State of Orissa Vs. Tulasi Gadnaik - Court Judgment

S.C. Parija, J.

1. This Government Appeal is directed against the judgment dated 16.10.1995, passed by the Sessions Judge, Dhenkanal, in Sessions Trial No. 163-D of 1991, holding the accused-respondent not guilty of the charges under Sections 328 and 302 IPC and acquitting her.

2. The case of the prosecution, in brief, is that Mayadhar Gadnaik of village Baghdharia under Hindol P.S. is the father-in-law of accused Tulasi Gadnaik. Mayadhar Gadnaik got his son Ganeswar Gadnaik married to the accused Tulasi Gadnaik but the accused did not take care of her father-in-law, for which Mayadhar Gadnaik had to marry Madhi Gadnaik. Subsequently, the accused started quarrelling with Madhi Gadnaik and both the ladies did not pull on well. To avoid such unpleasant situation. Mayadhar stayed separately in another house with his wife Madhi Gadnaik and after some time, he was blessed with a daughter Mina @ Rina. It is alleged that the accused Tulasi Gadnaik was not happy with the second marriage of her father-in-law and she took several attempts to kill her mother-in-law Madhi Gadnaik and her daughter Mina, but failed. In the morning of 26.06.1991, deceased Madhi Gadnaik milked her cows and kept the milk in a stainless steel glass on the verandah of her house and went with her daughter Mina to the shop to get some tea leaves. During their absence, the accused came to the house of Madhi and put poison in the glass of milk and went away. When Madhi returned from the shop, she prepared tea and she and her daughter Mina took tea and suddenly fell ill. Their condition became serious and they were shifted to Khajurikata Hospital, where Madhi died. Her daughter Mina was shifted to Dhenkanal Hospital for better treatment, but she also did not survive.

3. On the information of the doctor of Khajurikata Hospital, the A.S.I. of Hindol P.S. arrived at the hospital and on coming to know about the death of Madhi Gadnaik due to suspected poison, he lodged the FIR and took up investigation. During investigation, he examined the witnesses, seized one bottle, suspected to be contained poison at the instance of the accused and also seized the pot in which tea was prepared and the stainless steel glass containing the milk. He arrested the accused and handed over charge of investigation of the case to OIC, Hindol Police Station, who on completion of the investigation, submitted charge sheet against accused Tulasi Gadnaik.

4. The plea of the defence was of complete denial. It was also pleaded by the defence that due to family quarrel, the accused has been falsely implicated in this case.

5. The prosecution examined as many as 17 witnesses in support of its case. The accused examined herself as a defence witness. P.W.I is the then Executive Magistrate of Hindol, who was present when the I.O. made inquest over the dead body of the deceased Madhi Gadnaik. P.W.2 is the doctor of Khajurikata PHC, who received the dead body of the deceased Madhi Gadnaik and informed the police. P.W.3 is the ASI of Balimi P.S., who received the report from the doctor (P.W.2) and registered the U.D. Case No. 1/91 and took up preliminary investigation. P.W.4 is the doctor who conducted the post-mortem examination over the dead body of deceased Madhi Gadnaik. P.W.5 is the police constable, who accompanied the dead body of deceased Madhi to Hindol Hospital for post-mortem examination. P.W.6. is the co-villager of the accused, who was a witness to the seizure of bottle, (M.O.III), at the instance of the accused. P.W.7 Nirmal Kumar Gadnaik. shifted the deceased Madhi and her daughter Mina to the hospital and he proved the previous enmity of the accused with the deceased. P.Ws 8 and 9 are the two main witnesses in this case, who saw the accused entering into the house of the deceased Madhi in her absence and had stated regarding the statement given by deceased Madhi before her death. P.W. 10 is a witness to the seizure of aluminium cauldron (kadei) and a stainless steel glass from the kitchen of the deceased. P.W. 11 Mayadhar Gadnaik is the father-in-law of the accused. P.W. 12 is the octor of Dhenkanal Hospital, who conducted the post-mortem examination over the dead body of Mina alias Rina Gadnaik. P.W. 13 is the doctor of Headquarters Hospital, Dhenkanal and P.W. 14 is a co-villager of the accused, who was a witness to the seizure of bottle (M.O.III) at the instance of the accused. P.W. 15 is the Sub-Inspector of Police, posted in Dhenkanal Town P.S., who stated regarding registration of U.D. Case on the death of Mina alias Rina Gadnaik at Dhenkanal Hospital. P.Ws 16 and 17 are the I.Os. in the case.

