G.K. Sharma, J.
1. Sewak Ram and Smt. Janki Devi alias Rukmanidevi were tried for the offences under Sections 302/108 d 120B 1, IPC by the Additional Sessions Judge No 2, Jaipur City, Jaipur for committing the murder of one Pratap, so : of Mulkbiram thusband of accused Jankidevi), in pursuance of the conspiracy in between the two accused persons by administering poison to Pratap, who held that the Prosecution has failed to establish its case against the accused persons and acquitted both the accused persons of all the charges levelled against them.
2. The State of Rajasthan has preferred this appeal against the said judgment of acquittal.
3. Succinctly narrated, the facts of the case are, that on 1st August, 1972, Laxminarain. a compounder in the S VIS Hospital, Jaipur, telephonically informed the in-charge of Police Station Manak Chowk that Pratap Chsnd, son of Mulkhiram had been brought to hospital and had been admitted in an unconscious state. He also informed that it was suspected that it was a case of poisoning. On receipt of this telephonic message, Rimbahadur, AS Police Station Manak Chowk, proceeded to SMS Hospital. But, when he reached the hospital, he found that Pratap Chand had breathed his last at about 7.30 PM. There, the ASl prepared a Panch-nama of the dead body of Pratap Chand, and requested for post-mortem examination and then submitted its report. The post-mortem report, nowever, did not reveal the cause of the death Therefore, the viscera of tie deceased was referred to the chemical examiner for further examination. In the report, it was found that the death of Pratap Chand, was lue to 'barbeturates' poison.
4. On 20th August, 1972, Mulkhiram, the father of deceased Pratap Chand, filed an application before the Inspector General of Police, Rajasthan, Jaipur, suspecting both the accused persons to have compelled Pratap Chand to commit suicide, as he had discovered a letter written by Pratap Chand which had indicated that the two ace used were indulged in nefarious activities, which was disliked by the deceased. When the things went out of his control, Pratap Chand had become despente and frustrated. He had no other choice, but to finish his own life. So, on receipt of this application of MaikLirani, the Inspector General of Police, marked it to the Superintendent of Police, Jaipur, for taking legal action. The matter was being investigated. Rambdhadur, ASI, investigated into the case till October, 1972. Later on, the investigation of this case, was given to CID: and Ghanshyamlal, Inspector, CID, was entrusted to investigate into the case, in June, 1973. Prior to this, Rambahadur, ASI had recovered some letters from the office of accused Sewakiam, which are said to have been written by the two accused persons, to each other. He also recovered four original documents executed by Pratap Chand in favour of accused Sewak Ram, from the office of Sewak Ram accused.
5. When, at Police Station Manak Chowk, a case, No. 225 of 1973, under Section 302 IPS, was registered on 28th June, 1973, on the report of Ghanshyam Lal, Inspector, CID. He, after registering the case, further investigated into I the case and recorded the statements of witnesses. On the basis of his investigation, Ghanshyamlal, Inspector CID, came to the conclusion that Sewakram and Jankidevi accused had developed illicit relations with each other. Pratapchand who was husband of Jankidevi, was found hurdle m their way as they could not, freely and peacefully, make marriments in his presence. So, both the accused conspired to get rid of Pratapchand, and ultimately, they succeeded in their evil motive, by administering poison to Pratapchand on 1st August, 1972, in the office of Sewak if Ram accused.
6. After completing usual investigation, the police submitted a challan against both the accused-respondents, in the court of Additional Munsif and Judicial Magistrate (East), Jaipur City. Jaipur on 21st February 1974, who then commuted them to the Court of Sessions Judge, Jaipur City, Jaipur, on 1st August, 1974. The learned Sessions Judge, however, transferred the case for trial to the court of Additional Sessions Judge No. 2, Jaipur City, Jaipur.
7. After perusal of the entire record of the case, the learned Additional Sessions Judge, framed charges against the accused persons under Sections 302/120B and , IPC. The charges were read over and explained to them, who leaded not guilty and claimed trial.
