RAJBIR SINGHversusTHE STATE OF PUNJAB

80                      [2022]REPORTS
              SUPREME COURT    11 S.C.R. 80             [2022] 11 S.C.R.


A                              RAJBIR SINGH
                                      v.
                         THE STATE OF PUNJAB
                     (Criminal Appeal No. 2152 of 2010)
B                            AUGUST 24, 2022
             [HEMANT GUPTA AND VIKRAM NATH, JJ.]
            Penal Code, 1860 – s.302 – Death by poisoning alleged –
     Circumstantial evidence – As per the prosecution, PW-1-informant’s
     wife died after consuming the milk brought from the appellant,
C
     residing in the neighbourhood and carrying on the business of dairy
     farm and selling milk – Appellant convicted u/s.302 – On appeal,
     held: In the present case, chain of evidence has many missing and
     weak links – None of the essential ingredients to record conviction
     in a case of circumstantial evidence and that of poisoning case are
D    made out – Prosecution has not established the charge beyond
     reasonable doubt so as to record conviction u/s.302 – It has failed
     to bring home the guilt – Both the courts below committed error in
     recording conviction – Appellant extended benefit of doubt –
     Judgments of the High Court and the Trial Court set aside –
     Appellant acquitted.
E
            Criminal Law – Case of poisoning – Circumstantial evidence
     – Principles laid down in Sharad Birdhichand Sarda vs. State of
     Maharashtra reported as Held: In a case of circumstantial evidence,
     the five golden principles as laid down by this Court in Sharad
     Birdhichand case have remained unaltered and are still followed –
F
     With respect to the case of poisoning, four important circumstances
     for recording a conviction were further laid down – These principles
     have also remained unaltered.
           Allowing the appeal, the Court
G           HELD:1.1 This is a murder case of circumstantial evidence
     by poisoning. In a case of circumstantial evidence, the five golden
     principles as laid down by this Court in Sharad Birdhichand Sarda
     vs. State of Maharashtra have remained unaltered and are still
     followed. One of the issues to be considered in the present case
     would be as to whether the chain of evidence was so complete so
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           RAJBIR SINGH v. THE STATE OF PUNJAB                         81


as not to leave any reasonable ground that there could be any          A
other hypothesis except the one put forward by the prosecution.
With respect to the case of poisoning, this Court in the case of
Sharad Birdichand Sarda further laid down four important
circumstances for recording a conviction. The principles laid down
in the case of Sharad Birdichand Sarda have remained unaltered
                                                                       B
and even as recently as 11.08.2022 this Court in Criminal Appeal
No.25 of 2012, Ram Niwas vs. State of Haryana, has relied upon
the same with approval. It is also well settled that suspicion,
howsoever strong it may be, cannot replace proof beyond
reasonable doubt. [Paras 35, 37-39][95-G-H; 97-E-F; 98-B]
      Sharad Birdhichand Sarda v. State of Maharashtra                 C
      (1984) 4 SCC 116 : [1985] 1 SCR 88; Ram Niwas v.
      State of Haryana Decision of Supreme Court dtd.
      11.08.2022 in Criminal Appeal No. 25 of 2012 – relied
      on.
      1.2 The motive set up by the prosecution that appellant          D
had taken a loan of Rs. 1 lakh and had executed a pronote as well
as receipt is denied by the appellant. In his statement under
section 313 CrPC, there is specific denial of borrowing any money
and also executing of pronote. The defence set up in the cross-
examination of PW-1, PW-2 and PW-7 as also the statement under         E
section 313 of CrPC was that the informant was carrying on a
business of Committees of which the appellant was a member
and there was an amount due from the informant to the appellant.
Running of business of Committees by the informant; there being
defaulters; there being financial loss is admitted. According to
the appellant, amount was due to him from the informant and that       F
he had been falsely implicated to deprive him from recovering
the same from the informant. A case of false implication, therefore,
cannot be ruled out. Reliance placed upon the pronote and the
receipt is also not proved in as much as the original was not
produced, rather a false plea was raised that it was filed before      G
the Civil Court, which stands belied by the Ex-D/1 filed by the
appellant, and secondly, no attesting witness was produced by
the prosecution. [Para 41, 42][98-D-F]


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82            SUPREME COURT REPORTS                     [2022] 11 S.C.R.


