Bhupinder
Singh Vs. State of Punjab [1988] INSC 93 (6 April 1988)
Shetty,
K.J. (J) Shetty, K.J. (J) Dutt, M.M. (J)
CITATION:
1988 AIR 1011 1988 SCR (3) 409 1988 SCC (3) 513 JT 1988 (2) 23 1988 SCALE
(1)678
ACT:
Criminal
Procedure Code, 1973/1898-Section 293-Chemical Examiner-Report of-A piece of
evidence-Does not require formal proof-Should normally be forwarded to the
doctor who performed autopsy report.
Criminal
Trial-Poison murder cases-Invariably committed under cover and cloak of
secrecy-Prosecution entitled to establish circumstances consistent with the
hypothesis of the guilt of the accused.
HEAD NOTE:
% Bhupinder
Singh, appellant, his father Sher Singh and his mother Mukhtiar Kaur, were
tried for committing the murder of Bhupinder Singh's wife, Gian Kaur, by
administering poison. The Trial Court held that the accused had strong motive
for the murder as the deceased was unable to satisfy their demand for dowry for
which she was being constantly harassed. The Trial Court further held that the
death of Gian Kaur was not accidental or suicidal or by food poisoning. The
Trial Court held that the accused had the opportunity to accomplish their
design, and they did administer poison which the deceased must have resisted
and thereby suffered injuries on her body. The Trial Court found all the three
accused guilty of the offence under section 302 read with section 34 I.P.C. and
sentenced them to imprisonment for life.
It was
urged before the High Court that the prosecution has failed to establish by
evidence the necessary conditions for the proof of murder by poisoning.
Disagreeing with the contentions and the theory of suicide put forth by the
appellant, the High Court confirmed the conviction and sentence on Bhupinder
Singh and Sher Singh while acquitting Mukhtiar Kaur.
The
present appeal by special leave is only by Bhupinder Singh.
The
main contention of the appellant is that in a case of murder by poison there
are three main points to be proved; firstly, did the deceased die of the poison
in question; secondly, had the accused got the 410 poison in question in his or
her possession, and thirdly, had the accused an opportunity to administer the
poison in question to the deceased. It is contended that the evidence falls
short of these requirements, and in particular, as to the question of proof of
possession of the poison with the accused.
The
second contention of the appellant is that it is not enough for the chemical
examiner merely to state in his report that the poison-Organo phosphorus
compound was present in the substance sent for examination; he should have also
stated that a lethal dose of the poison was detected. It is submitted that his
report should be full and complete to take the place of evidence which he would
have given if he were called to Court as witness.
Dismissing
the appeal, this Court, ^
HELD:
(1)
Section 293 of the Code of Criminal Procedure provides that the report of
scientific experts may be used as evidence in any inquiry, trial or other
proceedings of the Court. [416D]
(2) No
hard and fast rule can be laid down as regards the value to be attached to the
report of the chemical examiner. [416D]
(3)
The chemical examiner does not, as a rule, give an opinion as to the cause of
death but merely gives report of the chemical examination. The report itself is
not crucial.
It is
a place of evidece. The only protection to it is that it does not require any
formal proof. It is, however, open to the Court, if it thinks fit, to call the
chemical examiner and examine him as to the subject matter of the report. The
report should normally be forwarded to the doctor who conducted the autopsy.
[416D-F]
(4) In
poison murder cases, the accused are not acquitted solely on the failure of the
prosecution to establish one or the other requirement. They are not to be
acquitted solely on the ground that the prosecution has failed to prove that
the accused had the poison in his possession, and are to be acquitted by the
Court taking into account the totality of the circumstances including insufficient
motive, weakness in the chain of circumstantial evidence and likelihood of the
deceased committing suicide. [421C-E]
(5)
Murder by poisoning is run like any other murder and the accused cannot have a
better chance of being exempted from sanctions 411 than in other kinds of
murders. [422B-C]
(6)
The poison murder cases are not to be put outside the rule of circumstantial
evidence. There may be obvious very many facts and circumstances out of which
the Court may be justified in drawing permissible inference that the accused
was in possession of the poison in question. [421H; 422A]
(7)
The insistence on proof of possession of poison with the accused invariably in
every case is neither desirable nor permissible. It would mean to introduce an
extraneous ingredient to the offence of murder by poisoning. [422B]
(8)
Murder by poison is invariably committed under the cover and cloak of secrecy.
