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Answer to Question No. (II) :-

15. In order to arrive at the answer to this question, we will take up both of the appeals filed by the appellants/accused persons separately, however, it would first be relevant to notice a few decisions rendered by the Supreme Court in this regard which would apply to the case of all the three appellants/accused persons conjointly.

16. In the matter of Anant Chintaman Lagu v. The State of Bombay1, their Lordships of the Supreme Court have laid down the parameters to be established by the prosecution in case of murder by poisoning and it has been held that the prosecution must establish in a case of poisoning that the death took place by poisioning; the accused had the poison in his possession; and that the accused had an opportunity to administer the poison to the deceased. In the aforesaid matter, the following has been observed by their Lordships :-

"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 1 AIR 1960 SC 500 to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of doubt will have to be given to the accused person. But if circumstantial evidence, in absence of direct proof of the three elements, is so decisive that the court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it. "

"26. The poison murder cases are not to be put outside the rule of circumstantial evidence. There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirably nor practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like any other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw from the circumstances an inference on any matter one way or the other.

27. The view that we have taken gets support from the decision of this Court in Ananth Chintaman Laguy v. The Staet of Bombay, AIR 1960 SC 500 where Hidayatullah, J., has given an anxious consideration to the three propositions laid down in Dharambir Singh case. The learned Judge did not consider them as invariable criteria of proof to be established by the prosecution in every case of murder by poisoning. The learned Judge said (at p. 519-520):

"It is now necessary to consider the arguments which have been advanced on behalf of the appellant. The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case. Reference in this connection is made to a decisio fo the Allhahabd High Court in Mt. Gajrani v. Emperor, AIR 1933 All 394, and to two unreported decisions of this Court in Chandrakant N Nyalchand Seth v. The State of Bombay, Criminal Appeal No. 120 of 1957 decided on Feruary 19, 1958 and Dharambir Singh v. Teh State of Punjab, Criminal Appeal No. 98 of 1958, decided on 4.11.1958. In these cases, the court referred to three propositions which 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. The case in Dharambir Singh v. State of Punjab turned upon these three propositions. There, the deceased had died as a result of poisoning by potassium cyanide, which disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide, but held, nevertheless that the circumstantial evidence was sufficient to convict the accused in that case. This Court, did not, however, accept the circumstantial evidence as complete. It is to be observed tha the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning, because evidently if after poisoning the victim, the accused destroyed all traces of the body, the first proposition would be incapable of being proved except by circumstantial evidence. Similarly, if the accused gave a victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and poison, in fact, was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstances that the accused gave the victim something to eat and need not be separately proved."