1 APEAL504.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 504 OF 2002
The State of Maharashtra,
through P. S. Bamni,
Tq. Jintur, Dist. Parbhani. ... Appellant
VERSUS
Ayodhyabai W/o Bhagwan Musale,
Aged 18 years, Occu. Household,
R/o. Borkini, Tq. Sailu,
District Parbhani. ... Respondent
..........
Mr S. J. Salgare, APP for the appellant/State
Mrs Asha S. Rasal, Advocate forthe respondent.
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
RESERVED ON : 06.10.2017.
PRONOUNCED ON : 13.10.2017.
JUDGMENT (PER A. M. DHAVALE, J.) :
1. This is an appeal by the State against the Judgment of acquittal dt.15.05.2002 delivered by Sessions Judge, Parbhani in Sessions Case No. 196/2001. By the impugned Judgment, the respondent was acquitted of the offences of murder of two persons & attempt to commit murder of her husband by poisoning punishable u/s 302 & 307 of IPC.
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2. The facts relevant for deciding this appeal may be stated as under :
As per FIR lodged by PW1 Bhagwan aged 22 years at Police Station Bamni, on 24.06.2001, he married to accused Ayodhyabai 2½ months before the incident. He was residing with his brother, brother's family and mother and the accused at Borkini, Tq. Selu, Dist. Parbhani. Accused - Ayodhyabai initially cohabited with PW1- Bhagwan only for seven days. She used to say that PW1 Bhagwan was not as per her likings. She therefore did not allow him to have sex with her. Whenever he tried to go near her, she used to raise shouts and she used to sleep near her mother-in-law Laxmibai. At the relevant time, his brother Vishnu's wife Shantabai had begotten a child and had gone to her maternal house. After a short period of cohabitation, accused Ayodhyabai went to her maternal house but as Vishnu's wife Shantabai had gone for delivery at Asola, 4 days before the incident Vishnu went to Pimpri and brought back his brother's wife-accused Ayodhyabai to Borkini. On 21.06.2001, the accused Ayodhyabai told her husband to drop her to her maternal house at Pimpri, Tq. Jintur, Dist. Parbhani. As the month of Ashadh was to begin and there was Amavasya, as per custom the relatives of PW1 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 3 APEAL504.2002 Bhagwan also suggested him to leave Ayodhyabai at her maternal house. PW1 Bhagwan left her at her maternal house on 21.06.2001 but on 22.06.2001, his parents-in-law told him that Amavasya was over and he should take back Ayodhyabai to Borkini. Hence, he brought her back from Pimpri to Borkini. They reached their house at 1:00 p.m. PW3 Vishnu, mother Laxmibai and Vishnu's younger son Balu were present in the house. Vishnu tried to open suitcase of the accused so as to see whether she had brought any sweets for his son but the accused did not allow him to open the suitcase. Then at about 3.00 p.m. Vishnu left the house and went to Asola to bring his wife back. PW1 Bhagwan went to the field for agriculture work at 3:00 p.m. and returned at 5:30 p.m. His wife had cooked Besan and was baking Bhakar. After baking of Bhakar at 6.00 p.m., the accused Ayodhyabai went to the house of their neighbour Sugandhabai (PW2). That time, Balu took Bhakar & Besan in a saucer and started eating it. Sugandhabai PW2 and the accused came home. The accused told Sugandhabai that she would cook food at her house. Sugandhabai was declining to her but the accused insisted and went to Sugandhabai's house for cooking food. After completing food, Balu washed his hands and his grandmother Laxmibai threw away the water from the said saucer and took Besan & Bhakar in same saucer for her meals. Balu went out for playing. PW1 Bhagwan asked ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 4 APEAL504.2002 his mother to serve food to him and that time he tasted remaining Besan from the saucer of Balu. He tasted it poisonous. Hence, he spat and gurgled. He also tasted Besan from the pot. It also tasted poisonous. He again gurgled. He sent Balu to call his wife Ayodhyabai from the house of Sugandhabai. When Ayodhyabai came home, he asked her as to how Besan was smelling poisonous. The accused Ayodhyabai told him that she had used kerosene for burning the hearth and with the same hand cooked Besan. Then she went to the house of Sugandhabai. PW1 Bhagwan tasted Bhakar. It was also poisonous. That time, Balu fell down in the courtyard and there was froth oozing from his mouth. He was writhing. PW1 Bhagwan lifted Balu and brought back him to home but he was not talking. Hence, he handed over Balu to his mother Laxmibai and went to Dr. Sanap from the same village. Dr. Sanap was not there. When he came back, he saw Dr. Ghuge. He requested him to treat Balu but he told him that his medicine bag was not with him. He told him that he could use his bike for taking Balu to the hospital at Mantha. PW1 along with Raosaheb Musale took Balu to the Civil Hospital at Mantha. They reached civil hospital at Mantha at 8:30 p.m. and Doctor Mundhe started treatment. After 10 minutes, Sugandhabai & Uddhav Musale brought Laxmibai to the hospital. She was unconscious and froth was also oozing from her mouth. She was also not talking. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 :::
