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Judgment
S. Acharya, J.—Death Reference No. 1/78 u/s 366, Code of Criminal Procedure and Jail Criminal Appeal No. 117/78 arise out of the same judgment passed in Sessions Trial No. 89/77 by the Sessions Judges, Balasore Common questions of law and fact arise for consideration in both the cases and one set of argument was advanced by the counsel appearing for the parties. Accordingly both the cases are hereby being disposed of by this common judgment.
The accused Shantilata Rout, Appellant in Jail Criminal Appeal No. 117/78, stands convicted u/s 302, Indian Penal Code on the finding that she caused the death of her son by poisoning and she has been sentenced thereunder to death subject to confirmation by this Court.
The deceased. Jayadeb Rout was the eldest son of the accused and he was about 22 years old at the time of his death. The accused now has another son and two daughters living.
The prosecution case, in short, is that the deceased was suffering from fever for about 3-4 days just prior to his death. On 7-11-1976 he was a little better, but as he was having muscular pain and ache in his body he requested his mother, the accused to get some Mohua liquor for him. The accused accordingly brought some Mohua liquor and gave the same to P.W. 2 the 16 year old daughter of the accused asking her to give the same to the deceased. At that time the accused asked P.W. 2 to keep apart a portion of the same so that it could be given to the deceased later with some medicine mixed with the same. Saying so the accused went to village Khaira. As desired by the accused, P.W. 2 gave 3/4th of the said liquor to his brother, the deceased, at about 4 p.m. on that day, and kept apart the rest of it. The accused returned from Khaira at about 530 p.m. on that day with some white substance in a glass bottle and told P.W. 2 that she had brought the medicine. She asked P.W. 2 to bring a glass tumbler. P.W. 2 gave a glass tumbler with the Mohua liquor, which she had kept apart, to the accused and the latter poured the white substance, which she had brought from Khaira, into the said tumbler and gave the same to the deceased. The deceased drank the same, but while taking the same he complained of foul smell in the liquor. So P.W. 2, as desired by the accused, gave some sugar to the deceased who ate the same. Some time thereafter the deceased started vomiting in front of his house. Soon thereafter he shouted and fell down on the ground and became senseless. Seeing this P.W. 2 poured some water on the head of the deceased, but as he did not regain consciousness she (P.W. 2) called Krushna Prasad Rout (P.W. 1) the separated uncle of the deceased from his adjoining house and asked him to see what had happened to the deceased. P.Ws. 1 and 5 and one Upendra came to that place they brought the deceased to the inner verandah of the house and made him lie down there. The people who came to the house of the deceased soon thereafter desired that the deceased should be removed to the hospital, but the accused dismissed them from doing so. Within a short time the deceased died at that place. After his death the villagers who had gathered at that place asked the accused as to how the deceased died. At first the accused did not tell anything. But as the villagers decided to report the matter at the police station the accused informed them that she mixed the poisonons insecticide which had been brought by the deceased for the protection of crop, with Mohua liquor and gave the same to the deceased to drink, as a result of which he died. After she made the said statement the villagers asked P.W. 1 to report the matter at the police station. P.W. 1 went to the Khaira Police Station and lodged the F. I. R., Ext. 6, at 9 a. m. on 8-11-1976. The A. S. I. (P.W. 6), who was then in charge of the said police station, immediately left for the accused''s village, reached there at 9.45 a. m. and immediately proceeded to investigate into the case. He, later in the evening at 7 p. m. on the same day, made over charge of the investigation of the case to P.W. 7. the Officer-in-charge of the Khaira Police Station. From that time P.W. 7 took up investigation of the case. On l0-11-1976 P.W. 7, for reasons best known to him, drew up another F. I. R. (not proved) on his own information and then registered a case u/s 302, Indian Penal Code against the accused and arrested her on 11- 11-1976. On that day, it is alleged, the accused gave discovery of a bag, as contemplated u/s 27 of the Evidence Act, buried in the manure pit of P.W. 1. That bag contained one glass bottle (M. O. IV) with some white liquid in it and an aluminium bottle (M. O. V) which was emitting smell of poison. Those articles were seized. The viscera of the deceased preserved by the Lady Doctor. P.W. 8, who held the post-mortem examination on the dead body, was sent to the Director, of State Forensic Science Laboratory for chemical examination. The accused ultimately was charge-sheeted for an offence u/s 302, Indian Penal Code, and on trial she has been convicted and sentenced as stated above.
