R.L. KHURANA, J.

(1.) The appellant, Dr. Rajiv Jassi, hereinafter referred to as the accused, stands convicted by the learned Sessions Judge, Solan, in Sessions trial No. 25-K/7 of 2000 vide judgment dated 3/12/2001 for the offence under Section 302, Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to fine of Rs. 5000.00. In default of payment of fine, the accused has been sentenced to undergo rigorous imprisonment for a further period of six months.

(2.) Prosecution story, in brief, may be thus stated. The deceased Dr. Suman Lata, daughter of PW 9 Ram Kishan, was married to the accused on 25/4/1998. The deceased at the relevant time was posted as a Dental Surgeon at Civil Hospital Chail in District Solan, while the accused was posted as a Medical Officer in the Primary Health Centre, Gharuan in District Ropar (Punjab).

(3.) The relationship between the deceased and the accused became estranged immediately after marriage due to the demands for dowry being made by the accused and his parents as well as due to the excessive drinking habits of the accused, who while under the influence of liquor used to give severe beatings to the deceased.

(4.) On 23/5/2000 PW 8 Anil Kumar visited the deceased (his sister) at Chail and stayed with her. On the night intervening 25th and 26th of May, 2000 at about midnight, the accused reached Chail at the house of the deceased. He was dead drunk at that time. He started abusing, kicking and beating the deceased. When PW 8 tried to intervene to save his sister (the deceased), he was also given beatings by the accused and was turned out of the house.

(5.) At about 3 A.M. on 26/5/2000 PW 5 Surender Kumar, who was living just in front of the house of the deceased, happened to get awakened from his sleep. He came out for urination. He heard the shrieks and cries of the deceased. He also heard the extreme weeping of her child. The deceased was heard crying and saying Give me salty water, I do not want to die. PW 15 went to the house of the deceased. It was found closed from inside. PW 5 immediately informed PW 4 Ved Prakash, Ex-President of Chail Gram Panchayat, as well as PW 7 Om Prakash on telephone. Both PW 4 and PW 7 came to the House of PW 5 and thereafter all the three proceeded towards the house of the deceased. PW 4 knocked at the door of the house of the deceased, which was bolted from inside. None opened the door initially. However, after about five minutes, the door was opened by the accused. On entering the room PW 4. PW 5 and PW 7 smelt a poisonous odour in the room. All the articles in the room were lying scattered. The deceased was found lying on the bed with bruises and contusions on her face. Water was found to have been splashed on the bed as well as the floor of the room. The clothes of the deceased were also drenched. PW 5 asked the accused to take the deceased to the hospital immediately to which the accused replied that there was no necessity therefor and that the deceased would be all right shortly.

(6.) In the meanwhile PW 6 Dyal Singh, PW 8 Anil Kumar and PW 10 Shiv Kumar are alleged to have arrived. They also found the floor of the room and the bed where the deceased was lying having been splashed with water. They noticed the precarious and deteriorating condition of the deceased. When they asked the accused as to what had happened, the accused retorted that it was his private life and that they need not bother. The accused is further alleged to have refused to take the deceased to the hospital on the pretext that nothing had happened to the deceased and that he himself being a doctor can look after her. PW 6, PW 8 and PW 10 also smelt some poisonous odour in the room. The deceased who was pleading that she did not want to die and that she be saved, on being asked by PW 6, PW 8 and PW 10 as to what had happened, is alleged to have raised her hand towards the accused.

(7.) PW 7 Om Parkash at about 4.30 A.M. is alleged to have informed the Police on telephone as under:Dr. Suman Lata, who lives in my building, has consumed some poisonous substance, action may be taken by visiting the spot.

(8.) PW 17 Head Constable Biru Ahmad, who received the abovesaid information, after entering the information in the daily diary at Serial No. 12 (copy Ex. PJ) proceeded towards the spot alongwith Constable Hardev Singh, and reached the spot at about 4.40 A.M. He found the deceased lying on the bed. She was unconscious. He shifted her to Primary Health Centre, Chail.

(9.) PW 2 Dr. O.P. Chaudhary, on the deceased having been brought to him, examined her at about 6 A.M. He observed as under: Patient was semi-conscious with history of consumption of poisonous substance. She was drowsy. Contusion reddish colour over the lateral side of right eye brow. Swelling present. It was sized 7 cm. x 5 cm. Both lips were swollen. No particular colour changes noticed. No other obvious external injury over the face and exposed part of the body was present. Complete external examination of the injury could not be done because the patient was in serious condition. Pulse was palpable, B.P. was not recordable because of the effects of poison. Heart rate was 90 per minute. Respiratory rate was 30 per minute. Pupils bilateral circular, pin point not reacting to light.

(10.) PW 2 gave the initial treatment to the deceased. He carried out Gastric levage first with saline solution and then with ordinary tap water. At first some eatable particles came out. Gastric levage was continued till clean water came out. PW 2 thereafter referred the deceased to I.G.M.C. Hospital. Shimla at 7 A.M. on the same day for expert opinion and further management.

