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2005 DIGILAW 303 (PAT)

Rubi Devi v. State of Bihar

2005-03-14

body2005
ORDER M.L. VISA, J. Being aggrieved by judgment dated 22.6.2001 and order dated 23.6.2001 passed by Additional Sessions Judge. Supaul in Sessions Trial No. 59 of 1997 convicting and sentencing her to undergo life imprisonment under Section 302 of Indian Penal Code (In short "IPC") and rigorous imprisonment for seven years under Section 328 of IPC but, however ordering both the sentences to run concurrently, Rubi Devi, the sole appellant is before us in this appeal. 2. Prosecution case, in short, is that on 6.2.1997, informant Mina Devi (PW 6) was in her house when at about 2 PM, she saw her neighbour Pradip Gosai giving a small bottle to appellant, her daughter-in-law. Since pradip was regular visitor to her house, informant thought that he might have given something to her daughter-in-law. At about 7 PM, appellant served food in a plate before her husband, deceased Ashok Kumar Mishra. At that time, informant enquired from appellant what was given to her by Pradip on which she replied that it was the medicine for worms. After taking two bits of food, deceased complained smell of kerosene oil in the food on which informant asked her for leaving the remaining food and she herself went to kitchen and brought another food which she gave to her deceased son. The deceased took that food and, thereafter, he took milk and went to bed for sleeping but five minutes thereafter, he raised alarm on which informant went running to her son and found that her son was only staring and was not speaking anything. In the meantime, informant saw that the food which was offered by appellant to her deceased husband and which was left by him after taking two bits was given to two domestic dogs by appellant who, after taking the food, died within five minutes. The condition of deceased son of informant started deteriorating and informant also found a bottle near the pillow on the bed of her deceased son and this was the same bottle which was given to appellant by Pradip. The informant called her neighbours including Nageshwar Thakur (PW 2), a Compounder, who advised her to take her son to hospital and deceased son of informant was taken to hospital where he was given first aid but her son did not survive and he died at hospital during treatment on the same day. The informant called her neighbours including Nageshwar Thakur (PW 2), a Compounder, who advised her to take her son to hospital and deceased son of informant was taken to hospital where he was given first aid but her son did not survive and he died at hospital during treatment on the same day. The Fard-e-bayan (Exhibit-5) of informant was recorded on the same day at about 11.30 PM at Government Hospital Koriapatti. In her Fard-e-bayan, informant made allegation against appellant and Pradip that they mixed poison in the food of her deceased son which resulted in his death. A case under Sections 302 and 328 of IPC was registered against the appellant and co-accused Pradip Gosai. The police took up the investigation and after investigation submitted charge-sheet against appellant showing co-accused Pradip Gosai absconder and keeping investigation pending against him. Cognizance of the case was taken and the case was committed to the Court of Session where charges under Sections 302 and 328 of IPC were framed against the appellant who denied the charges and she was put on trial and after trial, she was found guilty and was convicted and sentenced, as indicated above. 3. The defence of appellant, as it appears from her examination under Section 313 of Criminal Procedure Code is that deceased died of drinking. No witness on her behalf has been examined. 4. In order to prove its case, prosecution has examined nine witnesses. Dr. Mihir Kumar Verma (PW 1) is the doctor who held post mortem examination on the dead body of deceased son of informant and he has said that no visible injury was found on dead body and on dissection, he found skull intact, brain and meninges intact with mild congestion, trachea and larynx intact with mild congestion, pleura and lungs intact and congested, heart and pericardium intact and contained dark fluid blood, stomach and intestine intact with pale in colour. He has said that he preserved viscera containing portion of lungs, portion of heart, portion of liver, right kidney, spleen, stomach with its contents and a portion of small intestine with its contents in saline, in glass jar and sealed it for chemical analysis. He has said that he preserved viscera containing portion of lungs, portion of heart, portion of liver, right kidney, spleen, stomach with its contents and a portion of small intestine with its contents in saline, in glass jar and sealed it for chemical analysis. About the cause of death, he has said that it was cardio respiratory arrest due to obscure cause, the opinion about which could be given only after getting chemical analysis report of .viscera from Forensic Science Laboratory, Patna. He has proved his post mortem examination report (Annexure-1). In cross-examination he has said that he does not know whether viscera preserved was sent to Forensic Science Laboratory, Patna because it is the job of Police. 5. Nageshwar Thakur (PW 2), in his evidence, has said that he is a neighbour of informant and on the date of occurrence at about 9 PM, he heard hulla and when he came to his gate, he found a number of persons assembled there who asked him to see the deceased who was lying unconscious and he then went to the house of deceased and found him lying unconscious and he then advised for taking the deceased to hospital and returned back to his house. He has said that he had seen froth coming out from the mouth of deceased. He has further said that a number of persons used to visit the house of deceased including Pradip Gosai but he does not know whether Pradip was having any relation with the appellant. In cross-examination, he has said that there are number of reasons for froth coming out 'from mouth. 