Mishya v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** **CRL.A.No.1357 of 2015** **AGAINST THE JUDGMENT DTD.28.11.2015 IN SC 787/2013 of ADDITIONAL SESSIONS COURT-I, MAVELIKARA** **CP 154/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM** **CRIME NO.515/2010 OF Kayamkulam Police Station** ## **APPELLANT:ACCUSED :** **MISHYA, AGED 43 YEARS, W/O.RAJAN, RAJA NIVAS VEEDU, KRISHNAPURAM, PANCHAYATH WARD NO.9, NJAKKANAL MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.V.C.SARATH SRI.VIPIN NARAYAN** ## **RESPONDENT:COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSECUTOR - SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON 27-08-2019 DELIVERED THE FOLLOWING:** Crl.A.No.1357 of 2015 :-2-: ## **J U D G M E N T** ## **N.ANILKUMAR, J:** The appellant was the sole accused in S.C.No.787/2013 on the file of the Additional Sessions Judge-I, Mavelikkara for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (for short 'the IPC'). By judgment dated 28.11.2015, the learned Additional Sessions Judge convicted and sentenced the accused to undergo rigorous imprisonment for life and to pay a fine of Rs.2,00,000/- and in default, to undergo rigorous imprisonment for two years for the offence under Section 302 of IPC. It was ordered that the amount of fine paid or realised would be given to CW5 Swapna, wife of Sanal as compensation under Section 357 Cr.P.C. The appellant/accused was acquitted of the offence under Section 201 IPC. 2. The prosecution case in brief is as follows:- The accused had illicit relationship with Sanal Kumar aged 32 years. While so, Sanal Kumar married Swapna and started residing in Goa to the detriment of the accused. Feeling agitated, the accused made an attempt to break the marriage with Swapna. But it was not successful. Subsequently, the Crl.A.No.1357 of 2015 :-3-: accused came to know that Sanal Kumar was booked for the offence under the Immoral Traffic Act during the month of February, 2010. Sanal Kumar borrowed an amount of Rs.1,35,000/- from the accused when they were on good terms for which Sanal Kumar issued a cheque in favour of the accused. When the cheque was presented for collection, it was dishonoured for the reason 'insufficient fund.' The accused demanded the amount from Sanal Kumar. He agreed to pay the amount. However, he could not fulfill his promise as agreed. Confronted with the above circumstance, the accused was on inimical terms with Sanal Kumar. By this time, on 01.05.2010, Sanal Kumar came to his native place. She repeatedly called Sanal Kumar on 01.05.2010, 02.05.2010 and 03.05.2010 respectively. Sanal Kumar was badly in need of money. Although he was not in a position to repay the money to the accused as agreed, he further demanded more money from the accused. She offered an amount of Rs.25,000/- as loan. To receive the amount, he reached the residence of the accused under the name and style 'Raj Nivas' in Krishnapuram Village by motorcycle bearing registration No.KL-2 -L/1079 by about 2.30 pm. on 03.05.2010. When Sanal Kumar asked for food, the accused mixed cyanide, a poisonous substance, in the soft drink Crl.A.No.1357 of 2015 :-4-: by name 'Mirinda' and gave it to Sanal Kumar. Sanal Kumar, without knowing that the soft drink is mixed with poison, drunk the same, collapsed and died instantaneously inside the kitchen room of the house at about 3 pm. The remaining portion of the soft drink, mixed with poison and the paper with which the cyanide was wrapped on, were burned by the accused. Thereafter, she made an attempt to remove the body from her residence and tried to destroy the evidence. Thus, the accused committed the offences punishable under Sections 302 and 201 of IPC. 3. PW1 is the Councilor representing the ward in which the house of the accused is situated. Her case is that she got reliable information on 04.05.2010 that a deadbody was found inside the residence of the accused. She went there around 6.30 a.m. and found the deadbody of a person in the kitchen room of the accused. Suspecting that the person died under mysterious circumstances, she went to Kayamkulam Police Station and gave Ext.P1 First Information Statement before PW21. Pursuant to Ext.P1 FIS, PW21 registered Ext.P26 First Information Report and forwarded the same to the court. On the request of PW21, PW13- the Scientific Assistant attached to D.C.R.B., Alappuzha, reached the house of the accused by about Crl.A.No.1357 of 2015 :-5-: 8 am on 04.05.2010. PW13 located the deadbody of the victim in the kitchen room. He collected remnants of food materials from the kitchen. He found liquid beside the head and it was collected in a cotton swab. He also found an empty soft drink bottle. As such, he took the four items of food remnants which he marked as item No.1(a) to 1(d) (MOs.10 to 12). Swab was marked as item No.2 (MO.13) and MO8 soft drink bottle was marked as item No.3. The fourth food item collected from the scene of occurrence was a white crystalline substance in MO.9 plastic bottle. PW13 submitted Ext.P15 report to PW21 stating the above details. On the same day, after completing necessary formalities by the Scientific experts, he prepared Ext.P2 inquest report in the presence of Panchayat Authorities and witnesses. Apart from the above properties, PW21 had collected MO4 dhothi and MO5 inner wear worn by the deceased at the time of inquest. On the southern side of the Kitchen room where the deadbody was found, PW21 noticed the bed room of the house. He found MO.1 full sleeve shirt with white and green lines inside the bed room. On the cot PW21 found MO.3 mobile phone and MO.2 wrist watch respectively. MO.3 mobile phone contained MO.3(a) sim card. All these articles were enlisted by PW21 in Exts.P27 and P28 property lists submitted before the Crl.A.No.1357 of 2015 :-6-: learned Sub Divisional Magistrate, Chengannur. Ext.P33 forwarding note was prepared and submitted before court for forwarding the items for forensic examination. 