5 APEAL504.2002 Dr.Mundhe started treating her as well. Laxmibai died at 9:20 p.m. and Balu died at 9:30 p.m.
3. Then there was accidental death inquiry. Spot panchanama was drawn. Various articles including suspected food were collected. Several sarees & clothes of the accused were seized from the spot. The inquest panchanama was drawn. On 23.06.2001, the autopsy was conducted on both the dead bodies. The viscera was preserved. Post-mortem showed all signs of death by poisoning.
4. The Doctor opined that both the deceased died due to asphyxia due to poisoning and semi-digested food was found in their stomach. The final opinion was reserved till the receipt of CA report of viscera. Thereafter, funeral took place on 23.06.01 afternoon. On 24.06.2001 at 1.15 p.m. PW1 Bhagwan lodged FIR that as he was not as per liking of his wife Ayodhyabai and was not interested in cohabiting with him, she mixed poison in food so as to kill him but as the said food was eaten by Balu aged 5 years and his mother they have died. On the basis of the FIR, crime was registered as 0031/2001 for offences u/s 307 & 302 of IPC and was investigated into.
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5. When the viscera report was received disclosing the poison, the opinion was given that both the persons died of poisoning. The accused came to be arrested on 24.06.2001. On 29.06.2001, she made a voluntary statement to discover the tin box containing poison concealed in Bin (Kanagi) in the kitchen in her house. Accordingly her statement was recorded. She then discovered the tin from Bin in her house. It was a varnish paint tin of 100 ml. capacity containing 10 ml. liquid.
6. The police forwarded the seized articles to CA. As per CA report received, Organochloro insecticide Endosulfan (Thiodan) was detected in a tin box containing 1 kg of sorghum (Jawar) flour in cooked Besan and in baked Bhakar's pieces seized from the spot. There was same poison even on the wooden plate used for flipping Bhakar. It was revealed that, the tin discovered by the accused also contained same poison. No poison was detected on the clothes of the accused.
7. After completion of investigation, charge-sheet was submitted in the court. In due course, the case was committed to the court of Sessions. The Sessions Judge, Parbhani framed charge u/s 302, 307 of IPC at Exh. 5. The accused pleaded not guilty. The ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 7 APEAL504.2002 accused engaged advocate of her choice. The prosecution examined 8 witnesses. The ld. trial Judge acquitted the accused on the ground that she had no motive to commit murder of her nephew and mother- in-law and possibility of accidental poisoning was not ruled out and the evidence of witnesses suffered from some discrepancies. Hence this appeal.
8. We have heard learned APP Mr S. J. Salgare for the State and learned advocate Smt. Rasal for the respondent. The points for our consideration with our findings thereon are as follows :
Sr. Points Findings.
No.
1 Whether Balu and Laxmibai In the affirmative.
met with homicidal death?
2 Whether the accused In the affirmative.
committed murder of Balu by
poisoning his food?
3 Whether the accused In the affirmative.
committed murder of Laxmibai
by poisoning her food?
4 Whether accused attempted to In the affirmative.
commit murder of her husband
by poisoning his food?
5 What order? The accused is held guilty for
committing two murders of Balu &
Laxmibai and attempting to commit
murder of her husband by poisoning
his food.
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9. The prosecution has examined eight witnesses and proved documents as follows :
[I] Material Witnesses:
(a) PW1 - Bhagwan Musale, the informant and husband of the accused.(FIR Exh 19).
(b) PW2 - Sugandhabai, neighbour of accused & PW1.
(c) PW3-Vishnu, brother of Bhagwan.
[II] Evidence on discovery:
(a) PW7 - Bhagwan Watane.
