JUDGMENT P.C. Pathak, J. -- 1. The appellant was convicted under section 302, IPC, and was sentenced to imprisonment for life for the murders by poisoning of Dayaram and Karmaha, father and son respectively on 29.11.1983, in village Bada Gantoli, P.S. Sarangarh, district Raigarh. 2. Deceased Dayaram was the father-in-law of the appellant while deceased Karmaha was the elder brother of the appellant's husband Mahabir. The appellant with her husband and deceased Karmaha lived in separate rooms though of one house. Dayaram lived for a fortnight with Karmaha and next fortnight with Mahabir. Karmaha was a widower and he used to make gestures insulting her modesty contemplating illicit sex with her. The prosecution alleges that the appellant bought poison from Sarangarh and administered it with vegetable bitter gourd (Monordica Chentia) served along with meals to both the deceased both started vomiting and eventually died in the house. 3. Dabal (PW-2) received a call from appellant's husband Mahabir. On visit, he noticed that Dayaram and Karmaha were vomiting. Karmaha died soon thereafter. He went to village Kotwar Resham (PW-1) and returned with him to the appellant's house. By then Dayaram too had died. Resham enquired from the appellant what had she done to both the deceased. The appellant disowned any hand in their death. Resham threatened her that a report will be lodged in the police station and station officer will interrogate her. Therefore, she should tell the truth. The appellant confessed that she administered poison in the cooked vegetable of bitter gourd. Upon a further enquiry she disclosed that she brought the poison from Sarangarh. 4. Resham (PW-1) lodged FIR (Ex.P.1). Circle Inspector S.J. Japhrin (PW-5) came to the village and held inquest on the body of Dayaram, vide Ex.P.2 and that of Karmaha, vide Ex.P. 3. He sent both the bodies for postmortem. He seized the vomits of Dayaram and the sample earth, vide Ex.P. 4. Similarly he seized the vomits of deceased Karmaha and sample earth, vide Ex.P. 5. He also seized the quilt from the cot on which Dayaram lay, and a piece of dhoti on which Dayaram had vomited, vide Ex.P. 6. Similarly, he seized a bush shirt and a lungi soiled with Karmaha's vomits, vide Ex.P. 7. He seized 3 utensils, vide Ex.P. 8. He also seized the quilt from the cot on which Dayaram lay, and a piece of dhoti on which Dayaram had vomited, vide Ex.P. 6. Similarly, he seized a bush shirt and a lungi soiled with Karmaha's vomits, vide Ex.P. 7. He seized 3 utensils, vide Ex.P. 8. On interrogation the appellant gave a memorandum Ex.P. 9 and discovered a piece of cloth containing the poison from behind her house, vide Ex.P. 10. One piece of stones, used as grinder, was seized, vide Ex.P. 12. 5. Dr. R.P. Patel conducted postmortem of Dayaram, vide Ex.P. 14. In his opinion, the deceased died of coma and asphyxia because of suspected poison. He preserved viscera for chemical analysis. He could not opine whether the death was suicidal, homicidal or accidental. The viscera consisted of (1) Stomach contents; (2) pieces of small intestine; large intestine; liver; both the lungs; spleen; and kidneys. Ex.P. 15 is the postmortem of Karmaha. The cause of death in his case is also coma-asphyxia due to poisoning. In his case also, the doctor preserved the viscera for chemical examination, viz. stomach contents and pieces of small and large intestines, liver, the lungs, spleen and the kidneys. He also sealed their clothes and sent them in two packets which were seized by the police, vide Ex.P. 21. 6. On 26.12.1983, the Superintendent of Police, sent the articles for analysis to the Chemical Examiner. The Chemical Examiner sent his report Ex.P. 23 stating that aconite alkaloied poison was detected in both. Therefore, charge-sheet was filed against the appellant under section 302, IPC. 7. The appellant denied commission of any offence. She did not examine any witness in her defence. The learned trial Court by the judgment under challenge convicted and sentenced her as aforesaid. 8. She filed one appeal through jail under section 383, CrPC in the Court of Sessions Judge, Raigarh, who forwarded it to this Court along with the trial Court records through registered parcel dated 10.6.1985 which was received by this Court on 13.6.85 and was registered as Criminal Appeal No. 803/85. She filed another appeal under section 374(2) of the Code through her counsel on 17.6.1985 which was registered as Criminal Appeal No. 652/85. 9. The jail appeal was placed for consideration in motion hearing on 16.9.1985 before the Division Bench presided over by Shri C.P. Sen and Shri S.K. Seth, JJ. She filed another appeal under section 374(2) of the Code through her counsel on 17.6.1985 which was registered as Criminal Appeal No. 652/85. 