Sushil Kumar Srivastava and Others vs State of Uttar Pradesh

Pramod Kumar Srivastava, J.

This appeal has been filed against the judgment dated 20.04.2007 passed by Sri Pankaj Kumar Upadhyay, Addl. Sessions Judge/Fast Track Court No. 5, Kanpur Nagar in Sessions Trial No. 389 of 2006, State v. Sushil Kumar Srivastava and another, under section 302 IPC, p.s. Kalyanpur, district Kanpur Nagar, by which two accused were convicted for offence under section 302/34 IPC and each were sentenced imprisonment for life and fine of Rs. 5000/-.

Prosecution case in brief was that on 16.08.2003, complainant Raj Narayan Singh had given written report (Exhibit Ka-1) on 17.08.2003 at 12:30 O'' clock in the night in police station Kalyanpur, Kanpur Nagar with the averment that accused appellants, Sushil Kumar Srivastava and his brother Sudhir Kumar Srivastava have forcibly occupied a shop in complainant''s house No. E-554 Krishna Bihar Awas Vikas, Kalyanpur, Kanpur Nagar. On 16.08.2003 at about 12:00 pm in the noon, accused Sushil and his brother Sudhir (present appellants) had called the complainant''s 11 years old son Gaurav in their shop and gave anything for eating. After sometime when Gaurav returned home, he vomited. When complainant''s daughter Pushpa inquired, then Gaurav informed him that Sushil had given him cold drink for drinking. After sometime, when Pushpa had asked Sushil about this matter, then Sushil had started quarreling and told that you would get result by evening. When condition of Gaurav deteriorated, then complainant''s daughter informed about him about the matter. Then complainant came back with his wife and found his son Gaurav in unconscious state; then he took his son to doctor, who had declared him dead. Complainant had also mentioned in his written report that he is confident that Sushil and his brother must have administered poison for murdering his son Gaurav. On this report of complainant the case crime No. 495 of 2003 under section 302 IPC was registered and investigation started.

During investigation, formalities were completed including post-mortem of the dead body of the Gaurav. In postmortem the cause of death could not be ascertained, so the viscera was preserved, which was later on sent to Forensic Science Laboratory, Lucknow. Later on Forensic Science Laboratory has submitted its report on 08.01.2004 (Exhibit Ka-10), in which it was reported that Methyl Carbonate (Began) insecticide poison was found in the Viscera containing pieces of stomach, intestine, liver, kidney and spleen. After completion of investigation, charge-sheet was submitted against two accused Sushil and Sudhir for offence under Section 302 IPC, on the basis of which case S.T. No. -389/2006, State v. Sushil Kumar Srivastava and another was registered.

In this trial the two accused (present appellants) were charged for offence punishable under Section 302 read with Section 34 IPC. Accused denied the charge and claim their trial. Thereafter the prosecution side had examined PW-1 Raj Narayan Singh (complainant), PW-2 Sarika @ Anuradha (daughter of complainant), PW-3 Pushpa (daughter of complainant), PW-4 Constable Harishankar, PW-5 Ram Lakhan Awasthi, PW-6 Yogendra Kumar Prajapati, PW-7 S.I. Vishwanath Singh (I.O.), PW-8 Dr. J.P. Saxena (who conducted post-mortem), PW-9 I.P. Rawat (S.I). These witnesses had proved documentary evidences of prosecution side, namely Ex. Ka-1 to Ka-12).

After completion of prosecution witnesses, statement of accused were recorded under Section 313 Cr.P.C. in which they had denied the said allegations levelled against them. They had admitted the fact that they are tenant in the shop of complainant, but they had denied unauthorized occupation of it. They had stated that prosecution witnesses had given false evidence and that complainant had filed case against them for eviction of shop in question on false grounds. They further stated that deceased Gaurav had earlier ailment, and had died due to food poisoning. But they had been falsely implicated in this case by complainant due to enmity. Defence side had not adduced any defence evidence.

Learned Sessions Judge afforded opportunity of hearing to both sides and thereafter passed judgment dated 20.04.2007 by which accused-appellants were convicted for charges of section 302/34 IPC. After affording opportunity of hearing to them on point of quantum of sentence learned Sessions Judge had awarded the punishment of imprisonment for life and fine of Rs. 5000/- to each accused. Aggrieved by this judgment accused persons had preferred the present appeal.

We have heard the arguments of Sri B.D. Sharma learned counsel for the appellants, Sri A.N. Mullah, learned AGA for the opposite party and gone through records of the case.

