Mrs.Prabha Sridevan, J: Both the appeals arise out of the same judgment of the Second Additional Sessions Judge, Pondicherry in Sessions Case No.34 of 1986. The first accused has filed Criminal Appeal No.502 of 1988 and the accused had filed Criminal Appeal No.509 of 1988, both having been charged with the offence under Sec.302, I.P.C. read with Sec.34, I.P.C. for causing the death of one Biswajit by administering poison on 16.5.1984 and sentenced with imprisonment for life. 2. This case arises out of a private compliant by P.W.1, the father of the deceased (‘D’ in short). On 16.5.1984, the deceased was brought dead to JIPMER Hospital and the Casualty Medical Officer reported the death to the police by FIR, D-47 since it had occurred by swallowing 100 tablets. The final opinion given was that the death may be homicidal on account of other injuries which were definitely not self-inflicted. However, the police investigation concluded that it was a case of suicide. At the instance of P.W.1, the investigation was handedover to an Officer of C.B. C.I.D., C.W.3. He came to the same conclusion. A-1, who was charged with the offence under Sec.324, I.P.C. for causing the injuries on the deceased admitted her guilt and was released under Probation of Offenders Act. The case under Sec.302, I.P.C. came to naught. The grief stricken father filed the private complaint. 3. His case is as follows: The deceased met A-1 in 1976 when he was about seventeen years old. He introduced her to P.W.1 and P.W.2 as his girl-friend. They felt that he was too young and he has not completed his studies and objected to the association. Subsequently, A-1 married one Aloke Sarkar. But, apparently the deceased kept in touch with A-1 and about six months later he expressed his desire to take care of A-1, since her husband was torturing her. Since P.Ws.1 and 3 felt that the deceased should not interfere with a married woman they advised him to pursue higher studies abroad. The deceased went to U.S.A. Sometime later without his parents knowledge he returned to India and married A-1. He tried to take A-1 to U.S.A. but in vain. Though his parents asked him to continue his studies he discontinued his studies and returned to India in 1981. Thereafter it was decided that A-1 and ‘D’ should live in Pondicherry, since P.W.3’s mother was in Aurobindo Ashram. He tried to take A-1 to U.S.A. but in vain. Though his parents asked him to continue his studies he discontinued his studies and returned to India in 1981. Thereafter it was decided that A-1 and ‘D’ should live in Pondicherry, since P.W.3’s mother was in Aurobindo Ashram. Both of them went to Pondicherry and started life together in 1982. In September, 1983, the deceased went with A-1 to Calcutta and made a fresh attempt to go to U.S.A. with the help of ‘D’s elder sister. But it failed. Then, P.W.1, who is a very successful orthopaedic surgeon in Calcutta helped ‘D’ to start a shop in Pondicherry for selling Bengal sarees. The place that was selected for locating this shop belonged to P.W.2. The business was doing well. But ‘D’ went to Calcutta three times between January, 1984 and May, 1984 leaving A-1 in Pondicherry. The last occasion on which ‘D’ went to Calcutta was on 1.5.1984 and he returned to Pondicherry on 14.5.1984. Three or four days before that, P.W.1 and P.W.3 got a phone call from A-1. At that time ‘D’ was not at home. A-1 complaint to P.W.3 that ‘D’ was living with prostitutes in Calcutta. Though P.W.3 tried to say that these suspicions were unfounded A-1 threatened that she would cut ‘D’ to pieces. When ‘D’ returned home, P.W.3 reported this to him. He assured P.W.3 that he would sort out things and left Calcutta for Pondicherry on 14.5.1984. Before leaving he sent a telegram to A-2 who was a friend of A-1 and ‘D’, informing him of his arrival on 15th night by Coromandel Express and to tell A-1 not to leave for Calcutta. 4. On 16.5.1984 early morning, P.W.1, received a phone call from his brother-in-law in Cochin informing him that ‘D’ was in a serious condition. So P.W.1, and P.W.3 and the other son and A-1’s father took the evening flight and went to Pondicherry. A car was sent from the Ashram and the person who came from the Ashram had informed that ‘D’ had died. They went to the hospital but as it was late, they could not see him. 5. One Vijaya Kumar who was a Station House Officer, Muthialpet Police Station on receipt of D-47, registered the same as Crime No.103 of 1984 under Sec.174 of the Code of Criminal Procedure. They went to the hospital but as it was late, they could not see him. 5. One Vijaya Kumar who was a Station House Officer, Muthialpet Police Station on receipt of D-47, registered the same as Crime No.103 of 1984 under Sec.174 of the Code of Criminal Procedure. P.W.1 identified the dead body of his son in the presence of the said officer. The inquest was conducted on the dead body of the deceased by the Station House Officer, Muthialpet Police Station in the presence of Panchayatars. The inquest report is dated 16.5.1984. He forwarded the dead body with a requisition for post mortem to P. W.4. On receipt of the requisition, P.W.4, the Associate Professor in Forensic Medicine in JIPMER Hospital performed the autopsy on the dead body from 11.15 a.m., till about 1.00 p.m. on 17.5.1984. The following features were noticed by the Professor on the dead body: External Examination: (1) Copious amount of latery froth, white in colour, mixed with tinge of blood, present around the mouth and nostrils. (2) Scalp hair, in and around anterior fontonella area, were found to be cut short, compared to rest of the hairs and (3) Eyes and mouth were closed. Injuries: (1) Seven burn marks, round in shape, each of 0.5 c.m. in diameter on the lateral aspect of left upper arm, each at a distance varying from 3 to 7 cms. from each other. The most marked one had caused subcutaneous haematoma of one c.m. diameter in size (including depth). Rest were skin deep only. (2) Left upper eye-lid was swollen and bluish in colour. Conjunctive of both the eyes were congested. (3) Three linear scratches running along the length of upper limb situated in the middle of lateral aspect of left fore-arm. Each was a line’s width, varying in length from 3 to 6 cms. These were parallel to each other. Each was situated at one cm. distance from the closer one. 6. Ex-P22 is the post-mortem certificate given by P.W.4. P.W.4 sent the viscera for chemical examination and Ex-P21 is the Chemical Report. It showed the presence of barbiturate and alcohol. The cause of death according to him is due to Gardenal poison. Thereafter the said officer came to the scene of occurrence and examined A-1 and A-2 and other witnesses. Thereafter the body was handedover to P.W.1 and ‘D’ was cremated on 17.4.1984 in the evening. It showed the presence of barbiturate and alcohol. The cause of death according to him is due to Gardenal poison. Thereafter the said officer came to the scene of occurrence and examined A-1 and A-2 and other witnesses. Thereafter the body was handedover to P.W.1 and ‘D’ was cremated on 17.4.1984 in the evening. P.W.1 and 3 returned to Calcutta. Later, P.W.5. a servant of ‘D’ reached Calcutta. He met P.W.1 and told him the events that led to the death of the deceased. 7. According to P.W.5 it was not a case of suicide but the consumption of barbiturate tablet by the deceased was only with the knowledge of A-1 and A-2. He informed P.W.1 that A-1 and A-2 had an illicit relationship and though A-1 objected to this and reproached P.W.1, she ignored it. He reported to ‘D’, but ‘D’ said that since he had married A-1 in spite of family opposition he could not take any action in this regard. P.W.1, was aware of A-1’s relationship with A-2, since he had once seen A-2 in the company of A-1, when ‘D’ was not there offering her gifts and presents. This was not approved by P.W.1. According to P.W.5, the events that led to the death of the deceased started from the evening of 14.5.1984. 8. On 14.5.1984 after closing the shop, P.W.5 went to the house of ‘D’. A-1 told him that they had to go to Madras, the next day. When P.W.5 had asked why they all have to go to Madras, he was told he had to go, because ‘D’ was returning and if ‘D’ did not come A-1 would go to Calcutta since D was spending all his time in the company of prostitute. P.W.5 refused to go saying that he had to look after the shop. But on the next day, A-1 said that P.W.5 had to accompany them to Madras. So P.W.5, A-1, A-2 and one Subir reached Madras at about 5.30 p.m. and went to the Railway Station. Then A-1 told P.W.5 that if ‘D’ comes in the Coromandel Express, it would be alright, otherwise, they would all leave for Calcutta the next morning. The Coromandel Express arrived a little late and ‘D’ was on the train and came out. Just as he came to the gate of the station, A-1 went up to him and began to cry. The Coromandel Express arrived a little late and ‘D’ was on the train and came out. Just as he came to the gate of the station, A-1 went up to him and began to cry. A-2 and others were also present. When the police intervened, ‘D’ said it was a domestic matter. They returned to the hotel. But, Subhir was not there. Then ‘D’ asked A-2 to engage a taxi to go to Pondicherry. They engaged a taxi and started for Pondicherry. In the taxi in the rear seat on the right hand side ‘D’ sat, A-1 sat in the centre and A-2 on the left. P.W.5 sat in the front with the driver. Sometime later when he heard a cry and he turned back he found A-1 holding the lighted end of the cigarette against the left arm of ‘D’. When P.W.5 asked him about it, she asked him not to look behind, and just sit in the front. They reached Pondicherry released the taxi and entered the house. A-1 and ‘D’ went into the bedroom. A-2 and P.W.5 were walking outside. P.W.5 could hear the cries from inside the room. When he was about to knock on the door A-2 prevented him from doing so, saying that he should not interfere when the husband and wife are inside. Then, he heard a loud cry so he kicked upon the door with two blows and the door opened. When he entered the room ‘D’ was lying on the bed with face downwards. There were pieces of cut hair on the bed along with a hair brush and a wire and A-1 was bearing ‘D’ with a piece of antenna wire. When she tried to stop her, she gave P.W.5 a blow with the wire. P.W.5 found swelling on ‘D’s back. He also found the parts of mustaches and hair had been cropped and pieces of hair were lying on the floor. After sometime ‘D’ got up to go the bathroom. He was suffering and P.W.5 tried to help him, ‘D’ told ‘no’ and afterwards P.W.5 heard the sound of his crying. Since he did not come out after some minutes P.W.5 put his arm on the top of the partition wall between the bathroom and lavatory and found ‘D’ standing and crying. He asked ‘D’ to come out. He was suffering and P.W.5 tried to help him, ‘D’ told ‘no’ and afterwards P.W.5 heard the sound of his crying. Since he did not come out after some minutes P.W.5 put his arm on the top of the partition wall between the bathroom and lavatory and found ‘D’ standing and crying. He asked ‘D’ to come out. Then when he found that the door was not bolted but simply closed, P.W.5, opened the door and brought ‘D’ to his bedroom. He found A-1 and A-2 talking together. He made ‘D’ lie on the bed. ‘D’ asked for a piece of paper and wrote down two lines in English, which P.W.5 could not understand and also wrote the date on top 16.5.1984. When P.W.5 asked ‘D’ whether he could fetch a doctor, ‘D’ said ‘no’. But, still P.W.5 went to fetch the doctor. A-2 came from behind and said that there was no need to call the doctor. Then when P.W.5 returned he found A-2 and A-1 in the room where ‘D’ was lying in a unconscious state and something white, like pieces of white tablets was coming out of his mouth. P.W.5 looked around and found there was a phial. When he showed it to A-2. A-2 said that it was a poison. P.W.5 gave ‘D’ some salt water to make him vomit. Though he vomited a small quantity, P.W.5 found small pieces, broken and whole pieces of tablet. So, P.W.5 told A-2, “we must call doctor”. A-2 went with him to the house of the doctor, Datta. A-2 went with the phial to the house of the doctor and P.W.5 went in search of A-2’s father and mother. Doctor said that it was a poison and asked A-2 to take ‘D’ to JIPMER Hospital, A-2 came in a car. P.W.5 and A-1 and A-2 went to the Hospital together. D was brought down and made to lie down in a place there. The Senior Doctor, who came pronounced ‘D’ dead. The Casualty Medical Officer, at JIPMER Hospital lodged the FIR, D47, on the same day namely 16.5.1984 at 3.30 hrs. reporting the death of ‘D’ alleging that ‘D’ had swallowed 100 tablets. Then the doctor sent the dead body to the mortuary. The Senior Doctor, who came pronounced ‘D’ dead. The Casualty Medical Officer, at JIPMER Hospital lodged the FIR, D47, on the same day namely 16.5.1984 at 3.30 hrs. reporting the death of ‘D’ alleging that ‘D’ had swallowed 100 tablets. Then the doctor sent the dead body to the mortuary. P.W.5, A-1 and A-2 returned home at about 7 or 7.30 a.m. When they returned home A-1 and A-2 asked the maid servant to clean the room. 9. When A-1’s father arrived. P.W.5 began to explain everything and he was told that he should not tell the police what actually happened. On 20th, A-1’s elder brother arrived and P.W.5 was tutored as to what he should say and what he should not say. A-1’s family kept him under lock and key and A-1’s brother threatened that he would beat him when he had tried to escape. He managed to run away and went to the police station. Then on the same day he reached Madras and boarded the Howrah Madras Mail and reached Calcutta. 