JUDGMENT : Ahluwalia, J. Sonu, aged three years, son of Prabhu Lal (P.W.1) died on 4.7.2007 at 3:45 PM, in J.K. Loan Mother and Child Hospital, Kota. In bed-head ticket (Exhibit-D/3), it was noted that even though parents have given history of consumption of celphos tablets, he had died due to some unknown poison. The bed head ticket (Exhibit-D/3) contain observations of attending Doctor, which can be summed up as follows: “Sonu, a child aged three years was admitted at J.K. Loan Hospital, Kota, in night of 3rd and 4th July, 2007 at 0:25 AM in moribund condition with history of intake of unknown substance followed by vomiting and unconsciousness. The child was referred from District Hospital, Baran, where gastric lavage was done, and no gastric lavage fluids were obtained and sent along with the patient.” 2. Bhanwari Bai, the appellant is aunt (Tai) of the deceased, Sonu. She is wife of Dhanna Lal, elder brother of the complainant, Prabhu Lal (P.W.1), father of the deceased Sonu. It is the case of the prosecution that Bhanwari Bai had administered poisonous substance to Sonu, due to which he died. She was tried by the court of Additional Sessions Judge (Fast Track) Chhabra. The said court vide impugned judgment dated 3.5.2008, held the appellant Bhanwari Bai guilty of offence under Section 302 IPC and having convicted the appellant for the aforesaid offence, vide a separate order of even date, she was sentenced to life imprisonment and pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo one year R.I. 3. Being aggrieved against his conviction and sentence, the appellant Bhanwari Bai has preferred the present appeal. 4. Prabhu Lal (P.W.1) had submitted a written report (Exhibit-P/1) before A.S.I., Chhannu Pathan (P.W.13), who was sent to MBBS Hospital, Kota by S.H.O., Chhipa Badod. 5. In the written report (Exhibit-P/1), the complainant Prabhu Lal (P.W.1) stated that they are three brothers. He was having differences with Bhanwari Bai, wife of elder brother Dhanna Lal. The houses of three brothers are situated nearby. On 3.7.2007, Sonu aged three years, son of the complainant was playing outside the house. Bhanwari Bai, wife of his elder brother called the child inside the house and after sometime, the child started vomiting. Priya, the daughter of the complainant, aged five years came to the fields and informed her parents, that Sonu is vomiting. On 3.7.2007, Sonu aged three years, son of the complainant was playing outside the house. Bhanwari Bai, wife of his elder brother called the child inside the house and after sometime, the child started vomiting. Priya, the daughter of the complainant, aged five years came to the fields and informed her parents, that Sonu is vomiting. Upon this, the complainant returned from fields to the house and found that the child was vomiting. On asking, the child informed that Badi Mummy has given some tablet. The same information was also given by Priya. He further stated that there used to quarrel between him and his bhabhi with regard to cattle and she was keeping grudge. The complainant further stated that the said grudge started on the day when Bhanwari Bai had given beating to his mother, the complainant intervened, and raised his hand and gave beating to Bhanwari Bai. In written report, Prabhu Lal expressed belief that Bhanwari Bai had administered some unknown substance to the child and the occurrence had taken place at 1:00 PM in the day. 6. On the basis of above written report (Exhibit-P/1), a formal FIR No. 142/07 (Exhibit-P/11) was registered at the Police Station Chhipa Badod. The investigating agency during the investigation found the appellant guilty and submitted charge-sheet under Section 173 Cr.P.C. before the concerned Magistrate. The charge-sheet along with the accused was committed to the court of Sessions and the trial was entrusted to the court of Additional Sessions Judge (Fast Track), Chhabra, District Baran. The appellant Bhanwari Bai was charge sheeted for the offence under Section 302 IPC and she pleaded not guilty and claimed trial. 7. The prosecution commenced its evidence. 