STATE OF UTTAR PRADESH v. CHHEDANA — 1989 DIGILAW 684 (ALL)

B. L. LOOMBA, J. ( 1 ) THIS State appeal is directed against the judgement and order dated 26-5-1978 passed by Shri J. P. Saxena, the then Sessions Judge, Rae Bareli whereby the accused-respondent Shrimati Chhedana was acquitted of the charge under S. 302 of the Penal Code in Sessions Trial No. 213 of 1977 State v. Shrimati Chhedana. ( 2 ) THE victim of the crime was one Panna Lal Kurmi resident of village Sahgon Purabgaon, Police Station Shivgarh, district Rae Bareli. He was aged about 40 years at the time of his alleged murder. The prosecution case was that Shrimati Chhedana resident of the same village was married to one Sohan Lal resident of village Buwayya at a distance of a few miles from the village Sahgon Purabgaon but she was having illicit relations with the deceased Panna Lal and for that reason she did not go to her in-laws and continued to live with her father. She maintained her illicit relationship with deceased Panna Lal and used to frequently go to the house of Panna Lal and on occasions would stay with him during nights. Panna Lal himself was a married person, his wife living with him in his house and his daughter having already been married off outside the village before the occurrence. ( 3 ) ACCORDING to the prosecution case, in the night between 23rd and 24th May, 1975 Shrimati Chhedana came to the house of the deceased Panna Lal and both of them were closeted in the outer room of the house. Shrimati Chhedana is said to have prepared tea around 10 Oclock and served it to the deceased. Panna Lal is said to have taken some tea but complained to the accused respondent that there was bad smell in the tea. She, however, gave out that there was no such bad smell in the cup in which she was taking tea and. after some time she enquired about the reaction of the tea and when the deceased told her that he was feeling bad and uncomfortable she managed to run away. Soon thereafter the deceased vomited and started groaning and moaning. The wife of the deceased, his married daughter who had come to them a day earlier and other persons immediately rushed near the deceased and found his condition deteriorating. He was unable to speak. Soon thereafter the deceased vomited and started groaning and moaning. The wife of the deceased, his married daughter who had come to them a day earlier and other persons immediately rushed near the deceased and found his condition deteriorating. He was unable to speak. A local doctor was called between 3 and 4 a. m. who advised that the victim was in bad shape and he should be taken to a hospital. Arrangements were being made for taking the deceased to the hospital. Meanwhile he breathed his last. ( 4 ) FIRST information report was lodged the next morning at 7. 30 a. m. by Rameshwar Prasad resident of the same village and cousin brother of the deceased. According to the first information report, Shrimati Chhedana was having illicit relations with the deceased for the last 9-10 years, she wanted him to marry her but - Panna Lal was resisting this suggestion on the basis that he was already married. In the fateful night she came to the house of the deceased and served him tea. The deceased vomited at about 9 p. m. Dr. Ganesh was called and as per his advice, preparations were being made to take him to the hospital but in the meantime the deceased expired. It was mentioned in the first information report that it was suspected that Shrimati Chhedana had given poison to the deceased as a result of which Panna Lal died. ( 5 ) THE Investigating Officer arrived in the village at about 12-12. 30 noon on the next day (24-5-1975 ). He started investigation and took in possession the vomited material and the utensils in which the tea was prepared and the glass and cup in which it was taken by the deceased and also perhaps by Shrimati Chhedana. The vomited material and the utensils etc. were sent for examination by the Chemical Examiner and according to the report of the Chemical Examiner, vomited material, as also the utensils, were found to contain Aldrin poison material in small proportion. Viscera was also taken in possession and was also perhaps sent for chemical examination and report but no such report was produced before the Court at the trial. ( 6 ) THE oral evidence is led by the prosecution to establish the case that Shrimati Chhedana had illicit relations with the deceased. Viscera was also taken in possession and was also perhaps sent for chemical examination and report but no such report was produced before the Court at the trial. ( 6 ) THE oral evidence is led by the prosecution to establish the case that Shrimati Chhedana had illicit relations with the deceased. She used to come to his house almost everyday and would also stay during night occasionally, that she had come to the house of the deceased during the night in question, she had purchased tea leaves from Daulat Prasad, a shop keeper in the village, prepared tea and served the same to the deceased. There was conversation between the two which was heard by the wife of the deceased according to which the deceased complained of bad smell in the tea and thereafter he vomited and sensing that the poison had its effect, Shrimati Chhedana managed to escape. Evidence of extra judicial confession has also been led. Jang Bahadur Pradhan of the village has been examined to state that Shrimati Chhedana had come to the residence of Shatrohan Prasad on 24-5-1975 at about 8. 