4. On 07.05.2010 the investigation was taken over by PW22, the then Circle Inspector of Police, Kayamkulam. PW22 arrested the accused on 07.05.2010 by Ext.P30 arrest memo. He forwarded report to the court incorporating Section 302 of IPC. On 11.5.2010, investigation was taken over by PW23, the Circle Inspector of Police, Kayamkulam. He filed an application before the learned Judicial First Class Magistrate, Kayamkulam seeking to get police custody of the accused. The learned Magistrate granted police custody as sought for. On being questioned, the accused confessed that she had kept the stamp paper and cheque leaves at her residence and if she was taken to the place she would show the same. Pursuant to the information furnished, PW23 proceeded to the place as led by the accused and recovered Ext.P6 stamp paper worth Rs.50/-, Ext.P5 cheque leaf of Rs.85,000/- of the Syndicate Bank, Kollam and Ext.P23 cheque return slip in the presence of the witnesses by Ext.P12 mahazar. He also produced the thondi items collected from the scene of occurrence by PW21 before court as per Ext.P23. The accused further confessed that the mobile Crl.A.No.1357 of 2015 ## :-7-: phone was kept in her house. Pursuant to the confession made, PW23 proceeded to the house of the accused as led by her and recovered MO3 mobile phone and MO.3(a) sim card therein from the almirah kept at the bed room of the accused by Ext.P35 mahazar. On 19.5.2010, the accused further confessed that the newspaper under the name 'Flash' containing the news item was kept inside her house and she would show the same if she was taken there. Pursuant to the information, PW23 proceeded to the residence of the accused as led by the accused and recovered Ext.P36 'Flash' newspaper containing Ext.P13(a) relevant portion of confession by Ext.P13 mahazar. PW23 conducted investigation regarding the veracity of the news item touching the immoral behaviour of the deceased Sanal Kumar. On investigation, it was disclosed that the deceased was involved in an offence under the Immoral Traffic Act in Goa. Ext.P37 is the final report filed by the Police against Sanal Kumar before the court having jurisdiction in Goa. PW23 filed an application before the court for recording the statement of PW4 Sumesh under Section 164 of the Cr.P.C. The statement of PW4 was recorded by the learned Magistrate. Thereafter, the vehicle was produced by PW4 Sumesh. The vehicle was in the custody of PW6 Abdul Salam. PW23 Crl.A.No.1357 of 2015 :-8-: prepared Ext.P14 mahazar of the vehicle and released the vehicle to PW6 Abdul Salam by Ext.P38. He also recorded the statement of witnesses and the rest of the investigation was conducted by PW24. PW24 took over the investigation on 15.9.2011. On receipt of postmortem report and chemical analysis report, PW24 completed the investigation and filed the charge sheet against the accused before the Judicial First Class Magistrate Court, Kayamkulam where the case was taken on file as C.P.No.154/2012. The learned Magistrate committed the case to the Sessions Court, Alappuzha as per order dated 27.8.2013 after complying with the usual formalities. On receipt of the records, the learned Sessions Judge took cognizance of the offences under Sections 302 and 201 of IPC and registered the case as SC 787/2013 from where the case was made over to the Additional Sessions Court-I, Mavelikkara for trial and disposal. 5. The accused entered appearance before the learned Additional Sessions Court through a counsel of her choice. She was released on bail on 10.7.2010. After having heard both sides, the charge was framed against the accused under Sections 201 and 302 of IPC. The charge was read over to which the accused pleaded not guilty. Crl.A.No.1357 of 2015 :-9-: 6. The prosecution altogether examined PWs.1 to 24 and got marked Exts.P1 to P41 and 13 material objects as MOs.1 to 13. 7. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against her in the evidence for the prosecution. She denied the circumstances appearing against her in the evidence and maintained innocence. According to the accused, her husband is employed in GREF(General Reserve Engineer Force). Her son is a student. She hails from Neendakara in Kollam District. While she was residing at Neendakara, she was residing near to the house of PW3 Shiju Kumar and deceased Sanal Kumar. Shiju Kumar is the brother of deceased Sanal Kumar. Sanal Kumar is also known as 'Bhasi' and is running a local cable network under the name and style 'Chinthu Cable Vision'. Initially, Sanal married Sula. Later, Sanal married Swapna. They have a child aged one and a half years. Sanal borrowed money from her husband. By 2009, the entire amount was paid back. The cheque produced as Ext.P6 belongs to Sanal. PW4 Sumesh used to come to her house as a friend of her brother. She admitted that she had called Sumesh on the date of Crl.A.No.1357 of 2015 :-10-: occurrence. Sanal borrowed money from her husband and since her husband was working out of State, the cheque was given to her. 8. In addition to her statement under Section 313(1) (b) of Cr.P.C., she filed an additional statement in black and white explaining the circumstances appearing in the evidence against her. According to her, Sanal is a friend of Shello. Since her husband is working at far away place, she used to seek help from Sanal, Sumesh and Shello. Her husband has high regard for them and treated them as his own brothers. Sanal fell in love with a girl. When the relatives protested and parents refused to accept them, she and her husband took initiative and conducted the marriage and thereafter, Sanal and his wife stayed in her house. Later, the girl was taken to her house and the relationship had been broken down irretrievably. Sanal had conducted cable TV business with the assistance of his relatives and he had huge investment in the business. In connection with the business, her husband