V.K. Agrawal, J.
1. This is an appeal preferred under Section 374 of the Criminal Procedure Code by accused/appellant, who has been convicted under Sections 302, 328,498A of the Indian Penal Code by I Additional Sessions Judge, Raigarh by his judgment dated 21-10-1986 in S.T.No. 53/1986 and sentenced to imprisonment for life and a fine of Rs. 100/- R.I. for 10 years & fine of Rs. 100/- and R.I. for 3 years and fine of Rs. 100/- respectively for the aforementioned offences.
2. Undisputably, Vishnu Priya, who was the daughter of Ravishanker (P.W. 1) and niece of Bimbadhar (FW. 2) and was married to accused appellant, died on 19-5-1985 at village Moha Pali.. The report of the death was lodged by Bimbadhar (PW-2) at P.S. Raighar which was recorded as Merg Intimation, as per Ex. P/18. Inquest Report, as per Ex. P/19, was prepared in the presence of Panch witnesses and the dead-body was sent for postmortem examination as per memo (Ex. P/20). Postmortem was conducted by Dr. A.L. Baleni (PW. 5), Dr. R.K. Thawait (P.W. 6) and Dr. Smt. C. Shrivastava, (not examined) and their report is as per Ex. P/3. No external injury was found on the body of the deceased and the cause of death could not be detected on post-mortem examination, as indicated in post-mortem report (Ex. P/4). The viscera, fingertip nails, etc. were preserved and sent for chemical examination to F.S.L., Sagar. The report (Ex. P/45) form F.S.L Sagar disclosed the 'Dhatura-Alkaloid' was detected in viscera of deceased Vishnu-Priya. The F.I.R. (Ex. P/22) was thereafter recorded by Investigating Officer, Raj Kishore Gandhi (P.W. 10) on 26-5-1985.
3. Prosecution case is that the accused/appellant used to ill-treat the deceased and used to demand that she should bring from her parents amount. Though the accused/appellant paid some amount by Ravishanker (P.W. 1), father of the deceased Vishnu Priya, the accused/appellant used to make demand for more money. The accused/appellant also got annoyed on account of the deceased Vishnu Priya having not been sent with him and had written a letter (Ex. P-1) to his father-in-law, Ravishanker (P.W. 1), in which he had threatened that since the deceased was not sent with the accused and since his mother-in-law had insulted him, now Vishnu Priya would only have sufferings and nothing else in future. Thereafter, after 2-3 days, the accused/appellant had come to take the deceased Vishnu Priya because the uncle of the accused/appellant had died and last rites were to be performed. She was sent by the parents of the deceased along with the accused/ appellant. After 2-3 days thereafter the accused/ appellant went to the house of his in-laws and informed Ravishanker (P.W. 1) that the deceased was ill and was suffering from loose-motions and vomitting, upon which Revishanker (P.W. 1) sent his wife, i.e., the mother of the deceased to the house of the accused/appellant. It is further alleged that Dr. Subodh Kumar Panda (P.W. 3) had examined the deceased on being called by the father of the accused/appellant and found that she was having convulsions and had advised that she be taken to Raigarh. In the evening at about 5.00 p.m., the deceased died.
4. Bimbadhar (P.W. 2), uncle of the deceased handed over the letter (Ex. P/1) to the police, which was seized as per seizure memo (Ex. P/2). The police also obtained specimen signatures and handwriting of the accused/appellant and also seized pages of his note-book, which were compared with letter (Ex. P/ 1) by S. Kamthan (P.W. 11) Addl. Examiner of Documents and he opined, as per his report (Ex. P/ 43) that the letter, Ex. P/1, was written by the accused/appellant. After completion investigation, the present challan was filed against the accused/ appellant.
5. The learned trial Court framed charges for offences punishable under Sections 328, 302, 498A of the Indian Penal Code against the accused for having administered 'Dhatura' with an intent to cause death of the deceased and for having caused her death and also for having treated her with cruelty. After trial, all the above three charges were found to have been proved by the impugned-judgment and the accused/appellant has been accordingly convicted and sentenced, as mentioned above.
6. In the present appeal, the conviction and sentence of the accused/appellant, as above, have been challenged and it has been urged that except for mere suspicion, there is no legal evidence to hold the accused/appellant guilty of the charges. It has also been urged that the letter (Ex. P/1) has not been proved to have been written by the accused and on that basis, no inference against him could be drawn.
