Chattisgarh High Court
Neelamber Yadav vs State Of Chhattisgarh on 9 January, 2025
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.01.13
12:01:15 +0530
2025:CGHC:1358-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 773 of 2019
1. Neelamber Yadav S/o Shri Khema Yadav Aged About 26
Years By Caste - Mahakul, R/o Village - Kandora, Thana -
Kunkuri, District Jashpur Chhattisgarh.
2. Khema Yadav S/o Shri Kurso Yadav Aged About 55 Years
By Caste - Mahakul, R/o Village - Kandora, Thana -
Kunkuri, District Jashpur Chhattisgarh.
... Appellants
versus
State Of Chhattisgarh Through The District Magistrate,
Jashpur, District Jashpur, Chhattisgarh.
... Respondent
For Appellants : Mr. J. K. Gupta, Advocate, and
Mr. Damrudhar Yadav, Advocate
For Respondent/State : Mr. Rahul Tamaskar, Govt. Advocate
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
2
Judgment on Board
(09.01.2025)
Sanjay K. Agrawal, J.
1. The two appellants herein who are son and father have
jointly preferred this criminal appeal under Section 374(2) of
Cr.P.C. calling in question the legality, validity and
correctness of the judgment of conviction and order of
sentence dated 27.04.2019, passed by learned Additional
Judge to the Court of Additional Sessions Judge, Kunkuri,
District Jashpur (C.G.) in Sessions Trial No.64/2015,
whereby the appellants have been convicted for offence
punishable under Section 302/34 of IPC and sentenced to
undergo imprisonment for life and fine of Rs.2,000/- each,
in default of payment of fine, to undergo one year additional
rigorous imprisonment.
2. The case of the prosecution, in short, is that on 12.05.2015
at about 07 a.m., in village Kandora, Police Station Kunkuri,
District - Jashpur, the two appellants herein administered
insecticide organophosphorus to the wife of appellant No.1
Risna Yadav within 5 years of her marriage, by which she
died, thereby, the offence has been committed. The matter
was reported to the Police by Appellant No.2 himself i.e. the
father-in-law of the deceased along with Hamrah Sagar
Yadav, based on which, Merg Intimation was recorded vide
Ex.P-09 and FIR was registered vide Ex.P-10. Spot map was
prepared vide Ex.P-5. Inquest was conducted vide Ex.P-2
and the dead body was sent for postmortem examination
which was conducted by Dr. C. K. Say (PW-3), who proved
the post-mortem report Ex.P-3, according to which, the
cause of death was opined to be cardio-respiratory failure
due to unknown poisoning and the nature of death was
uncertain. Viscera (Article A + B) was sent for chemical
examination to FSL and as per the FSL report Ex.P-19,
Article A & B (pieces of Lungs, Liver, Spleen, Kidney, Heard
Stomach & its content) contained organophosphorus
insecticide phosphamidon. As per query report (Ex. P-4)
regarding the injury, it has been opined by Dr. C. K. Say
(PW-3) that after consuming poison, the deceased may have
got the said injuries due to physical pain by falling on a hard
and rough surface or in the event of a struggle. After
completion of investigation, the appellants were charge-
sheeted for the offence under Sections 304B, 306 & 302/34
of IPC before the jurisdictional criminal court and the case
was ultimately committed to the Sessions Court for trial and
its disposal in accordance with law.
3. During the course of trial, in order to bring home the offence,
the prosecution has examined as many as 11 witnesses
and exhibited 19 documents. The statements of
accused/appellants were recorded under Section 313 of the
CrPC in which they denied the circumstances appearing
against them in the evidence brought on record by the
prosecution, pleaded innocence and false implication. The
accused-appellants in support of their defence have not
examined any witness but have exhibited 2 documents.
4. Learned trial Court, after appreciation of the oral and
documentary evidence available on record, acquitted the
appellants of the charges under sections 304B and 306 of
IPC and convicted and sentenced the appellants as
mentioned in the opening para of this judgment against
which the present appeal has been preferred by the
appellants questioning the legality, validity and correctness
of the impugned judgment.
