Rajasthan High Court - Jaipur
State Of Rajasthan vs Umaid Singh on 20 August, 1987
Equivalent citations: 1988(1)WLN767
JUDGMENT S.S. Byas, J.
1. By his judgment dated January 19. 1987 the learned Sessions Judge. Pratapgarh convicted the accused Umaid Singh under Section 302, IPC and sentenced him to death. He further convicted the accused under Section 201, IPC but awarded no separate sentence The Sessions Judge has submitted the proceedings under Section 366, Cr.PC for the confirmation of the death sentence. As usual, the accused challenges his conviction and has filed two appeals one through Jail and the other represented, for that purpose. We have, thus two matters before us; viz. (1) the reference made by the Sessions Judge (2) the appeals of the accused.
2. The blame-load on the accused is that he wiped off his wife who was in her middle twenties, son (aged about four years) and daughter (hardly four months of age). The motive alleged is that the wife had brought insufficient dowry and the accused had developed illicit intimacy with some other woman.
3. Put briefly, the Prosecution case runs as under: Accused Umaid Singh, aged about 30 years, was married to Smt. Mannu Bai some where seven eight years before 1984. The marriage was solemnized in village Damodhar, where her parents resided. After marriage, she came to life with the accused in village Bagrera P.S. Nimbahera district Chittorgarh At the time of the solemnization of the marriage, the accused's father, grandfather and uncle made a demand of five Tolas of gold and the bus-fare. When Smt. Mannu Bai returned to her parents' house on the occasion of her first delivery, she told them that she was ill-treated in the family of her in-laws as five Tolas of gold was not given. How ever, the marriage continued and Smt. Mannu Bai gave birth to three children-one son and two daughters. The accused used to operate a flour-mill in his village. It is suggested that he developed illicit intimacy with PW 12 Smt. Manjula Devi when she was living in village Bagrera with her husband, who was teacher there in the government school. The accused was displeased with his wife as she had not brought five Tolas of gold and she was an obstacle in his affairs with Smt. Smt. Manjula Devi.
4. Some where in July, 1983, he purchased Parathion (rat poison) from a shop keeper in village Nimbaheda. He thereafter, purchased sweets from some shop. He mingled parathion with the sweets and administered the mixture to his wife Smt. Mannu Bai, son Vikram and daughter Seema to the intervening night of July 24 and 25, 1983. As a result, they became unconscious. The accused and the members of his family spread a false story that the three were bitten by the snake. Message was conveyed on telephone to the wife's brother Surendra Kumar PW 1, who was then residing in Nimach, by the accused's relative that the condition of Smt. Mannu Bai was serious. Accordingly PW 1 Surendra Kumar, his wife Smt. Sampat Bai PW 6, his cousin Ramesh Chandra PW 6 and his wife Smt. Saroj Bai PW 9 came to village Bagrera at about 8.00 a.m. They found the three victims lying dead in a room Surendra Kumar asked the accused as to what had happened. The accused told that it was a case of snake bite. Surendra Kumar and others were not satisfied with this explanation of the accused and a doctor was sent for from Nimbahera. Dr. R.K. Gupta PW 7 arrived there in the noon and examined the dead bodies. Dr. Gupta told Surendra Kumar and all others who were present there, that the death had not taken place on account of snake bite. The doctor went to Nimbahera and informed the police. Surendra Kumar and others insisted upon the post-mortem examination of the dead bodies, but the accused and the members of his family refused to do so. It was raining on that day and the three dead bodies were taken to the cremation ground. The cremation was performed hurriedly and the dead bodies were cremated by pouring 35/40 litres of kerosene oil in the burning pyre Surendra Kumar, his wife, cousin, cousin's wife returned to Nimach. Though Doctor Gupta had informed the Police, Nimbahera, but the police failed to initiate any action.
