Full Judgment Text
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PETITIONER:
BHUPINDER SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT06/04/1988
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
DUTT, M.M. (J)
CITATION:
1988 AIR 1011 1988 SCR (3) 409
1988 SCC (3) 513 JT 1988 (2) 23
1988 SCALE (1)678
ACT:
Criminal Procedure Code, 1973/1898-Section 293-Chemical
Examiner-Report of-A piece of evidence-Does not require
formal proof-Should normally be forwarded to the doctor who
performed autopsy report.
Criminal Trial-Poison murder cases-Invariably committed
under cover and cloak of secrecy-Prosecution entitled to
establish circumstances consistent with the hypothesis of
the guilt of the accused.
HEADNOTE:
%
Bhupinder Singh, appellant, his father Sher Singh and
his mother Mukhtiar Kaur, were tried for committing the
murder of Bhupinder Singh’s wife, Gian Kaur, by
administering poison. The Trial Court held that the accused
had strong motive for the murder as the deceased was unable
to satisfy their demand for dowry for which she was being
constantly harassed. The Trial Court further held that the
death of Gian Kaur was not accidental or suicidal or by food
poisoning. The Trial Court held that the accused had the
opportunity to accomplish their design, and they did
administer poison which the deceased must have resisted and
thereby suffered injuries on her body. The Trial Court found
all the three accused guilty of the offence under section
302 read with section 34 I.P.C. and sentenced them to
imprisonment for life.
It was urged before the High Court that the prosecution
has failed to establish by evidence the necessary conditions
for the proof of murder by poisoning. Disagreeing with the
contentions and the theory of suicide put forth by the
appellant, the High Court confirmed the conviction and
sentence on Bhupinder Singh and Sher Singh while acquitting
Mukhtiar Kaur.
The present appeal by special leave is only by
Bhupinder Singh.
The main contention of the appellant is that in a case
of murder by poison there are three main points to be
proved; firstly, did the deceased die of the poison in
question; secondly, had the accused got the
410
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poison in question in his or her possession, and thirdly,
had the accused an opportunity to administer the poison in
question to the deceased. It is contended that the evidence
falls short of these requirements, and in particular, as to
the question of proof of possession of the poison with the
accused.
The second contention of the appellant is that it is
not enough for the chemical examiner merely to state in his
report that the poison-Organo phosphorus compound was
present in the substance sent for examination; he should
have also stated that a lethal dose of the poison was
detected. It is submitted that his report should be full and
complete to take the place of evidence which he would have
given if he were called to Court as witness.
Dismissing the appeal, this Court,
^
HELD: (1) Section 293 of the Code of Criminal Procedure
provides that the report of scientific experts may be used
as evidence in any inquiry, trial or other proceedings of
the Court. [416D]
(2) No hard and fast rule can be laid down as regards
the value to be attached to the report of the chemical
examiner. [416D]
(3) The chemical examiner does not, as a rule, give an
opinion as to the cause of death but merely gives report of
the chemical examination. The report itself is not crucial.
It is a place of evidece. The only protection to it is that
it does not require any formal proof. It is, however, open
to the Court, if it thinks fit, to call the chemical
examiner and examine him as to the subject matter of the
report. The report should normally be forwarded to the
doctor who conducted the autopsy. [416D-F]
(4) In poison murder cases, the accused are not
acquitted solely on the failure of the prosecution to
establish one or the other requirement. They are not to be
acquitted solely on the ground that the prosecution has
failed to prove that the accused had the poison in his
possession, and are to be acquitted by the Court taking into
account the totality of the circumstances including
insufficient motive, weakness in the chain of circumstantial
evidence and likelihood of the deceased committing suicide.
[421C-E]
(5) Murder by poisoning is run like any other murder
and the accused cannot have a better chance of being
exempted from sanctions
411
than in other kinds of murders. [422B-C]
(6) 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.
[421H; 422A]
(7) The insistence on proof of possession of poison
with the accused invariably in every case is neither
desirable nor permissible. It would mean to introduce an
extraneous ingredient to the offence of murder by poisoning.
