Criminal Appeal No.486 of 2006

4th July, 2019.

Petitioner Counsel: Mr. A.Y. SHARMA
Respondent Counsel: Mr. V.P. GANGANE

Cases Cited:
Mohd. Aslam Vs. State of Maharashtra, (2001) 9 SCC 362 [Para 23]
Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi), 2005 ALL MR (Cri) 1775 (S.C.)=(2005) 5 SCC 258 [Para 23]

JUDGMENT

JUDGMENT :- Appellants, who are original accused nos.1 and 2, are challenging the judgment and order of conviction passed by learned 1st Ad hoc Additional Sessions Judge, Gondia dated 30.08.2006 in Sessions Trial No.73/2005. By the said, the Court below convicted the appellants for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code (IPC) and directed to suffer rigorous imprisonment for five years and to pay a fine of Rs.2,000/-, in default to suffer rigorous imprisonment for two months. They are also convicted for the offence under Section 448 read with Section 34 of the IPC and on that count, they were directed to suffer rigorous imprisonment for three months and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for 25 days.

2. In nutshell, the prosecution case is as under:

(a) On 05.09.2005, when Umakant Kashiramji Sarode, a Police Sub Inspector (PSI) was present in Police Station, Gondia (Rural), at that time, Dulichand Lilhare (PW1) came and lodged his oral report (Exh.-16). It was noted down as per the say of Dulichand. On the basis of oral report, PSI Sarode registered a crime against the appellants and one Laxmichand vide Crime No. 157/2005 for an offence punishable under Sections 448, 307 read with Section 44 of the IPC. The printed FIR is at Exh.-17.

(b) As per the oral report dated 05.09.2005, Retlal Ramchandra Lilhare (PW2) is son of complainant's elder brother. He stays in the house of his mother in law along with his family. FIR further recites that about two years ago when the complainant was working as watchman in nursery of Gram Panchayat, that time a person from Sioni committed theft of bamboo. Former Sarpancha Yele caught the said person and imposed fine amount of Rs.1,000/-. Similarly, one Mohan also committed theft of Bambu from the nursery. The FIR states that owing to the matter, both the appellants quarreled with him and threatened him that they will cut him like a goat. According to the FIR, since then the families are not on talking term. It is also stated in the FIR that on 31.08.2005, there was a public auction of goat in the village. At that time, the appellants came under the influence of liquor and caught hold of collar of Madhaorao Thakare. That time, Retlal (PW2) intervened in the matter. At that time, accused no.1 gave threat to him and left the place.

(c) FIR further states that on 04.09.2005 in the night when Retlal (PW2) and his son Mannulal (PW3) were sleeping along with their families, appellants and Laxmichand came and they administered some poisonous substance to both of them.

(d) After registration of offence, the investigating officer commenced the investigation. He went to Gondia hospital where Retlal and Mannulal were admitted. He obtained medical certificate from Dr. Agrawal (PW8). He also wrote a letter to the Executive Magistrate for recording dying declaration of the persons admitted. The Executive Magistrate, Gondia recorded dying declaration of both the persons in Gondia Hospital. He, thereafter, recorded statements of Retlal and Mannulal. He also visited the spot of the incident and prepared spot panchanama (Exh.-30). He also seized one bed-sheet under seizure panchanama (Exh.31). He then arrested the accused persons.

(e) During the course of investigation, according to the evidence of the investigating officer, on 08.09.2005, accused no.1-appellant gave his disclosure statement and agreed to show the place where he concealed polythene bag containing poison. Admissible portion of memorandum statement is at Exh.-27 and recovery panchanama is at Exh.-28. He also seized clothes of the accused persons. He sent muddemal articles to Chemical Analyser (CA) under requisition (Exh.-46). CA report (Exh.-47) is available on record. On completion of investigation, he filed chargesheet in the Court of learned Magistrate.

(f) Learned Magistrate, in whose Court the chargesheet was filed, found that the offence is exclusively triable by the Court of Sessions. Resultantly, the case came in the Court of 1st Ad hoc Additional Sessions Judge, Gondia, who framed the charge against the appellants and one Laxmichand for an offence punishable under Sections 448, 307 read with Section 34 of the IPC. The prosecution has examined in all ten witnesses and also relied upon various documents such as various seizure memos, CA reports, etc. to bring home guilt of the accused persons.

(g) Learned Judge of Court below acquitted Laxmichand, however, convicted the appellants. Hence this appeal.

3. Heard Mr. Sharma, learned counsel for the appellants and Mr. Gangane, learned A.P.P.for the respondent-State. Both the learned counsel took me through the record and proceedings.