The accused denied all the allegations against her. According ''to her, she was not present in the house when the deceased became unconscious and died as she had gone out to cut grass. When she was coming back with grass towards her house her second son and daughter met her on the way and informed her that the deceased was vomiting. When she hastened back home she there found that the deceased was lying dead and many people had gathered round the deceased. She denied to have made any extra-judicial confession before the villagers or to have given discovery of any article to the police as alleged by the prosecution, According to her, her daughter (P.W. 2) was keen on marrying P.W. 5 against which she (the accused) and the deceased were protesting, and so P.W. 5 has got this false case foisted against her.
8 witnesses have been examined for the prosecution and none for the defence. P.W. 1 is the separated uncle of the deceased. P.W. 2 is the 16 year old sister of the deceased. P.Ws. 3 and 4 are two co-villagers. P.W. 5 is Jagabandhu Swain who also is a co-villager of the accused. P.Ws. 6 and 7 are the Investigating Officers. P.W. 8 is the doctor who held post-mortem examination on the dead body of the deceased.
Law is wen settled that in a case of poisoning 3 questions arise for ,consideration, viz. (i) did the deceased die of the poison in question (ii) had the accused the poison in question in his possession, and (iii) had the accused an opportunity to administer the poison in question to the deceased? Apart from the above, the motive for administering the poison has also to be established. Only when the above facts are all proved the Court may be able to draw the inference that the poison was administered by the accused to the deceased resulting in his death. In this connection the decisions Ram Gopal Vs. State of Maharashtra, and Mohan Vs. State of Uttar Pradesh, may be seen.
The prosecution case of death of the deceased by poisonous insecticide is not established on the evidence of P.W. 8. She has stated:
I donot remember If I found any internal change which is usually connected with poisoing. Had I found any change in the system of the deceased which is usually connected with poisoning, I would have noted the same in the post-mortem report.
She could not give any definite opinion regarding the cause of the death and specifically stated so in her deposition in the Court and in the post-mortem report, Ext. 13. She has further stated that "in this case the possibility of the death due to heart failure cannot be eliminated". The report of chemical examination of the viscera of the deceased (Ext. 11/1) shows that Endrine or other insecticidal poisons could not be detected in that viscera. The dead body had not decomposed at the time of the post- mortem examination, as specifically deposed to by P.W. 8. So the possibility of disappearance of poison in the viscera or its effects or symptoms on the body by the time of the post-mortem examination due to decomposition is negatived. In the post-mortem report (Ext. 13) in column I under the heading "External Appearance" it is only mentioned "Froth form mouth". The doctor of course has not stated so in her deposition. The said froth from the deceased''s mouth was not collected by the Medical Officer, nor any sample of the froth from the deceased''s mouth, deposed to by some witnesses, was sent by anybody far chemical examination. The possibility of froth due to poisoning is eliminated as no signs or symptoms of any poison could be detected in the dead body. Moreover, the possibility of froth due to the Mohua liquor taken by the deceased in two instalments cannot be eliminated. So merely on the evidence of froth from the deceased''s mouth one cannot say that the death of the deceased was due to poisoning. Therefore, on the doctor''s evidence and the post-mortem report it is not established that the deceased died of Endrine or any other poisonous insecticide (as is the prosecution case) or for the matter of that, due to any poison whatsoever.