[422B]
(8) Murder by poison is invariably committed under the
cover and cloak of secrecy. Nobody will administer poison to
another in the presence of others. The person who
administers poison to another in secrecy will not keep a
portion of it for the investigating officer to come and
collect it. The person who commits such murder would
naturally take care to eliminate and destroy the evidence
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against him. In such case, it would be impossible for the
prosecution to prove possession of poison with the accused.
The prosecution may, however, establish other circumstances
consistent only with the hypothesis of the guilt of the
accused. The Court then would not be justified in acquitting
the accused on the ground that the prosecution has failed to
prove possession of the poison with the accused. [421E-G]
Mt. Gajrani and another v. Emperor, A.I.R. 1933 All
394; State v. Fateh Bahadur, A.I.R. 1958 All 1; Chandra Kant
Myalchand Seth’s case, (Criminal Appeal No. 120 of 1957
decided on 19.2.1958): Dharambir Singh v. The State of
Punjab, Criminal Appeal No. 98 of 1958 decided on 4.11.1958;
Mohan v. State of Uttar Pradesh, A.I.R. 1960 SC 669; Ram
Gopal v. State of Maharashtra, A.I.R. 1972 S.C. 656; Sharda
B. Chand Sarda v. State of Maharashtra, [1985] 1 SCR 88 and
Ananth Chintaman Lagu v. The State of Bombay, A.I.R. 1960
S.C. 500, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
379 of 1986.
From the Judgment and Order dated 13.7.1984 of the
Punjab and Haryana High Court in Crl. Appeal No. 82 D.B. of
1984.
R.L. Kohli and R.C. Kohli for the Appellant.
412
R.S. Suri for the Respondent.
The Judgment of the Court was delivered by
JAGANNATHA SHETTY, J. One may ask the question whether
murder by poisoning is not run like any other murder? The
learned counsel for the appellant purports to state that it
is not. He relies upon the judicial prescriptions as to the
burden of proof in "poison-murder" cases. He contends that
the prosecution must prove "that the accused had the poison
in his possession". He asserts that failure to establish
that factor should entail the acquittal of the accused. This
is a vital question which goes far beyond the case and it,
therefore, requires careful consideration.
Bhupinder Singh-Appellant was prosecuted for the murder
of his wife by poisoning. He was sentenced for life
imprisonment by the Additional Sessions Judge, Faridkot in
Session Case No. 86 of 1983. His conviction and sentence
have been affirmed by the Punjab and Haryana High Court in
criminal appeal No. 82-DB of 1984. He has preferred this
appeal by special leave challenging the conviction and
sentence.
We may first advert to the prosecution case. It reveals
a sad story. It runs like this: Gian Kaur, the victim in
this case is the only daughter of Baltej Singh. Baltej Singh
like many other parents thought that his problems would be
solved by the marriage of his daughter. He got her married
to Bhupinder Singh by spending all his savings. His
relatives also contributed for the marriage. But ill-luck
would have it, his problems started immediately after the
marriage. Bhupinder Singh and his parents wanted Gian Kaur
to bring Rs. 10,000 from her father. It was nothing but a
demand for dowry. They stopped up their demand with
harassment to Gian Kaur. Gian Kaur informed her father. The
father could not arrange that much of amount. He had already
spent all that he had in connection with her marriage. He
had also then given presents in cash and kind to Bhupinder
Singh. So he felt helpless. Unmerciful, Bhupinder Singh
asked his wife to go back to her parents’ house. So she left
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to seek shelter with her parents. She remained with them for
about eight months. But how long the father could keep his
married daughter away from her husband. Some parents think
that it is a reflection upon them. Baltej Singh also must
have thought like that. He somehow arranged Rs.6,000 and
sent Gian Kaur to her husband’s house. Gian Kaur rejoined
her husband upon making the payment of Rs.6,000. That
appears to have satisfied Bhupinder Singh for about
413
one year. In the meantime, Gian Kaur had a male child.
Naturally there was jubilation for Baltej Singh. He
performed the customary Chuchhak ceremony and again gave
Rs.4,000 and a buffalo as presents to Bhupinder Singh.