6. Girdhari Goswami (PW 3) is a tendered witness Prakash Kumar Mandai (PW 5) has said that on 6.2.1997 at about 7.30 PM, he had seen deceased in the hospital when froth was coming out from the mouth of deceased and he then returned to his house. He has been declared hostile by the prosecution Meena Devi (PW 6) is the informant. Mahendra Ram (PW 7) is a formal witness who has proved the formal first information report (Exhibit-3). Dr. Ramashray Prasad (PW 8) is a veterinary doctor who held post mortem examination on two dead dogs and he has proved his post mortem examination reports (Exhibits4 and 4/1) and has said that after examination, he found that cause of death of dogs was food poisoning. Dr. Ramashray Prasad (PW 8) is a veterinary doctor who held post mortem examination on two dead dogs and he has proved his post mortem examination reports (Exhibits4 and 4/1) and has said that after examination, he found that cause of death of dogs was food poisoning. Dinanath Prasad (PW 9) is the investigating Officer of this case. 7. Hem Shankar Malakar (PW 4), in his evidence, has said that co-accused Pradip Goswami used to visit the house of appellant and because husband of appellant normally used to remain outside, therefore, he had suspicion that appellant was having illicit relationship with co-accused Pradip Goswami. He has further said that at the time of occurrence on hulla, he went to the house of informant where he found froth was coming out from the mouth of deceased and a number of villagers had assembled there and deceased, who was unconscious, was taken to Koriapatti Government Hospital where deceased died during treatment. He has further said that informant told him that appellant and Pradip Goswami had administered poison to deceased and, thereafter, he came out of his house. His attention by defence was drawn towards the fact that he had not stated before police that he had suspicion that appellant was having illicit relationship with Pradip Goswami and informant told him that appellant and co-accused Pradip Goswami had administered poison to deceased. He denied it but Dina Nath Prasad (PW 9), the Investigating Officer, in para-25 of his evidence, has said that this witness had not given the aforesaid statements before him. Admittedly, he is not an eye witness on the point of occurrence and claims his knowledge on the basis of information given to him by informant but then his evidence that informant told him that appellant and Pradip had administered poison to deceased does not appear to be true in view of evidence of Investigating Officer that he had not given such statement before him. 8. Now there remains the evidence of Mina Devi, informant (PW 6), who is said to be only eye witness in this case. 8. Now there remains the evidence of Mina Devi, informant (PW 6), who is said to be only eye witness in this case. She, in her evidence, has said that on the day of occurrence at about 2 PM, she had seen co-accused Pradip Gosai giving a bottle to appellant and when she enquired from appellant, she replied that it was the medicine for worms and on the same day at about 7 PM, his deceased son demanded food and she then ordered the appellant to give food to her husband and appellant then brought food in a plate and offered it to deceased who, after taking two bits, complained smell of kerosene oil in the food and she then asked him to leave the remaining food and brought another food from kitchen which she gave to deceased who ate that food and, thereafter, went to bed for sleep but five minutes, thereafter he raised hulla and when she went there, she found that her son was only staring and not speaking anything and she then raised hulla and a number of persons assembled there. She has further said that the food, which the deceased earlier after taking two bits had left, was given by appellant to two domestic dogs who after taking that food, died after five minutes. She has further said that when condition of her son started deteriorating, a retired compounder Nageshwar Thakur (PW 2) came and when he found that froth was coming out from the mouth of deceased, he advised her to take her son to hospital and she, with the help of villagers, took her son to Koriapatti Hospital where her son died during treatment and then she knew that appellant and Pradip Goswami had administered poison to her deceased son. In para-7 of her evidence, she has said that Pradip was friend of her son and regular visitor of her house and, therefore, she had no suspicion against him. In para10 of her evidence, she has said that she found a bottle on the bed of her deceased son which she handed over to police. She has proved her signatures on her Fard-e-bayan and seizure list (Exhibits-2 and 2/1). 9. In para-20 of her evidence, the informant has clearly stated that the she did not see any body administering poison or mixing the poison with food. She has proved her signatures on her Fard-e-bayan and seizure list (Exhibits-2 and 2/1). 9. In para-20 of her evidence, the informant has clearly stated that the she did not see any body administering poison or mixing the poison with food. She, in her evidence, has tried to make out a case that because appellant was having illicit relationship with co-accused Pradip Goswami, therefore, they both administered poison to deceased who was, admittedly, husband of appellant, in order to eliminate him. In Fard-e-bayan, informant nowhere has mentioned anything about this motive. On the point of this motive she, in her evidence, has stated that about one year before from the date of her examination as a witness in Court she came to know that appellant was having illicit relationship with Pradip and on some occasions, she had asked Pradip not to come to her house but in spite of it, he occasionally used to visit her house. She has further said that she never complained the appellant about her character. Her evidence that from one year prior to her deposing in this case she came to know that appellant was having illicit relationship with Pradip Goswami does not appear convincing because she was examined on 21.1.1998 