Misra, J.
1. The respondent has been acquitted of a charge under Section 302, I.P.C. The prosecution case is as follows: She was married to the deceased 3 years before. They were quarrelling at times on domestic affairs. The deceased sometimes threatened to kill the accused. Their own house was under construction. They were staying in a portion of the house of Ganeswar Patra (P.W. 5) in separate apartment. Pravakar Patra, the minor brother of the accused, aged about 10 years, was residing with them. On the night of the 11th March 1962 the accused served wet rice (Pakhal) and potato chatni to the deceased. The chatni tested bitter. The deceased took only 2 to 3 mouthful of rice with the chatni and, on suspicion of poisoning, did not take further food. The: residue of the chatni was taken by him on a Sal leaf to his uncle Kanhei Patra (P. W. 7) and P. W. 5, the father of P. W. 7. He complained to them that the accused served the chatni which tasted bitter. The residue of the chatni was kept in the custody of P. W. 7.
Next morning, the accused went away to her father's village at Amarda in the company of her brother. The deceased followed his wife sometime after and reached Amarda at about 11 A. M. He complained to his father-in-law Bishnu Patra (P.W. 3) and P.W. 2 Suresh Patra and P.W. 10 Ratho Patra, neighbours of P.W. 3, that the accused served him chatni previous night which tasted bitter. On the 12th March 1962 the deceased had vomiting. P. W. 3 approached the doctor (P.W. 1) of Amarda Dispensary, which is at a distance of half a mile, to come to his house for the treatment of his son-in-law. P.W. 1 did not come and advised P. W. 3 to bring his son-in-law to the dispensary. In the morning of 13th March 1962 P.W. 3 took the deceased to the Amarda dispensary. The deceased narrated to P. W. 1 in the presence of others the same story as to how his wife served him with chatni which tasted bitter, P.W. 1 noted the statement in the outdoor Patient Register (Ex. 6), did the stomach washing and gave some preliminary treatment and sent a report (Ex. 1) to the Muruda P.S. On the advice of P.W. 1 the deceased was taken to the Muruda hospital for better treatment where he died on 14-3-62 at 5.30 P.M. The report sent by P.W. 1 to Muruda P.S. on 13-3-62 at 8 P.M. was treated as F. I. R. (Ex. 1) under Section 328 I.P.C.
To the junior S.I., Ganesh Panda (since dead), who was in charge of investigation, P.W. 7 handed over the chatni on 14-3-62. He also seized the grinding stone with pestle and some oleander seeds from the house of the deceased, The doctor P.W. 6 conducted the post-mortem examination on 15-3-62 and the viscera was preserved. The S.I. (P.W. 14) took charge of the investigation under Section 302 I.P.C. on 16-3-62. The grinding stone with pestle, the chatni, the two oleander seeds and the viscera were sent for chemical examination. On chemical test, oleander was detected in the viscera of the deceased, in the chatni and in the washing of the grinding stone.
2. In. her examination under Section 342 Cr.P. C. the respondent took the defence that she did not serve food to her husband on the night of 11-3-1962, did not mix oleander seeds in the chatni and that her husband had taken liquor and quarreled with her as there was delay in cooking meals. He threatened her that he would take poison and falsely implicate her. So out of fear, she left the house in the morning. She was pulling on well with her husband who did not beat her at any time. She denied the fact that her husband had vomitting.
3. The learned Sessions Judge gave benefit of doubt and acquitted the respondent on the following grounds:
(i) P.W. 12 did not state that he saw the accused colleting oleander seeds under the oleander tree.
(ii) Though the grinding stone and washing thereof contained oleander poison, there is no satisfactory evidence that the grinding stone was seized from the exclusive possession of the accused.
(iii) The chatni was handed over by the deceased to P. W. 7 on the night of 11-3-62. It was seized from his custody on 14-3-62 at Muruda hospital after the death of Duriyodhan (the deceased). There is no explanation as to why it was not handed over to the police or the doctor earlier and as to why the deceased left it with P.W. 7 without carrying it with him.
