Himachal Pradesh High Court
Unpa vs State Of H.P on 11 March, 2016
Bench: Rajiv Sharma, P.S.Rana
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 382 of 2014
Reserved on: March 08, 2016.
.
Decided on: March 11, 2016.
Unpa ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice P.S.Rana, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: M/S Anup Chitkara, N.S.Chandel and Dinesh Thakur,
Advocates.
For the respondent: Mr. Kush Sharma Dy. AG with Mr. J.S.Guleria, Asstt.
rt AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 8.7.2014, rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Distt. Shimla, H.P. in Sessions Trial No. 0100032/2012, whereby the appellant-accused (hereinafter referred to as accused), who was charged with and tried for offences punishable under Sections 302 & 309 IPC, has been convicted and sentenced to imprisonment for life and fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for three months under Section 302 IPC. She was also convicted and sentenced to undergo simple imprisonment for one year for the offence punishable under Section 309 IPC and fine of Rs. 1000/-. In default of payment of fine she was further sentenced to undergo simple imprisonment for a period of one month.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 22. The case of the prosecution, in a nut shell, is that Smt. Shiksha was residing in the backyard of the house of in-laws of .
accused. She was attending to the daily chores. On 22.6.2012, Raju, a Nepali labourer, came rushing and on inquiring about her husband Sh.
Naresh Mukhiyan informed her that something unusual had happened.
She heard cries and commotion emanating from a nearby house. She of also left her work and ran towards the house of Navjeet, the husband of accused. On reaching she found Unpa accused unconscious and vomiting. Anil Dharma, a relative of the family was taking her towards rt road by lifting. On his asking for help, Smt. Shiksha and Anil Dharma ferried the accused upto vehicle HP-06A-2557 and made her to sit in it.
During this period, Smt. Shiksha was told by Anil Dharma that accused had taken fungicide and also administered it to Gudiya Smt. Narvada and Prem Shyam were already sitting in the said vehicle and besides them Gudiya wrapped in a cloth, was in the lap of Smt. Narvada. She was also unconscious. They were being taken to CHC Kotgarh, for treatment in the vehicle driven by Sh. Anil Dharma. Sh.
Anil Dharma was driving the vehicle fast under mental stress. When the vehicle reached Majehwati nullah, it went off the road and fell into a deep gorge. Sh. Anil Dharma died on the spot and other occupants received injuries. It was also noticed at that time that Gudiya also died. The injured were shifted to CHC Kotgarh and from there they were shifted to IGMC Shimla. The statement of Smt. Shiksha was ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 3 recorded under Section 154 Cr.P.C. FIR was registered with Police Station Kumarsain. On completion of the investigation, challan was .
put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 14 witnesses. The accused was also examined under Section 313 Cr.P.C. She admitted that she is resident of Jarol and of houses of Smt. Shiksha and Narvada are situated nearby her house.
She has also admitted that on 22.6.2012, at about 9:15 AM, she was vomiting and on seeing that Prem Shyam loudly made a call to Smt. rt Narvada and asked her to come to her house. She took the poisonous substance under the impression that it was a cough syrup since there were many bottles with similar appearance in their house. She mistakenly consumed that substance as a cough syrup. The child was on breast feeding and she was also vomiting on the bed. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Anup Chitkara, Advocate has vehemently argued that the prosecution has failed to prove the case against the accused beyond reasonable doubt. On the other hand, Mr. Kush Sharma Dy. AG and Mr. J.S.Guleria, Asstt. AG for the State have supported the judgment of the learned trial Court dated 8.7.2014.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 46. PW-1 Prem Shyam deposed that on 24.6.2012, he visited the house of accused to express condolences on the death of child of .
accused. He had alongwith member of Panchayat handed over ex-
gratia grant to the accused for a sum of Rs. 10,000/-. The police officials were already present there. The police officials told them that they have taken in possession the mat on which the accused had of vomited. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that the police officials in their presence took in possession the mat by cutting the same and put rt in the parcel. He denied the suggestion that the police officials sealed the parcel with seals of seal impression "O" in their presence. He admitted that the samples of seal were prepared by the police in their presence. He signed Ext. PW-1/A. The seal after use was handed over to Const. Roshan Lal. He admitted that the mat was taken into possession by the police vide recovery memo Ext. PW-1/B. He also signed the same. The accused is not related to him. In his further cross-examination by the learned defence counsel he deposed that the accused was not present on the spot when the police visited the village on 24.6.2012. According to him, the mother-in-law of accused was present in the house at that time, however, husband, sister-in-law and husband of sister-in-law were not present.
