1969 PLP 578 (SCMR)

There were variations upon this statement, of which the principal were as follows. Sahar Ali (P. W. 7) said that Majibar's statement to him was that his mother‑in‑law gave him rice with milk and this witness said that a similar statement was made to the doctor at the hospital, but as has been seen, what the doctor recorded was that he had taken rice and milk in his mother‑in‑law's house. Umesh Chandra Modok in cross‑examina tion said that Majibar told him that "first he took rice, vege table, dal, etc. and thereafter he took rice with milk". This statement must be an exaggeration based on imagination. The dying declaration which this witness heard was made in the presence of the doctor, and the written record of that dying declaration makes no mention of vegetable or dal. As a matter of fact no vegetable was found in the contents of the stomach in which the solid matter was undigested. A reliable witness on the point is Obija Khatun (P. W. 8) who is quite clear that Majibar only said he had taken rice and milk, but did not say who had served the meal to him. By way of motive, against the appellant, it was said that she was anxious to secure a divorce for her daughter Asia from Majibar. The daughter Asia seems to have disappeared some time before this occurrence. It may be that she had developed an aversion to her husband because it was clear that she was not in her mother's house at the time of the occurrence where Majibar had been living for about a year before the present occurrence. The defence laid a foundation for another person to desire the elimination of Majibar by obtaining from the witness Majiruddin Muhammad (P. W. 4) a statement to the effect that at the time of a panchayat or salish called to consider the estrangement between Majibar and his wife, Majibar stated that "rte had ill‑feeling with Thuka as the latter has eyes on his wife". Thuka is brother to the husband of Mst. Obija Khatun, and it is to evidence that he was living at the time in the accused's house, being cultivating tenant of her lands. He is unmarried and young. Jafiruddin Muhammad (P. W. 1) is clear that Thuka had been staying in the accused's house for about a year before this occurrence. Now, it is plain that the death of Majibar was the result of his eating aconite along with his midday meal that day. There is no proof that this meal was served to him by the appellant. The statements of Majibar made before his death furnish the only evidence to connect the appellant with this meal, and it is indeed a very thin connection. He clearly attributed his trouble to rice and milk taken by him in the house of his mother‑in‑law, not that it was given to him by her. But the contents of the stomach show that rice and milk were not the only things that Majibar ate for his midday meals. He also ate dal and there is a clear indication furnished on the record as to the source of the dal by the witness Obija Khatun, who admitted she had made rice and dal for the people who ate from her kitchen. One of those people was her brother‑in‑law Thuka, who could possibly have had a private motive for getting rid of Majibar. Therefore, apart from the doubt as to whether Mst. Bibiran Bewa directly had a hand in the preparation or presentation of the rice and the milk which Majibar ate that morning, a further doubt arises that the aconite might have entered his stomach through the dal which he also ate, and which could only have come from the kitchen of Mst. Obija Khatun, who is directly connected with the man Thuke. At the same time, the behaviour of Mst. Bibiran Bawa to wards Majibar prior to the incident, and again when it became apparent that he had been poisoned, does not at all indicate that she was hostile towards him. He had been living with her for about a year, and Abdul Kader (P. W. 2) admitted in cross‑examination that the appellant had started‑ construction of a house for Majibar. Moreover, it is clear that immediately upon hearing that he was in trouble, the appellant went to the house of Majiruddin where he was lying and brought him away to her own house and offered to do everything in her power for him. The jury which tried the accused returned a unanimous verdict of guilty against her and this was accepted by the Sessions Judge, who in imposing the sentence of transportation for life took into consideration that she was a fairly old woman and that the sentence was being imposed nearly 2 years after the offence which was allegedly committed on the 28th December 1955. In his charge, the Sessions Judge brought it prominently to the notice of the jury that Majibar had not said that his mother -in‑law served his meal to him, but merely that he had taken rice and milk in the house of his mother‑in‑law. At the same time, he gave a direction as follows:‑ "The words used in the dying declaration do not implicate the accused clearly and directly. But it is for you to consider how you will read the statement as made by Majibar." At another place, the Sessions Judge mentioned Thuka and Obija Khatun, and gave a direction in the following words:‑ "If Obija used to cook‑meals in the south `viti' but where the accused also cooked her meals, Obija would naturally have an access to that kitchen and you cannot rule out the possibility of Obija's mixing the poison if she had intended to do so. If on the other hand she cooked her meals in the north `viti' as stated by her, you should consider the chances and probabilities of her having access to the kitchen of the accused and mixing poison behind the back of the accused. P. W. 4 Majiruddin Pandit stated that Majibar had told him that he had ill‑feeling with Thuka as the latter cast eyes on his wife and the defence suggested that this Thuka might have by himself or through Obija had mixed up poison with food which was to have been served to Majibar without the knowledge of the accused. It is said that the widow has a large property and if Thuka could bring about the death of Majibar and succeed in marrying Asia he would not only get Asia but would get the property of the accused as well. You must give your anxious thoughts to this aspect of the matter." It was at this point that a reference to the dal found in the stomach of the deceased was absolutely essential in order that the circumstances attending the poisoning of Majibar's food should have been fully and fairly placed before the jury. For, at the very highest, the evidence upon the record could only connect Mst. Bibiran Bewa with the rice and milk consumed by Majibar. The source of the dal could only be the kitchen of Obija and the presence of the dal would prove that he had also eaten from Obija's kitchen, and thereupon a very sub stantial doubt would have been made plain, namely, whether the aconite might not have been administered in the dal which Majibar certainly ate at his last meal, in consequence of which he died. However, the matter was not placed in this light before the jury who returned a verdict as already stated, and when the case came up before a Division Bencii of the High Court in appeal, the learned Judges were content to say that upon reading the charge they did "not find any misdirection or non direction" and further observed that:‑ "the law was clearly explained to the jury and the prosecu tion evidence as well as the defence version was very fairly placed". Leave to appeal was granted to Mst. Bibiran Bewa, although her petition from the jail was late in time by no less‑‑ than 279 days, on the ground that the Sessions Judge had not charged the jury as to the appreciation of the circumstantial evidence in sufficiently clear terms, and had not emphasised the necessity of allowing the benefit of any doubt to the accused. It was also thought that there might be other evidence in the case which should have been placed before the jury. In the result, it seems that there was such other evidence, namely, the presence of dal inside the stomach of the deceased, which if placed before the jury in the correct manner, was by itself sufficient to create a grave doubt as to whether, any person, other than the accused, might not be responsible for the presence of aconite in the food last eaten by Majibar before his death. If this matter had been before the jury, we find it difficult to conceive that they could have still refused to allow to the accused the benefit of so patent a doubt. We accordingly allow this appeal and setting aside the conviction, we acquit Mst. Bibiran Bewa. Appeal accepted.