Madu Miya Alias Majubuddin Miya vs State Of Chhattisgarh on 12 December, 2022

Chattisgarh High Court

Madu Miya Alias Majubuddin Miya vs State Of Chhattisgarh on 12 December, 2022
1

AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 980 of 2011

1. Rasida Begum W/o Madu Miyan @ Majubuddin Miyan, Aged

about 53 years, Occupation Housewife.

2. Nurtaj S/o Manuvar Musalman, Aged about 22 years.

Both R/o Village Idarikala, P.S. Chando, District Sarguja,

Chhattisgarh.
---Appellants

Versus

State of Chhattisgarh through Police Station Shankargarh,

District Sarguja, Chhattisgarh.

---Respondent

For Appellants :- Ms. Saloni Verma, Advocate

For State :- Mr. Sudeep Verma, Dy. G.A.

Criminal Appeal No. 1954 of 2017

Madu Miya alias Majubuddin Miya, S/o Muradan Musalman,

Aged about 60 years, R/o Village Iderikala, Police Station
Chando, District Balrampur-Ramanujganj, Chhattisgarh.

---Appellant

Versus

State of Chhattisgarh through Police Station Chando, District

Balrampur-Ramanujganj, Chhattisgarh.

---Respondent

For Appellants :- Mr. Shailendra Sharma, Advocate

For State :- Ms. Ruchi Nagar, Dy. G.A.
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 Madu Miya Alias Majubuddin Miya vs State Of Chhattisgarh on 12 December, 2022

Hon'ble Shri Justice Sanjay K. Agrawal

Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
12/12/2022

Sanjay K. Agrawal, J.

1. Criminal Appeal No. 980/2011 has been preferred by the two appellants/accused persons namely
Rasida Begam (A-1) and Nurtaj (A-2) against judgment dated 26/08/2011 passed by learned Special
Judge, Ambikapur in Special Session Atrocities Case No. 93/2008 whereby they have been
convicted for offences punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 read with Section 302/34 of IPC and sentenced to
undergo life imprisonment with fine of Rs. 5000/- each and in default of payment of fine, further
R.I. for 6 months.

2. Criminal Appeal No. 1954/2017 has been preferred by sole appellant/accused namely Madu Miya
against judgment dated 21/11/2017 passed by learned Special Judge, Sarguja (Ambikapur) in
Special Session (Atrocities) Case No. 93/2008 (as he remained absconded during the course of the
trial when Rasida Begam (A-1) and Nurtaj (A-2) were being tried and final judgment of conviction
was passed against them) whereby he has been convicted for offences punishable under Section
302/34 of IPC and sentenced to life imprisonment with fine of Rs. 5000/- and in default of payment
of fine, further R.I. for one year; and for offence punishable under Section 201/34 of IPC and
sentenced to undergo R.I. for 5 years with fine of Rs. 2000/- and in default of payment of fine,
further R.I. for 6 months.

3. Since both of these appeals involve common question of fact and law, they have been clubbed
together, heard together and are being decided by this common judgment. It is also pertinent to
mention here that since trial of Rasida Begam (A-

1) alongwith Nurtaj (A-2) and that of Madu Miya (A-3) was conducted separately, therefore, some of
the same documents have been exhibited differently. In the instant judgment, we would be referring
the exhibits as per the paper-book relating to Criminal Appeal No. 980/2011 which has been
preferred by Rasida Begam (A-1) and Nurtaj (A-2), unless stated otherwise, particularly, while
adjudication of Criminal Appeal No. 1954/2017.

Case of the prosecution :-

4. Case of the prosecution, in brief, is that the three appellants/accused persons, in furtherance of
their common intention, administered poison to Sanjeevan Uraon due to which he succumbed to
death, knowing fully well the he was a member of Scheduled Tribes and they, thereby committed the
aforesaid offences.