10. In the mean time, on 21.5.1984, the provisional postmortem certificate was sent by P.W.4 wherein it was stated that the cause of death may be homicidal, because of the injuries which were not self-inflicted. C.W.1 took charge of the case, thereafter. The original charge sheet for the offence under Sec.174 of the Code of Criminal Procedure was altered into Sec.302, I.P.C. C.W.1 proceeded with the investigation. P.W.1 sent a letter on 26.5.1984 to the Senior Superintendent of Police wondering if there was trace of foul play. This letter is Ex-P10. 11. P.W.1 again wrote a letter Ex-P12 to C.W.1 bringing to his knowledge the information that he had received. He raised a genuine doubt as to whether the death was a suicidal or homicidal. Therefore, at P.W.1’s request the investigation was transferred to CBCID and C.W.3, the Inspector of Police, CID Branch, Pondicherry continued further investigation. 12. On 30.5.1984, P.W.5 who was in P.W.1’s house in Calcutta, was threatened by another brother of A-1 and P.W.5 fear for his safety. Then P.W.1 entrusted P.W.5 to the care of one Sarogi who had an Investigation Security Service. P.W.5 told him all that happened at Pondicherry. With Sarogi’s help he swore to the affidavit marked as Ex-P9 (Ex-P23 on 30.5.1989) and the same was forwarded to C.W.3. 13. Then P.W.1 entrusted P.W.5 to the care of one Sarogi who had an Investigation Security Service. P.W.5 told him all that happened at Pondicherry. With Sarogi’s help he swore to the affidavit marked as Ex-P9 (Ex-P23 on 30.5.1989) and the same was forwarded to C.W.3. 13. C.W.3 who had taken up the investigation took the bottle which contained the Gardenal tablets since the lot number on it showed that it was purchased at Calcutta. C.W.3 and C.W.1 went to Calcutta for further investigation. They examined thirty three witnesses including A-1. After completing the investigation C.W.3 concluded that from the materials available neither an offence under Sec.302, I.P.C. nor under Sec.306, I.P.C. was made. But he was of the opinion that A-1 should be prosecuted for the offence under Sec.324, I.P.C. for causing injuries on ‘D’ and under Sec.309, I.P.C. for attempting to commit suicide. Accordingly, A-1 was charge-sheeted and to the anxious enquiries made by P.W.1, the Superintendent of Police, C.I.D. sent Ex-P15 informing him that A-1 was arrested and charge-sheeted for the offence under Secs.324 and 309, I.P.C. and the trial was pending before the then Judicial Magistrate, Pondicherry. On 22.3.1985, final order was pronounced in the aforesaid case Calendar Case No.4 of 1985 upon A-1 pleading guilty to the charges and the learned Chief Judicial Magistrate released her under Sec.4(1) of the Probation of Offenders Act on executing a bond for Rs.500. The case ought to have ended there. But when P.W.1 received information that his efforts to find out whether the death of his son was suicidal or homicidal, would not proceed further, he filed the complaint on 21.6.1985 seeking necessary action. 14. The complaint was filed before the Chief Judicial Magistrate, Pondicherry on 21.6.1985 and thereafter it was committed by the learned Special Judicial Magistrate to the Sessions Judge. The Second Additional Sessions Judge at Pondicherry tried the Sessions Case No.34 of 1986. Five witnesses were examined on behalf of the prosecution, four witnesses were examined as Court-witnesses, twenty exhibits were marked by the prosecution, Ex-P1 to P24 through P.W.1 and Exs-D1 to D57 were marked by the defence. Ex-C1 is marked through Court and one material object was also produced. Five witnesses were examined on behalf of the prosecution, four witnesses were examined as Court-witnesses, twenty exhibits were marked by the prosecution, Ex-P1 to P24 through P.W.1 and Exs-D1 to D57 were marked by the defence. Ex-C1 is marked through Court and one material object was also produced. The learned Sessions Judge on considering the evidence available before him, found A-1 and A-2 guilty under Sec.302, I.P.C. read with Sec.34, I.P.C. and sentenced them to undergo life imprisonment and imposed fine of Rs.100 each in default thereof, to undergo rigorous imprisonment for one month. Against this the present appeal has filed. 15. Mr.N.Natarajan learned Senior Counsel appearing for A-2 pointed out that P.W.5 the only person who spoke about what transpired on the fateful day was not at all a reliable witness since he was willing to change his stand depending on the situation. 16. The accused gave their statements under Sec.313 of the Code of Criminal Procedure denying everything and giving a version of what actually happened. The learned senior counsel pointed out that P.W.5 ought to have come our. with the truth. If according to him Ex-P9 reveals what actually happened even when he was in Pondicherry, there is no reason why P.W.5 should go all the way to Calcutta to inform P.W.1 as to what happened and he referred to the decision reported in Vemireddy Satyanarayan Reddy and others v. State of Hyderabad, A.I.R. 1956 S.C. 379 for the purpose that when an eyewitness does not give information of a crime to anyone else, his evidence should be scanned with much caution and the court must be fully satisfied that he is the witness of truth. 17. P.W.1 was in Pondicherry on 16th of June itself. Immediately, P.W.5 should have told him. The story set up by P.W.5 that A-1’s father and brother threatened him not to tell the truth cannot be believed because even before they came on the scene. C.W.1 had recorded the statement of P.W.5. Therefore the threat itself is a futile one. The learned senior counsel pointed out that when P.W.5, who had been brought to Pondicherry by ‘D’ had no place to stay after ‘D’s death returned to Calcutta, he must have been tutored by P.W.1 to fabricate the story of how A-1 and A-2 caused the death of ‘D’. Therefore the threat itself is a futile one. The learned senior counsel pointed out that when P.W.5, who had been brought to Pondicherry by ‘D’ had no place to stay after ‘D’s death returned to Calcutta, he must have been tutored by P.W.1 to fabricate the story of how A-1 and A-2 caused the death of ‘D’. The learned senior counsel pointed out that there was no independent evidence to support the case of the illicit affair between A-1 and A-2 except P.W.5’s statement that he used to find fault with A-1’s behaviour. The learned senior counsel said it was very unlikely that a servant would be emboldened to attempt to correct his employer’s wife. So this testimony of his reprimanding A-1 for her relationship cannot be believed. He also submitted that in fact, the allegation regarding the affair between A-1 and A-2 was a figment of imagination of P.W.5, since, the documents show that ‘D’ himself trusted A-2. In fact, according to A-1 in the statement given by her under Sec.313 of the Code of Criminal Procedure that every time ‘D’ left her behind in Pondicherry he would ask A-2 to take care of her and this is supported by the telegram Ex-D52 in which ‘D’ had informed A-2 to tell A-1 that he was definitely proceeding to Pondicherry. If as P.W.5 stated ‘D’ knew all about the affair between A-1 and A-2 and he was keeping quite because he had blackened his name before the family members. ‘D’ had no reason to send the telegram to A-2. This would belie that he nurtured suspicion about A-1 and A-2. He referred to the evidence of C.W.1 and C.W.3 to demonstrate that their account of what P.W.5 stated before them differ from the evidence given by P.W.5 before the court and hence he submitted that P.W.5’s evidence was unreliable. He submitted that ‘D’s death being suicidal cannot be ruled out. He also referred to Ex-P12, the letter written by P.W.1 wherein it was stated as follows: “after more than an hour of mental torture he went to the bathroom and took some medicine to end his own life”, and again, “When Biswajit was really ill they gave him Salt water to induce vomitting which he did but inadequately”, again, “Biswajit probably did not want to commit suicide, only physical and mental torture made him to take that unfortunate decision.” 18. So, the learned senior counsel submitted that even according to the father of the deceased namely P.W.1, ‘D’ took his own life and when it was his specific case that, they gave him salt water which can only mean A-1, A-2 and P.W.5 and not P.W.5 alone induced vomitting and also it would demonstrate that both the accused actively tried to take steps to counteract the effects of the poison. 19. Learned senior counsel appearing for A-2 would also submit that it was not proper for the prosecution to have cross-examined C.W.1 and C.W.3, since the presumption under the Evidence Act is that all official and judicial acts are regularly done. He also submitted that there was absolutely no corroboration for the evidence of P.W.5, and if P.W.5’s statement stands alone waiting to be corroborated in the absence of anything to support and demonstrate that P. W.5’s version could be true, it will have to fall. In any case where murder is involved, the learned senior counsel submitted that intention should be proved the overt act should be proved by either direct or circumstantial evidence. Here even assuming without granting that there may be intention on the part of A-1 there is neither direct or circumstantial evidence as 1o she administered poison and with regard to A-2 there is absolutely nothing to show his complicity or participation in the crime. He also drew attention to the statement made by A-2 under Sec.313 of the Code of Criminal Procedure which according to him gave an plausible account about what had happened. If from the facts two conclusions could be drawn one of which is favourable to the accused it is incumbent upon the Court to draw that conclusion which is favourable to the accused. He referred to the judgment reported in Sharad Birdhichand Sarda v. State of Maharashtra, A.I.R. 1984 S.C. 1622, where the Supreme Court had laid down the principles as to the mode and the manner of the proof of cases of murder by administration of poison, which is extracted below and if this is applied to the case, the prosecution case should fail. “We now come to the mode and manner of proof of cases of murder by administration of poison. “We now come to the mode and manner of proof of cases of murder by administration of poison. In Ramgopal’s case, A.I.R. 1972 S.C. 656, this Court held thus (at p.659): Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question? (secondly), had the accused the poison in question 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.” “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, 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 P.W.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 extraordinary 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.” 20. 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.” 