8. Prabhu Lal (P.W.1) stated in the court that on 3.7.2007, he along with his wife was present in his fields. Sonu, his son and Priya, daughter, were present in the house. There was a younger daughter also, who was sleeping. At around 12:00 – 1:00 PM, Priya came and told that Badi Mummy, Bhanwari Bai had given tablet of Celphos to Sonu and Sonu is vomiting. He came at the spot and found that Sonu was making vomits. On asking, Sonu informed that Bhanwari Bai had given a tablet. They brought Sonu to the hospital. The witness further stated that between Bhanwari Bai and his mother, Laxmi Bai a fight had taken place. He came at the spot and found that Sonu was making vomits. On asking, Sonu informed that Bhanwari Bai had given a tablet. They brought Sonu to the hospital. The witness further stated that between Bhanwari Bai and his mother, Laxmi Bai a fight had taken place. Bhanwari Bai had given beating to his mother and he intervened. Then Bhanwari Bai had objected as to why the witness had intervened. There used to be dispute between them over the cattle. Prabhu Lal (P.W.1) brought the child to the hospital at Chhabra. The doctor referred the child to Baran. From Baran, the child was referred to Kota. At Kota, the doctor told that Celphos has entered in the blood of the child. The child was admitted in the hospital and after sometime, he died. He submitted the written report (Exhibit-P/1) at Kota. He further stated that Panchnama of the dead body (Exhibit-P/2) was prepared. Thereafter, the dead body was handed over to him vide memo Exhibit-P/3. Thereafter, the Post-Mortem of the dead body of Sonu was conducted. 9. As is evident, Prabhu Lal (P.W.1) is not an eyewitness. This witness has stated that he was informed by Priya, daughter aged five years and his son aged three years, that some tablet was given by Bhanwari Bai to the deceased, Sonu. In cross-examination, this witness admitted that one and a half year ago, his son Sonu has fallen sick and he was administered one bottle of blood. He further stated that farmers do keep the tablets of Celphos, but he was not keeping the same at his house. 10. Lalta Bai (P.W.2), the mother of the child Sonu, also appeared in the court and reiterated the same as to what was stated by her husband Prabhu Lal (P.W.1). 11. Kumari Priya (P.W.3), a child aged five years, eldest daughter of the complainant, Prabhu Lal, who was present along with the deceased Sonu, was put to witness box, but the trial court came to the conclusion that this witness being child is not competent to depose before the court. 12. Badri Lal (P.W.4) in the court stated that they are three brothers, namely Badri Lal, Dhanna Lal and Prabhu Lal. This witness stated that six months ago, he was sleeping in his house and at 2:00 PM, he learnt that son of Prabhu Lal was taken to the hospital. 12. Badri Lal (P.W.4) in the court stated that they are three brothers, namely Badri Lal, Dhanna Lal and Prabhu Lal. This witness stated that six months ago, he was sleeping in his house and at 2:00 PM, he learnt that son of Prabhu Lal was taken to the hospital. He reached at Chhabra hospital, where parents of the child informed him that the child has been referred to Kota. Prabhu Lal (P.W.1) further informed the witness that Bhanwari Bai, wife of Dhanna Lal had administered some tablets to the child. He had attested the inquest proceedings (Exhibit-P/2). 13. Bhanwar Lal (P.W.5) also attested the inquest proceedings. 14. Lokesh (P.W.6) in the court stated that the written report (Exhibit-P/1) was dictated to him by Prabhu Lal (P.W.1). He attested the Panchnama of the dead body (Exhibit-P/2) and he had also attested the memo Exhibit-P/3, whereby the dead body was handed over the father. 15. Nand Kishore (P.W.7) had attested the Panchnama (Exhibit-P/2) and memo regarding Supurdginama of dead body (Exhibit-P/3) and also the site plan of the spot (Exhibit-P/4). 16. Prakash Singh (P.W.8) in the court stated that on 31.7.2007, he was posted as Constable at Police Station Chhipa Badod. Head Constable Raj Kumar had handed over him four packets for depositing the same at Forensic Science Laboratory, Jaipur. 