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2024 DIGILAW 1619 (RAJ)

Ram Kanya, W/o. Chandra Sen v. State of Rajasthan

2024-11-28

MUNNURI LAXMAN, PUSHPENDRA SINGH BHATI

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JUDGMENT : (Munnuri Laxman, J.) 1) The present appeal challenges the conviction and sentence imposed on the appellant by the learned Additional Sessions Judge No.1, Bhilwara vide its judgment dated 19.06.1998 on the file of Sessions Case No.2/1996 whereby the appellant was found guilty for the offences under Sections 302, 201 of IPC. For the offence under Section 302 of IPC, the appellant was sentenced to life imprisonment with a fine of Rs.5000/-; in default of payment of fine, to further undergo 6 months’ rigorous imprisonment and for offence under Section 201 of IPC, the appellant was sentenced to undergo one year rigorous imprisonment with a fine of Rs.1000/-; in default of payment of fine, to further undergo one month’s rigorous imprisonment. However, the appellant was acquitted of the charge under Section 328 of IPC. 2) The present appeal is at the instance of the accused-appellant. For brevity, the ranks of the parties as were referred before the trial court, is maintained. 3) The case of the prosecution is that accused is the sister of Manak Chand (PW-2) and the deceased is the wife of PW-2. On 01.07.1995, accused-Ram Kanya, deceased-Sita Devi and PW-2 Manak Chand with his family went to in-laws’ house to participate in the function. After attending the function, accused and deceased returned to the house of PW-2 at about 8:30 pm. Subsequently, PW-2 also returned back to his house at about 9:00-9:15 p.m. and he found that the accused was preparing the tea and the said tea was given to the deceased and one cup, which was kept for the accused, was intentionally made to spill by touching the cup with foot. The deceased consumed the tea and started vomiting. She was immediately shifted to Mahatma Gandhi Government Hospital, Bhilwara, while undergoing treatment, she died on 01.07.1995 at about 11:45 pm. The death of the deceased was informed to the Police at City Kotwali Police Station, Bhilwara over phone and such information was received by PW-4 Maan Singh, A.S.I. The said information was the basis for starting the proceedings under Section 174 of Cr.P.C. During the course of investigation, PW-4 proceeded to Government Hospital and conducted the inquest over the dead body and dead body was subjected to postmortem examination. Later, the body was handed over to the relatives of the deceased. Later, the body was handed over to the relatives of the deceased. 4) The contents of stomach and viscera were collected during the course of postmortem proceedings. They were sent for FSL. The FSL report dated 20.10.1995 (Exhibit-P/7) reflects that the cause of death of the deceased was on account of consumption of Potassium Cyanide. On the basis of findings of FSL report as well as the statements previously recorded and on the report of PW-1 Ladu Lal (brother of the deceased), the FIR No.606/1995 dated 04.11.1995 was issued for the offences under Sections 302, 328, 201 of IPC. Subsequently, further investigation was done and during the investigation, it was revealed that the accused had grudge over the deceased as she and Manak Chand (accused brother), performed the marriage of accused’s daughter and such marriage was not fruitful. As such, she proclaimed to take revenge against the persons, who settled the marriage of her daughter with the son of Hari Narayan (PW-6). It was further revealed in the investigation that on the date of incident at about 9:00-9:15 p.m., the accused who prepared the tea, had given one cup of tea to the deceased and one was kept for herself. Such tea was mixed with Potassium Cyanide. The deceased drunk the tea and the accused intentionally made her cup to fall whereby the tea was spilled on the ground. The deceased immediately suffered the complications by vomiting. Immediately thereafter, she was shifted to Government Hospital at Bhilwara where while undergoing the treatment, she made a statement that she has not eaten any other thing except tea and that tea was given to her by the accused pointing towards the accused Ram Kanya. After the investigation, a chargesheet was filed against the accused for the offences under Sections 302, 328, 201 of IPC. 5) The Sessions Court framed the charges against the accused for the offences under Sections 302, 328, 201 of IPC and the accused pleaded not guilty. The prosecution in support of its case examined PW-1 to PW-23 and also relied upon the documents Exhibit-P/1 to P/17. Accused did not lead any evidence in defence. 6) The trial court on the basis of the evidence available on record found that the accused was guilty for the offence under Sections 302 & 201 of IPC and awarded sentence to her as indicated herein-above. Accused did not lead any evidence in defence. 6) The trial court on the basis of the evidence available on record found that the accused was guilty for the offence under Sections 302 & 201 of IPC and awarded sentence to her as indicated herein-above. However, accused was acquitted of the charge under Section 328 of IPC. Hence, the present appeal against the conviction. 7) Heard the learned counsel for the appellant-accused and the learned Addl. Government Counsel/Public Prosecutor as well as the learned counsel for the complainant. 