(iv) The deceased was brought to P.W. 1 in the company of two constables on 13-3-1962 at 9.30 A. M. it shows that the police had earlier information about the case of poisoning, and if the deceased had disclosed to the Police or the Doctor that the remaining portion of the Chatni was with P.W. 7, it could have been seized earlier.
(v) There is no evidence that the chatni was kept in safe custody by the police from 14-3-1962, when if v/as seized, till 184-62, when it was despatched to the Chemical Examiner. The seizure of the chatni and the detection of poison in it cannot be treated as an incriminating circumstance by the prosecution.
(vi) The non-examination of Pravakar Patra, the brother of the accused and the only inmate of the house of the accused and the deceased who was examined by the police and whose statement was recorded by a Magistrate under Section 164, Cr. P. C.
(vii) The conduct of the deceased after the poisoning spoke volumes against him inasmuch as he did not approach the doctor for treatment but was more anxious to complain against his wife having administered poison with the chatni which tasted bitter.
(viii) The conduct of the accused in running away to her father's house after the deceased suspected poisoning and made complaints to P. Ws. 5 and 7 is consistent with her explanation on 11-3-62 her husband took liquor and quarrelled with her for the delay in cooking and threatened her that he would take poison and falsely implicate her.
(ix) Though the deceased complained in the presence of P. Ws. 2, 3 and 10 that the accused served chatni which tasted bitter, no attempt was made to verify this fact from the accused by confronting her with this allegation in the presence of the deceased.
(x) Though oleander has been detected in the viscera, the presence of alcohol in it has not been explained by the prosecution.
(xi) In the absence of any evidence about the quantum of oleander in the viscera, it is not possible to hold that the accused had the intention to kill.
4. Ordinarily in a case of murder by poisoning, theprosecution must establish three propositions (i) thatdeath took place by poisoning; (ii) that the accused hadthe poison in his possession and (iii) that the accused hadan opportunity to administer poison to the deceased.Though these three propositions are always to be bornein mind, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning, depends on the facts of each case. If the circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that the death Was the result of the administration of poison.
(though not detected), and that the poison must have beenadministered by the accused, conviction can rest on such circumstantial evidence alone.
The aforesaid three propositions are not the invariable criteria of proof by direct evidence. Reasons are apparent. If after poisoning of the victim his body is destroyed, the first proposition is incapable of proof except by circumstantial evidence. Similarly if the accused gave the victim something to eat and the victim died immediately on the food being taken with symptoms of poisoning, and poison in fact was found in the viscera, the necessity of proving the second ingredient would fall as a matter of reasonable inference from the circumstance that the accused gave the victim something to eat. The element that the accused was in possession of poison need net be separately proved in such a case (see Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 500 paras 58 and 59; and Mohan v. State of Uttar Pradesh, AIR 1960 SC 659). In the former case, even poison could not be traced in the viscera by chemical and post-mortem examination. Yet the majority of the Judges concluded that the circumstantial evidence established the administration of poison by the accused.
The quantum of circumstantial evidence must be such as to lead to the inference that the guilt of the accused is established beyond reasonable doubt and that the circumstances are wholly incompatible with the innocence of the accused.
5. We would exclude from consideration the statement of P.W. 12 that he found the accused collecting something under an oleander tree on a Sunday afternoon as he saw her collecting cowdung cakes from a distance of about 100 yards. We also do not attach much importance to the recovery of the oleander seeds under seizure list (Ext. 7) from the cowdung heap of P.W. 5. The place is accessible to external agency and was not in exclusive possession of the accused and the recovery cannot be treated as an incriminating circumstance. For the same reasons we cannot treat the recovery of the grinding stone, the pestle and the washings thereof as an incriminating piece of evidence. The grinding stone and the pestle were recovered under the seizure list Ex. 8 from the verandah of P. W. 5. There is no evidence that those were in the exclusive use of the accused.
