JUDGMENT
T. Ramabhadran, J.C.
1. The respondent, Mt. Shiv Devi, was tried by the learned Sessions Judge of Mandi of an offence under Section 302, I. P. C., i.e., of intentionally causing the death of her husband’s elder brother, Jai Singh, by administering to him a deadly poison (aconite) mixed in his food. The trial Judge acquitted Mt. Shiv Devi, since, in his opinion, the case against her was not proved beyond reasonable doubt. The Himachat Pradesh Administration has come up in appeal against that order of acquittal under Section 417, Cr. P. C.
2. The prosecution case, briefly, was as follows : In village Banali, Tehsil Sarkaghat, district Mandi, there lived three brothers, i.e., Jai Singh, Amar Singh and Jagat Ram. While Amar Singh and Jai Singh lived and messed jointly, Jagat Ram, did so separately, although the three brothers used to reside in the same building, bat in separate rooms.
Jai Singh (the victim in this case) was about 65 years of age and of the three brothers, he was the eldest. He had no male issue. His only daughter, Mt. Sundri, had been married. He had gifted a portion of his lands to Amar Singh and bequeathed the rest to his daughter, Mt. Sundri.
3. Amar Singh and Jagat Ram were employed in ghal work (timber floating). In that connection, they used to be absent from the village for long periods. In the month of January, 1957, they had
gone out for this business. Jai Singh, Mt. Shiv Devi (wife of Amar Singh) and two minor sons of Amar Singh were living in Amar Singh’s house ia village Banali. Relations between Jai Singh and Mt. Shiv Devi (who was about 24 years of age) became strained.
Jai Singh suspected that Mt. Shiv Devi was leading an immoral life and was being visited by paramours. Mt. Shiv Devi, on the other hand, used to complain that Jai Singh was molesting her and compelling her to submit to illicit intercourse. On one occasion, when Jai Singh had gone out of his room to make water at night, he heard some body moving in the room of Mt. Shiv Devi. When he tried to find out who that person was, he was assaulted and pushed down by the stranger, who managed to escape. From that time, the relations; between Jai Singh and Mt. Shiv Devi worsened.
Jai Singh threatened to expose Mt. Shiv Devi to her husband, Amar Singh, when he returned to the village. The prosecution case is that Mt. Shiv Devi hit upon the idea of administering poison to Jai Singh (who used to take meals cooked by her) and thereby save herself from disgrace. About three months prior to Jai Singh’s murder (which took place on 22-1-1957), Amar Singh and Jagat Ram had returned to the village. Amar Singh left for Chamba, while Jagat Ram stayed on in the village. On 22-1-1957, Jai Singh returned from village Sidhot in the evening. He was hale and hearty at that time.
He sat at the door of his house smoking. Sant Ram, minor son of Amar Singh, called him inside saying that dinner was ready. Jai Singh went inside and took the meals cooked by Mt. Shiv Devi. He came outside and, shortly afterwards, started vomiting. Jagat Ram, who was nearby, enquired from him what the matter was. Jai Singh complained that his eyes and heart were burning and there was an irritating sensation on his tongue. He added that he had taken rice, Roti and Sag cooked by Mt. Shiv Devi.
Jagat Ram took Jai Singh to his house, where the latter’s condition steadily became worse. He died within two hours. The death of Jai Singh was reported to the police, at Sarkaghat, the following morning by Dila Ram (P. W. 1), a retired police officer, who lives in village Ranali. In the absence of the Station House Officer, A. S. I., Man Mohan Lal (P. W. 21) came to village Banali. After holding an inquest, he sent the dead body of Jai Singh to Mandi for post-mortem examination. He also took into his possession Bati (Ex. P. 1), into which Jai Singh had vomited, shortly before his death. He arrested Mt. Shiv Devi and Mt. Devku (wife of Amar Singh) and locked up the house. Further investigation was conducted by Rattan Singh, S. H. O. Sarkaghat (P. W. 22). As a result of police investigation, Mt. Shiv Devi was placed before a Magistrate first class (Mr. Hardayal), who, after a preliminary inquiry, committed her to the Court of Session, on 27-3-1957 A. D.
4. Examined by the Sessions Judge, Mt. Shiv Devi denied the prosecution case against her in toto. No defence was, however, adduced.
5. The following points for determination arise in this appeal : (A) Whether Jai Singh died as a result of aconite poisoning . (B) In case point (A) is decided in the affirmative, whether the aconite poison was administered to Jai Singh by Mt. Shiv Devi . (C) In case it be held that aconite was administered by Mt. Shiv Devi, of what offence is she guilty and what punishment should be inflicted upon her.
6. Arguments of the learned Counsel for the parties were heard at considerable length on the 28th, 29th and 30th ultimo. The respondent was represented by Mr. Dina Nath Vaidya, Advocate, I shall deal with these points seriatim.
7. (A) (i). The dead body of Jai Singh was produced before Dr. Narain Das, D. M. O. Mandi, on 25-1-1957. The doctor performed the postmortem examination and came to the conclusion that death was probably due to poisoning, vide postmortem report, Ex. P. O. The only abnormality observed by him was in the stomach, where the mucus membrane found congested at some places. When Dr. Narain Das was examined as P. W. 7 at the trial, he explained that post-mortem examination was not sufficient to indicate whether Jai Singh had died as a result of poisoning.
He added that in such cases, chemical analysis was the surest test. The congestion of the mucus membrane of the stomach, in his view, could have been caused by taking any irritating substance. After performing the post-mortem examination, a piece of the deceased’s liver, stomach and its contents were sent to the Chemical Examiner for analysis. Under these circumstances, the inability on the part of Dr. Narain Das to give a distinct opinion, to the effect that the death had been caused by poison, is of no material consequence.