(11.) The deceased died at I.G.M.C. Hospital, Shimla, on the evening of 26.5.2000. Information regarding the death of the deceased was given by PW 8 Anil Kumar, the brother of the deceased, to PW 17 Head Constable Biru Ahmad at about 7 P.M. PW 17 on the basis of such information went to I.G.M.C. Hospital, Shimla. He took into possession the dead body and after preparing the necessary inquest report, sent the dead body for post-mortem.

(12.) PW 3 Dr. Piyush Kapila in association with Dr. V.K. Mishra, Assistant Processor, Forensic Medicine, carried out the post-mortem of the deceased. In his opinion, the deceased had died due to asphyxia secondary to the organo phosphorus poison. He found the following ante-mortem injuries on the person of the deceased:

(i) 10 cm x 6 cm bruise on the right perioribal area with swelling of right eye lid with two contentric nail scratches abrasions, one on forehead and other on upper eye lid. Bluish in colour, (ii) 9 cm x 4 cm big contusion, bluish in colour, on intraoribal area and cheek on left side, (iii) 2 cm x 1/2 cm contusion on the inner side of lower lip towards left side mid line with respect to left lateral incisor (lower). Blue in colour. (iv) 8 cm x 7 cm abraded contusion over chin and submental area in midline. Bluish in colour. (v) 11 cm x 5 cm multiple small abrasions over neck and right of upper chest in front 3 cm lateral to sterno calvicular joint. (vi) 10 cm x 4 cm contusion in inflaaxillary area in mid axillary line. Blue in colour, (vii) 7 cm x 5 cm large purple coloured pach over dorsum of right hand with multiple needle prick marks (iatrogenic).

(13.) In addition to the above injuries. PW 3 Dr. Piyush Kapila also observed: There was a dead male foetus 40 cm in length with head circum-ference of 29 cm with body weight of 1300 grams present in the uterus of the deceased and age of foetus was calculated as 8 months.

(14.) On 27/5/2000 at about 12.45 P.M., PW 8 Anil Kumar (brother of the deceased) made a report to the police in the following terms: TIJ am resident of House No. 185, Phase-2, Mohali, Police Station Mohali, Tehsil Kharar (Punjab) and carrying on my work as a Contractor. I have one brother Ashok Kumar and three sisters, namely, Gurmeet, Asha and Suman. All the three sisters are married. On 27/4/1998 my youngest sister Suman was married to Rajiv Jassi son of R.M. Jassi, House No. 536, Phase-3A, Mohali, according to Sikh rites. After a few days of marriage, my brother-in-law (sisters husband) started admonishing and beating my sister for bringing more dowry. My sister for the sake of respect of the family did not disclose to us about the maltreatment and beatings being given to her by her husband. On 23/5/2000 my sister telephoned me at Mohali and asked me to come to her at Chail, where she was posted as a Dental Surgeon and to stay with her for two three days. On receiving such phone call I went to Chail to the house of my sister on 24/5/2000 from Mohali. On 25/5/2000 I had a talk with her in-laws at Mohali on telephone. Her in-laws informed her that my brother-in-law was also coming to Chail in the evening. We both waited for him. In the midnight at about 12, Rajiv reached Chail at the residential quarter of my sister by his Santro Car No. PB-65A-4215. He was under the influence of liquor and was carrying a bottle of liquor in his hand. On arrival he started abusing us and in my presence gave a kick blow on the abdomen of my sister, who was pregnant. When I stopped him from doing so, he pounced upon me also. As a result I received scratches and swelling on my face. Feeling that Rajiv might be annoyed due to my visit, my sister asked me to leave. Whereupon leaving them behind 1 went to the house of my friend Bablu. After some time two/three persons came. They called out for Bablu and asked him about me. I asked them as to what had happened. They told that the condition of my sister was not good. On so hearing, I rushed to the residential quarter of my sister and knocked at the door. After some time Rajiv opened the door. On the opening of the door I found the condition of my sister to be pre-carious due to consumption of some poisonous substance. My sister has a son aged about 13 months. My sister was a doctor and she had not kept any poisonous substance in the room. I firmly suspect that my brother-in-law Rajiv has forcibly administered some poison with the intention to kill my sister. I along with my brother-in-law Rajiv had got my sister admitted in I.G.M.C. Shimla where during her treatment she breathed her last at about 7.15 P.M on 26/5/2000. The death of my sister has occurred due to maltreatment of my brother-in-law. Action be taken accordingly. On the basis of the above report, a case for the offences under Section 306 and 498-A, Indian Penal Code, came to be registered at Police Station. Kanda-ghat vide F.I.R. No. 41 of 2000 (Copy Ex.PF).

(15.) Investigation revealed that the accused, about 14/15 days before the day of occurrence, had purchased organo phosphorus sold under the trade name of NUVAN from PW 13 Sanjay Kumar. a shop keeper at Chail on the pretext that the same was required for spraying to kill the flies and that on the fateful day finding the opportunity he forcibly administered the said poison to the deceased in order to kill her. During such forcible administration of poison the deceased sustained injuries on her face, lips and neck. Investigation further revealed that the deceased was being harassed and treated with cruelty on account of dowry by the accused and his parents.

(16.) After completion of the investigation, the accused alongwith his parents were sent up for trial for the offences under Section 302, 304-B, 314 and 498-A read with Section 120-B. Indian Penal Code.

