# Nand Lal Chaubey @ Chintamani Chaubey v. State of U.P

- **Citation:** (2019) 2 ILRA 371
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-19
- **Case number:** Jail Appeal No. 3458 of 2013
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-lal-chaubey-chintamani-chaubey-v-state-of-u-p-44745
- **Pages:** 23

## Headnote

A. Indian Penal Code, 1860 - Section 302
and 307 - Appeal against conviction.
In a case based solely on circumstantial evidence,
the circumstances from which conclusion of guilt is
to be drawn "must or should be" and not merely
"may be" fully established. The facts established
should be consistent only with the guilt of the
accused. They should not be explicable through
any other hypothesis except that the accused was
guilty. The circumstances should be conclusive in
nature. There must be a chain of evidence so
complete so as to not leave any reasonable
ground for a conclusion consistent with the
innocence of the accused and must show in all
human probability that the offence was committed
by the accused. (Para 38)
372 INDIAN LAW REPORTS ALLAHABAD SERIES
In a case based on circumstantial evidence,
the onus is on prosecution to prove that chain
is complete. (Para 41)
Jail Appeal dismissed (E-2)
List of cases cited: -

## Text

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2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
371
the night in a hotel room and next
morning one was found to have been
killed, the circumstance of last seen is
enough conclusive and the burden to
prove otherwise will certainly shift on the
other person and in such case, unless
otherwise is proved, the presence or
absence of motive becomes insignificant.
But if those two persons were seen
traveling in a public transport and after
more than 24 hours the other is found
dead, the time gap will become relevant
and some more incriminating evidence
shall be required to corroborate the
circumstance of last seen to complete the
chain and prove the guilt. There is no
evidence further corroborating such as
recovery of any incriminating article such
as knife used for causing death or any
other evidence of like nature.

46. In view of above discussion, we
find that the learned trial court has
committed error in holding that the chain
of circumstances was complete to reach a
finding of guilt against accused-appellant.
The impugned judgment is perverse,
illegal and not sustainable under law and
is liable to be set aside.

47. Therefore, the appeal is allowed.
The impugned judgment dated 12.02.1999,
passed by 3rd Additional District & Sessions
Judge, Farrukhabad, in Sessions Trial No. 407
of 1987 (State vs. Rajjan and another), Case
Crime No. 244 of 1984, under Sections 302
and 201 I.P.C., Police Station Chhibramau.
District
Farrukhabad
convicting
and
sentencing the accused-appellant is set aside.
Consequently, the accused-appellant Rajjan
@ Yogesh Kumar is acquitted.

48. If the accused-appellant Rajjan
@ Yogesh Kumar is in jail, he shall be
released forthwith.

49. The office is directed to transmit
back the lower court record to the learned
trial court immediately along with a copy
of this judgment for information and
compliance.
----------

(2019)10ILR A 371

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.7.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 3458 of 2013

Nand Lal Chaubey @ Chintamani
Chaubey ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Abhay Kumar Singh, Dr.
D.K. Tiwari, Sri Sita Ram Sharma (A.C.)

Counsel for the Opposite Party:
A.G.A.

A. Indian Penal Code, 1860 - Section 302
and 307 - Appeal against conviction.
In a case based solely on circumstantial evidence,
the circumstances from which conclusion of guilt is
to be drawn "must or should be" and not merely
"may be" fully established. The facts established
should be consistent only with the guilt of the
accused. They should not be explicable through
any other hypothesis except that the accused was
guilty. The circumstances should be conclusive in
nature. There must be a chain of evidence so
complete so as to not leave any reasonable
ground for a conclusion consistent with the
innocence of the accused and must show in all
human probability that the offence was committed
by the accused. (Para 38)
372 INDIAN LAW REPORTS ALLAHABAD SERIES
In a case based on circumstantial evidence,
the onus is on prosecution to prove that chain
is complete. (Para 41)
Jail Appeal dismissed (E-2)
List of cases cited: -
1. Hanumant Govind Nargundhar & anr. Vs St.
of M.P. AIR 1952 SC 343
2. Sharad Birdhichand Sarda Vs St. of Mah.
AIR 1984 SC 1622
3. Ashok Kumar Chatterjee Vs St. of M. P. AIR
1989 SC 1890
4. C. Chenga Reddy and ors. Vs St. of A. P.
(1996) 10 SCC 193
5. Both Raj @ Botha and ors. Vs St. of J&K
2002(8) SCC 45
6. Shivu & anr. Vs Ragistrar General H.C. of
Kar. & anr. 2007(4) SCC 713
7. Tamaso Bruno Vs St. of U.P. (2015) 7 SCC
178
8. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323
9. Sham Sunder Vs Puran (1990) 4 SCC 731,
M.P. vs Saleem (2005) 5 SCC 554
10. Ravji Vs St. of Raj. (1996) 2 SCC 175

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This jail appeal under Section 383
Cr.P.C. has been filed by accusedappellant
Nand
Lal
Chaubey
@
Chintamani
Chaubey
through
Senior
Superintendent, Central Jail, Varanasi
against
judgment
and
order
dated
27.08.2011 passed by Sri J.P. Yadav,
Special Judge (E.C. Act), Mirzapur in
Sessions Trial No.237 of 2007, under
Sections 302 and 307 IPC. By the
impugned judgment, accused-appellant has
been convicted under Section 302 and 307
IPC. Under Section 302 IPC, he has been
sentenced to undergo life imprisonment
along-with fine of Rs.2,000/-, In the event
of default of payment of fine, he has to
undergo further one year's additional
Rigorous
Imprisonment
(hereinafter
referred to as "RI"). He has been sentenced
to undergo seven years RI, under Section
307 IPC and also with a fine of Rs.2,000/-.
In case of default in payment of fine, one
year's additional RI has to be suffered by
him. Both the sentences have been directed
to run concurrently.

