D.B. Lal, J.
1. This is an appeal by Om Prakash Kumar, Sanitary Inspector, Cantonment Board, Kasauli against the judgment dated 30th January, 1971 of the Sessions Judge, Simla, whereby he has been convicted for the offence under Section 302, Indian Penal Code and has been sentenced to imprisonment for life. The prosecution case was that the accused Om Prakash Kumar was married to the deceased Janak Kumari in February, 1968. Thereafter on 22nd September, 1968 he got his posting as Sanitary Inspector in the Cantonment Board of Kasauli. In January, 1970 Janak Kumari had pregnancy of nearly full term. The accused took leave from 27th January, 1970 to 1st February, 1970, as he had taken his wife to his own village Kharwan. He fell sick there and the couple decided to return back to Kasauli where they reached on 3rd February, 1970.
On 4th February, 1970 the accused found Janak Kumari suffering from cough and cold and he went to Dr. Bhatley who was in sub-charge of the Cantonment General Hospital, Kasauli, and obtained from him medicines which included cough mixture, some tablets and a powder. The accused returned to his house at about 9-15 P.M. on 4th February, 1970 and both husband and wife took their dinner. They had prepared tea and had taken that tea as the last thing in the night. Thereafter the accused slept in the same room.
On the morning of 5th February, 1970 the accused woke up at about 7 A.M. and attempted to wake up his wife, but she did not respond. The accused suspected that his wife was seriously sick and he went running to Dr. Bhatley who came to the spot along with Mani Ram Compounder. The doctor examined the lady and found her dead. The cot of the lady was lying near the fireplace and her head was at about 2 feet from the fire which was almost extinguished by that time. Dr. Bhatley found that the face, lips and the nails of the deceased were blue and cold. Froth mixed with blood was coming out of her mouth and nostrils. S. P. Nijhawan, Executive Officer, Cantonment Board was informed about the death of Janak Kumari. He informed Col. Rao, Officer Commanding, Military Hospital, Kasauli, who in return informed Maj. Parmar another doctor attached to Military Hospital, Kasauli.
Maj. Parmar as well as Nijhawan came to the house of the accused. One Dr. Bhalla who was Vice-President of the Cantonment Board also came to the spot. Inside the room, two tumblers - one empty and the other half-filled with prepared tea-were found on the mantle piece. Similarly the medicines prescribed by Dr. Bhatley were also found lying there. Nijhawan informed the Police Station on telephone about the death of Janak Kumari. Malik S.H.O., Dharampur thereafter reached the spot at about 10-15 A.M.
2. According to prosecution, Dr. Bhatley had suspected that death was not due to coal gas poisoning. He was, therefore, not prepared to give a certificate that it was a case of natural death for which no one could be held responsible. Some consultation was made by Malik with the S.D.O. Kandaghat. All others who were present including the S. H. O. Malik, were, however, of the opinion that the death was due to coal gas poisoning. Still by way of abundant caution and due to the suspicion expressed by Dr. Bhatley, post-mortem examination of the body was considered proper. Dr. Jaggi of Dharampur Primary Health Centre was asked to come and perform the post-mortem examination at Kasauli.
At 4-30 P.M. on the very same day the post-mortem examination was done, and the internal examination disclosed that trachea-mucous and membrane of the trachea were bright red covered with bloody froth and congested. The right lung was also found congested with bright red colour. The liver, spleen and kidneys were also found congested with bright red colour. Dr. Jaggi opined that the death was due to asphyxia caused by coal gas poisoning, but he deferred his final opinion because he intended to send the stomach contents as well as the viscera for chemical examination. Accordingly Dr. Jaggi enclosed the stomach contents in one bottle and viscera which consisted of the liver, spleen and kidney in the second bottle. Thereafter the body was given for cremation.
3. The report of the Chemical Examiner which was received on 1st or 2nd June, 1970, to the surprise of all others, indicated, that 30 miligram of strychnine poison and alcohol was detected in the first bottle which contained these stomach contents. However, in the second bottle strychnine poison was not detected, but alcohol was found.
4. Upon receipt of the report of the Chemical Examiner, a case under Section 302, I. P. Code was registered against the accused Om Prakash Kumar at the Police Station, Kasauli and he was arrested on 18th June, 1970.
5. After the usual committal proceedings, the accused stood trial before the Sessions Judge of Simla, and the prosecution produced 28 witnesses including Ma.i. Parmar (P.W. 1), Dr. Bhatley (P.W. 2), Dr. Bhalla (P.W. 16), Dr. Jaggi (P.W, 21), and Nijhawan (P.W. 26).
