1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT Santra Devi vs. State of Rajasthan D.B. Criminal Appeal No. 1271/2003 D.B. CRIMINAL APPEAL UNDER SECTION 374 Cr.P.C. AGAINST THE JUDGMENT DATED 27.8.2003 PASSED BY SHRI J.P. SHARMA, R.H.J.S. ADDL. SESSIONS JUDGE, KOTPUTALI, DISTT. JAIPUR IN SESSIONS CASE NO. 10/02. DATE OF JUDGMENT : September 18, 2008. P R E S E N T HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Reportable Ms. Naina Saraf, for the appellant. Mr. Ashwini Kumar Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Mahesh Bhagwati,J) An unfortunate mother indicted for killing her two daughters as also for attempting to commit suicide, stood trial before the Additional Sessions Judge, Kotputali, District Jaipur, who vide impugned judgment dated August 27, 2003 convicted her in the offences under Sections 302 and 309 of Indian Penal Code and sentenced as under:- U/s. 302 IPC: Imprisonment for life and a fine of Rs. 500/-; in default of payment of fine to further suffer imprisonment for three months. U/s. 309 IPC: Imprisonment for one year. Substantive sentences were ordered to run concurrently. 2. The prosecution version as unfolded during trial is as follows:- 2 PW-11 Laxmi Narayan, the then S.H.O. Police Station Pragpura, recorded Parchabayan Ex.P/13 of the appellant Mst. Santra Devi wherein, she stated that she married to Vinod @ Banna about 12-13 years prior to the occurrence of this case. She gave birth to three daughters namely Puja, Jyoti and Rekha. Her husband was drunkard and had no work to do. He often used to beat her. On account of being fed up and distressed with the torturous life caused by her husband, she administered five crushed tablets of Sulphos in the flour and cooked loaves (Rotis) which she herself and her three daughters consumed. That time her husband was not in the house. After 1-1½ hours of eating poisonous loaves, she became unconscious and was removed to the hospital by neighbours. Police lodged the FIR Ex.P/15 and commenced investigation. 3. Out of four, two daughters Jyoti and Puja died of eating poisonous loaves (Rotis) and one daughter Rekha as also the appellant Mst. Santra survived. Autopsy of Puja and Jyoti was conducted, Mst. Santra and Rekha were medically examined, viscera were sent for chemical examination to FSL, the statements of the witnesses acquainted with the facts and circumstances of the case were recorded under Section 161 of Cr.P.C., site plan Ex.P/9 was prepared, appellant's husband Vinod @ Banna was arrested vide memo Ex.P/10, Inquest report Ex.P/16 and Ex.P/17 were prepared, the appellant Mst. Santra was arrested vide memo Ex.P/6, necessary memos were drawn and after usual 3 investigation both Vinod @ Banna and Mst. Santra were challaned in the competent court. 4. In due course of time, the case came up for trial before Additional Sessions Judge, Kotputali. The accused Vinod @ Banna was charged for the offence under Section 306 of IPC and appellant Mst. Santra for the offences under Sections 302 and 309 of IPC, who pleaded not guilty and claimed trial. In order to further its version, the prosecution examined as many as 13 witnesses. In their explanation under Section 313 Cr.P.C., both claimed innocence. On completion of trial, the accused Vinod @ Banna was acquitted in the offence under Section 306 of IPC and Mst. Santra was convicted and sentenced as indicated hereinabove. 5. Heard the submissions advanced by learned counsel for the appellant, learned Public Prosecutor appearing for the State and with their assistance scanned the material on record. 6. Learned counsel for the appellant has vociferously canvassed that all the material witnesses have not supported the prosecution case and turned hostile. There being no incriminating circumstance as also no shred of evidence against the appellant on record, the offences under Sections 302 and 309 of Indian Penal Code do not stand proved and the appellant deserves to be acquitted. The learned counsel has made the following submissions:- (i)The parchabayan Ex.P/13 was recorded by S.H.O. Police Station, Pragpura in the hospital. The lower court has made parchabayan the basis of conviction which is not admissible in evidence under Section 25 of Indian Evidence Act. 4 (ii)There is no evidence on record which evinces that appellant mixed sulphos tablets in flour and having cooked loaves, gave them to her daughters to eat. (iii)At the time of inspection of the site, the pieces of loaves and remains of vomit were lying on the floor but they were not collected by the Investigating Officer for chemical analysis. (iv)That, there are material contradictions in the statements of PW- 2 Pramod Singh and PW-8 Dr. Suman Yadav with regard to the state of appellant when she was brought to the hospital. (v)It is not proved from record that the appellant administered the poison to Kumari Puja and Kumari Jyoti. (vi)The learned trial court has convicted the appellant on the ground of circumstantial evidence whereas, not even an iota of incriminating circumstance appeared against her on record. 