Sanjay Goel (in Jail) Vs State of U.P.

S.K. Agarwal, J.@mdashThis appeal arises out of the judgment and order dated 31-1-1992 passed by Sri S.B. Vaish, I Additional District & Sessions Judge, Kanpur Nagar, in S.T. No. 70 of 1988 convicting the appellant, Sanjay Goel, under Sections 302, I.P.C. and sentencing him to life imprisonment and a fine of Rs. 5,000/-. In default of payment of fine the appellant is to undergo 6 months'' R.I. The appellant was further convicted u/s 328, I.P.C. and sentenced to 7 years'' R.I. and a fine of Rs. 2,000/-. In default of payment of fine the appellant is to undergo 2 months'' R.I. Both the sentences were, however, directed to run concurrently.

2. The facts of the present case are quite peculiar. They are not only dramatic in character, but also exhibit a picture of masculine trust over a girl, liberal, free and mentally western. The family background also indicates that the girl was not accustomed to any orthodox family dominance. The story revolves round the appellant, who is son of a well placed person in the society, and the deceased Km. Mamta Anand, daughter of a high official in the Indian Railways.

3. Both, appellant and the deceased girl, came in contact, initially, at I.I.T., Varanasi, where they had gone to complete their courses for B.Tech. The appellant was senior to the deceased. Since both of them were residents of Delhi and figuratively handsome and beautiful, were attracted to each other by the love at first sight. The affair not only continued but had proceeded on to the stage of beastly pleasure between them. The circumstances point out clearly that at some point of time, during their stay at I.I.T., Varanasi, they had decided to marry and lead a life together. But the providence was chalking out some other course for them. The appellant, being senior, had passed out his B.Tech. Course a year in advance of the deceased. He thereafter got a job at Ghaziabad and was staying there in connection with it. However, the contacts between the two were not only retained but also maintained till the deceased, Km. Mamta Anand, joined I.I.T., Kanpur, in the year 1987. Soon after joining I.I.T., Kanpur, from the facts and circumstances it is clearly evident, she came in contact of yet another boy. The charm of her new find was so strong that she started having a second look into her affairs with the appellant. She was gradually developing a cold feet towards him. It is further available that some one amongst her own acquaintance was operating as a go in between later on he probably became an informer to the appellant. He used to keep this appellant abreast with this change in her approach regularly. The appellant apparently received routine feed back about her growing charm in the new acquaintance at Kanpur. Name of the new acquaintance as occurred in the evidence is Hari Haran. She was so enamoured and infatuated by Hari that a strong repulsion was emerging within her against the appellant. She was seriously endeavouring to free herself from him, who, being too possessive, was keeping a vigil on her. She being an advanced and a career oriented girl, coming from a background where individual liberty was paramount, was not ready to tolerate the dogmatic command of her onetime boy friend whom once she had chosen as her life partner.

4. The appellant, finding her gradually being lost to himself, was trying to persuade time and again Km. Mamta Anand to hold on to her promise. But, it appears, as revealed by the record, that Mamta Anand was not agreeable to surrender herself any more to the whims of the appellant. The appellant, in the circumstances, decided to make a last ditch effort by meeting her and talking to her face to face. Impelled by the above urge he decided to visit Kanpur. Finally he came down to Kanpur on 1-10-1987 on a Maruti Car. He met P.W.7 G.K. Tewari on ,2-10-1987 to know the whereabouts of Mamta. He managed to dig out information that Km. Mamta Anand has gone to Lucknow to the house of Smt. Sushmita Bhatia, one of her batchmates in B.H.U. The appellant reached Lucknow during noon hours and went to the house of Sushmita. He met her and requested her to accompany him to Kanpur. Mamta declined his offer. She returned to her hostel at I.I.T., Kanpur, in the morning on 3-10-1987. The evidence shows that he met her in the hostel. They closeted themselves in her room from 11.30 a.m. to almost 3.00 p.m. on 3-10-1987. Even screams of Mamta, as claimed, were heard by Km. Kajoli Banerji, who was her batchmate and living three rooms before her room No. 212 in the Girls'' Hostel, which belonged to Km. Mamta. Some construction work was also going in the hostel. She came out of her room. She enquired from the labour who were working there at the construction site. She was told that scream emanated from the hostel verandah. She found that two other girls, viz. Jyoti and Nishi, are also standing in the verandah. They came out of their rooms on hearing loud screams. They told Kajoli that they too had heard some screams. She called them on the first floor. Thereafter they proceeded towards the room of Mamta. Her door was found bolted from inside. Knocks did not yield any result. The trio went to the room of another girl, Dipti Bhattacharya, who was living in room No. A-216. She was asleep. They awakened her and informed her of the entire developments. All the four thereafter again came to the room of Mamta and knocked the same, but it too went in vain. Then they shouted out that if the door is not opened they will break it open. It too did not evoke any response. Thereafter they brought a table, placed a chair on it and Dipti Bhattacharya stood over it and opened the knob of the door by putting in her hand through the ventilator. She had also peeped through the ventilator and informed her colleagues that something is lying still on the bed covered with a blanket. It is not giving any indication of life. She could not see either Mamta or Sanjay in the room from there. She also had seen vomit lying on the floor of the room. Thereafter they entered the room. All of them had seen that Sanjay Goel was lying beneath the bed on the floor just in front of the door and vomit was also spread near him. His eyes were wide open and was gazing at them. They immediately bolted the door from outside. By this time it was 3.30 p.m. They rushed to contact their Warden, Dr. D.P. Rao, on telephone. The phone call was made by Dipti Bhattacharya. Warden reached the hostel within next 15 minutes. The Security Officer and a Physician also reached the spot soon thereafter. When the door was again opened, the appellant was found muttering, ''he was keen to marry Mamta Anand, but she was not prepared to do so. He had administered poison to her and had also consumed it himself. Since Mamta Anand died, he, therefore, had no love lost for his life and wants to die''. On enquiry by the attending people, he disclosed his name and address. He had also disclosed that he had written everything on the paper. The victim was pulled up, placed on a chair and brought out of the room. His condition was critical, as reported to the Warden by P.W. 10 Dr. O.P. Misra. The Doctor had earlier declared Mamta dead after examination. An F.I.R. in English was dictated by Warden Dr. D.P. Rao. The Doctor had informed the Warden that the condition of Sanjay Goel is critical and he must be shifted to hospital forthwith. The appellant was sent to the hospital through P.W. 6, Assistant Security Officer, R.N. Singh.

5. F.I.R. in English was taken down by Prof. Dhupar Prof. Dhupar translated this report in Hindi. After hearing this translated version Dr. Rao had put his initial on this report. He had proved the Hindi translation of the report as Ext. Ka-17. He directed Security Officer, Lt. Col. H.A. Roshan, to send this report by someone to the police station. The original English version was not retained by him. Police reached the scene of occurrence after receiving the written report at about 5.00 p.m. Magistrate, P.W.5 S.P. Misra, was summoned to conduct inquest upon the person of the deceased Km. Mamta Anand. Inquest memo is Ext.Ka-8, Assistant Security Officer, R.N. Singh, handed over certain articles to the Police Inspector on his return from hospital. These articles are an audio cassette (Ext. 51), a visiting card (Ext. 52), 2 photographs of the appellant (Ext. 53), and cash memo of Petrol Pump (Ext. 54). These papers, as alleged, were handed over to the Assistant Security Officer (P.W.6) by the appellant. The I.O. Rajendra Singh, prepared a memo of these articles, which was witnessed by the Security Officer and another witness. It is Ext. Ka-14. The I.O. had also recovered some '' other articles from the room including the vomit in a tin container and prepared its fard. It was signed by the Warden. The fard is Ext. Ka-18. The I.O. had also prepared Exts. Ka-19 and Ka-20, Ka-20 is a cheque book, which is Ext. 1 on record. He also took into custody a cash memo and a pocket diary. A cardboard box containing some sweets and a few capsules were also taken into custody by the S.I. on 5-10-1987. Its Recovery Memo is Ext. Ka-21. It bears signatures of Dr. Rao also. The F.I.R. of this case was registered at 5.05 p.m. The G.D. pertaining to the registration of the case and copy of check report were proved by P.W. 11 H.C. Dev Swaroop of P.S. Bithur, Kanpur. The F.I.R. of the case was taken to the police station by P.W. 12 Raj Bahadur Singh, Driver in the Security Department of the Institute, on the date of occurrence.

6. Conviction of the appellant is rested mainly on the evidence furnished by circumstances. There is no direct evidence of any administration of poison by the appellant to himself and to the deceased in this case. This had occurred in the room, which was bolted from inside. As a matter of fact there is no evidence on the record to furnish us any evidence as to how poison was administered or consumed and when the death occurred inside the room of the deceased. These two were closeted inside from 11.30 a.m. till it was opened at about 3.00 p.m. by the witnesses, Km. Kajoli Banerji, Dipti Bhattacharya and Nishi.

7. The circumstantial evidence in this case is in the form of motive against the appellant. The witnesses who provide us with this evidence are P.W. 4 Smt. Sushma Bhatia, P.W. 7 G.K. Tewari and P.W. 14 Dharmendra Nath Misra P.W. 14 Dharmendra Nath Misra is the father of P.W. 4 Smt. Sushmita Bhatia. His evidence is regarding the incident that occurred in his house at about 12.30 p.m. on 2-10-1987 in Lucknow between Km. Mamta deceased and the appellant. In his evidence this witness, who was not personally acquainted with Y.P. Anand, father of the deceased, had deposed about the visit of Sanjay Goel to his house. P.W. 7 G.K. Tewari deposed about the visit of the appellant along with a friend of his, viz. Awdhesh Tewari, son of wing Commander Tewari, to his house to know the whereabouts of Km. Mamta Anand on 2-10-1987 at 9.00 a.m. The second piece of evidence is of some relevance, which was provided by P.W. 13 Subodh Chandra Dua, a partner of Chandra Scientific Industries, 19 Dariaganj, New Delhi. His evidence is regarding the purchase of 500 gm. of Arsenic by Sanjay Goel, appellant, on 1-10-1987 from his shop. He has proved the cash memo that was handed over by Sanjay Goel to the Assistant Security Officer, R.N. Singh (P.W. 6). To complete this particular link of the circumstance of purchase of Arsenic, the prosecution has examined P.W. 16 Shiv Shanker, resident of New Delhi, a teacher. His evidence is to the effect that the appellant enquired from him about the place from where Arsenic Oxide can be had. The evidence of these two witnesses is of not much avail to the prosecution in establishing this link. The third link in the chain of circumstances is conduct of the appellant on 2-10-1937. This evidence is being provided by Y.P. Anand, the father of the deceased girl, P.W. 1 Kajoli Banerji, a batchmate, of the deceased girl, P.W. 4 Smt. Sushmita Bhatia, P.W. 7 G.K. Tewari, P.W. 14 Dharmendra Nath Misra and P.W. 18 Vishambhar Nath. The important link in the chain of circumstances comes in the form of an oral extra-judicial confession made in the presence of P.W. 1 Kajoli Banerji, P.W. 2 Dipti Bhattacharya, P.W. 6 R.N. Singh, Assistant Security Officer, P.W. 9 Dr. D.P. Rao, P.W. 10 Dr. O.P. Misra, who had also examined the appellant. Apart from this we are also having in the chain of circumstances the written extrajudicial confession of the appellant. This form of evidence is available to us from his writings on the posters and his cheque book. The witnesses supporting this piece of evidence are P.W. 3 Mahendra Pratap Singh, handwriting expert, P.W. 19 A.K. Ghosh, who had proved that the cheque book belonged to the accused, P.W. 9 Dr. D.P. Rao, P.W. 10 Dr. O.P. Misra, and P.W. 22 Rajendra Singh, S.I., who initially investigated the case and made the recoveries. The witnesses providing the circumstance leading to death are P.W. 5 Surya Prakash Misra, Executive Magistrate, who held the inquest, P.W. 17 Dr. R. Kumar, who conducted the post-mortem, and P.W. 21 Dr. J.R. Sethi, Forensic Science Expert, who examined the viscera. So far as the recoveries of the articles, viz. posters, cheque-book, sweetmeat box, cash memo, a Jug, the collar of which ,was found to be having arsenic particles, vomit, etc., were proved by P.W. 6 R.N. Singh, Assistant Security Officer, P.W. 9 Dr. D.P. Rao and P.W. 22 Rajendra Singh, the I.O.

8. Apart from these witnesses of circumstances we have evidence of some formal witnesses P.W. 8 Constable Prem Narain Shukla, who escorted the dead body to the mortuary on 3-10-1987 P.W. 11 H.C. Dev Swaroop had registered the F.I.R. prepared check report and made general diary entries pertaining to the registration of the case. P.W. 12 Raj Bahadur Singh carried written report to police station for its registration. P.W. 15 Constable Bhanwar Singh provides us the evidence of the sealed container having vomit being taken to the Pathology Department.

9. The case has been argued by Sri P.N. Misra, and Sri V.C. Tewari, Senior Counsels, assisted by Sri Kamal Krishna, on behalf of the appellant. The State in this case was represented by the Additional Government, Advocate, Sri A.K. Dwivedi, Sri Gopal Chaturvedi, Senior Counsel, represented the complainant.

10. The arguments advanced by the learned counsel for the appellant are that the death by administration of fatal dose of Arsenic poison has not at all been proved by the prosecution, i.e. its quantitative administration. Its administration by the appellant is also not proved. Link evidence about sending of viscera is totally absent in the case. Presence of Arsenic with Oxizypalm runs contrary to the prosecution case that the death in this case occurred solely due to administration of Arsenic Oxide. It has not been established beyond reasonable doubt that Arsenic poison was procured and brought to Kanpur by the appellant. Regarding motive, it has been submitted that it is not established at all, Presence of appellant and the deceased in her room for a long duration of 3 to 3� hours does not eliminate the probability that it may be a case of suicide by consent. It has further been urged that there is no evidence on record to establish that the appellant has any knowledge of her involvement with any one else except his own statement wherein the name of Hari Haran, a new friend of the deceased, had occurred. Serious criticism has been made against both types of confessions, oral as well as written. The submission is that writer confession is hit by Section 73 of the Evidence Act. Section 73 prohibits any direction or order by a Magistrate to any accused to give his handwriting during investigation. Once this piece of evidence is excluded from consideration of the handwriting expert, opinion cannot be read in evidence against the appellant. Otherwise also its authenticity is seriously challenged. It gives an impression that the appellant in utter frustration, yet had not lost all hopes of persuading the victim to be on his side. It has further been submitted by the defence counsel that the precautions necessary for its recovery have not been adhered to by the investigating agency and the concerned witnesses have also not specifically stated about the recoveries of a poster and a cheque book. In the case diary the I.O. has not taken down the translated Hindi version of this confession. Confessional statement on the poster and the cheque book is in English. It has been further submitted that these lacunae in written confession further make it inadmissible and unreliable. It has also been urged that in the present case mental state of the accused also requires a serious scrutiny. It has to be deciphered by the Court whether the appellant was mentally fit and sound while he admitted his guilt. His intent is also to be assessed before taking any serious view with regard to homicidal death. This is also to be borne in mind by the Court whether the written confession and the so-called oral confession are voluntarily made or written by the appellant knowing fully well the consequences of his act, or were written under an obsessive impression under the shock of consequence of death of the victim, Km. Mamta Anand. The appellant may have laboured under the emotional stress brought about by her death and, therefore, repeatedly stated that he killed her. So far as the extrajudicial confession is concerned, the submission is that unless there is complete elimination of any and every hypothesis of innocence of the accused, it cannot be acted upon.

11. The evidences of P.W. 13 and P.W. 16 fail to prove that this appellant purchased the poison. It has further been submitted that from the own letters of the appellant it is available that she had already decided conclusively to abandon her contacts and relations with him. So far as written confession of the appellant is concerned its authencity has been challenged. The evidence of oral extrajudicial confession is not proved from the evidence of concerned witnesses to have been made by the appellant. In this context the defence has led much stress on the testimony of P.W. 10 Dr. O.P. Misra, who had denied that any statement in the form of extrajudicial confession of his guilt was made by the appellant in his presence.

12. In order to appreciate the submissions we have to examine the evidence of the witnesses on all the above said pieces of circumstancial evidence. We have to see whether they form a chain so complete as to exclude all possible hypothesis of his innocence.