(b) PW8 - PSI Rathod.
(c) Memorandum (Ex. 38) & Seizure Panchanama (Exh. 39).
[III] Spot Panch :
(a) PW6 - Manohar & PW8 PSI Rathod.
(b) Seizure Panch (Exh. 31)
(c) CA reports (Exh. 25 & 26)
[IV] Incidental witnesses :
(a) PW4 - Raosaheb
(b) PW5 - Dr Arun Ghuge
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[V] Medical Evidence :
(a) Inquest panchanama.
(b) PM notes (Exh. 12 & 13)
(c) CA reports (Exh. 25, 26 & final opinion certificate Exh. 34 & 35).
(d) Spot Panch (Exh. 31)
10. The evidence as disclosed by the witnesses of events in chronological order is as follows :
(i) The incident took place on 22.06.2001. About 2 to 2½ months earlier, the accused Ayodhyabai, resident of Pimpri, married to PW1 Bhagwan Musale. Thereafter they started cohabiting together at Borkini (Evidence of PW1 Bhagwan un-controverted).
(ii) PW1 Bhagwan was residing with his mother, brother-
Vishnu PW3 and brother's family in a one room house (evidence of PW1 & PW3 un-controverted).
(iii) PW1 Bhagwan deposed that the accused Ayodhyabai used to tell him that she did not like him and whenever he used to go near her for sex, she used to raise shouts and she used to run away and used to sleep near her mother-in-law. During short span of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 10 APEAL504.2002 2½ months, the accused had gone to her maternal house twice. Initially she stayed there for some days and again on 21.06.2001, PW1 Bhagwan had taken her to her parents house. But they returned on 22.06.2001 at 1:00 p.m. The evidence in this regard is un-controverted.
(iv) At the relevant time, PW3 Vishnu's wife had gone to her maternal house for delivery.
(v) PW1 and accused Ayodhyabai returned from Pimpri to Borkini at 1:00 p.m. Thereafter PW3 Vishnu came from field. He tried to search the suitcase of Ayodhyabai with a hope that she might have brought some sweets for Balu but she did not allow him to open the suitcase and she kept it locked.
(vi) Thereafter, PW3 Vishnu went to Asola for fetching his wife while PW1 Bhagwan went to his field. That time, the accused Ayodhyabai, her mother-in-law Laxmibai and her nephew Balu aged 5 years only were present in the house.
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(vii) PW1 Bhagwan returned home from his field at 5:00 to
5:30 p.m. He stated that, the accused Ayodhyabai
prepared food namely; Besan & Bhakar.
(viii) Thereafter Balu ate Besan & Bhakar. That time PW1
Bhagwan went in the village and Ayodhyabai went to the house of Sugandhabai.
(ix) Sugandhabai deposed that the accused Ayodhyabai came to her house and offered to prepare food at her house but she refused permission. Still the accused prepared the food at the house of Sugandhabai. The accused asked Sugandhabai to allow her to stay with her for 2-3 days (evidence of PW2 & PW1). Then Ayodhyabai & Sugandhabai came to PW1 Bhagwan and sought permission to allow Ayodhyabai to stay in Sugandhabai's house but, PW1 refused such permission. Sugandhabai told PW1 that Ayodhyabai would take food in her house and then will return to his house.
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(x) After taking food, Balu was playing in the courtyard.
That time, PW1 Bhagwan's mother Laxmibai also took food. PW1 asked his mother to serve food to him. When his mother went inside the room, PW1 tasted cooked besan remaining in the dish of Balu and he felt it poisonous.
(xi) PW1 Bhagwan asked Balu to call Ayodhyabai from the house of Sugandhabai. When Ayodhyabai came, he asked her about the smell to the food. The accused told him that she had used kerosene for lighting hearth and used the same hands for cooking and the food might be smelling of kerosene.
(xii) That time, Balu fell down on the ground and PW1 tried to make him speak but he was not speaking. Froth was oozing from his mouth.
(xiii) PW1 Bhagwan then went to contact Dr. Sanap. He could contact Dr. Ghuge-PW5. PW5 checked Balu and told that it was a case of suspected poisoning and his condition was serious. He was not having medicines. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 :::
13 APEAL504.2002 He offered his bike to PW1 to take Balu to the hospital at taluka place Mantha.
(xiv) Thereafter, PW1 Bhagwan along with PW4 Raosaheb took Balu to the hospital at Mantha. On the way, PW1 told PW4 Raosaheb that his wife disliked him and was not allowing him to enjoy marital life, whenever he used to go near her, she used to raise shouts and used to go to sleep near her mother.
