Criminal Appeal No.392 of 1995

25th June, 2001

Petitioner Counsel: Shri. R.M. DAGA & Ms. KALSI
Respondent Counsel: Shri. DIPAK THAKRE

JUDGMENT

J. N. PATEL, J. :- Heard Mr. Daga and Ms. Kalsi, learned counsel for the appellant and Mr. Thakre, learned Additional Public Prosecutor for the respondent/State.

2. The appellant is challenging his conviction and sentence in Sessions Trial No.80/1990 by the 10th Additional Sessions Judge, Nagpur, who found the appellant guilty of having committed an offence under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life, by his judgment and order dated 25.9.1992.

3. The appellant was married to deceased Durgabai and they were residing at village Sawangi. On 28.9.1989 at about 1.30 p.m., the accused along with his wife Durgabai returned from weekly bazar. At that time, the accused was holding a stick in his hand and has assaulted his wife on her waist as she did not give him money for weekly bazar. On being assaulted, Durgabai ran towards her house, the accused forcibly administered 'endrin', an orgono phosphorus used as insecticide. Immediately thereafter Durgabai came out of the house and started shouting that her husband administered her endrin and she should be saved. When the accused followed her, she ran towards the house of Police Patil. The accused chased her with a stick in his hand. This was witnessed by Bhayya Ganpatrao Nagmote (P.W.7). It appears that the victim sought shelter at the house of Bayanabai w/o Sheshrao Nagmote (P.W.6) and told her that she was administered endrin by her husband and that she should be saved. Victim Durgabai was followed by her husband who questioned Bayanabai (P.W.6) about his wife. The accused was drunk at that time and abused the witness as she has given shelter to his wife. As deceased Durgabai was sitting in her Chhapri, she went to her husband's elder brother who was just residing nearby i.e. Bhayyaji Nagmote, for help, as she was alone in the house. When Bhayya arrived, they saw that the accused was beating Durgabai with kicks and fist blows by sitting on her chest. On this, Bhayyaji (P.W.7) requested that there was froth coming out from the mouth of the deceased, and that he should not beat her. On that, the accused told him that he has no reason to interfere. Therefore, Bhayya caught told hair of the accused and removed him. On this, the accused pelted stone on him and ran away. The incident was witnessed by so many persons in the village. Thereafter, Bhayyaji rushed Durgabai to her house and found that her condition was serious. He tried to take her to hospital, but as there was no help, he went to his house and, thereafter came to know that Durgabai has died.

4. Damodhar Tukaram Thakre (P.W.9), Police Patil of the village noticed some persons were assembled at the house of accused. So he went there and found that Durgabai is dead and he saw the froth emanating from her mouth and she has vomited. Therefore, he wrote down a report and sent it to Police Station, Butibori along with one Hanuman Ingole. On receiving the information, Head Constable from Police Station, Butibori registered the case as that of suicide vide No.15/1989 and visited the village. He prepared inquest panchanama (Exhibit 30) in presence of the panchas and thereafter the dead body of the deceased was sent for post mortem examination. On making further enquiries, the Police Head Constable came to know that deceased Durgabai had died because her husband administered endrin to her and, therefore, Police Head Constable Bhagwan made a detailed report (Exhibit 38) to the Police Station Officer and offence under Section 302 of the Indian Penal Code came to be registered against the accused vide Crime No.113/1989. The Police also prepared scene of offence panchanama and collected the incriminating articles which were sent to the Chemical Analyser for his examinaton and report.

5. On completing the investigation, the charge sheet came to be filed in the Court of Chief Judicial Magistrate, Nagpur against the accused for having committed offence under Section 498-A and Section 302 of the Indian Penal Code. The case on being committed to the Court of Sessions, was tried by the Additional Sessions Judge, Nagpur.

6. On 23.12.1991, the appellant/accused was charged for having committed murder of his wife Durgabai by administering poison like organochloro insecticide endosulfan (thiodan) on 28.9.1989 at about 2.30 p.m. at his house situated at Sawangi and, therefore, committed an offence punishable under Section 302 of the Indian Penal Code. The accused was also charged for having subjected Smt. Durgabai, his wife, to cruelty such as beating, harassing and illtreating on account of money and thereby committed offence punishable under Section 498-A of the Indian Penal Code.