20. Mr.Sriramulu, learned senior counsel appearing for A-1 submitted that in addition to what was argued by the learned senior counsel appearing for A-2 he would submit the following: He submitted that in any case which is depending on circumstantial evidence each and every link should be completed, P.W.5, according to the prosecution is the only witness. P.W.5 is one who prepared to “shape” his evidence to suit the need. The learned senior counsel also submitted that when P.W.5 has categorically stated that a slip of paper was given by him to ‘D’, on which the date 16.5.1984 was written by ‘D’ along with two lines in English with the direction that if something happened to him nothing should be done in the absence of his father and that the slip should be handed over to the father. The said slip was not at all produced in evidence. According to the learned senior counsel that was burked by the prosecution in order to fix the crime on the accused. The learned senior counsel for A-1 would also reiterate that Ex-D2 showed the suicidal tendencies of ‘D’. He also referred to the evidence of C.W.3 to indicate that the reason for fixing the crime on A-1 and A-2 was because P.W.1 was rich man and he did not want A-1 to inherit the estate of ‘D’, and what better way to deny her legal rights than to fix the responsibility of the death of her husband on her. For all these reasons, the learned senior counsel for both the accused would pray for the acquittal of the two accused. 21. Mr.R.Natarajan, Additional Public Prosecutor for Pondicherry appearing for the prosecution submitted that in this case motive was clearly established and it was the illicit affair between A-1 and A-2. It is the evidence of both P.W.1 and P. W.5 that these two have connection and the reference to the illicit connection referred to in the chief examination by P.W.1 and P.W.5 were not challenged in cross. He referred to the various loop holes in the investigation by C.W.I and C.W.3. It is the evidence of both P.W.1 and P. W.5 that these two have connection and the reference to the illicit connection referred to in the chief examination by P.W.1 and P.W.5 were not challenged in cross. He referred to the various loop holes in the investigation by C.W.I and C.W.3. According to the learned Public Prosecutor the inquest was done in front of strangers who could not have known how the deceased died and the Station Officer had not even attempted to get a statement from P.W.5 who was present from the beginning at the spot. C.W.1 had accompanied C.W.3 to Calcutta to proceed with the investigation especially when the investigation had been transferred on the dissatisfaction of the investigation by P.W.1 to CBCID. Therefore, C.W.3, had investigated the case by burkeing Ex-P9 which is the affidavit sent by P.W.5 from Calcutta, where all factors revealed and hence something was indeed wrong in the manner in which the investigation was being proceeded with. When the learned Public Prosecutor said that when the persons in authority failed to protect the citizen’s rights when such offences are committed there was nothing surprising in the case being taken up at the instance of a private complaint. 22. As regards the argument that ‘D’ showed suicidal tendencies the learned Additional Public Prosecutor would submit that the document relied upon by the defence was proved to have been written on a foreign paper and there was nothing to show that it was contemporary document and no importance could be attached to it. 23. As regards the arguments in defence that since the bottle was proved to have been purchased at Calcutta there was no connection between the poison and the accused the learned Public Prosecutor submitted that it was the old stock of the year 1982 and there was proof to show that A-1 had visited Calcutta at that time and so A-1 might have purchased the poison is really relevant. According to the learned Public Prosecutor all the links were complete and the circumstantial evidence pointed directly to the accused A-1 and A-2 had the motive viz. the illicit affair and P.W.5’s evidence is cogent as regards the events that happened from the time ‘D’ got out of the Coromandel Express at Madras and till ‘D’ breathed his last at Pondicherry. the illicit affair and P.W.5’s evidence is cogent as regards the events that happened from the time ‘D’ got out of the Coromandel Express at Madras and till ‘D’ breathed his last at Pondicherry. A person who according to P.W.5 had got down from the train smiling had seen reduced to a person who staggered on the way to the bathroom showing thereby the heavy dose of poison had been administered to him by the accused followed by the ill-treatment of injuring the ‘D’ or with lighted cigarette by A-1. The statements under Sec.313 of the Code of Criminal Procedure are contrary to A-2’s admission of guilt as per Ex-P20 before the Chief Judicial Magistrate in Calendar Case No.4 of 1985 for the offence under Secs.324 and 309, I.P.C. and this would show that the statements under Sec.313 of the Code of Criminal Procedure are false. This is one more link in the case of circumstantial evidence. The learned Public Prosecutor submitted that A-2 was only a layman and the moment P.W.5 showed the bottle to him before rushing of to Doctor Datta, A-2 said that it was poison. This knowledge could only be attributed to the fact that he was guilty. As far as the delay in reiterating the truth regarding what happened the learned Public Prosecutor said that there was explanation in P.W.5’s evidence as to how the delay had happened. As soon as A-1’s father and brother came they threatened him and he actually escaped to Calcutta, and since he was a servant of ‘D’ it was natural hat he should have reported to ‘D’s father. The learned Public Prosecutor referred to certain passages in Modi’s Medical Jurisprudence & Toxicology in page Nos.356 and 357 to show that the symptoms of such poisoning was present in this case also. The post-mortem report also showed that the wounds were not self-inflicted. According to P.W.5 there were wires lying on the floor which might have caused those wounds on ‘D’. Therefore, the motive was there. The existence of the bottle of tablets on the scene of occurrence had been proved and there was also evidence to demonstrate that A-1 could have used force or physical violence to administer the poison to ‘D’. According to P.W.5 there were wires lying on the floor which might have caused those wounds on ‘D’. Therefore, the motive was there. The existence of the bottle of tablets on the scene of occurrence had been proved and there was also evidence to demonstrate that A-1 could have used force or physical violence to administer the poison to ‘D’. What happened inside the four walls could only be proved by A-1 and since she did not come out with the truth the presumption would be against her. He referred to the following decisions: Vadivelu Thevar v. The State of Madras, 1957 S.C.R. 981, for the preposition that conviction could be justifiable on the basis of the testimony of the single witness, and in M.G.Agarwal v. State of Maharashtra, 1962 S.C.R. 405, wherein the Supreme Court has dealt with the manner in which the evidence has to be appreciated in cases where the prosecution rests on circumstantial evidence. Swapan Patra and others v. State of West Bengal, (1999)9 S.C.C. 242 was relied upon the preposition if the falsity of defence plea could be used as an additional link in the chain of circumstances. State of Tamil Nadu v. Rajendran, (1999)8 S.C.C. 679 was relied on the proposition that the opportunity to offer an explanation or offering of the false explanation to the accused in response to the incriminating circumstance was an additional link in the chain of circumstance to make the conviction justifiable. Bhupinder Singh v. State of Punjab, A.I.R. 1988 S.C. 1011 was relied upon to support the prosecution case that the manner of proving murder by poisoning is the same as in any other case. This is what the Supreme Court had to say, “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. 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. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murder. 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. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murder. Murder by poisoning is run like any other murder.” In that case also the post-mortem report gave descriptions of injuries found on the body. The Supreme Court therefore, held that these injuries defied all doubts about the theory of suicide. The learned Public Prosecutor relied on this to support his case that the accused had been rightly convicted. He also relied on the decision reported in Joseph, S/o.Kooveli Poulo v. State of Kerala, (2000)3 C.T.C. 305, for the proposition that. “Courts have from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answer for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed.” 24. Learned Public Prosecutor submitted that in any case it was not necessary for the prosecution to meet each and every hypothesis put by the accused, if the cumulative effects of the case is established and is consistent only with the hypothesis of the guilt of the accused. For this he relied upon State of U.P. v. Ashok Kumar Srivastava, A.I.R. 1992 S.C. 840 to meet every suggestion. 25. In reply, the learned senior counsel for A-2 said that it was the bounden duty of the prosecution to discharge the burden of proof. The investigation is a pre-trial area where the evidence is being collected to find out the culprit. Inquest is to ascertain the cause of death. Demolishing the investigation by stating that the panchayatars in the inquest are unknown persons or by stating that the affidavit Ex-P9 was kept in the case diary and not forwarded to the court will not help the prosecution. He also relied on E.D.Smith v. Emperor, A.I.R. 1980 All. Inquest is to ascertain the cause of death. Demolishing the investigation by stating that the panchayatars in the inquest are unknown persons or by stating that the affidavit Ex-P9 was kept in the case diary and not forwarded to the court will not help the prosecution. He also relied on E.D.Smith v. Emperor, A.I.R. 1980 All. 111, wherein the Division Bench of this Court has held, “No doubt an accused person is always entitled to hold his tongue but, where the only alternative theory to his guilt is a remote possibility which if correct, he is in a position to explain, the absence of any explanation must be considered in determining whether the possibility should be disregarded or taken into account.” The provisions of Secs.106 and 114 of the Evidence Act are not without bearing on this point. 26. He further relied upon the decision reiterated in Shambhu Nath Mehra v. The State of Ajmer, A.I.R. 1956 S.C. 404, with regard to the effect of Sec.106, Evidence Act. It is stated therein that: “Sec. 106 is certainly not intended to relieve it of the duty on the prosecution to discharge the burden of proof. On the contrary it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are”especially“within the knowledge of the accused and which he could prove without difficulty or inconvenience...... If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case, the burden lies on the accused to prove that he did not commit the murder. If the common object of A-1 and A-2 were to commit the offence under Sec.302, I.P.C. they would not have gone to Madras to bring back ‘D’ taking P.W.5, along with them. The learned senior counsel submitted that this itself showed the innocence of the accused.” 27. We have heard the arguments advanced by the three counsel. This is a case where ‘D’ was brought dead to the Hospital. Since the Casualty Doctor found that it was a medicolegal case as death is due to the tablets, he reported the death to the Police Officer. Investigation followed. On the basis of the injuries found on the body of ‘D’, a case was filed against the wife of ‘D’. Since the Casualty Doctor found that it was a medicolegal case as death is due to the tablets, he reported the death to the Police Officer. Investigation followed. On the basis of the injuries found on the body of ‘D’, a case was filed against the wife of ‘D’. A-1, under Sec.324, I.P.C. but at the end of the investigation the Officer concluded that no offence was made out under Sec.302, I.P.C. The case against the wife of ‘D’, A-1, for inflicting injuries on the deceased was filed which ended quietly on her own admission whereby she was released under the Probation of Offenders Act. Enraged by what was perceived as miscarriage of justice, the father of the deceased lodged a private complaint resulting in the conviction of the appellants herein. 28. As rightly submitted by the learned senior counsel, Mr.N.Natarajan, there might have been infirmities in the inquest. There might have been inadequate or improper investigation during the inquest. There may even be falsehood, in the statements given by the accused. But, inquest and investigation were matters that preceded trial and the infirmities and the irregularities in pretrial proceedings can never strengthen a weak prosecution case before the trial court. The statement given under Sec.313 of the Code of Criminal Procedure may be even proved to be false, but unless the falsity was intrinsic to the implicating circumstances the mere fact that the accused is a liar is not a good ground for conviction. The prosecution had examined five witnesses and produced several exhibits. If the case of the prosecution could not be sustained on the basis of the evidence produced before the Court it cannot seek to win on the ground of abdication or dereliction of duty on the part of the investigating officers. This submission of the learned senior counsel is absolutely justified. 