Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2152 of 2010
RAJBIR SINGH …APPELLANT(S)
VERSUS
THE STATE OF PUNJAB …RESPONDENT(S)
J U D G M E N T
Vikram Nath, J.
This appeal is directed against the judgment
and order of the Punjab and Haryana High Court
dated 29.10.2009 whereby the appeal filed by the
appellant was dismissed, confirming the judgment
of the Sessions Judge, Bathinda dated
08.04.2005 convicting the appellant under
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2022.08.25
11:31:39 IST
Reason:
1
1
Section 302 of Indian Penal Code 1860 and
sentencing him to undergo rigorous imprisonment
for life and pay a fine of Rs.1,000/, in default of
payment of fine, to further undergo rigorous
imprisonment for three months.
2. The prosecution story begins with the lodging
of the First Information Report by Joginder Singh
(PW 1 husband of the deceased) at Police Station
th
Kotwali, District Bathinda on 18 September,
2000 at 7 PM. According to the complainant, his
son Gursharan Singh in the morning at around
07.45 am brought 1 kg of milk from the house of
Rajbir Singh (appellant) who used to reside in the
neighbourhood and was carrying on business of
dairy farm and selling milk with the help of his
wife Sheela. The appellant was known to the
1 In short “IPC”
2
complainant being resident of the neighbourhood.
To help the appellant purchase buffaloes and for
domestic needs, he had borrowed Rs.1 lakh from
the informant about 7/8 months before. He had
also executed a pronote in that respect. The milk
as brought by Gursharan Singh (PW2) was kept
in the refrigerator. At about 12.30 PM his wife
Kuldeep Kaur @ Bhajno felt hungry and as she
was resting due to some uneasiness, the
informant himself took out some milk from the
jug kept in the refrigerator and after boiling the
same gave it to her. After sipping the milk once,
she remarked that the milk was bitter in taste
and after sipping further, she further remarked
that there was some defect with the milk. Then he
also smelled the milk lying in the jug from which
3
a pungent smell was coming. In the meantime,
his wife felt irritation on her lips and also became
restless. He called his son Gursharan Singh(PW
2), who took his mother on his scooter to the
Children and General Hospital. He also followed.
As the condition of his wife had deteriorated, she
was referred to the Civil Hospital, Bathinda where
she breathed her last after some time. He further
stated in his complaint that he was of the firm
belief that Rajbir Singh and his wife Sheela had
mixed some poisonous substance in the milk in
order to eliminate his family. His wife died
because of the poisonous milk. He and his wife
were demanding their money from Rajbir Singh
but he was making excuses and on account of
this grudge he poisoned the milk and hence a
4
report be registered and appropriate action be
taken.
3. Dr. K.S. Brar (PW12), Emergency Medical
Officer at Children and General Hospital after
examining Kuldeep Kaur referred her to the Civil
Hospital considering her serious condition, and
also sent information to the police. SI Balwant
Singh (PW7) who was incharge of the Canal
Colony Police Post, Bathinda, left for the Children
and General Hospital and from there proceeded to
the Civil Hospital where the doctor informed him
about the death of Kuldeep Kaur. He met
Joginder Singh (PW1) at the Hospital, he gave his
statement which was recorded and which after
being read over was signed by Joginder Singh
(PW1). SI Balwant Singh (PW7) made an
endorsement on the same (ExPA/1) for
5
registering the case. On its basis formal FIR (Ex
PA/2) was registered.
4. The inquest report (ExPE) was prepared by
the Investigating Officer. The dead body was sent
for postmortem examination in the custody of
Head Constable Kapur Chand (PW5) and
Constable Satpal (PW10). Necessary police
papers were prepared. The Investigating Officer
on the next day inspected the place of occurrence,
prepared the site plan (ExPK). He also collected
the sample of milk lying in the jug as also the
boiled milk which was lying in the glass. They
were packed and sealed. The utensils in which the
milk was kept were also taken into custody and a
recovery memo (ExPM) was prepared of all the
recovered items. The statement of witnesses was
6
recorded under Section 161 of the Code of
2
Criminal Procedure, 1973 . Chargesheet was
submitted against Rajbir Singh – the appellant
only.