4. It is the submission of learned counsel for the appellants that the appellants are falsely implicated in crime. He submitted that there is a delay in lodging the FIR, which is fatal. It is also his submission that the appellants are roped in only on the basis of the suspicion in view of their long standing enmity. He submitted that even according to the prosecution, the incident in question has occurred at 01.30 a.m. and in absence of any source of light, it is really difficult to accept the version of Retlal (PW2) and Mannulal (PW3) to notice presence of the appellants. He submitted that therefore this is a fit case wherein benefit of doubt to be extended in favour of the appellants and they be acquitted.

5. Per contra, learned A.P.P. vehemently opposed the plea to allow the appeal and submitted that in view of CA report (Exh.-47), it is clear that stomach wash of Retlal and Mannulal was found to be containing poisonous substance. He submitted that if map (Exh.-33) is perused then it will show the existence of light. He, therefore, submitted that the prosecution has proved recovery and the contents of polythene bag and the poisonous substance which was found in the stomach wash of the injured person are similar. He, therefore, submitted that the appeal be dismissed.

6. Dr. Sanjay Agrawal (PW8) runs a hospital at Gondia, which is known as Gondia Hospital. His evidence would show that on 05.09.2005 at 05.45 a.m. some persons brought Retlal (PW2) and Mannulal (PW3) and on making inquiry, they disclosed that some poisonous medicine is administered in their mouths. He admitted both the patients and immediately give an intimation (Exh.35) to the police about the same. He also examined Mannulal (PW3). On examination, he noticed smell of Kerosene. He immediately gave required treatment and took stomach wash in bottle. He sealed the bottle. Similarly, he took the stomach wash of Retlal and also sealed and handed it over to police. PSI Sarode (PW10), seized the bottles containing stomach contents under seizure panchanama (Exh.-32). The said was sent to CA. CA report (Exh.-47) is available on record. As per the said report, the stomach contents show the detection of Pyrethroid Insecticide Cypermethrin.

7. From the result of the chemical analysis in respect of the stomach contents of Retlal (PW2) and Mannulal (PW3), there cannot be any doubt in anyone's mind that when they were admitted at Gondia Hospital, they were brought for treatment of poisonous substance.

8. According to the prosecution, the appellants are the persons who administered poisonous substance to these two injured. In order to bring home the charge in that behalf, the prosecution is relying on evidence of Retlal (PW2), Mannulal (PW3) and Suresh (PW4), to show presence of appellants at the time of incident in the house of Retlal. The prosecution is also relying upon the recovery made at the behest of appellant no.1 from the place within the knowledge of appellant no.1 and from there, a plastic carry bag was seized under seizure panchanama (Exh.-28) and it was also sent to CA and the reports of the CA show that very poisonous substance is found in the stomach wash of the injured.

9. Before appreciating the prosecution case, it will be required to mention here initially that there was a long standing dispute in the families of injured and the accused persons. Of course, enmity is a double edged weapon, which can be used to attribute motive against the accused persons. At the same time, it can also work as a shield for accused persons that due to the said they are falsely implicated in the crime. Keeping this principle in mind, now let us reappreciate the entire prosecution case.

10. The time of incident is 01.30 hrs. of the night intervening 04.09.2009 and 05.09.2009. The place of incident is house of Retlal. It is also admitted position that Retlal (PW2) resides with his other family members and Mannulal (PW3) in the house and at the relevant time, they all were present and they were sleeping.

11. Though the FIR is lodged by Dulichand (PW1), he is not an eye witness to anything that had happened at the relevant time on the spot of the incident. Though, he made a very tall claim in the evidence that Retlal told him that accused persons have administered poisonous substance to Mannulal and ran away, there is no corroboration to his claim by Retlal. This prosecution witness has only set the criminal law in motion by lodging oral report (Exh.-16) on the basis of which, crime was registered.

12. Printed FIR shows that information was received at 13.05 hrs. on 05.09.2005. The learned counsel for the appellants, therefore, submitted that there is a delay in lodging the FIR, which is not explained. I would like to make my comment on this submission in the latter part of this judgment.

13. Retlal (PW2) and Mannulal (PW3) are the victims in this prosecution case. Evidence of Retlal would show that at the relevant time, all his family members were sleeping in chhapri. He heard shouts of his son Mannulal and, therefore, he got up. That time, he noticed some poisonous liquid was dropped on his forehead and body. His evidence further shows that Mannulal told him that a poisonous liquid is administered to him. According to this prosecution witness, he saw all the accused persons running away from the house. He, thereafter, raised shouts. Some neighbourhood persons gathered and they brought them to Gondia hospital. His evidence would show that at the time of incident, he was wearing baniyan and underwear.