Nobody will administer poison to another in the presence of others. The person
who administers poison to another in secrecy will not keep a portion of it for
the investigating officer to come and collect it. The person who commits such
murder would naturally take care to eliminate and destroy the evidence against
him. In such case, it would be impossible for the prosecution to prove
possession of poison with the accused.
The
prosecution may, however, establish other circumstances consistent only with
the hypothesis of the guilt of the accused. The Court then would not be
justified in acquitting the accused on the ground that the prosecution has
failed to prove possession of the poison with the accused. [421E-G] Mt. Gajrani and
another v. Emperor, A.I.R. 1933 All 394; State v. Fateh Bahadur, A.I.R. 1958
All 1; Chandra Kant Myalchand Seth's case, (Criminal Appeal No. 120 of 1957
decided on 19.2.1958): Dharambir Singh v. The State of Punjab, Criminal Appeal No. 98 of 1958
decided on 4.11.1958;
Mohan
v. State of Uttar Pradesh, A.I.R. 1960 SC 669; Ram Gopal v. State of Maharashtra,
A.I.R. 1972 S.C. 656; Sharda B. Chand Sarda v. State of Maharashtra, [1985] 1
SCR 88 and Ananth Chintaman Lagu v. The State of Bombay, A.I.R. 1960 S.C. 500,
referred to.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 379 of 1986.
From
the Judgment and Order dated 13.7.1984 of the Punjab and Haryana High Court in Crl. Appeal No. 82 D.B. of 1984.
R.L. Kohli
and R.C. Kohli for the Appellant.
412
R.S. Suri for the Respondent.
The
Judgment of the Court was delivered by JAGANNATHA SHETTY, J. One may ask the
question whether murder by poisoning is not run like any other murder? The
learned counsel for the appellant purports to state that it is not. He relies
upon the judicial prescriptions as to the burden of proof in
"poison-murder" cases. He contends that the prosecution must prove
"that the accused had the poison in his possession". He asserts that
failure to establish that factor should entail the acquittal of the accused.
This is a vital question which goes far beyond the case and it, therefore,
requires careful consideration.
Bhupinder
Singh-Appellant was prosecuted for the murder of his wife by poisoning. He was
sentenced for life imprisonment by the Additional Sessions Judge, Faridkot in
Session Case No. 86 of 1983. His conviction and sentence have been affirmed by
the Punjab and Haryana High Court in criminal
appeal No. 82-DB of 1984. He has preferred this appeal by special leave
challenging the conviction and sentence.
We may
first advert to the prosecution case. It reveals a sad story. It runs like
this: Gian Kaur, the victim in this case is the only daughter of Baltej Singh. Baltej
Singh like many other parents thought that his problems would be solved by the
marriage of his daughter. He got her married to Bhupinder Singh by spending all
his savings. His relatives also contributed for the marriage. But ill-luck
would have it, his problems started immediately after the marriage. Bhupinder
Singh and his parents wanted Gian Kaur to bring Rs. 10,000 from her father. It
was nothing but a demand for dowry. They stopped up their demand with harassment
to Gian Kaur. Gian Kaur informed her father. The father could not arrange that
much of amount. He had already spent all that he had in connection with her
marriage. He had also then given presents in cash and kind to Bhupinder Singh.
So he felt helpless. Unmerciful, Bhupinder Singh asked his wife to go back to
her parents' house. So she left to seek shelter with her parents. She remained
with them for about eight months. But how long the father could keep his
married daughter away from her husband. Some parents think that it is a
reflection upon them. Baltej Singh also must have thought like that. He somehow
arranged Rs.6,000 and sent Gian Kaur to her husband's house. Gian Kaur rejoined
her husband upon making the payment of Rs.6,000. That appears to have satisfied
Bhupinder Singh for about 413 one year. In the meantime, Gian Kaur had a male
child.
