the high court of delhi at new delhi crl a. … vs. state...crl.a. 72/94 page no. 2 of 32 life in...

CRL.A. 72/94 Page No. 1 of 32

THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 03.07.2009 + CRL A. 72/1994

SMT KARPAI ... Appellant

- Versus -

STATE (DELHI ADMN) ... Respondent Advocates who appeared in this case:- For the Appellant : Mr Sanjiv Sharma (amicus curiae) For the Respondent : Mr Sunil Sharma.

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE P.K. BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J

1. The appellant has been convicted by the learned Additional

Sessions Judge by virtue of his judgment dated 20.1.1994 in Sessions

Case No. 124/91 pertaining to FIR No. 53/91 under Sections 302/307

IPC registered at Police Station Saraswati Vihar for having committed

the murder of Murgan @ Murgesh and attempting to commit the

murder of Rajeshwari under Section 307 IPC by administering poison.

By a separate order dated 24.1.1994 the said learned Additional

Sessions Judge sentenced the appellant to undergo imprisonment for


life in respect of the offence punishable under Section 302 IPC and

seven years RI for the offence under Section 307 IPC and directed that

both the sentences should run concurrently. The appellant is aggrieved

by the impugned judgment and order on sentence.

2. The prosecution case is that on 3.2.1991 information was

received from Sunder Lal Jain Hospital and the same was recorded in

DD 22A by Head Constable Rajbir Singh that Murgan, son of Raju,

R/O E-557, J.J. Colony, Shakurpur, Delhi had been declared dead and

the dead body had been taken away to his house. Thereafter, Sub-

Inspector Jugti Ram along with constables Ashok Kumar and Dharam

Singh went to the said house bearing No. E-557, J.J. Colony, where

they found the dead body of a child lying on a cot. There, Ashok and

Raju, who were brothers and were residents of the said house, disclosed

that it was the body of Murgan @ Murgesh. Apparently, Ashok made

his statement Ext. PW2/A to the effect that he along with his family

reside at E-557, J.J. Colony, Shakurpur Delhi and that his brother Raju

also resided in the same house along with his family. Ashok Kumar

further stated that his sister-in-law (another brother‟s wife) Karpai who

resided in G Block, J.J. Colony, was in the habit of consuming liquor

and then coming to their place to pick up a quarrel. According to him,

she had some sort of grudge for some unknown reason. In the said

statement Ext. PW2/A, it was further stated that on that date, there was


a mundan ceremony of his cousin (Karpan‟s) daughter and a feast had

been organized. All the family members participated in the feast. He

further stated that his attention was not towards his daughter

Rajeshwari aged about eight years and nephew Murgan, aged about

seven years, who were playing in the street. At about 9.30 p.m., his

daughter Rajeshswari and nephew Murgan came running to them. At

that time his wife Kamla was also present. Ashok stated that the

children told them that their tai (elder brother‟s wife) Karpai had taken

them with her and had given them juice to drink. After consuming the

said juice, their condition had become bad. Both the children allegedly

started vomiting in his presence. As per the statement, Ashok and his

brother Raju took Murgan to Sunder Lal Hospital as his condition was

very serious. Later on, his brother-in-law Chukri took the girl to

Jeevodya Hospital. He further stated that at Sunder Lal Hospital, the

doctors declared Murgan dead and they brought his dead body to their

house along with the death certificate. It was also stated that

Rajeshwari was shifted from Jeevodya Hospital to Sunder Lal Jain

Hospital and a report was lodged with the police in this connection by

his wife. He stated that his bhabi (sister-in-law) Karpai, on account of

some old grudge, with an intention to kill his daughter Rajeshwari and

his brother Raju‟s son Murgan gave the children some poison mixed in

juice as a result whereof the boy had expired and the girl was in

hospital. He requested that legal action be taken against Karpai.


3. On the basis of this statement a ruqqa was prepared and sent and

thereupon the case was registered. The Station House Officer of the

concerned police station took up the investigation. The inquest

proceedings were conducted and the post mortem examination of the

body of Murgan was also conducted. Karpai was arrested and she

allegedly made a disclosure statement. On the basis of the disclosure

statement, and the alleged subsequent pointing out by the appellant

Karpai, the kaner tree in Kohat Enclave, DDA Park and the juice van

(rehri) were located. The pointing out memo and recovery memo were

prepared. Pieces of earth and control earth were also seized from the

spot. The viscera of Murgan was sent to the laboratory for chemical

examination and after completion of investigation, the challan was

filed in court. The charge was framed and the appellant, having

pleaded not guilty, claimed trial. In support of the prosecution, 21

witnesses were examined. The defence did not lead any evidence.