7. The appellant/accused did not plead guilty and claimed to be tried. It was his case that it is Bhayya Nagmote (P.W.7) and Bayanabai Nagmote (P.W.6) who have beaten his wife and also assaulted him with an iron rod on his head of which he has given report to Police Patil and also went to Bori Police Station. According to the appellant/accused, he does not know how his wife died. He only saw his wife lying dead on the road in front of his house.

8. During the trial, the prosecution examined in all 13 witnesses to prove its case. On conclusion of the trial, the learned Additional Sessions Judge found Durgabai w/o Manohar Maraskolhe died by homicidal death and that accused is responsible for causing death of Durgabai by administering poison, but acquitted the appellant/accused of a charge under Section 498-A of the Indian Penal Code.

9. Mr. Daga, learned counsel appearing for the appellant/accused submitted that the prosecution has failed to prove that the deceased Durgabai died a homicidal death. According to Mr. Daga, Durgabai might have died unnatural death, but how and why, has to be proved by the prosecution, which, in this case, they have miserably failed to do and, therefore, in absence of any conclusive proof that Durgabai died homicidal death, the appellant deserves to be acquitted.

10. Mr. Daga, learned counsel submitted that the medical evidence led by the prosecution by examining Dr. Tank (P.W.1) by itself is not sufficient to prove that the victim died a homicidal death. It is submitted that in his cross-examination, Dr. Tank has, in terms, admitted that on performing post mortem examination, he has not mentioned the cause of death and as such the viscera was preserved. It is further submitted that the witnesses also accepted that he has not mentioned the suggestive cause of death due to poison. Mr. Durga further submitted that even if one examines the Chemical Analyser's report in respect of the contents sent to the Chemical Analyser, i.e. contents of stomach, viscera along with liver, spleen and kidney of Durgabai, the Chemical Analyser, as a result of analysis, found no recognisable poison detected from these parts as per his report Exhibit 50. According to Mr. Daga, the victim died on 29.9.1989 and the analysis was carried out by Forensic Science Laboratory as regards viscera and inner parts of the body of deceased Durgabai sent to them, on 6.11.1989 i.e. well within six months and if the victim has died of poisoning, it should have been present in the viscera and other parts of the body like liver, spleen and kidney or loop of intestine. Absence of poison in viscera and other parts of the body rules out that the victim died due to poison and if that is so, the prosecution case that the victim died homicidal death due to poison, fails. Mr. Daga submitted that Dr. Tank is very positive in his evidence before the Court when he says that if viscera is preserved six months or more, it will show poison. Therefore, according to Mr. Daga, expert witness examined by prosecution, i.e. Dr. Tank as also the Chemical Analyser's report (Exhibit 50), rules out that Durgabai died homicidal death due to administration of poison. Therefore, question of accused administering any poison to the victim does not arise. Mr. Daga submitted that witness namely Bhayya (P.W.7) and Bayanabai (P.W.6) have falsely implicated the accused as they are on hostile terms being neighbours and in fact they are responsible for assaulting his wife.

11. Mr. Daga submitted that even if the prosecution case is accepted that the appellant/accused assaulted his wife initially with stick and thereafter with fist and kick blows, even this is not established by the prosecution as no external injuries or corresponding internal injury is detected on the dead body of Durgabai by the panchas who have witnessed the inquest panchanama or in the post mortem report. This, according to Mr. Daga, goes to show that the witnesses are lying as their evidence of the appellant/accused assaulting his wife is not corroborated by medical evidence. Therefore, according to Mr. Daga, this is a fit case where the appellant can be safely acquitted.

12. Mr. Thakre, learned A.P.P. submitted that the prosecution has established that Durgabai died a homicidal death by leading evidence of Dr. Tank, medical expert and direct evidence on the point of the appellant/accused assaulting his wife with stick and fist blows, along with oral dying declaration made by the victim to the witnesses after immediately coming out from the house of the accused, that the husband has administered endrin and she should be saved.

13. Mr. Thakre submitted that an empty bottle of endrin along with lid also came to be seized from the scene of offence which sufficiently corroborates the prosecution case as the Chemical Analyser's report of the lid and the bottle is positive.

