S. Acharya, J.
1. The above mentioned two criminal appeals arise out of one and the same Judgment, passed by the Additional Sessions Judge, Dhenkanal in Sessions Trial No. 2-A of 1968, whereby all the, three appellants stand convicted under Section 120B(1), I. P. C, and have been sentenced thereunder to undergo rigorous imprisonment for 10 years. Appellant Duryodhan has also been convicted under Section 302, I. P. C. and has been sentenced thereunder to undergo rigorous imprisonment for life. The above mentioned sentences against appellant Duryocthan have been ordered to run concurrently.
Both the above appeals were taken up for hearing together, and we dispose them both by this one judgment.
2. In the trial court, charges under Sections 302. I.P. C. and 120B(1), I. P. C. were framed against appellant Duryodhan, and charge under Section 120B(1). I. P. C. alone was framed against the appellants Kandia Sahu and Sadananda Biswal. They all pleaded not guilty to the above mentioned charges.
3. The prosecution case, bereft of the unnecessary details, is that the appellants, in order to enjoy the landed property of late Bida Biswal, entered into a criminal conspiracy to murder Jujei Sahu, the deceased. Appellant Kandia Sahu was the first husband of P. W. 8, Abala Bewa, the daughter of late Bida Biswal. The deceased, Jujei Sahu, was the second husband of the above named Abala. There were civil and criminal litigations between the parties, some of which were still pending at the time when the occurrence took place. As appellants Kandia and Sadananda Biswal were not successful in getting Bida Biswal's property in the said litigations, they entered into a criminal conspiracy with i appellant Duryodhan Barik. a village barber, to kill Jujei Sahu, the deceased,-by administering poison to him. Duryodhan was lured to the said job by the promise of a reward in the shape of money and land to be given to him on the performance of the job. Duryodhan, in accordance with the aforesaid conspiracy, administered ' Pholidol poison through drinking water to Jujei Sahu when he halted at Duryodhan's house for some time while returning from Angul town on 6-7-1967. Jujei Sahu, after drinking that water, proceeded a short distance from the house of Duryodhan Barik and fell down on the road side and after sometime met his death. After investigation, and commitment the appellants were tried for the above mentioned charges framed against them, and they have been convicted and sentenced as stated above.
4. The defence case is a total denial of the entire prosecution case, Appellant Duryodhan has stated in his Section 342 statement that he has been falsely implicated in this case as he stopped rendering service to the deceased. Both the other two appellants, in their statements under Section 342 of the Code, deny the entire prosecution case against them, and state that a false case has been foisted against them. The defence did not adduce any evidence.
5. P. W. 26, the lady doctor, who conducted the post-mortem examination on the dead body of the deceased at 9.30 p. m. on 8-7-1967 found the following symptoms:
The body had decomposed and blisters were present over the abdomen and the left eye. There was peeling of the skin throughout the body. Rigor mortis was partly present. Eyes and mouth were closed. The tongue had protruded and was bitten by the teeth. No external or internal injury could be noticed anywhere in the body. Layrinx, trachea paricardium and the left lung were congested. All the chambers in the heart were empty. There was no solid food in the stomach, but it contained a small quantity of yellow coloured fluid. The time of death from the time of postmortem examination was about 16 to 20 hours. Immediately, in the post-mortem examination P. W. 26 was not able to give any opinion regarding the cause of the death of the deceased. She sent the viscera of the dead body for chemical examination in a packed and sealed content. The Chemical Examiner's report. Ext. 12 dated 13-3-1968, mentions that parathion (pholidol) was detected in the viscera, On seeing the said report in the court, she opined that the death of the deceased was due to pholidol poisoning,
P. W. 26 answered the queries of the S. I., Bantala contained in Ext. 8 dated 28-9-1967, by saying that pholidol is a poisonous drug for human beings. She then could not definitely state about the signs and symptoms of death due to pholidol poisoning. She, however, stated therein that she did not find any signs and symptoms of death by epileptic feats in the dead body. Later again to the queries in Ext. 9 dated 18-7-67, she answered that there was no smell of alcohol in the stomach of the dead body, but could not give any opinion in the absence of the Chemical Examiner's report, if there was sufficient alcohol present in the stomach as to cause the death of the deceased, as the stomach contents were less in amount, and also as to whether there were any signs of death due to drinking of alcohol in the dead body.
