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2025 DIGILAW 371 (MP)

Nirmala Jaiswal v. State of M. P.

2025-06-25

AVANINDRA KUMAR SINGH, VIVEK AGARWAL

body2025
JUDEGMENT Agarwal, J:-- 1. This appeal under section 374(2) of the Criminal Procedure Code (hereinafter referred to as Cr.P.C. for short), is filed being aggrieved of the judgment of conviction dated 30.11.2023, passed by learned Session Judge, Sidhi (M.P.), in S.T. No.43/2023, whereby, appellant-Nirmala Jaiswal W/o Leelamani Jaiswal, has been convicted for offence under section 302 of Indian Penal Code (hereinafter referred to as IPC for short), on two counts, for causing death of Sanam Jaiswal and Shubham Jaiswal, for which she is sentenced to undergo R.I. for life and fine of Rs.1,000/-, and for poisoning Satyam Jaiswal under section 307 IPC, she is sentenced to undergo R.I. for 10 years with fine of Rs.1,000/-, with default stipulations on each count, respectively. All the sentences to run concurrently. 2. It is submitted that as per the prosecution story on 11.10.2022, a report was received by the Police Assistance Centre, Sidhi, from District Hospital Sidhi, that Shubham Jaiswal, Sanam Jaiswal and Satyam Jaiswal (PW/6) were admitted in the said hospital with complaint of consuming poisonous substance. Dr. R.K. Verma (PW/10), had examined Shubham Jaiswal, Sanam Jaiswal and Satyam Jaiswal and had given his medical report Ex.P/17, Ex.P/18 & Ex.P/19. Injured Sanam Jaiswal and Shubham Jaiswal died during treatment at Sanjay Gandhi Medical College, Rewa between 19.10.2022 to 20.10.2022, as a result of which 'Merg' Intimation Nos.884/2022 and 882/2022, were recorded respectively, in regard to death of Sanam Jaiswal and Shubham Jaiswal. 3. Assistant Sub Inspector, Laxman Prasad Patel (PW/3), had prepared 'Lash Panchnama' for Shubham as Ex.P/4 and for Sanam as Ex.P/2. Thereafter, their postmortem reports were obtained which are enclosed as Ex.P/29 & Ex.P/30, respectively, in which it is mentioned that they died because of some unknown poisonous substance. 4. It is submitted that though allegation is on the appellant, but she is innocent. Her memorandum Ex.P/10, was recorded by Sub Inspector, Pawan Singh (PW/12). She was arrested vide Ex.P/11 and on the identification of her husband Leelamani (PW/1), a tin box was recovered from her house on 21.12.2022, on which it is mentioned as 'Rocket-44 Profenofos cypermethrin', which was marked as Article 'A-1' and seizure memo Ex.P/8, was prepared. It has come on record that during trial evidence of Leelamani Jaiswal (PW/1), Rajju Jaiswal (PW/2), Laxman Prasad Patel (PW/3), Brijlal Jaiswal (PW/4), Ku. Neha Jaiswal (PW/5) and Satyam Jaiswal (PW/6), were recorded. It has come on record that during trial evidence of Leelamani Jaiswal (PW/1), Rajju Jaiswal (PW/2), Laxman Prasad Patel (PW/3), Brijlal Jaiswal (PW/4), Ku. Neha Jaiswal (PW/5) and Satyam Jaiswal (PW/6), were recorded. Spot map Ex.P/13 was prepared, seized articles were sent for chemical examination to Forensic Science Laboratory, Sagar. Examination report received from FSL Sagar is Ex.P/25, Ex.P/26 & Ex.P/27. On completion of investigation, charge sheet was filed and matter was committed. Appellant abjured her guilt, trial was conducted and she has been convicted as mentioned above. 5. Shri Pradeep Batra, learned counsel for the appellant, submits that it is a case of grave deprivation and depravity, inasmuch as, appellant was left with no idea as to her own actions in administering poison to three of her sons, but also to herself. It is submitted that she has been made an accused to save the actual culprits. She never administered any poison. It is submitted that MLC Dr. R.K. Verma (PW/10), admitted that even appellant complained of vomiting etc. and, therefore, in the alternative taking into consideration the extreme condition under which she herself tried to commit suicide along with her children by consuming poisonous substance will fall within the definition of 'sudden provocation' which falls under Exception - 1 to section 300 of IPC and, therefore, in the light of the judgment of Division Bench of Madras High Court in Guruswami Pillai v. State (1991) 1 MWN (Cri) 153 and Suyambukkani v. State (1989 SCC OnLine Madras 481 ), acquittal of the appellant be accorded. 6. Shri Anubhav Jain, learned Public Prosecutor, for the State, supports the impugned judgment and submits that act of the appellant is gruesome and does not call for any leniency. 