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2013 DIGILAW 59 (GAU)

Saraswati Barman v. State of Assam

2013-01-30

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal has been preferred against the judgment and order, dated 29.08.2008, passed, in Sessions Case No. 74(BNGN) of 2007, by the learned Additional Sessions Judge, FTC, Bongaigaon, convicting the accused-appellant, Saraswati Barman, under Section 302 IPC and sentencing her to suffer imprisonment for life and pay fine of Rupees two thousand and, in default of payment of fine, rigorous imprisonment for a further period of two months. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) On 23.08.2006, when PW 1 was sleeping, at about 3 pm, the accused came and asked PW 2 to attend the meeting of their local Mahila Samittee. As PW 2 had not attended the previous meeting, she told the accused that she must attend the meeting. The accused, however, told PW 2 to prepare the meals and, then, go to attend the meeting. When PW 2 was cooking food, which consisted of jack fruit and soya bean, accused was sitting in the kitchen and, on a few occasions, had also stirred the curry. On one pretext or another, the accused remained present at the house of PW 2 and PW 2, on the suggestion of the accused, swept the floor of her house. Out of two locks, which PW 2 used to put at her house, she locked the front door of the house and gave one lock to the accused asking her to lock the kitchen. The accused, however, instead of locking the kitchen, threw away the lock and ran away. On reaching the place of meeting, PW 2 came to know that there was no such meeting as she had been informed. PW 2, then, returned home. On returning to her house, her son, Ankul, asked for rice and she accordingly served rice to Ankul and also to her daughter, Dipika, who did not eat rice immediately, because she felt some smell coming out of the soya beans. When PW 2 smelt the food, even she felt smell of kerosene emanating from the food. PW 2, then, took away the food, which had been served to her son, Ankul, and her daughter, Dipika, threw away the same. Some of the food, which had been so thrown away, was eaten by a dog. In the meanwhile, Ankul shouted and fell down on the ground. PW 2, then, took away the food, which had been served to her son, Ankul, and her daughter, Dipika, threw away the same. Some of the food, which had been so thrown away, was eaten by a dog. In the meanwhile, Ankul shouted and fell down on the ground. After a little while, Ankul died. As far as Dipika was concerned, she had also become ill, but she was made to swallow cowdung to vomit and, as she vomited, she felt better. On raising hue and cry by PW 2, her brother, PW 1, and other neighbours came, whereupon PW 2 narrated the entire incident to her brother (PW 1) and her other neighbours. The dog, which had eaten the food, also died. PW 1, then, lodged, in this regard, a written information on the following day, (i.e., on 24.04.2006), at Bidyapur Police Outpost. Treating the said information as First Information Report (in short, FIR), Bongaigaon Police Station Case No. 151/2006, under Section 302 IPC, was registered against accused Saraswati Barman. (ii) During the course of investigation, police visited the place of occurrence, held inquest over the dead body of Ankul and got his dead body subjected to post mortem examination. The doctor did not find any external injury on the dead body of Ankul. Small quantities of the curry, which had been served to Ankul and Dipika and which had also been eaten by a dog, which died, was seized by the police and the same, along with the viscera of deceased Ankul, were sent for chemical examination to Forensic Science Laboratory, Guwahati, (in short, FSL). The FSL reported that the viscera gave positive test of insecticide called organo chlorine indicating thereby that Ankul had died, because of poison, the said insecticide having worked as a poison. On completion of investigation, police laid charge-sheet, under Section 302 IPC, against the accused-appellant. 2. At the trial, when a charge, under Section 302 IPC, was framed against the accused, she pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether seven witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in her examination aforementioned, the accused denied that she had committed the offence, which was alleged to have been committed by her, the case of the defence being that of total denial. No evidence was adduced by the defence. 4. In support of their case, prosecution examined altogether seven witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in her examination aforementioned, the accused denied that she had committed the offence, which was alleged to have been committed by her, the case of the defence being that of total denial. No evidence was adduced by the defence. 4. Having, however, found the accused guilty of the offence, which she stood charged with, the learned trial Court convicted her accordingly and passed sentence against her as mentioned above. Aggrieved by her conviction and the sentence, which has been passed against her, the accused, as a convicted person, has preferred this appeal. 5. We have heard Mr. S. Bora, learned amicus curiae, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 6. While considering the present appeal, it needs to be noted that the doctor (PW 3) had, admittedly, performed, on 24.04.2006, post mortem examination on the dead body of Ankul and his findings were as follows: 1. Walls of the thorax - congested and intact; 2. Pleurae - congested. 