6. P.Ws. 5 and 7 have stated that soon after the food was served to the deceased, he came and complained that chatni testing bitter was served to him by the accused and that the remaining portion of the chatni was kept by P.W. 7. Nothing has been put in cross-examination to both the witnesses as to why they should falsely depose against the accused. P.W. 5 is an old man of 70 years. It was elicited from him in cross-examination :
'Duryodhan had no other relation except his wife. After Durjyodhna's death the lands have been possessed by my son.'
On this basis, Mr. Ray contended that if the accused would be convicted of murder of the deceased, she would be disentitled to inheritance of the property of her husband and P. Ws. 5 and 7 would inherit the property to her exclusion. The answer in the cross-examination furnishes no basis to such a contention. We, accept the evidence of P.Ws. 5 and 7 as reliable.
The same story was repeated by the deceased before P. Ws. 2, 3 and 10 at Amarda. P. W. 2 stated-
'Duryodhan told in my presence that he was served with rice and potato chatni by his wife and as result of that he was vomiting.'
Even the father of the accused (P.W. 3) corroborated P. W. 2 fully in material particulars. His statements were to the effect-
'We saw him vomiting. Duriyodhan told me at that time that the accused served him with rice and potato chatni on the previous night and that the chatni tasted bitter. He also told me that he took some chatni and as it tasted bitter, he kept the rest at his house.'
It may be clarified that he was residing in a portion of the house of P. Ws. 5 and 7 in a separate apartment. This statement was made on 12th, two days before Duriyodhan died. We are unable to appreciate the criticism of the learned Session Judge that this statement has no value as the accused was not confronted with it. On confronting, the accused would have either admitted or denied it. If she would have admitted it, this would have been a piece of extra-judicial admission or confession. Had she denied it, the statement of the deceased would not dose any value as implicating the accused.
The same story was repeated by the deceased before the doctor (P. W. 1) at Amarda dispensary in the morning of 13-3-1962 in the presence of P.Ws. 2 and 3. P.W. 1 noted this statement in Ex. 6. No cross-examination has been made of the doctor, who is a reliable and independent witness, as to if such a statement was made. On the aforesaid evidence, the conclusion is irresistible that after the service of chatni tasting bitter, the deceased complained against his wife to P.Ws. 5 and 7 on the 11th night, to P.Ws. 2, 3 and 10 on the 12th and to P.W. 1 on the 13th. The story narrated is identically the same at all the three stages. Though no statement was mad3 by the deceased to P. W. 1 that the residual portion of the chatni was kept with P.W. 7, he made such a statement on the 12th to P. W. 3. The learned Sessions Judge over-looked this statement and belittled its value by an argument that no such statement was made either to the doctor or to the Police.
The legal implication of the aforesaid fact of the narration of the story by the deceased consistently at three stages was not appreciated by the learned Judge.
The statement made by the deceased is one relating to the cause of his death and to the circumstances of the transaction which resulted in his death. The statement is relevant under Section 32(1) of the Evidence Act as a dying declaration even though at the time when the statement was made, the deceased might not be under expectation of death.
7. It is now well settled that it is neither a rule of law nor of prudence that a dying declaration requires corroboration before a conviction can be based thereon. The necessity for corroboration in certain cases arises not from any inherent weakness of a dying declaration as a piece of evidence but from the fact that it was tainted and not free from infirmity. Great value is generally attached to a statement which has been consistent throughout when the deceased had several opportunities of making a dying declaration, and the statement was made at the earliest opportunity and was not the result of tutoring by the interested parties.