used to lend money and Sanal regularly repaid the money. While so, one year back, Sanal borrowed an amount of Rs.85,000/- from her husband. Since her husband was not in station, a cheque was given in her name. On presentation, the cheque was dishonoured. When her Crl.A.No.1357 of 2015 ## :-11-: husband came on leave, the money was repaid in the month of December, 2009. After marrying Swapna, Sanal wanted to settle in Goa. He wanted to start his own business in Goa for which he asked his relatives to return the capital and profit in the business conducted by him. There were some disputes regarding the same. In the month of May,2010, he came from Goa for settling the account of business. He did not get the money lent by him to many persons as expected. He could not materialise the plan and he became totally frustrated. Sanal told her that it would be difficult for him to live in Goa without money. He shared his frustration with her. On 3.5.2010, she went along with her younger son to meet a doctor. While having food in the canteen of the hospital, Sanal called her and shared his frustration that he did not get the required money. He told her that his self respect is bigger than anything in the world and he did not want to live without self respect. He wanted to come to her house. She asked him to take the key of the house kept behind the flower pots in front of the house. She entrusted her son with the tuition teacher and reached the house immediately. The house was seen opened. Inside the house, she saw Sanal lying on the floor, wearing a dhothi. She could notice that foam and froth was seen coming from his Crl.A.No.1357 of 2015 :-12-: mouth. Having put in a dangerous situation, she frantically contacted PW4 Sumesh for help. Though Sumesh promised to reach immediately, he did not turn up. However, in the night, PW4 came and saw the deadbody of Sanal. PW4 Sumesh left the place promising that he will inform the Police. Considering the urgency, she again contacted PW4. PW4 informed her that the Police would reach the place immediately. In the midnight, two Police Constables from Oachira Police Station came and saw the deadbody of Sanal. They informed that the place of occurrence is within the jurisdiction of Kayamkulam Police Station. Pursuant to the information furnished by the Police Constables from Kayamkulam Police Station, the Police from Kayamkulam Police Station reached the house. In the morning, by about 6 a.m., the Police Officers from Kayamkulam collected information from her. They took her to the Police station stating that they have some procedures to be completed. The next day, her husband and elder son arrived. After four days, she was made as an accused. 9. The learned Additional Sessions Judge-I, who conducted the trial, did not deem it fit and proper for recording an acquittal under Section 232 Cr.P.C. The accused was, therefore, called upon to enter on her defence and adduce Crl.A.No.1357 of 2015 ## :-13-: evidence, which she might have in support thereof. Exts.D1 to D2(a) contradictions in the statement of witnesses were marked. No oral evidence was adduced by the accused. 10. After conclusion of the trial, the learned Additional Sessions Judge, as per judgment dated 28.11.2015 found the accused guilty for the offence punishable under Section 302 IPC and sentenced her as stated in first paragraph of this judgment. 11. We heard Sri.P.Vijayabhanu, the learned Senior Counsel appearing for the appellant and the learned Senior Public Prosecutor, who appears for the State. 12. Following points arise for consideration in this appeal. 1. Whether the prosecution has succeeded in proving that Sanal Kumar died of cyanide poisoning on 3.5.2010 at 3 p.m. at the residence of the accused? If so, was it homicidal or suicidal? 2. Whether the prosecution has succeeded in proving that the accused had intentionally and knowingly caused the death of Sanal Kumar by cyanide poisoning? 3. Are the conviction entered and sentence imposed Crl.A.No.1357 of 2015 :-14-: ## against the appellant sustainable? 13. The case of the prosecution is that deadly poisonous cyanide was administered by mixing with soft drink under the name and style 'Mirinda' and this resulted in sudden death of Sanal at the residence of the accused. PW8 is the Doctor, who conducted autopsy on the body of the deceased and issued Ext.P10 Postmortem Certificate. Ext.P10 postmortem report would show the following:- ## “ **A.General** Body of an adult male of Length 176 cm, 77 kgs. heavy and of good build and nutrition. Eyes were half closed, corneae hazy, conjunctivae pale finger nails blue. Lips were normal. Oral cavity showed corrosions. Postmortem ant bite marks and bleeding from these wounds were seen over face, neck,chest, upper and lower limbs. Live ants of size 0.1cm long seen all over the body. Rigormortis was retained in lower limbs passed off from upper limbs. Postmortem staining was at the back fixed. No antemortem injuries were seen on the body. ## **B.Other Findings** . Skull normal and intact. Brain 1650gm congested. Mouth and pharynx showed corrosion. Neck and its structures were normal and intact. (neck was dissected under bloodless field) Ribs and chest wall were normal. Pleural cavities normal. Cesophagus showed corrosions. Trachea and bronchi were blood stained. Lungs Right 400 gm and left 370 gms were congested and cedematous. Pericardial sac normal and intact. Heart 360gm normal. Blood vessels normal. Abdominal wall normal and intact. Liver 1800 gms. congested Spleen 80gm, Kidneys Right 110gm and left 100 gms were congested. Pancreas and Adrenal glands were normal. Stomach and contents were weighed Crl.A.No.1357 of 2015 :-15-: 400 gm contained brownish yellow fluid with occasional food particles and with some unusual smell. Mucosa was congested. Urinary bladder empty. Genital Organs normal. Spinal column and cord normal and intact. All other organs were congested, otherwise