A           1.3 The next question which arises for consideration is as
     to whether mixing of the poisonous compound in the milk was
     done by the appellant or it could have been done by someone
     else, and for the same there are two windows. First, the time
     between the collection of milk from the appellant on the morning
     of the fateful day, till the time it was consumed by the deceased,
B
     was about five hours. Second window being the time after
     consumption of milk at around 12:30 PM on the fateful day, till
     the next day when the Investigating Officer recovered and took
     into possession the sample of milk and the utensils, which had a
     gap of about 20-24 hours. Total time gap from the time milk was
C    collected from appellant till the samples were collected is more
     than 24 hours. Chances of mixing poison during this period cannot
     be ruled out. Defence had cross-examined both PW-1 and PW-2
     on this aspect. The next question which arises for consideration
     is whether the death of deceased was caused due to consumption
     of organophosphorus, a poisonous compound or for any other
D
     reason. Organophosphorus has a strong pungent smell. This
     smell could not be sensed by the informant, his son as also the
     deceased. The milk which is said to be adulterated with the poison
     was taken out from the refrigerator, transferred into a pan for
     boiling and thereafter given to the deceased. If it actually had
E    organophosphorus in it the smell would have filled up the room.
     The deceased being a healthy woman aged 45 years would not
     have consumed it if the pungent smell was coming from the milk.
     Even the informant (PW-1) did not sense any foul smell from the
     milk while boiling it. It would be worthwhile to refer to a judgment
     of this Court in Jaipal vs. State of Haryana. It was a case of
F
     aluminium phosphite (sulphas) which also has a strong pungent
     smell. It is observed that such compounds are generally used for
     suicide rather than in a case of homicide. Further, Dr. Avtar Singh
     (PW-4) who had conducted the autopsy has clearly stated in both
     his statements that he did not find any smell of organophosphorus
G    coming out of the body. The first statement was recorded on
     08.04.2002 and the second statement was recorded on 03.11.2003,
     in both the statements he had stated that he had not seen any
     change in colour of nails as also in the body, which would have
     been a common symptom in the case of poisoning. He had also
     deposed that all the organs of the body were healthy. Even though
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           RAJBIR SINGH v. THE STATE OF PUNJAB                         83


he admits in the case of poisoning by organophosphorus there           A
would be shrinking of the muscles, however, there was no
squeezing or shrinking in the outside muscles of the abdomen,
which were healthy. According to him, there were no symptoms
of poisoning noticed during the autopsy despite the fact that it
was reported in all police papers about the case being that of
                                                                       B
poisoning. PW-4 must have been careful in observing whether
any symptoms of poisoning were present in the body. This may
lead to an inference that death could have been caused by some
other reason but not poisoning. In so far as the chemical
examination report is concerned it could be a case of tampering
with the samples for the reasons discussed and hereinafter. [Para      C
43, 44][98-G-H; 99-A-H; 100-A]
      Jaipal v. State of Haryana (2003) 1 SCC 169 : [2002]
      2 Suppl. SCR 714 – relied on.
      1.4 The presence of organophosphorus in the milk, utensils,
and the viscera is proved by the Reports of Chemical Examiner          D
dated 31.01.2001 (Ex-PF) and 05.02.2001 (Ex-PG). The sample
was received in the laboratory on 22.09.2000, whereas as per
the two reports, it was received by the Assistant Chemical
Examiner, Dr. Sandeep Kakkar, on 22.11.2000 from one Dr. O.P.
Goel after his suspension, not in a sealed form, but as an open        E
case. This note “This opened case, received by me from Dr. O.P.
Goel on 22.11.2000 after his suspension.” is typed out in both
the reports after an overwriting /cutting is made by using alphabet
“X” continuously. Ex-PF mentions that there were three sealed
jars in the sealed parcel which contained parts of organs. This
Ex-PF does not mention of any fourth jar, whereas as per the           F
post-mortem report and the statement of Dr. Avtar Singh
(PW-4), four sealed packets were sent, three containing parts of
organs, and one containing the saline solution. The result refers
to presence of organophosphorus compound in the three sealed
jars and it also refers to no poison found in the contents of fourth   G
jar. The fourth jar does not find mention in the description of
contents in Ex-PF. The other report, Ex-PG of the Assistant
Chemical Examiner, Dr. Sandeep Kakkar, is with respect to the
recovery made by the Investigating Officer on the next day of
the incident, which included milk, boiled and unboiled and the
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84            SUPREME COURT REPORTS                     [2022] 11 S.C.R.


