Rajasthan High Court - Jodhpur
State vs Reshma on 22 May, 2018
Equivalent citations: AIRONLINE 2018 RAJ 507
Author: Virendra Kumar Mathur
Bench: Sangeet Lodha, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 525 / 2006
State of Rajasthan
----Appellant
Versus
Reshma D/o Sabremhussain w/o Yasin Khan, by caste Musalman,
r/o Chak 1-MM, W.M. Rohi, Loonkhan, PS Chhatargarh, District
BIKANER
----Respondent
_____________________________________________________
For Appellant(s) : Mr Vishnu Kachhwaha, Public Prosecutor
For Respondent(s) : Mr Vineet Jain
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment Per Justice Virendra Kumar Mathur Date of pronouncement: (22) /05/2018 This Criminal Appeal has been filed against judgment & order dated 25.11.2005 passed by Additional Sessions Judge (Fast Track) No.2, Bikaner in Sessions Case No.105/2004, whereby he acquitted the accused from the charge for offence under secs.302, 307 in the alternative sec.328 IPC.
Briefly stated, facts of the case are that on 05.09.2004 complainant Sameer Khan lodged a written report at Police Station Chhatargarh to this effect that he resides with his family in 'dhani' of his field. On 26.08.2004 his daughter-in-law Reshma prepared meal- Sangriya-ki-sabji and Roti and after taking meal, all of them felt uneasy. However, in the night also she prepared Dal and Roti. After eating this meal in the night, all of them started vomiting. At midnight, Murad Khan died and then they doubted that the (2 of 16) [CRLA-525/2006] preparation of food made by Reshma was poisonous. All of them went to hospital at Chhatargarh, where his wife Jeba and son Liyaqat also passed away. Thereafter, remaining persons were referred to Bikaner. During the course of treatment at Bikaner, Sammu Khan also died on 29/30.08.2004. On 30.08.2004, Om Prakash & Gome Khan came to him and informed that they were told by Reshma that she mixed poison with 'sabji' and Roti.
On this written report, an FIR (No.113/2004) was registered against accused-respondent Reshma for offence under secs.302, 307 IPC and after investigation, challan was filed against her.
The learned trial court after hearing both the parties, framed charges against accused-respondent for offence under secs.302, 307 in the alternative under sec.328 IPC and explained the charges to the accused, who denied the same and sought trial.
After recording prosecution evidence, statement of accused- respondent under sec.313 CrPC were recorded. Dr B.K. Gupta was produced as witness in defence and 8 documents were exhibited by her in defence.
The trial court, after hearing both the parties, acquitted the accused-respondent from the charge levelled against her vide judgment dated 25.11.2005. Being aggrieved by the judgment of acquittal dated 25.11.2005 passed by the trial court, the State of Rajasthan has preferred this appeal on various grounds.
It was contended that the trial court has committed illegality in disbelieving the prosecution witnesses whereas from statement of the prosecution witnesses the guilt of the accused-respondent was well proved and established on record. It was also contended (3 of 16) [CRLA-525/2006] that PW1 Ameena, PW2 Om Prakash, PW3 Gome Khan, PW4 Sameer Khan and PW5 Jalam Singh have clearly stated in their statement that they were told by the accused-respondent Reshma that she mixed poison in Sangri and Dal-Roti and from statement of these prosecution witnesses the guilt of the accused-respondent is well proved and established. The recovery of spray bottle and a coconut oil bottle from a box were also well proved by statement of PW6 Kasam Khan.
It was further contended that the prosecution case is fully corroborated and supported by medical evidence. Prosecution witnesses PW9 Dr O.P. Nahar and PW10 Dr Devendra Choudhary clearly stated in their statements that according to FSL report Ex.P19, cause of death was administering poison, namely Gorgeno-phosphorous insecticide. Thus, the impugned judgment deserves to be set aside.
It was also contended that a bare perusal of impugned judgment passed by the trial court would clearly go to show that while passing the impugned judgment, the trial court has not applied its judicious mind nor has acted judiciously, which resulted in loss of substantial justice and therefore, the impugned judgment is liable to be quashed and set aside.
