Durgan Singh Gond vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 27/05/2014 passed by learned Second Additional Session Judge, Manendragarh, District Koria in Session Trial No. 62/2012 whereby he has been convicted for offence punishable under Section 302 of IPC and has been sentenced to undergo R.I. for life with fine of Rs. 2000/- in default of payment of fine, further S.I. for one year.

Case of the prosecution :-

Case of the prosecution, in brief, is that on 02/06/2011, the appellant herein administered insecticide endosulphane to Savita, daugther of complainant Ghurau Ram (P.W.-1) and caused her death and committed the aforesaid offence.

Further case of the prosecution is that marriage of deceased Savita was solemnized with Kiran Kumar (P.W.-11) and after marriage, she was staying with him but after some days since she became unwell, Kiran Kumar (P.W.-11) took her to Lakhanpur for treatment on 12/03/2012, however, deceased Savita got lost in the bus stand and she could not be found. Thereafter, they got to know that deceased Savita ran away with the appellant and he has caused her death by administering poison to her. The said information was given by Ghurau Ram (P.W.-1) at Police Station Khadgawan on 14/03/2012 on the basis of which merg intimation was registered vide Ex. P/1 and the wheels of investigation started running. Summons were issued to the witnesses vide Ex. P/5 and inquest was conducted vide Ex. P/5A. Thereafter, dead body of Savita was subjected to postmortem which was conducted by Dr. R.P. Singh (P.W.-10) and as per the postmortem report (Ex. P/8), cause of death is said to be cardiorespiratory arrest due to taking up some poisonous substance. Viscera of the deceased was recovered vide Ex. P/2. First information report was registered vide Ex. P/11 and the appellant was taken into custody and from the spot, a vial of endosulphan and certain other articles were seized vide Ex. P/6. The said seized articles were sent for forensic examination and FSL report dated 28/04/2012 was brought on record in which endochloro insecticide endosulphan was found on the viscera of the deceased as well as on the vial seized from the spot. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellant abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 19 witnesses and brought on record 14 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and did not bring any document on record.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Savita to be homicidal in nature and further finding the appellant to be the author of the crime in question, proceeded to convict the appellant for offence punishable under Section 302 of IPC and sentenced him as aforesaid.

Submission of the parties :-

Mr. Shailendra Dubey, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for offence punishable under Section 302 of IPC particularly when the FSL report has though been placed on record, but it has neither been exhibited by the trial Court not has it been put to the appellant under Section 313 of CrPC by which he has suffered serious prejudice and it amounts to illegality, as such, in view of the decisions rendered by this Court in the matters of Navishchandra @ Naveshchandra Yadav v. State of Chhattisgarh Criminal Appeal No. 401/2011 decided on 09/08/2019 and Padeshvar v. State of Chhattisgarh Criminal Appeal No. 1104/2014 decided on 16/11/2022, the appellant is liable to be acquitted.

Per contra, Mr. Sudeep Verma, learned State counsel would submit that prosecution has been able to bring home the offence beyond reasonable doubt and therefore, the trial Court is absolutely justified in holding that it is appellant who is the author of crime in question and he has rightly been convicted for offence punishable under Section 302 of IPC. He would also submit that non-exhibiting of the FSL report or not putting it before the accused under Section 313 of CrPC would not help the case of the appellant as endochloro insecticide endosulphan has clearly been found in the viscera of the deceased as per the FSL report, as such, the instant appeal is liable to be dismissed.

We have heard learned counsel for the parties, considered their submissions made herein-above and went through the records with utmost circumspection.

Questions for consideration :-

The two integral questions that arise for consideration in adjudication of both these appeals would be -

(i) whether deceased Savita died on account of poison said to have been administered to her ?

(ii) Whether it was the appellant who administered the poison to the deceased and thereby, murdered her ?

Answer to Question No. (i) :-

The dead body of Savita was subjected to postmortem on the recommendation of the panchas, which was conducted by Dr. R.P. Singh (P.W.-10), who has proved the postmortem report (Ex. P/8) before the Court. After examining the deceased, he has recorded in the postmortem report that rigor mortis was present all over the body, eyes were semi-open, mouth was open and frothy fluid was present, lips were blue, fists were open and nails were blue. After the entire examination, Dr. R.P. Singh (P.W.-10) opined that the cause of death is cardiorespiratory arrest due to taking up some poisonous substance and thereafter, he took the viscera of the deceased and after packing it in a sealed plastic container handed it over to be sent for FSL and as per the FSL report dated 28/04/2012, viscera of the deceased, which was marked as Article A and B, contained organochloro insecticide endosulfan. As such, we are of the considered opinion that on the basis of the FSL report dated 28/04/2012, it has been proved beyond reasonable doubt that deceased Savita died on account of the poison administered to her which has been found to be organochloro insecticide endosulfan.