3. Larynx and trachea - congested. 4. Right lung & left lung - congested. 5. Pericardium - congested. 6. Heart - congested. 7. Vessels - congested. Muscles, bones and joints - 1. Injury-nil, 2. Disease or deformity - nil, 3. Fracture-nil, 4. Dislocation-nil. External appearance: A male body about 3 years of age with distended abdomen, eyes were closed, dried up secretion from both angles of mouth not decomposed. Wall of abdomen - congested and tensed. Peritoneum - Intact and congested. Mouth, fringes and esophagus - Intact and congested. Stomach and its contents - distended and congested. It is ligated at both sides and cut and sent for laboratory test. Small intestine and its contents - congested and distended. Cranium and spinal cord- 1. Scalp, skull and vertebrae - intact. 2. Membrane - congested. 3. Brain and spinal cord - intact and congested. Liver - congested. A piece of liver cut and sent for laboratory test. Spleen - congested. Kidneys - congested. Right kidney sent for laboratory test. Bladder - intact and half emptied. Organ of generation - external and internal. Fickle material around the anus seen. External genital is intact. 7. 3. Brain and spinal cord - intact and congested. Liver - congested. A piece of liver cut and sent for laboratory test. Spleen - congested. Kidneys - congested. Right kidney sent for laboratory test. Bladder - intact and half emptied. Organ of generation - external and internal. Fickle material around the anus seen. External genital is intact. 7. In his evidence, the doctor (PW 3) has also deposed that the stomach and its contents, right kidney and a piece of liver were sent for forensic examination and the result of the FSL was as under: 1. The Ext. No. Tox-368(a), Tox-368(b), Tox-368(c) and Tox-368(d) gave positive tests for organochlorine insecticide. 2. The organochlorine insecticide in Ext. Nos. Tox-368(a), Tox-368(b) and Tox-368(c) was identical with the organochloride insecticide found in the Ext. No. 368(d). 8. It is also in the evidence of the doctor that Ext. 1 is the post mortem report and Ext. 1(1) is his signature. 9. The defence declined to cross-examine PW 3. Thus, the evidence, given by PW 3, remained wholly undisputed and his evidence clearly shows that there were no external injury on the body of Ankul and, having not been able to form any opinion with regard to the cause of death, viscera, as indicated above, was sent for forensic examination. 10. Close on the heels of the evidence of the doctor (PW 3), the evidence of the investigating officer (PW 6) is to the effect that on 24.04.2006, he received a written information, at Bidyapur Police Outpost, from PW 1 with regard to the occurrence, whereupon he made a General Diary Entry, in this regard, and sent the said written information, which PW 1 had lodged at Bidyapur Police Outpost, to Bongaigaon Police Station for registration of a case and, then, he came to the place of occurrence, held inquest over the dead body, seized a small quantity of curry, which had been consumed by Ankul (since deceased) and Dipika and a part of which had also been consumed by a dog, which, later on, died. Thus, apart from the stomach and its contents, right kidney, a piece of liver and a small quantity of the curry, which had been consumed by the said deceased, were sent to the FSL. 11. Thus, apart from the stomach and its contents, right kidney, a piece of liver and a small quantity of the curry, which had been consumed by the said deceased, were sent to the FSL. 11. PW 7, who is Scientific Officer, Toxicology, FSL, Guwahati, has deposed that on 10.08.2006, he received, in connection with Bongaigaon Police Station Case No. 151/2006, the following items for examination: 1. One plastic jar marked as 'C' containing stomach with contents collected from deceased Ankul Ray and marked by me as Ext. No. Tox-368(a); 2. One plastic jar marked as 'B' containing liver and kidney collected from deceased Ankul Ray and marked by me as Ext. No. Tox-368(b) and Tox-368(c) respectively; 3. One plastic bottle marked as 'A' containing some meal (approximately 100 gm), marked by me as Ext. 368(d). 12. Upon examining the materials, which had been so received by the FSL, the result of the examination, according to PW 7, were as follows: 1. The Ext. No. Tox-368(a), Tox-368(b), Tox-368(c) and Tox-368(d) gave positive test for organochlorine insecticide. 2. The organochlorine insecticide in Ext. Nos. Tox-368(a), Tox-368(b) and Tox-368(c) was identical with the organochloride insecticide found in the Ext. No. 368(d). 13. Exhibit 9 has been proved as the report of the FSL with Ext. 9(1) as signature of PW 7. 14. The result of the chemical examination clearly shows that the food, consumed by Ankul, gave positive test for organo chlorine insecticide. 15. In the light of what have been discussed above, there can be no escape from conclusion that Ankul died as a result of consumption of food, which contained, inter alia, organo chlorine insecticide. 