Dharam Das Wadhwani Vs. State of Uttar
Pradesh  INSC 54 (14 March 1974)
KHANNA, HANS RAJ
CITATION: 1975 AIR 241
R 1991 SC1388 (8)
The accused a compounder in a hospital was
charged with the offence under s. 328 I. P. C., of administering poison to one
of the two doctors of the hospital. He was acquitted by the trial court but
found guilty by the High Court.
Dismissing the appeal to this Court,
HELD : The critical rule of proof by
circumstantial evidence, is that such testimony can be the probative basis for
conviction only if one rigorous test is satisfied, namely, that the
circumstances must make so strong a mesh that the innocence of the accused is
wholly excluded and on every reasonable hypothesis the guilt of the accused
must be the only inference. Every evidentiary circumstance is a probative link,
strong, or weak, and must be made out with certainty. Link after link forged
firmly by credible testimony may form a strong chain of sure guilt binding the
accused. Each link, taken separately, may just suggest but when hooked on to
the next and on again may manacle the accused inescapably. Only then can a
concatenation of incriminating facts suffice to convict a man. If a reasonable
doubt arises regarding the guilt of the accused, benefit of that doubt cannot
be withheld from him. But proof beyond reasonable doubt cannot be distorted
into a doctrine of acquittal when any delicate or remote doubt flits past a
feeble mind. [61 1E, G-H, 612A-B] In the present case, the accused bore a
grudge against the victim. When he was requested by the victim to bring aspirin
he brought it in two packets. There were traces of strychnine crystals in the
paper of the packet from which the victim had swallowed what he thought was
aspirin, and an analysis of the stomach wash showed that he had consumed
strychnine. The accused falsely denied that there was any stock of strychnine,
He took a quarter of an hour to get the aspirin, suggesting that he went into
the store room to take out a little strychnine. The circumstance that the two
packets contained different substances-aspirin in one and strychnine in
another-shows that the accused took the powders from 2 different bottles,
eliminating the possibility of an accident. When another doctor asked him a
searching question about the aspirin the accused was seen to be trembling. The
accused never showed any anxiety to save the victim. In the commital court he
took a false plea of denial and modified his plea in the Sessions Court to
present a plausible defence. These circumstances lead to the only reasonable
inference that he is guilty, and the other likelihoods are mere possibilities.
[612C-G] S.S. Bobade v. State of Maharashtra  2 SCC 801 and Kali Ram v.
State of Himachal Pradesh A. 1. R. 1973 S.C.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 222 of 1970.
Appeal by leave from the Judgment and Order
dated the 15th January, 1970 of the Allahabad High Court at Allahabad in.
Government Appeal No. 132 of 1967.
Nuruddin Ahmed, B. P. Singh AND A. K. Varma,
for the Appel- lant.
0. P. Rana for the Respondent.
The Judgment of the Court was delivered by-
KRISHNA IYER, J.-A few facts with unique features, attracting a recondite
provision of the Penal Code, constitute the subject-matter 608 of the criminal
case which ended in an acquittal in the sessions Court reversed at the
appellate level and is re- agitated before us in this appeal by special leave.
The offence for which the accused has been
punished is one under s. 328, I. P. C., for administering poison to a doctor by
a compounder with intent to cause hurt. We did bestow anxious reflection on the
materials placed before us in the light of the submissions made by counsel for
the appellant, Shri Nuruddin Ahmed, but, with due regard to their peculiarities
and probabilities, we have established ourselves on the conclusion that the
High Court has held right that the accused is guilty of the offence charged.
The prosecution case, in brief, takes us to a
small hospital scene where we have two medical officers, P. Ws. 2 and 3, a
compounder the accused, and a peon, Badri. The senior doctor, P. W. 2, arrives
in the hospital around 9 30 a.m.
with a bad headache and asks the accused,
appellant for ten grains of aspirin. Some 12 or 13 minutes are taken for the
appellant to bring to his own doctor aspirin which is readily available in the
dispensing room. The, appellant brings two packets, 'asprin' written on them,
and the patient-this time the doctor himself-consumes one packet.