(17.) The learned Sessions Judge, on consideration of the record, did not find any prima facie case against the parents of the accused. He. therefore, vide order dated 2/5/2001 discharged them of all the offences. In so far as the accused is concerned, the learned Sessions Judge vide the same order found a prima facie case for the offence under Section 302. Indian Penal Code, only against him. The accused, accordingly, was charged on 4/5/2001 for the offence under Section 302, Indian Penal Code, to which he pleaded not guilty and claimed trial.

(18.) The prosecution in support of its case examined eighteen witnesses in all.

(19.) The accused in his statement recorded under Section 313. Code of Criminal Procedure, did not deny the factum of the deceased having died due to poison. He denied having administered, forcibly or otherwise, the poison to the deceased. He also denied that the deceased was being harassed or treated with cruelty on account of dowry. He pleaded that the deceased had disclosed to him that she had consumed some drug and had asked him to give her salty water. The deceased on account of consumption of some drug was having convulsions. He had given salty water to the deceased in order to enable her to vomit. He had carried the deceased in his own car firstly to the hospital at Chail and then to I.G.M.C. Hospital. Shimla. The accused further stated that the deceased was a sensitive lady. She was an asset to him. His relations with the deceased were loving and cordial.

(20.) Three witnesses were examined in defence by the accused to prove the salary being drawn by the deceased, his attendance sheet for the month of May 2000 at the place of his posting and that he got the deceased admitted at I.G.M.C. Hospital, at Shimla.

(21.) The learned Sessions Judge, on the basis of the evidence coming on record, came to the conclusion that a case for the offence under Section 302, Indian Penal Code, stood proved against the accused beyond doubt. He, accordingly, convicted and sentenced the accused as aforesaid, hence, the present appeal by the accused assailing the conviction and sentence recorded against him by the learned trial Judge.

(22.) We have heard the learned counsel for the accused and the learned Additional Advocate General for the State and have also gone through the record of the case.

(23.) There is no denying that the deceased had died an unnatural death due to poisoning. An unnatural death may be suicidal, homicidal or accidental. Therefore, the first question which arises for determination is whether the death of the deceased was homicidal. Once the death of the deceased is found to be homicidal, the second question that would arise would be whether such homicidal death of the deceased was caused by the accused.

(24.) There is no direct evidence with regard to the administration of poison by the accused to the deceased. In the present case, the case of the prosecution is based on circumstantial evidence. It is by now well established that in a case based on circumstantial evidence, the Court can record conviction but before doing so it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused.

(25.) In Tanviben Pankajkumar Divetia v. State of Gujarat the Honble Supreme Court in the case based on circumstantial evidence has also cautioned the Courts as under: the Court has to be watchful and avoid danger of allowing suspicion to take the place of legal proof for some-times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions.

(26.) The above caution was again re-iterated in Sudama Pandey and others v. State of Bihar. PW 2 Dr. O.P. Chaudhary, who had examined the deceased at the first instance at Civil Hospital Chail, at about 6 A.M. on 26/5/2000 on the deceased having been brought to him by the police with the history that the deceased had consumed some poison at home, though in his examination-in-chief stated that the injuries as referred to above indicated positively the administration of poisonous substance forcibly to the victim aforesaid, during the course of cross- examination, he could not give a positive opinion in this regard and has deposed: The present case could be a forcible administration of poison to the victim or it could also be a case of voluntary consumption of the poison by the victim to commit suicide.

(27.) PW 3 Dr. Piyush Kapila who had carried out the post mortem of the deceased, has deposed in his examination-in-chief as under: Such type of injuries could be found on the victim in cases of smothering, strangulation and forcible administration of forcible poison.

(28.) No definite opinion was however given by him whether there has been a forcible administration of Posion to the deceased. During the course of cross-examination. PW 3 has admitted as follows:

(a) The history given to him was that the victim was thrashed, beaten by her husband on the intervening night of 25th and 26th of May, 2000 and thereafter she consumed the poison; (b) He cannot rule out the possibility of the victim having committed suicide by herself. (c) The deceased was young and healthy. It was difficult for the assailant to forcibly administer the poison single handedly to a young and healthy lady like the deceased.

It is also significant to note that the first version given out to the police and the Doctors examining the deceased was that the deceased had consumed some poisonous substance. As stated above, PW 7 Om Parkash had given the information to the police at about 4.30 A.M. on telephone that Dr. Suman Lata who lives in my building has consumed some poisonous substance, as is evident from Ex.PJ. Copy of the report recorded in the daily diary. On the deceased having been taken to Chail Hospital by the police for medical examination and treatment, PW 2 Dr. O.P. Chaudhary was given the history by the police that the deceased had consumed some poisonous substance at home. This fact was duly incorporated by PW 2 in the Medico Legal Certificate Ex.PB issued By him in the following terms: Patient was brought by the police in semi conscious position with history of consumed some poisonous substance at home.