In this case, though there is some evidence that the marital relationship between the deceased and the accused was not all smooth, there is no evidence that it was of inimical type. The accused herself stated that she was all along pulling on well with her husband. Her father (P. W. 3) stated that accused and the deceased were quarrelling at times on domestic affairs and at times Duriyodhan was threatening to kill the accused. This evidence only shows that the husband and the wife were having the usual differences arising in married life and in conducting family affairs and there was no enmity between the two. In such a case the dying declaration of the deceased cannot be said to have arisen from a tainted source so as to require corroboration. It can itself constitute the basis for conviction provided the Court comes to the conclusion that the deceased died as a result of some poison administered to him by the accused in the chatni and version given by the deceased, was a truthful one. The consistent version of the deceased, made at the earliest opportunity, is that the accused gave chatni which tasted bitter whereafter he had vomiting on the next day.
8. The report of the Chemical Examiner (Ex. 4) is that the viscera and the chatni contained oleander poison. The only point for consideration in this regard is whether both were properly preserved. The doctor (P. W. 6) preserved the viscera and sent it for chemical examination. It appears from Ex. 4 that alcohol as well as oleander were detected in the viscera of the deceased. Mr. Ray relied on Section 510, Cr. P. C. and contended that Ex. 4 was not admissible. In evidence as it was not duly submitted for examination in the course of any proceeding under the Code. For proper appreciation the section may be quoted-
'510. Report of chemical Examiner.--(1) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an officer of the Mint upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any enquiry, trial, or other proceeding under this Code.
2. The Court may, if it thinks fit, and shall on the application of the prosecution or the accused, summon and examine any such person as to the subject-matter of his report.'
Ex. 4 shows that the doctor (P. W. 6) despatched the viscera for examination on 4-5-62. Mr. Ray argued that the viscera was not duly submitted in the course of any proceeding under the Code The F. I. R. was lodged on 13.3.1962 and the investigation started thereafter. There is absolutely no basis for the suggestion that the viscera was not submitted in the course of proceeding. Much emphasis was laid on the words 'duly submitted'. Mr. Ray contended that the viscera should have been sent by I. O. and not by the doctor [P. W. 6) to the Chemical Examiner. The word 'duly' means 'properly'. This word only emphasises the fact that proof of identity of the article sent to the Chemical Examiner with articles examined by him must be established. There is no substance in this contention. Ex. 4 merely states that oleander was detected in the viscera. No reasons have been given as to how the Chemical Examiner came to this conclusion. By Central Act 26 of 1955, Sub-section (2) has been inserted to Section 510. It was open to the accused to summon and examine the Chemical Examiner. There is, therefore, no escape from the conclusion that the viscera was duly submitted for chemical examination in the course of investigation and Ex. 4 is admissible in evidence without the examination of the Chemical Examiner.
With regard to the chatni, the learned Sessions Judge commented that there was no evidence that the chatni was kept In safe custody by the Police from 14-3-62, when it was seized, till 18-4-62, when it was despatched to the Chemical Examiner. No question has been put to the I. O. to suggest that the chatni was not kept in safe and proper custody as required under the rules. In the absence of such a question, the necessary inference arises that it was kept in safe and proper custody in regular course of business as required under the rules.
Mr. Ray did not emphasise upon this part of the argument but contended that there was no evidence that the chatni was kept in safe custody by P. W. 7 from 11-3-62 to 14-3-62 when he handed it over to the police. P. W. 7's evidence is that he kept the chatni in his own house. No question has been put to him that the Chatni was kept at such a place that it was accessible to external agency. There is, therefore, no factual basis for an argument that the chatni was not kept in safe custody. Much significance cannot also be attached to the fact that P. W. 7 did not produce the chatni either before the doctor or before the I. O. earlier. No question in his cross-examination was put to him as to why he did not produce it earlier. It might be that much seriousness was not attached to it until the condition of the deceased became worse and there was expectation of his death. Even P. W. 3 admitted that the deceased told him that he had kept the residue of the chatni in his own house which is the house of P.W. 7.
We are, therefore, satisfied that there is absolutelyno room for presentation of an argument that the chatniwas accessible to external agency so that oleander couldbe introduced into it while it was in the custody of P.W.7 or in the custody of the police.
