Full Judgment Text
2023 INSC 986
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1182 OF 2012
HARIPRASAD @ KISHAN SAHU …APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH …RESPONDENT(S)
J U D G M E N T
BELA M. TRIVEDI, J.
1. The Appellant-accused by way of present appeal has assailed the
Judgment and Order dated 09.02.2011 passed by the High Court of
Chhattisgarh at Bilaspur, in Criminal Appeal No.324 of 2006, whereby
the High Court has confirmed the judgment of conviction and order of
sentence dated 09.03.2006 passed by the Special Judge, (Atrocities),
Bilaspur, Chhattisgarh (hereinafter referred to as the ‘Trial Court’) in
Special Criminal Case No.19 of 2005. The Trial Court in the said case
while acquitting the appellant-accused from the charge under Section
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2023.11.07
16:45:40 IST
Reason:
3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, (hereinafter referred to as the SC/ST Act), had
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convicted him for the offence under Section 302 of IPC and sentenced
him to undergo imprisonment for life and pay a fine of Rs.1,000/-, in
default thereof, to further undergo Rigorous Imprisonment for one year.
2. The case of the prosecution as unfolded by it was that on 22.07.2003,
during the evening hours, Bisahu Singh (the deceased) had gone to the
forest for collecting woods, however he did not come back in the night.
The next day morning his wife Ganeshi Bai saw him lying in the
Verandah of his house in a semi-conscious state. At that time, some
wheezing sound, and pungent smell of liquor was coming from his
mouth. Ganeshi Bai and her daughter Anita tried to wake him up, but in
his slurred speech, he was trying to say that while he was going to the
forest, Hariprasad (the appellant-accused) called him at his home and
made him to drink two glasses of liquor and thereafter Hariprasad mixed
some jadi-buti (herb) in the third glass of liquor, and made him to drink
the third glass. Ganeshi Bai called her neighbours and took him to CIMS
Bilaspur, as the health of Bisahu Singh was deteriorating. During the
course of treatment, Bisahu Singh died on 23.07.2003 at about 03.30
P.M. The death was intimated to the police and Merg – Intimation (Ex.
P/4) was prepared. The dead body of Bisahu Singh was sent for autopsy
to CIMS Bilaspur. Dr. A.K. Shukla conducted the Post-mortem on
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24.07.2003 and recorded in the Post-mortem Report (Ex. P/13) as
under: -
“Cause of death could be decided after Chemical
examination of Viscera preserved.”
3. After the receipt of the report of Chemical examiner (Ex. P/14), the FIR
was registered on 03.11.2004. (Ex. P/11)
4. During the course of trial, the prosecution had examined nineteen
witnesses and led the documentary evidence. The Appellant-accused
who was examined under Section 313 of Cr.P.C. denied the allegations
levelled against him and pleaded innocence. He also examined DW-1
Pardesi Ram Gond, who had deposed that from 19.07.2003 to
23.07.2003 appellant was there in his house at Raipur. The Trial Court
after appreciating the evidence on record, convicted and sentenced the
appellant as stated hereinabove, which has been confirmed by the High
Court.
5. The learned Counsel for the Appellant placing heavy reliance on the
1
decision of Sharad Birdhichand Sarda vs. State of Maharashtra
submitted that in case of the alleged death due to poisoning, the
prosecution was required to prove that there was clear motive of the
1
(1984) 4 SCC 116
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accused to administer the poison to the deceased; that the accused had
the poison in his possession and that he had the opportunity to
administer the poison to the deceased. However, in the instant case
none of these circumstances were proved by the prosecution. He further
submitted that there was gross delay of one year occurred in filing the
FIR, in as much as the alleged incident had taken place on 22.07.2003,
however the FIR was lodged after more than one year i.e. on
03.11.2004. The so-called dying declarations of the deceased before the
family members were not believable. The most important incriminating
evidence i.e. FSL report (Ex. P/14) was not brought to the notice of the
appellant when he was examined under Section 313 of Cr.P.C.
According to him the entire story put forth by the prosecution was not
only highly improbable but was not proved beyond reasonable doubt.