2. The facts emanating from Fist
Information Report (hereinafter referred
to as "FIR") and the material available on
record may briefly be stated as under, for
adjudication of this appeal:-

3. It appears that on 28.01.2007, an
application Ex.Ka-15 was allegedly given
at Police Station Ahiraura, District
Mirzapur by PW-7 Arif written by
accused-appellant Nand Lal Chaubey @
Chintamani Chaubey, stating that at 08:00
AM, he had gone to Robertsganj and
when he came back to his house, he saw
that his wife Monika, Sharad, Johny,
Baby, Manisha and other two children
Kavita and Ajit having taken their meal
were planning to sleep. He was asked by
his wife Monika to take meal but he did
not take. He was offered cake which had
been received from Duddhi but as soon as
he wanted to eat the cake, his elder son
Johny fell down and become unconscious.
Accused-appellant became nervous and
called his neighbors for help and asked
for vehicle but no vehicle could be
arranged. Thereafter he went to hospital
and from there he arranged for the vehicle
and took them to hospital.
2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
373

4. PW-5, Dr. C.M. Tiwari, District
Hospital
Robertsganj,
Mirzapur
was
posted on emergency duty on 27.01.2007
when Monika, her daughter-in-law Baby
(wife of Johny) and her son Tony,
Manisha wife of Ramesh and Johny were
admitted in hospital for treatment. All
were brought by Smt. I. Soloman and
Nand
Lal
Chaubey
@
Chintamani
Chaubey, accused-appellant. It was told to
the Doctor that they had consumed
poisonous
substance.
Information
of
incident was sent by PW-5 Dr. C.M.
Tiwari
to
In-charge
Inspector,
Robertsganj, District Mirzapur, which is
Ex.Ka-8 on record. Doctor found that
Baby, Monika and Tony were already
dead.
During
course
of
inspection,
remaining
two
patients
Johny
and
Manisha were found in unconscious state
and admitted for treatment in hospital.
Doctors at Robertsganj Hospital had
administered treatment on Johny and
Manisha for reducing effect of poison. On
28.01.2007 at 02:30 PM, both were
referred to Banaras Hindu University
(hereinafter referred to as "BHU") for
treatment. On 28.01.2007 the said Doctor
PW-5 was also assigned duty for
conducting autopsy on the dead bodies of
the aforesaid three persons. Dead bodies
were sealed by Constable Kaushal Kumar
and Vinod Kumar. Inquest and other
police documents were prepared and dead
bodies were sent for postmortem.

5. PW-5 Dr. C.M. Tiwari conducted
autopsy on the dead body of Baby (wife of
Johny Maseeh) on 28.01.2007 at 02:30 PM.
According to him, deceased was aged about
20 years and about 3⁄4 day had passed since
her death. No ante mortem injury was found
on her body. Cause of death could not be
ascertained. Visecra was preserved for
chemical examination. Postmortem report
(Ex.Ka-11) was prepared by PW-5, who
also conducted autopsy on the dead body of
deceased Monika Chaubey on 28.01.2007
at 03:00 PM. According to him deceased
was aged about 40 years and about 3⁄4 days
had passed since his death. No ante mortem
injury was found on her person. Cause of
death could not be ascertained. Viscera was
preserved
for
chemical
examination.
Autopsy report in respect of Monika
prepared by doctor is Ex.Ka-12 on record.
Similarly
postmortem
of
Tony
was
conducted
by
the
same
Doctor
on
28.01.2007 at 03:30 PM. He was found to
be aged about 18-19 years and about 3⁄4 day
had passed since his death. In his case also,
no ante mortem injury was found on her
person. Cause of death could not be
ascertained and viscera was preserved for
chemical examination. Doctor prepared
postmortem report Ex.ka-13 in respect of
deceased Tony.

6. After getting information from
District Hospital that three persons had died
and two others were in unconscious state
having consumed poison, PW-9, S.O.
Shaturghan
Prasad
Chaudhary,
Police
Chauki Sukrit, Police Station Ahiraura,
District Mirzapur visited the spot and
collected food remains and vomit, sealed
them in separate five packs for the purposes
of forensic examination. He prepared
recovery memos, Ex.Ka-24 to 26.

7. On receiving information of death
of three deceased, namely, Monika, Tony
and Baby @ Gudiya at District Hospital
Robertsganj, PW-12, S.O. Prem Lal,
visited District Hospital Robertsganj and
prepared panchayatnama, (Ex.Ka-40 to
Ka-42), in respect of the three deceased.

