JUDGMENT
Mirdhe, J.
1. The Criminal appeal is preferred by the State against the judgment dated 13-9-1990 passed by the Sessions Judge, Chitradurga in S.C. No. 31/89 acquitting the respondents-accused of the offences punishable under Ss. 498A, 302 read with S. 34 of IPC.
2. We have heard the learned Additional S.P.P. Sri Jadhav, for appellant and Sri Srinivasan, learned counsel for the respondents fully and perused the records of the case.
3. The case of the prosecution is that deceased Jayamma alias Megibai was the wife of accused No. 1, Kiroji Naika, who is the son of accused No. 2 Hala Naika and accused No. 7, Hemli Bai. A3 Raju, A4 Limbya Naika and A5 Murthy Naika are the other sons of A2 Hala Naika. A6 Duggi Bai is the daughter of A2. PW-1 and PW-6 are brothers. PW-2 Hali Bai is their mother. The marriage of Jayamma alias Magibai was performed with A1 Kiroji Naika on 16-6-1982. At the time of marriage, A1 was an unemployed B. Com., graduate. For about 3 years after the marriage A1 Kiroji Naika and his wife Jayamma were leading a happy married life. Subsequently Kiroji Naika, A1 got appointment in Corporation Bank at Belgaum and he took his wife deceased Jayamma and lived with her there. He worked at Belgaum from April, 1984 to September, 1986. Subsequently, he got himself transferred to Davangere. When he was transferred to Davangere, he made his wife Jayamma stay in Alurhatti and he was daily travelling to Divangere to attend his work in the Bank. PW-1 Shekara Naika and PW-2 Kalibai sold two acres of land and performed the marriage of Jayamma with A1 Kiroji Naika by spending Rs. 2,000/-. At the time of marriage, they had promised to give jumuki to Jayamma. After A1 was transferred to Davangere he started illtreating his wife Jayamma pressurising her to bring the promised jumuki from her parents. Jayamma informed this fact to his brothers and mother and her brothers told her that they had no money and they will give the jumuki at a future date. But the illtreatment of deceased Jayamma at the hands of A1 continued. 3-4 panchayats were convened by PW-1 & 2. In that Panchayats, P.W. 3 Parameshi Naika, CW-7 Roopla Naika, CW-8 Poojari Sakra Naika and CW-10 Siddanaika participated as panchayatidars and they advised A1 not to treat Jayamma cruelly. In the second panchayat, P.W. 1 and his mother assured that they will give jumuki by adjusting the amount. But in spite of the advice of Panchayatdars A1 continued his illtreatment of his wife at intervals of every 15 days time. PW-1 and 2 sold one acre of land and paid Rs. 900/- to A1 Kiroji Naika towards Jumuki in the presence of Panchayatdars. Even after the payment of Rs. 900/- A1 continued illtreating his wife stating that he would have got Rs. 30,000 to 40,000/- if he had married any other girl and that he missed that opportunity by marrying her. He was also threatening her to take a second wife. On one occasion, A1 Kiroji Naika assaulted her and as a result Jayamma’s left hand was fractured. But no complaint was given so as to not to create problems for Kiroji Naika in his service. On another occasion, PW-1 & 2 and Jayamma went to Davangere to lodge a complaint with the police. When Jayamma was sitting in the court compound PW-8 Nagendra Naika met her. At the request of Jayamma, he wrote the complaint and gave the same to Jayamma instructing her to obtain xerox copy before giving the original complaint to the police. But on that day, they returned to Alur Hatti without giving the complaint to the police. On the next day PW-1 and Jayamma went to Davangere to give the complaint. A1 Kiroji Naika met them, took the complaint from the hands of his wife and torn of the same. The illtreatment of Jayamma at the hands of A1 continued. On the night of 11-1-1989 when PW-1 and his mother were in their house CW-19 Chandra Naika came to their house and informed them that Jayamma was dead. PW-1 and 2 went near the house of the deceased and found the dead body of Jayamma kept on the pial in front of their house. PW-1 also noticed that the deceased had vomitted and it was emitting bad smell. PW-1 and 2 returned to their house, during the same night and P.W. 1 got written the complaint by a boy, who was passing in front of his house and he went to Davangere on a cycle during the same night and on 12-1-1989 at about 8-00 a.m. he gave a complaint to PW-17, the Sub-Inspector of Davangere Rural Police Station, who registered a case in Cr. No. 25/89 for the offences punishable under S. 302 read with S. 34, IPC, police started investigation and after completion of the investigation, they filed charge-sheet against all the accused.