A    utensils. This also had a similar cutting, and a note attached that
     it was received as an open case from Dr. O.P. Goel on 22.11.2000
     after his suspension. The result as reported is that
     organophosphorus compound was found in contents of all the
     Exhibit Nos. (i) to (vi). The following doubts arise from the perusal
     of the reports of the Chemical Examiner: i. That samples were
B
     not handed over to the Assistant Chemical Examiner who had to
     conduct the analysis in a sealed form. ii. The cutting, and a fresh
     note regarding parcels being open also creates a doubt. iii.
     Chances of tampering with the samples could not be ruled out.
     [Para 45, 46][100-B-H]
C           1.5 The Investigation Officer admits of having made no
     effort to find out as to whether or not the appellant was in
     possession of the poisonous substance said to be mixed in the
     milk. The Courts below have proceeded on the assumption that
     organophosphorous was available in every household. It is more
D    than evident that chain of evidence has many missing and weak
     links. None of essential ingredients to record conviction in a case
     of circumstantial evidence and that of poisoning case are made
     out. Prosecution has thus failed to bring home the guilt. Taking
     an overall view of the evidence on record, this Court is of the
     firm view, that prosecution has not established the charge beyond
E    reasonable doubt so as to record conviction under Section 302 of
     IPC. Both the courts below committed an error in recording
     conviction. The appellant deserves to be extended benefit of
     doubt. The judgments of the High Court and the Trial Court are
     set aside, the appellant is acquitted. He is already on bail. His
F    bail bond is cancelled and sureties are discharged. [Paras 18, 47-
     49][101-A-D]
                            Case Law Reference
     [1985] 1 SCR 88                    relied on         Para 35

G    [2002] 2 Suppl. SCR 714           relied on          Para 44
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     2152 of 2010.
           From the Judgment and Order dated 29.10.2009 of the High Court
     of Punjab and Haryana at Chandigarh in Criminal Appeal No. 355-DB
H    of 2005.
                RAJBIR SINGH v. THE STATE OF PUNJAB                           85


       Suryanarayana Singh, Sr. Adv., Anil Kumar, T. Mahipal, Advs.           A
for the Appellant.
          Ms. Jaspreet Gogia, Karanvir Gogia, Advs. for the Respondent.
          The Judgment of the Court was delivered by
          VIKRAM NATH, J.                                                     B
       This appeal is directed against the judgment and order of the Punjab
and Haryana High Court dated 29.10.2009 whereby the appeal filed by
the appellant was dismissed, confirming the judgment of the Sessions
Judge, Bathinda dated 08.04.2005 convicting the appellant under Section
302 of Indian Penal Code 18601 and sentencing him to undergo rigorous         C
imprisonment for life and pay a fine of Rs.1,000/-, in default of payment
of fine, to further undergo rigorous imprisonment for three months.
       2. The prosecution story begins with the lodging of the First
Information Report by Joginder Singh (PW 1- husband of the deceased)
at Police Station Kotwali, District Bathinda on 18th September, 2000 at       D
7 PM. According to the complainant, his son Gursharan Singh in the
morning at around 07.45 am brought 1 kg of milk from the house of
Rajbir Singh (appellant) who used to reside in the neighbourhood and
was carrying on business of dairy farm and selling milk with the help of
his wife Sheela. The appellant was known to the complainant being
resident of the neighbourhood.                                                E
       To help the appellant purchase buffaloes and for domestic needs,
he had borrowed Rs.1 lakh from the informant about 7/8 months before.
He had also executed a pronote in that respect. The milk as brought by
Gursharan Singh (PW-2) was kept in the refrigerator. At about 12.30
PM his wife Kuldeep Kaur @ Bhajno felt hungry and as she was resting          F
due to some uneasiness, the informant himself took out some milk from
the jug kept in the refrigerator and after boiling the same gave it to her.
After sipping the milk once, she remarked that the milk was bitter in
taste and after sipping further, she further remarked that there was some
defect with the milk. Then he also smelled the milk lying in the jug from
                                                                              G
which a pungent smell was coming. In the meantime, his wife felt irritation
on her lips and also became restless. He called his son Gursharan
Singh(PW-2), who took his mother on his scooter to the Children and
General Hospital. He also followed. As the condition of his wife had

1
    In short “IPC”                                                            H
86                SUPREME COURT REPORTS                      [2022] 11 S.C.R.


