RAJBIR SINGH versus THE STATE OF PUNJAB on 24 August 2022

80

SUPREME COURT REPORTS

[2022] 11 S.C.R.

RAJBIR SINGH

A

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 2152 of 2010)

BAUGUST 24, 2022

[HEMANT GUPTA AND VIKRAM NATH, JJ.]

Penal Code, 1860 – s.302 – Death by poisoning alleged –Circumstantial evidence – As per the prosecution, PW-1-informant’swife died after consuming the milk brought from the appellant,Cresiding in the neighbourhood and carrying on the business of dairyfarm and selling milk – Appellant convicted u/s.302 – On appeal,held: In the present case, chain of evidence has many missing andweak links – None of the essential ingredients to record convictionin a case of circumstantial evidence and that of poisoning case areDmade out – Prosecution has not established the charge beyondreasonable doubt so as to record conviction u/s.302 – It has failedto bring home the guilt – Both the courts below committed error inrecording conviction – Appellant extended benefit of doubt –Judgments of the High Court and the Trial Court set aside –Appellant acquitted.E

Criminal Law – Case of poisoning – Circumstantial evidence– Principles laid down in Sharad Birdhichand Sarda vs. State ofMaharashtra reported as Held: In a case of circumstantial evidence,the five golden principles as laid down by this Court in SharadBirdhichand case have remained unaltered and are still followed –With respect to the case of poisoning, four important circumstancesfor recording a conviction were further laid down – These principleshave also remained unaltered.

F

Allowing the appeal, the Court

HELD:1.1 This is a murder case of circumstantial evidenceby poisoning. In a case of circumstantial evidence, the five goldenprinciples as laid down by this Court in Sharad Birdhichand Sardavs. State of Maharashtra have remained unaltered and are stillfollowed. One of the issues to be considered in the present casewould be as to whether the chain of evidence was so complete so G

H

as not to leave any reasonable ground that there could be anyother hypothesis except the one put forward by the prosecution.With respect to the case of poisoning, this Court in the case ofSharad Birdichand Sarda further laid down four importantcircumstances for recording a conviction. The principles laid downin the case of Sharad Birdichand Sarda have remained unalteredand even as recently as 11.08.2022 this Court in Criminal AppealNo.25 of 2012, Ram Niwas vs. State of Haryana, has relied uponthe same with approval. It is also well settled that suspicion,howsoever strong it may be, cannot replace proof beyondreasonable doubt. [Paras 35, 37-39][95-G-H; 97-E-F; 98-B]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Ram Niwas v.State of Haryana Decision of Supreme Court dtd.11.08.2022 in Criminal Appeal No. 25 of 2012 – reliedon.

1.2 The motive set up by the prosecution that appellanthad taken a loan of Rs. 1 lakh and had executed a pronote as wellas receipt is denied by the appellant. In his statement undersection 313 CrPC, there is specific denial of borrowing any moneyand also executing of pronote. The defence set up in the cross-examination of PW-1, PW-2 and PW-7 as also the statement undersection 313 of CrPC was that the informant was carrying on abusiness of Committees of which the appellant was a memberand there was an amount due from the informant to the appellant.Running of business of Committees by the informant; there beingdefaulters; there being financial loss is admitted. According tothe appellant, amount was due to him from the informant and thathe had been falsely implicated to deprive him from recoveringthe same from the informant. A case of false implication, therefore,cannot be ruled out. Reliance placed upon the pronote and thereceipt is also not proved in as much as the original was notproduced, rather a false plea was raised that it was filed beforethe Civil Court, which stands belied by the Ex-D/1 filed by theappellant, and secondly, no attesting witness was produced bythe prosecution. [Para 41, 42][98-D-F]

AB

C

D

EF

G

H

A1.3 The next question which arises for consideration is asto whether mixing of the poisonous compound in the milk wasdone by the appellant or it could have been done by someoneelse, and for the same there are two windows. First, the timebetween the collection of milk from the appellant on the morningof the fateful day, till the time it was consumed by the deceased,Bwas about five hours. Second window being the time afterconsumption of milk at around 12:30 PM on the fateful day, tillthe next day when the Investigating Officer recovered and tookinto possession the sample of milk and the utensils, which had agap of about 20-24 hours. Total time gap from the time milk wasCcollected from appellant till the samples were collected is morethan 24 hours. Chances of mixing poison during this period cannotbe ruled out. Defence had cross-examined both PW-1 and PW-2on this aspect. The next question which arises for considerationis whether the death of deceased was caused due to consumptionof organophosphorus, a poisonous compound or for any otherDreason. Organophosphorus has a strong pungent smell. Thissmell could not be sensed by the informant, his son as also thedeceased. The milk which is said to be adulterated with the poisonwas taken out from the refrigerator, transferred into a pan forboiling and thereafter given to the deceased. If it actually hadEorganophosphorus in it the smell would have filled up the room.The deceased being a healthy woman aged 45 years would nothave consumed it if the pungent smell was coming from the milk.Even the informant (PW-1) did not sense any foul smell from themilk while boiling it. It would be worthwhile to refer to a judgmentof this Court in Jaipal vs. State of Haryana. It was a case ofFaluminium phosphite (sulphas) which also has a strong pungentsmell. It is observed that such compounds are generally used forsuicide rather than in a case of homicide. Further, Dr. Avtar Singh(PW-4) who had conducted the autopsy has clearly stated in bothhis statements that he did not find any smell of organophosphorusGcoming out of the body. The first statement was recorded on08.04.2002 and the second statement was recorded on 03.11.2003,in both the statements he had stated that he had not seen anychange in colour of nails as also in the body, which would havebeen a common symptom in the case of poisoning. He had alsodeposed that all the organs of the body were healthy. Even thoughH

