R.C. Lahoti, J.@mdashThe accused-appellant stands convicted u/s 302 IPCfor murdering by poisoning his own wife Prakash Devi and sentencedto undergo imprisonment for life, also to pay a fine of Rs. 5000/- andin default to further undergo R.I. for 2 years. The case rests oncircumstantial evidence.
2. Prakash Devi died an unnatural death on 7.8.1997 at about 4.50p.m. About 15 years before his death she was married with theaccused. The couple lived happily and peacefully for about 3-4 years.In 1986 they developed some differences leading to bickerings andstrained relationship in marriage. The appellant was serving as aschool teacher. It is alleged that he needed some money to construct ahouse and Sheotaj, PW4 the father of Prakash Devi employed as Sub-Inspectorof Police, had obliged the son-in-law by giving a sum ofRs. 50,000/- of his own and another sum of Rs. 30,000/- through hisson. This obligation too failed to restore matrimonial harmony in thecouple. The wife initiated proceedings for recovery of maintenanceunder Section 125 Cr.P.C. while the husband filed a suit seekingdissolution of marriage by decree of divorce. On 14.3.1997 thehusband, i.e., the accused-appellant lost in his suit. He preferred anappeal in the High Court. On 16.7.1997 the matter was compromisedwith the intervention of elders of the village. As per settlement thewife was to join the husband which she failed to do.
3. The prosecution further alleges that some 3 or 4 days prior tothe death of Prakash Devi her brother Virender Singh had come toNarnaul where the accused met him and directed him to send PrakashDevi to join with him.
4. On 7.8.1997 Smt. Beena wife of Virender Singh (PW-3),accompanied by Prakash Devi, reached the house of the accusedsituated in a locality known as 'Housing Board' Nasibpur at about12.00 or 12.30 p.m. The accused was present in the house. Smt.Beena was asked by the accused to sit in the outer room telling herthat he wanted to speak to Prakash Devi in privacy. Prakash Deviwas taken by the accused in the inner room of the house. Thehusband and wife were in conversation for about half-and-hour whenSmt. Beena heard the voice of Prakash Devi complaining ofuneasiness. She went inside the inner room. The accused toldPrakash Devi that he had some tablet with him which could be givento her to come out of her feeling of uneasiness. Then he gave onetablet to Prakash Devi. After consuming the tablet Prakash Devi feltmore uneasy and vomited. Smt. Beena took Prakash Devi to Narnaulon a rickshaw. She vomited once against outside the house. She alsosaid that she might not survive and requested for calling the accusedso as to see him. Smt. Beena accompanied by Parkash Kaur reachedNavjeevan Hospital at Narnaul. The accused also reached there on ascooter. The accused assured Smt. Beena of taking care of PrakashDevi whereupon Smt. Beena left for her home at Dongra Ahir.Having informed her family members, she once against came toNavjeevan Hospital, Narnaul, accompanied by her brothers-in-lawSardara and Siri Chand. Navjeevan Hospital is run by Dr. ParveenChoudhary, a private medical practitioner at whose instance theaccused had shifted Prakash Devi to Civil Hospital, Narnaul. In fact,Dr. Parveen Chaudhary did not admit Prakash Devi and as hesuspected the case to be one of poisoning referred her straightaway toCivil Hospital. He remembered Prakash Devi having been brought tohim between 3 and 4 p.m. on that day. Smt. Beena and her brothers-in-lawreached Civil Hospital but only to find Prakash Devi dead.
5. Rajender Singh, Sub-Inspector of P.S. Narnaul had come tothe hospital in connection with investigation of some other offence.There Smt. Beena met him and informed him of the incident whichhad taken place. Rajender Singh recorded the statement of Smt.Beena at 9.30 p.m. and forwarded the same to P.S. Narnaul whereat,at 9.40 p.m. the statement of Smt. Beena was registered as FIR andthe investigation commenced.
