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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 771 OF 2005

State of Himachal Pradesh                 … Appellant

        Vs.

Rajiv Jassi                 … Respondent

J U D G M E N T

ARUN MISHRA, J.

1. The State is in appeal as against the reversal of the judgment of the

trial court acquitting the respondent for commission of the offence under

section  302  IPC  by  committing  murder  of  his  wife  by  way  of

administering  poison.  The  respondent  was  imposed  life  imprisonment

and fine of Rs.5,000 by the trial court which has been reversed by the

appellate court.  

2. The prosecution case in brief is that the respondent Dr. Rajiv was

married to Dr. Suman Lata, daughter of Ram Kishan, PW9. The marriage

was performed on 25.4.1998. The incident took place on 26.5.2000. At

the  relevant  time  deceased  was  posted  as  Dental  Surgeon  at  Civil

Hospital,  Chail,  district  Solan;  whereas  the  accused  was  posted  as

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Medical  Officer  in  Primary Health  Centre,  Gharuan in  district  Ropar,

State of Punjab.  

3. Prosecution has alleged that the relationship between the deceased

and the accused became estranged due to demand of dowry and excessive

drinking habit of accused. Under the influence of liquor he used to beat

the  deceased.  On  23.5.2000  Anil  Kumar,  PW  8  brother  visited  the

deceased at Chail and stayed with her. In the intervening night of 25th and

26th May, 2000 the accused reached Chail where deceased was residing.

He was drunk and started  abusing,  kicking and beating  the  deceased.

When Anil Kumar tried to intervene he was also beaten by the accused

and was turned out of the house. On 26.5.2000 at about 3 a.m., Surender

Kumar, PW 5 came out for urination when he heard the shrieks and cries

of the deceased and extreme weeping of  her  child.  The deceased was

crying “Give me salty water. I do not want to die.” Surender Kumar went

to the house of the deceased. It was closed from inside. He informed Ved

Prakash,  PW 4 Ex-President of Chail  Gram Panchayat  as well  as Om

Prakash PW 7. All three of them went to the house of the deceased. Ved

Prakash knocked the door of the house which was bolted from inside.

None opened the door  for  sometime,  after  about  5  minutes  door  was

opened by the accused.  On entering the room, PWs.4,  5  and 7 smelt

poisonous odour in the room. The articles in the room were scattered. The

deceased was lying on the bed having bruises and contusions on her face.

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Water was splashed on the bed as well as on 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.  However  the  accused

replied that there was no necessity therefor and that deceased would be

all right very soon.

4. Prosecution has alleged that in the meantime Dayal Singh, PW 6,

Anil Kumar, PW-8 and Shiv Kumar, PW-10 also arrived. They noticed

the  condition  of  the  room  and  also  the  precarious  and  deteriorating

condition  of  the  deceased.  When  they  asked  the  accused  what  had

happened, he retorted that it was his private life and they need not bother.

The accused refused to take the deceased to the hospital on the pretext

that nothing had happened and he himself being a doctor could look after

her. PWs.6, 8 and 10 also smelt poisonous odour in the room. Deceased

was crying that she did not want to die and she be saved. On being asked

what  had  happened,  she  raised  her  hand  towards  the  accused.  Om

Prakash,  PW-7  informed  the  police  at  about  4.30  a.m.  On  that  Biru

Ahmad, PW-17 entered the information in the daily diary and proceeded

towards  the  spot.  He  found  the  deceased  lying  on  the  bed  in  an

unconscious position. Dr. O.P. Choudhary, PW-2, examined the deceased

at about 6 a.m. and noted the patient was semi-conscious with history of

consumption of poisonous substance. He also noted (i) contusion reddish

in colour over the lateral side of the right eye brow with swelling present

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of the size of 7 cm. x 5 cm. and (ii) both lips were swollen. It was also

noted that complete examination of the body could not be done because

patient  was  in  serious  condition.  B.P. was  not  recordable  and  Pupils

bilateral circular, pin point not reacting to light.  

5. PW-2  administered  the  initial  treatment.  He  carried  out  Gastric

lavage  first  with  saline  solution  and  then  with  ordinary  tap  water.