7. Per contra, the learned Public Prosecutor simply urged that the impugned judgment is cogent and well merited. The learned Additional Sessions Judge has critically examined the evidence of prosecution witnesses in great details and there does not appear any infirmity therein, as such, the appeal deserves to be dismissed. 8. Having reflected over the submissions and weighed the prosecution evidence, it is noticed that the prosecution witnesses PW-3 Nathu Ram, PW-4 Ramavatar, PW-5 Shivram, PW-6 5 Kishan Kumar, PW-7 Madan lal, PW-8 Dr. Suman Kumar Yadav and PW-10 Narayan did not support the prosecution case and turned hostile. PW-1 Ashwani Goyal conducted the post mortem of deceased Jyoti and Puja. Vide Post Mortem Report Ex.P/1 of deceased Jyoti, he opined: “In my opinion cause of death was shock which will be given after FSL report. Although, viscera are preserved and sent for chemical analysis of organic and inorganic poison and alcohol.” The time of death was reported to be between 18 – 36 hours. 9. Vide post mortem report Ex.P/2 of deceased Puja, Dr. Ashwani Goyal opined: “In my opinion cause of death was shock which will be given after FSL report. Although, viscera are preserved and sent for chemical analysis of organic and inorganic poison and alcohol.” The time of death was reported to be between 6 – 18 hours. 10. PW-2 Dr. Pramod Singh conducted the medical examination of Mst. Santra and Rekha aged 2 years and found Santra in semi-conscious state at 11 pm on July 23, 2002. Both were recorded to have history of infection of poison within loaves. PW-8 Dr. Suman Kumar Yadav stated that parchabayan Ex.P/13 was recorded during his duty hours by the S.H.O., police station Pragpura at 9.15 pm on July 23, 2002. He deposed that the statement was given by Santra in his presence without any pressure. PW-11 Laxmi Narayan is the Investigating Officer of this case. 11. Now, adverting to the onus of proof, primary principle of criminal law is that the onus of proving the general issues i.e. 6 everything essential to the establishment of the charge against the accused rests upon the prosecution and never shifts, and it lies upon the prosecution to establish, on the whole case, and beyond reasonable doubt the guilt of the accused. In a case of murder by poison, there are three main points to be proved by the prosecution- Firstly, did the deceased die of the poison in question; Secondly, had the accused got the poison in question in his or her possession and; Thirdly, had the accused an opportunity to administer the poison in question to the deceased. 12. If these points are proved, a presumption made under certain circumstances, be drawn by the court that the accused did administer poison to the deceased. It is not usual that reliable direct evidence is available to prove that the accused did actually administer poison to the deceased but evidence of motive which is frequently given in this case is of subsidiary importance, and the same fact that the accused had a motive to cause death of the deceased is not a fact which will dispensed with the proof of the second and third points namely that the accused had the poison in her possession and that the accused had an opportunity to administer the poison to the deceased. 13. As regards the first point, whether the deceased Puja and Jyoti died of the poison in question, it is noticed that the portions of viscera of Kumari Jyoti and kumari Puja were preserved by Dr. Ashwani Goyal and sent to Forensic Science Laboratory. The FSL report 7 Ex.P/20 with regard to the viscera of Puja and Jyoti is as under:- “On chemical examination, portions of viscera (1-8) and (9-16) from four packet marked (B), (A), (B) and (A) respectively gave positive tests for the presence of Aluminium Phosphide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides.” 14. The FSL report Ex.P/21 with regard to Gastric Lavage of Smt. Santra and Rekha collected at the time of medical examination is as follows:- “On chemical examination, portions of Gastric Lavage Exhibit No. (1) and (2) from two packets marked (A) and (A) gave positive tests for the presence of Aluminium phosphide and gave negative tests for metallic poisons, ethyal and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides.” Thus, it is proved from the FSL report Ex.P/20 and Ex.P/21 that Aluminium Phosphide was found present in the viscera of Jyoti and Puja as also in the Gastric Lavage of appellant Santra and her daughter Rekha. As per PW-1 Ashwani Goyal, Puja and Jyoti died of Aluminium Phosphide which is found in sulphose tablets. 