normal.” PW8 did not give definite opinion regarding the cause of death and reserved the same pending result of the chemical examination. The Chemical Examiner in his report dated 25.5.2010 has stated that hydrocyanic acid was detected in the viscera and blood of the deceased in the substance sent to him for analysis. The investigating officer sent that report for the opinion of PW8 as to the cause of death of Sanal. On the basis of Ext.P40, PW8 gave Ext.P11 final opinion as to the cause of death. The Doctor gave his opinion that the death of Sanal was due to hydrocyanic acid poisoning. On cross-examination, PW8 stated that cyanide salts in alkaline or acid forms are highly poisonous. According to him, if potassium cyanide is mixed with carbonated water, resultant compounds include potassium carbonate and hydrogen cyanide. He also deposed that it was not necessary that the cyanide poison is to be mixed with water to make it poisonous. This is because water is present in the body. On the basis of Ext.P40 Chemical Examination Report and Ext.P11 postmortem report, it can safely be concluded that Crl.A.No.1357 of 2015 ## :-16-: Sanal died due to hydrocyanic acid poison. 14. The trial court, after considering the evidence adduced and materials on record, found that Sanal died of cyanide poisoning and that cyanide was administered to the deceased by the accused by mixing it with the liquid which was drunk by Sanal in the afternoon of 3.5.2010. By the administration of cyanide according to the trial court, the accused intended to cause the death of the deceased. Hence, the accused is guilty of murder under Section 302 of IPC. Accordingly, the accused was sentenced to imprisonment for life. 15. Challenging the legality and propriety of the conviction and sentence, the accused is before this Court. Learned Senior Counsel for the appellant/accused Sri.P.Vijayabhanu contends that the death of Sanal was not homicidal. According to the learned counsel, Sanal was badly in need of money to eke out a livelihood in Goa along with his wife Swapna for which he found it impossible to raise funds from his relatives. His relatives refused to part with the share in the partnership business conducted by him along with others at his hometown. The learned counsel submits that Sanal told the accused on several times that self respect is more than Crl.A.No.1357 of 2015 **==> picture [27 x 9] intentionally omitted <==** anything and he would like to live with self respect. The learned counsel submits that as Sanal was a debtor to many and he might have in all probability committed suicide. It was also submitted that the prosecution has failed to establish by evidence to prove the conditions and stipulations for murder by cyanide poisoning. 16. Per contra, the learned Public Prosecutor Sri.S.U.Nazar submits that the prosecution has succeeded in proving that the death took place by poisoning; that the accused had the poison in her possession; and that the accused had an opportunity to administer the poison to the deceased at her residence. According to the learned Public Prosecutor, the direct and circumstantial evidence involved in the case are sufficient to hold that death of the victim was a result of administration of poison and that the poison might have been administered by the accused. The learned Public Prosecutor further submits that a case of murder by administration of poison is almost always one of secrecy and the accused seldom takes another into her confidence and her preparations for the commission of the offences are also secret in nature. Hence, it is argued that circumstantial evidence in this context is a mere combination of facts creating a network through which there is Crl.A.No.1357 of 2015 ## :-18-: no escape for the accused. According to the learned Public Prosecutor, subsequent to the death of the victim at the residence of the accused, the accused made every attempt to remove the deadbody from the place of occurrence with the assistance of PW4 Sumesh. More so, it is contended that the post-crime conduct of the accused is sufficient to establish the guilt of the accused. 17. The evidence in this case lies in a narrow campus. Accused was residing at 'Raj Nivas' with her two children. At the time of accident, her elder son, PW20 was studying in an Engineering College, outside Kerala. Her husband was employed in GREF in Kargil. The accused belongs to Neendakara in Kollam District. Sanal, PW4- Sumesh and Shello, the brother of the accused are friends. PW3, who is the brother of the deceased, deposed that there was illicit relationship between the accused and Sanal for the last 14 years. Initially, Sanal married Sula and after marriage, they resided at the residence of the accused for about two months. Somehow or other, their relationship strained. According to PW3, when Sula started residing at the residence of the accused, Sula came to know the illicit relationship between Sanal and the accused. PW3 stated that Sula left the house of Crl.A.No.1357 of 2015 :-19-: the accused on account of illicit relationship between the accused and Sanal. PW3 testified that before Sanal married Swapna, a Nurse from Goa for the second time, the accused had cut her vein in an attempt to commit suicide. It is stated that accused attempted to commit suicide due to her frustration in Sanal marrying Swapna. 18. PW4 Sumesh, who is a close friend of the accused and Sanal, stated that Sanal and the accused lived as man and wife for a period of ten years. PW5 stated that he has knowledge that Sanal had illicit relationship with the accused. PW5 further deposed that the accused quarrelled with Sanal when she came to know about the marriage with Swapna. 