9. The jail appeal was placed for consideration in motion hearing on 16.9.1985 before the Division Bench presided over by Shri C.P. Sen and Shri S.K. Seth, JJ. The appeal was summarily dismissed. The present appeal was placed in motion hearing on 19.6.1985 for consideration of bail application. The Court ordered to requisition the trial Court record. Accordingly a requisition was sent to Sessions Judge, Raigarh on 1.7.1985. The Officer-in-charge Judicial Record, Raigarh, through his reply dated 6.7.1985, informed this Court that the record of the trial Court had already been sent on 10.6.1985 along with the appellant's jail appeal. Further, notings is the 'B' file show that the office overlooked the reply and instead kept on sending reminders to D.J., Raigarh, the last being 12.2.1986. It was only 14.2.1985 that the R.K. (P) made an endorsement that the lower Court record had been received in jail appeal. Cr.A. No. 803/85 and reminder need not be sent to District Judge. Had the office been careful enough to take notice of reply dated 6.7.1985 of the officer-in-charge, Raigarh, both the appeals could have been linked together and placed for consideration before the Court. 10. When on 2.5.1986, the present appeal was linked with CrA. No. 803/85, the office realised for the first time that Criminal Appeal No. 803/85 had already been decided. Without inviting the attention of the Court that the jail appeal had already been decided, the present appeal was placed for admission in motion hearing on 25.11.1986. The appeal was admitted on this date and notice was issued to the State. 11. During the course of hearing, copy of order dated 16.9.1985, dismissing jail appeal summarily, was found along with the record of the trial Court and that is how a question cropped up whether the summary dismissal of the jail appeal would not operate as bar to the hearing of the present appeal. 12. Under the old Code, section 421 (corresponding to section 384 of the present Code) required the Court to persue the petition of appeal and copy of judgment under appeal before dismissing it. 12. Under the old Code, section 421 (corresponding to section 384 of the present Code) required the Court to persue the petition of appeal and copy of judgment under appeal before dismissing it. Once this was done, the judgment was final and could not under the provisions of section 369 (now section 362) be altered or reviewed by the same Court by entertaining a fresh appeal. See Pratap Singh v. The State of Vindhya Pradesh. In order to counter act this decision, sub-section (4) has been inserted in section 384 of the present Code which gives the Court power even to hear regular appeal on merits, if in any case jail appeal has been dismissed summarily, provided that the Court is satisfied that interest of justice so requires, section 384(4) is reproduced as under:- "Sub-section (4) -- Where an appeal presented under section 383 has been dismissed summarily under this section and the appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law". 13. Section 393 provides that the judgments and orders passed by an appellate Court upon an appeal shall be final except in cases provided for under section 377, 378 and 384(4) of the Code. Therefore, under the present Code even after a jail appeal u/s. 383, CrPC by the accused has been summarily dismissed at the stage of section 384, CrPC, the Court has power, under the circumstances mentioned in sub-section (4) of section 384 to hear and dispose of an appeal filed through advocate. In view of this provision, the decisions to the contrary under old Code are no longer good law. 14. Next question for consideration is whether hearing of the present appeal is desirable in the interest of justice in spite of the summary dismissal of the jail appeal filed by the appellant. Our answer to the question is in affirmative. The decision of appeal on merits here-in-after will show that the summary dismissal of jail appeal has resulted in failure of justice. 15. Learned counsel for the appellant argued that the conviction rests on circumstantial evidence. Our answer to the question is in affirmative. The decision of appeal on merits here-in-after will show that the summary dismissal of jail appeal has resulted in failure of justice. 15. Learned counsel for the appellant argued that the conviction rests on circumstantial evidence. According to him, there is no legal evidence muchless the series of links completing the chain of circumstances against her and, therefore, she deserves to be acquitted. 