From the proved document Ex. K-10 the report of Forensic Science Laboratory, it is explicitly clear that viscera of the deceased Gaurav contained poisonous insecticide. PW-8 Dr. J.P. Saxena had conducted post-mortem of the dead body of the deceased Gaurav, who had stated that the time of death of Gaurav was possibly after 12:00 O''clock noon on 16.08.2003. He further stated in his statement that there was five ounce semi digested food in the stomach of deceased, which was sufficient for the stomach of a child. This food was consumed 4 to 6 hours before the death. PW-8, Dr. J.P. Saxena could not tell about contents of food taken by the deceased because it was in semi digested state.

Prosecution side had tried to prove that accused Sushil Kumar Srivastava and Sudhir Kumar Srivastava had purchased cold drink from the shop of PW-5 Ram Lakhan Awasthi and then gave the same to Gaurav on 16.08.2003. In this regard PW-5 Ram Lakhan Awasthi had stated on oath that on 16.08.3003 accused Sushil or his brother Sudhir had not taken any cold drink from his shop. In cross-examination he stated that he does not remember as to which person has purchased cold drink from his shop in the noon of 16.08.2003. There may be possibility that on that date accused Sushil and Sudhir would have purchased cold-drink from his shop personally or through other person. He had further stated that accused persons do not purchase anything from his shop because he had dispute with them. Accused persons had never purchased anything from his shop. This witness PW-5 had further stated that he had informed the police that he had not seen Gaurav at the shop of accused persons and not seen Gaurav taking any cold drink.

PW-7 Investigating Officer S.I. Vishwanath Singh had stated that he was informed by Km. Sarika (PW-2) that Pushpa (PW-3) had told her that Sushil and Sudhir had administered poison in cold-drink. Km. Sarika had not told that she had any talk with Gaurav. PW-7 I.O. had also stated that Pushpa had not given her statement to him. PW-7 I.O. had also stated that there is a provision store of Ram Lakhan Awasthi who sells cold-drink in the neighborhood of complainant. The Ram Lakhan Awasthi had given statement before him that Sushil or Sudhir had not brought any cold drink from his shop. He had also given statement that except his shop, there is no shop in nearby neighborhood who sells cold drink. Thus from the available evidences, it was never proved to satisfy that on 16.08.3003, accused appellants had purchased any cold drink from any shop. Admittedly, no witness had seen the deceased Gaurav on the shop of accused appellants nor had any one seen the Gaurav drinking cold drink. These matter of facts had not been considered by the trial court at the time of passing of this judgment.

It is prosecution case that, cause of death of Gaurav was consumption of poisonous cold drink in the noon of 16.08.2003, because on that day he had not eaten or taken any other edible think in this regard. We have considered the evidences adduced by the prosecution side on this point. PW-1 Raj Narayan Singh, complainant was not present on the shop of accused appellants or at his house at the time of incident in question. Admittedly he and his wife were away from their house and his FIR (Ex.-Ka1) as well as his statement were based on hearsay evidences. PW-2 Sarika @ Anuradha is daughter of complainant and sister of deceased Gaurav. She had stated on oath that she is teacher in K.K. Public School, and on 16. 08. 2003 she had gone to the said school at 8:00 a.m. in the morning, from where she came at about 12:00 O'' clock. Then she again went to a beauty parlor for learning its work. She had not talked with Pushpa before going to beauty parlor. In the beauty parlor she was informed about the illness of her brother. The statement of this witness PW-2 Sarika is of no help to prosecution as she was not informed by deceased Gaurav or her sister PW-3 Pushpa anything about incident in question. PW-3 Pushpa is also daughter of complainant, who stated that at the time of incident in question she used to reside in Kannauj with her sister, and used to frequently visits Kanpur; and on 16.08.2003 his brothers Manish and Gaurav went from home for playing. On that day and his brother Manish had taken breakfast at about 7-8:00 am in the morning. Gaurav returned home at about 12:00 O'' clock in the noon, and after coming home he vomited. Thereafter her sister Sarika came home at about 12:00 O''-clock and went again to beauty-parlor. After that she met Sarika in nursing home. The statement of witness PW-3 Pushpa is also based on hearsay. On relevant point of time she had not seen the deceased Gaurav with any accused-appellant. She had never met any person who had seen the Gaurav with or at the shop of appellant. Her sole important averment is that Gaurav had informed her that accused had given him cold drink. She never told that Gaurav had informed her anything about poisonous drink or that after consuming cold-drink his wellness deteriorated.

