrect or she is making this statement to falsely implicate accused-appellant. PW-3 has admitted that she has not seen Nand Lal Chaubey mixing poison in the food but she is very categorically where said that not only he was present but despite request did not take food and when poison starts showing its effect resulting in that two brothers and mother fell down, Manisha requested accused-appellant to see what is happening, probably for help, then he replied in the manner as aforesaid. This is an extra-judicial confession which has been made before a person who himself has suffered in the same incident. Even otherwise, being a member of family, she has no reason to make a false statement against Nand Lal Chaubey, accused-appellant.
52. PW-13, who is another person, who has also consumed poison and fell ill, though subsequently, recovered. His statement regarding preparation of food, its service and the fact that Nand Lal Chaubey did not take food, though requested, corroborate PW-3.
53. Record show that at the time when family was taking dinner in the night, six members were present. Three of them have died. One is accused-appellant himself and two are PW-3 and 13, who have deposed against accused-appellant and supported prosecution version. There is not even a suggestion by accused-appellant that poison could have been mixed in the food by anyone else. It is he who was present in the house. Further, as per statement of PW-3 and 13, present in the house, for a short time, after preparation of food, and before taking meals, all family members except accused-appellant went out of the house, hence it is accused-appellant only who had and could have mixed poison in the food.
54. Accused-appellant in his statement has admitted that he immediately sought to arrange a vehicle to carry all the family members to hospital and at around 9:30 reached the house of PW-1 at Primary Health Centre, Kakrahi. This also shows that he was present in the house when incident took place. That being so, onus lies upon him to prove that poison was mixed by some one else and not by him and here presumption under Section 106 of Evidence Act will stand attracted which has to be discharged by accused-appellant but he has adduced in evidence at all.
55. We are also satisfied that there was enough motive available to accused-appellant to commit offence inasmuch as Manisha, Johny, Toni, three eldest children, were born from the wedlock of first marriage of deceased Monika. Manisha (PW-3) was even already married in July, 1997, when accused-appellant contacted registered marriage with Monika in 1999. She (PW-3) has said that accused-appellant did not like her and her brothers and always said that they should go back to their father, Heera Maseeh. Her statement, in examination-in-chief, reads as under :-
uUnyky pkScs eq>s vkSj esjs HkkbZ dks ilUn ugha djrk Fkk dgrk fd rqe yksx vius cki ghjkelhg ds ikl pys tkvksA tkWuh dqN fnu ds ckn ghjk elhg ds ikl pyk x;k FkkA Nandlal Chaube did not like me and my brother. He used to say, "You should return to your baap (father) Heera Masih". After some days, Johnny returned to Heera Masih.
(English Translation by Court)
56. On this aspect also virtually there is no cross-examination and we find nothing to contradict the said statement or to disbelieve it.
57. Even PW-13 in his examination-in-chief, has said that after marriage with Monika (deceased), accused-appellant sent him (Johny PW-13) to Duddhi and there he started living with his father. Relevant extract of his statement reads as under :-
uUnyky pkScs esjh eEeh eksfudk o ge yksxksa dks lkFk ysdj e/kqiqj esa vkdj jgus yxsA eq>s uUnyky pkScs us cl esa cSBk dj nq)h Hkst fn;k FkkA nq)h esa eSa vius ikik ds lkFk jgus yxkA Nandlal Chaube having taken my mother Monika and us, came to Madhupur and started living there. Nandlal Chaube having made me sit in a bus sent me off to Duddhi. I started living with my father in Duddhi.
(English Translation by Court) (Emphasis added)
58. It shows that what has been said by PW-3 stand corroborated by PW-13 that it is the accused-appellant who sent Johny PW-13 to stay to go Duddhi and stay with his biological father i.e. Heera Maseeh. This support to the statement of PW-3 that accused-appellant dislike them.
59. A suggestion has been made that Johny (PW-13) brought the cake which was also taken by other family members and the same was recovered vide Fard Memo (Ex.Ka-4) but that has not been examined.
60. However, we find difficult to accept it for the reason that PW-13 has stated that cake has been taken by all the family members at around 2:00 PM in the day and incident has taken place after taking dinner in the night. Therefore, cake has not resulted in anything but it is the food which was taken by three deceased, PW-3 and 13 which caused their illness wherein three of them died. Relevant statement of PW-13 with regard to cake reads as under : -
tks dsd eSa ysdj vk;k Fkk] ifjokj ds lHkh yksx [kk;s Fks] uUnyky ugha [kk, FksA ifjokj ds lHkh yksx 2 cts ds vkl ikl dsd [kk, FksA All family members except Nandlal had eaten the cake which I had brought along with me. All family members had taken cake at around 2:00 O'clock.