6. Prakash Devi, on reaching the Civil Hospital, was attended to atabout 4.00 p.m. by Dr. Ajay Ram (PW-10) in casualty department ofthe hospital. He sent an information (Exhibit PO) to the policeinforming the police of Prakash Devi having been admitted in thehospital. The police reached the hospital and sought for opinion ofDr. Ajay Ram if Prakash Devi was in a position to make anystatement. Dr. Ajay Ram found Prakash Devi's condition not fit formaking any statement. Prakash Devi expired at 4.50 p.m. intimationwhereof was given by him to the police. Dr. Ajay Ram gave PrakashDevi a stomach wash as it was suspected to be a case of poisoning,gastric ravage was taken in a bottle, sealed and handed over to thepolice. According to Dr. Ajay Mann the patient Prakash Devi wasnot fully conscious when brought to the hospital yet she was in aposition to reply to some of the queries put to her. She did not givethe history of poisoning. However, she was vomiting and she had alsovomited on the floor of the hospital though the vomited material wasnot preserved as sample.
7. Post mortem on the dead body of Prakash Devi was performedby Dr. S.N. Sharma (PW-1). As it was a suspected case of poisoning,a board was constituted for conducting the post mortem. Dr. S.N.Sharma, Medical Officer was assisted by Dr. Alka Bishnoi, AssistantMedical Officer. The post mortem was conducted at 10 AM on8.8.1997 i.e. the next day of the death. On internal examination it wasfound that the membranes of the brain were congested. Forth fromthe larynx and trachea was coming out. Both the lungs werecongested. Samples of blood from heart, of frothy fluid coming outfrom the mouth, and pharynx and esophagus were taken andpreserved. IN the stomach about 100 ml. of semi-digested fluid waspresent. The mucus was congested and showed puncture formhaemorrhage and at places it was ulcered. The stomach as a wholewas preserved. Parts of the small and large intestines and parts ofliver, spleen and kidneys were preserved. All these samples, dulysealed, were handed over to the police for being sent to ChemicalExaminer. The Medical Board did not express any opinion on thecause of death. The opinion was reserved to be expressed on thereceipt of the report from the Chemical Examiner.
8. All the samples which were collected and preserved forchemical examination were forwarded to Forensic Science Laboratoryof the State of Haryana situated at Madhuban, Karnal. Vide letterdated 16.12.1997, the Deputy Director-cum-Assistant ChemicalExaminer of FSL, opined as under:
(1) Greyish stained cotton's pad stated to be vomit of the deceasedtaken from the floor and the piece of wet cloth along with wetearth stated to be 'vomit stained earth' taken from the spot givean indication of the presence of aluminium phosphide(celphose);
(2) No common poisoning could be detected in:
(i) Stomach with contents in liquified form and emitting foulsmell;
(ii) Part of small and large intestine with its contents inliquified form and emitting foul smell;
(iii) Parts of liver, spleen and kidneys in liquified form andemitting foul smell;
(iv) Blood from heart;
(v) Saline preservative; and
(vi) Gastric ravage of the deceased.
9. On receipt of the report from FSL the same was shown to Dr. S.N.Sharma who initially sought for some clarification from FSL. TheFSL responded by saying that viscera/stomach wash etc. of thedeceased were screened for the detection of common poisoning onlyand the same was found to be absent. Nothing could be said aboutnon-common poison being ordinarily inaccessible. After the abovesaid clarification from FSL, on 15.1.1998 the Medical Boardconsisting of Dr. S.N. Sharma and Dr. Mrs. Alka Vishnoi opined - "Inview of the Aluminium phosphide (celphose) detected in two samples,opinion of the casualty Medical Officer - case of suspected poisoning- and details as per indoor bed head ticket and post mortem report,mthey were of the opinion that deceased Prakash Devi had died becauseof Aluminium phosphide (celphose) poisoning.