5. PW 1 Surendra Kumar remained silent for some days and ultimatedly presented written report Ex.P. 1 on August 4, 1983 before the Deputy Superintendent of Police, Nimbahera. It was alleged there in that Smt. Mannu Bai and her children had not died on account of snake bite. Their deaths were suspicious. They were done to death by the accused and the members of his family. The Deputy Superintendent of Police directed the SHO, Police Station. Nimbahera for initiating necessary action in the matter. The SHO, however, took no action. On August 14, 1983, Surendra Kumar PW 1 again presented typed report Ex. P. 2 before the SHO, Police Station, Nimbahera and stated there in that the deaths of his sister and her children were not natural; they were done to death and it was a case of murders. The police registered a case under Section 302 and 201, IPC against the accused and swung into action. The accused was arrested on October 2, 1983 and in consequence of the disclosure statement made by him on the same day, a paper-packet containing parathion was recovered from the room of his flour-mill. It was seized and sealed. He also pointed out the shops from where he had purchased the parathion and the sweets. The clothes of the deceased person were seized and sealed and were sent for chemical examination. But no poison could be detected on them. On completion of investigation, the police submitted a crime report against the accused in the court of the Munsif cum Judicial Magistrate Nimbahera, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Section 302 and 201, IPC against the accused, to which he pleaded not guilty and claimed to be tried. In support of its ease, the prosecution examined twenty witnesses and filed some documents. In defence, the accused examined two witnesses. One Madan Lal Verma, Junior Scientific Officer in the State Forensic Science Laboratory, Rajasthan, Jaipur was examined as the court witness. The reason was that the paper-packet of the powder recovered at the instance of the accused and alleged to be parathion, did not reach the Laboratory. On the conclusion of the trial, the learned Session Judge held both the charges duly proved against the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set.
6. We have beard the learned Public Prosecutor the learned Counsel for the complainant and the learned Counsel for the appellant. We have also gone through the case file carefully.
7. When the proceedings are submitted under Section 366, Cr.PC to the High Court for confirmation of the death sentence, it is always open to the accused not only to challenge the sentence of death but also his conviction even without filing any appeal. Section 368(c), Cr PC lays down that in a case submitted under Section 366, Cr.PC the High Court may acquit the accused person. Here in the instant case, the accused has also filed appeal challenging his conviction. We are therefore, first to see whether the conviction of the accused is justified and should, therefore be up-held.
8. Admittedly, there is no ocular witness who has professed to have seen the accused administering poison to his wife and kids. The prosecution case rests entirely on circumstantial evidence which has been catelogued as under by the trial court:
[1] There was strong motive for the accused, which prompted him to finish the victims for ever. His relations with his wife Smt. Mannu Bai were extremely strained because:
(a) she had not brought sufficient dowry. Her parents and brothers promised to give five Tolas of gold to the accused at the time of his marriage but they failed to carry-out their promise; and
(b) he (accused) was in illegal intimacy with PW 12 Smt Manjula Devi. The wife disapproved this relationship and expressed her strong resentment. The accused took his wife be an obstacle in his way of leading lustful life.
[2] The wife and the kids were perfectly healthy. Their death was sudden. The accused came out with a false story that they died on account of snake bite. He did not procure any medical help. Instead he took them to a Dewra (place of worship) and utilized the services of exorcist (Bhopa);
[3] Dr. Gupta PW 7, on seeing the three dead bodies, found that the death of the victims was not on account of snake bite. The deaths were suspicious and had a big question-mark;
[4] the accused did not lodge any report to the police of the sudden deaths. He hurriedly took them to the cremation ground and cremated the dead bodies with undue haste by pouring kerosene oil on the pire;
[5] poison (Parathion) in a paper packet was recovered in consequence of the information furnish by the accused, lying concealed in his flour-mill; and [6] the accused pointed out the shop of the confectioner from whom he had purchased the sweets.
9. The learned Sessions Judge was of the opinion that when all these circumstances were read and assimilated together, they unerringly point to the guilt of the accused that he was the perpetrator of the three murders. On a consideration of all these circumstances, the Sessions Judge held that the accused purchased Parathion from the shop of PW 2 Abbas Ali and there after purchased sweets on July 24, 1983 from the shop of Satya Narain. He there after mixed Parathion with the sweets and administered the mixture to the three victims m the intervening night of July 24 and 25, 1983.