29. It is a case of direct evidence up to a point and circumstantial evidence, thereafter. We shall see if each link connects with [he other and leads to the guilt of the accused. The first basic fact that it has to be proved is the motive. Two conflicting theories have been projected. One is that ‘D’ was leading an immoral life with prostitutes in Calcutta. It has resulted in extreme dejection and dissatisfaction on the part of A-1. The first basic fact that it has to be proved is the motive. Two conflicting theories have been projected. One is that ‘D’ was leading an immoral life with prostitutes in Calcutta. It has resulted in extreme dejection and dissatisfaction on the part of A-1. Her complaints to her parents-in-law proved to be of no avail and therefore, she planned to confront ‘D’ when he returned from Calcutta on 15.5.1984. The other theory advanced is A-1 and A-2 were having an illicit affair which was noticed by P.W.1, the father of ‘D’ who was unsettled by that. It was also noticed by P.W.5, who in fact reiterated to ‘D’. ‘D’ is alleged to have stated that since he had blackened the face, of his family by marrying A-1, he cannot now do anything about the immoral conduct of A-1. So we have on the one hand, the case of a wife who is unhappy about her husband’s infidelity or the case of an unfaithful wife. In either way the fact that, there was resentment on the part of A-1 is undeniable. The question is whether this resentment drove her to commit homicide or whether the depression of ‘D’ on account of his wife’s infidelity drove him to commit suicide. 30. The next link is possession of the poison. It was stated on behalf of the defence that the tablets having been bought under a Lot that could have been only purchased in Calcutta, it was not possible for the accused to have possession of the same. But as it was pointed out by the Prosecution the tablets were purchased in 1982, at which point of time both A-1 and ‘D’ had visited Calcutta. If the tablets have been purchased recently when ‘D’ alone visited Calcutta, the possession could be fixed to ‘D’ alone. But, now in view of the fact that it was purchased in 1982 the possession cannot be fixed on ‘D’ alone. A-1 also had the opportunity to be in possession of the poison. Now where was the poison consumed? The learned senior counsel for the defence submitted that the evidence was not clear as to whether the poison was actually consumed ? Therefore, even if there was a remote possibility that ‘D’ could have consumed the tablets in the train, that possibility should be accepted, in giving the benefit of doubt to the accused. The learned senior counsel for the defence submitted that the evidence was not clear as to whether the poison was actually consumed ? Therefore, even if there was a remote possibility that ‘D’ could have consumed the tablets in the train, that possibility should be accepted, in giving the benefit of doubt to the accused. But as per the evidence of P.W.5 and the statement of A-1 and A-2 under Sec.313 of the Code of Criminal Procedure that the bottle was found at the scene of occurrence in the bed room of A-1 and ‘D’. Further, C.W.3, in his evidence stated that "P.W.5 told him that he saw Biswajit in the toilet holding a mug in his hand and crying." On the other hand, in the evidence of P.W.5 nothing was stated about ‘D’ holding the mug in the latrine. In the statement given by the accused under Sec.313 of the Code of Criminal Procedure. A-1 states that she did not know anything after Biswajit left the room to go to the bathroom and according to A-2, P.W.5 saw ‘D’ holding a mug in one hand and a plastic container in the other inside the bathroom and ‘D’ said that he had taken the tablets. So the presence of the bottle containing the Gardenal tablets in the place of occurrence is also established. ‘D’ could not have consumed the 100 tablets, in the train, since it is unlikely that he would carefully pact the empty bottle into his bag after swallowing the poison. Any way it is no one’s case that he appeared drugged or abnormal when he came of the train. Therefore, the only hypothesis that is possible with regard to the existence and consumption of the bottle of tablets is at the scene of occurrence. 31. As regards the injuries on the deceased the case of P.W.5 is that A-1, caused injuries on ‘D’ by burning him with a cigarette butt in the car while returning from Madras to Pondicherry. The Doctor, P.W.4, in his evidence has stated this injury was caused by cigarette like object. While A-1 admitted her guilt in inflicting these burns on the deceased in Calendar Case No.4 of 1985 she denied the same in her statement under Sec.313 of the Code of Criminal Procedure. While it may prove that she is a liar as stated by the prosecution. While A-1 admitted her guilt in inflicting these burns on the deceased in Calendar Case No.4 of 1985 she denied the same in her statement under Sec.313 of the Code of Criminal Procedure. While it may prove that she is a liar as stated by the prosecution. It is not sufficient to prove the prosecution case that she is a murderer. Not we come to the other injuries which according to P.W.4 were caused due to blunt impact or naillike object. P.W.1 in his evidence has deposed as follows: "I met A-1 and asked her how Biswajit could have sustained so many injuries on the body as claimed by her to be self-inflicted. But A-1 told him that Biswajit behaviour is known to me and he caused those injured to himself to show that he is innocent." 32. Doctor P. W.4 states that all the injuries were ante-mortem. A-1 had admitted to have inflicted these injuries in Calendar Case No.4 of 1985. In his statement to C.W.3 during the course of investigation, P.W.4 had stated that the injuries found on the body of ‘D’ were not self-inflicted and this is the reason why he had stated in his post-mortem report, Ex-P22 that the death may be homicidal. Of course, in his evidence P.W.4 states that he does not remember his statement to that effect before the police. But there is the presence of the injuries, and the opinion of the Doctor regarding the object which could have caused such a injury and the admission of guilt by A-1 in Ex-P20 and the presence of antenna wire in the scene of occurrence spoken to by P. W.5, which was unchallenged in cross-examination shows that it is indeed A-1 who, caused those injuries on the deceased. 33. As submitted by the learned Public Prosecutor what happened within those four walls can only be spoken to by A-1. On 16.5.1984, A-1 and A-2, ‘D’ and P.W.5 reached Pondicherry at 1.00 a.m. Immediately, A-1 and ‘D’ went and locked themselves inside the room. Disturbed by the noise heard from the room, P. W.5 opened the door and saw ‘D’ staggering into the lavatory. He is alleged to have been holding a mug in one hand. He had staggered out and fell down. This is about 3.00 a.m. By 3.50 a.m., ‘D’ is dead. Disturbed by the noise heard from the room, P. W.5 opened the door and saw ‘D’ staggering into the lavatory. He is alleged to have been holding a mug in one hand. He had staggered out and fell down. This is about 3.00 a.m. By 3.50 a.m., ‘D’ is dead. So all the events happened during the span of three hours and fifty minutes. According to P. W.5, it was at that point of time that he gave a slip of paper and to his suggestion that a Doctor should be brought A-2 is alleged to have stopped him initially, and then when ‘D’ found some white material, coming out of the mouth, P.W.5 said that he found the phial on the window. At that time A-2 told that it was supposed to be poison, P.W.5 gave him salt-water to make ‘D’ vomit. This statement of P.W.5 that he gave warm salt-water to make ‘D’ vomit is not denied by A-1 or A-2. In fact in their statements under Sec.313 of the Code of Criminal Procedure, A-1 admits that it is only P.W.5 who gave the warm salt-water and A-2 also admits the same. When P.W.5 showed the phial to A-2, immediately A-2 had rushed to the house of Datta and soon after ‘D’ was taken to the JIPMER Hospital where he was pronounced dead. So the time when ‘D’ came out of the bath room and fell dead could not have taken more than thirty minutes because it must be remembered that P.W.5 broke into the room where A-1 and ‘D’ were present at 3 o’clock. 34. Now we look at Ex-D54, the answer to questions put by the Inspector of Police, CID in connection with the post-mortem examination. To question No.8, "In what time does Barbitone generally prove fatal?". The answer is "it varies from few hours to a week". P.W.4, who is a Doctor also had stated that depending upon the quantity of barbiturate consumed ‘D’ would have fallen into coma like stare within four to five hours of departure from Calcutta. In the extract from Modi’s Medical Jurisprudence and Toxicology page 352, it is stated as follows: "The fatal period is not certain. Death may take place after several hours or days." Therefore, both Modi’s Medical Jurisprudence and Toxicology and the opinion of the postmortem Doctor shows that death by barbitone poisoning is not instantaneous. In the extract from Modi’s Medical Jurisprudence and Toxicology page 352, it is stated as follows: "The fatal period is not certain. Death may take place after several hours or days." Therefore, both Modi’s Medical Jurisprudence and Toxicology and the opinion of the postmortem Doctor shows that death by barbitone poisoning is not instantaneous. It takes a few hours. The possibility of ‘D’ consuming the poison in the train has already been ruled out, since he is not likely to have swallowed it, closed the bottle again packed it safely in his bag and brought it to Madras. There was no evidence that he consumed it in the car. So the only possibility is that he should have taken it in the two hours when he and A-1 were a one in the room. Much was made by the learned senior counsel for the defence about the presence of alcohol in the body of ‘D’. According to them, when there was no evidence to show that there was a bottle of alcohol at the scene of occurrence there is a break in the link in the evidence. The statement of P.W.5 in Ex-P9 is that A-1 had the habit of consuming liquor and the same has not been contradicted by the defence in their cross-examination of P.W.4. So the consumption of alcohol in the house of A-1 is not unnatural. Next the evidence of P.W.5, that whitish tablets came out from the mouth of the deceased and administering warm salt-water also shows that ‘D’ could not have consumed the tablets on the train. It could have happened only when he was alone with A-1 since it has already been demonstrated that ‘D’ could not have consumed the tablets in the bathroom, since death by barbitone poisoning is not instantaneous. 35. Learned senior counsel for A-1 had drawn attention to the fact that the small slip of paper on which ‘D’ wrote a few lines was not produced by the prosecution with an intention to burke it so that the crime could be fixed on A-1 and A-2. This argument can cut both ways. According to P.W.5 the two lines that were written in English and he could not understand. It is not the letter written by ‘D’, Ex-D23. A-s stated above this letter contained only two lines. This argument can cut both ways. According to P.W.5 the two lines that were written in English and he could not understand. It is not the letter written by ‘D’, Ex-D23. A-s stated above this letter contained only two lines. ‘D’ could have either written that he was taking his own life or he could have written that A-1 had compelled him to swallow the tablets. In any event it is the case of P.W.5 that the entire house was swept and cleaned by the maid when they returned from the hospital. This could account for not only the absence of the slip of paper but also the absence of the bottle of alcohol. So no importance need be attached to the slip of paper for the purpose of securing the several links of circumstantial evidence. Mrs.Prabha Sridevan, J: Both the appeals arise out of the same judgment of the Second Additional Sessions Judge, Pondicherry in Sessions Case No.34 of 1986. The first accused has filed Criminal Appeal No.502 of 1988 and the accused had filed Criminal Appeal No.509 of 1988, both having been charged with the offence under Sec.302, I.P.C. read with Sec.34, I.P.C. for causing the death of one Biswajit by administering poison on 16.5.1984 and sentenced with imprisonment for life. 2. This case arises out of a private compliant by P.W.1, the father of the deceased (‘D’ in short). On 16.5.1984, the deceased was brought dead to JIPMER Hospital and the Casualty Medical Officer reported the death to the police by FIR, D-47 since it had occurred by swallowing 100 tablets. The final opinion given was that the death may be homicidal on account of other injuries which were definitely not self-inflicted. However, the police investigation concluded that it was a case of suicide. At the instance of P.W.1, the investigation was handedover to an Officer of C.B. C.I.D., C.W.3. He came to the same conclusion. A-1, who was charged with the offence under Sec.324, I.P.C. for causing the injuries on the deceased admitted her guilt and was released under Probation of Offenders Act. The case under Sec.302, I.P.C. came to naught. The grief stricken father filed the private complaint. 