10. Here we revert back to tracing the investigation how itproceeded. We have already noted that the police had become activebefore 5 PM on 7.8.1997 on receiving an information from Dr. AjayMann that a patient was admitted in the hospital as a suspected case ofpoisoning. The police had reached the hospital and also was keen onrecording the statement of Prakash Devi. However, that could not bedone. In any case, the statement of Smt. Beena was recorded by aSenior Officer of the local police station at 9.40 p.m. and treated asFirst Information Report u/s 154 of Cr.P.C. whereupon acognizable offence u/s 302 IPC was registered. No stepswere taken by the police for picking up the samples from, or forpreserving intact, the place of occurrence and the places where thedeceased is said to have vomited which was necessary to do forcollecting and preserving the most crucial evidence. This omission ofthe police becomes more serious and assumes significance in thebackground that inquest was held on 7.8.1997 itself around 9.30 p.m.It is also very significant to note that in the inquest report which is in aprinted proforma, in the column entitled 'apparent cause of death' it iswritten "celphose tablet having been administered". A little later wewill deal with this observation and make our comments thereon.
11. Be that as it may, the police reached the house of the accused-appellantearly morning the next day at about 8.00 a.m. According toRajender Singh, S.I. (PW-7) the house of accused Jaipal was lyinglocked. The key was collected from the house of a neighbour, thename and particulars whereof are not known. On opening the housesample of vomited material was collected from one place which wasinside the room. Another sample was collected from a place outsidethe house and situated at a distance of about 150 yards from the house.However, according to Smt. Beena (PW-3) the place where PrakashDevi had vomited for the second time was situated at a distance about25 ft. from the house of the accused.
12. The trial Court and the High Court have placed reliance on theevidence of Smt. Beena (PW-3), the sister-in-law of the deceased andSheotaj (PW-4), the father of the deceased and medical evidence readalong with FSL report for the purpose of concluding availability ofthree incriminating circumstances:- (1) motive on the part of theaccused for causing the death of Prakash Devi, (2) opportunityavailable to the accused for administering poison to the deceased, and(3) Prakash Devi's death having been caused by poisoning. Thesethree circumstances taken together, are enough, in the opinion of theTrial Court and the High Court to fasten the guilt on the accused.
13. We will take up the third piece of circumstantial evidence as thefirst and see whether it has been established that the death of PrakashDevi was caused by administering aluminium Phosphate (celphose) orby poisoning.
14. We have grave doubts if at all Prakash Devi's death was causedby poisoning. Dr. S.N. Sharma has stated that liver and kidneys of thedeceased were congested. Membranes of the brain were congested.Lungs were congested. Frothy fluid was coming out from the larynxand (SIC). These symptoms alone could not have persuaded Dr.Sharma to hold that it could have been a case of poisoning. In spite ofthe availability of such facts the Medical Board was not in a positionto opine on the cause of death. It was thought fit to await for thereport of forensic science lab examination. He has clearly stated thatit is only on the findings made available by pathology of viscera,kidneys, spleen, liver, stomach and blood which would reveal whetherthere was poisoning. He admitted that the cause for congestion ofseveral organs as mentioned in the post mortem report could be due toother reasons as well. That is why, he had sought for clarificationfrom the FSL so as to ascertain if the patient could have died due tosome other poison inasmuch as aluminium Phosphate poisoning wasabsent from the viscera.
15. Dr. Sharma admitted during his cross-examination thataluminium Phosphate has a smell. If celphose table is kept open in aroom it will fill the room with smell. It is this characteristic ofcelphose poison emitting pungent smell which renders it improbable tobe administered deceitfully and that is why this poison is not generallyused in cases of homicidal death. celphose once administered orconsumed spreads rapidly in the body and kidney, liver, spleen, heartand lungs are affected by the poison. The presence of such poisonhaving been consumed would be revealed by pathological findings.
16. Dr. Sharma's opinion, as expressed during his deposition, hasauthoritative support. Modi in Medical Jurisprudence & Toxicology(Twenty-Second Edition) states (at pp. 197-198) that AluminiumPhosphate (celphose) is used as a fumigant to control insects androdents in food grains and fields. In reported cases of poisoning,symptoms which have been found are burning pain in the mouth,throat and stomach, vomiting mixed with blood, dyspnoea, rapidpulse, subnormal temperature, loss of co-ordination, convulsions of aclinic nature and death. In the solid form, it acts as corrosive in themouth and throat as it precipitates proteins. In postmortemappearance, the tongue, mouth and oesophagus are edematous andcorroded. The mucous membrane of the stomach is corrugated,loosened or hardened and is stained red or velvety. The intestines areinflamed.