Bhupinder Singh ought to have been happy and satisfied. But
he was not. It was alleged by the prosecution that this time
he demanded a motorcycle. Baltej Singh could not give it.
Gian Kaur, as usual, was again the target. It was further
alleged by the prosecution that Bhupinder Singh threatened
to kill his wife if motorcycle was not given to him. Gian
Kaur had kept her father informed about the said demand and
the threat.
On July 13, 1983, Gian Kaur died under mysterious
circumstances. Upon receiving that information, Baltej Singh
with his brother Baldev Singh reached the place in the
evening of that day. They saw Gian Kaur, lying dead on a
charpai. They suspected foul play. Baltej Singh gave the
information to the police narrating all the above events. He
informed the police that his daughter was killed by
Bhupinder Singh and his parents by administering something
to her. On the basis of that information, the F.I.R. was
issued. The investigation of the case was taken by A.S.I.
(PW 4). The body of Gian Kaur was sent to Dr. Sant Prakash
Singh (PW 6) for post-mortem. The Doctor Prakash Singh
noticed five minor injuries on the body of the deceased. The
brain and other vital organs were also found to be
congested. The Doctor sent stomach contents, portions of
small intestine, liver, spleen and kidney to the chemical
examiner for the purpose of analysis.
The chemical examiner in his report dated September 14,
1983 has stated that an Organo phosphorus compound was found
in the substance sent to him for analysis. The investigating
officer sent that report for opinion of the Doctor Prakash
Singh as to the cause of death of Gian Kaur. The Doctor gave
his opinion that the death of Gian Kaur was due to organo
phosphorus compound poisoning.
Bhupinder Singh, his father Sher Singh and his mother
Mukhtiar Kaur were tried for committing the murder of Gian
kaur by administering poison.
The prosecution examined six witnesses and the accused
in turn examined one. The trial court after considering the
evidence and other material on record held as follows:
The accused had strong motive to get rid of Gian
Kaur. Apparently motive for the murder was the
inability of Gian Kaur
414
to satisfy the demand for dowry. The death of Gian Kaur
was not accidental or suicidal. There was no reason for
her to commit suicide. It was also not a death by food
poisoning since the accused and deceased shared common
food on the fateful night. There was none else in the
house on that night except Gian Kaur and the accused.
The accused had an opportunity to accomplish their
design. The accused must have administered the poison
to the victim. The injuries found on the body of the
deceased indicated the resistence she must have offered
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when the poison was administered to her. With these and
other conclusions, the trial court finally said:
"In the background of the circumstances and
evidence discussed above, the only conclusion
possible is that Bhupinder Singh and Mukhtiar Kaur
did administer poison organo phosphorus compound
to Gian Kaur and did cause her death with common
intention, which was to get rid of her as she had
not been able to persuade his father to meet their
demand for motorcycle so as to clear way for
another marriage of Bhupinder Singh in his
youthful years in order to get more and more of
dowry."
Accordingly, the trial court found all the three
accused guilty of the offence under Section 302 read with
Section 34 I.P.C. They were sentenced to imprisonment for
life.
Challenging the legality of the conviction and sentence
the accused appealed to the High Court. It was urged before
the High Court that the death of Gian Kaur was not
homicidal. She must have in all probability committed
suicide since she was suffering from tuberculosis. It was
also urged that the prosecution has failed to establish by
evidence the necessary conditions for the proof of murder by
poisoning. The High Court did not agree with those
contentions. The High Court ruled out the theory of suicide.
It was observed that there was no evidence to show that Gian
Kaur was suffering from tuberculosis or ever treated for
that disease. The High Court observed:
"Case of murder by poisoning is always one of
secrecy. Almost in every such case one has to
depend on circumstances. Doubtless, before a
person can be convicted on the strength of
circumstantial evidence, the circumstances in
question must be satisfactorily established
415
and the proved circumstances must bring home the
offence to the accused beyond reasonable doubt. If
those circumstances or some of them can be
explained by any reasonable hypothesis then the
accused must have the benefit of that hypothesis.