13. In this connection we will like to deal first with the evidence of ''motive.''

In order to appreciate the argument regarding ''motive'' to the extent whether the appellant had any intention to commit murder or had only intended to attempt suicide in the presence of the deceased, Km. Mamta Anand so as to persuade her to marry him. The story in this connection begins from the year 1984. In fact these two young students came in close contact at B.H.U. while doing their B.Tech. courses. Mamta Anand joined B.H.U. in the year 1983 had continued her studies there till 1987. During her stay in B.H.U. she was staying in the Girls'' Hostel. The appellant was known to the family of Mamta Anand from before. He studied also in B.H.U. from 1982 to 1986. According to her father, P.W.20 Y.P. Anand, Mamta fell ill during her stay in B.H.U. in February, 1984. The appellant went to see her in that connection. He met Sanjay Goel during that period. Sanjay Goel often visited her at his residence in Delhi also. According to this witness, Sanjay wanted to marry Mamta. Mamta took a decision not to marry Sanjay Goel while she was in 4th year in B.H.U. The main reason for resiling from her decision to marry Sanjay Goel was that the appellant used to consume large quantity of compose. The other reason behind her change of mind was his obstinacy and habit of super imposing himself upon her. According to the witness the deceased had further told him that character of Sanjay Goel was not good. He was having illicit relations with his cousin. She also told him that the appellant has no respect for the girls. Sanjay Goel wanted to marry immediately, whereas she was keen to do her post-graduation also before entering into a marital bond. After completing her B.Tech. She had taken admission in M.Tech. course in I.I.T., Kanpur. She took her admission in I.I.T., Kanpur in July, 1987. She was living in Room No. 212-A of the Girls'' Hostel. After her decision not to marry Sanjay Goel she started avoiding him. His elder daughter Kavita was married in July, 1987. On 3-10-1987 when he returned from a function at about 8.00 p.m., he was informed by a Railway Officer that Mamta is seriously ailing at Kanpur. He was asked to reach there immediately. When he reached the station for boarding train to Kanpur he was told by another official of the Railways that Mamta is dead. Initially he was not informed of her death to avoid shock. He reached Kanpur at about 5.00 a.m. by Prayagraj Express on 4-10-1987. He received his daughter''s dead body on the same day in the evening. It was cremated the same evening. According to him he could not workout any reason which may have pushed Mamta to commit suicide. He further stated that Mamta used to write to him. He proved a letter dated 4-3-1987 written to him by Mamta. He stated that Mamta used to call him ''Appa Ji.'' This letter is marked as Ext. Ka-38. He also proved Ext. Ka-7, another letter of Mamta. He further proved Ext. Ka-39, a letter, written by Mamta to her class fellow, Hari, on 21-6-1987, another letter written to Hari dated 28-8-1987, Ext. Ka-40, was also proved by him. He had stated that he is fully acquainted with the handwriting of Mamta. He also proved a letter, Ext. Ka-41, written to him by Sanjay Goel, the appellant. Its envelope is proved as Ext. Ka-42. He admitted that he is not conversant with the writing of Sanjay Goel. The contents of the above said letter (Ka-42) contained whatever he used to tell him whenever he came to him. Complete name of Hari is ''Hari Haran.'' He is a class fellow of Mamta at IIT, Kanpur. His father earlier was employed in Dhanbhad (Bihar). Now he is settled at Dehradun after his retirement. Hari is employed in Tata Consultant in Delhi. He stated that Hari and Mamta were studying together, but he cannot say when they came in closer contact. When Mamta came out of B.H.U., from her conversation, he learnt that she has some acquaintance with Hari. Though she was culogising Hari, yet the conversation never hinted her interest in Hari. He stated that he does not know since when the letters are being exchanged between them. Hari never met him in New Delhi. He admitted that during the fracture of her leg, as a result of an accident, Mamta was confined to bed. He met Hari at B.H.U. Hari attended the last rite ceremony of Mamta and gave him her letters. He could know Hari and his father at that time. He cannot say how many times Hari visited her during her ailment at B.H.U. Many of her classmates used to visit her. Hari may also be coming along with them. On 9-10-1987, the day of the last rite ceremony of Mamta, Hari visited him. He went through the letters, which Hari had returned. Mamta had written in letter Ext. Ka-39 that it may be destroyed. He showed his inability why this line has been written in this letter. He stated that a perusal of Ka-39 and Ka-40 shows that Mamta had an inclination towards Hari Haran. It further shows, according to him, that there was some proximity between them, but he showed his inability to state whether they were in love. He stated further in cross-examination that Sanjay Goel used to visit him often. He admitted that he had a talk with the police official he stated that he does not remember what has he told him at that time. He was badly upset. He further admitted that it may also be possible that in his statement the fact of Sanjay Goel visiting off and on may be wrongly written by the Police Officer. It is also possible that he may have used the word "Aksar" (often). He further stated that he had been treating all the classmates of Mamta as a member of his family and in the same way the appellant was also a member of his family. He stated that it may be possible that he may have disclosed to the I.O. that Sanjay Goel was being treated as a family member. He stated that he does not remember whether he had spoken to the I.O. about any reason why Mamta declined to marry Sanjay. He further stated that he does not remember whether any of the four reasons that he had stated in his examination-in-chief were disclosed to the I.O. He stated that he does not know as to what was written by the S.I. in his statement and where it was written. The Police Inspector put him certain questions, which he had replied. He stated that he cannot say whether the I.O. recorded his statement or not. Only one Police Officer enquired from him. He further stated that if Mamta would have desired to marry Sanjay Goel he would not have objected it. He further admitted that marriage of Kavita had nothing to do with the marriage of Mamta. He denied giving any statement to the I.O. that he was not willing to marry Mamta with Sanjay Goel because of fear of some difficulty in the marriage of Kavita. He also denied his statement to the I.O. that his elder daughter is not yet married. Since he wants to marry first his elder daughter before that he cannot marry Mamta with Sanjay Goel. He stated that he does not know how the S.I. has written all this. He stated that he does not remember whether he invited Sanjay Goel as his family member in the marriage of Kavita and whether Sanjay Goel attended that marriage. He stated that he may have told the I.O. that he had invited Sanjay Goel in the marriage of Kavita. He further stated that it may be possible that he may have told the I.O. that Sanjay Goel attended this marriage. He said that he treated his grownup children as his friends. He stated that he does not remember whether he had used the term ''friend'' for Sanjay Goel in his statement to the I.O. He stated that if it is written there he must have said so. He admitted that if it is written there he must have said so. He admitted that he knows Vishambhar Nath, Assistant Engineer of the Railways. He further admitted that this Vishambhar Nath met him in the Court yesterday. He denied that he had ever asked Vishambhar Nath to do pairvi in the trial. He denied that on very date when he came to attend the Court in connection with this case, Vishambhar Nath met him. He admitted that all the six Inland letters that have been shown to him were written by Mamta. Five of them are to Sanjay Goel and one is to his mother. They were marked as Exts. Kha-1 to Kha-6. Mamta was a normal girl. She was neither over emotional nor exceedingly sentimental. He stated that Mamta had informed him of her decision not to marry Sanjay Goel in 1986. She had never told him that she wants to marry Sanjay Goel, but the appellant used to pressurise her for marriage. He admitted that whenever he came to Kanpur in connection with this case the Police Inspector met him, but he never made any enquiry from him. After September, 1986 after learning about the decision of Mamta, Sanjay Goel met him in March, 1987 in Moradabad. He met him at Delhi also on three occasions thereafter at his residence in Delhi. Sanjay Goel never came along with Mamta to his house whenever she returned from B.H.U. Mostly he was coming alone. Often Railway employee accompanied her. Mamta had a Railway pass. He stated that he cannot say whether Mamta on 7-5-1985 came to Delhi by Kashi-Vishwanath Express. He admitted that the paper produced before him is the railway pass of Mamta, which was issued from Varanasi. It was marked as Ext. Kha-7. The date of travelling is illegible in this exhibit. He admitted that according to the Railway Regulations one person can be allowed to travel along with the holder of this pass. It is not possible to tell from the reservation that it was for Mamta for her assistant. It. may be for both, it may be only for the companion. There is no date of travelling posted in this. It shows that it had not been used for travelling. He denied that Sanjay Goel travelled with Mamta by this railway pass and visited him. He pleaded ignorance about the signature. He further stated that in his knowledge in the marriage of Kavita Sanjay had not created any scene. Sanjay used to chase her very often. Mamta used to feel desperate. Sanjay Goel used to threaten her that he will commit suicide, if she will not marry him. He has to admit that neither the threats nor the chase of Mamta was ever done by the appellant in his presence. He admitted that when Mamta came to Moradabad, the appellant came following her. Mamta came from Varanasi to Moradabad due to fear of Sanjay. She had also missed her two papers. Sanjay Goel came to my house at Moradabad after seeking permission from me. He stayed there for two hours. He had permitted him to visit to avoid enigma. Mamta had written the fact of missing her two papers. She had also written in the letter that she is missing these papers because of Sanjay Goel. He stated that he does not remember whether he had disclosed this fact to the I.O. in his 161, Cr. P.C. statement, but he admitted that her letter was given to the I.O. If it. is not there in his statement, he may not have told him this fact. When he reached Kanpur in the morning on 4-10-1987, large number of Railway officials were present at the platform, each one of them had informed him about the incident, but he does not remember any of them by name. When he reached I.I.T., he came to know there that Sanjay Goel had administered poison to Mamta and he was loudly admitting this fact that since Mamta refused to marry him, therefore, he killed her. Apart from it there was no earthly reason for Mamta to commit suicide. Neither he nor his retired elder brother, an Army Colonel, had any relationship with the Police Officials. He denied that he ever met any Police Official by name Bedi. He also pleaded ignorance about the fact that any Bedi was in the Railway Police. He also denied as incorrect that he had taken help of any Advocate at Kanpur in cooking up this case. He denied defence suggestion that he had consulted the Advocates to cook up a false case. He also denied the suggestion that on account of his anger and suspicion he had involved Sanjay Goel falsely.

14. Thus from the statement of this witness, as discussed above, following facts emerge out that Mamta unequivocally was determined not to marry the appellant. She had informed her father of her determination. She has written letter to Hari Haran alias Hari, who appeared to be a batchmate of her. She had a soft corner for Hari Haran and, therefore, she was also keeping her father posted through letters Exts. Ka-38 to Ka-41, including Ka-7. Sanjay Goel was a frequent visitor to the house of Mamta at Delhi. Mamta had abandoned her two papers on account of Sanjay Goel and rushed to her father to Moradabad from Varanasi in 1987 to avoid him. She was followed immediately by Sanjay Goel. He had gone to her house and stayed there for two hours. The permission to Sanjay Goel to visit her was granted by this witness to avoid any bad name. Although this fact had not been stated by him to the I.O.

15. From the evidence of this witness we gather clearly that Mamta had decided to part company with the appellant. She did not want to continue her relations any further with him. The appellant had left B.H.U. in 1985 or 1986. To fulfil his passion he continued to fox her repeatedly. He had also extended threat to commit suicide if she refused to marry him. The evidence further shows that no letter were exchanged between the two, i.e. Sanjay Goel and Mamta, from September, 1986 and onwards. Consumption of drug by the appellant is established by her letters. The letters further show that he had been pressurising her repeatedly by consuming sleeping pills. Ext. Ka-1, letter of Sushmita dated 25-5-1987, clearly indicates absence of any motive for Mamta to commit suicide. This letter further shows that some friend of the appellant had been writing to him regularly about her activities at Kanpur. It further shows that the appellant failed in his endeavour to dissuade her from Hariharan. Deep seated frustration as a consequence of her disenchantment may have developed a feeling of frustration and dispondence in his mind. Ext. Ka-41 is the letter of the appellant to the father of the deceased. It gives out this side of the story. It shows that he was in intense love with Mamta. It further shows that he gave vent, in this letter, to his feelings. He accepted complete break in the relationship also, his anguish and his feelings of insult added further to this injury on account of this change in her.

16. Countrarily learned counsel for the appellant has urged that evidence of P.W. 20 Y.P. Anand clearly indicates that he was not interested in the marriage of his younger daughter Mamta with Sanjay. Both of them tried to persuade him but he did not yield to their wish. This flows from his statement to I.O. that it will create serious problem for him in the marriage of his elder daughter Kavita. From his evidence it transpires that Kavita was married before this incident. It took place in July, 1987. This incident had taken place on 3-10-1987 and Sanjay participated in this marriage. The deceased girl was keen to complete her post-graduation.

The appellant was desirous of an immediate marriage but she probably was not willing to do so. Therefore, we see no merit in this contention that the appellant had any motive to kill her. Statement of P.W. 20 clearly shows that he was not prepared to accept Sanjay as husband of his talented daughter.

17. The evidence of P.W. 7 G.K. Tewari very clearly shows that appellant met him on 2-10-1987 during the daytime to enquire from him whereabouts of Mamta on false pretext of his having brought woollen clothes and sweets from his mother for her. It is also proved by P.W. 14 Dharmendra Nath Misra that his daughter, Sushmita, P.W. 4, and the deceased were mates in B.H.U. He and his daughter P.W. 4 also prove appellant''s going to Lucknow and his meeting with her. He left their place in a huff on being remonstrated by P.W. 14 when he shouted against Mamta, P.W. 4 proved the existence of very good relations between deceased Mamta Anand and the appellant during 1984. He was visiting Mamta and she was going out with him. She further stated that in the end of 1984 whenever Sanjay Goel visited Mamta during her stay in hospital, she used to weep after his departure. Gradually their relations became strained. In the beginning of 1984 Mamta told her that she does not want to marry Sanjay Goel, but further stated that she told her that if she will be pressed too much, she had to marry, 1985 went off in this manner. In 1985 Sanjay Goel left the college and joined a job in Ghaziabad. He used to come to Varanasi to meet Mamta often. Mamta occassionally informed that Sanjay Goel is keeping poisonous pills with him and was threatening that if she will not marry him he will consume these pills and commit suicide. Mamta was requesting P.W. 4 to pursuade him not to do so. He can get many girls. She used to tell Mamta that if Sanjay Goel committed suicide it would earn her a bad name. Mamta used to tell her that she is not afraid of bad name but she will not marry him because their temperaments differ. In March, 1987 Mamta had received a letter from Sanjay Goel. Mamta told her about the contents of the letter. According to her Sanjay Goel had written in the letter that he will come to B.H.U. and marry her and if she refused to marry, he will commit suicide. Mamta was terribly upset because of it. During that period her marriage was to be solmenised at Lucknow. She came back to Lucknow. Mamta also accompanied her. From Lucknow she had gone to Moradabad to her father where he was posted at that time. After passing out in 1987 P.W. 4 came back to Lucknow and Mamta went back to Delhi. She had proved Ext. Ka-7 as the letter written to her by Mamta. She also stated that she is fully acquainted with her writing and her signature. This letter Ext. Ka-7 is in five sheets, written on both sides. The letter remained with her and it was sent to the father of Mamta after her death through her own father. He had gone on the day of Shantipath to Delhi to condole the death of Mamta at her parental house. The letter was received by her through post. She further proved that her last meeting with Mamta at Lucknow was on 1-10-1987 at about 7.00 p.m. Mamta came to Lucknow from Kanpur. She told her during night that Sanjay Goel had come to Kanpur and had threatened her that if she will not marry him he will kill her. During noon hours at about 12.00-12.30 on 2-10-1987 her father informed that a boy from Kanpur by name Sanjay has come to meet Mamta. He was seated in the drawing room. Both Mamta and Sanjay talked in the drawing room. Mamta informed her that Sanjay Goel was asking her to accompany him to Kanpur, but she is afraid. She again went in the drawing room. His father was sitting at that time in the inner portion of the drawing room. In between a curtain as partition was there. He grew suspicious. Thereafter Sanjay Goel had some talks with her father and left the house. She had denied the defence suggestion that Mamta used to remain through out the day and night away from the Hostel with Sanjay. She further stated that often Mamta was telling her that Sanjay Goel was asking her to put a Bindi on her forehead and if she will not put it he will not take his food. Sometimes she was telling that Sanjay Goel is asking him not to talk to other boys of the class frequently. Similar types of problems she used to disclose, which, according to her, were peculiar. She admitted that she knew that Sanjay Goel and Mamta were in love. She stated that Mamta had never informed her that sexual relations had developed between them, nor this was heard from any one else. In B.H.U., Mamta and Sanjay Goel stayed from 1983 to 1985. Earlier she had stated this period to be from July, 1983 to April, 1988, but subsequently she had rectified it as 1985. She stated that their families were not acquainted from before. The whole family never met each other. Their father was knowing the girls. The father of the two met at the time of admission for the first time. When Mamta visited her at Lucknow, she met the other family members. None of Mamta''s family except her father ever came in contact with her family. In July, 1986 Mamta had positively told her that her relations with Sanjay Goel are severely strained and she will not marry him.

18. Now coming to the evidence of P.W. 7, we do not find any infirmity in his evidence except a bald suggestion that he is deposing on account of his affinity with P.W. 20 father of deceased Km. Mamta Anand. This suggestion, in our opinion, has no merit. According to this witness, Sanjay Goel had visited his house twice on 2-10-1987 first at 7.00 a.m. along with the son of the Colonel and further the second time at about 4.30 in the evening. We do not find any improbability in it because it is the case of the prosecution that on 2-10-1987 at about 12.30 p.m. the appellant was at Lucknow. The distance between Lucknow and Kanpur is only 85 Kms. It does not take beyond two hours for a person to come back to Kanpur from Lucknow. Thereafter, his evidence that the appellant met him at 4.30 p.m., a second time, on that very date cannot be doubted. The evidence of this witness that the appellant had informed him that Mamta met him at the residence of Sushmita is also not in any manner open to doubt. He had further stated that the appellant stayed at his place up to 8.40 and thereafter he went away. Sanjay Goel had taken his children to the Dashehra fair and he learnt next day in the evening at about 7.30 p.m. that Sanjay Goel had consumed poison and his diary contained his address and he is admitted in L.L.R. Hospital. He claimed that the above information was given to him by the wife of Commander Ram Murti. He has also admitted that he knew the father of the deceased, he has also admitted that he had seen for the first time Sanjay Goel at the house of Mr. Anand (P.W. 20 in Delhi where Mamta was confined to bed as a result of an injury and he had gone to see her. He admitted that he did not inform her father about her death. He further admitted that he had not communicated any information about Sanjay Goel coming to his house tracing Mamta, and then qualified this part of his statement by stating that at the time of cremation of Mamta he had informed Mr. Anand about this fact. He stated that he had not gone to see Sanjay Goel at the hospital. Rightly because his name and address was found out by the police from Sanjay''s diary and nobody likes to encounter the police. He admitted that in the course of investigation his statement was recorded. He had admitted that the local guardian of Mamta is Vishambhar Nath and Mamta had never visited him during her stay at Kanpur. He further stated that he never learnt anything from Sanjay Goel. He had denied the suggestion that Sanjay Goel had not come to his house and he is falsely stating this due to influence of P.W. 20 Y.P. Anand. He has also denied the suggestion that no talks were held between him and Mrs. Rama Murti regarding Sanjay Goel. So in his evidence one thing very curious had occurred. It is that Mamta never visited him during her stay at Kanpur then why will the appellant go to him for tracing Mamta. Appellant was getting information about the movement of the deceased. This witness is concealing from the Court some vital information. Any reliance in his testimony is to be placed with a pinch of salt.