In her cross-examination she stated that she did not remember fully the various classification of poisons; that she had not seen pholidol; that she did not know the pholidol compound and could not say under what classification pholidol poison would come. Much was sought to be made on the above statements of P. W. 26. But they do not anyway go to discredit the intrinsic merit of her evidence. She stated that on reading some agricultural pamphlets she could know that pholidol was a poison, and that as a medical expert she could say that death could be caused by pholidol poisoning.
Parathion, which is in pholidol as seen from the Chemical Examiner's report (Ext. 12), is a poison, as mentioned in the Schedule of Poisons attached to Chapter XXI of the Modi's Medical Jurisprudence, 17th Edition (page 459). As parathion was found in the viscera of the deceased, as stated in the Chemical Examiner's report (Ext. 12), and P. W. 26 stated that death could be caused by pholidol poisoning, we accept that the death of the deceased was due to pholidol poisoning.
6. There is no eye-witness to the occurrence in this case, and the prosecution, in order to establish the charges against the appellants, depends only on circumstantial evidence. The prosecution has examined 27 witnesses, and the defence none.
7. All the three appellants stand convicted under Section 120B(1), I. P. C. The learned Counsel for the State depends on the evidence of P. W. 9 to this effect and concedes that there is no other witness td this effect. Admittedly P. W. 9 is the cousin brother of P. W. 8 (Abala). the wife of the deceased. Abala, after parting company from her first husband, appellant Kandia. remained with the deceased as his wife. It is admitted by P. W. 9 that he although helped the deceased in his litigations against appellant Kandia and others.
This witness in his examination-in-chief, bereft of the unnecessary details, states that appellant Duryodhan was working as a barber in village Balang, to which the other two appellants belong. Duryodhan was staying at times in the house of appellant Kandia. Appellant Sadananda and one Gada supported appellant Kandia in his litigations against the deceased and his party. About a month before the occurrence appellant Duryodhan and appellant Sadananda had chicken feast in the house of P. W., 9's younger brother Madan Biswal (not examined). About 7 or 8 days prior to the occurrence. P, W. 9 was told by appellant Duryodhan that he would kill the deceased. Alter the occurrence, he (P. W. 9) heard appellant Duryodhan demanding the promised reward from appellant Kandia for killing the deceased. One Kulaba Behera (not examined), who was present at that place, stated that it would suffice if a goat feast is given on the aforesaid account. But appellant Sada added, that apart from the goat feast, all the other conditions should also be fulfilled. Appellant Kandia had promised to give Rs. 500/- plus two gunths of land for the aforesaid purpose, and Sadananda reminded Kandia about the same. Kandia then agreed to fulfil the aforesaid conditions. On the date of occurrence, P. W. 9 also heard appellant Sada and one Gada talking amongst themselves that Saleia Para Puaku Ani Athera Ghaita Kari Khauthantu'. They stopped talking further when they saw P. W. 9.
Though P. W. 9 belonged to the deceased camp, and he although helped the deceased in his litigations against appellant Kandia and he (P. W. 9) never talked to appellant Sadananda and the said Gada, who belonged to appellant Kandia's party, which facts all were admitted by P. W. 9 in his deposition, it is not understood why Duryodhan Barik, who allegedly entered into a conspiracy with appellant Kandia and Sadananda to kill the deceased, would confide in P. W. 9. and divulge to him such a secret and confidential conspiracy to kill the deceased, with whom P. W. 9 himself was so interested. P. W. 9 in his examination-in-chief itself stated that 'One day. some one year or six months back, the deceased while coming from Angul slipped down in front of the house of Duryodhan who took care of him and nursed him back to normal health, with the result, they became intimate friends.' It is also not understood why appellant Kandia and Sadananda could lay faith on appellant Duryodhan and confided in him for such secret matter, when, as stated above, Duryodhan was an intimate friend of the deceased. If 'one year' in the above quoted sentence means one year prior to the deposition of the witness in the court below, for there is no other indication in the said sentence, why should Duryodhan, who was interested in killing the deceased, - have taken the trouble of nursing and/or taking care of him at that time, by which the aforesaid conspiracy had already been hatched.
