HARIPRASAD @ KISHAN SAHUversusSTATE OF CHHATTISGARH

                  [2023] 14 S.C.R. 214 : 2023 INSC 986



                             CASE DETAILS

                   HARIPRASAD @ KISHAN SAHU
                                      v.
                      STATE OF CHHATTISGARH
                    (Criminal Appeal No. 1182 of 2012)
                          NOVEMBER 07, 2023
         [BELA M. TRIVEDI AND DIPANKAR DATTA, JJ.]

                               HEADNOTES

     Issues for consideration: Whether the delay of about more than
one year in registering the FIR could be said to be fatal to the case of
prosecution; whether the prosecution proved beyond reasonable doubt that
the deceased had died due to administration of poison and the appellant-
accused administered the poison in the liquor and made the deceased to
drink it on the previous date of his death.
    Penal Code, 1860 – s.302 – Allegation of murder by poisoning –
Delay in registering FIR – When not fatal:
      Held: 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 – In the present case,
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 the deceased and on the Merg intimation
no.43/03 – 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 was the report of Chemical examination
sent by the FSL, 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 which
took almost one year in giving the report of Chemical examination of Viscera
of the deceased – 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 – Further, on facts, having regard to the scanty evidence, it is difficult
                                     214
        HARIPRASAD @ KISHAN SAHU v. STATE OF                              215
                  CHHATTISGARH

to hold that the prosecution had proved the four important propositions in
case of allegation of murder by poisoning- the accused had a clear motive to
administer poison to the deceased; the deceased died of poison said to have
been administered; the accused had the poison in his possession and that
the accused had an opportunity to administer the poison to the deceased –
Findings recorded by the Trial Court as confirmed by the High Court against
the appellant for his conviction u/s.302 set aside – Judgment of conviction
and order of sentence passed by the Trial Court as confirmed by the High
Court, set aside – Appellant acquitted. [Paras 17, 18, 26 and 28]
     Evidence Act, 1872 – s.32 – Dying Declaration:
      Held: 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
u/s.32 – It would not be prudent to base conviction, relying upon such
dying declaration alone – In the instant case, even if the 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 ‘HR’ and others,
and that in the third glass of liquor, ‘HR’ had mixed some herb, and made
the deceased to drink it – There is no evidence to show as to what kind of
herb was allegedly mixed by ‘HR’, and whether such herb was poisonous or
not – Chemical examination report of the Senior Scientific Officer, FSL (Ex.
P/14) stated that the Viscera of the deceased contained Organophosphorous
insecticide and Quinolphos – Though, 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 – 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. [Para 24]
     Evidence – FIR – Prompt lodging of – Object:
      Held: 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. The object of insisting upon prompt lodging
of the report to the police in respect of the commission of an offence is to
216           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


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 of the eye witnesses present at the scene of occurrence – However,
the receipt and recording of information report by the police is not a condition
precedent to set into motion a criminal investigation – First Information
Report u/s.154, 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 – Code of Criminal Procedure, 1973 – s.154. [Para 9]
     Criminal Law – Delay in registration of FIR, not by itself sufficient
to draw an adverse inference against the prosecution:
      Held: 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. [Para 10]
     Constitution of India – Article 136 – Findings recorded by courts
below afflicted with infirmities – Exercise of jurisdiction u/Article 136:
      Held: 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 such exercise
of jurisdiction is not prohibited, when the Court finds that such findings are
afflicted with ex-facie infirmities. [Para 27]

      LISTS OF CITATIONS AND OTHER REFERENCES

     Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC
116: [1984] 4 SCR 88; Ravinder Kumar and Another Vs. State of Punjab
2001 (7) SCC 690: [2001] 7 SCR 463 – relied on.
     Thulia Kali vs. The State of Tamil Nadu 1972 (3) SCC 393: [1972] 3
SCR 622; Apren Joseph alias current Kunjukunju & Ors. Vs. State of Kerela
1973 (3) SCC 114: [1973] 2 SCR 16 – referred to.
      The King Emperor vs. Khawaja Nazir Ahmad AIR 1945 PC 18 –
referred to.
        HARIPRASAD @ KISHAN SAHU v. STATE OF                              217
                  CHHATTISGARH


       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1182 of 2012.
    From the Judgment and Order dated 09.02.2011 of the High Court of
Chhattisgarh at Bilaspur in CRLA No.324 of 2006.
     Appearances:
     Rajesh Pandey, Sr. Adv., Abishek Pandey, Mahesh Pandey, Ms. Nishi
Prabha Singh, Ms. Mridula Ray Bharadwaj, Advs. for the Appellant.
    Ms. Asmita Singh, Gautam Narayan, Harshit Goel, Siddhant Singh,
Advs. for the Respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

     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 3(2)
(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, (hereinafter referred to as the SC/ST Act), had 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
218            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


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 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
decision of Sharad Birdhichand Sarda vs. State of Maharashtra1 submitted
that in case of the alleged death due to poisoning, the prosecution was
required to prove that there was clear motive of the 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.


1     (1984) 4 SCC 116
           HARIPRASAD @ KISHAN SAHU v. STATE OF                           219
             CHHATTISGARH [BELA M. TRIVEDI, J.]

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 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?
220            SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      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 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 of the eye witnesses
present at the scene of occurrence2. 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 investigation3. 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 Court4, 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



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
4      Apren Joseph alias current Kunjukunju & Ors. Vs. State of Kerela; 1973 (3)
      SCC 114
        HARIPRASAD @ KISHAN SAHU v. STATE OF                              221
          CHHATTISGARH [BELA M. TRIVEDI, J.]

to concoct a version, mere delay by itself would not be fatal to the case of
prosecution.
      11. In Ravinder Kumar and Another Vs. State of Punjab5, 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 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



5   2001 (7) SCC 690
222           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      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)
           “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
        HARIPRASAD @ KISHAN SAHU v. STATE OF                               223
          CHHATTISGARH [BELA M. TRIVEDI, J.]

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 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.”
      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
224          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


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.
      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
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
        HARIPRASAD @ KISHAN SAHU v. STATE OF                               225
          CHHATTISGARH [BELA M. TRIVEDI, J.]

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
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 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
226          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


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 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.
     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
        HARIPRASAD @ KISHAN SAHU v. STATE OF                             227
          CHHATTISGARH [BELA M. TRIVEDI, J.]

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 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.
     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
228           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


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 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
such exercise of jurisdiction is not prohibited, when the Court finds that
such findings are afflicted with ex-facie infirmities.
         HARIPRASAD @ KISHAN SAHU v. STATE OF                               229
           CHHATTISGARH [BELA M. TRIVEDI, J.]

      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.


Headnotes prepared by:                                            Appeal allowed.
Divya Pandey