Motilal Sahu @ Motiram Sahu vs State Of Chhattisgarh
2023 Latest Caselaw 34 Chatt

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                                                                           NAFR
              HIGH COURT OF CHHATTISGARH AT BILASPUR
                            Criminal Appeal No. 318 of 2013

          Motilal Sahu @ Motiram Sahu, S/o Heerasingh Sahu, Aged
          about 26 years, R/o Village Kosmi, Thana Dondi Lohara,
          District Balod, Chhattisgarh.

          At present R/o Maroada, G.R.P. Colony, Bhilai, Thana Newai,
          Distt. Durg, Chhattisgarh.
                                                                  ---Appellant

                                         Versus

          State of Chhattisgarh through Police Station Torwa, District
          Bilaspur, Chhattisgarh.

                                                               ---Respondent


          For Appellant       :-     Mr. Rajesh Jain and
                                     Mrs. Kiran Jain, Advocates
          For State           :-     Mr. Avinash Singh, P.L.


                 Hon'ble Shri Justice Sanjay K. Agrawal
               Hon'ble Shri Justice Rakesh Mohan Pandey
                          Judgment on Board
                              03/01/2023


Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC has been

preferred by the appellant herein against the impugned

judgment dated 08/01/2013 passed by learned 3 rd Additional

Sessions Judge, Bilaspur in Sessions Trial No. 108/2012

whereby he has been convicted for offence punishable under

Section 302 of IPC and sentenced to undergo life

imprisonment with fine of Rs. 1000/- and in default of

payment of fine, further R.I. for two months.

Case of the prosecution :-

2. Case of the prosecution, in brief, is that on 26/04/2012 at

about 03:30 PM at Hemunagar, near New Sindhi

Dharamshala, within the ambit of Police Station Torwa, the

appellant herein murdered Deepa Sahu by way of

administering insecticide to her and he thereby, committed

the aforesaid offences.

3. It is admitted position on record that appellant and deceased

were relatives and deceased Deepa Sahu was sister-in-law of

the appellant due to which he often visited her house and

developed a love affair with her. Further case of the

prosecution is that when the appellant got to know that

parents of the deceased have fixed her marriage with someone

else, he got upset and visited the house of the deceased and

he was staying at her house from one week prior to the date of

the incident. On 26/04/2012, when parents of the deceased

went to Rajnandgaon to attend a marriage, appellant

administered insecticide to the deceased in a steel bowl.

Immediately thereafter, deceased was taken to the District

Hospital, Bilaspur wherein she was admitted and was

undergoing treatment but she succumbed to death at about

5:25 PM on the same day. On the basis of the memo received

from the Hospital, merg intimation was registered by the

Police vide Ex. P/21 and thereafter, statements of Kiran Sahu

(P.W.-4), sister of the deceased, and Khorbahra Sahu (P.W.-3),

father of the deceased, were recorded and summons under

Section 175 of CrPC were issued vide Ex. P/9. Inquest was

conducted vide Ex. P/10 and the dead body was subjected to

postmortem, which was conducted by Dr. A.K. Kaushik (P.W.-

1) and as per the postmortem report (Ex. P/1), cause of death

is said to be cardio-respiratory arrest due to suspected case of

poisoning, hence, viscera was preserved and was sent for FSL.

In the presence of the witnesses, spot map was prepared vide

Ex. P/11 and from the spot, steel bowl was seized vide Ex.

P/17. Memorandum statement of the appellant was recorded

vide Ex. P/18 and on that basis, a plastic container of

insecticide was seized vide Ex. P/19. The said steel bowl,

plastic container as well as the viscera of the deceased were

sent for FSL and as per the FSL report (Ex. P/24), in all of

these three articles, organophosphorous insecticide

'monochrotophos' has been found. After recording the

statements of the witnesses and 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.

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

many as 15 witnesses and exhibited 24 documents. On behalf

of defence, 2 witnesses have been examined and only 1

document has been filed. Statement of the appellant/accused

was taken under Section 313 of CrPC wherein he denied guilt

and stated that he has been falsely implicated in the crime in

question and since parents of the deceased stopped her from

talking to the appellant, she consumed poison herself.

5. Learned trial Court, after appreciation of oral and

documentary evidence on record, convicted the appellant for

offence punishable under Section 302 of IPC holding him to be

the perpetrator of crime in question and sentenced him as

aforesaid.

Submissions of the parties :-

6. Mr. Rajesh Jain, 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 solely relying upon the testimony of Kiran Sahu

(P.W.-4), child witness and sister of the deceased who is cited

to be an eye-witness of the incident, as she is an interested

witness and her testimony could not have been relied upon to

convict the appellant. Moreover, since the parents of the

deceased used to taunt her and stopped her from talking to

the appellant, she herself consumed poison, as such, the

instant appeal be allowed and appellant be acquitted of the

charge levelled against him.

7. Per contra, Mr. Avinash Singh, learned State counsel, would

submit that the trial Court has rightly convicted the appellant

relying upon the statement of sister of deceased namely Kiran

Sahu (P.W.-4) who has clearly stated that appellant

administered poison to the deceased. Moreover, steel bowl and

plastic container of insecticide have also been seized from the

spot and they were sent for FSL along with the viscera of the

deceased and as per the FSL report (Ex. P/24),

organophosphorous insecticide monochrotophos has been

found in them. Furthermore, it is also the case of the defence

that deceased died on account of poisoning. In that view of the

matter, the instant appeal deserves to be dismissed.

8. 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 :-

9. The two integral questions that arise for consideration in

adjudication of this appeal would be -

(I) whether deceased Deepa Sahu died of poison said to have

been administered to her ?