Prosecution case and the charge was that accused appellants had given allegedly poisonous cold drink to Gaurav at about 12:00 O'' clock in the noon of 16.08.2003. In this regard, evidences were scrutinized. PW-2 had stated that Gaurav had not taken any breakfast in the morning before going outside for playing with his brother Manish. Her brother Manish was not made witness in this case. P.W.-3 Pushpa had specifically stated in her cross-examination that she did not remember as to what was eaten by her brother in the night. She had also emphatically stated that her brother Gaurav had not taken breakfast in the morning and had gone from house without eating anything. But in the post-mortem report sufficient semi-digested food was found in the stomach of Gaurav. PW-8 Dr. J.P. Saxena had stated that there is possibility of this semi digested food was taken by Gaurav 4 to 6 hours before his death. So it is proved that after going out of his house in the morning without taking any meal, the Gaurav must had taken sufficient food somewhere before his death, and much before 12:00 O''-clock noon. Prosecution side had not tried to explain as to where this solid food, which converted into semi digested food, was eaten by Gaurav. Thus very important link about the incident in question was neither investigated nor proved by prosecution. The burden of proving this fact was on prosecution side that said semi-digested food was not poisonous and was not cause of death of Gaurav. The burden of proof regarding it was not discharged by prosecution side, which leads to presumption of facts against the charge and in favour of appellants.

PW-6 Yogendra Kumar Prajapati was working as Assistant in R.S. Kushwaha Nursing Home and has stated that on 16.08.2003 two and three persons had brought a boy in his nursing home, who was aged about 12 years and was dead. So that boy was not admitted in nursing home and returned. He did not remember as to whether any lady was accompanying with the dead body of the boy. Prosecution witnesses have not stated that as to what time the dead body of that boy was brought to his nursing home. PW-2 Sarika could not remember as to when had she reached nursing home from beauty parlor. PW-3 had deposed in her cross-examination that her father had returned home at about 2:00 to 2:30 p.m. and taken Gaurav to R.S. Kushwaha Nursing Home. PW-6 Yogendra Kumar Prajapati, Assistant of nursing home had proved that when the boy Gaurav was taken to his nursing home he was dead and was not admitted there. From these evidences, it is explicitly clear that on the date of charged incident, that is on 16.08.2003, deceased Gaurav had gone out from his house in the morning without taking any breakfast, but 4 to 6 hours before his death he had taken sufficient meal, which was found in semi digested stage in his stomach. It is also proved that at about 2:00 to 2:30 p.m. Gaurav was dead because he was taken in that state to nursing home by his father. Therefore, he must have taken any edible thing at about 08:00 a.m. to 10:00 a.m. in the morning. It has not been proved that during that specific period (about 08:00 a.m. to 10:00 a.m.) shop of appellants was open or not. The charge against accused appellants is that they have allegedly administered poisonous cold drink to Gaurav at about 12:00 noon, which is not proved. But for the sake of argument if it is accepted that he had taken cold drink at about 12:00 O''-clock in the noon, then even in this situation he had taken sufficient full belly food between approximately 8:00 to 10:00 a.m. in the morning. It is not proved by the prosecution side as to from where such food was taken by deceased. This argument of defence side cannot be ruled out that such food taken by Gaurav in the morning might have been poisonous. Admittedly, this is a case of insufficient circumstantial evidence, where no one has seen the incident in question. Admittedly, no witnesses had ever seen Gaurav with any accused on 16.08.2003 nor had seen the accused person offering cold drink to him nor it is seen by any person Gaurav drinking anything. There is no evidence that any types of cold drink was found in the stomach of Gaurav. Only semi digested food in sufficient quantity was found in the stomach of Gaurav which might be poisonous, but it is not prosecution case that it was given to deceased by appellants. In post-mortem report it is noted that the food was eaten by him at about 4 to 6 hours before death. In cases of circumstantial evidences of every chain of evidence should be such closely connected that must lead to one and only inference about guilt of the accused. But in the present case no such evidence is available. Gaurav had taken sufficient food at about 8:00 am in the morning outside his house from somewhere, and the nature or quality of that food is not known. It is not known as to whether that food was poisonous or not. No one had ever seen Gaurav with accused persons. No one had seen the accused given cold drink or anything to Gaurav. There is only one cold drink shop near the shop of appellants, and it is proved that from that shop accused-appellants had not purchased cold drink or any other thing. It is not proved as to allegedly given cold drink to Gaurav was poisonous or injurious to health.