7. PW-2 Dayal Shyam deposed that he was called to the spot by the police. The police had already wrapped the cap of the bottle of ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 5 fungicide with a piece of cloth. The words "Shield" was inscribed on the fungicide bottle. The accused did not hand over the bottle of fungicide .
in his presence to the police. Volunteered that she was not in the house on that day. He was also declared hostile and cross-examined by the learned Public Prosecutor. He did not know with what seal impression the bottle was sealed. The police had not recorded his statement at the of spot. He denied that accused handed over the bottle of fungicide containing copper sulphate to the police in his presence. He also denied that accused told the police in his presence that she consumed rt fungicide containing the bottle. He denied that the bottle was sealed with seal impression "H" in his presence. He admitted his signatures on Ext. PW-2/A. He admitted that the fungicide bottle was taken into possession by the police vide recovery memo Ext. PW-2/B. He signed the same. In his cross-examination by the learned defence counsel he deposed that he has not seen any other person signing the document Ext. PW-2/B and perhaps it has been signed by the police officials. The fungicide bottle was in the hand of police constable and its cap had been duly sealed by the police. His signatures were obtained by the police after second and third day of the incident.
8. PW-3 Dr. Piyush Kapila has conducted the post mortem examination on the deceased. He noticed multiple injuries over the body of the deceased in the shape of contusions and one laceration on the scalp. There was fracture of right brital bone. A whitish fluid was ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 6 present in the stomach with peculiar smell. Viscera was collected and was sent for chemical examination. He was of the opinion that the .
deceased died as a result of ante mortem poisoning. He issued final opinion Ext. PW-3/F. In his cross-examination he deposed that copper sulphate is not that potent poison. He admitted that it could not be opined as to whether the deceased was administered or taken by the of deceased. Volunteered that the victim being a child of six months could not have taken it accidently. He admitted that there may be a chance that a child who has access to poison which is left behind by rt the parents carelessly could be taken by the child. He admitted the suggestion that a child could have survived with timely medical aid. He also admitted that he has not given any opinion regarding the time of intake of poison and time of death. He had opined the probable time that might have elapsed between death and post mortem as around 24 hours and in the same column he had not mentioned the probable time which might have elapsed between injury and death. He admitted that there was no sign of forcible administration of poison. Whitish fluid in stomach could also suggest that breast feed could have been administered to the child.
9. PW-6 Smt. Shiksha Devi deposed that on 22.6.2012 at about 9:15 AM, she was in her house when Raju Gorkha came to her house and asked about her husband. He told that something had happened in the house of Navjeet of their village. Her husband had ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 7 gone for hair cut as such she went to the house of Navjeet. On reaching there, she saw Unpa accused vomiting. The husband of her .
sister-in-law (Nanad), namely, Anil Dharma was also present there. He requested her to help them and engage vehicle. After engaging vehicle accused was put in that vehicle and she accompanied her to Kotgarh hospital. Anil Dharma disclosed her that accused had consumed of poison and she had to be taken to hospital. The daughter of accused was also there in the vehicle wrapped in a blanket. The vehicle was driven by Anil Dharma. When the vehicle reached at Majhoti Nullah, rt the vehicle went off the road and fell into a gorge. The daughter of accused also died in the accident. Her statement was also recorded by the police vide Ext. PW-6/A. In her cross-examination, she admitted that the name of the father of Sh. Prem Shyam is Keshav Ram. She reached the house of accused. The child was in the lap of Narvada.
She did not check the child whether she was alive or dead. Before that day, she did not see any sort of quarrel in the house of accused. The accused was taking due care of her child. Anil Dharma did not tell her that the accused had taken poison and also administered the same to her child. After this incident, she never had a talk with mother-in-law and husband of accused.
10. PW-7 Dr. Mahesh Kumar deposed that on 22.6.2012, Unpa wife of Navjeet was produced by the police for medical examination vide docket Ext. PW-7/A with history of consuming poison and being ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 8 injured on roadside accident. The gastric lavage was done and sample was preserved after due sealing. I/V fluids were given. The sample of .
vomit was also preserved after due sealing and parcels were given with sample seal to the accompanying police for analysis with docket. The patient was referred to IGMC for further treatment. On receipt of the FSL report, traces of copper sulphate were detected in the samples of of the parcels. He gave final opinion vide Ext. PW-7/B. In his cross-
examination, he admitted that it was quite possible that the patient might have taken the poison accidently under mistake of fact rt considering it as a medicine. He further deposed that the gastric lavage was stored in a sterile bottle. The sample of vomit was not preserved.