A    deteriorated, she was referred to the Civil Hospital, Bathinda where she
     breathed her last after some time. He further stated in his complaint that
     he was of the firm belief that Rajbir Singh and his wife Sheela had
     mixed some poisonous substance in the milk in order to eliminate his
     family. His wife died because of the poisonous milk. He and his wife
     were demanding their money from Rajbir Singh but he was making
B
     excuses and on account of this grudge he poisoned the milk and hence a
     report be registered and appropriate action be taken.
            3. Dr. K.S. Brar (PW-12), Emergency Medical Officer at Children
     and General Hospital after examining Kuldeep Kaur referred her to the
     Civil Hospital considering her serious condition, and also sent information
C    to the police. SI Balwant Singh (PW-7) who was in-charge of the Canal
     Colony Police Post, Bathinda, left for the Children and General Hospital
     and from there proceeded to the Civil Hospital where the doctor informed
     him about the death of Kuldeep Kaur. He met Joginder Singh (PW1) at
     the Hospital, he gave his statement which was recorded and which after
D    being read over was signed by Joginder Singh (PW-1). SI Balwant Singh
     (PW-7) made an endorsement on the same (Ex-PA/1) for registering
     the case. On its basis formal FIR (Ex-PA/2) was registered.
            4. The inquest report (Ex-PE) was prepared by the Investigating
     Officer. The dead body was sent for post-mortem examination in the
E    custody of Head Constable Kapur Chand (PW-5) and Constable Satpal
     (PW-10). Necessary police papers were prepared. The Investigating
     Officer on the next day inspected the place of occurrence, prepared the
     site plan (Ex-PK). He also collected the sample of milk lying in the jug
     as also the boiled milk which was lying in the glass. They were packed
     and sealed. The utensils in which the milk was kept were also taken into
F    custody and a recovery memo (Ex-PM) was prepared of all the recovered
     items. The statement of witnesses was recorded under Section 161 of
     the Code of Criminal Procedure, 19732. Charge-sheet was submitted
     against Rajbir Singh – the appellant only.
            5. Cognizance was taken. Magistrate committed the case for trial
G    to the Sessions Court. The Trial Judge on 22.01.2002 read out the charge
     under Section 302 of IPC to the appellant who denied the same, pleaded
     not guilty and claimed to be tried. Thereafter, the trial proceeded, and
     five witnesses were examined. Dr. K.S. Brar who had first examined
     the deceased at the Children and General Hospital was examined as
H    2
         Hereinafter referred to as “CrPC”
            RAJBIR SINGH v. THE STATE OF PUNJAB                             87
                     [VIKRAM NATH, J.]

PW-1; Dr. Avtar Singh who had conducted the autopsy was examined            A
as PW-2; Head Constable Satpal who had accompanied the dead body
for autopsy and had carried the sealed samples to the laboratory was
examined as PW-3; Head Constable Kapur Chand who had taken the
dead body for post-mortem was examined as PW-4 and Gursharan Singh
son of the deceased was examined as PW-5 on 14.03.2003.
                                                                            B
      6. At this stage, Sheela Devi wife of the appellant was summoned
under Section 319 of CrPC vide order dated 08.04.2003. Thereafter,
both the accused were again read out fresh charge under section 302
read with Section 34 of IPC on 08.07.2003. Both the accused denied the
charge, pleaded not guilty and claimed to be tried. They also stated that
they would cross-examine all the witnesses who had already been             C
examined.
      7. From the record it appears that the witnesses already examined
were re-examined before the Trial Court by the prosecution although in
a different sequence. In all 12 witnesses were examined by the
prosecution as follows -                                                    D

      i.   PW-1 - Joginder Singh, informant.
      ii. PW-2 - Gursharan Singh, son of the deceased.
      iii. PW-3 - Balwinder Singh, brother of informant, to prove the
           pro note.                                                        E
      iv. PW-4 - Dr. Avtar Singh, who conducted the autopsy.
      v. PW-5 - Head Constable Kapur Chand, who had carried the
         body of the deceased for post-mortem.
      vi. PW-6 - Head Constable Darshan Singh, with whom the articles       F
          of post- mortem report and the parcel containing clothes of
          the deceased were deposited.
      vii. PW-7 - Sub Inspector Balwant Singh, the Investigating Officer.
      viii. PW-8 - Sub Inspector Manjeet Singh, who had arrested Rajbir
            Singh on 12.06.2001.                                            G

      ix. PW-9 – A.S.I Kuldeep Singh, who had taken into possession
          the pronote (Ex-PB) and had also recorded the statements of
          marginal witness of pronote.

