Rasida Begum And Another vs State Of Chhattisgarh
2022 Latest Caselaw 7443 Chatt

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                                                               AFR
     HIGH COURT OF CHHATTISGARH AT BILASPUR
                  Criminal Appeal No. 980 of 2011

1. Rasida Begum W/o Madu Miyan @ Majubuddin Miyan, Aged
  about 53 years, Occupation Housewife.

2. Nurtaj S/o Manuvar Musalman, Aged about 22 years.

  Both R/o Village Idarikala, P.S. Chando, District Sarguja,
  Chhattisgarh.
                                                  ---Appellants

                              Versus

  State of Chhattisgarh through Police Station Shankargarh,
  District Sarguja, Chhattisgarh.

                                                 ---Respondent


  For Appellants    :-   Ms. Saloni Verma, Advocate
  For State         :-   Mr. Sudeep Verma, Dy. G.A.



               Criminal Appeal No. 1954 of 2017


  Madu Miya alias Majubuddin Miya, S/o Muradan Musalman,
  Aged about 60 years, R/o Village Iderikala, Police Station
  Chando, District Balrampur-Ramanujganj, Chhattisgarh.

                                                      ---Appellant

                               Versus

  State of Chhattisgarh through Police Station Chando, District
  Balrampur-Ramanujganj, Chhattisgarh.

                                                 ---Respondent



  For Appellants         :-     Mr. Shailendra Sharma, Advocate
  For State              :-     Ms. Ruchi Nagar, Dy. G.A.
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                 Hon'ble Shri Justice Sanjay K. Agrawal
               Hon'ble Shri Justice Rakesh Mohan Pandey
                          Judgment on Board
                              12/12/2022


Sanjay K. Agrawal, J.

1. Criminal Appeal No. 980/2011 has been preferred by the two

appellants/accused persons namely Rasida Begam (A-1) and

Nurtaj (A-2) against judgment dated 26/08/2011 passed by

learned Special Judge, Ambikapur in Special Session

Atrocities Case No. 93/2008 whereby they have been

convicted for offences punishable under Section 3(2)(v) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 read with Section 302/34 of IPC and

sentenced to undergo life imprisonment with fine of Rs.

5000/- each and in default of payment of fine, further R.I. for

6 months.

2. Criminal Appeal No. 1954/2017 has been preferred by sole

appellant/accused namely Madu Miya against judgment dated

21/11/2017 passed by learned Special Judge, Sarguja

(Ambikapur) in Special Session (Atrocities) Case No. 93/2008

(as he remained absconded during the course of the trial when

Rasida Begam (A-1) and Nurtaj (A-2) were being tried and final

judgment of conviction was passed against them) whereby he

has been convicted for offences punishable under Section

302/34 of IPC and sentenced to life imprisonment with fine of

Rs. 5000/- and in default of payment of fine, further R.I. for

one year; and for offence punishable under Section 201/34 of

IPC and sentenced to undergo R.I. for 5 years with fine of Rs.

2000/- and in default of payment of fine, further R.I. for 6

months.

3. Since both of these appeals involve common question of fact

and law, they have been clubbed together, heard together and

are being decided by this common judgment. It is also

pertinent to mention here that since trial of Rasida Begam (A-

1) alongwith Nurtaj (A-2) and that of Madu Miya (A-3) was

conducted separately, therefore, some of the same documents

have been exhibited differently. In the instant judgment, we

would be referring the exhibits as per the paper-book relating

to Criminal Appeal No. 980/2011 which has been preferred by

Rasida Begam (A-1) and Nurtaj (A-2), unless stated otherwise,

particularly, while adjudication of Criminal Appeal No.

1954/2017.

Case of the prosecution :-

4. Case of the prosecution, in brief, is that the three

appellants/accused persons, in furtherance of their common

intention, administered poison to Sanjeevan Uraon due to

which he succumbed to death, knowing fully well the he was a

member of Scheduled Tribes and they, thereby committed the

aforesaid offences.

5. It is admitted position on record that Rasida Begam (A-1) is

the wife of Madu Miya (A-3) and Nurtaj (A-2) is their grandson.