Thereafter he referred the deceased to I.G.M.C. Hospital, Shimla at about

7 a.m. for expert opinion and further treatment. Deceased died at IGMC

Hospital, Shimla on the same day in the evening of 26.5.2000 which was

informed to the police. Post mortem was conducted by Dr. Piyush Kapila,

PW-3 in association with Dr. V.K. Mishra, Assistant Professor, Forensic

Medicine. As to the cause of death it was opined that the deceased had

died  due  to  asphyxia  secondary  to  the  organo  phosphorus  poison.

Following ante-mortem injuries were found on the person of the deceased

:

“(i) 10 cm x 6 cm bruise on the right periorbital 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 intraorbital area and cheek on left side. (iii) ½ cm x ½ 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.

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(vi) 10 cm x 4 cm contusion in infra-axillary 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 (latrogenic).”

In addition it was found in the post mortem report that there was a dead

male foetus 40 cm. in length with head circumference of 29 cm. with

body weight of 1300 gms. present in the uterus of the deceased and he

calculated the age of foetus as 8 months.  

6. On  27.5.2000  Anil  Kumar,  PW-8  lodged  a  report  at  the  Police

Station mentioning the harassment caused by the accused to the deceased

for dowry. It was mentioned that he talked with in-laws and was informed

that the accused was coming to Chail in the evening. In the midnight at

about  12,  accused reached Chail  in  his  Santro car. He was under  the

influence of liquor and was carrying a bottle of liquor in his hand and

started  abusing  them  and  gave  a  kick-blow  on  the  abdomen  of  the

deceased who was pregnant.  When he tried to  stop,  accused pounced

upon them due to which he received scratches and swelling on face. Then

his sister asked him to leave. Thereafter he went to the house of his friend

Bablu. Later on two/three persons came. They called Bablu and enquired

about him and told that the condition of his sister was not good. Then he

rushed to the residential quarter of his sister and found accused Rajiv

who opened the door and the condition of his sister was precarious. His

sister  was  having  a  son  aged  13  months.  He  suspected  that  his

brother-in-law Rajiv had forcibly administered poison with intention to

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kill his sister. Death had occurred due to mal-treatment by the accused

and action be taken against him.  

7. The investigation revealed that 14-15 days before the occurrence

the accused had purchased organo phosphorus sold under the trade name

of “NUVAN” from Sanjay Kumar, PW-13, a shopkeeper at Chail on the

pretext that he required the same to kill the flies. It was also alleged by

the  prosecution  that  on  the  fateful  day  accused  forcibly  administered

poison  to  the  deceased  in  order  to  kill  her.  During  the  course  of

administration of poison deceased struggled as such sustained injuries on

her face, lips and neck. Deceased was being harassed and treated with

cruelty on account of demand of dowry by the accused and his parents.

Chargesheet  was filed under sections 302,  304-B,  314 and 498A read

with section 120-B IPC.           

8. The  accused  abjured  the  guilt  and  pleaded  innocence.  The

prosecution in the course of trial examined 18 witnesses. Accused in his

statement  under  section  313  Cr.PC  did  not  deny  the  factum  of  the

deceased  having  died  due  to  poison.  It  was  stated  by  him  that  the

deceased had disclosed to him that she had consumed some drugs and

had asked him to give her salty water. Deceased was under convulsion

due to some drug. He had given her water to vomit. He had taken the

deceased firstly to Primary Health Centre at Chail and then to I.G.M.C.

Hospital at Shimla. Deceased was a sensitive lady. His relationship with

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the deceased was cordial. He examined 3 witnesses in defence.  

9. The  trial  court  acquitted  the  parents,  however  convicted  the

respondent  husband  for  commission  of  the  offence  under  section  302

IPC.    