14. Evidence of Mannulal (PW3) would show corroboration to the evidence of Retlal (PW2) that on the date and time of incident, he along with his other family members were sleeping in chhapri. His evidence shows that someone had pressed his hands and legs and someone put hand on his eyes and someone has forcibly opened his mouth and administered poisonous medicine. Therefore, he started running away and raised shouts. According to his evidence, three persons were there and one of them was accused no.1-Tilakchand. His evidence further shows that his father got up and raised shouts on which neighbours also came and they were taken to the hospital. His clothes were also seized during the course of investigation.

15. Common thread, which is found in the cross-examination is that one Ramkali resides near the house of Mannulal. Mannulal and Ramkali were having love affair. Of course, the said suggestion was denied. It was also suggested that they ran away from their respective houses and when this fact came to the notice of Retlal, he bet Mannulal and, therefore, he consumed poison and thereafter Retlal also consumed poison. In order to save their own skin, they lodged false report against the accused persons. All the suggestions made in their cross-examination were stoutly denied by these two prosecution witnesses.

16. In our criminal jurisprudence, burden to prove a case beyond reasonable doubt rests on the shoulder of the prosecution. The accused is entitled to take many defences. He may prove or he may not prove his defence. However, the prosecution cannot take advantage of any weakness in a defence case and the burden rested on the shoulder of the prosecution never gets lightened.

17. Both the injured did not state in their evidence that they found accused persons administering poisonous substance to them. In fact, Retlal's (PW2) evidence would show that he saw some poisonous liquid dropped on his head and his body. He does not state that someone administered any poisonous substance to him forcibly. Mannulal (PW3) states that somebody pressed his legs and somebody pressed his hands and somebody administered poisonous substance to him. He does not attribute any specific role to any of the accused. Evidence of both these prosecution witnesses would show that they saw accused persons running away from the house.

18. None of these witnesses did state that they notice presence of the accused persons who administered poisonous substance to them in the light. We cannot forget that the incident had occurred at 1.30 in the night. Spot panchanama (Exh.-30) is conspicuously silent that in the chhapri, where the incident had occurred, there was an electric connection and/or any other source of light. Further, even while drawing the spot panchanama, traces of earthen lamp were not found by the investigating Officer. Even there was no suggestion that such an earthen lamp was in burning state in the night.

According to learned A.P.P. that was the source of light. Spot panchanama (Exh.-33) is available at page no.65 of the paper book. Perusal of the said shows existence of electric pole more than 30 meters away from the chhapri. The map is totally silent as to whether on the electric pole there was any light and/or on the said day it was illuminated. When the injured persons are not stating before the Court that they noticed the presence of persons who administered poison to them in the light illuminated from the electric pole, in my view, accepting arguments of the learned would be far fetched.

19. According to both injured, in chhapri apart from them, other family members were also sleeping. As per Retlal, he wokeup due to shouts of Mannulal. In this case, no other family member is examined. Even though Retlal states that neighbours also gathered there, none of them is examined.

20. In view of the evidence of these two prosecution witnesses, the fact that who were the persons who administered the poisonous substance, becomes very doubtful and in this background the long standing dispute between the two families plays a very important role and the tendency on the part of the injured to implicate their rival is not completely ruled out.

21. Insofar as delay aspect is concerned, merely because there is a delay, that itself is not a conclusive proof that the prosecution case is untruthful. However, the prosecution must explain the delay. There cannot be any straight jacket formula as to what period of delay should be said to be fatal to the prosecution and it depends on facts of each case.

22. In the present case, as per evidence of Dr. Agrawal (PW8), the injured were brought to hospital at 5.45 a.m. Even as per evidence of Dulichand (PW1), he was amongst others who admitted the injured in the hospital. Hospital of Dr. Agrawal is situated at Gondia. On 05.09.2005 at 5.45 a.m. Dulichand was in Gondia city. As per his FIR, he was disclosed the names of the culprits. His evidence does not show that after admission of injured he was asked to stay in the hospital. The Police Station is situated at Gondia. The FIR is lodged at 13.05 hrs. on 05.09.2005. There is no explanation either in the FIR or during evidence as to why Dulichand has kept mum though he knew names of the accused persons at the time of admission of the injured in the hospital. In this backdrop, the noting and evidence of Dr. Agrawal (PW8) is very important. His noting (Exh.-36), and his evidence show that when he asked history to patients, they disclosed that somebody has forcibly administered poison to them. Thus, at very first stage, when an inquiry was made by the Doctor about the persons who administered poison to them, both the injured, as per evidence of Dr. Agrawal, disclosed that "somebody", without naming the present appellants as the persons who have administered poison. Evidence of Dr. Agrawal is corroborated by contemporaneous document (Exh.-36). These aspects were not properly considered by the learned Judge of the trial Court while convicting the accused persons.