8. The prosecution, to prove its case against the accused respondents, examined 16 witnesses in ail, out of which Arjunlal PW. 7 and Bheru PW. 4 are the only two material witnesses in this case. It was alleged that they were the persons who had seen accused Sewakram administering poisen, to Pratapchand. From the evidence of Arjunlal PW. 7, it is found that the poison was administered in the office of Sewakram accused, where Jankidevi accused was also present. Arjunlal PW. 7, in connection with taking some : advice from accused Sewakrarr, had gone to his office, about at 2-2-/30 noon. While he was going upstairs, be found that Pratapchand with some if in his hand, was also going ups airs, ahead him. Pratapchand knocked the door of the office of Sewakiam, which was bolted from inside. It was opened, and in the room, they found, Sewakram and Jankidevi used persons. Three glass of Sharbat were on the table. After putting ice into the three glasses, Sewakram accused offered one glass Sharbat to Pratapchand one to accused Jankidevi and the third glass offered to Arjunln'. Arjunlal refused to take Sharbat. Then, Sewakram accused took that glass of Sharbat himself. After taking Sharbat, Sewakram, Jankidevi and Pratapchand came down from the office.
9. Bberu PW. 4 narrates that he is a rickshaw-puller. He had brought Pratapchand, Sewakram and Jankidevi in his rickshaw to Subash Chowk Pratapchand had engaged his rickshaw When his rackshaw was engaged, Sewakram was also with Pratapchand and Jankidevi. This witness PW. 4 Bheru has further stated that in the way, Pratapchand had asked him to drive the rickshaw slowly as he was feeling very much sleepy. He has also stated in his statement to have hard Pratapchand saying Jankidevi that Vakil Siwakram had given to much sweet Sharbat and as such he was feeling sleepy. At Subash Chowk, Jankidevi had asked Pratapchand to go to his father's house. Jankidevi there dropped Pratapchand at Subash Chowk, and proceeded to 'Badrika Nasik' and Pratapchand went towards Amer Road. In his statement-Bheru has further stated that Jankidevi had also asked Pratapchand to go to his father's house and sleep under fan. So, these two witnesses are alleged to be very material witnesses in order to prove that Sharbat had been offered to Pratapchand by Sewakram accused and when Pratapchand and Jankidevi were going the rickshaw of Bheru PW. 4, Pratapchand had told Jankidevi that Vakil Sewak Ram had given too much sweet Sharbat and that as such he was feeling sleepy. Whether this witness is believable or not, we shall discuss later on But, no doubt, out of the prosecution witnesses, these two witnesses are very material witnesses and they have been produced by the prosecution to establish its case against the accused petitioners regarding conspiracy between the two accused persons, and the prosecution has also tried to prove through these two witnesses that in furtherance of their conspiracy, accused Sewak Ram in presence of Jankidevi, had administered poison in the Sharbat of Pratapchand, in his office, on account of which in the same evening, Pratap Chand, died in the hospital. The other prosecution witnesses are not of so much importance.
10. After recording the statements of the prosecution witnesses and recording the defence evidence, the learned Additional Sessions Judge considered the arguments of both the sides. Both the accused persoas were also examined under Section 313, Cr. P.C and they were asked to explain the circumstances incriminating them in the commission of the offence, who stated that they have been falsely implicated in this case According to them, Pratapchand had committed suicide. Sewakram's further contention was that Milkhiram, the father of Pratapchand was in inimical terms with him, because of the fact that he had taken Mayadevi, the daughter-in-law of Milkhiram, to Mahila Ashram as she was set on fire by her in laws Maya Devi had a male-child aged about 4 years. Mdhiram had kept that child with him. Mayadevi was sent to her uncle at Bhopal. He (Sewakram) had also helped Mayadevi to get maintenance and the chil 1 back from Milkhi Ram. Jankidevi accused has further stated that her father-inlaw was in inimical terms with her. He wanted her to give evidence against Sewakram, and to say that Sewakram had given sleeping-pills to Pratapchand. She has further stated that those sleeping-pills were taken by her husband Pratap Chand at the house of his father Milkhiram: and that, there was some dispute in between Pratapchand and Milkhiram with regard to Mayadevi, and on account of that dispute, she was turned out from the house of Milkhiram. She has denied that she had any illicit relation with Sewakram. According to her, in be evening, she was informed by some Sindhi doctor, that her husband had taken sleeping-pills, and that, his condition was serious. She had also stated that she has been falsely implicated in this case on account of enmity, by hr father-in-law.
11. The learned Additional Sessions Judge, after considering the entire evidence on record and hearing the arguments, found that no case was established by the prosecution. According to him, it was also not established that the accused persons had administered poison to Pratapchand. So, giving the benefit of doubt to the accused persons, be acquitted both of them of the chaiges levelled against them. The State has preferred this appeal against that older of acquittal of the accused persons.
