Hari Kewal and Another vs State of U.P.

Subhash Chandra Agarwal, J.—Criminal Appeal No. 240 of 2006, has been filed by Appellants Hari Kewal and Ghurahu and Criminal Appeal No. 295 of 2006 has been filed by Appellant Smt. Sursatia against the judgment and order dated 7.1.2006, passed by the Addl. Sessions Judge, (Fast Tract Court No. 4), Deoria whereby Smt. Sursatia was convicted under Sections 302 and 328, I.P.C. and was sentenced to imprisonment for life and to pay a fine of Rs. 2,000 and in default to further undergo S.I. for one year u/s 302, I.P.C. and to undergo R.I. for five years and to pay a fine of Rs. 500 and in default to further undergo S.I. for one month u/s 328, I.P.C. Similarly the Appellants Hari Kewal and Ghurahu were convicted u/s 302 read with Section 34, I.P.C. and Section 328 read with Section 34, I.P.C. and sentenced to life imprisonment and to pay a fine of Rs. 2,000 each and in default to undergo S.I. for one year u/s 302/34, I.P.C. and to undergo R.I. for five years and to pay a fine of Rs. 500 and in default to undergo S.I. for one month u/s 328/34, I.P.C. Both the sentences to all the accused-Appellants was directed to run concurrently.

The incident took place on 20.2.1995 at about 9 a.m. at the house of the complainant Sunder (P.W. 1) in village Musaila Bujurg. F.I.R. Ext. Ka-1 was lodged by the complainant at P. S. Khukhundu, district Deoria on 21.2.1995 at 20.25 hours.

Prosecution story as unfolded in the F.I.R. is that the Appellant Smt. Sursatia is daughter-in-law of the complainant and had illicit relationship with Appellants Hari Kewal and Ghurahu, who reside in the same village Musaila Bujurg. Civil litigation between the complainant on one side and the Appellants Hari Kewal and Ghurahu on the other side was going on. On 20.2.1995 at 9 a.m. Smt. Sursatia came to the house of the complainant at 9 a.m. from the house of Appellant Hari Kewal, who gave Smt. Sursatia a small packet (puria). When the complainant enquired from Smt. Sursatia about the puria, she disclosed that it was prashad. The Appellant Smt. Sursatia gave prashad to her husband Muktinath (son of the complainant). Muktinath ate the prashad but soon after started vomiting. Muktinath was taken to Government Hospital at Deoria by taxi where the doctor disclosed that Muktinath had been poisoned. Muktinath died in the evening during treatment. On the next day after post-mortem examination, the complainant lodged F.I.R. Ext. Ka-1 at Police Station, Khukhundu. On the basis of F.I.R. Ext. Ka-1, Head Constable Harish Chandra Yadav (P.W. 6) prepared check report Ext. Ka-4 and registered the Crime No. 22/95 under Sections 302, 328 and 120B, I.P.C. against the Appellants by making an entry at Serial No. 31 in the G. D. (copy Ext. Ka-5).

S.H.O. Sri Mewa Ram Bharti (P.W. 7) took over the investigation. He recorded the statement of the complainant in the case diary, went to the place of occurrence and recorded the statement of other witnesses. On 22.2.1995 the Investigating Officer inspected the spot, prepared site plan Ext. Ka-7, took sample of food vomited by the deceased, prepared memo Ext. Ka-8 and arrested the Appellants.

Inquest proceedings were held by S.I. Vibhuti Yadav on 21.2.1995 at the Civil Hospital, Deoria. He prepared inquest report Ext. Ka-9 and connected papers photo Nash Ext. Ka-10, sample seal Ext. Ka-11, letter to R.I. Ext. Ka-12, Form 13 Ext. Ka-13 and letter to C.M.O. Ext. Ka-14.

The autopsy on the dead body of the deceased Muktinath was conducted on 21.2.1995 at 4 p.m. The deceased was aged about 25 years. Rigor Mortis was present in both the limbs. White froth was coming out from the mouth. Nails were blue. There was no anti-mortem injury on the dead body. Brain, lungs and kidneys were congested. Stomach contained 250 gms. semi-digested food. There were gases and fluid in the intestines. Cause of death could not be ascertained. Viscera was preserved. The death of Muktinath took place on 20.2.1995 at 5.10 p.m. at District Hospital, Deoria. Post-mortem report is Ext. Ka-2.

Viscera was sent to Forensic Science Laboratory, Agra for examination, which vide report Ext. Ka-15 found the poison named Almunium Phosphide in the viscera.

