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PETITIONER: DHARAM DAS WADHWANI

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT14/03/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. KHANNA, HANS RAJ

CITATION:  1975 AIR  241  CITATOR INFO :  R          1991 SC1388  (8)

ACT: Practice-Criminal Trial-Circumstantial evidence-Appreciation of

HEADNOTE: The accused,a compounder in a hospital was charged with  the offence  under s. 328 I. P. C., of administering  poison  to one of the two doctors of the hospital.  He was acquitted by the  trial  court  but  found  guilty  by  the  High  Court. Dismissing the appeal to this Court, HELD  :  The  critical  rule  of  proof  by   circumstantial evidence, is that such testimony can be the probative  basis for  conviction  only  if one rigorous  test  is  satisfied, namely,  that the circumstances must make so strong  a  mesh that the innocence of the accused is wholly excluded and  on every reasonable hypothesis the guilt of the accused must be the  only  inference.  Every evidentiary circumstance  is  a probative  link, strong, or weak, and must be made out  with certainty.   Link  after  link  forged  firmly  by  credible testimony may form a strong chain of sure guilt binding  the accused.  Each link, taken separately, may just suggest  but when  hooked  on to the next and on again  may  manacle  the accused  inescapably.   Only  then can  a  concatenation  of incriminating  facts  suffice  to  convict  a  man.   If   a reasonable doubt arises regarding the guilt of the  accused, benefit  of  that doubt cannot be withheld  from  him.   But proof  beyond  reasonable doubt cannot be distorted  into  a doctrine  of  acquittal when any delicate  or  remote  doubt flits past a feeble mind. [61 1E, G-H, 612A-B] In  the present case, the accused bore a grudge against  the victim.   When  he  was requested by  the  victim  to  bring aspirin he brought it in two packets.  There were traces  of strychnine  crystals in the paper of the packet  from  which the victim had swallowed what he thought was aspirin, and an analysis  of  the stomach wash showed that he  had  consumed strychnine.   The accused falsely denied that there was  any stock of strychnine, He took a quarter of an hour to get the aspirin, suggesting that he went into the store room to take out  a  little strychnine.  The circumstance  that  the  two packets  contained different substances-aspirin in  one  and strychnine  in  another-shows  that  the  accused  took  the

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powders   from   2  different   bottles,   eliminating   the possibility of an accident.  When another doctor asked him a searching question about the aspirin the accused was seen to be trembling.  The accused never showed any anxiety to  save the  victim.  In the commital court he took a false plea  of denial  and  modified  his plea in  the  Sessions  Court  to present  a plausible defence.  These circumstances  lead  to the  only  reasonable inference that he is guilty,  and  the other likelihoods are mere possibilities. [612C-G] S.S. Bobade v. State of Maharashtra [1973] 2 SCC 801  and Kali  Ram  v. State of Himachal Pradesh A. 1. R.  1973  S.C. 2773 followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 222 of 1970. Appeal  by leave from the Judgment and Order dated the  15th January,  1970 of the Allahabad High Court at Allahabad  in. Government Appeal No. 132 of 1967. Nuruddin Ahmed, B. P. Singh AND A. K. Varma, for the  Appel- lant. 0. P. Rana for the Respondent. The Judgment of the Court was delivered by- KRISHNA   IYER,  J.-A  few  facts  with   unique   features, attracting   a  recondite  provision  of  the  Penal   Code, constitute the subject-matter 608 of  the  criminal case which ended in an  acquittal  in  the sessions  Court reversed at the appellate level and  is  re- agitated before us in this appeal by    special leave. The  offence for which the accused has been punished is  one under s.  328,  I.  P.  C., for administering  poison  to  a doctor  by a compounder with intent to cause hurt.   We  did bestow anxious reflection on the materials placed before  us in  the  light of the submissions made by  counsel  for  the appellant,  Shri  Nuruddin Ahmed, but, with  due  regard  to their  peculiarities and probabilities, we have  established ourselves  on  the conclusion that the High Court  has  held right that the accused is guilty of the offence charged. The prosecution case, in brief, takes us to a small hospital scene where we have two medical officers, P. Ws. 2 and 3,  a compounder  the  accused,  and a peon,  Badri.   The  senior doctor,  P. W. 2, arrives in the hospital around 9  30  a.m. with a bad headache and asks the accused, appellant for  ten grains of aspirin.  Some 12 or 13 minutes are taken for  the appellant  to  bring  to his own  doctor  aspirin  which  is readily  available in the dispensing room.   The,  appellant brings  two  packets,  ’asprin’ written  on  them,  and  the patient-this  time the doctor himself-consumes  one  packet. Bitten  by bitterness of taste unusual in aspirin, P.  W.  2 asks  the  attender, Badri, to fetch a glass of  water.   By that  time,  P.  W. 3, the other doctor,  had  come  and  is sitting  in  the next chair.  P. W. 2 complains to P.  W.  3 about  the strange bitterness in the tongue,  aspirin  being tasteless.  He gargles his mouth, washes his face with water and asks the attender to buy some beatle leaves,  apparently to  overcome the bad taste.  Thereafter he proceeds  to  his normal  work  and  tries  to give  injection  to  a  patient waiting, but begins to feel shaky.  Within a few minutes  P. W.  2  has the sensation of cramps in the calf  muscles  and P.W. 3, the other doctor, is perplexed.  So he goes into the dispensing  room and asks the accused from which  bottle  he had given the aspirin.  The latter shows a bottle of aspirin

