The Supreme Court observed that delay in lodging FIR by itself would not be fatal to the case of prosecution.

In this case, the appellant i.e., the accused had filed an appeal against the judgment of the Chhattisgarh High Court which had confirmed his conviction in a murder case. The Court allowed the appeal and acquitted the accused.

The two-Judge Bench comprising Justice Bela M. Trivedi and Justice Dipankar Datta observed: "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."

Senior Advocate Rajesh Pandey appeared for the appellant/accused while Advocate Gautam Narayan appeared for the respondent/State.

Facts of the Case -

The Trial Court 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, (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/-. The case of the prosecution was that, during the evening hours, the deceased had gone to the forest for collecting woods, however he did not come back in the night. The next day morning his wife saw him lying in the Verandah of his house in a semi-conscious state and at that time, some wheezing sound, and pungent smell of liquor was coming from his mouth.

The deceased’s wife and daughter tried to wake him up, but in his slurred speech, he was trying to say that while he was going to the forest, the appellant called him at his home and made him to drink two glasses of liquor and thereafter mixed some jadi-buti (herb) in the third glass of liquor, and made him to drink the third glass. The deceased’s wife called her neighbours and took him to CIMS Bilaspur, as the health of the deceased was deteriorating. During the treatment, he died and the death was intimated to the police. The dead body was sent for autopsy and the Post-mortem was conducted. Both the courts below having recorded the findings of conviction against the appellant for the offence under Section 302, imposed the sentence of life imprisonment accordingly.

The issues that arose before the Supreme Court for consideration were:

(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?

The Court in view of the abovementioned issues noted, “… 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? … 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 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.”

The court said that, in this case, mere delay in registering the FIR could not be held to be a ground adverse to the case of prosecution.

The Court said that 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.

“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”, further said the Court.

The Court noted that it is difficult to hold that the prosecution had proved the four important propositions laid down by the Apex 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”, concluded the Court.

Accordingly, the Apex Court allowed the appeal and acquitted the appellant.

Cause Title- Hariprasad @ Kishan Sahu v. State of Chhattisgarh (Neutral Citation: 2023 INSC 986)

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