GARH : BILASPUR v. Mr. M,P.S. Bhatia, Pa&el Lawyer for fhe respoadent/SlHte

HIGH COURT OF CHHATTI8GARH : BILASPUR (Divisioa Bencb) CORAM: HonfbleSbri Vijay Kwnar Sbrivastava Ss Hon^ble Sliri Dliirendra Mislira, JJ. CRIMIWAL APPEAL No.214/95 AppeUant Resoondent PRBBBWT Smt. Charaamati (% Kuntibai w/o. Ravishankar Yadav, a®edabout 40 years, r/o, Baidarha, PS, Sarangarh, Dist. Raigarh. State ofC.G. thiough Poliee Station Sarangarli, Dist. Raigarh. CG. Versus Mr. Roop Naik, Counsel for fhie appellaat. Mr. M,P.S. Bhatia, Pa&el Lawyer for fhe respoadent/SlHte. JUDGMBNT (Dated 14/06/2006^ Per Vijay Kumar Shrivastava, J. V 1 ^.. This appeal under Section 374 (2) of the Cr.P.C., is directed agauist ftie judgment of convfction and order of sentence dated 01/10/1994 passed by IInd Additional Sessions Judge, Raigarh, ia Sessions Trial No. 200/93 by which fhe appeUant has been held guUty for coiDimittiag offence of miurder punishable under Section 302 of the I.P.C., and was sentenced to undergo imprisoninent for Ufe.

2) Briefly stated tihie case of fhe prosecution is that on 26/01/1993 at about 4,00 p.m. in fhe evemng, Jyotibai a child of 3& eight months of tender age was p]aying wifh. her brottier Vikas aged five years m the court-yard ofher house. AppeUaat resides m flie viciaity of fheir house who has some ammus with the mofher of Jyotibai and Vikas, thercfore, she admiaistered EHdocil msecticide poison to Jyotibai. After consuxnmg fhe poisonous drug Jyotibai became restiess. Her brofher Vikas rushed to caH \( his father Pitambar. Pitambar came to his hou^; aad saw fhe deterioratmg condition of his child. The child Jyotibai was taken to hospital wherc she died. Information was given by fhe Medical Officer to SHO Sarangarh rcgardmg the deafh of Jyotibai, Merg m.timation was recorded, SHO^ Saraagarh came to hospital to conduct the inquest Inquest report was prepared. Enquuy regarding cazise of death was also made.

The dead body of Jyotibai was sent for aiitopsy. On. eaquiry^ SHO Sarangah came to know through fhe witaesses fhat poisonous dnig was administered to Jyotibai by fhe appeUant, fherefore^ he recorded first mformation report on fhe spot agamst the appeUant under Sections 302 & 328 offheIPC. 3] Medical Ofiicer conducted fhe autopsy, but could not find aay injury and also could not determine fhe natiirc aad cause of deafh, fherefore, he preserved viscexa for chemical exammation. Durmg invest^ation one tin box, which is the box of Endocel msecticide, was seized j5x)m the husband of fhe appellaat. On memoimidiim statement of appeUaiit one steel bowl said to be used for admiaistermg the insecticide to Jyotibai was recovercd aad seized from fhe appellaat Spot map was prepared. Witnesses were exaiained under Section 161 of fhe Cr.P.C. AppeUaiit also 99- made extra judicial confession before witaesses.

Viscera preseryed by fhe Medical ofl5cer, bowl and tin box were sent for exam.ination. Chemical examio.er after examiiiiag those articles gave his rcport whercin he found tiiat fhe tm box and viscera were containing Endocel uisecticide. 4) After investigation challaii was led in fhe Court of Chief Judicial Magistrate, Raigarh, who committed fhe case to the Court of Sessions for trial. Charge under Section 302 of fhe IPC was firamed against fhe appeUant and the same was read over and explaine.d to her, who abjured ftie gmlt. Her defence was that she has been falsely isnplicated ia fhe crime due to animosity. 5) Learaed trial Court rclyiag on fhe evidence of Samani (PW/4) and Karra (PW/12) held fhat the appeUant voluntarity made extxa judicial confession before fhese witaesses aad she failed to explaio. how fhe chHd consumed tihie poison, thercfore held the appellant guflty for committmg murder Jyotibai, " 1 puiiishable under Section 302 ofthe IPC, accordmgly, convicted and sentenced.