But in assessing the evidence imaginary
possibility has no place. What has to be
considered are ordinary human probabilities. We
have already referred to some important
circumstances which in our opinion point out to
the guilt of Bhupinder Singh and Sher Singh
appellants. In the well-known case of Anant
Chantman Lagu v. The State of Bombay, A.I.R. 1960
S.C. 500 their Lordships held that in a cause of
poisoning, the prosecution must establish: (a)
that the 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. All the
three requirements are satisfied in this case.
There is no dispute that the death of the deceased
was caused by poisoning. It has been established
by the chemical examiner’s report, that the
viscera contained organo phosphorus compound
poison. The evidence of the prosecution witnesses
has established that the aforesaid two appellants
had the opportunity to administer poison to the
deceased and that they had the motive to commit
the crime. Their running away from the house at
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the time when the Investigating Officer visited
their house is also consistent with their guilt
and not with their innocence."
With these observations, the High Court confirmed the
conviction and sentence on Sher Singh and Bhupinder Singh
while acquitting Mukhtiar Kaur.
The present appeal is only by Bhupinder Singh.
Before embarking on the validity of the main submission
made in this appeal, we may first dispose of one other
contention urged for the appellant. Mr. R.N. Kohli, learned
counsel for the appellant submitted that it is not enough
for the chemical examiner merely to state in his report that
the organo phosphorus compound was present in the substance
sent to him for examination. He should have also stated that
a lethal dose of the organo phosphorus compound was
detected in the substance sent to him. His report should be
full and complete to take the place of evidence which he
would have given if he were called to Court as witness. In
the absence of such particulars, the death by
416
poisoning cannot be inferred. In support of this contention,
learned counsel relied upon two decisions of the Allahabad
High Court viz. (i) Mt. Gajrani and Anr. v. Emperor, [A.I.R.
1933 Allahabad 394] and (ii) State v. Fateh Bahadur & Ors.,
[A.I.R. 1958, Allahabad 1]. In the first case, it was
observed that it was not enough for the chemical examiner
merely to state his opinion. He must also state the grounds
which formed the basis of his opinion. The second case was a
case of death by arsenic poisoning. The chemical examiner
did not state the quantity of arsenic poison found in the
viscera of the deceased. He did not state whether it was a
fatal dose or not. The High Court pointed out that it would
be of the utmost importance before a Court could find any
individual guilty of murder by arsenic poison that its
complete analysis should be made. It is not enough to state
that arsenic was detected in the body of the deceased.
In our opinion, these observations cannot be taken as a
rigid statement of law. (No hard and fast rule can be laid
down as regards the value to be attached to the report of
the chemical examiner. Section 293 of the Code of Criminal
Procedure provides that the report ofscientific experts may
be used as evidence in any inquiry, trial or other
proceedings of the court. The chemical examiner does not, as
a rule, give an opinion as to the cause of death but merely
gives report of the chemical examination of the substance
sent to him. The report by itself is not crucial. It is a
piece of evidence. The only protection to it is that it does
not require any formal proof. It is, however, open to the
Court if it thinks fit to call the chemical examiner and
examine him as to the subject matter of the report. The
report should normally be forwarded to the Doctor who
conducted the autopsy. In the instant case, that was done.
The Doctor who conducted the autopsy was given a copy of the
report of the chemical examiner. The Doctor in the light of
the report gave his opinion that the death of Gian Kaur was
by poisoning i.e. organo phosphorus compound. The report of
the chemical examiner coupled with the opinion of the Doctor
is, therefore, sufficient to hold that it was a death by
poisoning.
This takes us to the main contention urged for the
appellant. It was urged that in a case of murder by poison
there are three main points to be proved, firstly did the
deceased die of the poison in question; secondly, had the
accused got the poison in question in his or her possession;
and thirdly, had the accused an opportunity to administer
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the poison in question to the deceased. It was also urged
that if the prosecution fails to prove these factors, then
the accused cannot be convicted. The evidence in the case,
according to learned counsel falls
417
short of these requirements and, in particular, as to the
question of proof of possession of the poison with the
accused and therefore the accused is entitled to acquittal.