It is now to be seen if on any other evidence on record it is established beyond doubt that the deceased of the poison in question. In this connection one has to refer to the evidence of P.Ws. 1 to 5. P.Ws. 1, 2 and 5 (who only saw the deceased be are his death have stated that the deceased had vomiting before his death and foul smell was coming out of the vomiting substance. The vomit of the deceased has not been collected by anybody, and there is nothing positive to show that the said vomit contained any poison. The deceased had taken Mohua liquor in two instalments (P.W. 2) and so the possibility of his vomiting due to the effect of the same cannot be ruled out.
Moreover, merely on the evidence of p. ws, 1 and 2 that the said vomiting substance was omitting smell of an insecticide, without anything else to support the same, it will be dangerous to jump to the conclusion that the vomiting substance contained a poisonous insecticide. The evidence of P.Ws. 1 and 2 to that effect does not inspire confidence. A poisonous insecticide, as is well known and as stated by the prosecution witnesses, emits a very foul smell. That being so, if the insecticide was mixed with the Mohua liquor by the accused in the presence of P.W. 2, as alleged, P.W. 2, being admittedly acquainted with the smell of the insecticide, would not have allowed that liquor to be taken by her brother the deceased. Moreover, the deceased also would not have taken that liquor if it was mixed with such a foul smelling poisonous insectide, more so when it was given by his mother who was ill-disposed towards him.
On the above frail and unconvincing evidence on this aspect it becomes extremely difficult to hold that the vomiting excreta of the deceased contained poisonous insecticide.
On the evidence of P.Ws. 3 and 4 that by the time they went to the house of the deceased soon after his death they found that the deceased''s vomits had already been washed out it is suggested by the prosecution that the accused had washed out the same in order to cause disappearance of incriminating evidence in the said, vomits. There is absolutely no convincing evidence that the vomit contained any poison. There is no evidence that the accused actually washed out or had the opportunity of washing out the vomits when her son was lying dead in the house and many people were present there. In the absence of any positive evidence of washing out of the vomits and that too by the accused no adverse inference as suggested by the prosecution can be drawn against the accused on the above frail evidence.
The prosecution relies on the alleged extra-judicial confession of the accused to establish its case of the death of the deceased by poisonous insecticide. P.Ws. 1 to 5 have stated that after the death of he deceased and when quite a number of villagers came to the house of the deceased the villagers demanded an explanation from the accused about the death of the deceased. At first the accused did not tell anything, but later on the insistence of the villagers she told them that she had administered poison to her son (the deceased) due to which he died. Their are various discrepancies on material particulars and glaring unconvincing features in the prosecution evidence on this aspect due to which it becomes extremely difficult to act on the evidence of extrajudicial confession. It is well settled that the evidence of extra-judicial confession in the very nature of things is a very weak piece of evidence. The exact words in which the extra judicial confession was allegedly made by the accused have not been stated by anybody. The evidence about the attending circumstances, which allegedly impelled the accused to make the extra-judicial confession, is highly discrepant. According to P.W. 1 when the villagers demanded an explanation about the cause of the death of the deceased from the accused, she at first did not tell anything out simply said .that the deceased was suffering from fever and he died due to fever. At this the villagers asked the accused to tell the truth or else they would report the matter at the police station. Then the accused told that she mixed some insecticide meant for protection of crops with Mohua liguor and gave the same to the deceased and so he died. But the evidence of P.W. 2 on this aspect is as follows:
The villagers asked my mother as to how my brother died. At first, my mother did not tell anything. The villagers told that they would report the matter at the P. S. as the death of my brother appeared to be suspicious. At this my mother told that the matter should not be reported at the P. S. and that should be decided in the village. My mother confessed that she had administered poison to my brother and had killed him. My mother had also told that the poison was an insecticide and that was brought by Jaideb for protection of crops.
The statement of p w 3 on this aspect is as follows:
When the accused did not tell us anything, we told that the death of Jaideb appeared to be Suspicious and unless she would tell us the reason and the circumstances regarding the death of Jaideb then we would not be able to dispose of the dead body without reference to the P. S.. When we told like that the accused told m that she would tell the truth and that we should help her and the matter should be decided in the village without reference to the P. S.. The accused told us that she was at fault for the death of her son and that she had administered poison to her son by mixing the same with Mohuli liquor. The accused also told that her son Jaideb had brought an insecticide for protection of mango flowers and that she had mixed that insecticide with Mohuli liquor and had administered the same.