10. The  trial  court  came  to  the  conclusion  that  the  circumstantial

evidence brought on record contained positive proof, credible sequence

of events, factual truth linking the accused with commission of offence

by means of forcible administration of organo phosphorus poison to the

wife. The trial court based conviction upon the following circumstances :

(i)  Relied  upon  the  statements  of  PWs.6  and  11  regarding

consistent  mal-treatment,  beating  and  thrashing by the  accused  to  the

victim.  (ii)  Landlord  Dayal  Singh  has  stated  that  while  in  a  state  of

intoxication accused used to beat the victim and quarreled with her. On

that he had asked him to vacate the house. Then the accused had shifted

to the house in question. (iii) Accused was maintaining his criminality

consistently. The conduct of the accused on the fateful night indicates that

he came to the house and started beating and hitting Anil Kumar PW-8

and his deceased sister. (iv)  He kicked on the abdomen of the victim

though she was pregnant. Abdominal swelling was found by the Atopsy

Surgeon Dr. Piyush Kapila, PW-3. (v) On the fateful night the accused

had turned out the brother of the deceased PW-8 from the house at Chail

after beating him. PW-8 suffered three injuries in the form of multiple

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scratches  over  neck,  chin,  face  and  other  parts  of  the  body. (vi)  the

accused was present  in the room of the deceased.  (vii)  The nature of

injuries  which  was  found  on  the  person  of  the  deceased  were

ante-mortem. All injuries were on the front portion of the body and could

be caused while she was lying on the bed. Such injuries could be found in

cases  of  smothering  and  strangulation  and  forcible  administration  of

poison. The injuries suffered by the victim on her lips, chin, throat and

neck could be caused by the accused while administering poison forcibly.

(viii) The accused did not open the door immediately but opened it after

considerable  time  of  five  minutes.  (ix)  The  accused  did  not  take  the

deceased to the hospital and stated that nothing had happened to her and

that she would be alright very soon. It was the duty of the accused being

a doctor to immediately rush her to the hospital. The accused wanted the

victim to breathe her last and thus delayed taking her to the hospital. It

was not a case of self-poisoning considering the nature of injuries found

on the deceased. (x) The domestic articles and luggage were scattered in

the room. Child was crying and his small empty bottle which contained

the  organo phosphorus  poison was found lying there.  Its  cap  used as

stopper was also lying and a pungent poisonous odour was present in the

room.  (xi)  When the witnesses asked what had happened to her, the

victim had raised her hand towards the accused. Thus the victim raised

her  accusing finger  towards  the  culprit  that  is  her  husband.  (xii)  The

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accused had purchased the organo phosphorus from the shop of Sanjay

Kumar, PW-13, 14-15 days before the date of the incident for a sum of

Rs. 50/-. There was no necessity for the accused to purchase the same to

kill flies. He purchased the same with design to cause end of the life of

the victim.   (xiii)  Considering the nature of injuries found on the body

of the victim they could not have been caused by convulsion.

11. The  High  Court  has  acquitted  the  respondent  by  the  impugned

judgment  and  order  on  the  ground  that  the  circumstances  are  not  of

conclusive  nature.  Chain  of  circumstances  is  not  complete  so  as  to

unerringly point to the guilt of the accused. Though Dr. O.P. Choudhary,

PW-2  stated  that  injuries  indicated  positively  the  administration  of

poisonous substance forcibly to the victim, however, he could not say

whether the deceased had consumed the poison herself to commit suicide.

Similar was the statement of Dr. Piyush Kapila, PW-3. His statement was

also disbelieved on the ground that he could not rule out the possibility of

the victim committing suicide by herself. The first information given to

the police was that the victim had consumed some poisonous substance.

Initially  the  offence  under  sections  306 and 498A was registered.  Dr.

Chaudhary, PW-2 had noticed  only  two injuries  on  the  person  of  the

deceased. However, the injuries increased from 2 to 6 in the post mortem

report  submitted  by  Dr.  Piyush  Kapila,  PW-3.  The  possibility  of  the

injuries could be caused by convulsions was not ruled out. Possibility of

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injuries caused by convulsions is strengthened from the fact that number