5. It is admitted position on record that Rasida Begam (A-1) is the wife of Madu Miya (A-3) and
Nurtaj (A-2) is their grandson. Further case of the prosecution is that deceased Sanjeevan Uraon
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 Madu Miya Alias Majubuddin Miya vs State Of Chhattisgarh on 12 December, 2022

was a resident of Village Ginjaipara, Chando, however, he stayed at the house of Madu Miya (A-3) at
Village Idrikala P.S. Chando and used to work as domestic help. Upon investigation of Crime No.
11/08 registered at P.S. Chando, it was revealed that Madu Miya (A-3) along with his son Murtaza
Ansari, grandson Nurtaj (A-2) and two other co-accused persons namely Mubarak Ansari and Ayub
Khan robbed Rs. 2,00,000/- from the shop of one Bankim Mandal and thereafter, murdered him,
which was also within the knowledge of deceased Sanjeevan Uraon and during investigation, Police
had also summoned the deceased for inquiry. Out of the fear that deceased Sanjeevan Uraon would
reveal the incident to the Police, in the evening of 23/08/2008, appellant/accused Madu Miya (A-3)
escorted Sanjeevan Uraon to his home. When deceased Sanjeevan Uraon reached his home, he was
feeling dizzy and he informed his mother Sushila Tirkey (P.W.-1) and brother Arun Tirkey (P.W.-2)
that Madu Miya (A-3) had administered poison to him by mixing it in his meal due to which he was
feeling dizzy. Thereafter, Sanjeevan Uraon died and information was given to the Police Station on
the basis of which merg intimation was registered vide Ex. P/2 and after summoning the witnesses
under Section 175 of CrPC vide Ex. P/3, inquest was conducted vide Ex. P/23 and the dead body of
deceased Sanjeevan Uraon was subjected to postmortem, which was conducted by Dr. Pramod
Kumar Sinha (P.W.-13) and visera of the deceased was collected and it was sent for FSL.
Memorandum statement of Rasida Begam (A-1) was recorded vide Ex. P/15 and pursuant thereof, a
100gm vial of endosulfan, in which 20 gm of medicine was left, was seized from the house of Madu
Miya (A-3) vide Ex. P/16 and it was also sent for FSL. As per the FSL report (Ex. P/13),
organochloro insecticide 'endosulfan' was found in the vial seized vide Ex. P/16 as well as in the
visera of the deceased. On the basis of the investigation, Crime No. 14/08 was registered against the
appellants/accused persons at P.S. Chando, Balrampur vide Ex. P/19 for offences punishable under
Sections 302/34 and 201 of IPC. Appellants/accused persons Rasida Begam (A-1) and Nurtaj (A-2)
were arrested vide Ex. P/17 and P/20, respectively, however, Madu Miya (A-

3) absconded on the basis of which, farari panchnama was recorded vide Ex. P/18. After due
investigation, appellants/accused persons Rasida Begam (A-1) and Nurtaj (A-2) were
charge-sheeted for offences punishable under Sections 3(2)(5) of the Act of 1989 read with Section
302/34 of IPC, which was committed to the Court of Special Judge for trial in accordance with law.
Both the appellants/accused persons (A-1 and A-2) abjured their guilt and entered into defence.

6. In order to bring home the offence, prosecution examined as many as 13 witnesses and exhibited
23 documents. Statements of the appellants/accused persons were taken under Section 313 of CrPC
wherein they denied guilt, however, they examined none in their defence.

7. Learned Special Judge, after appreciation of oral and documentary evidence on record, vide
judgment dated 26/08/2011, convicted the two appellants/accused persons namely Rasida Begam
(A-1) and Nurtaj (A-2) for offences punishable under Section 3(2)(v) of the Act of 1989 read with
Section 302/34 of IPC and sentenced them as aforesaid, against which they have preferred Criminal
Appeal No. 980/2011.

8. Appellant/accused Madu Miya was arrested on 23/06/2017. Statements of the witnesses were
recorded and after due investigation, he was charge-sheeted for offences punishable under Sections
302/34, 201/34 of IPC and Section 3(2)(v) of the Act of 1989, which was committed to the Court of

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 Madu Miya Alias Majubuddin Miya vs State Of Chhattisgarh on 12 December, 2022

Special Judge for separate trial in accordance with law, wherein he abjured his guilt and entered
into defence. Prosecution examined as many as 12 witnesses and exhibited 18 documents, however,
neither any witness was examined nor any document was exhibited on behalf of the defence.

