IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 140 of 1997 Decided on July 5, 2010 ________________________________________ State of H.P. …Appellant. Versus Raksha Devi …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes. For the Petitioner: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent : Ms. Kanta Thakur, Advocate. Justice V.K. Sharma,J. The State is in appeal against the judgment dated 18.12.1995, of the learned Sessions Judge, Hamirpur, H.P. whereby the respondent, who shall hereinafter be referred to as the ‘accused’ was tried for the offence under Section 302 of the Indian Penal Code and was ultimately acquitted. 2. The facts giving rise to the initiation of the present case as emerge out of the statement of the complainant ____________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 PW.1 Smt. Saraswati Devi, recorded by the police under Section 154 Cr.P.C., (Ex.PA), may be stated thus. The complainant Smt. Saraswati Devi was married to Sh. Rattan Chand about 5 years prior to the alleged occurrence. At that time, she was having two children, both sons, the elder Nikhil and the younger Aman Kumar. On 26.4.1993, Smt. Uma Devi, mother-in-law, of the complainant along with one Smt. Amro Devi, a co-villager, had gone to Hamirpur Bazar. In their absence, the complainant went to one Smt. Rita, a co-native, to take payment of Tape Recorder, which she has sold to her. When she returned home, she found that accused Raksha Devi, was sitting inside her house on the cot. When the complainant asked her as to why she had come there, she told that she wanted to have some Sindur (Vermillion). Resultantly, the complainant gave some Sindur to her in a Pudia and she went from there. Thereafter, when the complainant went inside the room and checked her purse, she found that a currency note worth Rs.5/- was missing/stolen. When mother-in-law of the complainant came back home in the evening, she narrated this incident to her. On the next day, i.e., 27.4.1993, at about 10 A.M. when mother-in-law of the complainant confronted the accused about the above incident in the presence of her mother-in-law and the complainant, she started abusing the complainant and her mother-in-law and also gave 3 beatings to them. Thereafter, mother-in-law of the complainant went to lodge complaint about the above incident to the mother of the accused in village Rajaihar. Thereafter, the accused threatened the complainant and hurled abuses at her that she had leveled false allegation of theft against her and that she would see her and her family. At about 12 noon, when the complainant was busy with household chores, her elder son Nikhil while playing went to the courtyard of the accused. The complainant called him but he kept on playing there. At about 12.30 P.M., when the complainant went to the courtyard of the accused to bring back her son Nikhil from there, she found that he had fallen down and was lying in the courtyard of the accused. She noticed that there were some fresh black spots on his neck, mouth and shirt. When she asked him as to what he had eaten (“Tune Kya Khaya Hai”), he disclosed that Tai (Raksha Devi) had administered medicine to him. When the complainant brought him from there, he started black coloured vomiting and became unconscious. Thereafter, the complainant alongwith a co-villager, Smt. Biasa Devi took him to doctor Rupu at Pucca Proh. However, the doctor advised that he should be immediately taken to the hospital at Hamirpur. Accordingly, the complainant took him there and got him admitted in the hospital, where he died at 10.45 P.M. According to the complainant, the accused had 4 murdered Nikhil Kumar (deceased) to avenge “Gharelu Ranjish” and the aforesaid occurrences that have taken place on 26/27.4.1993. 3. As per prosecution, the matter was reported to the police by Dr. D.N. Sharma, Medical Officer, District Hospital, Hamirpur (not examined), vide daily diary report (DDR) No. 32 dated 27.4.1993 (Ex.PL) at 11.25 P.M. Accordingly, the aforesaid statement of the complainant Ex.PA was recorded by the police under Section 154 of Cr.P.C. at her house in village Sastar, at 1.10 A.M. (night) on 28.4.1993. On its basis, formal FIR Ex.PW.1/A was registered. It was during investigation, that Banian of the deceased, which was produced by the complainant, was taken into possession by the police vide Memo Ex. PB. Vomit stained soil was also taken into possession by the police from the courtyard of the complainant vide Memo Ex.PC. 4. On the basis of disclosure statement, Ex.PD, said to have been made by the accused, a packet containing inscription ‘Zinc Phosphide Rat Poison’ was also taken into possession by the police in a ‘Pudia’ from the house of the accused vide Memo Ex. PE. 5. When the deceased was taken to the hospital at Hamirpur, on 27.4.1993, at 2.50 P.M., he was examined by PW.8 Dr. D.S. Kashmiri, who vide medico legal certificate Ex.PF, had observed as under:- 5 “Alleged H/O ingestion of some blackish coloured material. Patient is drowsy. Pupil- normal, reacted to light normally The respiratory was 120 per minute. Chest-NAD. Gastric levege done and contents kept for chemical examination”. 