of ante-mortem injuries had increased from the period the victim was

examined initially and the post mortem was conducted. The prosecution

has failed to prove that poison was in possession of the accused. Since

the  trial  court  has  not  convicted  the  accused  under  section  498A or

section 304-B,  IPC,  it  could not  be said  that  the deceased was being

ill-treated or harassed with cruelty on account of dowry. The evidence of

shopkeeper Sanjay Kumar, PW-13 from whose shop accused allegedly

purchased poison, is not reliable. Accused is a medical doctor. He has

knowledge  of  poison.  He  would  not  create  evidence  against  him  by

purchasing poison from Chail itself. Accused would not choose poison

like organo phosphorous i.e.,  ‘NUVAN’ a pesticide which has a pungent

smell like kerosene to kill the victim. He would have purchased better

poison. The accused had administered salty water in order to enable the

victim to vomit. This indicates that gastric lavage was carried out by the

accused to save the deceased. He had accompanied her to Chail hospital

and then to hospital at Shimla. The victim did not name the accused as

responsible for administering poison and there was no occasion for her

merely lifting her hand towards the accused. The conduct of brother of

the  deceased  namely  Anil  Kumar,  PW-8 is  not  free  from doubt.  The

clothes of the deceased have not been produced to show that there were

stains and traces of poison. When two views are possible one favourable

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to the accused is required to be adopted. Hence conviction has been set

aside.  

12. It  was submitted by learned counsel  appearing on behalf  of  the

appellant  that  the High Court  has illegally  reversed the judgment and

order of conviction passed by the trial court. Chain of circumstances is

complete  and  proves  the  guilt  to  the  hilt.  Purchase  of  poison  by  the

accused stands established.  It  was in possession of the accused stands

established. It is not disputed that the deceased died due to poisoning.

The accused had treated the victim with utmost cruelty, kicking her in the

womb when she was carrying 8 months’ child. Nature of injuries found

on deceased indicates that it was a case of forcible administering poison

to  the  victim  while  she  has  resisted.  Accused  in  his  statement  under

section 313 Cr.P.C. has not explained the injuries found on the person of

the deceased. Dr. Chaudhary, PW-2, has stated that he could not make

full examination of the body considering the precarious condition of the

deceased, thus failed to mention all ante-mortem injuries found on the

person  of  deceased.  The  post  mortem  report  which  records  all  the

ante-mortem injuries has been unnecessarily doubted. It was not possible

for  the  doctor  to  answer  to  the  suggestions  whether  the  victim  had

consumed the poison herself, it was not for them to state so. What was

relevant as to their  opinion they had stated that  the nature of  injuries

indicated that she was administered the poison forcibly. The conduct of

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the accused also indicates that he did not take the victim to the hospital

immediately and delayed it. He being a doctor knew the consequences of

organo phosphorus poisoning and in  spite  of  that  he did not  take the

victim to the hospital despite requests being made by various witnesses.

The police had taken the victim to the hospital. On being enquired by the

eye-witnesses what has happened, victim had raised her hand pointedly

towards the accused as she was in a precarious condition.    Thus the

accused did not take her to hospital immediately and ensured that she

dies.  The  various  circumstances  found  established  by  the  trial  court,

unflinchingly and unerringly pointed towards the guilt of the accused.

13. On  the  other  hand,  learned  counsel  appearing  on  behalf  of  the

respondent has submitted that two views are possible in the case. The

High Court as such has rightly given the benefit to the accused. Injuries

were caused to the deceased while she was having convulsions.   The

witness Om Prakash PW-7 has stated that the deceased was trembling and

her condition was critical. She was writhing in pain, thus possibility of

deceased sustaining the injuries while she was under convulsions could

not be ruled out. Modi’s Medical Jurisprudence indicates that one of the

symptoms after  taking  organo  phosphorous  poison  can  be  convulsion

also. The gastric lavage was given by the accused which is supported by

the evidence of PWs.4, 5 and 7, they have stated that the bed on which

the deceased was lying was wet and water had been splashed on the bed

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as well as on the floor of the room. As the accused was in the process of

giving gastric lavage, he took time to open the door. The deceased might

have scratched her  face and neck as itching and irritation which take

place due to poisoning. No DNA test was conducted to prove that the nail

scratches  on  the  face  of  the  deceased  were  caused  by  the

respondent-accused. There was no motive to administer poison; that the

accused was not in possession of the poison. Accused would not have

purchased  the  poison  from  a  person  known  to  him.  He  could  have

selected  a  better  type  of  poison  to  kill  his  wife.  The  accused  has

undergone the sentence for  more than four years.  The son left  by the

deceased is now 17 years old and is being looked after by the accused.