19. Ext.P3 is the copy of the newspaper under the name and style 'Flash'. On 9.2.2010, the newspaper reported that Sanal was involved in an immoral traffic offence pursuant to an incident on 8.2.2010. Ext.P36 newspaper, in which the news item was published, had been kept by the accused in her almirah at her residence. PW23 recovered Ext.P36 on the basis of Ext.P13(a) confession statement given by the accused. As a part of investigation, Ext.P37 First Information Report was obtained by the investigating officer and produced before the court to prove that Sanal was actually involved in an immoral Crl.A.No.1357 of 2015 :-20-: traffic offence in Goa. 20. PW4 stated that on 3.5.2010 by about 3 p.m., the accused called him over telephone and asked him whether he is busy. After about 10 to 20 minutes, the accused again called him and told that there is a ragging problem at the college of her son and as such, she should reach Erode urgently where her son was studying for Engineering. She requested PW4 to come with a `rent-a-car'. Accordingly, PW4 contacted his friend Anish and directed Anish to get him in touch with PW6 Abdul Salam, who was running a `rent-a-car' business. PW6 Abdul Salam stated before court that he had three vehicles and one of the vehicles was Opel Astra car bearing Regn.No.KL-24/6444. The vehicle originally belonged to Leelamani Amma, who later sold the vehicle to one Najeeb. According to PW6, he purchased the vehicle from Najeeb. However, the registration was not transferred in accordance with rules. PW6 further testified that the vehicle was taken on rent by PW4 on 3.5.2010 by about 7 p.m. When PW4 reached the house of the accused, the accused showed a bike in the courtyard of her house. She further told that the motor cycle belonged to Sanal, who came there by about noon and he was found dead in her kitchen room. PW4 stated that the accused was perplexed and told him Crl.A.No.1357 of 2015 :-21-: that if he did not help her, she had no other way other than committing suicide using cooking gas. Considering the difficult circumstance of the accused, PW4 decided to help the accused. Then the accused took her son, aged 6 years and got into the car. When the vehicle reached Puthiyakavu near Karunagappally, PW4 stopped the vehicle and asked the accused to go back to her house. PW4 warned the accused that if people got information regarding the deadbody, it would be very difficult. As requested by the accused, he took her back to Krishnapuram and from there she took an autorickshaw to her house. PW4 immediately went back to PW6 and returned the car stating that the trip was cancelled. Though he demanded Rs.300/- for 50 kms for the user of the vehicle, the amount was not paid as demanded. 21. PW20 is the son of the accused. He turned hostile to the prosecution. According to him, he came to know about the death of Sanal from his father and he did not know anything about the incident. The case of the prosecution is that cyanide was mixed with mirinda soft drink and by deceit, it was administered to Sanal. On the other hand, PW7, who was alleged to have sold Mirinda to the accused deposed that he did not sell Mirinda to the accused, as alleged by the prosecution. Crl.A.No.1357 of 2015 :-22-: 22. PW13 the Scientific Assistant attached to the DCRB, Alappuzha found the deadbody of Sanal in the kitchen room on 4.5.2010 at 8 am. PW13 collected remnants of food from the kitchen and also liquid beside the head of the deceased on a cotton swab. PW13 also found MO8 empty soft drink bottle and took the same for examination. Ext.P41 Chemical Examiner's Report would show that in 3 items of remnants of food, potassium cyanide was detected and no poison was detected in MOs.9 to 12. The plastic bottle is MO9. No traces of potassium cyanide could be detected from MO9. In the liquid found beside the head, no poison was detected. Further, in the dress worn by Sanal when he came to the house of the accused, no traces of potassium cyanide was found. Hence, the logical inference is that cyanide was consumed through food. 23. The trial court noticed that there was no direct evidence of the suspicion of administering poison by the accused to the deceased and the case purely depends on the circumstantial evidence. The trial court, however, rejected the version of the accused that the deceased committed suicide. On the strength of the evidence, the trial court arrived at a conclusion that the prosecution has succeeded in establishing Crl.A.No.1357 of 2015 :-23-: the guilt against the accused beyond doubt. The circumstances relied on by the trial court are the following:- 1. The accused had close relationship with Sanal. 2. The relationship between the accused and Sanal after his second marriage was strained and there were disputes between them in connection with money matters. 3. The accused did not like Sanal leading a married life in Goa with Swapna. 4. PW4 testified that the accused cut her vein on account of frustration before Sanal married Swapna. 5. The dead body of Sanal was found inside the kitchen room of her house. 6. Sanal had consumed food mixed with cyanide. 7. After entering into the house, Sanal had spent time inside the house. He had put his shirt on the cloth stand, kept his mobile phone and wrist watch on the cot, went to the kitchen room and started having food. 8. Post-crime conduct of the accused would show that there was an attempt made by her to remove the deadbody of Sanal and to destroy the evidence. 9. The accused insisted not to bring taxi car in order to avoid driver and persistently demanded PW4 to bring a 'rent-a- Crl.A.No.1357 of 2015 :-24-: car'. 10. She did not inform the occurrence to her brother, who was helping her when her husband was not in station. 11. The postmortem certificate coupled with the Chemical Examination Report disclosed that cyanide was found in the stomach of the deceased. 12. The accused had access to the poison and an opportunity to administer it. 24. Having considered the above circumstances in detail, the court below is of the view that the circumstances brought in are sufficient to prove the offence against the accused. 