Further case of the prosecution is that deceased Sanjeevan

Uraon was a resident of Village Ginjaipara, Chando, however,

he stayed at the house of Madu Miya (A-3) at Village Idrikala

P.S. Chando and used to work as domestic help. Upon

investigation of Crime No. 11/08 registered at P.S. Chando, it

was revealed that Madu Miya (A-3) along with his son Murtaza

Ansari, grandson Nurtaj (A-2) and two other co-accused

persons namely Mubarak Ansari and Ayub Khan robbed

Rs. 2,00,000/- from the shop of one Bankim Mandal and

thereafter, murdered him, which was also within the

knowledge of deceased Sanjeevan Uraon and during

investigation, Police had also summoned the deceased for

inquiry. Out of the fear that deceased Sanjeevan Uraon would

reveal the incident to the Police, in the evening of

23/08/2008, appellant/accused Madu Miya (A-3) escorted

Sanjeevan Uraon to his home. When deceased Sanjeevan

Uraon reached his home, he was feeling dizzy and he informed

his mother Sushila Tirkey (P.W.-1) and brother Arun Tirkey

(P.W.-2) that Madu Miya (A-3) had administered poison to him

by mixing it in his meal due to which he was feeling dizzy.

Thereafter, Sanjeevan Uraon died and information was given

to the Police Station on the basis of which merg intimation

was registered vide Ex. P/2 and after summoning the

witnesses under Section 175 of CrPC vide Ex. P/3, inquest

was conducted vide Ex. P/23 and the dead body of deceased

Sanjeevan Uraon was subjected to postmortem, which was

conducted by Dr. Pramod Kumar Sinha (P.W.-13) and visera of

the deceased was collected and it was sent for FSL.

Memorandum statement of Rasida Begam (A-1) was recorded

vide Ex. P/15 and pursuant thereof, a 100gm vial of

endosulfan, in which 20 gm of medicine was left, was seized

from the house of Madu Miya (A-3) vide Ex. P/16 and it was

also sent for FSL. As per the FSL report (Ex. P/13),

organochloro insecticide 'endosulfan' was found in the vial

seized vide Ex. P/16 as well as in the visera of the deceased.

On the basis of the investigation, Crime No. 14/08 was

registered against the appellants/accused persons at P.S.

Chando, Balrampur vide Ex. P/19 for offences punishable

under Sections 302/34 and 201 of IPC. Appellants/accused

persons Rasida Begam (A-1) and Nurtaj (A-2) were arrested

vide Ex. P/17 and P/20, respectively, however, Madu Miya (A-

3) absconded on the basis of which, farari panchnama was

recorded vide Ex. P/18. After due investigation,

appellants/accused persons Rasida Begam (A-1) and Nurtaj

(A-2) were charge-sheeted for offences punishable under

Sections 3(2)(5) of the Act of 1989 read with Section 302/34 of

IPC, which was committed to the Court of Special Judge for

trial in accordance with law. Both the appellants/accused

persons (A-1 and A-2) abjured their guilt and entered into

defence.

6. In order to bring home the offence, prosecution examined as

many as 13 witnesses and exhibited 23 documents.

Statements of the appellants/accused persons were taken

under Section 313 of CrPC wherein they denied guilt, however,

they examined none in their defence.

7. Learned Special Judge, after appreciation of oral and

documentary evidence on record, vide judgment dated

26/08/2011, convicted the two appellants/accused persons

namely Rasida Begam (A-1) and Nurtaj (A-2) for offences

punishable under Section 3(2)(v) of the Act of 1989 read with

Section 302/34 of IPC and sentenced them as aforesaid,

against which they have preferred Criminal Appeal No.

980/2011.

8. Appellant/accused Madu Miya was arrested on 23/06/2017.

Statements of the witnesses were recorded and after due

investigation, he was charge-sheeted for offences punishable

under Sections 302/34, 201/34 of IPC and Section 3(2)(v) of

the Act of 1989, which was committed to the Court of Special

Judge for separate trial in accordance with law, wherein he

abjured his guilt and entered into defence. Prosecution

examined as many as 12 witnesses and exhibited 18

documents, however, neither any witness was examined nor

any document was exhibited on behalf of the defence.

9. Vide judgment dated 21/11/2017, learned Special Judge

convicted the appellant/accused Madu Miya (A-3) for offences

punishable under Sections 302/34 and 201/34 of IPC and

sentenced him as aforesaid, against which Criminal Appeal

No. 1954/2017 has been preferred by him.

Submissions of the parties :-

10. Ms. Saloni Verma, learned counsel for the two

appellants/accused persons in Criminal Appeal No. 980/2011

namely Rasida Begam (A-1) and Nurtaj (A-2), as well as Mr.