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kept  there, and when asked whether he had accidently  given strychnine  denies that strychnine, a deadly poison,  is  in stock  at  all.  Of course, the accused  himself  begins  to tremble.  Any way, P. W. 3 seals the bottle of aspirin taken from the dispensing room as well as the paper of the  packet in  which the medicines taken by P. W. 2 was kept,  and  the other unconsumed packet.  Apprehensive of poisoning, P. W. 2 is  removed  to the District Hospital, where he is  given  a stomach  wash.   His condition becomes  precarious  and  his statement is recorded by P.W.7, the Police Officer  attached to  the  Kotwali Police Station, and a  case  is  registered under  s.  328, 1. P. C., against the accused, Ex.   Ka.  1. P.W.  3  gives a written report, Ex.  Ka. 2,  and  also  the sealed packets to P. W. 7, the Police Officer.   Thereafter, investigation begins and the dispensing and store rooms  are inspected  and  the stock register examined.  No  bottle  of strychnine   is  seen  in  the  dispensing  room,  but   one containing  4.2 grams of this lethal poison is found in  the store room-vide Ex.  Ka. 8, the search memo. The Chemical Examiner found on analysis of the stomach  wash that P. W. 2 had consumed strychnine.  There were traces  of stry- 609 chnine crystals in the paper of the packet from which P.  W. 2 had swallowed the headache cure.  The other packet,  which was not used, contained only aspirin.  The symptoms which P. W.  2  developed  were  clearly  indicative  of   strychnine poisoning. It has been found by the High Court that it was the  accused compounder who brought the two packets of medicine to P.  W. 2.  Likewise, it has been found that if was the accused  who dispensed  the medicine and that there was no strychnine  in the  dispensing room, but there was some quantity of  it  in the  store  room.   The High Court has also  held  that  the accused’s  denial  to P. W. 3 that there was  no  strychnine available  in stock was false and that the interrogation  so upset the accused that he began to tremble. These  are  the  broad  findings  which  have  led  to   the conviction of the accused, whose stand, however, was one  of denial.   He agreed, while examined in the  sessions  court, that P. W. 2 had told Badri, the attendant, to bring aspirin and he in turn told the accused that Doctor Saheb had wanted two  ’purjas’ of aspirin, whereupon the accused  told  Badri that aspirin packets were kept ready there and he had better take  them  out and give to the doctor.  In short,  he  dis- connected  himself from the doctor’s request for aspirin  or the  delivery of the two packets of medicine.   The  further answer  of  the accused was that P. W. 3  merely  asked  him where the bottle of aspirin was and not where the bottle  of aspirin from which he gave the packet to P. W. 2 was.   That is to say, the incriminating component of that part of  the, testimony  of P. W. 3 is denied by the accused.   He  denies again  that he told P. W. 3 that there was no strychnine  in stock while, as a fact, 4 2 grams thereof were found in  the store room.  He suggests an answer to why such a case should have  been started against him that it is due to the  grudge P. W. 3, Dr. Baijal, bore against him.  In this context,  it is  meaningful  to note that before the Committal  Court  he took a patently false stand, namely, that P.W. 2 had neither asked  him  for  aspirin nor had he dispensed  any  to  him. Indeed,  he has resorted to an audacious plea  that  "purias are  dispensed  by  the hospital attendants . .  .  .  three persons  work  as hospital attendants; I got rest  on  every Friday and on that day I enjoy holiday." The obvious attempt was  to  fob  off  the  poisonous  packet-on  the   hospital

