State of Rajasthan @APPELLANT@Hash Reshma

This Criminal Appeal has been filed against judgment & order dated 25.11.2005 passed by Additional Sessions Judge (Fast Track) No.2, Bikaner in

Sessions Case No.105/2004, whereby he acquitted the accused from the charge for offence under secs.302, 307 in the alternative sec.328 IPC.

Briefly stated, facts of the case are that on 05.09.2004 complainant Sameer Khan lodged a written report at Police Station Chhatargarh to this effect

that he resides with his family in ‘dhani’ of his field. On 26.08.2004 his daughter-in-law Reshma prepared meal- Sangriya-ki-sabji and Roti and

after taking meal, all of them felt uneasy. However, in the night also she prepared Dal and Roti. After eating this meal in the night, all of them started

vomiting. At midnight, Murad Khan died and then they doubted that the preparation of food made by Reshma was poisonous. All of them went to

hospital at Chhatargarh, where his wife Jeba and son Liyaqat also passed away. Thereafter, remaining persons were referred to Bikaner. During the

course of treatment at Bikaner, Sammu Khan also died on 29/30.08.2004. On 30.08.2004, Om Prakash & Gome Khan came to him and informed that

they were told by Reshma that she mixed poison with ‘sabji’ and Roti.

On this written report, an FIR (No.113/2004) was registered against accused-respondent Reshma for offence under secs.302, 307 IPC and after

investigation, challan was filed against her.

The learned trial court after hearing both the parties, framed charges against accused-respondent for offence under secs.302, 307 in the alternative

under sec.328 IPC and explained the charges to the accused, who denied the same and sought trial.

After recording prosecution evidence, statement of accusedrespondent under sec.313 CrPC were recorded. Dr B.K. Gupta was produced as witness

in defence and 8 documents were exhibited by her in defence.

The trial court, after hearing both the parties, acquitted the accused-respondent from the charge levelled against her vide judgment dated 25.11.2005.

Being aggrieved by the judgment of acquittal dated 25.11.2005 passed by the trial court, the State of Rajasthan has preferred this appeal on various

grounds.

It was contended that the trial court has committed illegality in disbelieving the prosecution witnesses whereas from statement of the prosecution

witnesses the guilt of the accused-respondent was well proved and established on record. It was also contended that PW1 Ameena, PW2 Om

Prakash, PW3 Gome Khan, PW4 Sameer Khan and PW5 Jalam Singh have clearly stated in their statement that they were told by the accused-

respondent Reshma that she mixed poison in Sangri and Dal-Roti and from statement of these prosecution witnesses the guilt of the accused-

respondent is well proved and established. The recovery of spray bottle and a coconut oil bottle from a box were also well proved by statement of

PW6 Kasam Khan.

It was further contended that the prosecution case is fully corroborated and supported by medical evidence. Prosecution witnesses PW9 Dr O.P.

Nahar and PW10 Dr Devendra Choudhary clearly stated in their statements that according to FSL report Ex.P19, cause of death was administering

poison, namely Gorgeno-phosphorous insecticide. Thus, the impugned judgment deserves to be set aside.

It was also contended that a bare perusal of impugned judgment passed by the trial court would clearly go to show that while passing the impugned

judgment, the trial court has not applied its judicious mind nor has acted judiciously, which resulted in loss of substantial justice and therefore, the

impugned judgment is liable to be quashed and set aside.

Per contra, learned counsel appearing for the respondentaccused vehemently opposed the contentions raised by the Public Prosecutor and stated that

the accused-respondent in her statement under sec.313 CrPC has categorically stated that on consumption of the food, she also become seriously

affected by poison and she was also treated at Chhatargarh hospital and thereafter in PBM Hospital, Bikaner and she was discharged from the

hospital in the last. She further stated that Gome Khan on account of enmity, in collusion with Jitendra Singh falsely implicated her. Jitendra Singh,

after receiving gratification from Gome Khan has consciously concealed record of her admission in the hospital and concocted false story of her

involvement in the commission of said crime. In reality, she does not know Jalam Singh and Om Prakash and on the date of the occurrence, she did

not prepare the meal.

In defence, DW1 Dr B.K. Gupta was also examined and in documentary evidence, Police statements of Ameena, Om Prakash, Gome Khan, Sameer

Khan, Jalam Singh and Meruna were exhibited as Exhbits D1 to D6 as also outdoor register Ex.D7 and Bed-head ticket of Reshma Ex.D8 were

exhibited.

