1. These four appeals arise out of the common judgment and order of the first Additional Sessions Judge, Sitamarhi, in Sessions Trial No. 817 (sic) of 87/4 of 88, dated 6th April, 1989. The appellant Sudama Devi in Criminal Appeal No. 241 of 1989 was charged of the offence under Section 302 of the Indian Penal Code, while she and the remaining appellants were charged of the offence under Section 302/34 of the Indian Penal Code. The trial Court has found appellant Sudama Devi guilty of the offence under Section 302 of the Indian Penal Code and sentenced her to undergo rigorous imprisonment for life. It has also found all the appellants guilty of the offence under Section 302/149 of the Indian Penal Code instead of Section 302/34 of the Indian Penal Code and while passing no separate sentence against Sudama Devi, has sentenced the other appellants to undergo rigorous-imprisonment for life.
2. The case of the prosecution is that on 29th May, 1987 at about 8 p.m. while the deceased was proceeding towards his house, appellant Sudama Devi called him and offered him Pera (sweetmeat), which was the prasad of Brahma Puja performed by her. The other appellants were also present at her house and the deceased Ram Ishwar accepted that prasad and ate it. He thereafter proceeded to his house but felt unwell. By the time he reached his house he started vomiting and since his condition was deteriorating he was first taken to a doctor at Riga who advised that he should be taken to Sitamarhi hospital. While being taken to Sitamarhi hospital, Ram Ishwar (deceased) died and his dead body was, therefore, brought back to the village. On receiving information about the occurrence the Investigating Officer came to the village at about 5 p.m. and recorded the fardbeyan of the father of the deceased Mewa Lal Rai (P.W. 5).
3. In his fardbeyan which was recorded at 5.35 p.m. on 30th May, 1987 Mewa Lal (P.W. 5) stated that on 29-5-1987 his son was returning home at about 8 p.m. from the orchard to take his food. On reaching home his son told him that while returning home when he came near the house of appellant Sudama Devi she offered him Pera saying that she had performed Puja of Brahma and he should accept the prasad. At that time the remaining appellants except appellant Shailendra Rai were present. He asked her to offer the prasad to others but the appellants present there said that they had already taken the prasad. Thereafter his son ate the prasad and proceeded towards his house. On the way his head started reeling. He came home and told the informant all these facts. Thereafter he sat on the cot and started vomiting. He had also an attack of dysentery. Also present at the time were Mohan Rai (P.W. 2), Raj Mangal Rai (P.W. 11) and Balbaha Thakur (P.W. 4) (Ram Bali Thakur alias Balbaha Thakur). Ram Ishwar (deceased) was taken in a jeep to Riga, but the doctor at Riga advised them to take Ram Ishwar (deceased) to Sitamarhi. They took Ram Ishwar (deceased) to Sitamarhi, but by the time they reached the town his son died. They, therefore, returned home with the dead body in the morning. On the basis of the fardbeyan a formal first information report was prepared and thereafter the case was investigated by Sri. D. N. Sinha, who was the then officer-in-charge of Riga Police Station.
4. Large number of witnesses have been examined by the prosecution to prove its case. P.W.I, Raghunath Baith and P.W.4 Rambali Thakur are the two witnesses who claimed to be eye-witnesses and in whose presence the appellant Sudama Devi is said to have offered Pera to the deceased. P.W.2 Mohan Rai, claims that he met Ram Ishwar (deceased) while proceeding towards his house after taking Pera and he found that Ram Ishwar (deceased) was staggering and was not able to walk. He claims that he reached Ram Ishwar (deceased) to his house. P.W.5 Mewalal Rai is the father of the deceased and also the informant in this case. He claims that his son after reaching home reported the matter to him and mentioned about Sudama Devi offering him Pera by way of prasad which he had eaten. P. Ws. 6,7 and 12 are tendered witnesses. P.W.3 Kamta Pd. came to the house of the deceased when he was informed about his condition and it is stated that in his presence as well the deceased narrated all the facts. P.W. 10 is a formal witness. P.W. 11 Raj Mangal Rai is the Mukhiya of the village and has stated that in his presence Sudama Devi admitted having given Pera to the deceased whereafter he got the left-over Peras seized, which was later handed over to the Investigating Officer. P.W. 13 is the Investigating Officer while P.W. 14 is the doctor who performed the post-mortem examination on the dead body of the deceased.