Answer to Question No. (ii) :-

In order to arrive at the answer to this question, it would first be relevant to notice a few decisions rendered by the Supreme Court which would apply to the facts and circumstances of the instant case.

In the matter of Anant Chintaman Lagu v. The State of Bombay AIR 1960 SC 500, their Lordships of the Supreme Court have laid down the parameters to be established by the prosecution in case of murder by poisoning and it has been held that the prosecution must establish in a case of poisoning that the death took place by poisoning; the accused had the poison in his possession; and that the accused had an opportunity to administer the poison to the deceased. In the aforesaid matter, the following has been observed by their Lordships :-

“The prosecution must establish in a case of poisoning (a) that death took place by poisoning;

(b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. Though these three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of doubt will have to be given to the accused person. But if circumstantial evidence, in absence of direct proof of the three elements, is so decisive that the court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it. ”

Thereafter, in the matter of Sharad Birdichand Sarda v. State of Maharashtra (1984) 4 SCC 116, which was a case of cyanide poisoning, for which, the husband of the deceased was tried for murder, their Lordships of the Supreme Court stressed that the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction. The following was thus held in paragraph 165 :-

“165. So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction :

(1) there is a clear motive for an accused to administer poison to the deceased,

(2) that the deceased died of poison said to have been administered,

(3) that the accused had the poison in his possession,

(4) that he had an opportunity to administer the poison to the deceased.”

The principle of law laid down by the Supreme Court in Anant Chintaman Lagu (supra) and Sharad Birdichand Sarda (supra) was subsequently followed in the matter of Bhupinder Singh v. State of Punjab (1988) 3 SCC 513, in which, it was held that even if there is failure of the prosecution to prove the possession of poison with the accused, the same is not fatal, if the prosecution clearly proves that it is a case of circumstantial evidence. The following has thus been held in paragraphs 26 and 27 :-

“26. The poison murder cases are not to be put outside the rule of circumstantial evidence. There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirably nor practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like any other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw from the circumstances an inference on any matter one way or the other.

The view that we have taken gets support from the decision of this Court in Ananth Chintaman Laguy v. The Staet of Bombay, AIR 1960 SC 500 where Hidayatullah, J., has given an anxious consideration to the three propositions laid down in Dharambir Singh case. The learned Judge did not consider them as invariable criteria of proof to be established by the prosecution in every case of murder by poisoning. The learned Judge said (at p. 519-520):

“It is now necessary to consider the arguments which have been advanced on behalf of the appellant. The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case. Reference in this connection is made to a decisio fo the Allhahabd High Court in Mt. Gajrani v. Emperor, AIR 1933 All 394, and to two unreported decisions of this Court in Chandrakant N Nyalchand Seth v. The State of Bombay, Criminal Appeal No. 120 of 1957 decided on Feruary 19, 1958 and Dharambir Singh v. Teh State of Punjab, Criminal Appeal No. 98 of 1958, decided on 4.11.1958. In these cases, the court referred to three propositions which the prosecution must establish in a case of poisoning; (a) that death took place by poisoning; (b) that the accused had the poison in his possession, and (c) that the accused had an opportunity to administer the poison to the deceased. The case in Dharambir Singh v. State of Punjab turned upon these three propositions. There, the deceased had died as a result of poisoning by potassium cyanide, which disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide, but held, nevertheless that the circumstantial evidence was sufficient to convict the accused in that case. This Court, did not, however, accept the circumstantial evidence as complete. It is to be observed tha the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning, because evidently if after poisoning the victim, the accused destroyed all traces of the body, the first proposition would be incapable of being proved except by circumstantial evidence. Similarly, if the accused gave a victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and poison, in fact, was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstances that the accused gave the victim something to eat and need not be separately proved.”

The learned Judge continued :

“The cases of this Court which were decided processed upon their own facts, and though the three propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that the death was a result of administration of poison (though not detected) and the poison must have been administered by the accused person, then the conviction can be rested on it. ”

The present is a case of death by poisoning which is based upon both direct as well as circumstantial evidence. In that view of the matter, the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence and which have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda (supra) in paragraph 153 are as under: -

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(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.”

Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matters of Anant Chintaman Lagu (supra) and Sharad Birdichand Sarda (supra) and particularly in the matter of Bhupinder Singh (supra), it is quite vivid that that no relationship existed between the appellant and the deceased at the time of the incident. Deceased Savita was not at all related to the appellant and she was the legally wedded wife of Kiran Kumar (P.W.-11) and after her marriage, she was residing with her husband at village Puhputra, District Sarguja and since she was unwell, her husband Kiran Kumar (P.W.-11) took her to Lakhanpur for treatment on 12/03/2012, however, when they reached there, deceased Savita got lost at the bus station and thereafter, she appeared at her father's house at 12 AM with the appellant and at that time, her sister Sangeeta Sagar (P.W.-2) and her grandmother Smt. Sonkunwar (P.W.-9) were present at the house.

A careful perusal of the statement of deceased Savita's grandmother Smt. Sonkunwar (P.W.-9) would show that she has clearly stated before the Court that on the fateful night at about 12 AM, deceased Savita came to their house along with the appellant at village Khutrapara. When she opened the door, they came inside and immediately thereafter, appellant poured some medicine in two glasses and gave one to Savita and kept the other for himself, however, when Savita drank the medicine from her glass, the appellant threw other glass outside and thereafter, Savita started crying and squirming and when her grandmother Smt. Sonkunwar (P.W.-9) and her sister Sangeeta Sagar (P.W.-2) called for help, the appellant absconded from there. She has been subjected to some extent of cross-examination wherein she has clearly stated that she has seen the appellant pouring some poison in two glasses out of which the contents of one glass was consumed by the deceased whereas the appellant had thrown the other glass outside. In the cross-examination, it has also been suggested on behalf of the defence that the deceased herself has consumed poison, however, Smt. Sonkunwar (P.W.-9) has refused and has clearly stated that appellant administered poison to the deceased. As such, nothing has been extracted from her to show that she has made contradictory statement and it cannot be relied upon.

Similarly, Sangeeta Sagar (P.W.-2), sister of deceased Savita, was also present in the house at the time of the incident. She has clearly stated in her examination-in-chief that she was sleeping when appellant and deceased Savita came to their house and when she woke up and came outside she saw the appellant throwing one glass outside and immediately thereafter, her sister Savita started vomitting and though initially she has stated that she has not seen the appellant administering poisonous substance to the deceased but later on she has stated that it is the appellant who has administered poison to the deceased due to which she started squirming and crying. Thereafter, Sangeeta (P.W.-2) snatched the mobile from the appellant and informed her father Ghurau Ram (P.W.-1), who also came to the house but then the appellant absconded from the spot. She has also stated in her statement that the vial of poison clearly showed that it was endosulphan and it was lying in the house. Pursuant thereof, she has been declared hostile and she has been permitted to ask leading question wherein she has clearly stated that when appellant and deceased came to their house, her grandmother Smt. Sonkunwar (P.W.-9) asked her sister Savita how she come late at night and where her husband was, then appellant informed her that he found Savita at the bus stand and he has come to drop her off. Thereafter, appellant took out a vial of some medicine out of his pocket and took two glasses and poured the medicine in both the glasses and gave one glass to Savita and kept the other for himself. Deceased Savita drank the medicine from her glass, however, the appellant threw the other glass outside. In paragraph 11, she has clearly stated that she has seen the vial containing endosulphan which the appellant had poured into the glasses and which was consumed by her sister Savita. As such, she has clearly supported the case of the prosecution.

Father of the deceased namely Ghurau Ram (P.W.-1) has also stated before the Court that her daughter Savita was unwell, therefore, she was brought to Lakhanpur by his son-in-law Kiran Kumar (P.W.-11) for treatment but at the bus stand she went missing and thereafter, late at night she came along with the appellant to his house and since he was not at his home, he was informed by her daughter Sangeeta (P.W.-2) that appellant had administered endosulfan to her elder sister Savita and after consuming it, she had started vommitting and was in an unconscious condition. After being informed, he immediately went to his house and found her daughter Savita lying unconsciously and froth was coming out from her mouth and the vial of endosulfan was lying in the courtyard. In his cross-examination, he has clearly supported the case of the prosecution and nothing can be extracted from him to hold that he is lying or has not supported the case of the prosecution.

As such, from the statements of the aforesaid witnesses, it is quite vivid that though appellant had no existing relationship with the deceased, yet he took her from the bus stand of Lakhanpur from the legal guardianship of her husband Kiran Kumar (P.W.-11) and thereafter, at about 12 AM, he took her to her parental house and administered poison to her on account of which, she became unconscious after vommitting/squirming immediately and it has clearly been supported by Sangeeta (P.W.-2) as well as Smt. Sonkunwar (P.W.-9).