It was also contended that PW10 Dr Devendra Chaudhary in his cross-examination admitted that the accused-respondent Reshma also came to her

for treatment. In this connection, record of her treatment Ex.D7 was also placed on record and Ex.D7A is certified copy thereof. Dr Devendra

Chaudhary in his statement has categorically stated:

esjs ikl bykt ds fy, vk;s bu yksxksa esa jâ€s kek Hkh Fkh ftldh izfofZ’V iznâ€kZ Mh-7 esa , ls ch fgLlk esa dh gq;h gS iznâ€kZ Mh-7 esjh Loa;

dh dyeh gSA iznâ€​kZ Mh-7 dh QksVks dkWih iznâ€​kZ Mh-7, gSA

From perusal of these documents, it is clear that on 27.08.2004, the accused-respondent Reshma was also admitted in the hospital.

It was also contended that in the present case the FIR was lodged after delay of 6 days. All the witnesses categorically stated that on 30.08.2004

Reshma confessed before them regarding said commission of the crime. If this fact is true, why the FIR was lodged on 05.09.2004, after delay of six

days. Said extra judicial confession made by the respondent-accused is not corroborated by other evidence. The confession was said to be made on

30.04.2008. On that day, Reshma was admitted in the hospital. As per Ex.D8, she was given medicine for reducing the effect of poison. She was also

referred to psychiatrist.

In this regard, report of the psychiatrist dated 02.09.2004 is also placed on record as Ex.D8. On perusal of the report, it is clear that she was weeping,

she was not taking any food from mouth and she was under acute depression. Under these circumstances, it can not be said that said confession was

made by her in fit state of mind. Therefore, the prosecution has failed to prove guilt of the accused-respondent beyond reasonable doubt and the

learned trial judge has rightly concluded to acquit the accused-respondent of the charges levelled against her.

Heard rival submissions of the parties and scanned the evidence placed on record.

In the present case, there is no eye-witness. The prosecution case is mainly based on extra judicial confession of the accusedrespondent before PW1

Ameena and other witnesses -Â PW2 Om Prakash, PW3 Gome Khan, PW4 Sameer Khan and PW5 Jalam Singh. Before analyzing evidence of

these witnesses, it would be pertinent to discuss law relating to extra judicial confession.

Extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a

conviction on an extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If,

however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the

prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified

in ruling such evidence out of consideration {Sahadevan & Another vs State of Tamil Nadu: (2012) 3 SCC (Cri) 146}.

An extra judicial confession, voluntary and truthful, has high probative value {Thimma Alias Thimma Raju vs State Of Mysore: AIR 1971 SC 1871}.

An extra judicial confession, voluntary and truthful, can form the basic of conviction without corroboration {State of Orissa v. Machindra Majhi &

another: AIR 1964 Orissa 100}. It is a rule of caution that the court would generally look for an independent, reliable evidence before relying upon an

extra judicial confession {Pakkirisamy Versus State Of Tamil Nadu: (1997) 8 SCC 158}. An extra judicial confession is a weak type of evidence.

Where such confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it looses its importance {Dr. Balvinder Singh &

Others vs State Of Punjab & Others: (1995) Supp 4 SCC 259}. Before a confession is relied on, it must be clear and unequivocal, whether it is in a

judicial or in an extra judicial confession. It should not be in general and vague terms {(2000) 1 SCC 310: Kishan Lal v. State of Rajasthan}.

In the light of this established legal position, we have viewed evidence of PW1 Ameena, PW2 Om Prakash, PW3 Gome Khan, PW4 Sameer Khan

and PW5 Jalam Singh, relating to said extra judicial confession by accused-respondent Reshma.

PW1 Ameena in her examination-in-chief stated that on receiving the information of the incident, she went to house of Sameer Khan from her house

on the same day evening. There were only an old mother and some male members. When she asked what happened then she was told that they took

meal and by that meal they felt uneasy. In the night she stayed at the house of Sameer and on next day morning went to Bikaner for PBM Hospital,

where all persons were being administered Glucose. Sada and Sakeena, daughters of Sameer, were admitted in Children Ward. She went to meet

both the girls in Children Ward. There Reshma was also sitting and Sakia and Sada were being given Glucose. In Male Ward, Sameer, Om, Gomi,

