1989 PLP 1762 (MLD)

14. This takes us to the main contention urged for the appellant. It was urged That in a case of murder by poison there are three main po41as to be proved: firstly did too deceased die of the poison, in question; secondly, had the accused got the poison in question in his or her possession; and thirdly, had the accused an opportunity to administer the poison in question to the deceased. It was also urged that if the prosecution fails to prove these factors, then the accused cannot be convicted. The evidence in the case, according to learned counsel falls short of these requirements and, in particular, as to the question of proof of possession of the poison with the accused and therefore the accused is entitled to acquittal.

15. We have been referred to some decisions of this Court in support of the contention urged. We have also examined some other cases bearing on the question raised. A brief survey of these cases would be useful to appreciate the contention urged for the appellant. There are two unreported decisions of this Court of the year 1953. The first one is in Chandra Kant Myalchand Seth's case Criminal Appeal No. 120 of 1957 decided on 19-2-1958. There a woman died of alkali cyanide. The husband of the deceased was tried and convicted by the trial Court for the offence of murder. The conviction was set aside by this Court. In the-course of the judgment, it was observed: Before a person can be convicted of murder by poisoning it is necessary to prove that the death of the deceased was caused by poison that the poison in question was in possession of the accused and that poison was administered by the accused to the deceased.

16. The acquittal, however, was based on the consideration of the entire facts and circumstanced of the case. It was found that there was greater motive to the deceased to commit suicide than to the accused to commit murder. This Court also took note of the concern and conduct of the accused when he found his wife lying unconscious. The accused ran to the house of his friend and returned with a Doctor to render assistance to the victim. The accused called another Doctor for the, same purpose. He was also found weeping all the while. Taking into consideration all these factors, this Court found no justification to sustain the conviction of the accused.

17. Dharambir Singh v. State of Punjab Criminal Appeal No. 98 of 1958 decided on 4-11-1958 is another case of homicidal action by cyanide poisoning. It was perhaps in this case, the guidelines as to the proof of certain facts in "poison murder cases", were laid down by this Court. It was observed: "Where the evidence is circumstantial the face that the accused had motive to cause death of the deceased, though relevant, is not enough to dispense with the proof of certain facts which are essential to be proved in such cases, namely (firstly) did the deceased die of poison in question? (secondly) had the accused the poison in his possession? and (thirdly) had the accused an opportunity to. administer the poison in question to the deceased? It is only when the motive .is there and these facts are all proved that the Court may be able to draw the inference, than the poison was administered by the accused to the deceased resulting in his death."

18. After lying down these principles, the Court considered the entire evidence on record indicated the likelihood of the deceased committing suicide or another person to have administered the poison to the deceased. This Court accordingly acquitted the accused by extending the benefit of doubt.

19. If one prefers to go yet further back we find a decision of the Allahabad High Court is exactly on the principles laid down in Dharambir Singh case. In Mt. Gajrani v. Emperor, AIR 1933 All 394 Benett, J. speaking for the Court observed (at p. 394): "In a case of murder by poison there are three main points to be proved: firstly, did the deceased die of the poison in question; secondly, had the accused got the poison in question in his or her possession and thirdly had the accused an opportunity to administer the poison, in question to the deceased. If these three points are proved, a presumption may under certain circumstances be, drawn by the Court that the accused did administer poison to the deceased and did cause the death of the deceased. It is not usual that reliable direct evidence is available to prove that the accused did actually administer poison to the deceased. The evidence of motive which is frequently given in these cases is of subsidiary importance, and the mere fact that the accused had a motive to cause the death of the deceased is not a fact which will dispense with the proof of the second and third points that the accused had the prison in his or possession, and that the accused had an opportunity to administer the poison."

20. The above proposition found its way into Mohan v. State of U.P., AIR 1960 SC 659: (1960 Cr. LJ 1011) and Ram Gopal, v, State of Maharashtra, AIR 1972 SC 656: (1972 Cr. LJ 473). In Mohan's case, the death in question was by arsenic poisoning. In that case, the prosecution was able to prove that the accused gave peras' to the victim as `pershad' and the victim died after eating the pershad'. `Pershad' contained arsenic. There was thus direct evidence as to the possession of the poison with the accused. This Court, therefore, had no difficulty to sustain the concoction and sentence awarded to the accused.