5. P.W. 1 Raghunath Baitha deposed that on the date of occurrence at about 8.30 p.m. he was going to answer the call of nature. When he reached near the house of Ram Udar Thakur, husband of appellant Sudama Devi, he found the remaining five appellants sitting in his house. He saw them in the light of the lantern. Ram Bali Thakur (P.W.4) and Ram Ishwar (deceased) also came there. Sudama Devi told Ram Ishwar (deceased) that she had performed puja of Brahma Maharaj and he should accept the prasad. Ram Ishwar (deceased) said that the prasad should be offered to the other persons, thereupon those persons said that they had already taken the prasad. Thereafter, Ram Ishwar (deceased) ate the prasad. This witness proceeded ahead to answer the call of nature and Ram Ishwar (deceased) proceeded towards his house. When this witness returned home, the daughter of the deceased came to his house and called him. When he came to the house of the deceased he found the father, mother, wife, brother etc. of the deceased present there. Ram Ishwar (deceased) said that Sudama Devi had given prasad to him in the presence of other appellants. At that time Ram Ishwar was vomiting. He has then deposed about the manner in which Ram Ishwar was taken to Riga and thereafter to Sitamarhi for medical treatment. So far as this witness is concerned, he has admitted that he was a witness against the appellant Ram Jappu Rai. There was also a proceeding under Section 107, Cr. P.C. between him and appellant Shailendra Rai. He had also deposed against appellants Deo Narain Rai and Deepa Rai. It, therefore, appears that this witness has some sort of enmity with appellants Ram Jappu Rai, Shailendra Rai, Deo Narain Rai and Deepa Rai.
6. We, however, find that this witness is wholly unreliable. As would appear from the evidence of P.W. 13 the Investigating Officer when examined in the course of investigation this witness did not claim to be an eye-witness. He had not stated about his having seen the deceased near the house of appellant Sudama Devi or about Sudama Devi having offered Pera to him as prasad. In fact, in his statement recorded under Section 161, Cr. P.C. this witness had stated that at about 12'O clock in the night the daughter of Ram Ishwar had come to call him and thereafter he went to the house of Ram Ishwar and found him writhing and in a state of unconsciousness. This witness was cross-examined by reference to the statement made by him in course of investigation and though he claimed to have stated so in course of investigation it appears from the evidence of the Investigating Officer that this witness did not claim to be an eye-witness to the giving of Pera by Sudama Devi to the deceased and that he for the first time came to the house of Ram. Ishwar (deceased) at about 12'O clock in the night.
7. P.W. 2 is Mohan Rai. He has deposed that at about 8.30 p.m. on the night of occurrence he was going to guard his orchard. When he was on the metalled road he met Ram Ishwar. After they had walked some distance, Ram Ishwar (deceased) started staggering. He told him that while returning from his orchard he had seen the appellants at the darwaja of Ram Udar Thakur (husband of Sudama Devi) and that Sudama Devi offered him Pera saying that it was the prasad of Puja performed by her. When Ram Ishwar requested that the prasad should be offered to others, those persons stated that they had already taken the prasad. According to this witness he reached Ram Ishwar to his house. By the time he reached his house Ram Ishwar (deceased) started vomiting. Ram Ishwar (deceased) stated all the facts to his family members. A jeep was called in which Ram Ishwar was removed to Riga. In the morning this witness came to know that Ram Ishwar died. This witness has stated that it took him about ten minutes to reach the house of Ram Ishwar (deceased) and before Ram Ishwar was put in the jeep he had vomited only once and also had loose motion once.
This witness feigned ignorance about the pendency of a proceeding under Section 107, Cr. P.C. in which he was on the side of Ram Ishwar while the opposite parties included appellants Deo Narain Rai and Deepa Rai. He also denied the suggestion that he was deposing at the instance of Raghunath Baitha (P.W.I) and Ram Bali Thakur (P.W.4). It appears from the evidence of the Investigating Officer that in course of investigation this witness had not stated that Ram Ishwar (deceased) had told him that he had requested Sudama Devi to offer the prasad to the persons sitting there.
