Patna High Court
CHANDAN DEVI @ CHANDA DEVI @ NUNU DEVI @ NUNUversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The appellate court allowed the appeal, setting aside the conviction because the prosecution failed to establish guilt beyond reasonable doubt.
Summary
The appellant, Chandan Devi, was convicted of murder under Section 302 IPC and attempted grievous hurt under Section 328 IPC for allegedly poisoning a seven‑year‑old boy with sugar. The prosecution’s case rested on the child’s alleged oral dying declaration and the testimonies of several village witnesses, none of whom saw the accused actually administer poison. The High Court found material contradictions among witness statements, no forensic proof of poison, and serious investigative lapses, including failure to seize the alleged substance and delayed examination of viscera. It held that the oral dying declaration was unreliable and the chain of circumstantial evidence was incomplete. Consequently, the conviction was set aside and the appellant was ordered to be released.
Issues considered
- The prosecution proved the elements of murder (Sec. 302 IPC) and attempted grievous hurt (Sec. 328 IPC) beyond reasonable doubt.
- The admissibility and reliability of the oral dying declaration of the child.
- The impact of contradictions and inconsistencies in witness testimonies on the prosecution case.
- The effect of the absence of forensic evidence and investigative lapses on the conviction.
- Whether the alleged motive of a prior dispute suffices to infer guilt.
Legislation cited
- Criminal Procedure Code — s. 161, 207, 209, 313
- Indian Penal Code — s. 302, 328
Subjects
- murder
- poisoning
- oral dying declaration
- circumstantial evidence
- acquittal
- investigative lapses
- forensic evidence
- motive
- land dispute
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1364 of 2019
Arising Out of PS. Case No.-29 Year-2008 Thana- SAUR BAZAR District- Saharsa
======================================================
Chandan Devi @ Chanda Devi @ Nunu Devi @ Nunu Wife of Raju Sah,
Resident of Village - Jamhara Bichala Tola, P.S.- Saur Bazar, Distt - Saharsa.
Presently residing at Village - Madanpur, Leli Nagar, Ward No. 4, Bharahi,
P.S.- Madhepura, Distt - Madhepura.
... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Dr. Sanjay Kumar Singh, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 04.05.2026
The present appeal preferred by appellant/convict
against judgment of conviction dated 21.10.2019 and order
of sentence dated 22.10.2019 passed by the learned
Presiding Officer, Fast Track Court, Saharsa, in Sessions Trial
Case No. 3/13/2102/14 arising out of Saur Bazar P.S. Case
No. 29/2008, whereby and whereunder appellant/convict has
been convicted for the offences punishable under Section
302 of the Indian Penal Code and sentenced him to undergo
imprisonment for life and fine of Rs. 5,000/-, and in default
of payment of fine, he shall further directed to undergo
simple imprisonment for a period of six months.
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BRIEF CASE OF PROSECUTION :
2. The crux of prosecution, as it appears from the
fard-e-beyan of the informant/PW-6, namely, Dinesh Yadav
that on 28.01.2008, his seven years old son, namely, Ashish
Kumar, returned home from school for lunch. While going
back to school, the appellant Chandan Devi, who was their
neighbour, called him and gave him “shakkar” (sugar) to eat.
After consuming it, the child started vomiting on the way and
became unconscious. He was taken for medical treatment
but died during the course of treatment. The informant
alleges that the appellant had administered poison mixed in
the “shakkar,” thereby causing the death of the child.
3. On the basis of aforesaid fard-e-beyan, Saur
P.S. Case No. 29/2008 was registered, when after
completion of investigation police submitted charge-sheet
against accused person on 31.10.2012 under Sections 302
and 328 of the Indian Penal Code. Cognizance was also
taken on 23.11.2012 for the offence under Sections 328 and
302 of the IPC by learned Jurisdictional Magistrate.
4. After taking cognizance and making compliance
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of Section 207 of the Cr.P.C., the learned Magistrate,
Saharsa committed the present case to the Court of
Sessions, Saharsa under Section 209 of the Cr.P.C., for its
trial and disposal.
5. To established its case before the learned trial
court, the prosecution altogether examined total of 11
witnesses, namely, P.W .1- Baijnnath Yadav, P.W.2-
Urmila Devi, P.W. 3- Dilip Yadav, P.W.4- Raj Karan Yadav,
P.W. 5- Maharani Devi, P.W.6- Dinesh Yadav (Informant),
P.W.7- Mantu Sah, P.W.-8 Dr. Krishna Muari Prasad
Singh, P.W. 9- N.D. Nirala, P.W.- 10- Pankaj Kumjar and
P.W. 11- Aslam Ansari.
6. The prosecution also exhibited following
documents during the trial to substantiate its case which are
as:-
Exhibit-1 – Signature of witness Dilip Yadav
on the Inquest Report.
Exhibit-2 – Signature of witness Raj Karan
Yadav on the Fardbeyan (First Information Statement).
Exhibit-2/1 – Signature of witness Raj Karan
Yadav on the Inquest Report.