4. We find that in the impugned judgment, the trial court has mainly

reproduced the testimonies of all the PWs 1 to 21. And, the discussion

of the evidence and the case is limited to paragraphs 29 to 33 only. At

the outset, we may say that the trial court has not examined the

evidence with the degree of care which is necessary before a person can

be convicted for murder or attempt to murder and then be sentenced to


imprisonment for life on account of the offence of murder or seven

years imprisonment for the offence of attempt to murder. The trial

court has cursorily dealt with the many contradictions pointed out by

the learned counsel for the accused in the testimonies of PW-3

(Rajeshwari), PW-5 (Kandhai) and PW-11 (Sadhu Ram Gupta) with

regard to the fact as to from where the appellant Karpai produced the

poison which was allegedly mixed in the juice. Another contradiction

had been pointed out by the learned counsel for the accused that while

PW-11 (Sadhu Ram Gupta) had stated that the accused Karpai had

slapped the girl as she had left the juice in the glass, PW-5 (Kandhai)

stated that when the boy refused to drink the juice, he was beaten by the

accused Karpai and only thereafter the boy drank the juice. The trial

court did not find this to be a material contradiction.

5. In conclusion, the learned Additional Sessions Judge held:-

“the fact that the juice contained Kaner seeds powder has been amply proved from the record of CFSL Ext. PX. The doctor has also testified that the death was due to carbonate (sic) poisoning.”

The learned counsel for the appellant made three submissions on the

above findings. The first submission was that Ex. PX, the CFSL

Report, cannot be read in evidence. According to the learned counsel,

it is not clear as to how the said report was introduced before the Trial

Court because there is no witness who has come forth to testify about


the said report. Secondly, the learned counsel pointed out that the

CFSL report indicates that the stomach, intestine, liver and kidneys as

well as blood sample of the deceased Murgan tested positive for “the

active constituents of kaner”. Thus, this report, even if considered,

does not indicate that it is the juice that contained the kaner seeds

powder. Thirdly, PW-19 (Dr R.K. Barua), who is the doctor who

conducted the post mortem examination, stated the cause of death to be

due to “carbamate poisoning”. In this background, the learned counsel

for the appellant pointed out that poisoning due to kaner and carbamate

poisoning are entirely different. Thus, the finding that “the doctor has

also testified that the death was due to carbonate (sic) poisoning” is

contrary to the trial court‟s earlier finding that “the juice contained

kaner seeds powder”.

6. The learned counsel, referring to paragraph 32 of the impugned

judgment, also submitted that the learned Additional Sessions Judge

has glossed over the fact that admittedly, there was animosity between

Ashok and Raju whose daughter and son were allegedly poisoned by

the appellant, on the one hand, and the appellant on the other.

According to him, the existence of enmity was indication enough that

the testimonies of Ashok and Raju as also the other family members

needed to be handled with great care and circumspection inasmuch they

could be regarded as interested witnesses.


7. The learned counsel for the appellant submitted that this was a

clear case for acquittal. First of all, according to him, the cause of

death was uncertain. The death certificate Ext. PW-10A described the

symptoms as “intractable convulsion”. The CFSL report Ext. PX

indicated that the viscera and blood sample tested positive for active

constituents of kaner. On the other hand, PW-19 (Dr R.K. Barua), who

conducted the post mortem examination, testified that the cause of

death was “carbamate poisoning”. He submitted that no evidence

whatsoever has been produced to establish that kaner seeds or kaner

contained any „carbamate‟ poison. According to the prosecution,

powdered kaner seeds were mixed in the juice administered to the two

children. Evidence has also not been brought on record to establish

whether powdered kaner seeds are poisonous and to what extent.

8. The second aspect to which the learned counsel for the appellant

drew our attention to was that admittedly there was a party in the

neighborhood, if not in the house, on the occasion of the mundan of one

of the relatives. A feast had been organized. It is quite likely that

something may have been consumed by these two children which may

have resulted in them being poisoned. He further submitted that there

was also the possibility of the glass in which the juice was served by

the juice vendor PW11 being contaminated.


9. Thirdly, it was contended by the learned counsel for the appellant

that there is no evidence that the appellant had definitely administered

poison or had mixed poison with the juice and then administered the

same to the children. There were many contradictions in the

testimonies of the prosecution witnesses. Fourthly, it was contended by

the learned counsel for the appellant that no motive has been ascribed

to the appellant for having committed such a crime. The only motive

which was suggested by PW-5 (Kandhai), wife of Raju and mother of

the deceased Murgan @ Murgesh was to the following effect:-

“Since our family had only one son Murgesh and we were earning handsomely, the accused used to feel jealous and used to quarrel and she had decided to finish my son so that the entire love and affection should go to her family.”

According to the learned counsel, this cannot at all constitute a motive

and is too flimsy a reason for poisoning two small children.