In his (P.W. 3) cross-examination he further stated:
When the accused told that she had mixed insecticide in the Mohuli liquor and administered the same to her son, we asked as to where she had kept the container of the insecticide and the accused stated that f she broke the container and threw it away.
This part of P.W. 3''s evidence has been directly contradicted by P.W. 5. The evidence of P.W. 4 in this connection is:
... We asked the accused as to how Jaideb died. but she did not tell us anything. We then told the accused that if she would not tell anything, then we would not dispose of the dead body, as the death of Jaideb seemed to be suspicious and as such the police would look into the matter. Saying like this we are going away from the house of the accused. When we started to leave the house of the accused, the accused told us that she would tell the truth and then she said that she had mixed insecticide with Mohuli liquor and had administered the same to her son and as such Jaideb had died. The accused further stated that J aide b had brought the insecticide for protection of mango flowers and she had mixed that insecticide with Mohuli liquor.
The evidence of P.W. 5 on this aspect is:
After the villagers came, I also went to the house of Jaideb. The villagers asked the accused as to how Jaideb died and at first the accused did not tell anything. The villagers then told that they had suspicion regarding the death of Jaideb and as such if she (accused) would not tell the circumstances in which Jaideb died, then they would not dispose of the dead body and go away and the police would look into the matter. At this, the accused told that she was at fault and that she had administered poison to her son and as a result of that her son died. The accused also told that Jaideb had brought an insecticide for protection of mango flowers and she mixed that insecticide with Mahuli liquor and gave the same to Jaideb and after taking the same Jaideb died.
From the above evidence on record, apart from the fact that the witnesses have not stated the exact words in which the said extra-judicial confession was made, it is quite evident that the premises and the antecedent circumstances, which allegedly prompted the accused to make the confessional statement as well as the tenor and the text of the actual statement of the accused do not tally with each other.
Moreover, the alleged statement of the accused that the poison administered by her to the deceased was an insecticide which was brought by Jaideb (deceased) for the protection of crops (as said by P.W. 2) and ''mango flowers'' (as stated by p ws. 3 and 4) is not true, as according to P.W. 2 the white substance, which the accused brought in a class bottle from village Khatra, was poured by her into a glass tumbler containing some Mohua liquor and that was given to the deceased and he drank the same. So the insecticide, which had been brought by the deceased for the protection of crops or mango flowers, was certainly not administered to the deceased. Moreover, if the accused wanted to utilise or actually utilised the insecticide purchased by the deceased, then there was no necessity for the accused to go to village Khaira at 4 p. m. and come back therefrom at 5.30 p. m. with the white substance In a glass bottle, as stated by P.W. 2. So either the evidence of P.W. 2 to the above effect is untrue or the above evidence of extra-judicial confession is false.
Moreover, if the accused really made such an extra-judicial confession, the villagers would certainly have insisted to know as to what happened to the glass bottle in which poison was brought or the glass tumbler in which the poison was served to the deceased. P.Ws. 1, 3 and 5 do not state anything about this. The evidence of P.W. 4, that when the villagers asked the accused about the container of the insecticide she stated that she broke that container and threw it away, is directly contradicted by P.W. 5 who stated:
Neither myself nor the villagers asked the accused as to where she kept the bottle containing the insecticide.
Apart from the above unconvincing feature and discrepancy in the evidence on this aspect, no effort was made by anyone including the I as to find out the said broken container. The above facts breed suspicion against the evidence on extra-judicial confession.