10. In impeaching the conviction, Mr. Bhandari learned Counsel for the appellant contended strenuously that the circumstances enumerated above did not stand proved and were wholly insufficient to bring the guilt to the the door steps of the accused. Mr. Bhandari took us thoroughly through the entire evidence. He made a severe assault on the evidence relating to the circumstances and argued that it was incumbent on the prosecution to prove that (1) the death of the victims was on account of the poisoning and (2) the poison was administered to them by the accused. It was urged that the prosecution has miserably failed on both these counts. Looking to the findings of the Court below and the contentions of Mr. Bhandari it would he proper to examine each set of circumstantial evidence at seriatim.
11. According to the prosecution, the relations between the accused and his wife Smt. Mannu Bai were not cordial and happy on account of two reasons (1) she had not brought sufficient dowry. Her parents had promised to give five tolas of gold to the accused at the time of his marriage, but failed to implement that promise; and (2) the accused had developed illicit intimacy with PW 12 Smt. Manjula Devi. The wife, viz., Smt. Mannu Bai strongly dis-approved this illicit intimacy and expressed her resentment. The accused, finding her to be an impediment, wanted to remote her from his way. Now, motive is not a sine qua non for bringing the offence of murder home to the accused. How ever, when the charge of murder is sought to be proved not by direct evidence but by circumstantial evidence, motive assumes great importance. The presence and adequacy of motive cannot be minimised when conclusion of the guilt rests on circumstantial evidence.
12. In the instant case, the prosecution has examined PW 1 Surendra Kumar, PW 3 Narendra Kumar, PW 5 Kaliyan Mal, PW 6 Smt. Sampat Bai, PW 8 Manak Lal, PW 10 Rajmal, PW 14 Nathulal and PW 15 Laxmi Lal in a bid to show that the accused was not happy with his wife Smt. Mannu Bai on account of the insufficient dowry given to her by her parents. Out of these witnesses, PW 1 Surendra Kumar is the brother, PW 5 Kaliyan Mal is the cousin, PW 6 Smt. Sampat Bai is the Bhabhi, PW 10 Rajmal is the maternal uncle and PW 15 Laxmilal is the father of the deceased Smt. Mannu Bai. These eight witnesses deposed that the marriage between the accused and the deceased Smt. Mannu Bai took place nearly eight or ten years before the incident. At the time of the marriage, the accused and his father demanded five Tolas of gold from the father of the deceased. He promised to give them this gold after some time. Half Tola of gold was given later on when the marriage of the younger sister of the deceased Smt. Mannu Bai took place. The remaining gold of 4-1/2 Tolas could, however, not be given. Smt. Mannu Bai used to tell her parents that her in-laws were not happy with her as the remaining gold was not given to her. We have carefully gone through the evidence of these witnesses and are of the opinion that even what they stated is accepted at the face value, it does not prove the motive alleged.
13. The marriage between the accused and the deceased had taken place nearly ten years before the incident. After her marriage, she gave birth to three children. She used to tell her parents that her husband and in-laws were not happly with her. But she never complained that she was tortured or ill-treated or was not treated with kindness. We are unable to imagine that aven after ten years of marriage, the accused remaind unhappy with his wife because her parents could not fulfil their promise to give the remaining 4 1/2 Tolas of gold.
14. The deceased Smt. Mannu Bai, as per statement of her brother Surendra Kumar (PW 1), was an educated person She had taken the job of a teacher in a school opened under the Female Adults Education Programme in village Bagrera where she resided with her husband. Being an educated lady, it was expected that in case she was tortured or ill-treated, she would have addressed written letters to her parents and brothers. No letter or written communication has been produced by the prosecution to show that the accused was unhappy with her or was not treating her with kindness on account of her not bringing sufficient dowry or on account of the failure of her parents to give 4-1/2 Tolas of gold to him.