he admits in the case of poisoning by organophosphorus therewould be shrinking of the muscles, however, there was nosqueezing or shrinking in the outside muscles of the abdomen,which were healthy. According to him, there were no symptomsof poisoning noticed during the autopsy despite the fact that itwas reported in all police papers about the case being that ofpoisoning. PW-4 must have been careful in observing whetherany symptoms of poisoning were present in the body. This maylead to an inference that death could have been caused by someother reason but not poisoning. In so far as the chemicalexamination report is concerned it could be a case of tamperingwith the samples for the reasons discussed and hereinafter. [Para43, 44][98-G-H; 99-A-H; 100-A]

Jaipal v. State of Haryana (2003) 1 SCC 169 : [2002]2 Suppl. SCR 714 – relied on.

1.4 The presence of organophosphorus in the milk, utensils,and the viscera is proved by the Reports of Chemical Examinerdated 31.01.2001 (Ex-PF) and 05.02.2001 (Ex-PG). The samplewas received in the laboratory on 22.09.2000, whereas as perthe two reports, it was received by the Assistant ChemicalExaminer, Dr. Sandeep Kakkar, on 22.11.2000 from one Dr. O.P.Goel after his suspension, not in a sealed form, but as an opencase. This note “This opened case, received by me from Dr. O.P.Goel on 22.11.2000 after his suspension.” is typed out in boththe reports after an overwriting /cutting is made by using alphabet“X” continuously. Ex-PF mentions that there were three sealedjars in the sealed parcel which contained parts of organs. ThisEx-PF does not mention of any fourth jar, whereas as per thepost-mortem report and the statement of Dr. Avtar Singh(PW-4), four sealed packets were sent, three containing parts oforgans, and one containing the saline solution. The result refersto presence of organophosphorus compound in the three sealedjars and it also refers to no poison found in the contents of fourthjar. The fourth jar does not find mention in the description ofcontents in Ex-PF. The other report, Ex-PG of the AssistantChemical Examiner, Dr. Sandeep Kakkar, is with respect to therecovery made by the Investigating Officer on the next day ofthe incident, which included milk, boiled and unboiled and the AB

C

DEF

G

H

Autensils. This also had a similar cutting, and a note attached thatit was received as an open case from Dr. O.P. Goel on 22.11.2000after his suspension. The result as reported is thatorganophosphorus compound was found in contents of all theExhibit Nos. (i) to (vi). The following doubts arise from the perusalof the reports of the Chemical Examiner: i. That samples wereBnot handed over to the Assistant Chemical Examiner who had toconduct the analysis in a sealed form. ii. The cutting, and a freshnote regarding parcels being open also creates a doubt. iii.Chances of tampering with the samples could not be ruled out.[Para 45, 46][100-B-H]C1.5 The Investigation Officer admits of having made noeffort to find out as to whether or not the appellant was inpossession of the poisonous substance said to be mixed in themilk. The Courts below have proceeded on the assumption thatorganophosphorous was available in every household. It is moreDthan evident that chain of evidence has many missing and weaklinks. None of essential ingredients to record conviction in a caseof circumstantial evidence and that of poisoning case are madeout. Prosecution has thus failed to bring home the guilt. Takingan overall view of the evidence on record, this Court is of thefirm view, that prosecution has not established the charge beyondEreasonable doubt so as to record conviction under Section 302 ofIPC. Both the courts below committed an error in recordingconviction. The appellant deserves to be extended benefit ofdoubt. The judgments of the High Court and the Trial Court areset aside, the appellant is acquitted. He is already on bail. HisFbail bond is cancelled and sureties are discharged. [Paras 18, 47-49][101-A-D]

Case Law Reference

Case Law Reference

[1985] 1 SCR 88relied onPara 35G[2002] 2 Suppl. SCR 714relied onPara 44CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2152 of 2010.

From the Judgment and Order dated 29.10.2009 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 355-DBHof 2005.

Suryanarayana Singh, Sr. Adv., Anil Kumar, T. Mahipal, Advs.for the Appellant.

Ms. Jaspreet Gogia, Karanvir Gogia, Advs. for the Respondent.

The Judgment of the Court was delivered by VIKRAM NATH, J.

This appeal is directed against the judgment and order of the Punjaband Haryana High Court dated 29.10.2009 whereby the appeal filed bythe appellant was dismissed, confirming the judgment of the SessionsJudge, Bathinda dated 08.04.2005 convicting the appellant under Section302 of Indian Penal Code 1860[1] and sentencing him to undergo rigorousimprisonment for life and pay a fine of Rs.1,000/-, in default of paymentof fine, to further undergo rigorous imprisonment for three months.

