Smt. Karpai vs State (Delhi Admn)

Badar Durrez Ahmed, J.—The appellant has been convicted by the learned Additional Sessions Judge by virtue of his judgment dated 20.1.1994 in Sessions Case No. 124/91 pertaining to FIR No. 53/91 under Sections 302/307 IPC registered at Police Station Saraswati Vihar for having committed the murder of Murgan @ Murgesh and attempting to commit the murder of Rajeshwari u/s 307 IPC by administering poison. By a separate order dated 24.1.1994 the said learned Additional Sessions Judge sentenced the appellant to undergo imprisonment for life in respect of the offence punishable u/s 302 IPC and seven years RI for the offence u/s 307 IPC and directed that both the sentences should run concurrently. The appellant is aggrieved by the impugned judgment and order on sentence.

The prosecution case is that on 3.2.1991 information was received from Sunder Lal Jain Hospital and the same was recorded in DD 22A by Head Constable Rajbir Singh that Murgan, son of Raju, R/O E-557, J.J. Colony, Shakurpur, Delhi had been declared dead and the dead body had been taken away to his house. Thereafter, Sub- Inspector Jugti Ram along with constables Ashok Kumar and Dharam Singh went to the said house bearing No. E-557, J.J. Colony, where they found the dead body of a child lying on a cot. There, Ashok and Raju, who were brothers and were residents of the said house, disclosed that it was the body of Murgan @ Murgesh. Apparently, Ashok made his statement Ext. PW2/A to the effect that he along with his family reside at E-557, J.J. Colony, Shakurpur Delhi and that his brother Raju also resided in the same house along with his family. Ashok Kumar further stated that his sister-in-law (another brother.s wife) Karpai who resided in G Block, J.J. Colony, was in the habit of consuming liquor and then coming to their place to pick up a quarrel. According to him, she had some sort of grudge for some unknown reason. In the said statement Ext. PW2/A, it was further stated that on that date, there was a mundan ceremony of his cousin (Karpan.s) daughter and a feast had been organized. All the family members participated in the feast. He further stated that his attention was not towards his daughter Rajeshwari aged about eight years and nephew Murgan, aged about seven years, who were playing in the street. At about 9.30 p.m., his daughter Rajeshswari and nephew Murgan came running to them. At that time his wife Kamla was also present. Ashok stated that the children told them that their tai (elder brother.s wife) Karpai had taken them with her and had given them juice to drink. After consuming the said juice, their condition had become bad. Both the children allegedly started vomiting in his presence. As per the statement, Ashok and his brother Raju took Murgan to Sunder Lal Hospital as his condition was very serious. Later on, his brother-in-law Chukri took the girl to Jeevodya Hospital. He further stated that at Sunder Lal Hospital, the doctors declared Murgan dead and they brought his dead body to their house along with the death certificate. It was also stated that Rajeshwari was shifted from Jeevodya Hospital to Sunder Lal Jain Hospital and a report was lodged with the police in this connection by his wife. He stated that his bhabi (sister-in-law) Karpai, on account of some old grudge, with an intention to kill his daughter Rajeshwari and his brother Raju.s son Murgan gave the children some poison mixed in juice as a result whereof the boy had expired and the girl was in hospital. He requested that legal action be taken against Karpai.

On the basis of this statement a ruqqa was prepared and sent and thereupon the case was registered. The Station House Officer of the concerned police station took up the investigation. The inquest proceedings were conducted and the post mortem examination of the body of Murgan was also conducted. Karpai was arrested and she allegedly made a disclosure statement. On the basis of the disclosure statement, and the alleged subsequent pointing out by the appellant Karpai, the kaner tree in Kohat Enclave, DDA Park and the juice van (rehri) were located. The pointing out memo and recovery memo were prepared. Pieces of earth and control earth were also seized from the spot. The viscera of Murgan was sent to the laboratory for chemical examination and after completion of investigation, the challan was filed in court. The charge was framed and the appellant, having pleaded not guilty, claimed trial. In support of the prosecution, 21 witnesses were examined. The defence did not lead any evidence.