17. According to Modi symptoms and signs of poisoning byaluminium Phosphate are similar to poisoning by zinc Phosphate(p.197, ibid). The chief symptoms after the administration of zincPhosphate are a vacant look, frequent vomiting with retching, tremorsand drowsiness followed by respiratory distress at death. ZincPhosphate acts as a slow poison and is decomposed by hydrochloricacid in the stomach with the liberation of phosphate which acts as arespiratory poison. Being a very fine powder zinc Phosphate adheresfirmly to the crypts in the mucous membrane of the stomach, and avery small quantity only in the stomach even after vomiting issufficient to cause death by slow absorption.
18. phosphate released from zinc Phosphate (rat poison) and fromaluminium Phosphate, is mainly used as a fumigant to control insectsand rodents in food grains and fields. Liberated from the metalPhosphates by the action of water or acids, gaseous phosphate exertsmore potent pesticide action, for it penetrates to all areas otherwiseinaccessible for pesticide application. Pathological findings fromphosphate inhalation are pulmonary hyperemia and oedema. It causesboth fatty degeneration and necrosis of liver. (p.174 ibid)
19. Our attention was invited, as was done in the High Court andthe Trial Court, to a paper entitled 'Toxicology -- Acute AluminiumPhosphate Poisoning in Northern India' written by Dr. Mitra Basu andProf. S.B. Siwach, Head, Deptt. of Medicine, Post Graduate Instituteof Medical Sciences, Rohtak and published in Current MedicalJournal, Vol.I, No. 5, July 1995. The authenticity of this article hasnot been doubted by the High Court nor questioned either in the HighCourt or in this Court. The learned authors have noticed thealuminium phosphide having emerged as a major health problem innorthern India when these cases first started coming in 1984 andhardly any literature being available earlier on this malady. In Post-GraduateInstitute of Medical Sciences, Rohtak about 2000 cases werereported which were all suicidal.
20. We may briefly sum up the opinion of the learned authors fromtheir published paper. phosphate gas (active ingredient of ALP)causes sudden cardiovascular collapse; most patients die of shock,cardiac arrhythmias, acidosis and Adult Respiratory DistressSyndrome (ARDS). Aluminium phosphide is available in the form ofchalky white tablets. When these tablets are taken out of the sealedcontainer, they come in contact with atmospheric moisture and thechemical reaction takes place liberating phosphate gas (PH3) which isthe active ingredient of ALP. This gas is highly toxic and effectivelykills all insects and thus preserves the stored grains. When thesetablets are swallowed, the chemical reaction is accelerated by thepresence of hydrochloric acid in the stomach and within minutesphosphate gas dissipates and spreads into the whole body. The gas ishighly toxic and damages almost every organ but maximal damage iscaused to heart and lungs. Sudden cardiovascular collapse is thehallmark of acute poisoning. Patients come with fast thread orimpalpable arterial pulses, unprocurable or low blood pressure and icycold skin. Somehow these patients remain conscious till the end andcontinue to pass urine despite unprocurable blood pressure. Vomitingis a prominent feature associated with epigastric burning sensation.The patients will be smelling foul (garlic like) from their breach andvomits. Many of them will die within a few hours. Those whosurvive for some time will show elevated jugular venous pressure, maydevelop tender hepatomegaly and still later Adult Respiratory DistressSyndrome (ARDS), renal shut down and in a very few cases toxichepatic jaundice. The active ingredient of ALP is phosphate gaswhich causes extensive tissues damage. A spot clinical diagnosis ispossible in majority of cases of ALP poisoning. However, ALP onaccount of its very pungent smell (which can drive out all inmatesfrom house if left open) can not be taken accidentally.
