RAJBIR SINGH VS THE STATE OF PUNJAB

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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

Section 302 of Indian Penal Code 18601

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

Kotwali, District Bathinda on 18th 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”

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

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(PW2), 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

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

registering the case. On its basis formal FIR (ExPA/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

recorded under Section 161 of the Code of

Criminal Procedure, 19732

. 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”

had carried the sealed samples to the laboratory

was examined as PW3; Head Constable Kapur

Chand who had taken the dead body for postmortem 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

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 postmortem.

vi. PW6 Head Constable Darshan Singh, with

whom the articles of post mortem report and

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.)

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

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

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 (ExD1) 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;

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;

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

Dr. O.P. Goyal on 22.11.2000 after his

suspension.

14. It would also be relevant to refer to the postmortem 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 postmortem 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

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

judgment and order dated 29th October, 2009 did

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

(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.

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

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

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

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

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

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

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).

25. PW6 Head Constable Darshan Singh is also

a formal witness with whom the articles of postmortem 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)

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

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

the intervening period of 18th to 19th September. It

is interesting to note that the Investigating Officer

says that when milk was boiled in his presence on

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.

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 crossexamination he had stated that he did not

remember how many seals were affixed on the

parcel. He further states that the parcel was

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

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

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

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. 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

Sarda vs. State of Maharashtra3

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

"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

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

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

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.”

39. The principles laid down in the case of Sharad

Birdichand Sarda(supra) have remained

unaltered and even as recently as 11.08.2022 this

Court in Criminal Appeal No.25 of 2012, Ram

Niwas vs. State of Haryana, has relied upon the

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

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. 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

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

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

Jaipal vs. State of Haryana4

. It was a case of

aluminium phosphite (sulphas) which also has a

strong pungent smell. It is observed that such

4 (2003) 1 SCC 169

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,

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

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 ExPF 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

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:

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

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.

[HEMANT GUPTA]

………….........................J.

[VIKRAM NATH]

NEW DELHI

AUGUST 24, 2022

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