10. Lastly, it was contended by the learned counsel for the appellant

that the CFSL report Ext. PX ought not to have been looked into by the

trial court and cannot be considered at all against the appellant. He

submitted that no witness has been produced by the prosecution to

testify as to the CFSL report. There is no evidence as to how the CFSL

report was on record. We went through the trial court record to

examine this aspect. At page 153 thereof we found an application for


attaching the CFSL report. The CFSL report is dated 23.9.1993 and the

said application is of 27.9.1993. On the left hand side there is a stamp

of the learned Additional Sessions Judge but there is no signature. The

file also contained the original as well as the photo copy which was

meant for the accused. An inference can be drawn that the copy of the

CFSL report was never given to the accused. We shall dwell upon this

aspect at a later point in this judgment. At this juncture, we may also

note the contention of the learned counsel for the appellant that

cognizance was taken and charges were framed on 30.01.1992 much

prior to the preparation and receipt of the CFSL report. The learned

counsel for the appellant raised a pertinent question as to how could the

charges be framed without the cause of death having been ascertained ?

11. We may also point out that the learned counsel for the appellant

has produced literature with regard to kaner which is a flowering plant

and is commonly known as Oleander. As per Modi‟s Medical

Jurisprudence and Toxicology, Twenty-third Edition, there are two

kinds of Oleander. One kind is the white or sweet-scented Oleander,

whose botanical name is nerium odorum and is also known in Hindi as

kaner. There is another variety of Oleander known as yellow Oleander

which also goes by the names Cerbera Thevetia, Thevetia Nerifolia and

pila kaner. Both kinds of Oleander belong to the family of plants

known as Apocynaceae and are widely cultivated and grown in gardens


in India. However, they are highly poisonous and contain glycosides

which have a digitalis-like action and are cardiac poisons. On the other

hand, the literature produced by the learned counsel for the appellant

indicates that carbamates are salts and esters of carbamic (amido

carbonic) acid. Carbamates are used in insecticides such as Baygon.

12. Mr Sunil Sharma, appearing on behalf of the State, submitted that

carbamate poisoning is the same as insecticide poisoning. He

submitted that kaner is an insecticide and, therefore, carbamate and

kaner are equivalent. Apart from this, the learned counsel for the State

submitted that the surviving victim PW-3 (Rajeshwari) clearly testified

in court with regard to the manner in which the appellant poisoned her

and her cousin Murgan @ Murgesh. Her testimony in Court is that of

an injured witness and due credence ought to be given to such

testimony. He also submitted that PW-11 (Sadhu Ram Gupta), who is

the juice vendor also stated that juice was given by Karpai in two

separate glasses to the two children after she added some powder which

she had brought with herself. He submitted that this is clear evidence

of the fact that the appellant had poisoned the two children. He also

submitted that PW-11 (Sadhu Ram Gupta) was an independent witness

and ought not to be dis-believed. Mr Sunil Sharma, therefore,

contended that the two eye witnesses, namely PW-3 and PW-11

corroborated each other on the fact that Karpai administered the juice


after adding some powder which she had brought with herself.

According to the CFSL report the viscera as well as the blood sample

of the deceased Murgan @ Murgesh tested positive for active

constituents of kaner. Therefore, according to him, there remains no

shadow of doubt that the appellant administered powdered kaner seeds

along with the juice to the two children.

13. He also submitted that the theory of food poisoning, as suggested

by the appellant was not plausible. He submitted that in any event no

such suggestions were given to any of the witnesses. Furthermore, if it

was something that the children consumed at the feast, then there

would have been others who would have been similarly affected.

Nobody else was affected and, therefore, such a theory is bound to be

rejected.

14. The learned counsel for the State also referred to the MLC of

PW-3 where, it is indicated that it was a case of suspected poisoning.

He then referred to the memo Ext. PW-17/D as well as disclosure

memo PW-15/C and submitted that based upon the disclosure made by

the appellant, the kaner plants from which the seeds were taken were

identified and the place where the seeds were crushed in the appellant‟s

home under the stair case was also pointed out. Coupled with this, the

learned counsel for the State placed reliance on the CFSL report


Ext. PX to indicate that the viscera tested positive for the active

constituents of kaner. According to Mr Sunil Sharma, this was an

open-and-shut case and the appellant had been rightly convicted by the

trial court.

15. Mr Sunil Sharma submitted that even if the CFSL report is to be

ignored, it cannot be denied that something was given by Karpai to the

children and, by that something, death was caused to Murgan @

Murgesh and Rajeshwari became seriously ill, although she finally

recovered.

16. Mr Sunil Sharma referred to the following decisions:-

1) Ram Bali v. State of U.P.: 2004 (10) SCC 598; 2) Babasaheb Apparao Patil v. State of Maharashtra: JT

2009 (1) SC 55; 3) Mela Singh v. State: 1995 (79) ELT 358 (Del.); and 4) Dhananjaya Reddy v. State of Karnataka: JT 2001 (3) SC

395.