2. The prosecution story begins with the lodging of the FirstInformation Report by Joginder Singh (PW 1- husband of the deceased)at Police Station Kotwali, District Bathinda on 18[th] September, 2000 at7 PM. According to the complainant, his son Gursharan Singh in themorning at around 07.45 am brought 1 kg of milk from the house ofRajbir Singh (appellant) who used to reside in the neighbourhood andwas carrying on business of dairy farm and selling milk with the help ofhis wife Sheela. The appellant was known to the complainant beingresident of the neighbourhood.

To help the appellant purchase buffaloes and for domestic needs,he had borrowed Rs.1 lakh from the informant about 7/8 months before.He had also executed a pronote in that respect. The milk as brought byGursharan Singh (PW-2) was kept in the refrigerator. At about 12.30PM his wife Kuldeep Kaur @ Bhajno felt hungry and as she was restingdue to some uneasiness, the informant himself took out some milk fromthe jug kept in the refrigerator and after boiling the same gave it to her.After sipping the milk once, she remarked that the milk was bitter intaste and after sipping further, she further remarked that there was somedefect with the milk. Then he also smelled the milk lying in the jug fromwhich a pungent smell was coming. In the meantime, his wife felt irritationon her lips and also became restless. He called his son GursharanSingh(PW-2), who took his mother on his scooter to the Children andGeneral Hospital. He also followed. As the condition of his wife had 1 In short “IPC”

A

B

C

D

E

F

G

H

Adeteriorated, she was referred to the Civil Hospital, Bathinda where shebreathed her last after some time. He further stated in his complaint thathe was of the firm belief that Rajbir Singh and his wife Sheela hadmixed some poisonous substance in the milk in order to eliminate hisfamily. His wife died because of the poisonous milk. He and his wifewere demanding their money from Rajbir Singh but he was makingBexcuses and on account of this grudge he poisoned the milk and hence areport be registered and appropriate action be taken.

3. Dr. K.S. Brar (PW-12), Emergency Medical Officer at Childrenand General Hospital after examining Kuldeep Kaur referred her to theCivil Hospital considering her serious condition, and also sent informationCto the police. SI Balwant Singh (PW-7) who was in-charge of the CanalColony Police Post, Bathinda, left for the Children and General Hospitaland from there proceeded to the Civil Hospital where the doctor informedhim about the death of Kuldeep Kaur. He met Joginder Singh (PW1) atthe Hospital, he gave his statement which was recorded and which afterDbeing read over was signed by Joginder Singh (PW-1). SI Balwant Singh(PW-7) made an endorsement on the same (Ex-PA/1) for registeringthe case. On its basis formal FIR (Ex-PA/2) was registered.

4. The inquest report (Ex-PE) was prepared by the InvestigatingOfficer. The dead body was sent for post-mortem examination in theEcustody of Head Constable Kapur Chand (PW-5) and Constable Satpal(PW-10). Necessary police papers were prepared. The InvestigatingOfficer on the next day inspected the place of occurrence, prepared thesite plan (Ex-PK). He also collected the sample of milk lying in the jugas also the boiled milk which was lying in the glass. They were packedand sealed. The utensils in which the milk was kept were also taken intoFcustody and a recovery memo (Ex-PM) was prepared of all the recovereditems. The statement of witnesses was recorded under Section 161 ofthe Code of Criminal Procedure, 1973[2]. Charge-sheet was submittedagainst Rajbir Singh – the appellant only.

5. Cognizance was taken. Magistrate committed the case for trialGto the Sessions Court. The Trial Judge on 22.01.2002 read out the chargeunder Section 302 of IPC to the appellant who denied the same, pleadednot guilty and claimed to be tried. Thereafter, the trial proceeded, andfive witnesses were examined. Dr. K.S. Brar who had first examinedthe deceased at the Children and General Hospital was examined as H2 Hereinafter referred to as “CrPC”

PW-1; Dr. Avtar Singh who had conducted the autopsy was examinedas PW-2; Head Constable Satpal who had accompanied the dead bodyfor autopsy and had carried the sealed samples to the laboratory wasexamined as PW-3; Head Constable Kapur Chand who had taken thedead body for post-mortem was examined as PW-4 and Gursharan Singhson of the deceased was examined as PW-5 on 14.03.2003.

A

B

6. At this stage, Sheela Devi wife of the appellant was summonedunder Section 319 of CrPC vide order dated 08.04.2003. Thereafter,both the accused were again read out fresh charge under section 302read with Section 34 of IPC on 08.07.2003. Both the accused denied thecharge, pleaded not guilty and claimed to be tried. They also stated thatthey would cross-examine all the witnesses who had already beenexamined.

C

7. From the record it appears that the witnesses already examinedwere re-examined before the Trial Court by the prosecution although ina different sequence. In all 12 witnesses were examined by theprosecution as follows - D

i.PW-1 - Joginder Singh, informant.

ii.PW-2 - Gursharan Singh, son of the deceased.

iii. PW-3 - Balwinder Singh, brother of informant, to prove thepro note.E

iv. PW-4 - Dr. Avtar Singh, who conducted the autopsy.

v.PW-5 - Head Constable Kapur Chand, who had carried thebody of the deceased for post-mortem.

vi. PW-6 - Head Constable Darshan Singh, with whom the articlesof post- mortem report and the parcel containing clothes ofthe deceased were deposited.