7. It may be noted that the entire case of the prosecution is based on circumstantial evidence and the motive of the offence, according to the prosecution, is non-fulfilment of demand of money made by the accused/appellant, from time to time, as well as his annoyance, as the deceased was not sent along with him, as it disclosed from letter (Ex. P/1) of the accused/appellant written just a few days prior to the incident.
8. Coming to the evidence adduced in the case, Ravishankar (P.W. 1), who is the father of the deceased, giving the background and circumstances prior to death of Vishnu Priya, has stated that the deceased Vishnu Priya used to live for a few months with the accused/appellant, but because the accused/ appellant used to quarrel and ill-treat her on the ground that she brought fewer ornaments, she would return back to her parents' house. To fulfil the demand of the accused/appellant, Ravishanker (P.W. 1) had sold his field and paid Rs. 1500/- to him. However, even thereafter, the accused/appellant continued to quarrel and harass his daughter, Vishnu Priya and sent her back. Ravishanker (P.W. 1) has further stated that Vishnu Priya remained in his house for about 4 months during which he received the letter (Ex. P/1) sent by accused/appellant containing threats.
9. Bimbadhar (P.W. 2), who is the brother of Ravi Shankar and uncle of the deceased, has said in the above connection that the accused/appellant used to trouble his father-in-law, i.e., Ravishankar (PW-1) and used to demand money - Thereafter, on the asking of Vishnu Priya, she was brought back to her parents' house. After about 3-4 months, when the accused/appellant came to take back Vishnu Priya with him, the deceased was not sent back with the accused/appellant because it was a period of 'ramsapath' and he was informed that she would be sent back only after it was over. It would appear from the statement of Simbadhar (P.W. 2) that thereafter Ex.P/l was sent by the accused/appellant.
10. However, 2-3 days after the receipt of Ex.P. 1 by Ravishankar, the accused/appellant along with his cousin Banmali had come to their house and had requested that the deceased be sent with him because his uncle had died and last rites could not be performed without the deceased being present. Therefore, on the assurance given by Banmali that no ill-treatment would be meted out to the deceased Vishnu-Priya, the deceased was sent along with the accused/ appellant. Two-three days thereafter, the accused again came to their house and informed that Vishnu Priya was ill. Therefore, the mother of Vishnu Priya was sent to the house of the accused/appellant. On the same night, a person of their village informed that Vishnu Priya had died. Therefore, Simbadhar (P.W. 2) went to village Moha-Pali of accused/ appellant and on suspicion of unnatural death of Vishnu Priya, lodged the report with the police.
11. It may be noted that Yadav Prasad (P.W. 4) and Parwati Bai (P.W. 8) have also been examined regarding the ill-treatment and the threat given by the accused/appellant regarding the deceased Vishnu Priya. The statements (Ex. P/2 and Ex.P/29) of Yadav Prasad (P.W. 4) and Parvatibai (P.W. 8) have been recorded by Raj Kishore Gandhi (P.W. 20), from which it would appear that the statement given in the case by Yadav Prasad (P.W. 4) and Parvati Bai (P.W. 8) are clearly marked improvement from the statements given to the Police, as per Ex.P./28 and Ex.P/29 respectively. Thus, the statements of Yadav Prasad (P.W. 4) and Parvati Bai (P.W. 8)cannotbeof much assistance to prove the prosecution case.
12. From the above material on record, it appears that the deceased and her husband, the accused/ appellant, were not having cordial relationship. The accused/appellant had written a letter (Ex. P/1), the authorship of which is proved by the statement of S.Kamthan (P.W. 11). Though arguments have been advanced, challenging the authorship of accused thereof, and the reliability of the statement and report of S.Kamthan (Ex. P/43), but on reading the said report and the statement of S. Kamthan, it appears that the letter (Ex. P/1) was written by the accused/appellant to Ravishankar (P.W. 1), his father-in-law. In this connection, it has also been urged that the accused/appellant could not have been compelled to give his specimen handwriting and signatures and reliance in this connection has been placed on State of Uttar Pradesh v. Ram Babu Misra AIR 1980 SC 791, in which it has been laid down that direction for giving specimen signatures during investigation cannot be given to the accused. However, it may be pointed out that in the instant case, no direction from the Court has been given to the accused/appellant to give his specimen handwriting or signature. In fact, it appears that the accused/appellant had, without objection, given his specimen signature and handwriting, which were obtained from him by the SHO, Sitaram Singh (PW-12). Therefore, there appears to be no compulsion to the accused/appellant to have given his specimen signatures and handwriting and no exception in this regard can be made at this stage. It appears from Ex.P/1 that the accused/appellant was annoyed because his wife, deceased Vishnu Priya had not been sent on being asked by the accused/appellant, and instead the mother-in-law had misbehaved and insulted the accused appellant.