Thus this Court should take a lenient view and no case for interference in

the judgment passed by the High Court is made out.

14. In our opinion the judgment and order of conviction passed by the

trial  court  was  based  upon  proper  appreciation  of  evidence,  the

circumstances found established by trial court in the instant case have

been unnecessarily doubted and brushed aside lightly by the High Court.

The High Court has unnecessarily doubted the post mortem report which

recorded  as  many  as  aforesaid  seven  injuries.  There  were  various

contusions  of  big  size  on  periorbital  area,  intraorbital  area,  forehead,

upper eyelid, cheek, 8 cm. x 7 cm. contusion over the chin, contusion

over the lower lip, 11 cm. x 5 cm. multiple small abrasions over neck and

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upper  chest,  10  cm.  x  4  cm.  contusion  in  infra-axillary  area.  The

aforesaid nature of the injuries indicates that they could not have been

caused by convulsions. The accused was in the company of the victim in

the same room is not disputed. Thus, it was for him to explain the injuries

found on the person of deceased. Exact number of injuries had not been

noted by Dr. Chaudhary PW-2 as he himself had admitted that he could

not examine the entire body physically as the condition of the victim was

precarious and he was busy in giving her treatment then referred her to

hospital at Shimla.  The victim became unconscious at the house itself.

The High Court has unnecessarily doubted the deposition of the autopsy

surgeon  who  has  clearly  opined  that  the  nature  of  injuries  indicated

positively  the  administration  of  poison  forcibly  to  the  victim.  Such

injuries could be caused while administering poison forcibly when victim

was  trying  to  save  herself  from  that.    In  the  cross-examination  Dr.

Choudhary, PW-2, has also stated that it  could not be a suicidal case.

However, on a suggestion being made to the PW-2 and PW-3 that it could

be a case of voluntary consumption of poison by the victim to commit

suicide, obviously the doctors were not able to deny the said suggestion

as they were not eye witnesses.  Moreover they were not supposed to be

an arbiter on this issue whether the victim had taken the poison herself.

Their objective opinion stands writ large that considering the nature of

injuries  it  could  be  a  case  of  forcible  poisoning  and  in  the  process

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accused  had  caused  injuries  while  deceased  had  struggled.   Thus  the

approach of High Court cannot be said to be of objective assessment of

evidence.      

15. The accused was admittedly in the company of the deceased. It was

for him to explain so many injuries found on the person of the deceased

as to how they were caused including swelling in womb. He has totally

failed to explain them. It was not stated by him that the injuries were

caused to the deceased due to convulsions. It was not stated by him that

she ever fell down during convulsions, if any. The injuries on her lips,

chin, throat and neck etc. as held by the trial court, were caused while

administering the poison forcibly is  a  strong circumstance  against  the

accused which cannot be brushed aside lightly. More so, in view of the

overall conduct of the accused to be discussed hereinafter. Injuries were

on  the  front  part  of  the  body  which  indicates  that  the  deceased  was

subjected to violence before she succumbed due to poisoning.  Section

106 of the Evidence Act requires a person having special knowledge of

the fact to explain the same as required by section 106 of the Evidence

Act, and laid down by this Court in C.S.D. Swami v. The State AIR 1960

SC 7, P.N. Krishna Lal & Ors. v. Govt. of Kerala & Anr. 1995 Supp (2)

SCC 187 and  Sidhartha Vashisht  @ Manu Sharma v. State (N.C.T. of

Delhi) AIR  2010  SC 2352.  Failure  to  explain  that  the  deceased  was

unconscious position coupled with other evidence is a grave circumstance

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which militates against such a person.  