12. It was contended by the learned Public Prosecutor on behalf of the State that in poisoning cases, the essential elements to prove are motive; possesion of poison by accused; and opportunity to administer to the deceased by the accused, and that, all these three elements have been proved in this case by the prosecution, but the learned Additional Sessions Judge has failed to appreciate the prosecution evidence, and committed error f. in coming to the conclusion that the prosecution could not establish its case against the accused persons, beyond reasonable doubt. It was also contended that the learned Additional Sessions Judge has cried in not believing the statement of Smt. Gokaldevi PW. 6. It was also argued that the learned Additional Sessions Judge has erred in disbelieving the statements of Aijunlal PW 7 and Bheru PW 4, who are very material witnesses in I this case, to prove the allegations against the accused persons and that, both these witnesses are of sterling worth and there is nothing to disbelieve or discard their testimony. It was then argued that what ever letters were found in the possession of accused Sewakram, have proved that the accused persons had the motive to commit the crime, and that, inspire of establishing the motive, the learned Additional Sessions Judge has erred in acquitting both the accused persons. It was also contended that investigation in this case was done by Rambahadur, As PW 5 at the initial stage and later on the investigation was conducted by the CID Inspector, therefore, the learned Additional Sessions Judge has incorrectly remarked that the investigation in this Cass, has not been done properly, by the police authorities. It was then submitted that from the very beginning there was suspicion of murder, and that, the case was not that of a suicide as is clear from the letter Ex. P.4 written by Pratapchand, and that, investigation or inquiry was slow at the initial stage, but, later on, when suspicion of murder developed, the case was referred to the CID (crime-branch), In this case, the entire matter rests on the circumstantial evidence, and the circumstances in this case connect the accused persons with the crime, and so, the approach of the learned, Additional Sessions Judge, was wrong since he has incorrectly acquitted the accused persons.
13. The learned Counsel for the respondents, on the other hand argued that this is a clear case of suicide. According to him, this is incorrect to say that both the accused persons had illicit relations with each other. The witnesses, Arjunlal PW 7 and Bheru PW 4 are made out witnesses. As Milkbiram, the father of the deceased had enmity with both the accused it persons, i.e., in order to implicate them, created these witnesses Arjunlal PW 7. and Bheru PW 4 subsequently. The learned Additional Sessions Judge, has correctly disbelieved the testimony of these two witnesses. Had these witnesses been there at the initial stage, why had not they been interrogated by the police at the earlier stag? when the investigation was started by Rambhadur, ASI, PW 5? PW 7 Arjunlal being in relation to Milkhiram was made to give statement against the accused person. Bheru PW. 4 also had worked at the house of Milkhiram su many times, and as such, he being Milkhiram's own man, was later on made witness in this case Thus, according to the learned Counsel for the accused-respondents, the learned Additional Sessions Judge has correctly disbelieved the prosecution story and rightly acquitted the accused-respondents in this case.
14. We have given our thoughtful consideration to the rival contentions of both the learned Counsel for the parties, and we have also gone through the prosecution and defence evidence as well as the letters and other documents recovered during the investigation of this case by the police authorities.
15. In a case in which the allegation is that position has been administered, four elements are necessary to be proved. They are (1) that the deceased died of poison; (2) that that the accused had the motive to take his life; (3) that the accused was in possession of the poison in question of which the deceased died; and (4) that the accused had an opportunity to administer poison to the deceased.
16. The learned Additional Sessions Judge, after considering the entire record of the case and the arguments of both the sides, found that the prosecution has established that Pratsp Chand died of poison; and also held that the prosecution has proved that the accused persons had motive to take the lite of the deceased. These two elements have been accepted by the leaned Additional Sessions Judge, to have been proved by the prosecution. As such the appeal being of State of Rajasthan, we need not discuss those two elements. Those two elements have been decided in favour of the prosecution. The learned Additional Sessions Judge held that Pratapchand died on account of poisoning. He also held that the accused persons had the mot be in this case, which was the cause of the death of Pratapchand. Suffice it to say that from the letters recovered by the police during the investigation, it has been established that both the accused persons had intimacy with each other. Their letters show and indicate that this intimacy had developed and reached to the extent of illicit connections between them. From these letters, it is found that sexual lust of two accused persons infused and tncted them to conspire to get rid of Pratapchand for ever. So, according to the prosecution, this was the motive of the accused persons to get rid of Pratapchand, so that, there would be no hurdle or obstruction in their free and frtquent meetings. According to the prosecution, this motive has also been proved by the evidence of Smt. Gokuldevi PW 6, who has stated that Jarkicevi had kept two sleeping-pills with her, it is said that on 1st Aw ust, 1972, in the night, further pills were added to those two pills, and were administered to Pratapchand in the Sharbat. So, the motive has been established The learned Additional Sessions Judge, after discussing all these facts, held that the accused persons had the motive of removing Pratap Chard from their way by way of causing his death or whatever might be the posit ten or the facts, but, it is in judgment, which has not been challenged by the accused-respondents that Pratapchand died on account of poison; 1 and that the accused persons had the motive to remove Pratapchand from I their way for ever.