17. Raj Kumar (P.W.9), Head Cosntable deposed in the court that he had retained packets handed over to him by Prem Chand, L.H.C., at Malkhana and further given the same to Constable Prakash Singh (P.W.8) for onward deposit at FSL. 18. Both the witnesses, Prakash Singh (P.W.8) and Raj Kumar (P.W.9) had been examined to prove the link evidence. 19. Jodharam (P.W.11), who was then posted as S.H.O, at Police Station Chhipa Badod, stated in the court that Chhannu Pathan (P.W.13) had brought the written report (Exhibit-P/1) on the basis of which, he had registered the formal FIR (Exhibit-P/11) and prepared the site plan of the spot (Exhibit-P/4) and recorded the statement of the witnesses. 20. In cross-examination, this witness stated that in the site plan (Exhibit-P/4), the complainant, Prabhu Lal (P.W.1) had not disclosed the place where the child had vomited. The witness further stated that due to rainy season, he had not found any vomit or poisonous substance at the spot and he had not seen any metallic Mercury at the spot. 21. 20. In cross-examination, this witness stated that in the site plan (Exhibit-P/4), the complainant, Prabhu Lal (P.W.1) had not disclosed the place where the child had vomited. The witness further stated that due to rainy season, he had not found any vomit or poisonous substance at the spot and he had not seen any metallic Mercury at the spot. 21. Laxman Singh (P.W.12) on 21.7.2007 was posted as S.H.O, at Police Station Chhipa Badod and had arrested the accused Bhanwari Bai vide Exhibit-P/12 on 12.9.2007. As stated earlier, the written report (Exhibit-P/1) was presented before Chhannu Pathan (P.W.13). 22. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. She denied all incriminating circumstances and pleaded false implication. 23. In defence, the accused examined two doctors, who had attended the child, namely Dr. V.L. Meghwal (D.W.1) and Dr. Rajesh Jain (D.W.2). 24. Dr. V.L. Meghwal (D.W.1) in the court stated that after the child was admitted, attendants had given a history that after consuming something, the child was vomiting and became unconscious. From his vomit, pungent smell was coming. This witness stated that father also told that the child had vomited some portion of tablet, but the same was not brought by the father. 25. Dr. Rajesh Jain (D.W.2), also stated that father had disclosed that the child had vomited some part of tablet, but the same was not retained by the father and in the J.K. Loan Hospital at Kota, the child had not vomited. 26. Dr. P.K. Tiwari (P.W.10) on 4.7.2007, being posted as Medical Jurist at MBBS Hospital, Kota, had conducted the autopsy on the dead body of Sonu. He had sent viscera to the FSL. This witness has proved Post Mortem Report (Exhibit-P/5) and further stated that after the report of FSL, he had opined that the child had died due to consumption of Mercury and death has resulted due to complications arising out of consumption of Mercury. 27. In cross-examination, this witness admitted that pure metallic Mercury is not poison. It is given for the treatment of constipation. However, metallic Mercury when mixed with some salt, becomes poison. This witness further stated that the contents of Mercury are not visible to naked eye in Post Mortem. This witness stated that he cannot say after how long, metallic Mercury will start reacting. It is given for the treatment of constipation. However, metallic Mercury when mixed with some salt, becomes poison. This witness further stated that the contents of Mercury are not visible to naked eye in Post Mortem. This witness stated that he cannot say after how long, metallic Mercury will start reacting. This witness further stated that in FSL report (Exhibit-P/9), quantity of Mercury is not mentioned. It will be apposite here to reproduce the opinion given by FSL, Rajasthan, in its report (Exhibit-P/9), as under:- “Result of Examination: On chemical examination, portions of viscera (1-4) from two packets marked (A) and (B) respectively gave positive tests for the presence of Mercury Metal and gave negative tests for other metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides. Blood sample exhibit (5) from packet marked 'C' gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers, insecticides and gave inconclusive results for mercury metal.” 