16. Bearing in mind the cause of death of Ankul, let me, now, come to the evidence of PW 2, mother of the said deceased. According to her evidence, accused is her neighbour and, on the day of the occurrence, her husband, a carpenter, had gone out of the house for work and her son, Ankul, her daughter, Dipika, were present along with her at their house. While she and her son, Ankul, were sleeping, the accused came, at about 3 pm, to their house and asked PW 2 to attend the meeting of Mahila Samittee. While she and her son, Ankul, were sleeping, the accused came, at about 3 pm, to their house and asked PW 2 to attend the meeting of Mahila Samittee. On receiving the information, PW 2, according to what she had deposed, told the accused that as she was not present at the previous meeting, she must attend the meeting, whereupon the accused told PW 2 that the meeting would take time and, hence, she should go after preparing the meals. It is in the evidence of PW 2 that when she was cooking food, accused was sitting in the kitchen and, at times, she even stirred the curry and helped PW 2 in cooking. PW 2 has clarified, in her evidence, that she cooked the curry of jackfruit and soya bean and, on completing the cooking, when she asked the accused that they should now leave, the accused, in turn, asked PW 2 to sweep her house and the frontyard. PW 2, accordingly, swept the frontyard and during the time, she swept the frontyard, the accused was sitting in the kitchen. Thereafter, according to the evidence of PW 2, she locked the front door of the house and gave one lock to the accused asking her to lock the kitchen, but the accused, instead of locking the kitchen, threw away the lock and ran away saying that 'mistrik jolai golu' (i.e., I have befooled the carpenter). It is in the evidence of PW 2 that having, however, locked the kitchen, she reached the place of Subal with Ankul, but she came to know that no such meeting had been called for and when PW 2 informed Niru, mother of Subal, that it was accused Sarawati, who had told her (PW 2) that there was a meeting, Niru replied by saying that Saraswati had just left her house and, thereafter, while PW 2 was returning home, she found, on the way, Saraswati coming from her father's house and whom PW 2 asked Saraswati as to why she had lied to her (PW 2) with regard to the meeting, Saraswati told her that she would discuss the matter later. 17. PW 2 has further deposed that on her returning home, when Ankul asked for food, she served to Ankul and Dipika food and the curry of jackfruit and soya bean, which she had cooked. 17. PW 2 has further deposed that on her returning home, when Ankul asked for food, she served to Ankul and Dipika food and the curry of jackfruit and soya bean, which she had cooked. It is in the evidence of PW 2 that Dipika did not eat the rice on getting smell, but Ankul are and, on asking Dipika as to why she not was not eating, when Dipika said that there was smell of kerosene emanating from the food, PW 2, too, smelt the food and she also felt smell of kerosene emanating therefrom, whereupon she threw away the food, which was eaten by a dog. In the meanwhile, Ankul started shouting, he fell down and, after a little while, he died and though Dipika, too, fell ill, she was made to swallow cowdung to vomit and, as she vomited, she felt better. However, the dog, which had eaten the leftover food, died. 18. As PW 2 raised hue and cry, her neighbours, including her brother, Niren Ray (PW 1), came, she (PW 2) narrated the incident to them and when her husband returned home, he too was informed by her (PW 2) and, on the following day, her brother, PW 1, lodged a case with the police. 19. In her cross-examination, PW 2 has clarified that she was on visiting terms with the accused and, in fact, there used to be frequent visits amongst them. 20. On reading the evidence of PW 2, though a suspicion may arise that it was the accused-appellant, who had mixed some insecticide in the food, there is complete absence of evidence on record to show that the accused-appellant had been in possession of, and/or access to, the insecticide, which had been used in the present case. This apart, there is also no evidence whatsoever indicating that it was the accused-appellant, who had mixed or put the insecticide. The possibility of insecticide being present in the rice or soya bean cannot be completely ruled out. When there was no evidence of conclusive nature, in this regard, the accused-appellant was, in our considered view, entitled to be accorded benefit of doubt. 21. The above inference, which we have drawn, gets reinforced, when we find that as far as PW 1, brother of PW 2, is concerned, he, immediately, lodged the FIR on receiving the information from his sister, PW 2. 21. The above inference, which we have drawn, gets reinforced, when we find that as far as PW 1, brother of PW 2, is concerned, he, immediately, lodged the FIR on receiving the information from his sister, PW 2. PW 1, admittedly, does not have any personal knowledge as regards the visit of the accused to the house of PW 2. Though there is no apparent reason for PW 2 to falsely implicate the accused-appellant, the fact remains that the suspicion, which PW 2 had, was that it was the accused-appellant, who had, most likely put poison in the curry. This suspicion may be genuine, but suspicion, howsoever strong, cannot become substitute for proof beyond reasonable doubt. 22. As far as PW 4 is concerned, he was merely a witness to the seizure of the curry from the house of PW 2. What is significant, in the evidence of PW 4, is that he clearly says that he never heard of any quarrel between the members of the family of the accused-appellant and the members of the family of PW 2. 