drp {1} Cri. Appeal No.457/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.457 OF 2010 Sau Mamta w/o Yogesh Rajput APPELLANT Age-32 years, Occ-Household R/o Tarsod, Tq & Dist-Jalgaon VERSUS The State of Maharashtra RESPONDENT ....... Mr.R,K.Temakar h/f Mr.A.I.Deshmukh Advocate for appellant Mrs.R.K.Ladda, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 9 th February 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer further RI for two months, in Sessions Case No. 216/2009, vide judgment and order dated 29.09.2010 by Additional Sessions Judge, Jalgaon, has questioned the correctness and legality of the judgment of conviction. drp {2} Cri. Appeal No.457/2010 2. The prosecution unfolded the case that one Kajal Omprakash Rajput, a minor girl aged about 1 and ½ years was admitted in Chirayu Hospital, Jalgaon, on 15.04.2009 with the history that the medicine given to her contained poisons substance. Kajal expired during treatment. Thereafter AD No. 9/2009 was registered with Nashirabad police station. Investigation of the said ADR was entrusted to PW-5 PSI Suresh Deshmukh. During the investigation, PW-5 visited the spot at Tarsod on 16.04.2009. Thereafter spot Panchanama (Exhibit-23) was drawn and a container of endosalfan and one iron nail were seized from the spot. Thereafter blood sample of Kajal, packet containing bottle of suspected medicine and sample of vomiting of deceased was collected in presence of Panch. The said articles were sent to the Chemical Analyzer, Nashik. Thereafter statements of certain witnesses were recorded. Reports of Chemical Analyzer (Exhibit-30 to 32) disclose that the bottle of medicine contained endosalfan insecticide. By referring the report of the Chemical Analyzer, the Medical Officer opined that the cause of death of Kajal was due to poison. Accordingly, a complaint (Exhibit-35) was lodged against the appellant on 15.09.2009. Thereafter offence at Crime No.68/2009 was registered with Nashirabad police station for an offence punishable u/s 302 of the Indian Penal Code against the appellant. Investigation of the said crime was entrusted to PW-9 API Khandekar. The appellant came to be arrested on 16.09.2009 and thereafter statements of some more witnesses came to be recorded. After completion of the investigation, charge drp {3} Cri. Appeal No.457/2010 sheet was filed against the appellant before JMFC, Jalgaon. 3. After committal of the trial, the trial court framed charge (Exhibit-6) against the appellant for an offence punishable u/s 302 of the Indian Penal Code, however the appellant pleaded innocence and claimed to be tried. The prosecution, to substantiate the charge leveled against the appellant, examined 8 witnesses. Defence of the appellant was of total denial. The trial court accepted the prosecution evidence and convicted the appellant accordingly. 4. For better appreciation of the rival submissions it is necessary to advert to the evidence of material witnesses. 5. It is in the evidence of PW-1 Omprakash Totaram Rajput, father of deceased Kajal, that on 05.04.2009, he had been to the house of his father in law (PW-2) along with his wife and two daughters-Nisha and Kajal (deceased). Appellant is the wife of his brother in law. On 12.04.2009, Kajal was admitted in Krishna hospital, Jalgaon as she was suffering from vomiting and dysentery. She was discharged on the next day and one syrup was prescribed by the doctor to Kajal. In the morning of 15.04.2009 one dose of the said medicine was given to Kajal and the second dose was given at 9.30 p.m. Soon after administering the second dose, Kajal started vomiting and the smell of the vomiting so also of the bottle of medicine was like that of a poison. Immediately drp {4} Cri. Appeal No.457/2010 Kajal was shifted to Chirayu Hospital, Jalgaon, however she expired in the hospital while under treatment. Thereafter, after conducting Postmortem on her dead body the same was cremated. On 18.04.2009 a message was received that PW-2 had kept a tin of endosalfan in one room and on the day medicine was given to Kajal, appellant had taken the key of the said room and had returned the same after 20-25 minutes. In the cross examination, he has stated that tobacco water was given to Kajal 10 minutes after she started vomiting and 15 minutes thereafter, she was shifted to Chirayu hospital, Jalgaon. 6. Evidence of PW-4 Aruna-mother of the deceased is on the similar lines as that of PW-1. Additionally, she has stated that the appellant had collected the keys of the room, where insecticide endosalfan was kept, from her father (PW-2). The appellant had mixed the poison in the medicine to be given to Kajal (deceased). In her cross examination she has admitted that tobacco water was given to Kajal and that she has not witnessed the incident of appellant mixing poison in the bottle of medicine to be given to Kajal. 7. It is in the evidence of PW-2 Dinkar, maternal grand father of deceased Kajal, that one tin containing endosalfan insecticide was kept in the room where agricultural equipments were kept and the room was locked. Keys of the said room were with him. On the day of the incident, the appellant had asked for drp {5} Cri. Appeal No.457/2010 the keys from him which he had given to her. On 15.04.2009, Kajal was admitted in Chirayu Hospital as she was vomiting. The smell of vomiting was like that of endosalfan insecticide and therefore, he had opened the room and noticed that there was a hole to the cover of box containing endosalfan. The appellant had mixed the insecticide in the medicine to be given to Kajal (deceased). His statement was recorded after receipt of the report from Chemical Analyzer i.e. after about 4 months of the alleged incident. In the cross examination, he has stated that the bottle of medicine, to be given to Kajal, was kept in the front room and the room where agricultural equipments are kept is situated at some distance. At the material time, there was standing crop in his field and half of the endosalfan, from the said container, was utilized for sprinkling on the crop. He was present when Kajal was vomiting. It is a practice to give tobacco water to the person of suspected poisoning. Tobacco water was not given to Kajal. The appellant was in the room where endosalfan insecticide was kept, for about 20 to 25 minutes. 