A.K. Shrivastava, J.
1. This appeal has been preferred by the appellant feeling aggrieved by the judgment of conviction and order of sentence dated 5-3-1992passed by learned 1st Additional Sessions Judge, Shahdol in Sessions Trial No. 104 of 1991.
2. In brief the case of prosecution is that on 17-11-1987, the parents of Kallu (hereinafter referred to as ‘the deceased’) went to their work place and in the house the deceased who was aged eight years and his sister Nan Bai aged 10 years were present. At 8 a.m. the accused/appellant gave a dish of rice and fish to eat to the deceased and one Manoj, thereafter Nan Bai and the deceased went to graze she-goats in the jungle. In the jungle one Gopal was also grazing the catties. As the deceased was complaining of fever, he was brought back to his house, thereafter he started vomitting and suffered from an attack of diarrhea. The parents of the deceased also returned home and found their son (the deceased) in serious condition. According to the prosecution, Nan Bai told her parents that the accused had given fish and rice to eat to the deceased which he had eaten. The inhabitants of the village Brijnandan (P.W. 11) and Mohd. Hanif (P.W. 5) also arrived at the house of the deceased. Ramchandra Baiga and Devlal Goud put the deceased to exorcism. But, at 7 in the evening the deceased passed away. On the next day, i.e., 18-11-1987 Jagdish lodged the First Information Report (Ex. P-1) and in this manner the criminal law set in motion. The police arrived at the spot and prepared the ‘Panchnama’ of the dead-body and sent the same for the post- mortem. In the post-mortem the cause of death could not be ascertained by the doctor and, therefore, the viscera of the internal organs were seized and they were sent for chemical examination. The chemical examiner while examining the pieces of heart, lungs, stomach, intestine, liver, spleen and kidney found the presence of aluminium phosphite (sulphas pesticide). The Investigating Officer recorded the statement of witnesses and after completion of the investigation filed the charge-sheet before the Competent Court which committed the case to the Court of Session and from where it was sent to the Trial Court for the trial.
3. A charge under Section 302 of the Indian Penal Code was framed against the accused/appellant which she abjured. Her defence is of maladroit implication. In order to prove the charge the prosecution examined as many as 12 witnesses and placed Exs. P-l to P-12 the documents on record. The learned Trial Judge after scanning the evidence came to the conclusion that the appellant did commit the offence under Section 302 of the IPC and eventually convicted her of the said offence and directed her to suffer rigorous imprisonment of life. Hence, this appeal.
4. We have heard Shri Rajendra Pandey, learned Counsel for the appellant and Smt. Chanchal Sharma, learned Counsel for the State and perused the record.
5. The star witness of the prosecution is Nan Bai (P.W. 2), she is child witness aged about 10-11 years. According to her evidence on the date of the incident when her parents went to the place of their work, the appellant carried the deceased to her house and gave the rice and fish to him. She also served rice and curry of vegetables to Manoj. At that time she was present at her house. According to her the deceased brought the said dish of rice and fish to his house and ate it, and thereafter she along with the deceased went to graze the she-goats in the jungle where the deceased started vomitting, as a result of which she brought her brother back to the house, and in the evening he passed away.
6. The other star witness is Manoj (P.W. 4). According to the prosecution, the appellant gave the dish of rice and fish to the deceased and gave vegetable curry and rice to this witness. This witness is also a child witness and when he was examined his age was six years. However, the learned Trial Judge after putting certain questions to him came to the conclusion that he understood the importance of the questions. This witness has stated that at the house of the appellant the deceased ate the dish of rice and fish and he ate the dish of vegetable curry and rice, and thereafter the deceased died. In the cross-examination he has stated that he told the police that he and the deceased both ate the dish of rice and fish. He also stated that he had told police that both of them had eaten the dish in one ‘Douna’ (leaves which are folded up in the form of a cup and used for holding things). It is also manifest from the evidence of Manoj (P.W. 4) that he too ate rice and fish along with the deceased and both of them ate the same in a common ‘Douna’.
7. From the evidence of aforesaid two witnesses, it does not transpire that the accused/appellant had the poison in her possession and that she had an opportunity to administer the poison to the deceased.
8. Maya (P.W. 1), is the mother of the deceased and Jagdish (P.W. 3) is the father. From the testimony of both these witnesses it does not transpire that there was any motive for the accused to administer poison to the deceased. Both of these witnesses have not seen the appellant serving rice and fish to the deceased. According to them, when they came back to their house they saw that the deceased was vomitting and was having loose motion. They were told by their daughter Nan Bai (P.W. 3) that in the morning accused/appellant gave rice and fish to the deceased.