We find that in the impugned judgment, the trial court has mainly reproduced the testimonies of all the PWs 1 to 21. And, the discussion of the evidence and the case is limited to paragraphs 29 to 33 only. At the outset, we may say that the trial court has not examined the evidence with the degree of care which is necessary before a person can be convicted for murder or attempt to murder and then be sentenced to imprisonment for life on account of the offence of murder or seven years imprisonment for the offence of attempt to murder. The trial court has cursorily dealt with the many contradictions pointed out by the learned Counsel for the accused in the testimonies of PW-3 (Rajeshwari), PW-5 (Kandhai) and PW-11 (Sadhu Ram Gupta) with regard to the fact as to from where the appellant Karpai produced the poison which was allegedly mixed in the juice. Another contradiction had been pointed out by the learned Counsel for the accused that while PW-11 (Sadhu Ram Gupta) had stated that the accused Karpai had slapped the girl as she had left the juice in the glass, PW-5 (Kandhai) stated that when the boy refused to drink the juice, he was beaten by the accused Karpai and only thereafter the boy drank the juice. The trial court did not find this to be a material contradiction.

In conclusion, the learned Additional Sessions Judge held:-

the fact that the juice contained Kaner seeds powder has been amply proved from the record of CFSL Ext. PX. The doctor has also testified that the death was due to carbonate (sic) poisoning.

The learned Counsel for the appellant made three submissions on the above findings. The first submission was that Ex. PX, the CFSL Report, cannot be read in evidence. According to the learned Counsel, it is not clear as to how the said report was introduced before the Trial Court because there is no witness who has come forth to testify about the said report. Secondly, the learned Counsel pointed out that the CFSL report indicates that the stomach, intestine, liver and kidneys as well as blood sample of the deceased Murgan tested positive for "the active constituents of kaner". Thus, this report, even if considered, does not indicate that it is the juice that contained the kaner seeds powder. Thirdly, PW-19 (Dr R.K. Barua), who is the doctor who conducted the post mortem examination, stated the cause of death to be due to "carbamate poisoning". In this background, the learned Counsel for the appellant pointed out that poisoning due to kaner and carbamate poisoning are entirely different. Thus, the finding that "the doctor has also testified that the death was due to carbonate (sic) poisoning" is contrary to the trial court.s earlier finding that "the juice contained kaner seeds powder".

The learned Counsel, referring to paragraph 32 of the impugned judgment, also submitted that the learned Additional Sessions Judge has glossed over the fact that admittedly, there was animosity between Ashok and Raju whose daughter and son were allegedly poisoned by the appellant, on the one hand, and the appellant on the other. According to him, the existence of enmity was indication enough that the testimonies of Ashok and Raju as also the other family members needed to be handled with great care and circumspection inasmuch they could be regarded as interested witnesses.

The learned Counsel for the appellant submitted that this was a clear case for acquittal. First of all, according to him, the cause of death was uncertain. The death certificate Ext. PW-10A described the symptoms as "intractable convulsion". The CFSL report Ext. PX indicated that the viscera and blood sample tested positive for active constituents of kaner. On the other hand, PW-19 (Dr R.K. Barua), who conducted the post mortem examination, testified that the cause of death was "carbamate poisoning". He submitted that no evidence whatsoever has been produced to establish that kaner seeds or kaner contained any "carbamate. poison. According to the prosecution, powdered kaner seeds were mixed in the juice administered to the two children. Evidence has also not been brought on record to establish whether powdered kaner seeds are poisonous and to what extent.

The second aspect to which the learned Counsel for the appellant drew our attention to was that admittedly there was a party in the neighborhood, if not in the house, on the occasion of the mundan of one of the relatives. A feast had been organized. It is quite likely that something may have been consumed by these two children which may have resulted in them being poisoned. He further submitted that there was also the possibility of the glass in which the juice was served by the juice vendor PW11 being contaminated.

Thirdly, it was contended by the learned Counsel for the appellant that there is no evidence that the appellant had definitely administered poison or had mixed poison with the juice and then administered the same to the children. There were many contradictions in the testimonies of the prosecution witnesses. Fourthly, it was contended by the learned Counsel for the appellant that no motive has been ascribed to the appellant for having committed such a crime. The only motive which was suggested by PW-5 (Kandhai), wife of Raju and mother of the deceased Murgan @ Murgesh was to the following effect:-

Since our family had only one son Murgesh and we were earning handsomely, the accused used to feel jealous and used to quarrel and she had decided to finish my son so that the entire love and affection should go to her family.

According to the learned Counsel, this cannot at all constitute a motive and is too flimsy a reason for poisoning two small children.