(29.) Ex. PL is the inquest report prepared by PW 17 Head Constable Biru Ahmad at I.G.M.C. Hospital. Shimla in the presence of PW 9 Ram Kishan (the father of the deceased) on 27.5.2000. While giving the brief description of the case, following facts have been detailed therein:

(i) on the night intervening 25/26-5-2000 deceased Suman Lata had consumed some poisonous substance; and (ii) On investigation it was found that during the night of 25.5.2000 deceased Suman Lata was given beatings by Rajiv Jassi, who aggrieved with the beatings consumed some poisonous substance.

(30.) PW 6 Dayal Singh has stated that PW 10 Shiv Kumar had disclosed to him that the deceased had consumed some poisonous substance. Similarly PW 12 Harbhajan Singh has deposed that PW 6 had told PW 8 Anil Kumar that the deceased had consumed poison and she was lying unconscious.

(31.) The case came to be registered on the basis of the report of PW 8 Anil Kumar vide F.I.R. Ex.PF on 27/5/2000 at about 12.45 P.M. as stated above, for the offences under Section 306 and 498-A, Indian Penal Code, thereby indicating that the deceased had committed suicide on having been abetted to do so due to the cruel treatment by the accused.

(32.) One of the circumstances relied upon by the learned trial Judge in coming to the conclusion that the deceased had died a homicidal death in the presence of injuries on the person of the deceased. The learned trial Judge in paras 36 and 37 at pages 13/14 of the impugned judgment has observed as under:

36. The injuries noticed by these Doctors was the result of the forcible administering of poison by the accused to his wife, Dr. Suman Lata. These injuries were caused in that process when the accused succeeded to poison her forcibly in the dead hour of the night inside the bolted room. These Doctors have maintained that forcible poisoning to the victim could not be ruled out keeping in view the injuries received by her.

37. In fact the injuries as suffered by the victim on her lips, chin, throat and neck could be caused by the accused while subjecting her to forcible administration of poison. The nature of the injuries and parts of the body on which sustained or received suggest that this was an act caused by accused while over-powering her to administer forcible poison. No other view can be drawn or taken if the injuries referred to above are analysed in the probable human conduct at a given situation.

(33.) The injuries found on the person of the deceased by PW 2 Dr. O.P. Chaudhary and PW 3 Dr. Piyush Kapila have been detailed above. PW 2 who had examined the deceased initially found only two injuries on the person of the deceased, namely, a contusion over the lateral side of right eye brow and, both the lips were swollen. However, as many as six injuries were found on the person of the deceased by PW 3. How the injuries increased from two to six? Admittedly, the deceased was under the charge and care of the police right from the moment she was shifted from her residence to Civil Hospital and then to I.G.M.C., Shimla. where she breathed her last.

(34.) It was contended by the learned counsel for the accused that the injuries found on the person of the deceased were not as a result of forcible administration of poison but due to the convulsions the deceased was having as a result of consumption of poison by her. In support of the contention the learned counsel for the accused has drawn our attention to the statement of PW 2 Dr. O.P. Chaudhary. who has deposed as under: In initial stages the consumption of organo phosphorus leads to extensive convulsions by the patient. This is correct to say that during these convulsions if the patient yet struck against a hard object, he or she would get injuries on the body. The convulsions may continue for half an hour from the consumption of poison. The convulsions depend upon the quantity of consumption of poison. If lethal dose is taken the tenure is short. In sub lethal dose the tenure may be longer.

(35.) On the other hand, the learned Advocate General contended that the story of the deceased having suffered convulsions and sustained injuries due to such convulsions, stands belied by PW 3 Dr. Piyush Kapila, who has categorically stated that there would be no convulsion in case of consumption of organo phosphorus by the victim.

(36.) According to Stedmans Medical Dictionary, convulsion means a violent spasm, which may also be hysterical.

(37.) In Dr. K.S. Narayan Reddys Medical Jurisprudence and Toxicology. 1st Edition. Chapter 35 dealing with Agricultural poison like organo phosphorus, the poison involved in the present case, at page 539 it has been reported as under: ... They have three distinct toxic actions.

(1) A muscarine-like effect which potentiates postganglionic parasympathetic activity and affects pupils, bronchial muscles, salivary and sweat glands (stimulated), urinary bladder (contracted), cardiac sinus node (blocked). (2) Nicotine-like stimulation followed by paralysis of preganglionic and somatic motor nerves, causing twitchings of the eyelids, tongue and facial muscles followed by neuromuscular block and paralysis. (3) Central nervous system stimulation followed by depression causing headache. giddiness, restlessness, apprehension, tremors, ataxia. insomnia, coma and death.

Signs and Symptoms: Onset of systemic symptoms is most rapid following inhalation, and least rapid following absorption from the skin. With massive ingestion or inhalation, symptoms may begin within five minutes, or may be delayed, for half to one hour and are at a maximum in 2 to 8 hours. Signs and symptoms appear when the cholinesterase level drops to 3O% of its normal activity. The respiratory or gastroiatestinal symptoms are more marked depending on the route of entry.