21. Dr. Ajay Mann (PW-10) who was the first to attend on PrakashDevi stated that the symptoms which he noted present in Prakash Devicould be the symptoms in the case of food poisoning, virus infectionand gastroenteritis. Dr. Parveen Chaudhary of Navjeevan Hospital towhom Prakash Devi was carried by Smt. Beena and who had seen herbetween 3 to 4 p.m. on the fateful day was of the opinion that it wason account of smell coming out from the mouth of the patient that hesuspected it to be a case of poisoning. However, his statement wasnot recorded by police during investigation. The letter under which hereferred Prakash Devi to Civil Hospital did not mention the fact of anysmell coming out from the mouth of Prakash Devi. Assuming that Dr.Parveen Chaduhary is right in stating that some foul smell wascoming out from the mouth of Prakash Devi, seen in the light of thestatement of Dr. Ajay Mann, it is clear that such foul smell wouldcome even in the case of virus infection or gastroenteritis and merelyfrom foul smell it cannot be doubtlessly concluded to be a case ofcelphose poisoning or poisoning.
22. We have doubts about the genuineness of the samples of vomitsaid to have been seized from two places i.e. inside the house andoutside the house. We have already pointed out the fatal omission onthe part of the police in protecting the two places where valuable andclinching evidence as to the cause of death could have been availableand the fatal delay in collecting the samples. Though, the house of theaccused is situated in a locality inhabited by people and not in asecluded place yet the two witnesses to the seizure memo of thesamples are - Virender Singh, husband of Smt Beena (PW-3) andbrother of the deceased, and one police employee namely BalbirSingh, ASI. It was suggested by the defence, during the cross-examinationof Dr. S.N. Sharma, that the samples of vomit would givepositive findings regarding aluminium phosphide (celphose) if it wassprinkled over the vomit before lifting the samples.
23. The Trial Court has disbelieved the recover of vomits fromthe two places by the Investigating Officer. In the opinion of the TrialCourt the evidence relating to such seizure of vomits was nottrustworthy for two reasons: firstly, it is not mentioned in the FIR orin the statement of Smt. Beena (PW-3) that aluminium phosphide wasadministered by the accused to the deceased, and secondly, it is alsonot mentioned either in the FIR or in the police statement of Smt.Beena (PW-3) that the deceased has vomited inside the house. TheTrial Court has also commented adversely on the lapse on the part ofthe Investigating Officer in not promptly seizing the samples ofvomits. The High Court has also doubted the recovery and seizureof vomits from the room in view of this material fact findingomission in the FIR amongst other relevant factors. Though the HighCourt was inclined to place reliance on the seizure of vomits fromthe place situated outside the house. However that recover too hasits own infirmities. As we have already noticed the vomits has beenseized from place situated at a distance of 150 yards from the house ofthe accused while according to Smt. Beena the deceased had vomitedat a place just about 25 feet from the house. It is difficult to reconcilethe two depositions as to the distance. Secondly, in a village it ishighly doubtful that vomits would remain lying unhampered andintact for the period of more than 16 hours overnight and on athoroughfare. From the presence of aluminium phosphide in thesample of vomits, in the facts and circumstances of the case it is notsafe to infer the deceased having been administered aluminiumphosphide because a safe link between the vomits samples and thedeceased is not established. Sample of vomits from the hospital wasnot taken for whatever reasons.
24. Thus on the state of the evidence as it exists we cannotconclude positively that aluminium phosphide (celphose) wasadministered to the deceased. This finding has also to be read in thelight of very pertinent statement made by Smt. Beena. According toher while the accused and the deceased were busy talking in the innerroom, the witness was sitting just outside in the outer room. When sheentered in the inner room Prakash Devi complained of feeling uneasy.She never stated that she was administered anything by the accusedor anything given by the accused was consumed by the deceased orthat anything which the deceased was made to consume by theaccused was the cause of her feeling of uneasiness. On the contrary itwas in the presence of the witness Smt. Beena that the accused offeredto give the deceased a tablet which could remove the feeling ofuneasiness. Such tablet according to Smt. Beena was of two colours;its half portion was blue and half portion was white. Such could nothave been the colour of celphose tablet. If only the tablet given by theaccused to the deceased was celphose it is not likely that the deceasedwould have consumed it inasmuch as the pungent smell of celphosewould have altered Prakash Devi and Smt. Beena and certainly thedeceased would not have consumed the tablet. It also soundsunnatural, and therefore doubtful, if the accused administerany poisonous tablet to the deceased by calling her to his house and ata point of time either when Smt. Beena was sitting just outside theroom or when she was present inside the room. The presence ofsmell in the room, if any celphose tablet had remained in open therewould not have escaped the attention of Smt. Beena. But she does notdepose to the presence of any smell in the room having been felt byher.