Ram Bali (supra) was relied upon for the proposition that when there is

a conflict between medical evidence and ocular evidence, it is ocular

evidence which shall prevail. In the said decision, the court observed

that hypothetical answers given to hypothetical questions, and mere

hypothetical and abstract opinions by textbook writers, on assumed

facts, cannot dilute the evidentiary value of ocular evidence if it is


credible and cogent. The Supreme Court also observed that it is only

when the ocular evidence is wholly inconsistent with the medical

evidence, that the court has to consider the effect thereof. There is no

dispute with these propositions. In the present case, we have to

examine the medical evidence on record in the shape of the testimonies

of the doctors and the documentary evidence in support thereof. What

the Supreme Court was concerned with in Ram Bali (supra) was

medical evidence in the shape of hypothetical answers to hypothetical

questions and abstract opinions by textbook writers on assumed facts.

In the present case, we are concerned, not with hypothetical questions

and abstract opinions of textbook writers on assumed facts, but with the

evidence on record. It is obvious that where such concrete evidence is

on record given by experts in the field of medicine, and it is not

consistent with the ocular evidence, then the court has to seriously

consider the effect on the prosecution case. The value of ocular

evidence can be tested on the touchstone of definite and direct medical

evidence.

17. In Ram Bali (supra), the Supreme Court also observed that

defective investigation should not in itself result in drawing any

inferences against the prosecution. In this context, the Supreme Court

observed that in the case of a defective investigation, the court has to be

circumspect in evaluating the evidence, but it would not be right in


acquitting an accused person “solely” on account of the defect. As,

doing so would tantamount to playing into the hands of the

investigating officer if the investigation is designedly defective. The

Supreme Court further observed with reference to an earlier decision in

Paras Yadav v. State of Bihar: 1999 (2) SCC 126 that the

contaminated conduct of the officials alone should not stand in the way

of evaluating the evidence by the courts in finding out the truth, “if the

materials on record are otherwise credible and truthful”. This decision

also makes it clear that if there are defects in investigation, the court

has to be circumspect in evaluating the evidence. The prosecution‟s

case should not be thrown out merely or solely on account of the defect

if there are other materials on record which are credible and truthful

and which come to the aid of the prosecution. There is no quarrel with

this principle either. The question is whether, in the present case, there

are materials on record which point, beyond reasonable doubt, towards

the guilt of the appellant. That is an exercise which we shall have to do

on an examination of the evidence on record.

18. In Babasaheb Apparao Patil (supra), the Supreme Court

observed that it is to be borne in mind that some discrepancies in the

ocular account of a witness, unless these are vital, cannot per se affect

the credibility of the evidence of the witness and unless the

contradictions are material, the same cannot be used to jettison the


evidence in its entirety. The Supreme Court observed that it is only

when discrepancies in the evidence of a witness are so incompatible

with the credibility of his version that the court would be justified in

discarding the evidence. Referring to the decision in the case of State

of U.P. v. M.K. Anthony: 1985 (1) SCC 505, the Supreme Court

observed that while appreciating the evidence of a witness, the

approach must be whether the evidence of the witness read as a whole

appears to have a ring of truth. The Supreme Court also noted that

even honest and truthful witnesses may differ in some details unrelated

to the main incident because the power of observation, retention and

reproduction differ with individuals. The Supreme Court held that the

court by calling into aid its vast experience of men and matters in

different cases must evaluate the entire material on record as a whole

and should not disbelieve the evidence of a witness altogether, if it is

otherwise trustworthy. These are also reiterations of clear and

established principles that minor discrepancies in ocular accounts of

witnesses would not prove to be fatal to the prosecution case provided

the testimony of such witnesses are otherwise trustworthy. It is

obvious that this principle has to be kept in mind while examining the

evidence on record.

19. A reference was made to Mela Singh (supra), which is a decision

of a learned single Judge of this court, to indicate that once a report has


been admitted in evidence without objection as to its admissibility or

mode of proof, the appellant cannot be allowed to challenge its

admissibility in the appeal. This decision, although not binding on us,

was placed before us to persuade us to reject the appellant‟s contention

that the CFSL report (Exhibit-PX) cannot be looked into inasmuch as

there is no record of how the said report was introduced into evidence.

The view taken in Mela Singh (supra) stands on an entirely different

footing. The plea of the appellant is that it is not at all apparent as to

how the CFSL report came to be marked as Exhibit-PX. None of the

witnesses have testified as to the CFSL report. Apart from that, the

trial court record indicates that an application for attaching the CFSL

report was made on 27.09.1993 and on the left hand side, there is a

stamp of the learned Additional Sessions Judge. But, the learned

Additional Sessions Judge has not affixed his signature. Neither the

CFSL report was proved by any witness nor is there any evidence to

show that it was officially taken on record. The CFSL report was

marked as an exhibit on 05.01.1994 and insofar as the order-sheet of

05.01.1994 is concerned, it does not disclose any witness having been

examined on that date who had testified as to the CFSL report.