Jalam Singh, Bhanwar Singh were near Sameer Khan. Thereafter, she again went to Children Ward with Gomi, Jalam Singh, Om and Bhanwar Singh

and asked Reshma that meal was prepared by her, what was mixed in the meal by her:

tc jsâ€kek ls iwNk fd csVk [kkuk rwus cuk;k Fkk] [kkuk esa D;k Mkyk Fkk rc jsâ€kek us dgk fd eSus [kkuk esa Lis Mkyk Fkk A jsâ€kek us crk;k fd

lkxajh dk lkx o jksVh cukbZ Fkh vkSj “kke dks nky o jksVh cukbZ FkkhA

PW1 further stated that thereafter she came back to her brother Sameer and stated what Reshma has told to her. Sameer could not rely that Reshma

could do such thing. On this, she took

Reshma to Sameer. Then Reshma again told before Sameer:

eSaus xyrh rks dj nh] eq>s ekQ dj nks] mlus dgk fd Lis eSaus Mkyh gSA

In the cross-examination, she stated that on 29th she received information about the incident when she was in the field. When she reached at PBM

Hospital on the same day, on the same day she talked to Reshma. She also admitted that on the same day, she took Reshma before Sameer. She has

further stated that Police enquired from her on the same day when she went to PBM Hospital and talked to Reshma.

In the cross-examination, this witness further stated that she saw Reshma when she was 10-12 years old and thereafter, for first time she met her in

the Hospital and when she met Reshma in the Children Ward, she first told her that she is her aunt (mausi/bhua). She further stated that it is true that

she was not real sister of Reshma’s mother nor daughter of Reshma’s father’s brother nor her father’s uncle’s daughter, nor

daughter of her father’s sister nor daughter of brother of Reshma’s mother. She admitted that:

eSa jsâ€kek ds cki ds uk rks pkpk dh csVh gwWa uk gh rkm dh csVh gwWa] uk gh cqvk dh csVh gwWa uk gh ekek dh csVh gwWa] eSa mldh tkr

dh gksus dh otg ls jsâ€​kek dh cqvk crkrh gwWaA eSa jâ€​s kek dh ukuk gekjs fjâ€​rsnkjh esa gSa blfy;s jsâ€​kek dks ekSlh gksuk crkrh gwWaA

PW2 Om Prakash in his examination-in-chief stated that on 30.04.2004 he himself, Gopikhan, Bhanwar Singh, Jalam Singh and Ameena all asked

Sameer Khan as to what is happening then Sameer told that Reshma prepared the food in morning and evening. In the Children Ward where girls

were admitted, Reshma was there. Ameena and then all of them asked Reshma to speak truly what happened then Reshma told that:

[kkuk rks eSaus gh vkSj lcg eSaus lkaxjh dh lCth o d.kd dh jksVh cukbZ] mlesa ujek dh nokbZ Lis de Mkyh Fkh] vkSj “kke dks ewax dh nky o

d.kd dh jksVh esa Lis T;knk Mkyk Fkk ftlls ;g gknlk gks x;kA

Then they all came to Sameer and narrated the fact stated by Reshma, then Sameer told that this could not happen and then they all went back to

Reshma and bring her to Sameer.

js'kek us vkdj lehj dk ix idM+ fy;k vkSj dgk fd ;g dke eSaus gh fd;k gS] nokbZ eSaus gh Mkyh Fkh A

All those persons who were admitted in the Hospital were discharged on 04.09.2004.

PW3 Gome Khan in his examination-in-chief stated that the incident took place on 26.08.2004 when he was sleeping in his house. His neighbour

Hadman Ram Nayak came to him in the night at about 9:30PM and informed that at the house of Sameer Khan all the persons are suffering from

diarrhea and vomiting. On this information, he went to ‘dhani’ of Sameer Khan and he saw that all are suffering from diarrhea and vomiting,

Murada had expired before he reached and condition of Sammu Khan was bad. Thereafter they took all of them- Yaseen, Raheema, Jeba, Muneer,

Liyaqat, Sada, Sakina, Sammu Khan and Sameer Khan to Chhatargarh hospital in a tractor-trolley. Doctor admitted all the persons and after 15-20

minutes Jeba and Liyaqat expired and thereafter, the Doctor referred all the remaining persons to PBM Hospital, Bikaner.

In the cross-examination, when he was confronted with his Police statement Ex.D3, he stated that he had told everything he stated in the court

statement but why it is not written in the Ex.D3 he can not say. This witness has further stated that it is wrong to say that Reshma was admitted in the

hospital before Yaseen Khan and Sammu Khan were admitted. Reshma was taken to the Hospital in Children Ward. She was not admitted in any

Ward of the Hospital and it is wrong to say that from 27.08.2004 to 04.09.2004 she was admitted in J-Ward at Bed No.10 of the PBM Hospital.