Lastly, it was contended by the learned Counsel for the appellant that the CFSL report Ext. PX ought not to have been looked into by the trial court and cannot be considered at all against the appellant. He submitted that no witness has been produced by the prosecution to testify as to the CFSL report. There is no evidence as to how the CFSL report was on record. We went through the trial court record to examine this aspect. At page 153 thereof we found an application for attaching the CFSL report. The CFSL report is dated 23.9.1993 and the said application is of 27.9.1993. On the left hand side there is a stamp of the learned Additional Sessions Judge but there is no signature. The file also contained the original as well as the photo copy which was meant for the accused. An inference can be drawn that the copy of the CFSL report was never given to the accused. We shall dwell upon this aspect at a later point in this judgment. At this juncture, we may also note the contention of the learned Counsel for the appellant that cognizance was taken and charges were framed on 30.01.1992 much prior to the preparation and receipt of the CFSL report. The learned Counsel for the appellant raised a pertinent question as to how could the charges be framed without the cause of death having been ascertained ?

We may also point out that the learned Counsel for the appellant has produced literature with regard to kaner which is a flowering plant and is commonly known as Oleander. As per Modi.s Medical Jurisprudence and Toxicology, Twenty-third Edition, there are two kinds of Oleander. One kind is the white or sweet-scented Oleander, whose botanical name is nerium odorum and is also known in Hindi as kaner. There is another variety of Oleander known as yellow Oleander which also goes by the names Cerbera Thevetia, Thevetia Nerifolia and pila kaner. Both kinds of Oleander belong to the family of plants known as Apocynaceae and are widely cultivated and grown in gardens in India. However, they are highly poisonous and contain glycosides which have a digitalis-like action and are cardiac poisons. On the other hand, the literature produced by the learned Counsel for the appellant indicates that carbamates are salts and esters of carbamic (amido carbonic) acid. Carbamates are used in insecticides such as Baygon.

Mr Sunil Sharma, appearing on behalf of the State, submitted that carbamate poisoning is the same as insecticide poisoning. He submitted that kaner is an insecticide and, therefore, carbamate and kaner are equivalent. Apart from this, the learned Counsel for the State submitted that the surviving victim PW-3 (Rajeshwari) clearly testified in court with regard to the manner in which the appellant poisoned her and her cousin Murgan @ Murgesh. Her testimony in Court is that of an injured witness and due credence ought to be given to such testimony. He also submitted that PW-11 (Sadhu Ram Gupta), who is the juice vendor also stated that juice was given by Karpai in two separate glasses to the two children after she added some powder which she had brought with herself. He submitted that this is clear evidence of the fact that the appellant had poisoned the two children. He also submitted that PW-11 (Sadhu Ram Gupta) was an independent witness and ought not to be dis-believed. Mr Sunil Sharma, therefore, contended that the two eye witnesses, namely PW-3 and PW-11 corroborated each other on the fact that Karpai administered the juice after adding some powder which she had brought with herself. According to the CFSL report the viscera as well as the blood sample of the deceased Murgan @ Murgesh tested positive for active constituents of kaner. Therefore, according to him, there remains no shadow of doubt that the appellant administered powdered kaner seeds along with the juice to the two children.

He also submitted that the theory of food poisoning, as suggested by the appellant was not plausible. He submitted that in any event no such suggestions were given to any of the witnesses. Furthermore, if it was something that the children consumed at the feast, then there would have been others who would have been similarly affected. Nobody else was affected and, therefore, such a theory is bound to be rejected.

The learned Counsel for the State also referred to the MLC of PW-3 where, it is indicated that it was a case of suspected poisoning. He then referred to the memo Ext. PW-17/D as well as disclosure memo PW-15/C and submitted that based upon the disclosure made by the appellant, the kaner plants from which the seeds were taken were identified and the place where the seeds were crushed in the appellant.s home under the stair case was also pointed out. Coupled with this, the learned Counsel for the State placed reliance on the CFSL report Ext. PX to indicate that the viscera tested positive for the active constituents of kaner. According to Mr Sunil Sharma, this was an open-and-shut case and the appellant had been rightly convicted by the trial court.

Mr Sunil Sharma submitted that even if the CFSL report is to be ignored, it cannot be denied that something was given by Karpai to the children and, by that something, death was caused to Murgan @ Murgesh and Rajeshwari became seriously ill, although she finally recovered.