6. The dead body of the deceased was subjected to autopsy by PW.12 Dr. N.K. Galodha, vide Postmortem report Ex.PK, who had opined as under:- “In my opinion, the deceased had died due to Asphyxia (Hypoxia) and the final opinion was to be given after the chemical examiner’s report. After receiving the chemical examiner’s report Ex.PJ, the specimen P.1, P.2, P.3 and P.4 as mentioned in the report Ex.PJ were found to be positive for Zink Phosphide, as such, I finally opined that the Asphyxia (Hypoxia) could be due to the poisoning resulting in death directly and indirectly”. 7. The clue materials, i.e., the aforesaid Banian of the deceased, vomit stained earth and viscera of the deceased etc. were sent for forensic examination and report Ex.PJ was obtained. It revealed presence of Zinc Phosphide poison in the viscera, blood and vomit stained earth. Zinc 6 Phosphide poison was also found in the aforesaid packet, taken into possession by the police pursuant to the disclosure statement made by the accused. However, no such poison was found in the preservative, sample of vomit, Banian and clothes of the deceased and the controlled samples of earth lifted by the police. 8. On completion of investigation, the accused was charge-sheeted and sent up to face trial. On being charged, she did not plead guilty and claimed to be tried. The prosecution evidence followed. It examined fourteen witnesses in all. 9. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C, wherein while admitting her presence in the house of the complainant on 26.4.1993, she has set-up a defence of total denial, innocence and false implication. 10. On conclusion of the trial, the accused was acquitted by the learned Trial Court as already noticed. 11. We have heard the learned Deputy Advocate General for the appellant-State and learned counsel for the respondent-accused and have perused the record. 12. The learned trial Court has acquitted the accused mainly on the grounds that the very case of the prosecution from its inception is highly improbable and un-natural and does not inspire confidence, the alleged extra judicial 7 confession made by the accused to PW.2 Smt. Biasa Devi, could also not be safely relied upon and the disclosure statement allegedly made by the accused and the consequent recovery could also not be believed in the facts and circumstances of the present case. 13. There being no ocular account of the occurrence, the prosecution case rests solely on circumstantial evidence. It has been held by the Hon’ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622 that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:- 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 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 8 accused and must show that in all human probability the act must have been done by the accused. Case law discussed. 14. When judged in the light of above principles of law, it can be safely concluded that the evidence led by the prosecution is not sufficient in content to bring home guilt against the accused. The reasons to arrive at this conclusion are set out hereinafter. 15. It is in evidence that the deceased was taken to a local Doctor at Pucca Proh, namely, Dr. Roop Singh alias Rupu. However, though cited as a witness, yet he was given up by the prosecution as having been won over by the accused vide statement dated 23.8.1993 made by the Learned Public Prosecutor in the learned Trial Court. 16. The complainant, who has appeared as PW.1 has stated that the above version that the deceased had disclosed that the accused had administered medicine to him, was stated to Dr. Roop Singh alias Rupu. However, since he has not examined, this part of the prosecution story could not be elicited out of him so as to give credence to its case. 17. As already noticed, on the advice of Dr. Roop Singh alias Rupu, the deceased was taken to District Hospital, Hamirpur, where he was examined vide certificate Ex.PF which records the date and time of his arrival in the hospital as 27.4.1993, at 2.50 P.M. Thus, from 2.50 P.M. till 9 his death on the same day at 10.45 PM, the deceased was admitted in District Hospital, Hamirpur, the intervening period is just less than 8 hours. At this juncture, the testimony of PW.8 Dr. S.K. Kashmiri, who had examined the deceased vide certificate Ex.PF becomes relevant and the same is reproduced below in extenso:- “Stated that I had been working as Medical Officer in District Hospital Hamirpur w.e.f 1992- 1994. Now I am posted at Chohru. I have brought the summoned record. According to the record, Master Nikhal son of Rattan Chand a male child was brought to the hospital on 27.4.93 at about 2.50 P.M. with the alleged history of ingestion of some blackish material and the vomiting was present. The child was drowsy though pupil were normal and re-acted to light normally. The respiratory rate was 120 per minute. I had done gesture labage and the contents were kept for chemical examination. To this effect I have given the medico legal certificate Ext. PF which is in my hand and bears my signatures and is correct according to