4. The further case of the prosecution is that it is accused No. 1, who administered poison. It is the further case of the prosecution as can be seen from the complaint Ex.P1 that all the accused administered poison to the deceased in her home. The trial Court framed the charge for the offence punishable under S. 302, IPC., only against accused No. 1 and the charge against Accused No. 2 to 7 was for the offence punishable under S. 498A, IPC, on the ground that they were causing harassment and treating Jayamma cruelly on account of their demand for dowry.
5. There is no direct evidence to connect any of the accused with offences alleged against them. The prosecution has fully relied upon circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra, the Supreme Court has laid down the guidelines as to how the circumstantial evidence has to be appreciated in a case. It has poited out the conditions that must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established. They are :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.
The case in which the Supreme Court has laid down this law was also a case of poisoning the deceased. The Hon’ble Supreme Court has further laid down as to what must be the nature of the evidence for the purpose of convicting a person against whom the prosecution alleges that he has committed murder of a person by poisoning. The Supreme Court has laid down as follows :
“In the cases of murder by administration of poison 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.”
6. At this juncture, it will be relevant to refer to another ruling of the Supreme Court in Anant Chintaman Lagu v. The State of Bombay, . It was also a case in which the prosecution had alleged that the accused had committed murder of the deceased by administering poison to her. The Supreme Court has held as follows :
“The prosecution must establish in a case of poisoning : (a) that death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. Though these three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the court can unhesitatingly hold that death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it”.
The Supreme Court has also held in that case that even if the medical evidence is negative and still there are circumstances which prove the guilt of the accused beyond reasonable doubt, the Court will be justified in convicting the accused on the basis of the prosecution evidence even if the medical evidence is negative. The observations of the Supreme Court in the said decision in para 68 as to how the circumstantial evidence is to be weighed vis-a-vis the negative medical evidence in the case are as follows :
“(68) Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the post-mortem and of the chemical analysis as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn”.
7. Therefore, even if the medical evidence is negative in the sense that it does not prove that the deceased had died of any poison, still if the circumstances warrant and unerringly point to the guilt and only to the guilt of the accused, then the Court will be justified in convicting the accused on the basis of circumstantial evidence irrespective of the fact that the medical evidence in the case is negative.
8. But the circumstances to be established are that first there is motive on the part of the accused to administer the poison to the deceased, that the deceased died of poison said to have been administered (if the circumstantial evidence is conclusive enough, negative finding of medical experts cannot be a ground for the Court to reject the circumstantial evidence), thirdly, accused had the poison in his possession, fourthly that he has an opportunity to administer the poison to the deceased. PW-4 Dr. Basavarajappa, conducted post-mortem examination of dead body of Jayamma on 12-1-1989 from 1 p.m. to 3 p.m. He found some brand marks on the eye lies and on the back of the neck. The doctor, PW-4 had deposed that there were no internal injuries. He has stated that he preserved viscera namely (1) stomach and its contents and part of small intestine with its contents, (2) part of liver and halves of each kidney, half of spleen and part of each lungs, (3) preservative used and saturated common salt solution and (4) 100 C.C. of blood and sent them to the Chemical Examiner through the police. He has referred to the report of the Chemical Examinner, Ex.P8 which is to the effect that barbiturate and alcohol were detected in articles 1, 2 & 4. After the receipt of Ex.P8 PW-4 has furnished his opinion that death of Jayamma is due to asphyxia due to respiratory depression as a result of barbiturate and alcohol poisoning. He has stated in his cross-examination that consumption of barbiturate can cause death and excessive consumption of arrack or methyl alcohol can cause death. The suggestion made by the defence to some of the prosecution witnesses is that PW-1, PW-2 and the deceased were in the habit of selling arrack and the deceased was also accustomed to consumption of arrack. It is also suggested to these witnesses that accused No. 1 objected to PW-1 and 2 for allowing his wife to consume liquor and also on that count, he was not sending his wife to the house of PW-1 and 2. The cause of death of Jayamma as found by Doctor PW-4 in the light of Examiner’s report is that it was a death due to asphyxia due to respiratory depression as a result of alcohol poisoning. The prosecution in order to prove its case against A1 that he had administered barbiturate or alcohol to his wife must prove that the accused No. 1 had some motive to commit murder of his wife, that he had poison in his possession and thirdly that he had an opportunity to administer the poison to the deceased.