meaning thereby that only about a fortnight before the occurrence she came to know about it. In para-29 she has deposed that only since two and half months prior to occurrence, appellant had come to her house and started living there and prior to it, she used to live with her parents where she had given birth to her first child about four years prior to occurrence and to second child about two years prior to occurrence and both the deliveries took place in her Naihar. She has denied the suggestion of defence that she was not having ood relationship with the appellant but has admitted that when appellant came to live in her house, at that time her brother had come and she had asked her brother for constructing a house which he had promised at the time of marriage but brother of appellant did not fulfil his commitment. In para-39 of her evidence, "she has stated that her deceased son used to care more for appellant and he was very loyal to his wife. 10. In this case, the cause of death of deceased is not known. In para-39 of her evidence, "she has stated that her deceased son used to care more for appellant and he was very loyal to his wife. 10. In this case, the cause of death of deceased is not known. The Investigating Officer, in para-12 of his evidence, has said that viscera of deceased and bottle seized in this case were sent to expert for examination. There is no report on record either of viscera examination or bottle examination. The lower Court record shows that the Court below wrote letter to Director, Forensic Science Laboratory, Patna for sending the viscera report who, in reply, stated that no viscera sample was ever sent to him for examination and, thereafter, the Court below wrote letters to Officer-in-charge, Jadia Police Station and Superintendent of Police for Explaining the position but in spite of repeated reminders, no reply was received and the Court below finally closed the case of prosecution because appellant was already in jail custody. 11. The learned Additional Public Prosecuter has given much stress on the evidence of PW 8, a veterinary doctor who has said that the cause of death of two domestic dogs of informant was food poisoning. He has submitted that it is the evidence of informant that the food which the appellant had offered to deceased which, after taking some bits, was left by her husband and was ultimately given to dogs who took that food and, thereafter, they died clearly establishes the fact that the food which the appellant offered to her husband was poisonous food. It is the own case of prosecution that the deceased took only two bits from the food which was offered to him by appellant. The further case of prosecution is that when deceased complained smell of kerosene oil in the food which was offered to him by appellant, the informant brought another food from the kitchen which the deceased took and, thereafter, he went to his bed to sleep but five minutes thereafter, he raised hulla and his condition started deteriorating. In Farde-bayan the informant has stated that after taking meal, deceased took milk also but in her evidence, she has not stated anything about milk. In Farde-bayan the informant has stated that after taking meal, deceased took milk also but in her evidence, she has not stated anything about milk. If the evidence of informant who is solitary witness on the point of occurrence is taken to be true it shows that deceased took two bits from the food offered by appellant and, thereafter, he took another food which was brought by informant herself from kitchen which was taken by deceased and, thereafter, deceased died. The learned counsel appearing on behalf of the appellant has submitted that the Investigating Officer, in his evidence, has clearly stated that the house of informant and appellant consists of two rooms both made of straw and were thatched cottages and in one cottage, food used to be prepared and another cottage was used for living purposes. According to him, the possibility of food being contaminated by poisonous insects or poisonous reptiles like snake or lizard cannot be ruled out. He has further submitted that the evidence of informant that she recovered a bottle containing poison from the bed of deceased which she later on handed over to police does not inspire confidence because had the appellant used poison from that bottle for mixing in the food, she, thereafter, would not have put the bottle on the bed of deceased for its subsequent recovery by informant. His further argument is that the evidence of informant that the food which was offered to her deceased son by appellant and which he refused to take on the ground of smell of kerosene oil was given by appellant to two domestic dogs is also not believable because had the appellant mixed poison in the food, she would have thrown it outside the house and would not have given it to her domestic dogs for creating evidence against her. We find sufficient force in this argument of learned counsel appearing on behalf of the appellant. In this case, so far motive for committing the murder of her husband by appellant is concerned, we find that there is nothing on record to come to such a finding that appellant had any motive to commit murder of her husband. The cause of death of deceased is not known. Merely on the ground that cause of death of two dogs has been found as food poisoning, the appellant cannot be held guilty in this case. 12. The cause of death of deceased is not known. Merely on the ground that cause of death of two dogs has been found as food poisoning, the appellant cannot be held guilty in this case. 12. Considering the entire evidence on record, we find that the prosecution has not been able to prove its case against the appellant beyond all reasonable doubts. 13. In the result, this appeal is allowed and the appellant is acquitted of the charges. The judgment and order of Court below convicting and sentencing the appellant are hereby set aside. 14. As the appellant is in custody, issue release order for her release from jail custody if she is not required in any other case.