Satbir Singh vs State of Haryana

B.S. Nehra, J.

This appeal is directed against the judgment dated 7111988 of Shri Hari Ram, Sessions Judge, Jind convicting the appellant under section 302 of the Indian Penal Code for committing the murder of his wife Birmati and order dated 10111988 sentencing the appellant to imprisonment for life.

The judgment would also dispose of Criminal Revision No. 1291 of 1988 filed by Chander Bhan brother of the deceased for awarding capital punishment the appellant and also for payment of compensation to the petitioner by imposing fine on the appellant.

The facts of the case are that the appellant was married to Birmati deceased about 61/2 years back. About one year after the marriage, Birmati told her mother PW5 Rajni that she was being harassed by the appellant as she had not been able to conceive a child. Despite this, her parents had been sending her with the appellant in the hope that she may bear a child. Despite the lapse of about 6 years after the marriage, the deceased failed to bear a child. The appellant and his parents, therefore, started harassing her. He also demanded money for securing a job. A sum of Rs. 2000/ was paid to him by the parents of the deceased to satisfy his demand. The marriage of PW6 Baljit brother of the deceased was performed four months before this occurrence. The appellant, and Birmati deceased had attended the said marriage. However, two months after the marriage the deceased came to her parents house and was staying there. On the evening of 1511988 the appellant came to the house of the parents of the deceased and stayed there for the night. PW7 Rattan Singh had met him at the Chaubara of the house of his (appellant''s) inlaws. In the morning on 1611988, Uday Singh father of the deceased was sitting with the appellant.

The latter called Birmati through her brother PW6 Baljit. When the latter told her that she was wanted by the appellant, the deceased felt shy to go alone to him and therefore, her mother PW5 Rajni accompanied her to the chaubara where the appellant was present alongwith his fatherin law Uday Singh. When the deceased reached there, the appellant took out two tablets from the pocket of his pants and gave the same to Birmati telling her that she should consume those tablet so that she may be able to conceive a child and they may have a happy life. The deceased then took the tablets in the presence of her mother PW5 Rajni, her brother PW6 Baljit and her father uday Singh. Thereafter the appellant left the house saying that he had to bring his aunt. After the departure of the appellant, the condition of Birmati became serious. Her brother PW4 Chander Bhan was called and was informed by his parents that the appellant had given two tablets to the deceased and the latter had consumed the same. She had become unconscious. The deceased then started vomiting and suffering from dysentery. Finding her condition to be serious, PW4 Chander Bhan, Uday Ram and Thana Ram uncle of the deceased brought her to General Hospital, Jind, where she was attended by Dr. Anil Kumar Gupta (PW1). Her condition was critical. Dr. Gupta sent intimation Exhibit PA to the Police. The police made application Exhibit PB to the doctor seeking his opinion regarding the fitness of Birmati to make a statement. The doctor declared her unfit to make the statement. Thereupon PW9 Assistant Sub Inspector Main Chand recorded the statement Exhibit PH of Chander Bhan, which was sent to the Police Station Rajound and on its basis formal first information report Exhibit PH2 was recorded by Assistant Sub Inspector Balkar Singh (PW 10). The condition of Birmati grew worse in the meantime and she expired at 2.15 PM on 1611988. The police prepared the inquest report Exhibit PD/2 of the dead body of Birmati and sent the same for postmortem examination. Meanwhile the offence was changed to one under Section 302 of the Indian Penal Code in the first information report and a special report was sent to the Ilaqa Magistrate. Autopsy on the dead body was got conducted. The doctor opined that the cause of death was due to some poison resulting in the cardiacrepiratory arrest. The opinion with regard to nature of poisonconsumed was left to be subject to Chemical analysis of the visceras. On, the basis of the report of the Chemical Examiner, it was opined that the poison consumed by the deceased was aluminum phosphide which was sufficient to cause death in the ordinary course of nature. After the completion of investigation, the appellant was sent up for trial.

The trial Court charged the appellant under Section 302 of the Indian Penal Code but the appellant pleaded not guilty and claimed trial. In order to substantiate the charge against the appellant the prosecution examined 12 witnesses besides tendering in evidence the affidavits of formal witnesses. On the completion of the prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. The appellant admitted his marriage with the deceased but denied the other prosecution allegations. He pleaded that Birmati had taken share of agricultural land belonging to her father and, therefore, she did not have good relations with her brothers. According to the appellant, there were also domestic quarrels between Birmati and her brothers, and, therefore, she was either murdered by her familymembers on account of family quarrels relating to agricultural land or that she committed suicide. He added that the deceased had suffered abortions twice earlier and she left his house four months prior to this occurrence and at that time, she was having three months'' pregnancy. In his defence, he examined Dr. V.S. Dhaka, Medical Superintendent General Hospital, Kaithal, as DW. This witness deposed, inter alia, that if a tablet of aluminum phosphide is kept in open, its gas disappears leaving behind ash. The taste of the tablet is bitter and its smell is pungent and further that if one tablet of this poison is consumed and completely absorbed in the stomach, then it results in 100% death and further that consumption of two tablets has instantaneous effect but the death is caused usually within about 24 hours or so.