6. The defence of the accused . was that he did not commit the murder of his wife and that he could not give any explanation as to how strychnine poisoning with alcohol was discovered inside the body of the deceased. The prosecution had suggested that the accused was in possession of 5 strychnine tablets on 1st November, 1968, as he got issued those tablets for killing stray dogs. The accused in reply stated that he had utilised those 5 strychnine tablets in killing stray dogs on 1st November, 1968. In this manner, the accused was not possessed of any strychnine tablets. He had deep love for his wife and the family was eagerly expecting the birth of child. In fact, he had taken his wife to his village for delivery and from there he wanted to take her to Delhi for better medical treatment. According to accused, his wife had aborted at the previous occasion at Kharwan because of lack of proper medical attendance. That is why the accused wanted to take her to Delhi for better treatment. He fell sick at Kharwan and proposed that his father would take his wife to Delhi. But the lady herself insisted that she would come back to Kasauli as the accused was sick and needed her assistance. So the husband and wife had come back to Kasauli and intended to get the delivery effected at Kasauli hospital. It was a very cold night and the wife had insisted for coal fire which the accused had lit. The cot of his wife was laid very near the fireplace and her head was at about 2 feet from the fireplace.
In the night, the accused had got up at about 1 A.M. as he wanted to urinate and at that time he himself had felt a little giddiness. He never suspected that, the giddiness was due to coal gas poisoning. He opened the door towards his side. His head was away from the fireplace and near the door. He did not disturb his wife whom he thought that she was sleeping. That is the reason why the accused as well as others including Dr. Bhatley rightly thought that the lady must have died due to coal gas poisoning. It was so found by Dr. Jaggi in his. post-mortem report. It was, therefore, pleaded on behalf of the accused that the circumstantial evidence sought to be adduced against him was not conclusive and he could not be held guilty of the offence of murder.
7. The accused produced four witnesses in defence, of whom two were Police Officers and the remaining two were his wife's own father Ram Nath (D.W. 4) and one expert witness Dr. Har-bans Singh Narang (D.W. 3). The doctor examined by the accused no doubt stated that the death was due to coal gas poisoning and not due to strychnine poisoning.
8. The prosecution case found favour with the learned Sessions Judge and he convicted and sentenced the accused in the manner stated above. The accused has felt aggrieved of the decision and has preferred this appeal.
9. The case is entirely based on circumstantial evidence, and in cases based on such evidence, the legal requirement is that circumstantial evidence should be so strong as to point unmistakably to the guilt of the accused. In order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The Court's decision should not, however, rest upon suspicion and that the gravest suspicion against the accused will not suffice to convict him of the crime unless evidence establishes it beyond doubt, It would, therefore, be necessary to ransack the circumstantial evidence produced in the case in order to know if it withstands the test laid down above. After closely examining all the evidence in this case, we are convinced that there was nothing beyond grave suspicion against the accused and to our mind that was not sufficient to convict him for the crime.
10. The entire circumstantial evidence could be classified under three heads : (i) motive, (ii) conduct of the accused, and (iii) medical evidence. We shall now proceed to examine such evidence.
11. We propose to take up first the evidence regarding conduct of the accused, as the learned Advocate-General has laid more emphasis on this aspect of the case. It was argued that the accused was alone with the deceased on the night between 4th and 5th February, 1970. The accused had come to the house at about 9.15 P. M. and they had taken their food together. Thereafter the lady prepared the tea and both of them took that tea a remnant of which was found in one of the tumblers. In the normal course of things, the husband-accused must have gone to sleep at about 10.30 P. M. or H P. M. The duration of time between the post-mortem examination and the death was about sixteen hours. It means the death took place between 12-30 A.M. and 7 A.M., as the post-mortem examination was performed at about 4-30 P.M. on 5th February, 1970. During this period, in the normal course of things, the husband must be sleeping. Therefore, this fact alone that he was found sleeping inside the room (and that was very natural, he being the husband), would not go to implicate him. The investigating agency never cared to put to chemical test the food which they had jointly eaten or the tea which was prepared by the wife and drunk by her.
Similarly no sensible effort was made to put to test the medicines that were found lying on the mantle piece. It was stated by Sukhminder Kaur (P.W. 13) who was Auxiliary Nurse attached to the Hospital, that she tasted the medicine but had remained unaffected. This part of her statement could not be believed. No one would have risked his or her life by tasting the medicines which were found lying on the mantle piece. This appears to be purely a fabricated piece of evidence. The fact of the matter is that the medicines were not put to any test and the clinic of Dr. Bhatley (P.W. 2) definitely possessed poison and it was in his own interest as well as in the interest of Mani Ram Compounder (P.W. 4) to have come and deposed that the medicines did not contain poison even by mistake and that the death was due to strychnine poison administered by the accused.
12. If it is considered that the accused Was fast asleep at 12-30 A.M. and even afterwards, how could he explain in what circumstances strychnine poison found access to the body of his wife. The learned Counsel for the appellant submitted that in a fit causing some emotional upset, she herself might have taken the poison. He also argued that the medicines might have contained the poison which was put in them under some mistake. At any rate the whole thing has remained a mystery. The accused : could not be convicted simply because he had slept in that room, especially when no other evidence is to be found connecting him with the crime.
13. The learned trial Judge has. emphasised the circumstance of the accused having got up at about 1 A.M. for urinating. According to him, when he felt giddiness he should have woke up his wife. To us, it appears that the conduct of the accused was very natural. He never suspected that giddiness was due to coal gas poisoning. As such there was no urgency to wake up the wife who was in a delicate state of health. The accused has given his reasons for this and there is nothing to suggest that he has concocted false reasons. Therefore, no suspicion is aroused because the accused woke up at 1 A.M., or because he did not make enquiries regarding the safety of his wife at that time.