6. However, the learned Counsel for the Respondent State vehemently
submitted that both the courts below having recorded the findings of
conviction against the appellant for the offence under Section 302 and
imposed the sentence of life imprisonment accordingly, this Court in
exercise of the jurisdiction under Article 136 of the Constitution should
not interfere with the same. He further submitted the delay caused in
obtaining the report of chemical analyzer had delayed the lodging of the
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FIR, which explanation has been accepted by the Trial Court as well as
by the High Court, and hence the same should not be held to be fatal to
the case of prosecution, more particularly when all the witnesses had
duly supported the case of prosecution.
7. Having regard to the submissions made by the learned counsel for the
parties and having thoroughly gone through the oral as well as
documentary evidence on record, in our opinion three broad questions
arise for determination before this Court:
(i) Whether the delay of about more than one year occurred in
registering the FIR could be said to be fatal to the case of
prosecution?
(ii) Whether the prosecution had proved beyond reasonable doubt
that the deceased had died due to administration of poison?
(iii) Whether the prosecution had proved beyond reasonable doubt
that the appellant accused had administered the poison in the
liquor and made the deceased to drink it on 22.07.2003 i.e., on
the previous date of his death?
8. So far as the first issue with regard to the delay occurred in registering
the FIR is concerned, it is not disputed that though the incident in
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question had taken place on 22.07.2003, and the deceased Bisahu
Singh had expired on 23.07.2003, the FIR (Ex. P/11) was registered
after more than one year i.e., on 03.11.2004 against the appellant-
accused alleging offence under Section 302 of IPC.
9. It cannot be gainsaid that the First Information Report in a criminal case
is an extremely vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced during the course of the trial.
The object of insisting upon prompt lodging of the report to the police in
respect of the commission of an offence is to obtain early information
regarding the circumstances in which the crime was committed, the
names of actual culprits and the part played by them as well as names
2
of the eye witnesses present at the scene of occurrence . It is also an
equally settled legal position that the receipt and recording of
information report by the police is not a condition precedent to set into
3
motion a criminal investigation . The First Information Report under
Section 154 of Cr.PC, as such could not be treated as a substantive
piece of evidence. It can only be used to corroborate or contradict the
informant’s evidence in the Court. As held by three-Judge Bench of this
2
Thulia Kali vs. The State of Tamil Nadu; 1972 (3) SCC 393
3
The King Emperor vs. Khawaja Nazir Ahmad; AIR 1945 PC 18
6
4
Court , FIR is very useful if recorded before there is time and opportunity
to embellish, or before the informant’s memory fades. Undue or
unreasonable delay in lodging the FIR, therefore, may give rise to
suspicion which put the Court on guard to look for the possible motive
and the explanation for the delay and consider its effect on the
trustworthiness or otherwise of the prosecution version.
10. Of course, the delay in lodging an FIR by itself cannot be regarded as
the sufficient ground to draw an adverse inference against the
prosecution case, nor could it be treated as fatal to the case of
prosecution. The Court has to ascertain the causes for the delay, having
regard to the facts and circumstances of the case. If the causes are not
attributable to any effort to concoct a version, mere delay by itself would
not be fatal to the case of prosecution.
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11. In Ravinder Kumar and Another Vs. State of Punjab , it has been
held that: -
“13. The attack on prosecution cases on the ground of delay
in lodging FIR has almost bogged down as a stereotyped
redundancy in criminal cases. It is a recurring feature in
most of the criminal cases that there would be some delay
in furnishing the first information to the police. It has to be
remembered that law has not fixed any time for lodging the
FIR. Hence a delayed FIR is not illegal. Of course a prompt
and immediate lodging of the FIR is the ideal as that would
4
Apren Joseph alias current Kunjukunju & Ors. Vs. State of Kerela ; 1973 (3) SCC 114
5
2001 (7) SCC 690
7
give the prosecution a twin advantage. First is that it affords
commencement of the investigation without any time lapse.