16. The first circumstance held proved against the appellant is extra judicial confession. The learned trial Court held that the evidence of extrajudicial confession is a part of direct evidence as held in K.N. Nanawati v. State of Maharashtra. The prosecution relied on statement of Resham and Dabel to prove the extra judicial confession. Resham stated that on his visit to the appellants house along with Dabel, he found that Karmaha and Dayaram both had died. He enquired from the appellant as to what happened to those persons, to which the appellant's reply was that she had not done any thing to them. Upon this, Resham informed that a report could be lodged in the police station and the police officer will question her. He extorted her to speak the truth. The appellant then disclosed that in the cooked vegetable of bitter gourd, she administered the poison. Resham then enquired, from where she brought the poison. The appellant replied that she brought it from Sarangarh. In cross-examination he admitted that he made no enquiry from Mahabir then sitting outside the house. Dabel deposed that on the question put by Resham, the appellant initially denied that she did anything to the deceased. Resham then warned her with the remarks "Be sure, to tell the truth also police will come and she will have to disclose". The appellant then admitted that she administered poison. Resham put next question where from she had brought the poison to which the reply was "from Sarangarh". Ramesh again asked how did she administer the poison; her reply was "in the cooked vegetable of bitter gourds". In cross-examination, the witness stated that on her denial to the first question, Resham threatened the appellant "police will arrest you and your husband and will also harass the whole village, therefore, you speak out truthfully". 17. The scheme of the Evidence Act is to treat confessions prima facie as relevant. In cross-examination, the witness stated that on her denial to the first question, Resham threatened the appellant "police will arrest you and your husband and will also harass the whole village, therefore, you speak out truthfully". 17. The scheme of the Evidence Act is to treat confessions prima facie as relevant. There is no initial burden on the prosecution to make out the negative. However, it cannot be disputed, it is the right of the accused to have confession excluded and equally the duty of the Court to exclude it even "suo motu" if the vitiating circumstances appear. See Bala Majhi v. The State of Orissa. In Hem Raj Devilal v. The State of Ajmer, it was held that ordinarily a confession duly taken in accordance with law, would be relevant, but in case of any doubt or when challenged, it is for the prosecution to show affirmatively to the satisfaction of the Court that the confession was voluntary. If there is the slightest doubt or suspicion of its voluntary nature, the scale will be turned in favour of the accused and the burden is on the prosecution to show that it was voluntarily made. There is no onus the accused. See Bala Majhi 's case (supra). 18. The question for decision is whether the confession was the result of inducement, threat or promise. A confession becomes irrelevant when in opinion of the Court 'it appears' to have been caused by an inducement, threat or promise. Mere exhortations to tell the truth do not exclude the confession. In Older to attract the bar, it should be such as to lead the accused to suppose that "by making it he would gain any advantage or avoid any evil of any temporal nature in reference to the proceedings against him. Percy Rustomji Basta v. The State of Maharashtra. What is important is that the mere existence of threat etc. is not enough, but in the Court's opinion the said threat etc. shall be sufficient to cause reasonable belief in the mind of accused that by confessing he would get an advantage. The criterion is the reasonable belief of the accused. See Pyarelal Bhargava v. The State of Rajasthan. 19. As seen above, Dabel very clearly admitted that the appellant confessed only when she was told that police will arrest her and her husband; and will harass the whole village. The criterion is the reasonable belief of the accused. See Pyarelal Bhargava v. The State of Rajasthan. 19. As seen above, Dabel very clearly admitted that the appellant confessed only when she was told that police will arrest her and her husband; and will harass the whole village. Thus, she was forced to tell the whole truth. In Mt. Yashodi v. King Emperor, it was held that a confession under an exhortation to speak the truth implying an inducement that he will escape penalties, is inadmissible. Confession obtained after pointing to the policeman and calling upon to speak the truth was held inadmissible in Mar Phalai v. Emperor. The commentaries u/s. 24 of the Evidence Act show that the expressions "you had better tell the truth" has in several cases been regarded as threat or promise unless the words are qualified in some manner. Hashmat Khan v. Emperor. 20. The threat given to the appellant was that she and her husband might be arrested if she did not speak the truth. The impact of the threat on the appellant's mind must have been of horror so as to induce her to confess and she could not have thought of any other way to escape her own arrest and that of her husband by the police. The police oppression and torture with a view to extort confession have been the subject of discussion in several reported cases. Unhappily such cases arc not infrequent even now. See In re B. Titus and other. The foregoing discussion shows that the confession was an outcome of threat or inducement given to her and, therefore, it must be held as inadmissible. 