Rajasab vs State

Anand Byrareddy, J.—Heard the learned counsel for appellant and the learned Additional State Public Prosecutor.

The appellant was the accused before the court below, who has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for a period of four months for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as T.P.C. for brevity) and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for a period of four months for the offence punishable under Section 498A of I.P.C.

The appellant''s wife was one Hussainbee. It was alleged that the appellant was suspecting the chastity of his wife, and therefore, was always subjecting her to illtreatment both mentally and physically and was in the habit of assaulting her. It was further alleged that, since Hussainbee was about to deliver her second child and since the appellant suspected that the child was not his and with an intention to kill her had mixed insecticide in liquor and had come to the house of his mother-in-law, where Hussainbee was staying in Kandkur village, at about 8.00 p.m. on 05.09.2006 and had forcibly administered the liquor laced with poison to Hussainbee. It was alleged that on account of such consumption she had died.

The maternal uncle of Hussainbee had lodged a complaint in this regard and the Police Sub-Inspector, P.W.13, who had received the complaint had registered a case and after conducting an inquest on the dead body of Hussainbee and recording the statements of witnesses had arrested the appellant and is said to have recovered incriminating material such as a receipt for having purchased insecticide and the bottle of liquor, with which the liquor laced with poison was administered to Hussainbee. After completing all other formalities of investigation had submitted a charge sheet against the accused. Later, the Magistrate after taking cognizance having found that the case was exclusively triable by the Court of Sessions, had committed the matter to the Court of Sessions. The Court, in turn, had framed the charges against the accused for the offences punishable under Sections 498A and 302 of I.P.C. The accused having pleaded not guilty and having claimed to be tried the prosecution had examined 15 witnesses and had got marked several exhibits and material objects and after recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'' for brevity), the Court below after having heard the arguments of the prosecution and the defence, had framed the following points for consideration -

"1. Whether the prosecution proves beyond reasonable doubt that prior to 05.09.2006 the accused being the husband of deceased Hussainbee subjected her to cruelty which is of such a nature as is likely to cause grave injury or danger to the life of deceased and thereby committed offence under Section 498A of I.P.C.?

Whether Prosecution further proves beyond reasonable doubt that on 05.09.2006 at about 8.00 p.m. at Kandakur village the accused with intention to kill his wife deceased Hussainbee forcibly administered her insecticide poison by mixing with alcohol due to which she died, and thereby caused the murder of deceased Hussainbee and committed offence punishable under Section 302 of I.P.C.?

What order?"

The Court below had held the points No. 1 and 2 in the affirmative convicting the accused and sentencing him as aforesaid.

It is that which is under challenge in the present appeal.

The learned counsel for the appellant would point out that the entire case of the prosecution is ridden with infirmities and inconsistencies and there are serious contradictions which have been completely overlooked by the trial Court in holding that the prosecution had established its case beyond all reasonable doubt. It is pointed out that the incident had taken place on 05.09.2006.

The learned counsel would further point out from the material on record, namely, the evidence of P.W.1, who was said to be the father of the accused had stated that the marriage of the accused with the deceased had taken place in the year 1999 and that they had a female child two years after the marriage and the child had died of a scorpion bite. It is also stated by him that there was constant friction between the deceased and the accused and that on account of such friction she had come to her mother''s house and she stayed there for three years and it is on the intervention of the elders that she had returned to her matrimonial home. He had affirmed that the accused had administered liquor laced with poison to the deceased at 8.00 p.m. and it was on account of which she had died. Though P.Ws.1, 4 and 5 are said to have made statements to the effect that the accused was illtreating the deceased and that they had advised him to mend his ways and treat her better, in the course of evidence, P.Ws.1, 4 and 5 have not supported the case of the prosecution.

Insofar as P.W.2 is concerned, he was said to be the Manager of a Wine Store, namely, Girish Wine Shop, and he was fielded as witness by the prosecution to claim that the accused had purchased liquor from his shop. However the said witness had turned hostile and he has not supported the case of the prosecution.

