JUDGMENT 1. - These two criminal appeals, one by appellant Dhanna Lal and another by appellant Ram Sharan arise out of the judgment and order dated 23.11.2000 passed by the learned Additional Sessions Judge Jhalawar, thereby convicting the appellants for offence under Section 120-B and 304 Part-I IPC and sentencing them to undergo rigorous imprisonment for 10 years with a fine of Rs.1000/-, in default thereof, to further undergo simple imprisonment for three months, on both the counts. The sentences were ordered to run concurrently. 2. On 23.9.98 PW4 Sanjay Singh submitted a written report, Ex.D2 at Police Station, Kotwali, Jhalawar to the effect that on the information of Badri Lal Nagar, he and his brother Narendra Singh reached at the place of incident and found his brother Pushpendra Singh (since deceased) in a indispose condition. On being asked, his brother Pushpendra could inform with difficulty only to the extent that he had consumed cough syrup, due to which he was not feeling well. Pushpendra was brought to the hospital where he breathed his last and passed away. 3. Again on 24.9.98 at 12.15 PM, another cousin Dushyant Singh lodged a written report, Ex.P3 at Police Station Khanpur alleging therein on 22.9.98 at about 4.00 PM his brother Pushpendra Singh had gone to Temple Annpurna Mataji situated in Khera Heergarh to participate in Navrata Programme which was continuing at the temple. Appellant Ram Sharan Sharma Compounder, Chetan Prakah Sharma, Badri Lal Nagar, Babu Goswami, Nanu Ram Dhakar, Shiv Prasad Nagar, Badri Lal Salawatiya Deep Chand etc. were also present there. At that time, appellant Dhanna Lal also came there and after a short while he took out a medicine bottle and gave it to appellant Ram Saran Compounder and said that it was of no help to him. He then kept it with him. The persons present there asked as to for what purpose the medicine meant for. Thereupon, the Compounder told that it was a cough syrup. When Pushpendra Singh told that he was suffering from cough for last few days, the Compounder asked him to consume. Thereupon Pushpendra consumed 1/4th quantity of the medicine. After about half an hour the deceased felt dizziness. The deceased then asked Chetan Prakash and Badri Lal to take him to the village and also told that the appellants under the pretext of medicine administered him poison. Thereupon Pushpendra consumed 1/4th quantity of the medicine. After about half an hour the deceased felt dizziness. The deceased then asked Chetan Prakash and Badri Lal to take him to the village and also told that the appellants under the pretext of medicine administered him poison. Both of them brought the deceased to village and informed his relatives, who in turn brought the deceased to Jhalawar Hospital, where he died. As stated above, Sanjay Singh also lodged the report. In the course of inquiry under Section 174 Cr.RC. from the above named persons it came to the light in the morning of 24.9.98 that the appellants hatched conspiracy and administered poison to the deceased, on the pretext of medicine. 4. On the basis of report, Ex.P3, police registered a case for offence under Sections 304 and 328 IPC and proceeded with the investigation. Having completed entire formalities as to the investigation, the police submitted a charge sheet against the appellants. 5. The learned trial court, on the basis of evidence and material collected during investigation and placed before it, framed charge under Section 328, 304/34 and 120B IPC against the accused. The accused denied the charges and claimed trial. 6. In order to prove its case, the prosecution examined as many as 16 witnesses and got exhibited some documents. After the prosecution evidence was complete, the accused were examined under Section 313 Cr.RC. None was examined in defence. 7. At the conclusion of trial the learned trial court found the appellants guilty of having committed offence under Sections 304-I and 120-B IPC and accordingly convicted and sentenced him in the manner stated herein above. 8. I have heard learned counsel for the appellant and the learned Public Prosecutor and gone through the impugned judgment and the evidence on record. 9. Before proceeding further, I deem it just and appropriate to scan the evidence brought on record. 10. PW1 Badri Lal has deposed that on the day of incident he had also gone to temple, where Dhanna Lal, Compounder, one Maharaj and Syoji were sitting. Pushpendra deceased was also sitting there. Soon he reached there, Pushpendra Singh told him that he was administered medicine and his condition became precarious. He then told that Compounder had given him medicine under the pretext of cough syrup. Pushpendra deceased was also sitting there. Soon he reached there, Pushpendra Singh told him that he was administered medicine and his condition became precarious. He then told that Compounder had given him medicine under the pretext of cough syrup. The witness stated that he visited the house of Pushpendra and had stated this fact at his residence. At this juncture, the witness was declared hostile. In cross examination by the Additional Public Prosecutor, the witness stated that Dhanna Lal and compounder were also present at the place of incident. He admitted the fact that Pushpendra had told that he was suffering from cough. He then stated that Compounder did not ask in his presence to take the medicine and that cough would be cured. He further stated that Pushpendra had told him that as to what medicine the compounder has given him and thereafter he has been feeling dizziness. According to him, the compounder had not washed and cleaned the bottle in their presence. He denied to have knowledge whether compounder and Dhanna Lal hatched conspiracy and administered poison to the deceased which resulted in his death. Lastly, the witness stated that Compounder had also accompanied them when they brought Pushpendra to Jhalawar. He and compounder both had participated in the funeral of Pushpendra. 