9. On the point of motive the case of the prosecution as projected in the evidence of PW-1 and 2 and other witnesses is that the accused No. 1 was treating his wife cruelly on the ground that the parents of the deceased had not given jumuki to her which were promised at the time of the marriage. It is the further case of the prosecution that there were some Panchayats held on account of the illtreatment meted out to the deceased by Accused No. 1 on his demand of jumuki and during one of these Panchayats, PW-1 and 2 paid Rs. 900/- by selling one acre of land to one Shanthabai for Rs. 2000/-. The perusal of the complaint Ex.P1 given by PW-1 discloses the case of the prosecution that A-1 illtreated his wife on account of jumuki is not to be found. The case that is set up in Ex.P1 is that all the accused were illtreating the deceased on account of the dowry that was not given by her parents to her. But this case that is set up in Ex.P1 is given a go-by in the evidence of PW-1 and 2. PW-1 and 2 have spoken about the illtreatment of the deceased on account of jumuki by the accused No. 1. This case of illtreatment of the deceased by Accused No. 1 on account of some ornament is to be found for the first time in the statement of PW-1 and 2. At the time of inquest the ornaments mntioned are ‘bendole’. That bendole is further made specific as Jumuki. But one thing is clear that the motive that is alleged by the prosecution through these witnesses in their evidence is not to be found in the complaint itself. Even on this point that A1 was treating his wife cruelly on account of her not bringing jumukies, it is a material improvement on the part of the PW-1 and 2. PW-1 has admitted that he has not stated about this motive before the police. The evidence of PW-13, B. S. Hagargi, CPI makes it clear that PW-1 has not stated in his statement before the police that A1 was illtreating his wife on account of the jumuki. He has not stated about the deceased being sent to the house on account of that demand. He has not stated about the convening of punchayats. He has not stated anything about he and PW-2 selling their land for Rs. 2000/- to Shanthabai. He has not stated about their paying Rs. 900 to accused No. 1 in one of the Panchayats. All these are improvements made by the PW-1 and 2 it is needless to say that all these improvements are material improvements. Therefore, the case of the prosecution regarding illtreatment of the deceased by Accused No. 1 on account of jumuki is not to be found in the complaint but it is a case that is made out by these witnesses by making material improvements in their statements. It is not disputed in this case that Accused No. 1 was unemployed at the time of his marriage. Though it is spoken to by PW-1 & 2 that huge amount has been spent for the marriage of accused No. 1 with Jayamma after selling some land belonging to them, there is no evidence forthcoming. On the contrary, there is an admission by PW-1 and 2 that there is no such sale deed executed. The person to whom the land is alleged to have been sold has also not been examined. In view of these admissions on the part of the PW-1 and 2 and non-examination of the person to whom the land is alleged to have been sold, it is difficult to accept the say of PWs-1 & 2 that they spent huge amount for celebrating the marriage of deceased with accused No. 1. It is also admitted that at the time of marriage of Accused No. 1 with Jayamma, the marriage of brother of accused No. 1 was also performed. It is admitted by PW-1 that for 3 years after his marriage with Jayamma, accused No. 1 had no employment and they were living happily. Therefore, if there were to be any demand for any dowry or any demand for jumuki, accused No. 1 could not have led a very happy married life with Jayamma that too when he was unemployed. When a person is unemployed and if he has an eye on dowry, it would be expected of him to harass his wife when he had no source of income. But prosecution itself admitted that during this period when the accused had no employment, he led a happy married life without raising any demand for Jumuki. It is also an admitted fact that accused No. 1 got employment in Corporation Bank and his first posting was at Belgaum. PWs-1 and 2 admitted that he has taken Jaya to Belgaum with him. It is not their case that he treated Jaya cruelly at Belgaum. In fact a child was born to them in their wed-lock at Belgaum. This accused No. 1 had three children from Jayamma. This fact also goes to show that they led a normal married life in which they also got three children. If accused No. 1 had the motive to commit murder of Jayamma on account of some dowry or jumuki, his conduct would have been something different during earlier years of marriage and also at the time of his stay at Belgaum. Suggestions are made by the defence that Jayamma was loving accused No. 1 even before her marriage with him and that she was insisting to marry him only in spite of PW-1’s attempt to marry her to some other person. There is also a suggestion to the PW-1 that Jayamma went and stayed in the house of Accused No. 1 even before the marriage. Ex.D1 is a photograph of the deceased with Accused No. 1 taken before their marriage on 8-2-1981. There is a sealed date put on the photograph. This is the date which is prior to the marriage of these couple which goes to probablise the suggestion of the defence that Accused No. 1 and Jayamma were in love with each other even prior to their marriage and as a token of their love they got themselves photographed together on 8-2-1982 even prior to their marriage. PW-2 has admitted in her evidence that even accused No. 1 and her daughter were living happily at Belgaum. She has also admitted that her daughter came and told her that she was happy with her husband. The entire evidence of prosecution does not disclose that right from the date of marriage till the couple returned to Alurhatti on the transfer of Accused No. 1 to Davangere, there was any illtreatment of the deceased by A-1. On the other hand, the admissions of PW-2 is to the effect that her daughter was leading very happy married life with her husband and she had also told so to her. Therefore, the prosecution has not proved that either accused No. 1 or any of the other accused treated the deceased soon after the marriage or till the period of return of accused No. 1 with Jayamma to Alurahatti.