Exhibit-3–Fardbeyan (First Information
report).
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Exhibit- 4 – Signature of witness Dinesh
Yadav on the Protest Petition.
Exhibit-5 – Forensic Science Laboratory
(F.S.L.) Report No. 1578/09 dated 23.02.2012
Exhibit-6 – Post-mortem Report of the
deceased Ashish Kumar
Exhibit-7– Endorsement/Notation on the First
Information Report (FIR)
Exhibit-8 – Inquest report
7. After examination of the prosecution
witnesses and by taking note of evidences and incriminating
circumstances as surfaced during the trial, the statement of
appellant/accused person was recorded under Section 313 of
the Cr.P.C., which was denied in totality by showing
complete innocence.
8. In support of defence, accused person
examined one witness, who examined before the learned trial
court as DW-1, namely, Banarasi Sah.
9. On the basis of aforesaid evidences as
surfaced during the trial, the learned trial court convicted the
appellant/convict and passed order of sentences in aforesaid
manner, being aggrieved with, appellant/convict preferred
the present appeal.
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10. Hence the present appeal.
ARGUMENT ON BEHALF OF APPELLANT
11. Learned counsel appearing on behalf of
appellant/accused submitted that the prosecution case
suffers from serious inconsistencies and contradictions which
render the evidence of P.Ws 1 to 6 unreliable and
untrustworthy. Their depositions are not only mutually
contradictory but also inconsistent with the fardbeyan of the
informant. Except P.W. 3, no witness claims to be an eye-
witness to the alleged occurrence, and even his presence at
the scene is doubtful as none of the other prosecution
witnesses have corroborated that he was present when the
alleged act took place. Such discrepancies strike at the root
of the prosecution’s version and make it unsafe to rely upon
their testimonies. It is further submitted that material
contradictions exist regarding the circumstances following the
alleged incident. While P.W. 2 stated that the deceased
became unconscious after vomiting and she left to inform
others, other witnesses claim that the deceased disclosed to
them that the appellant had given him “Shakkar.” This
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inconsistency raises serious doubt about the alleged oral
dying declaration. Moreover, the Investigating Officers (P.Ws
9, 10, and 11) did not find any signs of vomiting at the place
of occurrence, nor did they find any shop belonging to the
appellant from where the alleged substance was said to have
been given, thereby undermining the core prosecution story.
The appellant also highlights significant procedural lapses
and evidentiary gaps in the prosecution case. There was
unexplained delay in sending the viscera for examination and
in obtaining the report, which weakens the medical evidence.
Additionally, no formal dying declaration was recorded.
Independent witnesses such as P.W. 7 and D.W. 1 have not
supported the prosecution case, further casting doubt on its
credibility. The existence of prior disputes between the
parties also suggests the possibility of false implication.
12. Lastly, while concluding the argument, it is
submitted that the cumulative effect of above submitted
unreliable evidence, investigative lapses, and lack of credible
proof clearly demonstrates that the prosecution has failed to
establish its case beyond reasonable doubt. Therefore, the
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impugned judgment is unsustainable in law and deserves to
be set aside.
LEGAL SUPPORT
13. Learned counsel relied upon the legal report
of Hon’ble Supreme Court as available through Sampath
Kumar Vs. Inspector of Police, Krishnagiri reported as
(2012) 4 SCC 124, Arun Bhanudas Pawar Vs. State of
Maharashtra reported as (2008) 11 SCC 232, Waikhom
Yaima Singh Vs. State of Manipur reported as (2011)
13 SCC 125 and Poonam Bai Vs. State of Chhattisgarh
reported as (2019) 6 SCC 145.
14. It would be apposite to refer para Nos. 21
to 25 of the legal report of Hon’ble Supreme Court in the
matter of Sampath Kumar’s case (supra), which reads as
under:-
“21. In Narayan Chetanram
Chaudhary v. State of Maharashtra [(2000) 8
SCC 457 : 2000 SCC (Cri) 1546 : AIR 2000
SC 3352] this Court held that while
discrepancies in the testimony of a witness
which may be caused by memory lapses were
acceptable, contradictions in the testimony
were not. This Court observed: (SCC p. 483,
para 42)
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“42. Only such omissions which amount to
contradiction in material particulars can be
used to discredit the testimony of the witness.
The omission in the police statement by itself
would not necessarily render the testimony of
witness unreliable. When the version given by
the witness in the court is different in material
particulars from that disclosed in his earlier
statements, the case of the prosecution
becomes doubtful and not otherwise. Minor
contradictions are bound to appear in the
statements of truthful witnesses as memory
sometimes plays false and the sense of
observation differ from person to person.”
22. The difference between
discrepancies and contradictions was
explained by this Court in State of H.P. v.