(xv) PW1 Bhagwan took Balu to the hospital at Mantha and medical treatment began to him. He was unconscious. Thereafter, PW2 Sugandhabai brought Laxmibai to the same hospital and she was also oozing froth from mouth. The doctor started treating her as well. Laxmibai died at 9:20 pm while Balu died 10 minutes thereafter.
(xvi) Doctor from Rural Hospital at Mantha reported the matter to the PI of Mantha Police Station on the same night. On 23.06.2001, in the morning at 07:30 a.m. to 09:05 a.m., two inquest panchanamas were drawn ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 14 APEAL504.2002 (Exh. 10 & 11 admitted). Thereafter, from 10:00 to 12:00 noon, Post-mortems were conducted on both the dead bodies. PM reports were admitted (Exh. 12 &
13). Hence Medical Officer was not examined. Those disclosed signs of poisoning like froth oozing from mouth, cyanosed finger nails, mouth & lips and froth in lungs and viscera was preserved and tentative opinion was given as 'death due to asphyxia due to poisoning'.
(xvii) On 23.06.2001 at 05:30 PM, spot panchanama (Exh.31) was drawn in presence of PW6 Manohar. It was in the house of accused & PW1 Bhagwan. The remaining Besan, Bhakar pieces, a tin box containing 1 kg of sorghum (Jawar) flour and some sarees & blouses of the accused were seized. There was one white handkerchief having omits smelling of poison. A small piece of dough of Bhakar sticking to spatula was also having smell of poison. The panchanama shows that the sarees of the accused seized were also smelling of poison but the CA report does not support it.
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(xix) PW8 PSI was esquiring into AD case from 23.06.2001
and he had drawn spot panchanama. He stated that Bhagwan had informed him that his wife had mixed poison in the food. Therefore, she was brought to the police station and FIR of PW1 Bhagwan came to be recorded on 24.06.2001 at 1:15 p.m. Initially it was registered as Station Diary Entry and later on as crime No. 0031/2001. Then the accused was arrested. Baniyan and pant of Balu were seized but arrest panchanama and the seizure panchanama are not proved.
(xx) On 29.06.2001, in presence of PW6 & PW7 Bhagwan Watane, the accused made voluntary statement that she had mixed poison in Besan and she was ready to produce the tin of poison concealed in Bin in the kitchen of her house. PW7 Bhagwan Watane only stated that she was ready to produce the tin of poisonous insecticide from her house. Accordingly, her memorandum (Exh. 38) was recorded by PW8 PSI Rathod. Thereafter, the accused took the panchas and ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 16 APEAL504.2002 the police to her house and produced one tin of 100 ml of Varnish paint containing 10 ml poisonous substance. As per panchanama Exh. 39, it was in a Bin which was filled up with grooms and a small whole was made at the bottom for concealing the tin. (xxi) PSI Rathod recorded statements of other witnesses on 24.06.2001 and he forwarded the seized articles to CA. The CA reports dt. 31.08.2001 Exh. 25 & 26 admitted by the defence. Those show that the articles were sent to CA on 03.07.2001 in a sealed cartoon box. Report Exh. 25 shows sorghum flour in a tin, Sr. no. 10-Besan, Sr. no. 11-Bhakar pieces and Sr no. 11 fleeping tool and all contained Organochloro insecticide Endosulfan (Thiodan). The tin produced by the accused at Sr. no. 15 also contained the same poisonous insecticide.
11. On careful hearing the arguments advanced by learned APP for the State and Smt. Rasal for the accused, we proceed to appreciate the evidence.
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12. It is found that, family of PW1 Bhagwan is a poor family from a village. It is having some agricultural lands. There is no record to show that they were having any enmity inter se or with any outsider. PW1 Bhagwan had married to the accused 2½ months before the incident dt. 22.06.2001. There is un-controverted evidence that said marriage was not liked by the accused. She openly disclosed to PW1 Bhagwan that she disliked him. She was not allowing him to touch her. Their marriage was not consummated. This evidence is not at all challenged.
