IMPORTANT POINTS
(1) Delay in lodging FIR by itself cannot be regarded as sufficient ground to draw adverse inference against prosecution case, nor could it be treated as fatal to case of prosecution.
(2) It would not be prudent to base conviction, relying upon dying declaration alone.

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 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 Maharashtra, (1984) 4 SCC 116 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. 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 pu