We have been referred to some decisions of this Court
in support of the contention urged. We have also examined
some other cases bearing on the question raised. A brief
survey of these cases would be useful to appreciate the
contention urged for the appellant. There are two unreported
decisions of this Court of the year 1958. The first one is
in Chandra Kant Myalchand Seth’s case [Criminal Appeal No.
120 of 1957 decided on 19.2.1958]. There a woman died of
alkali cyanide. The husband of the deceased was tried and
convicted by the trial court for the offence of murder. The
conviction was set aside by this Court. In the course of the
judgment, it was observed:
"Before a person can be convicted of murder by
poisoning, it is necessary to prove that the death
of the deceased was caused by poison, that the
poison in question was in possession of the
accused and that poison was administered by the
accused to the deceased."
The acquittal, however, was based on the consideration
of the entire facts and circumstances of the case. It was
found that there was a greater motive to the deceased to
commit suicide than to the accused to commit murder. This
Court also took note of the concern and conduct of the
accused when he found his wife lying unconscious. The
accused ran to the house of his friend and returned with a
Doctor to render assistance to the victim. The accused
called another Doctor for the same purpose. He was also
found weeping all the while. Taking into consideration of
all these factors, this Court found no justification to
sustain the conviction of the accused.
Dharambir Singh v. State of Punjab, (Criminal Appeal
No. 98 of 1958 decided on 4.11.1958) is another case of
homicidal action by cyanide poisoning. It was perhaps in
this case, the guidelines as to the proof of certain facts
in "poison murder cases" were laid down by this Court. It
was observed:
"Where the evidence is circumstantial the
fact that the accused had motive to cause death of
the deceased, though relevant, is not enough to
dispense with the proof of certain facts which are
essential to be proved in such cases, namely
(firstly) did the deceased die of poison in
418
question? (secondly) had the accused the poison in
his possession? and (thirdly) had the accused an
opportunity to administer the poison in question
to the deceased? It is only when the motive is
there and these facts are all proved that the
court may be able to draw the inference, that the
poison was administered by the accused to the
deceased resulting in his death."
After laying down these principles, the court
considered the entire evidence on record which indicated the
likelihood of the deceased committing suicide or another
person to have administered the poison to the deceased. This
Court accordingly acquitted the accused by extending the
benefit of doubt.
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If one prefers to go yet further back we find a
decision of the Allahabad High Court which is exactly on the
principles laid down in Dharambir Singh case. In Mt. Gajrani
v. Emperor, A.I.R. 1933 All. 394 Benett, J. speaking for the
Court observed (at p. 394):
"In a case of murder by poison there are three
main points to be proved: firstly, did the
deceased die of the poison in question; secondly,
had the accused got the poison in question in his
or her possession; and thirdly, had the accused an
opportunity to administer the poison in question
to the deceased. If these three points are proved,
a presumption may under certain circumstances be
drawn by the Court that the accused did administer
poison to the deceased and did cause the death of
the deceased. It is not usual that reliable direct
evidence is available to prove that the accused
did actually administer poison to the deceased.
The evidence of motive which is frequently given
in these cases is of subsidiary importance, and
the mere fact that the accused had a motive to
cause the death of the deceased is not a fact
which will dispense with the proof of the second
and third points that the accused had the poison
in his or her possession, and that the accused had
an opportunity to administer the poison."
The above proposition found its way into Mohan v. State
of Uttar Pradesh, A.I.R. 1960 S.C. 669 and Ram Gopal v.
State of Maharashtra, A.I.R. 1972 S.C. 656. In Mohan’s case,
the death in question was by arsenic poisoning. In that
case, the prosecution was able to prove that the accused
gave ’peras’ to the victim as ’pershad’ and the victim
419
died after eating the ’pershad’. ’Pershad’ contained
arsenic. There was thus direct evidence as to the possession
of the poison with the accused. This Court, therefore, had
no difficulty to sustain the conviction and sentence awarded
to the accused.