13. During short cohabitation period of 2½ months, the accused Ayodhyabai had gone to her maternal house twice and stayed their for some days. Again on 21.06.2001, on her request she was taken to her maternal house but on the next day she returned along with PW1 Bhagwan at 1:00 p.m.
14. In the house of PW1 Bhagwan, his mother Laxmibai, the accused Ayodhyabai, and family of his brother Vishnu were residing. On the relevant date, wife of Vishnu and his daughter were not in the house. Thus, on 22.06.2001, PW1 Bhagwan, his wife Ayodhyabai, his mother Laxmibai, his nephew Balu aged 5 years and his brother Vishnu were only members present in the house. Further evidence ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 18 APEAL504.2002 shows that, his brother Vishnu went to Asola to bring his wife back. There is evidence that, on 21.06.2001, the flour of Sorghum and Chickpea were brought and the family must have used them on 21.06.2001 and on 22.06.2001, in the morning. That time the persons consuming food had no problem.
15. It is crystal clear that, at 5 to 6 p.m. deceased Balu & Laxmibai consumed Besan and Bhakar containing poison and due to poisoning, they became unconscious and froth started oozing from their mouth. They were hospitalized at Civil Hospital at Mantha but on the same day at 09:20 & 09:30 p.m. both of them died due to poisoning. CA reports clearly indicate that the poison was found in the cooked Besan, baked Bhakar and in the flour of sorghum (Jawar). The case in the trial court was conducted by Sessions Judge, Parbhani. He held that homicidal death was not proved. There is no material whatsoever to indicate any possibility of spraying of insecticide in a small room where there was cooked food. At the relevant time, PW1 Bhagwan had gone to his field while Vishnu had gone to Asola to bring his wife. The accused had remained silent as to what happened on the date of incident from 11:00 to 05:00 p.m. The accused, Laxmibai and Balu were the only persons present in the house.
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16. In case of accidental poisoning, the bottle containing poison would have been found near the spot. No such bottle was found on the spot. Besides, had the poison been accidentally mixed with flour of sorghum or flour of Besan, it could not have been mixed with both the flours simultaneously. CA report shows that, Bhakar, cooked Besan as well as flour of sorghum were containing Organochloro insecticide Endosulfan (Thiodan) poison.
17. Considering the time of three or three and half hours or more for causing death of Balu & Laxmibai, it can be inferred that the quantity of poison mixed in Bhakar & Besan might be quite low. It is not much relevant that, the poison was in liquid form and it was also found in the sorghum flour. The sorghum flour was in a small tin. It is common knowledge that while baking Bhakar, some flour is used for spraying on the Bhakar so as to avoid sticking of Bhakar to the span. This fact coupled with the conduct of the accused as disclosed herein above rule out possibility of accidental poisoning.
18. The following are the circumstances which indicate involvement of the accused in the crime.
(a) PW1 Bhagwan has deposed that, the accused
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disliked him and was not allowing him to have sex with her. She used to run away and sleep near her mother-in-law Laxmibai. This evidence is uncontroverted.
(b) During short period, the accused had gone twice to her maternal house and had stayed long at the time of first visit. She was taken to her maternal house by PW1 as per her request on 21.06.2001.
(c) The facts indicate that the flour of Sorghum & Besan contained no poison till the meals on 21.06.2001 morning. It is common knowledge that flour of sorghum is used everyday for baking Bhakar which is every day's food for rural families. PW3 had stated that, when Ayodhyabai was not there, they had no problem with the food earlier.
(d) On 22.06.2001, PW1 Bhagwan and the accused
came home at 1:00 p.m.
(e) When PW3 Vishnu was searching her suitcase to see
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whether she brought any sweet for his son, she accused did not allow him to open it. During 3:00 to 05:00 p.m., the accused and her mother-in-law Laxmibai and Balu were the only persons at house. Her husband had gone to field and Vishnu had gone to Asola.
(f) PW1 Bhagwan & PW3 Vishnu had absolutely no reason to mix poison in the food. If at all PW1 would have mixed it for poisoning his wife, he would not have allowed his mother and nephew to eat the said food.
(g) There is evidence of PW1 Bhagwan that the accused baked Bhakar & cooked Besan. The CA reports disclose the poison in both the articles.