Mr Sunil Sharma referred to the following decisions:-

1) Ram Bali Vs. State of Uttar Pradesh,

2) Babasaheb Apparao Patil Vs. State of Maharashtra,

3) Mela Singh Vs. State, ; and

4) Dhananjaya Reddy etc. Vs. State of Karnataka,

Ram Bali (supra) was relied upon for the proposition that when there is a conflict between medical evidence and ocular evidence, it is ocular evidence which shall prevail. In the said decision, the court observed that hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute the evidentiary value of ocular evidence if it is credible and cogent. The Supreme Court also observed that it is only when the ocular evidence is wholly inconsistent with the medical evidence, that the court has to consider the effect thereof. There is no dispute with these propositions. In the present case, we have to examine the medical evidence on record in the shape of the testimonies of the doctors and the documentary evidence in support thereof. What the Supreme Court was concerned with in Ram Bali (supra) was medical evidence in the shape of hypothetical answers to hypothetical questions and abstract opinions by textbook writers on assumed facts. In the present case, we are concerned, not with hypothetical questions and abstract opinions of textbook writers on assumed facts, but with the evidence on record. It is obvious that where such concrete evidence is on record given by experts in the field of medicine, and it is not consistent with the ocular evidence, then the court has to seriously consider the effect on the prosecution case. The value of ocular evidence can be tested on the touchstone of definite and direct medical evidence.

In Ram Bali (supra), the Supreme Court also observed that defective investigation should not in itself result in drawing any inferences against the prosecution. In this context, the Supreme Court observed that in the case of a defective investigation, the court has to be circumspect in evaluating the evidence, but it would not be right in acquitting an accused person "solely" on account of the defect. As, doing so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. The Supreme Court further observed with reference to an earlier decision in Paras Yadav and others Vs. The State of Bihar, that the contaminated conduct of the officials alone should not stand in the way of evaluating the evidence by the courts in finding out the truth, "if the materials on record are otherwise credible and truthful". This decision also makes it clear that if there are defects in investigation, the court has to be circumspect in evaluating the evidence. The prosecution.s case should not be thrown out merely or solely on account of the defect if there are other materials on record which are credible and truthful and which come to the aid of the prosecution. There is no quarrel with this principle either. The question is whether, in the present case, there are materials on record which point, beyond reasonable doubt, towards the guilt of the appellant. That is an exercise which we shall have to do on an examination of the evidence on record.

In Babasaheb Apparao Patil (supra), the Supreme Court observed that it is to be borne in mind that some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the evidence of the witness and unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. The Supreme Court observed that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court would be justified in discarding the evidence. Referring to the decision in the case of State of U.P. Vs. M.K. Anthony, the Supreme Court observed that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. The Supreme Court also noted that even honest and truthful witnesses may differ in some details unrelated to the main incident because the power of observation, retention and reproduction differ with individuals. The Supreme Court held that the court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy. These are also reiterations of clear and established principles that minor discrepancies in ocular accounts of witnesses would not prove to be fatal to the prosecution case provided the testimony of such witnesses are otherwise trustworthy. It is obvious that this principle has to be kept in mind while examining the evidence on record.

A reference was made to Mela Singh (supra), which is a decision of a learned single Judge of this Court, to indicate that once a report has been admitted in evidence without objection as to its admissibility or mode of proof, the appellant cannot be allowed to challenge its admissibility in the appeal. This decision, although not binding on us, was placed before us to persuade us to reject the appellant.s contention that the CFSL report (Exhibit-PX) cannot be looked into inasmuch as there is no record of how the said report was introduced into evidence. The view taken in Mela Singh (supra) stands on an entirely different footing. The plea of the appellant is that it is not at all apparent as to how the CFSL report came to be marked as Exhibit-PX. None of the witnesses have testified as to the CFSL report. Apart from that, the trial court record indicates that an application for attaching the CFSL report was made on 27.09.1993 and on the left hand side, there is a stamp of the learned Additional Sessions Judge. But, the learned Additional Sessions Judge has not affixed his signature. Neither the CFSL report was proved by any witness nor is there any evidence to show that it was officially taken on record. The CFSL report was marked as an exhibit on 05.01.1994 and insofar as the order-sheet of 05.01.1994 is concerned, it does not disclose any witness having been examined on that date who had testified as to the CFSL report. Therefore, the context in which there is a challenge to considering the said CFSL report (Exhibit-PX), in the present case, is entirely different to the view taken in Mela Singh (supra) and consequently that view would be of no help to the respondents.