9. Vide judgment dated 21/11/2017, learned Special Judge convicted the appellant/accused Madu
Miya (A-3) for offences punishable under Sections 302/34 and 201/34 of IPC and sentenced him as
aforesaid, against which Criminal Appeal No. 1954/2017 has been preferred by him.

Submissions of the parties :-

10. Ms. Saloni Verma, learned counsel for the two appellants/accused persons in Criminal Appeal
No. 980/2011 namely Rasida Begam (A-1) and Nurtaj (A-2), as well as Mr. Shailendra Sharma,
learned counsel for the sole appellant/accused in Criminal Appeal No. 1954/2017 namely Madu
Miya (A-3), would submit that so far as Rasida Begam (A-1) is concerned, only evidence against her
is that of her memorandum statement (Ex. P/15) pursuant to which recovery of one glass vial
containing 20 gms of alleged poison endosulfan has been seized vide Ex. P/16 and apart that, there
is no other incriminating evidence which connects her to the crime in question. Moreover, with
regard to Nurtaj (A-2), there is not even the evidence of memorandum and seizure available against
him in order to convict him for the offence in question and only because he had criminal antecedent
in the form of Crime No. 11/08 registered against him and four other co-accused persons wherein
they have been alleged with the crime of robbery and murder, he has been convicted in the present
case as well. They would further submit that so far as the conviction of Madu Miya (A-3) is
concerned, prosecution has miserably failed to adduce any legally admissible evidence against him
and learned Special Judge is absolutely unjustified in convicting him for the aforesaid offences on
the basis of surmises and conjectures, as such, the conviction of all the three appellants/accused
persons is liable to be set aside.

11. Per contra, Mr. Sudeep Verma, learned State counsel, would submit that strong motive for
offence has been proved agianst the appellants/accused persons Nurtaj (A-2) and Madu Miya (A-3)
as they were involved in the commission of robbery and murder of one Bankim Mandal and Crime
No. 11/08 for offences punishable under Sections 364, 394, 397, 302, 120B/34 of IPC were
registered against them and since the deceased Sanjeevan Uraon was residing with the
appellants/accused persons and was working at their house as a domestic help, he knew about the
involvement of Nurtaj (A-2) and Madu Miya (A-3) in the said offence and he was also summoned by
the Police for inquiry. Nurtaj (A-2) and Madu Miya (A-3), out of fear that deceased would make
statement against them, administered poison to him on the fateful day and thereafter, Madu Miya
(A-3) escorted him to his house wherein he succumbed to death. He would further submit that
prosecution has proved the offence against Rasida Begam (A-

1) beyond reasonable doubt as on the basis of her memorandum statement (Ex. P/15), recovery of a
medicine vial was made vide Ex. P/16 which contained 20 gm of endosulfan. The said vial along with
the visera of the deceased was sent for FSL and as per the FSL report (Ex. P/13), organochloro
insecticide 'endosulfan' was found in both of these articles. As such, both of the appeals filed by the
appellants/accused persons deserve to be dismissed.

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 Madu Miya Alias Majubuddin Miya vs State Of Chhattisgarh on 12 December, 2022

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

Questions for consideration :-

13. The two integral questions that arise for consideration in adjudication of both these appeals
would be - (I) whether deceased Sanjeevan Uraon died of poison said to have been administered to
him ?

(II) Whether it was the appellants/accused persons who administered the said poison to the
deceased and thereby, murdered him ?