Shailendra Sharma, learned counsel for the sole

appellant/accused in Criminal Appeal No. 1954/2017 namely

Madu Miya (A-3), would submit that so far as Rasida Begam

(A-1) is concerned, only evidence against her is that of her

memorandum statement (Ex. P/15) pursuant to which

recovery of one glass vial containing 20 gms of alleged poison

endosulfan has been seized vide Ex. P/16 and apart that,

there is no other incriminating evidence which connects her to

the crime in question. Moreover, with regard to Nurtaj (A-2),

there is not even the evidence of memorandum and seizure

available against him in order to convict him for the offence in

question and only because he had criminal antecedent in the

form of Crime No. 11/08 registered against him and four other

co-accused persons wherein they have been alleged with the

crime of robbery and murder, he has been convicted in the

present case as well. They would further submit that so far as

the conviction of Madu Miya (A-3) is concerned, prosecution

has miserably failed to adduce any legally admissible evidence

against him and learned Special Judge is absolutely

unjustified in convicting him for the aforesaid offences on the

basis of surmises and conjectures, as such, the conviction of

all the three appellants/accused persons is liable to be set

aside.

11. Per contra, Mr. Sudeep Verma, learned State counsel, would

submit that strong motive for offence has been proved agianst

the appellants/accused persons Nurtaj (A-2) and Madu Miya

(A-3) as they were involved in the commission of robbery and

murder of one Bankim Mandal and Crime No. 11/08 for

offences punishable under Sections 364, 394, 397, 302,

120B/34 of IPC were registered against them and since the

deceased Sanjeevan Uraon was residing with the

appellants/accused persons and was working at their house

as a domestic help, he knew about the involvement of Nurtaj

(A-2) and Madu Miya (A-3) in the said offence and he was also

summoned by the Police for inquiry. Nurtaj (A-2) and Madu

Miya (A-3), out of fear that deceased would make statement

against them, administered poison to him on the fateful day

and thereafter, Madu Miya (A-3) escorted him to his house

wherein he succumbed to death. He would further submit that

prosecution has proved the offence against Rasida Begam (A-

1) beyond reasonable doubt as on the basis of her

memorandum statement (Ex. P/15), recovery of a medicine

vial was made vide Ex. P/16 which contained 20 gm of

endosulfan. The said vial along with the visera of the deceased

was sent for FSL and as per the FSL report (Ex. P/13),

organochloro insecticide 'endosulfan' was found in both of

these articles. As such, both of the appeals filed by the

appellants/accused persons deserve to be dismissed.

12. We have heard learned counsel for the parties, considered

their rival submissions made herein-above and went through

the records with utmost circumspection.

Questions for consideration :-

13. The two integral questions that arise for consideration in

adjudication of both these appeals would be -

(I) whether deceased Sanjeevan Uraon died of poison said to

have been administered to him ?

(II) Whether it was the appellants/accused persons who

administered the said poison to the deceased and thereby,

murdered him ?

Answer to Question No. (I) :-

14. The cadaver of Sanjeevan Uraon was subjected to postmortem

on the recommendation of the panchas, which was conducted

by Dr. Pramod Kumar Sinha (P.W.-13), who has proved the

postmortem report (Ex. P/23) before the Court. After

examining the deceased, he has recorded in the postmortem

report (Ex. P/23) that there was no visible sign of injury over

his body; slight rigor mortis was present in upper and lower

limb; blood stained froth was coming from his nose and

mouth and marbling over his chest, abdomen and shoulder

was present. However, after the entire examination, the Doctor

could not opine about the cause and nature of his death and

therefore, he took visera of the deceased and after packing it

in a sealed pack plastic container handed it over to be sent for

FSL and as per the FSL report (Ex. P/13), visera of the

deceased, which was marked as Article B1 and B2, contained

organochloro insecticide 'endosulfan'. As such, we are of the

considered opinion that on the basis of FSL report (Ex. P/13),

it has been proved beyond doubt that deceased Sanjeevan

Uraon died on account of the poison administered to him

which has been found to be organochloro insecticide

'endosulfan'.

Answer to Question No. (II) :-

15. In order to arrive at the answer to this question, we will take

up both of the appeals filed by the appellants/accused

persons separately, however, it would first be relevant to

notice a few decisions rendered by the Supreme Court in this

regard which would apply to the case of all the three

appellants/accused persons conjointly.

16. In the matter of Anant Chintaman Lagu v. The State of

Bombay1, 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 poisioning; 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 1 AIR 1960 SC 500

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. "

17. Thereafter, in the matter of Sharad Birdichand Sarda v.

State of Maharashtra2, 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."

18. 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 Punjab3, in which, it was held that even if

there is failure of the prosecution to prove the possession of

2 (1984) 4 SCC 116 3 (1988) 3 SCC 513

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.

27. 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. "

Criminal Appeal No. 1954/2017 :-

19. Now, we shall consider the case of sole appellant/accused

Madu Miya (A-3) in light of the principles of law laid down by

their Lordships of the Supreme Court in the matter of Anant

Chintaman Lagu (supra) and Sharad Birdichand Sarda

(supra) to ascertain whether in his case, the four important

circumstances have been established or not ?