Learned counsel for the appellants contended that appellants were implicated in this case falsely due to enmity of litigation of tenanted shop of appellants. It is admitted case that appellants occupied the shop of complainant and they claimed to be tenant of the same to the dissatisfaction of complainant due to which they are involved in litigation with complainant. The dispute between parties are so serious that complainant is accused in case of burning the shop of accused-appellants. Even PW-7 Investigating Officer had stated that neighbors of complainant had informed him that complainant''s son had died due to ailment and complainant was trying to get his shop vacated from appellants. So the previous enmity of appellants with complainant is proved that might be the motive of their false implication in the matter. The argument of appellants'' counsel was that due to this enmity, they were falsely implicated. On this point the evidence of prosecution witnesses was again meticulously considered. PW-1 complainant had stated in examination-in-chief that he had dictated written report on the spot and taken it to police station Kalyanpur for lodging case; but in cross-examination he could not tell as to who was the scribed this report. During cross examination he stated against his earlier statement and told that report was written in police station by scribed but he does not know the name of scribe and doesn''t know as to from where scribed came there. PW-1, PW-2 and PW-3 had stated that after deterioration of his condition Gaurav was admitted in the Nursing Home for treatment. But there is no such evidence of his admission in Nursing Home. On the contrary PW-6 Yogendra Kumar Prajapati of Nursing Home had specifically stated that Gaurav was brought in Nursing Home in dead condition so he was not admitted. These facts indicate that due to some reason the complainant/prosecution side had attempted to conceal several important facts like meal consumed by deceased on that day, the name of scribe and the manner in which written report was written through dictation. These facts made the deposition of prosecution witnesses and the prosecution case doubtful. But these very obvious and important facts were not considered by the trial Court in its judgment.

Learned counsel for the appellants argued that Gaurav had earlier ailment, probably cholera, due to which he died. His alternative argument is that Gaurav could have died due to food poisoning in any feast of last evening or earlier meal of the day of incident. These averments are supported by prosecution evidences. PW-5 Ram Lakhan Awasthi has stated that it was told to him that Gaurav son of complainant was continuously ill. Even PW-7 Investigating Officer had stated that neighbours of complainant had informed him that complainant''s son had died due to ailment and complainant was trying to get his shop vacated from appellants. Apathy of complainant and his family members towards poor Gaurav in this regard is also evident from the evidences of PW-1, PW-2 and PW-3. It is evident that they had not taken care as to whether boy Gaurav had taken any meal or breakfast in the morning. Even when Gaurav came home in the noon and his condition was not good, at that time they had not taken care to take him to any doctor or give medicine. From evidences it is proved that much before the time of charge incident of 12:00 O''-clock noon, Gaurav had taken sufficient meal somewhere, the quality of which is not known. These facts and circumstances support this defence case that there is every possibility of the fact that complainant or his family members had neglected the poor Gaurav and not cared to give him proper meal or taken care of his health, due to which he was continuously ill. In these circumstances somewhere and sometime he got some food. It is not proved that on 16.08.2003, appellants had given any cold drink to Gaurav. It is not proved that any poisonous cold drink was available to appellants or the appellants had offered cold drink or they had met with Gaurav on 16.08.2003. There is every possibility that if previous ailment was not cause of death then after taking meal on 15.08.2003 in the night till his death Gaurav has taken any such thing which could have been instrumental for his death. It is not proved as to when any poisonous substance taken by the deceased of this case. Even after statement of PW-3 is taken to be true then there is nowhere in it that Gaurav had told her that his condition had deteriorated only after taking of alleged cold drink. These very important evidences and facts were ignored by learned Sessions Judge at the time of passing of judgment in question. The Addl. Sessions Judge had passed the impugned judgment without considering very important and relevant facts, circumstances and evidences, and due to this he reached to wrong conclusions which are unacceptable.

In the present case of circumstantial evidence all the available evidences lead to inference that there is no proof of the fact that Gaurav had any contact or communication with appellants on 16.08.2003. In this case of circumstantial evidence, there is no chain of circumstances or evidences that may lead to inference of guilt of accused appellants. Therefore finding of facts regarding guilt of appellants given by learned Addl. Sessions Judge Sri Pankaj Kumar Upadhyay is undoubtedly incorrect and perverse. Therefore the impugned judgment and order passed by the court below is liable to be set aside. It is held that prosecution side had failed to prove the charge framed against the accused-appellants.

Therefore this appeal is accordingly allowed. The impugned judgment and order of sentence dated 20.04.2007 passed by Addl. Sessions Judge/Fast Track Court No. -5, Kanpur Nagar in Sessions Trial No. 389 of 2006 State v. Sushil Kumar Srivastava and another, under Section 302 IPC, is set aside; and accused Sushil Kumar Srivastava and Sudhir Kumar Srivastava are acquitted of the charges of Section 302/34 IPC. The appellants are on bail. There bail bonds are cancelled and sureties are discharged.