It is apparent from the evidence on the record that deceased Birmati had been staying at the house of her parents in village Naguran and that on the day or occurrence also, she was there. The prosecution case is that about four months earlier, the appellant had attended the wedding of Baljit, brother of the deceased, and while going back he had told her to carry all her ornaments lying at the house of her parents. The case of the prosecution further is that after about two months thereafter, again she came back to the parents'' house. The appellant has admitted having attended the wedding of his brotherinlaw Baljit but has pleaded that the deceased had been residing at the house of her parents for the last four months prior to the occurrence. Be that as it may, the presence of the deceased at the house of her parents on the day of the occurrence has not been disputed by the appellant. The case of the prosecution is that the latter had come to the house of his inlaws viz, the parents of the deceased on 1511988 and had stayed there during the night. The appellant has denied that he visited the house of her parents on 151188 and that he was there even in the morning of 1611988. The visit of the appellant to the house of the parents of the deceased stands proved from the testimony of PW4 Chander Bhan and PW6 Baljit brothers of the deceased. Similarly, PW5 Smt. Rajni mother of the deceased, has also testified that the appellant had visited their house on 1511988 and had stayed there during the night and further that he left in the morning at about 8 AM on 1611988. Besides, PW7 Rattan Singh, a neighbour, though a distant relative of Uday Singh, father of the deceased, had also seen the appellant at the house of Uday Singh in the evening on 1511988 when he (PW7 Rattan Singh) had smoked Huqa at his (Uday Singh''s) house. He had even seen the appellant at the house of Uday Singh in the morning on 1611988. There appears to be no ground whatsoever to disbelieve the testimony of the witnesses regarding the presence of the appellant at the house of Uday Singh father of the deceased, on the day of occurrence.

As regards the prosecution case with respect to the administering of the two tablets of aluminum phosphide to the deceased by the appellant there is available on the record the reliable testimony of PW5 Rajni, mother of the deceased, and PW6 Baljit, brother of the deceased, in whose presence the appellant had passed on the tablets to the deceased and asked her to swallow the same with water to able her to gain pregnancy. Both the witnesses have consistently deposed that the deceased had taken the tablets with water, which were given by the appellant to her after taking those out from his trousers and had persuaded her to swallow with water. The learned counsel for the appellant has attempted to assail this part of the prosecution version by urging that aluminum phosphide tablets emit foul odour and, therefore, according to the learned counsel, the deceased would not agree to swallow those tablets. PW6 Baljit has testified in this connection that he did not feel any smell from the tablets and in fact he has no sense of smell. This part of the version of this witness tends to negative the contention of the learned counsel for the appellant that the aluminum phosphide tablets were smelling. Even if it way be assumed for the sake of argument that the deceased could not have swallowed those tablets because those were emitting some unpalatable smell, yet the deceased would not decline the directive of her husband to swallow those tablets, because it was being suggested to her that these tablets would help her in gaining conception.

PW 4 Chander Bhan has deposed that his sister Birmati deceased was illiterate. It is common knowledge that the illiterate women would not hesitate to carry out the dictates of their husbands even if they are occasionally maltreated by them. In this case since the deceased was an illiterate lady she could not have any occasion to doubt that her husband was out to poison her. Viewed in this context the prosecution case that the deceased was persuaded by the appellant to swallow the tablets with water so that she may conceive a child cannot be termed to be implausible. Another contention raised by the learned counsel for the appellant is that it is highly improbable that the appellant would administer poison to his wife in the presence of her mother and brothers, viz PW5 Rajni, and PW4 Chander Bhan and PW6 Baljit. In our opinion, this contention is devoid of any merit. It is not for the prosecution to explain as to what was in the mind of the appellant when he chose to administer the two tablets which eventually turned out to be poison, to his wife in the presence of his brothersinlaw and motherinlaw.