8. (ii) The Chemical Examiner submitted two reports, Exs. P. R. and P. W. The former refers to the analysis of the stomach and its contents and the piece of liver. The latter relates to the examination of a sealed Bati, allegedly containing the vomited matter (of Jai Singh) and other articles, to which reference will be made subsequently. According to the finding of the Chemical Examiner, aconitine, the active principal of aconite, was found in the stomach and the liver as well as in the vomited matter.
The learned Sessions Judge refused to admit these two documents into evidence, on the ground that copies thereof had not been furnished to the accused, before the commencement of the inquiry and trial, as laid down in Section 173 (4), Cr. P. C. He also refused to exercise his powers under Section 540, Cr. P. C., and admit these documents, although it was pointed out to him that the reports had not been received, when the challan was submitted by the police. Reliance has been placed by the Sessions Judge on the ruling contained in Tikamchand v. State, 1957 Cri L. J. 188 (A), where a learned Judge of the Madhya Bharat High Court observed that :
“Sub-section (4) of Section 173, Criminal Procedure Code, makes it obligatory on the Police to furnish to the accused before the commencement of every enquiry of trial a free copy of the document specified in it. This is clearly a mandatory provision and the Legislature’s intention can be gathered by the fact that in Section 207-A (3) and Section 251-A (1), a duty has been cast on the Magistrates in commitment proceedings and in warrant cases to see that copies of the papers mentioned in Section 173 (4) are furnished to the accused before the commencement of enquiry or trial.
The object is clearly, first, to expedite the criminal cases and, secondly, to secure fairness of trial, that is to enable the accused before the commencement of the enquiry or trial to know exactly what the evidence is against him so that he may be able to defend himself properly before the enquiry or trial commences.”
“Section 173 (4), Cr. P.C., governs all criminal cases irrespective of the fact whether they are summons or warrant cases.”
9. Having excluded the Chemical Examiner’s reports from consideration, the Court below concluded that there was no evidence on record to establish that Jai Singh had died of aconite poisoning. The Sessions Judge further remarked that the Chemical Examiner’s reports were meagre and cryptic and did not give any quantitative analysis, nor did they specify the test applied to detect the presence of aconite. Accordingly, relying upon, Mt. Gaya Kunwar v Emperor, AIR 1934 Oudh 62 (B) and In re K. Nagamma, AIR. 1941 Mad 870 (C), he held that they could not be relied upon.
10. After hering learned Counsel for the parties, I find myself unable to support the conclusions of the learned Sessions Judge. As far as the admissibility of the reports, Exs. P. K and P. W, is concerned, it is now settled law that the Provisions of Section 173 (4), Cr. P. C., are merely directory and not mandatory. The non-compliance of the direction contained in Section 173 (4), Cr. P. C., cannot therefore have the effect of vitiating the proceedings or of completely shutting out the reports in question, I am supported by the following two authorities : (a) In re Rangaswami Goundan, (S) AIR 1957 Mad 508 (D), where a Division Bench of that High Court had occasion to point out that :
“The report of the Chemical Examiner is not usually received by the time the inquiry commences. By its very nature it takes a long time before it reaches the Court. Further, it cannot be said that the prosecution either relies or does not rely on it, as normally it will not be available even to the prosecution at the time of the enquiry and there is, therefore, no obligation cast on the prosecution to furnish a copy of this document to the accused, before the commencement of the enquiry.
However, when the report is received by the Court, either during the course of the enquiry or after committal then it is the duty of the Court to furnish to the accused with a copy of the same without any application by him.”
(b) Narayan Rao v. State of Andhra Pradesh, (S) AIR 1957 S. C. 737 (E), where their Lordships of the Supreme Court observed as follows :
“In order to simplify commitment proceedings preceding the trial of accused persons by a Court of Session, Section 207-A was added by way of amendment of the Code in 1955. From Sub-sections (3) and (4) of that Section, it is clear that in cases exclusively triable by a Court of Session, it is the duty of the Magistrate while holding a preliminary inquiry, to satisfy himself that the documents referred in Section 173 have been furnished to the accused and if he found that the police officer concerned had not carried out his duty in that behalf, the Magistrate should see to it that that is done.”
”The provisions contained in Section 173 (4) and Section 207-A (3) have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished.”
“But non-compliance with those provisions has not the result of vitiating those proceedings and subsequent trial. The word ‘shall’ occurring both in Sub-section (4) of Section 173 and Sub-section (3) of Section 207-A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of Section 173, should not be allowed to have such a far-reaching effect as
to render the proceedings including the trial before the Court of Session wholly ineffective. However, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the Court may reopen the proceedings by insisting upon full compliance with the provisions of the Code.”
11. The committing Magistrate had reported that the accused could not afford to engage a counsel to defend her at the trial. Consequently, the Sessions Judge had appointed Mr. D. N. Vaidya at Government expense to defend her. I fail to see how, under the circumstances, it could be said legitimately that the production of these reports at the trial could prejudice the accused. I am, therefore, clearly of the opinion that the Sessions Judge was wrong in excluding the reports, Exs. P. R. and P. W. from the evidence. The report, Ex. P. R, shows that in the piece of liver, the stomach and its contents aconitine, the active principle of aconite was found. Similarly, the report, Ex. P. W, shows that aconite was found in the vomited matter contained in the sealed Bati.
While discussing point (B) in due course, I shall give my reasons for holding that the vomit was that of Jai Singh and had been duly recovered from his house.
12. There remains the criticism of the Sessions Judge that the reports were cryptic and did not contain any quantitative analysis. In AIR 1934 Oudh 62 (B), relied upon by the trial Court, a Division Bench of that Chief Court had remarked that :
‘No hard and fast rule can be laid down as regards the value to be attached to reports of Chemical Examiners, but a meagre and cryptic report is hardly of any value.”