(I Muscarinic manifestations: These symptoms can be easily remembered by the acronym SLUDGE: Salivation. lachrymation, urination, defaecation, gastro-intestinal distress, and emesis. (1) Bronchial tree: Bronchoconstriction, increased bronchial secretions. dyspnoea, cyanosis, pulmonary oedema. (2) G.I : Anorexia. nausea, vomiting, cramps, diarrhea, faecal incontinence. tenesmus. (3) Sweat glands: Increased swea-ting. (4) Salivary glands: Increased salivation. (5) Lacrimal glands: Increased lacrimation (6) C.V.S.: Bradycardia, hypotension. (7) Pupils: Miosis, occasionally unequal or dilated. (8) Ciliary body: Blurred vision. (9) Bladder: Urinary incontinence. (II) Nicotinic manifestations: (1) Striated Muscle: Muscular fasciculations, cramps, weakness, are flexia. muscle paralysis. (2) Sym-pathetic ganglia: Hypertension. tachycardia, pallor, mydriasis. (III) CNS manifestations: Restlessness, emotional lability, headache, tremor, drowsiness, confusion, blurred speech, ataxia, generalized weakness, coma, convulsions, depression of respiratory and cardio-vascular centres. Mild poisoning: Signs and symptoms are: nausea. malaise, fatigue, minimal muscle weakness. cramping without diarrhea. Moderate poisoning: SLUDGE, and/or tremors. weakness, fasciculations, confusion, letharary. anxiety. Severe poisoning: SLUDGE, and respiratory insufficiency, weakness. fasciculations. coma. paralysis, seizures, autonomic dysfunction.

(38.) Similarly Modi dealing with Pharmacological action of organophosphorus compounds in his work Medical Jurisprudence and Toxicology Twenty Second Edition, in Chapter III of Section II at pages 86 and 87 has observed: The organo-phosphate compounds are absorbed from the skin, respiratory and gastrointestinal sys-tem. Its site of activity is considered to be at the myoneural junctions and synapses of the ganglions. Chemically, it interferes with the activity of enzyme acetyl cholinesterase in inhibiting its action on acetyl choline. Its action resembles that of physistigmine and neostigmine. The main effects of accumulated acetyl choline are:

(a) Muscarine Like Effect Muscarine like effect on most of the organs/systems supplied by post ganglionic parasympathetic nerves, showing anorexia, nausea, vomiting, abdominal cramps, colic sweating, salivation, bronchial spasm and profuse bronchial secretion. pupilary contraction, defective vision and cyanosis. Restrosternal pain, bradycardia, hypotension may not be uncommon. (b) Nicotine-Like Effect Stimulation of nicotinic receptors at sympathetic and parasympathetic ganglia and at the neuro muscular junction will occur. This will be followed by depression. Nicotinic stimulation and depression may be giving rise to various symptoms like arrhythmia, tachypnoea fasciculation. Twitching and paralysis of skeletal muscles. (c) Effect on the Central Nervous System As muscarinic and nicotinic receptors, the central nervous system is also affected by symptoms like giddiness, restlessness, tremors ataxia. disorientation, coma and death. (d) Blood-Porphyrinuria Blood-porphyrinuna resulting in ehromoiacryorrhoea-shedding of red tears due to accumulation of porphyrin in the lachrymal glands occurs. According to route of entry, the respiratory or gastrointestinal symptoms are more marked. Early headache. nausea, giddiness, anorexia, tightness of chest, oppression. dimness of vision, miosis twitching of the eye muscles, tremulous tongue and profuse frothing. Late vomiting. sweating, salvation, oronasal froth, pallor, apprehension. incordination. twitching of voluntary muscles accompanied by severe muscular weakness, mental con-fusion, diarrhea. tenesmus, delirium, weakness and paralysis of respiratory muscles, areflexia. incontinence, bronchospasm, cynosis, pulmonary oedema, convulsions, coma and death may follow. Paralysis of limb muscles as a sequel has been reported.

(39.) The fact that the deceased was having convulsions also finds support from PW 7 Om Parkash. who has stated that the deceased was trembling. Her condition was critical and she was writhing in pain.

(40.) In view of the convulsions the possibility of the deceased having sustained the injuries, which were of minor nature, during such convulsions cannot be ruled out. This possibility is strengthened from the fact that the number of the injuries had increased during the period the deceased was examined by PW 2 and PW 3, especially in the absence of explanation by the prosecution as to how the number of injuries came to be increased.

(41.) In Mohan v. State of Uttar Pradesh, the Honble Supreme Court in the case of a murder by administering poison, has held that the prosecution has, alongwith the motive, also to establish that the deceased died of a particular poison said to have been administered; that the accused was in possession of that poison; and. that he had the opportunity to administer the same to the deceased.

(42.) The above ratio was reiterated in Ramgopal v. State of Maharashtra and it was held: Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question? (secondly) had the accused the poison in question 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 that these facts are all proved that the Court may be able to draw the inference that the poison was administered by the accused to the deceased resulting in his death.

(43.) Again in Sharad Birdhichand Sarda v. State of Maharashtra. while dealing with the case of death by poisoning of a newly married bride, the Honble Supreme Court held: 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 poi-son said to have been administered. (3) that the accused had the poison in his possession. (4) that he had an opportunity to administer the poison to the deceased.

(44.) In the said case, the prosecution was able to prove only two ingredients, namely, that the deceased had died of potassium cyanide and that the accused had an opportunity to administer the poison. The Honble Supreme Court accordingly gave the benefit of doubt to the accused and acquitted him of the offence of murder.