8. P. W. 9, also stated in his cross-examination that he invited Duryodhan Barik to his house to dine with him when Duryodhan divulged the above conspiracy about killing the deceased to him. P. W. 9 also was told by Duryodhan then that he had agreed to kill the deceased as he would get some money and other things for doing the said job. It sounds extremely improbable that such a secret matter would be divulged in such a casual manner, and that too to P. W. 9. a person so closely associated with and interested in the deceased. P. W. 9 stated that he informed the deceased about the aforesaid conspiracy of the appellants very soon after ,he came to learn about the same. If really P. W. 9 came to know about the said conspiracy and kept the deceased informed about the same, it is surprising that the deceased, would call on Duryodhan's place on the date of occurrence for taking any food or water in Duryodhan's house on his way back from Angul to his village-On the contrary, the deceased, on the aforesaid information, would have tried his best to keep away from appellant Duryodhan and the other appellants, in all possible manner and in all circumstances.
The other significant feature in the deposition of P. W. 9 is that this witness did not mention to the Police during investigation about the conspiracy amongst the appellants to kill the deceased. He admits categorically that he did not inform anybody in the village about the aforesaid conspiracy and stated in the committing court that he did not know anything about the case. Because of the above-mentioned unconvincing features in his evidence, it becomes difficult for us to place any reliance on the uncorroborated evidence of this interested witness. The learned Addl. Government Advocate, appearing for the State, fairly and rightly conceded that on the above evidence of P. W. 9 the conviction of the appellants under Section 120B(1), I. P. C. could not be maintained. Accordingly, the conviction of all the three appellants in the above two Criminal appeals, under Section 120B(1), I. P. C. and the sentences imposed on them thereunder are liable to be set aside.
9. It is now to be seen as to how far the prosecution could bring home the charge under Section 302. I. P.C. against appellant Duryodhan Barik who has preferred Criminal Appeal No. 164 of 1968. In a case of death by poisoning, as has been held in the decision reported in AIR 1933 All 394. and in the two unreported decisions of the Supreme Court mentioned in paragraph 58 of the decision reported In : 1960CriLJ682 , the prosecution must establish; (1) that death took place by poisoning; (2) that the accused had the poison in his possession and (3) that the accused had an opportunity to administer the poison to the deceased. In paragraph 59 of the above Supreme Court decision (AIR 1960 SC 500). it is observed and held as follows:
The cases of this Court which were decided, proceeded upon their own facts, and though the three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that the death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it.
10. On the law as laid down above we would proceed, at first, to examine if the prosecution has been able to establish the above mentioned three elements, in the present case.
11. The first element, i. e. that death took place by poisoning, has been established in this case, as discussed above.
12. The prosecution, in order to establish the second element, namely that the accused had the poison in his possession, led evidence through P. W. 13 who deposed to the effect that he supplied pholidol to appellant Duryodhan three years prior to his deposition in Court. P. W. 13 was a peon of the Poktunga Gram Panchayat Office, and in the said office, as stated by him, insecticides like pholidol, gamaxine etc. were kept for plant protection, and the same were supplied to the villagers on nominal charges. In his cross-examination by the defence, he admitted that a large number of villagers took pholidol from him, and that no register was maintained for the supply of the said insecticide. He further stated therein that though pholidol was being sold to the villagers, he supplied the same free to Duryodhan. In his cross-examination under Section 154, Evidence Act. he negatived the prosecution suggestions that he stated before the Police that in the month of Bhadrab, preceding his said statement, accused Duryodhan came to him and took pholidol to spray over his lemon plants, and that his statement in his examination-in-chief, to the effect that Duryodhan took pholidol from him three years back, was made only to save Duryodhan. The above inconsistency goes to affect the trustworthiness and/or the intrinsic merit of P. W. 13. consequently affecting the prosecution case. His above alleged statement before the Police cannot be utilised as substantive evidence in the case. Moreover the evidence of P. W. 13 to the effect that he supplied pholidol to appellant Duryodhan is not corroborated by anything on record. Even on his evidence, as the aforesaid supply was made in a small quantity three years prior to his deposition in Court, i. e. two years prior to the death of the deceased, it sounds rather improbable that Duryodhan still had with him the said insecticide after the lapse of such a long time. In any view of the matter, on such evidence, it becomes difficult for us to find with reasonable certainty that this appellant had in his possession this poison at the relevant time.