Per contra, learned counsel appearing for the respondent- accused vehemently opposed the contentions raised by the Public Prosecutor and stated that the accused-respondent in her statement under sec.313 CrPC has categorically stated that on consumption of the food, she also become seriously affected by poison and she was also treated at Chhatargarh hospital and (4 of 16) [CRLA-525/2006] thereafter in PBM Hospital, Bikaner and she was discharged from the hospital in the last. She further stated that Gome Khan on account of enmity, in collusion with Jitendra Singh falsely implicated her. Jitendra Singh, after receiving gratification from Gome Khan has consciously concealed record of her admission in the hospital and concocted false story of her involvement in the commission of said crime. In reality, she does not know Jalam Singh and Om Prakash and on the date of the occurrence, she did not prepare the meal.
In defence, DW1 Dr B.K. Gupta was also examined and in documentary evidence, Police statements of Ameena, Om Prakash, Gome Khan, Sameer Khan, Jalam Singh and Meruna were exhibited as Exhbits D1 to D6 as also outdoor register Ex.D7 and Bed-head ticket of Reshma Ex.D8 were exhibited.
It was also contended that PW10 Dr Devendra Chaudhary in his cross-examination admitted that the accused-respondent Reshma also came to her for treatment. In this connection, record of her treatment Ex.D7 was also placed on record and Ex.D7A is certified copy thereof. Dr Devendra Chaudhary in his statement has categorically stated:
esjs ikl bykt ds fy, vk;s bu yksxksa esa js"kek Hkh Fkh ftldh izfofZ'V izn"kZ Mh-7 esa , ls ch fgLlk esa dh gq;h gS izn"kZ Mh-7 esjh Loa; dh dyeh gSA izn"kZ Mh-7 dh QksVks dkWih izn"kZ Mh-7, gSA From perusal of these documents, it is clear that on 27.08.2004, the accused-respondent Reshma was also admitted in the hospital.
It was also contended that in the present case the FIR was lodged after delay of 6 days. All the witnesses categorically stated (5 of 16) [CRLA-525/2006] that on 30.08.2004 Reshma confessed before them regarding said commission of the crime. If this fact is true, why the FIR was lodged on 05.09.2004, after delay of six days. Said extra judicial confession made by the respondent-accused is not corroborated by other evidence. The confession was said to be made on 30.04.2008. On that day, Reshma was admitted in the hospital. As per Ex.D8, she was given medicine for reducing the effect of poison. She was also referred to psychiatrist.
In this regard, report of the psychiatrist dated 02.09.2004 is also placed on record as Ex.D8. On perusal of the report, it is clear that she was weeping, she was not taking any food from mouth and she was under acute depression. Under these circumstances, it can not be said that said confession was made by her in fit state of mind. Therefore, the prosecution has failed to prove guilt of the accused-respondent beyond reasonable doubt and the learned trial judge has rightly concluded to acquit the accused-respondent of the charges levelled against her.
Heard rival submissions of the parties and scanned the evidence placed on record.
In the present case, there is no eye-witness. The prosecution case is mainly based on extra judicial confession of the accused- respondent before PW1 Ameena and other witnesses - PW2 Om Prakash, PW3 Gome Khan, PW4 Sameer Khan and PW5 Jalam Singh. Before analyzing evidence of these witnesses, it would be pertinent to discuss law relating to extra judicial confession.
Extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire (6 of 16) [CRLA-525/2006] prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration {Sahadevan & Another vs State of Tamil Nadu: (2012) 3 SCC (Cri) 146}.