Ram Gopal’s case was concerned with homicidal action by
administering a compound called "kerosene and orango choloro
compound". The High Court, relying upon the motive and other
circumstantial evidence convicted the accused for the
offence of murder although there was no evidence that the
accused was in possession of poison. This Court could not
agree with the view taken by the High Court. The analysis of
the evidence produced by the prosecution revealed that the
motive alleged against the accused was not fully
established. The incriminating circumstantial evidence
against the accused was also found to be insufficient. So
the conviction of the accused was set aside and the
acquittal was recorded.
Sharda E. Chand Sarda v. State of Maharashtra, [1985] 1
SCR 88 A.I.R. 1984 S.C. 1622 is yet another case of death by
cyanide poisoning for which the husband of the deceased was
tried for murder. There was no direct evidence to establish
that the accused was in possession of that poison. The High
Court, however, relied upon the circumstantial evidence and
convicted the accused. In the appeal preferred by the
accused, this Court did not agree with the reasoning of the
High Court. After referring to Ram Gopal’s case. Fazal Ali,
J., focussed the attention on the following four factors:
The learned Judge observed (at p.167):
"So far as this matter is concerned, in such cases
the court must carefully scan the evidence and
determine the four important circumstances which
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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."
420
The learned Judge went on to state:
"In the instant case, while two ingredients have
been proved but two have not. In the first place,
it has no doubt been proved that Manju died of
potassium cyanide and secondly, it has also been
proved that there was an opportunity to administer
the poison. It has, however, not been proved by
any evidence that the appellant had the poison in
his possession. On the other hand, as indicated
above, there is clear evidence of PW 2 that
potassium cyanide could have been available to
Manju from the plastic factory of her mother, but
there is no evidence to show that the accused
could have procured potassium cyanide from any
available source. We might here extract a most
unintelligible and extra-ordinary finding of the
High Court:
"It is true that there is no direct evidence on
these two points, because the prosecution is not
able to lead evidence that the accused had secured
potassium cyanide poison from a particular source.
Similarly there is no direct evidence to prove
that he had administered poison to Manju. However,
it is not necessary to prove each and every fact
by a direct evidence. Circumstantial evidence can
be a basis for proving this fact."
The comment by the high Court appears to be
frightfully vague and absolutely unintelligible.
While holding in the clearest possible terms that
there is no evidence in this case to show that the
appellant was in possession of poison, the High
Court observes that this fact may prove either by
direct or indirect (circumstantial) evidence. But
it fails to indicate the nature of the
circumstantial or indirect evidence to show that
the appellant was in possession of poison. If the
Court seems to suggest that merely because the
appellant had the opportunity to administer poison
had the same was found in the body of the
deceased, it should be presumed that the appellant
was in possession of poison, then it has committed
a serious and gross error of law and has blatantly
violated the principles laid down by this Court.
The High Court has not indicated as to what was
the basis for coming to a finding that the accused
could have procured the cyanide. On the other
hand, in view of the
421
decision in Ram Gopal’s case failure to prove
possession of the cyanide poison with the accused
by itself would result in failure of the
prosecution to prove its case."
This Court then went into the merits of the prosecution
case. It was observed that the deceased was of sensitive
mind. She had occasionally suffered mental depression due to
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her inability to adjust herself to her husband’s family. It
was also observed that the deceased had access to the poison
in question. She could have secured the poison from the
factory of her mother. Considering these and other
circumstances, it was held "that it might be a case of
suicide or murder and both were equally probable". So the
accused was given the benefit of doubt and he was acquitted.
From the foregoing cases, it will be seen that in
poison murder cases, the accused was not acquitted solely on
the failure of the prosecution to establish one or the other
requirement which this Court has laid down in Dharambir
Singh case. We do not also find any case where the accused
was acquitted solely on the ground that the prosecution has
failed to prove that the accused had the poison in his
possession. The accused in all the said cases came to be
acquitted by taking into consideration the totality of the
circumstances including insufficient motive, weakness in the
chain of circumstantial evidence and likelihood of the
deceased committing suicide.
We do not consider that there should be acquittal on
the failure of the prosecution to prove the possession of
poison with the accused. Murder by poison is invariably
committed under the cover and cloak of secrecy. Nobody will
administer poison to another in the presence of others. The
person who administers poison to another in secrecy will not
keep a portion of it for the investigating officer to come
and collect it. The person who commits such murder would
naturally take care to eliminate and destroy the evidence
against him. In such cases, it would be impossible for the
prosecution to prove possession of poison with the accused.