Apart from the evidence of P. W. 13, prosecution examined P. W. 21, a Village Level Worker in the Gram Panchayats of Poktunga and Singharpur. who states that pholidol, gamaxine etc. were kept in the Gram Panchayat office for plant protection work. The above mentioned insecticides were freely distributed through him and also through the Secretary, Sarpanch and Naib-Sarpanch of the Panchayat in 1966. P. W. 13 sometimes distributed the same to the cultivators in 1966, in the presence of and in accordance with the advice and directions of P. W. 21 and/or of the Sarpanch and others of the Panchayat, and P. W. 13 could not distribute the above articles in their absence, as categorically stated by P. W- 21, This witness does not state if pholidol was ever supplied to appellant Duryodhan.
13. Apart from the above two witnesses, the prosecution has not led any evidence to show that appellant Duryodhah had in his possession the aforesaid poison in question. Thus the evidence on record to the above effect is rather meagre and of an unconvincing nature. On such evidence it becomes difficult for us to hold with reasonable certainty that the 'appellant had in his possession the said poison at the relevant time. The above mentioned second element, therefore, has not been established beyond reasonable doubt.
14. Even supposing appellant Duryodhan had, somehow, in his possession the aforesaid poison at the relevant time, ,can it be said that on the evidence on record the prosecution has been able to prove that appellant Duryodhan had an opportunity to administer the said poison to the deceased at the proper time?
15. The learned Judge in the impugned judgment after summarising separately the evidence of each of the witnesses, has not taken care to distinctly refer to their evidence by name or number, nor has he, in arriving at his findings and conclusions on the different aspects, compared and/or sifted their evidence in the desirable manner. The court's findings and conclusions are based mostly on general discussions of the evidence without particular reference to the witness or witnesses who deposed to that effect.
16. On a perusal of the evidence of all the prosecution witnesses, I find that the evidence of only P. Ws. 1, 2, 3, 7, 8, 11 and 14 may be of some relevance on the above aspect, referred to in paragraph 14 above.
The evidence of P. W. 1, relevant to this aspect, is to the effect that on the date of occurrence he, while grazing cattle near about the house of accused Duryodhan, saw a man coming from Angul side on the road with an umbrella and bag with him, and he stood near that place and called out for Duryodhan. After some time Duryodhan arrived at that place on a cycle. Excepting the above, his evidence otherwise is not at all relevant to this aspect of the matter, and his above evidence, as stated above, by itself is not of much significance.
P. W. 2 in his examination-in-chief, plainly stated that he did not know any-thing about the case; or as to whether any man called Duryodhan at the relevant time. In his cross-examination under Section 154, Evidence Act, he negatived the prosecution suggestion to the effect that he stated before the Police that on a Thursday (6-7-67) at about 4 P. M. a man of black complexion aged about 30 years had gone near the house of Duryodhan Barik and searched for him. His above statement, not admitted by him. is not substantive evidence in the case, nor that statement advances the prosecution case in any manner, as he could not name that black man nor could he properly describe that man, from which one could reasonably say that the man referred to by him was the deceased.