14. Mr. Thakre submitted that Dr. Tank, Medical Officer, examined by the prosecution, has clearly stated that in his opinion, death was caused due to poison as there was congestion of all organs that is the findings arrived at by the doctor while examining the dead body during the post mortem. It is further pointed out that in the opinion of Dr. Tank, it is not necessary that poison should be detected in viscera and that is how the Chemical Analyser's report is negative in respect of viscera and other internal parts of the body of Durgabai which were sent for analysis to the Forensic Science Laboratory. Therefore, according to Mr. Thakre, this is a case of homicidal death caused by the appellant/accused to his wife by administering endrin to her and, therefore, the appeal deserves to be dismissed.

15. Let us first examine as to whether the prosecution has proved that Durgabai died a homicidal death. In order to establish this fact, the prosecution has examined Dr. Ashok Hemraj Tank (P.W.1), who gave evidence that he conducted post mortem on 29.9.1989 between 11.20 to 12.25 p.m. and he found no external injuries on the body of the deceased and on internal examination all the organs were congested. Stomach contained about 400 ml. of whitish colour fluid, walls congested,soft, haemorrhage was present. The doctor also found that the victim was having conceived a child 3/4 months before. Dr. Tank has preserved the viscera for detection of any poison by Chemical Analyser and, therefore, reserved his opinion as to cause of death. According to him, opinion was suggestive of poison. The post mortem report (Exhibit 15) has been proved by him though in his cross examination Dr. Tank accepted that he has not mentioned the cause of death or even suggestive cause of death due to poison, but the fact remains that when he conducted the post mortem examination, he found on internal examination all the organs were congested and stomach contained about 400 ml. of whitish colour fluid, walls congested, soft, haemorrhage was present. This, according to Dr. Tank, was suggestive of death by poison.

16. Mr. Daga, learned counsel for the appellant has laid much emphasis on the findings of the Chemical Analyser, who found no recognisable poison detected in the viscera, liver, spleen and kidney of the deceased. No doubt that the Chemical Analyser's work is very important as usually his findings are final. But in a given case, even though a person may die due to poisoning, poison may not be detected in viscera. Dr. Tank, in his evidence, has stated that according to his opinion, it is not necessary that poison should be detected in viscera and he is right and his opinion also finds support from Modi's Medical Jurisprudence & Toxicology, 22nd Edition by Butterworths and particularly while dealing with the subject in Section 2 of his Book on Toxicology at page 22, the author has observed:-

"It is possible that a person may die from the effects of a poison, and yet, none maybe found in the body after death if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloids and glucosides, may, by oxidation during life or by putrefaction after death, be split up into other substances which have no characteristic reactions sufficient for their identification. Modi saw cases in which there were definite signs of death from poisoning, although the Chemical Examiner failed to detect the poison in the viscera preserved for chemical analysis. It has, therefore, been wisely held by Christison that in cases where a poison has not been detected on chemical analysis, the judge, in deciding a charge of poisoning, should weigh in evidence the symptoms, postmortem appearances and the moral evidence."

17. The learned A.P.P. has also placed before us Medical Jurisprudence & Toxicology by Dr. K.S. Narayan Reddy, Chapter 35, particularly of the category of organochlorine poison which is present in endrin, a commonly used insecticide by farmers, has observed;

"ORGANOCHLORINES"

The organochlorine (chlorinated hydrocarbons) can be divided into four categories: (1) DDT and analogues; DDT, methoxychlor, (2) Benzene hexachloride; gamma hexachlorobenzene (Lindane), (3) Cyclodienes and related compounds, aldrin, chlordane, chlordecone, dieldrin, endosulfan, endrin, hepatachlor, isobenan, mirex, (4) Toxaphene and related compounds. All of these pesticides are absorbed through skin, orally and via inhalation. DDT is the least well absorbed; these agents are highly lipid soluble. Endrin is rapidly metabolised and eliminated and does not persist in body tissues."

18. It is common knowledge that endrin is used as insecticide by farmers and is easily available to them. From the scene of offence, the investigating agency has been able to seize a bottle having few drop of liquid along with metallic lid which was sent to the Chemical Analyser for analysis. In the Chemical Analyser's report (Exhibit 21), the results of analysis shows result of detection of organochloro insecticide of endosulfan (Thiodan) in Exhibit 4, result of detection of orgtanochloro insecticide endosulfan (thiodan) and petroleum hydrocarban in Exhibit 5 i.e. the bottle are found. Therefore, independent of oral evidence of eye witnesses brought on record by the prosecution, we do not find any hesitation in arriving at the conclusion that Durgabai died homicidal death. From the evidence of Dr. Tank (P.W.1) and the findings given by him in the post mortem report (Exhibit 15), where he found the victim's mouth was closed- tongue inside the mouth, blood colour with oozing from mouth and nostrils referring to the brain. Under column No.18 meninges and brain congested edematous. Then in column No.21, referring to abdomen, the doctor found it contains 400 ml. of whitish fluid walls congested soft haemorrhages and the other part namely liver, suprarenals, spleen and kidneys all congested. This, in the opinion of Dr. Tank, is clearly indicative of poison.