(h) After arrest of the accused, she has discovered a bottle containing the same poison from a Silo. There was argument to show that at the time of spot panchanama, this Bin was not searched. However, the said Bin was filled with brooms. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 :::
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(i) PW1 Bhagwan tasted small quantity of Besan left
behind by Balu and he stated that it smelt like poison. This is exaggeration. Deceased Balu & Laxmibai had consumed Besan & bhakar. They did not taste anything poisonous, otherwise they would not have consumed it. However, there may be some smell which could not have been perceived by Balu & Laxmibai, but was perceived by PW1 Bhagwan. It is common knowledge that, power of perception of smell differs from person to person. PW1 could suspect some foul smell. It was not suspected by Balu & Laxmibai. There is undisputed fact that they had consumed Bhakar & Besan and had died whereas; PW1 Bhagwan did not eat Besan & Bhakar. He had tasted besan & bhakar & spat it & gurgled.
(j) PW1 Bhagwan had asked his wife Ayodhyabai and she had given explanation that, she had used kerosene for lighting hearth and the food might be having smell of kerosene. PW1 did not suspect the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 23 APEAL504.2002 said statement. It means the smell was not poisonous but there might be some foul smell to the food.
(k) There is subsequent conduct of the accused that she did not eat food in her own house. She went to the house of her neighbor Sugandhabai and requested her to allow her to cook food in her house and in spite of objections by Sugandhabai, she cooked food in her house. She also requested her to allow her to stay in her house for 2-3 days. PW1 Bhagwan stated that Sugandhabai told him that the accused would be staying in her house. PW1 declined to Ayodhyabai's request to stay in the house of Sugandhabai. PW1 Bhagwan might have felt that the accused was trying to avoid proximity to avoid sex relations between him and her. He might have felt that she might be scared about the sexual relations. He had no suspicion against her.
19. No doubt, there is delay in lodging the FIR but we find that the circumstances on record are sufficient to explain the said delay. ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 :::
24 APEAL504.2002 The evening of 22.06.2001 was spent in taking Balu & Laxmibai to the hospital at Mantha and giving them medical treatment. They had died at Mantha at 9:20 p.m. and 09:30 p.m. respectively. Considering the grief of death of two persons in the house coupled with the problem of transport in rural areas, it cannot be expected that PW1 or PW3 should have gone to the Police Station first. On the following date, the police recorded accidental death and started inquiry. Inquest panchanamas were drawn. The bodies were sent for post-mortem. PW1 might have felt that the police are taking cognizance of the serious event. Thereafter the funeral was conducted. The evidence of PW6 - Manohar shows that, the spot panchanama was drawn on 23.06.2001 (Exh. 31) at 05:30 p.m. PW8 PSI Rathod stated that, Bhagwan informed him that Ayodhyabai had mixed poison in the food but he did not state that on what date and at what time Bhagwan disclosed this fact to him. The spot panchanama showing seizure of not only Besan, flour of Sorghum and pieces of Bhakar cooked but also several sarees & blouses of the accused. It shows that PW1 Bhagwan must have disclosed to the police his suspicion against wife but as long as there was no specific report of death, the police might have shown reluctance to register the FIR. The PM was conducted on 23.06.2001 and after the opinion of the Medical Officer that Balu & Laxmibai died due to asphyxia due ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 25 APEAL504.2002 to poisoning. the police have recorded the FIR of PW1 Bhagwan. Considering the sequence of events, when the PM was over by 12:00 noon on 23.06.2001 and thereafter some time was consumed in funeral, the intimation about the suspicion of PW1 against his wife in the evening of 23.06.2001 cannot be said to be delayed intimation.
20. Besides, it must be also considered that two members of the family of PW1 Bhagwan had died of poisoning, PW1 must be in tremendous shock. In such situation, some delay on the part of bereaved person is understandable. We rely upon Gurbachan Singh Vs Satpal Singh & Ors. AIR 1990 SC 209 wherein it is held that, delay upto 24 hours in such a case is not suspicious. It is held that "the courts must strictly be satisfied that no innocent person, innocent in the sense of not being guilty of the offence of which he is charged, is convicted, even at the risk of letting off some guilty persons. There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 26 APEAL504.2002 that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law".