Therefore, the context in which there is a challenge to considering the

said CFSL report (Exhibit-PX), in the present case, is entirely different

to the view taken in Mela Singh (supra) and consequently that view

would be of no help to the respondents.


20. The last decision cited by Mr Sunil Sharma is that of the Supreme

Court in the case of Dhananjaya Reddy (supra). The same was relied

upon for the proposition that the report of a serologist could be used

without any formal proof. There is a reference in paragraph 39 of the

said decision that an attempt was made to argue before the Supreme

Court that the serologist‟s report was not produced at the trial court

and, therefore, could not be looked into at the stage of appeal. The

Supreme Court did not accept this argument inasmuch as on the facts of

that case, the said report had been shown to have been admitted in

evidence and marked as Exhibit-87. The Supreme Court also observed

that, “otherwise also, the report of the serologist can be used as an

evidence without any formal proof under Section 293 of CrPC”. This

decision, as is apparent, was cited by the respondents to counter the

plea taken by the learned counsel for the appellant that the CFSL report

(Exhibit-PX) could not be looked into either by the trial court or even

by this court in appeal. He submitted that the CFSL report, in the

present case, stood on the same footing as the serologist‟s report in

Dhananjaya Reddy (supra) and, therefore, it could be used without any

formal proof. The argument of the appellant in the present case is not

limited to the using of the CFSL report. The first distinction between

the present case and that in Dhananjaya Reddy (supra) case is that in

the latter case, the serologist‟s report is shown to have been admitted in


evidence and marked as Exhibit-87, while, in the present case, there is

no record as to whether the CFSL report was admitted in evidence and

how it came to be exhibited as Exhibit-PX. The further distinction is

that in Dhananjaya Reddy’s case, there is no plea that the serologist‟s

report was not handed over to the accused. However, in the present

case, the learned counsel for the appellant has taken the specific plea

that the photocopy of the CFSL report, which was meant for the

accused, was never handed over to the accused. He made this

submission on the basis of the fact that the trial court record contains

both the original and the photocopy which is for the accused. The fact

that the photocopy meant for the accused is present and available in the

file of the trial court clearly implies that the photocopy of the CFSL

report was not handed over to the accused. It is in this context that the

plea has been taken by the learned counsel for the appellant that the

CFSL report cannot be looked into. The CFSL report forms a vital link

in the present case as it purportedly determines the nature of the poison

which ultimately caused the death of Murgan @ Murgesh.

21. The learned counsel for the appellant had placed reliance on the

following three decisions:-

1) Noor Khan v. State of Rajasthan: AIR 1964 SC 286; 2) Balachandran Pillai and Others v. State of Kerala:

2005 CRI. L.J. 1480; and


3) Umakant Bajpayee v. State of U.P.: 1993 (1) Crimes 1150.

In Noor Khan (supra), the Supreme Court in the context of failure to

supply statements recorded under Section 161, CrPC, observed that the

provisions relating to the record of the statements of the witnesses and

the supply of copies to the accused so that they may be utilized in the

trial for effectively defending themselves cannot normally be permitted

to be whittled down. The court further observed that where the

circumstances are such that the court may reasonably infer that

prejudice has resulted to the accused from the failure to supply such

statements, the court would be justified in directing that the conviction

be set aside and in a proper case to direct that the defect be rectified in

such manner as the circumstances may warrant. The Supreme Court,

however, observed that it is only where the court is satisfied, having

regard to the manner in which the case has been conducted and the

attitude adopted by the accused in relation to the defect, that no

prejudice has resulted to the accused that the court would,

notwithstanding the breach of the statutory provisions, be justified in

maintaining the conviction.

22. In Balachandran Pillai (supra), which is a decision of a learned

single Judge of the Kerala High Court, a similar view has been taken.

In Umakant Bajpayee (supra), which is also a decision of a learned


single Judge of the Allahabad High Court and has been placed before

us for its persuasive value, also indicates that the report of a chemical

examiner / analyst cannot be acted upon by the court without

examining such person, particularly if the report is not supported by

reasons for the opinion expressed by the expert. The learned counsel

for the appellant had contended that in the present case also, no reasons

are given in the CFSL report (Exhibit-PX) and it is merely observed

that the extracts sent to the CFSL for testing, gave positive results for

the active constituents of „kaner‟.

23. Considering the arguments advanced by the counsel for the

parties and the decisions relied upon by them, we are of the view that

the CFSL report (Exhibit-PX) ought not to have been looked into by

the trial court and ought not to be looked into by this court. The simple

reason is that no witness has come forward to prove the same and the

manner in which it has been introduced into the court record, if at all, is

unclear. Secondly, and more importantly, it appears that the CFSL

report had not been made available to the appellant / accused. In a case

of murder by poisoning, the report of the CFSL attains great

significance. Because, as pointed out in Sharad Birdhichand Sarda v.