(45.) Similarly, in the present case, the prosecution can be said to have been able to prove only two ingredients, that is. the deceased died of organo phosphorus poison and that the accused had an opportunity to administer the same. The prosecution has miserably failed to prove that such poison was in possession of the accused and that he had a motive to kill the deceased.

(46.) As per the prosecution case, the deceased was being ill-treated, harassed and treated with cruelty by the accused on account of dowry.

(47.) It is significant to note, as stated above, that the accused alongwith his parents was sent up for trial initially for the offences under Section 302, 304-B, 314 and 498-A read with Section 120-B of the Indian Penal Code. The accused as well as his parents were discharged of the offences under Section 304-B, 314 and 498-A read with Section 120-B, Indian Penal Code by the learned Sessions Judge vide order dated 2/5/2001. The parents of the accused were also discharged of the offence under Section 302, Indian Penal Code. Since no case under Section 498-A or Section 304-B, Indian Penal Code was found against the accused, and he stood discharged of such offences, the prosecution cannot be now permitted to contend that the motive of the accused to kill the deceased was dowry or that the deceased was being ill-treated, harassed and treated with cruelty on account of dowry. There is no evidence to show that besides dowry, the accused was having any other motive.

(48.) In so far as the question of the accused having the possession of the poison is concerned, the only evidence coming on record is in the form of statement of PW 13 Sanjay Kumar. a 2004 Page 11 of 16 shopkeeper of Chail. This witness has deposed that the accused about 14/15 days before the death of the deceased had purchased the poison NUVAN from his shop for a sum of Rs. 50.00. In cross-examination he has deposed that the accused had come to his shop during mid-day either of 5th or 8th of May. 2000.

(49.) There is no denying that the accused at the relevant time was serving as a Doctor in the State of Punjab and was posted at Primary Health Centre, Gharaun. District Ropar. Ex. DC is the original attendance register being maintained at such Primary Health Centre. A perusal of the same shows that the accused was present on duty at the Primary Health Centre on both the days, that is, 5th and 8th of May, 2000.

(50.) If the accused was present on duty, the statement of PW 13 that the deceased visited his shop during the mid-day of either 5th or 8th of May, 2000 and had purchased NUVAN from his shop cannot be believed.

(51.) The Hon ble Supreme Court in Anant Chintaman Lagu v. The State of Bombay has observed that a case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence, and his preparations for commission of the offence are also secret. The greater his knowledge of poisons, the greater secrecy, and consequently the greater the difficulty of proving the case against him.

(52.) The accused, in the present case is a medical Doctor. He has the knowledge of poisons. There are numerous poisons which can be conveniently and surreptitiously administered to the victim without his/her knowledge. The accused, had he the intention to administer poison to the deceased, would not have purchased the poison at Chail and that too from a person known to him. He was serving in District Ropar in the State of Punjab and as such was having all the opportunities to purchase or acquire poison from a place where he was not known. Besides, being a man from medical profession having knowledge of various types of poison would have selected! chosen such type of poison which could have been conveniently and surreptitiously administered to the deceased without her knowledge and without there being the need for use of any force. He would not have chosen organo phosphorus poison like NUVAN a pesticide which has a pungent smell like kerosene.

(53.) The manner in which the accused is shown to have conducted himself, as per the evidence coming on record, also points out towards his innocence. He was having all the opportunity to run away before the arrival of the witnesses. He was also having the opportunity to remove/destroy the empty bottle of NUVAN. No such thing was done by him. Rather it appears that he was trying to and in fact gave first aid to the deceased by giving/administering her salty water in order to enable her to vomit. Evidence has come on the record in the form of statement of various witnesses of the prosecution itself that the bed on which the deceased was found lying was wet. The clothes of the deceased were also drenched with water and there was water on the floor. All this indicate that gastric levage was carried out by the accused to save the deceased. Not only this the accused had accompanied the deceased firstly to Chail Hospital and then to I.G.M.C., Hospital, Shimla and got her admitted there as is evident from Ex. DD. the medical record of the Hospital.

(54.) Reliance w:as also placed by the learned Additional Advocate General on the evidence of PW 6 Anil Kumar, PW 10 Shiv Kumar and PW 9 Ram Kishan, who have stated that when they had asked the deceased, she had raised her hand to-wards the accused. It was thus contended that by the action the deceased had pointed out an accusing finger towards the accused.

(55.) It is in the statements of PW 4 Ved Prakash. PW S Surinder Kumar as well as PW 6 Dayal Singh that when they entered the room of the deceased, they heard the deceased saying that she did not want to die and that she be saved and that salty water be given to her. PW 6 Dayal Singh has gone even to the extent of saying that the deceased had given him the telephone number of her parents at Mohalli and that he had then informed the parents of the deceased. The depositions of PW5 4, 5 and 6 show that the deceased was not only in full senses but was also able to speak. She was in senses to the extent that she was even remembering the telephone number. If she was in such state, then whey she did not name the accused as responsible for administration of poison to her when she was asked by these witnesses as to what had happened. There was no occasion for her merely lifting her hand towards the accused. It appears that the story of the deceased having raised her hand towards the accused has been introduced as an afterthought.