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attendant.  In the Session Court, however, he abandoned this impossible  position and put forward a more plausible  case, trying to cash in hopefully on Badri, the peon, being set up as a dispensing chemist so far as the puria in question  was concerned. The Sessions Court acquitted the accused on a perverse  view of  the evidence.  Although the learned Judge has  set  down the points pressed into service by the prosecution properly, he has gone off at a tangent into an investigation as to why the  paper with which the poisonous puria was made  was  not mentioned  in  Ex.  Ka. 2. He gets entangled  in  a  serious series  of  trivialities  and  magnifies  minor   militating circumstances  to  persuade himself to the  conclusion  that there was something very fishy in the investigation on  this aspect. 610 The learned Sessions Judge asks why the accused, should have given  two  purias instead of one, and why  he  should  have taken  the chance of the doctor taking the  innocuous  puria out  of  the two, if he had an offending intent.   He  works himself up into the chance possibility of strychnine getting into the doctor’s body through the water he ,drank after the powder was taken, forgetting that P. W. 2 complained of  the bitter taste when he took the powder and not after he  drank the water. The learned Sessions Judge observed               "The  possibility  of  the  strychnine  having               found  its way in the system of Dr. Sen  Gupta               by  some  way other than the contents  of  the               Puria cannot at all be excluded, for there  is               evidence of Dr. Sen Gupta himself that he took               the powder of the Puria along with water which               Badri  had  brought  and  the  possibility  of               strychnine  being  in  the  water  cannot   be               excluded." Another casual circumstance which the Sessions Judge  chases is  that  the hospital peons prepare mixtures  and  powders, suggesting  thereby that the purias in question  might  have been  got  prepared by Hospital peons and not  the  accused. Yet another fanciful argument which has appealed to him  is, in his own words, that:               "Dr.   Sen Gupta has admitted that  strychnine               is   used  in  other  medicines   also.    It,               therefore, cannot be safely ruled out that the               strychnine  found  its  way into  one  of  the               aspirin Purias already prepared and accidently               that Puria was taken by Dr. Sen Gupta." Not  content  with  these  freak  conjectures,  the  learned Sessions  Judge  fancies that had the accused  an  intention against  his victim, he would have given him ten  grains  of strychnine  which would have knocked him down at once  since one  part  of strychnine in 7000 parts of water  would  have made  the  whole quantity bitter and even half  a  grain  of strychnine could have been a fatal dose.  On the question of motive,  the Sessions Judge has again made mistakes, and  as for  the long interval for supplying the packets, the  Judge has a convenient personal theory:               "Anyone  who  has  any  experience  of  how  a               dispenser works at a hospital knows that  they               are  neither very prompt nor  very  efficient.               After  all  Dr. Sen Gupta was  only  having  a               headache and there was no immediate urgency." We  could easily illustrate more of this species but  desist from doing so as it is unnecessary.  All that we need say is that  a court is not concerned with fantastic  possibilities