15. Turning to the second point as to how did the appellant get the Sulphos tablets and from where did she manage them? The prosecution has led no evidence in this regard. PW-11 Laxmi Narayan was asked this question in the searching cross-examination of which he replied in the following words:- “परबयन ल त समय सतर न यह नह बतय क वह सलस  गल ह स ल र आई|” 16. Thereafter also, the Investigating Officer did not investigate in this respect. Hence, the prosecution is found to have utterly 8 failed to prove as to from where these sulphos tablets did come in the possession of the appellant. Rather, it is also not proved that these sulphos tablets were ever in the possession of the appellant. 17. Third, most crucial point springing for consideration is as to whether the appellant had an opportunity to administer the poison in question to the deceased? The searching cross- examination of PW-11 Laxmi Narayan reveals that the remains of vomits were found on the site, the appellant Santra and her two daughters were also lying at one place and one or two left over loaves were also lying in the house of Santra but they were not collected by him. In the case of Sridhar vs. Emporer, 7 Bom.L.R. 640, it was held that : “In a case of murder by poisoning there should be evidence of identification of every article i.e. suspected to done any poison. The evidence should be complete as to the history of such articles, and it should be shown that they were kept in proper custody through out if they are to be reliable on and supporting a conviction and there should be no possibility of any question being raised as to the identity of any such article.” 18. In the instant appeal, the conduct of Investigating Officer PW-11 Laxmi Narayan was highly deplorable and condemnable. He very rashly and negligently inspected the site. When it had emerged from the parchabayan Ex.P/13 of appellant Santra that she mixed the crushed sulphos powder in the flour and having cooked the loaves gave them to her daughters to eat then it was the bounden duty of the Investigating Officer to collect the pieces of loaf and the remains of vomit from the spot for chemical examination, but the Investigating Officer did not endeavor to discharge his pious 9 duty of investigation. The presence of Aluminium Phosphide in the viscera and Gastric Lavage only evinces the cause of death, but it is not proved that Aluminium Phosphide was found in the loaves or in the remains of vomit which resulted from eating loaves. There is no evidence to prove that the crushed sulphos tablets were mixed in the flour and the appellant cooked the bread or loaves and further she gave these Roties to her daughters to eat. It is the parchabayan Ex.P/13 of the appellant which moved the prosecution to conceive and construct a case that the appellant had mixed up the crushed sulphos powder in the flour, she cooked the loaves and gave them to her daughters to eat on account of which her two daughters died. 19. Albeit, the learned trial court has very categorically, at many places observed that the parchabayan or the statement of appellant Santra Ex.P/13 is not admissible in evidence in the light of judgments rendered in the cases of State of Rajasthan vs. Shiv Singh, AIR 1962 (Raj.) 3 and Ramesh vs. State of Rajasthan 1999 (1) RCC 397 by this Court, yet in contra it relied upon this part of the statement that she was being tortured and beaten by her husband and on account of being fed up and distressed by the torturous behaviour of her husband, she mixed up the crushed sulphos tablets in loaves and gave them to her daughters to eat. In the concluding part of the impugned judgment, the learned trial court arrived at the finding of conviction of the appellant resting upon circumstantial evidence but no incriminating circumstance has been discussed. 20. In a case of circumstantial evidence, it is very settled principle of criminal jurisprudence that “circumstantial evidence must 10 be consistent and consistent only with the guilt of the accused and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit”. It has been repeatedly laid down by the Supreme Court of India and by the other High Courts in many cases that a conviction can safely be based on circumstantial evidence, provided the circumstances relied upon by the prosecution are established beyond doubt that the incriminative facts are such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accused's guilt. The prosecution has not succeeded even in forming a chain of circumstances what to talk of completing the chain. In the case of Gambir Vs. State of Maharashtra, AIR 1982 SCC 1157 it was held that the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Though, in the instant appeal the ocular evidence is totally wanting and the prosecution case merely rests upon circumstantial evidence but the Investigating Officer has not endeavoured to collect any evidence in this regard. The Investigating Officer has callously investigated the case which appears to be not free from taint. Duty is cast upon the prosecution to prove the guilt of the accused beyond reasonable doubt. But where the investigation itself is found to be tainted, the task of the Court to shift the evidence becomes most difficult. 