23. As far as PW 5 is concerned, she claims to have been told by PW 2 that the accused had administered poison. Considering the fact that PW 2 has given no such evidence, the claim of PW 5 has to be ignored as completely hearsay. 24. What crystallizes from the above discussion of the evidence on record is that there is no direct evidence to show that the accused-appellant had mixed organo chlorine insecticide into the curry of jackfruit and soya bean, which PW 2 had cooked. There is, however, room for suspicion that it was the accused-appellant, who had put organo chlorine insecticide in the curry. 25. Considering, of course, the fact that the accused-appellant had apparently no motive to cause death of PW 2 or any of the members of her family and also considering the fact that there is no evidence to show that the accused-appellant had been in possession of, or she had access to, organo chlorine insecticide, the mere possibility that she might have put organo chlorine insecticide into the curry cannot, in law, be stretched to hold, and that too, boldly, that it was none, but the accused-appellant, who had put, in the curry, organo chlorine insecticide, particularly, when the possibility of soya bean containing organo chlorine insecticide cannot be confidently excluded. 26. When a case rests on circumstantial evidence, the circumstances must not only be consistent with the guilt of the accused, but must also be inconsistent with his innocence meaning thereby that every reasonable possibility of innocence of the accused must be excluded before the accused is held guilty of an offence on the strength of circumstantial evidence. 27. The standard of proof required, for the purpose of convicting a person, on the basis of circumstantial evidence, has been laid down, with great clarity, in the case of Hanumant Govind Nargundkar Vs. State of M.P., reported in 1952 SCR 1091 , wherein the Court has pointed out that the circumstances, which are relied upon, must be fully established and the chain of evidence, furnished by the circumstances so established, should make a complete case against the accused and shall not leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant observations, appearing in Hanumant Govind Nargundkar (supra), read as under: It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 28. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in (1984) 4 SCC 116 , has pointed out that in a case, based on circumstantial evidence, the circumstances from which the conclusion of guilt is required to be drawn shall be fully established and the facts, so established, shall be not only consistent with the hypothesis of guilt of the accused, but shall be in consistent with any hypothesis of innocence of the accused. 29. 29. Elaborately dealing with the principles, laid down in Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda (supra), pointed out, at para 152, thus: 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 30. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court has pointed out, in Deonandan Mishra Vs. The State of Bihar ( AIR 1955 SC 801 ), too, that in a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. The State of Bihar ( AIR 1955 SC 801 ), too, that in a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Referring to the facts of Deonandan Mishra (supra), the Supreme Court pointed out that in a case like this, where various links have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and when he (accused) offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link, which completes the chain. 31. In the present case, though the accused-appellant might have been the one, who had put organo chlorine insecticide into the curry, the fact remains that the assumption that the accused-appellant might be the one, who had put organo chlorine insecticide into the curry, cannot be made the basis for conviction of the accused-appellant unless the Court reaches the conclusion beyond reasonable doubt that the accused-appellant was the one or must have been the one, who had put organo chlorine insecticide into the curry. The gap between 'may be true' and 'must have been true' is long and this distance is required to be covered by cogent and admissible evidence. In this regard, the evidence, which has been adduced by the prosecution, is not adequate and one cannot, therefore, safely hold the accused-appellant guilty of the offence, which she had charged with, and she ought to have been accorded, in the facts and peculiar circumstances of the present case, benefit of doubt, particularly, when there was no motive for the accused-appellant to have caused death of PW 2 or to cause death of any of the members of the family of PW 2. Situated thus, we are firmly of the view that the accused-appellant ought to have been accorded and must, now, be accorded benefit of doubt. 32. Situated thus, we are firmly of the view that the accused-appellant ought to have been accorded and must, now, be accorded benefit of doubt. 32. Because of what have been discussed and pointed out above, we hold the accused-appellant not guilty of the offence, which she has been charged with, and we acquit her of the same under benefit of doubt. The conviction and sentence of the accused-appellant, by the judgment and order under appeal, are hereby set aside. 33. The accused-appellant is hereby directed to be set at liberty, forthwith, unless she is required to be detained in connection with any other case. 34. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court. Send back the LCR.