The last decision cited by Mr Sunil Sharma is that of the Supreme Court in the case of Dhananjaya Reddy (supra). The same was relied upon for the proposition that the report of a serologist could be used without any formal proof. There is a reference in paragraph 39 of the said decision that an attempt was made to argue before the Supreme Court that the serologist.s report was not produced at the trial court and, therefore, could not be looked into at the stage of appeal. The Supreme Court did not accept this argument inasmuch as on the facts of that case, the said report had been shown to have been admitted in evidence and marked as Exhibit-87. The Supreme Court also observed that, "otherwise also, the report of the serologist can be used as an evidence without any formal proof u/s 293 of CrPC". This decision, as is apparent, was cited by the respondents to counter the plea taken by the learned Counsel for the appellant that the CFSL report (Exhibit-PX) could not be looked into either by the trial court or even by this Court in appeal. He submitted that the CFSL report, in the present case, stood on the same footing as the serologist.s report in Dhananjaya Reddy (supra) and, therefore, it could be used without any formal proof. The argument of the appellant in the present case is not limited to the using of the CFSL report. The first distinction between the present case and that in Dhananjaya Reddy (supra) case is that in the latter case, the serologist.s report is shown to have been admitted in evidence and marked as Exhibit-87, while, in the present case, there is no record as to whether the CFSL report was admitted in evidence and how it came to be exhibited as Exhibit-PX. The further distinction is that in Dhananjaya Reddy''s case, there is no plea that the serologist.s report was not handed over to the accused. However, in the present case, the learned Counsel for the appellant has taken the specific plea that the photocopy of the CFSL report, which was meant for the accused, was never handed over to the accused. He made this submission on the basis of the fact that the trial court record contains both the original and the photocopy which is for the accused. The fact that the photocopy meant for the accused is present and available in the file of the trial court clearly implies that the photocopy of the CFSL report was not handed over to the accused. It is in this context that the plea has been taken by the learned Counsel for the appellant that the CFSL report cannot be looked into. The CFSL report forms a vital link in the present case as it purportedly determines the nature of the poison which ultimately caused the death of Murgan @ Murgesh.

The learned Counsel for the appellant had placed reliance on the following three decisions:-

1) Noor Khan Vs. State of Rajasthan,

2) Balachandran Pillai and Others Vs. State of Kerala, and

3) Umakant Bajpayee v. State of U.P. 1993 (1) Crimes 1150.

In Noor Khan (supra), the Supreme Court in the context of failure to supply statements recorded u/s 161, CrPC, observed that the provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilized in the trial for effectively defending themselves cannot normally be permitted to be whittled down. The court further observed that where the circumstances are such that the court may reasonably infer that prejudice has resulted to the accused from the failure to supply such statements, the court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. The Supreme Court, however, observed that it is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction.

In Balachandran Pillai (supra), which is a decision of a learned single Judge of the Kerala High Court, a similar view has been taken. In Umakant Bajpayee (supra), which is also a decision of a learned single Judge of the Allahabad High Court and has been placed before us for its persuasive value, also indicates that the report of a chemical examiner / analyst cannot be acted upon by the court without examining such person, particularly if the report is not supported by reasons for the opinion expressed by the expert. The learned Counsel for the appellant had contended that in the present case also, no reasons are given in the CFSL report (Exhibit-PX) and it is merely observed that the extracts sent to the CFSL for testing, gave positive results for the active constituents of "kaner..

Considering the arguments advanced by the counsel for the parties and the decisions relied upon by them, we are of the view that the CFSL report (Exhibit-PX) ought not to have been looked into by the trial court and ought not to be looked into by this Court. The simple reason is that no witness has come forward to prove the same and the manner in which it has been introduced into the court record, if at all, is unclear. Secondly, and more importantly, it appears that the CFSL report had not been made available to the appellant / accused. In a case of murder by poisoning, the report of the CFSL attains great significance. Because, as pointed out in Sharad Birdhichand Sarda Vs. State of Maharashtra, , with reference to an earlier decision in the case of Ram Gopal Vs. State of Maharashtra, , in cases concerning murder by administration of poison, three issues arise for determination:-

1) Did the deceased die of the poison in question ?

2) Had the accused the poison in question in his / her possession ?

3) Had the accused an opportunity to administer the poison in question ?