(56.) PW 17 Head-Constable Biru Ahmad, who had gone to the spot on receiving the information from PW 7 Om Parkash about the deceased having consumed some poisoness substance, has categorically stated that when he reached the spot at about 4.40 AM the deceased was found lying unconscious on her bed. If the deceased was unconscious, as stated by PW 17, then the story put forth by PW5 8, 9 and 10 that on being asked the deceased had raised her hand towards the accused stands falsified.

(57.) The conduct of PW 8 Anil Kumar, brother of the deceased, is also not free from doubt. He has deposed in the following terms: I joined my sister at Chail on 23/5/2000. On 25/5/2000 at midnight about 12 a.m. the accused came there while being dead drunk. On his arrival there, he started abusing and beating my sister. He gave a leg kick on the abdomen of my sister. I refrained him from doing so. Upon this accused pounced upon me also and gave me beating on my face, neck and throat. I tolerated him but told him blankly that I will not allow him to beat my sister. The accused finally turned out me from the house. I went to the premises of one Bablu who was known to me and stayed there. It was a wine shop-cum-store room where I stayed.

(58.) It cannot be believed that PW 8, the brother of the deceased, would have conducted himself in the manner he is shown to have conducted. If beatings were being given to his sister (the deceased) by the accused and he was also turned out of the house after having been beaten, he would not have quietly gone to stay with a friend. In normal and ordinary course he would have gone to the police or at least sought some help from the neighbourers.

(59.) The statement made by PW 8 about his having been thrown out of the house by the accused is an improvement over the first version given by him to the police in his statement Ex. PF recorded under Section 154, Code of Criminal Procedure. In such statement. PW 8 has stated that on thinking that the accused was annoyed with his visit, his sister asked him to leave her house. Whereupon he went to the house of his friend. Thus. there is a material contradiction in the two statements of PW 8, that is in the Court and the one made to the police.

(60.) None of the prosecution witnesses either knew PW 8 or as to the fact where he was staying on the night of occurrence. PW 12 Harbhajan Singh. with whom PW 8 is alleged to have stayed on the night of occurrence at Chail has deposed that in the morning at about 4AM PW 6 Dayal Singh came to call PW 8 and took him along by telling him that his sister had consumed poison and was lying unconscious.

(61.) On the other hand. PW 6 Dayal Singh has deposed that he did not know the brother of the deceased and had seen him only on that day in the early hours of the morning. PW 6 nowhere stated that he had gone to the house of PW 12 Harbhajan Singh to inform and call PW 8 Anil Ku mar.

(62.) PW 8 Anil Kumar has a different story to tell. He has stated: In the morning of 26/5/2000 I heard Dayal Singh talking about my sister and accused, on which I rushed to the house of my sister. Ved Parkash. Om Parkash. Dayal Singh and others have already-assembled there.

(63.) There is nothing in the statement of PW 8 as to whom PW 6 Dayal Singh was talking about his sister and the accused and if so, where. As per PW 8 himself when he reached his sisters house, Dayal Singh was already there. If Dayal Singh was already present in the house of the deceased when PW 8 reached there, the version of PW 12 that PW 6 Dayal Singh had come to call PW 8 and took him along stands belied.

(64.) The police had arrived in the presence of PW 8 at the spot. PW 8, as per his own statement, had accompanied the police and the deceased firstly to the Hospital at Chail and then to I.G.M.C., Hospital Shimla. No attempt appears to have been made by PW 8 to inform the police till the making of the statement Ex. PF on 27/5/2000 at 12.45 PM either about the fact that the deceased was given beatings by the accused or about the forcible administration of poison to the deceased by the accused. He appears to have remained quiet till the deceased died. He even did not tell the police about the beatings alleged to have been given to him by the accused. None of the witnesses of the prosecution also appears to have noticed the injuries on his person.

(65.) Though as per the prosecution case, PW 8 was subjected to medical examination on 27/5/2000 at about 1.20 PM. neither the medico legal certificate Ex. PA issued by PW 1 has been connected to PW 8 nor PW 8 states that he was subjected to medical examination and that the same was carried out by PW 1 Dr. R.K. Sharma. Even the two Investigation Officers of the case, namely PW 17 Head Constable Biru Ahmad and PW 18 Sub Inspector Shamsher Singh have not deposed about the medical examination of PW 8 or the injuries found on his person.

(66.) Thus, the story put forth by the prosecution regarding PW 8 Anil Kumar about his presence at the spot is not free from doubt.

(67.) The poison involved in the present case is Organo Phospohorus, a pesticide being sold under the brand name of NUVAN. It is in evidence of the prosecution itself that it was in liquid form of blue colour. It had a foul and pungent smell like kerosene. It leaves behind stains if falls on clothes.

(68.) PW 2 Dr. O.P. Choudhary has deposed that in the case of forcible administration of poison, the victim would try to spit it out.

(69.) Besides, in the case of forcible administration of poison, there would be likelihood of the poison spilling on the clothes and body of the victim.