PW4 Chander Bhan has testified that the appellant is the only son of his parents. Although questions were sought to be put repeatedly on behalf of the appellant during the crossexamination of PW4 Chander Man, PW5 Rajni and PW6 Baljit that the deceased was pregnant for the previous, three months before the occurrence yet all these witnesses have consistently denied this suggestion. On the contrary PW5 Rajni has categorically deposed that the deceased had not been able to bear a child for about seven years after her marriage with the appellant. It has also been deposed by PW4 Chander Bhan that the appellant is the only child of his parents. This circumstance lends corroboration to the prosecution case that he (appellant) wanted to get rid of the deceased so that he could marry again and get a child to enable himself to perpetuate his family.

The statement of PW 1 Dr. Anil Kumar Gupta, who had initially attended on the deceased while she was brought to the hospital in unconscious state and was still in critical condition and had later on conducted postmortem examination on her dead body after she died as a result of the poison administered to her by the appellant, has categorically testified on the basis of the report of the Chemical Examiner that the poison found in the viscera of the deceased was aluminum phophide and that this poison is very serious and further that the death was caused as a result of the administration of poison. Thus the medical evidence fully corroborates the prosecution case that the deceased was killed as a result of administration of two tablets of aluminum phosphide by the appellant to her.

The learned counsel for the appellant argued that the prosecution has failed to prove that the appellant had purchased the tablets from any chemist and in the absence of such evidence, it cannot be said that the appellant knew that what he was administering was poison. In support of his contention he cited Sharad Birdhichand and Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622 (1657). In paragraph 164 of the report, the Supreme Court while dealing with the question of murder by administration of poison observed that in such cases, the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction :

(1) there is a clear motive for an accused to administer poison to the deceased,

(2) that the deceased died of poison said to have been administered,

(3) that the accused had the poison in his possession, and,

(4) that he had an opportunity to administer the poison to the deceased.

In our opinion, all these ingredients stand established in the present case for the prosecution has proved that the deceased died as a result of aluminum phosphide poison administered to her by the appellant; the latter had the clear motive to kill her for he wanted to get rid of her as she was barren and he probably wanted to perpetuate his family by remarrying and having a child from a new wife and be administered this poison in the presence of his motherinlaw and brothersinlaw. The learned counsel for the appellant, was, however, unable to establish that the prosecution was required to produce evidence to prove that the appellant had procured this poison from the chemist.

It his been next contended by the learned counsel for the appellant that the latter had no knowledge that what was being administered by him to the deceased was poison and in the absence of such a evidence, he cannot be convicted for the offence of murder. Reliance was placed by him on Mst. Hussainan v. Emperor, AIR 1922 Lahore 55. In this case the appellant was convicted of murder by her husband by administering arsenic in Halwa. The Court felt that there was reason to believe that she did not know that it contained arsenic and that she gave it to her husband (as also to her fatherinlaw) believing it to be charmed, like other charmed things, to induce him to divorce her. The High Court of Lahore held that as there was reasonable doubt as to her guilt, she was entitled to the benefit thereof. On close examination of this judgment, this is found to be clearly distinguishable for in the last paragraph in column No. 1 of the report at page 56 the Lahore High Court had observed that the appellant had used only a part of sugar and kept the rest in her house, which she would not have done, if she had known that it contained arsenic. The Court found that it is most unlikely that, if she had the guilty knowledge, she would keep the poisoned article in her own house and thus furnish a strong piece of evidence against herself. Besides Their Lordships of the Lahore High Court noticed further evidence of her fatherinlaw Allah Jawaya that she also offered him some halva but that he ate only a small quantity and consequently recovered, after being giddy and uncomfortable for a few hours. The Court observed that there was no reason why she should wish the death of her fatherinlaw though it was possible that she desired to bring him also under her influence by the charm and induce him to consent to a divorce being granted by his son. In this background, the Lahore High Court entertained reasonable doubt as to the guilt of the appellant and accordingly accepted the appeal.

The next case on which reliance was sought by the learned counsel for the appellant is re : Kuruba Chinna Hanumakka, 1943 Criminal Law Journal 550. In this case a woman gave aconite powder to her husband by mixing it with his food not with intention of causing his death but with the intention of making him "mad", and husband ultimately died. The Madras High Court came to the conclusion that the woman is not guilty of offence under Section 328 of the Indian Penal Code.

In our opinion, both cases cited by the learned counsel are distinguishable on facts as adverted to above. We, therefore, hold that these cases have not bearing on the facts of the case before us.

Having given our serious consideration to the whole case, the appeal is found to be devoid of any merit. Accordingly the same is dismissed.

However, we do not find any merit in Criminal Revision No. 1291 of 1988 for the enhancement of sentence for we have not found any exceptional circumstance for awarding the extreme penalty of death. The petitioner has also not been able to make out a case for awarding compensation. Accordingly, the aforesaid Criminal Revision is dismissed.

Revision dismissed.