8. Dr.Shamip Virendra Singh, PW-6 has stated that on 15.04.2009 Kajal was admitted in Chirayu Hospital and at the time of her admission in the hospital, history was given by her parents that medicine given to her contained endosalfan. Relatives of Kajal had given tobacco water to her after she started vomiting. Blood sample of Kajal and the medicine bottle was given to the police after the death of Kajal and thereafter the dead body was sent for drp {6} Cri. Appeal No.457/2010 postmortem. 9. PW-7 Dr.Rupali Sitaram Patil, who had conducted postmortem on the dead body of Kajal on 16.04.2009, has stated that. She did not notice any internal or external injury on the dead body. She had collected viscera of Kajal to ascertain the exact cause of death and the same was sent to Chemical Analyzer and, therefore, the opinion as regards to cause of death was reserved. Accordingly, she had prepared Postmortem report (Exhibit-41). After going through the CA report, she has opined that the cause of death was due to cardio respiratory arrest due to organochloro insecticide. She has denied in her cross examination that large dose of tobacco water is fatal to a minor child. 10. In the background of this evidence, heard learned counsel for the appellant followed by the submissions of learned APP. Learned APP supported the judgment of the trial court and urged for dismissal of the appeal by confirming the conviction and sentence. 11. Learned counsel for the appellant does not dispute that the death of Kajal is unnatural one, however it is asserted that the same is homicidal or accidental one is a disputed question and hence the same requires consideration as to whether the appellant is responsible for the death of Kajal or not. Learned counsel for the appellant urged that the evidence led before the trial court clearly drp {7} Cri. Appeal No.457/2010 indicates that the case of the prosecution rests on circumstantial evidence and this is not a case of direct evidence. The only circumstance against the appellant, as per the prosecution story, is that she went inside the room where insecticide endosalfan was kept, however according to learned counsel for the appellant it is not sufficient to hold the appellant guilty of the offence with which she is charged. 12. It may be useful to refer the judgment of the Apex Court, in the matter of “Babu V/s State of Kerala” 2010 AIR SCW 5105. The Apex Court, in the said judgment has observed thus- “19. In Sharad Birdhichand Sarda V. State of Maharashtra, AIR 1984 SC 1622, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established; 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 or any other hypothesis except that the accused is guilty; drp {8} Cri. Appeal No.457/2010 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” 13. Further it may also be useful to refer to the observations of the Apex Court in the matter of “Ramgopal V/s State of Maharashtra” AIR 1972 SC 656. The Apex Court, in the said judgment, has observed thus- “15. Further, this Court, in Dharambir Singh V. State of Punjab, Cri. App.No.98 of 1958 D/- 4-11-1958 (SC) dealing with a case of poisoning observed that 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 prove 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.” drp {9} Cri. Appeal No.457/2010 14. Perusal of the evidence on record indicates that the motive behind the crime was not established at all. So also none had witnessed that the appellant had mixed the insecticide in the medicine to be given to Kajal (deceased). Evidence on record further establishes that the appellant had no occasion to bring the insecticide in the front room where the medicine bottle was kept. The only available evidence of PW-2 Dinkar discloses that the appellant had taken the key of the room where insecticide was kept and had returned from the said room after 20 to 25 minutes. The only circumstance that the appellant had entered in the room where insecticide was kept, is not sufficient to hold that the appellant had mixed insecticide in the medicine bottle to be given to Kajal (deceased), which resulted in her death. It is nobody’s case that the appellant had administered medicine to Kajal. It is the specific case of the prosecution that the appellant had mixed insecticide endosalfan in the medicine bottle, which was kept in the front room, however there is no evidence that the appellant had been in the front room, where the bottle of medicine was kept and had mixed the insecticide in the same. In absence of evidence that the appellant had mixed the insecticide in the bottle of medicine to be given to Kajal, the solitary circumstance that the appellant had been to the room where the insecticide was kept, is not sufficient to hold the appellant guilty for the murder by mixing insecticide in the medicine to be given to Kajal and hence that the charge u/s 302 of the Indian Penal Code cannot be said to be proved against the appellant. drp {10} Cri. Appeal No.457/2010 15. In substance, on re-appreciation of the evidence lead by the prosecution before the trial court, we are of the view that the evidence on record is not sufficient to hold the appellant guilty for the offence of murder of Kajal. In the premise, the appeal ought to succeed. 16. The Criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which she was charged and convicted. Fine, if paid by the appellant, be refunded to her. Since the appellant is in jail, she be released forthwith if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel457-10