21. Before drawing the inferential conclusion, we would like to clarify the legal 11 position of parchabayan Ex.P/13 recorded by the S.H.O., police station Pragpura. The parchabayan of appellant does not fall within the category of a confession as it has not been recorded by any Magistrate. It is not also an extra-judicial confession as it was recorded by the police officer. Section 25 of Indian Evidence Act contemplates that no confession made to a police officer shall be proved as against the person accused of any offence. It is true that on July 23, 2002 the appellant Santra was not made an accused by the police in this case. She was, in fact, arrested by police on August 12, 2002. Now, the question arises as to whether the confessional statement given by person other than the accused before the police officer is admissible in evidence and as to whether it is hit by Section 25 of Evidence Act. Section 26 of the Evidence Act envisages: “No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” 22. From the searching cross-examination of PW-11 Laxmi Narayan, it is noticed that at the time of recording parchabayan Ex.P/13, S.D.M. was present in the hospital, but neither the S.H.O. Pragpura obtained the signatures of S.D.M. on the parchabayan Ex.P/13 of Santra nor he has been produced in evidence. To make the statement of the appellant more authentic and genuine, parchabayan could be recorded by the S.D.M. himself also. On asked this question, PW- 11 Laxmi Narayan deposed that he did not know as to whether any statement of the appellant was recorded by S.D.M. or not. In the case of Aghnu Nagesia vs. State of Bihar AIR 1966 SC 119 it has been observed by the Hon'ble Apex Court that: 12 “If the First Information Report was given by the accused to a police officer and amounts to confessional statement, proof of the confession was prohibited by Section 25 of the Evidence Act.” 23. Having scanned the relevant material, it is also found that the appellant Mst. Santra was brought in the hospital in an unconscious state. While, as per PW-2 Dr. Pramod Singh, she was in a semi-conscious state and not in a condition to speak at 11 pm, then the most crucial question arises as to how could she be conscious at 9.15 pm and further what made Dr. Suman Yadav to record at the foot of parchabayan that the appellant gave her statement without any pressure. Thus, the parchabayan seems to be shrouded in mystery. The contents of Ex.P/13 were also not put to accused under Section 313 of Cr.P.C. and no explanation was sought from her. Thus, under no circumstance, the inadmissible confessional statement i.e. parchabayan Ex.P/13 could become the basis of conviction of the accused-appellant. 24. The learned trial court has failed to properly appreciate the legal position of parchabayan Ex.P/13 and in utter confusion, he arrived at an erroneous finding of conviction of the appellant on the basis of parchabayan Ex.P/13 only, whereas, he himself had observed in the impugned judgment that in view of the decisions rendered in the Ramesh vs. State of Rajasthan and State of Rajasthan vs. Shiv Singh (supra) the confessional statement of the appellant was not admissible in evidence. The finding of the conviction arrived at by the learned trial court is based on the surmises and conjunctures. The finding seems to be totally perverse. The prosecution has miserably failed to establish the guilt against the appellant. In overall view of the above discussion, the impugned judgment cannot be sustained and it deserves to be set aside. 13 25. For these reasons, we allow the appeal and set aside the finding of conviction and sentence arrived at by learned Additional Sessions Judge, Kotputali, Distt. Jaipur in the impugned judgment dated August 27, 2003. We acquit appellant Santra of the charges under Sections 302 and 309 of Indian Penal Code. Appellant Santra who is in jail shall be set at liberty forthwith if she is not required to be detained in any other case. (MAHESH BHAGWATI), J. (SHIV KUMAR SHARMA),J. Mak/-