8. PW-16, SI Anil Kumar Gupta,
had sealed the bitch and four puppies
374 INDIAN LAW REPORTS ALLAHABAD SERIES
lying death on the spot after consuming
poisonous food and sent the same to
Veterinary Hospital for postmortem. He
also made certain queries from the
complainant PW-1 about the incident.

9. Postmortem on the dead bodies of
bitch and puppies was conducted by
Veterinary Dr. Dilip Kumar Pandey, PW8, posted at Rajgarh Veterinary Hospital,
District Mirzapur. He had prepared
reports Ex.Ka-17, 18, 19 and 20 in respect
of four puppies and Ex.Ka-21 in respect
of bitch. Since no ante mortem injury was
found on the person of bitch and puppies,
the case of death could not be ascertained
by the Doctor and he preserved viscera
for forensic examination.

10. From the record, it appears that
on 02.02.2007, Complainant, PW-1, had
given an application at Chauki Sukrit,
Police
Station
Ahiraura,
District
Mirzapur, mentioning the details of
incident and praying for investigation into
the matter. Since no investigation was
done, she made application to Higher
Police Authorities also, but they did not
investigate the matter. When Police took
no interest in the matter, PW-1, I.
Soloman
complainant
made
an
application, (Ex.Ka-4), under Section
156(3) Cr.P.C. on 16.03.2007 before
Chief
Judicial
Magistrate
(hereafter
referred to as "CJM"), Mirzapur with the
allegation that accused-appellant Nand
Lal Chaubey @ Chintamani Chaubey is a
cheater and clever person who enticed her
daughter Monika and got an agreement of
marriage executed before Sub Registrar,
Varanasi on 13.11.1999 and started living
as husband and wife at Madhupur, Chauki
Sukrit, Police Station Ahiraura, District
Mirzapur. Out of their wed-lock three
children Johny, Tony and Manisha @
Guddan were born. It is stated in the
application that about six years ago from
the date of filing of application under
Section 156(3) Cr.P.C., accused-appellant
abandoned Informant's daughter Monika
and her children, and after accepting
Islam religion, changed his name as
Mohd. Iqbal. Thereafter he married a girl
named Jamila Khatoon. On 27.01.2007 at
09:13 PM, accused-appellant come to the
house of Informant and asked to hurry up
for going to hospital as all had taken
poisonous food and died. He also asked to
keep quiet and not to make any noise.
Thereafter Informant, PW-1, went to
Hospital along-with accused-appellant,
where she found that her daughter Monika
aged about 45 years, Monika's son Tony
aged about 22 years and Monika's
daughter-in-law Gudiya @ Baby aged
about 17 years had died of consuming
poison. Two other children of Monika,
namely, Johny and Manisha could be
saved with great efforts of doctors. It is
stated
that
accused-appellant
is
a
mischievous person and acts as broker in
hospital. Informant was of the firm
opinion that accused-appellant had killed
her daughter Monika, Monika's son Tony
and her daughter-in-law Gudiya @ Baby
by administering poison on them. He is
trying to hush up the matter in connivance
with Hospital and Police personnel. Two
children who fortunately are alive and
under treatment have also disclosed that
poison was mixed by the aforesaid
accused-appellant in vegetable and since
they had not consumed vegetable, they
could escape the death but others
consumed all the food, and dead. It is
asserted
in
the
application
that
a
complaint of the incident was given at
Chauki Sukrit, Police Station Ahiraura,
District Mirzapur but no action was taken.
Accused-appellant was pressurizing PW-
2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
375
1, Complainant and threatening her to life.
Complainant had also sent applications to
Superintendent of Police (hereinafter
referred to as "SP"), Mirzapur , Deputy
Inspector General of Police (hereinafter
referred
to
as
"DIG")
Vindhyachal
Division, Mirzapur and Station Officer
(hereinafter
referred
to
as
"SO"),
Ahiraura, Mirzapur praying for chemical
examination of vegetable (sabzi), vomit
and also bitch and puppies who died on
consuming poisonous food and also for
investigation of the case by Police after
registering FIR. Since police authorities
failed to take any action against accusedappellant,
Complainant,
PW-1,
filed
aforesaid
application
under
Section
156(3) Cr.P.C. with a prayer for lodging
an FIR and investigation into the matter
by Police.

11. On the aforesaid application,
learned CJM prima-facie found that a
cognizable offence was made out and
sufficient ground existed for investigation
into the matter. Accordingly, vide order
dated 03.04.2007, he directed Police
Station Ahiraura, District Mirzapur for
registering the case and investigate the
matter.

12. Pursuant to order of Magistrate
dated 03.04.2007, PW-4 Head Constable
Lalta Prasad Yadav lodged FIR and
prepared
chik
report
Ex.ka-5
on
25.06.2007 at 12:50 hours. He also made
corresponding General Diary (hereinafter
referred to as "GD") entry at report no.27
at 12:50 hours (Ex.Ka-7).

