Rajbir Singh vs The State of Punjab

HELD:1.1 This is a murder case of circumstantial evidence by poisoning. In a case of circumstantial evidence, the five golden principles as laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra have remained unaltered and are still followed. One of the issues to be considered in the present case would be as to whether the chain of evidence was so complete so as not to leave any reasonable ground that there could be any other hypothesis except the one put forward by the prosecution. With respect to the case of poisoning, this Court in the case of Sharad Birdichand Sarda further laid down four important circumstances for recording a conviction. The principles laid down in the case of Sharad Birdichand Sarda have remained unaltered and even as recently as 11.08.2022 this Court in Criminal Appeal No.25 of 2012, Ram Niwas vs. State of Haryana, has relied upon the same with approval. It is also well settled that suspicion, howsoever strong it may be, cannot replace proof beyond reasonable doubt. [Paras 35, 37-39][95-G-H; 97-E-F; 98-B]

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Ram Niwas v. State of Haryana Decision of Supreme Court dtd. 11.08.2022 in Criminal Appeal No. 25 of 2012 – relied on.

1.2 The motive set up by the prosecution that appellant had taken a loan of Rs. 1 lakh and had executed a pronote as well as receipt is denied by the appellant. In his statement under section 313 CrPC, there is specific denial of borrowing any money and also executing of pronote. The defence set up in the crossexamination of PW-1, PW-2 and PW-7 as also the statement under section 313 of CrPC was that the informant was carrying on a business of Committees of which the appellant was a member and there was an amount due from the informant to the appellant. Running of business of Committees by the informant; there being defaulters; there being financial loss is admitted. According to the appellant, amount was due to him from the informant and that he had been falsely implicated to deprive him from recovering the same from the informant. A case of false implication, therefore, cannot be ruled out. Reliance placed upon the pronote and the receipt is also not proved in as much as the original was not produced, rather a false plea was raised that it was filed before the Civil Court, which stands belied by the Ex-D/1 filed by the appellant, and secondly, no attesting witness was produced by the prosecution. [Para 41, 42][98-D-F]

1.3 The next question which arises for consideration is as to whether mixing of the poisonous compound in the milk was done by the appellant or it could have been done by someone else, and for the same there are two windows. First, the time between the collection of milk from the appellant on the morning of the fateful day, till the time it was consumed by the deceased, was about five hours. Second window being the time after consumption of milk at around 12:30 PM on the fateful day, till the next day when the Investigating Officer recovered and took into possession the sample of milk and the utensils, which had a gap of about 20-24 hours. Total time gap from the time milk was collected from appellant till the samples were collected is more than 24 hours. Chances of mixing poison during this period cannot be ruled out. Defence had cross-examined both PW-1 and PW-2 on this aspect. The next question which arises for consideration is whether the death of deceased was caused due to consumption of organophosphorus, a poisonous compound or for any other reason. Organophosphorus has a strong pungent smell. This smell could not be sensed by the informant, his son as also the deceased. The milk which is said to be adulterated with the poison was taken out from the refrigerator, transferred into a pan for boiling and thereafter given to the deceased. If it actually had organophosphorus in it the smell would have filled up the room. The deceased being a healthy woman aged 45 years would not have consumed it if the pungent smell was coming from the milk. Even the informant (PW-1) did not sense any foul smell from the milk while boiling it. It would be worthwhile to refer to a judgment of this Court in Jaipal vs. State of Haryana. It was a case of aluminium phosphite (sulphas) which also has a strong pungent smell. It is observed that such compounds are generally used for suicide rather than in a case of homicide. Further, Dr. Avtar Singh (PW-4) who had conducted the autopsy has clearly stated in both his statements that he did not find any smell of organophosphorus coming out of the body. The first statement was recorded on 08.04.2002 and the second statement was recorded on 03.11.2003, in both the statements he had stated that he had not seen any change in colour of nails as also in the body, which would have been a common symptom in the case of poisoning. He had also deposed that all the organs of the body were healthy. Even though he admits in the case of poisoning by organophosphorus there would be shrinking of the muscles, however, there was no squeezing or shrinking in the outside muscles of the abdomen, which were healthy. According to him, there were no symptoms of poisoning noticed during the autopsy despite the fact that it was reported in all police papers about the case being that of poisoning. PW-4 must have been careful in observing whether any symptoms of poisoning were present in the body. This may lead to an inference that death could have been caused by some other reason but not poisoning. In so far as the chemical examination report is concerned it could be a case of tampering with the samples for the reasons discussed and hereinafter. [Para 43, 44][98-G-H; 99-A-H; 100-A]

Jaipal v. State of Haryana (2003) 1 SCC 169 : [2002]

2 Suppl. SCR 714 – relied on.

1.4 The presence of organophosphorus in the milk, utensils, and the viscera is proved by the Reports of Chemical Examiner dated 31.01.2001 (Ex-PF) and 05.02.2001 (Ex-PG). The sample was received in the laboratory on 22.09.2000, whereas as per the two reports, it was received by the Assistant Chemical Examiner, Dr. Sandeep Kakkar, on 22.11.2000 from one Dr. O.P. Goel after his suspension, not in a sealed form, but as an open case. This note “This opened case, received by me from Dr. O.P. Goel on 22.11.2000 after his suspension.” is typed out in both the reports after an overwriting /cutting is made by using alphabet “X” continuously. Ex-PF mentions that there were three sealed jars in the sealed parcel which contained parts of organs. This Ex-PF does not mention of any fourth jar, whereas as per the post-mortem report and the statement of Dr. Avtar Singh (PW-4), four sealed packets were sent, three containing parts of organs, and one containing the saline solution. The result refers to presence of organophosphorus compound in the three sealed jars and it also refers to no poison found in the contents of fourth jar. The fourth jar does not find mention in the description of contents in Ex-PF. The other report, Ex-PG of the Assistant Chemical Examiner, Dr. Sandeep Kakkar, is with respect to the recovery made by the Investigating Officer on the next day of the incident, which included milk, boiled and unboiled and the utensils. This also had a similar cutting, and a note attached that it was received as an open case from Dr. O.P. Goel on 22.11.2000 after his suspension. The result as reported is that organophosphorus compound was found in contents of all the Exhibit Nos. (i) to (vi). The following doubts arise from the perusal of the reports of the Chemical Examiner: i. That samples were not handed over to the Assistant Chemical Examiner who had to conduct the analysis in a sealed form. ii. The cutting, and a fresh note regarding parcels being open also creates a doubt. iii. Chances of tampering with the samples could not be ruled out. [Para 45, 46][100-B-H]

1.5 The Investigation Officer admits of having made no effort to find out as to whether or not the appellant was in possession of the poisonous substance said to be mixed in the milk. The Courts below have proceeded on the assumption that organophosphorous was available in every household. It is more than evident that chain of evidence has many missing and weak links. None of essential ingredients to record conviction in a case of circumstantial evidence and that of poisoning case are made out. Prosecution has thus failed to bring home the guilt. Taking an overall view of the evidence on record, this Court is of the firm view, that prosecution has not established the charge beyond reasonable doubt so as to record conviction under Section 302 of IPC. Both the courts below committed an error in recording conviction. The appellant deserves to be extended benefit of doubt. The judgments of the High Court and the Trial Court are set aside, the appellant is acquitted. He is already on bail. His bail bond is cancelled and sureties are discharged. [Paras 18, 4749][101-A-D]