9. Mohd. Hanif (P.W. 5) is the witness who advised Jagdish to lodge the report. Dr. C.S. Pyasi (P.W. 6) is the doctor who conducted the post-mortem of the deceased. The post-mortem report is Ex. P-4. On a bare perusal of this report, it is revealable that the doctor did not opine the cause of death, however, this witness preserved the viscera and advised for its chemical examination. The report of chemical analyst is Ex. P-12 in which the chemical examiner confirmed the presence of aluminium phosphite (sulphas pesticide) in the pieces of heart, lungs, stomach, intestine, spleen and kidney of the deceased.
10. Bhujji Lal (P.W. 7) is the Head Constable and a formal witness. He sent the dead-body of the deceased for post-mortem. Shanti Bahadur Singh (P.W. 8) is another Head Constable who wrote the FIR (Ex. P-1) lodged by Jagdish. He also prepared the Panchnama of the dead-body. Amrit Lal Singh (P.W. 9) is the Patwari of the village and he prepared the spot map. Ram Prasad (P.W. 10) is the witness to the spot map and Brijnandan Singh (P.W. 11) is another formal witness of the Panchnama of the dead-body and the witness of the spot map. P.K. Bhimte (P.W. 12) is the Sub-Inspector and the Investigating Officer.
11. We have X-rayed the evidence of each and every witness of the prosecution and after marshalling the evidence nothing has crept out so as to indicate that there was any motive for accused/appellant to administer poison to the deceased nor there is any such evidence that she was having poison in her possession and she had an occasion to administer the poison. There is nothing in the evidence so as to hold that the accused/appellant mixed the poison in the food article which was given for eating to the deceased.
12. The Supreme Court in the case of Ramgopal v. State of Maharashtra, AIR 1972 SC 656, held three tests for ascertaining the case of death by poisoning. They are:–
(i) did the deceased died of the poison in question;
(ii) had the accused the poison in question in his possession; and
(iii) had the accused an opportunity to administer the poison in question to the deceased ?
The Supreme Court further held that it is only when the motive is there and these facts are all proved then the Court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death. The same principle was followed by the Supreme Court in a later decision Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622.
13. In the case of Sharad Birdichand Sarda (supra) while relying the case of Ramgopal (supra) in Para 164 the Apex Court held as under :–
“164. So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction :
(1) there is a clear motive for an accused to administer poison to the deceased,
(2) that the deceased died of poison said to have been administered,
(3) that the accused had the poison in his possession,
(4) that he had an opportunity to administer the poison to the deceased.”
14. The similar view has been taken by a Division Bench of this Court in the case of Budhrani Bai v. State of M.P., 1991 JLJ 549. A similar view of Single Bench of this Court in the case of Santosh kumar v. State of M.P., 1980 JLJ 727 and a Division Bench of Orissa High Court in the case of Kandia Sahu and Anr. v. The State, 1972 Cr.LJ 219, has been taken. In the case of Kandia Sahu (supra) it was held that the prosecution satisfactorily established that the death was as a result of administration of poison but it was not proved with reasonable certainty that the poison which caused the death of the deceased must have been administered by the accused persons and, therefore, the conviction was set-aside. In the present case also it has not been proven that the accused/appellant had administered the poison.
15. If the principles enumerated in the aforesaid cases are applied to the present factual scenario it would reveal that there is no evidence of motive against the appellant to administer the poison to the deceased. The prosecution failed to produce any evidence so as to indicate that the accused/appellant was possessing the poison and she had an opportunity to administer the poison to the deceased. It has come in the evidence that the deceased was vomitting and had frequent evacuation but the same was not seized by the police and did not send it for chemical examination so as to ascertain the presence of poison in it. The prosecution further failed to adduce any evidence that it was in the knowledge of the accused/appellant that in the dish of rice and fish the impugned poison was mixed, similarly there is no evidence on record that she administered the poison in the dish of fish and rice. A very important evidence in the case has been crept out that Manoj (P. W. 4) has stated that he and the deceased, both of them, ate the dish of fish and rice which was kept in a single ‘Douna’. If the poison was mixed in the said dish then it would have affected Manoj.
16. The prosecution did not adduce any evidence, so as to indicate that before and after eating the rice and fish the deceased did not eat any other thing. In the absence of such evidence, it would be unjustified to presume that the dish of fish and rice which the appellant gave to the deceased to eat did contain the poison.
17. In view of the aforesaid analysis, we are unable to uphold the judgment of conviction passed by the Trial Court.
18. In the result, the appeal succeeds and is hereby allowed. The judgment of conviction passed by the Trial Court convicting the appellant under Section 302 of the IPC is hereby set-aside. The appellant is in jail. She be set at liberty, forthwith, if not required in any other case.