7. After hearing learned counsel for the parties and going through the record, FSL report Ex.P/25, reveals that visceral material of Shubham Jaiswal contained organophosphorus pesticide profenofos and pyrethrum pesticide cypermethrin pesticide. Same result was detected in the viscera material of Sanam Jaiswal vide Ex.P/26. It has also been reported vide Ex.P/27, that Article 'A' contained organophosphorus and profenofos and pyrethrum pesticide. 8. In the postmortem report Ex.P/29, carried out by Dr. Jaya Vashishtha (PW/13), for Shubham Jaiswal, it is mentioned that death occurred due to consumption of unknown poisonous substance. Similar findings are recorded qua appellant Sanam Jaiswal also. 9. It has also been reported vide Ex.P/27, that Article 'A' contained organophosphorus and profenofos and pyrethrum pesticide. 8. In the postmortem report Ex.P/29, carried out by Dr. Jaya Vashishtha (PW/13), for Shubham Jaiswal, it is mentioned that death occurred due to consumption of unknown poisonous substance. Similar findings are recorded qua appellant Sanam Jaiswal also. 9. Leelamani Jaiswal (PW/1), is father of the deceased and husband of the present appellant. Leelamani Jaiswal (PW/1), stated that Nirmala Jaiswal is his wife. His marriage was performed with her in June 2016. They had three children from the wedlock. Eldest son is Satyam, aged about 05 years, second child was Sanam Jaiswal, aged two years who died and third child was Shubham Jaiswal, aged 14 months, who too died. Satyam is studying at Saraswati Shishu Mandir in Class-II. 10. Leelamani Jaiswal (PW/1) drives an auto. On 11.10.2022, at about 08:00 A.M., he had gone from Village Tarka to Bahri after loading vegetables. After unloading vegetables, he was plying passengers in his auto and at 04:00 P.M., when it was time for closure of the school, he was taking children in his auto to Tarka, when at about 04:10 P.M., he received a telephone call from his neighbourer Brijlal Jaiswal (PW/4), asking him to come home as his wife and children were vomiting. He stated that when he reached home, eldest some Satyam Jaiswal was speaking something, but other two children were unconscious. He after getting a four-wheeler from his neighbour, took his children and wife to Bahri hospital. Nirmala Jaiswal was pleading to save saying that she committed mistake and gave poison to children. Doctor was not available at Bahri hospital, then he had taken his children to Sidhi hospital, where they were admitted for a day and then referred to Rewa hospital. Leelamani Jaiswal (PW/1), admitted his wife and children at Sanjay Gandhi Hospital on 13th. They were given treatment when on 19.10.2022 Sanam Jaiswal died and on 20.10.2022, Shubham Jaiswal died. His wife and Satyam recovered on account of treatment. 11. Leelamani Jaiswal (PW/1), in para 8 of his cross-examination admitted that his wife had filed a case at Police Station Bahri alleging demand of dowry. He also admitted that on 11.10.2022/12.10.2022, his father-in-law had lodged a report against him. He denied a suggestion that he had mixed poison with the food. 11. Leelamani Jaiswal (PW/1), in para 8 of his cross-examination admitted that his wife had filed a case at Police Station Bahri alleging demand of dowry. He also admitted that on 11.10.2022/12.10.2022, his father-in-law had lodged a report against him. He denied a suggestion that he had mixed poison with the food. He denied that he had beaten his wife Nirmala in the morning of 11.10.2022. He also denied that he was at his home till 03:00 P.M., and then had gone out of his home. On his own, he stated that he had gone from his house at 08:00 A.M. 12. Rajju Jaiswal (PW/2), wife of Heeralal Jaiswal, stated that Nirmala Jaiswal is her daughter-in-law and wife of her son Leelamani Jaiswal (PW/1). She stated that at 03:00 P.M., her son Leelamani Jaiswal (PW/1), had gone with his auto leaving behind his wife and three children at home. She was inside her house with her daughter. Leelamani Jaiswal (PW/1), resides separately in the same house, but in a different room. 13. Rajju Jaiswal (PW/2), stated that when children were crying, she had gone there and asked, then children asked their mother that grand-mother had come, then mother had threatened them. After some time, Nirmala asked Neha (Sugan) to call her uncle and call him immediately. This witness stated that Nirmala was vomiting. Room was smelling. Satyam was vomiting blood. Sanam and Shubham were unconscious. Thus, there is contradiction