Similarly, in AIR 1941 Mad 870 (C), referred to by the Sessions Judge, there was a considerable interval between the taking of the food by the deceased and the appearance of the symptoms of poisoning. In the present case, as I shall indicate presently, Jai Singh started vomiting soon after finishing his dinner. The learned Advocate for the appellant pointed out that Section 510, Cr. P. C., has now been amended.
Under Sub-section (2) thereof, it was open to the Sessions Judge to summon the Chemical Examiner and examine him, in case he felt that his reports were incomplete and thereby satisfy himself that the results stated therein were correct. Consequently, I am unable to endorse the criticism made by the Sessions Judge of these reports.
13. (iii) From the statements of Jagat Ram (P. W. 14)–brother of Jai Singh–Dila Ram (P. W. 1), Mt. Devku (P. W. 10), wife of Jagat Ram, and Ganga Ram (P. W. 16), it is established that Jai Singh vomited soon after taking the meal. Jai Singh also complained that there was an irritating sensation in his tongue and his eyes and heart were burning. There was cold perspiration. Water, curd and honey were given to him one after the other, but they all tasted bitter. Jai Singh tried to vomit several times, but only a little liquid came out of his mouth. The victim was very restless and kept on throwing his arms and legs and died in agony. These symptoms tally with those stated by Modi, in his well-known Medical Jurisprudence and Toxicology, while dealing with aconite poisoning.
14. Putting (i), (ii) and (iii) together, I have no hesitation in coming to the conclusion that Jai Singh died as a result of aconite poisoning. The
finding of the Sessions Judge to the effect that there was no evidence to establish that Jai Singh had died of such poisoning is, obviously, erroneous and cannot be supported.
15. (B). There is the following evidence against Mt. Shiv Devi : (i) On 26-1-1957, Mt. Shiv Devi made a confessional statement (Ex. PP) under Section 164, Cr. P. C., to Mr. B. S. Gautam Magistrate first class, Mandi (P. W. 6). In that statement (which has been reproduced, in extenso, in the judgment of the Sessions Judge), she admitted having administered aconite to Jai Singh on the day in question. She added that she had adopted that course, because Jai Singh persisted in quarelling with her and molesting her.
As regards the origin of the aconite, she had alleged that the same had been brought by her husband from the mountains of Chamba. The learned trial Judge refused to rely on the confession on the ground that it was not a voluntary one. Learned Counsel for the appellant urged, vehemently, that the grounds given by the trial Court for holding the confession to be involuntary, were not sound. I have considered this matter and have come to the conclusion that the confession can be relied upon.
The Sessions Judge held the confession to be involuntary on two grounds, viz., (a) in his opinion, the police made “indecent haste” in getting the confession recorded and the recording Magistrate did not give Mt. Shiv Devi sufficient time to think it over and get over the influence of the police. (b) The confession was a full and detailed one and it contained all the facts necessary to prove the prosecution case, Mt. Shiv Devi was an illiterate village woman and could not be expected to make such a statement.
In this connection, reliance was placed by the trial Court on Mt. Bhukhin v. Emperor AIR 1948 Nag 344 (F). Taking (a) first, Mr. B. S. Gautam, Magistrate (P. W. 6), stated at the trial, that Mt. Shiv Devi was produced at his residence by the police on 25-1-1957 at about 10.30 P.M. The Magistrate did not record her confession at that unearthly hour. He directed that Mt. Shiv Devi should be sent to the judicial lock-up and be produced before him at 11.30 A.M., on the following day in his Court room.
Accordingly, Mt. Shiv Devi was produced before him the next morning. The Magistrate took the precaution of sending away all police officers and employees from the vicinity of his Court-room. He then warned Mt. Shiv Devi that he was a Magistrate, that she (the accused) was not bound to make a confession and, nevertheless, if she did make a confession, the same could be used as evidence against her. He further assured her that she would not be sent back to police custody. He also questioned her as to whether she was acting under the influence of any threat, promise or inducement. He even went to the length of asking her why she wanted to make a confession.
Her reply was that she wanted to make a clean
breast of the entire affair. All these questions and
answers are to be found in Ex. P. Q. It was after
putting these questions and satisfying himself that
Mt. Shiv Devi wanted to make a statement voluntarily, that the learned Magistrate recorded her
statement. The statement was read over to her
and admitted to be correct. At the foot of the
statement, the Magistrate has appended a certificate,
as required by Section 164 (3), Criminal Procedure
Code.
16. In treating the confession as not voluntarily made, the learned trial Judge has pointed out that Mt. Shiv Devi was arrested at village Banali on 23-1-1957. She was kept at Sarkaghat Thana on the 23rd and 24th January, 1957. On the following day (25-1-1957), she was taken to village Banali, where, it is alleged, certain recoveries were made at her instance. She was then taken back to Sarkaghat and from there was brought to Mandi, where she was produced before Mr. Gautam, Magistrate, at his residence at 10.30 P.M. The Magistrate did not record her confession that night.
He sent the accused to the judicial lock-up and issued orders that she should be produced before him the following day in his Court room. I am unable to endorse the view of the Sessions Judge that the action of the police displayed ‘indecent haste.’ If an accused person is in a mood to confess, the sooner his confession is recorded the better. Of course, the Magistrate will take precautions to ensure that the influence of the police, if any, is removed before the confession is recorded.
In the present case, as already shown, Mt. Shiv Devi was sent to the judicial lock-up and she spent the night there. The Sessions Judge has remarked that one night’s detention in the judicial lock-up was not sufficient for Mt. Shiv Devi to get over police influence. Reliance has been placed by him on Findal v. State, AIR 1954 Him Pra 11 (G), where my learned predecessor had remarked mat a confessing accused person should be kept in the judicial lock-up for sufficiently a long time before his statement is recorded.