25. The Forensic Scientific examination of several organs of thebody of the deceased and the samples collected from the body excludethe presence of aluminium phosphide (celphose). The victim, accordingto the prosecution case died within about 4 hours, of the poisonhaving been allegedly administered to her. Postmortem wasperformed within 18 hours of the time of death. None of thesymptoms suggesting administration of celphose as stated by Modi andthe two authors Dr. Mitra Basu and Prof. S.B. Siwach were found tobe present. The manner in which aluminium phosphide acts on beingingested, the presence of powder or symptoms of damage caused byphosphate must have been detected in stomach, intestines, liver,kidney and gastric ravage. But none has been found. Merely becauseof the presence of foul smell it cannot be said to be a case of poisonhaving been administered to the deceased. The finding of the TrialCourt and the High Court that the deceased died because of poisoningcannot therefore be sustained.
26. We are also not inclined to hold that the accused had theopportunity available to him of administering poison to the deceased.The availability of the second circumstance is also ruled out. So far asthe question of motive is concerned, again, clear motive for theaccused to cause the death of the deceased cannot be spelt out. Theparties had separated and then reconciled. The accused was inclinedto resume the conjugality of marriage. That is why he had insistedwith his brother-in-law that his wife should join him. The deceasedcame to the accused accompanied by her sister-in-law. The husbandand wife were talking to each other in the close presence of the wife'ssister-in-law. There was no dispute or altercation between the two. Inour opinion the present one is not a case where it can be held that theaccused had a clear motive for administering poison to the deceased.That part, merely because the accused could have had a motive forcausing the death of Prakash Devi it would not by itself be enough tosustain the finding of guilty against him.
27. There is no evidence adduced by the prosecution to hold thatthe accused had the poison in his possession prior to the time of theincident. The police had learnt from Smt. Beena that the accused hadtaken out the tablet from a box and given it to the deceased forinhaling. The investigation was not directed towards inspecting andseizing the box wherefrom the tablet was taken out. Moreover,celphose is chalkiest white while the tablet which is said to have beengiven by the accused to the deceased was blue and white. It allprobability it could not have been celphose.
28. In
"In the cases of murder by administration ofpoison the Court must carefully scan theevidence and determine the four importantcircumstances which alone can justify aconviction:
(1) there is a clear motive for anaccused to administer poison tothe deceased,
(2) that the deceased died of poisonsaid to have been administered,
(3) that the accused had the poisonin his possession,
(4) that he had an opportunity toadminister the poison to thedeceased."
29. We may hasten to add that the availability of the third piece ofevidence as necessary to establish the case of murder by poisoning hasbeen doubted in some of the later decisions. To wit, in
"Circumstantial evidence in this contextmeans, a combination of facts creating anetwork through which there is no escapefor the accused, because the fats taken as awhole do not admit of any inference but ofhis guilt."
30. In the present case we do not fine any abnormality in the conduct ofthe accused. He is an educated person, a teacher. If only he hadadministered any poison to the deceased he would not have gone tothe private clinic and government hospital where poisoning as a causeof death would be immediately known or at least strongly suspectedby the doctor attending on the victim. Rather the accused wanted tobe in the company of the deceased and to have her treated. Heattended on her at Navjeevan Hospital and took her to Civil Hospital.
31. It is also noteworthy that the deceased had complained to Smt.Beena of feeling some uneasiness even prior to her having beenadministered a tablet by the accused. In all probability the deceasedhad consumed something before coming to meet the accused or maybe she had suffered food poisoning or virus infection which could beinnocuous.
32. A few questions remain unanswered which we deem it properto mention before parting. The tablet said to have been administeredby the accused to the deceased was at about 12.30 p.m. Soon Smt.Beena took the deceased to Navjeevan Hospital. The distance betweenthe house of the accused and Navjeevan hospital is about twokilometers. The two ladies went to the hospital in a rickshaw.However, they reached at the hospital sometime between 3 and 4 p.m.They could not have taken so long in reaching Navjeevan hospital fromthe house of the accused. Where did they remain in between?