State of Maharashtra: AIR 1984 SC 1622, with reference to an earlier

decision in the case of Ram Gopal v. State of Maharashtra: AIR 1972


SC 656, in cases concerning murder by administration of poison, three

issues arise for determination:-

1) Did the deceased die of the poison in question ? 2) Had the accused the poison in question in his / her

possession ? 3) Had the accused an opportunity to administer the poison in

question ?

24. The Supreme Court observed that it is only when the motive is

established and 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. From the first question referred to

above, it is apparent that it is of vital importance for the prosecution to

establish as to whether the deceased died of the poison in question. In

the context of the present case, the prosecution had to establish as to

whether Murgan @ Murgesh died of kaner poisoning and not on

account of any other poison. For determining this question, the CFSL

report is of significant importance. If such a report is not given to the

accused, it would certainly cause serious prejudice to her. It is because

of this that we have arrived at the conclusion that the CFSL report

ought not to be looked into while deciding this case. However, we

shall also examine this case by assuming that the CFSL report can be

looked into and see as to whether a different conclusion would result.


25. The case for the prosecution is that Murgan @ Murgesh, as also

Rajeshwari, were administered kaner poison alongwith the juice which

the appellant had purchased from the juice vendor [PW-11 (Sadhu Ram

Gupta)]. The first circumstance that we have to examine is whether

there is evidence to conclusively establish that Murgan @ Murgesh

died of kaner poisoning. We also have to examine as to the nature of

the poison which was given to Rajeshwari which resulted in her being

taken to hospital and fortunately, ultimately, in her survival. Let us

examine the evidence on record on this aspect. First of all, we have

Exhibit-PW-10/B, which is a copy of the Register of Sunder Lal Jain

Hospital. At S. No. 14 (a daily number) and corresponding to yearly

number 705, the name Murgan is mentioned. His age has been given as

7 years and his address has been given as E- Block 557, Shakurpur. It

is indicated that he had been brought to the hospital at 9.35 p.m. and he

expired at 10.15 p.m. on the same day. This is a record of 03.02.1991.

The symptom was indicated as “intractable convulsion”. Under the

remarks column, it has been indicated that the patient was given a

calmpose injection 1.5 mg intravenously, slowly. An injection of

epsolin 10 mg was also given intravenously. It also indicated that the

patient was gasping and that adrenalin was also administered. As per

this document, the only cause which has been given is “intractable

convulsion”. „Intractable‟ essentially means „something difficult to

manage‟, „unmanageable‟. Convulsions are involuntary contractions or


a series of contractions of muscles. There could be many reasons for

such convulsions. Of course, one of them is poisoning. What is

notable in Exhibit-PW-10/B is that only conservative treatment was

given in the sense that both the injections, calmpose and epsolin, were

for controlling the convulsions. No stomach wash was administered.

What is also important is that there is no MLC available insofar as

Murgan @ Murgesh is concerned.

26. The next piece of evidence is Exhibit-PW-10/A, which is the

death certificate, which also indicates the disease to be intractable

convulsions. The post mortem report (Exhibit-PW-19/A) indicates the

following:-

“Froth was coming out through both nostrils and mouth; nails were blue; both lungs were congested; no abnormality was detected insofar as the heart was concerned. The stomach contained about 4 ounce of food and liquid. Significantly, the stomach contents were found to emit flit like smell.”

(underlining added)

The mucous membrane was found to be highly congested and the liver,

spleen and kidneys were also found to be congested. The cause of

death was not indicated in the post mortem report and it was noted

therein that “cause of death in this case will be given after receipt of

the chemical analysis report”. Thus, so far, the symptoms / disease has

been indicated as “intractable convulsions” as per the doctors at Sunder


Lal Jain Hospital where Murgan @ Murgesh was taken for treatment

and where he died. The doctor who conducted the post mortem did not

give any opinion as to the cause of death and made an endorsement that

the same would be given after the receipt of the chemical analysis

report.

27. It is in these circumstances that the report of the CFSL (Exhibit-

PX) clearly attains vital significance. We have arrived at the

conclusion, for the reasons indicated above, that the CFSL report

cannot be looked into. But, assuming that it can be looked into, we are

still examining the case in order to ascertain as to which poison actually

caused the death of Murgan @ Murgesh. The CFSL report (Exhibit-

PX) merely indicates that the stomach, intestine with contents and liver,

spleen and kidneys as also the 5 ml blood sample tested positive for the

active constituents of kaner. No further explanation has been given in

the report. It has not been indicated whether kaner is a poison or not.

It has also not been indicated what are the active constituents of kaner.