in the evidence of Leelamani (PW/1) and Rajju (PW/2), mother of PW/1 as to the time when Leelamani (PW/1) left his home. 14. Brijlal Jaiswal (PW/4), stated that Neha had approached him asking him to call Leelamani Jaiswal (PW/1), then after calling Leelamani, he had gone to the house of Leelamani, where he found that Satyam, Shubham and Sanam were vomiting. Nirmala was lying silently. He along with other villagers took the children to hospital for treatment at Bahri, where doctor advised them to take them to Sidhi hospital. Thereafter, they were admitted at Sidhi hospital and then children were referred to Rewa. 15. Ku. Neha Jaiswal (PW/5), aged about 12 years, stated that on 11.10.2022, she had not gone to school. At 04:00 P.M., her aunt Smt. Nirmala Jaiswal called her asking her to call her uncle Leelamani Jaiswal (PW/1). She had approached Brijlal (PW/4) and asked her to call Leelamani. 15. Ku. Neha Jaiswal (PW/5), aged about 12 years, stated that on 11.10.2022, she had not gone to school. At 04:00 P.M., her aunt Smt. Nirmala Jaiswal called her asking her to call her uncle Leelamani Jaiswal (PW/1). She had approached Brijlal (PW/4) and asked her to call Leelamani. After calling Leelamani, they had gone to the house of Nirmala, where all the three children were unconscious, vomit was lying. Nirmala was also lying on bed, she was conscious, but was not saying anything. She stated that all the four persons were not in a position to speak. 16. Satyam Jaiswal (PW/6), is the surviving son of Leelamani Jaiswal (PW/1). He categorically stated in his examination-in-chief that his mother Nirmala had given them medicine saying that it is a medicine for fever. When they were not consuming the medicine, then mother had forcefully put it in their mouth. 17. Madan Gopal Jaiswal (PW/7), is the witness of seizure of box of poison. 18. Dr. R.K. Verma (PW/10), Medical Officer (CBMO), stated that he had seen Sanam Jaiswal and had admitted him in the hospital that symptom of unknown substance. He had also examined Satyam and Shubham. They all were victim of consumption of unknown substance. 19. Pawan Singh (PW/12), recorded memorandum of the appellant, who admitted that on the basis of her memorandum, no seizure was made. He admits that memorandum was recorded on 19.12.2022, but seizure was made on 21.12.2022. He further admits that he had not seized utensils in which food was cooked nor had seized the vomiting which was lying on the spot. There is no seizure of any bottle or strip of medicine from the spot. Seizure of Article 'A' is when it was brought by Leelamani (PW/1 and not at the instance of Nirmala. 20. Dr. Jaya Vashistha (PW/13), wife of Dr. Akhilesh Jaiswal, had conducted postmortem and is a witness of postmortem report. 21. Dr. D.K. Mishra (PW/14), had conducted postmortem on Sanam Jaiswal and had given a finding that death had occurred because of consumption of some unknown poisonous substance. There was no injury marks on the body of the deceased. 22. 20. Dr. Jaya Vashistha (PW/13), wife of Dr. Akhilesh Jaiswal, had conducted postmortem and is a witness of postmortem report. 21. Dr. D.K. Mishra (PW/14), had conducted postmortem on Sanam Jaiswal and had given a finding that death had occurred because of consumption of some unknown poisonous substance. There was no injury marks on the body of the deceased. 22. After hearing learned counsel for the parties and going through the record, the only quest in this case which appears to be vital is two fold; as to whether Leelamani Jaiswal (PW/1), had prepared food and administered poison or it was appellant Nirmala Jaiswal ? 23. There is doubt as to the recovery of box of poison, inasmuch as, it was not made on 19.10.2022 immediately after recording memorandum of Nirmala Jaiswal, but was admittedly made on 21.10.2022, as admitted by Pawan Singh (PW/12). Article 'A' was brought by Leelamani (PW/1) as is mentioned in Ex.P/8. However, ocular evidence of Satyam Jaiswal (PW/6) is that their mother had administered them poison informing them that it is a medicine for fever and had forcefully administered the same. However, there is no recovery of any medicine. The law is well settled in case of Munna v. State ( AIR 2003 SC 3346 ), that doubtful nature of recovery cannot render the ocular evidence unreliable. 