(I) Whether there is a clear motive for the accused to

administer poison to the deceased ?

20. It is admitted position on record that deceased Sanjeevan

Uraon worked as domestic help at the house of Madu Miya (A-

3) and also grazed the cattle owned by Madu Miya (A-3) and

thus, he used to take his meals as well as sleep at his house.

It is also admitted position on record that prior to the date of

offence, Crime No. 11/08 was registered at Police Station

Chando against Nurtaj (A-2), Madu Miya (A-3) as well as three

other co-accused persons for offences punishable under

Sections 364, 394, 397, 302 and 120B/34 of IPC alleging that

they had robbed Rs. 2,00,000/- from the shop of one Bankim

Mandal and thereafter, murdered him.

21. It is the case of the prosecution that since deceased stayed at

the house of Madu Miya (A-3), he knew about the said

incident and he was also summoned by the Police for inquiry

and since Nurtaj (A-2) and Madu Miya (A-3) were apprehensive

that deceased would make statement against them and he

would reveal some information to the Police, Madu Miya (A-3)

administered poison to the deceased by mixing it in his food

and thereafter, he immediately escorted him to his house,

wherein he succumbed to death.

22. In the trial against appellant/accused Madu Miya (A-3),

though mother of the deceased Sushila Tirkey (P.W.-1) has

turned hostile, but Arun Tirkey (P.W.-2), brother of the

deceased, has supported the case of the prosecution and has

clearly stated before the Court that on the fateful day,

deceased came to his house and he informed him that Madu

Miya (A-3) has administered poison to him on the pretext that

he knew that Madu Miya (A-3) had murdered Bankim Mandal

and so that he may not disclose the said information to

anyone, they administered poison to the deceased.

Immediately thereafter, he went to call the witchdoctor,

however, till then deceased Sanjeevan Uraon had already

succumbed to death. Though Arun Tirkey (P.W.-2) has been

subjected to cross-examination, but he has remained

consistent in his version.

23. As such, looking to the evidence available on record, in our

considered opinion, motive on the part of Madu Miya (A-3) to

administer poison to the deceased has clearly been

established by the prosecution.

(II) Whether the deceased died of poison said to have been

administered ?

24. We have already answered this question in affirmative that

deceased died due to the poison administered to him relying

upon the FSL report (Ex. P/18) wherein it has already been

proved that visera of the deceased contained organochloro

insecticide 'endosulfan'.

(III) Whether the accused had poison in his possession ?

25. So far as Madu Miya (A-3) is concerned, neither his

memorandum statement has been recorded nor any seizure

has been made from him. However, on the basis of

memorandum statement of his wife Rasida Begam (A-1) vide

Ex. P/10, a glass vial containing 20gm of endosulfan was

seized from the house of Madu Miya (A-3) vide Ex. P/11 and it

was also sent for FSL (Ex. P/18) in which it was found that

the substance found in the visera of the deceased as well as in

this glass vial were same i.e. organochloro insecticide

'endosulfan'. Thus, the appellant/accused Madu Miya (A-3)

must have had the said poison in his possession. Though,

memorandum and seizure witnesses namely Jumman Kadri

(P.W.-6) and Salil Ansari (P.W.-7) have turned hostile and have

not supported the case of the prosecution, but it has duly

been proved by the Investigating Officer D.D. Vaishnav (P.W.-

12).

(IV) Whether the accused had an opportunity to

administer the poison to the deceased ?

26. As we have already discussed above, deceased Sanjeevan

Uraon used to work as domestic help at the house of Madu

Miya (A-3) and also used to take his meals there and sleep

there and brother of the deceased namely Arun Tirkey (P.W.-2)

has also stated in his testimony that on the date of the

incident when his brother returned to their house, he

informed him that Madu Miya (A-3) had administered poison

to him by mixing it in his meal suspecting that he would

reveal information to the Police with regard to the murder of

Bankim Mandal committed by Madu Miya (A-3). In paragraph

6 of his cross-examination, he has again stated that on the

date of the incident, deceased had taken his meals at the

house of Madu Miya (A-3). As such, Madu Miya (A-3) had

sufficient opportunity to administer poison to the deceased.

27. In conclusion of the aforesaid legal discussion, we are of the

considered opinion that all the four circumstances stated

above, which have been laid down by their Lordships of the

Supreme Court in Anant Chintaman Lagu (supra) and

Sharad Birdichand Sara (supra), have been fully satisfied in

the present case and thus, in our considered opinion, learned

Special Judge has rightly convicted the appellant/accused

Madu Miya (A-3) for the aforesaid offences. We do not find any

good ground to interfere with the judgment of conviction and

order of sentence passed against Madu Miya (A-3).