Answer to Question No. (I) :-

14. The cadaver of Sanjeevan Uraon was subjected to postmortem on the recommendation of the
panchas, which was conducted by Dr. Pramod Kumar Sinha (P.W.-13), who has proved the
postmortem report (Ex. P/23) before the Court. After examining the deceased, he has recorded in
the postmortem report (Ex. P/23) that there was no visible sign of injury over his body; slight rigor
mortis was present in upper and lower limb; blood stained froth was coming from his nose and
mouth and marbling over his chest, abdomen and shoulder was present. However, after the entire
examination, the Doctor could not opine about the cause and nature of his death and therefore, he
took visera of the deceased and after packing it in a sealed pack plastic container handed it over to
be sent for FSL and as per the FSL report (Ex. P/13), visera of the deceased, which was marked as
Article B1 and B2, contained organochloro insecticide 'endosulfan'. As such, we are of the considered
opinion that on the basis of FSL report (Ex. P/13), it has been proved beyond doubt that deceased
Sanjeevan Uraon died on account of the poison administered to him which has been found to be
organochloro insecticide 'endosulfan'.

Answer to Question No. (II) :-

15. In order to arrive at the answer to this question, we will take up both of the appeals filed by the
appellants/accused persons separately, however, it would first be relevant to notice a few decisions
rendered by the Supreme Court in this regard which would apply to the case of all the three
appellants/accused persons conjointly.

16. In the matter of Anant Chintaman Lagu v. The State of Bombay1, their Lordships of the Supreme
Court have laid down the parameters to be established by the prosecution in case of murder by
poisoning and it has been held that the prosecution must establish in a case of poisoning that the
death took place by poisioning; the accused had the poison in his possession; and that the accused
had an opportunity to administer the poison to the deceased. In the aforesaid matter, the following
has been observed by their Lordships :-

"The prosecution must establish in a case of poisoning (a) that death took place by
poisoning; (b) that the accused had the poison in his possession;

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and (c) that the accused had an opportunity to administer the poison to the deceased. Though these
three propositions must be kept in mind always, the sufficiency of the evidence direct or
circumstantial, to establish murder by poisoning will depend on the facts of each case. If the
evidence in a particular case does not justify the inference that death is the result of poisoning
because of the failure of the prosecution 1 AIR 1960 SC 500 to prove the fact satisfactorily, either
directly or by circumstantial evidence, then the benefit of doubt will have to be given to the accused
person. But if circumstantial evidence, in absence of direct proof of the three elements, is so decisive
that the court can unhesitatingly hold that death was a result of administration of poison (though
not detected) and that the poison must have been administered by the accused person, then the
conviction can be rested on it. "

17. Thereafter, in the matter of Sharad Birdichand Sarda v. State of Maharashtra2, which was a case
of cyanide poisoning, for which, the husband of the deceased was tried for murder, their Lordships
of the Supreme Court stressed that the Court must carefully scan the evidence and determine the
four important circumstances which alone can justify a conviction. The following was thus held in
paragraph 165 :-

"165. So far as this matter is concerned, in such cases the court must carefully scan
the evidence and determine the four important circumstances which alone can justify
a conviction :

(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."

18. The principle of law laid down by the Supreme Court in Anant Chintaman Lagu (supra) and
Sharad Birdichand Sarda (supra) was subsequently followed in the matter of Bhupinder Singh v.
State of Punjab3, in which, it was held that even if there is failure of the prosecution to prove the
possession of 2 (1984) 4 SCC 116 3 (1988) 3 SCC 513 poison with the accused, the same is not fatal, if
the prosecution clearly proves that it is a case of circumstantial evidence. The following has thus
been held in paragraphs 26 and 27 :-

"26. The poison murder cases are not to be put outside the rule of circumstantial evidence. There
may be obvious very many facts and circumstances out of which the Court may be justified in
drawing permissible inference that the accused was in possession of the poison in question. There
may be very many facts and circumstances proved against the accused which may call for tacit
assumption of the factum of possession of poison with the accused. The insistence on proof of
possession of poison with the accused invariably in every case is neither desirably nor practicable. It
would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We
cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused
in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than
in other kinds of murders. Murder by poisoning is run like any other murder. In cases where
dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court

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can legitimately draw from the circumstances an inference on any matter one way or the other.