3. His case is as follows: The deceased met A-1 in 1976 when he was about seventeen years old. He introduced her to P.W.1 and P.W.2 as his girl-friend. The case under Sec.302, I.P.C. came to naught. The grief stricken father filed the private complaint. 3. His case is as follows: The deceased met A-1 in 1976 when he was about seventeen years old. He introduced her to P.W.1 and P.W.2 as his girl-friend. They felt that he was too young and he has not completed his studies and objected to the association. Subsequently, A-1 married one Aloke Sarkar. But, apparently the deceased kept in touch with A-1 and about six months later he expressed his desire to take care of A-1, since her husband was torturing her. Since P.Ws.1 and 3 felt that the deceased should not interfere with a married woman they advised him to pursue higher studies abroad. The deceased went to U.S.A. Sometime later without his parents knowledge he returned to India and married A-1. He tried to take A-1 to U.S.A. but in vain. Though his parents asked him to continue his studies he discontinued his studies and returned to India in 1981. Thereafter it was decided that A-1 and ‘D’ should live in Pondicherry, since P.W.3’s mother was in Aurobindo Ashram. Both of them went to Pondicherry and started life together in 1982. In September, 1983, the deceased went with A-1 to Calcutta and made a fresh attempt to go to U.S.A. with the help of ‘D’s elder sister. But it failed. Then, P.W.1, who is a very successful orthopaedic surgeon in Calcutta helped ‘D’ to start a shop in Pondicherry for selling Bengal sarees. The place that was selected for locating this shop belonged to P.W.2. The business was doing well. But ‘D’ went to Calcutta three times between January, 1984 and May, 1984 leaving A-1 in Pondicherry. The last occasion on which ‘D’ went to Calcutta was on 1.5.1984 and he returned to Pondicherry on 14.5.1984. Three or four days before that, P.W.1 and P.W.3 got a phone call from A-1. At that time ‘D’ was not at home. A-1 complaint to P.W.3 that ‘D’ was living with prostitutes in Calcutta. Though P.W.3 tried to say that these suspicions were unfounded A-1 threatened that she would cut ‘D’ to pieces. When ‘D’ returned home, P.W.3 reported this to him. He assured P.W.3 that he would sort out things and left Calcutta for Pondicherry on 14.5.1984. A-1 complaint to P.W.3 that ‘D’ was living with prostitutes in Calcutta. Though P.W.3 tried to say that these suspicions were unfounded A-1 threatened that she would cut ‘D’ to pieces. When ‘D’ returned home, P.W.3 reported this to him. He assured P.W.3 that he would sort out things and left Calcutta for Pondicherry on 14.5.1984. Before leaving he sent a telegram to A-2 who was a friend of A-1 and ‘D’, informing him of his arrival on 15th night by Coromandel Express and to tell A-1 not to leave for Calcutta. 4. On 16.5.1984 early morning, P.W.1, received a phone call from his brother-in-law in Cochin informing him that ‘D’ was in a serious condition. So P.W.1, and P.W.3 and the other son and A-1’s father took the evening flight and went to Pondicherry. A car was sent from the Ashram and the person who came from the Ashram had informed that ‘D’ had died. They went to the hospital but as it was late, they could not see him. 5. One Vijaya Kumar who was a Station House Officer, Muthialpet Police Station on receipt of D-47, registered the same as Crime No.103 of 1984 under Sec.174 of the Code of Criminal Procedure. P.W.1 identified the dead body of his son in the presence of the said officer. The inquest was conducted on the dead body of the deceased by the Station House Officer, Muthialpet Police Station in the presence of Panchayatars. The inquest report is dated 16.5.1984. He forwarded the dead body with a requisition for post mortem to P. W.4. On receipt of the requisition, P.W.4, the Associate Professor in Forensic Medicine in JIPMER Hospital performed the autopsy on the dead body from 11.15 a.m., till about 1.00 p.m. on 17.5.1984. The following features were noticed by the Professor on the dead body: External Examination: (1) Copious amount of latery froth, white in colour, mixed with tinge of blood, present around the mouth and nostrils. (2) Scalp hair, in and around anterior fontonella area, were found to be cut short, compared to rest of the hairs and (3) Eyes and mouth were closed. Injuries: (1) Seven burn marks, round in shape, each of 0.5 c.m. in diameter on the lateral aspect of left upper arm, each at a distance varying from 3 to 7 cms. from each other. Injuries: (1) Seven burn marks, round in shape, each of 0.5 c.m. in diameter on the lateral aspect of left upper arm, each at a distance varying from 3 to 7 cms. from each other. The most marked one had caused subcutaneous haematoma of one c.m. diameter in size (including depth). Rest were skin deep only. (2) Left upper eye-lid was swollen and bluish in colour. Conjunctive of both the eyes were congested. (3) Three linear scratches running along the length of upper limb situated in the middle of lateral aspect of left fore-arm. Each was a line’s width, varying in length from 3 to 6 cms. These were parallel to each other. Each was situated at one cm. distance from the closer one. 6. Ex-P22 is the post-mortem certificate given by P.W.4. P.W.4 sent the viscera for chemical examination and Ex-P21 is the Chemical Report. It showed the presence of barbiturate and alcohol. The cause of death according to him is due to Gardenal poison. Thereafter the said officer came to the scene of occurrence and examined A-1 and A-2 and other witnesses. Thereafter the body was handedover to P.W.1 and ‘D’ was cremated on 17.4.1984 in the evening. P.W.1 and 3 returned to Calcutta. Later, P.W.5. a servant of ‘D’ reached Calcutta. He met P.W.1 and told him the events that led to the death of the deceased. 7. According to P.W.5 it was not a case of suicide but the consumption of barbiturate tablet by the deceased was only with the knowledge of A-1 and A-2. He informed P.W.1 that A-1 and A-2 had an illicit relationship and though A-1 objected to this and reproached P.W.1, she ignored it. He reported to ‘D’, but ‘D’ said that since he had married A-1 in spite of family opposition he could not take any action in this regard. P.W.1, was aware of A-1’s relationship with A-2, since he had once seen A-2 in the company of A-1, when ‘D’ was not there offering her gifts and presents. This was not approved by P.W.1. According to P.W.5, the events that led to the death of the deceased started from the evening of 14.5.1984. 8. On 14.5.1984 after closing the shop, P.W.5 went to the house of ‘D’. A-1 told him that they had to go to Madras, the next day. This was not approved by P.W.1. According to P.W.5, the events that led to the death of the deceased started from the evening of 14.5.1984. 8. On 14.5.1984 after closing the shop, P.W.5 went to the house of ‘D’. A-1 told him that they had to go to Madras, the next day. When P.W.5 had asked why they all have to go to Madras, he was told he had to go, because ‘D’ was returning and if ‘D’ did not come A-1 would go to Calcutta since D was spending all his time in the company of prostitute. P.W.5 refused to go saying that he had to look after the shop. But on the next day, A-1 said that P.W.5 had to accompany them to Madras. So P.W.5, A-1, A-2 and one Subir reached Madras at about 5.30 p.m. and went to the Railway Station. Then A-1 told P.W.5 that if ‘D’ comes in the Coromandel Express, it would be alright, otherwise, they would all leave for Calcutta the next morning. The Coromandel Express arrived a little late and ‘D’ was on the train and came out. Just as he came to the gate of the station, A-1 went up to him and began to cry. A-2 and others were also present. When the police intervened, ‘D’ said it was a domestic matter. They returned to the hotel. But, Subhir was not there. Then ‘D’ asked A-2 to engage a taxi to go to Pondicherry. They engaged a taxi and started for Pondicherry. In the taxi in the rear seat on the right hand side ‘D’ sat, A-1 sat in the centre and A-2 on the left. P.W.5 sat in the front with the driver. Sometime later when he heard a cry and he turned back he found A-1 holding the lighted end of the cigarette against the left arm of ‘D’. When P.W.5 asked him about it, she asked him not to look behind, and just sit in the front. They reached Pondicherry released the taxi and entered the house. A-1 and ‘D’ went into the bedroom. A-2 and P.W.5 were walking outside. P.W.5 could hear the cries from inside the room. When he was about to knock on the door A-2 prevented him from doing so, saying that he should not interfere when the husband and wife are inside. They reached Pondicherry released the taxi and entered the house. A-1 and ‘D’ went into the bedroom. A-2 and P.W.5 were walking outside. P.W.5 could hear the cries from inside the room. When he was about to knock on the door A-2 prevented him from doing so, saying that he should not interfere when the husband and wife are inside. Then, he heard a loud cry so he kicked upon the door with two blows and the door opened. When he entered the room ‘D’ was lying on the bed with face downwards. There were pieces of cut hair on the bed along with a hair brush and a wire and A-1 was bearing ‘D’ with a piece of antenna wire. When she tried to stop her, she gave P.W.5 a blow with the wire. P.W.5 found swelling on ‘D’s back. He also found the parts of mustaches and hair had been cropped and pieces of hair were lying on the floor. After sometime ‘D’ got up to go the bathroom. He was suffering and P.W.5 tried to help him, ‘D’ told ‘no’ and afterwards P.W.5 heard the sound of his crying. Since he did not come out after some minutes P.W.5 put his arm on the top of the partition wall between the bathroom and lavatory and found ‘D’ standing and crying. He asked ‘D’ to come out. Then when he found that the door was not bolted but simply closed, P.W.5, opened the door and brought ‘D’ to his bedroom. He found A-1 and A-2 talking together. He made ‘D’ lie on the bed. ‘D’ asked for a piece of paper and wrote down two lines in English, which P.W.5 could not understand and also wrote the date on top 16.5.1984. When P.W.5 asked ‘D’ whether he could fetch a doctor, ‘D’ said ‘no’. But, still P.W.5 went to fetch the doctor. A-2 came from behind and said that there was no need to call the doctor. Then when P.W.5 returned he found A-2 and A-1 in the room where ‘D’ was lying in a unconscious state and something white, like pieces of white tablets was coming out of his mouth. P.W.5 looked around and found there was a phial. When he showed it to A-2. A-2 said that it was a poison. P.W.5 gave ‘D’ some salt water to make him vomit. P.W.5 looked around and found there was a phial. When he showed it to A-2. A-2 said that it was a poison. P.W.5 gave ‘D’ some salt water to make him vomit. Though he vomited a small quantity, P.W.5 found small pieces, broken and whole pieces of tablet. So, P.W.5 told A-2, “we must call doctor”. A-2 went with him to the house of the doctor, Datta. A-2 went with the phial to the house of the doctor and P.W.5 went in search of A-2’s father and mother. Doctor said that it was a poison and asked A-2 to take ‘D’ to JIPMER Hospital, A-2 came in a car. P.W.5 and A-1 and A-2 went to the Hospital together. D was brought down and made to lie down in a place there. The Senior Doctor, who came pronounced ‘D’ dead. The Casualty Medical Officer, at JIPMER Hospital lodged the FIR, D47, on the same day namely 16.5.1984 at 3.30 hrs. reporting the death of ‘D’ alleging that ‘D’ had swallowed 100 tablets. Then the doctor sent the dead body to the mortuary. P.W.5, A-1 and A-2 returned home at about 7 or 7.30 a.m. When they returned home A-1 and A-2 asked the maid servant to clean the room. 9. When A-1’s father arrived. P.W.5 began to explain everything and he was told that he should not tell the police what actually happened. On 20th, A-1’s elder brother arrived and P.W.5 was tutored as to what he should say and what he should not say. A-1’s family kept him under lock and key and A-1’s brother threatened that he would beat him when he had tried to escape. He managed to run away and went to the police station. Then on the same day he reached Madras and boarded the Howrah Madras Mail and reached Calcutta. 