PW4 Sameer Khan in his examination-in-chief stated that he himself, Yaseen, Muneem, Sada, Sakina, Sammu Khan were admitted in PBM Hospital,

Bikaner. Sada and Sakina were admitted in Children Ward and other persons were admitted in Male Ward. Reshma was taken there later on for

taking care of Sada and Sakina. After 3 days, Ameena came to him and stated that her daughter-in-law has mixed insecticide in the food prepared by

her. He could not believe her than Ameena again went to Children Ward with Jalam Singh, Bhanwar Singh, Om Prakash and brought Reshma to his

Ward. Then Reshma stated:

;g xyrh rks eSaus dj nh] eq>s ekQ dj nks]A jsâ€kek us eq>s crk;k fd eSaus ujek esa fNM+dus okys Lizs dks [kkuk esa feyk fn;k Fkk] eq>s ekQ dj

nks] eSaus ;g Lizs lkaxjh dh lCth e]sa eqaxs dh nky esa o jksVh esa feyk fn;k FkkA

 In his cross-examination, PW4 Sameer Khan stated that at the time of marriage of his son Yaseen, he considered Reshma is good choice. After

Nikah, Reshma remained at matrimonial home for about one month earlier and for one month at the time of incident. Reshma has good relation with

her husband and it is true that before this incident, they had no dispute with his daughter-inlaw. This witness further stated that he did not know

whether Reshma was taken to hospital. He was informed by Ameena that Reshma has come to hospital. He did not know that after how many days

of his admission in the hospital Reshma was brought to the hospital.

He further stated that at the time when Ameena came to him and informed about Reshma, at that time Jalam Singh, Om Prakash, Bhanwar Singh and

Gome Khan were present in the hospital. He further stated that Ameena came to him after 3 days admitting him in the hospital and stated that your

daughter-in-law (Reshma) has spread insecticide in the food prepared by her. On this he said that she can not do so. Ameena had come alone when

she came for first time. He also stated that he does not know that after information given by Ameena when these 5 persons went to Reshma. He also

does not know when these 5 persons returned back after meeting Reshma. He further stated that it is wrong to say that Reshma also went with them

to Chhatargarh hospital for treatment and does not know that from Chhatargarh hospital she came for treatment to PBM Hospital along with them.

PW5 Jalam Singh in his examination-in-chief stated that in the Bikaner hospital, Sameer Khan, Sammu Khan, Yaseen Khan, Muneer Khan, Jagar

Khan and two girls were admitted. He stayed there for taking care of Sameer Khan. He further stated that Ameena came after 2 days and on the

same night Sammu Khan expired. On the second day, he asked Sameer Khan what is the matter, if the poison is severe then Sameer Khan told that in

the morning and evening the food was prepared by his daughter-inlaw Reshma. Thereafter he himself, Om Prakash, Gome Khan, Bhanwar Singh,

Ameena went to Children Ward where 3 daughters of Sameer Khan were admitted and Reshma was also there. Ameena asked to Reshma to

disclose what was mixed in the food, on this Reshma told that:

bl ij jsâ€kek us dgk fd esjs ls xyrh gks xbZ] eSsus lqcg ds [kkuk lkaxjh dh lCth o d.kd dh jksVh esa ujiek ds fNM+dko djus okyk Lizs feyk;k Fkk] ftldk

vlj de gqvk rks fQj eSaus “kke dks d.kd dh jksVh o eqax dh nky esa T;knk ek=k esa Lizs Mkyk Fkk] ;g esjs ls xyrh gqbZ gS] rFkk eq>s cpk yksA

After this he went to Sameer Khan and narrated what was stated by Reshma. Sameer Khan could not believe this fact. Then they again went to

Children Ward and brought Reshma to Sameer Khan. In the cross-examination, this witness was confronted with his Police statement Ex.D5, for

which he stated that he does not know why it was not written that Ameena had enquired from Reshma. He further stated that he told to Police that

when Reshma told this fact to Ameena then she asked to save her, why this fact was not written, he does not know. He does not know why it was

not written that she spread insecticide in the food.

Upon analyzing the statement of these witnesses, there is material contradiction. Firstly, it is important to know that as per statement of PW1 Ameena,

she admitted that she is not actually aunt (mausi) of Reshma. She stated that- eSa mldh tkr dh gksus dh otg ls jâ€s kek dh cqvk crkrh gwWaA

Similarly, she also admitted that she saw Reshma

before Nikah, at that time she was 10-12 years of age and thereafter she never saw her. From her statement, she also admitted that when she met

Reshma in the Children Ward, she first introduced herself. It is very difficult to believe that Reshma would have made said extra judicial confession

before Ameena, who was unknown to her.

In her cross-examination, PW1 Ameena has stated that on 29th she got first information about the incident in her field. She also stated that the

informant told that the mis-happening has occurred in morning on that day. She further stated that when she reached PMB Hospital then on the same

day she met Reshma and on the same day, she met Sameer Khan and infomred him about statement given by Reshma and brought Reshma to

Sameer Khan and Police also made interrogation on the same day.