Apart from the above infirmities, evidence of extra-judicial confession does not inspire confidence as there is absolutely no mention about the same in the F. I. R. which was lodged by P.W. 1 at the Khaira police station at about 9 a. m. on the morning following the death of the deceased. In the said F. I. R. no cause for any Suspicion against the accused for having caused the said death is stated. If really such an extra-judicial confession was made in the evening of 7-11-1976 soon after the death of the deceased in the presence of quite a number of villagers including P.W. 1, then it was not expected of P.W. 1 not to have mentioned anything about the same in the said F. I. R. lodged by him after more than 12 hours of the death of deceased.
The learned Government Advocate''s submission that the said omission cannot be utilised as P.W. 1 was not confronted with that omission does not, in this case carry any weight, as firstly it is not a contradiction and secondly in the facts and circumstances of this case obvious conclusions automatically and irresistibly flow from that patent omission, and one cannot shut one ''s eyes to such an omission. Moreover, insistence on confrontation of such an omission, in the facts of this case, is too technical proposition, and that would only have enabled the prosecution to plug in the said obvious deficiency with a belated and false explanation. The said omission in this case has its own tale to tell and it throws a heavy cloud of doubt on the said extrajudicial confession.
Apart from the above, the evidence on record shows that the A. S. I. (P.W. 6) arrived at the spot at 945 a. m. on 8-11-1976. he took up investigation of the case in all its aspects and examined P.Ws. 1 and 4. At that time the accused admittedly was ?resent in her house. P.W. 6 handed over investigation of the case to P.W. 7, the Officer-in-charge of the Khaira Police Station, at about 7 p. m. on the same day. P.W. 7 thereafter, examined P.W. 5 That being so the arrest of the accused only on 11-11-1976 clearly goes to show that the said P.Ws. did not make any mention about the extra-judicial confession before 11-11-1976 for if they had done so, the 1. Os. certainly would have arrested the accused then and there without allowing her to move scot-free till the 11th. This is again another circumstance which strongly militates against the truth of the extra-judicial confession.
Non-examination of the Ward Member, a responsible person of the village who allegedly was present at the time when the extra-judicial confession was made, also casts a shadow of doubt on the extra-judicial confession.
Apart from the above deficiencies and unconvincing features in the evidence on record about the extra-judicial confession, the same cannot at all be utilised in this case, as according to P.W. 3 the said extra-judicial confession was made in the presence of 40.50 villagers including one Sridhar Das, the Grama Rakhi of the village. It is well settled that a Grama Rakshi is a Police Officer Madan alias Indu Barik v. State 43 (1977) C.L.T. 512 and any contession made in his presence must be held to be
inadmissible in evidence. This is the last nail on the coffin of the extra-judicial confession.
The prosecution case that the accused was in possession of the poison in question at the relevant time is sought to be established on the evidence of alleged discovery of M. Os. IV and v. u/s 27 of the Evidence Act which on chemical examination were found to have contained Endrine, which undoubtedly is a poisonous substance. The evidence on this aspect is absolutely unworthy of credit. The said article were allegedly discovered u/s 27 of the Evidence Act from a manure pit in the Bari of P.W. 1. P.W. 1 does not speak anything about the same. None of the family members of P.W. 1 who according to P.W. 3. a seizure witness, were present at the time of the said discovery, has been examined in this case. P.W. 2, who admittedly stays in the house adjacent to the house of P.W. 1 and from whose Bari the alleged discovery was made, does not state anything about the said discovery or seizure of those articles. Only P.Ws. 3, 4 and 7 speak about the said discovery and seizure.
According to P.Ws. 3 and 4, M. Os. IV and v. had been kept buried in the manure pit belonging to P.W. 1, and the accused brought out the bag containing the same after digging about one foot of the manure pit. But P.W. 7 has very categorically stated that "the said incriminating articles had not been buried in the manure pit, but the same had been kept on manure and had been covered by some straw." While according to p. w 3 the said discovery and seizure were made in the forenoon at 10 a. m., according to P.W. 7 the accused gave discovery of the said incriminating articles at 4 p. m.. The bag which contained M. Os. IV and v. has not been produced in the Court, and nothing is known as to what happened to that bag. Apart from the above, according to P.Ws. 3 and 4 the aluminium container (M. O. IV) which was inside the said bag was labelled as "TAFDRIN" by a white printed paper. But P.W. 7 states that on the printed paper on the aluminium bottle it was written "INSECTICIDE DAFDRIN 20 POISON." Moreover, while P.W. 3 states that after seizure of the said articles the I. O. wrapped the same separately with paper and kept the same in a ''wooden soap case'' and wrapped cloth over that box, P.W. 7 (I. O.) states that he kept the seized goods in a card-board container.