14. The learned trial Judge and to that extent the learned Advocate-General have made much capital out of a suspicious statement, that has emanated from Dr. Bhatley (P.W. 2) to the effect that the accused-appellant had stated before him that he woke up at 5 A.M. and prepared tea for his wife, but the latter did not take the tea as she was not feeling well. This statement, if correct, no doubt indicated that the lady was alive uptil 5 A.M. and died within two hours thereafter in the very presence of the accused, leading thereby to the-inference that the accused did riot care for her life and waited for two hours so that she was finished to death.
The learned trial Judge and the learned Advocate-General have failed to take note of the greatest infirmity to this statement by Dr. Bhatley (P.W. 2) inasmuch as, that the accused has denied it and Dr. Bhatley (P.W. 2) himself never disclosed it before the Police or before anyone else at any time prior to his statement in the Court of Sessions. When Dr. Bhatley (P.W. 2), for reasons best : known to him, never cared to tell that statement to the Police or to the committing Magistrate or to anyone present on the spot, it is highly suspicious if the statement was really made by the appellant. Dr. Bhatley (P.W. 2) was asked to give his reason for not disclosing the statement and he could not satisfactorily explain why he did not disclose that statement. He gave two statements before the Police and did not give any satisfactory reason why he did not include this important fact in those statements. According to him, he forgot to state this fact before the committing Magistrate although he had already become suspicious when the accused stated before him that he woke up at five in the morning and prepared tea for his wife who refused to take tea as she was not feeling well. According to Dr. Bhatley (P.W. 2), after he came out of the Court Boom of the committing Magistrate he did consider that he had forgotten to mention this important fact in the case.
Similarly Dr. Bhatley (P.W. 2) stated that he did not tell any other person about this fact that the accused had found his wife alive at 5 A.M. He said that the 'atmosphere was such' that he could not tell the Police about this fact and as the learned Counsel for the appellant pointed out, the witness moved with the atmosphere and was prepared to hide important facts to suit his convenience. No reliance could be placed upon such a witness. Quite apart, it is rather very improbable that the appellant would have risen at 5 A.M. on a very cold day of February to prepare tea for himself and for his wife. That is not the usual hour for anyone to get up unless he has some urgent business.
15. It is evident that Sukhminder Kaur (P.W. 13) was made to taste the medicines, because the investigating agency had the suspicion that the medicines might not have contained the poison. That suspicion harboured by the -police must have put to guard Dr. Bhatley (P.W. 2) and his Compounder Mani Ram (P.W. 4). They were rather eager to remove the doubt that under some bona fide mistake, strychnine poison was mixed up in the medicines. This would explain the subsequent conduct of Dr. Bhatley and his Compounder. That is why for the first time before the Court of Session, Dr. Bhatley divulged the story that the accused had prepared tea at 5 A.M. on that night and had asked his wife to take that tea and she replied that she was unwell and would not take the tea. The effort was to show that the deceased was alive upto 5 A.M. and she died between 5 A.M. and 7 A.M. and probably the accused administered the poison during this period. It is, therefore, extremely doubtful if the appellant at all stated before Dr. Bhatley (P.W. 2) that he found his wife alive at 5 A.M. on that day. Therefore, this circumstance was not even proved by the prosecution and could not influence the decision.
16. It was then argued that the head of the deceased was found covered with a quilt when Dr. Bhatley (P.W. 2) entered the room, and it was suggested that the appellant had covered the head which he could not otherwise have done if the lady were alive. The appellant has given his reason for covering the head. His wife used to sleep by covering her head and he thought that she might not catch cold and so he did not leave the head uncovered while he went running to Dr. Bhatley (P.W. 2). I do not think any importance can be attached to this covering of the head of the deceased by the appellant.
17. The learned trial Judge has stressed that the appellant concocted the theory of coal gas poisoning and in fact diverted the attention of everybody who was present there. On the contrary, we find from evidence that Dr. Bhatley (P.W. 2) himself initiated the theory regarding death by coal gas poisoning. We may look to the statement of Dr. Bhalla (P.W. 16) and he stated that he had enquired from Dr. Bhatley who told him that he had examined the dead body and had reached the conclusion that death was due to coal gas poisoning. Dr. Bhatley, according to the witness, further suspected that the death might not be due to electric shock, as a bed-switch was lying by the side of the cot of the deceased. Dr. Bhalla further stated that Dr. Bhatley had insisted for post-mortem examination, not because he suspected that the death was due to any other cause but because in the 'medical book' it was written that a body of a person who has died of coal gas poison should be subjected to a post-mortem examination.