6. P.W.7 Nirmal Kumar Gadnaik stated in his. evidence regarding prior relationship of accused with her father-in-law and mother-in-law. He also stated that the accused Tulasi confessed before him and others that she put poison in the milk and her mother-in-law Madhi prepared tea with that milk and she and her daughter died after taking the poisonous tea. According to P.W.7 on the death of the wife of Mayadhar Gadnaik (P.W. 11), he got his son Ganeswar married to accused Tulasi but Madhi and accused Tulasi were not pulling on well. Thereafter, Mayadhar married Madhi Gadnaik and Mina @ Rina was his daughter through Madhi. Ganeswar Gadnaik left home suspecting the character of accused Tulasi and subsequently the accused with a view to become the sole owner of the property of her father-in-law gave poison to the entire family. He further stated that however, Mayadhar (P.W. 11) gave some of his property to the accused Tulasi and was staying separately and that the accused threatened to kill Mayadhar and once earlier she had given poison to Mina with vegetables.

7. P.Ws.8 and 9 corroborated the evidence of P.W.7 that the accused had taken attempts to kill deceased Mina and the accused was always quarrelling with deceased Madhi and her father-in-law. P.W.8 deposed that she saw deceased Madhi keeping the milk in her house after milking the cows and then she went to purchase tea leaves and during her absence, accused Tulasi entered inside the room of Madhi and immediately came out of the room and being asked, the accused did not give any reply and went away. After about two hours she (P.W. 8) heard shouts of Madhi and went to her house and saw Madhi was shivering and fell down and she (Madhi) disclosed that her condition became serious after taking tea prepared with the milk and her daughter Mina has also become serious after taking the same tea and that both of them were shifted to the hospital. P.W.9 stated in her evidence that Madhi kept the milk in a stainless steel glass on her verandah after milking the cow and went to purchase tea from the shop. At that time, she saw that the accused was coming out of the house of deceased Madhi hurriedly and went to her house. After some time she heard the cry of Madhi and when she went to her, Madhi disclosed that she became ill after taking tea prepared with the milk and the condition of her daughter Mina has also become serious.

8. It appears that the statements of P.Ws. 8 and 9 were recorded by the S. D. J. M., Hindol under Section 164 Cr.P.C. In her statement given before the Magistrate, P.W.9 did not disclose that she saw the accused entering into the house of her father-in-law in absence of deceased Madhi and her daughter and that the accused hurriedly came away and went to her house. Similarly, P.W.8 has also not disclosed this fact in her statement before the Magistrate. Both these witnesses in their evidence have stated that hearing hulla, they went to the house of Mayadhar Gadnaik (P.W.11) and saw Madhi and her daughter Mina were ill and Madhi disclosed that accused Tulasi had mixed poison in the milk and she prepared tea with that milk and after taking the poisonous tea, she and her daughter became ill. P.W.8 admitted that she did not disclose this fact before the I.O. and P.W.9 also admitted that she had not stated the said fact before the I.O. that Madhi had disclosed before her that she became ill after taking tea prepared with the milk kept in her house.

9. Learned Sessions Judge considering the evidence of P.Ws.8 and 9, who are related to Mayadhar (P.W.11), came to find that they had subsequently developed the story, which was not stated either, before the I.O. or in their statements recorded under Section 161 Cr.P.C. or before the Magistrate in their statements recorded under Section 164 Cr.P.C. The evidence of P.Ws 8 and 9 only revealed that deceased Madhi kept the milk in a stainless steel glass (M.O.III) on the verandah of her house and then went with her daughter to purchase tea leaves. Further, P.Ws.8 and 9 have nowhere stated that the accused went to the verandah, where the glass containing the milk was kept and came away from that place. Learned Sessions Judge further found that the said stainless steel glass (tumbler) and the cauldron (kadei). in which the tea was prepared, were seized by the I.O. and sent for chemical examination and the report of such examination (Ext. 12) revealed that no poison could be detected either in the cauldron (kadei) or in the stainless steel glass (tumbler). Hence there was a big missing link to connect the prosecution story that poison was mixed with the milk kept in a stainless steel glass. Accordingly, learned Sessions Judge proceeded to find that the evidence of P.Ws. 8 and 9 do not establish that the accused went to the house of the deceased in her absence and mixed poison with the milk kept in a stainless steel glass on the verandah of her house.