5. Cognizance was taken. Magistrate committed
the case for trial to the Sessions Court. The Trial
Judge on 22.01.2002 read out the charge under
Section 302 of IPC to the appellant who denied
the same, pleaded not guilty and claimed to be
tried. Thereafter, the trial proceeded, and five
witnesses were examined. Dr. K.S. Brar who had
first examined the deceased at the Children and
General Hospital was examined as PW1; Dr.
Avtar Singh who had conducted the autopsy was
examined as PW2; Head Constable Satpal who
had accompanied the dead body for autopsy and
2 Hereinafter referred to as “CrPC”
7
had carried the sealed samples to the laboratory
was examined as PW3; Head Constable Kapur
Chand who had taken the dead body for post
mortem was examined as PW4 and Gursharan
Singh son of the deceased was examined as PW5
on 14.03.2003.
6. At this stage, Sheela Devi wife of the
appellant was summoned under Section 319 of
CrPC vide order dated 08.04.2003. Thereafter,
both the accused were again read out fresh
charge under section 302 read with Section 34 of
IPC on 08.07.2003. Both the accused denied the
charge, pleaded not guilty and claimed to be tried.
They also stated that they would crossexamine
all the witnesses who had already been examined.
7. From the record it appears that the witnesses
already examined were reexamined before the
8
Trial Court by the prosecution although in a
different sequence. In all 12 witnesses were
examined by the prosecution as follows
i. PW1 Joginder Singh, informant.
ii. PW2 Gursharan Singh, son of the
deceased.
iii. PW3 Balwinder Singh, brother of
informant, to prove the pro note.
iv. PW4 Dr. Avtar Singh, who conducted the
autopsy.
v. PW5 Head Constable Kapur Chand, who
had carried the body of the deceased for post
mortem.
vi. PW6 Head Constable Darshan Singh, with
whom the articles of post mortem report and
9
the parcel containing clothes of the deceased
were deposited.
vii. PW7 Sub Inspector Balwant Singh, the
Investigating Officer.
viii. PW8 Sub Inspector Manjeet Singh, who
had arrested Rajbir Singh on 12.06.2001.
ix. PW9 – A.S.I Kuldeep Singh, who had taken
into possession the pronote (ExPB) and had
also recorded the statements of marginal
witness of pronote.
(At this stage, statement of both the accused
under Section 313 of CrPC was recorded on
10.11.2004 by putting all the incriminating
material to them. Thereafter, three more
witnesses were examined.)
10
x. PW10 Head Constable Satpal Singh who
had carried the recovered material and
viscera to the laboratory.
xi. PW11 Constable Paramjeet Singh, who had
delivered the Special Reports to the Judicial
Magistrate.
xii. PW12 Dr. K.S. Brar, who had first
examined the deceased at the Children and
General Hospital.
After the above three witnesses were examined
the additional incriminating material was put to
both the accused and their supplementary
statement was recorded under Section 313 of
CrPC on 09.03.2005.
8. Both the accused were examined twice under
Section 313 CrPC and the entire incriminating
11
material was put to them. They denied the
prosecution evidence and pleaded innocence and
stated that they were falsely implicated. It was
further stated by them that the complainant was
running the business of Committees in which the
appellant was also a member of the said
Committees; that he had made payment for the
Committees but some members of the Committees
had refused to make the payment of the
remaining instalments, although they had
received full amount from the Committees; due to
this reason the financial position of the
complainant had become very weak; the appellant
had not received the due amount of Committees
and was demanding the same from the informant;
it is for this reason that he has been falsely
implicated so that the complainant may get rid of
12
the said burden; the deceased might have
committed suicide due to her family’s financial
crisis. The accused did not lead any oral evidence
in defence, however, he filed one document (Ex
D1) copy of the order dated 22.11.2004 of the
Civil Court.
9. The samples of milk and the utensils which
were seized by the Investigating Officer along with
viscera were sent for chemical examination. Two
reports were received from the laboratory – one is
dated 31.1.2001 (ExPF) and the other is dated
5.2.2001 (ExPG).