Moreover, no importance can be attached to the said discovery as the said articles were allegedly found from the manure pit of P.W. 1 in his Bari, which is separated from the Bari of the accused by means of a fence. There is nothing to show that P.W. 1''s manure pit in his Bad was accessible to the accused.
On the aforesaid evidence, no reliance can be placed on the evidence of alleged discovery or seizure of the said articles.
Apart from the above discrepancies and infirmities in the evidence on record regarding the said discovery and seizure of the aforesaid articles, nobody has stated that the accused had anything to do with the said M. Os. at any time whatsoever or that the poison was brought by the accused m any of the said M. Os. Therefore, on this consideration also the evidence of discovery of the aforesaid articles is of no consequence.
The prosecution relies on the evidence of an alleged incriminating conduct of the accused, deposed to by P.Ws. 2 and 5. to the effect that the accused dissuaded the villagers from taking the deceased to the hospital when he was lying senseless in his house. P.W. 1, who arrived at the house of the deceased very soon after the deceased started vomiting and in whose presence the deceased died, does not speak anything to the above effect. The statement of P.Ws. 2 and 5 that when the accused did not approve of sending the deceased to the hospital, Puspalata, the aunt of P.W. 2, told the accused that she would pay the expenses for taking the deceased to the hospital, but even then the accused did not agree to send the deceased to the hospital is false. P.W. 3 has categorically stated that Puspalata came to the house of the deceased quite some time after the latter''s death. So she could not have offered to pay the aforesaid expenses. Moreover, the evidence of P.W. 5 regarding the alleged preparation and arrangements made by him and one Upendra to take the deceased to the hospital is not corroborated by any evidence whatsoever evidence on this aspect does not inspire confidence.
The motive suggested by the prosecution for causing the death of the deceased is that:
One Mayadhar Sahu, who was the field servant of the accused for some years, had illicit connection with her, due to which the villagers were teasing and criticising the deceased. Because of the above fact the deceased''s father removed Mayadhar from service, but still he was stealthily visiting the accused and was having illicit connection with her. The deceased once personally saw his mother''s nefarious activity with the deceased, and so he became furious on his mother and asked her not to indulge in such activities in the interest and prestige of the family. On one occasion the deceased wanted to assault the accused with a crowbar, but P.W. 2 intervened and snatched away the crowbar. On that occasion the accused had threatened the deceased to kill him.
Only P.W. 2 has testified to the above effect, and there is absolutely no corroboration of the same from any other quarters. P. w .1, who is the uncle of the deceased and P.W. 2, and admittedly lives in the house adjacent to the house of the accused-both of which are in one block- does not speak a single word about the said or any motive. P.Ws. 3 and 4, who also are two co-villagers, do not speak anything about the aforesaid matter. If the relationship of Mayadhar with the accused was really of the aforesaid nature and it was known to the villagers and they used to openly tease and criticise the deceased and his father on that account, then P.Ws. 1, 3 and 4 would have certainly deposed about the said matter. P.W. 2 in her statement u/s 164 Code of Criminal Procedure on 10-11-1976 did not ten anything about the said motive. Her attention of course has not been drawn to the said omission and so technically one cannot uttlise the above omission to discredit the veracity of P.W. 2. But the above omission creeps into the mind while assessing the evidence on this aspect of the matter, especially because of the stance taken 190 by P.W. 2 in this case and as none alse breathes a word about this aspect of the matter.
On such frail and unconvincing evidence it is difficult to say that the motive for administering the poison is established in this case.