30 p. m. while he was sitting there and she confessed her guilt that she had given poison to deceased Panna Lal and that she may be helped in the matter. Shatrohan was, however, not examined. ( 7 ) BESIDES the statement of Jang Bahadur, the oral evidence of the alleged facts and the circumstances consists of the statements of Shrimati Prabhu Dei PW 1, widow of the deceased, Shrimati Munni Devi PW 5 daughter of the deceased, Rameshwar Prasad PW 7 cousin brother of the deceased and complainant in the case, Daulat Prasad PW 2 the shop-keeper from whom Shrimati Chhedana allegedly purchased tea leaves and to whom Shrimati Chhedana communicated that differences had arisen between her and the deceased because he did not intervene when she was abused by some ladies about two months earlier and further because he was keeping her as his mistress and was not marrying her. Hanuman PW3 and Dashrath PW 4, residents of the same village, have been examined to state that they saw deceased Panna Lal and accused Chhedana sitting and taking tea at the Chabutra of the house and the deceased at about 11 in the night. Hanuman PW3 and Dashrath PW 4, residents of the same village, have been examined to state that they saw deceased Panna Lal and accused Chhedana sitting and taking tea at the Chabutra of the house and the deceased at about 11 in the night. ( 8 ) IN this case there is no direct evidence that the accused respondent had purchased poison and was seen by anybody putting poison in the tea which was served to the deceased. The case of the prosecution, mainly, is based on circumstantial evidence. ( 9 ) WHETHER the facts and circumstances of a particular case are or, are not, sufficient in their cumulative effect to establish that an offence has been committed, that it is the accused and none else who has committed the same, has to be decided by the application of well settled rules, namely :- (1) Each fact and circumstance must be of such a character as to lead to a reasonable inference about some aspect of the guilt of the accused; (2) Every such fact or circumstance must be clearly proved beyond doubt and the burden of proof always lies on the prosecution; (3) The chain of proved facts and circumstances must be complete and no link should be missing; (4) The proved facts and circumstances should be of such a nature as to point in their cumulative and total effect irresistibly and unmistakably to the only conclusion that the accused is guilty of the offence and the facts and circumstances are entirely incompatible with the innocence of the accused. ( 10 ) LEARNED Sessions Judge who tried the case has not dealt with the evidence on the set line of the aforesaid rules. From perusal of the judgement of the Sessions Judge it appears that he accepted that the deceased had illicit relations with the respondent. He, however, rejected the testimony of the important prosecution witnesses, namely, PW 1 Shrimati Prabhu Dei widow of the deceased, Shrimati Munni Devi PW 5 daughter of the deceased and Rameshwar Prasad PW 7 cousin brother of the deceased on the ground that all the three witnesses are interested person who were aggrieved by the illicit relationship between the deceased and the respondent and had, as such, motive for false implication of the accused respondent. Their testimony was found to be discrepant and lacking of consistency as to the time when tea was prepared and served and whether the deceased had stated that something poisonous was mixed in the tea by the accused respondent. ( 11 ) JANG Bahadur PW 10 before whom the respondent is said to have confessed her guilt is Pradhan of the village. According to the Sessions Judge, he is an independent person but he appears to be having sympathy with the family of the deceased and, particularly, his wife who suffered long because of the illicit relationship of the respondent with the deceased. Daulat Prasad PW 2 the shopkeeper had stated that the respondent had come to his shop to purchase tea leaves at about 10 p. m. and that is there that she mentioned to him that the deceased had let her down when he did not scold the ladies who abused the respondent and that the witness (Daulat Prasad) should ask the deceased to marry her. It has been mentioned by the learned Sessions Judge that the witness was not on inimical terms with the respondent but his testimony had been rejected as being not natural and further there was no reason why these facts had not been told by him to the family members of the deceased immediately often the