Cri. Appeal No. 68 of 1992

20th May, 1993.

Petitioner Counsel: Mr. T. C. Mazumdar, Mr. A. S. Choudhury and Mr. J. Ahmed,
Respondent Counsel: Mr. D. Goswami, Public Prosecutor, .

Cases Cited:
1972 Cri LJ 860,AIR 1972 SC 1331 [Para 5]
1960 Cri LJ 682,AIR 1960 SC 500 [Para 5]

JUDGMENT

BHAT, C. J. :-Accused in Sessions Case No. 31(B) of 1990 on the file of the Sessions Court, Barpeta, who was convicted under Section 302, Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- is the appellant herein.

2. The prosecution case can be summarised as follows :-

Jamela, daughter of P.W. 3, and the appellant came to be on terms of intimacy as

a result of which she became pregnant. Appellant refused to marry her. The occurrence took place when she was six months pregnant. Late in the night on 11-2-1989 (in the early hours of morning of 12-2-1989) when the male inmates of Jamela's house were absent, appellant went there armed with a dagger, threatened the inmates of the house and forcibly took Jamely to a nearby field and forced her to drink some liquid. She cried out to others to rescue her but that was in vain. When P.Ws. 3 to 5 reached the field, appellant had disappeared and Jamela was lying on the ground. A glass and a piece of paper were found nearby. Jamela was taken home. Jamela told P.Ws. 4 and 5 that the appellant administered medicine to her and that she wished that Allah may do him good. Immediately she died. Hearing the outcry P.Ws. 2, 6 and other neighbours came there. P.W. wrote Ext. 1 ejahar as required by P.W. 2 who gave it at the Howli Police Out-Post where it was received by the Officer-in-Charge. He sent it to Barpeta Police Station where a case was registered against the appellant. P.W. 9 was directed to take charge of the investigation. He went to the scene of occurrence and held inquest over the dead body of Jamely. P.W. 1 performed autopsy. P.W. 9 questioned witnesses, seized the mat on which the dead body was found in the house and the glass found at the scene of the occurrence. He arrested the appellant and after completing investigation, laid the charge against the appellant.

3. On the appellant pleading not guilty to the charge, prosecution examined 9 witnesses. The appellant did not tender any evidence. The appellant when questioned denied all the aspects of the prosecution evidence. Sessions Court, however, acted on the prosecution evidence and convicted and sentenced the appellant as stated above.

4. Post Mortem report prepared by P.W. 1 shows that deceased was a healthy young lady aged about 20 years. According to the report the following are the relevant findings :-

Mouth - Partially open, teeth closed, discharge seen from the mouth and nose.

Laryax, trachea, peritonoum, Oespohagus, stomach, liver, spleen, kidneys - congested.

Heart - both sides contained dark colour blood.

Great vesels - filled with dark colour blood.

Other organs - healthy.

Uterus - about 24 weeks size and after dissection, one female dead foetus of 24 weeks age was found.

P.W. 1 preserved viscera for chemical examination. He was not prepared to give any opinion about the cause of death in the report he stated that cause of death could not be ascertained until the result of death could chemical examination was made available. P.W. 9 admitted that he did not send the viscera for chemical examination. Thus, P.W. 1 was denied opportunity of having the assistance of the views of chemical examination in formulating his opinion about the cause of death.

5. According to the learned counsel for the appellant, in the absence of medical and scientific evidence and in view of the failure of the investigator to have the viscera and the glass and the contents, if any, subjected to chemical examination, acquittal of the appellant should follow. We may in this connection refer to two decisions, namely, Anant Chintaman Lagu v. The State of Bombay, AIR 1960 SC 500 : (1960 Cri LJ 682) and Mahabir Mandal v. State of Bihar, AIR 1972 SC 1331 : (1972 Cri LJ 860).

6. In Anant Chintaman Lagu's case reference was made 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 Supreme Court cautioned that the tree propositions were laid down not as the invariable criteria of proof by direct evidence in the case of murder by poisoning. The Supreme Court noticed that there have been cases in which conviction was maintained, even though the body of the victim had completely disappeared, and it was impossible to say, except on circumstantial evidence, whether that person was the victim of foul play, including poisoning. Though the 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 circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that the 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. The court further observed at page 703 (of Cri LJ) :

"What assistance a man of science can give he gives; but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is nothing else such a course would be incumbent upon the prosecution."