The prosecution may, however, establish other circumstances
consistent only with the hypothesis of the guilt of the
accused. The court then would not be justified in acquitting
the accused on the ground that the prosecution has failed to
prove possession of the poison with the accused.
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
422
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
desirable 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 can
legitimately draw from the circumstances an inference on any
matter one way or the other.
The view that we have taken gets support from the
decision of this Court in Ananth Chintaman Laguy v. The
State of Bombay, A.I.R. 1960 S.C. 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):
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"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 decision of the Allahabad
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
February 19, 1958 and Dharambir Singh v. The 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 Cr. A. No. 98
of 1958 D/- 4.11.1958 (SC) turned upon these three
propositions. There, the deceased had died as a
result of poisoning by potassium cyanide, which
poison was also found in the
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autopsy. The High Court had 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 that 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
proceeded 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 the
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 that the
death was a result of administration of poison
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(though not detected) and that the poison must
have been administered by the accused person, then
the conviction can be rested on it."
So much for the principles for which the learned
counsel for the appellant fought for. On the facts there is
concurrence of opinion between the two courts below. This
Court seldom re-examines the findings of fact reached by the
High Court. We may, however, out of
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deference to the counsel briefly refer to the evidence. The
prosecution has established the motive for the murder. The
proof of motive goes a long way to tilt the scale against
the accused which provides a foundational material to
connect the chain of circumstances. The facts which hear on
motive are distressing. After the marriage, Gian Kaur was
subjected to repeated harassment for not satisfying the
demand for dowry made by Bhupinder Singh. Baltej Singh (PW2)
has stated that Bhupinder Singh asked Gian Kaur to bring Rs.
10,000. The parents of Bhupinder Singh were also parties to
that demand. Baltej Singh with all difficulties satisfied
that demand in part by payment of Rs.6,000. Bhupinder Singh
thereafter demanded a motorcycle. When that was not
immediately given Bhupinder Singh held out a threat to his
wife that she would be killed. This was conveyed to Baltej
Singh. Before he could take a decision in this regard he was
shocked to receive the news of death of Gian Kaur. This has
been proved by the testimony of Baltej Singh (PW 2) and
Nazir Singh (PW 3). The demand for dowry followed by
harassment to the deceased has been thus satisfactorily
proved.
The evidence of the Doctor and the report of the
chemical examiner has established beyond doubt that Gian
Kaur died of organo phosphorus compound poisoning. Bhupinder
Singh had an opportunity to administer that poison. There
was nobody else in the house. All the inmates had their
common food in the night. All of them slept in the same
place. Both the Courts have ruled out the theory of suicide
by Gian Kaur. We entirely agree with that finding. She could
not have thrown her child to the mercy of others by
committing suicide and indeed no mother would venture to do
that. The postmortem report giving the description of
injuries found on the body of the deceased would also defy
all doubts about the theory of suicide. She had contusion on
the front of right leg. Abrasion on the front of the left
leg just below the knee joint. Linear abrasion on the back
of the right hand. Linear abrasion on the antro-lateral
aspect of left fore-arm in its middle. And contusion on the
back of right elbow joint. These injuries, as the Courts
below have observed could have been caused while Gian Kaur
resisted the poison being administered to her.
The behaviour of Bhupinder Singh in the early hours of
that fateful day by going to his field as if nothing had
happened to his wife is apparently inconsistent with the
normal human behaviour. There was no attempt made by him or
other inmates of the house to look out for any Doctor to
give medical attention to the victim. The movement and
disposition of Bhupinder Singh towards the victim and
situations
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are incompatible with his innocence. On the contrary, it
gives sustenance to his guilt.
The Courts below having considered all these facts and
circumstances had no difficulty to convict the accused for
murder and we see no good reason to interfere with that
conclusion.
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In the result, the appeal fails and is dismissed.
R.S.S. Appeal dismissed.
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