27. The view that we have taken gets support from the decision of this Court in Ananth Chintaman
Laguy v. The Staet of Bombay, AIR 1960 SC 500 where Hidayatullah, J., has given an anxious
consideration to the three propositions laid down in Dharambir Singh case. The learned Judge did
not consider them as invariable criteria of proof to be established by the prosecution in every case of
murder by poisoning. The learned Judge said (at p. 519-520):

"It is now necessary to consider the arguments which have been advanced on behalf
of the appellant. The first contention is that the essential ingredients required to be
proved in all cases of murder by poisoning were not proved by the prosecution in this
case. Reference in this connection is made to a decisio fo the Allhahabd High Court in
Mt. Gajrani v. Emperor, AIR 1933 All 394, and to two unreported decisions of this
Court in Chandrakant N Nyalchand Seth v. The State of Bombay, Criminal Appeal
No. 120 of 1957 decided on Feruary 19, 1958 and Dharambir Singh v. Teh State of
Punjab, Criminal Appeal No. 98 of 1958, decided on 4.11.1958. In these cases, the
court referred to three propositions which the prosecution must establish in a case of
poisoning; (a) that death took place by poisoning; (b) that the accused had the poison
in his possession, and (c) that the accused had an opportunity to administer the
poison to the deceased. The case in Dharambir Singh v. State of Punjab turned upon
these three propositions. There, the deceased had died as a result of poisoning by
potassium cyanide, which disbelieved the evidence which sought to establish that the
accused had obtained potassium cyanide, but held, nevertheless that the
circumstantial evidence was sufficient to convict the accused in that case. This Court,
did not, however, accept the circumstantial evidence as complete. It is to be observed
tha the three propositions were laid down not as the invariable criteria of proof by
direct evidence in a case of murder by poisoning, because evidently if after poisoning
the victim, the accused destroyed all traces of the body, the first proposition would be
incapable of being proved except by circumstantial evidence. Similarly, if the accused
gave a victim something to eat and the victim died immediately on the ingestion of
that food with symptoms of poisoning and poison, in fact, was found in the viscera,
the requirement of proving that the accused was possessed of the poison would follow
from the circumstances that the accused gave the victim something to eat and need
not be separately proved."

The learned Judge continued :

"The cases of this Court which were decided processed upon their own facts, and though the three
propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial,
to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular
case does not justify the inference that death is the result of poisoning because of the failure of the
prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the
benefit of doubt will have to be given to the accused person. But if circumstantial evidence, in the
absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold

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that the death was a result of administration of poison (though not detected) and the poison must
have been administered by the accused person, then the conviction can be rested on it. "

Criminal Appeal No. 1954/2017 :-

19. Now, we shall consider the case of sole appellant/accused Madu Miya (A-3) in light of the
principles of law laid down by their Lordships of the Supreme Court in the matter of Anant
Chintaman Lagu (supra) and Sharad Birdichand Sarda (supra) to ascertain whether in his case, the
four important circumstances have been established or not ? (I) Whether there is a clear motive for
the accused to administer poison to the deceased ?

20. It is admitted position on record that deceased Sanjeevan Uraon worked as domestic help at the
house of Madu Miya (A-

3) and also grazed the cattle owned by Madu Miya (A-3) and thus, he used to take his meals as well
as sleep at his house. It is also admitted position on record that prior to the date of offence, Crime
No. 11/08 was registered at Police Station Chando against Nurtaj (A-2), Madu Miya (A-3) as well as
three other co-accused persons for offences punishable under Sections 364, 394, 397, 302 and
120B/34 of IPC alleging that they had robbed Rs. 2,00,000/- from the shop of one Bankim Mandal
and thereafter, murdered him.

21. It is the case of the prosecution that since deceased stayed at the house of Madu Miya (A-3), he
knew about the said incident and he was also summoned by the Police for inquiry and since Nurtaj
(A-2) and Madu Miya (A-3) were apprehensive that deceased would make statement against them
and he would reveal some information to the Police, Madu Miya (A-3) administered poison to the
deceased by mixing it in his food and thereafter, he immediately escorted him to his house, wherein
he succumbed to death.