An extra judicial confession, voluntary and truthful, has high probative value {Thimma Alias Thimma Raju vs State Of Mysore: AIR 1971 SC 1871}. An extra judicial confession, voluntary and truthful, can form the basic of conviction without corroboration {State of Orissa v. Machindra Majhi & another:
AIR 1964 Orissa 100}. It is a rule of caution that the court would generally look for an independent, reliable evidence before relying upon an extra judicial confession {Pakkirisamy Versus State Of Tamil Nadu: (1997) 8 SCC 158}. An extra judicial confession is a weak type of evidence. Where such confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it looses its importance {Dr. Balvinder Singh & Others vs State Of Punjab & Others: (1995) Supp 4 SCC 259}. Before a confession is relied on, it must be clear and unequivocal, whether it is in a judicial or in an extra judicial confession. It should not be in general and vague terms {(2000) 1 SCC 310: Kishan Lal v. State of Rajasthan}.
(7 of 16) [CRLA-525/2006] In the light of this established legal position, we have viewed evidence of PW1 Ameena, PW2 Om Prakash, PW3 Gome Khan, PW4 Sameer Khan and PW5 Jalam Singh, relating to said extra judicial confession by accused-respondent Reshma.
PW1 Ameena in her examination-in-chief stated that on receiving the information of the incident, she went to house of Sameer Khan from her house on the same day evening. There were only an old mother and some male members. When she asked what happened then she was told that they took meal and by that meal they felt uneasy. In the night she stayed at the house of Sameer and on next day morning went to Bikaner for PBM Hospital, where all persons were being administered Glucose. Sada and Sakeena, daughters of Sameer, were admitted in Children Ward. She went to meet both the girls in Children Ward. There Reshma was also sitting and Sakia and Sada were being given Glucose. In Male Ward, Sameer, Om, Gomi, Jalam Singh, Bhanwar Singh were near Sameer Khan. Thereafter, she again went to Children Ward with Gomi, Jalam Singh, Om and Bhanwar Singh and asked Reshma that meal was prepared by her, what was mixed in the meal by her:
tc js"kek ls iwNk fd csVk [kkuk rwus cuk;k Fkk] [kkuk esa D;k Mkyk Fkk rc js"kek us dgk fd eSus [kkuk esa Lis Mkyk Fkk A js"kek us crk;k fd lkaxjh dk lkx o jksVh cukbZ Fkh vkSj "kke dks nky o jksVh cukbZ FkkhA PW1 further stated that thereafter she came back to her brother Sameer and stated what Reshma has told to her. Sameer could not rely that Reshma could do such thing. On this, she took Reshma to Sameer. Then Reshma again told before Sameer:
eSaus xyrh rks dj nh] eq>s ekQ dj nks] mlus dgk fd Lis eSaus Mkyh gSA (8 of 16) [CRLA-525/2006] In the cross-examination, she stated that on 29 th she received information about the incident when she was in the field. When she reached at PBM Hospital on the same day, on the same day she talked to Reshma. She also admitted that on the same day, she took Reshma before Sameer. She has further stated that Police enquired from her on the same day when she went to PBM Hospital and talked to Reshma.
In the cross-examination, this witness further stated that she saw Reshma when she was 10-12 years old and thereafter, for first time she met her in the Hospital and when she met Reshma in the Children Ward, she first told her that she is her aunt (mausi/bhua). She further stated that it is true that she was not real sister of Reshma's mother nor daughter of Reshma's father's brother nor her father's uncle's daughter, nor daughter of her father's sister nor daughter of brother of Reshma's mother. She admitted that:
eSa js"kek ds cki ds uk rks pkpk dh csVh gwWa uk gh rkm dh csVh gwWa] uk gh cqvk dh csVh gwWa uk gh ekek dh csVh gwWa] eSa mldh tkr dh gksus dh otg ls js"kek dh cqvk crkrh gwWaA eSa js"kek dh ukuk gekjs fj"rsnkjh esa gSa blfy;s js"kek dks ekSlh gksuk crkrh gwWaA PW2 Om Prakash in his examination-in-chief stated that on 30.04.2004 he himself, Gopikhan, Bhanwar Singh, Jalam Singh and Ameena all asked Sameer Khan as to what is happening then Sameer told that Reshma prepared the food in morning and evening. In the Children Ward where girls were admitted, Reshma was there. Ameena and then all of them asked Reshma to speak truly what happened then Reshma told that:
[kkuk rks eSaus gh vkSj lqqcg eSaus lkaxjh dh lCth o d.kd dh jksVh cukbZ] mlesa ujek dh nokbZ Lis de Mkyh Fkh] vkSj "kke dks ewax dh nky o d.kd dh jksVh esa Lis T;knk Mkyk Fkk ftlls ;g gknlk gks x;kA (9 of 16) [CRLA-525/2006] Then they all came to Sameer and narrated the fact stated by Reshma, then Sameer told that this could not happen and then they all went back to Reshma and bring her to Sameer.
