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CASE NO.: Appeal (crl.)  911 of 1997

PETITIONER: Meera

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 15/03/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH  

JUDGMENT: JUDGMENT

B.P.SINGH, J.

       In this appeal by special leave the sole appellant Smt.  Meera is the mother-in-law of the deceased Smt. Hanja.  She  was sentenced to life imprisonment under section 302 IPC and  was sentenced to pay a fine Rs.200/- by the learned Additional  Sessions Judge, Sirohi in Sessions Case No. 28/78.  D.B.  Criminal Appeal No. 155 of 1979 preferred by the appellant has  been dismissed by the High Court of Judicature for Rajasthan at  Jodhpur by its impugned judgment and order of 27th May, 1997. The case of the prosecution is that the deceased was  residing with the appellant in Sumerpur.  The parents of the  deceased resided in a village known as Purada which was at a  distance of about 3 kms. from village Sumerpur.  The case of  the prosecution is that on 9th December, 1976 the appellant  alongwith Deva, DW-2, took the deceased in a ’Tonga’ from  village Sumerpur to Village Purada, to the house of her parents.   The deceased complained to her mother and others, namely \026  PWs. 2 and 3 that she had been administered poison by the  appellant.  She was, therefore, immediately taken to the hospital  at Sumerpur.  The appellant also accompanied them to the  hospital.  The deceased was examined by PW-1 Dr. Purohit  who sent a peon, Madan Lal, DW-1, to inform the police about  the arrival of the deceased who was suspected of having  consumed poison.  Accordingly DW-1 made an oral report at  Police Station Sumerpur which was recorded by Head  Constable Amar Singh, PW-7, in the absence of the Station  House Officer, in the daily diary Ext.D/2.  From Ext.D/2 it  appears that PW-7 was informed by DW-1 that a woman had  been brought to the hospital whose condition was bad and it  was said that she had swallowed poison.  After recording  Ext.D/2, PW-7 went to the hospital and recorded the statement  of the deceased in presence of the doctor, PW-1.  The said  statement has been marked as Ext.P/1.  In her statement to PW- 7 the deceased stated that she had delivered a child about 2 = -  3 months ago.  After delivery she had been brought to  Sumerpur.  She was continuously suffering from dysentery and  fever but she was not being treated.  Only yesterday an injection  was given.  On the date of occurrence her mother-in-law  (appellant) got a medicine from a long container which had rats  drawn on it and gave her that medicine.  When she was not able  to swallow the medicine her mother-in-law forced some water  in her mouth and her father-in-law kicked her on her head.   Thereafter she was put in a ’tonga’ and taken to her parents’

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house at Purada.  Her parents said as to why they had dumped  her there and that they should take her back to Sumerpur.  Her  mother-in-law used to say that it would be better if she dies.   

Ext.P/1 has been treated as dying declaration and the  prosecution has heavily relied upon this statement.  

As the prosecution case goes the matter was investigated  by Head Constable Amar Singh PW-7 and it appears that no  concrete steps were taken.  From the deposition of PW-1, Dr.  Purohit, it appears that suspecting it to be a case of poisoning he  had sent the viscera to Forensic Science Laboratory for  examination and report.  It is not in dispute that the report of the  Forensic Science Laboratory was received on 22nd June, 1977  which disclosed the presence of Zinc Phosphide, a poisonous  substance usually used for killing rats.  It further appears from  the record that after the report of the Forensic Science  Laboratory was received the Deputy Inspector General of  Police on 7th October, 1977 issued a direction to the Deputy  Superintendent of Police to lodge a report and to register a case.   Pursuant to the direction of the Deputy Inspector General of  Police, Deputy Superintendent of Police Shri Raghunath Singh  (PW-5) lodged a report on 24th November, 1977 on the basis of  which a case was registered against the appellant under section  302 IPC.  It will thus appear that the report relating to the  incident on the basis of which the appellant has been prosecuted  was lodged in November, 1977 while the occurrence took place  on 9th December, 1976, about a year earlier.   

Dr. Purohit was examined as PW-1, who was the doctor  at the Sumerpur hospital where the deceased had been brought  on the date of occurrence.  According to PW-1 the deceased  was brought to the hospital at about 7.30 p.m. and she had died  at about 9.50 p.m.  He had sent intimation to police station  through Madan Lal (DW-1) whereafter Head Constable Amar  Singh (PW-7) had come to the hospital and recorded the dying  declaration of Smt. Hanja in his presence.  On the next day he  conducted the post-mortem examination on the body of the  deceased.  On the basis of his finding he opined that the  deceased had died due to peripheral circulatory failure and  respiratory distress due to ingestion of poisonous material \026  probably the poison administered was Zinc Phosphide (rat  killer).  He had sent the viscera to the Forensic Science  Laboratory for their report.  PW-1 stated that he had recorded  the condition of the deceased in writing but that paper was  destroyed after he had recorded the facts in the post-mortem  report Ext.P/2.  He did not remember if any entry relating to  this case was recorded in the out door register of the hospital,  and in any case the out door ticket number was not referred to  in the post-mortem report.  He stated that the deceased was  brought to the hospital by her husband and mother-in-law as  also by her father and mother and other relatives.  The police  had reached the hospital at about 8.00 p.m.

