Madhya Pradesh High Court
Kailah Chamar & Ors. vs State Of M.P. on 7 August, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1 CRA-2857-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 7 th OF AUGUST, 2024
CRIMINAL APPEAL No. 2857 of 1998
KAILAH CHAMAR & ORS. AND OTHERS
Versus
STATE OF M.P.
Appearance:
Shri Amanulla Usmani - Advocate for the appellants.
Ms. Priyanka Mishra - Government Advocate for the State.
Reserved on : 25.07.2024
Pronounced on: 07.08.2024
JUDGMENT
In this criminal appeal, the appellants (hereinafter referred to as "accused
persons") have challenged the judgment delivered on 6.11.1998 by First
Additional Sessions Judge, Sehore, in Sessions Trial No.114/1998 whereby
they were convicted of the offence of Section 328/34 IPC and sentenced to
three years rigorous imprisonment and fine of Rs.3,000/- with a default
clause to undergo additional rigorous imprisonment of six months in case of
non-payment of fine.
2. Facts relevant for the decision of this criminal appeal are that on
28.4.1998 complainant Prembai reported to the police that she was forcibly
administered poison by the accused persons, who were her husband, brother-
in-law and sister-in-law, and in this process they also physically assaulted
her; the complainant reached to Aastha Hospital along with her minor son
2 CRA-2857-1998
Meharban Singh where she was given treatment and the information was sent
to Police Station, Aastha; the matter was inquired into and the FIR was
registered. After investigation, the charge-sheet was filed and the trial was
held, which culminated into the impugned judgment of conviction and
sentence as discussed above and by that judgment accused persons were
acquitted of the charge of Section 307/34 IPC.
3. The grounds raised in this criminal appeal are that the finding of
conviction passed by the trial court is bad in law as it was not based upon
proper appreciation of evidence; prosecution witnesses Prembai (P.W.4) and
Meharban Singh (P.W.5) had deposed before the court that the poison was in
liquid form while the case diary statements suggest that poisonous tablets
were forcibly inserted into the mouth of complainant; the alleged incident
was between 10:00 - 12:00 p.m. but the FIR was lodged with a considerable
delay without explaining the reason thereof; there was no report of chemical
examiner to suggest that victim was made to consume any poisonous
substance; there was no evidence recovered from the place of incident which
would support this allegation; the ten-year-old boy Meharban Singh was
tutored by his mother and relatives; the reason for forcibly administering the
poisonous was also not proved in the case; the marriage of complainant had
completed almost 15-16 years and they had two children; the injuries
allegedly found on the person of complainant were simple in nature while
she had claimed that she was given blows with lathi; the application
regarding compromise reached between the parties was ignored by the trial
court. It was, therefore, prayed that the appeal should be allowed and the
accused persons should be acquitted.
3 CRA-2857-1998
4. State has opposed the appeal claiming that the impugned judgment
shows reasoned assessment of evidence, therefore no interference is
warranted.
5. Both the parties have been heard and the record of the trial court has
been perused.
6. All the three accused persons were convicted in this case for
administering poisonous substance to complainant Prembai. To prove this
fact, prosecution has relied upon the testimony of Dr. R. C. Gupta (P.W.3),
who was posted as Block Medical Officer in Civil Hospital, Aastha, when on
28.4.1998 complainant Prembai was brought to that hospital by her father.
The witness was informed that victim was forcibly administered rat-killer
and was beaten by her husband. According to this witness, complainant was
vomiting and there was a pungent smell in her mouth, therefore he suspected
that it was a case of poisoning. These statements reveal that he had only a
suspicion about poisoning and had not given any final opinion on this count.
According to him he did not preserve the throw-up material, hence nothing
was handed over by him for chemical examination of the contents of vomit.
Consequently, there was no chemical analysis report to examine whether
there was any poisonous substance in the vomiting. Further, no steps were
taken by Investigating Officer to collect any such material from the spot
which would have confirmed the fact that any poisonous substance was
consumed or was forced to be consumed by the complainant.
7. In the total absence of any chemical analysis about the substance
contained in the vomit of victim, it was not supposed to be assumed that she
was administered any poisonous material. Further, the Investigating Officer
4 CRA-2857-1998
failed to recover any poisonous material from the house of accused persons
where the alleged incident had occurred. It has been aptly argued by the
learned counsel for accused persons that in her court testimony, the
complainant claimed that poisonous material was in liquid form while in her
case diary statements, marked as Ex.D-1, she claimed that a tablet was
forcibly put in her mouth. This contradiction is very material and the
statements of complainant have failed to explain it. Similar contradictions
have surfaced in the testimony of Meharban Singh (P.W.5), the son of
complainant.
8. In the light of material contradiction in the testimony of important
witnesses and also in the absence of any chemical examination report
regarding the administration of poisonous substance, the conviction of
accused persons under Section 328/34 IPC cannot be upheld.
9. The evidence available on record reveals that the complainant was
physically assaulted but according to Dr. R. C. Gupta (P.W.3) all these
injuries which he found in the MLC report, marked as Ex.P-4, were simple
in nature. It cannot be ignored here that a compromise was reached between
the parties at the stage of prosecution evidence but it was rejected on
6.10.1998 for the reason that the offence charged was not compoundable.
10. Now, if we consider that aspect here then this court comes to the
conclusion that the offence of Section 328/34 IPC has not been established
against the accused persons. They were acquitted of the charge of Section
307 IPC by the trial court itself. The only offence that can be established
against them on the basis of prosecution evidence is of the offence of Section
323 IPC for causing simple injuries to the complainant and the nature of said
5 CRA-2857-1998
offence is compoundable.
11. On the basis of foregoing discussion, this court comes to the
conclusion that the prosecution has failed to prove the offence of Section
328/34 IPC against the accused persons and they cannot be convicted even
for the offence of Section 323 IPC for the simple reason that a compromise
was arrived at between the parties before the trial court itself. The parties are
close relatives in the light of fact that accused Kailash is the husband of
complainant while other two accused are the brother and the sister-in-law of
accused Kailash. Although, no compromise petition has been filed before
this court but considering the close relationships between the parties, the
compromise reached between them before the trial court deserves to be
honoured to maintain their cordial relations which were finally established
before the trial court itself.
12. Accordingly, the accused persons are acquitted in the case and this
appeal is allowed .
13. The accused persons are already on bail. Their bail-bonds stand
discharged.
14. The fine amount, if any, deposited by the accused persons be refunded
to them.
15. A copy of this judgment along with its record be send to the trial court
for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
6 CRA-2857-1998
ps
Date: 2024.08.08 11:27:49 +05'30'