Naturally
there was jubilation for Baltej Singh. He performed the customary Chuchhak
ceremony and again gave Rs.4,000 and a buffalo as presents to Bhupinder Singh.
Bhupinder
Singh ought to have been happy and satisfied. But he was not. It was alleged by
the prosecution that this time he demanded a motorcycle. Baltej Singh could not
give it.
Gian Kaur,
as usual, was again the target. It was further alleged by the prosecution that Bhupinder
Singh threatened to kill his wife if motorcycle was not given to him. Gian Kaur
had kept her father informed about the said demand and the threat.
On July 13, 1983, Gian Kaur died under mysterious
circumstances. Upon receiving that information, Baltej Singh with his brother Baldev
Singh reached the place in the evening of that day. They saw Gian Kaur, lying
dead on a charpai. They suspected foul play. Baltej Singh gave the information
to the police narrating all the above events. He informed the police that his
daughter was killed by Bhupinder Singh and his parents by administering
something to her. On the basis of that information, the F.I.R. was issued. The
investigation of the case was taken by A.S.I. (PW 4). The body of Gian Kaur was
sent to Dr. Sant Prakash Singh (PW 6) for post-mortem. The Doctor Prakash Singh
noticed five minor injuries on the body of the deceased. The brain and other
vital organs were also found to be congested. The Doctor sent stomach contents,
portions of small intestine, liver, spleen and kidney to the chemical examiner
for the purpose of analysis.
The
chemical examiner in his report dated September 14, 1983 has stated that an Organo
phosphorus compound was found in the substance sent to him for analysis. The
investigating officer sent that report for opinion of the Doctor Prakash Singh
as to the cause of death of Gian Kaur. The Doctor gave his opinion that the
death of Gian Kaur was due to organo phosphorus compound poisoning.
Bhupinder
Singh, his father Sher Singh and his mother Mukhtiar Kaur were tried for
committing the murder of Gian kaur by administering poison.
The
prosecution examined six witnesses and the accused in turn examined one. The
trial court after considering the evidence and other material on record held as
follows:
The
accused had strong motive to get rid of Gian Kaur. Apparently motive for the
murder was the inability of Gian Kaur 414 to satisfy the demand for dowry. The
death of Gian Kaur was not accidental or suicidal. There was no reason for her
to commit suicide. It was also not a death by food poisoning since the accused
and deceased shared common food on the fateful night. There was none else in
the house on that night except Gian Kaur and the accused.
The
accused had an opportunity to accomplish their design. The accused must have
administered the poison to the victim. The injuries found on the body of the
deceased indicated the resistence she must have offered when the poison was
administered to her. With these and other conclusions, the trial court finally
said:
"In
the background of the circumstances and evidence discussed above, the only
conclusion possible is that Bhupinder Singh and Mukhtiar Kaur did administer
poison organo phosphorus compound to Gian Kaur and did cause her death with
common intention, which was to get rid of her as she had not been able to
persuade his father to meet their demand for motorcycle so as to clear way for
another marriage of Bhupinder Singh in his youthful years in order to get more
and more of dowry." Accordingly, the trial court found all the three
accused guilty of the offence under Section 302 read with Section 34 I.P.C.
They were sentenced to imprisonment for life.
Challenging
the legality of the conviction and sentence the accused appealed to the High
Court. It was urged before the High Court that the death of Gian Kaur was not
homicidal. She must have in all probability committed suicide since she was
suffering from tuberculosis. It was also urged that the prosecution has failed
to establish by evidence the necessary conditions for the proof of murder by
poisoning. The High Court did not agree with those contentions. The High Court
ruled out the theory of suicide.