22. In the trial against appellant/accused Madu Miya (A-3), though mother of the deceased Sushila
Tirkey (P.W.-1) has turned hostile, but Arun Tirkey (P.W.-2), brother of the deceased, has supported
the case of the prosecution and has clearly stated before the Court that on the fateful day, deceased
came to his house and he informed him that Madu Miya (A-3) has administered poison to him on
the pretext that he knew that Madu Miya (A-3) had murdered Bankim Mandal and so that he may
not disclose the said information to anyone, they administered poison to the deceased. Immediately
thereafter, he went to call the witchdoctor, however, till then deceased Sanjeevan Uraon had already
succumbed to death. Though Arun Tirkey (P.W.-2) has been subjected to cross-examination, but he
has remained consistent in his version.

23. As such, looking to the evidence available on record, in our considered opinion, motive on the
part of Madu Miya (A-3) to administer poison to the deceased has clearly been established by the
prosecution.

(II) Whether the deceased died of poison said to have been administered ?

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24. We have already answered this question in affirmative that deceased died due to the poison
administered to him relying upon the FSL report (Ex. P/18) wherein it has already been proved that
visera of the deceased contained organochloro insecticide 'endosulfan'.

(III) Whether the accused had poison in his possession ?

25. So far as Madu Miya (A-3) is concerned, neither his memorandum statement has been recorded
nor any seizure has been made from him. However, on the basis of memorandum statement of his
wife Rasida Begam (A-1) vide Ex. P/10, a glass vial containing 20gm of endosulfan was seized from
the house of Madu Miya (A-3) vide Ex. P/11 and it was also sent for FSL (Ex. P/18) in which it was
found that the substance found in the visera of the deceased as well as in this glass vial were same
i.e. organochloro insecticide 'endosulfan'. Thus, the appellant/accused Madu Miya (A-3) must have
had the said poison in his possession. Though, memorandum and seizure witnesses namely
Jumman Kadri (P.W.-6) and Salil Ansari (P.W.-7) have turned hostile and have not supported the
case of the prosecution, but it has duly been proved by the Investigating Officer D.D. Vaishnav
(P.W.-

12).

(IV) Whether the accused had an opportunity to administer the poison to the deceased ?

26. As we have already discussed above, deceased Sanjeevan Uraon used to work as domestic help at
the house of Madu Miya (A-3) and also used to take his meals there and sleep there and brother of
the deceased namely Arun Tirkey (P.W.-2) has also stated in his testimony that on the date of the
incident when his brother returned to their house, he informed him that Madu Miya (A-3) had
administered poison to him by mixing it in his meal suspecting that he would reveal information to
the Police with regard to the murder of Bankim Mandal committed by Madu Miya (A-3). In
paragraph 6 of his cross-examination, he has again stated that on the date of the incident, deceased
had taken his meals at the house of Madu Miya (A-3). As such, Madu Miya (A-3) had sufficient
opportunity to administer poison to the deceased.

27. In conclusion of the aforesaid legal discussion, we are of the considered opinion that all the four
circumstances stated above, which have been laid down by their Lordships of the Supreme Court in
Anant Chintaman Lagu (supra) and Sharad Birdichand Sara (supra), have been fully satisfied in the
present case and thus, in our considered opinion, learned Special Judge has rightly convicted the
appellant/accused Madu Miya (A-3) for the aforesaid offences. We do not find any good ground to
interfere with the judgment of conviction and order of sentence passed against Madu Miya (A-3).
Criminal Appeal No. 980/2011 :-

28. Now, we shall consider the cases of appellants/accused persons Rasida Begam (A-1) and Nurtaj
(A-2). So far as conviction of Rasida Begam (A-1) is concerned, she has only been implicated on the
basis of her memorandum statement (Ex. P/15) in which she has admitted that her husband Madu
Miya (A-3), her son Murtaja Ansari, her grandson Nurtaj (A-3) and one Ayub Khan and Mubarak
Ansari were involved in the commission of murder of Bankim Mandal and since deceased used to