The Supreme Court observed that it is only when the motive is established and these facts are all proved that the court may be able to draw the inference that the poison was administered by the accused to the deceased resulting in his death. From the first question referred to above, it is apparent that it is of vital importance for the prosecution to establish as to whether the deceased died of the poison in question. In the context of the present case, the prosecution had to establish as to whether Murgan @ Murgesh died of kaner poisoning and not on account of any other poison. For determining this question, the CFSL report is of significant importance. If such a report is not given to the accused, it would certainly cause serious prejudice to her. It is because of this that we have arrived at the conclusion that the CFSL report ought not to be looked into while deciding this case. However, we shall also examine this case by assuming that the CFSL report can be looked into and see as to whether a different conclusion would result.

The case for the prosecution is that Murgan @ Murgesh, as also Rajeshwari, were administered kaner poison alongwith the juice which the appellant had purchased from the juice vendor [PW-11 (Sadhu Ram Gupta)]. The first circumstance that we have to examine is whether there is evidence to conclusively establish that Murgan @ Murgesh died of kaner poisoning. We also have to examine as to the nature of the poison which was given to Rajeshwari which resulted in her being taken to hospital and fortunately, ultimately, in her survival. Let us examine the evidence on record on this aspect. First of all, we have Exhibit-PW-10/B, which is a copy of the Register of Sunder Lal Jain Hospital. At S. No. 14 (a daily number) and corresponding to yearly number 705, the name Murgan is mentioned. His age has been given as 7 years and his address has been given as E- Block 557, Shakurpur. It is indicated that he had been brought to the hospital at 9.35 p.m. and he expired at 10.15 p.m. on the same day. This is a record of 03.02.1991. The symptom was indicated as "intractable convulsion". Under the remarks column, it has been indicated that the patient was given a calmpose injection 1.5 mg intravenously, slowly. An injection of epsolin 10 mg was also given intravenously. It also indicated that the patient was gasping and that adrenalin was also administered. As per this document, the only cause which has been given is "intractable convulsion". "Intractable. essentially means "something difficult to manage., "unmanageable.. Convulsions are involuntary contractions or a series of contractions of muscles. There could be many reasons for such convulsions. Of course, one of them is poisoning. What is notable in Exhibit-PW-10/B is that only conservative treatment was given in the sense that both the injections, calmpose and epsolin, were for controlling the convulsions. No stomach wash was administered. What is also important is that there is no MLC available insofar as Murgan @ Murgesh is concerned.

The next piece of evidence is Exhibit-PW-10/A, which is the death certificate, which also indicates the disease to be intractable convulsions. The post mortem report (Exhibit-PW-19/A) indicates the following:-

Froth was coming out through both nostrils and mouth; nails were blue; both lungs were congested; no abnormality was detected insofar as the heart was concerned. The stomach contained about 4 ounce of food and liquid. Significantly, the stomach contents were found to emit flit like smell.

The mucous membrane was found to be highly congested and the liver, spleen and kidneys were also found to be congested. The cause of death was not indicated in the post mortem report and it was noted therein that "cause of death in this case will be given after receipt of the chemical analysis report". Thus, so far, the symptoms / disease has been indicated as "intractable convulsions" as per the doctors at Sunder Lal Jain Hospital where Murgan @ Murgesh was taken for treatment and where he died. The doctor who conducted the post mortem did not give any opinion as to the cause of death and made an endorsement that the same would be given after the receipt of the chemical analysis report.

It is in these circumstances that the report of the CFSL (Exhibit- PX) clearly attains vital significance. We have arrived at the conclusion, for the reasons indicated above, that the CFSL report cannot be looked into. But, assuming that it can be looked into, we are still examining the case in order to ascertain as to which poison actually caused the death of Murgan @ Murgesh. The CFSL report (Exhibit- PX) merely indicates that the stomach, intestine with contents and liver, spleen and kidneys as also the 5 ml blood sample tested positive for the active constituents of kaner. No further explanation has been given in the report. It has not been indicated whether kaner is a poison or not. It has also not been indicated what are the active constituents of kaner. PW-19 (Dr R.K. Barua), the person who conducted the post mortem examination, proved his post mortem report (Exhibit-PW-19/A). In his examination-in-chief, he stated that the blood and viscera were preserved and sent for chemical analysis through the police. After so stating, the said doctor testified:-

In my opinion cause of death was due to carbamate poisoning.

In his cross-examination also, the said witness stated that he was sure that the death was due to poisoning.