In the meantime, on transfer of the Station Officer Incharge, the investigation was handed over to Sri Parshuram (P.W. 5), who on the receipt of viscera report, submitted charge-sheet Ext. Ka-3 against the Appellant.

Charge under Sections 302 and 328, I.P.C. was framed against the Appellant-Sursatia and charge under Sections 302/34 and 328/34, I.P.C. was framed against the Appellants Hari Kewal and Ghurahu. The Appellants denied the charge and claimed to be tried.

Prosecution examined as many as seven witnesses in this case. P.W. 1 Sundar and P.W. 2 Smt. Bhagia are the parents of the deceased Muktinath. P.W. 3 Ram Nakchhatra is an independent witness but he has not supported the prosecution case and was declared hostile. P.W. 4 Dr. L. P. Gupta had conducted the autopsy on the dead body of the deceased. P.W. 6 Head Constable H.C. Yadav had scribed the check report and G. D. entries. P.W. 7 Mewa Ram Bharti and P.W. 5 Parshuram are the Investigating Officers. P.W. 1 to P.W. 3 are the witnesses of fact and remaining are the formal witness.

The Appellants in their statement u/s 313, Cr. P.C. denied the prosecution allegations. It was further denied that any poison was given to Smt. Sursatia by Hari Kewal or Smt. Sursatia administered the poison to Muktinath. Smt. Sursatia claimed that she was named due to mis-conception while Hari Kewal and Ghurahu claimed that they have been falsely implicated due to enmity. The Appellants did not adduce any evidence in defence.

Relying upon the prosecution version and the evidence adduced on behalf of the prosecution, the learned trial Judge convicted and sentenced the Appellants as aforesaid.

We have heard Sri Kamal Krishna, learned senior advocate assisted by Sri Brijesh Mishra, learned Counsel appearing on behalf of Appellant Hari Kewal, Sri A. K. Singh, learned Counsel for the Appellant Ghurahu, Sri A. C. Srivastava, learned Counsel for the Appellant Smt. Sursatia, Sri Deep Chandra Singh, learned Counsel for the complainant, Sri A. K. Shukla, learned A.G.A. for the State and perused the record.

Learned Counsel for the Appellants submitted that there is no motive for the crime and there is no evidence to show that Smt. Sursatia had illicit relations with Hari Kewal and Ghurahu. It was further submitted that there was no convincing evidence to show that Hari Kewal gave any puria to Smt. Sursatia or Smt. Sursatia administered the poison to the deceased Muktinath. It was further submitted that nobody saw Smt. Sursatia giving poison to Muktinath and infact on the day of the incident, a marriage party had come to the house of Nand Lal Baniya in the same village and the deceased Muktinath had gone to the house of Nand Lal and might have consumed poisonous food there or somewhere else. It was further submitted that Aluminium Phosphide had a very pungent smell and cannot be administered to any person surreptitiously. It was further submitted that the deceased started vomiting at about 2-3 p.m. in the afternoon and the poison could not have been administered by Smt. Sursatia at 9 a.m. It was further submitted that the Appellant Ghurahu is the nephew of the complainant and had no enmity with the deceased. With Appellant-Hari Kawal, the complainant had only civil litigation going on since 1985, without any further development and there was no occasion for Hari Kewal to enter into conspiracy with Smt. Sursatia for poisoning Muktinath. It was further submitted that the F.I.R. is highly delayed for which no satisfactory explanation has been furnished.

Per contra, learned A.G.A. and learned Counsel for the complainant supported the impugned judgment and submitted that the prosecution had proved by reliable and convincing evidence that Smt. Sursatia administered poison to Muktinath and the poison was supplied to Smt. Sursatia by Hari Kewal.

On autopsy, no injury was found on the person of the deceased Muktinath. Viscera report Ext. Ka-15 conclusively proves that Muktinath died due to consuming poison named Aluminium Phosphide commonly known as celphos.

The prosecution case rests on the evidence of P.W. 1 Sundar and his wife P.W. 2 Smt. Bhagia. Regarding motive it is alleged that Smt. Sursatia had illicit relations with Hari Kewal and Ghurahu and due to this reason Smt. Sursatia administered poison to Muktinath. P.W. 1 Sundar has deposed that the character of his daughter-in-law was not upto the mark and she used to visit house of Hari Kewal and Ghurahu. He further stated that Smt. Sursatia developed bad character one year before the incident and did not obey her husband or parents-in-law. Sundar further admitted that the food was regularly cooked by Smt. Sursatia, which was eaten by them. In cross-examination Sundar has admitted that his son Muktinath had no knowledge about illicit relations of Smt. Sursatia. He further admitted that he did not know earlier that Smt. Sursatia had illicit relations. When his son died, then he came to know that Smt. Sursatia had turned badchalan. It is apparent from this admission that till the incident, the complainant Sundar had no complaint regarding character of Smt. Sursatia. No evidence has been led to show any illicit relations of Smt. Sursatia with co-accused Hari Kewal or Ghurahu. The story of illicit relations has been developed simply on the basis of suspicion.