Criminal Appeal No. 980/2011 :-

28. Now, we shall consider the cases of appellants/accused

persons Rasida Begam (A-1) and Nurtaj (A-2). So far as

conviction of Rasida Begam (A-1) is concerned, she has only

been implicated on the basis of her memorandum statement

(Ex. P/15) in which she has admitted that her husband Madu

Miya (A-3), her son Murtaja Ansari, her grandson Nurtaj (A-3)

and one Ayub Khan and Mubarak Ansari were involved in the

commission of murder of Bankim Mandal and since deceased

used to work at their house, he knew about the incident,

therefore, suspecting that he would reveal about the same to

the Police, her husband Madu Miya (A-3) brought poison

which they administered to him along with his dinner and

thereafter, he escorted the deceased to his house and on the

next morning, they got to know that deceased Sanjeevan

Uraon had died on account of the poison that they had

administered to him. On the basis of memorandum statement,

recovery of glass vial containing 20 gm of said poison was

seized from the house of Madu Miya (A-3) vide Ex. P/16 which

was proved by FSL report (Ex. P/13).

29. Though learned Special Judge has convicted Rasida Begam (A-

1) on the basis of memorandum (Ex. P/15) and seizure (Ex.

P/16), but she has clearly stated that it was her husband

Madu Miya (A-3) who had bought the said poison and brought

it in the house and the said poison was also administered to

the deceased by her husband Madu Miya (A-3).

30. The Supreme Court in the matter of Sharad Birdhichand

Sarda v. State of Maharashtra4 has laid down the five golden

principles that constitute the panchsheel of the proof of a case

based on circumstantial evidence, which state as under :-

4 (1984) 4 SCC 116

"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.

XXX XXX XXX (2) the facts so established should be consistent only with the hypothesis of 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 prove, 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."

31. In our considered opinion, merely on the basis of

memorandum and seizure, that too, which has not

been proved by the prosecution beyond reasonable

doubt, without any other corroborating piece of

evidence, conviction of Rasida Begam (A-1) for offence

punishable under Section 302/34 of IPC cannot be

rested upon, especially when her case is based upon

circumstantial evidence and it has not been proved by

the prosecution beyond reasonable doubt as per the

panchsheel principles laid down by the Supreme Court

in the matter of Sharad Birdhichand Sarda (supra).

32. Coming to the case of appellant/accused Nurtaj (A-2),

there is clear motive established by the prosecution

against Nurtaj (A-2) same as Madu Miya (A-3) that

since both of them were involved in murder of Bankim

Mandal and since they suspected that deceased would

reveal the said information to the Police, Madu Miya (A-

3) administered poison to him. However, though motive

is established by the prosecution, but it has also been

established that it was Madu Miya (A-3) who acted

upon the said motive and administered poison to the

deceased due to which he succumbed to death.

Moreover, there is no other incriminating piece of

evidence available against Nurtaj (A-2) and it is well-

settled law that even if motive for offence is

established, it is a weak piece of evidence and it may

be an important circumstance in a case based on

circumstantial evidence, but it cannot be held made

the basis of conviction solely. As such, it would be

unsafe to convict appellant/accused Nurtaj (A-2) for

offence punishable under Section 302/34 of IPC.

33. These two appellants/accused persons namely Rasida

Begam (A-1) and Nurtaj (A-2) have also been convicted

for offence punishable under Section 3(2)(v) of the Act

of 1989, however, it would become bad as they have

not been found guilty of offence punishable under

Section 302/34 of IPC.

Conclusion :-

34. Conviction of appellants/accused persons namely

Rasida Begam and Nurtaj for the offences punishable

under Section 3(2)(v) of the Act of 1989 read with

Section 302/34 of IPC is hereby set aside and they are

acquitted of the charges levelled against them. Since

they are already on bail, they need not surrender,

though their bail bonds shall remain in force for a

period of six months in view of the provision contained

under Section 437A of CrPC. However, the

appellant/accused Madu Miya (A-3) is hereby convicted

for offences punishable under Section 302, 201 of IPC

and the sentence awarded to him by the Special Judge

is hereby maintained.

35. Accordingly, Criminal Appeal No. 980/2011 stands

allowed whereas Criminal Appeal No. 1954/2017

stands dismissed.

                  Sd/-                                    Sd/-
     (Sanjay K. Agrawal)                       (Rakesh Mohan Pandey)
          Judge                                        Judge



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