The prosecution cannot do away with the statement of Dr. Bhalla (P.W. 16) who was very much present at the spot and he admittedly had a close talk with Dr. Bhatley (P.W. 2). Therefore, it would not be correct to say that the accused had invented the story about coal gas poisoning. In fact, Dr. Bhatley (P.W. 2), Dr. Parmar (P.W. 1), Dr. Bhalla (P.W. 16), Mani Ram Compounder (P.W. 4), and all others present had suspected that the death was due to coal gas poisoning. In fact that was the medical finding also up-till the report of the Chemical Examiner was received. Dr. Jaggi (P.W. 21) in his post-mortem report definitely wrote down that in his opinion the death was due to asphyxia caused by the 'smoke' - meaning thereby coal gas poisoning. However, he deferred his opinion up-till the receipt of a report from the Chemical Examiner. The basis for this opinion was the bright red colour detected in the larynx, trachea, right lung, left lung, liver, spleen and kidneys. That was definitely a symptom leading to the inference that death was due to coal gas poisoning.
Dr. Jaggi (P. W. 21) further stated that he did not suspect that the death was due to poison. He suspected that the death was due to coal gas poisoning and therefore he added only common salt solution to preserve the viscera. Dr, Jaggi (P.W. 21) also stated that if strychning had not been found in the viscera the would have stuck to the opinion that the death was due to coal gas poisoning. It is significant that in his final opinion which he gave after receiving the report of the Chemical Examiner, Dr, Jaggi could only state that the death was due to 'the combined effect' of coal gas and strychnine poison. At any rate, there is ample evidence to. suggest that the appellant did not concoct a false plea, but followed the exact line of thought suggested by others that the death was natural and was due to coal gas poison. It would definitely be wrong to state that the accused had concocted any false defence at that time.
18. Another circumstance that has been relied upon relates to a presumed behaviour of the deceased who was made subject to strychnine poison. It was stated that she must have shrieked and body spasm must have occurred, with the result that the appellant who was sleeping nearby would have been aroused. For this, the answer is given by Dr. Jaggi (P.W. 21) and Dr. S. M. L. Grover (P.W. 25) another expert witness. Both these doctors have stated that strychnine poison was not found in the viscera, meaning thereby that either no absorption of poison took place in the viscera or so little absorption had taken place that the poison had oxidised. Strychnine poison was not found in the viscera and in the normal course of things, death by strychnine poison would have taken place as a result of absorption for which evidence was missing. According to Dr. Grover (P.W. 25), an immediate spasm leading to the contraction of the respiratory muscles might have taken place so that the poison could not reach the viscera. The breathing must have stopped and the person had died. If that was the case, repeated shrieks or spasms in the body must not have been there. The appellant thus could not be aroused from his sleep. The body itself was found in a straight position and not in the shape of an arch so that spasm could be inferred. Normally brain and spinal cord are affected due to strychnine, but in this case these organs were found nor-mal.
19. No book on medicines has revealed, what would be the symptoms of strychnine, liquor, coal gas poison, all combined, found in the body of a female having full term pregnancy. We are all at a loss to understand if at all any spasm would occur in such a case. Modi in his treatise on Medical Jurisprudence and Toxicology (Seventeenth Edition) at page 730, has reported a case of a Hindu male 22 years old, who committed suicide by taking strychnine. He was picked up from the Eden Gardens and removed to the Medical College Hospital, Calcutta. He seemed to be conscious but could not speak and died within fifteen minutes. The case is interesting from the fact that there was no history of spasms or convulsions.
20. It is, therefore, extremely doubtful if spasms and shrieks had at all taken place. It cannot be stated that the accused had any reason for being aroused in his sleep due to any such cause.
21. The prosecution also relied upon some other minor circumstances. It was stated that no elder lady was brought by the appellant from Kharwan to attend the delivery, and that the cot was purposely placed by the appellant near the fireplace and perhaps the fire itself was lit early in the morning to give the pretext of coal gas poisoning. All this finds place in the realm of imagination. There is no evidence worth the name to. indicate that the position of the cot was changed by the accused or that the fire was lighted during the early hours of that morning. No question was either put to the accused under Section 342, Criminal Procedure Code containing all this. The investigating agency did not care to examine the fireplace and hence nothing, definite could be stated. Rather the evidence is that much of the fire had extinguished and only a little warmth had remained in it. The fact that no elderly lady was brought from Kharwan is not by itself sufficient to cause any suspicion. The appellant had so many friends at Kasauli. The medical aid was available. The prosecution has never cared to ascertain from the accused or from some other person, as to whether any elderly lady was at all -available so that she could be brought to Kasauli.
22. We are, therefore, of opinion that the conduct of the accused both prior to the occurrence and after the occurrence, could not be construed so as to give out any circumstance implicating him in the crime.
23. Next we propose to deal with the medical aspect of the case. It could not be stated beyond doubt that the deceased died due to strychnine poison. Rather the medical evidence indicated that she died by the combined effect of coal gas poison and strychnine poison. Dr. Bhatley (P.W. 2) could only see the external marks on the body of the deceased and Dr. S. M. L. Grover (P.W. 25) could only base his opinion on the written reports seen by him, and as such these two doctors suffered from great handicaps as they did not get the opportunity of making an internal study of the body of the deceased. In this respect Dr. Jaggi (P.W. 21) was in a better position because he performed the postmortem examination of the dead body. His opinion could certainly be more reliable as compared to the opinion of Dr. Bhatley (P.W. 2) or Dr. S. M. L. Grover (P.W. 25). Dr. Jaggi (P.W. 21) in his written opinion definitely stated that the death was due to the combined effect of strychnine poison and coal gas poison. The symptoms indicating coal gas poison were clearly found in the internal organs of the deceased. Therefore, the effect of coal gas poison could not be obliterated and so the report of Dr. Jaggi was justified when it indicated that the death was also due to coal gas poison.