21. Ram Gopal's case (AIR 1972 SC 656) was concerned with homicidal action by administering a compound called "kerosene and organo choloro compound". The High Court, relying upon the motive and other circumstantial evidence convicted the accused for the offence of murder although there was no evidence that the accused was in possession of poison. This Court could not agree with the view taken by the High Court. The analysis of the evidence produced by the prosecution revealed that the motive alleged against the accused was not fully established. The incriminating circumstantial evidence against the accused was also found to be insufficient. So the conviction of the accused was set aside, and the acquittal was recorded.

22. Sharda B. Chand Sarda v. State of Niaharashtra, (1985) 1 SCR 88: AIR 1984 SC 1622 is yet another case of death by cyanide poisoning for which the husband of the deceased was tried for murder. There was no direct evidence to establish that the accused was in possession of that poison. The High Court, however, relied upon the circumstantial evidence and convicted the accused. In the appeal preferred by the accused, this Court did not agree with the reasoning of the High Court. After referring to Ram Gopal's case (AIR 1972 SC 656), Fazal Ali, J., focussed the attention on the following four factors: The learned Judge Observed (at p. 167 of SCR) (p. 164?): (at pp. 1657-1658 of AIR): So far as this matter is concerned, in such cases the Court must carefully, scan the evidence and determine the four important circumstances, which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the deceased died of poison in his possession, (4) that the had an opportunity to administer the poison to the deceased. The learned Judge went on to state: "In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died oil potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in possession. On the other hand; as indicated above, there is clear evidence of P.W. 2 that potassium cyanide could have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extraordinary finding of the High Court. "It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence to prove that lie had administered poison to Manju. However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial evidence can be a basis for proving this fact." The comment by the High Court appears to be frightfully vague and absolutely unintelligible. While holding in the clearest possible terms that there is no evidence m this case to show that the appellant was in possession of poison, the High Court observed that this fact may be proved either by direct or indirect (circumstantial) evidence. But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant was in possession of poison. If the Court seems to suggest that merely because the appellant had the opportunity to administer poison and the same was found in the body of the deceased, it should be presumed that the appellant was in possession of poison, then it has committed a serious and gross error of law and has blatantly violated the principles laid down by this Court. The High Court has not indicated as to what was the basis for coming to a finding that the accused could have procured the cyanide. On the other hand, in view of the decision in Ram Gopal's (AIR 1972 SC 656) failure to prove possession of the cyanide poison with the accused by itself would result in failure of the prosecution to prove its case.

23. This Court then went into the merits of the prosecution case. It was observed that the deceased was of sensitive mind. She had occasionally suffered mental depression due to her inability to adjust herself to her husband's family. It was also observed that the deceased had access to the poison in question. She could have secured the poison from the factory of her mother. Considering these y and other circumstances, it was held "that it might be a case of suicide or murder and both were equally probable". So the accused was given the benefit of doubt and he was acquitted.

24. From the foregoing cases, it will be seen that in poison murder cases, the accused was not acquitted solely on the failure of the prosecution to establish one or the other requirement which this Court has laid down in Dharambir Singh case. We do not also find any case where the accused was acquitted solely on the ground that the prosecution has failed to prove that the accused had the poison in his possession. The accused in all the said cases came to be acquitted by taking into consideration the totality of the circumstances including insufficient motive, weakness in the chain of circumstantial evidence and likelihood of the deceased committing suicide.

25. We do not consider that there should be acquittal on the failure of the prosecution to prove the possession of poison with the accused. Murder by poison is invariably committed under the cover and cloak of secrecy. Nobody will administer poison to another in the presence of others. The person who administers poison to another in secrecy will not keep a portion of it for the investigating officer to come and collect it. The person who commits such murder would naturally take care to eliminate and destroy the evidence against him. 1n such cases, it would be impossible for the prosecution to prove possession of poison with the accused. The prosecution may, however, establish other circumstances consistent only with the hypothesis of the guilt of the accused. The Court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused.

26. The poison murder cases are not to be put outside the rule of circumstantial evidence. There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirable not practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused ill a case of murder by poisoning cannot have a better chance of being exempted from sanctions than m other kinds of murders. Murder by poisoning is run like any other murders. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw from the circumstances an inference on any matter one way or the other.