F

vii. PW-7 - Sub Inspector Balwant Singh, the Investigating Officer.

viii. PW-8 - Sub Inspector Manjeet Singh, who had arrested RajbirGSingh on 12.06.2001.

ix. PW-9 – A.S.I Kuldeep Singh, who had taken into possessionthe pronote (Ex-PB) and had also recorded the statements ofmarginal witness of pronote.

A(At this stage, statement of both the accused under Section 313of CrPC was recorded on 10.11.2004 by putting all the incriminatingmaterial to them. Thereafter, three more witnesses were examined.)

x. PW-10 - Head Constable Satpal Singh who had carried therecovered material and viscera to the laboratory.

Bxi. PW-11 - Constable Paramjeet Singh, who had delivered theSpecial Reports to the Judicial Magistrate.

xii. PW-12 - Dr. K.S. Brar, who had first examined the deceasedat the Children and General Hospital.

After the above three witnesses were examined the additionalCincriminating material was put to both the accused and their supplementarystatement was recorded under Section 313 of CrPC on 09.03.2005.

8. Both the accused were examined twice under Section 313 CrPCand the entire incriminating material was put to them. They denied theDprosecution evidence and pleaded innocence and stated that they werefalsely implicated. It was further stated by them that the complainantwas running the business of Committees in which the appellant was alsoa member of the said Committees; that he had made payment for theCommittees but some members of the Committees had refused to makethe payment of the remaining instalments, although they had receivedEfull amount from the Committees; due to this reason the financial positionof the complainant had become very weak; the appellant had not receivedthe due amount of Committees and was demanding the same from theinformant; it is for this reason that he has been falsely implicated so thatthe complainant may get rid of the said burden; the deceased might haveFcommitted suicide due to her family’s financial crisis. The accused didnot lead any oral evidence in defence, however, he filed one document(Ex-D1) copy of the order dated 22.11.2004 of the Civil Court.

9. The samples of milk and the utensils which were seized by theInvestigating Officer along with viscera were sent for chemicalexamination. Two reports were received from the laboratory – one isGdated 31.1.2001 (Ex-PF) and the other is dated 5.2.2001 (Ex-PG).

10. According to Ex-PF, the sealed packet contained –

i.A sealed jar said to contain brain, heart and lung parts;

ii.A sealed jar said to contain parts of liver, spleen and kidney;H

iii. A sealed jar said to contain parts of large intestine withAstomach;

11. In the analysis an organophosphorus compound, a group ofinsecticides was found in the contents of samples (i) to (iii). No poisonwas found in the contents of sample (iv). In the report of Ex-PF there isno mention of sample (iv). There is description of only three samples ofthe organs of the body. There is also cutting on the report which wouldbe discussed at a later stage.

B

12. Ex-PG consisted of six sealed parcels as follows:

i.Plastic shishi duly sealed said to contain unboiled milk; C

ii.One sealed plastic shishi said to contain boiled milk given tothe deceased;

iii. One sealed plastic shishi said to contain milk taken fromunboiled milk; D

iv. One sealed steel jug empty with glass stained with milk;

v.One sealed Dolu and glass;

vi. One aluminium frying pan.

In this report also there is a cutting of similar nature as Ex-PF.The result of the analysis was an organophosphorus compound, a groupof insecticides, was found in the contents of samples (i) to (vi).

E

13. Both the reports Ex-PF and Ex-PG mention that open casewas received by the signatory from Dr. O.P. Goyal on 22.11.2000 afterhis suspension.

F

14. It would also be relevant to refer to the post-mortem report atthis stage. According to the post-mortem report (Ex-PD) it was conductedon 19.09.2000 at 11.10 AM. With respect to the cause of death it wasstated in the report that the same would be declared after receiving thereport of the Chemical Examiner. No external or internal injury wasnoticed on the body of the deceased. All the organs inside the body werereported to be healthy. It was also reported that the probable time thathad lapsed between death and the post-mortem was within 24 hours.Viscera was preserved and handed over to the police.

G

15. The Trial Court vide judgment dated 08.04.2005 found that allthe ingredients which proved the death by poisoning were present and H

Acharge was proved by the prosecution. It also found that there was noclinching evidence against Sheela, wife of the appellant and accordinglyacquitted her giving benefit of doubt. However, the evidence establishedthe charge of murder against the appellant and he was convicted underSection 302 of IPC. The Trial Court did not find the offence to be in theambit of rarest of rare cases and accordingly sentenced him to undergoBimprisonment for life and pay a fine of Rs.1,000/- and in default thereofto further undergo rigorous imprisonment for three months.

16. The appellant preferred appeal before the High Court,registered as Criminal Appeal No.355/2005. The High Court, videimpugned judgment and order dated 29[th] October, 2009 did not find anyCinfirmity in the judgment of the Trial Court and accordingly dismissedthe appeal. This has given rise to the present appeal.

17. The Trial Court as well as the High Court found that the chainof circumstances was complete in order to establish the guilt of theappellant. According to both the Courts, the prosecution had fullyDestablished the charge against the appellant of adding poison to the milksupplied to the son of the informant, and the same having been consumedby the deceased, resulted in her death. The finding is that there was amotive to commit the said offence in order to save the appellant fromreturning the loan of Rs. 1 lakh taken from the informant. The chemicalEanalysis of the boiled milk consumed by the deceased, the unboiled milk,the container (dolu) in which the milk was kept and the glass in whichthe milk was tendered, all contained organophosphorus, the poisonoussubstance. The second chemical report also reflected that there was thesame substance organophosphorus in the parts of the organs (viscera)of the deceased sent for analysis. Both the Courts below relied on theFchemical analysis reports (Ex-PF and PG).