17. P. W. 3 is another witness who, in his examination-in-chief, stated that he did not know anything about this litigation and that he had not made any statement before the Police. He too negatived the prosecution suggestion to him, in cross-examination under Section 154, Evidence Act, that he stated before the Police that he saw a man of medium complexion aged about 30 years, standing in front of Duryodhan's house and calling for Duryedhan on the date of the occurrence. Nothing , turns out on his evidence in court. Moreover, the description of that man as allegedly given by him to the Police, is very vague and does not tally with the description of that man given by P.W. 2 in his alleged statement to the Police as mentioned above. Both the above statements, how-ever, are not substantive evidence in the case.-
18. P. W. 7, a close neighbour of appellant Duryodhan, stated, to the effect that he, while going to his daughter's house on the date of occurrence, saw appellant Duryodhan overtaking him on a cycle and proceeding towards Nandapara. After sometime, Duryodhan returned on that road and, of his own accord, told P. W. 7, when they met, that he had to return as he left behind his barber's box. P. W. 7, having proceeded some distance, saw Jujei Sahu. the deceased lying on the ground near the grain gola and was breathing hard and gasping for breath. Though he (P. W. 7) saw Jujei in that condition, he went on this way without making any enquiry as to why Jujei was lying in that condition. In his cross-examination, he admitted that two cart-men and two boys were standing at the place where Jujei was lying in the aforesaid condition, but he did not make any enquiry from them, or from Jujei himself about his said condition, even though, as admitted by P. W. 7, he was acquainted with Jujei. He also admitted that he did not inform his daughter or anyone else of her house or even to any one of his own village about the fact that he saw the deceased on the way in the aforesaid condition. On his way back, he again saw an assembly of many people at that place where Jujei was lying, but there is nothing to show that he stopped at the place to make an enquiry about the matter. His above con-duct is rather strange and suspicious. He was examined by the Police after about 10 or 12 days of the occurrence. There is nothing in his above evidence on which it can be said that appellant Duryodhan had an opportunity to meet Jujei, the deceased, on that day. Moreover, there is nothing unusual or suspicious in the above mentioned conduct of appellant Duryodhan, and no adverse inference against him can be drawn on such evidence of conduct-
19. The next witness to this effect is Abala, P. W. 8, who at first was married to appellant Kandia and after abandoning him, she married the deceased and lived with! him for about 6 to 7 years prior to the occurrence as admitted by herself. Her evidence, relevant to this aspect, is to the effect that on the day previous to the date of occurrence, appellant Duryodhan requested the deceased to come for a dinner in his house, at village Poktunga. The aforesaid request was made at a time when there was nobody in the house of the deceased, not even this witness, P. W. 8. She later carne to learn about the said invitation only from the deceased.
Admittedly she was living with the deceased as his wife by the time the occurrence took place, after abandoning the company of appellant Kandia, who was her first husband. Admittedly also there was long-standing enmity and consequential litigations between the deceased and appellant Kandia regarding the property left by the late father of P. W. 8. She was a party in some of these litigations. On these facts, she was certainly very much interested in the prosecution. Her evidence to the above effect does not get proper and suitable corroboration from any convincing source.
There is again nothing in her evidence on which it can be said that the deceased actually had been to the house of appellant Duryodhan in accordance with his above request. Her evidence to the above effect also sounds extremely improbable in the light of the prosecution evidence that the deceased had prior information from P. W. 9 that appellant Duryodhan, for the lure of reward, had entered into a conspiracy with the other accused persons, to kill the deceased-However, nothing transpires on the uncorroborated and unconvincing evidence of this witness on which it can unhesitatingly be said that appellant Duryodhan actually had an opportunity to administer the poison to the deceased on the date of occurrence.
20. P. W. 11 deposed only to the effect that the deceased expired on the date of occurrence, and that on the day previous to the date of occurrence, accused Duryodhan had been to village Balang and attended to his (P. W. 11's) hair cutting. The Court below proceeded to draw an unwarranted, far-fetched and incorrect conclusion from, the above evidence to the effect that accused Duryodhan thus had an opportunity to invite the deceased to his village on that day. There is nothing in the evidence of P. W. 11 to support the prosecution case on this aspect of the matter.
