BHAGYAWATI BAI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant, Bhagyawati Bai has been convicted for the murder of her four years old step brother Kamlesh by administering poison to him. After the child died the pos.mortem examination was performed and the vicere was examined by the Chemical Examiner. This vicere contains Zink Phosphate. This is the finding recorded by the learned First Additional Sessions Judge, Durg who passed the impugned judgment and conviction. Learned counsel appearing for the appellant also did not canvass against it. We, therefore, hold agreeing with the lower Court that Kamlesh died a homicidal death as a result of administering poison to him.

(2.) We are, however, unable to agree with the lower Court that it is the appellant who is responsible for causing death of Mahesh. Since the death in the case is laid to be the result of poison, we may refer to the decision in Sharad Birdhichand Sarda v. State of Maharashtra1. In the cases of murder by administration of poison, the prosecution must lead clear and acceptable evidence to show (1) that there is 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 her possession and (4) that he had an opportunity to administer the poison to the deceased. We shall proceed to examine the circumstance proved in the present case in the light of the aforesaid direction issued in the above case. As regards motive, there is hardly any evidence on the record. The finding of the lower Court is that the prosecution could not establish any motive on the part of the appellant to administer poison to her step brother. We have also gone through the entire evidence of the record and do not find any indication in that behalf except the deceased to be the step brother of the appellant. That, in our opinion, does not form necessary motive for commission of such a heinous crime. There is also no evidence that the appellant had ever been found in possession of the poison, which was found to have been administered to the deceased Kamlesh. The prosecution has not led any evidence to show that the accused/appellant was ever before found in possession of Zink phosphate. This circumstances has also rightly been found against the prosecution and in favour of the appellant.

(3.) True it is that since the house of the deceased and of the appellant were close to each other and that the mother of the deceased (P.W. 1) had left him praying outside the house, the appellant can be said to have some opportunity to administer the poison. Nevertheless what we finded that the poison is said to have administered mixed in some boiled rice in broad day light. The locality is residential locality. Under this circumstance, it does not seem probable that the appellant would administer the poison then. We, therefore, hold that this condition has also not been established in the present case. The prosecution had, however, relied upon the oral dying declaration said to have been made by the deceased first to her mother (P.W. 1) and then to Dr. Ravi Kumar Gore (P. W.6). Shyambai (P. W. 1) has deposed that she came to her house on learning that her son was vomitting. This was told to her by one Jhadu. Jhadu has not been examined. She is then said to have asked the deceased, who, according to her, told her, that the appellant had given him to eat some Kadua Bhat. She then cried aloud at which her husband Darbarl came out of the house. The appellant also came out and she was beaten by both of them. Adhar Thakur intervened. This Adhar Thakur has also, not been examined. She then is said to have gone to the Kotwar. It is however significant that she did not tell the Kotwar that the deceased Kamlesh told her that the appellant gave him that Kadua Bhat to eat. The Kotwar has been examined as P W. 4, but he did not support the prosecution. We then find in para 10 of her cross-examination that this fact of the oral dying declaration said to have been made by the deceased to her was not stated by her when her statement was recorded by the Police. Similarly in the Dehati Nalishi (Ex. P. 1) this aspect is significantly absent. Her deposition in para 19 thus creates a doubt upon her testimony as regards the alleged dying declaration. It will therefore, be not safe to rely upon such an oral dying declaration.