8. P.W. 4 is Ram Bali Thakur. According to him at about 7.45 p.m. on the date of occurrence he was at his darwaja which was adjacent to the darwaja of appellant Sudama Devi. There was a lamp burning at the darwaja of appellant-Sudama Devi. The remaining appellants were also present at her darwaja. At that time Ram Ishwar (deceased) came from the west, while Raghunath Baitha (P.W.I) came from the east. Appellant-Sudama Devi told Ram Ishwar that she had performed Puja and she should accept the Pera which was the prasad. Ram Ishwar (deceased) told Sudama Devi to offer prasad to others. Appellant Shailendra Rai said that they had already taken Prasad and that he should now take the prasad. After taking the prasad Ram Ishwar (deceased) proceeded towards the east to his house. The witness also went to-his house to take his meal.
9. P.W.4 has admitted that his father had married twice. The husband of Sudama Devi, namely, Ram Udar Rai, was the son from his first wife, while he and three others were the sons from his second wife. The two branches were living separately. This witness has stated that his house faces the east while the house of Sudama Devi faces the west. There is a path leading from his house to the metalled road. This witness had also admitted in his cross-examination that there was earlier a proceeding under Section 107, Cr. P.C. involving appellants Shailendra Rai and Ram Rakha Rai etc. and in that proceeding P.W. 1 Raghunath Baith and P.W.2 Mohan Raj were the opposite parties. He also admitted that the name of his father's brother is Sadhu Thakur and the name of one of the sons of Sadhu Thakur is Deepa Thakur in whose house the murder and dacoity had been committed and in that case Ram Jappu Rai etc. were the accused. The son of aforesaid Sadhu Thakur had also filed a case against the appellants Deo Narain Rai and Deepa Rai.
10. P.W. 3 Kamta Pd. has deposed that when he reached home at about 8.30 p.m. on the date of occurrence he heard that appellant Sudama Devi had mixed poison in Pera and had given it to Ram Ishwar (deceased). He went to the house of Ram Ishwar (deceased) and found him lying on the cot and there were 10-15 persons present. On being asked Ram Ishwar stated all the facts about the incident. This witness claims that he had also gone to Riga and then to Sitamarhi for the treatment of Ram Ishwar (deceased). This witness stated that he did not know that appellant Ram Jappu Rai had instituted Riga P. S. Case No. 119 of 1982 against him and his brother. He also did not remember whether there was a proceeding under Section 107, Cr. P.C. between him and appellant Shailendra Rai, but he admitted that appellants Deo Narain Rai and Deepa Rai had deposed against him and his brother Ram Sevak in a case. He did not know that there was a proceeding under Section 107, Cr. P.C. between him and his brother on the one hand and Deepa Rai and Deo Narain Rai on the other.
11. P.W. 5 Mewalal Rai is the father of the deceased and is also the informant in this case. He has substantially stated the same facts which he had stated in his fardbeyan, except that he added the name of appellant Shailendra Rai, which he had not mentioned in his fardbeyan. He has deposed to the fact that his son Ram Ishwar (deceased) stated all the facts about his being offered Pera by appellant Sudama Devi in presence of other appellants and his feeling unwell after taking the Pera.
12. P.Ws. 6 and 7 are tendered witnesses. P.W. 8 is the daughter of the deceased who has deposed on the same line as her grand father (P.W.5). They derived knowledge of the facts from Ram Ishwar (deceased), who had told them all that had happened before he came home. P.W.9 is the brother of the deceased who was living separately. He also claims to have come to the house of Ram Ishwar (deceased) when he came to know that he had been poisoned. Ram Ishwar (deceased) narrated the incident in his presence. It appears from his cross-examination that he had filed a case against Ram Chandra Rai and others in which die appellant Shailendra Rai was also an accused.