10. In the mean time, on 21.5.1984, the provisional postmortem certificate was sent by P.W.4 wherein it was stated that the cause of death may be homicidal, because of the injuries which were not self-inflicted. C.W.1 took charge of the case, thereafter. The original charge sheet for the offence under Sec.174 of the Code of Criminal Procedure was altered into Sec.302, I.P.C. C.W.1 proceeded with the investigation. P.W.1 sent a letter on 26.5.1984 to the Senior Superintendent of Police wondering if there was trace of foul play. This letter is Ex-P10. 11. C.W.1 took charge of the case, thereafter. The original charge sheet for the offence under Sec.174 of the Code of Criminal Procedure was altered into Sec.302, I.P.C. C.W.1 proceeded with the investigation. P.W.1 sent a letter on 26.5.1984 to the Senior Superintendent of Police wondering if there was trace of foul play. This letter is Ex-P10. 11. P.W.1 again wrote a letter Ex-P12 to C.W.1 bringing to his knowledge the information that he had received. He raised a genuine doubt as to whether the death was a suicidal or homicidal. Therefore, at P.W.1’s request the investigation was transferred to CBCID and C.W.3, the Inspector of Police, CID Branch, Pondicherry continued further investigation. 12. On 30.5.1984, P.W.5 who was in P.W.1’s house in Calcutta, was threatened by another brother of A-1 and P.W.5 fear for his safety. Then P.W.1 entrusted P.W.5 to the care of one Sarogi who had an Investigation Security Service. P.W.5 told him all that happened at Pondicherry. With Sarogi’s help he swore to the affidavit marked as Ex-P9 (Ex-P23 on 30.5.1989) and the same was forwarded to C.W.3. 13. C.W.3 who had taken up the investigation took the bottle which contained the Gardenal tablets since the lot number on it showed that it was purchased at Calcutta. C.W.3 and C.W.1 went to Calcutta for further investigation. They examined thirty three witnesses including A-1. After completing the investigation C.W.3 concluded that from the materials available neither an offence under Sec.302, I.P.C. nor under Sec.306, I.P.C. was made. But he was of the opinion that A-1 should be prosecuted for the offence under Sec.324, I.P.C. for causing injuries on ‘D’ and under Sec.309, I.P.C. for attempting to commit suicide. Accordingly, A-1 was charge-sheeted and to the anxious enquiries made by P.W.1, the Superintendent of Police, C.I.D. sent Ex-P15 informing him that A-1 was arrested and charge-sheeted for the offence under Secs.324 and 309, I.P.C. and the trial was pending before the then Judicial Magistrate, Pondicherry. On 22.3.1985, final order was pronounced in the aforesaid case Calendar Case No.4 of 1985 upon A-1 pleading guilty to the charges and the learned Chief Judicial Magistrate released her under Sec.4(1) of the Probation of Offenders Act on executing a bond for Rs.500. The case ought to have ended there. On 22.3.1985, final order was pronounced in the aforesaid case Calendar Case No.4 of 1985 upon A-1 pleading guilty to the charges and the learned Chief Judicial Magistrate released her under Sec.4(1) of the Probation of Offenders Act on executing a bond for Rs.500. The case ought to have ended there. But when P.W.1 received information that his efforts to find out whether the death of his son was suicidal or homicidal, would not proceed further, he filed the complaint on 21.6.1985 seeking necessary action. 14. The complaint was filed before the Chief Judicial Magistrate, Pondicherry on 21.6.1985 and thereafter it was committed by the learned Special Judicial Magistrate to the Sessions Judge. The Second Additional Sessions Judge at Pondicherry tried the Sessions Case No.34 of 1986. Five witnesses were examined on behalf of the prosecution, four witnesses were examined as Court-witnesses, twenty exhibits were marked by the prosecution, Ex-P1 to P24 through P.W.1 and Exs-D1 to D57 were marked by the defence. Ex-C1 is marked through Court and one material object was also produced. The learned Sessions Judge on considering the evidence available before him, found A-1 and A-2 guilty under Sec.302, I.P.C. read with Sec.34, I.P.C. and sentenced them to undergo life imprisonment and imposed fine of Rs.100 each in default thereof, to undergo rigorous imprisonment for one month. Against this the present appeal has filed. 15. Mr.N.Natarajan learned Senior Counsel appearing for A-2 pointed out that P.W.5 the only person who spoke about what transpired on the fateful day was not at all a reliable witness since he was willing to change his stand depending on the situation. 16. The accused gave their statements under Sec.313 of the Code of Criminal Procedure denying everything and giving a version of what actually happened. The learned senior counsel pointed out that P.W.5 ought to have come our. with the truth. 16. The accused gave their statements under Sec.313 of the Code of Criminal Procedure denying everything and giving a version of what actually happened. The learned senior counsel pointed out that P.W.5 ought to have come our. with the truth. If according to him Ex-P9 reveals what actually happened even when he was in Pondicherry, there is no reason why P.W.5 should go all the way to Calcutta to inform P.W.1 as to what happened and he referred to the decision reported in Vemireddy Satyanarayan Reddy and others v. State of Hyderabad, A.I.R. 1956 S.C. 379 for the purpose that when an eyewitness does not give information of a crime to anyone else, his evidence should be scanned with much caution and the court must be fully satisfied that he is the witness of truth. 17. P.W.1 was in Pondicherry on 16th of June itself. Immediately, P.W.5 should have told him. The story set up by P.W.5 that A-1’s father and brother threatened him not to tell the truth cannot be believed because even before they came on the scene. C.W.1 had recorded the statement of P.W.5. Therefore the threat itself is a futile one. The learned senior counsel pointed out that when P.W.5, who had been brought to Pondicherry by ‘D’ had no place to stay after ‘D’s death returned to Calcutta, he must have been tutored by P.W.1 to fabricate the story of how A-1 and A-2 caused the death of ‘D’. The learned senior counsel pointed out that there was no independent evidence to support the case of the illicit affair between A-1 and A-2 except P.W.5’s statement that he used to find fault with A-1’s behaviour. The learned senior counsel said it was very unlikely that a servant would be emboldened to attempt to correct his employer’s wife. So this testimony of his reprimanding A-1 for her relationship cannot be believed. He also submitted that in fact, the allegation regarding the affair between A-1 and A-2 was a figment of imagination of P.W.5, since, the documents show that ‘D’ himself trusted A-2. So this testimony of his reprimanding A-1 for her relationship cannot be believed. He also submitted that in fact, the allegation regarding the affair between A-1 and A-2 was a figment of imagination of P.W.5, since, the documents show that ‘D’ himself trusted A-2. In fact, according to A-1 in the statement given by her under Sec.313 of the Code of Criminal Procedure that every time ‘D’ left her behind in Pondicherry he would ask A-2 to take care of her and this is supported by the telegram Ex-D52 in which ‘D’ had informed A-2 to tell A-1 that he was definitely proceeding to Pondicherry. If as P.W.5 stated ‘D’ knew all about the affair between A-1 and A-2 and he was keeping quite because he had blackened his name before the family members. ‘D’ had no reason to send the telegram to A-2. This would belie that he nurtured suspicion about A-1 and A-2. He referred to the evidence of C.W.1 and C.W.3 to demonstrate that their account of what P.W.5 stated before them differ from the evidence given by P.W.5 before the court and hence he submitted that P.W.5’s evidence was unreliable. He submitted that ‘D’s death being suicidal cannot be ruled out. He also referred to Ex-P12, the letter written by P.W.1 wherein it was stated as follows: “after more than an hour of mental torture he went to the bathroom and took some medicine to end his own life”, and again, “When Biswajit was really ill they gave him Salt water to induce vomitting which he did but inadequately”, again, “Biswajit probably did not want to commit suicide, only physical and mental torture made him to take that unfortunate decision.” 18. So, the learned senior counsel submitted that even according to the father of the deceased namely P.W.1, ‘D’ took his own life and when it was his specific case that, they gave him salt water which can only mean A-1, A-2 and P.W.5 and not P.W.5 alone induced vomitting and also it would demonstrate that both the accused actively tried to take steps to counteract the effects of the poison. 19. Learned senior counsel appearing for A-2 would also submit that it was not proper for the prosecution to have cross-examined C.W.1 and C.W.3, since the presumption under the Evidence Act is that all official and judicial acts are regularly done. 19. Learned senior counsel appearing for A-2 would also submit that it was not proper for the prosecution to have cross-examined C.W.1 and C.W.3, since the presumption under the Evidence Act is that all official and judicial acts are regularly done. He also submitted that there was absolutely no corroboration for the evidence of P.W.5, and if P.W.5’s statement stands alone waiting to be corroborated in the absence of anything to support and demonstrate that P. W.5’s version could be true, it will have to fall. In any case where murder is involved, the learned senior counsel submitted that intention should be proved the overt act should be proved by either direct or circumstantial evidence. Here even assuming without granting that there may be intention on the part of A-1 there is neither direct or circumstantial evidence as 1o she administered poison and with regard to A-2 there is absolutely nothing to show his complicity or participation in the crime. He also drew attention to the statement made by A-2 under Sec.313 of the Code of Criminal Procedure which according to him gave an plausible account about what had happened. If from the facts two conclusions could be drawn one of which is favourable to the accused it is incumbent upon the Court to draw that conclusion which is favourable to the accused. He referred to the judgment reported in Sharad Birdhichand Sarda v. State of Maharashtra, A.I.R. 1984 S.C. 1622, where the Supreme Court had laid down the principles as to the mode and the manner of the proof of cases of murder by administration of poison, which is extracted below and if this is applied to the case, the prosecution case should fail. “We now come to the mode and manner of proof of cases of murder by administration of poison. In Ramgopal’s case, A.I.R. 1972 S.C. 656, this Court held thus (at p.659): Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question? (secondly), had the accused the poison in question in his possession? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased? In Ramgopal’s case, A.I.R. 1972 S.C. 656, this Court held thus (at p.659): Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question? (secondly), had the accused the poison in question 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.” “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, 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 P.W.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 extraordinary 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.” 20. 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.” 