There is nothing convincing in the evidence on record to establish beyond reasonable doubt that the accused had the poison in question in her possession at the relevant time. It is only P.W. 2 who has stated that her mother, the accused; brought some white substance in a glass bottle from village Khaira and told her that she had brought medicine in the said glass bottle. Thereafter the mother poured "the medicine" which she had brought from Khaira into the glass tumbler with some Mohua liquor and gave the same to the deceased who drank the same. There is nothing in the evidence on record that the said glass bottle contained any poisonous insecticide or for the matter of that any poison whatsoever. The evidence of discovery of a glass bottle from the manure pit of P.W. 1 is, for reasons stated above, unworthy of any credit. Apart from that, the glass bottle (M. O. V) has not been identified by anybody as belonging to the accused or as the bottle in which the accused allegedly brought the poison or the medicine from Khaira. There is nothing in evidence to connect the said glass bottle with the accused or with the alleged crime. There is nothing to establish that the vomiting excreta of the deceased contemned any poison whatsoever. No sign or symptom of poison could be detected in the viscera or the dead body of the deceased. There is no evidence on record that the accused had the poison in question in her possession at the relevant time. The evidence regarding extra-judicial confession by which possession of a poison by the accused was suggested is most unconvincing and cannot be utilised for reasons stated above.
Apart from the above, there are various other unsatisfactory features in the evidence on record which create suspicion about the prosecution case.
The F. I. R. in this case was lodged by P.W. 1 on 8-11-1976 at 9 a. m. at the Khaira police station which is only 12 kilometres from the deceased''s village. It is not known why the F. I. R. was lodged after more than 12 hours of the death of the deceased though, as alleged, the villagers on the evening of 7-11-1976 sent P.W. 1 to the police station to lodge a report about the incident.
Moreover, it is evident from the deposition of P.W. 6 and from the order sheet of the case that this F. I. R. was not sent to the Court as required u/s 157, Code of Criminal Procedure, and for the first time it was produced and exhibited in the case only when P.W. 7, the I. O. was examined 10 the trial Court on 10-3-1978. There is nothing in the said F. I. R. to show that it was ever produced in any Court whatsoever before 10.3.1978. In the facts and circumstances of this case the non-observance of the mandatory provisions of Section 157 of the Code of Criminal Procedure, the production of this F. I R. at such a late stage, the omission of the prosecution case in the said F. I. R. and the arrest of the accused after four days of the death of the deceased on the prosecution case later made out on another F. I. R. drawn up by P.W. 7 on his own information only on 10-11-1976 (not proved, though on record) create grave suspicion against the prosecution case. In this connection the decision State v. Basudeb Senapati and Ors. 23 (1957) C.L.T. 449 may be seen.
18 The defence case, that as P.W. 2 was keen on marrying P.W. 5, and the accused and the deceased did not approve of that idea and they were protesting against the same and so P.W. 5 on the death of the deceased got this false case foisted against the accused, gets some support from the evidence of P.W. l who has stated that there was a proposal of marriage of P.W. 2 with P.W. 5 and that P.W. 5 was in visiting terms with P.W. 2 and her family members and vice versa. The categorical denial of P.W. 2 of the above fact deposed to by P.W. 1 is also a circumstance to lend some support to the defence case.
1 here are certain other unsatisfactory and unconvincing features in the evidence on record but it is not necessary to deal with the same as on the discussions and consideration already made above the essential elements to establish the prosecution case of death by poisoning have not been established in this case. So the accused is entitled to be acquitted of the charge u/s 302, Indian Penal Code of which she has been convicted by the Court below. Accordingly, her conviction u/s 302, Indian Penal Code and the sentence passed against her thereunder are set aside and she is acquitted of the same. She be set at liberty forthwith.
In the result, Death Reference No. 1 of 1978 is discharged and Jail, Criminal Appeal No. 117 of 1978 is allowed.
P.K. Mohanti, J.
I agree.
Death Reference No. 1 of 1978 discharged.
Jail Criminal Appeal No. 117 of 1978 is allowed.