Similarly Dr. Bhatley was also of the opinion that the death was probably due to coal gas poison and he insisted for post-mortem examination partly because the practice required it and partly be cause he had some suspicion when he noticed the bluish colour of the nails, the lips and the face of the deceased. In this connection a reference need be made to the statement of Dr. Bhatley (P.W. 2) which is self-revealing. At one stage he stated that the cause of his suspicion was that it was not possible for the accused to have remained unaffected by coal gas poison when he was sleeping in the same room. He had told the S. H. O. Malik that he was not in a position to give any definite opinion. Dr. Bhatley also gave out the following:
If the opinion of Dr. Jaggi is that the death was as a result of poison as well as coal gas, then I would be inclined to agree in this opinion of Dr. Jaggi. The death by asphyxia can also be due to coal gas.... In my opinion, the death of the deceased was largely due to strychnine poisoning. It is possible that the coal gas may also be partly the cause of the death.
It is obviously correct that in the opinion of Dr. Jaggi, the death was due to the combined effect of coal gas poison and strychnine. Therefore, as per statement of Dr. Bhatley (P.W. 2), he would agree with this opinion of Dr. Jaggi. Dr. S. M. L. Grover (P.W. 25) could only state in his written opinion (Ex. PR) that the death was 'more probably due to strychnine than to smoke'. The words 'more probably' certainly do not ex-elude the probability of smoke also having played a prominent part in causing the death. However, before the Court of Session both Dr. Jaggi (P.W. 21) and Dr. Grover (P.W. 25) became definite and stated that the death was due to strychnine poison. This oral statement of the two doctors militates against their written reports.
In this connection reference need also be made to the opinion of the defence witness Dr. Harbans Singh Narang (D.W. 3). He was definitely of the opinion, that the death was due to coal gas poisoning because, according to him, absorption of strychnine poison had not taken place. At any rate, it would be difficult to conclude that the death was entirely due to strychnine poison. The effect of coal gas poison was found within the body. According to Dr. Grover (P.W. 25), the breathing had stopped within a few minutes of the taking of the poison and, therefore, strychnine could not travel up to the spleen, liver or kidney. In other words, death took place a few minutes after strychnine poison was administered. If the effect of coal gas poison was also there, the deceased must have remained subject to' coal gas poison for an hour or two at least. It appears rather mysterious, in? what circumstances strychnine was administered after lapse of an hour or two when the victim was already under the effect of coal gas poison. Everything is rendered so mysterious that nothing definite can be concluded. There is nothing strange that the head of the deceased was towards the fireplace as, according to the accused, she was feeling cold and had herself proposed for lighting the fire.
24. The learned Advocate-General stressed that the accused himself should have suffered the effect of coal gas poisoning. To this, there is an explanation. The head of the accused was towards the opposite direction from tile fireplace. He had also suffered giddiness at the dead of night, but he never suspected coal gas poisoning. He had opened the door of the room and so fresh air was available to him. No one cared to examine the fireplace or the chimney whether it could actually suck up the smoke. Therefore, the effect of coal gas poisoning could not be obliterated in the sequence of events. If the victim died of coal gas poison, there was a justification for the accused as well as others to have bona fide believed that it was so, This would explain the conduct of the accused and it cannot be argued that he had concocted a false theory of coal gas poisoning.
25. The learned Sessions Judge has-also referred to motive which the accused may have had to commit the murder. A purely casual evidence was submitted by the prosecution in proof of motive. The witnesses examined only stated that the deceased was a simple woman, that two of the daughters of one Mangal Sen a resident of Kasauli used to visit the house of the accused, and that sometimes the accused went with these daughters to their residence. This evidence by itself would not indicate any liaison between the accused and these two daughters. The witness Chiranji Lal (P.W. 5), however, stated that he had seen the accused cutting jokes with one of the daughters. This part of the statement of the witness was disbelieved by the learned Sessions Judge and, therefore, the witness does not deserve any credence in this Court as well. The other witnesses who were produced to state about these two daughters, themselves stated, that they never suspected any liaison between the accused and the two daughters.
With this meagre evidence regarding motive, the learned Sessions Judge had to infer that nothing definite could be stated as to whether the accused was interested in any of these two daughters of Mangal Sen and wanted to do away with his wife. If things had gone that much and the accused wanted to marry any of these two daughters of Mangal Sen, the thing must have been out in the public. He would not have got support from 400 persons who had assembled at the house of the accused. At least some of them would have told the Police that the accused was immoral and was more likely to have committed the murder of his wife. But all this has never happened. Therefore, there was absolutely no motive for the accused to have committed the murder of his wife. He was having very good relations with his wife. There is a letter dated 3rd February, 1970 (Ex. PV) written by the deceased to his sister and in this letter she had corroborated the statement of the accused that they had gone to village Kharwan and returned to Kasauli because the wife did not want to leave the husband alone who had fallen sick and wanted to attend upon him. The letter indicates that there was sufficient love between the deceased and the accused and there was no occasion for him to have committed her murder.