No specific seal was used in sealing the samples.
11. PW-8 Smt. Narvada deposed that on 22.6.2012 at about 9:15 AM, she was in her house when Prem Shyam loudly made a call and asked her to come to house of Unpa accused. When she reached their house, the accused was vomiting. She went inside the room and lifted the daughter of the accused who appeared to her to be sleeping.
The daughter was wrapped in a blanket at that time. They brought the accused in a vehicle of Anil Dharma to Kotgarh hospital. She lifted the daughter of the accused and sat in the vehicle. However, when the vehicle reached Majhoti Nullah, it went off the road and fell into a gorge. She also became unconscious and later on came to know that Anil Dharma died in the accident. In her cross-examination, she ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 9 deposed that when she reached the house of the accused, Prem Shyam son of Keshav Ram was already there. He was the first person who .
reached the house of the accused. The child of the accused was on the bed in a room and she took her from there. There was little movement in the hands and feet of the child. She did not come to know any circumstance that poison was forcibly administered to the child. She of was not visiting the house of the accused frequently prior to this incident. She did not come to know about the circumstances which led to this incident. Prior to this incident, the accused behaved normally rt whenever she met her. The accused did not communicate with her from the movement when she was taken from her house in a vehicle till the accident happened. None told her that poison was taken accidently.
12. PW-9 HHC Roshan Lal deposed that the I.O. took into possession a piece of room mattress, which was placed on the room and on which the accused had allegedly vomited. It was cut from the mattress, parceled up, sealed with seal 'O" and taken into possession vide memo Ext. PW-1/B. In his cross-examination, he admitted that when the piece of mat was taken into possession the accused was not present at that time.
13. PW-10 Const. Sat Pal deposed that on 5.7.2012, Unpa accused gave to the I.O. one bottle of fungicide having some substance in it and told that she had consumed it on the date of occurrence. The ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 10 bottle was packed in a cloth parcel, sealed with seal of "H" and taken into possession vide memo Ext. PW-2/B. It was signed by him .
alongwith Dayal Shyam and accused. In his cross-examination, he deposed that accused went inside the room and brought the bottle and handed over to the I.O. in his presence. They were standing in the verandah just outside the room. The accused did not tell that she had of accidently taken the fungicide. The piece of mattress was not taken by the I.O. from the room in her presence on that day.
14. PW-14 SI Rattan Chand deposed that on 24.6.2012, he was rt involved in the investigation of the accident case near Jarol falling within their jurisdiction. HC Ram Sain and Const. Jogeshwar Singh were also with them. HC Ram Sain and Const. Roshan Lal already had gone to IGMC for getting autopsy done on the body of Gudia aged six months. They met him at Jarol and handed over autopsy report Ext.
PW-3/D of Gudia wherein the medical officer had reported the cause of death of Gudia because of ante mortem poisoning. The statement of Smt. Shiksha Devi wife of Naresh was recorded under Section 154 Cr.P.C. He prepared site plan Ext. PW-14/A. He got into possession the piece of mattress in the presence of Prem Shyam and Constable Roshan Lal vide memo Ext. PW-1/B. The accused was arrested on 24.7.2012. The bottle of fungicide was given by accused to her on 5.7.2012 after taking it out from store of her house. In his cross-
examination, he admitted that no person had seen the accused taking ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 11 poison or administering it to Gudia. It has come in the investigation that in the house of accused, her mother-in-law and husband used to .
reside with her. Volunteered that on that day, her husband and mother-in-law had gone in the morning to Theog for check up. Their statements were recorded under Section 161 Cr.P.C. Raju Nepali had left that area after the incident and he was not traceable during of investigation. Raju Nepali was the first person who disclosed the incident to Shiksha Devi and others. Shiksha Devi had told that she was informed by Raju Nepali that something wrong had happened in rt the house of accused and he specifically did not disclose that it was a case of poisoning. Anil Dharma probably came to know that it was a case of poisoning because the accused was vomiting. It has not come in the investigation that the relations of accused with her husband and in laws were bad. He has categorically admitted that in the application Ext. PW-14/E and inquest Ext. PW-3/B, the cause of death of Gudia was mentioned as accident. Volunteered that the investigation was at the very initial stage at that time. He could not say whether there were signs of forcible administering of poison to the child on her body. It did not come in his investigation as to how poison was administered to the child.
