Khorbehra and Others vs State of M.P.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 28-2-94 passed in Sessions Trial No. 226/92 by the Fourth Additional Sessions Judge, Raipur. By the impugned judgment, the appellants have been convicted u/s 302/ 34, IPC and sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:-

The case of the prosecution is that on 8-7-91 at about 21.30 hours, the appellants and deceased-Jeevanlal took liquor. The allegations are that appellant No. 1, in connivance with appellant Nos. 2 and 3 mixed poison in the drink of the deceased. The deceased took the poisonous drink. When he felt uneasy, he rushed to his house, started vomiting and stated to the family members that he was given poisonous liquor by appellant No. 1. The deceased died thereafter. A merg intimation (Exh. P-1) was lodged by Mohan Lal (P.W. 1). The Investigating Officer reached to the place of occurrence, gave notice (Exh. P-2) to the Panchas and prepared inquest (Exh. P-3) on the body of the deceased. The dead body of the deceased was sent for post-mortem to PHC Kharora vide memo (Exh. P-12). The post-mortem examination was conducted by Dr. D.N. Bijwe (P.W. 16). He noticed that the face was bluish; nails of both limbs were also bluish; and froth was coming from the mouth. The Autopsy Surgeon opined that the cause of death was asphyxia due to respiratory failure as a result of suspected poisoning. The post-mortem report is Exh. P-13. He also preserved the viscera, pieces of lungs, liver, kidney and handed over it to police Constable Hoslaprasad No. 896 for chemical analysis. In further investigation vomits of the deceased were seized vide Exh. P-5, two glasses were seized vide Exh. P-9, one liquor bottle was seized vide Exh. P-4. Appellant-Khorbehra was taken into custody and his memorandum statement (Exh. P-8) u/s 27 of the Evidence Act was recorded and a container of democron (insecticide) was seized at his instance vide seizure memo (Exh. P-9). The vomits of the deceased, liquor bottle, steel glass, brass glass and container of democran were sent for their chemical examination to FSL, Sagar vide memo (Exh. P-12), from where, a report (Exh. P-15), was received. According to the FSL report themet (organo phosphorus insecticide) were found in the vomits and in the plastic container, however, no poisonous substance was detected in the liquor bottle and two glasses.

After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Raipur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Fourth Additional Sessions Judge, Raipur, who conducted the trial and convicted and sentenced the appellants as aforementioned.

The conviction of the appellants is based on the testimonies of Brij Bai (P.W. 2 - mother of the deceased), Chaitram (P.W. 6 - uncle of deceased) and Chaitram (P.W. 8 - father of the deceased). The prosecution came with the case that in the fateful night, all of a sudden, the deceased came to his house and fell down and made oral dying declaration before the above 3 witnesses that the appellants have administered poison on him by mixing it in the liquor.

Mrs. Renu Kochar, learned Counsel appearing on behalf of the appellants, argued that the merg intimation (Exh. P-1) was the first hand information in which there is no whisper of administration of poison by the appellants; even at the time of inquest the story of administration of poison was not disclosed by the above 3 witnesses, whereas they were witnesses to the inquest; though the viscera was preserved by the Autopsy Surgeon and was handed over to the police constable, but it was not sent for chemical examination to the FSL, whereas the other ordinary articles were sent. Her submission was that in fact, it was not established beyond all reasonable doubts that the deceased died on account of administration of poison. In fact, initially the case of the prosecution was that the deceased died on account of drinking excess liquor, but later on, the above relative witnesses of the deceased turned the story about administration of poison saying that the deceased made such oral dying declaration before them.

On the other hand, Mr. Akhil Mishra, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard the learned Counsel for the parties at length and have also perused the records of the sessions case.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Supreme Court held that in cases of death by poisoning 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 the 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.

In case on hand, if we look into the merg intimation (Exh. P-1), we do not find any mention about administration of the poison upon the deceased. It only contained that the deceased and accused persons took liquor and thereafter the deceased came to his house and stated her mother that he is feeling uneasy and then he died. Merg intimation was lodged by real brother of the deceased namely Mohan Lal (P.W. 1). If the deceased would have made oral dying declaration as above before the above witnesses, that must have been mentioned in the merg intimation which was the first hand information given to the police. The evidence of Mohan Lal (P.W. 1) would show that he was present in the house at the time when the deceased came to the house. Mohan Lal (P.W. 1) deposed before the Court that the deceased had made a dying declaration. He had stated all this to the police while lodging merg intimation and if these facts are not mentioned in the merg intimation, he cannot tell the reasons for that. That is to say that he could not explain the omission of the above important fact of oral dying declaration in the merg intimation promptly lodged by him having all other details.