20. Mr.Sriramulu, learned senior counsel appearing for A-1 submitted that in addition to what was argued by the learned senior counsel appearing for A-2 he would submit the following: He submitted that in any case which is depending on circumstantial evidence each and every link should be completed, P.W.5, according to the prosecution is the only witness. P.W.5 is one who prepared to “shape” his evidence to suit the need. The learned senior counsel also submitted that when P.W.5 has categorically stated that a slip of paper was given by him to ‘D’, on which the date 16.5.1984 was written by ‘D’ along with two lines in English with the direction that if something happened to him nothing should be done in the absence of his father and that the slip should be handed over to the father. The said slip was not at all produced in evidence. According to the learned senior counsel that was burked by the prosecution in order to fix the crime on the accused. The learned senior counsel for A-1 would also reiterate that Ex-D2 showed the suicidal tendencies of ‘D’. He also referred to the evidence of C.W.3 to indicate that the reason for fixing the crime on A-1 and A-2 was because P.W.1 was rich man and he did not want A-1 to inherit the estate of ‘D’, and what better way to deny her legal rights than to fix the responsibility of the death of her husband on her. For all these reasons, the learned senior counsel for both the accused would pray for the acquittal of the two accused. 21. Mr.R.Natarajan, Additional Public Prosecutor for Pondicherry appearing for the prosecution submitted that in this case motive was clearly established and it was the illicit affair between A-1 and A-2. It is the evidence of both P.W.1 and P. W.5 that these two have connection and the reference to the illicit connection referred to in the chief examination by P.W.1 and P.W.5 were not challenged in cross. He referred to the various loop holes in the investigation by C.W.I and C.W.3. It is the evidence of both P.W.1 and P. W.5 that these two have connection and the reference to the illicit connection referred to in the chief examination by P.W.1 and P.W.5 were not challenged in cross. He referred to the various loop holes in the investigation by C.W.I and C.W.3. According to the learned Public Prosecutor the inquest was done in front of strangers who could not have known how the deceased died and the Station Officer had not even attempted to get a statement from P.W.5 who was present from the beginning at the spot. C.W.1 had accompanied C.W.3 to Calcutta to proceed with the investigation especially when the investigation had been transferred on the dissatisfaction of the investigation by P.W.1 to CBCID. Therefore, C.W.3, had investigated the case by burkeing Ex-P9 which is the affidavit sent by P.W.5 from Calcutta, where all factors revealed and hence something was indeed wrong in the manner in which the investigation was being proceeded with. When the learned Public Prosecutor said that when the persons in authority failed to protect the citizen’s rights when such offences are committed there was nothing surprising in the case being taken up at the instance of a private complaint. 22. As regards the argument that ‘D’ showed suicidal tendencies the learned Additional Public Prosecutor would submit that the document relied upon by the defence was proved to have been written on a foreign paper and there was nothing to show that it was contemporary document and no importance could be attached to it. 23. As regards the arguments in defence that since the bottle was proved to have been purchased at Calcutta there was no connection between the poison and the accused the learned Public Prosecutor submitted that it was the old stock of the year 1982 and there was proof to show that A-1 had visited Calcutta at that time and so A-1 might have purchased the poison is really relevant. According to the learned Public Prosecutor all the links were complete and the circumstantial evidence pointed directly to the accused A-1 and A-2 had the motive viz. the illicit affair and P.W.5’s evidence is cogent as regards the events that happened from the time ‘D’ got out of the Coromandel Express at Madras and till ‘D’ breathed his last at Pondicherry. the illicit affair and P.W.5’s evidence is cogent as regards the events that happened from the time ‘D’ got out of the Coromandel Express at Madras and till ‘D’ breathed his last at Pondicherry. A person who according to P.W.5 had got down from the train smiling had seen reduced to a person who staggered on the way to the bathroom showing thereby the heavy dose of poison had been administered to him by the accused followed by the ill-treatment of injuring the ‘D’ or with lighted cigarette by A-1. The statements under Sec.313 of the Code of Criminal Procedure are contrary to A-2’s admission of guilt as per Ex-P20 before the Chief Judicial Magistrate in Calendar Case No.4 of 1985 for the offence under Secs.324 and 309, I.P.C. and this would show that the statements under Sec.313 of the Code of Criminal Procedure are false. This is one more link in the case of circumstantial evidence. The learned Public Prosecutor submitted that A-2 was only a layman and the moment P.W.5 showed the bottle to him before rushing of to Doctor Datta, A-2 said that it was poison. This knowledge could only be attributed to the fact that he was guilty. As far as the delay in reiterating the truth regarding what happened the learned Public Prosecutor said that there was explanation in P.W.5’s evidence as to how the delay had happened. As soon as A-1’s father and brother came they threatened him and he actually escaped to Calcutta, and since he was a servant of ‘D’ it was natural hat he should have reported to ‘D’s father. The learned Public Prosecutor referred to certain passages in Modi’s Medical Jurisprudence & Toxicology in page Nos.356 and 357 to show that the symptoms of such poisoning was present in this case also. The post-mortem report also showed that the wounds were not self-inflicted. According to P.W.5 there were wires lying on the floor which might have caused those wounds on ‘D’. Therefore, the motive was there. The existence of the bottle of tablets on the scene of occurrence had been proved and there was also evidence to demonstrate that A-1 could have used force or physical violence to administer the poison to ‘D’. According to P.W.5 there were wires lying on the floor which might have caused those wounds on ‘D’. Therefore, the motive was there. The existence of the bottle of tablets on the scene of occurrence had been proved and there was also evidence to demonstrate that A-1 could have used force or physical violence to administer the poison to ‘D’. What happened inside the four walls could only be proved by A-1 and since she did not come out with the truth the presumption would be against her. He referred to the following decisions: Vadivelu Thevar v. The State of Madras, 1957 S.C.R. 981, for the preposition that conviction could be justifiable on the basis of the testimony of the single witness, and in M.G.Agarwal v. State of Maharashtra, 1962 S.C.R. 405, wherein the Supreme Court has dealt with the manner in which the evidence has to be appreciated in cases where the prosecution rests on circumstantial evidence. Swapan Patra and others v. State of West Bengal, (1999)9 S.C.C. 242 was relied upon the preposition if the falsity of defence plea could be used as an additional link in the chain of circumstances. State of Tamil Nadu v. Rajendran, (1999)8 S.C.C. 679 was relied on the proposition that the opportunity to offer an explanation or offering of the false explanation to the accused in response to the incriminating circumstance was an additional link in the chain of circumstance to make the conviction justifiable. Bhupinder Singh v. State of Punjab, A.I.R. 1988 S.C. 1011 was relied upon to support the prosecution case that the manner of proving murder by poisoning is the same as in any other case. This is what the Supreme Court had to say, “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. 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. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murder. 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. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murder. Murder by poisoning is run like any other murder.” In that case also the post-mortem report gave descriptions of injuries found on the body. The Supreme Court therefore, held that these injuries defied all doubts about the theory of suicide. The learned Public Prosecutor relied on this to support his case that the accused had been rightly convicted. He also relied on the decision reported in Joseph, S/o.Kooveli Poulo v. State of Kerala, (2000)3 C.T.C. 305, for the proposition that. “Courts have from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answer for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed.” 24. Learned Public Prosecutor submitted that in any case it was not necessary for the prosecution to meet each and every hypothesis put by the accused, if the cumulative effects of the case is established and is consistent only with the hypothesis of the guilt of the accused. For this he relied upon State of U.P. v. Ashok Kumar Srivastava, A.I.R. 1992 S.C. 840 to meet every suggestion. 25. In reply, the learned senior counsel for A-2 said that it was the bounden duty of the prosecution to discharge the burden of proof. The investigation is a pre-trial area where the evidence is being collected to find out the culprit. Inquest is to ascertain the cause of death. Demolishing the investigation by stating that the panchayatars in the inquest are unknown persons or by stating that the affidavit Ex-P9 was kept in the case diary and not forwarded to the court will not help the prosecution. He also relied on E.D.Smith v. Emperor, A.I.R. 1980 All. Inquest is to ascertain the cause of death. Demolishing the investigation by stating that the panchayatars in the inquest are unknown persons or by stating that the affidavit Ex-P9 was kept in the case diary and not forwarded to the court will not help the prosecution. He also relied on E.D.Smith v. Emperor, A.I.R. 1980 All. 111, wherein the Division Bench of this Court has held, “No doubt an accused person is always entitled to hold his tongue but, where the only alternative theory to his guilt is a remote possibility which if correct, he is in a position to explain, the absence of any explanation must be considered in determining whether the possibility should be disregarded or taken into account.” The provisions of Secs.106 and 114 of the Evidence Act are not without bearing on this point. 26. He further relied upon the decision reiterated in Shambhu Nath Mehra v. The State of Ajmer, A.I.R. 1956 S.C. 404, with regard to the effect of Sec.106, Evidence Act. It is stated therein that: “Sec. 106 is certainly not intended to relieve it of the duty on the prosecution to discharge the burden of proof. On the contrary it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are”especially“within the knowledge of the accused and which he could prove without difficulty or inconvenience...... If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case, the burden lies on the accused to prove that he did not commit the murder. If the common object of A-1 and A-2 were to commit the offence under Sec.302, I.P.C. they would not have gone to Madras to bring back ‘D’ taking P.W.5, along with them. The learned senior counsel submitted that this itself showed the innocence of the accused.” 27. We have heard the arguments advanced by the three counsel. This is a case where ‘D’ was brought dead to the Hospital. Since the Casualty Doctor found that it was a medicolegal case as death is due to the tablets, he reported the death to the Police Officer. Investigation followed. On the basis of the injuries found on the body of ‘D’, a case was filed against the wife of ‘D’. Since the Casualty Doctor found that it was a medicolegal case as death is due to the tablets, he reported the death to the Police Officer. Investigation followed. On the basis of the injuries found on the body of ‘D’, a case was filed against the wife of ‘D’. A-1, under Sec.324, I.P.C. but at the end of the investigation the Officer concluded that no offence was made out under Sec.302, I.P.C. The case against the wife of ‘D’, A-1, for inflicting injuries on the deceased was filed which ended quietly on her own admission whereby she was released under the Probation of Offenders Act. Enraged by what was perceived as miscarriage of justice, the father of the deceased lodged a private complaint resulting in the conviction of the appellants herein. 