7. Mahabir Mandal's case was one of the alleged death by poisoning. The doctor who performed autopsy and was declared hostile at the instance of the prosecution, deposed that death might have been a normal death and ruled out an asphyxial death or death by morphine poisoning. The Police Surgeon examined in this case also was unable to form any opinion regarding cause of death. He merely stated that death had resulted due to respiratory failure, that is, asphyxia, and poisoning is one of the causes of respiratory failure. Chemical Examiner detected no poison in the viscera. The Court referred to the observations by Mody to the effect that it is quite possible in case of death by poisoning that no trace of poison could be found on the body. The Court also referred to the observations in Anant Chintaman Lagu's case and on an analysis of the circumstantial evidence, sustained the conviction of the appellant.

8. In absence of evidence regarding result of chemical examination of the viscera and the glass it may perhaps be said that the scientific evidence is negative. If there is nothing else in the case, this negative evidence may be decisive against the prosecution. However, if there is other evidence in the case, it is the duty of the court to examine the evidence with care and caution and to see whether such evidence, in the absence of positive scientific evidence or direct proof of the three elements referred to is so decisive that the court can unhesitatingly hold that the death was a result administration of poison and that the poison must have been administered by the accused person.

9. First information in the case was given by P.W. 2, a neighbour who went to the house of Jamela after the occurrence. In the first information statement it was stated that appellant caused the death of Jamela by poisoning her. This was based on information given by P.W. 3.

10. Prosecution strongly relied on the evidence of P.Ws. 3 to 7 to establish its case. The evidence indicates that P.W. 3, her husband, sons and two daughter-in-law including P.W. 4, granddaughter of P.W. 5 as well as Jamela lived in the same house. However, Jamela used to sleep in the outer room which was used as a kitchen.

11. P.W. 3 deposed that Jamela used to go to the house of the appellant often. He also used to visit her house during the period of 5 or 6 years in spite of her objection and on that account she filed complaint before the police on two occasions and Jamela became pregnant and the local people wanted the appellant to marry her. It was suggested to her that Jamela was not pregnant, thatbesides the appellantothers were also visiting her, that some other person was responsible for

her pregnancy and death. She denied the suggestion. P.W. 4 deposed that the appellant had a love affair with Jamela and used to visit her house frequently during the period of 5 or 6 years and used to take her to another house and Jamela became pregnant. This led to a Panchayat (Bichar) in which the Headman and others participated. It was decided that the appellant should marry her but he refused to do so. In cross-examination it was suggested to her that Jamela became pregnant by others and Jamela herself administered "medicine". The suggestion was denied P.W. 5 who was aged about 13 years at the time of the occurrence deposed that the appellant used to visit the house frequently during the time of 5 or 6 years and had a love affair with Jamela who became pregnant, that the appellant used to stay with Jamela on some occasions and that the appellant did not abide by the decision of the Panchayat. P.W. 6 deposed that the appellant was visiting Jamela during the period of 5 or 6 years with a view to marry Jamela and he used to spend nights occasionally there. P.W. 7, the wife of P.W. 2 and the aunt of the deceased, was declared hostile. She was confronted with her case diary statement where she had spoken about Jamela having intimacy with the appellant and becoming pregnant through the appellant.

12. Learned counsel for the appellant contended that P.Ws. 3 to 5 are close relations of Jamela and interested persons, that P.W. 3 had filed complaints against the appellant earlier and going by the evidence of P.W. 6, appellant had assaulted P.W. 3's husband and therefore these witnesses must be regarded as hostile to the appellant and their evidence cannot be accepted without independent corroboration. Learned counsel also commented on the non-examination of the neighbours to prove the alleged intimacy between Jamela and the appellant and of the Village Headman and others who participated in the Panchayat. In regard to the matters spoken to by P.Ws. 3 to 5, they are the best persons to give evidence. Persons, who participated in the Panchayat may at best speak about the rival versions given to them and the opinion formed by them which may not have much evidentiary value. Having carefully gone through the evidence of P.Ws. 3 to 5, as also the various suggestions put in the cross-examination we are inclined to hold that the above evidence inspires confidence and could be acted upon to hold that Jamela became pregnant through the appellant. The medical evidence shows that she was 24 weeks pregnant at the time of the occurrence. There can be no doubt that the appellant was not prepared to marry Jamela.