Head Constable Amar Singh was examined as PW-7.  He  stated that he was informed by Madan Lal (DW-1) that a case  of poisoning had been brought to the hospital and, therefore, he  went to the hospital and recorded the statement of that lady.  5- 10 minutes after recording her statement the lady died in his  presence.  He had taken the opinion of the doctor before  recording her statement.  He admitted that the residence of the  Tehsildar was about 1 mile away from the hospital but he did  not call anyone to record her statement.  He also failed to record  the time on Ext. P/1, the dying declaration by inadvertence.  He  denied the suggestion that the certificate was obtained from the

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doctor after the death of the deceased.  He had prepared the  Fard-Surat-Hal, Ext.P/11 and searched the house of the  appellant and prepared Fard Ext.P/12.  He reported the matter to  the Station House Officer on reaching the police station but he  did not register the case and asked him to continue with the  investigation.  In re-examination he stated that due to paucity of  time he did not call for any Magistrate as the condition of Hanja  was serious.

The second dying declaration on which the prosecution  relied is said to have been made by the deceased when she was  taken on a ’tonga’ to her parents’ house at Purada.  Such a  statement was allegedly made by her to her mother Chhogi  (PW-10) in the presence of Sadia (PW-2) and Uma (PW-3).   Chhogi (PW-10), the mother of the deceased, stated that on the  date of occurrence the deceased had been brought on a ’tonga’  to her village in the evening.  Deva was also with her.  Her  daughter was brought down from the ’tonga’ and at that time  she was saying that her mother-in-law made her drink a rat  poison and this was stated in the presence of PW-2  Sadia and  PW-3 Uma.  Immediately the Sarpanch was contacted who  gave them a letter with which they left for the hospital at  Sumerpur.  At the hospital her daughter was alive for about an  hour.   She admitted that her daughter had delivered a child 2 =  months before the occurrence.  She delivered the child at her  parents’ house and 2 months after delivery she was sent to her  matrimonial home.  She denied the suggestion that the deceased  used to remain sick.  On the date of occurrence when deceased  Hanja came to her house on a ’tonga’ she was not taken inside  the house and immediately they had taken her to the hospital  after obtaining a letter from the Sarpanch.  The statement  allegedly making allegation against her mother-in-law was  made by the deceased on her own and without being questioned  by anyone.  She was weeping and saying that her mother-in-law  made her to drink medicine meant for rats.  It appears from the  cross-examination that her statement had not been earlier  recorded by the police when the matter was investigated by  PW-7 soon after her death.  She admitted that her statement was  only recorded 12 months after the occurrence.   

Sadia (PW-2) alleged that in the evening Deva and the  appellant came on a ’tonga’ alongwith the deceased who was  vomiting, weeping and saying that she would die and that her  mother-in-law had administered rat poison to her.  She was  pleading for being taken to the hospital.  They all went to the  hospital where police had recorded the statement of the  deceased.  She denied the suggestion that the deceased had only  stated that she had taken the medicines but her condition was  worsening.  She further admitted that on the date of the death of  the deceased or thereafter her statement was not recorded by the  police.  Only about 12 months later her statement was recorded  for the first time.   

The deposition of Himmata, father of the deceased, (PW- 4) is not of much consequence since he reached the hospital  directly on learning about the condition of his daughter and that  she died soon after he reached the hospital.  According to this  witness the deceased and her husband had come to their house  for one night.  His daughter had told her husband that though he  insisted upon her to go to her matrimonial home, her mother-in- law misbehaved with her.  This witness also stated that the  deceased had told him that her mother-in-law used to torture  her.  He feigned ignorance about the indifferent attitude of the  deceased for 1 \026 1 = months prior to her death.  His statement

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was also recorded for the first time 12 months after his  daughter’s death.  However, surprisingly, from the statement  recorded under Section 161 of the Code of Criminal Procedure  it appears that there is no mention of the fact that his daughter  had told him about the bad behavior of her mother-in-law or  had stated such a fact in his presence to her husband.  It would,  therefore, be difficult to hold, on the basis of his statement, that  the deceased was subjected to torture by the appellant.  Indeed  there is nothing in the evidence of Chhogi (PW-10), the mother  of the deceased, that her daughter was subjected to torture by  her mother-in-law during her two years of married life.   