15. Apart from that, in the written report Ex. P. 1, submitted by the wife's brother Surendra Kumar PW 1, on August 4, 1983 before the Deputy Superintendent of Police, Nimbahera, this fact of insufficient dowry or the strained relations between the accused and his wife Smt. Mannu Bai is conspicuously absent. After all the prosecution has alleged strong motive of insufficient dowry which prompted the accused to commit the murder of his wife. PW 1 Surendra Kumar is the real brother of Smt. Mannu Bai. The fact of insufficient dowry was in his knowledge. The offence was committed in the night of July 24, 1913 and report Ex. P 1 was lodged before the Police Officer on August 4, 1983 i.e. nearly after ten days of the incident and yet strangely enough, the motive which was put during trial, has not been mentioned in Ex.P. 1. All that shows that the story of insufficient dowry or the parents' failure to give 4-1/2 Tolas of gold, is a made up one and has been invented to create a motive for murder. Thus taking into consideration the facts (1) the marriage between the accused and Smt. Mannu Bai had taken place nearly ten years ago before the incident; (2) Smt. Mannu Bai never addressed any letter to her parents or brother of any torture or ill-treatment to her by the accused or her in laws and (3) the non-mentioning of the alleged motive in report Ex. P. 1, it can be said without any hesitation that the motive alleged by the prosecution does not stand proved.
16. The second motive that Smt. Mannu Bai incurred the displeasure of the accused on account of her resenting his illegal intimacy with PW 12 Smt. Manjula Devi also does not stand proved. The only witness examined to prove this motive is PW 12 Smt. Manjula Devi she is the wife of Purshotam Tewari, who was posted in the Government School, Bagrera. She stated that she used to live with her husband in village Bagrera. She stated that her husband had picked-up acquintance with the accused. She, therefore at times, used to visit the house of the accused. She denied that the accused bad developed illicit intimacy with her. She denied that she went to some cinema house at Nimbahera with the accused. According to the prosecution, the fact of illicit intimacy between the accused and this witness was in the the knowledge of the deceased Smt. Mannu Bai. If it was so, it is strange that she never complained against this illicit intimacy to any body and never addressed any letter or written communication to her parents and brothers in in this connection Again in Ex.P 1, lodged by PW 1 Surendra Kumar before the Deputy Superintendent of Police, no mention of this illicit intimacy between the accused and this witness Smt. Manjula Devi PW 12 has been made. No satisfactory explanation for this vital omission has been furnished by the prosecution.
17. The motive alleged, thus, does not stand proved. The learned Sessions was swayed with the motive that prevailed over him to a big extent in holding the charge of murders established. We are unable to accept his finding on the motive.
18. The next circumstance relied upon by the court below is that the three victims, viz., Smt. Mannu Bai and her two children, were in perfect health before their death. Their death was sudden. The accused spread a false story that they had died on account of the snake bite. He did not procure any medical help. He took them to a Dewra to be treated by an exorcist (Bhopa) This false defence of the accused speaks heavily against him. It was argued by Mr. Bhandari that the entire approach of the Sessions Judge was erroneous. Whether the accused came out with a false story of snake bite has no relevancy until and unless the prosecution establishes that the three victims died on account of administering the poison to them by the accused. It was argued that there is not an iota of evidence on record to show that the death of the victims had taken place on account of administering the poison to them. The prosecution has further failed to show and prove that the poison was administered to the victims by the accused. Because the prosecution has failed to establish this fact-in-issue, the falsity of the defence, even if it is there, cannot be taken into consideration and the charge cannot be held to be proved simply because the accused spread a false story of snake bite. Reliance in support of the contention was placed on Sharad Birdi Chand Sharda v. State of Maharashtra . The contenion raised by Mr. Bhandari is not without force.
19. In para 150 of the aforesaid judgment, their Lordships observed:
"It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in them selves complete, then a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
20. We need not add that the burden to prove the charge in a criminal case lies consistently on the prosecution and it never shifts on the accused. The falsity of the defence cannot be called in aid to prove a charge. The infirmity or falsity of defence assumes importance only when the prosecution has been able to prove the charge. If the evidence adduced by the prosecution is sufficient to prove the charge, the falsity of the defence put forward by the accused is an additional factor to give assurance to the proof of the charge. The falsity of the defence cannot be taken into consideration until and unless the prosecution has discharged its duty of establishing the charge. Falsity of the defence is no proof of truth of the prosecution case. We are of the opinion that the Court need not look into the defence until the prosecution proves its case. The Sessions Judge was obviously in error in his approach when he took the accused's spreading the story of snake bite into consideration without looking to the prosecution evidence adduced to prove that the deaths had occurred on account of poison. It was like putting the cart before the horse.
