2004 ALL MR (Cri) 1797
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

B.H. MARLAPALLE AND N.V. DABHOLKAR, JJ.

Keshav S/O. Bhujanga Kasbe Vs. State Of Maharashtra

Criminal Appeal No.183 of 1985

24th March, 2004

Petitioner Counsel: Shri. M. V. DESHPANDE
Respondent Counsel: Shri. K. B. CHOUDHARY

Penal Code (1860), S.302 - Evidence Act (1872)), S.3 - Appreciation of evidence - Eye-witness - Murder case - Testimony of witness that he had seen the accused forcibly administering poison to deceased on the date of incident - As many as eight omissions as compared to his statement recorded by police, brought out by defence in cross-examination - Witness kept quiet for about one and half years and failed to disclose the alleged involvement of accused in the crime - Reasons therefor, not explained - Held, testimony of witness does not inspire confidence - It would not be safe to base the conviction on such a testimony.

The prosecution case is based on the testimony of P.W.7 Shaikh Shadul. It is contended that he had seen the accused forcibly administering poison to deceased Godavaribai on the date of the incident. He stated in his depositions that while he was working in the land of his master i.e. Mohan which is adjacent to the land of the accused he had heard the cries of the deceased and therefore, he rushed towards the spot. He saw the accused sitting on the chest of Godavaribai who was lying flat on the ground and the accused was making her drink insecticide. Initially he was at a distance of 100 ft and subsequently crossed the distance of 50 ft. He further stated that the accused questioned him as to why he was present there and that he should go back to his master's land. Thereafter, Godavaribai started throwing of her legs and froth had came out of her mouth. One Dajiba, who was working in the field of Manik came to the spot when Godavaribai had become unconscious and said Dajiba carried her on his back to the village. Dajiba is the son of maternal uncle of the accused. In his cross-examination the defence brought out as many as eight omissions as compared to his statement recorded by the police on 11.9.1983. He claimed to have not stated in the statement recorded by the police that the accused had administered poison to the deceased and same was seen by him. The Additional Sessions Judge has noted that a supplementary statement of this witness was recorded by the police but we do not find the same in the file nor is there any exhibit given to the same in the judgment of the trial Court. On the contrary, after the depositions of this witness were recorded, the prosecution moved an application for amending the charge and the same was allowed by adding charge under Section 302 of the Indian Penal Code at Exhibit 122. The testimony of this witness does not inspire confidence. It would not be safe to base the conviction on such a testimony. It is not known as to why this witness kept quiet for about one and half years and failed to disclose the involvement of the accused in the crime as stated by him before the trial Court for the first time. [Para 14]

Cases Cited:
T. T. Antony Vs. State of Kerala, AIR 2001 SC 2637 [Para 7,9]
Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 [Para 11,15]


JUDGMENT

B. H. MARLAPALLE, J. :- The appellant - original accused has been convicted and sentenced under Section 302 of the Indian Penal Code on the allegations of causing death of his wife Godavaribai by administering poison to her on 10.9.1983 by the judgment and order dated 30.11.1985 in Sessions case No.54 of 1985 passed by the learned IIIrd Additional Sessions Judge, Nanded.

2. As per the prosecution case, deceased Godavaribai - sister of P.W.6 Prabhakar Raoji Paikrao was married to the appellant in the year 1982 and before marriage, the dowry amount was fixed at Rs.2000/-. Out of the said amount, an amount of Rs.900/- was paid by the father of the deceased and the balance amount remained to be paid. The accused was demanding the payment of said balance amount and was also demanding wrist watch to be purchased and given to him from the balance amount. Due to the poor financial conditions of P.W.6, the demand could not be made and therefore, the accused started ill-treating the deceased Godavaribai. For Nagpanchami festival of 1983, she had gone to her parents' house and had purportedly conveyed the instances of ill-treatment to her for non-payment of balance dowry amount. After the festival the accused went to in-laws, demanded the balance amount and assaulted the deceased. He had also brought the deceased with him to his home at Kamtha from village Pimparkhed.