15. PW-6 Smt. Shiksha Devi deposed that on 22.6.2012 at about 9:15 AM, she was in her house when Raju Gorkha came to her house and asked about her husband. He told that something had ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 12 happened in the house of Navjeet of their village. Her husband had gone for hair cut as such she went to the house of Navjeet. On .
reaching there, she saw Unpa accused vomiting. The husband of her sister-in-law (Nanad), namely, Anil Dharma was also present there. He requested her to help them and engage vehicle. Anil Dharma disclosed her that accused had consumed poison and she had to be taken to of Kotgarh hospital. The police has not examined Raju Gorkha. The police has also not made any efforts even to trace out Raju who had called Shiksha Devi PW-6 on 22.6.2012. According to PW-14 SI Rattan rt Chand, Raju Nepali had left that area after the incident and he was not traceable during investigation. Raju Nepali was the first person who disclosed the incident to Shiksha Devi and others. He was the material witness.
16. PW-6 Smt. Shiksha Devi also deposed that when she reached the house of accused Prem Shyam was already there. The name of the father of Sh. Prem Shyam is Keshav Ram. Prem Shyam has appeared as PW-1. He has not stated that he was present in the house of accused on 22.6.2012 as stated by PW-6 Smt. Shiksha Devi in her cross-examination. PW-1 Prem Shyam has only deposed while appearing as PW-1 that on 24.6.2012, he visited the house of accused to express condolences on the death of child of accused. He had alongwith member of Panchayat handed over ex-gratia grant to the accused for a sum of Rs. 10,000/-.
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 1317. PW-8 Smt. Narvada deposed that on 22.6.2012 at about 9:15 AM, she was in her house when Prem Shyam loudly made a call .
and asked her to come to house of Unpa accused. When she reached their house, the accused was vomiting. She went inside the room and lifted the daughter of the accused who appeared to her to be sleeping.
In her cross-examination, she deposed that when she reached the of house of the accused, Prem Shyam son of Keshav Ram was already there. Thus, he was the first person who reached the house of the accused. The statement of Prem Shyam was recorded under Section rt 161 Cr.P.C. on 24.6.2012. In case he was present on the spot as per PW-6 Smt. Shiksha Devi and PW-8 Smt. Narvada on 22.6.2012, his statement ought to have been recorded under Section 161 Cr.P.C. to this effect.
18. The recovery of mat on which the accused has vomited is also doubtful. PW-1 Prem Shyam, in his examination-in-chief has deposed that the police officials told them that they took in possession the mat on which the accused had vomited. The mat had already been put in parcel. Thus, he had no occasion to see the same. PW-9 HHC Roshan Lal deposed that I.O. took into possession a piece of room mattress, which was placed on the room and on which the accused had allegedly vomited. It was taken into possession vide memo Ext. PW-
1/B. He also admitted that the accused was not present at that time.
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 1419. Now, the Court will advert to the manner in which the bottle of fungicide was taken into possession by the prosecution. PW-2 .
Dayal Shyam deposed that he was called to the spot by the police. The police had already wrapped the cap of the bottle of fungicide with a piece of cloth. The words "Shield" was inscribed on the fungicide bottle.
The accused did not hand over the bottle of fungicide in his presence to of the police. Volunteered that she was not in the house on that day. PW-
10 Const. Sat Pal deposed that on 5.7.2012 Unpa, accused gave to the I.O. one bottle of fungicide having some substance in it and told that rt she had consumed it on the date of occurrence. The date of incident is 22.6.2012 but the bottle of fungicide has been recovered only on 5.7.2012. The delay between 22.6.2012 to 5.7.2012 has not been explained. According to PW-2 Dayal Shyam, the accused did not hand over the bottle of fungicide in his presence rather he stated that she was not present in the house on that day. It casts doubt on the version of the prosecution, the manner in which the bottle of fungicide was recovered.
20. The case of the prosecution is based on the circumstantial evidence. It is settled law that in order to prove the case based on circumstantial evidence, the chain of events must be complete and these must point exclusively towards the guilt of the accused. In cases based on circumstantial evidence, motive also plays an important role.