33. Nobody knew what was administered to the deceased or whatshe had consumed which led to her death until the doctors gaveopinion on receipt of FSL report and on their queries beinganswered. Yet a single track investigation with a pre-conceivednotion appears to have begun from the very inception. The letter,(Exhibit PA) written on 7.8.1997 by S.I. P.S. Narnaul to the CivilHospital requesting for autopsy to be held on the dead body ofPrakash Devi mentions the death having been caused by celphosetablet having been administered to her. The same fact is stated in thereport on inquest which was held at 9.30 p.m. on 7.8.1997. The post-mortemreport, which is in a pro-forma, in its preliminary part incolumn No. 20 "information furnished by police" mentions the causeof death as 'by celphose tablet, having been administered' and still thedoctors were not positive in their opinion, i.e., they did not recordtheir approval of the suggestion made by the police. Thecorrespondence between the police and the doctors suggests that thepolice was insisting on the doctors, who constituted the medicalboard, giving an opinion that the deceased had died on account ofcelphose having been administered to her. The doctors initiallyresisted endorsing the police suggestion and sought for a clarificationfrom the Forensic Science Laboratory. The opinion given by FSL aslate as on 24.12.1997 was also non-committal one and yet the doctorschanged their opinion and said on 15.1.1998 in their supplementaryreport that the deceased Prakash Devi had died because of aluminiumphosphide (celphose) poison. Though we are not recording anypositive finding in that regard yet we cannot resist observing that thefather of the deceased as also the brother-in-law of the deceased beingpolice personnel of a pale nearby to the place of the incidentprobably they had successfully prevailed over the doctors who yieldedinto giving an opinion which would implicate the accused.
34. We may with advantage quote the following observation of thisCourt from
"The Chemical Examiner was repeatedly ofthe opinion that there was no poison contentfound in the viscera. Dr. Ahluwalia gave hisopinion on consideration of the out-doorticket, bed-head ticket and history of thecase. The symptoms of vomiting,temperature, convulsions and quick pulsewere there. He opined that death of RanjitSingh could have resulted from zincphosphide but he could not rule out thepossibility of his death due to some virusinfection. He further stated when referred toModi's Medical Jurisprudence that zincphosphide being a very fine powder adheresvery firmly to the crypts in the mucousmembrane of the stomach. It also appearsfrom the evidence that the poison after goinginto the blood must have entered viscera ofthe deceased. No zinc powder was foundadhering to the crypts in the mucousmembrane of the stomach of Ranjit Singh.Death of the child was within 24 hours ofthe administering of the poison. In allprobability if it would have been caused dueto the intake of the poison by him theChemical Examiner must have detectedtraces of it in the viscera. The other twochildren it appears had taken very littlequantity of the poison and they soonrecovered only by stomach wash. It is notclear from any piece of evidence in this casethat the deceased child had taken a largerquantity of the poisoned gur. The possibilityof his death due to any virus infection or anydifferent cause other than the oneattributable to poisoning cannot be ruledout."
35. Dealing with a case of circumstantial evidence the Court has tobe circumspect. A note of caution was sounded by a ConstitutionBench of this Court in
"The mind was apt to take a pleasure inadapting circumstances to one another, andeven in straining them a little, if need be, toforce them to form parts of one connectedwhole; and the more ingenious the mind ofthe individual the more likely was it,considering such matter, to overreach andmislead itself, to supply some little link thatis wanting, to take for granted some factconsistent with its previous theories andnecessary to render them complete."
36. The High Court and the Trial Court have unwittingly fallen intothe same dangerous trap which the Constitution Bench has cautionedto be guarded against.
37. We are unhesitatingly of the opinion that the prosecution hasutterly failed in proving such chain of circumstantial evidence aswould fasten the guilt on the accused leaving no room for doubt. Theappeal is allowed. The conviction of the accused u/s 302IPC and the sentence passed thereon by the Trial court and upheld bythe High Court are set aside. The accused-appellant is acquitted. Heshall be released forthwith if not required to be detailed in any otheroffence.