This is the extent of evidence that is on record with regard to the poison. The observations of the doctors at Sunder Lal Jain Hospital are of a general nature inasmuch as they have observed that Murgan @ Murgesh was symptomatic for intractable convulsions. We have already noted above that such a condition may or may not be caused by poisoning and there may be other reasons for the same. Thus, Exhibit PW-10/B and Exhibit PW-10/A, in themselves, do not enable us to jump to the conclusion that Murgan @ Murgesh died of poisoning and / or to any specific conclusion with regard to the kind of poison which caused his death. Then, we have the post mortem report which clearly indicates that the stomach contents were emitting a flit like smell. "Flit. is a common household word in India and it is used for insecticides, particularly for killing mosquitoes. The modern variants of the old product which was known by the name of "flit. includes "Baygon Spray.. Such products contain carbamates.

The post mortem report, however, does not reveal any cause of death inasmuch as the doctor awaited receipt of the chemical analysis report. The CFSL report only indicates that the sample sent to them tested positive for the active constituents of kaner. The only conclusive evidence with regard to cause of death has been given by PW-19 (Dr R.K. Barua) who stated that the cause of death was due to carbamate poisoning.

Carbamate poisoning and poisoning due to kaner are entirely different. As pointed out above, kaner is the Hindi word for the Oleander plant which has two different varieties. The toxins contained in kaner are known cardiac glycosides, one of them is oleandrin. On the other hand, carbamates are salts (or esters) of carbamic acid. While carbamates and the glycosides contained in kaner are both poisonous, they are entirely different poisons. No evidence has been produced to indicate that carbamate poisoning can result from administering kaner.

If the version given by PW-19 (Dr R.K. Barua) is to be accepted that the cause of death was carbamate poisoning, then, the prosecution case falls to the ground. This is so because kaner does not contain any carbamate. Thus, even if we do consider the CFSL report (Exhibit-PX) as evidence, two divergent versions of the kind of poison used are before us and one of them completely demolishes the prosecution case. Confronted with this situation, we thought that a possible answer could be provided by examining as to what happened to PW-3 (Rajeshwari). As per the prosecution, she was also administered the same poison which was given to Murgan @ Murgesh. In the case of Rajeshwari, we find that there is an MLC on record being Exhibit-PW-18/A. The said MLC has been proved by PW-18, who is the record clerk at Ram Manohar Lohia Hospital, New Delhi. Although we do not approve of the manner in which MLCs are proved by record clerks and not by the doctors themselves, we are not entering into that arena of controversy for the purposes of this case. As per the said Exhibit-PW-18/A, it is indicated that a patient by the name of Dingle @ Rajeshwari, daughter of Ashok was brought to Ram Manohar Lohia Hospital on 04.02.1991 at 3.10 a.m. She had been transferred from Jeevodaya Hospital. The nature of injury was given as suspected poisoning at 9.00 p.m. on 03.02.1991. Her symptoms were indicated as convulsions lasting for 35 minutes. While it was mentioned that hers was a case of suspected poisoning, the nature of poison was not known. The treatment given to Rajeshwari was shown to be stomach wash which had already been given and fluids and vitals were being maintained. It is not known as to when Rajeshwari was discharged from the said hospital, however, she regained health and returned to normalcy after a few days. Since no doctor from Ram Manohar Lohia Hospital, New Delhi, who treated Rajeshwari, had been produced as a witness, there was no way to elicit any information with regard to the exact nature of the treatment given. It is important to note the testimony of PW-9 (Head Constable Rajbir Singh), who, pursuant to D.D. No. 22-A, proceeded to Ram Manohar Lohia Hospital where he collected the MLC of Rajeshwari. He stated that the Station House Officer also came to the hospital and that he (HC Rajbir Singh) handed over a copy of the D.D. report and the MLC to him. The said Station House Officer directed the said witness PW-9 (Head Constable Rajbir Singh) to collect the stomach wash from Jeevodaya Hospital where Rajeshwari had been taken first. PW-9 has further testified that he contacted the lady doctor Dr Dolly at that hospital who told him that the stomach wash of Rajeshwari had not been preserved and had been thrown away as the police cases were not dealt with by the said hospital and that only first aid was given to Rajeshwari to save her. This clearly indicates that the material evidence in the form of stomach wash, which could have been sent for chemical analysis to determine the exact nature of the poison, had been destroyed by Jeevodaya Hospital. It is apparent, therefore, that the exact nature of the poison which afflicted Rajeshwari is not determinable from the evidence with regard to Rajeshwari. It is only by inference from the evidence in respect of the deceased Murgan @ Murgesh that a conclusion can be arrived at with regard to the nature of poison which may have afflicted Rajeshwari.

