SUPREME COURT SETS ASIDE THE CONVICTION ORDER PASSED BY THE LD. TRIAL COURT AND THE HON’BLE HIGH COURT

INTRODUCTION

A Two-Judge Bench of the Supreme Court comprising of Justice Bela M. Trivedi and Justice Dipankar Dutta passed an Order dated 07.11.2023 in Hariprasad @ Kishan Sahu Vs. State Of Chhattisgarh in Criminal Appeal No. 1182 Of 2012 and set aside the Order of the Ld. Trial Court and held that though a statement made by a person who is dying is made an 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.

FACTS

(i) On 27.07.2003 in the evening hours, one, Mr. Bisahu Singh, the Deceased, had went to the forest for collecting woods and didn’t come back in the night. The next morning his wife, Smt. Ganeshi Bai saw him lying in the Verandah of his house in a semi-conscious state.

(ii) 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, one, Mr Hariprasad, the Appellant-Accused called him at his home and made him drink three glasses of liquor.

(iii) That the Appellant-Accused mixed some jadi-buti (herb) in the third glass of liquor and made him drink the same. Upon hearing this, Ganesha Bai called her neighbors and took him to CIMS Hospital Bilaspur, as Mr. Bisahu Singh’s health was deteriorating.

(iv) Thereafter, during the course of the treatment, Mr. Bisahu Singh died on 23.07.2003 at about 03.30 P.M. The death was intimated to the Police and a Merg- Intimation was prepared.

(v) Subsequently, the dead body of Mr. Bisahu Singh was sent for autopsy to CIMS Bilaspur, wherein Dr. A. K Shukla conducted the Post-Mortem on 24.07.2003 and recorded the Post Mortem Report as under;

“Cause of death could be decided after Chemical examination of Viscera preserved.”

(vi) After the receipt of the report of Chemical Examiner, the FIR was registered on 03.11.2003.

(vii) During the course of the trial, the Prosecution had examined nineteen witnesses and led the documentary evidence. The Appellant-Accused who was examined under Section 313 of the Code of Criminal Procedure, 1973 (Power to examine the accused) ( PC) denied the allegations levelled against him and pleaded innocence. The Prosecution also examined DW-1, Pardesi Ram Gond, who deposed that the Appellant-Accused was in his house from 19.07.2003 to 23.07.2003 in Raipur. The Special Judge, (Atrocities), Bilaspur, Chhattisgarh (Trial Court), upon hearing the evidence, passed an Order dated 09.03.2006 in Special Criminal Case No.19 of 2005 and convicted and sentenced the Appellant-Accused.

(viii) The Trial Court Order dated 09.03.2006 was upheld by the Hon’ble High Court of Chhattisgarh, at Bilaspur, in Criminal Appeal No.324 of 2006, vide Order dated 09.02.2011.

SUPREME COURT ANALYSIS

Aggrieved by the High Court Order dated 09.02.2011, the Appellant-Accused filed Criminal Appeal No. 1182 Of 2012 before the Supreme Court. The Apex Court, vide Order dated 07.11.2023, made the following observations:

A) The Apex Court observed that there were three broad questions that arose for the determination of the case which were;

B) Whether the delay of about more than one year in registering the FIR could be said to be fatal to the case of Prosecution?

C) Whether the Prosecution had proved beyond reasonable doubt that the Deceased had died due to administration of poison?

D) Whether the Prosecution had proved beyond reasonable doubt that the Appellant-Accused had administered poison in the liquor and made the Deceased to drink it on 22.07.2003 i.e., on the previous date of his death?

1) The Apex Court on the first issue held that regarding the delay in registering of FIR, it is not disputed that though the incident in question had taken place on 22.07.2003, the FIR was registered after a year, i.e., on 03.11.2004 against the Appellant -Accused under Section 302 of Indian Penal Code, (Punishment for murder) (IPC). Further, it cannot be said that the FIR 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. 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 motion a criminal investigation. The First Information Report under Section 154 of Cr.P.C. (Information in cognizable cases), as such could not be treated as a substantive piece of evidence.

2) That, the delay in lodging an FIR by itself cannot be regarded as sufficient ground to draw an adverse inference against the Prosecution case, nor could it be treated as fatal to the case of the Prosecution. Hence, the Court ascertained the causes of delay, having regard to the facts and circumstances of the case.

3) Thereafter, the Apex Court for the next issue, relied on the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra (1984) 4 SCC 116, wherein the Supreme Court held that to prove the case of murder by poison, the prosecution must prove the following 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.”

4) The Apex Court further held that the Prosecution had not adduced any evidence to show that there was any motive for the Appellant-Accused to administer the poison to the Deceased. Though, all the Witnesses had stated the same story of the Appellant-Accused poisoning the Deceased, it would also be very risky to convict the Appellant-Accused on such a weak piece of evidence, as none of the Witnesses had any personal knowledge about the alleged incident and about the cause of deteriorating health condition of the Deceased.

5) That, 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 present 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 Appellant-Accused and others, and that in the third glass of liquor, the Appellant-Accused 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 the Appellant-Accused, and whether such herb was poisonous or not. The Prosecution Witness (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. The Doctor had stated in the Post-Mortem Report that the cause of death could be decided only after the chemical examination of the preserved parts are received. The Chemical Examination Report of the Senior Scientific Officer, FSL Raipur stated that the Viscera of the Deceased contained Organophosphorous Insecticide and Quinolphos.

6) Thereafter, 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 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.

7) Further the Apex Court held that, the Prosecution had not proved the four important propositions laid down by the Supreme Court in case of allegation of murder by poisoning which were; (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.

8) That it cannot be said that the Apex 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 such exercise of jurisdiction is not prohibited, when the Court finds that such findings are afflicted with ex-facie infirmities.

9) The Supreme Court applying the aforesaid principal held that the findings recorded by the Ld. Trial Court as confirmed by the Hon’ble 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.

ORDER

Thus, after considering all the facts and circumstances of the case, the Apex Court allowed the Appeal filed by the Appellant-Accused and the Judgment of Conviction and Order of Sentence passed by the Ld. Trial Court, as confirmed by the High Court was set aside. The Appellant-Accused was acquitted from the charges levelled against him.

 

Kartik Khandekar

Associate

The Indian Lawyer