HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.166 of 2008 DATE: 17.11.2011 BETWEEN: State of A.P. rep.by PP .. Appellant And Pendem Ramulu Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.166 of 2008 JUDGMENT: (Per AGR,J) The State through the Public Prosecutor filed this appeal against the order of acquittal dated 12.05.2006 passed against the respondent/accused in S.C.No.314 of 2005 on the file of the Principal Sessions Judge, West Godavari, at Eluru. 2. The accused was charged for the offence under Section 302 IPC for causing the death of his mother-in-law-Katta Mahalakshmi, by way of administering whisky mixed with rat poison into her mouth. 3. The story of the prosecution as narrated during the course of trial is as under: The accused is a resident of Kattapedalavari Gudem Village. The wife of the accused viz. Dhana Lakshmi is the second daughter of one Katta Mahalakshmi, the deceased woman. The marriage of the accused and his wife took place ten years prior to the incident and that they were blessed with two daughters, both of them had domestic quarrels, for which she deserted him and filed a maintenance case in the Court of the II Additional Magistrate, at Kovvur. Later on, the accused in frustration visited the house of his mother-in-law at Mangapathi Devi Peta Village and caused enquiries. When his mother-in-law informed that his wife’s whereabouts are not known, the accused entertained suspicion that his mother-in-law secreted his wife and she is responsible for the disputes, with an intention to kill his mother-in-law, the accused on 25.08.2004, at night, mixed the rat poison in royal gold whisky bottle and administered the same to the deceased woman, since she is in the habit of consuming liquor. The deceased fell sick and the accused absconded. One Adivikottu Divya who is deceased’s sister daughter-in-law alerted PW.2 and neighbours and provided services to her. On 26.08.2004 as the condition of the deceased was deteriorated, she was admitted in U.G.P.H.C., Koyyalagudem for treatment. The S.I. of police, Koyyalagudem at 7.30 PM recorded the statement and referred her to the Government Hospital, Eluru for better treatment. The accused was arrested on 27.08.2004 at 10.50 AM in his house and pursuant to the confession, recovered the Royal Gold Whisky bottle with rat poison. On 28.08.2004 at 3.15 AM the deceased Katta Mahalakshmi died in Government General Hospital, Eluru, then the section of law was altered to 302 IPC. After inquest, autopsy was conducted over the dead body of the deceased by the doctor, who opined that the deceased died due to consumption of insecticide poisonous substance. After completion of investigation, PW-9, the Inspector of Police laid charge sheet against the accused. 4. In order to prove its case, the prosecution, examined PWs.1 to 9 and marked Exs.P.1 to P.15 and MOs 1 to 3. No oral or documentary evidence was adduced by the accused in defence. 5. We have heard the learned Additional Public Prosecutor representing the State and the learned counsel appearing for the respondent. 6. PW.1 deposed in her evidence that her mother-in-law and the deceased Mahalakshmi are sisters. On the date of incident i.e. on 25.08.2004 the accused came to the house of the deceased and brought a brandy bottle and offered it to the deceased as she was in the habit of consuming alcohol. As per the instructions of the accused, she brought one vessel in the form of cucumber. He poured the contents of the bottle in the said tumbler and gave the same to the deceased to drink. After taking first cult, the deceased complained that it was bitter and she said that it is a new type of brandy and she consumed the same completely. After consuming the liquor, her hands and legs were found twisted. She called Mangamma and PW-2- Venkayamma and when they questioned the deceased, she said that she took some alcohol and she complained pain like that. They washed the face of the deceased and gave some water to drink and massaged both the hands and legs of the deceased, that as the condition of the deceased improved, they left the house. On the next day, when they gave rice with ganji, the deceased complained pain in the stomach and she is not able to swallow ganji rice. Thereupon, she went and brought PW-2 and Mangamma to their house, they sent one messenger to bring the younger daughter of A.Sarojini, who is residing at Koyyalagudem, after her arrival, they admitted the deceased in the Government Hospital, Koyyalagudem. At 8.30 p.m., the Sub-Inspector of Police recorded the statement as narrated by the deceased. Herself and Sarojini put signatures as witnesses on the said statement. In the cross-examination, PW-1 stated that the deceased was conscious till her death for three days, but she did not state before the Magistrate that the deceased herself mixed brandy in the tumbler. PW.2 who visited the house at 08.30 or 9.00 PM also stated that when she was in the house, PW.1 came and informed that the accused gave some liquor and after consuming it her hands and legs