19. So far as the evidence of P.W. 18 Vishambhar Nath is concerned he is an Assistant Engineer in Northern Railway, Kanpur, where he was posted since 1986. His house is in the railway colony near the cantonment. He knew P.W. 20 Y.P. Anand, father of the deceased because he was his Chief Engineer in the year 1987 Mr. Anand was posted in Delhi. His daughter was studying in 1987 in I.I.T., Kanpur, and was living taj the Hostel. He stated that on 2-10-1987 at about 9.00 a.m. Sanjay Goel visited his house along with a friend of his. His friend has given out his name as Avdhesh Tewari son of Wing Commander Tewari. He gave out the name of Sanjay Goel to him and further told him that he had come from Delhi. He was informed that he is a relation of Mamta and wants to meet her. Wing Commander Tewari has sent the appellant to him. Sanjay Goel enquired from him whereabouts of Mamta. He told him that she must be in the Hostel. He had further informed him that the parents of Mamta had sent some articles and he wants to give them to her. Sanjay Goel had asked him to find out Mamta in the Hospital or wherever she is. He rang up Girls'' Hostel and some girl told him that Mamta had gone to Lucknow. He told this to Sanjay Goel. Sanjay Goel left his house saying that he will trace out Mamta in Lucknow. On 3-10-1987 at about 8.00 p.m. the information about the death of Mamta was communicated to him by the Hospital Warden. He claimed that he had not told the Warden to communicate the information to her parents. He also stated that he had not told the Warden that he is coming. The Warden had asked him to inform the parents of Mamta. He had gone to the Hostel at about 10.00 p.m. When he reached there, the dead body of Mamta was lying in a sealed state-He stayed there for only 15 minutes. He had a talk with Hostel Warden and Prof. Dhupar -in this span of time. He did not find any Police Officer there, nor he made any attempt to meeting them. Some Police Constables were there. They were standing at a distance of 5/6 steps. He had gone to receive the father of Mamta at 4.15 a.m. to the Railway Station, who was coming to Kanpur after receiving information from him. His statement was recorded by Rajendra Singh, Police Inspector, 10/12 days after the occurrence. He claimed that he informed the Inspector that he had communicated the information to her parents and had gone to receive them on 4-10-1987 in the morning at 4.00 a.m. He did not offer any explanation for its omission. He was also unable to explain the commission of the fact that the Hostel Warden requested him to communicate the information of Mamta''s death to her parents. He stated that he was not knowing either Sanjay Goel or Avdesh Tewari from before. He had no other meeting with them after her murder. He claimed that he had learnt that Wing Commander Tewari knew Mamta''s parents. He never suspected them. He failed to explain the omission with regard to the fact that Sanjay Goel had told him that he will trace out Mamta at Lucknow in his deposition to the I.O. He had denied the suggestion that Sanjay Goel had not met him on 2-10-1987 at 9.00 a.m. He had also denied the suggestion that he is doing pairvi on behalf of Mamta''s father in this case. So far as this witness is concerned, we find many infirmities in his evidence. In our opinion, he is not a reliable witness. He being directly under P.W. 20, is gullible and some of the omissions discussed above in his evidence are material omissions creating serious doubt in his evidence. So even if we discard his evidence there is still sufficient evidence to establish that this appellant was labouring under an invigorating frustration which may have led him to commit any unlawful act in sheer desperation. His written confession as well as oral confession both establish that he was in anguish on account of the behaviour meted out to him by Km. Mamta Anand after his departure from B.H.L. He was not able to digest the same. The evidence of P.W. 20 and P.W. 4 clearly indicate that Hari Haran and crept into her life at some point of time during their stay at Varanasi and that entry was cemented further by the due joining I.I.T., Kanpur in the absence of Sanjay Goel. In our opinion, ''motive'' in the form of frustration appears established against the appellant from the evidence of the above said witnesses. But the question still remain that how far this ''motive'' was instrumental in her death and whether it was murder or it eliminates completely any probability of a suicide pact between them or Km. Mamta having seen the appellant consuming poison took it herself in sheer digust to avoid any untoward situation.

2. Extra Judicial Confession:

20. Now, dealing with the evidence of extra judicial confession, we have to examine the evidences of P.W. 1 Kajoli Banerji, P.W. 2 Dipti Bhattacharya, P.W. 6 R.N. Singh, P.W. 9 Dr. D.P. Rao and P.W. 10 Dr. O.P. Misra. Evidence of these witnesses initially were recorded u/s 164, Cr. P.C. by the investigating agency. This indicates that the prosecution was not assured of their support to the prosecution version at a later stage. Both the witnesses (P.W. 1 and P.W. 2) were students of the same institution and were living in the same Hostel. P.W. 1 was living in Room No. A-209, which was separated by two rooms from the room of the deceased. She was knowing Mamta Anand very well. Both these rooms were on the first floor. From the veranda room of Mamta Anand was visible. She had heard some screams coming from her room at about 3.00 p.m. Before that she had also noticed that Mamta Anand was in a disturbed state of mind after her arrival in the Hostel at 10.30 a.m. or 10.45 a.m. She had further stated that Mamta Anand, otherwise, was to return on 4-10-1987. She had gone to Lucknow at about 2.00 p.m. by a Bus. She had also informed her that Sanjay Goel had chased her up to the house of her friend in Lucknow. He had also threatened her there that if she will not marry him, the result will be bad. She had further informed this witness that he had earlier also threatened her that if she will not marry him, something will be done to her father and sister. She had further informed the witness that he had come to attend some seminar at Kanpur on behalf of his Department. Mamta had also told her that Sanjay Goel told her that he had brought some sweets for her from her mother. Mamta had further indicated that she was shocked and surprised that why her mother had sent sweets with him when they knew that she does not want to have any relationship with him. She was highly upset that Sanjay Goel was about to come with sweets to her. She asked her that if she want not to meet him. She can ask the Hostel Chaukidar not to allow him any entry in the Hostel. She told her that guard will be of no help because Sanjay Goel some how or the other will trace her out. This witness told the deceased that she should not worry. Sanjay Goel is only threatening. He will not be able to do anything. Thereafter the deceased had gone to her room. At about 11.15 or 11.30 a.m. when Sushmita came out of her room she found Mamta out in the verandah. She on enquiry told that Sanjay Goel had come and had gone to fetch sweet from his car. Mamta was appearing perturbed even at that moment. Meanwhile Sanjay Goel returned with something in his hand and went to the room of Mamta Anand. On seeing Sanjay Goel she had stopped talking to Mamta and went inside her room. She stayed in her room up to 1.30 p.m. Thereafter she went to take her lunch. Door of Mamta''s room was open and Sanjay Goel was in her room. At 1.30 p.m. she had gone out for shopping and to computer centre and came back at 2.30 p.m. She had not noticed whether room of Mamta was open or closed at that time. Five minutes to 3.00 p.m. or 5 minutes past 3.00 p.m. she heard 2/3 screams. These screams were of a girl. Some construction work was going on at that time in the hostel. She came out of the room and looked from the cement net towards the side where the construction work was going on. She asked workers whether any one had sustained some injury. At that time she noticed that the labour were looking towards the verandah. They also told her that the screams had emanated from the verandah of the hostel. She had also seen on the ground floor two girls. Jyoti and Nishi. They also told that they had heard the screams. She called them upstairs. She had informed them also about the talks that she had with Mamta in the morning. They went together to the room of Mamta. It was bolted from inside. They knocked the door, but did not get any response. They went to Dipti Bhattacharya and awakened her. They again came back to the room of Mamta with Dipti. Fresh knocking at the door evoked no response. They also shouted that if the door is not opened they will break it open. That too did not evoke any response. They then brought a study table and placed a chair on it. Dipti Bhattacharya stood up on that chair and peeped inside through the ventilator. She told them that on the bed something covered with a blanket is lying, but there is no movement in it. She did not notice Mamta and Sanjay Goel there. She noted some vomit lying on the floor. She then opened the inside latch of the door after breaking the ventilator glass. They opened the door and entered the room. They saw that Sanjay Goel was lying underneath the bed in front of the door and near him vomit was also there his eyes were open and was gazing at them. They bolted the door again. It was 3.30 p.m. at that time. They stationed the security guard at the door, she and Dipti went to communicate this information on phone to P.W. 5 Dr. Rao. Dr. Rao along with the Security Officer and another official arrived at the scene of occurrence within 10/15 minutes. According to her when the room was opened at that time Dr. Rao, the Security Officer and a Doctor was also present there. When the door was opened they heard the appellant saying that he wanted to marry Mamta Anand but she declined. He had administered poison to her and consumed the same himself. Since Mamta had died, therefore, he also has lost all love for life and want to die. She further stated that she had also heard the appellant stating that he had transcribed everything on the paper so that every body can read it. Her statement was recorded by the Police Officer next day at about 10.00 a.m. She was examined by the Police Officer for about 15 minutes. She admitted that she had not informed the Police Official that the appellant had told Mamta at Lucknow that he had brought some sweets, sent by her mother, for her. She had further admitted that Mamta had not told her that Sanjay Goel had given this sweet to her at Lucknow. She explained that she had informed Dr. Rao all that was told to her by Mamta in brief on the same day and had narrated the whole in detail on the next day. She admitted that she had not informed the I.O. about Mamta telling her that the appellant had threatened her that if she will not marry something will be done to her father and sister in the words in which the question was put to her. She stated that she did not orally remember word by word what she had informed the I.O. Her statement u/s 161, Cr. P.C. was read over to her wherein it was transcribed that he will die or kill his family members. Then she admitted that this statement was given by her to the I.O. She explained that in spirit the two statements are one and the same. When she was asked to explain the meaning of the word spirit,'' she told that she meant that there was a sense of coercion by Sanjay Goel towards parents of Mamta. She admitted that these omissions in her statement are relevant. She claimed that she had given her statement to the I.O. in the narrative form. She had not informed the I.O. that Sanjay Goel will come to her Hostel with sweetmeat. She admitted that her statement on oath was recorded by a Magistrate. She admitted that the omissions that have been put to her in the trial Court were not told either to I.O. or to the Magistrate. She admitted that she had not given any statement before the Magistrate regarding the sweetmeat. She claimed that she heard 2/3 screams. She heard these screams in between 2.55 p.m. and 3.00 p.m. Thereafter she did not hear any scream. No screams were heard by her after the knocking of the door. She denied her statement to the Magistrate to the effect that she knocked slowly at the door of Mamta. Then she awakened Dipti. She denied about hearing any loud screams at 3.05 p.m. She claimed that she had not signed her statement given to the Magistrate nor had heard it before her signatures She had read it for the first time in Court. It was given to her by the father of the deceased and others who accompanied him. Some police personnel were also present there. It was given to her to read. Even the statement recorded by the I.O. was also given to her to read. She had read the two statements, but not carefully because she remembers the statement that was given by her. Nobody has tutored her to state certain facts which she had not disclosed in her two previous statements made to the I.O. and the Magistrate. When she had come out of her room on 3/4 occasions, either to come in the corridor or to go to bathroom, she had noted presence of these two in her room. She paid no attention whether they were talking or sitting silently. She did not hear any sound of quarrel or even loud talks between them. In between 11.00 a.m. to 2.30 p.m. When she returned to her Hostel and till she heard the screams she did not find anything unusual. She denied that Mamta had asked her to send her lunch in her room when she was going to take her lunch nor she brought that. She admitted that Mamta had asked some other girl to fetch her lunch in the room. She had not gone to the room of Mamta after the incident. Even she had not visited her on the date of occurrence. She had not gone to her room even on the second or third day. The I.O. had recorded her statement in the veranda in front of a room. He had not taken her for the inspection of the site. The Warden and other officials along with the Medical Officer came to the spot at about 4.00 p.m. When they arrived at the scene of occurrence appellant was crying. She claimed that she had not gone to the room of Mamta even after the arrival of the Warden. The other two rooms in between her room and Mamta''s room were locked because the inmates had gone out. The Police Officers and the Constables came to the spot after sunset at about 7.00 p.m. She feigned loss of memory to the fact that whether she had told the I.O. or the Magistrate that Sanjay Goel had stated that he had written everything on the paper which can be read by the people and then stated that she does not remember. It is written in her statement u/s 164, Cr. P.C. that in the cassette something is taped and also he was talking of some writing. Thus, the details may not be there but the fact that he has stated that he has written something is very much there in her statement u/s 164, Cr. P.C. No doubt this fact is not there in her statement u/s 161, Cr. P.C. Her statement before the Magistrate was recorded after 12/13 days of her Section 161, Cr. P.C. statement. This statement u/s 164, Cr. P.C. was recorded in a closed room and apart from the Magistrate few policemen were also there. She admitted that when the door for the first time was opened, there was something on the bed covered by a blanket. What was it, she could not know. Regarding the above statement her explanation is that she did not remember whether it was told to the I.O. When that statement was read, it was not found there. Before the Magistrate she has stated that she had heard all these talks from her room. She further volunteered that in between she had come out of her room hardly for a fraction of a second. The furniture and the bed were in disturbed state. On the person of the appellant there were no marks of any injury noticed by her. She did not notice any utensils or plates lying helter skelter in the room. She also did not notice any mug or glass. She volunteered that she had not entered the room and, therefore, she could not notice this fact. She had not noticed Mamta lying on the floor. She had seen her after2/3 hours in the corridor when her body was placed there. She abandoned her room on that day and stayed with some other girl and returned to her room after 11.30 noon. This conduct of her is quite casual. She came out only when the body from the corridor was removed. She explained that she did not want to stay there. She being a girl it is quite natural that she may not have the courage to withstand all that. She denied any knowledge with regard to what the I.O. had done on that day when he recorded her statement. She denied the suggestion that she did not hear any scream nor in her presence the glass of the ventilator was broken, nor she had seen anything in the room. She denied the suggestion further that after the arrival of the Warden in the hostel she could learn about the incident because she was sleeping. She denied further the suggestion that Sanjay Goel did not say anything because he was in a semiconscious state.

21. Examining critically now the statement of P.W. 2 Dipti Bhattacharya, we find that she corroborates P.W. 1 that she was awakened at 5 or 10 minutes past 3.00 p.m. She further stated that Jyoti was also there. She stated that Kajoli informed her about the screams heard by her coming from the room of Mamta. She also corroborated the fact that she accompanied the other girls to the room of Mamta and knocked her door, but no response was received. Then the table and chair were brought and she stood on it and saw the situation inside through the ventilator. She noticed a blanket covering something on the bed. Since the ventilator glass was dirty, therefore, inside of the room was not clearly visible. She came down and again knocked at the door and yelled out if the door is not opened it will be broken. Since there was no response she had broken the ventilator glass with something and opened the door latch. They peeped inside and found that something is lying covered by a blanket on the bed and vomit lying on the floor. Underneath the bed appellant was lying with his eyes open. They bolted the door from outside and asked the Chaukidar to remain there. Nishi and Jyoti too were left there. She and Kajoli went to the ground floor to contact Dr. Rao, the Warden of the Hostel on telephone. The phone call was made to the Warden at about 3.30 p.m. Then she again came upstairs. She heard that from inside the room of Mamta some one was knocking. She heard some one saying that "she is dead yaar." They waited at the door of Kajoli. At about 4.00 p.m. Dr. Rao with Security Officer and the Doctor arrived there. They removed the table and chair from the door and opened it. She was behind them. She noticed that behind the door on the floor Sanjay Goel was lying. He was pulled up. He stated that he loved Mamta and wanted to marry her. She refused, so he had administered poison to her and has also taken it. He does not want to be saved. The Doctor declared Mamta dead. They remained inside the room of Kajoli (P.W. 1) until 4.30 p.m. The security staff had taken Sanjay Goel to the Hospital. She had gone to her room thereafter. Her statement was recorded by the I.O. two days later in the afternoon around lunchtime. Kajoli had told her that she had heard the screams at about 3.00 p.m. On reaching the door of Mamta she did not hear any sound of a groan. She herself did not hear any scream. She admitted that she knocked the door for about 10 minutes, but to no response. She admitted that she had stated that if her statement to the I.O. is that she had removed the glass of the ventilator and nothing was visible therein, then she is surprised because she meant by this statement that I saw no person inside the room.'' The I.O. must have committed error in translation. She stated that still item on the bed was lengthwise. She did not go inside the room along with the Warden. She also did not enter the room when it was opened first time by them. Only the open parts of the room was visible when the room was opened first. When they peeped inside they noticed the appellant underneath the bed, but Mamta was not visible. She had not noticed any extraordinary things which ought not to be there in the room apart from the vomit and the appellant on the floor. The room was not disturbed at all. According to her statement everything was upright and intact at its place. She had informed the Warden to come immediately, something serious had happened, but did not narrate the details. The Warden reached the Hostel within 20 minutes of the phone call. When the statement u/s 161, Cr. P.C. of this witness was read over to her, she said she may have forgotton to tell the I.O. that the Doctor had also arrived with the Warden. She stated further that she cannot say whether the Doctor afterwards came along with him. When she had seen them they were together at about 4.00 p.m. She admitted that in her statement to the Magistrate u/s 164, Cr. P.C. doctor''s coming along with the Warden is not there. She stated it to be incorrect that they had retired in their room after the arrival of the Warden and the security staff. She admitted that her statement to this effect is there before the Magistrate, but they were present in the room of Kajoli. She had admitted that she had given out before the Magistrate that the boy was knocking from inside and said that she is dead. She had not disclosed to the Magistrate about, refusal to marry, etc. When she was asked to explain, she said that she may have forgotten because she was very busy during those days. She is making this statement after a year in the Court. She was not present when the appellants and the deceased were examined by the Doctor. The talks between the Warden and others inside the room of Mamta was not fully audible from the room of Kajoli. She denied that she had taken any lunch for Mamta in her room nor she knew whether any other girl had taken the same or not. She also stated that she did not know whether Mamta had taken her lunch that day. She admitted that she had not noticed any utensils or plates on the table or on the floor of the room. She stated that she had seen normal things like books etc. on the table, but had not seen anything grossly abnormal. She had not visited the room with the I.O. She had not seen the appellant before the incident. She had seen him in the corridor in front of the room of Mamta and thereafter yesterday and today in the Court. She had not gone near the bed to examine the still article. None of her colleagues or batchmates also saw it. She had left the hostel thereafter and came back at about 10.30 or 11.00 a.m. She did not remember the presence of any policemen in the hostel. She had heard that the dead body of Mamta was already removed. She had not seen this herself. She had not visited her . room in the night.