Second is that it expels the opportunity for any possible
concoction of a false version. Barring these two plus points
for a promptly lodged FIR the demerits of the delayed FIR
cannot operate as fatal to any prosecution case. It cannot
be overlooked that even a promptly lodged FIR is not an
unreserved guarantee for the genuineness of the version
incorporated therein.
14.When there is criticism on the ground that FIR in a case
was delayed the court has to look at the reason why there
was such a delay. There can be a variety of genuine causes
for FIR lodgment to get delayed. Rural people might be
ignorant of the need for informing the police of a crime
without any lapse of time. This kind of unconversantness is
not too uncommon among urban people also. They might
not immediately think of going to the police station. Another
possibility is due to lack of adequate transport facilities for
the informers to reach the police station. The third, which is
a quite common bearing, is that the kith and kin of the
deceased might take some appreciable time to regain a
certain level of tranquility of mind or sedativeness of temper
for moving to the police station for the purpose of furnishing
the requisite information. Yet another cause is, the persons
who are supposed to give such information themselves
could be so physically impaired that the police had to reach
them on getting some nebulous information about the
incident.
15. We are not providing an exhaustive catalogue of
instances which could cause delay in lodging the FIR. Our
effort is to try to point out that the stale demand made in the
criminal courts to treat the FIR vitiated merely on the ground
of delay in its lodgment cannot be approved as a legal
corollary. In any case, where there is delay in making the
FIR the court is to look at the causes for it and if such
causes are not attributable to any effort to concoct a version
no consequence shall be attached to the mere delay in
lodging the FIR. (Vide Zahoor v. State of U.P. [1991 Supp
(1) SCC 372 : 1991 SCC (Cri) 678] , Tara Singh v. State of
Punjab [1991 Supp (1) SCC 536 : 1991 SCC (Cri) 710] and
Jamna v. State of U.P. [1994 Supp (1) SCC 185 : 1994 SCC
(Cri) 348] ) In Tara Singh [1991 Supp (1) SCC 536 : 1991
SCC (Cri) 710] the Court made the following observations:
(SCC p. 541, para 4)
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“4. It is well settled that the delay in giving the
FIR by itself cannot be a ground to doubt the
prosecution case. Knowing the Indian conditions
as they are we cannot expect these villagers to
rush to the police station immediately after the
occurrence. Human nature as it is, the kith and
kin who have witnessed the occurrence cannot
be expected to act mechanically with all the
promptitude in giving the report to the police. At
times being grief-stricken because of the
calamity it may not immediately occur to them
that they should give a report. After all it is but
natural in these circumstances for them to take
some time to go to the police station for giving
the report.”
12. Keeping in view the aforestated settled legal position, let us examine as
to whether the delay of more than one year in the registration of the FIR
was fatal to the case of prosecution or the prosecution had sufficiently
explained the said delay?
13. As transpiring from the record, the deceased Bisahu Singh was the
husband of PW-2 Ganeshi Bai and father of PW-3 Anita Porte. They
both had stated in their respective evidence about the health condition
of Bisahu Singh, when he was found lying in the Verandah of their house
in the morning hours on 23.07.2003. As stated by the PW-6 Dr. Bhojraj
Hotchandani, on 23.07.2003 at 01.25 P.M. Bisahu Singh was brought to
the CIMS Hospital, Bilaspur. As per the evidence of PW-8 Dr. Anita
Bambethwar, Bisahu Singh was brought to her for treatment, however
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he died at 3.30 PM on 23.07.2003. The said Dr. Anita has stated that
she had given the information about the death to the police station City
Kotwali, as per Ex. P/3. The PW-9 Kedarnath Kaushik who was the ward
boy in CIMS Hospital, Bilaspur had given the Merg Intimation (before
the police station City Kotwali) and PW-10 Mangal Das who was posted
as Head Constable in City Kotwali, Bilaspur had sent the dead body of
the deceased-Bisahu Singh along with the memorandum to CIMS
Hospital, Bilaspur for post-mortem on 24.06.2003. The PW-14 Basant
Kumar Singh who was posted as Sub-Inspector in police station City
Kotwali, Bilaspur had drawn the proceeding of the Inquest panchnama
(Ex. P/9), and had sent the dead body for post-mortem along with the
memorandum (Ex. P/5A).