We may now refer to the evidence on record on which  the defence places considerable reliance.

Chunia (PW-8), the husband of the deceased, was  examined by the prosecution as a witness.  He deposed that his  wife used to behave like a mad person and at night she used to  go out from the house.  There was no medicine for killing rats  in his house and there was no quarrel between his wife and  mother.  The deceased had been suffering from dysentery and  fever for a period of one month prior to her death.  She used to  give a blank look and suffered a suspicion that she was being  tortured by Gods and Goddesses.  From the statement of PW-8  produced before us it appear that this witness was not declared  hostile.         

The other witness DW-2, Deva, deposed that on the date  of occurrence the deceased was unwell and he had accompanied  her in a ’tonga’ to her parents’ house.  The deceased had stated  that she had taken the drug used for killing rats.  They had gone  to the hospital after obtaining a letter from the Sarpanch of the  village Purada.  During his presence the deceased had not stated  that she had been administered poison by her mother-in-law.   She had only stated that she had taken a drug and that she  should be taken to the hospital.  

There is then the evidence of Pukhraj (PW-9), the ’tonga’  driver who took the deceased to her parents’ house at Purada.   According to him he had taken the deceased alongwith the  appellant and Deva (DW-2) to village Purada.  Deva alighted  from the ’tonga’ near the naka of Purada village and thereafter  those persons went to village and returned after = an hour and  asked him to take them to village Sumerpur.  Sadia (PW-2) and  Chhogi (PW-10), the mother of the deceased, also accompanied  them to Sumerpur on his ’tonga’.  He brought them to the  Government hospital at Sumerpur.  According to this witness  the girl (deceased) did not appear to be ill and she herself  walked to the hospital.  This witness was declared hostile by the  prosecution and was confronted with his statement earlier made  to the police in the course of investigation.

Such is the evidence on record.  We have already noticed  the fact that the report relating to the occurrence on the basis of  which the case was investigated was lodged about one year  after the occurrence and only thereafter the witnesses were  examined.  It does not appear that the parents of the deceased or  anyone else formally lodged a report complaining of the fact  that the deceased had been poisoned by the appellant.  The  record also discloses that after receiving the report from the  Forensic Science Laboratory the Deputy Inspector General of  Police directed the Deputy Superintendent of Police to lodge a  report and to get a case registered against the appellant.  In a  case of this nature one has to guard against any improvements  made by the witnesses taking advantage of considerable lapse

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of time.  There is no direct evidence on record to prove the fact  that the deceased had been administered some poisonous  substance by the appellant.  The case of the prosecution rests  entirely on the dying declaration alleged to have been made by  her to her mother Chhogi (PW-10) at her village Purada and the  second dying declaration in the form of a statement made to  Head Constable Amar Singh (PW-7) after she was brought to  the hospital at Sumerpur.  There is really no evidence worth  mentioning to establish the fact that the appellant had a motive  to cause the death of the deceased.  PW-10, the mother of the  deceased has not even whispered that the appellant used to  torture her daughter when she lived with her.  There is no  reference to any incident in this connection.  For the first time  after one year, the father of the deceased, PW-4, Himmata  sought to bring in a story of his daughter telling him about the  ill treatment meted out to her by the appellant.  Surprisingly,  though his statement before the police was recorded almost one  year after the occurrence, there was no mention of this fact in  the said statement.  We are, therefore, not persuaded to accept  the allegation regarding torture by the appellant made for the  first time in the course of trial by PW-4.  There is, therefore, no  evidence on record to prove that the appellant had any motive  to commit the offence.  In fact if one goes by the evidence of  Chunia (PW-8), the husband of the deceased, there was no  quarrel between his wife and his mother.  He, however, did  mention that after delivery of the child his wife behaved in a  peculiar fashion.  She looked blank in dazed and was suspicious  of the fact that she was being tortured by Gods and Goddesses.   She had also been suffering from dysentery and fever for about  a month before her death.  In fact in the alleged dying  declaration made to Head Constable Amar Singh, PW-7, there  is mention of the fact by the deceased herself that she had  been  keeping unwell for about a month and that she was suffering  from dysentery and fever.  Though she alleged that she was not  being properly treated, she admitted that one day before the  occurrence she was given an injection by way of treatment.   The circumstances, therefore, disclose that after child birth the  deceased was in a disturbed state of mind and was suffering  from dysentery and fever for which she was being treated.  In  fact in her dying declaration made to the police she had stated  that her mother-in-law had given her a drug from a long  container on which the picture of rats were printed.  All these  go to show that the deceased was unwell and was being  medically treated.  