19. Bhayya Ganpatrao Nagmote (P.W.7) is a natural witness to the incident, being a neighbour of the appellant/accused. His presence is not disputed at the scene of offence. On the other hand, it has been suggested to him that he, along with Bayanabai Sheshrao Nagmote (P.W.6) killed the deceased in the house of Bayanabai and that they assaulted the accused with iron rod in the house of Bayanabai. This witness has given details as to how the incident took place. He saw the wife of the accused running from the field and followed by the accused, who was having a stick. He has seen the accused giving blow of stick on the back of his wife because of which she ran to the house followed by the accused. The accused then threw away the stick and followed the deceased inside the house. The witness was standing there and watching the incident. He heard some sound like fall coming from the house of the accused and the shout was like "O" "O" coming from inside and within two minutes, the wife of the accused come out running and shouting that her husband had administered endrin to her and she be saved. The deceased then ran towards the house of Police Patil followed by the accused. The fact that the appellant/accused was chasing his wife and when she entered the house, the accused followed her and had sufficient opportunity to administer poison to her which is evident from fact that the witness heard the sound "O" "O", which is in consonance with the prosecution case that the victim was administered poison, as such sound would come only when something is forced into the mouth of a person; and the fact that immediately thereafter Durgabai comes out of the house and shouts that her husband has administered endrin to her and she be saved. The evidence of this witness stands corroborated by the evidence of Bayanabai (P.W.6) who appears to be his sister-in-law. The direction in which Durgabai went, followed by the accused chasing her, is the house of Bayanabai. The accused suspected that probably Bayanabai (P.W.6) is giving shelter to his wife when he saw his wife sitting in the Chhapri of Bayanabai and when Bayanabai went to call Bhayyaji (P.W.7), the accused took opportunity and sat on Durgabai's chest and was assaulting her with kicks and fist blows. It is Bhayyaji (P.W.7) who rescued the victim by forcing the accused by holding his hair. Bhayyaji (P.W.7) found himself in a helpless state when nobody was there to take Durgabai to hospital and this is how the unfortunate lady met her death at the hands of appellant/accused. Therefore, after examining the evidence on record, one can safely conclude that it is the appellant/accused who has committed murder of his wife by forcibly administering endrin, a poisonous insecticide. The last nail in his own coffin has been hammered by the appellant/accused himself when in his statement under Section 313, he comes up with a story when Question No.30 was put to him i.e. "Do you wish to say something about this case?" when he answered?

"On the date of incident, I came to my home at about 3 p.m. My 11/2 years old daughter was crying. My daughter made gesture the way deceased went. I went to search my wife in square. I met Nalita the daughter of Bhayya Nagmote. I heard the noise as Bachav Bachav. I went to the house of Bhayya Nagmote. I noticed that Bayanabai and Bhayyaji Nagmote were beating my wife. I asked Bhayyaji as to why he was beating my wife. He took out iron rod and gave blow of it on my head. I went to the home of Police Patil. I gave report to Police Patil and went to Bori Police Station. I came to village at 6 p.m. I do not know how my wife was dead. My wife was seen to be dead and was lying on the road in front of my house."

20. Therefore, the medical and Forensic evidence read with the oral evidence of two witnesses namely Bhayyaji Ganpatrao Nagmote (P.W.7) and Bayanabai Sheshrao Nagmote (P.W.6) and considering all the attending circumstances, we have no hesitation to hold that the appellant/accused is guilty of having committed murder of his pregnant wife Durgabai and find that the learned Additional Sessions Judge made no mistake in convicting and sentencing the accused to imprisonment for life.

21. In respect of a charge under Section 498-A of the Indian Penal Code, the learned Additional Sessions Judge was justified in acquitting the accused for want of evidence and, therefore, it is not necessary for us to examine the issue nor the State has preferred any appeal against acquittal on this count.

22. The appeal has no merits and stands dismissed.

Appeal dismissed.