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88              SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A          (At this stage, statement of both the accused under Section 313
     of CrPC was recorded on 10.11.2004 by putting all the incriminating
     material to them. Thereafter, three more witnesses were examined.)
           x. PW-10 - Head Constable Satpal Singh who had carried the
              recovered material and viscera to the laboratory.
B          xi. PW-11 - Constable Paramjeet Singh, who had delivered the
               Special Reports to the Judicial Magistrate.
           xii. PW-12 - Dr. K.S. Brar, who had first examined the deceased
                at the Children and General Hospital.

C          After the above three witnesses were examined the additional
     incriminating material was put to both the accused and their supplementary
     statement was recorded under Section 313 of CrPC on 09.03.2005.
            8. Both the accused were examined twice under Section 313 CrPC
     and the entire incriminating material was put to them. They denied the
D    prosecution evidence and pleaded innocence and stated that they were
     falsely implicated. It was further stated by them that the complainant
     was running the business of Committees in which the appellant was also
     a member of the said Committees; that he had made payment for the
     Committees but some members of the Committees had refused to make
     the payment of the remaining instalments, although they had received
E    full amount from the Committees; due to this reason the financial position
     of the complainant had become very weak; the appellant had not received
     the due amount of Committees and was demanding the same from the
     informant; it is for this reason that he has been falsely implicated so that
     the complainant may get rid of the said burden; the deceased might have
F    committed suicide due to her family’s financial crisis. The accused did
     not lead any oral evidence in defence, however, he filed one document
     (Ex-D1) copy of the order dated 22.11.2004 of the Civil Court.
           9. The samples of milk and the utensils which were seized by the
     Investigating Officer along with viscera were sent for chemical
     examination. Two reports were received from the laboratory – one is
G
     dated 31.1.2001 (Ex-PF) and the other is dated 5.2.2001 (Ex-PG).
           10. According to Ex-PF, the sealed packet contained –
           i.   A sealed jar said to contain brain, heart and lung parts;
           ii. A sealed jar said to contain parts of liver, spleen and kidney;
H
            RAJBIR SINGH v. THE STATE OF PUNJAB                               89
                     [VIKRAM NATH, J.]

      iii. A sealed jar said to contain parts of large intestine with         A
           stomach;
       11. In the analysis an organophosphorus compound, a group of
insecticides was found in the contents of samples (i) to (iii). No poison
was found in the contents of sample (iv). In the report of Ex-PF there is
no mention of sample (iv). There is description of only three samples of      B
the organs of the body. There is also cutting on the report which would
be discussed at a later stage.
      12. Ex-PG consisted of six sealed parcels as follows:
      i.   Plastic shishi duly sealed said to contain unboiled milk;
                                                                              C
      ii. One sealed plastic shishi said to contain boiled milk given to
          the deceased;
      iii. One sealed plastic shishi said to contain milk taken from
           unboiled milk;
      iv. One sealed steel jug empty with glass stained with milk;            D
      v. One sealed Dolu and glass;
      vi. One aluminium frying pan.
       In this report also there is a cutting of similar nature as Ex-PF.
The result of the analysis was an organophosphorus compound, a group          E
of insecticides, was found in the contents of samples (i) to (vi).
       13. Both the reports Ex-PF and Ex-PG mention that open case
was received by the signatory from Dr. O.P. Goyal on 22.11.2000 after
his suspension.
        14. It would also be relevant to refer to the post-mortem report at   F
this stage. According to the post-mortem report (Ex-PD) it was conducted
on 19.09.2000 at 11.10 AM. With respect to the cause of death it was
stated in the report that the same would be declared after receiving the
report of the Chemical Examiner. No external or internal injury was
noticed on the body of the deceased. All the organs inside the body were      G
reported to be healthy. It was also reported that the probable time that
had lapsed between death and the post-mortem was within 24 hours.
Viscera was preserved and handed over to the police.
       15. The Trial Court vide judgment dated 08.04.2005 found that all
the ingredients which proved the death by poisoning were present and
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90            SUPREME COURT REPORTS                           [2022] 11 S.C.R.