The expression ‘sufficiently long time’, in my opinion, is not capable of precise measurement. In Criminal Appeal No. 6 of 1957, Mangsaru v. State of Himachal Pradesh D/- 19-2-1957 (H), I had indicated that a confession should not, necessarily, be discarded because the accused was not sent to the judicial lock-up, before his statement was recorded. This view is supported by a decision of the Supreme Court, reported in Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637 (I), wherein their Lordships of the Supreme Court held that :
“It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under Section 164. However, speaking generally, it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.”
In the present case, as already shown, Mt. Shiv Devi was kept in the judicial lock-up during the night intervening 25th/26th January, 1957. The other precautions, taken by the Magistrate to ensure that her statement was voluntary, have been referred to above. I am, therefore, unable to support the view of the Sessions Judge that the period, spent by Mt. Shiv Devi in the judicial lock up, was insufficient to remove the influence of the police, if any.
17. Coming to (b), I am again unable to accept the view of the Sessions Judge that Mt. Shiv Devi was not capable of making the statement, Ex. P. P, which, he thought was so full and detailed, that it had necessarily to be regarded as a tutored statement. Actually, the confessional part of the statement consists of only 14 lines written in Hindi.
Again, it would not be correct to say–as the Sessions Judge has done–that it contains the entire prosecution story. For instance, it is silent regarding the circumstance, relied upon by the prosecution, that Jai Singh had been beaten one night by an unknown stranger, who came out of Mt Shiv Devi’s room. Similarly, it makes no reference to the allegation made by Dila Ram (P. W. 1) and others to the effect that while he (Dila Ram) was writing out a report on 23-1-1957 to be sent to the police, she (Mt. Shiv Devi) tried to snatch the paper from his hand saying that she had committed a ‘mistake’ and prayed for pardon.
If, as I am asked to believe, the confession was a tutored one, I fail to understand why these two important circumstances, which have been relied upon by the prosecution, should not have been got included in the confession. The Sessions Judge has relied upon AIR 1948 Nag 344 (F) for holding that the word “appears” in Section 24 of the Evidence Act indicates lesser degree of probability than would be required for ‘proof.’
I am unable, however, to see even, prima facie, any reasonable ground for treating the confession as obtained by threat, promise or inducement. Mt. Shiv Devi’s allegation to the committing Magistrate was that she had made the confession, “as instructed ‘by the police.” This allegation remains in the air, not having been established by facts elicited in cross-examination of prosecution witnesses or evidence tendered in defence.
It is true that the confession was retracted and accordingly it, by itself, cannot form the basis of conviction unless corroborated on material particulars by independent evidence. In Hem Raj Devilal v. State of Ajmer, AIR 1954 S. C. 462 (J), their Lordships of the Supreme Court indicated that :
“It is well settled that in order that evidence of a confession by a prisoner may be admissible, it must be affirmatively proved that such confession was free and voluntary and that it was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or that it was not made until after such inducement had clearly been removed. But a mere bald assertion by the prisoner that he was threatened, tutored or that inducement was offered to him, cannot be accepted as true without more.”
18. In view of what has been said above, I must reverse the finding of the Sessions Judge and hold that the confession, Ex. PP, was voluntarily made and, therefore, it could be taken into consideration as evidence against the respondent. At the same time, since the confession was retracted, it requires independent corroboration on material particulars.
19. (ii) According to the statements of Dila Earn (P. W. 1) and Ganga Ram (P. W. 16), Jai Singh told them, shortly before he died, that he has been poisoned by Mt. Shiv Devi and Mt. Devku. The prosecution relied upon this testimony as a dying declaration, under Section 32 (1) of the Evidence Act. This evidence has been rejected by the Sessions Judge on three grounds, firstly, that the dying declaration was found to be incorrect, in so far as it went against Mt. Devku, secondly, it was difficult to ascertain the exact words used by Jai Singh, and, lastly, it was not possible to say that the dying declaration contained the truth.
Learned Counsel for the appellant urged–and in my opinion with considerable justification–that there was no valid ground to hold that Jai Singh was, in any way, interested in implicating Mt. Shiv Devi falsely. Further, even if the dying declaration was found to be incorrect in so far as it went against Mt. Devku, that was no ground for rejecting it as against Mt. Shiv Devi. Dila Ram (P. W. 1),
it must be remembered, is a retired police officer, who had officiated as S. H. O. for 5 or 6 years. No enmity has been alleged between Shiv Devi and Dila Ram.
I, therefore, fail to see why he should go out of his way to implicate an innocent woman. The same remarks apply to the statement of Ganga Ram (P. W. 16). Jagat Ram (P. W. 14), brother of the deceased, was cross-examined by the Public Prosecutor with the permission of the Court. It is true that in the Sessions Court, Jagat Ram stated that Jai Singh had said before his death that he had been poisoned by Rewat and Devku. In his statement under Section 164, Cr. P. C., however, recorded by a Magistrate second class, Ex. P. S, he had given out that Jiai Singh had said that he had been poisoned by Mt. Shiv Devi and Devku.
It appears, therefore, that Jagat Ram was trying to shield Mt. Shiv Devi and as such he was not a reliable witness. The learned Sessions Judge has further remarked that the report sent by Dila Ram (Ex. P. A) does not mention that Jai Singh had given out that he had been poisoned by Mt. Shiv Devi and Devku. The actual words used in the report are : “Us ne kaha ki us ke sath baimani ki gavi hai aur Mt. Shiv Devi aur Mt, Devku, ne us ko jinda nahin chhorana tha.”
20. This, obviously, means that Jai Singh accused these two women of having poisoned him, although the mode of murder had not been stated in so many words. The Investigating Officer had arrested Mt. Devku along with Mt. Shiv Devi, but the former was released due to lack of evidence. This does not, however, mean that the dying declaration was necessarily false in so far as it went against Mt. Devku. The purport of the dying declaration has been supplied by Dila Ram and Ganga Ram and, in my opinion, the same could be relied upon even in the absence of the exact words uttered by Jai Singh. This is valuable corroboration of the retracted confession of Mt. Shiv Devi.