13. P.W. 11 Raj Mangal Rai is the Mukhiya of the village. He has deposed that on the night of occurrence he had gone to the house of Ram Ishwar (deceased) and when he went there he found that Ram Ishwar (deceased) was vomiting and was also suffering from dysentery. Ram Ishwar. (deceased) told him that Sudama Devi mixed something in the Pera and had given that Pera to him to eat. He had not stated anything else. This witness has stated that he had seen that some people had caught hold of appellant-Sudama Devi. He questioned her and appellant-Sudama Devi admitted that she had given Pera to the deceased. She also stated that some Peras which had not been consumed were kept in her house. This witness directed the Choukidar to go to the house of Sudama Devi with her and get the remaining Peras. The remaining Peras were brought in the presence of witnesses and he kept them. When the Police Inspector came those Peras were handed over to the Assistant Sub-Inspector who seized them and prepared a seizure list in his presence. This witness has admitted that the father of Mewalal Rai was the son of his grandfather's brother. Kamta Rai (P.W.3) was their collateral.
14. P. Ws. 6,7 and 12 were tendered for cross-examination. P. W.8, Pappu Kumar, is the daughter of the deceased while P.W.9, Ram Babu Rai, is the brother of the deceased. Both of them have deposed about the manner in which the deceased came to the house and then narrated the incident to the persons who had assembled there. P.Ws. 10 is a formal witness.
15. P.W. 13 is the Investigating Officer of the case. This witness has deposed that on 30th May, 1986 on receiving secret information he reached the darwaja of the informant, Mewalal Rai and recorded his fardbeyan. He inspected the place of occurrence and prepared the inquest report. He had also stated that the Mukhiya Raj Mangal Rai (P;W. 11) and Choukidar Ram Sahyog Rai (P.W. 12) handed over to him the remaining Peras of which he prepared a production list. He had sent to the Forensic Science Laboratory the viscera of the deceased and also the remaining Peras which had been handed over to him after obtaining the permission of the Chief Judicial Magistrate. He did not make any effort to obtain the report and till the date charge-sheet was submitted the report had not been received. He further clarified that he had sent for chemical examination two full Peras and a portion of broken Pera which was powdered. We have already noticed that P.W. 1 had not stated before him in course of examination the facts which he had stated at the trial. He has admitted that P.W.5 Mewalal Rai, informant had not stated in course of investigation that Ram Ishwar (deceased) had returned home in the company of Mohan Rai (P.W.2). He had also not stated that on the way Ram Ishwar (deceased) had met Mohan Rai (P.W.2) and the latter had reached the deceased to his house. This witness has been cross-examined and various omissions and contradictions committed by the prosecution witnesses have been elicited from him which we do not consider necessary to notice at this stage.
16. P.W. 14, Dr. Lakshman Jha performed the post-mortem examination on the dead body of the deceased on 31 -5-1987 at 9.45 a.m. He found that the face of the deceased had a cyanosed looking and the cornea of the eye were vague and blue. The finger and the toes of the upper and lower limbs respectively were unduly dry and shrivelled having a blue tinge. The various organs of the abdomen were congested. Pieces of lung, spleen, kidney, stomach etc. with its contents were preserved to be sent for chemical analysis. Though the cause of death could not be ascertained, it appeared to him to be likely that the cause of death was poisoning.
17. On the basis of the evidence on record the trial Court concluded that the prosecution had been able to prove that all the accused persons after entering into a criminal conspiracy and in furtherance of their common object administered poison to the deceased by mixing the same in the Pera which was offered to him by Sudama Devi resulting into his death. Though the appellants were charged under Section 302/34 of the Indian Penal Code, the trial Court found that the charge, under Section 302/149 of the Indian Penal Code had been established against all the accused persons and the charge under Section 302 of the Indian Penal Code was proved against the appel-lant-Sudama Devi.
18. It was contended on behalf of the appellants that so far as the appellants except Sudama Devi are concerned, there is nothing on the record to establish that they had entered into a conspiracy or even formed themselves into an unlawful assembly, the common object of which was to poison the deceased. It was submitted that they were present at the house of Sudama Devi who had performed the Puja and, therefore, their presence was only natural. The fact that they had stated in the presence of the deceased that they had already consumed the prasad is also doubtful because the concerned witnesses did not say so in course of investigation. Even assuming it to be so, the mere fact that they had admitted having consumed the Pera by itself would not make them co-conspirators or members of an unlawful assembly because there was no dispute about the fact that Sudama Devi had in fact performed the Puja and had offered the prasad. In fact, the remaining prasad which was seized by the police and sent for chemical examination did not, perhaps, disclose the presence of poison and, therefore, the report was not produced before the Court for which an adverse inference ought to be drawn against the prosecution.