(II) Whether it was the appellant/accused who administered

the said poison to the deceased and thereby, murdered her ?

Answer to Question No. (I) :-

10. The dead body of Deepa Sahu was subjected to postmortem on

the recommendation of the panchas, which was conducted by

Dr. A.K. Kaushik (P.W.-1), who has proved the postmortem

report (Ex. P/1) before the Court. After examining the

deceased, he has recorded in the postmortem report (Ex. P/1)

that there was no visible sign of injury over her body; rigor

mortis was present in lower limb; bloody froth was coming out

from both of her nostrils and running towards her right ear.

After the entire examination, the Doctor opined that cause of

death is due to cardiorespiratory arrest on account of

suspected case of poisoning, however, since he had his

doubts, he collected the 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/24), visera of

the deceased, which was marked as Article D1 and D2,

contained organophosphorous insecticide 'monocrotophos'. As

such, we are of the considered opinion that on the basis of

FSL report (Ex. P/24), it has been proved beyond doubt that

deceased Deepa Sahu died on account of the poison

administered to her which has been found to be

organophosphorous insecticide 'monocrotophos'.

Answer to Question No. (II) :-

11. 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 in this regard which squarely applies to the case of the

appellant/accused.

12. 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

1 AIR 1960 SC 500

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. "

13. 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,

2 (1984) 4 SCC 116

(3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased."

14. 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

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

3 (1988) 3 SCC 513

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. "

15. Thus, we shall consider the case of the appellant/accused 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 ?

16. Learned trial Court has recorded a clear finding and has held

that motive of the appellant to administer poison to the

deceased has been found proved. It is the case of the

prosecution that appellant's first wife had died and thereafter,

he had developed love affair with the deceased, who was his

sister-in-law and he had come to visit the deceased and was

staying at her house from a week prior to the date of offence.

It is also the case of the prosecution that parents of the

deceased were unhappy with the relationship of the appellant

and the deceased and they used to stop her from talking to

the appellant and her parents had even fixed her marriage

with someone else, which the trial Court has also found

proved and it is also clear from the explanation extended by

the appellant/accused in his statement under Section 313

CrPC that parents of the deceased were unhappy with the

appellant and the deceased. Therefore, looking to the evidence

available on record, in our considered opinion, motive on the

part of the appellant to administer poison to the deceased has

clearly been established by the prosecution and the trial Court

has rightly held as such.

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

administered ?

17. We have already answered this question in affirmative that

deceased died due to the poison administered to her relying

upon the FSL report (Ex. P/24) wherein it has already been

proved that viscera of the deceased contained

organophosphorous insecticide 'monocrotophos'.

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

18. Pursuant to the memorandum statement of the appellant vide

Ex. P/18, seizure of one plastic container of insecticide was

made from the rooftop bathroom in the house of the deceased,

which has been proved by seizure witness Bedram (P.W.-7)

and it was the same room in which appellant was staying from

a week prior to the date of the offence. The said container was

also sent for FSL and as per FSL report (Ex. P/24),

organophosphorous insecticide 'monocrotophos' was found in

the said container, which has been proved by the Investigating

Officer Vijay Sharma (P.W.-11). As such, from the

memorandum and seizure vide Ex. P/18 and P/19 as well as

from the FSL report (Ex. P/24), which have been duly proved

by the prosecution, we are of the considered opinion that it

has duly been established that appellant had poison in his

possession.

(IV) Whether the accused had an opportunity to

administer the poison to the deceased ?

19. As we have discussed above, appellant had come to stay at the

house of the deceased one week prior to the date of the offence

and was staying therein when on the fateful day, parents of

the deceased went to Rajnandgaon to attend a wedding, as

such, the appellant had the opportunity to administer the

poison to the deceased since her parents were not at home.

20. Moreover, sister of the deceased namely Kiran Sahu (P.W.-4)

has been examined before the Court, who has clearly stated

that on 26/04/2012 at about 3 PM, while she was taking

bath, she heard the cries of her sister and she immediately

went to her and saw that appellant was holding a steel bowl

which contained some liquid and he was making her sister

drink it. When she tried to inform about the same to her

parents, appellant snatched the mobile phone from her.

Thereafter, she went outside and called her brother Prahlad

Sahu (P.W.-6) and sister-in-law Rambati Sahu and when she

returned, she found that the appellant had laid her sister on

bed and froth was oozing from her mouth. Thereafter, her

brother Prahlad Sahu (P.W.-6) and other people from nearby

came and took the deceased to the hospital wherein she

succumbed to death.

21. Kiran Sahu (P.W.-4) has clearly stated in paragraph 5 of her

statement that it was the appellant who had administered

poison to the deceased and caused her death. In her cross-

examination, suggestion has been made to her that her sister

drank poison herself since her mother had scolded her, but

she has refused and has remained consistent in her version

that appellant had administered poison to the deceased due to

which she had died. Thus, we are of the considered opinion

that appellant had sufficient opportunity to administer poison

to the deceased.

22. 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.

Conclusion :-

23. Prosecution has duly proved beyond reasonable doubt

that appellant is the perpetrator of the crime in

question and he is the one who administered poison to

her and caused her death. As such, learned trial Court

has rightly convicted the appellant for offence

punishable under Section 302 of IPC and we do not

find any good ground to interfere with the impugned

judgment. Since the appellant is on bail, his bail bonds

are forfeited and we direct him to surrender forthwith

to serve out his remaining sentence failing which he

will be apprehended in accordance with law.

24. Accordingly, this criminal appeal stands dismissed.

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



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