17. Regarding the other elements remain to be considered, are whether the accused persons were in possession of the poison in question of which Pratapchand died; and whether the accused persons had as opportunity to administer the poison. About these two elements, the learned Additional Sessions Judge, did not agree with the prosecution and decided r these two points against them.
18. From the statement of Dr. G.M. Bhandari PW. 10, who conducted the post-mortem examination on the dead body of Pratapchand it was found it no definite opinion for the cause of the death could be ascertained, hence, he sent the viscera for chemical examination. On 2nd February, 1974, he gave his final opinion on the basis of the chemical examiner's report that the cause of the death of Pratapchand was barbeturated In his cross-examinatioa, he has said that barbeturate does riot have any particular type of tests and is available in tablets and powder. Dr. S.M. Dugar P.M. Was the chemical-examiner at Jaipur these days. He received the viscera for examination from the medical-jurist, SMS Hospital, Jaipur. He received four bottles in this case one hottle contained stomach and the piece of intestine: the second bottle contained pieces of river, spleen and kidney: the third bottle contained watery liquid; and the fourth one contained preservative sample which contained colorless liquid. After examination, he found that the contents of 1st, 2nd and 3rd bottles were positive for presence of barbeturates His report is Ex. P.32. Thus, from the statements of both the doctors, it has been established that Pratapchand died due to poisoning, and this fact is not disputed. The point now to be seen is as to whether the death of Pratapchand was homicidal or suicidal.
19. As mentioned above, the incident took place on 1st August, 1972. Pratapchand was taken to hospital on 1st August, 1972, where he died at about 7 30 P.M. He was taken to hospital by his father Milkhiram. The next-day, the post-mortem examination was conducted on his dead body, and it was found that poison had beed administered to him. Inspite of this, no report was lodged by Milkhiram, the father of the deceased, at the police station As has been contended by Jankidevi accused, Pratapchand used to take sleeping pills, and was addicted to this. When he was feeling very much sleepy at the house of his father, Jankidevi was called from her house, where, she was living with her husband, to her father-in-law's house. After seeing Pratapchand, she told that he might have taken sleeping-pills, so, nothing to bother. In the evening, Pratapchand died, and no report was lodged by Milkhiram suspecting that some other person might have administered poison to him, which meant that Milkhiram was also in agreement with Jankidevi that Pratapchand might have taken sleeping-pills of high, dose, which resulted in his death. He had no suspicion that some other person might have committed murder or administered poison to Pratap Chand. That was the cause for not lodging any report at the police station. Later on, when the letter, Ex. P.4 was found by Milkhiram at the house of Pratapchand deceased, he felt that Pratapchand might have committed suicide, because, he knew about the illicit relations in between the accused persons. From letter Exp. 4, it is indicated that he had become so frustrated and desperate that he might have ended his life. So, on 20th July, 1972, he sent an application to the Inspector General of Police of Rajasthan, Jaipur, which is Ex. D.3. From the said letter Ex. D. 6, suspicion was about committing suicide. The investigation was going on very slowly with the presumption what Pratapchand must have committed suicide. Thus, the two elements, were there i.e. that Praiapwhand died of poison; and that the accused persons had the motive to get rid of Pratapchand as they were not frequent in their met tings in presence of Pratapchand. But these two conditions were not sufficient to hold the accused persons guilty. The most important aspect to be proved is that the accused persons had an opportunity to administer the posion in question, and whether actually they had administered the said poison to Pratapchand. In this respect the statements of Smt. Gokuldevi PW. 6; Arjunlal PW 7: and Behru PW 4, are the only statements on the record to establish this condition.