28. As rightly submitted by the learned senior counsel, Mr.N.Natarajan, there might have been infirmities in the inquest. There might have been inadequate or improper investigation during the inquest. There may even be falsehood, in the statements given by the accused. But, inquest and investigation were matters that preceded trial and the infirmities and the irregularities in pretrial proceedings can never strengthen a weak prosecution case before the trial court. The statement given under Sec.313 of the Code of Criminal Procedure may be even proved to be false, but unless the falsity was intrinsic to the implicating circumstances the mere fact that the accused is a liar is not a good ground for conviction. The prosecution had examined five witnesses and produced several exhibits. If the case of the prosecution could not be sustained on the basis of the evidence produced before the Court it cannot seek to win on the ground of abdication or dereliction of duty on the part of the investigating officers. This submission of the learned senior counsel is absolutely justified. 29. It is a case of direct evidence up to a point and circumstantial evidence, thereafter. We shall see if each link connects with [he other and leads to the guilt of the accused. The first basic fact that it has to be proved is the motive. Two conflicting theories have been projected. One is that ‘D’ was leading an immoral life with prostitutes in Calcutta. It has resulted in extreme dejection and dissatisfaction on the part of A-1. The first basic fact that it has to be proved is the motive. Two conflicting theories have been projected. One is that ‘D’ was leading an immoral life with prostitutes in Calcutta. It has resulted in extreme dejection and dissatisfaction on the part of A-1. Her complaints to her parents-in-law proved to be of no avail and therefore, she planned to confront ‘D’ when he returned from Calcutta on 15.5.1984. The other theory advanced is A-1 and A-2 were having an illicit affair which was noticed by P.W.1, the father of ‘D’ who was unsettled by that. It was also noticed by P.W.5, who in fact reiterated to ‘D’. ‘D’ is alleged to have stated that since he had blackened the face, of his family by marrying A-1, he cannot now do anything about the immoral conduct of A-1. So we have on the one hand, the case of a wife who is unhappy about her husband’s infidelity or the case of an unfaithful wife. In either way the fact that, there was resentment on the part of A-1 is undeniable. The question is whether this resentment drove her to commit homicide or whether the depression of ‘D’ on account of his wife’s infidelity drove him to commit suicide. 30. The next link is possession of the poison. It was stated on behalf of the defence that the tablets having been bought under a Lot that could have been only purchased in Calcutta, it was not possible for the accused to have possession of the same. But as it was pointed out by the Prosecution the tablets were purchased in 1982, at which point of time both A-1 and ‘D’ had visited Calcutta. If the tablets have been purchased recently when ‘D’ alone visited Calcutta, the possession could be fixed to ‘D’ alone. But, now in view of the fact that it was purchased in 1982 the possession cannot be fixed on ‘D’ alone. A-1 also had the opportunity to be in possession of the poison. Now where was the poison consumed? The learned senior counsel for the defence submitted that the evidence was not clear as to whether the poison was actually consumed ? Therefore, even if there was a remote possibility that ‘D’ could have consumed the tablets in the train, that possibility should be accepted, in giving the benefit of doubt to the accused. The learned senior counsel for the defence submitted that the evidence was not clear as to whether the poison was actually consumed ? Therefore, even if there was a remote possibility that ‘D’ could have consumed the tablets in the train, that possibility should be accepted, in giving the benefit of doubt to the accused. But as per the evidence of P.W.5 and the statement of A-1 and A-2 under Sec.313 of the Code of Criminal Procedure that the bottle was found at the scene of occurrence in the bed room of A-1 and ‘D’. Further, C.W.3, in his evidence stated that "P.W.5 told him that he saw Biswajit in the toilet holding a mug in his hand and crying." On the other hand, in the evidence of P.W.5 nothing was stated about ‘D’ holding the mug in the latrine. In the statement given by the accused under Sec.313 of the Code of Criminal Procedure. A-1 states that she did not know anything after Biswajit left the room to go to the bathroom and according to A-2, P.W.5 saw ‘D’ holding a mug in one hand and a plastic container in the other inside the bathroom and ‘D’ said that he had taken the tablets. So the presence of the bottle containing the Gardenal tablets in the place of occurrence is also established. ‘D’ could not have consumed the 100 tablets, in the train, since it is unlikely that he would carefully pact the empty bottle into his bag after swallowing the poison. Any way it is no one’s case that he appeared drugged or abnormal when he came of the train. Therefore, the only hypothesis that is possible with regard to the existence and consumption of the bottle of tablets is at the scene of occurrence. 31. As regards the injuries on the deceased the case of P.W.5 is that A-1, caused injuries on ‘D’ by burning him with a cigarette butt in the car while returning from Madras to Pondicherry. The Doctor, P.W.4, in his evidence has stated this injury was caused by cigarette like object. While A-1 admitted her guilt in inflicting these burns on the deceased in Calendar Case No.4 of 1985 she denied the same in her statement under Sec.313 of the Code of Criminal Procedure. While it may prove that she is a liar as stated by the prosecution. While A-1 admitted her guilt in inflicting these burns on the deceased in Calendar Case No.4 of 1985 she denied the same in her statement under Sec.313 of the Code of Criminal Procedure. While it may prove that she is a liar as stated by the prosecution. It is not sufficient to prove the prosecution case that she is a murderer. Not we come to the other injuries which according to P.W.4 were caused due to blunt impact or naillike object. P.W.1 in his evidence has deposed as follows: "I met A-1 and asked her how Biswajit could have sustained so many injuries on the body as claimed by her to be self-inflicted. But A-1 told him that Biswajit behaviour is known to me and he caused those injured to himself to show that he is innocent." 32. Doctor P. W.4 states that all the injuries were ante-mortem. A-1 had admitted to have inflicted these injuries in Calendar Case No.4 of 1985. In his statement to C.W.3 during the course of investigation, P.W.4 had stated that the injuries found on the body of ‘D’ were not self-inflicted and this is the reason why he had stated in his post-mortem report, Ex-P22 that the death may be homicidal. Of course, in his evidence P.W.4 states that he does not remember his statement to that effect before the police. But there is the presence of the injuries, and the opinion of the Doctor regarding the object which could have caused such a injury and the admission of guilt by A-1 in Ex-P20 and the presence of antenna wire in the scene of occurrence spoken to by P. W.5, which was unchallenged in cross-examination shows that it is indeed A-1 who, caused those injuries on the deceased. 33. As submitted by the learned Public Prosecutor what happened within those four walls can only be spoken to by A-1. On 16.5.1984, A-1 and A-2, ‘D’ and P.W.5 reached Pondicherry at 1.00 a.m. Immediately, A-1 and ‘D’ went and locked themselves inside the room. Disturbed by the noise heard from the room, P. W.5 opened the door and saw ‘D’ staggering into the lavatory. He is alleged to have been holding a mug in one hand. He had staggered out and fell down. This is about 3.00 a.m. By 3.50 a.m., ‘D’ is dead. Disturbed by the noise heard from the room, P. W.5 opened the door and saw ‘D’ staggering into the lavatory. He is alleged to have been holding a mug in one hand. He had staggered out and fell down. This is about 3.00 a.m. By 3.50 a.m., ‘D’ is dead. So all the events happened during the span of three hours and fifty minutes. According to P. W.5, it was at that point of time that he gave a slip of paper and to his suggestion that a Doctor should be brought A-2 is alleged to have stopped him initially, and then when ‘D’ found some white material, coming out of the mouth, P.W.5 said that he found the phial on the window. At that time A-2 told that it was supposed to be poison, P.W.5 gave him salt-water to make ‘D’ vomit. This statement of P.W.5 that he gave warm salt-water to make ‘D’ vomit is not denied by A-1 or A-2. In fact in their statements under Sec.313 of the Code of Criminal Procedure, A-1 admits that it is only P.W.5 who gave the warm salt-water and A-2 also admits the same. When P.W.5 showed the phial to A-2, immediately A-2 had rushed to the house of Datta and soon after ‘D’ was taken to the JIPMER Hospital where he was pronounced dead. So the time when ‘D’ came out of the bath room and fell dead could not have taken more than thirty minutes because it must be remembered that P.W.5 broke into the room where A-1 and ‘D’ were present at 3 o’clock. 34. Now we look at Ex-D54, the answer to questions put by the Inspector of Police, CID in connection with the post-mortem examination. To question No.8, "In what time does Barbitone generally prove fatal?". The answer is "it varies from few hours to a week". P.W.4, who is a Doctor also had stated that depending upon the quantity of barbiturate consumed ‘D’ would have fallen into coma like stare within four to five hours of departure from Calcutta. In the extract from Modi’s Medical Jurisprudence and Toxicology page 352, it is stated as follows: "The fatal period is not certain. Death may take place after several hours or days." Therefore, both Modi’s Medical Jurisprudence and Toxicology and the opinion of the postmortem Doctor shows that death by barbitone poisoning is not instantaneous. In the extract from Modi’s Medical Jurisprudence and Toxicology page 352, it is stated as follows: "The fatal period is not certain. Death may take place after several hours or days." Therefore, both Modi’s Medical Jurisprudence and Toxicology and the opinion of the postmortem Doctor shows that death by barbitone poisoning is not instantaneous. It takes a few hours. The possibility of ‘D’ consuming the poison in the train has already been ruled out, since he is not likely to have swallowed it, closed the bottle again packed it safely in his bag and brought it to Madras. There was no evidence that he consumed it in the car. So the only possibility is that he should have taken it in the two hours when he and A-1 were a one in the room. Much was made by the learned senior counsel for the defence about the presence of alcohol in the body of ‘D’. According to them, when there was no evidence to show that there was a bottle of alcohol at the scene of occurrence there is a break in the link in the evidence. The statement of P.W.5 in Ex-P9 is that A-1 had the habit of consuming liquor and the same has not been contradicted by the defence in their cross-examination of P.W.4. So the consumption of alcohol in the house of A-1 is not unnatural. Next the evidence of P.W.5, that whitish tablets came out from the mouth of the deceased and administering warm salt-water also shows that ‘D’ could not have consumed the tablets on the train. It could have happened only when he was alone with A-1 since it has already been demonstrated that ‘D’ could not have consumed the tablets in the bathroom, since death by barbitone poisoning is not instantaneous. 35. Learned senior counsel for A-1 had drawn attention to the fact that the small slip of paper on which ‘D’ wrote a few lines was not produced by the prosecution with an intention to burke it so that the crime could be fixed on A-1 and A-2. This argument can cut both ways. According to P.W.5 the two lines that were written in English and he could not understand. It is not the letter written by ‘D’, Ex-D23. A-s stated above this letter contained only two lines. This argument can cut both ways. According to P.W.5 the two lines that were written in English and he could not understand. It is not the letter written by ‘D’, Ex-D23. A-s stated above this letter contained only two lines. ‘D’ could have either written that he was taking his own life or he could have written that A-1 had compelled him to swallow the tablets. In any event it is the case of P.W.5 that the entire house was swept and cleaned by the maid when they returned from the hospital. This could account for not only the absence of the slip of paper but also the absence of the bottle of alcohol. So no importance need be attached to the slip of paper for the purpose of securing the several links of circumstantial evidence.