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work at their house, he knew about the incident, therefore, suspecting that he would reveal about
the same to the Police, her husband Madu Miya (A-3) brought poison which they administered to
him along with his dinner and thereafter, he escorted the deceased to his house and on the next
morning, they got to know that deceased Sanjeevan Uraon had died on account of the poison that
they had administered to him. On the basis of memorandum statement, recovery of glass vial
containing 20 gm of said poison was seized from the house of Madu Miya (A-3) vide Ex. P/16 which
was proved by FSL report (Ex. P/13).

29. Though learned Special Judge has convicted Rasida Begam (A-

1) on the basis of memorandum (Ex. P/15) and seizure (Ex.

P/16), but she has clearly stated that it was her husband Madu Miya (A-3) who had
bought the said poison and brought it in the house and the said poison was also
administered to the deceased by her husband Madu Miya (A-3).

30. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra4 has laid
down the five golden principles that constitute the panchsheel of the proof of a case based on
circumstantial evidence, which state as under :- 4 (1984) 4 SCC 116 "153. A close analysis of this
decision would show that the following conditions must be fulfilled before a case against an accused
can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.

XXX XXX XXX (2) the facts so established should be consistent only with the hypothesis of guilt of
the accused, that is to say, they should not be explainable on any other hypothesis except that the
accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they
should exclude every possible hypothesis except the one to be prove, and (5) there must be a chain
of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability the act must have been done
by the accused."

31. In our considered opinion, merely on the basis of memorandum and seizure, that too, which has
not been proved by the prosecution beyond reasonable doubt, without any other corroborating piece
of evidence, conviction of Rasida Begam (A-1) for offence punishable under Section 302/34 of IPC
cannot be rested upon, especially when her case is based upon circumstantial evidence and it has
not been proved by the prosecution beyond reasonable doubt as per the panchsheel principles laid
down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra).

32. Coming to the case of appellant/accused Nurtaj (A-2), there is clear motive established by the
prosecution against Nurtaj (A-2) same as Madu Miya (A-3) that since both of them were involved in
murder of Bankim Mandal and since they suspected that deceased would reveal the said information
to the Police, Madu Miya (A-

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 Madu Miya Alias Majubuddin Miya vs State Of Chhattisgarh on 12 December, 2022

3) administered poison to him. However, though motive is established by the prosecution, but it has
also been established that it was Madu Miya (A-3) who acted upon the said motive and administered
poison to the deceased due to which he succumbed to death. Moreover, there is no other
incriminating piece of evidence available against Nurtaj (A-2) and it is well- settled law that even if
motive for offence is established, it is a weak piece of evidence and it may be an important
circumstance in a case based on circumstantial evidence, but it cannot be held made the basis of
conviction solely. As such, it would be unsafe to convict appellant/accused Nurtaj (A-2) for offence
punishable under Section 302/34 of IPC.

33. These two appellants/accused persons namely Rasida Begam (A-1) and Nurtaj (A-2) have also
been convicted for offence punishable under Section 3(2)(v) of the Act of 1989, however, it would
become bad as they have not been found guilty of offence punishable under Section 302/34 of IPC.

Conclusion :-

34. Conviction of appellants/accused persons namely Rasida Begam and Nurtaj for the offences
punishable under Section 3(2)(v) of the Act of 1989 read with Section 302/34 of IPC is hereby set
aside and they are acquitted of the charges levelled against them. Since they are already on bail, they
need not surrender, though their bail bonds shall remain in force for a period of six months in view
of the provision contained under Section 437A of CrPC. However, the appellant/accused Madu Miya
(A-3) is hereby convicted for offences punishable under Section 302, 201 of IPC and the sentence
awarded to him by the Special Judge is hereby maintained.

35. Accordingly, Criminal Appeal No. 980/2011 stands allowed whereas Criminal Appeal No.
1954/2017 stands dismissed.

Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge

Harneet

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