No motive, whatsoever, has been attributed by the prosecution as to ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 15 why the accused had administered poison to the child. It has come on record that the relations between the family members were cordial. If .
the relations were cordial, what prompted the accused, the young girl to consume poison and administer it to the child has not been explained by the prosecution. No person has seen the accused administering the poison to her child.
of
21. According to the prosecution, Raju Nepali and PW-1 Prem Shyam were the first who were present on the spot as deposed by PW-6 Smt. Shiksha. Raju Nepali has not been examined. PW-1 Prem Shyam rt though was the first person to be present on the spot, as noticed by PW-6 Smt. Shiksha, has not deposed anything about his presence on 22.6.2012.
22. Their lordships of the Hon'ble Supreme Court in the case of Dandu Jaggaraju vrs. State of Andhra Pradesh, reported in (2011) 14 SCC 674, have held that in a case relating to circumstantial evidence, motive is often a very strong circumstance which has to be proved by the prosecution. It is this circumstance which often forms the fulcrum of prosecution story. It has been held as follows:
"9. It has to be noticed that the marriage between P.W. 1 and the deceased had been performed in the year 1996 and that it is the case of the prosecution that an earlier attempt to hurt the deceased had been made and a report to that effect had been lodged by the complainant. There is, however, no documentary evidence to that effect. We, therefore, find it somewhat strange that the family of the deceased had accepted the marriage for about six years more particularly, as even a child had been born to the couple. In this view of the matter, the motive is clearly suspect. In a case relating to circumstantial evidence, motive is ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 16 often a very strong circumstance which has to be proved by the prosecution and it is this circumstance which often forms the fulcrum of the prosecution story."
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23. Their lordships of the Hon'ble Supreme Court in the case of Sathya Narayan vrs. State rep. by Inspector of Police, reported in (2012) 12 SCC 627, have held that in the case of circumstantial evidence, motive also assumes significance since absence of motive of would put Court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omissions or conjectures do not take place of proof. It has been held as follows:
rt "42) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust."
24. Their lordships of the Hon'ble Supreme Court in the case of Majenderan Langeswaran vrs. State (NCT of Delhi) and another, reported in (2013) 7 SCC 192, have held that onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court and all the circumstances must lead to the conclusion that accused is the only one who has committed crime and none else. It has been held as follows:
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 17"3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he .
reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood- stained knife in his hand and his of hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. rt 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996.
16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 18
17. In the case of Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343, this Court observed as under:
.
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable of ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ...."
18. In the case of Padala Veera Reddy vs. State of A.P., 1989 Supp rt (2) SCC 706, this Court opined as under:
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351)"
19. In the case of C. Chenga Reddy & Ors. vs. State of A.P., (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 19 complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent .
with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
20. In the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:
of "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of rt the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v.
State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603)."
21. In the case of Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210, this Court held as under:
"10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances." This Court further observed in the aforesaid decision that:
"17. At this stage, we also deem it proper to observe that in exercise of power underArticle 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court--Bharat v. State of ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 20 M.P., (2003) 3 SCC 106. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable .
conclusion that the appellant had committed the crime."
22. In the case of State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and of have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath vs. State of rt Karnataka, (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under:
"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 21 decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not .
mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be of called into aid only to lend assurance to the court."
24. In the case of Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37, while dealing with the case based on circumstantial evidence, this Court observed as under:
rt "12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime.
13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."
25. Last but not least, in the case of Brajendrasingh vs. State of M.P., (2012) 4 SCC 289, this Court while reiterating the above principles further added that:
"28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 22 events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be .
kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v. State of Maharashtra, (2008) 15 SCC 269)"
26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on of circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else."
rt
25. Their lordships of the Hon'ble Supreme Court in the case of Rishipal vrs. State of Uttarakhand, reported in (2013) 12 SCC 551, have held that motive does not have a major role to play in cases based on eye witnesses account of incident but it assumes importance in cases that rest entirely on circumstantial evidence. Their lordships have further held that circumstances sought to be proved against accused be established beyond reasonable doubt, but also that such circumstances form so complete a chain, as leaves no option for court, except to hold that accused is guilty of offences with which he is charged. It has been held as follows:
"15. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him. That argument has not impressed us. If the motive behind the alleged murder was to ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 23 somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was .
driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-. The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed. Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time of the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See rt Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.