It was
observed that there was no evidence to show that Gian Kaur was suffering from
tuberculosis or ever treated for that disease. The High Court observed:
"Case
of murder by poisoning is always one of secrecy. Almost in every such case one
has to depend on circumstances. Doubtless, before a person can be convicted on
the strength of circumstantial evidence, the circumstances in question must be
satisfactorily established 415 and the proved circumstances must bring home the
offence to the accused beyond reasonable doubt. If those circumstances or some
of them can be explained by any reasonable hypothesis then the accused must
have the benefit of that hypothesis.
But in
assessing the evidence imaginary possibility has no place. What has to be
considered are ordinary human probabilities. We have already referred to some
important circumstances which in our opinion point out to the guilt of Bhupinder
Singh and Sher Singh appellants. In the well-known case of Anant Chantman Lagu
v. The State of Bombay, A.I.R. 1960 S.C. 500 their Lordships held that in a
cause of poisoning, the prosecution must establish: (a) that the death took
place by poisoning; (b) that the accused had the poison in his possession; and
(c) that the accused had an opportunity to administer the poison to the
deceased. All the three requirements are satisfied in this case.
There
is no dispute that the death of the deceased was caused by poisoning. It has
been established by the chemical examiner's report, that the viscera contained organo
phosphorus compound poison. The evidence of the prosecution witnesses has established
that the aforesaid two appellants had the opportunity to administer poison to
the deceased and that they had the motive to commit the crime. Their running
away from the house at the time when the Investigating Officer visited their
house is also consistent with their guilt and not with their innocence."
With these observations, the High Court confirmed the conviction and sentence
on Sher Singh and Bhupinder Singh while acquitting Mukhtiar Kaur.
The
present appeal is only by Bhupinder Singh.
Before
embarking on the validity of the main submission made in this appeal, we may
first dispose of one other contention urged for the appellant. Mr. R.N. Kohli,
learned counsel for the appellant submitted that it is not enough for the
chemical examiner merely to state in his report that the organo phosphorus
compound was present in the substance sent to him for examination. He should
have also stated that a lethal dose of the organo phosphorus compound was
detected in the substance sent to him. His report should be full and complete
to take the place of evidence which he would have given if he were called to
Court as witness. In the absence of such particulars, the death by 416
poisoning cannot be inferred. In support of this contention, learned counsel relied
upon two decisions of the Allahabad High Court viz. (i) Mt. Gajrani and Anr.
v. Emperor, [A.I.R. 1933 Allahabad 394] and (ii) State v. Fateh Bahadur
& Ors., [A.I.R. 1958, Allahabad 1].
In the first case, it was observed that it was not enough for the chemical
examiner merely to state his opinion. He must also state the grounds which
formed the basis of his opinion. The second case was a case of death by arsenic
poisoning. The chemical examiner did not state the quantity of arsenic poison
found in the viscera of the deceased. He did not state whether it was a fatal
dose or not. The High Court pointed out that it would be of the utmost
importance before a Court could find any individual guilty of murder by arsenic
poison that its complete analysis should be made. It is not enough to state
that arsenic was detected in the body of the deceased.
In our
opinion, these observations cannot be taken as a rigid statement of law. (No
hard and fast rule can be laid down as regards the value to be attached to the
report of the chemical examiner. Section 293 of the Code of Criminal Procedure
provides that the report ofscientific experts may be used as evidence in any
inquiry, trial or other proceedings of the court. The chemical examiner does
not, as a rule, give an opinion as to the cause of death but merely gives
report of the chemical examination of the substance sent to him. The report by
itself is not crucial. It is a piece of evidence. The only protection to it is
that it does not require any formal proof. It is, however, open to the Court if
it thinks fit to call the chemical examiner and examine him as to the subject
matter of the report. The report should normally be forwarded to the Doctor who
conducted the autopsy. In the instant case, that was done.
The
Doctor who conducted the autopsy was given a copy of the report of the chemical
examiner. The Doctor in the light of the report gave his opinion that the death
of Gian Kaur was by poisoning i.e. organo phosphorus compound. The report of
the chemical examiner coupled with the opinion of the Doctor is, therefore,
sufficient to hold that it was a death by poisoning.