occurrence which would have become known in the village without any delay. ( 12 ) HANUMAN PW 3 and Dashrath PW 10 had stated that they had seen the deceased and the respondent sitting on the Chabutra outside the house and taking tea at about 11 p. m. on that fateful night. Their evidence has been rejected on the ground that there was no occasion for them to have gone that way at about 11 in the night and their testimony was lacking of consistency. Their evidence has been rejected on the ground that there was no occasion for them to have gone that way at about 11 in the night and their testimony was lacking of consistency. Learned Sessions Judge rejected the evidence of the extra judicial confession of guilt of the accused respondent before Jang Bahadur PW 10 at the house of Shatrohan Prasad (not examined) on the ground that there was discrepancy in the evidence as to the time of arrest of the respondent, that the accused respondent as per the evidence of Shrimati Prabhu Dei PW 1 and that of the Investigating officer had been arrested on 24-5-1975 at about 5 p. m. and as such she was in police custody when the extra judicial confession is said to have been made by her. ( 13 ) ANOTHER aspect dealt with by the Sessions Judge was that there was complete absence of motive for the respondent to have committed this crime. On the other hand, it is the wife of the deceased who was aggrieved in this whole affair and it is she who could have motive to eliminate the respondent or both the respondent and the deceased as the matters may have become unbearable for her. ( 14 ) LEARNED Deputy Government Advocate has argued that it was established by the prosecution evidence beyond doubt that the accused respondent had come to the house of the deceased on that fateful night and it is she who prepared the tea and served the same to the deceased and as a result thereof he felt uncomfortable and, eventually, he died. It is contended that the vomited material and the utensils used for preparation and service of the tea disclosed presence of Aldrine poison in all these articles and these circumstances when taken together ought to have been accepted as sufficient to lead to the inference that the poison was administered by none else except the accused respondent. Attention has also been invited to the statement made by the accused under S. 313 of the Code of Criminal procedure wherein she admitted that she had given some statement to Jang Bahadur and Shatrohan and that this statement was nothing but her confession as stated by Jang Bahadur PW 10. Attention has also been invited to the statement made by the accused under S. 313 of the Code of Criminal procedure wherein she admitted that she had given some statement to Jang Bahadur and Shatrohan and that this statement was nothing but her confession as stated by Jang Bahadur PW 10. ( 15 ) AFTER hearing the learned Deputy Government Advocate and the learned counsel for the respondent, we feel satisfied, firstly, that the deceased and the respondent had illicit relationship lasting for about 8-10 years prior to this occurrence and further that the deceased died as a result of poison administered to him. This much is quite clear that no evidence has been led to trace the source of procurement of poison and the Investigating Officer does not appear to have made any efforts to collect evidence on this important aspect of the case. Jang Bahadur PW 10 while he testified about the confessional statement of the respondent mentioned that he had asked as from where did she procure poison and the reply given was that she had so procured through her father-in-law Bhulla. This statement, on the face of it, is unbelievable and was rightly rejected by the learned Sessions Judge. In a way, it weakened the testimonial value of Jang Bahadur PW 10. Respondent after her marriage had not gone to live with her in-laws and, on the other hand continued with her illicit relationship with the deceased and stayed in the place of her parents. In this situation, there was hardly any connection left between the respondent and any member of the family of her in-laws. It cannot, as such be accepted that the respondent had gone to get poison from her father-in-law. ( 16 ) ACCORDING to the first information report, the respondent had come to the house of the deceased on that night and it is at about 9 p. m. that she prepared and served tea to the deceased. The wife and daughter of the deceased have stated that tea was taken by the deceased while they were in the outer room of the house but according to Hanuman PW 3 and Dashrath PW 4 they had passed that was around 11 p. m. and they saw the deceased and the respondent sitting on the Chabutra outside the house and taking tea. The statements of both Hanuman and Dashrath appear to be uninspiring and were rightly rejected by the learned Sessions Judge. ( 17 ) ON the question whether the deceased had implicated the accused respondent in the matter, the prosecution evidence is discrepant, Prabhu Dei PW 