11. PW2 Bajrang has stated that he had also consumed the medicine and he also felt it like poison. Pushpendra had the effect of intoxication and he also felt dizziness and uneasiness. According to this witness some medicine was still left in the bottle, to which the compounder washed and threw it. In cross examination, the witness stated that they are drug (Ganja) edict. All the persons sitting at the place of incident were busy in smoking Ganja. Compounder Ramsharan had also accompanied when Pushpendra was taken by his brothers and others to the hospital. Ram Sharan was present till funeral was over. He admitted that no quarrel took place between Pushpendra, Dhanna Lal and Ram Sharan. According to this witness vomitting continued for two days. He denied that he and Pushpendra smoked Ganja with opium and,That was the cause of vomitting. 12. PW3 Babu Lal in his cross examination has stated that he was also consuming Ganja at the place of incident. He had taken medicine and had vomitting. According to this witness vomitting continued for two days. He denied that he and Pushpendra smoked Ganja with opium and,That was the cause of vomitting. 12. PW3 Babu Lal in his cross examination has stated that he was also consuming Ganja at the place of incident. He had taken medicine and had vomitting. According to him, every one present there who had taken the medicine had vomitted and all of them had enjoyed 'Chilam'. He then stated that the place where they enjoyed 'Chilam' and had taken medicine, vomitted there, after half an hour and whatever was consumed, came out. He stated it to be true that one who is not habitual to Ganja if smokes it, he feels dizziness. They had shown to the police the place where they had vomitted. The Compounder had left the empty bottle at the place of incident. The witness admitted that he was not sick during those days and was not suffering from cough. Pushpendra was already known to him. He denied that Pushpendra was suffering from fever. He was all right and was not suffering from cough. The witness was also not suffering from cough, but still he consumed the medicine. He specifically admitted that there was no enmity between Pushpendra, Dhanna Lal and Compounder. 13. PW4 Sanjay Singh, brother of deceased who lodged the report, Ex.D2 on 23.9.98 at 3.15 PM has deposed that Pushpendra informed him that Ram Sharan Compounder has administered some thing under the pretext of medicine (cough syrup) and that he consumed the same taking it to be a cough syrup. According to this witness, Ram Sharan Compounder had also accompanied them at the time when Pushpendra was being taken in a Jeep and Pushpendra reiterated that it was not known as to what was made to drink by Ram Sharan under the pretext of it being medicine. The witness stated that he had long standing enmity in respect of the field known as Babaji wala field and in that case his uncle Brijraj Singh was beaten and Dhanna was a witness. He then stated that appellant Dhanna Lai had witnesses against them in the case of their uncle Brijraj Singh. According to this witnessed, in the case of beating to his cousin Brijraj Singh, Hem Puri and others were convicted and were sentenced to 7 years' imprisonment. 14. He then stated that appellant Dhanna Lai had witnesses against them in the case of their uncle Brijraj Singh. According to this witnessed, in the case of beating to his cousin Brijraj Singh, Hem Puri and others were convicted and were sentenced to 7 years' imprisonment. 14. PW5 Dushyant has stated that when he and Sanjay Singh Chandrawant reached the place of incident, they found Pushpendra scumming from his mouth and sweating. Thereafter they brought Pushpendra to Jhalawar in a Jeep and on way Pushpendra disclosed that Compounder Ram Sharan administered him poison under the pretext of medicine. Appellant Dhanna Lai had brought the bottle and had given the same to Ram Sharan Compounder. He stated that he was present at his house at the time when it came to be informed that condition of Pushpendra was precarious. According to the witness, Pushpendra was first brought to Jhalawar and then to Harigarh and during this period, Ram Sharan was with them. Pushpendra did not disclose that at the time of incident he was smoking Ganja. The witness was not aware of the place of posting of Ram Sharan. Lastly, the witness stated that there was some matter between Dhanna Lal and Pushpendra with respect to money transaction. He admitted that he did not mention in his report Ex.P3, the fact of there being dispute between Dhanna Lal and Pushpendra. Thus, according to this witness there was long standing enmity between appellant Dhanna and deceased Pushpendra on account of some money transaction. However, the witness could not state whether Dhanna was a witness in their criminal case. 15. PW6 Shivji has deposed that having seen the condition of Pushpendra when he asked about his condition, Pushpendra informed that Compounder Ram Sharan has made him to drink some thing under the pretext of cough syrup. 16. PW7 Jai Singh stated that when he along with his cider brother Sanjay Singh and Badri Lal reached the place of incident found that Pushpendra was sweating and scumming from his mouth. On being asked, Pushpendra disclosed that Ram Sharan Compounder has administered poison under the pretext of cough syrup and the bottle of said cough syrup was brought by appellant Dhanna Lal. While on way in the jeep the deceased repeated the same statement. According to this witness, the police had seized the bottle and had prepared memo Ex.P5 which bears his signatures. While on way in the jeep the deceased repeated the same statement. According to this witness, the police had seized the bottle and had prepared memo Ex.P5 which bears his signatures. In cross examination, the witness stated that his brother Sanjay Singh had made available the bottle Ex.P5 to the police. The witness was not aware of the fact whether Dhanna was a witness in a case pending for offence under Section 307 IPC. Lastly, the witness stated that appellant Dhanna does not belong to their village. He never visited their house. The witness showed his ignorance about the cause of enmity between Dhanna and deceased. 