24. Satyam Jaiswal (PW/6), in cross-examination, admitted that he had not gone to school. His father had left home at 08:00 A.M. He denied any dispute between his father and mother. He denied any forceful administration of food in the hands of his parents. He also denied that his father used to threat his mother that he will perform second marriage. However, this witness admits in para 5 of his examination that his father had administered food to him. 25. Thus, it is evident from the evidence of Rajju Jaiswal (PW/2), that her son Leelamani Jaiswal (PW/1), had not left home at 08:00 A.M., but had gone at 03:00 P.M., for which there is no contradiction and which is corroborated by the statement of the appellant recorded under section 313 Cr.P.C. 26. Satyam Jaiswal (PW/6), surviving witness of the incident after having said that mother had administered medicine for fever in a forceful manner, admits in cross-examination that he was not suffering from fever, but had not gone to school as his uniform was washed that day. Satyam Jaiswal (PW/6), surviving witness of the incident after having said that mother had administered medicine for fever in a forceful manner, admits in cross-examination that he was not suffering from fever, but had not gone to school as his uniform was washed that day. In para 5 of his cross-examination, he admits that his father had administered food to him. 27. Pawan Singh (PW/12), admitted that he had gathered information about the commission of offence on 11.10.2022. He further admits that he had not made any arrangements to record dying declaration of three children. He further admits that on 12.10.2022, Buddha Sen had recorded FIR against Leelamani Jaiswal (PW/1) and others, registering case Crime No.493/2022, under Section 498A, 34 IPC. 28. Thus, in view of the statement given by child witness Satyam Jaiswal (PW/6), in para 5 of his cross-examination, that actually it was his father who had administered them food. When the ends of the prosecution story are connected, then memorandum of Nirmala will become inadmissible, inasmuch as, there is no recovery of the box of poison at the instance of Nirmala, though her memorandum was recorded on 19.12.2022, whereas, recovery was made on 21.12.2022. 29. It is also true that mother-in-law of the appellant admits that Leelamani Jaiswal (PW/1), had left home at 03:00 P.M. Leelamani (PW/1) did not examine any independent person to show his presence in the school at 04:00 P.M., or to show his presence in the village for procuring vegetables at Village Tarka at 08:00 A.M. Therefore, when evidence of Rajju Jaiswal (PW/2) has remain unrebutted, evidence of Satyam Jaiswal (PW/6) is taken into consideration, who admitted that on that date their father had administered food, then benefit of doubt is required to be accrued in favour of the appellant, specially when memorandum of appellant under section 27 of Evidence Act is not corroborated with consequential recovery vide Ex.P/8., memorandum cannot be used to convict the appellant and also in view of contradictions in regard to timing when Leelamani (PW/1), left his home coupled with admission of child witness Satyam that food was administered by Leelamani (PW/1). 30. 30. Accordingly, the prosecution having failed to connect the memorandum of the appellant with the recovery and admission of Pawan Singh (PW/12), which that he had not carried out any investigation as to who had purchased the box of poison, from where it was purchased and then further admission that on 11.10.2022, after getting information about the incident, his failure to recover the utensil in which the food was cooked as well as the utensil in which the food was served coupled with the fact that recovery was made behind the back of Nirmala on 21.12.2022, we are of the opinion that though the proposition of the learned counsel that case being covered by Exception-I of section 300 of the IPC, will not be applicable to the facts and circumstances of the case, but in view of the evidence of Satyam Jaiswal (PW/6) and Rajju Jaiswal (PW/2), that Leelamani Jaiswal (PW/1), had left home at 03:00 P.M., and had administered food to the children, we are of the considered view that prosecution has failed to prove its case beyond reasonable doubt. 31. In the result, the appeal is allowed. The impugned judgment dated 30.11.2023 is set aside. The appellant is acquitted of charges under Section 302 (two counts) and section 307 of the IPC. If the appellant is not required in any other case, then she be released forthwith. Case property be disposed off in terms of the directions of the learned trial Court. Record of the trial Court be sent back.