6) Hon'ble the Apex Court has led law from time to time oa circumstantial evidence. Hon^ble fhe Apex Court while deliveringjudgment m Steite efM.P. Vs. Sevi^cy Red» reportefi in (2004) 10 SCC 570, retying on the JuOgmewts deUvered in JBTufeam Slngh Fs. Statc qf JRq/cisthcin, reported in (1977) 2 SCC 99, EraAu Vs State of Hydereibadf reported in AJR 1956 •SC 316, Ewabh^drafypa Vs. Stdte of Kanwt€tkfx» reporlxd in ^,^ (1983) 2 SCC 330, State of D.P. ys. Sukhfwsi, reported in Am 2985 SC 1224tBaXwinj0.er Singh Vs. State of Punfc^b^ reported in AIR 1987 SC 350, Ashofc Kwvwr Chextterfee Vs. Steetv of M*P.,. reported inAIR 1989 SC 1890, BheigatRam Vs^ State ef Punjaft, reported in AIR 1954 SC 521» C. Chcnga Reddy 7s* State ofA.P.» reported in (1966) 10 SCC 193, PadaJki Veera Reddy 7s* Statc ofAP^ reported in ASR 1990 8C 79, iStetfe ®/' UP Vs. Asfcofc Kumcy Shrlwistcmu, reported in {199^ 2 SCC 86, Hanumant Gowtnd JVcirgu^fccir Vs* .Statc ofM*P.» rcported in.

AIR 19S2 SC 343 and Shardd Birthichand Sarda 7s. .Sticrfsc of Meiharashtra, reported in AIR 1984 SC 1622, has held fhat conviction caa be based solely on circumstantial evidence, but it should be tested on touchstone of law rclating fhereto laid down by ffae Apex Court, Law setfled by fhe Apex Court on circumstaEitial evideuce is ftiat the circumstaaces must be cogenffy and firmly estabUshed and when all the circumstances taken ciimulatively should fonn a chain so complete fhat there was no escape fix>m fhe coaclusioa fhat witibdn all human probability fhe crime was coinmitted by tiie accused and none-else and iacapable of aay ofher hypofhesis fhan ftiat of fhe guUt of fhe accused. Such circumstaatial evidence should uot only be consistent wifh fhe guilt of fhe accused^ but should be iaconsistent with his ninocence. 7) So far as extra ]udicial confession is conceraed, law is setfled fhat if extra iudicial confession is made before a person to whoin xnaker reuoses confidence and fhe extra iudicial confession is clear, co&ent and appeared to have been made in fhe nornial ^ course withoiit any pressure, such extara judicial confession can alone be accepted aad based for detenmnmg fhe guUt.

8) It is not disputed fhat Jyotibai died as a result of consuniption of Bndocel uisecticide, Even ofherwise, froin the medical report (Ex.P/8), postmortem report Ex.P/ 11-A, fhe rcport of Chemical Examiner (Ex.P/12), and fhe oral evidence of Dr. Anil Kumar Tirki (PW/6), it is estabUshed fhat Jyotibai died as a result ofcoasumption of Endocel msecticide 9) Samani (PW/4), a viUage Kotwar m his exammation- m-chief, has stated fhat on enquiry made by Puniram, Murlidhar, Aqun aad Doloram, appeUaiit stated fhat she puttiag Endocel drug m a bowl administercd it to Jyotibai, but in cross examinatiou he categoricaUy stated that after a montli PoUce caaie to iavestigate fhe offence and after arrival of PoUce he could come to know about fhe aforesaid statement. He also stated fhat fhe appeUant did not disclose anyfhmg to PoUce, From his statement^ ^- it appears fhat when Police came to investigate fhe ofience aad enquired fhe inatter^ during that time on enquiry beiag made by some viUagers, appeUaat disclosed fhe above fact It is evident that Police was fhere and it caoiiot be beUeved, beyond doubt fhat in absence of PoMce^ above statement was made by fhe appeUant.