So far as the veracity of the first dying declaration is  concerned, we are not inclined to attach much weight to it  because the witnesses have for the first time mentioned about  the said dying declaration one year after the occurrence and  after the report of the Forensic Science Laboratory had become  available.  No one had earlier reported to the police about the  alleged dying declaration.  It is, therefore, not safe to base the  conviction of the appellant on the basis of such a dying  declaration about which the witnesses for the first time have  spoken after about a year of the occurrence.                  

This leaves us with the second dying declaration  allegedly made to Head Constable Amar Singh (PW-7).  The  defence of the appellant is that this statement was recorded on a  blank sheet of paper after the death of the deceased.  According  to the doctor, PW-1, the deceased was brought to the hospital at  about 7.30 p.m. and she breathed her last at 9.50 p.m.  PW-7,  Head Constable Amar Singh admitted in the course of his  examination that the Tehsildar was available about 1 mile away  from the hospital but on account of paucity of time he was not

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called  for recording the dying declaration.  We may also notice  at this stage that no time is mentioned on the alleged dying  declaration recorded by this witness.  The reason given by PW- 7 for not summoning the Magistrate to record the dying  declaration does not appear to us to be convincing.  According  to PW-7, on receiving information, he reached the hospital at  8.00 p.m. and recorded the statement of the deceased.  He  further stated that the deceased died within 5-10 minutes of his  recording the statement and he was present in the hospital at  that time.  This explanation does not appear to be convincing  because according to the doctor, PW-1, the police had come to  the hospital and recorded the dying declaration at 8.00 p.m. and  the deceased died at 9.50 p.m.  The prosecution had, therefore,  abundant time to summon the Magistrate for recording the  dying declaration since he was available only a mile away from  Sumerpur.

So far as the medical records are concerned, the doctor,  PW-1, admitted that the papers on which he had recorded the  condition of the patient till she died, had been destroyed.  There  is no entry in the out door register about the deceased having  been brought to the hospital, nor is there any reference to the  out door ticket number in the post-mortem report.  The  treatment sheet of the hospital recorded by the doctor would  have shown whether she was really treated for poisoning,  because if she had really made such a statement, as alleged by  the prosecution in the presence of the doctor, he would have  taken appropriate measures.  Though the doctor claims that he  had subjected the deceased to gastric aspiration, that was done  before her dying declaration was recorded.  He claimed to have  given treatment for respiration stimulation and maintenance of  blood pressure but the condition of the deceased went on  deteriorating.  Apart from the oral statement of the doctor made  2 years after the occurrence, no documentary evidence has been  produced to substantiate his claim.  His original writings on  which the treatment given to the patient was recorded,  admittedly was destroyed by him, even though he knew it to be  a medico legal case, as admitted by him.   

There is another aspect of the matter for which there is no  explanation.  This is not a case where, according to the  prosecution, the poison was administered to the deceased  without her knowledge or suspicious.  If one is to believe the  dying declaration one fails to understand why the deceased  would have swollen the poison given by her mother-in-law  when she had seen, as claimed by her, that what was being  given to her was poison meant for killing rats.  All these facts  create a serious doubt in our mind as to whether the dying  declaration was really recorded in the manner alleged and also  as to the veracity and truthfulness of the said dying declaration.   As we have noticed earlier there is no evidence on record to  show that the relationship between the appellant and the  deceased were strained and not cordial.  There is also evidence  on record to show that the deceased had been keeping unwell  after child birth and she was being treated for her ailments.  The  High Court has observed that there was no reason for the  deceased to commit suicide.  Apart from the fact that a person  committing suicide behaves with abnormality, equally there is  no reason for the appellant to commit the murder of the  deceased.  That apart, the conduct of the appellant is also not  consistent with the hypothesis of her guilt.  If she had really  administered poison to the deceased she would not have  accompanied the deceased to her parents’ house at Purada and  thereafter taken her to the hospital at Sumerpur.  Admittedly,  she was present all the time and all this only indicate her

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innocence in the matter.  Looking to the circumstances in which  the dying declaration was recorded by the police officer and not  by the Magistrate, and having regard to the other facts and  circumstances of the case, we are of the view that the  prosecution has not proved its case beyond reasonable doubt,  and in any event the appellant is entitled to the benefit of doubt.   

Accordingly we allow this appeal, set aside the  conviction of the appellant and acquit her of all the charges  levelled against her.  She is on bail.  Her bail bonds are  discharged.