13. Consequent upon registration of
FIR as case crime no.01 of 2007, SI Ajay
Kumar
Rai,
PW-14,
undertook
investigation on 25.06.2007. He made
entries of relevant documents in the GD
and
recorded
statements
of
Head
Constable PW-4, Complainant, PW-1,
and other witnesses; inspected spot,
prepared site plan Ex.Ka-46. He made
entry of Forensic report regarding viscra
sent for chemical examination to Forensic
Science Laboratory in respect of deceased
Monika, Tony and Baby. According to
Forensic report, poison of 'aluminum
phosphide' was found therein. Viscra
report is Ex.Ka-47 to 49 on record.
Thereafter
on
29.06.2007,
accusedappellant was arrested and relevant entry
was made in the case diary (hereinafter
referred to as "CD").

14. Forensic report in respect of five
sealed packs of vomit and remaining food
material etc. was received on 05.06.2007,
reference whereof is also noted in the CD.
After transfer of PW-14, Ajai Kumar Rai,
investigation was continued by PW-15,
SO, Lallu, who after receipt of viscra
report from Forensic Science Laboratory,
Lucknow in respect of food remains
collected from spot as well as viscra of
Bitch and Puppies, recorded the same in
CD. The reports mentioned that viscra
and vomit and food remains contained
'aluminum
phosphide'
poison
Viscra
report is Ex.Ka-15.

15.

After
conclusion
of
investigation, PW-15, SI, Lallu Ram
Bhasker, submitted charge-sheet (Ex.Ka50) against accused-appellant in the Court
of CJM, Mirzapur.

16. It is pertinent to mention here
that according to viscera reports, (Ex.Ka47 to 49), received from Forensic Science
Laboratory, U.P. Lucknow in respect of
Baby, Monika and Tony respectively, the
aforesaid viscera of all the persons
contained poison, 'aluminum phosphide'.
376 INDIAN LAW REPORTS ALLAHABAD SERIES
Likewise viscera report, (Ex.Ka-51), in
respect of bitch and puppies also, finding
was
that
it
contained
'aluminum
phosphide' poison. Ex.Ka-51 also stated
that the articles, namely, vomit, food
material etc. recovered from the spot also
contained same poison.

17. CJM, Mirzapur took cognizance
of the offences against accused-appellant
on 26.09.2007.

18. Case, being exclusively triable
by Court of Sessions, was committed to
Sessions Court on 24.10.2007, and
registered as Sessions Trial No.237 of
2007. Subsequently Sessions Trial was
transferred to the Court of Special Judge
(E.C. Act), Mirzapur who framed charges
against accused-appellant on 11.01.2008,
as under:-

"eSa] ch0Mh0 oekZ] fo'ks"k U;k;k/kh'k bZ0
lh0 ,DV] fetkZiqj ,rn~}kjk vki vfHk;qDr uUn
yky pkScs mQZ fpUrkef.k pkScs dks fuEu vkjksiks
ls vkjksfir djrk gwWA

izFke& fnukad 27-1-2007 dks le;
djhc 9-00 cts jkr cgn xzke e/kqiqj Fkkuk
vgjkSjk ftyk fetkZiqj esa vkius okfnuh eqdnek
Jherh vkbZ-lksykseu dh yM+dh eksfudk o
eksfudk iq= Vksuh o yM+dh cgq xqfM+;k mQZ csch
dks tgj nsdj ekj MkykA bl izdkj vkius
tku cw>dj Hkk0 na0 la0 dh /kkjk 302 ds
vUrxZr n.Muh; vijk/k fd;k tks bl U;k;ky;
ds izlaKku esa gSA

f}rh;& ;g fd mDr frfFk le; o
LFkku ij vkius e`rdk eksfudk ds cPps tkuh o
euh"k dks bl vk'k; Kku o ,slh ifjfLFkfr esa
[kkus esa tgj fn;k ;fn mlls mu yksxksa dh
e`R;q gks tkrh rks vki gR;k dh dksfV esa vkus
okys vijk/k ds nks"kh gksrsA bl izdkj vkius
tku cw>dj Hkk0 na0 la0 dh /kkjk 307 ds
vUrxZr n.Muh; vijk/k fd;k tks bl
U;k;ky; ds izlaKku esa gSA

,rn~}kjk eSa funsZf'kr djrk gwW fd
mijksDr vkjksi esa vkidk ijh{k.k blh U;k;ky;
}kjk fd;k tk,xkA"

"I, B.D. Sharma, Special Judge
(E.C. Act), Mirzapur hereby charge you,
accused
Nand
Lal
Chaubey
@
Chintamani Chaubey with the following
charges: -

Firstly - That on 27.01.2007 at
about
09:00
PM
within
Village
Madhupur,
Police
Station
Ahiraura,
District Mirzapur, you killed Monika D/o
complainant I. Soloman and her son Tony
and daughter-in-law Gudiya @ Baby by
administering poison on them. Thus you
have intentionally committed an offence
punishable under Section 302 IPC which
is within the cognizance of this court.