Lekh Raj [(2000) 1 SCC 247 : 2000 SCC
(Cri) 147 : AIR 1999 SC 3916] . Reference
may also be made to the decision of this
Court in State of Haryana v. Gurdial Singh
[(1974) 4 SCC 494 : 1974 SCC (Cri) 530 :
AIR 1974 SC 1871] where the prosecution
witness had come out with two inconsistent
versions of the occurrence. One of these
versions was given in the court while the
other was contained in the statement made
before the police. This Court held that these
were contradictory versions on which the
conclusion of fact could not be safely based.
22. The difference between
discrepancies and contradictions was
explained by this Court in State of H.P. v.
Lekh Raj [(2000) 1 SCC 247 : 2000 SCC
(Cri) 147 : AIR 1999 SC 3916] . Reference
may also be made to the decision of this
Court in State of Haryana v. Gurdial Singh
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[(1974) 4 SCC 494 : 1974 SCC (Cri) 530 :
AIR 1974 SC 1871] where the prosecution
witness had come out with two inconsistent
versions of the occurrence. One of these
versions was given in the court while the
other was contained in the statement made
before the police. This Court held that these
were contradictory versions on which the
conclusion of fact could not be safely based.
24. Reference may also be
made to the decision of this Court in Kehar
Singh v. State (Delhi Admn.) [(1988) 3 SCC
609 : 1988 SCC (Cri) 711 : AIR 1988 SC
1883] . This Court held that if the
discrepancies between the first version and
the evidence in court were material, it was
safer to err in acquitting than in convicting
the accused.
25. In the present case the
statement made by Palani (PW 7) is in
complete contrast with the statement made
by him before the police where the witness
stated nothing about having seen the
appellants standing near the deceased around
the time of the incident. This omission is of
very vital character. What affects the
credibility of the witness is that he did not in
his version to the police come out with what
according to him is the truth, but withheld it
for a period of five years till he was examined
as a prosecution witness in the court".
15. It would be further apposite to refer para
No. 25 of the legal report of Hon’ble Supreme Court in the
matter of Arun Bhanudas Pawar’s case (supra) , which
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reads as under:-
“25. It is well-settled law that
the oral dying declaration made by the
deceased ought to be treated with care and
caution since the maker of the statement
cannot be subjected to any cross-
examination. In the present case, admittedly,
the alleged dying declaration had not been
made to any doctor or to any independent
witness, but only to the mother who, as
stated above, arrived at the hospital only on
the following day at about 3.30 p.m. when
Dr. Nitin had already operated Raju for his
injuries and thereafter he was lying on the
bed in unconscious condition with oxygen
tubes having been inserted in his nostrils. The
prosecution has not brought on record any
medical certification to prove that after
operation the deceased was in a fit condition
to make the declaration before his mother.
The evidence of alleged oral dying declaration
by the deceased Raju to his mother PW
Sundarbai relied upon by the prosecution and
accepted by the trial court and the High
Court, in our view, was not cogent,
satisfactory and convincing to hold that
deceased Raju before his death was in a fit
condition to make oral declaration to his
mother.”
16. It would be also apposite to refer para No.
20 of the legal report of Hon’ble Supreme Court in the
matter of Waikhom Yaima Singh’s case (supra), which
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reads as under:-
“20. There can be no dispute
that the dying declaration can be the sole
basis for conviction, however, such a dying
declaration has to be proved to be wholly
reliable, voluntary and truthful and further
that the maker thereof must be in a fit
medical condition to make it. The oral dying
declaration is a weak kind of evidence, where
the exact words uttered by the deceased are
not available, particularly because of the
failure of memory of the witnesses who are
said to have heard it. In the present case
also, the exact words are not available. They
differ from witness to witness. Some
witnesses say about the name of the village
of the appellant having been uttered by the
deceased and some others do not. Further,
Dr. Ningombam Shyamjai Singh (PW 12) was
also not cross-examined by the Public
Prosecutor in this case about the medical
condition of the deceased and further fact as
to whether he was in a fit condition to make
any statement.”
17. It would be again apposite to refer para
Nos. 10,16 & 17 of the legal report of Hon’ble Supreme
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Court in the matter of Poonam Bai’s case (supra), which
reads as under:-
“10. There cannot be any
dispute that a dying declaration can be the
sole basis for convicting the accused.
However, such a dying declaration should be
trustworthy, voluntary, blemishless and
reliable. In case the person recording the
dying declaration is satisfied that the
declarant is in a fit medical condition to make
the statement and if there are no suspicious
circumstances, the dying declaration may not
be invalid solely on the ground that it was not
certified by the doctor. Insistence for
certification by the doctor is only a rule of
prudence, to be applied based on the facts
and circumstances of the case. The real test
is as to whether the dying declaration is
truthful and voluntary. It is often said that
man will not meet his Maker with a lie in his
mouth. However, since the declarant who
makes a dying declaration cannot be
subjected to cross-examination, in order for
the dying declaration to be the sole basis for
conviction, it should be of such a nature that
it inspires full confidence of the court. In the
matter on hand, since Ext. P-2, the dying
declaration is the only circumstance relied
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upon by the prosecution, in order to satisfy
our conscience, we have considered the
material on record keeping in mind the well-
established principles regarding the
acceptability of dying declarations.