18. Having considered the submissions advanced by the learnedcounsel for the parties and having perused not only the material on recordof the appeal but also the original record of the trial, we are of the viewthat both the courts below committed an error in recording convictionGfor the reasons detailed hereinafter.

19. We will first briefly refer to the evidence led by the prosecution.

20. PW-1 Joginder Singh in his statement supported the prosecutionstory as narrated by him. He has also given details of the recovery ofthe milk and utensils from his residence. In his cross-examination he hasH

admitted that he was running business of Committees of which theappellant was member in five Committees. The members of theCommittees paid instalments. The appellant Rajbir Singh was not makingregular payments towards the Committees; that he was not maintainingthe record regarding the Committees. He denied that the alleged pronoteand the receipt were executed in connection with the account of theCommittees. He also stated that when he smelled the milk in the glass orthe jug, he did not find any difference in the odour of the milk and boththe utensils. He also denied that he had kept rat killer poison in his house.He further denied that some members of the Committee who hadreceived the amount of the Committee had become defaulters and thatthey did not pay the amount due towards the Committees. He denied hisrelations being strained with them. He also denied that there is any quarrelwith his wife and he also denied that the facts of financial crisis andquarrel between the husband and wife and she had committed suicide.It was also put to him that the witnesses of the pronote were residentsof Kaliawali Mandi where he used to reside earlier. He accepted thatthe pronote and receipt were not got attested from any resident of thelocality where he and the appellant were staying at the time of executionof the pronote. It was also suggested to him that the witnesses of thepronote and the receipt did not know Rajbir Singh. He states that hiswife did not vomit at both the hospitals and she had only one motion atthe Children and General Hospital. It was suggested to him that his wifedid not die due to poisoning but because of tension and stress which wasdenied by him.

21. PW-2 Gursharan Singh, son of the deceased, has also supportedthe prosecution story in his examination-in-chief. In his cross-examination,he has admitted that Rajbir Singh was a member of the Committees runby his father. He was confronted with his statement recorded in Ex-DAthat he had stated that his father owed money from Rajbir Singh inconnection with the committees and had executed pronote for Rs.1 lakh.He, however, reiterated the prosecution case that Rajbir Singh (appellant)had received Rs.1 lakh from his father and had executed the pronote.He was then confronted with the statement Ex-DA where he had notmentioned about Sheela taking a jug from him, both the accused insidethe room and then the appellant coming out with the jug and handing itover to him. He stated that he had recorded this fact in the statementEx-DA before the police but the same was not recorded. He also deniedof keeping poison in his house to kill rats. He then admits that some AB

C

D

E

F

GH

Amembers of the Committees had taken away the amount of theCommittees and had not returned the amount to his father. He alsoadmitted that other members of the Committees who were payinginstalments regularly were demanding the amount from his father. Itwas also suggested to him that they were facing financial crisis; thatthere used to be quarrel between his father and mother due to the financialBproblems and that his mother had committed suicide. All three suggestionswere denied by him.

22. The pronote has been proved by PW-3 Balwinder Singh, whois real brother of the informant. He admits that he had never seen theoriginal pronote and receipt.C

23. PW-4 Dr. Avtar Singh had conducted the autopsy. He provedthe post-mortem report and its contents. He has further stated that hehad prepared the four jars out of which three jars contain the visceraand the fourth jar contained saturated saline. He also stated that he hasreceived all the police papers before conducting the autopsy. He alsoDstated that after receiving the report of the Chemical Examiner Ex-PFhe had declared the cause of death was due to poisonous compoundfound in the viscera. In his cross-examination he stated that in the caseof poison the colours of nail turn into a bluish colour and the colour of thebody also turns bluish. He stated that the body was not bluish and,therefore, he had not mentioned it in the post-mortem report. He furtherEstated that remaining viscera’s poison gives a foul smell. He was askedwhether he observed or felt the foul smell to which he stated that heneither observed such smell nor he felt the foul smell while conductingthe post-mortem examination. He also stated that upon opening thestomach a foul smell will come in case it is a case of organophosphorusFpoison. He further stated that he did not experience any foul smell afteropening the stomach and as such did not mention it in the post-mortemreport. He was then suggested whether the muscles of the body shrinkin case of poisoning which he denied but he clearly said that he did notobserve symptoms of poisoning and on that account he did not mention it in the post-mortem report. He further stated that in caseGorganophosphorus poison is put in the milk it will give smell even to aperson who is standing at some distance from the utensil in which milkwith such poison is kept.24. PW-5 Head Constable Kapur Chand is a formal witness whohad carried the body of the deceased for post-mortem and he affirmedHthe contents of his affidavit (Ex-PH).

25. PW-6 Head Constable Darshan Singh is also a formal witnesswith whom the articles of post-mortem report and the parcel containingclothes of the deceased were deposited. He affirmed the contents of hisaffidavit (Ex-PJ).