22. Examining the statement of these two witnesses, we notice that there is slight difference in the statement of the two witnesses with regard to the oral dying declaration and also the place from where they heard it. P.W. 1 had stated that the appellant was saying that he wanted to marry Mamta Anand but she was not agreeable. Therefore, he had administered poison to Mamta and had also consumed himself. Because Mamta died so he had no love lost for his life and wanted to die. So far as P.W. 2 Dipti Bhattacharya is concerned, her statement in this context is that he loved Mamta and wanted to marry her. She refused and so he had administered poison to her and himself had taken it. He does not want to be saved. Apart from it both of them have negatived the presence of anything unusual inside the room. The room was tidy and nothing was disturbed there. It completely negated possibility of any violence inside the room at any point of time during his stay there. P.W. 1 had denied hearing of any sound, loud or feeble, before she heard screams. It further proves that the tempers did not run high between the deceased and appellant during her life time. The story of sweets having been brought by this appellant on 3-10-1987 is also rendered highly doubtful from her statement. It also appears to us highly doubtful that they heard appellant speaking anything. The police came to the spot 3-4 hours after the arrival of the Warden in the hostel. It is also borne out from the statement of P.W. 7.

23. From the statement of P.W. 1 Kajoli these facts, however, emerge out. In addition to that she had met deceased Mamta at about 10.30 or 10.45 a.m. in the hostel. She was told by the deceased that the appellant has come. They remained inside Room No. 212-A for nearly four hours very peacefully till a female scream was allegedly heard by her coming from the veranda at 2.50 or 2.55 p.m. She went to her room and knocked it slowly. She was not responded to by Mamata or the appellant. She along with two other girls awakened P.W. 2 Dipti Bhattacharya and all of them came to Room No. 212-A again and after opening the door they found only the appellant lying on the floor underneath the bed and his vomit. They did not notice Mamta. On the other hand they had seen something on the bed covered with a blanket in a still form lengthwise. From the statement of these two witnesses it cannot be ascertained how the dead body of Mamta came on the floor, as noted by P.W. 6, P.W. 9, etc. They had not stated in their 161, Cr. P.C. or 164, Cr. P.C. statements about the appellant talking to these witnesses. Thus, their evidence weakens seriously the reliability of the oral confession of the appellant P.W. 10 Dr. Misra too has not supported this story of oral confession by the appellant. It appears that both these witnesses had supported the prosecution case regarding oral confession and sweetmeat story under influence and pressure. If they had not done it their career might have suffered. Regarding the story of hearing of screams at about 3.00 p.m. P.W. 1 is the only witness. Other two girls were not examined by the prosecution. No labour was also examined to lend any assurance to it. We find this story, in the circumstances discussed above, not reliable. From the statement of Kajoli, P.W. 1, it is discernible that visits by boy friends of girl inmates was not a matter of any serious concern to them otherwise the appellant could not have remained there for more than four hours wholly unnoticed.

24. So far as the testimony of P.W. 6 R.N. Singh is concerned, his evidence is no different from the evidence of P.Ws. 1 and 2. He has corroborated the evidence of P.Ws. 1 and 2 that the room was bolted from outside and it remained so bolted till the arrival of Dr. Rao, Warden of the Hostel and Chief Security Officer, Mr. Roshan. Discrepancy as pointed out in the testimony of this witness is that he has not stated in his Section 161, Cr. P.C. statement and Section 164, Cr. P.C. statement that he unlatched the door before pushing it wide open. It also points out that this witness has not disclosed in Section 161, Cr. P.C. statement that Sanjay Goel had disclosed his name and percentage on any enquiry made by him. To both these omissions his explanation is that they have not been asked from him by I.O. and, therefore, he did not state these facts. It has further been pointed out that he has in Section 161, Cr. P.C. statement stated that the boy, whose name later on came to be known as Sanjay Goel, was muttering in an unconscious state. This he admitted to be true. He further claimed that his statement, even today, is the same, but he added that on enquiry the accused disclosed his name and parentage. It has been pointed out further that 11 articles that were brought by this witness from the hospital and handed over to I.O. whether were given to him by the appellant or were they recovered from the person of the appellant by hospital staff viz. the doctor during his medical. He had earlier stated in his examination-in-chief that a Doctor, whose name he did not remember, had given him these 11 articles, but a perusal of the examination-in-chief further discloses that he had clarified this statement by a saying that these articles were given to him by Sanjay himself. In cross-examination he admitted that no memo of these properties was prepared at the hospital by any one. As a matter of fact these articles were brought by him to the Girls'' Hostel from the hospital and immediately thereafter they were handed over to the I.O., who had prepared the memo for the same. The appellant''s disclosing his name, address and parentage depends on whether he was in such a state of consciousness so as to respond to such questions. The variations in his version were introduced by the prosecution to establish fact of consciousness of the appellant all along from the time this witness met him till he was hospitalised. The recovery of these 11 articles do not rescue the prosecution. At no point of time this witness or any other witness stated that the appellant was unconscious either in their statements made during investigation to the Magistrate or in trial Court. The words spoken by this witness in his previous statement precisely was "Behosi Ki Halat Main." Though it does not give an impression that he was completely unconscious. If he was conscious the witness would not have stated further "Barbara Raha Tha." Thus there is absolutely no evidence that the appellant was noticed unconscious when first P.Ws. 1 and 2 peeped into the room and subsequently when this was followed by the entry of P.W. 10 Dr. Rao P.W. 6 R.N. Singh, and the Chief Security officer, Roshan. Even P.W. 10 Dr. O.P. Misra very categorically stated that a boy, who was lying in the veranda, was crying. He was in a conscious state. He also enquired from him his name. He disclosed it as Sanjay Goel. He also admitted that the boy had given out his father''s name and address also which he did not remember. He has further admitted in paragraph 2 that this boy was saying that "do not save me." He was further crying "please ask me why have I done it." He was further stating "please do it hurriedly because I will not survive for long." No doubt P.W. 10 has stated that apart from the above statement he did not state anything. He was declared hostile at this stage. So we find ample corroboration to the statement of P.W. 6 R.N. Singh from the statement of P.W. 10 also that the appellant was at that time not wholly unconscious. P.W. 9 Dr. Rao has very strongly asserted the fact of his consciousness. According to Dr. Rao also Sanjay Goel disclose his name, parentage and address. He was brought out and placed on a chair. He fell down from the chair ;and this fact was told by him while he was on the floor. His condition was not good, therefore, they summoned the doctor. The Doctor on his arrival examined Km. Mamta Anand and declared her dead. He told them that the condition of the appellant is also serious and he should be shifted to the hospital forthwith to save his life. He was sent to the hospital through the Assistant Security Officer, P.W. 6. After going through the statement of all these witnesses, viz. P.Ws. 1, 2,6, 9 and 10 we find that their evidences on oral confession of the appellant is highly discrepant and unsatisfactory. Unless this appellant was not conscious fully any coherent confession by him is not likely or possible. A semi-conscious man cannot make any statement coherent enough to term it his confession. We have serious doubt from the statements of these witnesses as earlier discussed, that any such statement was made by this appellant to any one of them. The name and address could have been easily gathered from Kajoli ? P.W. 1. Apart from it, his address must have been there in his purse, and other papers also. Evidence of P.W. 6, P.W. 1 and P.W. 2 clearly provide us this conclusion that the appellant was semiconscious and delirious and not fully conscious. Our conclusion is further fortified from complete absence of the medical evidence regarding his consciousness. Why bed head ticket of the appellant was withheld by the prosecution. The Medical Officer who examined the appellant and admitted him was also not produced and examined. These evidences would have helped us enormously in appreciating the question of his consciousness. No explanation was offered for withholding these valuable pieces of evidences, oral as also documentary, which should have satisfied the controversy. Thus the evidence which is open to two constructions cannot be interpreted to the benefit of the prosecution. It is a settled law now that the benefit of dubious situations or discrepancies on positive facts, withholding of evidence without any valid reason must be read in favour of the accused. The oral confession under these circumstances is not acceptable as reliable against the accused.

25. Some criticism has been levelled against P.W. 9 Dr. Rao regarding F.I.R. The criticism is that he is a South Indian and does not know Hindi proficiently. He dictated the written report to Dr. Dhupar in English and Dr. Dhupar had translated the same in Hindi and this witness had signed that Hindi version after it was read over to him. The written report is Ext. Ka-17. This witness has further admitted that he had sent for the doctor first and thereafter Prof. Dhupar was called. He called Prof. Dhupar because he was his senior and he wanted to inform him about the incident. Prof. Dhupar reached the hostel within 10/15 minutes. None amongst the person present at the spot had asked him to inform the Police Outpost, I.I.T. There were no talks amongst them for any communication to the police station so near. He stated that he was so busy with the events that it did not occur to him to inform the police. He stated that the reason behind his being busy was his perturbed mental state. He was thinking about the impact of the incident upon the inmates of the hostel, the students of the Institution and reputation of his institute. The uppermost thing in his mind was that the entry of a male in the Girls'' Hostel was permitted only at a certain hour and it was his responsibility to effectively impose this restriction. He further stated that it was also his responsibility to check and control the entry of the visitors in the Girls'' Hostel. He stated further that before dictating the F.I.R. he never thought that the information of this incident should also be given to the police. He had never prepared any report before dictating the present report. He further admitted that he did not know what is to be written in the report and whom it should be addressed? All this he enquired from Col. Roshan, the Security Officer. After knowing it from him he dictated his report. He stated that he had given in English the details of the incident to Prof. Dhupar. Prof. Dhupar prepared this Hindi version from those details that he gave to him. It was read over and when he became satisfied, initialled it. He stated that since he was the Warden of the Hostel, therefore, he signed the report. He very clearly stated that he narrated all the facts of Prof. Dhupar. According to him Sanjay Goel did not disclose to him anything before the arrival of the Doctor. He further stated that since Sanjay Goel had already disclosed his name, therefore, there was no need for any one else to ask the same from. He further stated that he had not noted down anything himself, also admitted that he had not disclosed to the I.O. that Sanjay Goel has told him that he had administered some poisonous thing to Mamta Anand. He stated that he told the I.O. that Sanjay Goel had informed him that he had administered some poisonous thing to Mamta Anand. His statement twice recorded by the same I.O. No reason for recording his statement for a second time was disclosed by I.O. to him. He further stated that there were two police officials and both of them made independent queries from Sanjay Goel. He did not remember those questions. But he definitely remembers that Sanjay Goel had told about some poisonous thing. The evidence of P.W. 9 does not clinchingly establish that oral confession was made by the appellant. His statement leaves lot to be desired. He was the Waren of the Hostel and must have been in a precarious mental state because of his failure. He knew fully well that many fingers will be raised against him in the Institute as also in the public regarding the entry of the appellant in the Hostel before the permissible hours. This appellant was a stranger not only to the hostel but also to this institute. However, we do not find any serious infirmity in preparation of the F.I.R. as a matter of fact not examination of Dr. Dhupar, scribe of the F.I.R., has caused this situation. Dr. Rao apparently told the facts in English and Dr. Dupen only scribed them in sequence in Hindi. Therefore, not much credit can be given to this submission. The inquest was prepared, according to him, in the presence of a Magistrate, who reached there at about 7.00 p.m. The inquest memo was prepared outside the room. He stated that he did not know who called the Magistrate to the spot. There is no difficulty in it. The Police Officials who reached the spot must have called the Magistrate.

26. So far as P.W. 10 Dr. O.P. Misra is concerned, he appeared to have resiled from the extra-judicial confession part of his statement given to I.O. May be that he is doing so deliberately to save the appellant or may be stating the truth. This witness admitted that he had also not noted down on any piece of paper what Sanjay Goel stated to him. He said that he had not prepared any medico legal note, but had definitely prepared a letter of reference for Hallet Hospital for admission of Sanjay Goel. He never knew the time when Sanjay Goel took the poison. He further stated that he could not say whether Sanjay Goel had consumed the same or it was administered to him. He, in cross-examination, admitted that Sanjay Goel himself gave out his name. According to him what Sanjay Goel stated was noted down by some security guard. Other witnesses. P.W. 6 and P.W. 9 deny the same. He further stated that only his name and address was noted down on a piece of paper. He disclosed to I.O. that Sanjay Goel was stating that do not save me and ask me the reason why I have done so. P.W. 10, thus has not supported oral confession at all. But from his statement it is possible to see that the appellant was conscious. This aspect could have been more positively examined in the light of the medical evidence but the failure of the prosecution to bring such evidence on record proved fatal. The probability or possibility of this appellant making any such declaration to any witness is not only remote but is highly doubtful. It seems to have been deliberately introduced to prove a case of murder against the appellant.

27. Now, to deal with-the argument of the learned counsel for the appellant that the written confession is wholly inadmissible in evidence in view of the bar created by Section 73 of the Evidence Act. We feel it necessary to quote the written confession, which is as under :

Exhibit K-1 (CHEQUE BOOK)

51111 - Wg. Commander Tiwari they are (illegible) relatives. Wg. Commander G.K. Tiwari N-1 area air force colony ch (illegible) Phone 511-402 PP. (illegible) key in any (illegible). It''s staying in 316 qtrs please give this (illegible) to him on Monday morning. He is in no way irresponsible for double murder. Myself Sanjay Goel is totally responsible so I must be hanged. I want to marry her. She has sex with him. The recorded cassettee + her parents (illegible) and Satish Kaveti hall 4 A 303 will confirm. Let it be a lesson for all the lovers that no one should play double games. Mamta for three years spend a married life with me. I was sincere to her for all the 4 years. She slept with me did every thing then one fine day she told to go balls. I am person who cannot ditch people that. I love only once. She ditched me. I had to die and I am going to die before that I killed her. She was the reason for all the problems. She kicked on the ass. She had sex with me. In train first class couple in friends house, always will to have sex. She in Aug., 86 had sex all warm demanding in south ext. in my friends house New Delhi all the time (illegible) demanded me to fuck her. The proof in the recorded cassette. The details of our affairs can be found in detail from B.H.U., Varanasi. Her father my father. For one complete year I try to forget it but I was deeply involved with her I could not come out of me. My life has become hell. I had to die. I could bear this separation. Our engagement was due. At the last moment she told me fuck you. For one complete year I try to recollect her but of no use. I try to commit su (illegible) de before also but failed. She was not at her perturbed. It hurt lot for years. She loved me. Had sex with me desired all animal passion and after that left I don''t want to live in this world of treachery I want to die. Kill me hang me. Let it be lesson to other girls. Girls must not ditch sincere boy friends. I had to take this hard step. I am fed up of life. I had to die but then Mamta was all happy that I am dying and she would be free that forced me to kill her too. I want to die. Please give this check to Mukesh Batra House No. 310 IIT Campus for all the trouble he has undertaken. I won''t live for long. I want to die. I want to be stoned. I want all your girls to kill me. Kill me. My beloved ditched. I kill here. Now there is nothing for me to live. Kill me as fast as possible. Knife me, hang me. Stone me but kill me. I don''t want to live in this treacherous world. Mamta is so very polite she can make any guy foul. She is polite. She is (illegible). But to me she destroyed my life I had a brilliant carrier ahead. But without her I don''t want anything. Kill me. Please pay Mukesh Batra the check for (illegible) his house of Rs. 500/-. Mukesh Batra (illegible) way involved. He (illegible) know anything of this happening (illegible) innocent (illegible) Delhi. I have to go from this world. With my love. Please ignite our pyre together. Contact Sweta.