16. As far as the oral dying
declaration is concerned, the evidence on
record is very shaky, apart from the fact that
evidence relating to oral dying declaration is a
weak type of evidence in and of itself. As per
the case of the prosecution, the deceased had
made an oral dying declaration before Lalita
Sahu (PW 2), Pilaram Sahu (PW 3), Parvati
Bai (PW 4), and others. Though PWs 2, 3 and
4 have deposed that the deceased did make
an oral dying declaration before them
implicating the appellant, this version is
clearly only an afterthought, inasmuch as the
same was brought up before the trial court
for the first time. In their statements
recorded by the police under Section 161 of
the Code of Criminal Procedure, these
witnesses had not made any statement
relating to the alleged oral dying declaration
of the deceased. These factors have been
noted by the trial court in its detailed
judgment. Thus, the evidence of PWs 2, 3
and 4 relating to the oral dying declaration is
clearly an improved version, and this has
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been proved by the defence in accordance
with law.
17. Since the evidence relating
to the dying declarations has not been proved
beyond reasonable doubt by the prosecution,
in our considered opinion, the High Court was
not justified in convicting the appellant,
inasmuch as there is no other material against
the appellant to implicate her. The motive for
the offence, as alleged by the prosecution,
has also not been proved.”
ARGUMENT BY STATE
18. Learned APP while opposing the appeal
submitted that the judgment passed by the court is based on
proper appreciation of evidence and which should not be
disturbed. It is submitted that the contradictions pointed out
in the statements of PWs. 1 to 6 are minor in nature and do
not affect the main case of the prosecution. The basic story
remains the same that the deceased consumed the
substance allegedly given by the appellant and his condition
worsened thereafter. The evidence of PW-3 cannot be
rejected only because no other witness has supported his
presence, if his statement appears reliable. However, the
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learned APP fairly submits that the case mainly depends on
circumstances and the alleged oral dying declaration. Such a
statement is admissible in law, but it must be examined
carefully, especially because there are differences in the
version of witnesses about the condition of the deceased.
The absence of signs of vomiting at the place of occurrence
and non-seizure of the alleged “Shakkar” are also important
aspects, which need consideration.
19. It is further submitted that lapses in
investigation, like delay in sending the viscera or not seizing
the substance, do not automatically destroy the prosecution
case, but they required the Court to examine the evidence
more carefully to see whether the case is proved beyond
reasonable doubt.
20. I have perused the trial court records carefully
and gone through the evidences available on record and also
considered the rival submissions as canvassed by learned
counsel appearing on behalf of the parties.
DISCUSSION OF EVIDENCE:
21. As to re-appreciate the evidence, while
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disposing the present appeal, it is apposite to discuss the
evidences available on record, which are as under:-
22. PW-1 is Baijnath Yadav, who deposed that
about four and a half years ago, on a Monday at around
1:30 PM, he heard a commotion near Godaramawali’s house
while returning home and went there. He saw Dinesh’s 7-
years old son, Ashish, vomiting repeatedly but conscious and
speaking. The child said that Chandan Devi had given him
sugar, which caused his condition.
22.1 Upon cross-examination, it was stated by
him that around 20–25 villagers were present, and he stayed
for about two hours, observing the boy vomit several times.
The incident occurred on a roadside, and he later informed
the police, who inspected the scene though no samples were
collected.
23. PW-2 is Urmila Devi @ Godaramawali,
who deposed that about five years ago during the afternoon,
she was at her doorstep when she saw Ashish lying near her
gate and vomiting. She went to inform his father, Dinesh,
who came to the spot along with others. She deposed that
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although she did not personally see who gave anything to the
child, Ashish told his father that Pujiya’s mother (Raju’s wife,
also known as Farsaha Wali) had given him sugar, which
caused his condition. Ashish was later taken for treatment by
Dinesh but did not survive.
23.1 Upon cross-examination, it was stated by
her that her house is adjacent to the road where Ashish was
found lying on his left side after falling off the road. She
deposed that she had gone to call Dinesh, whose house is at
some distance with several houses in between, and after
informing him, she returned home due to stomach pain and
did not revisit the scene. She mentions that when she saw
Ashish, he was alone, unable to speak clearly, though he had
asked her to call his father. She admits that she had not
previously given any statement to the police or inspector and
that this was her first statement in court. She denies the
suggestion that she is falsely deposing due to any
relationship with Dinesh and also that no such incident
occurred.
24. PW-3 is Dilip Yadav, who stated that about
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five years ago, on a Monday around 1:00 p.m., he had gone
to drop his daughter at school and thereafter visited Chandan
Devi’s grocery shop. In his presence, Chandan Devi gave
sugar to Dinesh’s son, Ashish. Shortly after walking some
distance, Ashish began vomiting, causing a commotion.