P.W.3 was the owner of the Pesticide Shop and the receipt was said to have been seized from the custody of the accused, was confronted to the said witness to substantiate the allegation that he had purchased insecticide from the shop of P.W.3. He had not supported the case of the prosecution either.

P.Ws.4 and 5 were said to be the independent witnesses and they are shown to be the elders of village to support the case of the prosecution that the accused was illtreating the deceased. They have also turned hostile and have not supported the case.

P.W.6 was the Medical Practitioner, who had conducted the post mortem report and he had noticed that the victim had died on account of organophosphorus poisoning. It is pointed out that the Medical Practitioner is silent as to whether there was any alcohol content found in the body of the deceased.

P.W.7 was the maternal uncle, who had lodged the complaint. It is pointed out by the learned counsel for the accused appellant that insofar as evidence of P.W.7 is concerned, the same is totally inconsistent with the case of the prosecution. According to him, he had furnished written complaint to the Police Sub-Inspector, P.W.13. However, P.W.13 had stated that an oral complaint was made by P.W.7. This inconsistency is not sought to be explained by the prosecution and it would be fatal to the case of the prosecution as to the complaint being got up only to frame the accused appellant.

P.Ws.8 and 9 are claimed to be the eye-witnesses to the incident of the accused having come there with a liquor bottle where poison had been mixed in the liquor and that he had forcibly administered the same on the deceased and forced her to drink the same in their presence. However, during the course of evidence there is total inconsistency, in that, P.W.8 the mother of the deceased had stated that, though it was initially stated by the said witness that she was present when the accused came and administered liquor with poison in it to the deceased, in the course of evidence she had stated that she was working in the house of another and on hearing about the accused having come home and having started pestering Hussainbee, she had rushed to the house. Therefore, there was total inconsistency in the manner in which the incident is said to have occurred.

Similarly, P.W.9, who is the cousin sister of the deceased had initially stated that when she and P.W.8, the mother of the deceased were present at the home, the accused had come and had forcibly administered poison to the deceased. But, in the course of evidence she had stated that she was not in a position to see whether the accused had in fact administered poison to the deceased because there was insufficient light in the house. But, P.W.9 had stated contrary to what P.W.8 has indicated, that both of them were present when poison was administered by the accused. P.W.8, on the other hand, had mentioned that she was not present and she came there when a person intimated about the commotion in their house.

P.W.10 was the owner of the ''tarn tarn'' vehicle, which was used to carry the deceased to hospital for treatment and that P.W.8 and the accused had shifted the body of deceased and brought it to the ''tarn tarn'' vehicle to go to the hospital. The absence of P.W.9 is not spoken to by P.W.10 and, P.Ws.11 and 12, who are the Police Constables and are formal witnesses.

P.W.13 is the Investigating Officer. He has stated that he had seized the liquor bottle, which was used to administer the poison as well as the bottle containing insecticide.

Insofar as the liquor bottle and the bottle containing insecticide which was sought to be produced as proof of the accused having used the same to administer poison by the accused is concerned, it is not established by the production of any report as to the said bottles containing any kind of poison as the report, which is marked as Ex. P-7 is silent about the said bottles containing any sign of poison. The further inconsistency as regards P.W.8 having indicated that the accused was arrested in the hospital itself where the deceased was admitted for treatment, whereas P.W.12 had stated that the accused was actually arrested elsewhere, namely, at Gajendragad Circle, Kushtagi town.