10. According to ExPF, the sealed packet
contained –
i. A sealed jar said to contain brain, heart and
lung parts;
13
ii. A sealed jar said to contain parts of liver,
spleen and kidney;
iii. A sealed jar said to contain parts of large
intestine with stomach;
11. In the analysis an organophosphorus
compound, a group of insecticides was found in
the contents of samples (i) to (iii). No poison was
found in the contents of sample (iv). In the report
of ExPF there is no mention of sample (iv). There
is description of only three samples of the organs
of the body. There is also cutting on the report
which would be discussed at a later stage.
12. ExPG consisted of six sealed parcels as
follows:
i. Plastic shishi duly sealed said to contain
unboiled milk;
14
ii. One sealed plastic shishi said to contain
boiled milk given to the deceased;
iii. One sealed plastic shishi said to contain milk
taken from unboiled milk;
iv. One sealed steel jug empty with glass stained
with milk;
v. One sealed Dolu and glass;
vi. One aluminium frying pan.
In this report also there is a cutting of similar
nature as ExPF. The result of the analysis was
an organophosphorus compound, a group of
insecticides, was found in the contents of samples
(i) to (vi).
13. Both the reports ExPF and ExPG mention
that open case was received by the signatory from
15
Dr. O.P. Goyal on 22.11.2000 after his
suspension.
14. It would also be relevant to refer to the post
mortem report at this stage. According to the
postmortem report (ExPD) it was conducted on
19.09.2000 at 11.10 AM. With respect to the
cause of death it was stated in the report that the
same would be declared after receiving the report
of the Chemical Examiner. No external or internal
injury was noticed on the body of the deceased.
All the organs inside the body were reported to be
healthy. It was also reported that the probable
time that had lapsed between death and the post
mortem was within 24 hours. Viscera was
preserved and handed over to the police.
15. The Trial Court vide judgment dated
08.04.2005 found that all the ingredients which
16
proved the death by poisoning were present and
charge was proved by the prosecution. It also
found that there was no clinching evidence
against Sheela, wife of the appellant and
accordingly acquitted her giving benefit of doubt.
However, the evidence established the charge of
murder against the appellant and he was
convicted under Section 302 of IPC. The Trial
Court did not find the offence to be in the ambit of
rarest of rare cases and accordingly sentenced
him to undergo imprisonment for life and pay a
fine of Rs.1,000/ and in default thereof to further
undergo rigorous imprisonment for three months.
16. The appellant preferred appeal before the
High Court, registered as Criminal Appeal
No.355/2005. The High Court, vide impugned
th
judgment and order dated 29 October, 2009 did
17
not find any infirmity in the judgment of the Trial
Court and accordingly dismissed the appeal. This
has given rise to the present appeal.
17. The Trial Court as well as the High Court
found that the chain of circumstances was
complete in order to establish the guilt of the
appellant. According to both the Courts, the
prosecution had fully established the charge
against the appellant of adding poison to the milk
supplied to the son of the informant, and the
same having been consumed by the deceased,
resulted in her death. The finding is that there
was a motive to commit the said offence in order
to save the appellant from returning the loan of
Rs. 1 lakh taken from the informant. The
chemical analysis of the boiled milk consumed by
the deceased, the unboiled milk, the container
18
(dolu) in which the milk was kept and the glass in
which the milk was tendered, all contained
organophosphorus, the poisonous substance.
The second chemical report also reflected that
there was the same substance organophosphorus
in the parts of the organs (viscera) of the deceased
sent for analysis. Both the Courts below relied on
the chemical analysis reports (ExPF and PG).
18. Having considered the submissions advanced
by the learned counsel for the parties and having
perused not only the material on record of the
appeal but also the original record of the trial, we
are of the view that both the courts below
committed an error in recording conviction for the
reasons detailed hereinafter.
19. We will first briefly refer to the evidence led
by the prosecution.