Dinesh, his wife, and others including Rajkaran, Kripal, and
Arunendra Yadav arrived. Ashish was taken to Madhepura for
treatment, where doctors declared him dead. He
accompanied them and returned with the body in a tempo.
He further stated that later on the police came to the house
and recorded statements, and prepared a death report on
which he signed (Exhibit 1). He confirmed that he
recognized the accused and denied that he had informed the
police about the incident.
24.1 Upon cross-examination, he denied the
correctness of the police statement attributed to him,
asserting that he was present when Ashish was given sugar
and did not merely hear about the incident later. He refuted
the claim that he had stated no one saw Ashish being given
or consuming sugar. He clarified his relationship with Dinesh,
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stating that their houses are only four yards apart among
neighboring homes. He described events after the death,
including returning with the body, the presence of several
villagers, and Dinesh and his wife fainting. He reiterated that
they traveled to Madhepura together and returned the same
day, and that the police visited their house rather than the
hospital. Finally, he denied the suggestion that he was giving
false evidence due to his relationship with Dinesh or that the
incident had not occurred as described.
25. PW-4 is Raj Karan Yadav, who stated that
about four and a half years ago, on a Monday at around
1:00 p.m., he was at home when he heard a commotion and
went to the road in front of Chandan Devi’s shop, where he
saw his cousin Ashish Kumar vomiting. Ashish’s parents were
present, and Ashish told them that Chandan Devi had given
him sugar to eat, after which he felt nauseous; the witness
also saw sugar on Ashish’s hands. Ashish was taken by
tempo to Dr. Shivji Singh’s clinic at Patarghat, who
immediately referred him to Madhepura Hospital. Upon
reaching Madhepura, the doctor declared Ashish dead,
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causing his parents to faint. The body was then brought
home. The police later came to the house, recorded Dinesh
Yadav’s statement, and obtained the witness’s signature
(Exhibit 2), as well as his signature on the death certificate
(Exhibit 2/1). The witness also described the location of the
incident near his house, the presence of villagers, and the
sequence of events leading to Ashish’s death. It was further
stated that he had informed the police that upon hearing the
commotion, he saw Ashish vomiting and heard Ashish
attribute the consumption of sugar given by Chandan Devi as
the cause. He clarified certain details about the journey to
the hospital, stating that they prioritized taking Ashish for
treatment rather than informing the police, and that neither
they nor the doctors informed the police at Madhepura. He
admitted that no post-mortem was conducted and that a
death certificate was obtained later. He also stated that he
and Dinesh Yadav were detained by police in the same
evening. The witness denied suggestions that he was falsely
implicating the accused due to prior land disputes or enmity,
and rejected the claim that no such incident occurred,
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asserting instead that Ashish’s death did occur under the
circumstances described.
26. PW-5 is Maharani Yadav, reveals that the
alleged occurrence took place about five years prior to her
deposition, on a Monday at approximately 1:00 PM. She
deposed that her son, Ashish, aged about seven years and a
student of Class I, had returned home from school, taken a
pencil, and thereafter gone out. According to her, upon
reaching the shop of the accused, namely Chandni Devi, the
child was called inside and was offered sugar. It is her case
that after consuming the said substance, the child proceeded
a few steps but immediately began vomiting. She further
stated that upon receiving information from one Urmila Devi,
she, along with her husband, rushed to the spot, where her
son disclosed that the accused had given him sugar which
tasted bitter and had caused continuous vomiting. She
deposed that the child was immediately taken to a doctor at
Patarghat, who referred him to Madhepura Hospital, where
he was declared dead upon examination. She also stated that
upon hearing the news, she and her husband fainted and
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were subsequently brought back home. She has further
sought to attribute motive to the accused by stating that on
the same day, prior to the occurrence, her husband had sent
the child to the shop of the accused with one rupee to
purchase soap, which was allegedly found to be fake, leading
to a quarrel between her husband and the accused. On this
basis, she asserted that the accused, with intent,
administered a poisonous substance mixed in sugar to her
son, resulting in his death. She also claimed to identify the
accused in Court.
26.1 Upon cross-examination, she stated that
she had earlier given her statement to the police and denied
the suggestion that Urmila Devi had informed her that her
son was lying unconscious after vomiting, clarifying instead
that when she reached the spot, her son was not
unconscious. She further denied that she had not stated
before the Investigating Officer that her son Ashish, after
returning from school and taking a pencil, went to the shop
of Chandni Devi, where he was given sugar after consuming
which he started vomiting, and affirmed that she had
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disclosed to the police that the child was taken to Dr. Shivji
at Patarghat. She deposed that she had been married for
about 15–16 years and had three children, namely one son,
Ashish (aged about 7 years), and two daughters, the son
being the middle child. She further stated that the house of
the accused is situated to the south of her house and that
although the accused’s family had been residing in the
locality for a long time, they fled after the death of her son,
leaving their land vacant, and she denied the suggestion that
members of the Yadav community intended to grab the
accused’s land, prompting her to flee. The witness also
stated that Dakshin School is located three houses away
from her house, where her son had been studying for about
one year, and that upon hearing of the incident, the teacher,
Lalanji, along with others, came to the spot and on inquiry
her son disclosed that the accused had given him sugar
mixed with alcohol. She further deposed that several
villagers, including Baijnath Yadav, Dilip Yadav, Rajran Yadav
and others, had assembled, and that five to six persons,
namely herself, her husband, Dilip Yadav, Arvind Yadav,
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Baijnath Yadav and her sister-in-law, took the child to
Patarghat for treatment. She also stated that her son was a
student of Government Middle School, Jamhara, and denied
the suggestion that he did not attend school, asserting that
he had been studying there, and clarified that although the
school timing was up to 4:00 PM, her son had returned home
earlier to take a pencil. Finally, she denied all suggestions
that the case was false, instituted to grab the land of the
accused, or that she was deposing falsely, and reiterated
that the occurrence had taken place in the manner stated by
her.