3. On the fateful day i.e. 10.9.1983, the accused and the deceased were working in their agricultural land where H4 Cotton crop was cultivated. Both of them were engaged in spraying insecticides to the cotton crop and were being assisted by Chandrakant s/o. Kisan (brother of the accused). The deceased was on fast on that day and therefore, during the lunch time at about 3 pm she did not join them. After lunch, spraying activity was resumed and suddenly deceased Godavari started shewering and therefore, the accused raised an alarm. His brothers, who were working in their respective lands in the neighbourhood rushed to the spot. Godavari collapsed and fell unconscious. The accused and his brothers with the help of some others tried to shift Godavari to the hospital at Nanded but were unsuccessful because no vehicle stopped when they had brought her to the highway. After the deceased was taken back to the home, she was declared dead. P.W.13 Kishan Bhujangrao Kasbe filed report (Exhibit 125) on the same day which was registered as Accidental Case No.23/1984 at 8 p.m. The statements of some of the witnesses were recorded on the next day. P.W.6 Prabhakar also filed his complaint at Exhibit 113 before the PSI, Ardhapur Police Station on 11.9.1983 alleging that Godavari was murdered. Nothing further happened in the investigation except taking entry in the station diary on 11.9.1983. Suddenly P.W.12 Rama Yadav (PSI) lodged a complaint at Exhibit 135 on 4.1.1985 and registered the same as a first information report for offence punishable under Sections 306 and 498-A of the Indian Penal Code on the directions of the Sub-Divisional Officer pursuant to the complaint filed by P.W.6 Prabhakar.

4. The prosecution examined in all 13 witnesses. P.W. Nos.10, 11 and 12 are the police personnel. P.W.1 Shaikh Shahjada Shaikh Burhan is the Medical Officer. P.W.2 Vishwas is the Handwriting Expert. P.W.8 Sonba Gunaji is the brother of the deceased's grand father. P.W. Nos.4 Hiraji and 5 Ganpat are the panch witnesses regarding inquest at Exhibit 107, the spot panchanama at Exhibit 116 and seizure of the documents at Exhibit 111, P.W.7 Shaikh Shadul is treated to be an eye-witness to the incident.

5. The IIIrd learned Sessions Judge, on appreciation of the evidence, placed before him, held that (a) the prosecution failed to prove that the accused had abetted the suicidal death of Godavari, (b) the prosecution failed to prove that Godavari was subjected to cruelty while she was married to the accused and (c) the prosecution had proved that the accused committed murder of Godavari by administering poison to her on 10.9.1983 in the agricultural land where both of them were engaged in spraying insecticide (Endosulfan). The testimony of P.W.1 Shaikh Shahjada. Medical Officer, read with the post-mortem reports at Exhibit 21 indicated that he reserved his opinion as to the probable cause of death and forwarded viscera for chemical analysis. The report of chemical analysis was received on 28.2.1984 at Exhibit 23. The results showed that "organochlorine insecticide Thiodan (Endosulfan)" was detected in both the bottles of viscera i.e. the pieces of stomach, lung, heart, spleen and kidney. The report further indicated that the poison quantity was found to the same extent as was seen in the fatal poisoning cases. Based on this report, the doctor opined that the cause of death was "Thiodan poisoning" (Exhibit 24). It was, therefore, necessary for the prosecution to prove that the accused had administered thiodan poison to Godavari while she was in his company in his agricultural land on 10.9.1983.

6. The trial Court has recorded its findings that the prosecution has proved the offence through the evidence of P.W.7 Shaikh Shadul, the inland letter at Exhibit 93 addressed by the accused to P.W.6 Prabhakar and to some extent the testimony of P.W.8 Sonba. We are, therefore, required to consider whether the order of conviction for offence punishable under Section 302 of the Indian Penal Code is sustainable on the backdrop that the trial Court has recorded its findings in the negative on issues No.1 and 2 i.e. ruling out the charge of abetment to commit suicide and cruelty i.e. offences punishable under Sections 306 and 498A of the Indian Penal Code.

7. Shri. M. V. Deshpande, learned Advocate for the appellant - accused, at the first instance, submitted that the first information report at Exhibit 135 filed by P.W.12 PSI Yadav could not have been registered in view of the report filed by Kishan vide Exhibit 125 as also the complaint submitted by P.W.6 Prabhakar on 11.9.1983 itself. In support of these submissions he has relied on the decision in the case of T. T. Antony Vs. State of Kerala (AIR 2001 SC 2637).