20. PW 6 Smt. Gokuldevi is the landlady of Pratapchand and Janki Devi. They are her tenants. She has further stated that, Jaimaladevi (Janki Devi) had kept with her a small packet which contained two pills of sleeping in the night, while she was going to sleep on the roof. She had told her that the said packet contained sleeping-pills. In the morning, while she was getting down, she took those two pills from her. Then she had gone to office, and when in the evening, she returned from her office, came to know that Pratapchand had died. She has stated that on the day Jaimala had taken the packet of the sleeping-pills from her in the morning, the same day in the evening, Pratapchand died. This evidence has been discussed by the learned Additional Sessions Judge, in his judgment. We have also given our thoughtful consideration to this statement According to Smt. Gokul Devi PW 6, two sleeping pills were kept with her by accused Jankidevi The statement is most unbelievable. Jankidevi accused was residing in the satru house. As alleged by this witness, Jankidevi had kept these two pills with her in her portion. Where was the necessity to have taken these pills on the roof in the night? If Jankidevi had fear that her husband Pratapchand might take those pills, she could keep them at some place in her house, itself and would not have given any hints to Pratapchand. It is very strange that those two pills would be kept with Smt. Gokuldevi by Jankidevi in order to avoid her husband Pratapchand, who might take those pills from her. This type of statement cannot be believed When Jankidevi knew that her husband was addicted to the sleeping-pills and she did not want that Pratapchand should take those pills in the night, she would not have taken those pills with her while going to sleep. This iota of evidence is that Jankidevi had brought two sleeping-pills in the night; kept them with Smt. Gokuldevi; and then in the morning, she took them from Smt. Gokuldevi, Latter on, in the noon, those two pills were administered to Pratapchand at the office of Sewekram in the Sharbat. In this way, the evidence of Smt. Gokul Devi was connected. Such type of evidence is hardly believable. If Janki Devi conspired to administer excess dose of sleeping pills to Pratapchand, with accused Sewakram, she would not have made it known to any other person that she was having such pills with hr. It appears to be most unnatural that she would say to?mt. Gokuldevi that she had sleeping pills-with her; she then would keep those pills with Smt. Gokuldevi in the night; take the m back from her in the morning and the ultimately utilise them. In such cases, the person would like to hide all actions which connect him/her with the crime. Here, according to the prosecution, Jankidevi did not try to hide the fact that she was having sleeping-pills with her which were dangerous and could be proved poison; and disclosed this fact to Smt. Gokuldevi PW 6. If Jankiuevi had any in ention to a minister those pills in excels dose to Pratapchand her husbauu in conspuacy with Sewakram Be would have done his act in a most confidenual manner; and would not we liked that some other person should know that she was having such with her. Thus, this type of evidence appears to be most unreliable and unbelievable. The learned Additional Sessions Juge after discussion the evidence of Smt. Gokuldevi PW 6 in detail, held that the evidence of Gokuldevi was introduced to supply link to the circumstances indicating Pratapchand had been given the poison by the accused persons was in possession of Jankedevi. There is no evidence on record to show as how such does of sleeping-pills is dangerous to life, Jankidevi had only go pills with her in the night and it is not on the record as to whether those to Pills were sufficient to the cause the death So, even assuming that two sleeping pills were with Jankidevi in the night, it cannot be said that lose two pills were sufficient to cause of death of Pratapchand. It is highly improbable that Jankidevi having conspired with Sewakram to finish Pratarchand by administering poison, shall go on creating evidence against herself nuking others know that she was in possession of poison which she and livakram would administer to Pratapchand. If Jankidevi wanted to conceal Use pills from Pratapchand, there was hardly any necessity to keep them with Smt. Gokuldevi PW 6. She could have concealed them in he own use anywhere, or she could have kept them under lock and key There nothing on the record to show as to why Jankidevi would take Smt. Gokuldevi PW. 6 in confidence to make her know that she was in possession poisonous tablets So, the statement of Smt. Gokuldevi PW 6 does not inspire any confidence; and the learned Additional Sessions Judge in our opinion, has rightly disbelieved the testimony of this witness after cussing the evidence of this witness in detail, and we endorse the reasons We by him; and we also agree with him that witness Smt. Gokuldevi PW 6 a most unreliable any untrustworthy witness.