21. (iii) The prosecution also relied upon an extra judicial confession alleged to have been made by Mt. Shiv Devi, while Dila Ram (P. W. 1) was writing out the report, Ex. P. A, on the morning of 23-1-1957. Dila Ram’s statement in this regard is that while he was writing out the report, Mt. Shiv Devi came out of her room, fell at his feet and requested him not to send the report to the police.
She also tried to snatch the paper from his hand. On being questioned by Dila Ram and Hari Ram (P. W. 13), Mt. Shiv Devi, allegedly, stated that she had committed a ‘mistake’ and administered poison to Jai Singh mixed with Sag. She prayed for pardon. Dila Ram did not accede to her request and sent the report to the police station. On this point, there is the statement not only of Dila Ram (P. W. 1), but also those of Mehar Singh (P. W. 2), son of Jagat Ram, Hari Ram (P. W. 13), Ganga Ram (P. W. 16) and Mt. Devku, wife of Jagta (P. W. 10). The learned Sessions Judge has disbelieved this part of the prosecution case on the ground that in the report, Ex. P. A, there is no mention of the extra judicial confession.
The Sessions Judge has remarked that Dila Ram was a retired police officer of considerable experience and he would not have omitted to refer to the extra judicial confession, had it been a fact. The Court below was of the view that the so-colled extra judicial confession was an ‘after-thought’ on the part of the police with a view to ‘bolster up’ its case.
It has also remarked that there was undue delay in sending information to the police and some
‘confabulations’ were apparently going on in the village throughout the night and the report was written the following morning on the arrival of Hari Ram, brother of Dila Ram (P. W. 1). The Sessions Judge has also referred to Des Raj v. Emperor, AIR 1928 Lah 858 (K), where a Division Bench of that High Court observed that :
“Apart from the question, whether or not extra judicial confessions are inadmissible in evidence, they are not of such a nature as entitle them to any weight, because it is impossible to ascertain the exact words used by the person. To base a conviction on such a confession is not safe.”
22. Learned Counsel for the appellant urged –and in my opinion not without justification–that the findings of the Sessions Judge in this regard are not only unwarranted, but also, to a large extent, based on surmises. He pointed out that village Banali is about three miles from the police station. The occurrence took late on a winter night. Dila Ram has explained that there were only three male adults in the village, when Jai Singh died, i.e., Jagat Ram, Ganga Ram and himself (Dila Ram).
No one was prepared to go to Sarkaghat that night, as they were all busy talking and watching the dead body. Hari Ram was sent for, but he was not found at his house. Another villager named Ramditta, had gone out to attend a marriage. The report reached the police station the following morning at 10-30 A. M. Under the circumstances, I cannot agree with the Sessions Judge that there has been undue delay in informing the police. Similarly, while it is true that the report, Ex. P. A, does not refer to the extra-judicial confession made by Mt. Shiv Devi, a good explanation has been given by Dila Ram for not referring to it.
According to him, the accused Mt. Shiv Devi was pestering him and her children were weeping while he was writing the report. I heve already indicated above that no enmity is shown to exist between Dila Ram, on one side, and Mt. Shiv Devi, on the other. I fail to see, therefore, why he should falsely credit her with an extra-judicial confession. Dila Ram is corroborated on this point by Mehar Singh (P. W. 2), Hari Ram (P. W. 13) and Ganga Ram (P. W. 16).
The Sessions Judge has remarked that while according to Dila Ram, Mt. Shiv Devi had admitted having administered poison mixed with Sag, Mohar Singh (P. W. 2) deposed that Mt. Shiv Devi admitted having administered ‘something’ mixed with Bhang. Hari Ram and Ganga Ram also stated that Mt. Shiv Devi had admitted that she had administered poison to Jai Singh. The statement of Mt. Devku (P. W. 10) in my opinion, is liable to be discarded because, on her own showing, relations between her and Mt. Shiv Devi were unfriendly. There is, however, no valid reason to reject the testimony of Dila Ram, Hari Ram, Mehar Singh and Ganga Ram.
The minor variations n their statements would not justify the inference drawn by the Sessions Judge i.e., that they had been tutored by the police to ‘bolster up’ their case. The variations, in my opinion, were slight and not of material consequence. The omission to refer to the extra-judicial confession in the report. Ex. P. A. has been explained by Dila Ram and his explanation is plausible. It is true that an extra-judicial confession is a weak piece of evidence and, by itself it cannot form the basis of conviction, but, as remarked by a Division Bench of the Madhya Bharat High Court in Raghuwar Singh v. State, AIR 1955 Madh B 43 (L):
“The evidence of oral extra-judicial confession is undoubtedly a very weak piece of evidence and it would be dangerous to convict a person solely on its basis. But it can be taken into consideration along with other evidence.”
Thus, there is nothing to prevent the Court from taking into consideration the extra-judicial confes sion, along with other evidence, as corroboration of the retracted confession.
23. (iv) Another important circumstance, relied upon by the prosecution, was the discovery of certain incriminating articles at the instance of Mt. Shiv Devi on 25-1-1957. On the previous day, while in the lock up at P. S. Sarkaghat, the accused offered to Rattan Singh, S. H. O. (P. W. 22) to point out certain articles at her house in village Banali. The statement made by Mt. Shiv Devi was reduced to writing and has been marked as Ex. P.E.
The Court below has rightly held that barring the portions, Exs. P.E/1 and P.E/2, the rest of that statement would be inadmissible in evidence as the same amounts to a confession made to a police offcier. Ex. P. E/l is to the effect that aconite had been tied in a knot in a piece of cloth, placed inside an earthen pot, which, in its turn, had been placed, on a plank in the kitchen. Similarly, Ex. P. E/2 is to the effect that the Sil Batta, on which the poison had been powdered had been placed in a room in the lower storey.