19
20. PW1 Joginder Singh in his statement
supported the prosecution story as narrated by
him. He has also given details of the recovery of
the milk and utensils from his residence. In his
crossexamination he has admitted that he was
running business of Committees of which the
appellant was member in five Committees. The
members of the Committees paid instalments. The
appellant Rajbir Singh was not making regular
payments towards the Committees; that he was
not maintaining the record regarding the
Committees. He denied that the alleged pronote
and the receipt were executed in connection with
the account of the Committees. He also stated
that when he smelled the milk in the glass or the
jug, he did not find any difference in the odour of
the milk and both the utensils. He also denied
20
that he had kept rat killer poison in his house.
He further denied that some members of the
Committee who had received the amount of the
Committee had become defaulters and that they
did not pay the amount due towards the
Committees. He denied his relations being
strained with them. He also denied that there is
any quarrel with his wife and he also denied that
the facts of financial crisis and quarrel between
the husband and wife and she had committed
suicide. It was also put to him that the witnesses
of the pronote were residents of Kaliawali Mandi
where he used to reside earlier. He accepted that
the pronote and receipt were not got attested from
any resident of the locality where he and the
appellant were staying at the time of execution of
the pronote. It was also suggested to him that the
21
witnesses of the pronote and the receipt did not
know Rajbir Singh. He states that his wife did not
vomit at both the hospitals and she had only one
motion at the Children and General Hospital. It
was suggested to him that his wife did not die due
to poisoning but because of tension and stress
which was denied by him.
21. PW2 Gursharan Singh, son of the deceased,
has also supported the prosecution story in his
examinationinchief. In his crossexamination,
he has admitted that Rajbir Singh was a member
of the Committees run by his father. He was
confronted with his statement recorded in ExDA
that he had stated that his father owed money
from Rajbir Singh in connection with the
committees and had executed pronote for Rs.1
lakh. He, however, reiterated the prosecution
22
case that Rajbir Singh (appellant) had received
Rs.1 lakh from his father and had executed the
pronote. He was then confronted with the
statement ExDA where he had not mentioned
about Sheela taking a jug from him, both the
accused inside the room and then the appellant
coming out with the jug and handing it over to
him. He stated that he had recorded this fact in
the statement ExDA before the police but the
same was not recorded. He also denied of keeping
poison in his house to kill rats. He then admits
that some members of the Committees had taken
away the amount of the Committees and had not
returned the amount to his father. He also
admitted that other members of the Committees
who were paying instalments regularly were
demanding the amount from his father. It was
23
also suggested to him that they were facing
financial crisis; that there used to be quarrel
between his father and mother due to the
financial problems and that his mother had
committed suicide. All three suggestions were
denied by him.
22. The pronote has been proved by PW3
Balwinder Singh, who is real brother of the
informant. He admits that he had never seen the
original pronote and receipt.
23. PW4 Dr. Avtar Singh had conducted the
autopsy. He proved the postmortem report and
its contents. He has further stated that he had
prepared the four jars out of which three jars
contain the viscera and the fourth jar contained
saturated saline. He also stated that he has
received all the police papers before conducting
24
the autopsy. He also stated that after receiving
the report of the Chemical Examiner ExPF he
had declared the cause of death was due to
poisonous compound found in the viscera. In his
crossexamination he stated that in the case of
poison the colours of nail turn into a bluish
colour and the colour of the body also turns
bluish. He stated that the body was not bluish
and, therefore, he had not mentioned it in the
postmortem report. He further stated that
remaining viscera’s poison gives a foul smell. He
was asked whether he observed or felt the foul
smell to which he stated that he neither observed
such smell nor he felt the foul smell while
conducting the postmortem examination. He
also stated that upon opening the stomach a foul
smell will come in case it is a case of
25
organophosphorus poison. He further stated that
he did not experience any foul smell after opening
the stomach and as such did not mention it in the
postmortem report. He was then suggested
whether the muscles of the body shrink in case of
poisoning which he denied but he clearly said
that he did not observe symptoms of poisoning
and on that account he did not mention it in the
postmortem report. He further stated that in case
organophosphorus poison is put in the milk it will
give smell even to a person who is standing at
some distance from the utensil in which milk with
such poison is kept.