19. So far as Sudama Devi is concerned, it was submitted that she had performed the Puja and she had offered the prasad to the remaining appellants as well as to the deceased who happened to be related to her. There was no intention, on her part to commit any offence and if no poison was found in the Peras that remained, which were sent for chemical examination, there was no basis for concluding that she had deliberately administered poison to the deceased. It was submitted that there was no question of conspiracy because there is no evidence to show that it was a pre-planned affair. In fact, the deceased was not even invited to the Puja but happened to pass by when Sudama Devi was distributing the prasad. Had it been a case of conspiracy or had there been prior meeting of mind, the deceased would certainly have been invited to partake the prasad as part of the conspiracy.
20. Counsel for the State, on the other hand, contended that the evidence on record conclusively proves that Sudama Devi had offered the prasad to the deceased who after consuming the same became unwell and had to be helped by P.W.2 to reach his house. At his house he narrated the facts to the family members and others and he had clearly stated that he had consumed the Pera which was offered to him by Sudama Devi. It was submitted that the report of Forensic Science Laboratory (Ext. 9) clearly disclosed that there was presence of arsenic in the viscera. He, therefore, submitted that the evidence on record is conclusive in nature and proves the guilt of the appellants.
21. The findings recorded by the trial Court appear to be somewhat confusing. The trial Court at many places in the judgment has observed that the appellants entered into a conspiracy. In the first instance no charge under Section 120B of the Indian Penal Code had been framed against the appellants. Apart from that, there is no evidence on record to suggest that the appellants had conspired together and had hatched a plan to poison the deceased. It is no one's case that the appellants had together planned to poison the deceased or that anyone of the appellants had brought the poison and gave it to Sudama Devi to be mixed in the Pera to be given to the deceased. Moreover, as is the admitted case of the prosecution, the deceased just happened to pass by when the Pera was being distributed. He was not even invited by Sudama Devi to the Puja. This completely demolishes the suggestion that the appellants had entered into a conspiracy to poison the deceased. If the appellants entertained any such intention and there was a prior meeting of mind, they would have made it a point to invite the deceased to the function and administer the poison in a planned manner. That is not the case and it is the prosecution case that by chance the deceased happened to pass by when the appel-lant-Sudama Devi offered him the Pera. The case of conspiracy must, therefore, be completely ruled out.
22. The prosecution case is that when the deceased was offered the Pera by Sudama Devi, he requested her to offer the prasad to the other appellants who were present there, upon which they said that they had already taken the prasad. From this fact alone it was sought to be argued that there was an unlawful assembly, the common object of which was to poison the deceased. The inference sought to be drawn is very farfetched. If it is a fact that the Puja had been performed by Sudama Devi and the other appellants had gone to her house in that connection, their presence at the house of Sudama Devi is but natural. Even if it be assumed that they had admitted having taken the prasad in presence of the deceased, that by itself would not lead to an inference that they had formed themselves into an unlawful assembly with the common object of poisoning the deceased. There is nothing to show that they had not taken the prasad. The remaining Peras which had been seized by the Mukhiya and handed over to the police and sent to the Forensic Science Laboratory for chemical report, apparently did not contain any poison. The Investigating Officer has admitted that he made no effort to secure the report from the Forensic Science Laboratory. Later the report received from the Forensic Science Laboratory with regard to the viscera was produced before the Court and marked as Ext. 9. No explanation has been offered as to why the report of Forensic Science Laboratory in regard to the Peras was not produced before the Court. Both the viscera as well as the Peras were sent to the Forensic Science Laboratory through the same Constable and under one common requisition. If the report with regard to the viscera was received, it is normally assume that the report with regard to the Peras must also have been received. In any event, no explanation has been offered by the prosecution for the non-production of the report of Forensic Science Laboratory with regard to the Peras that were seized from the house of Sudama Devi and sent for chemical examination. There is, therefore, sufficient reason to draw an inference against the prosecution that if the said report had been produced before the Court that may not have supported the prosecution case. In this background, if the appellants other than Sudama Devi admitted having consumed the prasad. they were not making a false statement.