17. PW13 Kan Singh was driver on the jeep in which Pushpendra was brought to Jhalawar. This witness has simply stated that Pushpendra disclosed that appellants served him medicine. In cross examination, the witness stated that at the relevant time. Ram Sharan Compounder was posted in village Harigarh. 18. According to PW16 Praveen Singh, Investigating Officer nothing could come to light during investigation that there was enmity between the appellants and the deceased. 19. The evidence discussed above does not reflect enmity between the appellant Dhanna Lal and deceased Pushpendra. Without critical analysis if the prosecution evidence is taken to be on its face value, the factual position that emerges out may be enumerated below: (i) All the persons present at the place of incident were smoking Ganja; (ii) They consumed medicine brought by appellant Dhanna and provided by appellant Ram Sharan compounder; (iii) Every person who consumed medicine vomitted; (iv) The medicine bottle and the contents of vomitting were not sent for chemical examination so as to establsh that the medicine contained poison; (v) As stated above, there was no enmity between the appellants and the deceased. Appellant Dhanna was resident of some other village, while appellant Ram Sharan was a Government servant and belonged to Bharatpur. He was posted at village Haripur, and (vi) The medicine was given to the deceased on his own request and there was no compulsion from the side of appellants. (vii) In the original report lodged by Sanjay Singh on 23.9.98 there was nothing about the conspiracy being hatched by the appellants. However, this allegation was after thought and came to be foisted in the another report lodged by Dushyant Singh on 24.9.98. (vii) In the original report lodged by Sanjay Singh on 23.9.98 there was nothing about the conspiracy being hatched by the appellants. However, this allegation was after thought and came to be foisted in the another report lodged by Dushyant Singh on 24.9.98. Further there was no mention in the report that appellant Dhanna Lal gave bottle of medicine to Ram Saran Compounder, who in turn gave it to the deceased. (viii) There is no evidence, direct or circumstantial so as to prove that the appellant hatched conspiracy and as a consequence of conspiracy, they administered poison to the deceased with intent to cause his death. 20. In the cases like the present one, 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, and (4) He had an opportunity to administer the poison to the deceased. 21. In the instant case, the cause of death of deceased as per the post mortem report, Ex.P11 was Asphyxia. The FSL report, Ex.R12 indicates that vicras gave positive test for the presence of organochloro insecticide. Thus what stands proved is that deceased died of poison i.e. organochloro insecticide. It has however not been proved by any evidence that the appellants had the poison in their possession. It has, however, not been proved by any evidence that appellants had the poison in their possession. On the contrary, it has been proved that all the persons present at the place of incident were smoking Ganja, consumed the medicine (cough syrup) and thereafter all of them vomitted there. Surprisingly enough the medicine bottle which was alleged to be contained with poison and the contents of vomitting were not sent to Forensic Science Laboratory for chemical examination so as to prove that contents of vomitting and the empty bottle had the poison. That apart the persons present at the place of incident consumed medicine at their own and that there was no compulsion from the side of appellants. 22. That apart the persons present at the place of incident consumed medicine at their own and that there was no compulsion from the side of appellants. 22. Before a person can be convicted of murder by poisoning, it is necessary to prove beyond doubt that the deceased died of poison and the poison in question was in possession of the accused and that poison was administered by the accused to the deceased. There is no evidence that the appellants were in possession of organochloro insecticide and they administered it to the deceased which resulted in his death. The prosecution has also not been able to prove that appellants had any motive to administer poison. The evidence indicates that there was no enmity between the deceased and the appellants. 23. Merely because the organochloro insecticide was found in the body of deceased, it cannot be presumed that the appellants had the poison with them, unless it is proved beyond all reasonable doubts that appellants were in possession of poison, they had an opportunity to administer it to the deceased and that too when it is proved that the appellants had the motive to cause the death of deceased. 24. For the reasons aforesaid, both the appeals filed by the appellants are allowed. Their conviction under Sections 304-II and 120B IPC and the sentences imposed thereunder by the learned Additional Sessions Judge, Jhalawar in Sessions Case No. 121/98 (Old 333/98) are set aside. They are acquitted of the aforesaid charges. The appellants are in jail and shall be set at liberty forthwith, if not required in any other case.Appeal allowed. *******