27. PW-6 is Dinesh Yadav, who deposed that
the alleged occurrence took place on Monday, 28.01.2008 at
about 1:00 PM, when his son, Ashish Kumar, aged about
seven years, while proceeding towards school, was allegedly
called by the accused/appellant, Chandan Devi, to her shop
and was given sugar, after consuming which he immediately
started vomiting. He deposed that upon receiving information
from Pramila Devi, he along with his wife rushed to the spot,
where the child disclosed that he had been vomiting after
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consuming the sugar given by the accused and soon became
seriously ill. The witness further stated that the child was
taken by tempo towards Madhepura for treatment and was
first shown to Dr. Shivaji Singh at Patarghat, who referred
him to Madhepura Government Hospital, where he was
declared dead. Upon hearing the same, he and his wife
fainted and were subsequently brought back home by their
nephew Rajkaran, accompanied by Dilip. He further deposed
that in the evening the Inspector recorded his statement at
his house, which upon identification was marked as Exhibit-
3, and he identified the accused present in Court. He also
stated that the death certificate was issued by the doctor at
Madhepura. The witness has further attributed motive by
stating that on the morning of the occurrence, the accused
had sold fake soap to his son, which led to a quarrel between
him and the accused, during which she allegedly threatened
to render him childless, and that thereafter she administered
poison mixed with sugar to his son, resulting in his death. He
also stated that he had filed a protest petition before the
Court upon learning that the police had favoured the
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accused.
27.1 Upon cross-examination, He candidly
admitted that neither he nor his wife had witnessed the
alleged act of poisoning, but stated that his son, Ashish
Kumar, had informed him that Chandan Devi had called him
and given him sugar, after consuming which he began
vomiting, and he further added that at that time sugar was
found on the child’s hands and in his mouth. He deposed
that he had disclosed to the police the earlier incident of the
accused selling fake soap and threatening to render him
childless, which, according to him, constituted the motive. He
further stated that his son had been studying in Class I at
Government School, Jamhara, for about one year and used
to go either alone or with his sister, and that the school is
situated to the south of his house, with the accused being his
neighbour. The witness stated that upon reaching the spot,
he found his son sitting in a bent condition and vomiting, and
upon inquiry, the child reiterated that he had been given
sugar by the accused thereafter, he immediately took the
child by tempo for treatment along with his wife, nephew
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Rajkaran, and villager Dilip Yadav, first showing him to Dr.
Shivji at Patarghat, who referred him to Madhepura. He also
described the condition of the child, stating that he was
wearing a navy blue shirt, half pants, and shoes and socks,
all of which were soiled with vomit. Finally, he denied the
defence suggestions that the accused did not reside at
Jamhara or had no shop there, or that the case had been
falsely instituted to grab her land, and asserted that his son
was indeed attending school as stated.
28. PW-7 is Mantu Sah, who declared hostile
by prosecution as he did not supported the case of
prosecution during trial. From his cross-examination, nothing
transpired so as to contradict or corroborate the version of
other prosecution witnesses, who supported the case of
prosecution.
29. PW-8 is Dr. Krishna Murari Prasad Singh,
who stated that on 29.01.2008, while he was posted as M.O.
at Sadar Hospital, Saharsa, where he examined dead body of
Ashish Kumar, aged 7 years S/o Dinesh Yadav R/o village
Jamrha Bichla tola P.S. Saur Bazar, Dist Saharsa, and found
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the following:-
On external examination- Eye closed, Mouth
opened. No any external injury was present on his body.
On Internal examination-
Head and neck- N.A.D
thorax- Lungs congested
Abdomen- Stomach contents partially digested
food material, All other Visceras N.A.D
Cause of death- Could not be ascertained
however the following visceras are preserved for chemical
examination.
(i) Part of lungs (2) Part of Heart (3) Part of stomach and its
contents (4) Part of liver (5) Part of spleen (6) Part of
Kidney.