21. It is true that the accused took the three victims to a Dewra and utilised the services of Bhopa (exorcist). Admittedly, there is no dispensary in village Bagrera. It is a common feature in the villages that in a case of snake bite, the victim is taken to a Dewra and the services of a Bhopa are utilized. The accused did nothing unusual or extra-ordinary when he took the victims to the Dewra and utilised the services of a Bhopa.
22. The prosecution allegation that the accused made no efforts to procure the services of a qualified doctor, also, does not stand proved PW 7 Dr. R.K. Gupta deposed that on July 25, 1983 he was Medical Officer In-charge, Government Hospital, Nimbahera, At about 8 15 a.m. on that day two persons from village Bagrera came on a motor cycle to him and told that there was a case of snake bite of a woman in their village. They requested him to accompany them and to go to village Bagrera. Dr. Gupta stated that he expressed his inability to go with them as he was on official duty at that time. He further told them that after 12.00 hours in the noon, he could go to village Bagrera when his official duty-time was over. He also stated that at about 12.00 hrs. in the noon of that day, again two persons came to him on a motor-cycle and took him to village Bagrera where they reached within 15-20 minutes. DW 2 Manohar Lal, who is the real brother of the accused, was the person who went to doctor Gupta twice on July 25, 1983. In view of the aforesaid evidence, it cannot be said that the accused made no efforts to procure the services of a qualified doctor. He sent his brother twice to Dr. Gupta, first in the morning and for the second time in the noon. If Dr Gupta failed to render his services in the morning, the blame for that cannot be laid on the accused.
23. There is yet another important reason which runs counter to the prosecution story of the accused's administering poison to the three victims PW 1 Surendra Kumar is the real brother of the deceased Smt. Mannu Bai. In report Ex. P 1 as well as in report Ex. P 2, it has been mentioned that he received a message on telephone from village Bagrera that his sister was serious and he was immediately required to reach there. It was on this telephonic message that he, his wife Smt. Sampat Bai (PW 6), his cousin Ramesh Chandra (PW 16) and Smt. Saroj Bai (PW 9 wife of Ramesh Chandra) went to village Bagrera and reached there at about 10.30 a.m. The three victims were lying unconscious in the house of the accused. The telephonic message was sent to PW 1 Surendra Kumar by the accused through DW 1 Madan Singh. Madan Singh deposed that the accused told him that as the condition of his wife had become serious, he (witness) should send the message on telephone to her brother. The witness further stated that he went to the Telephone Exchange of village Naya Gaon and conveyed the message to Surendra Kumar. This action on the part of the accused speaks heavily against the prosecution. Had it been a case of his administering poison to the three victims, the accused would not have dared to inform his in-laws and to request them to come to his village. The fact that he sent for his in-laws is a circumstance pointing to the innocence of the accused. We are, therefore, unable to make out anything against the accused simply from the fact that he took the victims to Dewra and utilized {he services of a Bhopa. One more circumstance is there. PW 4, Smt. Moti Devi Brahmin, aged about 50 years, deposed that she also went to Dewra on that day (July 25, 1983). Smt. Mannu Bai and some ladies were already present there. She asked Smt. Mannu Bai as to what had happened. Smt. Mannu Bai told her that the snake had bitten her. The Bhopa thereafter tried to suck the poison by putting the finger of Smt. Mannu Bai in his mouth. Though she was declared hostile, we are unable to reject her testimony in toto. It does not appear that she has any soft corner for the accused. If Smt. Mannu Bai herself told that she had been bitten by the snake, it is sufficient to throw away the prosecution case over-board.
24. The accused had admittedly taken the three victims to Dewra and utilized the services of an exorcist (Bhopa). The Bhopa was the best person to state whether it was a case of snake bite or not? Unfortunately, the prosecution did not examine the exorcist in evidence. That creates a big void in the prosecution case. The learned Sessions Judge failed to take these prominent features of the case into consideration. The accused's taking the victims to Dewra and utilising the services of a Bhopa, in the above-back ground, helps the prosecution in no way. On the contrary, it strongly suggests innocence of accused.