13. Now, coming to evidence, regarding the death of Vishnu Priya, the statement of Dr. Subodh Kumar Panda (P.W. 3) is that on 19-5-1985 he was called by the father of the accused/appellant for the treatment of deceased Vishnu Priay, whom he found having convulsions at about 11-11.15 a.m. It is further stated by Dr. Panda (P.W. 3) that the deceased was not in a position to speak and he was informed by some relatives, whom he describes as the mother-in-law of the accused/appellant that she used to have fits of hysteria. Dr. Subodh Kumar Panda (P.W. 3) has stated that he had advised that if consciousness was not regained by Vishnu Priya, she should be removed to Raigarh. Dr. Subodh Kumar Panda (P.W. 3) had administered homeopathy treatment to deceased Vishnu Priya. It is further stated by Dr. Panda (P.W. 3) that he had again gone to the house of Vishnu Priya at about 6.00 p.m. and found that she was in the stage of 'coma' and had learnt later at about 7.00 p.m. that Vishnu Priya had died.
14. Regarding the above statement of Dr. Subodh Kumar Panda (P.W. 3) it may be noticed that no prescription, regarding the treatment given by him, has been produced in the case in support of his oral statement. Moreover, from Senha (Ex. P/18) it would appear that Vishnu Priya had died at 5.00 p.m. Hence, the statement of Dr. Panda that he found Vishnu Priya at about 6.00 p.m. or 6.30 p.m. in the state of 'Coma', appears to be doubtful.
15. It would also appear from the statement of Dr. A.L. Baleni (P.W. 5), who had conducted postmortem of the body of deceased Vishnu Priya and as per post mortem report (Ex. P/4), that no definite cause of death was disclosed by post-mortem and that some hard seed like substance was found in the stomach of the deceased, which as also the viscera, etc. were preserved, and according to Raj Kishore Gandhi (PW-10) were sent to F.S.L., Sagar vide letter of S.P.(Ex. P-25),theacknowledgment whereof is (Ex.P/26). The report of F.S.L. (Ex. P/45) discloses that the viscera contained 'Dhatura- Alkeloid'. Therefore, the death of Vishnu Priya appears to be on account of administration of Dhatura seeds.
16. The question that arises for consideration is whether the accused/appellant had administered 'Dhatura' to the deceased Vishnu Priya, as has been found by the learned trial Court, on the basis of circumstantial evidence of the case
17. It may be pointed out that in a case based on circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstance so proved, must form a complete chain without giving room to any other hypothesis and should be consistent with only the guilt of the accused. In Eshwaraiah and another v. State of Karnataka (1994) 2 SCC 677 (SIC), it has been observed as under:-.It is true that in a case which is to be established by circumstantial evidence, the circumstances must be very closely scrutinised and all the circumstances must form an no unbroken chain which would establish the guilt of the accused and the case of prosecution should not lie in the realm of surmise and conjecture even if the facts and circumstances are very intriguing raising serious suspicion.
18. Therefore, in the instant case, the circumstantial evidence has to be closely scrutinised and properly appreciated, because there is no direct evidence in the case. The learned trial Court, in this connection, has relying on certain observation in Mody's Medical Jurisprudence, inferred that the accused/appellant had an opportunity to have 'Dhatura' because it is commonly found, and that there was ample opportunity for the accused/appellant to have administered the 'Dhatura' to his deceased wife Vishnu Priay.