16. The High Court has also erred in holding that since the trial court

did not convict the accused under sections 498A and 304B IPC, it could

not  be  said  that  the  deceased  was  being  ill-treated  or  harassed  with

cruelty on account of dowry. As such accused is entitled to benefit of

doubt.  There  is  overwhelming  evidence  on  record  indicating  that  the

behavior of the accused towards the deceased was not proper and he was

turned out of the house by landlord at Chail. The previous landlord of the

accused namely Dayal Singh has clearly stated that under the influence of

liquor, accused used to frequently beat the victim and quarreled with her

due to that he had asked the accused to vacate the house. Thereafter the

accused had shifted in the nearby house in which the incident has taken

place.  The  statements  of  PWs.6  and  11  also  indicate  that  there  was

consistent ill-treatment and incidents of beating and thrashing caused to

the victim by the accused.  There is nothing to doubt the statement of

brother of the deceased namely Anil Kumar, PW-8 who was also given

beating on the night of the incident.    Anil Kumar has stated that the

accused had given kick-blows on the abdomen of the victim while she

was carrying in her  womb pregnancy of 8 months,  and the factum of

pregnancy stands proved by the post mortem report that the foetus aged 8

months was recovered from the womb of the victim. Dr. Piyush Kapila

PW-3  found  abdominal  swelling  of  the  victim  while  conducting  the

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autopsy  which  was  obviously  caused  by  the  kick  blow given  by  the

accused. The statement of Anil Kumar PW-8 finds medical corroboration.

There is nothing to doubt the statement of Anil Kumar that the accused

had also caused injury to him in the form of multiple scratches over neck

and face.  Dr. R.K. Sharma, PW-1 has proved the injuries found on the

person of Anil Kumar and has proved the injury report.  The High Court

has erred in holding otherwise.

17. Yet another circumstance which casts a grave doubt on the accused

is that though he was fully aware that the condition of the victim was

precarious and she was struggling for  life  due to organo phosphorous

poisoning. In spite of that initially when the neighbours came hearing the

shrieks of the victim, he did not open the door immediately and opened

the  door  only  after  five  minutes.  Even  if  same  is  ignored  there  was

absolutely  no  reason  for  the  accused  to   

state to the neighbours when they asked him to take victim to hospital

that nothing had happened to the victim and it was his family affair and

she  would be all  right  very soon.  He intentionally delayed taking the

victim to the hospital and it was only when the Police came that victim

was taken to the hospital and was examined by Dr. Chaudhary PW-2 at 6

a.m.  In case the accused was innocent he would have taken the victim to

the hospital immediately and would not have declined the request of the

neighbours and delayed her taking to the hospital and ought not to have

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waited for arrival of the police and thereafter when police had taken the

victim to the hospital, he accompanied her to the hospital.   The High

Court has erred in holding that accused accompanied victim to hospital as

such that circumstance is in his favour.  Whereas after causing enormous

delay and accompanying police with victim appears to be an effort to

save himself and to know what transpires and for giving wrong history to

doctors.  Thus the conduct of the accused of not taking the victim to the

hospital  points  a  finger  of  doubt  upon  him.  Men  may  lie  but  the

circumstances do not, is the cardinal principle of evaluation of evidence.

The  overall  circumstances  unerringly  point  towards  the  guilt  of  the

accused.  Accused  was  well-aware  that  the  victim  was  suffering  from

organo phosphorous poisoning, the bottle was also lying open. There was

a bad odour of ‘nuvan’ poison in the room. Domestic articles and luggage

were scattered in the room and the child was found crying. The room

indicated tell-tale signs of violence. Several witnesses i.e. Dayal Singh,

PW-6, Shiv Kumar, PW-10 and Gayatri Devi, PW-11 have clearly stated

about it.   

18. Shiv Kumar, PW-10, has clearly stated that on being asked what

had happened,  she raised her hand towards the accused,  her  husband.

Similar is the statement of Anil Kumar, PW-8. Ram Kishan, PW-9 has

also  stated  that  the  victim raised  her  hand towards  the  accused when

asked as to what had happened. He could observe and feel that she had

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been administered poison by the accused forcibly. This last gesture of

victim to raise her hand towards husband indicates that he had caused

such condition.  The victim was also crying to save her militates against

suicidal attempt to kill herself.   