This
takes us to the main contention urged for the appellant. It was urged that in a
case of murder by poison there are three main points to be proved, firstly did
the deceased die of the poison in question; secondly, had the accused got the
poison in question in his or her possession;
and
thirdly, had the accused an opportunity to administer the poison in question to
the deceased. It was also urged that if the prosecution fails to prove these
factors, then the accused cannot be convicted. The evidence in the case,
according to learned counsel falls 417 short of these requirements and, in
particular, as to the question of proof of possession of the poison with the
accused and therefore the accused is entitled to acquittal.
We
have been referred to some decisions of this Court in support of the contention
urged. We have also examined some other cases bearing on the question raised. A
brief survey of these cases would be useful to appreciate the contention urged
for the appellant. There are two unreported decisions of this Court of the year
1958. The first one is in Chandra Kant Myalchand Seth's case [Criminal Appeal
No. 120 of 1957 decided on 19.2.1958]. There a woman died of alkali cyanide.
The husband of the deceased was tried and convicted by the trial court for the
offence of murder. The conviction was set aside by this Court. In the course of
the judgment, it was observed:
"Before
a person can be convicted of murder by poisoning, it is necessary to prove that
the death of the deceased was caused by poison, that the poison in question was
in possession of the accused and that poison was administered by the accused to
the deceased." The acquittal, however, was based on the consideration of
the entire facts and circumstances of the case. It was found that there was a
greater motive to the deceased to commit suicide than to the accused to commit
murder. This Court also took note of the concern and conduct of the accused
when he found his wife lying unconscious. The accused ran to the house of his
friend and returned with a Doctor to render assistance to the victim. The
accused called another Doctor for the same purpose. He was also found weeping
all the while. Taking into consideration of all these factors, this Court found
no justification to sustain the conviction of the accused.
Dharambir
Singh v. State of Punjab, (Criminal Appeal No. 98 of 1958 decided on 4.11.1958)
is another case of homicidal action by cyanide poisoning. It was perhaps in
this case, the guidelines as to the proof of certain facts in "poison
murder cases" were laid down by this Court. It was observed:
"Where
the evidence is circumstantial the fact that the accused had motive to cause death
of the deceased, though relevant, is not enough to dispense with the proof of
certain facts which are essential to be proved in such cases, namely (firstly)
did the deceased die of poison in 418 question? (secondly) had the accused the
poison in his possession? and (thirdly) had the accused an opportunity to
administer the poison in question to the deceased? It is only when the motive
is there and these facts are all proved that the court may be able to draw the
inference, that the poison was administered by the accused to the deceased
resulting in his death." After laying down these principles, the court
considered the entire evidence on record which indicated the likelihood of the
deceased committing suicide or another person to have administered the poison
to the deceased. This Court accordingly acquitted the accused by extending the
benefit of doubt.
If one
prefers to go yet further back we find a decision of the Allahabad High Court
which is exactly on the principles laid down in Dharambir Singh case. In Mt. Gajrani v.
Emperor, A.I.R. 1933 All. 394 Benett, J. speaking for the Court observed (at p.
394):
"In
a case of murder by poison there are three main points to be proved: firstly,
did the deceased die of the poison in question; secondly, had the accused got
the poison in question in his or her possession; and thirdly, had the accused
an opportunity to administer the poison in question to the deceased. If these
three points are proved, a presumption may under certain circumstances be drawn
by the Court that the accused did administer poison to the deceased and did
cause the death of the deceased. It is not usual that reliable direct evidence
is available to prove that the accused did actually administer poison to the
deceased.
The
evidence of motive which is frequently given in these cases is of subsidiary
importance, and the mere fact that the accused had a motive to cause the death
of the deceased is not a fact which will dispense with the proof of the second
and third points that the accused had the poison in his or her possession, and
that the accused had an opportunity to administer the poison." The above
proposition found its way into Mohan v. State of Uttar Pradesh, A.I.R. 1960 S.C. 669 and Ram Gopal v. State of Maharashtra, A.I.R. 1972 S.C. 656. In Mohan's
case, the death in question was by arsenic poisoning. In that case, the
prosecution was able to prove that the accused gave 'peras' to the victim as 'pershad'
and the victim 419 died after eating the 'pershad'. 'Pershad' contained
arsenic. There was thus direct evidence as to the possession of the poison with
the accused. This Court, therefore, had no difficulty to sustain the conviction
and sentence awarded to the accused.