23. This case has also to be viewed in the light of the fact that there appears to be no animus for Sudama Devi to poison the deceased. The peculiar feature of this case is that while there is considerable enmity between the alleged eyewitnesses and the appellants other than Sudama Devi, there is ho animus between Sudama Devi and the deceased and his family members. Learned counsel for the State also admitted that there was nothing to suggest that there was any enmity or dispute between Sudama Devi and the family of the deceased, or the deceased himself. There was, therefore, no real motive for Sudama Devi to poison the deceased. On the other hand, as contended by counsel for the appellants, there was every motive for the so-called eye-witnesses to implicate the appellants with whom they had serious enmity. In this background and in view of what we have found above, we are clearly of the opinion that the prosecution has not been able to make out a case of conspiracy against the appellants, nor is there any material on record from which one may reasonably infer that the appellants had formed themselves into an unlawful assembly, the common object of which was to poison the deceased.
24. Apart from these facts we may also notice that the name of the appellant Shailendra Rai has not even been mentioned in the first information report and it was only subsequently introduced. However, having regard to the finding arrived at by us that no case under Section 120B or under Section 302/149 of the Indian Penal Code is made out against the appellants other than Sudama Devi, they are entitled to acquittal.
25. We shall now consider the evidence against Sudama Devi. As noticed earlier, Sudama Devi had no motive to poison the deceased. While there appears to be considerable enmity between some of the alleged eye-witnesses and the remaining appellants, the prosecution has not been able to establish that Sudama Devi had an animus against the deceased or his family members. The second circumstance-is that Sudama Devi had not invited the deceased to her house for the Puja and this rules out a case of pre-planned poisoning. The deceased happened to pass by that way by chance, when Sudama Devi was distributing the prasad and since she was distantly related to him she offered prasad to him as well. It is too much to conjecture that Sudama Devi may have kept one Pera poisoned with a view to give that to the deceased. Apart from this being most improbable, Sudama Devi did not even know that the deceased would be passing by that way and would come near her house. She had no reason to poison the deceased. She innocently offered a Pera to him which was the prasad of the Puja which she had performed on that day. Having regard to normal human conduct, this cannot be said to be a suspicious act on her part. What, however, creates a serious doubt in our mind is the fact that the report of the Forensic Science Laboratory in regard to the sample of Pera sent to the Laboratory for chemical examination has not been produced before the Court, though the chemical examination report relating to the viscera has been produced. As we have noticed earlier, both the samples were sent through the same constable on the same day under a common requisition. Therefore, it was normally expected that both the reports would have been received at about the same time. While the prosecution has produced the report relating to the viscera, it had not produced the report relating to the Peras which were seized and sent for chemical examination. This leads us to infer that no poison was, perhaps, found in the Pera which was seized and sent for chemical examination because otherwise the prosecution would have certainly produced that report. The prosecution has given no explanation for non-production of the chemical examination report relating to the Pera. We must, therefore, proceed on the basis that the Peras which were seized from the house of Sudama Devi did not contain any poisonous substance. In these facts and circumstances, we are not convinced that, appellant-Sudama Devi had deliberately poisoned the deceased. It is not for us to conjecture as to how the deceased was poisoned. In course of trial it was suggested at one stage that the deceased was depressed on account of strained marital relation and may have committed suicide. It may also be that he may have consumed something else at an earlier stage. It is not open to us to conjecture, but while some suspicion arises against appellant-Sudama Devi we cannot say that we are fully convinced that she had knowingly poisoned the deceased. The evidence produced by the prosecution considered in the background of circumstances does not prove the prosecution case beyond reasonable doubt against appellant-Sudama Devi. She is at least entitled to the benefit of doubt.
26. In the result all these appeals are allowed and the appellants are acquitted of the charges levelled against them. Appellant-Sudama Devi is in custody. She is directed to be released forthwith unless required in connection with any other case. The remaining appellants have been released on furnishing bail bonds. Their bail bonds are discharged.