19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased- Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered."::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 24
26. PW-7 Dr. Mahesh Kumar in his examination-in-chief has deposed that the vomit was also preserved after due sealing and parcels .
were given with sample seal to the accompanying police for analysis with docket. In his cross -examination, he admitted that vomits were not preserved. No specific seal was used in sealing the samples. The gastric lavage was done and sample was preserved after due sealing. It of was quite possible that the patient might have taken the poison accidently under mistake of fact considering it as a medicine.
27. PW-3 Dr. Piyush Kapila has conducted the post mortem rt examination on the deceased. According to him, copper sulphate is not that potent poison. He has not given any opinion regarding the time of intake of poison and the time of death. It was vital for PW-3 Dr. Piyush Kapila to give proximate time of intake of poison and time of death, though he has given probable time that might have elapsed between death and post mortem as around 24 hours. He has also admitted that there could be chances that a child who has access to poison which is left behind by the parents carelessly could be taken by the child. He admitted that there was no sign of forcible administration of poison.
Whitish fluid in stomach could also suggest that breast feed could have been administered to the child. PW-14 SI Rattan Chand has also admitted in his cross-examination that no person had seen the accused taking poison or administering it to Gudia. He has categorically admitted that in the application Ext. PW-14/E and inquest Ext. PW-
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 253/B, the cause of death of Gudia was mentioned as accident. It has not come in his investigation as to how poison was administered to the .
child.
28. The post mortem report is Ext. PW-3/D. The final opinion given by Dr. Piyush Kapila is that the deceased died as a result of ante mortem poisoning. Their lordships of the Hon'ble Supreme Court in of the case of Jaipal vs. State of Haryana, (2003) 1 SCC 169 have held that phosphine released from zinc phosphide (rat poison) and from aluminium phosphide, is mainly used as fumigant to control insects rt and rodents in food grains and fields. Aluminium phosphide is available in the form of chalky-white tablets and when the same are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphine gas (PH3). Their Lordships have further held that if only the tablet given by the accused to the deceased was celphos it is not likely that the deceased would have consumed it inasmuch as the pungent smell of celphos would have alerted P and S and certainly the deceased would not have consumed the tablet. Their Lordships have held as under:
"[15] Dr. Sharma's opinion, as expressed during his deposition, has authoritative support. Modi in Medical Jurisprudence and Toxicology (Twenty-Second Edition) states (at pp. 197-198) that aluminium phosphide (celphos) is used as a fumigant to control insects and rodents in food grains and fields. In reported cases of poisoning, symptoms which have been found are burning pain in ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 26 the mouth, throat and stomach, vomiting mixed with blood, dyspnoea, rapid pulse, subnormal temperature, loss of co-
.
ordination, convulsions of a clonic nature and death.In the solid form, it acts as corrosive in the mouth and throat as it precipitates proteins. In post-mortem appearance, the tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety.The intestines are inflamed.
[16] According to Modi symptoms and signs of poisoning by of aluminium phosphide are similar to poisoning by zinc phosphide (p. 197, ibid). The chief symptoms after the administration of zinc phosphide are a vacant look, frequent vomiting with retching, tremors and drowsiness followed by respiratory distress at death. - rt inc phosphide acts as a slow poison and is decomposed by hydrochloric acid in the stomach with the liberation of phosphine which acts as a respiratory poison. Being a very fine powder zinc phosphide adheres firmly to the crypts in the mucous membrane of the stomach, and a very small quantity only in the stomach even after vomiting is sufficient to cause death by slow absorption. [17] Phosphine released from zinc phosphide (rat poison) and from aluminium phosphide, is mainly used as a fumigant to control insects and rodents in food grains and fields. Liberated from the metal phosphide by the action of water or acids, gaseous phosphine exerts more potent pesticidal action, for it penetrates to all areas otherwise inaccessible for pesticide application. Pathological findings from phosphine inhalation are pulmonary hyperemia and oedema. It causes both fatty degeneration and necrosis of liver. (p. 174, ibid) [19] We may briefly sum up the opinion of the learned authors from their published paper. Phosphine gas (active ingredient of ALP) causes sudden cardiovascular collapse; most patients die of shock, cardiac arrhythmias, acidosis and Adult Respiratory Distress Syndrome (ARDS). Aluminium phosphide is available in the form of chalky white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 27 chemical reaction takes place liberating phsophene gas (PH3) which is the active ingredient of ALP. This gas is highly toxic and .
effectively kills all insects and thus preverves the stored grains.