21. Another material witness Anjunlal PW 7 in this case, in his statement, has stated that in 1st August, 1972 on the noon at about 12-12 30 PM Shad gone to office of Sewakram. While he was climbing the stairs Pratapchand was ahead him with ice in his hand. He and Pratapchand then reached the office of Sewakram together. The office was bolted from inside Pratapchand knocked the door. Sewakram then opened it He and Praranchand then went inside. He saw there Jankidevi, wife of pratapchand sitting on a chair. Then, three glasses of Sharbat were on the table Pratapchand put ice in these three glasses. Sewakram then gave one glass of Sharbat to Pratapchand one to Jankidevi and the third glass to him. But on hisrefusal, Sewakram himself took the third glass of Sharbat. After taking the Sharbat Sewakram asked Jankidevi to go home and not to waste any time Pratapchand, Jankidevi and Sewakram then came down from the Pee. He also came out of the office. Pratapchand called a rickshwallah and he Pratapchand had his wife Jankidevi then sat is the rickshaw and went away. He then with Sawakrara. came to his office and talked about, his case. In the same evening, he left Jaipur for Akola to make arrant Rents for money as was directed by Sewakram accused. Thereafter he returned to Jaipur after about 1,1-1/2 months. On his coming back, he came to know that Pratapchand had expired. He, thereupon, met Milkhiram father of Pratapchand, and told him that he had seen the incident of taking Sharbat at the office of Sewakram. This witness was cross-examined at length. He has denied that he had submitted an application on 18th Noveber, 1972 in the court of Munsif Magistrate. He has admitted that Motwani was his advocate in the Munsif-court. He has stated that it was possible that on the information of his advocate, he might have come back walk to Jaipur on 18th November, 1972, to submit an application His case civil suit was fixed for 14th November, 1972. He was not present on that date. So, it is clear that this witness has tried to prove that he was away from Jaipur for about 1-1/2 months from 1st August, 1972. Against this statement of Arjunlal PW 7, the accused persons have examined Uttam D. Motwani DW 2 who was admittedly advocate for Arjunlal PW 7, in his civil suit. He has stated that oh 14th August, 1972. Arjunlal PW 7 had 9 come to him in the court at about 10-11 A.M in civil-suit Arjunlal v. Abdul Karim. He has also stated that on the next date in that case Arjunlal attended the 'Peshi'. Thereafter, on 13th September,1972, on 21st September, 1972 and on 14th October, 1972, Arjunlal attended the 'Peshis'. So from the statement of this witness, it is proved that Arjunlal PW 7 attended 9 his case in the month of August and September, 1972 as well. His states ment that he was away from Jaipur for 1-1/2 months, is, thereforji, falsified by his own advocate, Shri Motwani DW 2. The learned Additional Sessions lodge also, discussed the entire evidence of this witness in detail. We have also depanlently scrutinized the statement of the Witness Arjunlal PW 7. It is on the record that Arjunlal is relative of Milkhiram, the father of deceased Pratapchand. Manoharlal was the elder brother of Pratapchand deceased Arjunlal is the brother-in-law of Manobarial. He has admitted that his daughter has been married to the nephew of Milkiram. Thus, it is proved that Arjunlal PW 7 is the relative of Milkhiram, the father of the deceased. Arjunlal knew that on 1st August, 1972, 'Pratap Chanel had taken Sharbat in the office of Sewakram accused where Jankideyi accused was also present. On 1st August, 1972, in the evening at abbilt 7-30 PM, Pratapchand died on account of poisoning. It cannot therefore. be believed that Arjunlal PW 7 did not know on 1st August, 1972 that Pratapchand had died on account of poisoning. He could have told Milkiram that in the noon Pratapchand had taken Sharbat in the office of Sewakram. So, this fact which could have been disclosed to Milkhiram by Arjunlal PW 7, is relevant and worth significance. Pratapchand died on account of poisoning and no one would suspect that this poison might have been administered in the Sharbat in the office of Sewakram Arjunlal also knew that when he and Pratapchand reached the office of Sewakram, the door Was locked from inside, which was later on opened by Sewakram. He found. In the office Jankidevi and Sewakram, only, where three glasses of Sharbat Were already there on the table. All these facts create a great suspicion as to Why the glasses of Sharbat were ready as to when Prarapceand was sent to take ice; as to why the door was locked from inside and only both the accused persons were inside the said room. Sewakram accused gave a glass of Sharbat to Pratapchand and then asked Jankidevi to leave the office. All these facts of the time when the death of Pratapchand occurred in the evening, could have created a suspicion in the mind of Arjunlal PW 7 that Pratapchand might have been administered poison in the noon at the office Sewakram accused where Jankidevi was also present, and he should have arated this fact to Mukhiram or to police the same day when Pratapchand Why did this witness kept silent. How after about 1-1-1/2 months then he returned worn outside Jaipur and came to know about the death of Pratapchand, did he narrate this fact to Mukhira had no enilty with Sawakram and Jankidevi, and he wanted to take revenge from them. Thus, it is claear that milhiram prepred Arjunlal PW 7 is proved to be a made out witness and suited him. Thus, it is clear Milkhiram prepared Arjunlal PW 7 is proved to be amade out witness and hence, should not be believed in such serous matters like the present one. Arjunlal is in close relation to Milkhiram, and it cannot be velieved that he would not say or disclose the fact which indicates or describers how the death of pratachand occurred. The learnedcAdditional Sessions Judge also has discussed the statement of this witness, and has right disbelieve it we are also of this opinion that Arjunlal PW 7 is a concected and made out witness, and no reliance should be placed on his statement.