Secondly - That on the aforesaid
date, time and place, you, mixed poison in
the food of Johny, Manisha children of
deceased
Monika
deliberately
and
intentionally knowing that had they died
by your aforesaid act, you would have
been guilty of murder and thus you have
committed an offence punishable under
Section 307 IPC which is within the
cognizance of this Court.

Hence, I hereby direct that you
be tried by this court for the aforesaid
charges."

(English Translation by Court)
(Emphasis added)

19. Accused-appellant pleaded not
guilty and claimed trial.
2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
377

20. In order to prove the guilt of
accused, prosecution examined as many
as sixteen witnesses out of whom PWs 1,
2, 3, 7 and 13 are witnesses of fact. Rest
are formal witnesses including Doctors
and Police personnel.

21. PW-1, Smt. I. Soloman, is the
Complainant and mother of deceased
Monika. PW-2 Gudiya (wife of Arif) is
the daughter of Complainant, PW-1, and
sister
of
deceased
Monika.
PW-3,
Manisha, is daughter of deceased Monika
and grand daughter of Complainant, PW1. PW-7, Arif, is husband of PW-2,
Gudiya (daughter of PW-1), and has
deposed that he had taken the application
dated 28.01.2007 written by accusedappellant to the Police Station and has
proved the same as Ex.ka-15. PW-13
Johny Masih is the son of deceased
Monika. All the prosecution witnesses
have supported prosecution version in
material particulars.

22. PW-4 Head Moharrir Lalta
Prasad Yadav had registered FIR pursuant
to direction of CJM on application under
Section 156(3) Cr.P.C. and proved Chik
FIR Ex.Ka-5 and 6. He has also proved
copy of GD entry, Ex.Ka-47. PW-5 is Dr.
C.M. Tiwari who was present at the
Hospital at Robertsganj, at the time of
admission of patients after consuming
poison and had conducted postmortem.
He has also proved Ex.Ka-8, information
sent to In-charge Inspector Robertsganj
regarding consuming poison by Baby,
Monika, Tony, Manisha and Johny. He
has also proved Bed Head Tickets of
Manisha and Johny, Ex.Ka-9 and 10, in
respect of treatment administered for
reducing the effect of poison. He has also
proved postmortem reports of Baby, wife
of Johny; Monika; and Monika's son
Tony, Ex.Ka-11 to 13, respectively. PW-6
Head
Constable
Bhupendra Narayan
Singh has appeared to depose that on the
application dated 28.01.2007 signed by
accused-appellant Nand Lal Chaubey @
Chintamani Chaubey sent through Arif,
he had made entry in the GD and proved a
copy of the same, Ex.Ka-14. PW-8 Dr.
Dilip Kumar Pandey, Veterinary Doctor
at Rajgarh Veterinary Hospital, District
Mirzapur, had conducted autopsy on the
dead bodies of one bitch and four puppies
and proved postmortem reports, Ex.Ka-
17 to 20, pertaining to four puppies, and
Ex.Ka-21 in respect of bitch. He had also
sent viscera of aforesaid puppies to Police
Chauki, Sukrit, after sealing in five
separate packs . He has proved Ex.Ka-23,
the letter written by him to Indian
Institute
of
Toxicology
Research,
Lucknow who had refused the same and
sent back, whereafter the same was sent
by him to Forensic Science Laboratory,
Lucknow. PW-9, SO, Shaturghan Prasad
Chaudhary, has proved recovery memo in
respect of food remains and vomit
collected from the house of the deceased.
He had first visited the place of
occurrence on getting information of
occurrence. PW-10 Constable Sujeet
Kumar Singh had carried viscera of
deceased Baby, Monka and Tony alongwith relevant documents and letter of SP
Mirzapur, marked as Ex.ka-27 to 32. He
has also proved acknowledgment of
sealed packets as well as Ex.Ka-22,
viscera of bitch and puppies along-with
original dockets which he had deposited
in Forensic Science Laboratory for
examination. PW-11 Dr. Subodh Rath of
Jeevant
Jyoti
Christian
Hospital,
Reobertsganj,
Sonbhadra,
(an
Eye
surgeon) has proved admission and Bed
Head Ticket of Manisha as Ex.Ka-34 and
35 and her discharge Ex.Ka-36 as also
378 INDIAN LAW REPORTS ALLAHABAD SERIES
Bed Head Ticket and discharge in respect
of Johny, Ex.Ka-37, 38 and Ex,Ka-39.

23. PW-12, SO, Prem Lal, on
receiving information on 28.01.2007
about death of three deceased had gone to
Hospital and prepared panchayatnama
(inquest), Ex.Ka-40 to 42, in respect of
three deceased Monikas, Baby and Tony.
He has also proved necessary documents,
i.e. request for postmortem, namely
Ex.Ka-43 to 45.

24. PW-14 Ajay Kumar Rai is first
Investigating Officer (hereinafter referred
to as 'I.O.') who initiated investigation on
25.06.2007 after registration of FIR,
pursuant to order of Magistrate on the
application of Complainant, PW-1, under
Section 156(3) Cr.P.C. He had gone to the
spot and prepared site plan, Ex.Ka-44,
and proved viscera report received from
Forensic Science Laboratory in respect of
Monika, Tony and Baby, Ex.Ka-47 to 49.