In pursuance of that statement, Mt. Shiv Devi was taken to village Banali, on 25-1-1957 where, in the presence of Dila Ram (P. W. 1), Gokal Chand (P. W. 4), Narain Singh (P. W. 11), Hari Rain (P. W. 13), Ganga Ram (P. W. 16) and Trilok Singh, lambardar, (P. W. 17) earthen pot, Ex. P. 4, was recovered at Mt. Shiv Devi’s instance from a wooden plank near the fire place in the kitchen of her house. The earthen pot contained a piece of cloth, Ex. P. 5, which had a knot at either end. On being opened, a green yellowish powder was found, in one of the knots, packed in a piece of paper, Ex. P. 6.
24. The accused then took the S. H. O. and the witnesses to the ground floor. At her instance, Sil (Ex. P. 8) and Batta (Ex. P. 9) were recovered from underneath a box. A packet of Bhang was recovered from inside the box. All these articles were duly packed and sealed. A recovery list, Ex. P. F. was then prepared, which has been signed by Rattan Singh, S. H. O., as well as Dila Ram, Gokal. Chand, Narain Singh, Hari Ram, Ganga Ram and Trilok Singh. These articles were, subsequently, taken to the office of the Chemical Examiner at Kasauli by Sobha Ram, constable (P. W. 19).
The report of the Chemical Examiner (Ex. P. W) is to the effect that aconitine, the active principal of aconite, was found in the greenish yellow powder as well as on the Sil Batta. The Sessions Judge has, however, brushed aside this evidence on the ground that the recoveries were highly suspicious and no reliance could be placed upon them. In coming to this conclusion, he has remarked that Ex. P. E. (statement made by Mt. Shiv Devi to the S. H. O. on 24-1-1957) was a full confession, which was unnecessary for the discovery of the articles.
He has also characterised, as strange, the circumstance that Dila Ram, Hari Ram and Ganga Ram should have been present at the police station when the statement Ex. P. E was recorded. The Court below has also commented on the fact that after the arrest of Mt. Shiv Devi on 23-1-1957, her house was not searched or sealed. The trial Judge has also referred to certain discrepancies in the statements of Dila Ram, Lachman Singh, Hari Ram, A. S. I., Man Mohan Lal, Ganga Ram and Trilok Singh,
regarding the locking of the house on 23-1-1957. The Sessions Judge felt that the locks could have been opened by Hari Ram or any other person and the incriminating articles planted there with a view to implicate Mt. Shiv Devi.
25. Learned Counsel for the appellant submitted that the finding of the Sessions Judge was based mostly on conjectures and surmises. I find considerable force in this argument. It may be that the police were zealous in the investigation of the case and, therefore, wanted to discover the origin of the poison. The statement, Ex. P. E, as already mentioned, would amount to a confession and the Court below was right, therefore, in admitting into evidence, only the portions marked Exs. P. E./1 and P. E/2. Legally, it was not necessary that the statements should have been attested by witnesses.
The mere fact, however, that the statement was witnessed by Dila Ram, Hari Ram and Ganga Ram would not justify the inference that the entire recovery was of a suspicious nature. I have gone through the statements of the search witnesses. The essence of their testimony is to the effect that at the instance of Mt. Shiv Devi, earthen pot, Ex. P. 4, was recovered from a shelf near the fire place in the kitchen. A piece of cloth, Ex. P. 5, containing two knots was found inside that pot.
One knot contained a greenish yellow powder and the other a white powder. Similarly, Sil Batta (Exs. P. 8 and P. 9) were recovered at the instance of Mt. Shiv Devi in a room, on the ground floor from underneath a box. A packet of Bhang (Ex. P. 10) was found inside the box. All the recoveries were denied by Mt. Shiv Devi both in the committing Court as well as in the Sessions Court.
I see no reason, however, to disbelieve the evidence of these recoveries. The Sessions Judge has attached undue importance to the fact that the house was not searched on 23-1-1957 when Mt. Shiv Devi was arrested. A. S. I. Man Mohan Lal (P. W. 21) admitted, in cross-examination, that he did not realize the necessity for searching the house on that date. While I agree that a prompt search would have been proper, I can find no evidence to support the argument that the incriminating articles might have been planted by Hari Ram or anybody else.
According to A. S. I. Man Mohan Lal, after the arrest of Mt. Shiv Devi, the house was locked and the keys made over to Hari Ram. The learned Sessions Judge has laid undue stress on certain contradictions between the statements of Dila Ram, Lachman Singh, Harnam Singh, Hari Ram, Ganga Ram and Trilok Singh as to whether the lock had one key or two keys; as to whether any memorandum was prepared by A. S. I. when the keys were handed over to Hari Ram or not and as to whether the lock had been supplied by the police or was already hanging on the door.
In my opinion, these contradictions are of minor nature and do not affect the factum of recovery. In Chuhar Singh v. State, AIR 1955 Pepsu 81 (M). a Division Bench of that High Court observed that:
“Contradictions or improvements in minor details, cannot be regarded as very material or a positive proof of the mendacity of the witnesses and the whole case cannot be thrown out on their account. The Court is to look to the broad outlines and main features of the case and to decide how far participation of the accused before it in the alleged offence or offences is established. The truth has always to be dissengaged from falsehood.”
In paragraph (A) (ii) of this judgment supra, I have given my reasons for holding that the Sessions Judge was wrong in excluding the Chemical Examiner’s reports, Exs. P. R. and P. W., from the evidence. Ex. P. W. makes it clear that aconitine was found not only on the Sil Batta, but also in the greenish yellow powder recovered from inside the earthen pot, Ex. P. 4. This circumstance strongly supports the retracted confession. Similarly, the recovery of the Bati, Ex. P. 1, containing the vomit of the deceased, stands established from the statement of A. S. I. Man Mohan Lal (P. W. 21) and Hamam Singh, President of the Gram Panchayat (P. W. 12). This vomit was examined by the Chemical Examiner and was found to contain aconitine, vide his report, Ex. P. W.