5. Learned counsel appearing for the appellants would submit
that the trial Court has acquitted the appellants of the
charges under Section 304B and 306 of IPC, therefore, they
could not have been convicted under section 302/34 of IPC
as it is a case of suicide. He submits that out of the 4
important circumstances which were required to be
established for convicting the appellants, except one that the
deceased died of poison which is said to have been
administered to her, 3 circumstances with regard to clear
motive, the appellants did not have poison in their
possession and they did not have an opportunity to
administer poison to the deceased, are not established as
according to the statement of Sangeeta Yadav (PW-1) the
deceased was found in the room which was bolted from
inside and was broken by axe. As such, the appellants are
entitled for acquittal on the basis of the principles of benefit
of doubt.
6. Mr. Rahul Tamaskar, learned State counsel supports the
impugned judgment and submits that the prosecution has
been able to bring home the offence beyond reasonable
doubt and therefore, the conviction of appellants for offence
under Sections 302/34 is well merited, as such, the appeal
deserves to be dismissed.
7. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and gone through
the records with utmost circumspection.
8. Initially charges were framed against the two appellants for
offence under Sections 304B & 306 of IPC on 16.11.2015.
Later on, charge under Section 302, in alternative 302/34 of
IPC was added by order dated 26.04.2019. The trial Court
vide impugned judgment has acquitted the two appellants of
the offence under Section 304-B of IPC holding that the
prosecution could not be able to prove that the deceased
died on account of the cruelty meted out by the appellants in
connection with demand of dowry. The appellants have also
been acquitted of the offence under Section 306 of IPC
holding that there is no evidence of abetment on the part of
appellants. However, the trial Court has convicted the
appellants for offence under section 302/34 of IPC holding
that the deceased died on account of poisoning and as per
FSL report Ex.P-19, organophosphorus insecticide was
found in the viscera and the two appellants could not
explain as to how the poisonous substance reached to the
deceased and how the deceased suffered injury in her wrists
and knee.
9. Now, the question for consideration is whether the
prosecution has been able to prove that it is the appellants
who have caused the death of Risna Yadav by poisoning?
10. The law in this regard is well settled. In the matter of Anant
Chintaman Lagu v. The State of Bombay 1, 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
poisoning; 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
1 AIR 1960 SC 500
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."
11. Thereafter, in Sharad Birdhichand 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 paragraphs 164,
165 and 166:
"164. We now come to the mode and manner of
proof of cases of murder by administration of
poison. In Ramgopal case8 this Court held thus :
Three questions arise in such cases,
namely (firstly), did the deceased die of the
poison in question ? (secondly), had the
accused the poison in his possession ? and
(thirdly), had the accused an opportunity to
administer the poison in question to the
deceased ? It is only when the motive is there
and these facts are all proved that the court
may be able to draw the inference, that the
2 (1984) 4 SCC 116
poison was administered by the accused to the
deceased resulting in his death.
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.
168. The facts of the case cited above were very
much similar to the present appeal. Here also,
the Court found that circumstances afforded a
greater motive to the deceased to commit suicide
than for the accused to commit murder. This
view was reiterated in Dharambir Singh case10
where the Court observed as follows :
Therefore, along with the motive, the prosecution
has also to establish that the deceased died of a
particular poison said to have been administered,
that the accused was in possession of that poison
and that he had the opportunity to administer the
same to the deceased; (see Mt. Gajrani v.
Emperor11). It is only when the motive is there and
these facts are all proved that the court may be able
to draw the inference, in a case of circumstantial
evidence, that the poison was administered by the
accused to the deceased resulting in his death."
12. The principle of law laid down by the Supreme Court in
Anant Chintaman Lagu (supra) and Sharad Birdhichand
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,
3 (1988) 3 SCC 513
if the prosecution clearly proves that it is a case of
circumstantial evidence. The following was thus held in
paragraphs 26 & 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
desirable 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 Lagu v. The State 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. ..."
13. The aforesaid decisions of the Supreme Court in Anant
Chintaman Lagu (supra), Sharad Birdhichand Sarda
(supra) and Bhupinder Singh (supra) have been followed in
the matter of Sandeep Kumar and others v. State of
Uttarakhand and another4
14. Recently in the matter of Hariprasad Alias Kishan Sahu v.
State of Chhattisgarh5, the Hon'ble Supreme Court in
paragraphs 27 held as under:
"27. Having regard to such scanty evidence, it is
difficult to hold that the prosecution had proved
the four important propositions laid down by this
Court in case of allegation of murder by
poisoning namely (1) the accused had a clear
motive to administer poison to the deceased; (2)
the deceased died of poison said to have been
administered; (3) the accused had the poison in
his possession and that (4) the accused had an
opportunity to administer the poison to the
deceased. It is also pertinent to note that the
Chemical examination report (Ex. P/14) though
was an incriminating piece of evidence, was not
brought to the notice of the appellant during the
course of his examination under Section 313 of
Cr.P.C. All these circumstances put together,
have made the case of prosecution very
vulnerable."