(English Translation by Court)
61. The collection of vomit food, items and viscera testing, all relevant documents have been proved and chemical examination has also proved. Presence of poison i.e. 'aluminum phosphide' in Forensic report is also proved. On this aspects, nothing has been said by learned counsel for the appellant and he has not disputed these facts.
62. In this backdrop, we find that chain of circumstances is complete to prove that it is only accused-appellant, who can be said to be guilty in the matter and none else. Accused-appellant came to the house of deceased Monika and other family members on 27.1.2007 at around 6:00 PM. He prepared his bed in the kitchen / place where food was being cooked and lied down thereat. At that time vegetable was being cooked. After cooking the food, other family members went outside the house for one or the other reason. Accused-appellant alone remained at the place where cooked food was kept. After sometime, around 8:00 PM, all the family members, namely, Monika, Tony, Gudiya @ Baby, (all deceased); Manisha and Johny (PWs-3 and 13) had dinner. Accused-appellant was also requested to take food but he denied and did not take meals. Five persons, who took meals, three of them fell down and remaining two also started getting uneasy and unconscious. PW-3, who was at that point of time, lesser ill than others, asked accused-appellant as to what is happening whereupon he replied that he has mixed poison in the vegetable and very soon she (PW-3) will also fell down. He went further to say that two miner children of PW-3, if already had not taken food, would have met the same fate. This statement of PW-3 which can be taken note as extra-judicial confession of accused-appellant also proves that the poison was mixed by accused-appellant when he was present in the house. Two minor children ate only pulse and rice, since vegetable was not ready at that time. After cooking food subsequently five family members went out of house. Two minor children were sleeping. Accused-appellant alone was present in house. After dinner, out of five, three of them died before reaching hospital and PWs-3 and 13 remain seriously ill. PW-13 regained his conscious after about 4-5 days.
63. The defence of accused-appellant that he had taken all the five persons to his mother-in-law and thereafter they were taken to hospital, is only a alibi inasmuch as all the five had already fallen unconscious. The accused-appellant thought that all have died and this is what he told to complainant when reached her house, but to his misfortune, in the hospital he found that only three have died and two subsequently recovered.
64. We asked learned counsel for appellant as to when the facility of telephone was available in the house, why accused-appellant immediately did not inform police or call for an Ambulance or even the Complainant, when family members started to have adverse effect of poison; and why he lost / consumed time, spending more than 1 -1/2 hours, by taking them first to residence of his mother-in-law, to which we did not receive any reply. It is no doubt true that non-availability of defence to accused-appellant will not absolve prosecution from its responsibility to prove the guilt beyond reasonable doubt but in the present case, in the backdrop of facts already discussed, we are examine conduct of appellant also which gives no confidence upon his defence that he has not done anything and instead attempted to save all the family members.
65. In fact in his statement under Section 313 Cr.P.C., he has taken a defence that he has made a complaint against complainant in 2006 on account whereof she has falsely implicated him. Further that he came to know that before his marriage with deceased, Monika, about 20 years earlier, was married with one Shyam Bihari and on account thereof he separated from Monika which has caused enmity with Informant but to prove this fact that Monika was married to some Shyam Bihari, no evidence has been brought on record. The statement under Section 313 Cr.P.C. is nothing but virtually a denial on every aspect, except question no. 1 where he has admitted marriage with deceased Monika. He has denied even question 13 that he brought all the ailing persons to the residence of Informant on 27.1.2007 at around 9:00 PM, telling that they have consumed poison voluntarily and are dying and thereafter when they were taken to hospital three of them were declared dead.
66. We find an independent witness, PW-5, doctor who was posted on emergency duty at District Hospital Rabartsganj, was said that all five persons were brought for treatment by Smt. I. Soloman and Nand Lal Chaubey and they told that they have consume poisonus substance. Thereafter, he (PW-5) sent information to In-charge Inspector Rabartsganj vide Ex.Ka-8 and then examined patients brought for treatment, out of whom three were already died and two were admitted in unconscious stage but late referred to Banaras Hindu University on 28.1.2007 for further treatment. This shows that accused-appellant was present in the house. He had taken all the five members first to the residence of PW-1 and thereafter accompanied PW-1 to hospital but even this fact he has denied while answering question 13 which shows an otherwise conduct of appellant and supports prosecution version that it is the accused-appellant, who, when found opportunity in the house when he was alone, and cooked food kept thereat, mixed poison and thereafter admitted this fact when five members of family after taking food started feeling effect of poison and PW-3 sought help of accused-appellant, since he knew that food contained poison, he did not consume it.