Similar is the situation with Brij Bai (P.W. 2), Chaitram (P.W. 6) and Chaituram (P.W. 8). They all have stated that the deceased made oral dying declaration before them regarding administration of poison by appellant No. 1. If the deceased had really made oral dying declaration, these facts would have been mentioned in the merg intimation lodged by the real brother of the deceased who was also the inmate of the house and was present at that time. We find that all the above 3 witnesses were the witnesses to the inquest (Exh. P-3). At that time, they did not disclose that the deceased had given such oral dying declaration before them. On the contrary they mentioned in the inquest that the deceased died on account of consumption of excess liquor. Mrs. Kochar has argued that all the above witnesses including Mohan Lal (P.W. 1) are the close relatives of the deceased, therefore, their testimonies cannot be relied on. This is not the correct position in law. In Namdeo Vs. State of Maharashtra, , the Supreme Court held that a witness who is a relative of deceased or victim of the crime cannot be characterized as ''interested''. The term ''interested'' postulates that the witness has some direct or indirect ''interest'' in having the accused somehow or other convicted due to animus or for some other oblique motive. The Apex Court also observed that a close relative cannot be characterized as an ''interested'' witness. He is a ''natural'' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ''sole'' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.

In view of the above, if we carefully scrutinize the evidence of these witnesses, who were close relatives of the deceased being brother, mother, father and uncle, we find that their testimonies were not fully reliable on the point of oral dying declaration on the ground of above omissions and we are of the view that it was not established beyond all reasonable doubts that in fact, the deceased made oral dying declaration before these witnesses prior to his death.

Another big flaw in the case of the prosecution is that the viscera, though preserved by the Doctor and handed over to the concerned police constable, was not sent for its chemical examination to the Forensic Science Laboratory. Dr. D.N. Bijwe (P.W. 16) deposed that after the post-mortem, viscera, pieces of lungs, liver, kidney etc. were preserved by him and were handed over to Constable-Hoslaprasad (896). Constable-Hoslaprasad has been examined as P.W. 12. He deposed that he had gone for post-mortem examination of the dead body of the deceased. The post-mortem examination was conducted by concerned Doctor After the post-mortem, packet of sealed viscera was handed over to him by the Doctor which was brought by him to the police station and it was deposited in the police station by him. His duty certificate has been proved as Exh. P-11-A. In the (sic) which was sent with the materials for chemical examination to FSL Sagar (Exh. P-12), we find that only 5 articles were sent for chemical examination. They were vomits, bottle of liquor, steel glass, brass glass and plastic packet of democron. This makes clear that viscera was never sent for chemical examination to FSL Sagar. This creates a doubt on the entire case of the prosecution. The above omission in the investigation of the prosecution was fatal because it could not be established that the deceased died of poison allegedly said to have been administered to him. In Sharad Birdhichand (supra), the Supreme Court said that it was an important circumstance for proving a case of death by poisoning. In light of the above evidence available on record, we find that though in the post-mortem report, the Doctor opined that the case may be of suspected poisoning, but the prosecution could not establish beyond all reasonable doubts that it was in fact, a case of poisoning and the appellants administered poison on the deceased as alleged by the prosecution.

Mr. Akhil Mishra argued that poison was found in the vomits of the deceased. According to the prosecution, the vomits were seized on 9-7-91 at 8.45 a.m. and seizure memo (Exh. P-5) was prepared. Bhagbali Verma (P.W. 4) is one of the witness of seizure, he denied any such seizure of vomits before him. The other witness of the seizure is Sonsai (P.W. 9). Though he stated that vomits were seized by the police, but he did not state that they were sealed by the police before him. On due appreciation of the evidence of these 2 witnesses, we do not find that the vomits allegedly seized by the police were in fact sealed at the place of seizure as contained in the seizure memo. Moreover, the fact that it was the vomits of the deceased prior to his death was based on the oral testimonies of the above 4 relative witnesses, whom we have already held to be unreliable. Therefore, merely on account of finding poison in the vomits said to be that of the deceased would make no difference in light of the above quoted flaws in the prosecution case.

For the foregoing reasons, we are unable to sustain the conviction of the appellants u/s 302/ 34, IPC and the same deserves to be set aside. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellants u/s 302/ 34, IPC are set aside. The appellants are acquitted of the charges framed against them.