Bombay High Court
The State Of Maharashtra vs Ayodhyabai Bhagwan Musale on 13 October, 2017
Bench: T.V. Nalawade
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.
2 APEAL504.2002
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
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
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.
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.
6 APEAL504.2002
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
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.
8 APEAL504.2002
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
9 APEAL504.2002
[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
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.
11 APEAL504.2002
(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.
12 APEAL504.2002
(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.
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
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.
15 APEAL504.2002
(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
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.
17 APEAL504.2002
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
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.
19 APEAL504.2002
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
20 APEAL504.2002
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
21 APEAL504.2002
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.
22 APEAL504.2002
(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
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.
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
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
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.
27 APEAL504.2002
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.
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
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
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