14. PW-18 Dr. A.K. Shukla working at CIMS Hospital, Bilaspur had carried
out the post-mortem at about 12.50 hrs. on 24.07.2003. After carrying
out the external and internal examination of the dead body of Bisahu
Singh, he had opined (Ex. P/13) that “Cause of death could be decided
after Chemical examination of the Viscera preserved. Time since death,
less than 24 hours approx.”
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15. It appears that the Viscera of the deceased was collected and sealed in
two separate boxes by the PW-18 on 24.07.2003 and were sent for
chemical examination to the Forensic Science Laboratory, Chhattisgarh,
which received the same on 18.09.2003. Thereafter, the Senior
Scientific Officer, FSL, Raipur submitted the following Test result, vide
the letter dated 10.08.2004 (Ex. P/14):
TEST RESULT
“Exhibit A and B contain Organophosphorus pesticide
and Quinolphos.
Exhibit C does not contain any chemical poison.”
16. After the receipt of the afore-stated report from the Senior Scientific
Officer, the PW-15 Shyam Kori, SHO Bilha, District Bilaspur registered
the FIR being Crime No. 175/04 at police station Ratanpur on
03.11.2004 against the appellant-accused for the offence under Section
302 of IPC. He has stated in his evidence that the said FIR was
registered on the basis of the evidence collected during the investigation
in the Merg No. 43/03 under Section 174 of Cr.PC at police station
Ratanpur, and thereafter, he recorded the statements of witnesses. On
the completion of the investigation the chargesheet was filed by PW-19
I.H. Khan, SDO(P), Bilaspur in the Court.
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17. From the afore-stated evidence on record, it is discernible that though
the FIR was registered against the appellant on 03.11.2004 in respect
of the incident which had taken place on 22.07.2003, a part of
investigation had already started on the death of Bisahu Singh and on
the Merg intimation no.43/03. Apparently, one may feel that there was a
delay of more than one year in registering the FIR, however the chain
of circumstances which took place during the said one year clearly
suggests that the deceased was taken to the CIMS Hospital, Bilaspur
immediately on 23.07.2003 in the morning, and he expired at about 3.30
PM on the same day. His post-mortem was carried out on the very next
day i.e., 24.07.2003 and the samples of Viscera of the deceased
collected by Dr. A.K. Shukla, were sent for Chemical examination to the
FSL, Raipur, on 18.09.2003. It was the report of Chemical examination
sent by the FSL Raipur, after one year, which caused the delay in the
registration of the FIR. Thus, the entire delay as such could be attributed
to the FSL, Raipur, which took almost one year in giving the report of
Chemical examination of Viscera of the deceased. As such, there is no
allegation on concoction of false version made against the prosecution.
18. It is true that the PW-2 Ganeshi Bai, wife of the deceased right from the
beginning having alleged that her husband Bisahu Singh when was
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found lying in the verandah of her house in the morning hours on
22.07.2003, had told her in presence of her daughter PW-2 Anita Porte,
PW-7 Kotwar Bhagwati, and other witnesses that the appellant-accused
Hariprasad had called him at his place on the previous day evening and
had mixed jadi-buti in the liquor, and the appellant made him to drink it,
because of which the health of Bisahu Singh had deteriorated, she or
any other neighbours/relatives could have lodged a complaint against
the appellant-accused on that day itself. It is also true that when Bisahu
Singh was admitted and treated in the hospital with the history of alleged
administration of poison, and when he subsequently expired on the
same day at 3.30 P.M., which required post-mortem to be carried out,
the concerned SHO in the police station also could have registered the
FIR instead of registering the case with Merg number. However, the
explanation offered by the prosecution that the FIR was not registered
as the cause of death was not stated by the Doctor who carried out the
post-mortem and the report of Chemical examiner was awaited, seems
to be reasonable and acceptable. It appears that there was no mala fide
intention on the part of any of the witnesses or the police not to register
the FIR or to delay the registration of FIR. It was only when the report of
Chemical examiner was received, the FIR was registered on
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03.11.2004. We are, therefore, inclined to hold that the FIR being only a
corroborative piece of evidence and not a substantive piece of evidence,
mere delay in registering the FIR could not be held to be a ground
adverse to the case of prosecution.