67. Much stress has been laid by learned counsel for accused-appellant that he himself sent an application on 28.1.2007 (Ex.Ka-15) to Police Station Ahiraura, District Mirzapur which was taken by PW-7 Arif and has been proved by him. If accused-appellant would have committed crime, he would not have informed police on his own and this is a very important aspect to show that accused-appellant has not committed any crime. Instead, the poison has been taken by family members either due to mistake on their part or in some other manner.
68. At first flush, the argument appears to be quite attractive but on a serious consideration, we find apparent shallowness and an attempt on the part of accused-appellant to cover up the matter. Incident took place on 27.1.2007, at about 8:00 or 8:30 PM as above discussed, accused-appellant under the impression that all five family members have died or dying took them to the place of informant i.e. his mother-in-law (PW-1) and told that five family members have consumed poison and are dying. Thereafter, both of them carried ill fated five family members to District Hospital and reached thereat around 10:00 PM. PW-5, Doctor, who was on emergency duty in District Hospital, has clearly said that he, after receiving five persons having consumed poison, out of whom three had already died, sent information to police in writing at 11:00 PM, in the night, and thereafter, statement of Manisha, PW-3, who also had consumed poison, but survived, was recorded by Magistrate on 28.1.2007. Thus, police was already informed of the incident by PW-5 in the night of 27.1.2007 and therefore, alleged information given by accused-appellant on 28.1.2007 is nothing but an afterthought and to create an alibi to cover up the issue.
69. Moreover, even a perusal of application (Ex.Ka-15) shows that appellant mentioned therein that family members when taking meal, they offered the same to accused-appellant which he refused but then he was offered cake, he wanted to eat but at the same time elder son Johny fell down and became unconscious, hence accused-appellant became nerves, called for help of neighbour, and after arranging a vehicle brought poison affected family members to the hospital.
70. The fact stated in the application neither have been proved by accused-appellant by adducing any evidence and contrary evidence is available on record demonstrating falsity of the contents of said application.
71. PW-13 i.e. Johny himself has stated that he brought cake in the afternoon and all the family members ate cake at 2:00 PM and it was not eaten by accused-appellant. PW-3 has also said that in the evening when family members started taking meal, accused-appellant was offered meal which he refused. His (accused-appellant) story that the cake was offered to him which he could not eat sicne in the meantime, Johny fell down, is clearly an attempt on his part to shift suspicion that probably cake contained poison and not evening meals i.e. vegetable prepared in the evening.
72. Moreover, remains of vegetable has already been examined forensically and poison has been found therein, therefore, also the otherwise stand sought to be taken by accused-appellant is clearly incorrect. He has also not stated in the application sent on the next date i.e. 28.1.2007 that he brought ill fated family members affected by poison firstly to the place of Informant, PW-1, and thereafter, they went to hospital. In the application, he has said that he went to hospital which is again not correct. Therefore, this application, in our view, does not support the stand taken by accused-appellant particularly the facts stated therein are inconsistent to the abundance of otherwise evidence available on record. Accused-appellant on his own has not made any attempt by adducing any evidence to prove the facts stated in said application. Said application was made on his part to create an alibi for himself but we find that in the light of ocular version and clear and categorical statements of PWs-3 and 13 i.e., two poison affected family members, the stand of the accused-appellant is wholly untrustworthy.
73. So far as argument with regard to delay in lodging FIR, it is already on record that complainant sought to lodge report in police but it was not registered whereafter she approached higher authorities, then filed application under Section 156(3) Cr.P.C. and only with the intervention of Court, F.I.R. was lodged and investigation was conducted. It shows that there is no delay and in any case, it stands explained satisfactorily and therefore, has no otherwise effect on entire prosecution case.
74. In view of the above discussions, we are clearly of the view that prosecution has successfully proved its case beyond reasonable doubt and therefore, Trial Court has rightly held accused-appellant guilty and convicted for the offences under Sections 302 I.P.C. for committing murder of Monika, Tony, Gudiya @ Baby (deceased) and under Section 307 I.P.C. for attempting to cause murder of PW-3 and 13.
75. Coming to the question of sentence, it is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
76. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant-Nand Lal Chaubey by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.
77. In view of above discussion, the appeal lacks merit and is dismissed. Impugned judgement and order dated 27.08.2011 passed by Special Judge (E.C. Act), Mirzapur in Sessions Trial No.237 of 2007, under Sections 302 and 307 IPC., Police Station Ahiraura, District Mirzapur, is maintained and confirmed.
78. Lower Court record along with the copy of this judgment be sent immediately to Court and Jail Superintendent concerned for necessary compliance and to apprise the accused forthwith. Compliance report be also submitted to this Court.
Order Date :- 19.7.2019 I.A.Siddiqui/Manoj