21. In cases of murder by poison the prosecution must prove beyond doubt (i) that the deceased died or a particular poison; (ii) the accused was in possession of the same; and (iii) he had opportunity to administer the same to the deceased. See Mohan v. State of Uttar Pradesh. In Ramgopal v. State of Maharashtra, it was held that in cases of death by poisoning, when motive as a circumstance is put forward, it must be fully established like any other incriminating circumstance. In the instant case, the prosecution led no evidence whatsoever to prove the motive alleged for the murders. 22. The next question for decision is whether the deceased died of aconite alkaloied. As seen above, in the postmortem report Dr. In the instant case, the prosecution led no evidence whatsoever to prove the motive alleged for the murders. 22. The next question for decision is whether the deceased died of aconite alkaloied. As seen above, in the postmortem report Dr. Patel merely stated that the death was due to coma from asphyxia due to suspected poisoning. In deposition he stated that the death was probably due to the poison. In cross-examination he stated that a person consuming poison becomes unconscious, suffers from asphyxia and the death is caused by syncope. He stated that the death can be on account of anyone of these causes. The blood vessels in the brain were lacerated which as per his suspicion was on account of administration of poison. He found the lungs congested and the nails were blue and, therefore, he concluded that the deceased persons died of asphyxia. In the present case, the death was as a result of coma and asphyxia both. He also admitted that a person may suffer from coma and asphyxia from causes other then poison as well. 23. The statement of the doctor is somewhat indefinite. On receipt of the Chemical Examiner's report, the prosecution was expected to put the same to the doctor to obtain further clarification whether in the present case the death was on account of poison. In The State of Maharashtra v. Manglya Dhavu Kongil, the Supreme Court laid down the guidelines how to fill up the postmortem reports in case of deaths due to poison. Further, guidelines how to establish death by poison were given in Jose v. The State of Kerala. Modi's Medical Jurisprudence mentions that 1.3 to 2 grams of Indian aconite would probably prove fatal. There is no evidence to show the quantity of poison found in each of the dead bodies. In the absence of any such evidence also the appellant cannot be held guilty of murder. 24. Apart from what is held above, we also find that there is no evidence to corroborate the extra judicial confession. In Ram Prakash v. State of Punjab, it was held that as a matter of prudence and practice, a Court would not ordinarily act upon a retracted confession without the strongest and fullest corroboration as to the crime and the connection of the co-accused. The utensil in which the vegetable 'bitter-gourd' was cooked was not at all seized. In Ram Prakash v. State of Punjab, it was held that as a matter of prudence and practice, a Court would not ordinarily act upon a retracted confession without the strongest and fullest corroboration as to the crime and the connection of the co-accused. The utensil in which the vegetable 'bitter-gourd' was cooked was not at all seized. During postmortem, undigested rice, bhaji and greenish juice were found in the stomach'. According to the confession, the poison was administered in cooked bitter-gourd while according to the postmortem report, leafy vegetables were in the stomach. No leafy vegetables or bitter-gourd was also seized from the possession of appellant. 25. The prosecution also relied on memorandum Ex.P. 9 and seizure of three pieces of roots tied in a piece of cloth. The Chemical Examiner confirmed presence of aconite alkaloid in the said roots but did not report the quantity of poison in each of them. Dhaniram (PW-3) admitted in cross-examination that the memorandum was given after about 3 or 4 hours of continuous threat and beating given to the appellant. The seizure was admittedly from outside of the house. Even if we accept this evidence, there is no evidence to show that the appellant had the opportunity to administer it to the deceased persons. On the other hand the evidence shows that Karmaha lived separate from the appellant. Dayaram lived with Karmaha for a fortnight and the other fortnight with the appellant. There is no evidence to show that on the relevant date, both stayed with the appellants or that they took their meals, cooked and served by the appellant. 26. In view of the foregoing discussion, we hold that the prosecution failed to establish various links of the chain required to be proved in case of murder by poisoning. The appellant is, therefore, entitled to benefit of doubt. 27. The appeal is allowed, the appellant's conviction and sentence u/s. 302, IPC, are hereby set aside and she is acquitted of the charges. She be set to liberty unless required in any other case.