24. PW5 Head Constable Kapur Chand is a
formal witness who had carried the body of the
deceased for postmortem and he affirmed the
contents of his affidavit (ExPH).
26
25. PW6 Head Constable Darshan Singh is also
a formal witness with whom the articles of post
mortem report and the parcel containing clothes
of the deceased were deposited. He affirmed the
contents of his affidavit (ExPJ).
26. PW7 SubInspector, Balwinder Singh is the
Investigating Officer. He stated that he received
the information about the poisoning from the
Children and General Hospital whereupon he
went there and later went to the Civil Hospital
where the deceased had been shifted. At the Civil
Hospital he was informed by the doctor that
Kuldeep Kaur had already died. There he recorded
the statement of the informant, got his signatures
made thereon and himself made endorsement for
registering the case (ExPA/1) which he duly
proved and also proved the formal FIR (ExPA/2)
27
recorded by ASI Harbans Singh. He thereafter
prepared the inquest report and sent the dead
body for autopsy in the custody of Head
Constable–Kapur Chand (PW5) and Constable
Satpal (PW10) along with request memo (ExPD).
He then states that on the next day he visited the
house of the deceased, prepared the rough site
plan (ExPK). He collected the utensils and milk
and prepared the recovery memo (ExPL).
Thereafter, he went to the Civil Hospital where he
was handed over the parcel of viscera by
constable Satpal along with other papers given by
PW4 conducting the postmortem and also the
other articles and clothes returned by PW4. He
deposited the case property with Head Constable
Darshan Singh at police station Kotwali. In his
crossexamination, the Investigating Officer states
28
that he did not go to the house of the appellant
Rajbir Singh for house search on the same day
but visited there later on. He states that he did
not find any container in the house of the
appellant. He also admits that he did not
investigate regarding purchase of poison by the
appellant. He also admits that he did not make
any house search of the house of the informant.
He then states that Gursharan Singh (PW2) had
not stated the presence of Sheela along with
Rajbir and that they had taken the container
inside the room and that both of them had poured
the milk. He then states that he cannot say
whether anyone can tamper with the milk during
th th
the intervening period of 18 to 19 September. It
is interesting to note that the Investigating Officer
says that when milk was boiled in his presence on
29
19.09.2000 when he visited the house of the
informant, it was emitting foul smell in great
extent. He also stated that even the two
witnesses Manjit Singh and Harbans Singh
(witnesses of recovery) stated that there was
pungent smell to a great extent. He also states
that many other persons were purchasing milk
from Rajbir Singh but none of them had
complained about the quality of the milk. He also
states that he did not arrest Rajbir Singh during
investigation. He, however, denied that he did not
arrest Rajbir Singh as there was no evidence
against him. He also stated that the doctors in
both the hospitals did not disclose to him that the
deceased had vomited or was having loose
motions.
30
27. PW 8 SubInspector Manjit Singh had
arrested the appellant on 12.06.2001.
28. PW9 ASI Kuldeep Singh stated that he had
taken into possession the pronote (marked ‘X’) on
16.07.2001 and that he had recorded the
statements of the marginal witnesses. In the
crossexamination he states that he had not seen
the original pronote and receipt; that he had no
knowledge whether the payment had actually
been made or not.
29. PW10 Satpal was accompanying the dead
body for postmortem and also had delivered the
viscera and parcel of the recovered utensils and
milk to the chemical laboratory. In his cross
examination he had stated that he did not
remember how many seals were affixed on the
parcel. He further states that the parcel was
31
received on 21.09.2000 at 1011 AM which he
kept with him. In the night it was kept in the
police station and that he had stayed at the police
station overnight. It was on 22.09.2000 that the
parcels were delivered at the laboratory.
30. PW11 Constable Paramjit Singh has stated
that he received a special report at 9.15 PM dated
18.09.2000 and on the next morning at 07.00 AM
he gave the special report to the Judicial
Magistrate, Bathinda.