The report of the chemical examiner that oleander was found in the chatni as well as in the viscera is a sufficient corroboration of the statement of the deceased before P. Ws. 5 and 7, P. Ws. 2, 3 and 10 and P. W. 1.
9. The doctor (P.W. 6) who conducted the postmortem examination, reserved his opinion as to the cause of death until receipt of the report (Ex. 4). He gave a positive opinion that the cause of death was due to poisoning. He found the brain and the membrane congested. The right side of the heart was full with dark thick blood and the left side was empty. The liver and the spleen were also congested. The gall bladder was full. He also asserted that his post-mortem findings lead to the conclusion that death was the result of poisoning. Thus the doctor categorically asserted that the death was due to poisoning and his opinion was based on his post-mortem findings as well as on the report of the Chemical Examiner (Ex. 4).
Cross-examination of this witness was declined by the defence. Though alcohol was found in the viscera, not a single question was suggested that death was due to alcohol poisoning or that the post-mortem symptoms were consistent with the alcohol poisoning. Neither a question was put to the doctor that in the absence of a report by the Chemical Examiner regarding the quantity of oleander administered, no opinion could be given that death was due to poisoning by oleander. In the absence of such cross-examination and in the face of the unchallenged testimony of the doctor, the learned Sessions Judge was not justified in indulging in speculative argument on the basis of the existence of alcohol in the viscera and in the absence of a report regarding the quantify of the oleander, in this connection, it is instructs to refer to para 11 in AIR 1980 SC 659 where their Lordships observed :
'It is enough for us to say in regard to this contention that no question had been put to any witness to elicit what symptoms would appear in a case of arsenic poisoning. The medical evidence is clear that death was due to arsenic poisoning.'
10. The conduct of the accused in running away to her father's house after the deceased suspected poisoning is somewhat telling. No wife would leave the husband's house when the husband complains of uneasiness of body. The explanation of the accused that her husband took liquor and quarrelled with her as there was delay in cooking meals and threatened her that he would take poison and falsely implicate her is wholly fantastic. It is difficult to conceive that the husband would take poison and kill himself only to falsely implicate the wife. The explanation, which was accepted by the learned Sessions judge, does not appeal to us and we reject it as improbable and untrue.
11. The accused stated in her statement under Section 342, Cr. P. C, that she did not serve any food to the deceased that night. Apart from the fact that the deceased stated that she had served him food, which is consistent with the natural course of affairs in family life, she herself admitted at a later stage that her husband quarrelled with her as there was delay in cooking meals. This amounts to an admission that she cooked the meals but there was delay in doing it If she cooked the meals, it was she who must have served the food. We are inclined to accept the statement of the deceased made in his dying declarations at various stages as true. The accused gave false explanation purposely in order to completely negative the prosecution story that oleander was mixed in the chatni served to the deceased.
12. It is now necessary to examine a few more arguments which appealed to the learned Judge. He has attached some importance to the non-examination of Pravakar Patra, the brother of the accused, Pravakar is 10 years old and is a child witness subject to all comments made against the reliability of a child witness. His statements were recorded by the Police in the course of investigation and by a Magistrate under Section 164, Cr. P. C. None of the statements are substantive evidence and are not admissible in evidence except for contradiction or corroboration as prescribed in law. There was no material before the learned Sessions Judge to draw adverse inference against the prosecution from the non-examination of Pravakar. If Pravakar supported the defence version, it was open to the accused to have examined him as a witness. We attach no importance to his non-examination.
The learned Sessions Judge also remarked to the effect;
'It would thus appear that the deceased was mere anxious to complain against his wife than to take care of his own life. These circumstances speak volumes against the conduct.'