26. PW-7 Sub-Inspector, Balwinder Singh is the InvestigatingOfficer. He stated that he received the information about the poisoningfrom the Children and General Hospital whereupon he went there andlater went to the Civil Hospital where the deceased had been shifted. Atthe Civil Hospital he was informed by the doctor that Kuldeep Kaur hadalready died. There he recorded the statement of the informant, got hissignatures made thereon and himself made endorsement for registeringthe case (Ex-PA/1) which he duly proved and also proved the formalFIR (Ex-PA/2) recorded by ASI Harbans Singh. He thereafter preparedthe inquest report and sent the dead body for autopsy in the custody ofHead Constable–Kapur Chand (PW-5) and Constable Satpal (PW-10)along with request memo (Ex-PD). He then states that on the next dayhe visited the house of the deceased, prepared the rough site plan (Ex-PK). He collected the utensils and milk and prepared the recovery memo(Ex-PL). Thereafter, he went to the Civil Hospital where he was handedover the parcel of viscera by constable Satpal along with other papersgiven by PW-4 conducting the post-mortem and also the other articlesand clothes returned by PW-4. He deposited the case property withHead Constable Darshan Singh at police station Kotwali. In his cross-examination, the Investigating Officer states that he did not go to thehouse of the appellant Rajbir Singh for house search on the same daybut visited there later on. He states that he did not find any container inthe house of the appellant. He also admits that he did not investigateregarding purchase of poison by the appellant. He also admits that hedid not make any house search of the house of the informant. He thenstates that Gursharan Singh (PW-2) had not stated the presence of Sheelaalong with Rajbir and that they had taken the container inside the roomand that both of them had poured the milk. He then states that he cannotsay whether anyone can tamper with the milk during the interveningperiod of 18[th] to 19[th] September. It is interesting to note that theInvestigating Officer says that when milk was boiled in his presence on19.09.2000 when he visited the house of the informant, it was emittingfoul smell in great extent. He also stated that even the two witnessesManjit Singh and Harbans Singh (witnesses of recovery) stated thatthere was pungent smell to a great extent. He also states that many A

B

C

D

E

F

G

H

Aother persons were purchasing milk from Rajbir Singh but none of themhad complained about the quality of the milk. He also states that he didnot arrest Rajbir Singh during investigation. He, however, denied that hedid not arrest Rajbir Singh as there was no evidence against him. Healso stated that the doctors in both the hospitals did not disclose to himthat the deceased had vomited or was having loose motions.B27. PW 8 Sub-Inspector Manjit Singh had arrested the appellanton 12.06.2001.

28. PW-9 ASI Kuldeep Singh stated that he had taken intopossession the pronote (marked ‘X’) on 16.07.2001 and that he hadCrecorded the statements of the marginal witnesses. In the cross-examination he states that he had not seen the original pronote and receipt;that he had no knowledge whether the payment had actually been madeor not.

29. PW-10 Satpal was accompanying the dead body for post-Dmortem and also had delivered the viscera and parcel of the recoveredutensils and milk to the chemical laboratory. In his cross-examination hehad stated that he did not remember how many seals were affixed onthe parcel. He further states that the parcel was received on 21.09.2000at 10-11 AM which he kept with him. In the night it was kept in thepolice station and that he had stayed at the police station overnight. ItEwas on 22.09.2000 that the parcels were delivered at the laboratory.

30. PW-11 Constable Paramjit Singh has stated that he receiveda special report at 9.15 PM dated 18.09.2000 and on the next morning at07.00 AM he gave the special report to the Judicial Magistrate, Bathinda.F31. PW-12 Dr K.S.Brar, on the relevant date was posted as anEmergency Officer at the Children and General Hospital, Bathinda. Hestates that on the said day the deceased had come to the hospital withsuspected case of poisoning. He informed the police and thereafterreferred her to the Civil Hospital considering her serious condition. Inthe cross-examination he had stated that the phosgene gas smell wasGcoming from the mouth of the patient and he had given treatment to thepatient regarding aluminium phosphide poisoning. He further states thatthe patient was vomiting but he did not remember whether she had passedmotion or not. It was suggested to him that the deceased was neveradmitted to the hospital for treatment and that he was deposing falselyfor covering up the delay at the instance of the police, which he denied.H

He also stated that he did not know about the body temperature of thepatient at the time of her arrival. He also did not produce the OPDregister as it was not summoned.

32. It would be relevant to note that PWs 10, 11 and 12 wereexamined after the prosecution had closed its evidence on 27.10.2004and the statements of both the accused under Section 313 CrPC wererecorded on 10.11.2004.

33. The Trial Court proceeded on the premise that the appellanthad not denied the execution of the pronote while discussing the motive.This fact is apparently not correct in as much as the appellant in hisstatement under section 313 CrPC recorded on 10.11.2004 hadspecifically denied not only borrowing of the money but also that henever executed the pronote. The question as framed and the answer isreproduced below:

“Q: It is further in evidence against you that you had borrowed asum of Rs. One Lac from father of PW-5 Gursharan Singh andhad executed a pronote and receipt for the same on 01.01.2000.PW Gursharan singh was demanding amount from you and puttingof the matter and agreed to pay amount on 18.09.2000. Whathave you to say about it?

