1 2025:CGHC:4323 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 742 of 2024 1 - Yashwant Tandon S/o Late Sukhnandan Tandon, Aged About 22 Years R/o Nawalpur, P.S. And District- Bemetara Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through- Station House Officer, Police Station Bemetara, District- Bemetara Chhattisgarh. ... Respondent For appellant : Mr. Vipin Kumar Singh, Adv. For Respondents : Mr. Jitendra Shrivastava, Govt. Adv. (Hon’ble Shri Justice Naresh Kumar Chandravanshi, J) JUDGMENT ON BOARD 23/01/2025 1 This criminal appeal has been preferred against judgment of conviction and order of sentence dated 28-3-2023 passed by Sessions Judge, Bemetara, Distt. Bemetara (CG) in Session Trial No. 5/2022, whereby the learned trial Court, after holding the appellant guilty, convicted and sentenced him in the following manner:- Sl. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 307 IPC RI for 05 years Rs. 500/- RI for 01 month 2 The case of the prosecution, in brief, is that, appellant and victim Uma Tandan are husband and wife. Appellant is said to be a habitual drunkard, therefore, he used to quarrel with the victim. On 25-11-2021, in said Digitally signed by AVANISH KUMAR PATHAK Date: 2025.01.29 17:25:41 +0530 2 circumstances, appellant administered pesticides to his wife/victim and thereby he attempted to kill her. Victim was admitted in hospital. On being information received from the hospital, Dehati Nalishi (Ex. P-1) was recorded and FIR (Ex. P-10) was registered at PS Benetara against appellant under Section 307 of the IPC. During the course of investigation, police prepared spot map (Ex. P-2), recorded statement of witnesses, prepared Panchnama (Ex. P-3), recorded memorandum statement (Ex. P-4) of appellant, seized one plastic bottle, in which ‘Whip Super 9EC Herbicide’ was written. MLC report (Ex. P-6) of victim was obtained. Query report vide Ex. P-7 was obtained, dying declaration (Ex. P-9) of victim was recorded. FSL report in respect of seized plastic bottle of pesticide was received vide Ex. P-11. After usual investigation, charge sheet for offence under Section 307 of the IPC was filed against the appellant before the Judicial Magistrate First Class, Bemetara, Distt. Bemetara, who committed the case to the Sessions Judge, Bemetara for trial. 3 Learned trial Court framed charge under Section 307 of the IPC, which was denied by the appellant. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 07 witnesses and exhibited 11 documents. After completion of prosecution evidence, statement of appellant/accused under Section 313 of the Cr.P.C. was recorded in respect of the circumstances appeared against the appellant, which he denied and pleaded not guilty and false implication. He has not examined any witness in his defence. 4 The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28-3-2023, finding evidence adduced by the prosecution trustworthy, convicted and sentenced 3 the appellant/accused as mentioned in the opening paragraph, against which, this appeal has been filed by him. 5 Learned counsel for the appellant submits that appellant is a daily wager and he used to consume liquor frequently, therefore, always dispute occurred between him and his wife, who is victim in instant case. On the date of incident also, appellant/accused had some altercation with his wife, therefore, she has falsely implicated the appellant in this case. Except oral version of victim (P.W. 1) and her mother Gonda Bai (P.W. 2), nothing has been proved by the prosecution to substantiate the fact that, any amount of said pesticide – Fenoxaprop-p-ethyl was found in internal part of her body, as her vomiting substance, stool, urine etc. of the victim has not been seized. It is further submitted that, learned trial Court has misread the evidence available on record and only on the basis of unreliable and unlawful evidence, has convicted the appellant. Therefore, it is prayed that, the impugned judgment of conviction and order of sentence may be set aside and appellant/accused, who is in jail, may be acquitted. 6 Per contra, learned State counsel, while supporting the impugned judgment, would submit that the impugned judgment is well reasoned and based on the evidence available on record, hence the appeal is liable to be dismissed. 7 I have heard learned counsel for the parties, considered their rival submissions made and also went through the record including the record of the trial Court with utmost circumspection. 8 Allegation against the appellant/accused is that he administered pesticide - Fenoxaprop-p-ethyl to his wife (victim). This fact has been stated by the victim Uma Tandan (P.W. 1) herself, but there is no evidence to 4 corroborate aforesaid fact. Gonda Bai (P.W. 2), who is mother of victim, is a hearsay witness, whom elder brother of appellant had informed about the incident. Kamal Kumar (P.W. 3), who is brother-in-law (Devar) of the victim, has not supported the case of prosecution. Krish alias Anshu (P.W. 4), who is nephew of accused/appellant, and is said to be eye-witness, has turned hostile in respect of the fact that, appellant had administered pesticide to the victim. Roshan Sahu (P.W. 6) is Naib Tahsildar, who recorded dying declaration of the Victim. 9 Dr. Deepak Mire (P.W. 5) had examined the victim within 2 ½ hours, but as per his deposition, he did not find any symptom in the body of victim to have proved that, the victim was administered said toxic substance/ pesticide- Fenoxaprop-p-ethyl. Rather, he had found that, the victim was in conscious position and her blood pressure was 120/80, and pulse rate was 80. He has also stated that no yellowness or swelling was found over the body of the victim. Her respiratory system, digestive system and nervous system were found normal. 10 Thus, except victim (P.W. 1), there is no other evidence to support her deposition that, the appellant had administered her pesticide/ Fenoxaprop-p-ethyl. Even MLC report ( Ex. P-6) is also not supportive. Though, in FSL report (Ex. P-11), in examination of said seized article A- Dibba, Fenoxaprop-p-ethyl has been reported to be found, but which article was seized is contradictory, as in seizure memo (Ex. P-5), it has been mentioned as ‘plastic bottle’. Victim herself has stated in her dying declaration that appellant administered her toxic substance in glass bottle, but in FSL report (Ex. P-11), that article has been mentioned as ‘Dibba’. Thus, 5 this contradiction also vitiates reliability of the fact that, the article, particularly which was seized was sent to the FSL. 11 Perusal of record of the trial Court as well as the evidence brought by the prosecution does not show that stool, urine etc. of the victim was sent for chemical examination. In other words, no internal examination of victim has been proved and if such examination was not conducted, then how it can be said that, she was administered toxic substance/pesticide., particularly when except victim, there is no direct evidence in this regard. In such a situation, only on the basis of FSL report (Ex. P-11), it cannot be held proved that, said pesticide/ toxic substance was administered by the appellant to the victim. 12 In the case of State of Maharashtra Vs. Kashirao reported in (2003) 10 SCC 434, the Hon’ble Supreme Court has identified the essential ingredients for the applicability of the offence under Section 307 of IPC. The relevant extract is as below:- “The essential ingredients required to be proved in the case of an offence under Section 307 are: (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as : (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no 6 excuse for incurring the risk of causing such death or injury.” 13 In the instant case, prosecution has failed to prove aforesaid ingredients as there is no evidence available on record to hold the appellant guilty under Section 307 of IPC for administering his wife (victim) said toxic substance - Fenoxaprop-p-ethyl. But learned trial Court only on the basis of superficial fact and without any cogent evidence, has convicted and sentenced the appellant/accused under Section 307 of the IPC, which is perverse and illegal. 14 Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. The appellant is acquitted of the charge under Section 307 of IPC. He is in jail. He be set at liberty forthwith, if not required in any other case. 15 Keeping in view of the provisions contained in Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 10,000/- with one surety in the like amount before the concerned trial Court, which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon, shall appear before the Hon’ble Supreme Court. 16 Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Naresh Kumar Chandravanshi) Judge pathak