10. The very specific case of the prosecution is that the illtreatment started when accused No. 1 was transferred to Davangere. It is their case that after his coming to Davangere, he started ill-treating his wife assaulting her to bring jumuki. As pointed out by us above, the case of jumuki is not at all to be found in the complaint Ex.P1. The evidence of PW-1 is to the effect that A-1 used to assault the deceased and on one such occasion, by his assault the deceased had sustained fracture. Though he has stated so in his evidence, it is contradicted to Ex.D2 wherein he had stated that fracture was sustained by Jayamma by a fall and deceased Jayamma had so stated before the doctor who treated her for fracture. Even this evidence of PW-1 that accused No. 1 assaulted his wife causing her fracture appears to be an improvement and a contradiction in view Ex.D2, which is proved in the evidence of PW-13. PW-1 has further stated that on one occasion Jayamma had gone to give complaint and she got the complaint written by PW-8 and instead of giving on the very day they returned and on the next day they went again to Davangere to lodge a complaint and at the time Accused No. 1 came there and snatched that complaint and tore it. It is also their case that a Xerox copy was obtained on the previous day. Ex.P6 is produced as the Xerox copy of the complaint. This version of PW-1’s evidence is also a material improvement as it is proved that he has not stated so before the police. PW-1 has admitted that he has not seen whether the accused No. 1 came and tore the complaint. In view of these contradictions in the evidence of PW-1 & 2, it is difficult to accept the case of the prosecution that accused No. 1 had no love for his wife.
11. It is further the case of the prosecution that there were Panchayats convened on account of the ill-treatment by the accused No. 1. PW-3 is examined as one of the witnesses. He is a close relative of PW-1 and 2. He is a sister’s son PW-2. It is given in the evidence that there are other elders in their community and CW-10. Siddanaika is the elder of that community. Instead of examining any of the independent witnesses or Sidda Naika, the elder of that community, who is alleged to have participated in that Panchayats, the prosecution has chosen to examine PW-3, who is an interested person. Therefore, the trial Court was justified in rejecting the evidence of the prosecution on the point of Panchayats held. If this evidence is found in unacceptable, there is no worthy evidence to act upon either against accused No. 1 or any of the other accused that they illtreated Jayamma on account of any dowry demand or on account of any jumuki. The medical evidence in this case proves that the deceased died as a result of asphyxia due to respiratory depression as a result of Barbiturate and alcohol poison. The prosecution has failed to prove that accused No. 1 was in possession of said Barbiturate or alcohol and that he had any opportunity to administer the said things to his wife.
12. In Ex.P1 the complaint, the case set up by the prosecution is that all the accused administered poison to the deceased. But that case subsequently is not pursued by the prosecution through its witnesses. The said case is given up. The case that is projected through the witnesses is that the accused No. 1 had administered this poison to the deceased and caused her death. The Investigating Agency has not devoted its attention to find out as to whether the accused No. 1 had in his custody the barbiturate or alcohol and he had an opportunity to administer this poison to his wife. On the other hand, the suggestion made to PW-1 and 2 by the defence is that men and women of the community to which the deceased was belonging are in the habit of consuming arrack and liquor and that deceased was also accustomed to consume arrack and that accused No. 1 had objected PW-1 and 2 encouraging the deceased to consume arrack. The prosecution has not been able to prove at all that the accused No. 1 had any of these poisons in his possession and he had the opportunity to administer those poisons. There are two possibilities that arise in this case. One is that either the accused must have administered them or that the deceased herself might have taken Barbiturate which is a sedative drug and alcohol, which if taken in excess can alone cause death of a person. In as quoted above, the Supreme Court has pointed out the settled principle of law in these words :
“It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the Prosecution and the other which benefits and accused, the accused is undoubtedly entitled to the benefit of doubt.”
In the light of the above, the accused will be entitled to the benefit of doubt in this case. Viewing the case of the prosecution in any angle, it will have to be held that the prosecution has failed to prove the guilt of the accused in this case. We hold that the trial Court was justified in acquitting of all the accused and there are no ground for us to interfere with the judgment challenged by the prosecution in this case. Hence, we proceed to pass the following :
ORDER
13. Appeal is dismissed.
14. Appeal dismissed.