PW-19 (Dr R.K. Barua), the person who conducted the post mortem

examination, proved his post mortem report (Exhibit-PW-19/A). In his

examination-in-chief, he stated that the blood and viscera were

preserved and sent for chemical analysis through the police. After so

stating, the said doctor testified:-

“In my opinion cause of death was due to carbamate poisoning.”


(underlining added)

In his cross-examination also, the said witness stated that he was sure

that the death was due to poisoning.

28. This is the extent of evidence that is on record with regard to the

poison. The observations of the doctors at Sunder Lal Jain Hospital are

of a general nature inasmuch as they have observed that Murgan @

Murgesh was symptomatic for intractable convulsions. We have

already noted above that such a condition may or may not be caused by

poisoning and there may be other reasons for the same. Thus, Exhibit

PW-10/B and Exhibit PW-10/A, in themselves, do not enable us to

jump to the conclusion that Murgan @ Murgesh died of poisoning and /

or to any specific conclusion with regard to the kind of poison which

caused his death. Then, we have the post mortem report which clearly

indicates that the stomach contents were emitting a flit like smell. „Flit‟

is a common household word in India and it is used for insecticides,

particularly for killing mosquitoes. The modern variants of the old

product which was known by the name of „flit‟ includes „Baygon

Spray‟. Such products contain carbamates.

29. The post mortem report, however, does not reveal any cause of

death inasmuch as the doctor awaited receipt of the chemical analysis

report. The CFSL report only indicates that the sample sent to them


tested positive for the active constituents of kaner. The only conclusive

evidence with regard to cause of death has been given by PW-19 (Dr

R.K. Barua) who stated that the cause of death was due to carbamate

poisoning.

30. Carbamate poisoning and poisoning due to kaner are entirely

different. As pointed out above, kaner is the Hindi word for the

Oleander plant which has two different varieties. The toxins contained

in kaner are known cardiac glycosides, one of them is oleandrin. On

the other hand, carbamates are salts (or esters) of carbamic acid. While

carbamates and the glycosides contained in kaner are both poisonous,

they are entirely different poisons. No evidence has been produced to

indicate that carbamate poisoning can result from administering kaner.

31. If the version given by PW-19 (Dr R.K. Barua) is to be accepted

that the cause of death was carbamate poisoning, then, the prosecution

case falls to the ground. This is so because kaner does not contain any

carbamate. Thus, even if we do consider the CFSL report (Exhibit-PX)

as evidence, two divergent versions of the kind of poison used are

before us and one of them completely demolishes the prosecution case.

Confronted with this situation, we thought that a possible answer could

be provided by examining as to what happened to PW-3 (Rajeshwari).

As per the prosecution, she was also administered the same poison


which was given to Murgan @ Murgesh. In the case of Rajeshwari, we

find that there is an MLC on record being Exhibit-PW-18/A. The said

MLC has been proved by PW-18, who is the record clerk at Ram

Manohar Lohia Hospital, New Delhi. Although we do not approve of

the manner in which MLCs are proved by record clerks and not by the

doctors themselves, we are not entering into that arena of controversy

for the purposes of this case. As per the said Exhibit-PW-18/A, it is

indicated that a patient by the name of Dingle @ Rajeshwari, daughter

of Ashok was brought to Ram Manohar Lohia Hospital on 04.02.1991

at 3.10 a.m. She had been transferred from Jeevodaya Hospital. The

nature of injury was given as suspected poisoning at 9.00 p.m. on

03.02.1991. Her symptoms were indicated as convulsions lasting for

35 minutes. While it was mentioned that hers was a case of suspected

poisoning, the nature of poison was not known. The treatment given to

Rajeshwari was shown to be stomach wash which had already been

given and fluids and vitals were being maintained. It is not known as to

when Rajeshwari was discharged from the said hospital, however, she

regained health and returned to normalcy after a few days. Since no

doctor from Ram Manohar Lohia Hospital, New Delhi, who treated

Rajeshwari, had been produced as a witness, there was no way to elicit

any information with regard to the exact nature of the treatment given.

It is important to note the testimony of PW-9 (Head Constable Rajbir

Singh), who, pursuant to D.D. No.22-A, proceeded to Ram Manohar


Lohia Hospital where he collected the MLC of Rajeshwari. He stated

that the Station House Officer also came to the hospital and that he (HC

Rajbir Singh) handed over a copy of the D.D. report and the MLC to

him. The said Station House Officer directed the said witness PW-9

(Head Constable Rajbir Singh) to collect the stomach wash from

Jeevodaya Hospital where Rajeshwari had been taken first. PW-9 has

further testified that he contacted the lady doctor Dr Dolly at that

hospital who told him that the stomach wash of Rajeshwari had not

been preserved and had been thrown away as the police cases were not

dealt with by the said hospital and that only first aid was given to

Rajeshwari to save her. This clearly indicates that the material

evidence in the form of stomach wash, which could have been sent for

chemical analysis to determine the exact nature of the poison, had been

destroyed by Jeevodaya Hospital. It is apparent, therefore, that the

exact nature of the poison which afflicted Rajeshwari is not

determinable from the evidence with regard to Rajeshwari. It is only

by inference from the evidence in respect of the deceased Murgan @

Murgesh that a conclusion can be arrived at with regard to the nature of

poison which may have afflicted Rajeshwari.