23. Another piece of evidence that the prosecution is relying is the recovery of polythene bag containing traces of poisonous substance, identical to that found in the stomach wash of the injured. Yograj (PW6) and Popesh (PW7), who are the panchas on seizure memos (Exhs. 25 and 26) and Memorandum statement (Exh.-27) of accused no.1-Tilakchand have turned hostile. The recovery cannot be said to be inadmissible in view of the fact that it is also proved by the investigating officer and on the said aspect, the law is now well crystallized by Hon'ble Apex Court in Mohd. Aslam Vs. State of Maharashtra; reported in (2001) 9 SCC 362. Though, this document is admissible, how much weightage should be given by the Court is to be seen in the following circumstances, which are appearing in the prosecution case itself.

(i) The prosecution has examined Radheshyam Nagpure (PW9). This prosecution witness was examined by the prosecution to prove the spot panchanama (Exh.-30) and seizure of bed sheet from the spot under seizure panchanama (Exh.-31). Evidence of Radheshyam shows that he is an independent witness. His examination in chief itself would show that from the spot police seized one bed sheet and polythene bag containing some powder from his house. (Emphasis supplied). Seizure panchanama (Exh.31) shows that only bed-sheet was seized. Thus, this prosecution witness was not supporting the prosecution case still he was not declared hostile. In the cross-examination also he reiterated his statement, which was made in his examination in chief that after taking search, police found one bed sheet and one polythene bag containing powder and police seized those articles under seizure memo. In spite of that, in order to clear any ambiguity, even this witness was not reexamined by the prosecution.

(ii) What importance should be attached to the evidence of such a witness is answered by the Hon'ble Apex Court in the case of Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi); reported in (2005) 5 SCC 258 : [2005 ALL MR (Cri) 1775 (S.C.)], wherein in paragraph 29, it is held thus:

"29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW1. He, however, did not support the prosecution. The prosecution never declared PW1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence."

(iii) Thus, from the aforesaid dictum, it is crystal clear that accused is entitled to rely on such an evidence. That evidence shows that a polythene bag containing powder was seized from the spot of the incident itself. However, said fact was suppressed by the prosecution.

(iv) The accused persons were arrested on 05.09.2005. They were in police custody remand of the investigating officer. According to the evidence of the investigating officer, on 08.09.2005, accused no.1 gave discovery statement leading to the recovery. The timing of memorandum statement (Exh.-27) would show that the statement was recorded at 12.30 hrs. whereas recovery panchanama (Exh.- 28) was completed at 13.00 hrs. In this backdrop, this Court would like to mention that till that time, though accused persons were in custody of the investigating officer, he did not find it necessary to seize their clothes which, according to the prosecution, were on their person at the time of commission of offence but after recovery on 08.09.2005, their clothes were seized under seizure panchanama (Exh.25) in respect of the accused Tilakchand and seizure panchanama (Exh.-26) in respect of accused Hansalal at 18:15 hrs.

(v) Further, Exh.-28, Exh.25 and Exh.-26 seizure panchanama of clothes of the accused persons do not show that they were sealed at the spot. Neither the investigating officer is making a positive statement in that behalf. Law on this aspect is well crystallized by various decisions of this Court. In absence of sealing, there is every possibility to spread the incriminating material on the articles which were seized during the course of investigation. Further, the CA report does not show traces of poisonous substance on the clothes of accused no.1.

24. In view of the aforesaid, I am of the opinion that the Court should not attach much importance to the recovery made at the behest of appellant no.1.

25. On reappreciation of the entire prosecution case, there is no doubt in my mind to record a finding that firm finger of guilt cannot be shown to the appellants and when there is a doubt in the prosecution case, it is the principle of law that benefit has to be extended in favour of the accused persons. Consequently, I pass the following order.

ORDER

(i) The appeal is allowed.

(ii) Judgment and order dated 30.08.2006 passed by 1st Ad hoc Additional Sessions Judge, Gondia in Sessions Trial No.73/2005 is hereby quashed and set aside.

(iii) The appellants are acquitted of the offence punishable under Sections 448 and 307 read with Section 34 of the Indian Penal Code.

(iv) Bail bonds of the appellants, who are on bail, stand cancelled.

Appeal allowed.