31. PW12 Dr K.S.Brar, on the relevant date was
posted as an Emergency Officer at the Children
and General Hospital, Bathinda. He states that
on the said day the deceased had come to the
hospital with suspected case of poisoning. He
informed the police and thereafter referred her to
the Civil Hospital considering her serious
32
condition. In the crossexamination he had
stated that the phosgene gas smell was coming
from the mouth of the patient and he had given
treatment to the patient regarding aluminium
phosphide poisoning. He further states that the
patient was vomiting but he did not remember
whether she had passed motion or not. It was
suggested to him that the deceased was never
admitted to the hospital for treatment and that he
was deposing falsely for covering up the delay at
the instance of the police, which he denied. He
also stated that he did not know about the body
temperature of the patient at the time of her
arrival. He also did not produce the OPD register
as it was not summoned.
32. It would be relevant to note that PWs 10, 11
and 12 were examined after the prosecution had
33
closed its evidence on 27.10.2004 and the
statements of both the accused under Section 313
CrPC were recorded on 10.11.2004.
33. The Trial Court proceeded on the premise that
the appellant had not denied the execution of the
pronote while discussing the motive. This fact is
apparently not correct in as much as the
appellant in his statement under section 313
CrPC recorded on 10.11.2004 had specifically
denied not only borrowing of the money but also
that he never executed the pronote. The question
as framed and the answer is reproduced below:
“Q: It is further in evidence against
you that you had borrowed a sum of
Rs. One Lac from father of PW5
Gursharan Singh and had executed
a pronote and receipt for the same
on 01.01.2000. PW Gursharan
singh was demanding amount from
you and putting of the matter and
agreed to pay amount on
34
18.09.2000. What have you to say
about it?
A: It is false evidence against me. I
had never borrowed the said
amount and I had never executed
the said pronote. ”
34. Further the Trial Court did not take into
consideration the time gap from the alleged time
of collecting the milk from the appellant till the
time it was administered and further the time the
samples were collected. It also did not give any
importance to the postmortem report and the
statement of Dr. Avtar Singh who had conducted
the autopsy. The use of compound
organophosphorus has a homicidal purpose
because of its extremely strong pungent smell has
also not received due attention by the Trial Court.
The High Court judgment was cryptic and
evidence had been only cursorily dealt with.
35
35. This is a murder case of circumstantial
evidence by poisoning. In a case of circumstantial
evidence, the five golden principles as laid down
by this Court in the case of Sharad Birdhichand
3
Sarda vs. State of Maharashtra as stated in
paragraph 153 of the report read as follows:
“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.
It may be noted here that this Court
indicated that the circumstances
concerned 'must or should' and not
'may be' established. There is not
only a grammatical but a legal
distinction between 'may be proved'
and 'must be or should be proved'
as was held by this Court in Shivaji
Sahabrao Bobade & Anr. v. State of
Maharashtra , (1973) 2 SCC 793,
where the following observations
were made:
3 (1984) 4 SCC 116
36
"Certainly, it is a primary
principle that the accused
must be and not merely may
be guilty before a court can
convict and the mental
distance between 'may be' and
'must be' is long and divides
vague conjectures from sure
conclusions."
(2) The facts so established should
be consistent only with the
hypothesis of the 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 proved, 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.”
36. Before laying down the five aforesaid
principles, Justice Fazal Ali speaking for the
37
Court in paragraph 152 extracted a
paragraph from the case of Hanumant vs. State of
Madhya Pradesh as stated by Mahajan, J.
Paragraph 152 is reproduced
hereunder:
“Before discussing the cases relied
upon by the High Court we would
like to cite a few decisions on the
nature, character and essential
proof required in a criminal case
which rests on circumstantial
evidence alone. The most
fundamental and basic decision of
this Court is Hanumant v. The State
of Madhya Pradesh ,AIR 1952 SC
343,. This case has been uniformly
followed and applied by this Court
in a large number of later decisions
uptodate, for instance, the cases
of Tufail (Alias) Simmi v. State of
Uttar Pradesh,(1969) 3 SCC 198
and Ramgopal v. State of
Maharashtra, (1972) 4 SCC 625. It
may be useful to extract what
Mahajan, J. has laid down in
Hanumant's case (supra):
"It is well to remember
that in cases where the
evidence is of a circumstantial
nature, the circumstances
from which the conclusion of
38
guilt is to be drawn should in
the first instance be fully
established and all the facts so
established should be
consistent only with the
hypothesis of the guilt of the
accused. Again, the
circumstances should be of a
conclusive nature and
tendency and they should be
such as to exclude every
hypothesis but the one
proposed to be proved. In other
words, there must be a chain
of evidence so far complete as
not to leave any reasonable
ground for a conclusion
consistent with the innocence
of the accused and it must be
such as to show that within all
human probability the act
must have been done by the
accused."”