32. Thus, we are left with the two conflicting views with regard to

the nature of the poison used; whether it was carbamate poisoning or it

was kaner ? It is obvious that when such divergent possibilities exist,


the present case cannot be construed as one which is beyond reasonable

doubt. In fact, there is sufficient doubt and there are clear cut reasons,

as indicated above, for having such doubts. This circumstance, i.e., the

inconclusiveness with regard to the poison, is in itself sufficient to lead

to the benefit of doubt being given to the appellant and her consequent

acquittal. However, for the sake of completeness, we shall also

examine the testimonies of important witnesses. The most important

witness in this case is the injured witness PW-3 (Rajeshwari). In her

examination-in-chief, this witness has fully supported the case of the

prosecution. There are some minor contradictions between her

testimony and those of her father (PW-2) and other witnesses, but we

are not going into those issues. In her cross-examination, she was

asked the question: As to with whom she had come to court ? Her

answer was that she came with her parents. The trial court noted that

on being asked the question as to what was told by the police officials,

the said witness started thinking for some time and did not reply.

Thereafter, she said that Tai mixed medicines in the juice. This

question and answer does indicate that the said witness probably stated

what she was asked to say. The defence counsel had pointedly asked

her as to what the police officials had told her. Initially, she did not

reply and started thinking. Thereafter, she stated that Tai mixed

medicines in the juice. The inference that can be drawn from this is

that the police officials told PW-3 (Rajeshwari) that it was her Tai who


had mixed medicines in the juice. The Tai in this case is the accused /

appellant Karpai. To our minds, this question and answer makes the

testimony of this witness doubtful.

33. The next witness who is of importance is PW-11 (Sadhu Ram

Gupta), who is the juice vendor. It is the prosecution case as also

admitted by this witness that Karpai alongwith the two children had

come to his rehri and purchased juice from him which was given to the

two children. It is obvious that if Karpai was not implicated in this

case, this witness would have become the prime suspect because it is

the juice supplied by him which was given to the two children and they

took ill immediately thereafter. Therefore, the testimony of this

witness has to be considered with great circumspection and cannot be

relied upon without corroboration. Unfortunately, if the testimony of

PW-3 (Rajeshwari) is put aside, there is no corroboration from any

other witness. It is only his word that Karpai had mixed some powder

which she took out from a puria from the corner of her saree with the

juice provided by him and that the juice was thereafter split into two

glasses and given to the two children—the boy and the girl. The

investigation on this aspect of the matter is also quite deficient

inasmuch as the glasses in which the juice was given had not been

recovered or sent for chemical analysis nor the juice which was

administered sampled and sent for analysis. This would have ruled out


the suggestion given by the defence that the glasses provided by the

juice vendor could have been contaminated.

34. Before we part with this decision, we may also note the unhealthy

trend which we are noticing in several decisions of the trial courts

wherein the alleged confessional statements are reproduced in their

entirety without examining as to which part is admissible and which is

not. The courts must be mindful of the fact that only that part of the

disclosure statement is admissible in evidence which leads to a

discovery of fact. Other inculpatory parts are totally inadmissible.

Section 27 of the Indian Evidence Act, 1872 is an exception to Sections

25 and 26 thereof and is permissible only within the strict limitations

provided therein. The courts must be mindful of this. If the courts look

at the disclosure statements in their entirety and get prejudiced, this

would lead to a great travesty of justice. We also note that in

practically all cases involving serious crimes, there is an alleged

confession recorded before a police officer. It makes us wonder as to

why criminals commit crimes when they are to voluntarily confess to

the same ! Recording of statements of accused which lead to disclosure

and discovery of the fact is one thing, but to record full-fledged alleged

confessions is another. It does not augur well for the system of

criminal investigation if cases are to be based entirely upon so-called

voluntary confessions before police officers. It also does not behove


the courts to reproduce the entire alleged voluntary confessions made

before police officers in their judgments ignoring which parts are

admissible and which parts are inadmissible.

35. In view of the discussion above, there is doubt in our minds with

regard to the prosecution case. The benefit of such doubt has to go to

the appellant. Consequently, granting such benefit to the accused /

appellant, we acquit her of all charges in this case. The appellant is

currently on bail. In view of her acquittal, the bail bond stands

cancelled and the surety stands discharged.

The appeal stands allowed.

BADAR DURREZ AHMED, J

P.K BHASIN, J July 03, 2009

J./dutt

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