When she reached PBM Hospital and talked to Reshma and thereafter Police also made interrogation at her residence, why the FIR was lodged on

05.09.2004, after delay of 6 days, no explanation was given for the inordinate delay. It is also important to note that PW3 Gome Khan in his

examination-in-chief has stated that the incident took place on 26.08.2004 and he further stated that on 27th evening, in the night at about 10-11PM, he

reached PBM Hospital. He further stated in the cross-examination that it is wrong that Reshma was admitted in PBM Hospital from 27.08.2004 to

04.09.2004.

Respondent-accused Reshma in her statement under sec.313 CrPC has categorically stated that she was falsely implicated for the commission of said

crime and stated that she is innocent. She has also suffered after consuming the same food and got treatment at Chhatargarh hospital and thereafter

she was also referred to PBM Hospital where she remained admitted and was discharged from the hospital on 04.09.2004 along with others admitted

in the hospital.

In defence, DW1 Dr B.K. Gupta was examined, who stated that Ex.D8 is certified copy of Bed-head Ticket and according to

Ex.D8, Reshma remained admitted in the hospital from

27.08.2004 to 04.09.2004. In the first instance, they considered it to be a case of food poisoning and for treatment all these persons affected by food

poisoning, a Medical Board was constituted. Reshma was referred to Psychiatrist and he stated that in cases of food poisoning they also get the cases

referred to Psychiatrist.

From perusal of Ex.D8, it was found that Atropin medicine was administered to Reshma, which is a medicine used for diluting the effect of

insecticide. As per Ex.D8, there is mention of insecticide Monocrotophos 36% SL, for which therapy was described that on finding symptoms of

poisoning, Atropin was advised and accordingly, the medicine Atropin was given.

In Psychiatrist’s report, the psychiatrist opined that the patient was also suffering from acute depression, she is weeping and she is not in a

condition to speak nor is she in a condition to take food orally and the psychiatrist found symptoms of Organophosphorous poison. The patient Reshma

was found to be fit on 03.09.2004 and she was discharged on 04.09.2004.

From this, it is clear that the food, which was taken by other family members, same food was consumed by Reshma also and she also remained

admitted in the PBM Hospital, Bikaner from 27.08.2004 to 04.09.2004.

PW10 Dr Devendra Chaudhary also admitted in her crossexamination that Reshma was also admitted in PBM Hospital. He admitted â€" ejs s ikl bykt

ds fy;s vk;s bu yksxksa esa jâ€s kek Hkh Fkh ftldh izfof’V iznâ€kZ Mh 7 esa , ls ch fgLlk esa dh gqbZ gS] iznâ€kZ Mh 7 esjh Loa; dh dyeh gSA

iznâ€​kZ Mh 7 dh QksVks dkWih iznâ€​kZ Mh 7 , Gsa

 PW11 Mairuna also admitted that â€" HkrhZ gqos ejhtksa dks NqVVh gqbZ vkSj oks ?kj vk;s muds lkFk gh jsâ€​kek ?kj vkbZ FkhA

In this case, PW11 Mairuna was also examined by the prosecution, who stated that Reshma came to her in the morning and took 10-11 ‘roti’.

The prosecution tried to establish that the accused-respondent Reshma did not consume the food in which insecticide was mixed by her and instead

she ate ‘roti’, which she took from PW11 Mairuna. However, from the statement of PW1 Ameena, it is clear that the statement of PW11

Mairuna does not stand proved.

Said confessional statement by Reshma made before PW1 Ameena, PW2 Om Prakash, PW3 Gome Khan, PW4 Sameer Khan and PW5 Jalam Singh

is, thus, not proved beyond reasonable doubts. Though Reshma was admitted in J Ward of PBM Hospital, she remained under treatment from

27.08.2004 to 04.09.2004 but all these prosecution witnesses tried to conceal this fact.

So far as recoveries are concerned, PW6 Kasam Khan has stated that Police has recovered from Reshma one bottle of spray and a small box, in

which one bottle of Coconut oil was lying. Map of the recovery place was prepared, which is Ex.P10. From perusal of Ex.P10, it reveals that

recovery was made from a box in which a half liter bottle of spray was there and one 200ml bottle of Coconut oil was found. There is no other

evidence, which can connect the accused-respondent with these recovered articles for commission of the crime.

In view of the above, said extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as

per prosecution version. The learned trial court has rightly concluded that there is no evidence on the basis of which the respondent-accused can be

held guilty of committing the offence charged against her. There is no merit in the appeal. The appeal is, therefore, dismissed.