37. These golden principles have remained
unaltered and are still followed. One of the issues
to be considered in the present case would be as
to whether the chain of evidence was so complete
so as not to leave any reasonable ground that
39
there could be any other hypothesis except the
one put forward by the prosecution.
38. With respect to the case of poisoning, this
Court in the case of Sharad Birdichand Sarda
(supra) further laid down four important
circumstances for recording a conviction in
paragraph 165 which is reproduced hereunder:
“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.”
40
39. The principles laid down in the case of
Sharad
have remained
Birdichand Sarda(supra)
unaltered and even as recently as 11.08.2022 this
Court in Criminal Appeal No.25 of 2012,
Ram
vs. has relied upon the
Niwas State of Haryana,
same with approval. It is also well settled that
suspicion, howsoever strong it may be, cannot
replace proof beyond reasonable doubt.
40. In the background of the above legal position
we now proceed to analyze the evidence and draw
our conclusions.
41. The motive set up by the prosecution that
appellant had taken a loan of Rs. 1 lakh and had
executed a pronote as well as receipt is denied by
the appellant. In his statement under section 313
CrPC, there is specific denial of borrowing any
41
money and also executing of pronote. The
defence set up in the crossexamination of PW1,
PW2 and PW7 as also the statement under
section 313 of CrPC was that the informant was
carrying on a business of Committees of which
the appellant was a member and there was an
amount due from the informant to the appellant.
Running of business of Committees by the
informant; there being defaulters; there being
financial loss is admitted. According to the
appellant, amount was due to him from the
informant and that he had been falsely implicated
to deprive him from recovering the same from the
informant. A case of false implication, therefore,
cannot be ruled out.
42
42. Reliance placed upon the pronote and the
receipt is also not proved in as much as the
original was not produced, rather a false plea was
raised that it was filed before the Civil Court,
which stands belied by the ExD/1 filed by the
appellant, and secondly, no attesting witness was
produced by the prosecution.
43. The next question which arises for
consideration is as to whether mixing of the
poisonous compound in the milk was done by the
appellant or it could have been done by someone
else, and for the same there are two windows.
First, the time between the collection of milk from
the appellant on the morning of the fateful day,
till the time it was consumed by the deceased,
was about five hours. Second window being the
43
time after consumption of milk at around 12:30
PM on the fateful day, till the next day when the
Investigating Officer recovered and took into
possession the sample of milk and the utensils,
which had a gap of about 2024 hours. Total time
gap from the time milk was collected from
appellant till the samples were collected is more
than 24 hours. Chances of mixing poison during
this period cannot be ruled out. Defence had
crossexamined both PW1 and PW2 on this
aspect.
44. The next question which arises for
consideration is whether the death of deceased
was caused due to consumption of
organophosphorus, a poisonous compound or for
any other reason. Organophosphorus has a
44
strong pungent smell. This smell could not be
sensed by the informant, his son as also the
deceased. The milk which is said to be
adulterated with the poison was taken out from
the refrigerator, transferred into a pan for boiling
and thereafter given to the deceased. If it actually
had organophosphorus in it the smell would have
filled up the room. The deceased being a healthy
woman aged 45 years would not have consumed
it if the pungent smell was coming from the milk.