25. PW 7 Dr. Gupta arrived in village Bagrera in the noon. He saw the three victims and declared them dead. He was asked by PW 1 Surendra Kumar and PW 16 Ramesh Chandra as to whether the deaths had taken place on account of snake bite. The doctor told them that he was unable express the reason of the deaths. To quote his words:
bl ij eSus tckc fn;k fd bl oDr eS ;g dg ldrk gwW fd budh ekSr gks xbZ gS] ekSr dk dkj.k D;k gS] eS ugh dg ldrk A The doctor was, therefore, unable to say, on seeing the dead bodies, whether the deaths had taken place on account of snake bite. Dr. Gupta further stated that while returning to Nimbahera, he pondered over the matter and suspected whether there could be any other cause of deaths. He went to the hospital and contacted the Station House Officer Murli Manohar and told him on telephone that though he was told that the deaths had taken place on account of snake bite, he has his own suspicion about the cause of deaths. He requested the Station House Officer to reach the spot and do the needful. Admittedly, the police did nothing. It is highly doubtful whether Dr. Gupta ever contacted the Station House Officer Murli Manohar If Dr. Gupta had informed the police, it was expected that the report would have been recorded in the police Rojnamcha and the SHO must have reached village Bagrera. The SHO Murli Manohar has not been examined in evidence by the prosecution. Any way, this creates a big infirmity in the prosecution case. Dr. Gupta PW 7 did not state that it was not a case of snake bite. He expressed only his suspicion. The suspicion does not prove the charge nor the allegation that the deaths had taken place on account of poison.
26. The deaths were, no doubt, sudden and the accused lodged no report to the police. The prosecution has relied upon the circumstance that the accused not only failed to report the matter of sudden deaths to police but also hurriedly cremated the dead bodies by pouring kerosene oil on the pyre. The court below was such influenced and swayed by this act of the accused. We are again unable to approach of the Sessions Judge. The prosecution evidence is that there were heavy rains on July 25, 1983. The dead bodies were taken to the cremation ground after when Dr. Gupta PW 7 has seen them. It cannot be therefore, said that the accused cremated the dead bodies with undue haste Since heavy rains were there, pouring kerosene oil on the pyre is not an unusual feature.
27. PW 1 Surendra Kumar, PW 6 Smt. Sampat Bai, PW 9 Smt. Saroj Bai and PW 16 Ramesh Chandra, who are brothers and Bhabhies of the deceased Smt. Mannu Bai, were sent for from Nimach and they attended the cremation. They had reached village Bagrera at about 10.00 or 10.30 a.m. Dr. Gupta PW 7 had arrived there in their presence. The cremation there after took place in the afternoon. PW 1 Surendra Kumar and PW 16 Ramesh Chandra attended the funeral procession and went to the cremation ground. If the doctor and these four witnesses had sensed anything foul and took the deaths to be in suspicious circumstances, it was ex-pected from them that they would have stopped the cremation and would have approached the police then and there. They would not have allowed the cremation to have taken place. After all, Ramesh Chandra had a motor cycle with him. The distance between village Bagrera and the police station, Nimbahera is only of eight kilo metres. PW 1 Surendar Kumar and PW 16 Ramesh Chandra would have reached Nimbahera within ten to fifteen minutes. But they did not stop the cremation nor they appoached the police. The cremation was not carried out surreptitiously but in the presence of so many persons including PW 1 Surendra Kumar and PW 16 Ramesh Chandra. The cremation was not performed hurriedly with undue haste. This circumstance renders no help to the prosecution.
28. The accused was arrested on October 2, 1983 vide arrest memo Ex.P 12. The investigating officer Prem Singh PW 17 deposed that soon after his arrest, the accused made disclosure statement which he recorded in Ex.P 14 to the effect that he had purchased Parathion (rat-poison) from the shop of Bohra situated near Mahalaxmi Talkies in the town of Nimbahera and that same quantity of that poison he had concealed in a Taak of his flour-mill. The witness further stated that in pursuance of this information, the accused took him to the shop of Abbas Ali Bohra PW 2 and thereafter to his flour mill where he took out a paper-packet containing some substance. He seized thut paper-packet, sealed it and prepared seizure memo Ex.P. 15.
29. Unfortunately, the prosecution has again failed to prove that the accused had purchased Parathion from the shop of PW 2 Abbas Ali and the substance found in the paper packet was Parathion or any other poison. PW 2 Abbas Ali denied that he sells rat-poison (Parathion), and that the accused had purchased any parathion from his shop.