js"kek us vkdj lehj dk ix idM+ fy;k vkSj dgk fd ;g dke eSaus gh fd;k gS] nokbZ eSaus gh Mkyh Fkh A All those persons who were admitted in the Hospital were discharged on 04.09.2004.
PW3 Gome Khan in his examination-in-chief stated that the incident took place on 26.08.2004 when he was sleeping in his house. His neighbour Hadman Ram Nayak came to him in the night at about 9:30PM and informed that at the house of Sameer Khan all the persons are suffering from diarrhea and vomiting. On this information, he went to 'dhani' of Sameer Khan and he saw that all are suffering from diarrhea and vomiting, Murada had expired before he reached and condition of Sammu Khan was bad. Thereafter they took all of them- Yaseen, Raheema, Jeba, Muneer, Liyaqat, Sada, Sakina, Sammu Khan and Sameer Khan to Chhatargarh hospital in a tractor-trolley. Doctor admitted all the persons and after 15-20 minutes Jeba and Liyaqat expired and thereafter, the Doctor referred all the remaining persons to PBM Hospital, Bikaner.
In the cross-examination, when he was confronted with his Police statement Ex.D3, he stated that he had told everything he stated in the court statement but why it is not written in the Ex.D3 he can not say. This witness has further stated that it is wrong to say that Reshma was admitted in the hospital before Yaseen Khan and Sammu Khan were admitted. Reshma was taken to the (10 of 16) [CRLA-525/2006] Hospital in Children Ward. She was not admitted in any Ward of the Hospital and it is wrong to say that from 27.08.2004 to 04.09.2004 she was admitted in J-Ward at Bed No.10 of the PBM Hospital.
PW4 Sameer Khan in his examination-in-chief stated that he himself, Yaseen, Muneem, Sada, Sakina, Sammu Khan were admitted in PBM Hospital, Bikaner. Sada and Sakina were admitted in Children Ward and other persons were admitted in Male Ward. Reshma was taken there later on for taking care of Sada and Sakina. After 3 days, Ameena came to him and stated that her daughter-in-law has mixed insecticide in the food prepared by her. He could not believe her than Ameena again went to Children Ward with Jalam Singh, Bhanwar Singh, Om Prakash and brought Reshma to his Ward. Then Reshma stated:
;g xyrh rks eSaus dj nh] eq>s ekQ dj nks]A js"kek us eq>s crk;k fd eSaus ujek esa fNM+dus okys Lizs dks [kkuk esa feyk fn;k Fkk] eq>s ekQ dj nks] eSaus ;g Lizs lkaxjh dh lCth es]a eqaxs dh nky esa o jksVh esa feyk fn;k FkkA In his cross-examination, PW4 Sameer Khan stated that at the time of marriage of his son Yaseen, he considered Reshma is good choice. After Nikah, Reshma remained at matrimonial home for about one month earlier and for one month at the time of incident. Reshma has good relation with her husband and it is true that before this incident, they had no dispute with his daughter-in- law. This witness further stated that he did not know whether Reshma was taken to hospital. He was informed by Ameena that Reshma has come to hospital. He did not know that after how many days of his admission in the hospital Reshma was brought to the hospital.