30. PW-9 is N.D. Nirala, who is Investigating
Officer of this case. He deposed that on 28.01.2008 he was
posted as President at Patarghat O.P., P.S. Saur Bazar, and
upon receiving information from Rajkaran Yadav that the son
of Dinesh Yadav had died at Sadar Hospital, Madhepura after
allegedly being administered some substance mixed in sugar
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by a neighbour woman, he proceeded to village Jamhara for
investigation, where he recorded the fardbeyan of the
informant in his own handwriting and signature, which was
marked as Exhibit-3, along with his endorsement marked as
Exhibit-7, the same being signed by the informant and the
witness Rajkaran Yadav, and the statement of the informant
was subsequently re-recorded. He further deposed that he
prepared the inquest report of the deceased Ashish Kumar in
his own handwriting and signature, which marked as
Exhibit-8, and inspected the place of occurrence at Jamhara
Bichla Tola, describing its boundaries and location on the
road from Patarghat Bazar to Atalkha Mangwar, where the
deceased was allegedly found after vomiting. He also
recorded statements of several witnesses including Rajkaran
Yadav, Maharani Devi, Urmila Devi, Banarasi Sah, Mantu
Sah, Dilip Yadav, Baijnath Yadav and Amarendra Yadav, and
noted that witness Mantu Sah had spoken about a prior
dispute regarding soap and alleged that the accused,
Chandan Devi, had given sugar to the deceased before his
death. He further stated that the post-mortem report was
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received from Sadar Hospital, Madhepura and entered in the
case diary, and thereafter the investigation was handed over
to Sub-Inspector and O.P. In-charge Surendra Jha.
30.1 Upon cross-examination, he stated that
although he had received information that the deceased had
died at Madhepura Hospital, he did not visit the hospital, but
later saw the dead body on 28.01.2008 at about 7:45 PM at
the residence in village Jamhara. He affirmed that the
complaint was entered in the station diary though it bore
neither number nor date, and denied having made any false
statement or that the original complaint was not before him.
He further stated that he had the case diary with him and
that statements of the informant Dinesh Yadav and
witnesses including Rajkaran Yadav, Maharani Devi, Urmila
Devi, Banarasi Sah, Baidyanath Yadav and Amarendra Yadav
were recorded, though the names of witnesses were not
mentioned in paragraph-7 of the case diary. He admitted
that no material object was found or seized from the place of
occurrence, that no vomit or related material was noticed
either at the spot or on the body or clothes of the deceased,
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and that no footprints were found as the place was a paved
road, though such facts were not mentioned in the case
diary. He further admitted that no satisfactory evidence
regarding the place of vomiting was found, no inquiry was
made regarding the school of the deceased or the source of
the alleged sugar, and also mother of deceased (PW-5) was
not separately questioned on these aspects. He also stated
that the house of the accused was found closed and the
accused had absconded, that shops were closed, and that
despite a crowd of about 100–200 persons, no independent
witness from the crowd was examined except those whose
statements were recorded. He further admitted that he did
not investigate any prior dispute in detail, did not ascertain
the criminal antecedents of the accused, and did not arrest
the accused, but denied the suggestion that he had failed to
conduct a proper investigation.
31. PW-10 is Pankaj Kumar, who is
Investigating Officer of this case, deposed that on
22.04.2012 he took over the investigation of Case No.
29/08 of Saur Bazar (Patarghat O.P.) and, upon assuming
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charge, perused the case diary and continued the
investigation already conducted. He deposed that the viscera
examination report of the deceased Ashish Kumar was
forwarded to the Court on 13.09.2012 and the accused,
Chandan Devi, was arrested with the assistance of police
personnel of Bharrahi O.P., Madhepura, along with lady
chowkidar Usha Devi and was sent to judicial custody. He
further stated that, pursuant to directions received from
senior police Officers, he submitted Charge Sheet No.
431/12 dated 31.10.2012 against the accused under
Sections 302 and 328 IPC and identified the informant
present before the Court.
31.1 Upon cross-examination, he stated that
after taking charge of the investigation, he had perused the
case diary but did not revisit the place of occurrence. He
further deposed that the accused belongs to the Sah caste
and that since both parties resided in close proximity with a
common household arrangement, there existed constant
friction between them, he admitted that although he
inspected the house of the accused. he did not note the
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existence of any shop therein. He stated that the accused
was arrested from her house under Bharrahi O.P. He also
admitted that no investigation was conducted to ascertain
the school attended by the deceased or his class and that no
defence version of the complainant was recorded.
32. PW-11 is Aslam Ansari, who is also
Investigating Officer of this case, deposed that he took over
the investigation on 11.07.2009 and, during the course
thereof, ensured that the sealed viscera and sealed packet of
the deceased Ashish Kumar were forwarded to the Forensic
Science Laboratory, Patna, as reflected in the case diary. He
further deposed that on 06.06.2010 he was transferred from
Patarghat O.P., after which he handed over the charge of
investigation to his successor.