The defence witness Ram Nath (D.W. 4) is the own father of the deceased and he stated before the Court that he was willing to marry even his younger daughter to the accused. No father would marry his younger daughter to a person who is suspected of committing the murder of the elder daughter. Therefore, there was no motive for the accused to have committed the murder. This is a pre-eminent feature of the case.
26. In Udaipal Singh v. State of U.P. AIR 1972 SC 54 : 1972 Cri LJ 7, their Lordships of the Supreme Court laid down the dictum regarding motive in the following terms:
In cases where only circumstantial evidence is available at the outset one considers the motive and the opportunity to commit the crime. If the evidence shows that the accused having a strong motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation if any of the accused, exclude the reasonable possibility of any one else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused. He may be held guilty in such a case on such circumstantial evidence.
If existence of strong motive is a circumstance against the accused, its absence is equally a circumstance in his favour. This is so stated by the Supreme Court in Rajinder Kumar v. State of Punjab : 1966CriLJ960 .
27. There are some other features which also exculpate the accused-appellant. There is definite evidence to indicate that the accused was not possessed of strychnine poison. The documentary evidence consists of entries made in the 'stock register'. On 27th March, 1965, 500 tablets of strychnine were received and up-till 1-11-1968 all were consumed, except 5 tablets. The accused had taken over the charge of Sanitary Inspector in September, 1968. The accused had utilised the 5 tablets by killing stray dogs on 1-11-1968 and therefore, the stock register (Ex. P-1) indicated that no strychnine tablets were in his possession in the stock.
Shri Brown (P.W. 22) who was the predecessor of the accused, stated that no entry was made in the register for the dogs killed by administering strychnine poison, although unused strychnine tablets used to be returned and entry in that regard used to be made in the register. Shri Brown (P.W. 22) used to keep a private exercise-book wherein he entered the number of dogs killed by administering strychnine poison. Such a 'diary' was not an official record, and if the accused did not keep it, he could not be blamed for it. The accused had followed the practice adopted by Shri Brown (P.W. 22) and he also did not make any entry in the register as to the number of dogs killed by strychnine poison. In fact, the practice was to produce the tails of such dogs killed by strychnine poisoning, before the Executive Officer and after the latter was satisfied, the tails were destroyed.
Nijhawan (P.W. 26) the Executive Officer of the Cantonment Board did state in clear terms that he had physically Checked the stock register of strychnine poison tablets on 2nd November, 1969 and did not find any strychnine tablet available in the stock. On his enquiry, the accused had told him that he had used the poison tablets for killing stray dogs. Since Nijhawan did not possess the record before him, he could not state as to whether the tails were actually shown to him. However, he submitted that no action was taken against the accused which indicated that the tails must have been shown to him because otherwise he would have taken some action against him. This statement of Nijhawan (P.W. 26) definitely goes in favour of the appellant. He was not possessed of any strychnine tablet and it is too much to suggest that he had kept 5 tablets for ultimate utilisation of the same in the murder of his wife which came about after one year and three months. He could not be stated to be planning for this murder since that date. Therefore, the statement of Nijhawan (P.W. 26) completely exonerates the appellant and it could be definitely stated that he did not possess any strychnine poison. This has also been a finding of the learned Sessions Judge.
28. In this connection the learned Advocate-General pointed out that the appellant was required to keep a diary and in exhibit P-2 he did mention about the killing of stray dogs in February, 1969. These entries related to the shooting of dogs by bullets. The entries were made in the diary because cartridges were utilised and such cartridges were required to be entered in the register. That is why the shooting record was maintained. It has no relevancy for the killing of dogs by the strychnine poison. Therefore, the entries made in the daily diaries of February, 1969 would not be pertinent to this case. In his daily diaries for November, 1968, no entry was made regarding the killing of stray dogs because, as we have stated before, no such entry was made by, Brown (P.W, 22) as well. The appellant had followed the practice of Brown (P.W. 22) for writing the diaries. From December, 1968, the killing of dogs by strychnine poison was prohibited. This is so stated by Nijhawan !(P.W. 26). The oral evidence consists of a few witnesses who are supposed to have gone with the accused on two or three occasions for killing dogs and they stated that strychnine was never used. But none of these witnesses could state that he had gone with him on 1st November, 1968 and on that particular day, dogs were never killed by giving strychnine poison. Therefore, it could be safely concluded that the accused was not possessed of the poison and the learned Sessions Judge has made a pure surmise when he stated that the accused may have procured strychnine poison from somewhere.
29. The appellant had gone to Dr. Bhatley (P.W. 2) and told him that his wife was seriously ill. If he had administered strychnine poison and the wife was dead, he would have gone and told Dr. Bhatley (P.W. 2) that his wife had died of coal gas poison. But this he never stated to the doctor in the first instance. It was only when Dr. Bhatley (P.W. 2) came to the spot and himself suspected coal gas poisoning that the accused was persuaded to believe that his wife had died of coal gas poisoning.
