Neelamber Yadav Vs State of Chhattisgarh

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Digitally signed by BHOLA NATH KHATAI Date: 2025.01.13 12:01:15 +0530

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2025:CGHC:1358-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 773 of 2019

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1. Neelamber Yadav S/o Shri Khema Yadav Aged About 26 Years By Caste - Mahakul, R/o Village - Kandora, Thana - Kunkuri, District Jashpur Chhattisgarh.

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2. Khema Yadav S/o Shri Kurso Yadav Aged About 55 Years By Caste - Mahakul, R/o Village - Kandora, Thana - Kunkuri, District Jashpur Chhattisgarh.

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... Appellants

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versus

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State Of Chhattisgarh Through The District Magistrate, Jashpur, District Jashpur, Chhattisgarh.

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... Respondent

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For Appellants : Mr. J. K. Gupta, Advocate, and Mr. Damrudhar Yadav, Advocate

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For Respondent/State : Mr. Rahul Tamaskar, Govt. Advocate

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (09.01.2025 )

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Sanjay K. Agrawal, J.

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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.

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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

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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 chargesheeted 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.

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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.

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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

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of the impugned judgment.

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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.

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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.

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7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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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

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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.

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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?

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10. The law in this regard is well settled. In the matter of Anant Chintaman Lagu v. The State of Bombay¹ , 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:

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“The prosecution must establish in a case of

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1 AIR 1960 SC 500

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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.”

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11. Thereafter, in Sharad Birdhichand Sarda (v. State of

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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:

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“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 :

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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

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2 (1984) 4 SCC 116

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poison was administered by the accused to the deceased resulting in his death.

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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:

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(1) there is a clear motive for an accused to administer poison to the deceased,

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(2) that the deceased died of poison said to have been administered,

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(3) that the accused had the poison in his possession,

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(4) that he had an opportunity to administer the poison to the deceased.

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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 :

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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.”

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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,

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3 (1988) 3 SCC 513

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if the prosecution clearly proves that it is a case of circumstantial evidence. The following was thus held in paragraphs 26 & 27 :

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“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.

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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. …”

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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

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Uttarakhand and another⁴

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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:

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“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.”

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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?

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1. Clear motive for the offence

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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

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4 2020 SCC OnLine SC 980

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5 (2024) 2 SCC 557

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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.

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2. Whether the deceased died of poison said to have been administered?

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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.

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3. Whether the accused persons had the poisonous substance in their possession?

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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

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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.

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4. Whether the appellants had an opportunity to administer the poison to the deceased

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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.

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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

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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.

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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.

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22. This criminal appeal, accordingly, stands allowed .

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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.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Khatai

Neelamber Yadav v. State of Chhattisgarh

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Neelamber Yadav v. State of Chhattisgarh

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