8. Coming to the merits of the case Shri. M. V. Deshpande submitted that the testimony of P.W.7 Shaikh Shadul was not truthful, suffered from material contradictions on multiple counts and the inland letter at Exhibit 93 was not read by the trial Court in its totality. The letter did not make out any whisper regarding ill-treatment to the deceased or any threat to that effect even if it is held to be proved on the basis of the testimony of the handwriting expert P.W.2 Vishwas. The defence thus contends that though the deceased died because of poisoning there was no evidence to prove that the poison was administered to Godavari by the appellant. In this regard, the learned Advocate referred to the post-mortem notes and pointed out that the doctor did not notice any external injury so as to indicate that the deceased had struggled or resisted such poison being administered by the accused so as to support the plea of forcible administration of poison. Even on internal examination of parts like throat, etc. there is no injury noted by the Medical Officer in the post-mortem notes. It was also noted that Endosulfan is an insecticide with strong odour and therefore, it would be difficult to administer it surreptitiously through any medium like food or tea or any other drink.

9. In the case of T. T. Antony (supra) it has been ruled that the scheme of Code of Criminal Procedure as amended in 1983 does not permit a second first information report to be registered for the same offence and the investigation agency is free to undertake fresh investigation under Section 176(8) of the Code of Criminal Procedure and submit the report to the Magistrate of the Court concerned. These plenary powers of the police to investigate a cognizable offence is not unlimited but subject to well recognised limitations. Shri. M. V. Deshpande is, therefore, right in his submission that the first information report at Exhibit 135 registered by P.W.12 PSI Yadav on 4.1.1985 i.e. after about 16 months from the date of the incident could not have been registered. However, we have to examine the merits of the case on the basis of the evidence that was adduced by the prosecution before the trial Court.

10. P.W.6 Prabhakar stated before the trial Court that an amount of Rs.2,000/- was agreed as dowry amount and Rs.900/- were already paid to the accused, whereas, the balance amount could not be paid. Deceased Godavaribai was complaining of ill-treatment to her on account of non-payment of balance dowry amount. For Nagpanchami festival of 1983 the deceased had come to his house and stayed for few days. During this stay she informed regarding demand of balance dowry amount of Rs.900/- and a wrist watch and to pay the balance amount to the accused. The accused came to take Godavaribai back after the festival and he took up a quarrel. He also assaulted Godavari at Pimparkheda. He had taken Godavaribai with him. He also stated that the inland letter at Exhibit 93 was received by him in the month of October, 1983. He had studied upto 9th standard. The letter carried the postal stamp of 9.9.1983. He had also admitted that he received a message on 11.9.1983 regarding the death of Godavaribai and he reached Kamtha village at about 12 noon. In his cross-examination he stated that he received some letters from the accused in 1982 as well and he had received the letter at Exhibit 93 on 4.9.1983. The learned trial Judge has accepted this letter at Exhibit 93 to be genuine and reliable. We do not agree with the same. On the face of the oral depositions of P.W.6 Prabhakar it is clear that he stated to have received the letter in the month of October, 1983, (as stated in his examination-in-chief) and immediately in the cross-examination he stated that he received the letter on 4.9.1993, whereas, the letter carried the postal stamp of 9.9.1983. No doubt, the signature on this letter has been held of the same person who had signed the registers purportedly seized from the house of the accused, as per the evidence of the Handwriting Expert. Even otherwise this letter read in its totality does not make out any grudge in the mind of the accused against his wife. It does set-out a warning not to create court litigation for recovery of the balance amount of dowry and also not to do anything to disturb matrimonial life of the sister. The learned Additional Sessions Judge himself has discarded the prosecution case that the deceased was harassed or subjected to cruel ill-treatment and therefore, evidence of P.W.6 Prabhakar as well as P.W.8 Sonba in this regard has been found to be unreliable.

11. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622) the Supreme Court laid down the law regarding appreciation of evidence in the case of murder by poisoning. It is held that in the case of murder by administration of poison the Court must carefully scrutinise and determine the following four important circumstances which alone can justify conviction.

(a) There is a clear motive for the accused to administer poison to the deceased.

(b) That the deceased died because of poison said to have been administered.

(c) That the accused had the poison in his possession; and

(d) He had an opportunity to administer poison to the deceased.

We will have to examine the evidence in the case at hand on the touchstone of the law laid down in Sharad Sarda's case (supra).

12. In the post-mortem notes at Exhibit 21, the Medical Officer under column No.20 noted :

"Bronchi congested.

Both the lungs congested. On cutting part of the lung blood coloured fluid was noted to be present. Liquid food was found in the stomach."