26. (v) I need not dwell long on the statement of Mt. Devku (P. W. 10) to the effect that Mt. Shiv Devi had, on one occasion, requested her to prepare something which would “finish off” Jai Singh. Mt. Devku added that Mt. Shiv Devi had requested Saran (P. W. 5) to prepare a magical charm which would have the effect of ‘finishing’ Jai Singh. A similar statement has been made by Saran (P. W. 5).
These allegations were denied by Mt. Shiv Devi. I am not impressed by this evidence. Mt. Devku admitted that her relations with Mt. Shiv Devi were not cordial. It is hardly likely, therefore, that Mt. Shiv Devi would have approached her for such a nefarious purpose. Saran (P. W. 5) admitted in cross-examination that he did not mention to anybody the request made to him by Mt. Shiv Devi. Under these circumstances, I would hold that this part of the prosecution evidence was rightly discarded by the Court below.
27. (vi) On behalf of the appellant, reliance was then placed on the statement made by Mt. Shiv Devi to the committing Magistrate on 26-3-1957. This statement deserves careful reading. The following questions put by the committing Magistrate and the answers given thereto by the accused, may be usefully reproduced below:
Q. Did you and Rawat beat Jai Singh deceased some days before his death at the night time when Jai Singh had gone out of the house to make water and caused injuries to his person? (sic)
A. Yes.
Q. Did Rawat visit you and did you have illicit connection with him?
A. Yes.
Q. Did Jai Singh warn you before his death that he would inform Amar Singh of those things as soon as he returned home and have her beaten? (sic).
A. Yes.
Q. Did you on the 10th Magh last administer ground aconite to the deceased Jai Singh mixed in Sag and it caused his death?
A. I had given Jai Singh something which Rawat had ground in my house and given to me for being administered to Jai Singh, mixed in pulse. I do not know what it was.
28. At the trial, Mt. Shiv Devi changed her statement on the above points, i. e. she denied that Jai Singh had been beaten one night by some man who was inside her room. She also denied that her relations with Jai Singh worsened from that time. She also denied having mixed anything in the food given to Jai Singh, which resulted in his death.
The learned Sessions Judge was of the opinion that the committing Magistrate was not authorized to put the following question to the accused as there was no evidence before him to justify the question: “Did you on the 10th Magh last administer ground
aconite to the deceased Jai Singh, mixed, in Sag, and it caused his death?” Therefore, the answer thereto given by Mt. Shiv Devi to the effect that Rewat had ground something in her house which she had administered to Jai Singh mixed with pulse was held to be inadmissible. In my opinion, the view taken by the Sessions Judge was erroneous.
He has overlooked an application made by Mt. Shiv Devi to the committing Magistrate on 14-3-1957, i. e. 12 days before she was questioned by that Magistrate. This application is paper No. 41 of the committing Magistrate’s record. The committing Magistrate has made the following endorsement on that application: “The application has been made by Mt. Shiv Devi accused. It may be filed with the case. Copy of it may be sent to the S. P. Mandi for f/o enquiry and report, regarding the allegation made by the accused about Rewat.”
In the body of the application, Mt. Shiv Devi stated that, before 5 days Jai Singh met with his death, Rewat came to her house, ground something on the Sil, mixed it with Bhang and directed her to administer the same to Jai Singh in his meals. Mt. Shiv Devi complied with that direction. The reply given by Mt. Shiv Devi in answer to the Magistrate s question (which has been held to be inadmissible by the Sessions Judge) was precisely the same, i. e. that Rewat had given her something and she administered the same to Jai Singh with his food.
Further, the charge-sheet framed against Mt. Shiv Devi was that she had caused the death of Jai Singh by mixing poison in his food. In my opinion, not only was die committing Magistrate justified in putting this question, but further he was bound to do so. Under S. 287, Cr. P. C., the statement made by an accused person to the committing Magistrate must be tendered and read as evidence in the Sessions Court. Further, under Section 342 (3), Cr. P. C., the answers given by the accused may be taken into consideration in a trial or inquiry and put in evidence for or against him in any other inquiry or trial. In Andu Mushar v. State, AIR 1955 Pat 428 (N), a Division Bench of that High Court pointed out that:
“Section 342(3), of course, does not speak of the statement to be evidence in the trial or inquiry, but, nevertheless, directs that it has to be considered in relation to the offences charged. The wordings in Section 342, Sub-section (3) and in Section 287 are different. The latter section directs such statement to be read as evidence; which is something more than what one understands by the expression, “may be taken into consideration.”
“In both cases, the Court has to consider the statement made by an accused, but, whereas the provisions in Section 342, give some latitude to the Court to use or not to use such statement, the same immunity is not afforded in sessions trials, which deal with grave offences. The Court is then bound bo consider the effect of such statements in order to give its finding. Section 287 does not impose any qualification with regard to the word ‘evidence’, and it is, difficult to interpret the section to mean that such statement should only be weighed to find if it is consistent with the innocence of the accused.”
“There appears to be no scope for putting a restricted meaning to this word and it is open to the Court to make use of such statements as it does with any other evidence either for or against the accused.”
Therefore, the answers given by Mt. Shiv Devi to the above questions in the Court of the committing Magistrate form strong corroboration of her retracted confession. The statement made by Mt. Shiv
Devi to the committing Magistrate, Ex. P. X, was put to her at the trial. She admitted having made that statement, but did not add whether it was true or false.