13. We will now revert to the events on the night of the occurrence. There is no direct testimony regarding administration of "medicine" or poison by the appellant. P.W. 3 deposed that on the night in question the appellant came to their house with a dagger, threatened them and forced Jamela to go out with him to a field. He had a glass of water, She and P.W. 5 followed them. She heard Jamela crying and shouting to P.W. 3 to rescue her as otherwise the appellant will make her drink "medicine". After the occurrence, Jamela was taken home and she died. At the time of the occurrence there was no male member in the house. P.Ws. 4 and 5 fully supported the evidence of P.W. 3. They had seen the appellant forcibly taking Jamela to the field. When they reached the scene they did not see the appellant but saw Jamela lying on the ground with a glass with a little water beside her. They escorted Jamela home. Jamela told them that Sohrab (appellant) administered "medicine" to her and let Allah do good to him. P.W. 7, the hostile witness, deposed that at dawn P.W. 3 called her to see Jamela. She went and saw Jamela lying dead on a mat in the kitchen. P.W. 3 told her that the appellant killed Jamela by poisoning her.

14. Learned counsel for the appellant contended that the evidence of P.Ws. 3 to 5 is highly discrepant and unbelievable, particularly because they are interested witnesses. Being the inmates of the house they had the best opportunity to witness the earlier and later part of the occurrence,

though not the actual administration of any "medicine" or poison. They are therefore natural witnesses to these events. Their evidence cannot be brushed aside merely on the ground that they are close relations of Jamela and had grouse against the appellant. There are some minor contradictions in their evidence as to who actually fetched Jamela home. We do not think these contradictions really affect the creditability of the witnesses. P.W. 3 did not speak about any statement made by Jamela. It is quite possible that P.W. 3 in the condition in which she must have been, either did not hear or pay heed to it while P.Ws. 4 and 5 heard the statement. We find no reason to doubt any part of the evidence of these witnesses.

15. The statement made by Jamela to P.Ws. 4 and 5 that the appellant administered "medicine" to her certainly relates to the circumstances of the transaction which resulted in her death and is relevant under Section 32(1) of the Evidence Act. The evidence indicates that Jamela at the relevant time was under expectation of death. The declaration of Jamela spoken to by P.Ws. 4 and 5 is amply corroborated by the other parts of their evidence to the effect that the appellant forcibly took Jamela to that place and the evidence of P.W. 3 that the appellant had a glass in his hand, as also the evidence of seizure of glass from the scene. We find that the evidence of P.Ws. 3 to 5 wholly acceptable.

16. The following circumstances have been clearly proved by the prosecution :

(a) Appellant was on terms of intimacy with Jamela, and she became pregnant. She was six months pregnant at the time of the occurrence;

(b) Appellant was not prepared to marry Jamela;

(c) On the night of the occurrence, appellant went to Jamela's house with a dagger and forcibly took Jamela to a nearby field. At that time he had a glass with some water;

(d) Jamela cried out to her mother to rescue her as otherwise appellant would make her drink "medicine".

(e) Shortly thereafter P.Ws. 3 to 5 reached the scene and found Jamela lying on the ground and the glass and a paper nearby. The glass was seized by P.W. 9.

(f) Jamela was taken home. She told P.Ws. 4 and 5 that appellant administered "medicine" to her and let Allah do good to him. Shortly thereafter she died;

(g) Post-mortem showed teeth closed, discharge from mouth and nose, vital organs congested and dark colour blood in chambers of the heart and great vessels. These features are not inconsistent with death by using certain varieties of poisonous substances.