When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and within minutes phosphine gas dissipates and spreads into the whole body. The gas is highly toxic and damages almost every organ but maximal damage is caused to heart and lungs. Sudden cardiovascular collapse is the hallmark of acute poisoning. Patients of come with fast thready or impalpable arterial pulses, unrecordable or low blood pressure and icy cold skin. Somehow these patients remain conscious till the end and continue to pass urine despite unrecorded blood pressure. Vomiting is a prominent feature rt associated with epigastric burning sensation. The patients will be smelling foul (garlic like) from their breath and vomits. Many of them will die within a few hours. Those who survive for some time will show elevated juglar venous pressure, may develop tender hepatomegaly and still later Adult Respiratory Distress Syndrome (ARDS), renal shut down and in a very few cases toxic hepatic jaundice. The active ingredient of ALP is phosphine gas which causes extensive tissue damage. A spot clinical diagnosis is possible in majority of cases of ALP poisoning. However, ALP on account of its very pungent smell (which can drive out all inmates from house if left open) cannot be taken accidentally.
[23] Thus on the state of the evidence as it exists we cannot conclude positively that aluminium phosphide (celphos) was administered to the deceased. This finding has also to be read in the light of very pertinent statement made by Smt. Beena. According to her while the accused and the deceased were busy talking in the inner room, the witness was sitting just outside in the outer room. When she entered in the inner room Prakash Devi complained of feeling uneasy. She never stated that she was administered anything by the accused or anything given by the accused was consumed by the deceased or that anything which the deceased was made to consume by the accused was the cause of ::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 28 her feeling of uneasiness. On the contrary it was in the presence of the witness Smt. Beena that the accused offered to give the .
deceased a tablet which could remove the feeling of uneasiness.
Such tablet according to Smt. Beena was of two colours; its half portion was blue and half portion was white. Such could not have been the colour of celphos tablet. If only the tablet given by the accused to the deceased was celphos it is not likely that the deceased would have consumed it inasmuch as the pungent smell of celphos would have alerted Prakash Devi and Smt. Beena and of certainly the deceased would not have consumed the tablet. It also sounds unnatural, and therefore, doubtful, if the accused would administer any poisonous tablet to the deceased by calling her to his house and at a point of time either when Smt. Beena was sitting rt just outside the room or when she was present inside the room. The presence of smell in the room, if any celphos tablet had remained in open there would not have escaped the attention of Smt. Beena. But she does not depose to the presence of any smell in the room having been felt by her."
29. Modi in a Textbook of Medical Jurisprudence and Toxicology (24th Edition) 2011, has mentioned that the changes produced by irritant and corrosive poisons in the digestive tract, especially the stomach are:
(a) Hyperaemia;
(b) Softening;
(c) Ulceration of the mucous membrane; and
(d) Perforation.
30. Dr. Piyush Kapila, PW-3 in his post mortem report has not stated about these changes which were bound to take place due to poison except that whitish fluid was present in the stomach with peculiar smell.
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 2931. It has come on record that the accused was living with husband and mother-in-law. Neither mother-in-law of accused nor her .
husband have been examined. They were material witnesses. Their statements have also not been recorded as per the version of PW-14 SI Rattan Chand under Section 161 Cr.P.C. The explanation given by the I.O. PW-14 SI Rattan Chand for not recording the statements of of mother-in-law and husband of the accused is that they had gone to Theog for check up. There is no medical prescription placed on record that the husband and mother-in-law of accused had gone to Theog for rt medical check up.
32. Suicide literally means the deliberate termination of one's own physical existence. Suicide ( Felo de se) is where a man of age of discretion and compos mentis voluntarily kills himself/herself. In order to bring home an offence under Section 309 IPC, the prosecution is required to prove that the accused did some act which amounts to attempt and that the attempt was directed towards the commission of suicide and his attempt did not succeed. There was no reason for the accused to commit suicide since the relations between her husband and in-laws with her were cordial.
31. The prosecution has failed to prove the motive attributed to the accused person. The chain of events is incomplete. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt.
::: Downloaded on - 15/04/2017 19:53:49 :::HCHP 3032. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment and order of conviction .
and sentence dated 8.7.2014, rendered by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Distt. Shimla, H.P., in Sessions trial No. 0100032/2012, is set aside. Accused is acquitted of the charges framed against her. Fine amount, if any, already of deposited by the accused is ordered to be refunded to her. Since the accused is in jail, she be released forthwith, if not required in any other case. rt
33. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
March 11, 2016, ( P.S. Rana),
(karan) Judge.
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