25. Section 293 of the Code of Criminal Procedure provides that report of the Scientific Experts may be used as evidence in any enquiry, trial or other proceedings of the court. The report was forwarded to the Doctor, who conducted the postmortem. The Doctor, in the light of the report, formed an opinion that the death of the deceased was by hydrocyanic poisoning. On a consideration of the entire facts and circumstances, a strong suspicion arises. However, the moot point for consideration is as to whether the chain is complete in a case where the evidence is of circumstantial nature. It is Crl.A.No.1357 of 2015 :-25-: settled principle of law that the circumstances should be complete and all the facts established should be consistent with the hypothesis of the guilt of the accused. In a case of murder by poison, the prosecution is bound to prove three points as laid down by the Apex Court in **Ananth Chintaman Lagu** v. **State of Bombay** [AIR 1960 SC 500]. Firstly, it is necessary on the part of the prosecution to prove that the victim died of the poison; secondly, that the accused had poison in her possession; and thirdly, the accused had an opportunity to administer the poison to the victim. Hence, the material question arises for consideration is as to whether the prosecution has succeeded in proving the possession of the poison with the accused. From the circumstances relied on by the prosecution, the entire reasoning is based on the principle that the victim died at the residence of the accused and that hydrocyanic acid was detected on chemical analysis, the court below is of the view that the accused was in possession of cyanide in her possession. When examined before court, PW22 stated that he did not conduct any investigation touching the source of cyanide and the circumstances, which led to the poison in the possession of the accused. In view of the principle formulated in **Ananth Chintaman Lagu** 's case (supra), in a case of murder by Crl.A.No.1357 of 2015 :-26-: administration of poison, the poisoner seldom takes another into his confidence and his preparations for the commission of the offence are also secret. It was held that the greater his knowledge of poisons, the greater the secrecy, and consequently, the greater the difficulty of proving the case against him. It is true that the discovery of the poison can only take place either through a postmortem examination of the internal organ or by chemical analysis. It is very difficult to adduce direct evidence. In this case, the accused put forward a plea of suicide. When a plea of suicide is set up by the accused, it is the duty of the prosecution to adduce evidence before the court to rule out the possibility of suicide. Report of the Chemical Examiner and the Postmortem Report would show that what was found was only hydrocyanic acid. There is no evidence to show that the victim consumed potassium cyanide. Under the circumstances, it may not be able to come to a conclusion that the accused administered potassium cyanide and the victim consumed the same. Apparently, it appears that the accused had consumed some other type of cyanide. An identical position was considered by the Supreme Court in **Ramesh Kumar** v. **State of Punjab** [AIR 1994 SC 945] as follows:- Crl.A.No.1357 of 2015 :-27-: “..............In Taylor's Principles and Practice of Medical Jurisprudence, we find that there are several kinds of cyanides - viz., Potassium Cyanide, Sodium Cyanide and Calcium Cyanide etc. The author also points out that Potassium Cyanide is sold as commercial Potassium and is used in a few chemical processes, in electro-plating, in photography etc. but for most purposes has been superseded by the cheaper Sodium and Calcium Cyanide. Therefore, this plea, as made out, that whether it is Potassium Cyanide alone, we have a doubt that the death is caused due to administration of Potassium Cyanide alone. …......” 26. In Ext.P11, PW8, the Doctor, who conducted the postmortem examination, after taking into consideration of Ext.P40 Chemical Examination Report, is of the view that hydrocyanic acid was detected in the viscera and blood of the deceased. According to PW8, cyanide salts in alkaline forms are highly poisonous and hydrocyanic acid is one of the alkaline forms of cyanide salt. In the case at hand, the prosecution has no consistent case. Though cyanide mixed with 'Mirinda' was alleged as the cause of death, no reliable evidence was adduced to support the same. It is also not proved that the victim consumed potassium cyanide or calcium cyanide or sodium cyanide or any other type of cyanide on the date of occurrence. When cyanide poisoning is alleged, it is the duty of the prosecution to allege and prove the type of cyanide consumed by the victim. The fact that PW22 did not conduct detailed investigation touching the origin and source of 'Mirinda' soft Crl.A.No.1357 of 2015 :-28-: drink and the type of cyanide consumed by the victim is an indication that the prosecution has no consistent case. In Ext.P25(a), PW20, who is the son of the accused, denied the fact that on 3.5.2010 he went along with his mother to the Dental Hospital and that his mother had in her possession 'Mirinda' soft drink. In view of the above, we have a doubt that the death of the victim was caused due to administration of cyanide with 'Mirinda' soft drink or any other type of cyanide mixed with water. 