We are not inclined to agree with this observation. Immediately after service of food, the deceased made the complaint to P. Ws. 5 and 7 and that was absolutely natural. Next morning he followed his wife to his father-in-law's house a little later. After the entire story was narrated to his father-in-law P.W. 3, the latter went to Amarda dispensary, which is at a distance of half a mile, to call the doctor to attend to his son-in-law. The conduct of the deceased on that day was nothing unnatural and deserves no comment. When the doctor refused to come and directed P.W. 3 to bring the deceased to the hospital, the deceased was taken to the, hospital next morning and was given all possible treatment in that dispensary and later on in Muruda hospital. The learned Sessions Judge therefore exaggerated the state of events by commenting that the deceased was more anxious to complain against his wife than to save himself, it is not unlikely that till 12th afternoon the deceased might net have expected that he was going to die as a result of taking the chatni only twice or thrice.
13. Mr. Ray seriously contended that in this case there was defect in the investigation by the police. Some emphasis was laid on the fact that on 13-3-62 the deceased was accompanied by a police constable, Harihar Mohanty, to the Amarda dispensary. This contention is based on the statement of P.W. 1 to the. effect:
'One patient named Duriyodhan Patra of village Mohanpur was brought to me on that day by Harihar Mohanty, Constable No. 93 and others.'
It is contended that the police had earlier information about the factum of poisoning of the deceased as a result of which Constable Harihar Mohanty was deputed to accompany the deceased to Amarda dispensary and that Station Diary entry and the F. I. R. in this regard have been suppressed and the present F. I. R. (Ext. 1) is not the true F.I.R. It is true that the prosecution has net explained how a police constable accompanied the deceased on the 13th morning. No question has been put to the I.O. (P. W. 14) as to how a constable accompanied the deceased and that there was a previous Station Diary entry of F. I. R. to that effect. In the absence of such a question, it would be hazardous to go to the length of holding that there was another F. I. R. which has been suppressed. It might be that the Police Constable accompanied the deceased on account of personal acquaintance. In the absence of clarification, no adverse Inference can be drawn.
Some comments have been made as to the dilatory manner in which the viscera and the chatni were sent for chemical examination. The chatni was seized on 14-3-62 but was despatched for chemical examination on 18-4-62. Similarly the viscera was preserved on 15-3-62 but was despatched for chemical examination on 4-5-62. The delay by itself has no bearing on the merits of the case as the charge sheet was submitted on 20-10-62. If however, the defence wanted to draw any adverse inference, specific questions should have been put to the I. O. as to why there was delay in the despatch. We are not satisfied that there was any defect in the investigation affecting the merits of the case.
14. To summarise, there is unimpeachable evidence that the viscera and the chatni contained oleander poison. The unchallenged testimony of the doctor (P. W. 6) is that death was due to oleander poisoning. The statements made by the deceased at three) different stages that the Chatni, served to him by the accused, tasted bitter received full corroboration from the findings on Chemical tests and the medical opinion. The chain of circumstantial evidence is complete and no link is missing to come to a conclusion beyond reasonable doubt that the deceased died of poisoning arising out of the service of the chatni by the accused. The conduct pf the accused in running away from the house next morning and her false explanation that she did not serve any food to her husband are consistent with the prosecution story.
15. We are aware of our responsibility in setting aside the order of acquittal. The presumption of innocence of the accused has been reinforced by the fectum of acquittal. The Court has, however, plenary powers to go through the evidence and come to its own conclusion about the truth of the matter. After giving our anxious consideration to the materials on record and after closely examining the various reasons given by the learned Sessions Judge, we are satisfied that the view taken by the learned Sessions Judge is clearly an unreasonable one and cannot be sustained.
16. In the result, we set aside the order of acquittal and convict the respondent Kaushalya Dei under Section 302, Indian Penal Code, and sentence her to imprisonment for life. The extreme penalty of death is not called for in this case as her mental equilibrium must have been distracted on account of family squabbles that existed between her and her husband. The appeal is accordingly allowed.
Barman, J.
17. I agree.