30. The hostility of PW 2 Abbas Ali would have no relevancy and would not have no relevancy and would not hare affected the prosecution case adversely in case it was found that the substance of the paper-packet recovered in consequence of the information furnished by the accused from his flour-mill was Parathion or any other poison. The sealed paper-packet was sent to the State Forensic Science Laboratory Jaipur for chemical examination, but never reached there. The result was that the substance of the paper packet could not be examined and it could not be ascertained whether it was Parathion or any other poison. The packet was never delivered to the State Forensic Science Laboratory, Rajasthan, Jaipur and it was alleged that it was lost by the police constable who took it to deliver at the Forensic Science Laboratory. The blame of paper-packet being lost cannot be put on the accused. The accused was in custody when the paper packet was recovered and sent to the Forensic Science Laboratory. Any way we are deprived of the expert's opinion as to whether the substance found in the paper-packet was poison or not? In the absence of any report from the Forensic Science Laboratory, we cannot say that the substance of the paper-packet was poison. If the substance found in the paper-packet was poison, it would have provided some substantial evidence in the chain of circumstances. But we stand deprived of the expert's opinion. We are therefore, unable to say that the substance recovered at the instance of the accused and in consequence of the disclosure statements made by him, was Parathion or any other poison.
31. Coming to the last incriminating circumstance, it was alleged that the accused, after his arrest made the disclosure statement before the investigating officer Prem Singh, Deputy Superintendent of Police on October 4, 1983, which was reduced into writing in Ex. 17. The disclosure statement alleged to have been made by the accused was that he had purchased 200 grams of sweets from a shop in the town of Nimbehera and that he was prepared to point out that shop. There after he took the investigating officer and the Motbirs to Satyavijay Mithai Bhandar situated in Moti Bazar, Nimbahera and pointed it out. The investigating officer prepared memo Ex. P 18 of the accused's pointing out the aforesaid shop.
32. It was contended by Mr. Bhandari that the information furnished by the accused does not relate distinctly to the fact thereby discovered and is therefore, inadmissible under Section 27 of the Evidence Act. It was argued that no fact can be said to have been discovered in pursuance to the information contained in Ex. P. 17. The contention has considerable force. If the accused takes the police officer to a place and does nothing further resulting in the discovery of any fact, the statement made by the accused is not admissible in evidence. Section 27 of the Evidence Act has two requisities viz, (1) the disclosure statement and (2) discovery of fact in consequence of it If the statement is there but the recovery of the fact is not there, the statement cannot be read in evidence under Section 27 of the Evidence Act. The accused's taking the investigating officer to Satyavijay Mithai Bhandar, Nimbahera, does not constitute any evidence against him because it did not lead to the discovery of any fact. Section 27 of the Evidence Act is based on the doctrine of "confirmation of subsequent facts." If the subsequent facts which means the discovery of facts, are not there the information furnished by the accused loses its evidentiary value because the information is not confirmed by the discovery of fact. It cannot be said that the shop Satyavijay Mithai Bhandar, Nimbahera was discovered in consequence of the information furnished by the accused.
33. The information furnished by the accused in Ex. P 17 would have been relevant and of importance in case there was evidence to show that he had really bought sweets from there. Ex. P 17 shows that Satyavijay Mithai Bhandar is owned by Satya Narain Mahajan. Satya Narain was not examined by the prosecution to show that the accused had purchased sweets from his shop. The learned Sessions Judge has, therefore, erred in taking this fact of pointing out the shop of Satyavijay Mithai Bhandar, Nimbahera by the accused, into consideration.
34. Thus, an analysis of the various sets of circumstantial evidence, when minutely and closely scrutinized, furnish no incriminating material against the accused. The various sets of circumstantial evidence even when read and assimilated together, creates no impression that the accused had administered Parathion or any other poison to his wife and two kids.