25. PW-15, SI Lallu Ram Bhasker,
is second I.O. after transfer of PW-1 Ajay
Kumar
Rai
and
had
taken
over
investigation on 25.08.2007. He recorded
statements of witnesses and has also
proved viscera report in respect of bitch
and four puppies, Ex.Ka-51. He has
proved charge-sheet, Ex.Ka-50. PW-16,
SI Anil Kumar Gupta, had sealed the
bitch and four puppies and sent to
Veterinary Hospital for postmortem. He
had also some made interrogation on the
application of PW-1 complainant and
toled that accused-appellant was not
present at the time of taking meal alongwith his family.

26. After evidence of prosecution
concluded, accused-appellant Nand Lal
Chaubey @ Chintamani Chaubey was
examined under Section 313 Cr.P.C. He
has stated that he has been falsely
implicated; Monika had married with him
of her own sweet will; charges levelled
against him are false; and, witnesses are
deposing falsely. He has stated that in
2001, he had come to know that
complainant PW-1 and Ramesh Chandra
Pandey had got Monika married with one
Shyam Bihari Rai, just 26 days prior to
the marriage of accused-appellant with
Monika. In this respect, accused-appellant
extended threat to Complainant PW-1 and
Ramesh Chandra Pandey warning for
taking legal action against them and for
that reason, their relations had broken and
he has been falsely implicated.

27. After hearing learned Counsel
for parties and scrutinizing evidence
available on record, Trial Court has
recorded
verdict
of
conviction
and
sentenced accused-appellant, Nand Lal
Chaubey @ Chintamani Chaubey, in the
manner stated in paragraph-1 of this
judgment. Trial Court has come to the
conclusion of guilt of accused-appellant
recording its findings as under :-

(I) Accused-appellant married
Monika
on
13.11.1997
executed
a
marriage agreement registered in the
Office of Sub-Registrar, Varanasi and
started residing in the house of Baliram
near Madhupur Chawki, Police Station
Ahiraura.

(II) For earning livelihood,
Monika
opened
Grocery
/
General
Merchant shop.

(III) Monika came to know that
accused-appellant was already married
after adopting Islam and his another wife
was residing at Sajaur. She became
2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
379
annoyed and left the house of Baliram and
starting to live in the house of Amar Nath
Patel at Madhupur by hiring it and left
company of Nand Lal Chaubey.

(IV) Accused-appellant made
attempts to reconcile with Monika and
with the help of complainant, the relations
became normal for a short time.

(V) On 26th January, 2007, at
11.30 in the night, Nand Lal Chaubey
phoned Complainant from the house of
Monika asking her to come earlier since
Toni had consume poison. Complainant
accompanied by her daughter Gudiya and
his husband Arif immediately came to
Madhupur and found that Toni was
continuously
conversing,
Gudiya
immediately suggested accused-appellant
to take Toni to some doctor, but he said
that he has given salted water and
everything would get normal.

(VI) On 27.1.2007, accusedappellant, around 9:30 PM, reached the
house of complainant by a vehicle
(Marshal) and informed her that every
body has taken poison and he has brought
them in the vehicle and they are dying. He
also said that they tried to administer
poison to him but themselves have taken
and dying. He suggested to move to the
hospital without any noise, whereafter,
complainant along with all five persons,
who had consumed poison, came to
Robartsganj hospital where Monika, Toni
and Gudiya @ Baby were declared dead.
Manisha and Johny after treatment, at
District Hospital and thereat BHU,
recovered.

(VII) PW-1, complainant stated
that accused-appellant visited the house of
Monika at 6:00 in the evening on
27.1.2007
and
thereafter
incident
occurred. All other had taken food but
despite request accused-appellant did not
eat anything. This shows that poison was
administered by accused-appellant and
that is why he did not take any food.

(VIII) PW-2 sister of Monika and
daughter
of
complainant
PW-1
also
supported statement of PW-1 regarding
disturbed marital affairs between accusedappellant and Monika and cruel behaviour of
accused-appellant towards Monika. Firstly
on 26.1.2007, in the night at 11:00 PM, she
received telephonic call from complainant
stating that accused-appellant has informed
on phone that Toni has consumed poison,
whereupon she accompanied by her husband
Arif reached Madhupur and saw that
accused-appellant had given salted water to
Toni. PW-2 and her husband suggested to
take Toni to Hospital but accused-appellant
said that he has given salted water and Toni
will be recovered. Around 3:00 p.m. in the
night, Toni was considerably recovered and
when asked, he told that around 8:00 or 9:00
PM in the evening, he has taken food, and
thereafter fell ill. On the next day,
Complainant, husband of PW-2 and Monika
took Toni to Hospital.

(IX) Around 9:30 PM in the night
of 27.1.2007, Nand Lal Chaubey reached the
house of complainant, PW-1, at Primary
Health Centre, Kakrahi through Marshal
Jeep and told her that all have consumed
poison and dying and they should be taken to
Hospital quickly. In the Jeep all five were
lying unconscious. They were taken to
District Hospital where three out of five i.e.
Monika, Gudiya @ Baby and Tony were
declared dead.