(11 of 16) [CRLA-525/2006] He further stated that at the time when Ameena came to him and informed about Reshma, at that time Jalam Singh, Om Prakash, Bhanwar Singh and Gome Khan were present in the hospital. He further stated that Ameena came to him after 3 days admitting him in the hospital and stated that your daughter-in-law (Reshma) has spread insecticide in the food prepared by her. On this he said that she can not do so. Ameena had come alone when she came for first time. He also stated that he does not know that after information given by Ameena when these 5 persons went to Reshma. He also does not know when these 5 persons returned back after meeting Reshma. He further stated that it is wrong to say that Reshma also went with them to Chhatargarh hospital for treatment and does not know that from Chhatargarh hospital she came for treatment to PBM Hospital along with them.
PW5 Jalam Singh in his examination-in-chief stated that in the Bikaner hospital, Sameer Khan, Sammu Khan, Yaseen Khan, Muneer Khan, Jagar Khan and two girls were admitted. He stayed there for taking care of Sameer Khan. He further stated that Ameena came after 2 days and on the same night Sammu Khan expired. On the second day, he asked Sameer Khan what is the matter, if the poison is severe then Sameer Khan told that in the morning and evening the food was prepared by his daughter-in- law Reshma. Thereafter he himself, Om Prakash, Gome Khan, Bhanwar Singh, Ameena went to Children Ward where 3 daughters of Sameer Khan were admitted and Reshma was also there. Ameena asked to Reshma to disclose what was mixed in the food, on this Reshma told that:
(12 of 16) [CRLA-525/2006] bl ij js"kek us dgk fd esjs ls xyrh gks xbZ] eSsus lqcg ds [kkuk lkaxjh dh lCth o d.kd dh jksVh esa ujiek ds fNM+dko djus okyk Lizs feyk;k Fkk] ftldk vlj de gqvk rks fQj eSaus "kke dks d.kd dh jksVh o eqax dh nky esa T;knk ek=k esa Lizs Mkyk Fkk] ;g esjs ls xyrh gqbZ gS] rFkk eq>s cpk yksA After this he went to Sameer Khan and narrated what was stated by Reshma. Sameer Khan could not believe this fact. Then they again went to Children Ward and brought Reshma to Sameer Khan. In the cross-examination, this witness was confronted with his Police statement Ex.D5, for which he stated that he does not know why it was not written that Ameena had enquired from Reshma. He further stated that he told to Police that when Reshma told this fact to Ameena then she asked to save her, why this fact was not written, he does not know. He does not know why it was not written that she spread insecticide in the food.
Upon analyzing the statement of these witnesses, there is material contradiction. Firstly, it is important to know that as per statement of PW1 Ameena, she admitted that she is not actually aunt (mausi) of Reshma. She stated that- eSa mldh tkr dh gksus dh otg ls js"kek dh cqvk crkrh gwWaA Similarly, she also admitted that she saw Reshma before Nikah, at that time she was 10-12 years of age and thereafter she never saw her. From her statement, she also admitted that when she met Reshma in the Children Ward, she first introduced herself. It is very difficult to believe that Reshma would have made said extra judicial confession before Ameena, who was unknown to her.
In her cross-examination, PW1 Ameena has stated that on 29th she got first information about the incident in her field. She also stated that the informant told that the mis-happening has (13 of 16) [CRLA-525/2006] occurred in morning on that day. She further stated that when she reached PMB Hospital then on the same day she met Reshma and on the same day, she met Sameer Khan and infomred him about statement given by Reshma and brought Reshma to Sameer Khan and Police also made interrogation on the same day.
When she reached PBM Hospital and talked to Reshma and thereafter Police also made interrogation at her residence, why the FIR was lodged on 05.09.2004, after delay of 6 days, no explanation was given for the inordinate delay. It is also important to note that PW3 Gome Khan in his examination-in-chief has stated that the incident took place on 26.08.2004 and he further stated that on 27th evening, in the night at about 10-11PM, he reached PBM Hospital. He further stated in the cross-examination that it is wrong that Reshma was admitted in PBM Hospital from 27.08.2004 to 04.09.2004.