27. The view that we have taken gets support from the decision of this Court in Ananth Chintaman Lagu v. State of Bombay AIR 1960 SC 500: (1960 Cri LJ 682) where Hidayatullah, J., has given an anxious consideration to the three propositions laid down in Dharambir Singh case. The learned Judge did not consider them as invariable criteria of proof to be established by the prosecution in every case of murder by poisoning. The learned, Judge said (at pp. 519-520): "It is now necessary to consider the arguments which have been advanced on behalf of the appellant. The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case. Reference in this connection is made to a decision of the Allahabad High Court in Mt. Gajrani v. Emperor, AIR 1933 All 394 and to two unreported decisions of this Court in Chandrakant Myalchand Seth v. State of Bombay, Criminal Appeal No. 120 of 1957 decided on February 19, 1958 and Dharambir Singh v. State of Punjab, Criminal Appeal No. 98 of 1958, decided on 4-11-1958. In these cases the Court referred to three propositions which the prosecution must establish in a case of poisoning; (a) that death took place by poisoning; (b,) that the accused had the poison in his possession and (c) that the accused had an opportunity to administer the poison to the deceased. The case in. Cr. A. No.98 of 1958 decided on 4-11-1958 (SC) turned upon these three propositions. There, the deceased had died as a result of poisoning by potassium cyanide, which poison was also found in the autopsy. The High Court had disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide, but held, nevertheless that the circumstantial evidence was sufficient to convict the accused in that case. This Court did not, however, accept the circumstantial evidence as complete. It is to be observed that the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning, because evidently if after poisoning the victim, the accused destroyed all traces of the body, the first proposition would be incapable of being proved except by circumstantial evidence. Similarly, if the accused gave a victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and poison, in fact was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstance that the accused gave the victim something to eat and need-not be separately proved." The learned Judge continued: "The cases of this Court which were decided proceeded upon their own facts, and though the three propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three contents is so decisive that the Court can unhesitatingly hold that the death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it."

28. Sty much for the principles of which the learned counsel for the appellant fought for. On the facts there is concurrence of opinion between the two Courts below. This Court seldom re-examines the findings of, fact reached by the High Court. We may, however, out of deference to the counsel briefly refer to the evidence. The prosecution has established the motive for the murder. The proof of motive goes a long way to tilt the scale against the accused which provides a foundational material to connect the chain of circumstances. The facts which bear on motive are distressing. After the marriage, Gian Kaur was subjected to repeated harassment for not satisfying the demand for dowry made by Bhupinder Singh. Baltej Singh (P.W.2) has stated that Bhupinder Singh asked Gian Kaur to bring Rs. 10,

000. The parents, .of Bhupinder Singh were also parties to that demand. Baltej Singh with all difficulties satisfied that demand in part payment of Rs. 6,

000. Bhupinder Singh thereafter demanded a motorcycle. When that was not immediately given Bhupmder Singh held out a threat to his wife that she would be killed. This was conveyed to Baltej Singh. Before he 'could take a decision m this regard he was shocked to receive the news of death of Gian Kaur This has been proved by the testimony of Baltej Singh (PV2) and Nazir Singh (P.W.)). The demand for dowry followed by harassment to the deceased has been thus satisfactorily proved.

29. The evidence of the Doctor and the report of the chemical examiner has established beyond doubt that Gian Kaur died of organo phosphorus compound poisoning. Bhupinder Singh had an opportunity to administer that poison. There was nobody else in the house. All the inmates had their common food in the night. All of them slept in the same place. Both the Courts have ruled out the theory of suicide by Gian Kaur.' We entirely agree with that finding. She could not have thrown her child to the mercy of others by committing suicide and indeed no mother would venture to do that. The post-mortem report giving the description of injuries found on the body of the deceased would also defy all doubts about the theory of suicide. She had contusion on the front of right leg. Abrasion on the front of the left leg just below the knee joint. Linear abrasion on the back of the right hand. Linear abrasion on the antero-lateral aspect of left forearm in its middle. And contusion on the back of right elbow joint. These, injuries, as the Courts below have observed could have been caused while Gian Kaur resisted the poison being administered to her.

30. The behaviour of Bhupinder Singh in the early hours of that fateful day by going to his field as if nothing had happened to his wife is apparently inconsistent with the normal human behaviour. There was no attempt made by him or other inmates of the house to look out for any Doctor to give medical attention to the victim. The movements and disposition of Bhupinder Singh towards the victim and situations are incompatible with his innocence. On the, contrary, it goes sustenance to his guilt.

31. The Courts below having considered all these facts-and circumstances had no difficulty to convict the accused for murder and we see no, good reason to I interfere with that conclusion.

32. In the result, the appeal fails and is dismissed. M.B.A.101/F.C. Appeal dismissed.