32.1 Upon cross-examination, he admitted that
upon perusal of the case diary, he found that the viscera had
not been sent earlier for examination, whereupon he
obtained necessary orders from the Chief Judicial Magistrate
and took steps for its dispatch. He stated that he coordinated
with the staff of Sadar Hospital, Saharsa, arranged the
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required documents and container for the viscera, and
submitted an application to facilitate its transmission to the
Forensic Science Laboratory. He further admitted that apart
from sending the viscera, he did not undertake any further
substantive investigation and the viscera was forwarded after
a considerable delay of about one year from the date of the
occurrence.
Our Findings
33. Upon careful consideration of the entire
evidence on record, this Court finds that the prosecution case
rests primarily on the alleged oral dying declaration of the
deceased child and the testimonies of related and interested
witnesses. It is an admitted position that no witness has
actually seen the accused administering any poisonous
substance to the deceased, and therefore the case is
essentially one based on circumstantial evidence. The
prosecution has relied upon the statements allegedly made
by the deceased to his parents and other villagers
immediately after the occurrence, attributing the act to the
accused. However, the evidentiary value of such oral dying
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declaration does not inspire full confidence in the facts and
circumstances of the present case. The statements attributed
to the deceased suffer from material inconsistencies,
particularly with respect to his physical and mental condition
at the relevant time, as one witness has stated that the child
was unable to speak clearly, while others claim that he was
in a position to narrate the occurrence. Moreover, no effort
was made to have the dying declaration recorded by a doctor
or any independent authority, which further weakens its
reliability.
34. The medical evidence also fails to support
the prosecution case in any conclusive manner. The doctor
who conducted the post-mortem examination has clearly
opined that the cause of death could not be ascertained, and
though viscera was preserved for chemical examination,
there is no cogent material on record to establish that any
poison was detected therein. In absence of a definite medical
opinion indicating death due to poisoning, the very
foundation of the prosecution story becomes doubtful.
35. Further, a very material and fatal lapse in
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the prosecution case is that the alleged incriminating
substance, namely the “sugar” said to have been given to the
deceased, was neither seized by the Investigating Officer nor
sent for forensic examination. The prosecution case is
entirely based upon the allegation that poison was mixed in
the said sugar; however, in absence of seizure and chemical
analysis of the same, there is no scientific or corroborative
evidence to establish that any poisonous substance was in
fact administered alongwith sugar. PW-3 claiming a chance
eye-witness to the occurrence also stated that only sugar
was given to deceased by appellant. He did not claim to the
extent that he saw appellant to mix anything foreign to the
sugar. The Investigating Officer has categorically admitted
that no material object was seized from the place of
occurrence. This omission strikes at the root of the
prosecution case, as the best possible evidence has been
withheld, thereby rendering the allegation of administration
of poison highly doubtful.
36. Additionally, the investigation in the present
case suffers from several other serious lapses. No sample of
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vomit or any related material was collected from the place of
occurrence or from the body/clothes of the deceased. No
effort was made to verify the source of the alleged poison or
to establish the existence of the shop from where the
substance was allegedly administered. The place of
occurrence itself has not been satisfactorily established.
Despite the presence of a large number of villagers at the
spot, only selected witnesses were examined. There was also
an inordinate delay of about one year in sending the viscera
for forensic examination, which further casts doubt on the
integrity of the investigation. Such lapses materially weaken
the prosecution case and create serious gaps in the chain of
circumstances.
37. The motive alleged by the prosecution,
namely a prior dispute regarding sale of a “soap of
compromised quality” appears to be weak and not of such a
nature as would ordinarily lead to the commission of such a
grave offence. Motive, in any case, cannot substitute proof
and must be supported by reliable evidence, which is lacking
in the present case. Further, one of the material witnesses
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has turned hostile and has not supported the prosecution
case, even suggesting false implication due to land dispute,
which further creates doubt.
38. In a case based on circumstantial evidence,
it is well settled that the chain of circumstances must be
complete and must unerringly point towards the guilt of the
accused. In the present case, the chain is clearly incomplete.
The prosecution has failed to establish that the deceased
consumed any poisonous substance, much less that such
substance was administered by the accused. The essential
ingredients of the offences under Sections 302 and 328 IPC
have thus not been proved beyond reasonable doubt.
39. Hence, appeal stands allowed.
40. Accordingly, the judgment of conviction dated
21.10.2019 and order of sentence dated 22.10.2019 passed
by the learned Presiding Officer, Fast Track Court, Saharsa,
in Sessions Trial Case No. 3/13/2102/14 arising out of Saur
Bazar P.S. Case No. 29/2008, is hereby set aside.
41. Appellant namely, Chandan Devi @ Chanda
Devi @ Nunu Devi @ Nunu is in custody. She is directed to
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be released forthwith, if not required in any other case. Fine
if any paid, be returned to appellant forthwith.
42. Office is directed to send back the trial court
records along with a copy of this judgment to the trial court,
without delay.
( Chandra Shekhar Jha, J.)
Bibek Chaudhuri, J:- I agree.
(Bibek Chaudhuri, J.)
veena/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 11.05.2026
Transmission Date 11.05.2026
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