30. The learned Advocate-General has criticised the conduct of Nijhawan (P.W. 26) and has even gone to the extent of saying that he was a villain of the piece. According to the learned Counsel, it was Nijhawan (P.W. 26) who was accomplice and really concocted the story of coal gas poisoning. From his argument the indication was that the learned Counsel was prepared to place Nijhawan (P.W. 26) in the same position in which (he had placed the appellant. All this appears to be without any foundation. When prosecution examines witnesses, it is presumed that it has absolute faith! in such witnesses. If later on the wit-nesses do not support the prosecution or say something favourable to the defence the responsibility cannot be shirked by the prosecution. Unless the evidence given by a prosecution witness can be explained in a manner considered reasonable by the Court, the evidence given by such a witness would cause a serious dent in the prosecution story, leading to an inference favourable to the defence. The accused will get the benefit and there can be no getting away by saying that the prosecution witness was an accomplice or an associate of the accused to the extent he gave that statement.
Such has been the position of Nijhawan (PW. 26). We have carefully gone through the statement of this witness and we do not find any indication for a suggestion that he was an accomplice or that he favoured the accused -at any stage during investigation. It was Nijhawan (PW. 26) who first informed the Police about the death of the wife of the appellant. The mere fact that he expressed the desire that post-mortem examination should not be conducted would not go to indicate that he was favouring the accused. This was the exact view of all the persons who were present at the spot, There was a sentiment attached to the case because the woman was carrying a full-grown child in her womb and they did not want the body to be cut into pieces. However, Nijhawan (P.W. 26) stated that in case there was 'no suspicion surrounding the death', the body should not be subjected to post-mortem examination. This was a very fair statement from any reasonable person. It was Dr. Bhalla who suggested Nijhawan to consult the S. D. M. Kandaghat in that connection. Therefore, it is again wrong to submit that Nijhawan attempted to influence the S. D. M. Kandaghat. Dr. Bhalla had brought Dr. Jaggi to Dharampur for the performance of post-mortem examination. Nijhawan had nothing to do with it. Therefore, in the statement of Nijhawan (P.W. 26) there is nothing to give foundation to the argument of the learned Advocate-General that the wit-ness was hands-in-gloves with the appellant.
In fact, Nijhawan (P.W. 26) should be believed as he is a responsible witness of the prosecution. Why should not the prosecution itself have asked proper questions from Nijhawan and cross-examined him, in case they did not want to rely upon his statement? Nothing was done in that direction. Still capital is made out of the statement of Nijhawan because he stated that the accused was not possessed of strychnine tablets. That was the only statement of the witness which gave offence to the prosecution. In our opinion. Nijhawan (P.W. 26) has got to be believed and there can be no going out from his statement.
31. The deceased as well as the appellant never took liquor. Therefore, it is again a mystery how strychnine dissolved in liquor was administered to the lady. There was no child in the family and the appellant was eager to have a child from the deceased. He had made arrangements at Delhi for her treatment. There can be no reason why he should finish his wife so that the child also dies in the womb. It is not the duty of the appellant to explain as to how strychnine poison was administered. The entire thing is shrouded in mystery and nothing definite can be stated.
32. The learned Sessions Judge has drawn inference without any foundation. For the sake of example, he stated that Dr. Jaggi (P.W. 21) must not have examined the spinal cord, although the said doctor stated that he did examine it. Dr. Jaggi in his post-mortem report found spinal cord intact and without damage. The learned . Sessions Judge was faced with this difficulty and so he drew up the inference that Dr. Jaggi, although he did not say so, must not have examined the spinal cord. Similarly the learned Sessions Judge inferred that although evidence indicated otherwise, yet the accused may have procured strychnine poison from somewhere. Similarly ha inferred liaison of the accused with the two girls of Mangal Sen although, according to him, no dependable evidence existed to indicate such liaison. Therefore the findings of the learned Sessions Judge were really based on surmises and conjectures.
33. There are definite weaknesses in the investigation. The fireplace was not examined and the chimney was not probed in. The medicines were not chemically examined. Similarly the doctor also was not advised to send the preservative for chemical examination so that it would be known as to whether the preservative itself contained strychnine poison. The two tumblers of tea were not put to chemical test. The benefit of all these infirmities would definitely go to the appellant.
34. There was some discussion at the Bar regarding the user of the statement of the accused given under Section 342 of the Criminal Procedure Code. The learned Advocate-General while reading such statement, converted it into pieces and wanted to utilise some of the pieces by rejecting the other pieces of such statement. The Police had recorded the statement of the appellant over the inquest report (Ex. PT) and the accused had given out that both he and the deceased had prepared a little tea and both of them 'took that'. The accused purports to have further stated, at that time, that 'steam coal' was put in the 'Angithi' and that 'the coals became red hot'. This statement as a whole was put to the accused under Section 342, Cr. P. Code and the accused admitted to have given that statement. The learned Advocate-General argued that by the phrase 'took that', it should be presumed that no part of prepared tea was left in the two tumblers. But what we actually find is that one of the tumblers was half-filled with tea. Therefore, the accused had prevaricated in his statement.
