D.B. Crl Appeal No. 459/2002 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. CRIMINAL JAIL APPEAL NO. 459/2002 ( AMIN KHAN & ANR. VS STATE ) J U D G M E N T APPEAL UNDER SECTION 374(2) Cr.P.C. AGAINST THE JUDGMENT DATED 18.04.2002 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK) HANUMANGARH IN SESSIONS CASE NO. 138/2001 DATE OF JUDGMENT : 09th August, 2007 HON'BLE MR. BHAGWATI PRASAD, J. HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr. Doongar Singh for the appellant. Mr. JPS Choudhary, P.P. Mr. Mridul Jain for the complainant * # * # * # * # * BY THE COURT : The present appeal has been filed by the accused appellant against the decision of the court of Additional Sessions Judge (Fast Track) Hanumangarh in Sessions Case No. 138/2001 dated 18.04.2002. The case of the prosecution as set out in the First Information Report is based on a written report lodged by Sukh Ram at Police Station, Hanumangarh town. In the written report, the complainant has written that 1 D.B. Crl Appeal No. 459/2002 his uncle in-law Rati Ram, deceased had some money transaction pending between Amin Khan. Rati Ram had gone to the residence of Amin Khan 2- 3 times. On 25.06.2001 at about 2 PM, Rati Ram came to his place and said that they would go to the place of Amin Khan. Both of them reached the residence of Amin Khan. After reaching there, Rati Ram asked Amin Khan as to why he is not paying back the money. Amin Khan replied that he could not arrange the money and he would pay it on the next day. For 10-15 minutes there were exchange of talks about money. Thereafter, Amin Khan told his son to bring water. After 4-5 minutes, Amin Khan also went inside who came back after few minutes alongwith his son. His son brought a small container of water. Rati Ram drank water and said that the water is smelling. Amin Khan replied that this is due to rusting of handpump. When the complainant asked for water, Rati Ram told him that water is stinking and they will drink water from the tap somewhere else and started walking. After walking 15-20 steps, Rati Ram complained that he is feeling giddy and is expecting a vomit. Rati Ram also said that he might have been administered something alongwith water. Somehow they reached to their place Ranjitpura, where they called Dr. Mangla Ram who advised that Rati Ram should be taken to Rawatsar. They arrived at Rawatsar at about 5:30 PM. The doctors treated him for about an hour and referred to Hanumangarh hospital but on the way to hospital, Rati Ram died. 2 D.B. Crl Appeal No. 459/2002 On the basis of such report, a case was instituted under Section 302/34 IPC and investigation was conducted. During investigation, it was found that celphos was responsible for the death of Rati Ram. After charge-sheet was filed, the case was committed to the court of Sessions from where it was made over to the trial court. The trial court framed the charges under Section 302/34 IPC against both the accused who denied the charges and claimed trial. 13 witnesses were examined in support of the case and 39 documents were exhibited. The accused were examined under Section 313 Cr.P.C. No defence witness was produced. The trial court after considering the case of the prosecution convicted the accused persons under Section 302/34 IPC and sentenced to life imprisonment and fine of Rs.100. Assailing the conviction, learned counsel for the appellants stated that it is a case which appears to be fabricated and based on surmises and conjectures. It is noteworthy that simple water when mixed with celphos tables would be so stinking that no one could be expected to drink the same. The obnoxious smell which emanates out of celphos is so repelling that nobody can drink such water when mixed. The motive alleged by the prosecution is that but for a deal of money, the poison was administered. It is an in-definite motive alleged. As and when prosecution choses a motive, it has to establish the same. Proof of motive is not always detrimental to the prosecution case but when it is alleged with definiteness, 3 D.B. Crl Appeal No. 459/2002 then it becomes incumbent on the prosecution to establish the same. Initially, no motive was alleged. It was alleged in the later part of the prosecution case, wherein money was said to be due on account of opium trade which by itself was an illegal transaction. The witness PW/1 Luna Ram alleges that on 23.05.2001, he and Rati Ram had gone to the house of Amin Khan who said that 2-4 later he may seen him. They were offered tea but they did not accept it. This witness in his cross-examination admitted that he had not given the reason in his police statement that money was due on account of opium trade. Even the fact of money being due was not narrated by him in the police statement. PW/7 Sukh Ram witness who had accompanied Rati Ram to the house of Amin Khan has not been truthful witness because the transaction of Rs.75,000/- was not narrated by him in Ex.P/7, the First Information Report. The improved version which he gave in the Court was not contained in Ex.P/4, his police statement. Even the demand of water had not been narrated in Ex.P/7, the written report which is the basis of the First Information Report. Thus, the very fact of water having been demand by Rati Ram is missing. In the report, it was only stated that Amin Khan told his son to bring the water. Learned counsel for the appellants further asserted that the information Ex.P/28 by Amin Khan under Section 27 of the Evidence Act says that he will get that container recovered which he has concealed. He 4 D.B. Crl Appeal No. 459/2002 has not stated in his information that the container was used for dissolving celphos in the water. Further, on recovery of the container after digging the soil, holes were found in it and when water was drank from that container, then water should have come out. The container which has holes in it would hardly go un-noticed at the time the water was served and consumed because from the holes, water would trickle out. In any case, after the container was dumped in the soil, it would loose the traces of poison after having come in contact with soil. The soil