10. Coming to the alleged disclosure made by deceased Madhi before P.Ws. 8 and 9 that the accused put poison in the milk and deceased Madhi prepared tea with the same milk and she and her daughter became ill after taking the poisonous tea, learned Sessions Judge found that in her statement recorded by the Magistrate under Section 164 Cr.P.C., P.W.8 had only stated that deceased Madhi disclosed that she and her daughter became ill after taking tea prepared with that milk. P.Ws.8 and 9 did not say that the deceased Madhi disclosed that her daughter-in-law put poison in the milk in her absence. In view of such material contradiction in the evidence of P.Ws 8 and 9 and those recorded by the Magistrate under Section 164 Cr.P.C., learned Sessions Judge came to hold that the prosecution has not been able to establish that the dying declaration of deceased Madhi connects the accused with her death.

11. Learned Sessions Judge has taken into consideration another important feature of the prosecution story that the accused went to the hospital along with her deceased mother-in-law and there she confessed before P.W.7 and others that she put poison in the milk with the sole intention to commit murder of deceased Madhi and her daughter. P.W.7 deposed that accused Tulasi came to the hospital and she disclosed before him and others that out of grudge she gave poison to the entire family with the milk and begged apology. In cross-examination, P.W.7 admitted that Madhi is his aunt and the accused was present in' the hospital all along. Further it was admitted that P.W.7 had not talked with the accused in the hospital and that Trinath Samal of his village was also present in the hospital, who had heard the accused Tulasi making such confession before P.W.7. However, Trinath Samal has not been examined in this case.

12. Learned Sessions Judge, considering the evidence of P.W.7 and the fact that the material witness Trinath Samal has not been examined, came to find that it is not known as to why accused Tulasi reposed confidence on P.W.7 and voluntarily stated before him that she mixed poison with the milk kept in the house of the deceased. Learned Sessions Judge further found that the so-called extra-judicial confession does not relate to the accused, inasmuch as P.W.7 had stated in his evidence that the accused disclosed that out of grudge she gave poison to the entire family mixed with the milk, is a general statement and that the exact words spoken by the accused has not been disclosed by P.W.7. Accordingly, learned Sessions Judge declined to accept the alleged extra-judicial confession alleged to have made by the accused before P.W.7.

13. The other important feature of the case is that the post-mortem report of deceased Madhi (Ext.4) reveals that the doctor has opined that the death might be due to poisoning. The other post-mortem report of daughter Mina (Ext.8) disclosed that the cause of death could not be ascertained and in both the cases, the viscera were preserved and sent for chemical examination. The prosecution has not produced the chemical examination report of the viscera. Hence it cannot safely be concluded that deceased Madhi and her daughter Mina @ Rina died as a result of poison.

14. On analyzing the evidence on record, both oral and documentary, learned Sessions Judge came to the conclusion that the prosecution has failed to prove that deceased Madhi and her daughter Mina died as a result of poisoning. Though the bottle (M.O.III) on chemical examination, was found to contain insecticidal poison, there was no connecting evidence that the same type of poison was detected in the glass containing milk or in the cauldron in which tea was prepared with that milk. Accordingly, learned Sessions Judge came to hold that the prosecution has failed to prove that the death of the deceased persons was due to the poisoning and that it was the accused alone, who mixed poison with the milk and deceased Madhi and her daughter Mina @ Rina took tea prepared with the same milk, with the intention to kill them and to take the properties of her father-in-law.

Shri Mishra, learned Additional Government Advocate has made a feeble attempt to assail the impugned order of acquittal on the ground that the evidence of P.W.7 should not have been disbelieved and the conviction of the accused should have been maintained on the basis of her extra - judicial confession made before P.W.7. It was further argued that the discrepancies in the evidence of P.Ws. 8 and 9 being minor, the same also should not have been disbelieved.

15. On an analysis of the evidence as discussed above, it is seen that the so-called extra-judicial confession alleged to have been made by accused Tulasi before P.W.7 is not believable, especially when there is no justifiable reason as to why the accused would confide and confess her guilt before him, when P.W.7 is neither her relative nor a close friend. The extra-judicial confession in the very nature of things is a very weak piece of evidence and an order of conviction cannot be maintained on the basis of such confession. Further the evidence of P.Ws. 8 and 9 do not inspire confidence in view of the material contradiction in their statements recorded by the Magistrate under Section 164 Cr.P.C. and the evidence adduced by them in the Court. The clinching material is the chemical examination report of the cauldron (M.O.I) and the stainless steel glass (M.O.II), which does not reveal the presence of any poison. Therefore there is no material to connect the accused Tulasi with the death of Madhi and her daughter Mina @ Rina.

16. Considering the evidence as discussed above vis-a-vis the findings of the learned Sessions Judge, we do not find any apparent error or illegality in the order of acquittal, so as to warrant any interference by this Court in the present appeal. The Government Appeal is accordingly dismissed.

A.S. Naidu, J.

17. I agree.