19. It may be noted, in the above connection, that there is no direct evidence regarding the administration of 'Dhatura' seeds found in the stomach of the deceased. Though the accused/appellant was the husband of the deceased, still it is clear that normally meals could not have been served by the husband because as a matter of practice, the husband does not serve meals or food to his wife. Moreover, as would appear from the statement of Dr. Subodh Kumar Panda (P.W. 3), the parents of accused/appellant Kaushal Prasad, resided with him at the time of the incident, because when Dr. Subodh Kumar Panda (P.W. 3) went to the house of the accused/appellant, she found his father and mother being present there. In fact, Dr Subodh Kumar Panda (P.W. 3) does not state that the accused/appellant himself was present when he went for treatment of Vishnu Priya on being called by the father of the accused/appellant. There- . fore, though there is no prosecution evidence on the point, normally the meals prior to the death of deceased Vishnu Priya must either have been prepared by Vishnu Priya herself or the mother of the accused/appellant. In fact, from the FIR (Ex. P/22) recorded by Raj Kishore Gandhi (P.W. 10), after making an enquiry regarding the morgue intimation, it would appear that the mother of the accused/ appellant had prepared the meal, eaten by the deceased, during the day, prior to her death. The mother of the accused/appellant has not been prosecuted. There is also no evidence on the point as to what was consumed by the deceased immediately prior to her getting sick, much less, whether anything was administered by the accused/appellant to deceased Vishnu Priya. Moreover, it would have been difficult, rather impossible, to administer 'Dhatura' in hard seed form along with meals or otherwise by the accused or anybody else for that matter, to Vishnu Priya, as she would have noticed and detected the same while eating. In the circumstances, the proposition and conclusion that the accused administered 'Dhatura' to the deceased or had opportunity to do so is unbelievable and the trial Court's conclusion and inference, in that regard is clearly erroneous.
20. It is also pertinent to note that the learned trial Court has found as an adverse circumstance against the accused/appellant that the accused wrongly misrepresented to Dr. Subodh Kumar Panda (P.W. 3) that the deceased suffered from disease of Hysteria by putting up some persons as his in-laws, while his father-in-law and mother-in-law must not have been present at the time Dr. Subodh Kumar Panda (P.W. 3) examined the deceased; as would be clear from para 27 of the judgment of the learned trial Court. However, it is pertinent to note in this connection, that from the statement of Dr. Subodh Kumar Panda (P.W. 3), it does not appear that the accused/appellant was present at the time when Dr. Panda Examined Vishnu Priya. In fact, it appears that the parents of the accused/appellant were present at that time, but now here has Dr. Subodh Kumar Panda (P.W. 3) stated that the accused himself was present at that time.
21. It would also be clear from the statements of Ravishankar (P.W. 1) and Bimbadhar (P.W. 2) that the accused/appellant had come to inform them that the deceased was suffering from vomitting and having loose-motions and there upon the mother of the deceased Vishnu Priya was sent to village MohaPali. Ravi Shankar (P.W. 1) and Bimbadhar (P.W. 2) have not stated as to when the accused/appellant had come to give such information, but in any case, it is clear that while Vishnu Priya was ailing, the accused had come to their village and it must have been probably during the day time, when Dr. Subodh Kumar Panda (P.W. 3) went to examine the deceased Vishnu Priya or may be, at the time of examination, the mother-in-law had reached the house of the accused/appellant: The mother of the deceased has. not been examined in the case, who could have thrown light on the point. In any case, the presence of the accused himself, when Dr. Subodh Kumar Panda (P:W.3) examined the deceased is not established. Therefore, it cannot be concluded, as appears to have been done by the trial Court, that the accused/appellant misrepresented to Dr. Subodh Kumar Panda (P.W. 3) that the deceased Vishnu Priya had the history of ailment of hysteria.
22. It may also be noted that as mentioned above, the accused/appellant had gone to the village of Ravishankar (P.W. 1) and Bimbadhar (P.W. 2) and told them that the deceased had been taken ill. Which again indicates no ill-intention on his part. Had he administered 'Dhatura' poison to the deceased, on account of which she fell ill, normally, the accused/ appellant would not have himself gone to the village Tetla of his in laws to inform in time that the deceased had been taken ill.
23. The accused/appellant though appears to have written the letter (Ex. P/1), but he appears to have been disturbed on account of the fact that not only his wife, the deceased Vishnu Priya was sent with him, but he also was ill-treated and insult meted out to him by his mother-in-law, as would be obvious from his letter (Ex. P/1). In the circumstances, the writing of the letter cannot be said to be unnatural. May be that after bringing back his wife, who was reluctant to come back with him, as is obvious from the statement of Parvati Bai (P.W. 8) and other evidence on record, the deceased herself took 'Dhatura' seeds. There being no material on the point, however, the truth may ever remain a mystery. Therefore, whether poison in the from of 'Dhatura' seads was administered by the accused/ appellant or by his mother or by some body else or the same was consumed by the deceased herself, on account of some frustration or otherwise, is not known and shall never be known, because the circumstances in which it happened are shrouded in mystery and doubt. In the circumstances, it cannot be deduced and concluded that the accused and accused/appellant alone was responsible for adminstering 'Dhatura' seeds to the deceased.