19. This takes us to the next issue as to whether the prosecution had proved
beyond reasonable doubt that the deceased had died due to the
administration of poison and that administration was by the appellant-
accused.
20. Before delving into the evidence adduced by the prosecution, it may be
noted that this Court way back in 1984, in Sharad BirdhiChand Sarda
vs. State of Maharashtra (supra), which has been followed in catena
of decisions, had observed that in the case of murder by poison, the
prosecution must prove following four circumstances: -
“(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.”
21. Hence, let us see whether the prosecution had proved the said four
circumstances in the instant case. So far as the motive part is
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concerned, there is hardly any evidence adduced by the prosecution to
show that there was any motive for the appellant to administer poison
to the deceased. Though, the PW-2 Ganeshi Bai and PW-3 her daughter
Anita had stated that there was some land dispute going on between
the accused and the deceased, except their bare version there was no
other evidence produced to substantiate that allegation. That apart, if
there was enmity between the accused and the deceased, the deceased
would not have gone to the house of the accused for consuming liquor.
22. The second circumstance that the deceased died of poison also does
not seem to have been proved by the prosecution. The PW-1 Dr. Sudesh
Verma, who was called by the wife of the deceased Bisahu Singh when
he was found lying in the Verandah on 23.07.2003, had stated that the
patient i.e. Bisahu Singh was in semi-conscious state of mind and was
not in a position to speak properly. Wheezing sound and pungent smell
of liquor was coming from his mouth. According to him, Bisahu Singh
told him that he consumed small quantity of liquor along with some of
his mates. PW-2 Ganeshi Bai, wife of the deceased Bisahu Singh had
stated that in the evening hours of 22.07.2003, her husband Bisahu had
gone to the forest to bring woods, however he did not come back in the
night. At 7 O’clock on the next day morning, she saw that Bisahu was
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sleeping in the Verandah and some wheezing sound was coming from
his neck. She and her daughter Anita Bai tried to wake him up but his
condition was very serious. He spoke in a low voice to call the Kotwar.
The Kotwar having come, her husband told that Hari Ram had given two
glasses of liquor to him, and then he mixed something in the third glass.
He further told them that upon his asking, Hari Ram told him that he was
mixing medicine to subside the effect of the liquor. PW-3 Ms. Anita Porte,
the daughter of the deceased also stated the same version as stated by
her mother. PW-7, the Kotwar Bhagwati also supported the version of
PW-2 Ganeshi Bai. Similarly, PW-4 Ms. Sukwara Bai, PW-5 Rajesh
Kumar, younger brother of the deceased also stated the same thing as
stated by the PW-2 and others.
23. Having regard to the said evidence, it appears that though all the
witnesses have stated the same story, none of the witnesses had any
personal knowledge about the alleged incident and about the cause of
the deteriorating health condition of Bisahu Singh. Even if the said
version of the deceased before his wife, his daughter, his brother, the
Kotwar and others is treated as his dying declaration, it would be very
risky to convict the accused on such a weak piece of evidence.
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24. As per the settled law, though a statement made by a person who is
dying is made exception to the rule of hearsay and has been made
admissible in evidence under Section 32 of the Evidence Act, it would
not be prudent to base conviction, relying upon such dying declaration
alone. In the instant case, even if that so-called dying declaration of the
deceased is believed, at the most it could be said that the deceased on
22.07.2003 had consumed liquor along with Hari Ram and others, and
that in the third glass of liquor, Hari Ram had mixed some herb, and
made the deceased to drink it. It may be noted that there is no evidence
on record to show as to what kind of herb was allegedly mixed by Hari
Ram, and whether such herb was poisonous or not. The PW-18 Dr. A.K.