The Supreme Court in the matter of Bhupinder Singh (supra) has clearly held that if the accused gave the victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and poison, in fact, was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstances that the accused gave the victim something to eat and need not be separately proved.

As such, though it has not been clearly established that the appellant had poison in his possession, but the aforesaid circumstances proved by the prosecution witnesses would clearly establish that it is the appellant who has administered poison to the deceased by which she died.

So far as motive is concerned, the trial Court has found the motive against the appellant to be partly established but considering the fact that appellant was not at all related with the deceased and he had no business of taking the deceased from the lawful custody of her husband and thereafter, he took her to her parental house and administered poison to her due to which she became unconscious and died, as such, it has been established that appellant had motive to commit the offence. Moreover, it has also come on record from the statement of Sangeeta (P.W.-2) that appellant wanted to marry her but since she was already married, he could not marry her and on account of that, appellant administered poison to her and caused her death as we have already held that Savita died on account of poisoning and her death was homicidal in nature.

Now, let us consider the vehement submission made by learned counsel for the appellant that copy of FSL report dated 28/04/2012, though has been brought on record, but it has neither been exhibited nor put to the accused under Section 313 of CrPC, therefore, it could not have been relied upon by the trial Court to convict the appellant.

True it is that copy of FSL report dated 28/04/2012 has been brought on record before the trial Court on 18/10/2013 in which organochloro insecticide endolsulfan has been found on viscera of the deceased (Articles A and B) as well as on the vial and two glasses seized from the spot (Articles D and E1 and E2). It is correct to say that the said FSL report has not been exhibited by the trial Court nor it has been put to the accused under Section 313 of CrPC. The FSL report dated 28/04/2012, which is a duly signed report by a scientific expert from the State Forensic Science Laboratory, is an evidence within the meaning of Section 293(1) of CrPC and it may be used as an evidence in trial by virtue of Section 293(1) of the CrPC, unless the said scientific expert is required to be examined by virtue of Section 293(1) of the CrPC, but the fact remains that the copy of the said report has to be supplied to the accused and it has to be put to the accused under Section 313 of CrPC, which has not been done in the present case.

It is well-settled law that any incriminating circumstance against the accused has to be put to the accused in his statement under Section 313 CrPC, otherwise, that piece of evidence has to be excluded from consideration because the accused did not have any chance to explain it. This principle of law has been constantly held by the Supreme Court in a catena of judgments including way back in the year 1953 in the matter of Hate Singh Bhagat Singh v. State of Madhya Pradesh AIR 1953 SC 468 wherein their Lordships of the Supreme  Court  have  held  that  any  circumstance  in respect of which the accused was not examined under Section 342 of old CrPC, it cannot be used against him.

In the matter of Harijan Megha Jesha v. State of Gujarat AIR 1979 SC 1566, the Supreme Court has held that the report of Serologist cannot be used against the accused if it has not been put to the accused in his statement under Section 342 of the old CrPC, which states as under :-

“3.... In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on his statement in order to convict the appellant particularly after he had been acquitted by the Trial Court.”

The aforesaid principle of law laid down in Harijan Megha Jesha (supra) has been followed with approval in the matter of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622.

Very recently in the matter of Raj Kumar @ Suman v. State (NCT of Delhi) Criminal Appeal No. 1471 of 2023 decided on 11/05/2023, following principle of law has been laid down by their Lordships of the Supreme Court in paragraph 16 of the judgment, which states as under :-

“16. The law consistently laid down by this Court can be summarized as under :

(i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction;

(ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence;

(iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused;

(iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused;

(v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident;

(vi) In case such irregularity is curable, even the appellant court can question the accused on the material circumstance which is not put to him; and

(vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.

(viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.”

Reverting finally to the facts of the present case in light of the aforesaid legal discussion, it is quite vivid that though FSL report dated 28/04/2012 has been brought on record, however, it has neither been exhibited nor has it been put to the accused under Section 313 of CrPC but it is clear from the record that the trial Court has not considered the FSL report as a incriminating circumstance while recording the finding of conviction of the appellant and it has relied upon the direct evidence as well as other circumstantial evidence to conclude that deceased Savita died on account of poison administered to her, as such, in view of the above-stated analysis, we are of the considered opinion that appellant had motive to commit the crime in question and he administered poison to the deceased and caused her death, which was homicidal in nature. As such, we are of the considered opinion that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC and sentenced him as aforesaid. We do not find any merit in this appeal.

Accordingly, this criminal appeal, deserves to be and is hereby dismissed.