Exhibit K-2 (POSTER)

1 (illegible) know (illegible) dead (illegible) not. 1 take to take this action because 1 was left with no alternate. For 4 years she showered love to me. The cassette National tape recorded will confirm. All sounds while having sex are recorded in it. She travelled with me in first class coupe had sex with me in K.B. Roy (Bel (illegible). In Sunil (illegible) in south ex. In Aug ''86 she had sex with me for the last time. She (illegible) me (illegible) (illegible). Than in (illegible) she (illegible) off. I was genuinely involved which Mr. Anand can confirm. I didn''t anything wrong but she I don''t why ditched me. I could not live without. I tried to commit suicide before but was saved that time. I didn''t kill (illegible) she nev (illegible) even bot (illegible) about my (illegible) in (illegible). Form then I had decided if I die she will be free. (illegible) my parent will only suffer. Then I decided.

EXHIBIT K-3 (POSTER)

Mamta can (illegible) pretty well no one will believe she can do such (illegible) but it''s a (illegible) in 4 years of our relationship. She never let me know that will leave. All the time she was eager to have sex. Than in oct (illegible) she told me go my way. I would not believe. The cassette was recorded at Mr. K.B. Roy (S.E. BEL house). I (illegible) a proof that she really have sex and wanted it with me with. I want to marry hers.

I never in dream thought this will not marry me but she would marry anybody else. I am ready to die. I don''t fear death. My (illegible) address in C-149 nakpura.

New Delhi-Phone 679083

Mamta''s Phone 3014363

I loved her. She ditched me. I try to kill my alone. She was happy. (illegible) though mamta will be free. (illegible) live without her. Four complete years I took care of her but still she ditched. (illegible) I pleaded to cone back. Tell me if any my mistakes she never. Commit suicide but was saved. I am nothing to her. Knowing my emotional sentimental nature still kicked me. told be (illegible). In Aug ''86 she told balls. I haven''t (illegible) she told me to (illegible) in spite of knowing that I would be live without her. When I committed (illegible) was not all (illegible). Sushmita Misra Lkh Mg-7 will give details I had undergone (illegible).

EXHIBIT K-4 (POSTER)

I will be living for few more hours. I had taken hold of slow reacting poison. I could have killed me instantaneously but I want to tell the world don''t ditch very sincere people. Of my sincerely Sweta (Airforce coloy-Mg-7 wr comm...Tyagi will (illegible). I pleaded I request I did everything she did not (illegible). I killed myself in Delhi was saved. Now none can save me. I will die. I don''t want to live once Mamta has gone. There is no body to live for. She told me she will marry some chap. I could not bear it. For years she sucked my cock, fucked me that she tell me to go my way and when I was planning to marry I had no intentions she will kill me ditch me when I could not loose her. She is mine. If not alive after death we will be together. Father mother Deepa baby excuse me. I could not do anything for you that''s my weakness. I couldn''t come out of Mamta spell. I could bear this treachery. All treachery will be confirmed by Mamta''s father. Take to (illegible) jail hang me. I do not want to live any longer, I have taken lot of poison soon I too will die. But let this be lesson for coming generation. Never love, never ditch Be sincere.

This confession was made by the appellant partly on the cheque book that admittedly belonged to him and partly on the back of a poster, which must have been there in the room of the deceased.

28. The argument advanced by the learned Counsel for the appellant is based solely on the ground that the Magistrate cannot direct the appellant to give his handwriting for comparison with the written confession. In this case, according to him, the appellant has given his handwriting on the direction of the Court during investigation, no proceedings were pending until then in any court of law against him. The court was not competent to command the appellant to give his specimen writing. In these circumstances it is wholly inadmissible in evidence, it cannot be used against this appellant. Section 73 of the Evidence Act reads as under :

73. Comparison of signature, writing or seal with others admitted or proved. In order to ascertain whether a signature, writing, or seal is that of the person by whom purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications to finger impressions.

A perusal of this section indicates clearly that it limits the power of the Court to direct any person present in Court or brought before it to write any words or figures where the Court itself is of the opinion that it is necessary for its own process to take such writing in order to compare the words or figures so written by him with any words or figures alleged to have been written by that person earlier. The power does not extend to permit one or the other party before that Court to ask it to take such writing for the purpose of collection of evidence but for its own use. It clearly is indicative of the fact that the power is to be exclusively exercised by the Court for its own satisfaction and both the accused or the prosecution are not to make an application to the Court to send any disputed writing for comparison with his admitted writing by a handwriting expert to support or bolster their case. In this connection the Court''s power does not extend to the extent of directing an accused to give his handwriting in the course of an investigation so as to enable the investigating agency to compare such writing with any words or figures alleged to have been transcribed by such accused. It further makes it clear that accused cannot be compelled to give his specimen handwriting if the case is under investigation by the police. If an accused refused on being commanded to give his specimen handwriting, an adverse inference may be drawn against him if such denial occurs during proceedings in court. Hence pendency of a proceeding in any Court of law is a must before such an order can be made. So the submission raised before us by the learned Counsel for the appellant, prima facie, appears to have some force.

29. In the present case the appellant had written a lengthy note before he was picked up by the hostel authorities and rushed to the hospital. That note is in the nature of a written confession. This handwriting of the appellant, according to the learned Counsel, cannot be compared by any handwriting expect under any direction or order of the Court during the pendency of an investigation. In other words, no Court, during investigation, can compel any accused to write down the same words again so that a comparison of the two writings can be. had and used as evidence against him. In the opinion of the learned Counsel for the appellant any such evidence obtained during investigation shall be treated as procured under duress and will be wholly inadmissible. He has cited State of Uttar Pradesh Vs. Ram Babu Misra, in this regard and submitted further that such an evidence will wholly be inconsistent with the provisions of Section 73 of the Evidence Act.

30. Before we accept the above submission, we feel it necessary to look into other provisions contained in the Evidence Act, such as Sections 45 and 47 to properly appreciate his contention. Section 45 deals with the opinion of the Experts. Section 45 makes the opinion on the point of Foreign Law or Science or Art or as to identity of handwriting or finger impressions admissible in law. The opinion of a person specially killed in such Foreign Law, Science or Art or with regard to the identity of handwriting or finger impressions has legal sanctity. Those who are competent to give such opinions are called ''Experts''. This section clearly makes the opinion of the ''Experts'' admissible in evidence.

31. Section 47 of the Evidence Act clearly indicates opinion as to handwriting when relevant. This section makes legally admissible the opinion of any person regarding any document or its writing if he is acquainted with the handwriting of that person by whom it is supposedly written or signed. It does not deal with an expert or his written opinion. It actually takes into periphery opinion of people other than experts who are acquainted with writing of the author of the writing in dispute. In this context Section 59 of the Evidence Act also has relevance. An Expert''s opinion has to be proved by his oral evidence as implied by Sections 59 and 60 of the Evidence Act. Chapter V. Section 61 of the Evidence Act, speaks of proof of contents of documents. According to this section the contents of any document may be proved either by primary or by secondary evidence. Section 62 deals with primary evidence which includes production of document itself for inspection of the Court. Section 73 of the Evidence Act is to be read in conjunction with Sections 45 and 47, 59, 60 and 61 of the Evidence Act.

32. When this argument is tested in its totality it transpires that the investigating agency is left with no options if it come across a document against an accused person be it in the nature of a confession or any other class of writing of his. If it obtains the writing of the accused perforce the courts are loath to accept it as admissible evidence or any opinion of the expert based on such comparison because it shall be deemed to be obtained under duress or by practising fraud, force, threat and tasty coercion. Meaning thereby that the investigation has no way to use such writing against an accused till it submits the charge-sheet in court. If it approaches a court of law during investigation Section 73 immediately is attracted and the bar comes into play. Such an interpretation is most unwholesome. It will amount to unusual fetters in the investigative powers of the police. It could not be the intention of any law. A harmonious construction is, therefore, need of the hour because the Investigating Agency clearly has unfettered powers to investigate a case. No courts can interfere with this power of the police at any stage. There are various provision in the Code of Criminal Procedure where the assistance of a court, during investigation, is permitted. Where a proclamation for the arrest of a person absconding is required, his property is required to be attached (Section 82 and 83, Cr.P.C). Where in the course of investigation the Officer investigating the case feels necessity of production of any document or other thing necessary or desirable for collecting evidence during the investigation, enquiry, trial or other proceeding, the assistance from courts is permissible. This power is vested in a court of Section 91. Section 99 also empowers a court to exercise its power during investigation against any postal or telegraph authority if any document, parcel or thing required for the purpose of investigation is in their custody. Where a police officer requires to make a search of any place suspected to contain stolen property or forged document, etc. Section 94 is there to come to its rescue. Power of the court can be extended to issue such directions. Sections 103, 104, 156, specially its Sub-section (3) comprehend such situations, u/s 157 the Police officer is required to submit a report to the Magistrate, who is competent to take cognizance of such offence which that police officer has decided to investigate u/s 156, Cr.P.C. The purpose behind this provision is to keep the Magistrate informed of the investigation of such cognizable offence so as to enable him to exercise permissible control over the investigation and, if necessary, to give appropriate direction u/s 159, Cr.P.C. Section 159, Cr.P.C. empowers a Magistrate, who is competent to take cognizance of the offence, to direct an investigation or if he thinks fit on receiving such report at once proceed or depute any Magistrate subordinate to him to proceed to hold preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in this Code. This power is to be read in league with Section 157. When the two sections are read conjointly where the Investigating Officer decides not to investigate a cognizable offence the Magistrate can take recourse to the power conferred by Section 159. The report is to be submitted in both the cases where the Investigating Officer decided to investigate or where he decides not to investigate under Sub-section (2) of Section 157. Section 164, Cr.P.C. empowers a Magistrate to record any confession or statement of any accused or a witness in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. This section deals with voluntary confession or statement made by any witness or any accused. Such a confession or statement may also be recorded in the course of investigation. Section 167, Cr.P.C. is yet another section wherein a police officer, who fails to complete the investigation within 24 hours fixed by Section 7 is required to forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate and such Magistrate under Sub-section (2) is competent to authorise the detention of the accused in such custody for such period as he thinks fit for a term not exceeding 15 days in the whole in police custody.

33. Taking clue from Section 164, Cr.P.C. where a Judicial Magistrate is competent to record the confession of a person, who has offered to make such a confession on an application moved by the police in the course of investigation why such a Magistrate who is competent to take cognizance of the offence cannot direct any such accused to give his specimen handwriting. So far as Section 73 of the Evidence Act is concerned, the power is to be exercised by the Court suo motu against either parties, an accused facing a trial in that court or may be other proceedings, civil or criminal. The parties are precluded from making any request to the court for that purpose. The exercise of a suo motu power is too different from the authority of a Judicial Magistrate to command an accused to give his handwriting so as to provide the Investigatig Agency an opportunity to compare the suspected handwriting. We cannot shut our eyes to the provisions of Article 20 of the Constitution of India, specially Clause (3), which says that no accused can be compelled to be a witness against himself. It is to be seen whether any such direction of the Magistrate to an accused renders that person a witness against him or not. The voluntary confession recorded u/s 164, Cr.P.C. does not render such a person a witness against himself. In the same way a person so directed by the Magistrate to give his specimen handwriting for comparison with the suspected writing does not render him a witness against himself. The accused has always an opportunity to refuse to obey the command. So far as Section 164, Cr.P.C. is concerned the accused may refuse to make any such confession before the Magistrate even though he was produced by the police. In the case at hand such an accused can deny to oblige the court or obey its command. In the case of denial, an adverse inference may be drawn by a court of law if by other legal evidence that handwriting is proved to be that of the accused. But that refusal will not entail any penal consequences for such an accused. He shall be well within his rights to refuse. The power of Investigating Agency to collect evidence is unfettered in such cases subject to the restrictions imposed by Sections 24, 25, and 26 of the Evidence Act. Section 27 of the Evidence Act is an exception to the abovesaid principles or restrictions. So far as Evidence Act is concerned, it does not lay down any procedure. It only defines the extent of authority a court has in admitting evidence, oral or documentary, and lays down specifically the expanse that the court in dealing with such situations can exercise its power. As a matter of fact it confers power upon a court of law to deal with various situations arising in the court in a proceeding that are brought before it either by the State or by private parties. However, the Code of Criminal Procedure lays down the procedure which is to be adhered to by a court of law while dealing with various situations arising in the course of an investigation, enquiry or trial. Section 73 of the Evidence Act undoubtedly has a role to play only when the proceedings are before the court. It has nothing to do with the investigating stage of any offence. This is a suo motu power to be exercised by the court for its own satisfaction. The Investigating Agency is invested with the duty to collect material and evidence to establish guilt of an offender or accused. No impediment or fetter can possibly be placed in the exercise of that power of the police. Any such provision shall be deemed redundant and an impediment on the powers of the police which the law courts including the Apex Court have time without number held to be impregnable except in accordance with law, i.e. in accordance with the provisions provided in the Code of Criminal Procedure and the Evidence Act. Sections 45 and 47 of the Evidence Act makes an expert opinion admissible in evidence. These Sections supersede Section 73. Section 45 deals with the situation where the court has to form an opinion upon a point of foreign law or on science or art or as to the identity of handwriting or finger impression. This Section does not deal with the relevancy of evidence. It spells that such opinion will be relevant and admissible. Section 73 of the Evidence Act deals with a situation where the court is in a position to ascertain whether a signature, writing or will is that of the person by whom it purports to have been written or made. Any signature, writing or will admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved. The court may direct any person to be present in court to write any words or figures for the purpose to enable it to compare the same with any words or figures alleged to have been written by such person 73, thus, enables a court to direct any person to give his handwriting thumb impression or signatures, when the court itself is not only seized of the matter and is of the opinion that it is necessary for its own purpose to take such writing in order to compare the words or figures so written with any words or figures alleged to have been written by such person. This power, thus, is restricted only to the exercise by the court where either the enquiry or the trial is pending. The exercise of this power is confined to the conviction of the court and not to the satisfaction of the parties. That means the Investigating Agency cannot apply for the comparison of any such handwriting before any court of law even in the course of enquiry or trial. Then how it can resolve such a contingency? It can ask an accused itself. But no accused will, in the normal circumstances, agree to do so. So far this purpose the stage of remand is to be taken as a proceeding and the Magistrate be deemed to possess sufficient power to require an accused to give specimen handwriting to the court to facilitate its comparison by an expert. It is also a duty for a court of law to see that necessary evidence is collected at the relevant stage. This can be done by informing the accused that he is entitled to refuse. Despite this warning if any accused agrees to give his specimen writing there must not be any bar to its admissibility as evidence in law.

34. The question that arises for our consideration is how an Investigating Agency is to deal with such a situation? Where should it make such an application? In the face of provisions of Sections 24, 25 and 26 of the Evidence Act police cannot force any accused. It cannot record that the writing recovered by the police is written by the accused. It shall be hit by any one of the above said provisions of the Evidence Act. No doubt the answer to this question is very difficult but the court cannot shirk from resolving this controversy. Section 164, Cr.P.C. is the only section which permits a Judicial Magistrate to record a voluntary confession of an accused. If a Magistrate can record a voluntary confession of an accused on an application made by the police on the production of that accused we find it difficult to accept that under the same provision, i.e. Section 164, Cr.P.C. why cannot a Magistrate direct the accused whose suspected handwriting has been recovered by the police and if that handwriting is in the form of a confession of his guilt why not such a Magistrate competent to direct such an accused on an application moved by the Investigator before it to give his specimen handwriting so that the recovered handwriting of his may be compared with his specimen writing. However, the courts have to comply with all those safeguards to which an accused is entitled u/s 164, Cr.P.C. If the courts are precluded, as argued by the learned Counsel for the defence from making any such direction the dictum of police having unfettered powers shall be thrown to winds. Investigation is nothing but collection of facts and circumstances as evidence. Obtaining expert''s opinion during investigation on a disputed document is nothing but collection of evidence as defined by Section 45 of the Evidence Act itself. Thus, in our opinion, Section 73 in no way lays any impediment in the exercise of such power by the Judicial Magistrate in the course of investigation. Such a direction may be made u/s 164, Cr.P.C.

35. Learned counsel for the appellant has cited three decisions of the Apex Court--

(1) State of Uttar Pradesh Vs. Ram Babu Misra, The State of Bombay Vs. Kathi Kalu Oghad and Others, wherein the Apex Court has held that during investigation the Magistrate has no power to direct an accused to give his handwriting. Without having any dispute with these decisions, we have probed the issue and we feel that what we have discussed was probably never brought to the notice of the Apex Court while dealing with the situation in those decisions. In one of the judgment the Apex Court has gone to the extent of directing the Government to amend the provisions of Section 73 of the Evidence Act. It is indicative of its anxiety. It has encouraged us to deal this issue in the above manner.

36. As discussed by us, in our opinion, the handwriting opinion, so obtained, during investigation, can be read into evidence despite the bar created by Section 73 of the Evidence Act. It has been strenuously urged by Mr. Gopal Chaturvedi, learned Counsel for complainant that the intrinsic material provided by document admitting his guilt can still be read in evidence as if there is no order passed by the Magistrate for the appellant to give his handwriting. The application contains only the order of production of the applicant and he has just signed the writings with a note "taken in my presence". There is no direction of the Magistrate that the accused should give his specimen writing. The appellant was never commanded by the court to do so. The appellant had every opportunity to decline to give his writing. No objection was ever raised by the appellant in this connection. As a matter of fact he had acquiesced to and rewrote the contents of his alleged written confession, which was ultimately sent by the investigating agency to the Government Handwriting Expert for comparison with his specimen writing, i.e. the confessional statement of the appellant recovered from the room. He sought adjournment once on the ground of his inability on that day to give his writing. His application for adjournment was rejected but at no point of time the appellant had objected or opposed or declined to give his specimen writing nor the court has ever commanded him to do so. In the result there is no bar to the admissibility of this writing in evidence. It shall be a different question what value can be attached to this confession? The contention is that this written confession has an intrinsic value and the content can legitimately be read by the court. The court itself is competent to compare the disputed handwriting with the admitted writings of the appellant and derive its own conclusions whether the writing is of the same person, i.e. the appellant, and if the court can legitimately come to such a conclusion the admissibility of the document cannot be doubted or challenged. No accused can be compelled to be a witness against himself under the law except as provided by law itself. In that respect he is thoroughly protected, but as earlier stated, the appellant was never compelled by the court. The court had only summoned him but refrained itself from passing any order or direction to the appellant to give his specimen writing or write down the confession again. This we have found on an examination of the record. In the circumstances, we are of the opinion that this confession can be read in evidence and it is not covered by any legal bar. Protection of Section 73 of the Evidence Act, so far as the present set of fact and circumstances vis-a-vis this written confessional statement are concerned, is not available at all. We, therefore, hold the opinion of the handwriting expert admissible in evidence. Even if for the sake of argument we accept this argument, yet we can read its content intrinsically.