22 Another important witness is PW. 4 Bheru. He is a rickshaw puller. He has stated in his statement that on the first day of the month of & when there was a Hartal' (strike) of trucks he was standing in front of Tarekshwar-Tempel, with his rickshaw. At that time, he was called by Somebody. When he saw behind, he found both the accused persons and Patapchand Pratapchand hired his rickshaw for subhash Chowk. Thereafter Pratapchand and Jankidevi sat on the rickshaw, and he started for Subhash Chowk. When he reached near, 'Hawa-Mahal Pratapchand asked him to drive the rickshaw slowly as he was feeling sleepy. After that, when breached the 'Takshaal', Pratapchand told his wife, Jankidevi that on that day, Vakil Sewakram had given him too sweet Sharbat and as such he was he fleeing. When he reached Subhash; Chowk, accused Jankidevi told Pratachand that his father's house had come, to go there and sleep, and gong to her house jankidevi them went to Badri-ka-Nasik, and and went towards Amer-Road. He has categorically, stared that Jankidevi had asked Pratapchand to go and sleep, In his cross-examination case stated that his house is at a distance of about 4-5 paces from the house of Milkhiram. He has also admitted that he knew Jankidevi for the last 7-8 years and that, he had also admitted that he had worked on 3-4 occasions during marriages at the house of Milkhiram. Thus, from the statement of this witness, it is clear that Bhern PW 4 is well known to Milkhiram, Pratapchand and Jankidevi accused, and the had so close contact with the said family that he had been to udaipur also with them, for some time. He had, worked at the house of Milkhiram on many occasions He used to reside at a distance of 4-5 pace from the house of Milkhiram. On 1st August, 1972, the day on which he took Pratachand and Jankjdevi in his rickshaw to Subhash Chowk, on the very day in the evening at about 7-30 PM. Pratapchand died. It cannot be believed that Bheru did not know about the death. He had heard saying to Jnkidevi that Vakil Sewakram had given him too sweet Sharbat that he was felling Seeepy. Thereafter. Pratapchand died of poison It cannot be belived that knowing about the death of Pratapchand on account of poisoning and knowing the fact that Sewakram had offered too sweet Sharbat to Pratapchand on account of which he was feeling sleepy, he would not disclose this fact to Milkhiram It is unbelievable that. Bheru who is a neighbor of Milkhiram and who knew hole family very well, would keep silent on this aspect when he came to know that Pratapchand had died on account of poisoning He knew that when Jankidevi and Pratapchand had sat in his rickshaw, accused Sewakram had come out from his office to see them off. Thus, it was clear to him that Jankidevi and Pratapchand were coming from the office of Sewakram accused where Pratapchand had taken Sharbat on account of which, he was feeling sleepy. Natural conduct would have been that in such circumstances, Bheru should have disclosed this to Milkhiram. But, the fact is otherwise. As discussed by the learned Additional Session is Judge in his judgment. Bheru PW 4 is also another made out witness. In order to connect the accused persons with the crime, Bheru has been prepared to state as desired by them. We are of the opinion that Bheru is also a concocted and made out witness, and he can not be relied upon. The learned Additional Sessions Judge has correctly appreciated the statement of this witness also. We need not discuss in this judgment any more the statements of Bheru PW 4, Smt. Gokuldevi PW. 6, and Arjunlal PW 7. We endorse fully the reasons given by the learned Additional Sessions Judge, in his judgment, and independently also we bold accordingly as has been concluded by the learned Additional Sessions Judge that these witnesses are most unreliable and untrust worthy witnesses, and should not be relied upon, at all.