the original brought by me. Thereafter, I gave the treatment to the child and that record is in the hospital. Xxxx xxxx xxxx The child was not responding well when he was brought to me. Initially, it appeared a case of poisoning. Parents were with the child to make the history of ingestion that is that the 10 child had taken some blackish substance. Further stated that the parents with the child revealed that the child had taken some blackish material. At the same time I had informed the police because we were bound to inform the police in such type of cases. COURT QUESTION: Q. What do you mean by injection? Ans. Something taken orally. Xxxx xxxx xxxx By learned Public Prosecutor. It also means the substance may be given by some body else or taken by himself orally. Xxxx xxxx xxxx By the defence. However, in this case, the parents disclosed that the child had taken some blackish substance.” 18. The above deposition of PW.8, S.K. Kashmiri, would go to show that since the parents of the child (deceased) had revealed that he had taken some blackish material, he had informed the police at the same time as he was bound to do so in such type of cases. If it was so, the initial version about the occurrence might have been received by the police on or about that time, i.e., somewhere between 2.50 P.M. to 3-4 P.M. in any case. However, as already observed according to the prosecution, the police was for the first time informed about the occurrence in this case only at 11.25 P.M., vide DDR Ex.PL. This aspect of the 11 matter to our minds, goes to the very root of the case and cannot be likely over-looked. Particularly, in view of the deposition made by PW.8 Dr. S.K. Kashmiri, which no where reveals, that while narrating the history, the parents of the deceased had disclosed anything about administering of some medicine to the child (deceased) by the accused. 19. Another aspect of the matter, which can also not be rightly over-looked is that though according to the complainant, the deceased had disclosed to her that he was administered some medicine by the accused at 12.30 P.M., or so 27.4.1993 and thereafter, the deceased was immediately taken to the local Doctor at Pucca Proh and thereafter to District Hospital, Hamirpur, and was admitted there and further that while the doctor was doing Gastric levege of the child (deceased) he had again disclosed that the black coloured material which was coming out through gastric levege, was administered to him by the accused, but even despite that according to the complainant she came back to her house at about 5 P.M., as her mother-in-law was attending upon the child in the hospital. In such circumstances, the natural conduct on the part of the complainant, would have been to report the matter to the police immediately stating all the facts as later on alleged by her in her statement under Section 154 Cr.P.C., Ex.PA. However, it was not done for the reasons best known to her. 12 20. The disclosure statement allegedly made by the accused to the police also makes a queer reading. It is in the nature of confessional statement to the effect that she had kept concealed the ‘Pudia’ out of which she had administered poison to the deceased, in her bed room located on the upper storey of her house and that she could get the same recovered. The first part of the statement allegedly made by the accused inculpating herself for the alleged administration of poison to the deceased is hit under Section 25 of the Evidence Act and thus, deserves outright rejection. In so far as the latter part of the statement coupled with the recovery of the incriminating material vide Memo, Ex. PF, is concerned, the same can also not be safely taken into consideration as a circumstance against the accused for the reason that whereas she was arrested by the police on 28.4.1993, the disclosure statement, Ex.PD and the consequent recovery vide Memo Ex.PE is said to have been made / effected on 30.4.1993, i.e., after two days from her arrest and there is no explanation for the intervening delay, what to say of a reasonable explanation. 21. Further more, since there were two witnesses to the disclosure statement Ex. PD, namely, Banarsi Dass (PW.5) and Jaswant Rai (given up) and the former has not stated anything about the first part of the disclosure statement made by the accused allegedly inculpating herself 13 for the murder of the deceased, the statement itself becomes doubtful. He has admitted during cross-examination that he must have appeared as prosecution witness in 2-3 cases. However, he has denied that he has appeared, as such, in about 50 cases. With regard to the alleged recovery vide Memo, Ex.PE, the recovery witness, PW.6 Bhag Deen, has admitted that farmers keep rat poison in their houses. 22. In view of the above discussion coupled with other inconsistencies in the prosecution evidence, observed by the learned Trial Court, in the impugned judgment dated 18.12.1995, we are of the view that the same does not call for any interference by this Court. Accordingly the appeal is dismissed. (Justice R.B. Misra), Judge. (Justice V.K. Sharma) Judge. July 5, 2010 (lsp)