Shukla who carried out the post-mortem of the deceased on 24.07.2003
had also not given any opinion on the cause of death. He had stated in
the Post-mortem report (Ex. P/13) that the cause of death could be
decided only after the Chemical examination of the preserved parts was
received. The Chemical examination report of the Senior Scientific
Officer, FSL Raipur (Ex. P/14) stated that the Viscera of the deceased
contained Organophosphorous insecticide and Quinolphos. After the
receipt of the said report of the Chemical examiner, the investigating
officer had failed to obtain any opinion either from the doctor who carried
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out the post-mortem or from any other doctor about the actual cause of
death of the deceased. There is nothing on record to suggest about the
effect of mixture of liquor with Organophosphorous insecticide and
Quinolphos, the substances found contained in the Viscera of the
deceased. Under the circumstances, the Court is of the opinion that the
prosecution had failed to conclusively prove that the substances found
in the Viscera of the deceased were poisonous and the final cause of
death of the deceased was due to the administration of poison to the
deceased. Though it may be a matter of common knowledge that the
Organophosphorous insecticides and Quinolphos are considered to be
poisonous substances, nonetheless the Court would be loathe in
imputing personal knowledge and conclude that such poisonous
substances found in the Viscera of the deceased was the cause of death
of the deceased, more so when the said opinion of Chemical analyzer
was received after more than one year of sending the Viscera of the
deceased to the FSL, Raipur. In absence of final opinion obtained from
any medical expert, on the report of Chemical analyzer as to the cause
of death, it could not be said that prosecution had proved beyond
reasonable doubt that the cause of death of the deceased was due to
administration of poison.
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25. If the versions of the PW-2 Ganeshi Bai and Others, who were present
at the house of the deceased in the morning hours on 23.07.2003 are
believed, it may be presumed that the deceased Bisahu Singh had told
them that the appellant Hari Prasad had made him to drink two glasses
of liquor and in the third glass he had mixed some jadi-buti i.e. herb to
subside the effect of liquor, however the prosecution had failed to bring
on record as to which jadi-buti was mixed in the liquor and had failed to
show whether the said jadi-buti or herb was poisonous. Of course, since
the investigation had started after one year of the alleged incident, there
was no possibility of any such jadi-buti or substance being found from
the house of the accused. A faint attempt was made by the prosecution
by examining PW-12 Assistant Sub Inspector, Rama Pratap Singh who
had stated that an information was sought from CIMS, Bilaspur through
the memorandum (Ex. P/7), whether the jadi-buti would contain
Organophosphorous Quinolphos, however he did not say anything
further whether any such report was received from CIMS, Bilaspur or
not. The PW-18 Dr. A.K. Shukla had stated in his evidence that an
inquiry was made by the concerned SHO on one insecticide-
Quinolphos, manufactured by Hikal limited, G.I.D.C. Bharuch, Gujarat,
marketed by S. India Limited Mumbai, whether such insecticides were
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found in the jadi-buti or not, but he opined that he did not know whether
such poison would be contained in the herbs or not. He also stated that
he did not know whether mixing of such herbs in any solution would
result into Quinolphos.
26. 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.
27. It cannot be gainsaid that this Court should be slow in reappreciating the
evidence and in upsetting the findings recorded by the two courts below,
particularly while exercising the jurisdiction under Article 136, however
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such exercise of jurisdiction is not prohibited, when the Court finds that
such findings are afflicted with ex-facie infirmities.
28. In that view of the matter, the findings recorded by the Trial Court as
confirmed by the High Court against the appellant-accused for his
conviction under Section 302 IPC deserve to be set aside and the
appellant deserves to be set free. The Judgment of Conviction and
Order of Sentence passed by the Trial Court, as confirmed by the High
Court are set aside. The appellant is acquitted from the charges levelled
against him. Since the appellant is on bail, his bail bonds shall stand
cancelled forthwith.
29. The Appeal stands allowed accordingly.
…………………………. J.
[BELA M. TRIVEDI]
…………………………. J.
[DIPANKAR DATTA]
NEW DELHI,
th
NOVEMBER 7 , 2023
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