Therefore, if aay confession has been made by fhe appeUant, it was ia presence of fhe PoUce and in fhe light of Section 25 of fhe Indian Evidence Act^ fhe said statement was not admissible. Arjun and Doloram have uot been examined by the prosecution. Witness MuraMdhar (PW/7) wh.o was one offhe persons who enquircd from ^ o flie appeUaat, has been exammed by fhe prosecution, but he did not support the story of extora judicial confession. Murlldhar (PW/7) very specifically stated tih.at appeUant did not admit or disclose anyfhmg before hiin. 10) Another witness rclied upon by the trial Court is Karra ^.\ (PW/12). Leamed trial Court in para 17 of fhe jud^nent cleariy stated fhat a part of statement of Karra (PW/12) is not believable. It is also evident fhat Karra (PW/12) was very much iaterested to get appeUaa.t convicted, fhercfore, he even tutored chUd witaess Vikas to depose agaio.st the appeUant Karra (PW/12) ia para 2 of fhis statement stated fhat he, Murlidhar aad Arjuii caUed fhe appeUaat and enquired her about fhe iacident.

She only said that she did nofhing aad prayed to save her. Further, m para 3 of his statenieut, he stated fhat PoUce caaie to mvestigate fhe crime aaid enquired from fhe appeUant, but appeUant did not disclo^ aaythmg to Police. Thereforc, PoUce asked the viUagers question the appeUaat aad fhereafter appeUaiit narrated that she ^\-. admmistered Endocel insecticide to Jyotibai. Here agaia, it is evident fh.at the statenient uiade by fhe appeUant was not in the absence of Police^ but it was fhe PoUce who enquircd through ffae vfflagers from fhe appeUant and ia presence of PoMce^ appeUant disclosed fhe above fact. The said admission is not admissible ia view of Section 25 of fhe Indiaa Evideuce Act. 11) It is pertinent to mention that iu para 10 of fhe statement^ the witoaess Karra (PW/ 12) stated fhat in fhe night at about 9,p.m. PoUce enqiilred with the appeUao^t regardiag ftie tbi box. Appellaat did not disclose aoything to PoHce^ but in fhe ^1 midnight at 3.00 a.m, she told him.

She wifhout beiag released jBnom flie ciistody of PoUce, how is it possible for her to leave the place and narrate fhe story when * appareD.fly Police Charanmati mto custody aad enquiiy was going on. 12) Karra (PW/12) m his cross exainmation clearly stated fhat 011 the date of mcident he came to know fhe fact that appellaiit had admmistered Endocel msecticide to Jyotibai^ but he never mtimated the fact to PoUce and even did not visit hospital. After deafh of Jyotibai also he did not give information to fattier of the deceased. He fnrther says fhat after death of Jyotibai^ on the next day he camc to know fhe mcident from Vikas. 13) From fhe statement of Karra. (PW/12] , it is evident that his statement is iiot only contradictory, but also unnatural. Even he was very much interested m gettmg the appeUant convicted. From his statemeut, it is also clear fhat fhere was no occasion to appellant to go and mform this witness about the incident.

14) From the aforesaid disciissions, it is clear ftxat extra judicial confessiou reUed upon by the trial Court was not admissible. The witnesses Samaru (PW/4) and Karra (PW/12) were not fhe persons^ on whom appeUaat may repose confidence to confess fhe guilt after a period of one month fhat too when Police came to mvesti^ate fh.e offence. Ou close scrutiny, it is also apparent fh.at bofh these witnesses oa fhe fact of exfara judicial confession were not reliable. As per prosecution story the poison \ t-. .-• ...».-.—r:.'-'^ ^x' was kept in steel bowl aad was administered to the child. The bowl was recovered at fhe mstaace of the appeUaat and fhe saine was sent for chemical examiaation^ but chemical examiaer did not find any poison in the utensil. Pitambar (PW/10) father of the deceased Jyotibai ia his statement stated tfaat when he came to his house, Jyotibai was in fhe lap ofthe appellant. From his cross exammation it is evident fhat appeUant is issueless aad she was given shelter by Tiim and in their absence appeUant was taldng care of fheir ffaree children.