(70.) The clothes of the deceased were taken into possession by PW 3 Dr. Piyush Kapila at the time of post mortem and the same were handed over to the police in a sealed parcel. PW 18 Sub Inspector Shamsher Singh, the Investigation Officer, has deposed that the clothes of the deceased were sent by him to the Forensic Science Laboratory for examination. However, no report of the examination of clothes of the deceased has been produced and proved on record to show if there were any stains or traces of poison thereon. A material evidence has thus been withheld by the prosecution and as such an adverse inference has to be drawn to the effect that neither stains nor traces of poison were found on the clothes of the deceased.

(71.) Even otherwise, the evidence of the prosecution regarding sending of the clothes of the deceased to the Forensic Science Laboratory is self contradictory. PW 15 Bhupender Kumar the Moharrer Head Constable of Police Station Kan-daghat has deposed that ten sealed packet pertaining to the present case were deposited with him on 27/5/2000 by Head Constable PW 17 Biru Ahmad. All such ten sealed packets were sent by him on 31/5/2000 under Road Certificate No. 47/2000 to the to the Forensic Science Laboratory through constable Medh Ram.

(72.) PW 14 Constable Medh Ram, on the contrary, has deposed that on 31/5/2000 he had carried five sealed packets, namely, two sealed bottles, two sealed packets and another sealed bottle to the Forensic Science Laboratory, Junga which he had delivered on the same day.

(73.) Exts. PN and P0 are the two reports of the Forensic Science Laboratory. A perusal of the same shows that seven sealed packets pertaining to the present case were received in the Laboratory and the contents thereof were examined and analysed. None of these seven packets contained the clothes of the deceased.

(74.) As per the post mortem report Ex. PC, the clothes of the deceased consisted of Printed blue/white saiwar and shirt, and one brassiere. As per the note appended by PW 3 Dr. Piyush Kapila none of these clothes was torn. This also rules out the use of force in the administration of poison.

(75.) In Kali Ram v. State of Himachal Pradesh, it has been held by the Honble Supreme Court: One of the cardinal principle which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The court may of course, presume, as mentioned in Section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself. Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within straitjackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted Rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of

that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations (76.) The above principle was reite-rated in Sharad Birdhichand Sarda v. State of Maharashtra (supra). (77.) In State of Punjab v. Jagir Singh Baijit Singh and Karam Singh the Honble Supreme court has observed that a criminal trial is not like a fairy tale wherein one is free to give flight to ones imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of the crime, the court has to judge the evidence by the yardstick of probabilities its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex fade trustworthy on the grounds which are fanciful or in the nature of conjectures. (78.) Further in Shivaji Sahebrao Bodade and another v. State of Maharashtra it has been observed by the Honble Supreme Court as follows: Certainly it is primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between may be and must be is long and divides vague conjectures from sure conclusions. (79.) It was contended by the learned Additional Advocate General that considering the hour of the day and the factum that the deceased had died due to poisoning and no other explanation coming forth from the accused, question of the accused escaping the liability of murder does not and cannot arise. (80.) We find ourselves unable to lend our concurrence to the aforesaid submission of the learned Additional Advocate General. While it is true that the accused being the husband and companion of the deceased in the bedroom ought to be able to explain as to the circumstances but under the law there exists an obligation on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Criminal jurisprudential system of the country has been to that effect and there is neither any departure nor any escape therefrom. (81.) The contention raised by the learned Additional Advocate General that the deceased was having no reason or cause to commit suicide is also without any merit. It is in the evidence of the prosecution itself that the deceased was suspecting that the accused was having illicit relations with his step mother. PW 9 Ram Kishan. the father of the deceased, has deposed in his examination-in-chief as under: My daughter Dr. Suman Lata earlier disclosed to me that her husband has illicit relations with his step mother. (82.) The above fact was also put to the accused as a circumstance against him in his statement recorded under Section 313, Code of Criminal Procedure, vide question No. 6 in the following terms: It is further in prosecution evidence that the deceased Suman Lata disclosed to her father (PW 9) that you had illicit relations with your step mother. What have you to say (83.) Such fact was denied by the accused. In view of the fact that the deceased was having a suspicion about the illicit relations of the accused with his step mother, the possibility that unable to bear the same the deceased might have committed suicide cannot be ruled out. It is not the case of the prosecution that the accused used to treat the deceased with cruelty since she was objecting to such alleged illicit relationship between the accused and his step mother or that the deceased was eliminated on this account. (84.) Considering the entire evidence coming on record in its totality we are clearly of the opinion that the prosecution has miserably failed to prove and establish that the death of the deceased was homicidal. At any rate, taking the worst view of the matter on the evidence in this case, two possibilities are clearly open (a) that it may be a case of suicide; or (b) that it may be a case of homicide and both are equally probable. Since two views are possible, one favourable to the accused and the other favourable to the prosecution, as per the law laid down by the Honble Supreme Court, the view favourable to the accused has to be accepted and the benefit of doubt has to be given to him. (85.) Resultantly, the present appeal is allowed. The conviction and sentence imposed upon the accused is set aside and he is acquitted of the offence under Section 302, Indian Penal Code. (86.) The accused, who is presently lodged in jail undergoing sentence be set at liberty forthwith, if not required in any other case. The amount of fine, if already paid, shall be refunded to the accused. Case property shall be dealt with as per order/directions of the learned trial court. Appeal allowed.