28. From the perusal of the opinion of FSL, it is discernible that from the small intestine, liver and kidney, presence of Mercury metal was found. However, the same was not present in blood. The blood gave inconclusive result of Mercury metal. 29. Foremost two questions, which have been raised in the present appeal are, firstly, as to whether the death of the Sonu occurred due to administration of metallic Mercury and secondly, as to whether the same was administered by the present appellant. 30. Mr. N.K. Singhal, learned counsel for the appellant has contended that the prosecution has failed to prove that any poison was administered by the appellant and furthermore, metallic Mercury is not a poison. In the present case, symptoms of metallic Mercury were not found by the doctors. 31. To rebut the arguments raised by the learned counsel for the appellant, Mr. N.S. Dhakad, the learned Public Prosecutor stated that immediately the child had disclosed to his parents that Badi Mummy had administered some tablets to him. 32. Now, we shall deal with the question whether death is due to consumption of Mercury. 33. 31. To rebut the arguments raised by the learned counsel for the appellant, Mr. N.S. Dhakad, the learned Public Prosecutor stated that immediately the child had disclosed to his parents that Badi Mummy had administered some tablets to him. 32. Now, we shall deal with the question whether death is due to consumption of Mercury. 33. Parikh's Textbook of Medical Jurisprudence and Toxicology – Fifth Edition, has dealt with Mercury poisoning and the relevant portion of the same are reproduced as under:- “Metallic mercury is not poisonous if taken by mouth because it is not absorbed but causes poisoning if finely divided and inhaled, swallowed, or rubbed into the skin. It vaporises even at room temperature to an extent sufficient to permit the inhalation of toxic amounts. The vapour may be a source of danger in industry and even in the research laboratory. Mercury depresses cellular enzymatic mechanisms by combining with sulphydryl groups. Mercury Poisoning: Mercury can be absorbed into the body through all channels. A large dose of a soluble salt taken orally acts as a corrosive poison. When mercury gains entrance to the circulation, it is rapidly taken up by the tissues. The highest concentration is found in the kidney, followed by the liver, spleen, intestinal wall, heart, skeletal muscle and lungs. Attainment of the highest concentration at the sites of excretion is an important factor in connection with the marked kidney injury which it produces. When a highly insoluble mercurial is taken orally, a significant concentration of mercuric ion is attained only in the large intestine where inhibition of the active absorption processes causes a cathartic action. This may result in serious injury to the colon. They symptoms differ from acute arsenical poisoning in that there is a well marked metallic taste, violent symptoms occur in a few minutes, the evacuations are more often blood stained, and there are no remissions. The symptoms frequently assert themselves soon after the poison is swallowed. The taste is strikingly metallic, with a feeling of constriction in the throat, a burning sensation from mouth to stomach, and pain radiating over the abdomen. The mouth, tongue, and fauces become corroded and the mucous membrane appears greyish white. There is nausea, with frequent vomiting of long stringy masses of white mucus, mixed with blood, followed by profuse purging, often bloody, with painful tenesmus. The mouth, tongue, and fauces become corroded and the mucous membrane appears greyish white. There is nausea, with frequent vomiting of long stringy masses of white mucus, mixed with blood, followed by profuse purging, often bloody, with painful tenesmus. Collapse sets in, with cold clammy skin, pale anxious face, sunken eyes, dilated pupils, rapid feeble pulse, and sighing respirations. Syncope, convulsions and general insensibility usually precede death which may take place in a few hours. If death is not rapid, on the second or third