37. In order to appreciate this confessional evidence, we have to discern the actual state of mind of the appellant at the time when he wrote it. As a matter of fact no witness has seen him writing this confession on the posters as well as on his chequebook. It was allegedly recovered in his absentia after he was sent to the hospital. It is a proven fact that the appellant had also consumed poison but the prosecution had not bothered to prove that the poison taken by the appellant was the same which was found in the body of the deceased. They had material in their possession but why it was not sent to the chemical analyst is beyond our comprehension. Even it has not bothered to bring on record the bed head ticket of his which was available to it. Another chain in the prosecution evidence also comes up for consideration at this very stage is that the prosecution had not tried to determine the quantum of the poison that was consumed by the deceased. The Medical Officer has admitted that 2-3 grains is sufficient to take the life of an individual. Apart from these not a single witness has stated about the contents of the confessional writings. The prosecution has also made an attempt to introduce the oral dying declaration of the appellant apart from this confessional writing but it is very difficult to place reliance on his oral admission of guilt. No fard recovery was prepared regarding these posters and chequebook containing this statement of guilt. This confessional statement was never entered into the case diary. For these failures the defence has made a serious challenge to its genuineness.

38. Coming to the submission of the learned Counsel for the appellant that the prosecution has taken recourse to introduce false evidence against the appellant in this case. In this connection learned Counsel for the appellant has drawn our attention to two factors, one is the introduction of a sweetmeat box, which was found not to have contained any poison in it. The sweetmeat box was introduced with an intention to show that the poison was administered by the appellant to the deceased, Km. Mamta, through the sweets that he brought from Ghaziabad. So far as recovery of sweetmeat box is concerned, it is rendered highly doubtful for the simple reason that it was not recovered on the very first day, i.e. on 3-10-1987. In para 42 of his statement the I.O. has clearly admitted that the box containing sweets, capsule and cassette were noticed by him in his first visit i.e. on 3-10-1987 itself but they were not taken into custody since there were so many articles for recovery. The sweets and its box, capsule and tape-record are connected with this case was suspected only on 5-10-1987. He has further admitted that the room was sealed on 3-10-1987. The lock was sealed by the Warden and the key was also left with him. The two locks that were placed on the room, one belonged to I.O. and the other to the Warden. The key of his lock was with him and was not deposited in the Police Station. He had further stated that the two locks were placed on the room because there were lot of material inside the room and there was a lack of faith between them, but this fact that two locks were put upon the room had nowhere been mentioned by him either in the case diary or general diary. The locks also were not taken into custody. Recovery of these articles were effected only after the arrival of the father of deceased Mamta on 5-10-1987. He was suggested that no edible articles were present in the room on the date of occurrence. Thus, for the above said reasons we cannot place any implicit reliance on the recovery of these articles including the sweets and the box containing it. No statement of the shopkeeper from where this sweetmeat was purchased was recorded nor he was examined to prove that this sweet was purchased by the appellant. It clearly appears to have been planned by legal brain to give a boost to the prosecution story of administration of poison by direct means by this appellant. But prosecution has done it with such naivety that it loses all its evidentiary value.

39. The other piece of evidence which has been very critically challenged by the defence counsel is the purchase of Arsenic by the appellant from Ghaziabad from the shop of Sheo Shankar Gupta. This piece of evidence is so weak in character and quality that the prosecution cannot make any use of it as neither Sheo Shanker Gupta (P.W. 16) has identified the appellant as the purchaser nor the receipt produced in evidence proved the factum that it was purchased by this appellant. Mere presence of that receipt with the appellant cannot be in any manner used against him. It can be planted at any stage. The statement of I.O. that he had not subjected the appellant to identification by the teacher on whose behalf Arsenic was purchased and the shopkeeper who sold Arsenic because they in their statements claimed to know the appellant from before. Both these witnesses have declined to identify the appellant in court. Thus, these two pieces of evidence which the prosecution had attempted to prove in this case cannot be treated as material evidence against the appellant. Excluding these pieces of evidence from consideration what is left before us is the facts that the appellant was found present in a precarious condition inside the room of the deceased from where he was sent for medical care by the staff and the police. His confession in writing, his oral confession proved by the four witnesses and partially proved by P.W. 10 Dr. O.P. Misra. Apart from these, we have evidence of P.Ws. 1, 2, 4, 6, 7, 9 and 10, who had seen the appellant inside the room lying in a precarious condition. There is evidence of I.O. that the Medical Officer attending upon the appellant told him that it is a case of poisoning and, therefore, he should visit on some other date to record the statement of the appellant. It is easily decipherable from this statement of the doctor as reported by I.O. that his condition was critical. These P.Ws. 1, 2 and 4 are the witnesses of circumstances that a shriek was heard sometime around 3.00 p.m. coming from the room of deceased Mamta. Thereafter P.Ws. 1 and 2 had gone to the room of P.W. 4 and along with her they had come down in the room of Mamta which was, according to them, bolted from inside and when none responded from the room, they had opened the latch of the room by putting in their hand through the ventilator and from there one of them had also seen the entire situation of the room including the fact that some one was lying still on the bed fully covered by a blanket. Thereafter they had noticed the deceased on the floor partly under the bed and partly outside it. Vomit was also noticed lying near him and he was found muttering something. What was he muttering was not disclosed by them. These three witnesses have not stated anything about the presence of confessional writing or sweet and sweetmeat box etc. None of them have stated about the presence of any poster or chequebook in the table. We have then the evidence of P.W. 10 Dr. O.P. Misra. On arrival he pronounced Km. Mamta dead and asked the hostel staff to take the appellant to hospital immediately as his condition was serious. He has not corroborated details of the oral confession of the appellant. (sic)

40. Now, we have to assess how far the guilt of the appellant is established from these pieces of evidence. The entire evidence discussed above relates to circumstances. As earlier stated there is no eye-witness account of administration of poison by the appellant to the victim. Mystery is to be unfolded by the court from the circumstances available on record. The entire drama of consumption of poison by both the appellant and the deceased was enacted in a room bolted from within there no one has access except these two. So how the incident had occurred and in what manner the poison was administered or consumed is a fact specially within the knowledge of the appellant and the deceased. The appellant has chosen not to state the truth. His defence is that he himself was given poison by the victim. According to him, he was summoned by Mamta on 3-10-1987 and he met her and after exchange of customary pleasantries they were engaged in formal conversation. She enquired about his job and duty and he made enquiries about her college and hostel life, etc. After sometime Mamta brought lunch for him. When he asked her to join him, she replied that she has already taken her lunch. On pressing for taking lunch with him, she said ''she has no appetite''. Then he had gone on the ground floor to wash his hands. He came back and took his lunch. Mamta thereafter told him that he must leave because by the time he will reach Delhi, darkness will fall. However the appellant was intending to stay for some more time, therefore, he continued to stay despite her repeated requests. After a little while he started feeling restless and tendency of vomiting also developed. There was pain in his stomach. He felt giddiness and fell down from the chair on which he was sitting till then. After vomiting felt some relief. Soon thereafter he fell unconscious and when he regained his consciousness, he found himself in the jail hospital. He did not remember what transpired in between. Later on he came to know that Mamta had developed a fancy for Hari and that is why she wanted to get rid of him. In order to keep her false image before Hari, her friends and parents she chose to malign him. She invited him to Kanpur and administered poison in his lunch in the hope that he will die on his way back to Delhi. Seeing his poor condition she became nervous and desperation drove her to commit suicide. He claimed that he is innocent and had fallen a victim of circumstances. He further stated that the letters that Mamta had written to Susmita and her father were all written in Peshbandi to strengthen her position vis-a-vis the appellant. She was inclined now towards someone else, therefore, she was cooking up false pretext and story against him. He was trying to prove herself clean in the eyes of others. So, the appellant, thus, how pretended to be not knowing anything. In other words, he had denied any administration of poison to the deceased. On the other hand, the blame was put upon the deceased herself that in order to eliminate him she had administered poison to him and after seeing his precarious condition, out of panic and in desperation, she had committed suicide by consuming poison. Thus, so far as letters produced by prosecution are concerned, he had admitted them though with a myriad explanation.

41. Now we have two different versions before us, one which the prosecution has tried to prove before us and the other put forward in his statement u/s 315, Cr.P.C. by the appellant. According to the prosecution story the appellant was instrumental in administering poison to the victim and then consuming it himself because Mamta had spurned him and had showed her inclination towards another person, as disclosed in his statement by the appellant, Hari. The appellant was so infatuated towards Mamta that he could not bear this and decided to end her life for cheating him and thereafter end his own life. This is also available to us from his confessional writing as brought on record by the prosecution. So far as the story put forth by the appellant is concerned he is the solitary witness of the same. He has not made any effort to prove this defence of his. None of the witnesses examined by the prosecution were subjected to cross-examination on this line by the appellant. So far as the prosecution evidence is concerned, the details of it we have discussed in early part of our judgment. In nutshell, it shall be enough to point out that if we go through the oral dying declaration, what transpires that P.W. 1 has stated that the appellant was saying that he was desiring to marry Mamta but she was not ready for it. He had administered her poison and consumed it himself. Since Mamta has died, therefore, no love is lost in him for his life and he also want to die. She has further stated that she had also heard him saying that he had written everything on the paper which can be read by every body. She had admitted that she did not disclose to I.O. that Mamta had told her that Sanjay brought sweets. She had further admitted that many of the facts on which she had been cross-examined were not disclosed by her either to I.O. or to the Magistrate in her statement u/s 164, Cr.P.C. She had admitted that she had not made any statement to the Magistrate regarding sweets. She had not disclose to I..O. about the shrieks also. Before the Magistrate, in her statement u/s 164, Cr.P.C. she stated that at 3.05 p.m. she had again heard a long shriek. She further admitted that from the time of arrival of Sanjay till she left the hostel at 1.30 p.m. she had not heard sound of any quarrel or loud talks between them. Even she had not heard any such thing on her return till the shrieks were heard by her. According to her Mamta had called her lunch in the room through some other girl. She had never visited the room of Mamta either on that day or thereafter. A very peculiar feature is available to us from the evidence of the prosecution itself that the appellant was lying partly under the bed and partly outside the bed. This is a peculiar position which cannot be possible if the appellant had himself consumed poison. He cannot go under the bed of the deceased. This situation can only be possible if he had fallen down from the chair, as he has alleged. This girl, P.W. 1, had never visited the room of Mamta, therefore, she cannot vouchsafe about the recoveries claimed to have been effected from that room by the Investigating Agency. One thing more is beyond imagination or understanding that according to P.Ws., i.e. P.Ws. 1, 2 and 4, when the room for the first time was opened, they had noticed something still on the bed covered by a blanket. What was it they could not locate. Mamta was not seen by any one of them in the room. They had not found either the bed or furniture in any disturbed state. No marks of any injury on the open parts of the body or face noticed by any one. No utensils or plates were found scattered in the room. In order to over come these difficulties, she volunteered and stated that she had not entered the room and, therefore, she had not noticed these things.

42. Coming to the statement of P.W. 2 she had also stated that she had noticed the appellant under the bed of the deceased Mamta with his eyes wide open and he was looking at them. She has also noticed a still object covered by a blanket on the bed. She too had not stated about the presence of Mamta. She had made a phone call to the Warden, Dr. D.P. Rao, She added that she had also heard a male voice that she is dead Yaar when she called Mamta. This statement is not corroborated by P.W. 1. She denied to have entered the room at any point of time either before arrival of the Warden or after his arrival. When she peeped inside the room at the initial stage, she did not find Mamta there. She did not notice anything extraordinary in the room except the appellant lying partially under the bed and the vomit. She has not noticed any new thing in the room which normally were not there in the room. The room was not at all disturbed. Everything, the table, chair and the bed, were in normal condition. Even the books were at their place. When she had further stated that she did not know whether Mamta had taken her lunch. When for the first time she opened the room and peeped inside she did not notice any eatable article, utensil or plates either on the bed or on the ground. She had only noticed normal articles like book, etc. on the table. She did not notice any abnormality in the room. She had not gone to the bed to see what is that still object on the bed. None of her companions tried to see it.

43. P.W. 4 Susmita Bhatia stated that Mamta had told her in 1986 at Varanasi that the relations between her and the appellant had become very strained and she does not want to marry Sanjay at all. Sanjay is now employed at Ghaziabad. He used to visit Varanasi to meet Mamta and they used to quarrel also. She often used to tell her that Sanjay is keeping with him some poisonous tablets and is threatening to consume them and commit suicide if she will not marry him. She had said that she used to tell Mamta that if Sanjay commit, suicide a great infamy will visit her. Mamta told her that she did not bother for it. She will not marry him. She admitted receiving a letter from Mamta in 1987. The letter contain, according to her, that Sanjay had written her that he will visit BHU and marry her and if she will not marry him he will commit suicide. In the marriage of her brother at Lucknow Mamta also came there. From there she had gone to Moradabad to her parents'' place. In May, 1987 she had received another letter from Mamta. She had proved her handwriting also. This letter is marked Ex.Ka-7. According to her this letter continued to remain with her and when she heard about the demise of Mamta she gave it to her father who took it to Delhi and gave it to the father of Mamta on the day of her Santipath. According to her, Mamta for the last time visited her on 1-10-1987 at about 7.00 p.m. and she told her that Sanjay is at Kanpur and was threatening her that if she will not marry him he will kill her. On 2-10-1987 Sanjay came there and met Mamta in her drawing room. Mamta informed her that Sanjay was asking her to accompany him to Kanpur, but she was afraid of him. Thereafter, Sanjay left her place after talking to her father. She has denied any knowledge about Mamata and Sanjay having any sexual relation. She had admitted that there was no acquaintance between her family and Mamta''s family. The parents had never met on any day before her death. She had very emphatically stated that in July, 1986 Mamta told her that relations between Sanjay and her are very strained and she cannot marry him. Her statement was recorded by I.O. after 10-15 days of the demise of Mamta. In her statement to I.O. she admitted that Sanjay had written her a letter in the month of January or February, 1987. There was nothing special in that letter and, therefore, she had not kept it. According to her, through that letter the appellant Sanjay had enquired from her about Mamta''s inclination towards any other boy. He had further written that ''persuade Mamta to marry him''. Since she was already betrothed, therefore, she did not deem it proper to respond to that letter. She had responded to the letter of the appellant through her fiance Piyush Bhatia. He had informed him that Mamta will not marry him. He may marry some other girl. She admitted that she had not told I.O. about the sitting of Mamta and Sanjay in her drawing room on 2-10-1987 or her father growing suspicious and, therefore, listened their conversation. She further admitted that no sweetmeat box was given by Sanjay to Mamta at her house. Neither any mention of any such fact, was made by Mamta to her. She had further admitted that in July, 1985 or 1986 when Mamta met with a car accident appellant Sanjay had come to see her and had placed a ring in her finger. She further stated that Mamta had also told her about it. Mamta worn that ring for sometime and thereafter what happened to it is not within her knowledge. Therefore from her statement also and from the statements of P.Ws. 1 and 2 the story about sweetmeat box is completely dispelled. With it capsule and tape-record cassette also will not stand our scrutiny. Her testimony regarding visit by the appellant to her house on 2-10-1987 is not proved to our satisfaction as it is not stated by her in her 161 Cr.P.C. statement. Her statement certainly proves that the relations between deceased and appellant virtually broke down. Initially this appellant was threatening to commit suicide if Mamta will not marry him. The story that he will kill her, introduced in her statement for the first time in trial, does not inspire our confidence.