35. When conviction of the accused is sought in a case of death by poisoning, the prosecution must prove (1) the motive, (2) the deceased died on account of the poison, (3) the accused had that poison in his possession and (4) that he had an opportunity to administer the poison to the deceased. We may quote A.C. Lagoo v. State of Bombay which was quoted with approval in Ramgopal v. State of Maharashtra and the recent judgment in Sharad Sharda v. State of Maharashtra . In Lagoo's case (supra), it was observed:
The prosecution must establish in a case of poisoning: (a) that death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. Though these three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the person.
Recently in Sharad Sharda's case (suwra), their Lordships observed In the cases of murder by administration of poison the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction [1] there is a clear motive for an accused to administer poison to the deceased:
[2] that the deceased died of poison said to have been administered;
[3] that the accused had the poison in his possession;
[4] that he had an opportunity to administer the poison to the deceased.
36. In the instant case, neither motive no administration of poison nor its possession was proved by the prosecution. The prosecution has even failed to prove that the death of the victims was by poisoning.
37. We may reiterate that the prosecution seeks the conviction of the accused on circumstantial evidence. The law regarding circumstantial evidence is well settled and has been pointed out by the Apex Court from time to time in innumerable cases. Recently in Ghambhir v. State of Maharashtra AIR 2982 SC 1167 their Lordships observed The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three 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. 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. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
38. In the instant case, the picture, which emerges out, may be summarised as under:
[1] the marriage between the accused and deceased Smt. Mannu Bai had taken place nearly ten years before the incident. Relation, between them were cordial and happy. The wife had given birth to three children from him. There is not on iota of evidence to show that the accused was displeased with his wife Smt. Mannu Bai on account of insufficient dowry;
the prosecution allegation that the accused was in illicit intimacy with PW 12 Smt. Manjula Devi is a brazen lie;
[3] the accused took his wife and two kids to a Dewra and utilized the services of an exorcist, taking it to be a case of snake bite;
[4] the accused sent his brother Manohar Lal (DW 2) to the doctor at Nimahera in the morning on July 25, 1983 to fetch the doctor for giving treatment to the three victims;
[5] he also sent a telephonic message to his wife's brothers PW 1 Surendr Kumar and PW 16 Ramesh Chandra and asked them to come to his village as Smt. Mannu Bai was serious;
[6] PW 1 Surendra Kumar and PW 16 Ramesh Chandra alongwith their wives came from N imach (M.P.) to the accused's village Bagrera and saw the dead bodies of the victims;
[7] Surendra Kumar Ramesh Chandra and their wives had no suspicion at any time that the deaths were by poisoning;
[8] they did not-advise the accused to have the post-mortem examination of the victims' dead bodies;
[9] Dr. Gupta [PW 7] also did not ask the accused to have the medicolegal autopsy of the victims' dead bodies;
[10] the cremation of the dead bodies was performed in the presence of many persons including PW 1 Surendra Kumar and PW 16 Ramesh Chandra. The cremation was not surreptitious;
[11] Surendra Kumar (PW 1) did not and others, after cremation, went to Nimach;
[12] Surendra Kumar did not lodge any report of the incident immediately. He lodged the report Ex. P 1 only on August 3, 1983. Even in it, he did not mention that the deaths were by poisoning;
[13] in Ex. P 1, no mention of dowry was made; and [14] the substance recovered in consequence of the information furnished by the accused, whilst under police custody, has not been, proved to be poison.
39. In view of the above facts and circumstances, we have no hesitation to say that the prosecution has miserably failed to prove the charge against the accused that he bad killed his wife and two kids by poisoning. The circumstantial evidence must militate against the innocence of the accused. The circumstances alluded to above do not point out the guilt of the accused and do not bring the charge of murders at the door steps of the accused. When the case rests on circumstantial evidence; the inferences drawn from the proved circumstances should be rational and logical. There is no rule for irrational, illogical, conjectural and surmisical inferences. The inferences drawn by the learned Sessions Judge from the circumstances on record are purely conjectural and surmisical, No conviction can be based on such inferences. The accused is therefore, entitled to acquittal.
40. In the result, we allow the appeal of accused Umaid Singh. His conviction under Sections 302 and 201, IPC and the sentences passed there-under are set-aside and he is acquitted of the aforesaid offences. Since he is acquitted, the reference made by the learned Sessions Judge for confirmation of death sentence is rejected. The accused is in custody and shall be forthwith set at liberty if not wanted in any other case.