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but with practical realities. The  learned  Judges of the High Court have set  the  record straight,  if  we  may  say  so.   They  have  come  to  the conclusion that it was the accused who was directed to bring aspirin  and  it  was he who brought the  two  packets,  the contents of one of which were poisonous.  The learned Judges have held on a study of the evidence 611 that  the  accused’s plea that there was  no  strychnine  in stock  was false and that he had sought to put off P. W.s  2 and 3 by such a false answer.  The intention of the  accused to introduce strychnine is inferred by the High Court thus               "In  view  of the circumstances that  the  two               packets handed over to Dr. Sen Gupta contained               two different, substance, it is clear that the               same  were taken from two different  bottles..               It   cannot  be,  therefore,  said  that   the               respondent committed an accidental though bona               fide mistake of giving the powder from a wrong               bottle.  The fact that he took powder from two               different  bottles  whereas he ought  to  have               taken from only one, itself shows that he  had               a-guilty mind. The  effect of the motive made out in the case has not  been lost’ sight of by the High Court, although too much has  not been  read into it, rightly if we may say so.  The  ultimate conclusion reached by the learned Judges is that the accused gave  a  packet containing strychnine to P. W. 2  for  being consumed  by him.  On these fact,", which have been  arrived at  by a reasonable appraisal of the evidence,  the  present appellant has been found guilty by the High Court. Shri  Nuruddin  Ahmed, counsel for  the  appellant,  rightly stressed   that  the  prosecution  edifice  was   built   on circumstantial  evidence  only since’ no one  had  seen  the accused  mix  strychnine  with aspirin  before  serving  the doctor.   The  critical  rule of  proof  by  circumstantial’ evidence, counsel reminded us, is that such testimony can be the probative basis for conviction only if one rigorous test is satisfied.  The circumstances must make so strong a  mesh that the innocence of the accused is wholly excluded and  on every reasonable hypothesis the guilt of the accused must be the  only  inference.  Shri Nuruddin  Ahmed  suggested  some maybes  in the case excluding his client’s culpability,  and contended  that  the  test  of  incompatibility  with.   the innocence of the accused had not been fulfilled at all here. As  a,  proposition of law and commonsense,  we  agree  that unlike direct evidence the indirect light circumstances  may throw may vary from suspicion to certitude and care must  be taken  to  avoid  subjective  pitfalls  of  exaggerating   a conjecture into a conviction. Every  evidentiary circumstance is a probative link,  strong or,  weak, and must be made out with certainty.  Link  after link  forged firmly by credible testimony may form a  strong chain  of sure guilt binding the accused.  Each  link  taken separately  may just suggest but when hooked on to the  next and on again may manacle the accused inescapably.  Only then can  a  concatenation  of incriminating,  facts  suffice  to convict a man.  Short of that is insufficient. The  question then is whether the cumulative effect  of  the guilt  pointing  circumstances in the present case  is  such that  the  court can conclude, not that the accused  may  be guilty  but  that he must be guilty.  We must here  utter  a word of caution about this mental 612 sense of ’must’ lest it should be confused with exclusion of

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every  contrary  possibility.  We have in S.  S.  Robade  v. State   of  Maharashtra(l)  explained  that   proof   beyond reasonable  doubt  cannot be distorted into  a  doctrine  of acquittal  when  any delicate or remote doubt flits  past  a feeble  mind.  These observations are warranted by  frequent acquittals   on   flimsy   possibilities   which   are   not infrequently  set  aside by the High  Courts  weakening  the credibility  of  the judicature.  The rule  of  benefits  of reasonable  doubt does not imply a frail willow  bending  to every  whif of hesitancy.  Judges are made of sterner  stuff and  must  take a practical view  of  legitimate  inferences flowing  from  evidence, circumstantial or direct.   At  the same  time it may be affirmed, as pointed out by this  Court in  Kali  Ram v. State ,of Himachal Pradesh (2), that  if  a reasonable doubt arises regarding the guilt of the  accused, the benefit of that cannot be withheld from him. Coming  to  the case in hand, the Sessions  Judge  has  been obsessed  by  mere  maybes.  Maybe, the  attender  made  the packets;  may  be the doctor ,  witnesses  are  adulterating truth; may be the motive is untrue or inadequate; may be the presence’  of two purias, one of which is  aspring  suggests the accused’s innocence, and so on.  Doubt feeds on  itself. Here  are certain incontrovertible facts.  The accused  bore an  immediate  grudge  against  P.  W.  1-the  adequacy   of motivation  is  a subjective exploration.  The  accused  was requested  to  bring aspirin and he brought it in  two  tiny packets.   He was perhaps not faking a ’chance  because  the doctor   might  well  have  swallowed  both  but   for   the intolerable bitterness of the first.  He falsely denied  the stock of strychnine and took a long quarter of hour to get a little aspirin to his own boss, suggesting that he went into the  store  room to take a little strychnine.   He  trembled when  P.  W. 3 turned to ask him a searching  question.   He never  showed  any  anxiety to save the doctor  out  of  the calamity  and  in the committal court took a false  plea  of denial modified in the Sessions Court to present a plausible defence.   The  following questions arise: Did  the  accused prepare the medicine which did indubitably contain poison  ? Yes.   Did he do it accidently ?  No. Did he have motive  to harm the victim ? Yes.  Did he deny falsely in the committal court’ ? Yes, and that is itself a guilty circumstance.   Do other  likelihoods  neutralise the  incrimination  available from these If circumstances ? Noreasonable      inferences      but theoretical possibilities. If crime is to bepunished gossamer web niceties must yield to realistic    appraisals. The compounder has dispensed a deleterious   substance    to his owndoctor  and  has  been rightly  held  guilty.  The sentence does not call for interference either.  We  dismiss the appeal. Appeal dismissed. V.P.S. (1)  [1973] 2 SCC,801. (2)  AIR 1973 SC.2773. 613