8) The learned counsel appearing for the appellant-accused has contended that the trial court has committed irregularity in convicting the accused based on no evidence but on the basis of conjectures and surmises. According to him, there is no evidence to show that the accused had administered the poison and even from the prosecution story of preparing the tea and giving the said tea to the deceased, it cannot be inferred that such tea was mixed with Potassium Cyanide. Further, neither the FSL report nor postmortem examination reflects traces of presence of tea in additional to the Potassium Cyanide so as to believe the story of the prosecution that the accused had prepared the tea and had given the tea mixed it with Potassium Cyanide. 9) It is also contended that the time of alleged preparation of tea would also show that it was not normal time to consume tea since the time was 9:00-9:15 p.m. It is also submitted that if really PW-2 Manak Chand (husband of the deceased) and PW-15 Miss. Dilkhush (daughter of the deceased) had seen the accused preparing the tea and had given such tea to the deceased and immediately, the deceased started exhibiting complications, there was an ample scope for the deceased when she was shifted to the hospital to tell the person traveling in the auto that it was the accused, who had given the poison by mixing it with tea and had also ample opportunity to say in the hospital about administering the poison by the accused. If such is the case of the prosecution, there could have been suspicion and lodged the FIR against the accused immediately. However, the FIR was lodged after four months of the incident after the FSL report was received. Thus, there is inordinate delay in lodging the FIR. If such is the case of the prosecution, there could have been suspicion and lodged the FIR against the accused immediately. However, the FIR was lodged after four months of the incident after the FSL report was received. Thus, there is inordinate delay in lodging the FIR. The entire story of the prosecution preparing the tea and administering the tea by the accused was invented to suit the findings in the FSL report. 10) The learned counsel for the accused also contended that the evidence relating to collection of viscera and proper sealing and proper custody was lacking in this case. There is most possibility of tampering with the viscera. The FSL report basing on such improper samples of viscera has no basis for conviction Therefore, the learned counsel for the accused prayed that the impugned judgment of conviction and sentence may be set aside. 11) Per contra, the learned Addl. Government Counsel/Public Prosecutor and the learned counsel appearing for the complainant have submitted that the evidence of husband and daughter of the deceased clearly show that it is the accused, who had prepared and had given the tea and after consuming such tea, the deceased immediately suffered the complications by vomiting. The deceased succumbed to such vomiting immediately after the consumption of tea while undergoing treatment in the Government Hospital. The evidence of PW-2 Manak Chand, PW-5 Chandmal (brother of the deceased) and PW-9 Gopal (relative son-in-law of the deceased) would also show that the deceased when enquired in the hospital had indicated that the accused had given tea mixed with poison to her as she has not taken any other food. Such evidence clearly demonstrates that the Potassium Cyanide was mixed with tea and that was the causative factor for immediate death of the deceased. Therefore such findings of the trial court cannot be found fault and prayed for dismissal of the appeal. 12) We have carefully considered the rival contentions of the parties and perused the impugned judgment as well as materials available on record. 13) A close scrutiny of the evidence and contentions raised by the parties reveal that the alleged incident had happened on 01.07.1995 at about 9:00-9:15 p.m. in the house of the deceased. 12) We have carefully considered the rival contentions of the parties and perused the impugned judgment as well as materials available on record. 13) A close scrutiny of the evidence and contentions raised by the parties reveal that the alleged incident had happened on 01.07.1995 at about 9:00-9:15 p.m. in the house of the deceased. The deceased was shifted to hospital on exhibiting vomiting at about 10:30-11:30 p.m. She died at about 11:45 p.m. and during this period, according to the prosecution witnesses, while pointing at the accused, the deceased stated that she had consumed the tea given by the accused, which was poisonous and that she had not taken any other food. This means, on the date of the incident by 11:45 p.m., all the accused must be knowing that the death of the deceased was on account of consumption of poison, which was mixed with the tea by the accused. If such is the case, they could not have waited for lodging the first information report till the FSL report is received. Till the FSL report is received, absolutely no report expressing any suspicion over the accused has been lodged. The First Information Report was lodged after receipt of FSL report i.e. after four months of the incident. This inordinate delay gives great amount of suspicion over the prosecution story and there is scope for concoction of the first information report to suit the findings in the FSL report. 