Bitten by bitterness of taste unusual in
aspirin, P. W. 2 asks the attender, Badri, to fetch a glass of water. By that
time, P. W. 3, the other doctor, had come and is sitting in the next chair. P.
W. 2 complains to P. W. 3 about the strange bitterness in the tongue, aspirin
being tasteless. He gargles his mouth, washes his face with water and asks the
attender to buy some beatle leaves, apparently to overcome the bad taste.
Thereafter he proceeds to his normal work and tries to give injection to a
patient waiting, but begins to feel shaky. Within a few minutes P. W. 2 has the
sensation of cramps in the calf muscles and P.W. 3, the other doctor, is
perplexed. So he goes into the dispensing room and asks the accused from which
bottle he had given the aspirin. The latter shows a bottle of aspirin kept
there, and when asked whether he had accidently given strychnine denies that
strychnine, a deadly poison, is in stock at all. Of course, the accused himself
begins to tremble. Any way, P. W. 3 seals the bottle of aspirin taken from the
dispensing room as well as the paper of the packet in which the medicines taken
by P. W. 2 was kept, and the other unconsumed packet. Apprehensive of
poisoning, P. W. 2 is removed to the District Hospital, where he is given a
stomach wash. His condition becomes precarious and his statement is recorded by
P.W.7, the Police Officer attached to the Kotwali Police Station, and a case is
registered under s. 328, 1. P. C., against the accused, Ex. Ka. 1.
P.W. 3 gives a written report, Ex. Ka. 2, and
also the sealed packets to P. W. 7, the Police Officer. Thereafter,
investigation begins and the dispensing and store rooms are inspected and the
stock register examined. No bottle of strychnine is seen in the dispensing
room, but one containing 4.2 grams of this lethal poison is found in the store
room-vide Ex. Ka. 8, the search memo.
The Chemical Examiner found on analysis of
the stomach wash that P. W. 2 had consumed strychnine. There were traces of
strychnine crystals in the paper of the packet from which P. W.
2 had swallowed the headache cure. The other
packet, which was not used, contained only aspirin. The symptoms which P.
W. 2 developed were clearly indicative of
It has been found by the High Court that it
was the accused compounder who brought the two packets of medicine to P. W.
2. Likewise, it has been found that if was
the accused who dispensed the medicine and that there was no strychnine in the
dispensing room, but there was some quantity of it in the store room. The High
Court has also held that the accused's denial to P. W. 3 that there was no
strychnine available in stock was false and that the interrogation so upset the
accused that he began to tremble.
These are the broad findings which have led
to the conviction of the accused, whose stand, however, was one of denial. He
agreed, while examined in the sessions court, that P. W. 2 had told Badri, the
attendant, to bring aspirin and he in turn told the accused that Doctor Saheb
had wanted two 'purjas' of aspirin, whereupon the accused told Badri that
aspirin packets were kept ready there and he had better take them out and give
to the doctor. In short, he dis- connected himself from the doctor's request
for aspirin or the delivery of the two packets of medicine. The further answer
of the accused was that P. W. 3 merely asked him where the bottle of aspirin
was and not where the bottle of aspirin from which he gave the packet to P. W.
2 was. That is to say, the incriminating component of that part of the,
testimony of P. W. 3 is denied by the accused. He denies again that he told P.
W. 3 that there was no strychnine in stock while, as a fact, 4 2 grams thereof
were found in the store room. He suggests an answer to why such a case should
have been started against him that it is due to the grudge P. W. 3, Dr. Baijal,
bore against him. In this context, it is meaningful to note that before the
Committal Court he took a patently false stand, namely, that P.W. 2 had neither
asked him for aspirin nor had he dispensed any to him.