A: It is false evidence against me. I had never borrowed the saidamount and I had never executed the said pronote.”

34. Further the Trial Court did not take into consideration the timegap from the alleged time of collecting the milk from the appellant till thetime it was administered and further the time the samples were collected.It also did not give any importance to the post-mortem report and thestatement of Dr. Avtar Singh who had conducted the autopsy. The useof compound organophosphorus has a homicidal purpose because of itsextremely strong pungent smell has also not received due attention bythe Trial Court. The High Court judgment was cryptic and evidence hadbeen only cursorily dealt with.

35. This is a murder case of circumstantial evidence by poisoning.In a case of circumstantial evidence, the five golden principles as laiddown by this Court in the case of Sharad Birdhichand Sarda vs. Stateof Maharashtra[3] as stated in paragraph 153 of the report read as follows:

3 (1984) 4 SCC 116

AB

C

D

EF

G

H

“A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused canbe said to be fully established:

A

(1) the circumstances from which the conclusion of guilt is to bedrawn should be fully established.

B

It may be noted here that this Court indicated that thecircumstances concerned ‘must or should’ and not ‘may be’established. There is not only a grammatical but a legal distinctionbetween ‘may be proved’ and ‘must be or should be proved’ aswas held by this Court in Shivaji Sahabrao Bobade & Anr. v.CState of Maharashtra, (1973) 2 SCC 793, where the followingobservations were made:

“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

D

(2) The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty, E(3) the circumstances should be of a conclusive nature andtendency.

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be a chain of evidence so complete as not to leaveFany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”

36. Before laying down the five aforesaid principles, Justice FazalAli speaking for the Court in paragraph 152 extracted a paragraph fromGthe case of Hanumant vs. State of Madhya Pradesh as stated by Mahajan,J. Paragraph 152 is reproduced hereunder:

“Before discussing the cases relied upon by the High Court wewould like to cite a few decisions on the nature, character andessential proof required in a criminal case which rests on H

circumstantial evidence alone. The most fundamental and basicdecision of this Court is Hanumant v. The State of MadhyaPradesh, AIR 1952 SC 343,. This case has been uniformly followedand applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State ofUttar Pradesh,(1969) 3 SCC 198 and Ramgopal v. State ofMaharashtra, (1972) 4 SCC 625. It may be useful to extract whatMahajan, J. has laid down in Hanumant’s case (supra):

“It is well to remember that in cases where the evidenceis of a circumstantial nature, the circumstances from whichthe conclusion of guilt is to be drawn should in the first instancebe fully established and all the facts so established should beconsistent only with the hypothesis of the guilt of the accused.Again, the circumstances should be of a conclusive nature andtendency and they should be such as to exclude everyhypothesis but the one proposed to be proved. In other words,there must be a chain of evidence so far complete as not toleave any reasonable ground for a conclusion consistent withthe innocence of the accused and it must be such as to showthat within all human probability the act must have been doneby the accused.””

37. These golden principles have remained unaltered and are stillfollowed. One of the issues to be considered in the present case wouldbe as to whether the chain of evidence was so complete so as not toleave any reasonable ground that there could be any other hypothesisexcept the one put forward by the prosecution.

38. With respect to the case of poisoning, this Court in the case ofSharad Birdichand Sarda (supra) further laid down four importantcircumstances for recording a conviction in paragraph 165 which isreproduced hereunder:

“165. So far as this matter is concerned, in such cases the courtmust carefully scan the evidence and determine the four importantcircumstances which alone can justify a conviction:

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

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

C

D

E

F

G

H

A(3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to thedeceased.”

39. The principles laid down in the case of Sharad Birdichand Sarda(supra) have remained unaltered and even as recently asB11.08.2022 this Court in Criminal Appeal No.25 of 2012, Ram Niwasvs. State of Haryana, has relied upon the same with approval. It is alsowell settled that suspicion, howsoever strong it may be, cannot replaceproof beyond reasonable doubt.

40. In the background of the above legal position we now proceedCto analyze the evidence and draw our conclusions.

41. The motive set up by the prosecution that appellant had takena loan of Rs. 1 lakh and had executed a pronote as well as receipt isdenied by the appellant. In his statement under section 313 CrPC, thereis specific denial of borrowing any money and also executing of pronote.DThe defence set up in the cross-examination of PW-1, PW-2 and PW-7as also the statement under section 313 of CrPC was that the informantwas carrying on a business of Committees of which the appellant was amember and there was an amount due from the informant to the appellant.Running of business of Committees by the informant; there beingEdefaulters; there being financial loss is admitted. According to theappellant, amount was due to him from the informant and that he hadbeen falsely implicated to deprive him from recovering the same fromthe informant. A case of false implication, therefore, cannot be ruledout.

F42. Reliance placed upon the pronote and the receipt is also notproved in as much as the original was not produced, rather a false pleawas raised that it was filed before the Civil Court, which stands beliedby the Ex-D/1 filed by the appellant, and secondly, no attesting witnesswas produced by the prosecution.