were found twisted by PW.1. Her mother went to the house of the deceased and after washing the face of the deceased, gave some water to drink. On the next day, PW.1 informed them that the deceased was unable to swallow ganji annam, therefore, requested them again to come to her house. PW.3, the doctor conducted the postmortem examination on the dead body of the deceased and issued Ex.P.2-postmortem report and also issued final opinion under Ex.P.4 after going through the RFSL report Ex.P-3. According to him, the deceased appeared to have died of consumption of Carbo Furan, an insecticide poison. PW.8-the Sub-Inspector of Police on receiving intimation Ex.P-10 with regard to admission of the deceased in the hospital, he proceeded to the hospital and recorded the statement of the deceased under Ex.P.11 and on the basis of the said report, he registered a case in Crime No.122 of 2004. PW.9, the Inspector of Police deposed in his evidence that after completing the investigation, he laid charge sheet against the accused. 7. While dealing with the case of death of a person by administration of poison, the Supreme Court in DHARAMBIR SINGH v. STATE OF PUNJAB[1] observed as under: “That where the evidence is circumstantial the fact that he 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. Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question, (secondly), had the accused the poison in question 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.” 8. Further, in RAMGOPAL v STATE OF MAHARASTRA[2] the Supreme Court while approving the ratio laid down by it in DHARAMBIR SINGH (1 supra) observed as under: “In a case of death by poisoning it is only when the motive is there and it is proved, that the deceased died of the poison in question, that the accused had that poison in his possession and that he had an opportunity to administer the poison to the deceased that the court can infer that the accused administered the poison to the deceased resulting in his death.” 9. In the case on hand, in order to prove the guilt of the accused, the prosecution has to establish the above tests and motive part to kill the deceased. As seen from the evidence adduced by the prosecution the statement of deceased-Mahalaxmi does not disclose that the accused disappeared after she completely consumed the alcohol given by him and this statement is contra to the evidence of PWs.1 and 2. Further, in Ex.P-1 statement of the deceased, she did not disclose that PW-1 came inside the house and gave tumbler M.O.1 and the accused poured the brandy in it and gave it to the deceased. Further, it is not the case of the prosecution that the accused disappeared with the bottle and thereby the seizure of M.O.3 in the presence of mediator under a cover of panchayatdars falsifies the recovery of the bottle M.O.3. PW-1 stated that the deceased was conscious for three days till her death and no explanation was offered by the Sub-Inspector of Police as to why they did not choose to summon the magistrate for recording the dying declaration of the deceased. Further, as per 164 Cr.P.C. statement recorded by the magistrate, the version of PW-1 is quite contra to the version narrated in her 161 Cr.P.C. statement as well as in her deposition. On verifying 164 Cr.P.C. statement of PW-1 recorded by the magistrate, she says that the accused came with country liquor and asked the deceased about the whereabouts of her daughter and paid Rs.50/- to bring her and for that she demanded Rs.200/-, which was given by him to go to Badrachalam, thereafter she consumed country liquor and slept with PW-1 in the house, then the accused left away. The evidence of other witnesses shows that the accused was very much in the house which is contrary to the evidence of PW-1 who was along with the deceased. In view of the divergent versions in the 161 Cr.P.C. statement of the deceased as well as 161 Cr.P.C. statements of PWs.1 and 2 and in view of the fact that the bottle was found in the hut of the deceased, it is highly improbable to believe that the Sub-Inspector of Police along with the mediators seized the bottle M.O.3 at the instance of the accused and thereby the admissible portion marked in the mahazar under Ex.P-6 is also not useful to the case of prosecution and that the accused was in possession of M.O.3 bottle in which he mixed ran poison and gave it to the deceased. 10. For the reasons aforementioned, we are of the considered view that there are no compelling reasons to come to a different conclusion to reverse the acquittal order passed by the learned Sessions Judge. Under the circumstances referred to above, the order of acquittal passed by the learned Sessions Judge cannot be interfered with. 11. The appeal fails and the same is accordingly dismissed. ________________ A. GOPAL REDDY, J _______________ R. KANTHA RAO, J Date: 17-11-2011 kvrm/ccm HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.166 of 2008 (Division Bench Judgment delivered by Hon’ble Sri Justice AGR,J) DATED: 17.11.2011 [1] AIR 1952 SC 343 [2] AIR 1972 SC 656