(X) Johny and Manisha, who
recovered, told subsequently that they had
380 INDIAN LAW REPORTS ALLAHABAD SERIES
taken pulse and rice in the evening,
immediately, after cooking of food by
Manisha and had not taken vegetable.
After cooking food, Manisha and Gudiya
@ Baby went for natural call and Tony
went to collect a cassette. Accusedappellant came around 6:00 PM and
prepared his bed at the same place where
cooked food was kept. When all other
came back and took food, Monika, sister
of PW-2 requested accused-appellant also
to take food but he refused. After taking
food by family members, food was also
taken by Bitch and Puppies, who died.

(XI) PW-2 said that she is
confident that poison was mixed by
accused-appellant.

(XII) PW-3 Manisha is the
daughter
of
accused-appellant
and
deceased Monika. She also fell ill in the
same incident and was present in the
house. She categorically stated that at
6:30 PM, in the evening on 27.1.2007,
when food was being cooked by PW-3
and his sister-in-law Gudiya @ Baby, at
that time accused-appellant came and lay
down after preparing bed at the place
where food was being cooked. After
preparation of food, rice and pulse was
given to the children. PW-3 and her
mother Monika went to attend natural call
and Toni went out for collecting a
cassette. PW-3 and her mother returned
after half an hour when accused-appellant
was lying at the same place. Food was
served to all family members at around
8:30 in the night but accused-appellant
refused to take food. After taking food,
both brothers, sister-in-law and mother of
PW-3 fell down, when PW-3 asked
accused-appellant
to
see
what
is
happening, whereupon he replied that she
will also fell down quickly since he has
given poison in the vegetable and since
children
had
already
taken
food,
otherwise they would have also met the
same
fate.
PW-3
also
feeling
unconsciousness, ran and reached the
Hotel of father of Dheeraj and told him
that something has happened to his
mother
and
thereafter
she
gained
unconscious. She became consciousness
at Rabartsganj Hospital.

(XIII) The motive was that
Monika earlier married to one Heera
Maseeh and Johny, Toni and Manisha
were born, out of said wedlock. Nand Lal
Chaubey married Monika when she had
above three children. He subsequently,
also contracted another marriage with
Zamila Khatoon.

(XIV) The factum that death of
three has occurred due to poison is proved
by medical and viscera report.

(XV) PW-5 said that all five
persons, who have consumed poison
reached Hospital at around 10:00 PM in
the
night
and
accompanied
by
complainant
Smt.
I.
Soloman
and
accused-appellant, Nand Lal Chaubey.
Three of them had already died before
reaching Hospital and Manisha and Johny
were unconscious. The two persons
accompanying patients informed that
poison has been consumed whereupon
information was given to Police by PW-5
in writing at 11:00 p.m. in the night.
Statement of Manisha was recorded by
Magistrate on 28.1.2007. In viscera report
'aluminium phosphide' poison was found.

(XVI) PW-7, Arif besides other,
said that Johny and Manisha, after getting
well, told that poison was mixed in the
food by accused-appellant. He was
2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
381
requested to take food but refused. He
also stated that out of wedlock of Monika
and Nand Lal Chaubey, there was no
issue.

(XVII) Death of Bitch and
Puppies, who consumed remaining food,
due to poison of aluminium phosphide has
been proved by PW-8, who conducted
post-mortem of Bitch and puppies.

(XVIII) PW-13, who also fell ill
due to poison but survived has also
supported and fortified version of PW-3,
Manisha (his sister) and has proved that
for some time when all other family
members were not present in the house
after preparation of food, Nand Lal
Chaubey alone was present there.

(XIX) Trial Court, therefore, said
that Nand Lal Chaubey was present at the
time when incident took place. He had
motive. He was the only person who could
have mixed poison in the food and It is
fortified by the fact that, all other family
members when took food, though it was also
served to him but he did not eat. Therefore,
prosecution has proved its case beyond
reasonable doubt and held him guilty.

28. Aggrieved by this judgement,
present appeal has been filed.

29. We have heard Sri Abhay
Kumar
Singh,
learned
Counsel
for
appellant and Sri Rishi Chaddha, learned
A.G.A for State-respondent at length and
gone through the record carefully with the
valuable assistance of learned Counsel for
parties.

30. Learned counsel for accusedappellant,
assailing
the
judgement,
contended :-

(i) There is no eye witness to
prove
that
accused-appellant
mixed
poison in the food.

(ii) No body has seen accusedappellant when came to the house, carried
with him any poison and mixed the same.

(iii) The mere fact that accusedappellant did not take food when other
family members took food, is a coincident and for that reason alone, it
cannot be said that the accused-appellant
is guilty of mixing poison in the food, to
cause death of three family members
including his wife Monika.

(iv) Accused-appellant himself
took all the ailing persons to Hospital by
hiring a Jeep. He first rushed to the place
of complainant, who was a Supervisor in
Primary Health Centre and could have
given a better advice in the matter. He
himself sent an application informing
about the incident to police which has
been proved by husband of PW-3.