27. In Ext.P25 contradiction, PW20 testified that on 1.5.2010, he came from the Engineering College, Erode and was very much present in the house where the occurrence took place. In Ext.P25(b), he denied the fact that by about 3 p.m. on the date of occurrence, when he reached the house, he saw a motorcycle and a pair of slippers and then, he was convinced that Sanal was inside the house. Ext.P25 and P25(b), inter alia would show that PW20 was present at the place of occurrence on the fateful day. In view of the specific assertion made by the prosecution that PW20 was present at the residence of the accused on the date of occurrence, we have genuine doubt as to whether it was the mother or the son, who administered the poison to the deceased. As indicated earlier, the prosecution Crl.A.No.1357 of 2015 :-29-: failed to establish that the death of the victim was due to cyanide poisoning. No evidence was adduced to show that the accused was in possession of cyanide mixed with 'Mirinda' drink on the date of occurrence. An inference that the accused might have administered the poison as she had an opportunity to administer the poison to the accused is difficult to accept in the absence of medical evidence establishing that the death was caused due to cyanide mixed with 'Mirinda' soft drink. 28. Learned Public Prosecutor Sri.S.U.Nazar contends that failure of the prosecution to prove the possession of poison with the accused is not material in view of the decision reported in **Bhupinder Singh** v. **State of Punjab** [1988 KHC 1010 (SC)]. According to the learned Public Prosecutor, insistence on proof of possession of poison with the accused invariably in every case is neither deniable nor practicable and it would mean to introduce an extraneous ingredient to the offence of murder by poisoning. The decision rendered in **Bhupinder Singh's case** (supra) is distinguished by the Apex Court in **Ramesh Kumar's case** (supra). **Bhupinder Singh** 's case (supra) was a case where the facts and circumstances of the case ruled out the possibility of suicide as there was an external injury. Then, having regard to Crl.A.No.1357 of 2015 ## :-30-: the other circumstances, the Apex Court reached the conclusion that the accused therein have a motive to administer the poison and particularly when the death was proved to be homicidal. When the case of a murder is made out, the circumstances would be different to establish his guilt. The Apex Court held that the fact in **Bhupinder Singh's case** (supra) is distinguishable holding that the strong suspicion cannot take the place of proof. Judged by the above standards, we are of the view that the principles formulated by the Apex Court in **Ramesh Kumar's** case (supra) are equally applicable in this case as well. 29. It is a fact that the deadbody of the victim was found inside the kitchen of the accused. However, there is nothing on record to show that the accused mixed cyanide with 'Mirinda' drink and gave it to the accused. The chemical analysis report would indicate that hydrocyanic acid was detected in the food particles recovered from the place of death. No evidence was adduced to show that the accused alone was responsible for preparing the food materials mixing with cyanide poison. It is brought out in evidence that the accused is the mother of a six year old child on the date of occurrence. Ordinary human probability leans against the Crl.A.No.1357 of 2015 ## :-31-: proposition that the mother would venture to prepare food materials mixing with cyanide poison in her house particularly her minor son was very much available in the house on the date of occurrence. 30. Yet another circumstance alleged by the prosecution is that the accused made an effort to remove the body of the deceased from her residence and to cover up the incident through PW4 Sumesh. The aforesaid witness was closely related to the accused and under normal circumstances; the latter would have been offered a helping hand, protection and assurance of safeguarding the matter. The accused was frantically asking PW4 to remove the deadbody from the kitchen portion of her residence. She requested PW4 to hire a rent-a car for the said purpose. The fact that PW4 knew the accused for a very long time is evident from the evidence on record. PW4 was a very close friend of the accused and was indeed a friend in need. Accused was expecting favours from PW4 obviously for the reason that the accused wanted to protect her modesty as a woman. Merely because the accused made an attempt to remove the deadbody from the house of the accused on the date of occurrence with the aid of PW4, the same itself is not a ground to hold that the accused was the Crl.A.No.1357 of 2015 :-32-: perpetrator of the crime and she administered poison to the deceased. The accused was the mother of two children. Her husband was working in GREF. She wanted to protect her modesty. Confronted with the above circumstances, a similarly situated person cannot escape except to seek help from an intimate friend like PW4, under whom she took shelter whenever her husband was not in station, to whomelse, the accused could approach for help, being in a situation which she herself was constrained to face. Hence, the location of dead body of Sanal inside the kitchen room of the accused itself is not a proof to show that the accused administered poison to the deceased. During investigation, PW4 was questioned by the Police in detail and he was detained in the Police Station for further interrogation. His involvement in the crime was initially suspected. His statement was recorded for several times by the Police. There is nothing on record to show that he gave statement before the Police suspecting the accused as the perpetrator of the crime. Admittedly, there was no direct evidence to prove that the accused had administered poison to the deceased. Where the case against the accused was purely based on circumstantial evidence and there was no direct evidence that the accused administered cyanide to the Crl.A.No.1357 of 2015 :-33-: deceased and no poison had been detected from the 'Mirinda' soft drink bottle recovered from the spot by the Chemical Examiner, we are of the view that the chain of circumstantial evidence is broken. It is not possible for us to presume that the poison was administered by the accused in secrecy to the deceased. 