43. The next question which arises for consideration is as toGwhether mixing of the poisonous compound in the milk was done by theappellant or it could have been done by someone else, and for the samethere are two windows. First, the time between the collection of milkfrom the appellant on the morning of the fateful day, till the time it wasconsumed by the deceased, was about five hours. Second window beingHthe time after consumption of milk at around 12:30 PM on the fateful day, till the next day when the Investigating Officer recovered and tookinto possession the sample of milk and the utensils, which had a gap ofabout 20-24 hours. Total time gap from the time milk was collected fromappellant till the samples were collected is more than 24 hours. Chancesof mixing poison during this period cannot be ruled out. Defence hadcross-examined both PW-1 and PW-2 on this aspect.

44. The next question which arises for consideration is whetherthe death of deceased was caused due to consumption oforganophosphorus, a poisonous compound or for any other reason.Organophosphorus has a strong pungent smell. This smell could not besensed by the informant, his son as also the deceased. The milk which issaid to be adulterated with the poison was taken out from the refrigerator,transferred into a pan for boiling and thereafter given to the deceased. Ifit actually had organophosphorus in it the smell would have filled up theroom. The deceased being a healthy woman aged 45 years would nothave consumed it if the pungent smell was coming from the milk. Eventhe informant (PW-1) did not sense any foul smell from the milk whileboiling it. It would be worthwhile to refer to a judgment of this Court inJaipal vs. State of Haryana[4]. It was a case of aluminium phosphite(sulphas) which also has a strong pungent smell. It is observed that suchcompounds are generally used for suicide rather than in a case ofhomicide. Further, Dr. Avtar Singh (PW-4) who had conducted the autopsyhas clearly stated in both his statements that he did not find any smell oforganophosphorus coming out of the body. The first statement wasrecorded on 08.04.2002 and the second statement was recorded on03.11.2003, in both the statements he had stated that he had not seenany change in colour of nails as also in the body, which would have beena common symptom in the case of poisoning. He had also deposed thatall the organs of the body were healthy. Even though he admits in thecase of poisoning by organophosphorus there would be shrinking of themuscles, however, there was no squeezing or shrinking in the outsidemuscles of the abdomen, which were healthy. According to him, therewere no symptoms of poisoning noticed during the autopsy despite thefact that it was reported in all police papers about the case being that ofpoisoning. PW-4 must have been careful in observing whether anysymptoms of poisoning were present in the body. This may lead to aninference that death could have been caused by some other reason but A

B

C

D

E

F

G

H

Anot poisoning. In so far as the chemical examination report is concernedit could be a case of tampering with the samples for the reasons discussedabove and hereinafter.

45. The presence of organophosphorus in the milk, utensils, andthe viscera is proved by the Reports of Chemical Examiner datedB31.01.2001 (Ex-PF) and 05.02.2001 (Ex-PG). The sample was receivedin the laboratory on 22.09.2000, whereas as per the two reports, it wasreceived by the Assistant Chemical Examiner, Dr. Sandeep Kakkar, on22.11.2000 from one Dr. O.P. Goel after his suspension, not in a sealedform, but as an open case. This note “This opened case, received by mefrom Dr. O.P. Goel on 22.11.2000 after his suspension.” is typed out inCboth the reports after an overwriting /cutting is made by using alphabet“X” continuously. Ex-PF mentions that there were three sealed jars inthe sealed parcel which contained parts of organs. This Ex-PF does notmention of any fourth jar, whereas as per the post- mortem report andthe statement of Dr. Avtar Singh (PW-4), four sealed packets wereDsent, three containing parts of organs, and one containing the salinesolution. The result refers to presence of organophosphorus compoundin the three sealed jars and it also refers to no poison found in the contentsof fourth jar. The fourth jar does not find mention in the description ofcontents in Ex-PF. The other report, Ex-PG of the Assistant ChemicalExaminer, Dr. Sandeep Kakkar, is with respect to the recovery made byEthe Investigating Officer on the next day of the incident, which includedmilk, boiled and unboiled and the utensils. This also had a similar cutting,and a note attached that it was received as an open case from Dr. O.P.Goel on 22.11.2000 after his suspension. The result as reported is thatorganophosphorus compound was found in contents of all the ExhibitFNos. (i) to (vi).

46. The following doubts arise from the perusal of the reports ofthe Chemical Examiner:

i.That samples were not handed over to the Assistant ChemicalExaminer who had to conduct the analysis in a sealed form.

G

ii.The cutting, and a fresh note regarding parcels being openalso creates a doubt.

iii. Chances of tampering with the samples could not be ruledout.

H

47. The Investigation Officer admits of having made no effort tofind out as to whether or not the appellant was in possession of thepoisonous substance said to be mixed in the milk. The Courts belowhave proceeded on the assumption that organophosphorous was availablein every household.

48. From the above discussion, it is more than evident that chainof evidence has many missing and weak links. None of essentialingredients to record conviction in a case of circumstantial evidence andthat of poisoning case are made out. Prosecution has thus failed to bringhome the guilt.

49. Taking an overall view of the evidence on record, we are ofthe firm view, that prosecution has not established the charge beyondreasonable doubt so as to record conviction under Section 302 of IPC.The appellant deserves to be extended benefit of doubt. Accordingly,the appeal is allowed, the judgments of the High Court and the TrialCourt are set aside, the appellant is acquitted. He is already on bail. Hisbail bond is cancelled and sureties are discharged.

Divya Pandey

Appeal allowed.

A

B

C

D

E

F

G

H