Even the informant (PW1) did not sense any foul
smell from the milk while boiling it. It would be
worthwhile to refer to a judgment of this Court in
4
. It was a case of
Jaipal vs. State of Haryana
aluminium phosphite (sulphas) which also has a
strong pungent smell. It is observed that such
4 (2003) 1 SCC 169
45
compounds are generally used for suicide rather
than in a case of homicide. Further, Dr. Avtar
Singh (PW4) who had conducted the autopsy has
clearly stated in both his statements that he did
not find any smell of organophosphorus coming
out of the body. The first statement was recorded
on 08.04.2002 and the second statement was
recorded on 03.11.2003, in both the statements
he had stated that he had not seen any change in
colour of nails as also in the body, which would
have been a common symptom in the case of
poisoning. He had also deposed that all the
organs of the body were healthy. Even though he
admits in the case of poisoning by
organophosphorus there would be shrinking of
the muscles, however, there was no squeezing or
shrinking in the outside muscles of the abdomen,
46
which were healthy. According to him, there were
no symptoms of poisoning noticed during the
autopsy despite the fact that it was reported in all
police papers about the case being that of
poisoning. PW4 must have been careful in
observing whether any symptoms of poisoning
were present in the body. This may lead to an
inference that death could have been caused by
some other reason but not poisoning. In so far as
the chemical examination report is concerned it
could be a case of tampering with the samples for
the reasons discussed above and hereinafter.
45. The presence of organophosphorus in the
milk, utensils, and the viscera is proved by the
Reports of Chemical Examiner dated 31.01.2001
(ExPF) and 05.02.2001 (ExPG). The sample was
47
received in the laboratory on 22.09.2000, whereas
as per the two reports, it was received by the
Assistant Chemical Examiner, Dr. Sandeep
Kakkar, on 22.11.2000 from one Dr. O.P. Goel
after his suspension, not in a sealed form, but as
an open case. This note “This opened case,
received by me from Dr. O.P. Goel on 22.11.2000
after his suspension.” is typed out in both the
reports after an overwriting /cutting is made by
using alphabet “X” continuously. ExPF mentions
that there were three sealed jars in the sealed
parcel which contained parts of organs. This Ex
PF does not mention of any fourth jar, whereas as
per the post mortem report and the statement of
Dr. Avtar Singh (PW4), four sealed packets were
sent, three containing parts of organs, and one
containing the saline solution. The result refers to
48
presence of organophosphorus compound in the
three sealed jars and it also refers to no poison
found in the contents of fourth jar. The fourth jar
does not find mention in the description of
contents in ExPF. The other report, ExPG of the
Assistant Chemical Examiner, Dr. Sandeep
Kakkar, is with respect to the recovery made by
the Investigating Officer on the next day of the
incident, which included milk, boiled and
unboiled and the utensils. This also had a similar
cutting, and a note attached that it was received
as an open case from Dr. O.P. Goel on 22.11.2000
after his suspension. The result as reported is
that organophosphorus compound was found in
contents of all the Exhibit Nos. (i) to (vi).
46. The following doubts arise from the perusal
of the reports of the Chemical Examiner:
49
i. That samples were not handed over to the
Assistant Chemical Examiner who had to
conduct the analysis in a sealed form.
ii. The cutting, and a fresh note regarding
parcels being open also creates a doubt.
iii. Chances of tampering with the samples could
not be ruled out.
47. The Investigation Officer admits of having
made no effort to find out as to whether or not the
appellant was in possession of the poisonous
substance said to be mixed in the milk. The
Courts below have proceeded on the assumption
that organophosphorous was available in every
household.
48. From the above discussion, it is more than
evident that chain of evidence has many missing
50
and weak links. None of essential ingredients to
record conviction in a case of circumstantial
evidence and that of poisoning case are made out.
Prosecution has thus failed to bring home the
guilt.
49. Taking an overall view of the evidence on
record, we are of the firm view, that prosecution
has not established the charge beyond reasonable
doubt so as to record conviction under Section
302 of IPC. The appellant deserves to be extended
benefit of doubt. Accordingly, the appeal is
allowed, the judgments of the High Court and the
Trial Court are set aside, the appellant is
acquitted. He is already on bail. His bail bond is
cancelled and sureties are discharged.
…………..........................J.
51
[HEMANT GUPTA]
………….........................J.
[VIKRAM NATH]
NEW DELHI
AUGUST 24, 2022
52