44. According to other witnesses, P.W. 6 R.N. Singh and P.W. 9 Dr. D.P. Rao, they both found Mamta lying on the ground on their entry in the room. They also noticed appellant Sanjay on the ground. According to them Sanjay Goel was conscious. He was brought out and placed on the chair. Thereafter the appellant had disclosed his name and address. Both these witnesses had proved the oral dying declaration also that he had administered Mamta some poisonous substance and had also consumed the same. In a few minutes thereafter Sanjay fell from the chair. According to them this information was communicated by the appellant while he was on the ground. His condition was not poor. Doctor was summoned. On arrival P.W. 10 Dr. Misra pronounced Mamta dead and declared the condition of the appellant critical and instructed the hostel authorities to send him to hospital immediately. Sanjay thereafter was promptly sent to the hospital. Although they have proved the presence of sweetmeat box and some capsules, but we have already discarded it, there is no need no discuss this piece of their evidence. These recoveries were effected on the third day in the second inspection of the room. He had admitted that entry to male persons in the hostel was restricted to a certain period during the day. He was obsessed by the fact that what will be the effect of this incident upon his students and the institution. It was his duty to apply the restrictions strictly in the hostel. He had admitted that he did not inform the I.O. that appellant told him that he had administered some poisonous thing to Mamta instead he told the I.O. that Sanjay told him that he had administered some poisonous substance to Mamta. He has further admitted that he do not remember whether P.W. 6 the security officer, noted this statement. Thus from this statement also we cannot say with any strength that the oral dying declaration is reliable and can be acted upon. He had admitted very categorically in the cross-examination that in his opinion condition of Sanjay Goel was precarious when he saw him. P.W. 10 Dr. O.P. Misra had told him that ''send him immediately to the hospital. There is likelihood of his death. This fact is further fortified from the statement of I.O. A report for recording his dying declaration was given by I.O. and the medical officer reported that this patient is not fit for dying declaration. It clearly means that when he was sent to hospital he must be in a precarious condition and could not make any statement as alleged by prosecution. Thus, we cannot place any implicit reliance on the oral dying declaration. Once this oral dying declaration is discarded, we are left with only the written confession of the appellant.

45. So far as P.Ws. 1 and 2 are concerned, their statements does not throw much light on the episode, except about the presence of the two inside the room. On the contrary their evidence completely negates any quarrel or presence of any glass, etc. or any untoward situation in the room. They noticed that everything in the room was in a tidy condition and on proper places. No utensils, plates, mug or glasses were noticed by them. Apart from this their evidence on oral dying declaration cannot be relied upon. As a matter of fact they have clearly admitted that after arrival of the warden they had not visited the scene of occurrence instead remained confined in their rooms. From their rooms it is not possible for them to hear any conversation. Moreover, from the statements of P.Ws. 9 and 10 it is apparent that appellant Sanjay Goel could not be in a position to make any oral dying declaration.

46. So far as P.W. 10 is concerned, when he reached the spot he found a boy in serious distress lying on the floor. According to him he was crying. He was conscious. He enquired from him his name and address. He could give out only his name. He stated that he had told his address and father''s name also, but he could not remember it. After examining him he suspected that he had also consumed poison. His admission in the hospital was imminent for his safety. He had sent him to Hallet Hospital, Kanpur. According to him, Sanjay Goel was crying ''do not save me, please do not save me.'' He was also insisting upon to ask why he had done it. He was also saying that please ask it quickly otherwise I will not be there to tell. He was not saying any other thing. He was declared hostile. He had identified the appellant in court as the same person who was lying on the floor of the verandah of the hostel. He had denied his statement to I.O. that the appellant was crying that he had administered poison to Mamta and also consumed it. He could not offer any explanation why such a statement is there in his 161, Cr.P.C. statement. He stated that he had not noted down the utterances made by the appellant anywhere. He further admitted that he did not prepare any note of his utterance. He had prepared only the reference letter for admission of Sanjay in Hallet Hospital. He had very categorically stated that after examining Sanjay he suggested to send him immediately to the hospital because he wanted to save his life. This clearly indicates that the condition of the appellant was precarious undoubtedly. He has further stated that Arsenic poison causes serious stomach-ache. After a little while the sensory nerves and the brain were also affected. He had further stated that he could not say whether Sanjay consumed poison or he was administered poison. According to him, Sanjay told him his name himself. We are not prepared to accept that Sanjay was in a position to speak out anything, even his name. The withholding of his hospital record by the prosecution especially his bed head ticket from the court impels us to infer that it must be against the prosecution story of this accused being conscious when he was taken for the hospital. We do not find any other reason for its non-production.

47. Thus, from a close scrutiny of the two witnesses (P.Ws. 9 and 10) we are of the firm opinion that the appellant was not in a position to make a plausible and sensible statement which could be acted upon by the court, as alleged by the prosecution. We have no reason to doubt the statement of P.W. 10 that the appellant has only told his name, father''s name and his address and was insisting upon them to hear why he did it. Thus, the oral dying declaration cannot be acted upon in the circumstances as discussed above by us.

48. So far as the presence of the appellant, is concerned, we have only evidence of P.W. 1 Kajoli Banerji, but giving our thorough consideration to her statement in its totality, we are of the opinion that this piece of her statement is of no great help to the prosecution. According to P.W. 4, Sanjay was already in Kanpur. Whether he came on his own or was invited by Mamta is very difficult to discern. Appellants presence is neither challenged nor can be doubted. He had himself also admitted his presence inside her room in his 313 Cr.P.C. statement.

49. Examining the evidence of P.W. 11 Dev Swaroop, Head Moharir of P.S. Kalyanpur, it becomes clear that the F.I.R. of this case was registered at G.D. No. 34 at 5.05 p.m. in the evening. A copy of this is proved as Ext. Ka-23. The cross-examination shows that in between this period only a ring was deposited at the police station by S.I. Trivedi. He had denied that any Sub-Inspector by name Sailesh Gaur was posted at the police station concerned, but it has come in his evidence that such a person was posted at police outpost Rawatpur. This further shows that these papers and other articles claimed to have been recovered during the day by I.O. must to have been deposited at the police station before this deposit of a ring. Where from this ring was recovered is not available to us from the record. This fact is further fortified by the evidence of P.W. 12 R.B. Singh. He was driver in the security wing of the I.I.T. He was given the written report by P.W. 6 R.N. Singh to carry the same to P.S. Kalyanpur. This report was delivered to him in front of the Girls'' Hostel at about 4.30 in the evening. He submitted the report at the police station and claimed that he received a copy of the same after its registration and it was brought back and handed over to P.W. 6 R.N. Singh. He identified the report and said it was this report which he had brought from the police station (Ext. Ka-17). When he was cross-examined about the manner of his going to the police station, he admitted that he had gone on a jeep. He is a driver, but he made an evasive reply that he did not remember whether he has entered his going to the police station concerned in the Logbook that he maintained. He further admitted that he had gone there alone. He said that he carried this report along with a carbon copy of the same and had obtained signatures of the Head Moharir on the carbon copy. He did not possess that carbon copy nor it is produced by him on returned to anyone. So far this carbon copy business is concerned, the Head Moharir (P.W. 11) does not speak about it. Therefore, this appears clearly to be an attempt on the part of the prosecution to introduce this fact in order to remove any possible doubts raised by non-examination of its scribe and translator in the Court. The F.I.R. clearly appears to us to be anti timed. The witnesses (P.Ws. 1 and 2) have admitted that police arrived at the spot around 7.00 p.m. and not before, as alleged.

50. The next witness is P.W. 13 S.C. Dua. We have already discussed about him. He had denied that he sold Arsenic to the appellant. He had also added further that he do not remember the name, identification or address of the boy to whom he had. sold Arsenic. He had further stated that the , cash-memo book was already taken away by the police and is not with him today. He could not tell how many sales of Arsenic was made by him on that day. He could not remember even the sale of any other article on 1-10-1987. The Cash Memo brought on record pertains to 1-10-1987. His evidence is consequently absolutely of no use to the prosecution. Thus, from his failure to identify this applicant the prosecution has failed to establish completely their case of purchase of Arsenic by the appellant from the shop of P.W. 13 in Delhi. No test identification parade for his identification was ever conducted. Thus, it cannot be said with any certainty that Arsenic was brought by the appellant from Ghaziabad. With this the case of the prosecution that there was any preplan to eliminate Km. Mamta on the part of the appellant also disappears or is eliminated. When we examine this part of the prosecution case in the light of the testimony of P.W. 16 Shiv Shanker, a Chemistry Teacher in Presentation Convent School, Ghaziabad, we find that this witness has refused to identify Sanjay, although he had taken in his evidence name of a person Sanjay, who was introduced to him by Dinesh, an acquaintance of his. When the appellant was shown to him he repeated the same reply ''I could not identify Sanjay''. Even when the appellant was present all alone in the box, meant for accused, in court, his reply was the same as earlier reproduced. He even could not recollect his talks with the person whom Dinesh brought. He went on to say ''even this is very difficult for me to tell the subject-matter of talks with Sanjay''. He only stated that something was talked about by them. Sanjay, who accompanied Dinesh to him was a complete stranger to him. Police has never shown him this appellant. He denied that he knows any friend of Dinesh who was an acquaintance of his. He knew parents and brother of Dinesh, but was unable to give out their names. He stated that probably father of Dinesh was an employee in the Education Department. He had never visited Dinesh. He stated that he had never purchased Arsenic on his own personally for his school. He stated that receipt is given when Arsenic is purchased. When Arsenic is ordered the dealer himself brings it to the school. He admitted that the articles inside the Laboratory were under his control. He further stated that after closure of the school he did not carry the keys to his house, but leaves them in the Laboratory. There is no record maintained in the school about the consumption of the chemicals. Whenever the students enter the Laboratory, Chemicals are taken out. He never gives these chemicals to the outsiders except the students. He admitted that in between 20th October and 30th October the police approached him for recording his statement, but he stated that he do not remember whether before giving his statement to the police he had consulted any one. He further stated that when a second time Sanjay and Dinesh came to visit him they did not talk to any other person they only met him and left the place. He further stated that on that occasion about 10/11 teachers were there in the Science wing and he was junior-most but one. The Inspector had shown him the receipt for the purchase of Arsenic while recording his statement. That receipt belong to his school. He made an evasive reply to the question whether the police told him the name of the appellant or not. He claimed that he had shown to the Police Officer his record to establish that no Arsenic on this receipt was purchased and brought in the school. He said ''I did it because I was the incharge of the Chemistry Department''. But he could not explain omission of all these facts in his statement to I.O. He denied knowing Mamta Anand. He further denied that she was friend of his sister. He denied knowing her father also. He further stated that the payment for the purchase of chemicals was made by the college through cheques. He claimed that he did not know whether I.O. had seen the cheque books or account book of the school in this connection. He denied knowing any Vishambhar Nath. According to the defence suggestions this Vishambhar Nath is an Assistant Railway Engineer. The father of the girl Km. Mamta is also a Senior Officer in the Railways. This fact this witness has denied. Thus he was working under the influence of Mamta Anand''s father (PW 14) is not acceptable to us. From the entire statement discussed above of this witness what is discernible clearly is that the had named one Sanjay simpliciter but denied to identify him. Had Sanjay Goel, appellant, met him twice with Dinesh, it is unacceptable to us that he would fail to identify him in Court. So it is apparent that this witness is a got up witness and the Investigating Agency in order to establish its case of purchase of Arsenic by the appellant and thereafter carrying it to Kanpur introduced him as a person who only named one Sanjay. This naming by the witness and failing to identify him in Court goes a long way to influence our mind that he is not a reliable witness and his testimony to prove this circumstance cannot be relied upon under any circumstance.

51. A very important factor which occurred in the testimony of PW 17, the doctor, who conducted the post-mortem is worth mentioning at this juncture because it has some impact upon the factor of using force by any person in his administration of poison to the deceased. He has stated that Arsenic poison does not have any smell or taste. He has stated that it is generally used by mixing it in the edible food articles for killing people. He also stated that he cannot give an estimation as to how long after the administration of Arsenic death can occur. In most of the cases within two hours to 48 hours death occurs on account of administration of Arsenic. Arsenic is also used to preserve skins. He has referred to 1955 edition of Modi at page 496 and stated that Arsenic in India is used for protecting wood from white ants and animal skins. We are more concerned about his explanation. He had stated that he cannot say whether the death had occurred due to Arsenic poison administration came to his knowledge before conducting the post-mortem examination. Even after conducting the postmortem he was unable to know the cause of death. He had very clearly admitted that his statement in the examination in chief regarding the cause of death was based upon his supplementary report given after seeing the chemical examination report. He has further stated that it is not necessary that the lips may turn blue on account of use of this poison. The same, according to him, will be applicable to nails also. He could not remember any case, of Arsenic death being post-mortemed by him before the present post-mortem. He stated that he had conducted post-mortem examination of poisoned death bodies. He stated that he had no papers in his possession on the basis of which he could tell the Court about the arrival of the dead body of Mamta in the mortuary. He admitted that although the record book in the mortuary for the arrival of the dead bodies for post-mortem is maintained. He has further admitted that he did not make a mention of this fact in this postmortem reports regularly. He has further admitted that even the papers received along with dead body are not referred often in the post-mortem examination report. He admitted that he had not noted these factors any where. He has further stated that it takes about 3 grains in the minimum to cause a death by Arsenic. He has further stated that 3 grains or more Arsenic must have been consumed by Mamta according to symptoms he found in the post-mortem. He has further stated that congestion that he had noticed in different internal organs may be due to some other reason also. A very important aspect that he has stated in his evidence is that neither in the large instestine nor in the small intestine he found any visible influence of administration of Arsenic poison. He admitted that he has not noted down the duration of the abrasion on the person of Mamta, but he diluted the impact of the cross-examination by stating if they would have been old he would have noted the duration also. He further stated that by the time the report of the postmortem examination was prepared the duration must have been about 12 hours. If these abrasions were 24 hours old then there would have been a change in colour and decompose formation must have taken place. He has admitted that these abrasions may be accidental also but could not be self suffered. He has further stated that he could not say whether all these abrasions were caused at one or the same time or there is some interval between them. He has further stated that restlessness and great agony may occur. Severe body-ache and delirium may also occur. Loss of memory may not occur but loss of speech and coma is probable and loss of speech may become complete as a consequence. In the state of severe agony and restlessness these abrasions may occur. Slides of vaginal smear were taken by him to ascertain whether cohabitation had taken place with Mamta or not. No such report is on record. According to the doctor, Arsenic seriously affects the arteries. They as a result of it swell or enlarge and the patient goes into a state of shock. There will be no distinction in the effect of Arsenic poison if it is consumed, administered or deceitfully administered or forcibly administered. Such a distinction will not be noticeable during post-mortem examination. Administration perforce may cause injuries on the person because there may occur a scuffle between the person administering it and the person resisting such administration. He claimed that he had read the inquest memo before conducting the post-mortem . He further stated that he had noted down only these injuries which he himself had found present on the person. The inquest memo had referred to blood coming out of the mouth, but he himself had not noticed any such fact in the course of post-mortem. He very clearly admitted that any blood coming out from mouth and nose and white powder like crystals on the neck, mouth and nose were not noticed by him, and therefore, he had not noted the same in his post-mortem report, although he saw them in the inquest memo. Thus at the outset the inquest memo is suggestive of the fact that the Investigating Agency had proceeded in the matter with a clear cut case of forcible administration of Arsenic poison by the appellant which is by and large eliminated or ruled out by the evidence of PW 17 Dr. R. Kumar. He further admitted that rice particles found in the stomach were identifiable, that means that it had not yet assumed any digested position. Digestion commences immediately on taking food. He stated that partial digested food was found in the stomach. This rice must have been taken by the victim in between 6-12 hours. He stated that he cannot say whether Arsenic was consumed first and rice later on or not. The yellowish liquid found in the stomach was Dal or poison itself he was not able to discern. After administration or consumption of Arsenic in the least it takes 45 minutes to kill a person. He could not find any capsul or its residue in the stomach. He did not find any sweetmeat in the stomach. These questions are of importance because according to him food found in the stomach was only partially digested. The prosecution has come up with the recovery of a box of sweetmeat brought from Ghaziabad and also few capsules spent as well as filled up. The admission of the doctor that he had taken the slides for determination of any sex before death and the failure of the prosecution to produce the result of these slides in Court is of prime importance because it was written by the appellant in the written confession that he had enjoyed sex also earlier, but on the date of occurrence any sex was enjoyed between them is not established beyond any doubt. He had stated that he had signed the copy of the FIR and therefore, it must have reached him. He, however, was suggested that he had not received the FIR. He had only received eight papers which did not include FIR . He admitted his signatures on the papers that were numbered. PW 21 is the person who had conducted viscera examination. He had found Arsenic and Oxyzepam in preserved parts which were sent for viscera examination. He pleaded his inability to give any details about Oxyzepam except that it is a tranquilliser but stated that an expert only can tell about its effect upon human body. He had clearly stated that he had received two boxes on 22-12-1987. These parcels were opened by him on 20-1-1988. After opening he found a sealed tin box and two sealed packets, one of them contained vomit. When the second packet was opened, he found Barfi (sweetmeat made of Khoa). From this very packet and from another sealed container 9 and 4 capsules were also taken out. By opening the last packet a plastic Jug with its head containing a little quantity of white powder, empty bottle with its head, a small plastic box which contained three small plastic boxes. These boxes had dirty spots inside. One small plastic box having a rounded head containing white powder, one handkerchief having bloodstains and a dot pen were recovered. They were marked Exts. 1 to 10. On examination in the vomit, Barfi, capsule, inside of the plastic Jug, bloodstained handkerchief, presence of Arsenic was noticed, but no such poison was noted in the empty bottle and on the dot pen. Oxyzepam was also found in all the articles that contained poison. The report submitted by him is Ext. Ka-49 on record. Thus from his statement only one thing is found positive that in the vomit, Barfi and powder, in the plastic jug, bloodstained handkerchief having presence of Arsenic and Oxyzepam, but absence of any Arsenic powder on the dot pen negates the use of its by the appellant. It also negates appellant having touched Arsenic and Diazepam powder. No Arsenic was found even in the empty bottle. According to him Oxyzepam falls in the category of poison, but admitted that Oxyzepam is beyond his field of research and that is why he had earlier made a statement that about Oxyzepam and its effect Medico Legal Expert alone can speak. Generally these tests for the presence of poisons are made qualitatively, but on special request quantitative experiments were also made. In the present case the prosecution has not asked for any quantitative result to find out exact quantity of Arsenic poison administered to the dead. No such test, admittedly, was conducted. What will be the effect of a large quantity or small quality only Medico Legal Expert can tell. He admitted that in a normal person presence of Arsenic is found in traces. He has admitted that administered Arsenic and Arsenic present in its natural form in the body organs are same in quantity. He admitted that certain drug preparation contained Arsenic. He failed to say whether milk contained Arsenic or not. He stated that the viscera was sent in a standard bottle which are used by the Laboratories. He was suggested that glass in its original form is of blue and green colour, but by processing with Arsenic it becomes white or colourless. In the solution in which viscera was kept and the sodium chloride solution did not report presence of any Arsenic or Oxyzepam. Stomach was found in an open condition and, therefore, its contents were not recorded. That means it was not subject to any test. Thus, his evidence clearly establises that the appellant as well as the deceased both have consumed Arsenic poison mixed with Oxyzepam.