29. (vii) Learned counsel for the appellant submitted that the accused had a strong motive for committing the offence attributed to her. He invited my attention to the statements of Dila Ram, Mehar Singh Hari Ram, Ganga Ram and Jagat Ram to the effect that the relations between Jai Singh and Mt. Shiv Devi had become strained. According to them, Jai Singh used to say that Mt. Shiv Devi was immoral and bad characters used to visit her.
A counter charge was levelled by Mt. Shiv Devi against Jai Singh that he was forcing her to submit to illicit intercourse. One night when Jai Singh came out of his room to make water, he heard some stranger moving in Mt. Shiv Devi’s room. When he tried to find out who that person was, he was beaten and pushed down by the stranger, who escaped. In that process, he substained injuries.
The learned Sessions Judge has held that this part of their testimony was not admissible in evidence, having regard to the provisions of Section 32 of the Evidence Act. On behalf of the appellant, my attention was invited to the provisions of Section 8 of the Evidence Act, whereby any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Illustration (a) to Section 8 runs as follows:
“A is tried for the murder of B. The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.”
In the same way, in tile present case, the circumstance that relations between Jai Singh and Mt. Shiv Devi were strained, that Jai Singh threatened to expose her to her husband on his return and also that Jai Singh was beaten on one occasion by Mt. Shiv Devi’s paramour would be relevant under Section 8, Evidence Act. Therefore, the Sessions Judge was not right in treating this evidence as inadmissible.
The Court below has also remarked that the obvious course for Jai Singh was to live separately when he found that his relations with Mt. Shiv Devi had become strained and he apprehended danger from her. As stated earlier, Jai Singh had already parted with his properties. Half had been given away to his daughter, Mt. Sundari and the other half gifted to Ainar Singh, husband of Shiv Devi. Where was he to go? It was suggested–and quite plausibly too–that he did not really believe that Mt. Shiv Devi would go so far as to poison him. The attack on Jai Singh at night was admitted by Mt. Shiv Devi in her statement to the committing Magistrate.
She also admitted her illicit connection with Rewat as well as that Jai Singh had warned her that he would expose her to her husband, Amar Singh, on his return. There was, therefore, a powerful motive underlying the commission of the crime. This, in my opinion, does corroborate the retracted confession.
30. (viii) It is extremely noteworthy that while examined by the Sessions Judge, Mt. Shiv Devi admitted having given Jai Singh, on the fatal night, meal consisting of rice and dal. She professed ignorance as to what happened to Jai Singh subsequently. She went to the extent of stating that she was not aware diat Jai Singh had started vomiting and his condition became serious. She alleged that she came to know of his death only the following morning.
31. This is incredible, bearing in mind that Jai Singh was none other than her husband’s elder brother and was his benefactor (having given him half of his lands). The conduct of Mt. Shiv Devi was quite unnatural, under the circumstances. In Deonandan Mishra v. State of Bihar, (S) AIR 1955 SC 801 (O), their Lordships of the Supreme Court observed that:
“It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased, as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would, itself, be an additional link which completes the chain.”
In the same analogy, in the present case, the omission on the part of Mt. Shiv Devi to offer any explanation as to how Jai Singh started vomiting, soon after taking the meal given by her and died shortly afterwards, constitutes an additional link, which completes the chain of evidence against her.
32. To sum up, therefore, the cumulative effect of the confession, Ex. PP., made by Mt. Shiv Devi, the dying declaration of Jai Singh, the extra-judicial confession made by Mt. Shiv Devi, the discovery of aconite from the earthen pot and the Sil Batta, the statement made by Mt. Shiv Devi to the committing Magistrate, and the existence of strong motive for the commission of the crime coupled with the total failure on the part of the accused to offer any plausible explanation, is to establish beyond all reasonable doubt, that the aconite poison, which resulted in the death of Jai Singh, was administered to him by Mt. Shiv Devi mixed in his food.
Learned counsel for the respondent urged that even if this Court took a different view of the evidence, the verdict of acquittal should not be set aside unless there were substantial and compelling reasons for holding the trial Court to be wrong. Reliance was placed on Aher Raja Khima v. State of Saurashtra, (S) AIR 1958 SC 217 (P), where the majority view was:
“In an appeal by a State Government under Section 417 against the acquittal of the accused, it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong.”
In the present case, Jai Singh was poisoned and he died a very painful death. The offence committed by the respondent was a heinous one. In acquitting the accused, the Sessions Judge has taken an erroneous view on several points of law and fact, resulting in a serious miscarriage of justice. These, in my opinion, are compelling reasons to set aside the order of acquittal.
33. (C) The offence committed by Mt. Shiv Devi, in my opinion, clearly falls under Section 302, I. P. C. It cannot be watered down to any minor offence. She must have known that the act of administering aconite was so imminently dangerous that it must, in all probability, cause death. In State v. Basu Tanti, AIR 1957 Pat 462 (Q), a Division Bench of that High Court observed as follows:
“Where a person administers a poisonous substance to another which has resulted in his death, he is normally expected to know the effect of the poisonous substance and, if death has resulted, it must be held that the accused persons intended death or at least knew that death was the imminent result of the poison administered.”
I would, therefore, hold that Mt. Shiv Devi is guilty of an offence under Section 302, I. P. C.
34. There remains the question of sentence. Mt. Shiv Devi is about 24 years of age. She has two minor children. From the statement given by her to the committing Magistrate, it would appear that she had acted as a tool of her paramour, Rewat. Under these circumstances, the ends of justice do not require the infliction of the extreme penalty of law. The only alternative is to sentence her to life imprisonment.
35. ORDER: I allow this appeal and set aside the order dated 29-5-1957 of Shri Om Prakash Sessions Judge, Mandi, acquitting Mt. Shiv Devi, of an offence under Section 302, I. P. C. I convict Mt. Shiv Devi of an offence under Section 302, I. P. C., and sentence her to life imprisonment.
36. The directions made by the Sessions Judge for the disposal of case property will, however, stand.