21. Learned Sessions Judge held that the accused had no motive to kill Balu & Laxmibai. However, we find that the accused was a young married lady and she extremely disliked her husband. She was not ready to have sex relations with him and she might have taken extreme decision of poisoning to kill her husband. It is quite probable that she might have intended to kill all the family members or she might not have intended to kill her nephew and mother-in-law but they might have consumed the food poisoned by her without any opportunity to her to stop them from consuming food. Subsequent conduct of the accused is not consistent as a family member. When nephew was taken to the hospital, the accused should have taken her mother in law to the hospital but it was Sugandhabai who took her mother-in-law to the hospital. When Balu fell down, the accused could have easily suspected that he must have been poisoned and she could have told her mother-in-law not to eat food as it might have been poisoned but she has not done so. The accused herself did not eat the same food on that night and went to Sugandhabai's house for food and residence.
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22. On careful consideration of the evidence on record, we find that PW1 Bhagwan and PW2 Sugandhabai and PW3 Vishnu had no reason to falsely implicate the accused in such a serious charge of double murder. Their evidence is cogent, consistent and cannot be doubted only on the ground of some delay in lodging the FIR. Considering the evidence in entirety, we find that it was not a case of accidental poisoning but a deliberate poisoning. At the relevant time, the accused alone had opportunity to poison the food. Deceased Laxmibai, PW1 Bhagwan & PW3 Vishnu could not have indulged in poisoning which could have killed their loved one. It is a case of custodial death by poisoning and the evidence that the accused cooked the food is the most natural and probable fact. Nobody else could have cooked the food except Laxmibai and if Laxmibai would have cooked and poisoned food, she would not have eaten it. The circumstances discussed herein above, in our opinion, form a complete chain so as to rule out any other hypothesis except the guilt of the accused. The silence of PW1 and her failure to give any explanation to the circumstances appearing against her go against her in view of Section 106 of Evidence Act. Absence of any explanation by her is an additional link which strengthens our view that the accused and accused alone must have poisoned food which took away the lives of Balu & Laxmibai.
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28 APEAL504.2002
23. We rely upon Trimukh Maruti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681, wherein in para 16 it is observed that, when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
24. Though PM reports were admitted, ld. Sessions Judge ought to have examined Medical Officer to prove the opinion regarding murder. However, in the present case, PM notes are mainly based on the report of CA, which clearly shows poisoning and, therefore, in the present case the non-examination of Medical Office is not a material lacunae. In the present case, there is no doubt whatsoever that Balu & Laxmibai died of poisoning. PW1 Bhagwan was fortunate that he did not consume the food but he had tasted the food and suspected about the smell. He spat the food and gurgled and was fortunate not to be got poisoned. We find that the accused had engaged advocate of her own choice. He has not effectively cross-examined the witnesses but it cannot be a ground to direct re- trial. We find that the circumstances on record indicate that not much difference could have resulted. We find that, the accused has ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 29 APEAL504.2002 not suffered prejudice inasmuch as the admitted facts on record would have clinched the issue disclosing the culpability of the accused in the crime. In this regard, we rely upon A.G Vs Shivkumar Yadav 2015 Cr.L.J. 4640 SC.
25. We, therefore, do not agree with the casual findings recorded by the ld. Sessions Judge. As per Section 301 of IPC, when a person A poisons the food in order to kill person B but the food is consumed by persons C and D and as a result death of C & D is caused, A is guilty of committing murder of C & D.
26. The above facts also indicate that the accused attempted to commit murder of her husband by poisoning besan & bhakar. PW1 Bhagwan had tasted the food and if he would have consumed it, he would have died but he suspected that it was poisoned and he spat the food, gurgled and therefore he was not poisoned. These facts make out offence u/s 307 of IPC by the accused of attempting to commit murder of her husband. No other point has been raised in the appeal.
27. We are therefore inclined hold the accused guilty for committing murder of Balu & Laxmibai and attempting to commit murder of her husband PW1 Bhagwan. It is necessary to hear ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:23 ::: 30 APEAL504.2002 accused on the point of sentence. Hence, the following order.
ORDER
(i) The Criminal Appeal No. 504 of 2002 is allowed.
(ii) The accused is held guilty for offence punishable u/s 302 for committing murder of Balu by poisoning and again u/s 302 of IPC for committing murder of Laxmibai by poisoning.
(iii) The accused is also held guilty for offence punishable u/s 307 of IPC for attempting to commit murder of her husband by poisoning.
(iv) The bail bonds of the accused are forfeited and the police of the concerned Police Station are directed to produce the accused before us on 30.10.2017 for hearing her on the point of sentence.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
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