Respondent-accused Reshma in her statement under sec.313 CrPC has categorically stated that she was falsely implicated for the commission of said crime and stated that she is innocent. She has also suffered after consuming the same food and got treatment at Chhatargarh hospital and thereafter she was also referred to PBM Hospital where she remained admitted and was discharged from the hospital on 04.09.2004 along with others admitted in the hospital.
In defence, DW1 Dr B.K. Gupta was examined, who stated that Ex.D8 is certified copy of Bed-head Ticket and according to Ex.D8, Reshma remained admitted in the hospital from 27.08.2004 to 04.09.2004. In the first instance, they considered it (14 of 16) [CRLA-525/2006] to be a case of food poisoning and for treatment all these persons affected by food poisoning, a Medical Board was constituted. Reshma was referred to Psychiatrist and he stated that in cases of food poisoning they also get the cases referred to Psychiatrist.
From perusal of Ex.D8, it was found that Atropin medicine was administered to Reshma, which is a medicine used for diluting the effect of insecticide. As per Ex.D8, there is mention of insecticide Monocrotophos 36% SL, for which therapy was described that on finding symptoms of poisoning, Atropin was advised and accordingly, the medicine Atropin was given.
In Psychiatrist's report, the psychiatrist opined that the patient was also suffering from acute depression, she is weeping and she is not in a condition to speak nor is she in a condition to take food orally and the psychiatrist found symptoms of Organo- phosphorous poison. The patient Reshma was found to be fit on 03.09.2004 and she was discharged on 04.09.2004.
From this, it is clear that the food, which was taken by other family members, same food was consumed by Reshma also and she also remained admitted in the PBM Hospital, Bikaner from 27.08.2004 to 04.09.2004.
PW10 Dr Devendra Chaudhary also admitted in her cross- examination that Reshma was also admitted in PBM Hospital. He admitted - esjs ikl bykt ds fy;s vk;s bu yksxksa esa js"kek Hkh Fkh ftldh izfof'V izn"kZ Mh 7 esa , ls ch fgLlk esa dh gqbZ gS] izn"kZ Mh 7 esjh Loa; dh dyeh gSA izn"kZ Mh 7 dh QksVks dkWih izn"kZ Mh 7 , gSA PW11 Mairuna also admitted that - HkrhZ gqos ejhtksa dks NqVVh gqbZ vkSj oks ?kj vk;s muds lkFk gh js"kek ?kj vkbZ FkhA (15 of 16) [CRLA-525/2006] In this case, PW11 Mairuna was also examined by the prosecution, who stated that Reshma came to her in the morning and took 10-11 'roti'. The prosecution tried to establish that the accused-respondent Reshma did not consume the food in which insecticide was mixed by her and instead she ate 'roti', which she took from PW11 Mairuna. However, from the statement of PW1 Ameena, it is clear that the statement of PW11 Mairuna does not stand proved.
Said confessional statement by Reshma made before PW1 Ameena, PW2 Om Prakash, PW3 Gome Khan, PW4 Sameer Khan and PW5 Jalam Singh is, thus, not proved beyond reasonable doubts. Though Reshma was admitted in J Ward of PBM Hospital, she remained under treatment from 27.08.2004 to 04.09.2004 but all these prosecution witnesses tried to conceal this fact.
So far as recoveries are concerned, PW6 Kasam Khan has stated that Police has recovered from Reshma one bottle of spray and a small box, in which one bottle of Coconut oil was lying. Map of the recovery place was prepared, which is Ex.P10. From perusal of Ex.P10, it reveals that recovery was made from a box in which a half liter bottle of spray was there and one 200ml bottle of Coconut oil was found. There is no other evidence, which can connect the accused-respondent with these recovered articles for commission of the crime.
In view of the above, said extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per prosecution version. The learned trial court has rightly concluded that there is no evidence on the (16 of 16) [CRLA-525/2006] basis of which the respondent-accused can be held guilty of committing the offence charged against her. There is no merit in the appeal. The appeal is, therefore, dismissed. (VIRENDRA KUMAR MATHUR), J. (SANGEET LODHA), J. mma