Ram Gopal's
case was concerned with homicidal action by administering a compound called
"kerosene and orango choloro compound". The High Court, relying upon
the motive and other circumstantial evidence convicted the accused for the
offence of murder although there was no evidence that the accused was in
possession of poison. This Court could not agree with the view taken by the
High Court. The analysis of the evidence produced by the prosecution revealed
that the motive alleged against the accused was not fully established. The
incriminating circumstantial evidence against the accused was also found to be
insufficient. So the conviction of the accused was set aside and the acquittal
was recorded.
Sharda
E. Chand Sarda v. State of Maharashtra, [1985] 1 SCR 88 A.I.R. 1984 S.C. 1622
is yet another case of death by cyanide poisoning for which the husband of the
deceased was tried for murder. There was no direct evidence to establish that
the accused was in possession of that poison. The High Court, however, relied
upon the circumstantial evidence and convicted the accused. In the appeal
preferred by the accused, this Court did not agree with the reasoning of the
High Court. After referring to Ram Gopal's case. Fazal Ali, J., focussed the
attention on the following four factors:
The
learned Judge observed (at p.167):
"So
far as this matter is concerned, in such cases the court must carefully scan
the evidence and determine the four important circumstances which alone can
justify a conviction:
(1) there
is a clear motive for an accused to administer poison to the deceased,
(2) that
the deceased died of poison said to have been administered,
(3) that
the accused had the poison in his possession,
(4) that
he had an opportunity to administer the poison to the deceased."
420
The learned Judge went on to state:
"In
the instant case, while two ingredients have been proved but two have not. In
the first place, it has no doubt been proved that Manju died of potassium
cyanide and secondly, it has also been proved that there was an opportunity to
administer the poison. It has, however, not been proved by any evidence that
the appellant had the poison in his possession. On the other hand, as indicated
above, there is clear evidence of PW 2 that potassium cyanide could have been
available to Manju from the plastic factory of her mother, but there is no
evidence to show that the accused could have procured potassium cyanide from
any available source. We might here extract a most unintelligible and
extra-ordinary finding of the High Court:
"It
is true that there is no direct evidence on these two points, because the
prosecution is not able to lead evidence that the accused had secured potassium
cyanide poison from a particular source.
Similarly
there is no direct evidence to prove that he had administered poison to Manju.
However, it is not necessary to prove each and every fact by a direct evidence.
Circumstantial evidence can be a basis for proving this fact." The comment
by the high Court appears to be frightfully vague and absolutely
unintelligible.
While
holding in the clearest possible terms that there is no evidence in this case
to show that the appellant was in possession of poison, the High Court observes
that this fact may prove either by direct or indirect (circumstantial)
evidence. But it fails to indicate the nature of the circumstantial or indirect
evidence to show that the appellant was in possession of poison. If the Court
seems to suggest that merely because the appellant had the opportunity to
administer poison had the same was found in the body of the deceased, it should
be presumed that the appellant was in possession of poison, then it has
committed a serious and gross error of law and has blatantly violated the
principles laid down by this Court.
The
High Court has not indicated as to what was the basis for coming to a finding
that the accused could have procured the cyanide. On the other hand, in view of
the 421 decision in Ram Gopal's case failure to prove possession of the cyanide
poison with the accused by itself would result in failure of the prosecution to
prove its case." This Court then went into the merits of the prosecution
case. It was observed that the deceased was of sensitive mind. She had
occasionally suffered mental depression due to her inability to adjust herself
to her husband's family. It was also observed that the deceased had access to
the poison in question. She could have secured the poison from the factory of
her mother. Considering these and other circumstances, it was held "that
it might be a case of suicide or murder and both were equally probable".