day, salivation may develop, the gums may become swollen and inflamed, and the breath foul. Some loosening of teeth may also follow. A renal lesion soon becomes established due to nephrotoxicity of mercury. The urine contains albumin and blood. The output diminishes or stops and death ensues from uraemia. Inhalation of high concentration of mercury vapour will be followed within a day or two by stomatitis, salivation, metallic taste, diarrhoea, pneumonitis, and kidney damage with renal shut down. A number of fatal and almost fatal reactions following the intravenous injection of organic mercurial preparations as diuretics have been recorded. Fatal dose: The fatal dose of corrosive sublimate is about 1 to 2 gms. 400 mg is the smallest quantity of calomel which has caused death of a boy aged fourteen in 3 weeks. Besides idiosyncratic reactions, the mercurial diuretics are almost as toxic as mercuric chloride in experimental animals in comparison to mercury content. The same holds true for other organic compounds of mercury. Fatal period: Death may occur within a few hours but is usually delayed for 3 to 5 days. Delayed deaths are usually due to uraemia.” 34. We may notice that in the Post Mortem Report (Exhibit-P/5), no injury has been found to colon. The skin had not turned pale. There was no sunken eye and doctor had not found convulsion and general insensibility which duly proceeds death after few hours. No urine was retained and symptoms that urine and blood contained albumin were not found. 35. H.W.V. COX, Medical Jurisprudence and Toxicology, Fifth Edition, had stated that Mercury is not a poison, but when mixed with different salts become poisonous. According to the COX, symptoms of Mercury are choking in the throat, hoarse voice, difficulty in breathing and burning pain in mouth, oesophagus and stomach, followed by vomiting and purging. 35. H.W.V. COX, Medical Jurisprudence and Toxicology, Fifth Edition, had stated that Mercury is not a poison, but when mixed with different salts become poisonous. According to the COX, symptoms of Mercury are choking in the throat, hoarse voice, difficulty in breathing and burning pain in mouth, oesophagus and stomach, followed by vomiting and purging. The mouth and tongue are swollen and congested and may be coloured white. The vomit and stools may turn bloody. 36. It is to be noted that as per Post Mortem Report (Exhibit-P/5), doctor has stated that no abnormal discharge was found in state of natural, orifices, ears, nostrils, mouth, anus and urethra. 37. In large intestine, the doctor has noticed the presence of yellowish digested food. In oesophagus, the doctor found that membranes were congested. Oesophagus had not corroded. Therefore, we cannot say with certainty that cause of death was metallic poison and the same was administered. 38. It is now turn for us to decide second question, whether appellant administered unknown poisonous substance. 39. It is to be noted that Priya, a child aged five years, was not permitted by the trial court to step into the witness box. It has been rightly urged before us that if the child aged five years will not have faculty of retention, how it can be believed that a child aged three years will disclose to the parents that he had been administered something by anybody. It has been rightly urged before us that if the child aged five years will not have faculty of retention, how it can be believed that a child aged three years will disclose to the parents that he had been administered something by anybody. The trial Judge had convicted the appellant, Bhanwari Bai by returning the finding in para 29, which is as under:- ^^gLrxr izdj.k esa e`rd lksuw us tks ekSf[kd e`R;q dkfyd dFku vius firk dks fn;k Fkk mls Qfj;knh izHkwyky us vius dFkuksa ls lkfcr fd;k gSA blds vykok fiz;k p’en’khZ lk{kh us Hkh vius firk dks ?kVuk dh tkudkjh nh gS ftls Hkh Qfj;knh us lkfcr fd;k gSA Qfj;knh izHkwyky ih-MCY;w-1 ds dFkuksa esa dksbZ xaHkhj izd`fr ds fojks/kkHkkl ugha gSA ;|fi izfrijh{k.k ds nkSjku fd;s tkus okys ?kqekonkj iz’uksa dk mrj nsrs le; ,d vui<] xzkeh.k Qfj;knh ds }kjk ;fn dqN mrj bl izdkj ds ns Hkh fn;s tkrs gSa rc Hkh dsoy blh dkj.k ls mldh