23. This is also against human conduct that if somebody in conspiracy wants to kill a person, would do the act openly. If Sewakram and Jankidevi had conspired to get rid of Pratapchand as they were feeling that he was a hurdle in their free meetings, they would have conspited in such a way that there would be no evidence to connect them with the crime. Sewak Ram would not have thought of administering the poison at his own office. It would not have been possible for him to think to commit the said crime at roan in broad day light in his office, a place where anybody might come to him for consultation. It is in the evidence that Sewakram and Jankidevi accused had close intimacy and sexual relations with each other, and they wanted to get rid of Pratapchand, the husband of Jankidevi, who was an obstruction in their free meetings. It was easy for them to take Pratapchand to such a place which was unknown to anybody and murder him there of poison was to be administered, it was easy for Sewakram to ask Jankidevi to administer the said poison at her house. They could have also managed the administration of poison in such a manner that neither the office of Sewakram nor the house of Jankidevi would have come in picture, but, this could have been done at the house of Milkhiram also. So, this was improoable story that both the accused had conspired to administer the poison to Pratapchand, in the office of Sewakram. Then, it is the evidence that Pratapchand was addicted to sleeping pills According to the medical evidence, J-1/2 to 3 gms of such content in the ordinary course, is not fatal to human life. In this regard, the evidence is that Jankidevi was in possession of two sleeping-pills. It cannot, therefore, be said that the dose of two pills was dangerous that it could take away the life of Pratapchand. So, what quantity of poison was administered to Pratapchand, has not been established by the prosecution. There is nothing on the record about this fact. It is also not on the record that poison was mixed in the Sharbat. The evidence is that there were three glasses of Sharbat on the table at the office of Sewakram, and after ice was put in all these three glasses one glass was given to Pratapchand, one to Jankidevi; and the third glass was taken by accused Sewakram himself. There is nothing on the record to show that the glass of Sharbhat which was given to Pratapchand, had poison. It should have been established clearly by the prosecution. So, the important element that the accused persons were in possession of the poison in question i.e. the sleeping-pills, has not been established. It has also not been established that the accused had put poison in the Sharbat. There is no evidence to prove that the sleeping-pills which were kept by Jankidevi with Smt. Gokuldevi PW 6, were the same poison which was administered to Pratapchand in the Sharbat. There is no proof that those two sleeping-pills were of that poison which is said to contain 'barbeturates'. Thus, in the absence of proof that how much does of poison was administered to Pratapchand; and whether the pills which were with Jankidevi on the morning of 1st August, 1972, were the same containing barbeturates poison which were later on put in the Sharbat of Pratapchand, there is no link to chain the circumstances that the accused parsons had given the poison to Pratapchand which was in possession of Jankidevi. There no proof that both the accused bad conspired to get rid of Pratapchand. The way in which witnesses. Arjunlal PW, and Bheru P.W. 4 have been procured, indicates that their testimony is most unreliable. Even presence of Arjunlal has not been proved. From the statement of Arjunlal it because clear that he was present at Jaipur after the death of Pratapchand and he would have informed Milkhiram about the incident of taking Sharbat Pratapchand at the office of Sewakram.
24. In view of our discussion above, we are in full agreement with the conclusion arrived at by the learned Additional Sessions, Judge. We also agree with the reasons given by the learned Additional Sessions Judge, in his judgment, acquitting the accused-respondents. The prosecution evidence has been correctly appreciated by the learned Additional Sessions Judge, and we find no just and proper ground to interfere in the order of acquittal based on sound and cogent reasoning. He has rightly disbelieved the prosecution story and has correctly acquitted the accused-respondents.
25. In the result, the appeal filed by the State has no force, and is hereby dismissed. The judgment and order of acquittal of the learned Additional Sessions Judge No. 2, Jaipur City Jaipur, acquitting accused-respondents Sewakram and Jankidevi alias Rukmanidevi of the charges under Sections 302/120B& 120B(1), IPC, is upheld. The accused-respondents are already on bail. They need not surrender. Their bail bonds are hereby cancelled.