The doctor further noted that liver, pancreas, spleen and kidney were congested and the death had occurred within six hours after taking last meal. This medical evidence shows that the presence of poison was noticed in the lungs as well as liver, spleen, kidney and the stomach. There was no external injury sustained by the deceased. The post-mortem notes did not indicate any sign of resistance or struggle by the deceased to show that she was administered poison by force.

13. There is also no evidence to show that Godavaribai was administered poison through some liquid medium or food. It has come in the evidence that at about 3 p.m. the accused, his brothers as well as Chandrakant-nephew of the appellant - had lunch together and as the deceased was observing fast she did not join them. After the lunch decotion - tea was prepared and after all the three male members had consumed tea, the deceased also had tea which was consumed by her. There is also evidence to show that the deceased had taken Shagopal which is normally taken when someone is observing fast. The insecticide as noted earlier has a strong obnoxious disagreeable odour and therefore, it can be easily detected or suspected even if it is mixed in some other medium. It is not the prosecution case that such an attempt was made by the accused.

14. The prosecution case is based on the testimony of P.W.7 Shaikh Shadul. It is contended that he had seen the accused forcibly administering poison to deceased Godavaribai on the date of the incident. He stated in his depositions that while he was working in the land of his master i.e. Mohan which is adjacent to the land of the accused he had heard the cries of the deceased and therefore, he rushed towards the spot. He saw the accused sitting on the chest of Godavaribai who was lying flat on the ground and the accused was making her drink insecticide. Initially he was at a distance of 100 ft and subsequently crossed the distance of 50 ft. He further stated that the accused questioned him as to why he was present there and that he should go back to his master's land. Thereafter, Godavaribai started throwing of her legs and froth had came out of her mouth. One Dajiba, who was working in the field of Manik came to the spot when Godavaribai had become unconscious and said Dajiba carried her on his back to the village. Dajiba is the son of maternal uncle of the accused. In his cross-examination the defence brought out as many as eight omissions as compared to his statement recorded by the police on 11.9.1983. He claimed to have not stated in the statement recorded by the police that the accused had administered poison to the deceased and same was seen by him. The learned Additional Sessions Judge has noted that a supplementary statement of this witness was recorded by the police but we do not find the same in the file nor is there any exhibit given to the same in the judgment of the trial Court. On the contrary, after the depositions of this witness were recorded, the prosecution moved an application for amending the charge and the same was allowed by adding charge under Section 302 of the Indian Penal Code at Exhibit 122. The testimony of this witness does not inspire confidence. It would not be safe to base the conviction on such a testimony. It is not known as to why this witness kept quiet for about one and half years and failed to disclose the involvement of the accused in the crime as stated by him before the trial Court for the first time.

15. On appreciation of the evidence in this case we have noted that out of four circumstances set-out by the Apex Court in Sharad Sarda's case (supra), two circumstances are missing namely; (a) there is no clear / strong motive attributed to the accused to administer poison to the deceased by the accused and (b) that the deceased died because of poison said to have been administered. The evidence also shows that the poison was present in the tin which was being spread by mixing it with water. The sprayer was being operated by the deceased. The presence of poison has been noticed even in the lungs. The prosecution has thus failed to prove that the poison was administered forcibly to the deceased by the accused. On the other hand, the possibility of consumption of poison accidently cannot be ruled out; more so by considering unawareness in handling such chemicals in agricultural use.

16. The learned Additional Sessions Judge has recorded strong-worded criticism against the faulty investigation. Shri. K. B. Choudhary, the learned Additional Public Prosecutor submitted that faulty investigation itself cannot be a reason to acquit the accused. There cannot be two opinions on this issue. At the same time, the reasoning given by the trial Court in support of its findings that it was the accused who had administered poison to the deceased by relying on the evidence of 7 Shaikh Shadul and the letter at Exhibit 93 is perverse and therefore, the finding on that issue recorded by the trial Court has to be set-aside. We are of the considered view that the prosecution could not prove that the accused had administered poison to the deceased on 10.9.1983 and therefore, his conviction and sentence under Section 302 of the Indian Penal Code deserves to be set-aside.

17. In the result, this appeal succeeds and it is hereby allowed. The judgment and order of conviction and sentence dated 30.11.1985 in Sessions Case No.54/1985 passed by the learned IIIrd Additional Sessions Judge, Nanded, is hereby quashed and set-aside and the accused is acquitted of the offences with which he was charged. His bailbonds stand cancelled.

Appeal allowed.