So the accused was given the benefit of doubt and he was acquitted.
From
the foregoing cases, it will be seen that in poison murder cases, the accused
was not acquitted solely on the failure of the prosecution to establish one or
the other requirement which this Court has laid down in Dharambir Singh case.
We do not also find any case where the accused was acquitted solely on the
ground that the prosecution has failed to prove that the accused had the poison
in his possession. The accused in all the said cases came to be acquitted by
taking into consideration the totality of the circumstances including
insufficient motive, weakness in the chain of circumstantial evidence and
likelihood of the deceased committing suicide.
We do
not consider that there should be acquittal on the failure of the prosecution
to prove the possession of poison with the accused. Murder by poison is
invariably committed under the cover and cloak of secrecy. Nobody will
administer poison to another in the presence of others. The person who
administers poison to another in secrecy will not keep a portion of it for the
investigating officer to come and collect it. The person who commits such
murder would naturally take care to eliminate and destroy the evidence against
him. In such cases, it would be impossible for the prosecution to prove
possession of poison with the accused.
The
prosecution may, however, establish other circumstances consistent only with
the hypothesis of the guilt of the accused. The court then would not be justified
in acquitting the accused on the ground that the prosecution has failed to
prove possession of the poison with the accused.
The
poison murder cases are not to be put outside the rule of circumstantial
evidence. There may be obvious very many facts and circumstances out of which
the Court may be justified in drawing 422 permissible inference that the
accused was in possession of the poison in question. There may be very many
facts and circumstances proved against the accused which may call for tacit assumption
of the factum of possession of poison with the accused. The insistence on proof
of possession of poison with the accused invariably in every case is neither
desirable nor practicable. It would mean to introduce an extraneous ingredient
to the offence of murder by poisoning.
We
cannot, therefore, accept the contention urged by the learned counsel for the
appellant. The accused in a case of murder by poisoning cannot have a better
chance of being exempted from sanctions than in other kinds of murders.
Murder
by poisoning is run like any other murder. In cases where dependence is wholly
on circumstantial evidence, and direct evidence not being available, the Court
can legitimately draw from the circumstances an inference on any matter one way
or the other.
The
view that we have taken gets support from the decision of this Court in Ananth Chintaman
Laguy v. The State of Bombay, A.I.R. 1960 S.C. 500 where Hidayatullah, J., has
given an anxious consideration to the three propositions laid down in Dharambir
Singh case. The learned Judge did not consider them as invariable criteria of
proof to be established by the prosecution in every case of murder by
poisoning. The learned Judge said (at p. 519-520):
"It
is now necessary to consider the arguments which have been advanced on behalf
of the appellant. The first contention is that the essential ingredients
required to be proved in all cases of murder by poisoning were not proved by
the prosecution in this case. Reference in this connection is made to a decision
of the Allahabad High Court in Mt. Gajrani v. Emperor. AIR 1933 All 394 and to
two unreported decisions of this Court in Chandrakant N Nyalchand Seth v. The
State of Bombay, Criminal Appeal No. 120 of 1957 decided on February 19, 1958 and Dharambir Singh v. The State of
Punjab, Criminal Appeal No. 98 of 1958,
decided on 4.11.1958. In these cases, the Court referred to three propositions
which the prosecution must establish in a case of poisoning; (a) that death
took place by poisoning; (b) that the accused had the poison in his possession,
and (c) that the accused had an opportunity to administer the poison to the
deceased. The case in Cr. A. No. 98 of 1958 D/- 4.11.1958 (SC) turned upon
these three propositions. There, the deceased had died as a result of poisoning
by potassium cyanide, which poison was also found in the 423 autopsy. The High
Court had disbelieved the evidence which sought to establish that the accused
had obtained potassium cyanide, but held, nevertheless that the circumstantial
evidence was sufficient to convict the accused in that case.
This
Court, did not, however, accept the circumstantial evidence as complete. It is
to be observed that the three propositions were laid down not as the invariable
criteria of proof by direct evidence in a case of murder by poisoning, because
evidently if after poisoning the victim.
the
accused destroyed all traces of the body, the first proposition would be
incapable of being proved except by circumstantial evidence.