31. It is true that normally there is a motive behind every criminal act and that is why the court, while examining the complicity of an accused, first try to ascertain as to what was the motive which compelled the accused to commit the crime. Undoubtedly, in cases of circumstantial evidences, motive bears important significance. It is difficult for us to believe that the accused administered poison to the deceased as he married second time with Swapna in Goa and lived there happily. It was brought out in evidence that a baby was born for the couple in the wedlock. The deceased Sanal was doing some business in Goa and he was a debtor to many. According to the accused, he came to the home town to settle the share over the business with his family members and to collect money for the business in Goa. The accused further contended that he came to her house for collecting money from her. The facts that the deceased was involved in an offence under the Immoral Crl.A.No.1357 of 2015 :-34-: Traffic Act in Goa, and that he was a debtor to many are relevant facts and normally prosecution is expected to adduce evidence in support thereof. The accused is a married lady having two children. It was brought out in evidence that the victim married twice in his life. The circumstances would show that he was involved in an offence under the Immoral Traffic Act. It is difficult for us to believe that the accused was so fond of such a man and went to the extent of administering the poison to him especially the victim was a debtor to the accused. As the victim has been facing both financial and mental stress in Goa, chance of committing suicide cannot be ruled out. 32. So far as this case is concerned, the prosecution has not succeeded in proving that there is motive for the accused to administer poison to the deceased. There was no doubt that Sanal died of consuming hydrocyanic acid poisoning and it has also been proved that there was an opportunity for the accused to administer the poison. However, it has not been proved that the accused had the poison in her possession. Merely because the accused had an opportunity to administer the poison to the deceased, it could not be presumed that the accused had the poison in her possession, particularly the prosecution has no consistent case regarding the poison in her Crl.A.No.1357 of 2015 :-35-: possession. There is no clear evidence in this case to show that cyanide mixed with 'Mirinda' as alleged by the prosecution could have been available to the accused. There is also no evidence to show that the accused could have procured cyanide from any available source. In the absence of clear evidence that what was found in the viscera of the deceased was only hydrocyanic acid, we cannot straight away enter into a finding that the accused could have come into possession of hydrocyanic acid and administered the same. 33. According to the prosecution, accused was living in adultery. Her character is seriously attacked during trial. PW3 adduced evidence before the court to show that the accused is a woman of bad character and that she was living in adultery. In this connection, it is useful to peruse Section 54 of the Evidence Act. Section 54 of the Evidence Act reads as follows:- ## “ **54. Previous bad character not relevant except in reply** In Criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant. Explanation 1: This section does not apply to cases in such the bad character of any person is itself a fact in issue. Explanation 2: A previous conviction is relevant as evidence of bad character.“ In terms of criminal jurisprudence valid in India, unless otherwise provided for any other statute, every person is Crl.A.No.1357 of 2015 :-36-: presumed to be innocent unless he is convicted. Section 54 of the Evidence Act gives protection to an accused of being put in the category of a person having bad character except in the circumstances thereunder. We are of the view that it is not necessary for this Court to brand the accused as a woman of bad character among the right thinking members of the society. As indicated earlier, evidence regarding bad character of the accused is not relevant to adjudicate the points involved in this case. However, the evidence of bad character could be looked into for the limited purpose of establishing the motive for the murder and not for the purpose of deciding as to whether the accused was normally the type likely to murder the victim. It appears from the facts and circumstances that the court below was carried away by the fact that the accused was living in adultery and hence she was normally the type likely to murder the victim. 34. The circumstantial evidence in order to sustain conviction might be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence. In other words, there must be chain of evidence to complete. Crl.A.No.1357 of 2015 :-37-: In this case, the circumstances are not conclusive in nature. When the evidence on record is analysed in the background of the principles highlighted in **Ramesh Kumar's** case (supra), the inevitable conclusion is that the chain is broken and the prosecution has failed to prove the accusation against the accused beyond doubt. The prosecution has succeeded in proving suspicion against the accused. The suspicion itself is not a substitute for proof. Proof and suspicion are different. The evidence on record would show that the circumstances relied on by the prosecution are explainable away. Hence, we are of the view that the evidence in this case would not be sufficient to show that in all human probability, the act was done by the accused and should not be explainable away on any other hypothesis except that the accused is innocent. Crl.A.No.1357 of 2015 :-38-: In the result, we set aside the conviction and sentence awarded by the court below. The appeal is allowed accordingly. The appellant/accused is set at liberty forthwith if she is not required in connection with any other case. Sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/