21. P. W. 14 is the sister of the above named Abala, P. W. 8. the deceased's wife. The relevant portion of her evidence on the above aspect is to the effect that accused Duryodhan took his food in her house one day prior to the date of occurrence. On that day Duryodhan invited the deceased to go to his house on the next day on his way back from Angul town. The deceased was to go to Angul on the next day to consult with his lawyer in connection with some High Court matter. This witness later asked the deceased not go to Duryodhan's house on the next day, i. e. on the date of occurrence.
P. W. 14 is the sister of P. W. 8. who for reasons stated above is highly interested in the prosecution. P. W. 14, on her own admission, had litigations with the other two appellants and their party men, and was not pulling on well with them. P. W. 14, in her examination-in-chief itself, stated that one year prior to the date of occurrence the deceased was not getting the services of Duryodhan Barik. If that was so. then it is difficult to understand so to why Duryodhan would come to the house of P. W. 14, the sister-in-law of the deceased and there Duryodhan would be entertained with food and he would extend such an invitation to the deceased, and the deceased, in his turn, would comply with the same request. P. W. 14's entertaining Duryodhan with food and his inviting the deceased as stated by P. W. 14 sound extremely improbable also in the context of P. W. 9's evidence discussed above. Much reliance cannot be placed on her evidence to the above effect. Moreover, nothing turns out on her evidence to the above effect, for that does not in any way show that the deceased actually went to the house of appellant Duryodhan on the date of occurrence.
There is no other evidence on this aspect of the matter.
22. On a thorough consideration of the above evidence on this aspect of the matter, we feel satisfied that the prosecution has not been able to establish beyond all reasonable doubt that the deceased actually went to the house of appellant Duryodhan on the date of occurrence. The prosecution has not led any other evidence to show that Duryodhan had other opportunities and/or occasions to meet the deceased on that day. Thus, prosecution has failed to establish beyond reasonable doubt the third above mentioned element also.
23. Undoubtedly appellants Kandia and Sada were inimically disposed towards the deceased, and they had longstanding litigations with him. There is some evidence on record to the effect that accused Kandia and Sada were interested in driving out the deceased from the village. The evidence to the above effect is only in respect of appellants Kandia and Sada and does not in any way refer to Appellant Duryodhan.
24. P. W. 27, the investigating officer in this case, states in his cross-examination that he could get nothing incriminating by searching the house of Duryodhan. during investigation. He admitted that he could know that many persons attended on the deceased before his death, but he did not cite any one of them as- witness in this case, for which he could not assign any reason. He also stated that in spite of his enquiries he could not get any clue as to where the deceased took his food for the last time before his death. Though he suspected then that 'death might have been caused by some foul means' he could not be definite about the cause of the death.
25. In this case, as seen above, the prosecution case that the death of the deceased was a result of administration of poison, constituting the first of the above mentioned three items, has been established beyond all reasonable doubt, but on the discussion made above, both the other two items have not been proved satisfactorily. Though it has been satisfactorily established in this case that the death was a result of administration of poison, it is difficult for us to unhesitatingly hold, for reasons stated above, that the poison which caused the death of the deceased must have been administered by accused Duryodhan. That being so we cannot uphold the conviction of this appellant under Section 302, I. P. C.. Accordingly, the conviction of appellant Duryodhan (appellant in Criminal ..Appeal No. 164 of 1968) under Section 302, I. P. C. is liable to be sot aside,
26. In the result, therefore, the conviction of the two appellants Kandia Sahu and Sadananda Biswal (appellants in Criminal Appeal No. 151 of 1968) under Section 120B(1), I. P. C. and the sentences passed against them thereunder are hereby set aside and they are acquitted of the same. They if in custody, be set at liberty forthwith or be relieved of their bail bonds.
The conviction of the appellant Duryodhan Barik (appellant in Criminal Appeal No. 164 of 1968) both under Sections 120B(1) and 302, I. P. C. and the sentences passed thereunder against; him are hereby set aside, and he is acquitted of the same. He be set at liberty forthwith.
27. Both the appeals accordingly are allowed.
S.K. Ray, J.
28. I agree.