1 wife of the deceased has said nothing on this point. According to her the deceased was unable to speak and that is the explanation offered as to why did she not enquire from her husband as to who had administered poison to him. Munni Devi, daughter of the deceased has, however, stated that she had asked her father as to what happened to him and she was told by him that Shrimati Chhedana (respondent) had given poison to him in tea. On Court question, she replied that her mother and her uncle i. e. the complainant were present when this statement was made by the deceased. The statement is clearly contradictory to what is deposed by her mother Prabhu Dei PW 1. This raises a serious doubt on the point whether the deceased was in a position to make a statement before his death as by whom poison was administered to him. ( 18 ) ACCORDING to the statement of Shrimati Prabhu Dei PW 1 the deceased had not taken his meals in his house that evening. He had gone to attend the marriage of the son of Gauri Kumhar whose house was situated quite nearby. Shrimati Prabhu Dei could not say whether the deceased had taken food at the house of Gauri Kumhar. Three ounces of semi-digested food containing rice was found in the stomach of the deceased as per post mortem examination report. This means that the deceased had taken his meals that night. Viscera was preserved but, ununderstandably, the same was either not sent for the report of the Chemical Examiner and if it was sent and the report received, the same was not placed as evidence at the trial. That the deceased was administered poison is sought to be established on the basis, mainly, of the presence of Aldrin poison in the vomited material. There appears no reason to discard this evidence and it appears well established that the deceased died of poison administered to him. That the deceased was administered poison is sought to be established on the basis, mainly, of the presence of Aldrin poison in the vomited material. There appears no reason to discard this evidence and it appears well established that the deceased died of poison administered to him. ( 19 ) ON the question whether the respondent had come to the house of the deceased on the fateful night there are the testimonies of Smt. Prabhu Dei, his widow, Shrimati Munni Devi, his daughter, and Rameshwar Prasad, his cousin brother. The testimony of these three witnesses cannot be discarded merely on the ground that these witnesses are interested persons. Mechanical rejection of interested witnesses would clearly result in failure of justice. It is the quality of the evidence that matters. It has been well established that the respondent used to come to the house of the deceased freely and practically every night. The statements of the three witnesses, namely, Shrimati Prabhu Dei PW 1, Shrimati Munni Devi PW 5 and Rameshwar Prasad PW 7 on the factum of the respondent having come to the house of the deceased on that night, in our view, appear worthy of acceptance. Learned counsel for the respondent argued that poison could be administered by the wife of the deceased because she was fed up with the illicit relationship subsisting between her husband and the respondent and in any case, she could well be intending to eliminate the respondent but due to some accidental error, she escaped and her husband became a victim. Normally speaking, it appears highly improbable that the wife of the deceased, even though she was quite aggrieved by the conduct of her husband, could have thought of poisoning her husband because thereby she was not going to be benefited in any way. As has been stated by her, she had reconciled with the situation and had even stopped speaking to her husband on this issue. There is no other evidence on this point as to whether there used to be repeated quarrels on this issue between the husband and the wife and in the totality of the facts and circumstances as placed at the trial, it appears highly improbable that this crime was committed by the wife of the deceased. There is no other evidence on this point as to whether there used to be repeated quarrels on this issue between the husband and the wife and in the totality of the facts and circumstances as placed at the trial, it appears highly improbable that this crime was committed by the wife of the deceased. The suggestion was, no doubt, made in cross-examination of the witnesses that the deceased had some sexual affairs with some other ladies also but this suggestion was repelled and in the absence of any material on record and keeping in view of the facts and circumstances of the case, it appears that the deceased had no other love affair except with the respondent. There is no suggestion that any other person could have motive and opportunity to commit this crime. It would thus appear that there is a very strong probability that this crime was committed by the respondent and by no one else. However, mere suspicion and probability, however, strong, cannot take the place of proof. The