Indeed, he has resorted to an audacious plea
that "purias are dispensed by the hospital attendants . . . . three
persons work as hospital attendants; I got rest on every Friday and on that day
I enjoy holiday." The obvious attempt was to fob off the poisonous
packet-on the hospital attendant. In the Session Court, however, he abandoned
this impossible position and put forward a more plausible case, trying to cash
in hopefully on Badri, the peon, being set up as a dispensing chemist so far as
the puria in question was concerned.
The Sessions Court acquitted the accused on a
perverse view of the evidence. Although the learned Judge has set down the
points pressed into service by the prosecution properly, he has gone off at a
tangent into an investigation as to why the paper with which the poisonous
puria was made was not mentioned in Ex. Ka. 2. He gets entangled in a serious
series of trivialities and magnifies minor militating circumstances to persuade
himself to the conclusion that there was something very fishy in the
investigation on this aspect.
610 The learned Sessions Judge asks why the
accused, should have given two purias instead of one, and why he should have
taken the chance of the doctor taking the innocuous puria out of the two, if he
had an offending intent. He works himself up into the chance possibility of
strychnine getting into the doctor's body through the water he ,drank after the
powder was taken, forgetting that P. W. 2 complained of the bitter taste when
he took the powder and not after he drank the water.
The learned Sessions Judge observed "The
possibility of the strychnine having found its way in the system of Dr. Sen
Gupta by some way other than the contents of the Puria cannot at all be
excluded, for there is evidence of Dr. Sen Gupta himself that he took the
powder of the Puria along with water which Badri had brought and the
possibility of strychnine being in the water cannot be excluded." Another
casual circumstance which the Sessions Judge chases is that the hospital peons
prepare mixtures and powders, suggesting thereby that the purias in question
might have been got prepared by Hospital peons and not the accused.
Yet another fanciful argument which has
appealed to him is, in his own words, that:
"Dr. Sen Gupta has admitted that
strychnine is used in other medicines also. It, therefore, cannot be safely
ruled out that the strychnine found its way into one of the aspirin Purias
already prepared and accidently that Puria was taken by Dr. Sen Gupta."
Not content with these freak conjectures, the learned Sessions Judge fancies
that had the accused an intention against his victim, he would have given him
ten grains of strychnine which would have knocked him down at once since one
part of strychnine in 7000 parts of water would have made the whole quantity
bitter and even half a grain of strychnine could have been a fatal dose. On the
question of motive, the Sessions Judge has again made mistakes, and as for the
long interval for supplying the packets, the Judge has a convenient personal
"Anyone who has any experience of how a
dispenser works at a hospital knows that they are neither very prompt nor very
After all Dr. Sen Gupta was only having a
headache and there was no immediate urgency." We could easily illustrate
more of this species but desist from doing so as it is unnecessary. All that we
need say is that a court is not concerned with fantastic possibilities but with
The learned Judges of the High Court have set
the record straight, if we may say so. They have come to the conclusion that it
was the accused who was directed to bring aspirin and it was he who brought the
two packets, the contents of one of which were poisonous. The learned Judges
have held on a study of the evidence 611 that the accused's plea that there was
no strychnine in stock was false and that he had sought to put off P. W.s 2 and
3 by such a false answer. The intention of the accused to introduce strychnine
is inferred by the High Court thus "In view of the circumstances that the
two packets handed over to Dr. Sen Gupta contained two different, substance, it
is clear that the same were taken from two different bottles..
It cannot be, therefore, said that the
respondent committed an accidental though bona fide mistake of giving the
powder from a wrong bottle. The fact that he took powder from two different
bottles whereas he ought to have taken from only one, itself shows that he had
The effect of the motive made out in the case
has not been lost' sight of by the High Court, although too much has not been
read into it, rightly if we may say so. The ultimate conclusion reached by the
learned Judges is that the accused gave a packet containing strychnine to P. W.
2 for being consumed by him. On these fact,", which have been arrived at
by a reasonable appraisal of the evidence, the present appellant has been found
guilty by the High Court.