24. It is also pertinent to note that it is clear from the statement of Ravishankar (P.W. 1), the father-in-law of the accused/appellant that he used to insist that the accused/appellant should reside with them, i.e., with the in laws and the accused/appellant did not -want to reside with them because he felt that it was belittling himself. This may have been the bone of contention between the accused and his wife Vishnu Priyaand may be that deceased Vishnu Priya was not willing to reside with her inlaws and the accused and, therefore, was not coming with him, and when forced to go with the accused/appellant, in fit of disgust or rage or frustration, consumed 'Dhatura' seeds. Therefore, merely because the accused wrote letter (Ex. P/1), possibly in a fit of rage, on account of feeling humiliated, it cannot be positively deduced thereby that the accused and the accused/appellant alone administered 'Dhatura' seeds to the deceased Vishnu Priya.
25. To sum up the circumstances in favour of the accused/appellant arc that 'Dhatura' seeds were found in full hard form in the stomach of the deceased, which contra-indicate that it could have been administered without being noticed by the deceased and that the accused/appellant went to inform about the ailment of the deceased to his inlaws. Further the adverse inference against the accused/appellant that the accused represented to Dr. Subodh Kumar Panda (P.W. 3) that the deceased suffered from hysteria is not borne out from the facts and circumstances of the case and the evidence adduced. Though the accused/appellant wrote letter :(Ex. P/1), it appears that there was some justifiable cause for it and that veiled threat as given in the letter (Ex. P/1) by itself, cannot be sufficient to hold that the accused/appellant committed murder of his wife, because such threats are occasionally given in a fit of anger, but are seldom implemented in practice.
26. Therefore, in view of the foregoing discussions, it is clear that the chain of circumstances leading to the death of Vishnu Priya, is not complete as against the accused/appellant and it cannot be said to be leaving no room for any other hypothesis except the guilt of the accused/appellant. Therefore, offences under Sections 328 and 302 of the Indian Penal Code are not made out against the accused/ appellant.
27. So far as offence punishable under Section 498A of the I.P.C. is concerned, the father of the deceased Ravishankar (P.W. 1) and uncle Bimbadhar (P.W. 2) had stated that the accused used to demand money from them. Ravishankar (P.W. 1) has stated that after selling of his field,.he has paid a sum of Rs. 1500/- to the accused/appellant, but no sale deed etc. has been produced as a proof of aforesaid averment. Bimbadhar(P.W. 2) says that his brother Ravishankar (P.W. 1) has paid about Rs. 800/- or Rs. 1200/- to the accused/appellant. The statements are clearly contradictory and inconsistent. There is no earlier report regarding the demand of money. Though Bimbadhar (P.W. 2) lodged report recorded as Mere Intimation (Ex. P/18), he did not report therein regarding the alleged demand. Though Parvati Bai (P.W. 8) and Yadav Prasad (P.W. 4) have also tried to say that the accused/appellant used to ill-treat his wife and demand for money was made, their statements are in variance with material particulars with the statements given to police as has been pointed out earlier. Hence, their statements do not appear to be reliable. The mother of the deceased, who would have been the best witness on the point, has not been examined. Therefore, the demand of money is not established. Moreover, as pointed out above, one of the bones of contentions between the parties appears to be the insistence of Ravishankar (P.W. 1) that the accused/ appellant should live with them and the accused/ appellant refused to do so. It is also clear from the statement of Bimbadhar (P.W. 2) that there was no settlement of dowry at the time of marriage. In the circumstances, cruelty to the deceased, as defined in Explanation to Section 498A of the I.P.C. is not made out beyond pale of reasonable doubt. Accordingly, the offence under Section 498A of the C.P.C. '1996 Cri. L. J./143 VII also does not stand established, as to call for convic-l tion thereunder.
28. For the foregoing reasons, appeal is allowed. The convictions and sentences, as recorded by the trial Court, are set-aside and the accused/appellant is acquitted of the charges. He is on bail, as per order of this Court. The bail bond and surety bond furnished by him shall stand discharged.