burden to establish the case clearly lies on the prosecution and it is for the prosecution to establish its case by reliable and unimpeachable evidence. In the present case, the circumstantial evidence that the respondent had lowee to the house of the deceased and about the presence of Aldrin poison in the vomited material are strong pointerstowards the guilt of the respondent but the chain of circumstances cannot be said to be complete and unbroken without there being any link missing. There is absence of evidence as to the procurement of poison by the respondent. The evidence that tea leaves were purchased by the respondent from Daulat Prasad PW 2 is clearly uninspiring. Absence of used tea leaves in either of the cooking or serving material, is an important missing link raising a serious doubt about the dependability of the prosecution case about the preparation of tea by respondent at the relevant time. Another strong factor coming against the prosecution is the absence of motive for the respondent to commit this crime. According to the prosecution evidence, there was stable relationship between the deceased and the accused respondent. There is no evidence of any discords or disputes having developed between the two. Daulat Prasad PW 2 is the only person who had stated that the respondent had somehow become fed up with the deceased. According to the prosecution evidence, there was stable relationship between the deceased and the accused respondent. There is no evidence of any discords or disputes having developed between the two. Daulat Prasad PW 2 is the only person who had stated that the respondent had somehow become fed up with the deceased. His statement appears to be unnatural and uninspiring. The reason for the discord as given out by this witness is too slender to lead to the belief that the deceased had given any cause to the respondent to have thought of eliminating him. The two reasons for the discord as mentioned by this witness are that about a month before this occurrence, the deceased did not rebuke the ladies who had abused the respondent in his presence and further that the deceased was not agreeing marry her. The illicit relationship was going on for the last 8-10 years without any difficulty. The deceased was a married person having his wife and a married daughter. The difficulty to his agreeing to marry the respondent was there from the beginning of their relationship. If the respondent wanted the deceased to marry her, this would have been done in the very beginning. There is nothing to show that anything new had come up which made the respondent raise the suggestion or demand of marriage. The fact that the deceased did not intervene in a quarrel between the respondent and some ladies could not, in any way, become a basis of a serious dispute between the two so as to provoke the respondent to kill paramour with whom she was having stable and undisturbed relationship. Accordingly, what appears clearly is that there was no motive for the respondent to eliminate the deceased as she could not have, in any way been benefited by his death. As has already been discussed, the evidence of extra judicial confession also is not dependable. ( 20 ) IN view of the above, the circumstantial evidence to support the prosecution case cannot be said to be of a conclusive nature with complete and unbroken chain of circumstances leading to irresistible and unmistakeable conclusion that it is the accused respondent, and she alone, who has committed thus crime. Only thing to be inferred is that there is strong suspicion and probability that this crime was committed by accused respondent. This, however, cannot take the place of proof. Only thing to be inferred is that there is strong suspicion and probability that this crime was committed by accused respondent. This, however, cannot take the place of proof. ( 21 ) IT is also important that the matter has come before this Court in State appeal against acquittal. Well settled position of law is that while the High Court has full power to review the evidence on which the order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused is further re-enforced by the order of acquittal by the trial Court which has had the advantage of seeing the witnesses and hearing their evidence. The order of acquittal can be reversed by the High Court only for very substantial and compelling reasons and not merely on a nice balance of probabilities and improbabilities and including the fact that a different view of facts on record can bc taken by the High Court. ( 22 ) ON the perusal of the facts and circumstances and keeping in view the well settled position of law as regards acceptance of an appeal against the acquittal, we are of the view that no case has been made out to allow the appeal and set aside the order of acquittal recorded by the trial Court. ( 23 ) THIS appeal is, accordingly, dismissed. The respondent is on bail. She need not surrender. Her bail bonds are discharged. Appeal dismissed. .