19. Apart  from  that  the  High  Court  has  discarded  the  evidence  of

Sanjay Kumar, PW-13, who is an independent witness.  He has stated that

14-15 days before the  accused had purchased Nuvan poison from his

shop for a consideration of Rs.50/- on the pretext of killing flies etc. The

trial  court  held that  in summers there was no necessity to purchase a

deadly poison for killing the flies. Accused intended to kill the victim and

purchased the poison to cause the end of life of victim. The High Court

has not believed the statement of Sanjay Kumar, PW-13 on the ground

that the accused being a doctor and posted at different places could have

purchased  a  better  poison  of  sophisticated  nature  from elsewhere,  he

would not have created the evidence against him.  The High Court has

brushed aside the evidence of purchase of Nuvan for no good reason.

Sometime the facts are stranger than fiction.  There is absolutely nothing

to doubt the statement of Sanjay Kumar for purchase of abovesaid Nuvan

poison and when it was found in the house, it was purchased either by the

victim or the accused. There is nothing to doubt that it was purchased by

the accused and it was found in the room and due to this poison only the

victim  succumbed  to  death.    The  fact  of  giving  salty  water  by  the

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accused to the victim by itself is not enough to absolve him of the guilt.

The injuries could not be said to be self inflicted.  The accused has not

stated to that effect, as such it was not necessary to go for DNA test as

argued by the counsel for respondent.

20. Apart from that the administering of poison forcibly is supported

by medical  evidence in the form of injuries which were found on the

front side shows sign of struggle by deceased to save herself in the said

process. These injuries could not have been caused by convulsions and

the overall  conduct of  the accused and the gesture of the deceased in

pointing her hand towards her husband as the person responsible for her

condition, delay caused by the accused in taking the victim to the hospital

knowing  fully  well  the  kind  of  deadly  poison  organo  phosphorous

unerringly  points  towards  his  guilt  and  the  chain  of  circumstances  is

complete.

21. This Court has considered in Sharad Birdhichand Sarda v. State of

Maharashtra AIR 1984 SC 1622, case of murder by administering poison

and  dealt  with  mode  and  manner  of  proof  in  such  cases.  Four

circumstances are to be examined before recording a conviction. (i) There

was a clear motive for the accused to administer poison to the deceased,

(ii) the deceased died of poison said to have been administered, (iii) that

the  accused  had  poison  in  his  possession  and  (iv)  that  he  had  an

opportunity to administer  the poison to the deceased.  The prosecution

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alleged that the husband administered the poison to her whereas defence

took  the  plea  that  there  was  a  strong  possibility  of  her  having  been

ill-treated,  being sensitive and impressible,  she might have committed

suicide  out  of  depression  and  frustration  arising  from  an  emotional

upsurge. The aforesaid tests stand satisfied in the instant case and the

prosecution has proved the case beyond periphery of doubt. The conduct

of the accused and gesture of the victim at the crucial time as projected in

the case, medical evidence, evidence as to purchase of poison unerringly

point towards the guilt of the accused.      

22. It was also submitted by learned counsel appearing on behalf of the

respondent-accused that the child now 17 years old and is residing with

the accused,  as such we should take a lenient  view. That cannot be a

ground so as to show any leniency in such kind of offence, particularly

when the accused had not cared and caused death of his wife who was

also a doctor and at the same time she was pregnant, carrying 8 months

male child whose foetus was recovered from her womb. He had kicked

the  womb  also  that  is  why  swelling  in  womb  was  found.   In  the

circumstances, accused is not entitled to any lenient treatment as it can

only be within legal parameters.   

23. In the circumstances the High Court has gravely erred in reversing

the well-reasoned judgment of conviction and order of sentence recorded

by  the  trial  court.  Resultantly  the  appeal  is  allowed,  the  impugned

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judgment and order passed by the High Court is hereby set aside and that

of  the  trial  court  is  restored.  The  respondent  is  directed  to  surrender

failing which he shall be taken into custody forthwith.                     

          ……………………….J.                     (V. Gopala Gowda)

New Delhi;                     .……………………..J. May 6, 2016.                     (Arun Mishra)