As far as the investigation and allegations are concerned, the learned counsel, therefore, would submit that the crucial aspect in the prosecution bringing home the charges against the accused was the content of the exhibits produced as the liquor bottle and the poison and the fact that it was used by the accused to administer the poison to the accused in the presence of the eye-witnesses, namely, P.Ws.8 and 9. In the absence of any sign of poison in the said exhibits or the material objects and the inconsistency in the evidence of the so-called eye-witnesses P.Ws.8 and 9 and in the absence of any motive, as sought to be alleged, when the witnesses have not supported the case of the prosecution and the fact that the accused was said to be with the deceased at all points of time when she was taken from home with stomach pain in a ''tarn tarn'' vehicle as stated by P.W.10 and admitted to hospital and he having remained there throughout, would not indicate the conduct of a person, who had administered poison to his wife. The allegations, are therefore, without any basis and the possibility of the deceased having committed suicide by consumption of insecticide is sought to be foisted against the accused, as is evident from the evidence which is totally inconsistent with the case sought to be putforth by the prosecution, and therefore, seeks the acquittal of the appellant.

While the learned Additional State Public Prosecutor would vehemently seek to justify the judgment of the court below and would seek to contend that the so called inconsistencies and infirmities that are sought to be highlighted by the learned counsel for the appellant have all been considered by the trial Court and in its considered judgment has addressed the same, and hence, there is no warrant to interfere with the judgment of the court below, which is based on sound reasoning, and hence, seeks dismissal of the appeal.

On a careful consideration of the rival contentions and on an examination of the material on record, the motive sought to be alleged against the accused was sought to be proved through the examination of P.Ws.1 to 5 and as rightly pointed out by the learned counsel for the appellant, the said witness have not stood by their statements and have been treated as hostile witnesses in which event the prosecution had failed to establish the motive against the accused.

Insofar as the accused having come to the house of mother-in-law, P.W.8 where Hussainbee was staying for delivery of her second child, and having administered poison, which was mixed with liquor to the deceased in the presence of P.Ws.8 and 9 is also not established beyond reasonable doubt. In that, P.W.8 had categorically stated that she was not present at home when the accused was said to have come there and she had only come there, after she was informed that her daughter Hussainbee was complaining of stomach ache and it was possible that she was being taken to hospital and she had rushed there from her place of work. Similarly, P.W.9 had claimed that both she and P.W.8 were present throughout the incident and she had seen the accused coming out with a liquor bottle and in her evidence she had stated that her mother-in-law was very much present when the accused administered the poison. But, on the other hand, she had also admitted that she did not really see the accused do so because there was no sufficient light.

Further it is also on record that P.W.10 who was said to be the owner of the vehicle, which is locally called as ''tam tam'' had stated that he had come there to take Hussainbee to the hospital and that it was the accused and P.W.8, who brought the victim to the vehicle and took her to the hospital and does not speak about the presence of P.W.9. The fact of further circumstance that the material objects, namely, liquor bottle which was used by the accused to administer poison to the deceased having been examined by the Forensic Laboratory has sent a report indicating that it did not contain any sign of poison. Similarly yet another object, namely, bottle containing the insecticide which was mixed in the liquor also indicated that it did contain insecticide, that by itself would not establish that it was mixed with liquor and administered to the accused because the liquor bottle did not contain any sign of poison.

Further the receipt which was said to have been seized from the accused indicating that he had purchased insecticide was not supported by the owner of the Pesticide shop, who was examined as P.W.3. Therefore, the chain of events establish that the accused had an intention to kill his wife and that he came armed with liquor bottle where it was mixed with poison and that he had forcibly administered to it and that she took ill on account of which and all this had happened in the present of P.Ws.8 and 9 and thereafter she was admitted to hospital where she succumbed on account of poisoning has not been established by the prosecution with any degree of certainty, and therefore, the first principle that the prosecution is required to establish the case beyond all reasonable doubt is not met, and hence, in our opinion, the trial Court was not justified in arriving at a conclusion that the prosecution had established its case beyond all reasonable doubt. Consequently, we give the accused appellant the benefit of doubt and hold that the trial Court was not justified in convicting and sentencing the accused, as aforesaid.

The appeal is allowed.

The conviction and sentence imposed by the learned Presiding Officer, Fast Track Court-I, Koppal, in S.C. No. 15/2007, dated 05.03.2009 is set aside.

The accused shall be set at liberty.

The operative portion of the judgment shall be transmitted to the Jail Authorities forthwith.