17. According to the learned counsel for the appellant, the evidence is not sufficient to establish either poisoning as cause of death or that the appellant was the culprit, particularly in the absence of chemical examination of viscera and the contents, if any, of the glass. We are indeed sorry to notice the scrappy and haphazard manner of investigation conducted by P.W. 9. This is not the first occasion when we notice such careless and negligent work on the part of investigating officers. We wonder whether the higher officers do

actually scrutinize the case diaries or exercise any supervision over investigation or the work of investigator. The failure of P.W. 9 to send the viscera and the glass for chemical examination was, in our opinion, not mere carelessness. We are inclined to think that it was a motivated omission on the part of the investigator.

18. On a careful and anxious consideration of the proved circumstances referred to above we have no doubt in our mind that the appellant forcibly administered some "medicine" to Jamela when she was six months pregnant and the "medicine" caused her death. This conclusion is irresistible even in the absence of medical or scientific evidence to show presence of poison either in the viscera or the glass. The proved

circumstances are inconsistent with innocence of the accused and are consistent only with his guilt.

19. What is the offence brought home to the appellant ? It is contended by the learned counsel for the appellant that assuming that the circumstances point to the appellant as the author of the crime it may at best be taken that what he intended was abortion of the foetus and not death of Jamela. That of course is possible, even probable. According to the learned counsel for the appellant the offence may attract Section 314, I.P.C., but not Section 302, I.P.C.

20. The circumstances of the case are not sufficient to show that the administration of the "medicine" was done with the intention of causing death or causing such bodily injury as the appellant knew to be likely to cause death to Jamela or with the intention of causing bodily injury to Jamela and the intended bodily injury was sufficient in the ordinary course of nature to cause death. Hence, Firstly, Secondly and Thirdly of Section 300, I.P.C. are not attracted.

21. Fourthly of Section 300, I.P.C. applies where the offender knows that his act was so imminently dangerous that it must, in all probability, cause death or such bodily injury as it likely to cause death and he commits the act without any excuse for incurring the risk of causing death or such injury as aforesaid. This is aggravated form of the offence covered by last clause of Section 299, I.P.C., namely, causing death by doing an act with the knowledge that he is likely by such act to cause death. Jamela was six months pregnant at the time of the occurrence. There is nothing in the evidence to indicate that the appellant knew that his act was so immediately dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death. Therefore, Fourthly of Section 300, I.P.C. is also not attracted.

22. Section 314, I.P.C. reads as follows :

"314. Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such

Death caused by act done with intent to cause miscarriage.woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine,If actdone without woman's consent.And if the act is done without the consent of the woman, shall be punished either withimprisonmwnt for life, or with the punishment above mentioned.

Explanation. - It is not essential to this offence that the offender should know that the act is likely to cause death."

If an act which caused death of a woman is done with the intention to cause miscarriage of the woman with child, Section 314, I.P.C. is attracted.

23. The proved circumstances clearly establish that the appellant forcibly administered "medicine" to Jamela. That must have been done with intent to cause miscarriage since she was six months' pregnant. This act caused her death. Hence, the act of the appellant clearly attracts Section 314, I.P.C. Since the act was done without her consent, appellant is liable to be punished either with imprisonment for life or with imprisonment of either description for a term which may extend to ten years.

24. The charge framed against the appellant by the Sessions Court refers only to Section 302, I.P.C. and not to Section 314, I.P.C. However, we find that the charge refers to causing the death of Jamela by administering a poison at the time when she was six months' pregnant. The broad facts necessary for a charge under Section 314, I.P.C. are seen incorporated in the charge framed in the Sessions Court. Therefore, on the facts of this case, the court can convict and sentence the appellant under Section 314, I.P.C.

This finding is justified by the particulars given in the charge and the evidence recorded in the presence of the appellant. The question of prejudice to the appellant does not therefore arise.

25. We therefore set aside the conviction and sentence entered against the appellant under Section 302, I.P.C. instead, we convict him under Section 314, I.P.C. and sentence him to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 20,000/- (Rupees twenty thousand) and, in default, to undergo rigorous imprisonment for two years. The fine amount, if realised shall be paid to P.W. 3, the mother of the victim, and in her absence, to her next heirs.

26. The appeal is disposed of accordingly.

27. A copy of the judgment will be forwarded to the Secretary to the Government of Assam in the Home Department for necessary action in regard to what is indicated in paragraph 17 of the judgment.

Order Accordingly