Shri Nuruddin Ahmed, counsel for the
appellant, rightly stressed that the prosecution edifice was built on
circumstantial evidence only since' no one had seen the accused mix strychnine
with aspirin before serving the doctor. The critical rule of proof by circumstantial'
evidence, counsel reminded us, is that such testimony can be the probative
basis for conviction only if one rigorous test is satisfied. The circumstances
must make so strong a mesh that the innocence of the accused is wholly excluded
and on every reasonable hypothesis the guilt of the accused must be the only
inference. Shri Nuruddin Ahmed suggested some maybes in the case excluding his
client's culpability, and contended that the test of incompatibility with. the
innocence of the accused had not been fulfilled at all here.
As a, proposition of law and commonsense, we
agree that unlike direct evidence the indirect light circumstances may throw
may vary from suspicion to certitude and care must be taken to avoid subjective
pitfalls of exaggerating a conjecture into a conviction.
Every evidentiary circumstance is a probative
link, strong or, weak, and must be made out with certainty. Link after link
forged firmly by credible testimony may form a strong chain of sure guilt
binding the accused. Each link taken separately may just suggest but when
hooked on to the next and on again may manacle the accused inescapably. Only
then can a concatenation of incriminating, facts suffice to convict a man.
Short of that is insufficient.
The question then is whether the cumulative
effect of the guilt pointing circumstances in the present case is such that the
court can conclude, not that the accused may be guilty but that he must be
guilty. We must here utter a word of caution about this mental 612 sense of 'must'
lest it should be confused with exclusion of every contrary possibility. We
have in S. S. Robade v.
State of Maharashtra(l) explained that proof
beyond reasonable doubt cannot be distorted into a doctrine of acquittal when
any delicate or remote doubt flits past a feeble mind. These observations are
warranted by frequent acquittals on flimsy possibilities which are not
infrequently set aside by the High Courts weakening the credibility of the
judicature. The rule of benefits of reasonable doubt does not imply a frail
willow bending to every whif of hesitancy. Judges are made of sterner stuff and
must take a practical view of legitimate inferences flowing from evidence,
circumstantial or direct. At the same time it may be affirmed, as pointed out
by this Court in Kali Ram v. State of Himachal Pradesh (2), that if a
reasonable doubt arises regarding the guilt of the accused, the benefit of that
cannot be withheld from him.
Coming to the case in hand, the Sessions
Judge has been obsessed by mere maybes. Maybe, the attender made the packets;
may be the doctor , witnesses are adulterating truth; may be the motive is
untrue or inadequate; may be the presence' of two purias, one of which is
aspring suggests the accused's innocence, and so on. Doubt feeds on itself.
Here are certain incontrovertible facts. The
accused bore an immediate grudge against P. W. 1-the adequacy of motivation is
a subjective exploration. The accused was requested to bring aspirin and he
brought it in two tiny packets. He was perhaps not faking a 'chance because the
doctor might well have swallowed both but for the intolerable bitterness of the
first. He falsely denied the stock of strychnine and took a long quarter of
hour to get a little aspirin to his own boss, suggesting that he went into the
store room to take a little strychnine. He trembled when P. W. 3 turned to ask
him a searching question. He never showed any anxiety to save the doctor out of
the calamity and in the committal court took a false plea of denial modified in
the Sessions Court to present a plausible defence. The following questions
arise: Did the accused prepare the medicine which did indubitably contain
poison ? Yes. Did he do it accidently ? No. Did he have motive to harm the
victim ? Yes. Did he deny falsely in the committal court' ? Yes, and that is
itself a guilty circumstance. Do other likelihoods neutralise the incrimination
available from these If circumstances ? Noreasonable inferences but theoretical
possibilities. If crime is to bepunished gossamer web niceties must yield to
The compounder has dispensed a deleterious
substance to his own doctor and has been rightly held guilty. The sentence does
not call for interference either. We dismiss the appeal.
(1)  2 SCC,801.
(2) AIR 1973 SC.2773.