Similarly,
if the accused gave a victim something to eat and the victim died immediately
on the ingestion of that food with symptoms of poisoning and poison, in fact,
was found in the viscera, the requirement of proving that the accused was
possessed of the poison would follow from the circumstances that the accused
gave the victim something to eat and need not be separately proved." The
learned Judge continued:
"The
cases of this Court which were decided proceeded upon their own facts, and
though the three propositions must be kept in mind always, the sufficiency of
the evidence, direct or circumstantial? to establish murder by poisoning will
depend on the facts of each case. If the evidence in a particular case does not
justify the inference that death is the result of poisoning because of the
failure of the prosecution to prove the fact satisfactorily, either directly or
by circumstantial evidence, then the benefit of the doubt will have to be given
to the accused person.
But if
circumstantial evidence, in the absence of direct proof of the three elements,
is so decisive that the Court can unhesitatingly hold that the death was a
result of administration of poison (though not detected) and that the poison
must have been administered by the accused person, then the conviction can be rested
on it." So much for the principles for which the learned counsel for the
appellant fought for. On the facts there is concurrence of opinion between the
two courts below. This Court seldom re-examines the findings of fact reached by
the High Court. We may, however, out of 424 deference to the counsel briefly
refer to the evidence. The prosecution has established the motive for the
murder. The proof of motive goes a long way to tilt the scale against the
accused which provides a foundational material to connect the chain of
circumstances. The facts which hear on motive are distressing. After the
marriage, Gian Kaur was subjected to repeated harassment for not satisfying the
demand for dowry made by Bhupinder Singh. Baltej Singh (PW2) has stated that Bhupinder
Singh asked Gian Kaur to bring Rs. 10,000. The parents of Bhupinder Singh were
also parties to that demand. Baltej Singh with all difficulties satisfied that
demand in part by payment of Rs.6,000. Bhupinder Singh thereafter demanded a
motorcycle. When that was not immediately given Bhupinder Singh held out a
threat to his wife that she would be killed. This was conveyed to Baltej Singh.
Before he could take a decision in this regard he was shocked to receive the
news of death of Gian Kaur. This has been proved by the testimony of Baltej
Singh (PW 2) and Nazir Singh (PW 3). The demand for dowry followed by
harassment to the deceased has been thus satisfactorily proved.
The
evidence of the Doctor and the report of the chemical examiner has established
beyond doubt that Gian Kaur died of organo phosphorus compound poisoning. Bhupinder
Singh had an opportunity to administer that poison. There was nobody else in
the house. All the inmates had their common food in the night. All of them
slept in the same place. Both the Courts have ruled out the theory of suicide
by Gian Kaur. We entirely agree with that finding. She could not have thrown
her child to the mercy of others by committing suicide and indeed no mother
would venture to do that. The postmortem report giving the description of
injuries found on the body of the deceased would also defy all doubts about the
theory of suicide. She had contusion on the front of right leg. Abrasion on the
front of the left leg just below the knee joint. Linear abrasion on the back of
the right hand. Linear abrasion on the antro-lateral aspect of left fore-arm in
its middle. And contusion on the back of right elbow joint. These injuries, as
the Courts below have observed could have been caused while Gian Kaur resisted
the poison being administered to her.
The behaviour
of Bhupinder Singh in the early hours of that fateful day by going to his field
as if nothing had happened to his wife is apparently inconsistent with the
normal human behaviour. There was no attempt made by him or other inmates of
the house to look out for any Doctor to give medical attention to the victim.
The movement and disposition of Bhupinder Singh towards the victim and
situations 425 are incompatible with his innocence. On the contrary, it gives
sustenance to his guilt.
The
Courts below having considered all these facts and circumstances had no
difficulty to convict the accused for murder and we see no good reason to
interfere with that conclusion.
In the
result, the appeal fails and is dismissed.
R.S.S.
Appeal dismissed.
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