would contaminate the container and any traces of poison found in that container would not be admissible in law. In any case, in Ex.P/28 information, it has not been stated that the container was used for dissolving poison. Such information being not there under Section 26 of the Evidence Act, only that much of information is admissible which is relevant. Here the relevancy is altogether absent. The wife of the accused has not supported the witness PW/1 Luna Ram by saying that before going to the house of the accused on 25.06.2001, the deceased had gone to the house of the accused on 23.06.2001 and that being the position, it cannot be said that he had then gone on 23.06.2001. No record in writing showing the money transaction being there, it cannot be believed that the money which is alleged to be due was at all due. Therefore, the case is not the one where it may be established that the accused is responsible for administering the poison to the deceased. 5 D.B. Crl Appeal No. 459/2002 Per contra, learned Public Prosecutor submitted that aluminum phosphide has been found on chemical examination of the viscera. The aluminum phosphide having been found in FSL report and soon after consumption of water, the deceased having been taken ill, there is complete chain which establishes that the deceased had take water at the place of accused and at that point of time, he consumed poison and died. We have heard the learned counsel for the appellants and have given our thoughtful consideration. The most important aspect of the matter is the allegation and motive in the case. The motive is alleged to be that Rs.75,000/- was due against the accused and therefore, the deceased was administered poison. The motive when alleged is required to be established. From Ex.P/7, we find that no amount to the tune of Rs.75,000/- has been mentioned in it. This is the first version of the prosecution case. The amount due has not been disclosed. No written account has been produced alleging that the transaction relates to an illegal opium trade. If the money was due to an opium transaction, then it is established that both accused and the deceased were involved in opium trade. It is alleged that they were good friends. How all of a sudden friendship turned into enmity of the grade where the accused administered poison to the deceased? The deceased is alleged to have drank water from a tap after leaving house of the accused. We never know that water might contain the 6 D.B. Crl Appeal No. 459/2002 alleged substance because water from that tap has not been tested by the prosecution. Further the container which is said to be the source of administration of poison had holes in it. Those holes have not been mentioned by the eye-witnesses. As and when water is drunk from a container which has holes, it would certainly be noticed. That having not been noticed, it cannot be believed that the container was used in administering poison. In any case, when a container with holes is used for administering poison, then the water would have come out from the holes. That having not been mentioned, the story becomes doubtful. Further, the information Ex.P/28 do not in any way confirm the standards of information under Section 27 of the Evidence Act by linking the accused with the crime and above all, the report of the Forensic Science Laboratory describes a steel lota with dents and stains on inner side and it does not mention that there were holes in it. Thus, a suspicion arises about the container recovered and the container sent for chemical examination because if dents have been noticed by the Forensic Science Laboratory so also the stains, holes would not have been missed. In that view of the matter, recovery of container is of no consequence. Above all, it does not stand to reason that in the plain water, any man can be administered poison. celphos tablets have stinking smell and it is so repulsive and obnoxious that howsoever thirsty a man would be, he would not drink that smelling water. In any case, the demand of water 7 D.B. Crl Appeal No. 459/2002 by the deceased has not been stated in Ex.P/7. That having not been there, it was not a case where water could be taken by him. If the accused wanted to administer poison, he would have used many other options like tea and food etc. Having not done so, offering of poison in a plain water is a contingency which only suggests that the prosecution was not sure as to how and when the poison was consumed by the deceased. There is a lurking doubt in our mind that only person could have administered the poison. In the entire case of the prosecution, there is no whisper that the water was bearing a taste other than the normal taste. A poison mixed water would not only have smell but variation in taste also. At no place in the entire story of prosecution, there is a mention about the taste of the water. Absence of this fact negates positively that the water offered by the accused was poisonous. Out of the two accused who was responsible for mixing the poison in the water is not clear and if that is not certain, conviction of the accused under Section 302/34 IPC cannot be sustained. The person responsible has to be identified and from the prosecution case, we are unable to locate as to who mixed poison in the water, if at all it was mixed. In that view of the matter, the prosecution case falls short of establishing that it was either of the accused or both the accused in consonance offered water which was mixed with poison and therefore, we feel that accused deserve benefit of doubt. Accordingly, we are prepared to accept the appeal 8 D.B. Crl Appeal No. 459/2002 of the accused. In the result, we accept the appeal of the accused and consequently, set aside the conviction and sentence of the accused appellants under Section 302/34 IPC. Accused Amin Khan is on bail. He is not required to surrender to his bail bonds. His bail bonds are cancelled. Accused Maje Khan is behind the bars. His conviction and sentence also having been set aside, he should be released forthwith, if not required in any other case. (MUNISHWAR NATH BHANDARI), J. (BHAGWATI PRASAD), J. bjsh 9