Thus, we are left with the two conflicting views with regard to the nature of the poison used; whether it was carbamate poisoning or it was kaner ? It is obvious that when such divergent possibilities exist, the present case cannot be construed as one which is beyond reasonable doubt. In fact, there is sufficient doubt and there are clear cut reasons, as indicated above, for having such doubts. This circumstance, i.e., the inconclusiveness with regard to the poison, is in itself sufficient to lead to the benefit of doubt being given to the appellant and her consequent acquittal. However, for the sake of completeness, we shall also examine the testimonies of important witnesses. The most important witness in this case is the injured witness PW-3 (Rajeshwari). In her examination-in-chief, this witness has fully supported the case of the prosecution. There are some minor contradictions between her testimony and those of her father (PW-2) and other witnesses, but we are not going into those issues. In her cross-examination, she was asked the question: As to with whom she had come to court ? Her answer was that she came with her parents. The trial court noted that on being asked the question as to what was told by the police officials, the said witness started thinking for some time and did not reply. Thereafter, she said that Tai mixed medicines in the juice. This question and answer does indicate that the said witness probably stated what she was asked to say. The defence counsel had pointedly asked her as to what the police officials had told her. Initially, she did not reply and started thinking. Thereafter, she stated that Tai mixed medicines in the juice. The inference that can be drawn from this is that the police officials told PW-3 (Rajeshwari) that it was her Tai who had mixed medicines in the juice. The Tai in this case is the accused / appellant Karpai. To our minds, this question and answer makes the testimony of this witness doubtful.

The next witness who is of importance is PW-11 (Sadhu Ram Gupta), who is the juice vendor. It is the prosecution case as also admitted by this witness that Karpai alongwith the two children had come to his rehri and purchased juice from him which was given to the two children. It is obvious that if Karpai was not implicated in this case, this witness would have become the prime suspect because it is the juice supplied by him which was given to the two children and they took ill immediately thereafter. Therefore, the testimony of this witness has to be considered with great circumspection and cannot be relied upon without corroboration. Unfortunately, if the testimony of PW-3 (Rajeshwari) is put aside, there is no corroboration from any other witness. It is only his word that Karpai had mixed some powder which she took out from a puria from the corner of her saree with the juice provided by him and that the juice was thereafter split into two glasses and given to the two children-the boy and the girl. The investigation on this aspect of the matter is also quite deficient inasmuch as the glasses in which the juice was given had not been recovered or sent for chemical analysis nor the juice which was administered sampled and sent for analysis. This would have ruled out the suggestion given by the defence that the glasses provided by the juice vendor could have been contaminated.

Before we part with this decision, we may also note the unhealthy trend which we are noticing in several decisions of the trial courts wherein the alleged confessional statements are reproduced in their entirety without examining as to which part is admissible and which is not. The courts must be mindful of the fact that only that part of the disclosure statement is admissible in evidence which leads to a discovery of fact. Other inculpatory parts are totally inadmissible. Section 27 of the Indian Evidence Act, 1872 is an exception to Sections 25 and 26 thereof and is permissible only within the strict limitations provided therein. The courts must be mindful of this. If the courts look at the disclosure statements in their entirety and get prejudiced, this would lead to a great travesty of justice. We also note that in practically all cases involving serious crimes, there is an alleged confession recorded before a police officer. It makes us wonder as to why criminals commit crimes when they are to voluntarily confess to the same ! Recording of statements of accused which lead to disclosure and discovery of the fact is one thing, but to record full-fledged alleged confessions is another. It does not augur well for the system of criminal investigation if cases are to be based entirely upon so-called voluntary confessions before police officers. It also does not behove the courts to reproduce the entire alleged voluntary confessions made before police officers in their judgments ignoring which parts are admissible and which parts are inadmissible.

In view of the discussion above, there is doubt in our minds with regard to the prosecution case. The benefit of such doubt has to go to the appellant. Consequently, granting such benefit to the accused / appellant, we acquit her of all charges in this case. The appellant is currently on bail. In view of her acquittal, the bail bond stands cancelled and the surety stands discharged.