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Issues for consideration:Whether the delay of about more than one year in registering theFIR could be said to be fatal to the case of prosecution; whetherthe prosecution proved beyond reasonable doubt that the deceasedhad died due to administration of poison and the appellant-accusedadministered the poison in the liquor and made the deceased todrink 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 asubstantive piece of evidence, mere delay in registering the FIRcould not be held to be a ground adverse to the case of prosecution– In the present case, though the FIR was registered against theappellant on 03.11.2004 in respect of the incident which had takenplace on 22.07.2003, a part of investigation had already started onthe death of the deceased and on the Merg intimation no.43/03 –The explanation offered by the prosecution that the FIR was notregistered as the cause of death was not stated by the Doctor whocarried out the post-mortem and the report of Chemical examinerwas awaited, seems to be reasonable and acceptable – It was thereport of Chemical examination sent by the FSL, after one year,which caused the delay in the registration of the FIR – Thus, theentire delay as such could be attributed to the FSL which tookalmost one year in giving the report of Chemical examination ofViscera of the deceased – There was no mala fide intention on thepart of any of the witnesses or the police not to register the FIR orto delay the registration of FIR – Further, on facts, having regardto the scanty evidence, it is difficult to hold that the prosecutionhad proved the four important propositions in case of allegation ofmurder by poisoning- the accused had a clear motive to administerpoison to the deceased; the deceased died of poison said to havebeen administered; the accused had the poison in his possessionand that the accused had an opportunity to administer the poison tothe deceased – Findings recorded by the Trial Court as confirmedby the High Court against the appellant for his conviction u/s.302set aside – Judgment of conviction and order of sentence passedby 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 madeexception to the rule of hearsay and has been made admissiblein 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 hadconsumed liquor along with ‘HR’ and others, and that in the thirdglass of liquor, ‘HR’ had mixed some herb, and made the deceasedto drink it – There is no evidence to show as to what kind of herbwas allegedly mixed by ‘HR’, and whether such herb was poisonousor not – Chemical examination report of the Senior Scientific Officer,FSL (Ex. P/14) stated that the Viscera of the deceased containedOrganophosphorous insecticide and Quinolphos – Though, theOrganophosphorous insecticides and Quinolphos are consideredto be poisonous substances, nonetheless the Court would beloathe in imputing personal knowledge and conclude that suchpoisonous substances found in the Viscera of the deceased wasthe cause of death of the deceased, more so when the said opinionof Chemical analyzer was received after more than one year ofsending the Viscera of the deceased to the FSL – In absence offinal opinion obtained from any medical expert, on the report ofChemical analyzer as to the cause of death, it could not be saidthat prosecution had proved beyond reasonable doubt that thecause of death of the deceased was due to administration ofpoison. [Para 24]Evidence – FIR – Prompt lodging of – Object:Held: FIR in a criminal case is an extremely vital and valuablepiece of evidence for the purpose of corroborating the oral evidenceadduced during the course of the trial. The object of insistingupon prompt lodging of the report to the police in respect of thecommission of an offence is to obtain early information regardingthe circumstances in which the crime was committed, the namesof actual culprits and the part played by them as well as names ofthe eye witnesses present at the scene of occurrence – However,the receipt and recording of information report by the police is nota condition precedent to set into motion a criminal investigation– First Information Report u/s.154, Cr.PC, as such could not betreated as a substantive piece of evidence – It can only be usedto 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 itselfsufficient to draw an adverse inference against the prosecution:Held: The delay in lodging an FIR by itself cannot be regardedas the sufficient ground to draw an adverse inference against theprosecution case, nor could it be treated as fatal to the case ofprosecution – The Court has to ascertain the causes for the delay,having regard to the facts and circumstances of the case – If thecauses are not attributable to any effort to concoct a version, meredelay by itself would not be fatal to the case of prosecution. [Para 10]Constitution of India – Article 136 – Findings recorded bycourts below afflicted with infirmities – Exercise of jurisdictionu/Article 136:Held: This Court should be slow in reappreciating the evidenceand 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 theCourt finds that such findings are afflicted with ex-facie infirmities.[Para 27] |