15. Now, we shall consider the case of the appellants in the light
of the principles laid down by their Lordships of the
Supreme Court in the matter of Anant Chintamna Lagu
(supra) and Sharad Birdichand Sarda (supra) to ascertain
whether the four important circumstances have been
established in this case to convict the appellants for offence
punishable under Section 302/34 of IPC?
1. Clear motive for the offence
16. The case of the prosecution was that the marriage of the
deceased Risna Yadav with appellant No.1 was solemnized
on 20.05.2010 and within 5 years of her marriage, on
4 2020 SCC OnLine SC 980
5 (2024) 2 SCC 557
12.05.2015 she died an unnatural death as the appellants
treated her cruelty in connection with demand of dowry
which is a clear motive. However, the trial Court, after
detailed discussion in paragraphs 18 & 19 of its judgment,
held that the prosecution has failed to prove that the two
appellants had subjected the deceased to cruelty in
connection with demand of dowry and proceeded to acquit
the appellants of the charge under Section 304B of IPC.
Hence, the first circumstance that there must be clear
motive for the accused to administer poison to the deceased
is not at all established. No other motive has been even
alleged or proved by the prosecution. As such, clear motive
on the part of the prosecution has not been established.
2. Whether the deceased died of poison said to have
been administered?
17. As per the FSL report Ex.P-19, the viscera (pieces of Lungs,
Liver, Spleen, Kidney, Heard Stomach & its content)
contained organophosphorus insecticide phosphamidon. As
such, the second circumstance has been proved by the
prosecution.
3. Whether the accused persons had the poisonous
substance in their possession?
18. There is no evidence on record to show that any poisonous
substance was seized either from the possession of
appellants or from the house in question except the
poisonous substance found in the viscera of the deceased.
However, the trial Court has only said that the appellants
could not explain as to how the poisonous substance
reached to their house which is said to have been consumed
by the deceased. As such, the third circumstance is not
established.
4. Whether the appellants had an opportunity to
administer the poison to the deceased
19. As it is already discussed that no poisonous substance was
found from the possession of the appellants or from the
house in question, the fourth circumstance that the
appellants had an opportunity to administering the poison to
the deceased is also not established.
20. Thus, out of four circumstances laid down by their Lordships
of the Supreme Court in the case of Sharad Birdhichand
Sarda (supra), three important circumstances i.e. clear
motive, the accused persons had poison in their possession
and they had an opportunity to administer the poison to the
deceased are absolutely missing in the present case. Merely
on the basis of one or two injuries found on the body of the
deceased which the appellants could not explain, the
appellants cannot be convicted for the offence under Section
302/34 of IPC as the prosecution witness Sangeeta Yadav
(PW-1) has clearly stated that on the date of incident
appellant No.2 came to her house to call her. She went to
the house of the appellants and saw that deceased Rishna
Yadav was inside her room and the door was bolted from
inside. Then appellant No.1 broke the door with the help of
an axe and the deceased was found struggling on the floor in
her room. According to this witness, the deceased was taken
to Holy Cross Hospital, Kunkuri where she died. The
statement of prosecution witness is binding upon the
prosecution. As such, the prosecution has failed to
establish the offence under Section 302/34 of IPC against
the two appellants beyond reasonable doubt. Thus, the
appellants are entitled for acquittal on the ground of benefit
of doubt.
21. Accordingly, the conviction of both the appellants for offence
punishable under Section 302/34 of IPC is hereby set-aside
and they are acquitted of the said charge. The appellants are
reported to be in jail. They be released from jail forthwith, if
their detention is not required in connection with any other
offence.
22. This criminal appeal, accordingly, stands allowed.
23. Let a certified copy of this judgment along with the original
record be transmitted forthwith to the concerned trial Court
for necessary information & action, if any. A copy of the
judgment may also be sent to the concerned Jail
Superintendent wherein the appellants are suffering the jail
sentence.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Judge Judge
Khatai