Similarly, P.W. 2 Smt. Bhagia, in her examination-in-chief alleged that Smt. Sursatia had illicit relations with Ghurahu and Hari Kewal. In cross-examination, she admitted that we all (the complainant, his wife, son and daughter-in-law Sursatia) used to live in peace without anybody''s interference. This admission falsifies the story of illicit relations of Smt. Sursatia with the co-accused. In these circumstances, we have come to the conclusion that there is no evidence on record to prove that Smt. Sursatia had illicit relations with Hari Kewal or Ghurahu. In our view, allegations of illicit relations have been levelled only on the basis of suspicion without any proof. In these circumstances, we find that Smt. Sursatia had no motive to administer poison to her husband Muktinath.

It is the specific case of the prosecution that at about 9 a.m. Smt. Sursatia brought a puria from the house of Hari Kewal on the pretext that it was prashad and administered poison to her husband Muktinath. In this respect P.W. 1 Sundar stated in his examination-in-chief that when Smt. Sursatia came from the house of Hari Kewal with a puria, she asked her husband to take food and she gave food mixed with the content of the puria after which Muktinath started vomiting. In cross-examination, Sundar stated that the contents of puria were not mixed by Smt. Sursatia in his presence. He was sitting out side. On the other hand P.W. 2 Bhagia stated that Hari Kewal and Ghurahu gave poison to Smt. Sursatia, who gave it to Muktinath. She has not stated that poison was mixed in food in her presence.

It is the case of the prosecution that poison was administered to Muktinath by Smt. Sursatia on 20.2.1995 at 9 a.m. Muktinath was taken into Hospital at 3 p.m. and died at about 5 p.m. P.W. 1 Sundar has admitted in cross-examination that he came to know at about 12 noon that his son was ill. P.W. 2 Bhagia also stated in cross-examination that on the date of incident his son had gone to the house of Nand Lal and when he returned from the house of Nand Lal, Muktinath started vomiting. She further admitted that his son was given poison at about 2-3 p.m. When his son returned from the house of Nand Lal, he started vomiting.

Had poison been administered to Muktinath at 9 a.m. as alleged by the prosecution, Muktinath would have started vomiting soon after but Muktinath did not fall ill in the morning. At noon Muktinath went to the house of Nand Lal and returned home at about 2-3 p.m. and immediately thereafter, started vomiting. In these circumstances, it cannot be inferred that Muktinath was administered poison by Smt. Sursatia at 9 a.m. when she gave food to her husband. The possibility of Muktinath consuming poisonous substance or food at the house of Nand Lal or elsewhere cannot be ruled out.

In view of the above, we have come to the conclusion that it is not proved beyond doubt that poison was administered by Smt. Sursatia to her husband at 9 a.m. It is possible that Muktinath took poison himself or was poisoned by someone else in the afternoon when he went to the house of Nand Lal to attend the marriage party.

We also find much force in the submission of learned Counsel for the Appellants that there is inordinate delay for lodging the F.I.R. Allegedly the incident took place on 20.9.1995 at 9 a.m. and Muktinath became ill in the afternoon on the same day. He was rushed to the hospital where he died at 5.10 p.m. but the F.I.R. was lodged on 21.2.1995 at 20.05 hours. The explanation offered by P.W. 1 Sundar that he waited for the post-mortem and lodged F.I.R. after cremation of the deceased is not convincing. This inordinate delay in lodging the F.I.R. is fatal to the prosecution.

After giving thoughtful consideration to the submissions made by the learned Counsel for the parties, we have come to the conclusion that conviction of Appellants recorded by learned Sessions Judge cannot be sustained and is liable to be set aside.

We, therefore, allow both the appeals and acquit the Appellants.

The Appellants Smt. Sursatia and Hari Kewal are in jail. They shall be released forthwith if not wanted in any other case.

The Appellant Ghurahu is on bail and his bail bonds are cancelled and sureties discharged. He need not surrender.

Let the copy of this judgment be certified to the trial court, Deoria for compliance. The compliance report be submitted to this Court within six weeks.