The learned Advocate-General then argued that 'steam coal' does not emanate coal gas and having used the words 'steam coal' in his statement, the accused had himself obliterated the possibility of coal gas poisoning. Then the learned Counsel further argued that having stated that 'the coals became red hot', the accused affirmed that there was no possibility of any further coal gas having emerged from the steam coal. All these are matters of detail and we find that no specific questions regarding them were put to the accused, explaining to him that, according to prosecution the phrase 'took that' implied that no part of tea was left in the tumblers, that he had used the words 'steam coal' to signify that charcoal was not used and so coal gas could not emerge out of such coal, and that the coals having become red hot there was no possibility of coal gas coming out of them. As such the accused never got the opportunity of answering these details.
The learned Advocate-General utilised this part of the statement of the accused for his purpose, although he left out the other part of the statement. Similarly the learned Advocate-General picked out a few answers from here and there and started commenting on such answers stretching them only to that extent it suited the prosecution story. This sort of user of a statement under Section 342, Cr, P. Code, in our opinion, is not permissible. The Court is being asked to accept the inculpatory part of the statement and reject the exculpatory part. In doing so, the Court is being asked to contravene the just accepted rule regarding the use of confession and admission that this must either be accepted as a whole or rejected as a whole and the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. (See : Palvinder Kaur v. State of Punjab : 1953CriLJ154 The latest view of the Supreme Court is to be found in State of Gujarat v. Acharya Shri Devendraprasadji Pande : 1971CriLJ760 .
It is held that the Court cannot split the statement of the accused into various parts and accept a portion and reject the rest. The Court should either accept it as a whole or not rely on it at all. In ;his case if we read the statement of the accused as a whole, his conduct cannot be stated to be explicable only on the hypothesis of his guilt. It is not certainly inconsistent with the hypothesis of his innocence. The statement of the accused must be treated like any other piece of evidence, and matters in favour of the accused must be viewed with as much deference and given as much weight as matters which tell against him. Because of the presumption of innocence in his favour, even when he is not in a position to explain the truth of his story, his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false. When an accused person puts forward a reasonable defence which is likely to be true, then the burden on the other side becomes all the more heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit.
This is the note of caution sounded by the Supreme Court in Hate Singh Bhagat Singh v. State of Madhya Bharat : AIR1953SC468 . A criminal trial is not an enquiry into the conduct of the accused. The essential burden always lies with the prosecution, specially in a case based on a circumstantial evidence, so that a complete chain of events is established and an irresistible inference is reached for guilt and every hypothesis leading to innocence is excluded. A conduct which destroys presumption of innocence can only be accepted as a piece of evidence against the accused. No such piece of evidence can be discovered in the instant case.
35. In Anant Chintaman Lagu v. State of Bombay 0043/1959 : 1960CriLJ682 , it was laid down that the prosecution must establish in a case of poisoning : (a) that death took place by poisoning : (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. These three propositions can be proved by circumstantial evidence, but such evidence should be so decisive that the Court can unhesitatingly hold that the accused administered the poison and caused the death.
36. In Mohan v. State of Uttar Pradesh : AIR1960SC659 , their Lordships again emphasised the three propositions which are required to be established in a case of poisoning, but further observed that these three propositions should be established along with the motive, meaning thereby that the absence of motive would be a circumstance against the prosecution.
37. In the instant case, it could not be established that the death was only caused by strychnine poison although to a great extent, that poison might have caused the death. It was not established beyond doubt that the appellant was possessed of that poison. Similarly it could not be established beyond doubt that the accused had the opportunity to administer the said poison. As we have stated above, the mere fact that the accused was sleeping in the same room would not justify an inference that he must have got up and administered poison when the lady was already under the effect of coal gas poisoning. Therefore, the criteria laid down by the Supreme Court in 0043/1959 : 1960CriLJ682 and : AIR1960SC659 (supra) are not fulfilled. The probabilities are that the medicine contained strychnine poison or that she herself took the poison for some reason or the other.
38. We feel tempted to quote a passage from Charan Singh v. The State of Uttar Pradesh : AIR1967SC520 which, to our mind, so aptly applies to the facts of this case:
It is well established that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and the circumstances so established should be consistent only with the hypothesis of the guilt of the accused person; that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To put it in either words, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person see Hanumant v. State of Madhya Pradesh : 1953CriLJ129 : and Deonandan Mishra v. State of Bihar : 1955CriLJ1647 . In : 1953CriLJ129 , this Court referred further to the danger in such cases that conjecture or suspicion may take the place of legal proof and the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form part of one connected whole'; see the observations in Reg. v. Hodge (1838) 2 Lew CC 227.
39. We have, therefore, no hesitation in holding that the entire case is bristling with improbabilities and it could not be stated definitely that the appellant committed this crime. There might be a strong suspicion against him, but suspicion is no proof and no conviction can be sustained merely on suspicion.
40. In the result, we allow the appeal and set aside the conviction and sentence of the appellant under Sections 302 and 328 of the Indian Penal Code. The appellant is in jail and he should be released forthwith, unless required in connection with some other offence.
Chet Ram Thakur, J.
41. I agree.