14) According to the prosecution, PW-2 Manak Chand and PW-15 Ms. Dilkush are the direct witnesses to show that the accused prepared the tea and such tea was given to the deceased and the deceased drunk the tea whereas accused intentionally spilled over her tea, which was kept by her to drink. The evidence of these witnesses show that the deceased pointed out towards the accused that she had prepared the tea and such tea was mixed with poison, and she did not take any other food. According to them, such gesture was made by the deceased when she was enquired from her brother, and son-in-law in the hospital. These material facts were not found in their previous statements under Section 161 Cr.P.C. made before the police. As per forensic examination of the viscera and stomach contents, there is no findings with regard to existence of any traces of tea. These material facts were not found in their previous statements under Section 161 Cr.P.C. made before the police. As per forensic examination of the viscera and stomach contents, there is no findings with regard to existence of any traces of tea. The evidence available on record also show that the deceased and accused came to the house of PW-2 after attending a function in parental house of the deceased. If such a function was attended, definitely there could have been consumption of some kind of eatable in the function. This improbablises the claim set up by the prosecution that the deceased gestured in the hospital that she had not taken any other food except tea provided by the accused. 15) PW-9 Gopal, who is son-in-law of the deceased stated in his statement that PW-15 Miss. Dilkhush (the daughter of the deceased) was staying with her maternal-uncle Chandmal (PW-5), then he has given a different version. However, the evidence of PW-2 Manak Chand and her daughter PW-15 Miss. Dilkhush show that PW-15 was staying with the parents and she was studying there from. The above contrary evidence coming from the prosecution witnesses do not help to give definite findings as to the presence of PW-15 with the deceased when tea was given to deceased. If the evidence of PW-15 Miss. Dilkhush is discarded, the only evidence left is the evidence of PW-2 Manak Chand (husband of the deceased). His evidence also shows that he came late to the house. Before that, the accused and the deceased reached the house. If such an evidence is considered, the claim of the prosecution that accused had prepared the tea and had given the tea to the deceased, is not convincingly believable. 16) The motive for the offence is also not consistent. According to the evidence of PW-5 Chandmal, he and her sister (deceased) arranged the marriage of the daughter of the accused. Such marriage was not fruitful, as such, accused had grudge. The same is the evidence of PW-2, the husband of the deceased. However, the evidence of PW-15, the daughter of the deceased shows that accused was angry since she was claiming that the properly located in Asind village is to be given to elder brother. However, PW-2 also claimed that the accused was asserting for some kind of allotment of land in her favour in the partition. However, the evidence of PW-15, the daughter of the deceased shows that accused was angry since she was claiming that the properly located in Asind village is to be given to elder brother. However, PW-2 also claimed that the accused was asserting for some kind of allotment of land in her favour in the partition. These conflicting motives attributed against the accused was not found immediately after the death of the deceased. These things were come to forefront after the FSL report was received from the Laboratory. 17) Even admitting that there is an evidence from PW-2 and PW-15 to show that the accused had prepared the tea and had given to the deceased, this evidence is not enough to come to the conclusion that such tea was mixed with Potassium Cyanide. The reason is that the traces of tea were not found in the contents of the stomach, which were sent for Forensic examination. The FSL report gave only positive tests for the presence of Potassium cyanide. There is no other traces of food articles. This circumstance demolishes the story set up by PW-2 and PW-15. 18) The contention of learned counsel for the accused that viscera was tampered with, cannot be accepted. It is not their case that viscera which is collected, was belonging to any other individual since such viscera was available with the Hospital Authorities so as to tinker the evidence. There is no motive attributed to the doctors and the police for tinkering such samples. The FSL report indicates that samples were intact when they were submitted before the Laboratory. Such findings in the FSL report was not challenged. Therefore, the said contention has no merit. 19) The entire conviction of the trial court is based on suspicion and conjectures and it is not based on any convincing evidence, which can be foundation for conviction of the accused. Therefore, the conviction of the accused for the offence under Section 302, 201 of IPC is unsustainable and requires to be reversed. 20) In the result, the criminal appeal is allowed. The conviction and sentence imposed by the trial court vide judgment and order impugned dated 19.06.1998 is set aside and the appellant is acquitted of the charges under Sections 302, 201 of IPC. The appellant is on bail, her bail bonds shall continue for 3 months and thereafter, stand discharged. 20) In the result, the criminal appeal is allowed. The conviction and sentence imposed by the trial court vide judgment and order impugned dated 19.06.1998 is set aside and the appellant is acquitted of the charges under Sections 302, 201 of IPC. The appellant is on bail, her bail bonds shall continue for 3 months and thereafter, stand discharged. 21) Keeping in view the provision of Section 437-A Cr.P.C./Section 481 B.N.S.S., the appellant is directed to furnish a personal bond in a sum of Rs.40,000/- and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court as soon as she would be called upon to do so. 22) This Court is thankful to Mr. Tanya Mehta, who has rendered his assistance as Amicus Curiae on behalf of the accused-appellant, in the present adjudication.