(v) It has not been proved as to
which food item contains poison.

(vi) The entire prosecution story
implicating accused-appellant is founded
on conjunctures and surmises.

(vii) There was no reason for
the
accused-appellant,
who
was
continuously trying to have cordial
relations with Monika and her children, to
make any attempt for their death and the
alleged motive is nothing but a sheer
conjuncture on the part of complainant
and other witnesses having no substance.

(viii) F.I.R. has been lodged
with a long delay which shows that the
382 INDIAN LAW REPORTS ALLAHABAD SERIES
incident
has
subsequently
been
manipulated and is an after thought and
with due consultation and advice.

(ix)
The
alleged
second
marriage of accused-appellant has not
been proved by adducing any evidence.

(x) PW-5 said that kind of
poison found in the food smell so much,
that if mixed in food, one may not take
the food due to smell. An otherwise view
expressed by another witness has been
accepted by Court below without giving
any reason for rejecting opinion of PW-5.

(xi) No forensic expert in this
regard has been examined.

(x) Prosecution is not based on
any ocular version but it is a case of
circumstantial
evidence
having
no
complete chain but there are much gaps,
therefore, conviction of appellant is bad in
law.

(xi) Cake was brought by Johny. It
was also recovered from the place of incident
vide Ex.Ka-24. It has not been examined,
whether said food item (Cake) which was
consumed by all family members except
accused-appellant, was itself poisonous or
not. Therefore, there was every possibility
that poison may have been in the cake which
was consumed by all family members and
resulted into death of three family members.

31. Learned AGA on the contrary
submitted that accused-appellant was
present on the spot. Admittedly when
food was being cooked, kept after
cooking and other family members went
out side the house, accused-appellant
continued to remain thereof. All family
members took food except appellant
though it was served to him which shows
that food item(s) contained poison to the
knowledge of accused-appellant, hence,
he did not eat. This shows his complicity.
His relation with Monika were strain
since out of first marriage she had three
children of substantial age and as per PW3, he did not like those children. Death of
three persons has been proved due to
poison and there was none else except
accused-appellant,
who
could
have
committed the crime, therefore, chain of
circumstantial evidence is complete and
he has been rightly convicted by Court
below.

32. In the light of rival submissions,
we have to examine, "whether it can be said
that
accused-appellant
has
committed
murder of three of his family members and
injured two others by administering poison
and chain of circumstantial evidence proved
by prosecution is complete so as to lead an
interference of guilt against accusedappellant
only
and
none-else,
and
prosecution has successfully proved its case
beyond reasonable doubt."

33. Some facts which are not
disputed before us, and learned counsel
for the appellant has also not raised any
serious objection thereto, are :-

(i) Food items, all or some of
them or any one of them contained
poison, 'aluminium phosphide'.

(ii) The food was taken by five
members of family, three of them died
and
two
became
seriously
ill
but
subsequently, recovered.

(iii) Food remains were eaten by
bitch and puppies, present in the house,
and they also died of the aforesaid poison.
2 All. Nand Lal Chaudhary @ Chintamani Chaubey Vs State of U.P.
383

(iv) The sample of vomit
collected by police shows presence of
same poison i.e. aluminium phosphide.

(v) Three persons, namely,
Monika, Gudiya @ Beby and Toni died
before reaching hospital because of
poison.

(vi) When family members were
taken food, accused-appellant was present
in the house but had not taken meals.

34. Therefore, the place at which
offence was committed, i.e. poison was
mixed, was the house, where food was
cooked and kept and death took place due
to intake of poison through meals, in the
manner as stated by prosecution in the
F.I.R. as also stated by PWs-1, 3 and 13.
This fact is duly proved and virtually
there is no substantive argument to
challenge the said fact.

35. The actual attempt of learned
counsel for appellant is that accusedappellant has not mixed poison in the
food and there is no evidence to prove this
fact, hence, the very basis on which
accused-appellant has been held guilty,
being no-nest, the entire prosecution story
falls and judgement in question is liable to
be set aside.

36. It is no doubt true that here is not
a case where anybody has seen accusedappellant mixing poison in the food
item(s). In case in hand there is no eye
witness
of
occurrence.
Case
of
prosecution
rests
on
circumstantial
evidence and extra-judicial confession.

37. It is well settled that conviction
on circumstantial evidences is sustainable;
though degree of proof is slightly higher
and circumstances have to be examined
with due caution.

38. The circumstances from which
conclusion of guilt is to be drawn must or
"should be" and not merely "may be",
fully established. The facts so established
should be consistent only with the guilt of
the accused, that is to say, they should not
be
explicable
through
any
other
hypothesis except that the accused was
guilty.
Moreover,
the
circumstances
should be conclusive in nature. There
must be a chain of evidence so complete
so as to not leave any reasonable ground
for a conclusion consistent with the
innocence of the accused, and must show
that in all human probability, the offence
was committed by the accused.

39. Hanumant Govind Nargundkar &
Anr. v. State of M.P., AIR 1952 SC 343, is
the basic judgment on appreciation of
evidence, when the case depends only on
circumstantial evidence, which has been
consistently relied in later judgments.