lk{; dks fojks/kkHkklh] lafnX/k vFkok vfo’oluh; ugha ekuk tk ldrk gSA gLrxr izdj.k esa mijksDr foospu vuqlkj cpko i{k ds }kjk fy;s x;s leLr rdZ lkjghu ik;s x;s gSaA i=koyh ij miyC/k leLr lk{; ls e`rd lksuw ds ekSf[kd e`R;q dkfyd dFkuksa ds vk/kkj ij rFkk vU; leLr ekSf[kd ,oa nLrkosth lk{; ds vk/kkj ij ;g lUnsg ls ijs lkfcr gksrk gS fd vfHk;qDrk HkaojhckbZ us e`rd lksuw dh gR;k dkfjr djus ds vk’k; ls mls tgj dh xksyh nh Fkh ftlds ifj.kkeLo:i e`rd lksuw dh e`R;q gqbZ gSA vr% vfHk;qDrk HkaojhckbZ vkjksfir vijk/k /kkjk 302 Hkkjrh; n.M lafgrk ds vkjksi ds fy, nks”kfl} fd;s tkus ;ksX; gSA** 40. Thus, it is evident that the trial Judge, to convict the present appellant has relied upon the oral dying declaration made by the deceased Sonu, a child aged three years to his parents and the statement made by Priya, eyewitness. At the cost of repetition, it is stated that Priya was not examined by the trial court, as eyewitness. 41. What is the effect of oral dying declaration made to a relation of the deceased and how the same ought to be appreciated. Hon'ble Apex Court in Sharad Birdhichand Sarda vs. State of Maharashtra [1984 AIR (SC) 1622] held as under: “48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. Hon'ble Apex Court in Sharad Birdhichand Sarda vs. State of Maharashtra [1984 AIR (SC) 1622] held as under: “48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.” 42. Admittedly, the relations between the complainant Prabhu Lal (P.W.1) and the appellant, Bhanwari Bai are inimical. It cannot be ruled out that the child picked up something and had put in his mouth. Resultantly, he had vomited and Prabhu Lal (P.W.1) due to inimical relations, had named Bhanwari Bai. The court to rely upon the oral dying declaration had put number of tests. The dying declaration recorded by the Police Officer, or a doctor or a Magistrate is taken into consideration, subject to numerous safeguards. The dying declaration ought to be in question and answer form. The dying declaration ought to be reduced in writing, but in the present case, the court to deprive the appellant of her liberty has to only rely on a alleged dying declaration made by three years old child to the parents. The dying declaration ought to be in question and answer form. The dying declaration ought to be reduced in writing, but in the present case, the court to deprive the appellant of her liberty has to only rely on a alleged dying declaration made by three years old child to the parents. Furthermore, we cannot become oblivious of the fact that after the child was administered some poisonous substance, he started vomiting and thereafter, as the version of the prosecution is, elder sister aged five years had gone to the field and had called parents. It is difficult to believe that when the parents arrived, the child will be in position to speak. A child aged three years, who has made numerous vomits, will not remain in position to speak, till his parents returned from the fields upon the message relayed. Right from beginning, in the bed-head ticket (Exhibit-D/1-D/3) the case of Prabhu Lal (P.W.1) is that Celphos has been administered and child was vomiting. The vomit had given pungent smell. The child had also vomited part of some tablets. Neither tablet was retained, nor the vomit was saved for the purpose of test. Immediately, when the child reached at the hospital, he was given stomach wash and even gastric lavage fluids were not retained. To us, it is not safe to rely upon the oral dying declaration made by the deceased Sonu, aged three years before the parents to convict the appellant, Bhanwari Bai and since Priya has not stepped into witness box, what is told by her to the parents, being hearsay, cannot be relied. 43. Be that as it may, since we are of the view that it is not safe to rely upon the oral dying declaration, we cannot say with certainty that appellant had administered some substance to the child, as a matter of abundant caution, we shall extend the benefit of doubt to the appellant, Bhanwari Bai. 44. Consequently, the appeal is accepted and set aside the conviction and sentence qua the appellant and she is acquitted of all the charges.