52. The only question that is now to be determined or worked out by us is whether it is a case of administration of poison or a case of consumption of poison under a pact to commit suicide by the two or it is a case of murder under a preconceived design. In this connection most of the evidences discussed above by us indicates that it apparently is not a case of preconceived murder. Following factors deserve consideration in this regard.

53. Firstly, presence of the appellant for nearly 3 hours with the deceased in her room in the hostel, which is a girls'' hostel where entry at this hour when he entered is prohibited. Secondly, absence of any evidence as to what transpired between them during these 3 hours which may indicate that they had planned something in secret, without permitting any notice of their plan or conviction to any outsider the inmates of the hostel. PW 1 Kajoli Banerji and PW 2 Dipti Bhattacharya both are unable to furnish any clue to us on this point. Both of them have clearly stated that they had no knowledge of what transpired inside the room, rather the evidence of PW 1, who had the knowledge of the presence of this appellant in the room of Mamta from the very begining indicates complete absence of any evidence worth the name of any violence being practised, inside the room in between this period. This a crucial feature that negatives any plan of murder. Without use of any force poison could not have been administered to her by this appellant. The evidence of autopsy surgeon disapproves any application of force. Complete absence of any injury upon his person also negatives its probability.

54. An attempt was definitely made by the prosecution to introduce a strong cry or shrick being heard a little before the fact of death of Mamta was discovered and the appellant was found in a precarious condition lying inside the room, but we have not accepted truthfulness of this part of the prosecution case, as discussed in the earlier part of our judgment.

55. Consumption of Arsenic with Oxyzepam is in itself indicative of the fact that both of them wanted to die in ? because by the use of Oxyzepam the nerves function will be lowered tremendously. It will cause sleepiness. It is a tranquilliser. This is admitted by PW 21. The limbs will become numb and Arsenic poison will work in the body without much of a resistance from the person, who consumed it. It will expedite the death without any serious feeling of pain. Severe pain may have impelled the victim to rush for life. It too negative the possibility of a preconceived plan. In the vomit sent to analyst presence of Diazempam was found. It proves that they both had taken one and the same preparation. It further eliminates the presence of pre-plan by the appellant.

56. So far as the presence of abrasions on her knee are concerned, application of any force is belied by the statement of the outopsy doctor, PW 17. He admitted that these can be caused in a state of restlessness and agony which shall be caused by the effect of presence of Arsenic in the body in large quantity.

57. The appellant having been found underneath the bed with vomiting in front or near him and his inability to use his limbs to lift himself is clearly indicative that it is case of wilful consumption and not a case of forced administration of poison. So far as various letters that have been proved by the prosecution in this case are concerned, they only indicate mental condition of the deceased girl. It is also noticeable from the contents of these letters that she was avoiding the appellant because of his towering influence upon her. She was under panic that if she will come in his contact she will not be able to say ''no'' to him face to face.

58. The attempt by the prosecution to introduce sweets to establish administration of poison through sweets to Mamta and its total failure to prove the same is yet another circumstance which points towards the fact that they both consumed the poison under some agreement. No sweet was used in the administration of poison because in the stomach contents no sweet was found. The post-mortem reports suggest it undisputedly. This negatives completely the administration perforce of Arsenic by the appellant to Mamta. It further goes a long way to prove that it was consumed readily by them. So far as using any deceitful means is concerned, it is also completely negated by the absence of sweets in the stomach as well as by attendant circumstances.

59. Even the writing in the form of writ ten confession by the appellant do not furnish any clue he had committed her murder. Any person, who had consumed poison under an agreement will not be mentally so fit soon after its consumption to write down these facts. There must not any occasion for him to prepare such a writing. Such a statement could be prepared only after the death has occurred. By that time will he himself be both mentally and physically fit to do so. Medical evidence available on record runs contrary to this situation. It may indicative simply that he may have prevailed upon her to commit suicide. They are Science Graduates. They must be fully conscious of the impact and the result of consumption of Arsenic mixed with Oxyzepam. They must be knowing that its effect will definitely be death. Under such mental conditions if he writes down a confessional statement that he had killed his sweetheart, it cannot be treated to be a confession to own the liability of murder or homicide. If falls short of that, it clearly leads to the only inference that the appellant was labouring under the impression that by persuading her to consume Arsenic mixed with Diazepam with him to end their lives he is responsible for her death and, therefore, number of times he had repeated in his so-called confessional writing that he is responsible for the death. He had decried at number of places her behaviour after their separation. He being senior had left Varanasi a year or so before Mamta left that place and joined IIT, Kanpur in 1997, although he kept alive his contact with her by visiting her at Varanasi and also at Kanpur. He learnt from some source, as is apparent from his statement made u/s 313, Cr.P.C. that she had started taking gradually greater interest in another boy known as Hari Haran. It is also proved from the statement of her father PW 20 Y.P. Anand.

60. Therefore, not much evidentiary value can be attached to his written statement as a confession of any guilt or murder even if its admissibility is accepted by us. It will be a travesty of justice if this confessional statement is treated as a confession of his crime. This we can do only by ignoring his mental and physical state at the relevant time. The strain and stress after consumption of Arsenic with Oxyzepam also does not make it so. Thus, we are of the firm opinion that the intrinsic value of this confessional statement is not beyond an expression of his anguish on account of her death for the simple reason that he must have laboured under the thought it was he who persuaded her to share his desire to commit suicide together. There is evidence on record to show clearly that he had such a commanding effect on her that she was unable to say ''no'' to him. We are not able to persuade ourselves to accept the contention of learned counsel Sri Gopal Chaturvedi that the contents of the confessional evidence lead to one and the only inference that he had committed murder of Mamta. There is absolutely nothing on the record which may suggest that he himself consumed arsenic poison after the demise of Mamta. Such an inference should have been permissible only if the prosecution could have been able to prove that he had attempted suicide after killing Mamta by administering perforce or by deceit Arsenic mixed with Oxyzepam through any sweetmeat or any other edible article. If he would have attempt to administer poison forcibly then in that case there ought to have been serious resistance injuries such as abrasions, contusions, on other parts of her body a part from her knees alone. Contusions on the knee could have been probable if any sexual intercourse would have been attempted by him against her wish, but even that negatived and the doctor had clearly admitted that these abrasions could have been caused in a state of acute pain, restlessness and agony which will result due to the consumption of Arsenic. Moreover, Mamta may have stood up and fallen on the ground in her effort to save her life in a moment of grave agony. Its probability cannot be denied.

61. In the circumstances we find no substance in the contention raised by Sri Gopal Chaturvedi, learned counsel for the complainant, that the hand written statement of the appellant furnished to the Court a clinching evidence that the appellant is guilty of causing her death.

62. We are of the firm opinion that this statement was transcribed by him in all probability after he escaped death and came to know about the death of Mamta. Absence of any recording of this confessional statement in the case diary by I.O. if it was actually recovered from room No. 212 A on 8-10-1997 strengthens our conclusion. Non production of his bed head ticket and non examination of that doctor who attended on him in the hospital in evidence further confirms our conclusion.

63. In the circumstances we are of the opinion that this is not a case of murder or homicide but is a case of an attempt to commit suicide by both. The attempt had culminated into death of Mamta and survival of the appellant. The survival of the appellant was due to stronger will and better physical state. Vomiting is yet another reason for his survival. Both were strongly impregnated by their desire to end their lives. As we have already come to the conclusion that it was the appellant who had successfully persuaded the victim Mamta to be a party to his desire to end their lives, therefore, the knowledge that the death as a result of this conjoint effort of both or anyone of them may occur cannot be excluded in the circumstances of the case. From the evidence it is apparent that she was naive and lacked enough will power to resist this appellant . She had a tendency to succumb to him. Love was not completely lost. She still held a soft corner for this appellant otherwise she must have declined stubbornly any meeting to him. Her not doing to a suggestion from PW 1 Kajoli to this effect amply proves that she had not completely decided against him. The evidence further shows that her parents were reluctant to this relationship, PW 20. Y.P. Anand''s statement does give such a hint to us. So once this appellant was there in her company she caved in to him and agreed to his suggestion to end her life. Thus, there is every possibility of this appellant having prevailed on her and they both accordingly consumed poison. In the end we find the appellant guilty of the offence of culpable homicide not amounting to murder under the second category because the knowledge that it will result in her death was very much present there. Since we have come to the conclusion that she succumbed to him as a result of an artful persuasion of the appellant for which he had sufficient time, calm and peace present in the surrounding, the deceased being a gullible partner to his personality, therefore, we hold the appellant guilty for the above offence.

64. As already discussed above that the prosecution has failed to work out the quantum of poison administered to her or consumed by her under the influence of the appellant and consumed by the appellant himself, the offence will fall only u/s 304, Part II of the Indian Panel Code. This view of ours is fortified from the two cases of this Court. Their references are as under:--

1 State Vs. Fateh Bahadur and Others, and

2 Happu Vs. Emperor, .

In the circumstances, the failure to find out and prove the quantum of arsenic poison, consumed or administered, has serious bearing in this case.

65. In the light of the above findings the question that will crop up before us for our consideration is regarding the legitimacy of the sentence to be awarded to him. We have to decide what will be the appropriate sentence that should visit the appellant in the light of the facts and circumstances discussed by us in the present case. It is well settled that the courts should not award a sentence, which may be called to suffer on one hand on the side of leniency nor it should be such on the other hand which may become oppressive. The inadequacy as well as excessive harshness of the sentence both are detrimental to the interest of the society, inasmuch as it should be guided by the intention of the court to afford an accused an opportunity to reform himself. It becomes necessary all the more in the cases of this nature. Bearing in mind the abovesaid principles and the fact that the learned additional Sessions Judge has failed in complying with the provisions of Section 235(2) of the Code of Criminal Procedure in the present case, we are invested with an obligation to apply ourselves decisively and effectively to inflict a sentence upon this appellant which may not either suffer from leniency or harshness. It should tend towards efficacious and legitimately genuine sentence.

66. Section 235(2), Cr.P.C. endeavours that "if the accused is convicted the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. "Thus, it should be an endeavour of the trial Court to afford every accused an opportunity of hearing on quantum of sentence before awarding any sentence. This is a mandatory. It was held so by the Apex Court in Malkiat Singh and Others Vs. State of Punjab, . It has also been held by the Apex Court in M/s. Burn Standard Company Ltd. and another Vs. Union of India and others, that it is also illegal to convict and impose sentence on any accused on the same day on which the judgment on conviction is pronounced, meaning thereby that a reasonable opportunity should and must be afforded to any accused before a sentence after his conviction is recorded by a trial Court. In the circumstances, we find it unjustifiable now to remand this case back for this purpose. 14 long years have already elapsed. Sufficient material has been brought before us in the form of affidavit and counter affidavit by the parties and we have also reheard the parties counsel.

67. In paragraph No. 4 of the affidavit, filed by father of the appellant R.L. Gupta, it has been brought on record that the appellant has obtained his. B. Tech. degree from the Benaras Hindu University in 1985. He had passed the same in 1st Division with honours. A copy of the certificate issued by the Kashi Hindu Vishwavidhyalaya, Varanasi is appended as Annexure T. A copy of the mark sheet is also attached which bears testimony to the above said fact. He was also selected, according to paragraph No. 6, in Indian Engineering Service, but could not secure a job because of pendency of the trial against him. Paragraph No. 7 show that after he was released on bail in the year 1994 he got married to one Smt. Nootan Agarwal, daughter of Krishna Chandra Garg. A son was born from this wedlock in the year 1998. He is, according to paragraph No. 8 of this affidavit, aged about 3 years presently. According to paragraph No. 9, the deponent of this affidavit, who is father of the appellant, has retired from Government service in the year 1990 as Chief Administrative Officer, Ministry of Planning, Government of India, New Delhi. The appellant is the only son of his parents who, according to paragraph No. 10, are very old now. The appellants has a sister, according to paragraph No. 11 of this affidavit, namely Km. Kiran Gupta, aged about 44 years. She is mentally retarded by birth, according to this affidavit. A copy of the certificate issued by the Superintendent, Safdarganj Hospital, New Delhi, is annexed as Annexure ''3'' in this connection. So by paragraph No. 12, it has been shown to this Court that the appellant has also a liability towards this sister. The parents being old are not in a position to properly look after her. The appellant is earning his bread by teaching some 250 boys and girls belonging to classes X and XII. This is the solitary case in which he has been involved and except this he has never been involved in any criminal case. According to paragraph No. 15, he had already remained in jail for about 3 years and 10 months, part of which was after the conviction also. It has been prayed that in view of the facts and circumstances of the case it is necessary in the interest of justice that the above said facts be taken into consideration while deciding the above said appeal in awarding him a sentence.

68. As we have already decided to convict him u/s 304 Part II the question of his incarceration during trial and after conviction, for the above said period has a bearing on our mind.

69. A counter affidavit was filed by Surender Pratap Singh on behalf of the informant, father of the deceased girl, Km. Mamta. According to paragraph No. 3 of this affidavit, contents of paragraphs Nos. 1 to 10 do not call for a reply. A reply is preferred against paragraph No. 11 of the affidavit. It has been alleged in this paragraph in the counter affidavit that the certificates filed showing them mental incapacity of the sister, aged about 44 years is of 1990 and, therefore, cannot be made use of after 11 years. `sponse to paragraph No. 12 of the affidavit filed by R.L. Gupta, paragraph No. 5 of the counter affidavit asserts that R.L. Gupta is not an old man, but is still very active. It has also been attempted to show that he is doing continuous and strenuous pairvi in the present case in this Court. Therefore, it is wrong to suggest that he has grown old. Regarding Km. Kiran Gupta it is alleged that it is wrong to suggest that she is fully dependent upon the appellant. On the contrary it has been alleged that this appellant is also dependent on his parents.

70. Now before us from the examination of these two affidavits what transpires apparently is that the appellant as an Engineering Graduate. He is now a married person having a son aged about 3 years and is earning his bread by running a coaching of students of classes X and XII. The strength is about 250 students (both girls and boys). He has also underwent about 3 years and 10 months incarceration, part of which during trial and part after conviction. So far as the fact of his sister being not a dependent on him is not of much consequence except that she is liability of the family. She has not been married is also apparent from those two affidavits. Her age is 44 years is not disputed. Apart from it R.L. Gupta has retired 10 years ago is also not disputed before us. Therefore, he is of advanced age is also a fact established on record. He is a pensioner no doubt. Therefore, he is not dependent upon his son, but the old age apparently has some meaning and it cannot be denied that he is approaching an advanced age of about 68-70 years as can be discerned from the facts and circumstances brought forth by these two affidavits. Thus, it cannot be denied that he is in the need of attention from his young son. It is also a fact that the appellant is the only son. These are all facts touching the compassion of the Court and having a serious bearing upon the aspect of sentence. Nonetheless the compassion has a role to play in awarding the sentence to an accused. So far as the appellant is concerned, two factors are in his favour. First he has already underwent 3 years and 10 months nearly. Moreover, he is a qualified person and the incident was not found to be a case of homicide but the probability tends from the facts and circumstances available in the case towards drawal of an inference that it occurred under the towering effect of the personality of the appellant. The deceased may have been a party to the consumption of poison. The element of consent in such a situation is inherently latent. The incident in question occurred on 30-10-1987. The record contains nothing to show that he had any antecedents adversely affecting the society. The prosecution or the informant have not brought anything on record which may provide us any evidence of his bad antecedents since 1987 till today. It is a long length of time for which the sword of Damocles continued to hang ever him. He is a young man. The offence was also a consequence of bewildered, everempthatic youthful compassion ready to burn its finger. He has sufficiently suffered mentally and morally. The shadow of Mamta will continue to chase him all his life. His writing paints a dear picture of he being an emotional idiot. Thus, having regard to his age, character, antecedents, his social background, academic background, family obligations, over and above all the fact that he hardly will have any academic future. It will be extremely difficult for him, in his situation, to win any decent job tomorrow. We find it just and appropriate to sentence him to the period already undergone and a fine of Rs. 2 lacs in addition to it.

71. In the result this appeal stands partly allowed. The appellant is acquitted of the charge u/s 302, IPC. Instead he . is convicted u/s 304, Part II, I.P.C. and the sentence awarded to him is the period already undergone, i.e. 3 years and 10 months and a fine of Rs. 2 lacs. Rs. 1.5 lacs shall be payable to the next of the kin of the deceased, if deposited by the appellant. Learned counsel for the appellant have agreed to the imposition of the above fine in lieu of remission of sentence which we had discussed. The appellant is on bail. However, in the event of failure to deposit the above said fine within three months from today the appellant shall be take into custody and will be sent to jail for undergoing a further sentence of 2� years R.I.