A    charge was proved by the prosecution. It also found that there was no
     clinching evidence against Sheela, wife of the appellant and accordingly
     acquitted her giving benefit of doubt. However, the evidence established
     the charge of murder against the appellant and he was convicted under
     Section 302 of IPC. The Trial Court did not find the offence to be in the
     ambit of rarest of rare cases and accordingly sentenced him to undergo
B
     imprisonment for life and pay a fine of Rs.1,000/- and in default thereof
     to further undergo rigorous imprisonment for three months.
            16. The appellant preferred appeal before the High Court,
     registered as Criminal Appeal No.355/2005. The High Court, vide
     impugned judgment and order dated 29th October, 2009 did not find any
C    infirmity in the judgment of the Trial Court and accordingly dismissed
     the appeal. This has given rise to the present appeal.
            17. The Trial Court as well as the High Court found that the chain
     of circumstances was complete in order to establish the guilt of the
     appellant. According to both the Courts, the prosecution had fully
D    established the charge against the appellant of adding poison to the milk
     supplied to the son of the informant, and the same having been consumed
     by the deceased, resulted in her death. The finding is that there was a
     motive to commit the said offence in order to save the appellant from
     returning the loan of Rs. 1 lakh taken from the informant. The chemical
E    analysis of the boiled milk consumed by the deceased, the unboiled milk,
     the container (dolu) in which the milk was kept and the glass in which
     the milk was tendered, all contained organophosphorus, the poisonous
     substance. The second chemical report also reflected that there was the
     same substance organophosphorus in the parts of the organs (viscera)
     of the deceased sent for analysis. Both the Courts below relied on the
F    chemical analysis reports (Ex-PF and PG).
            18. Having considered the submissions advanced by the learned
     counsel for the parties and having perused not only the material on record
     of the appeal but also the original record of the trial, we are of the view
     that both the courts below committed an error in recording conviction
G    for the reasons detailed hereinafter.
           19. We will first briefly refer to the evidence led by the prosecution.
            20. PW-1 Joginder Singh in his statement supported the prosecution
     story as narrated by him. He has also given details of the recovery of
     the milk and utensils from his residence. In his cross-examination he has
H
            RAJBIR SINGH v. THE STATE OF PUNJAB                                 91
                     [VIKRAM NATH, J.]

admitted that he was running business of Committees of which the                A
appellant was member in five Committees. The members of the
Committees paid instalments. The appellant Rajbir Singh was not making
regular payments towards the Committees; that he was not maintaining
the record regarding the Committees. He denied that the alleged pronote
and the receipt were executed in connection with the account of the
                                                                                B
Committees. He also stated that when he smelled the milk in the glass or
the jug, he did not find any difference in the odour of the milk and both
the utensils. He also denied that he had kept rat killer poison in his house.
He further denied that some members of the Committee who had
received the amount of the Committee had become defaulters and that
they did not pay the amount due towards the Committees. He denied his           C
relations being strained with them. He also denied that there is any quarrel
with his wife and he also denied that the facts of financial crisis and
quarrel between the husband and wife and she had committed suicide.
It was also put to him that the witnesses of the pronote were residents
of Kaliawali Mandi where he used to reside earlier. He accepted that
                                                                                D
the pronote and receipt were not got attested from any resident of the
locality where he and the appellant were staying at the time of execution
of the pronote. It was also suggested to him that the witnesses of the
pronote and the receipt did not know Rajbir Singh. He states that his
wife did not vomit at both the hospitals and she had only one motion at
the Children and General Hospital. It was suggested to him that his wife        E
did not die due to poisoning but because of tension and stress which was
denied by him.
       21. PW-2 Gursharan Singh, son of the deceased, has also supported
the prosecution story in his examination-in-chief. In his cross-examination,
he has admitted that Rajbir Singh was a member of the Committees run            F
by his father. He was confronted with his statement recorded in Ex-DA
that he had stated that his father owed money from Rajbir Singh in
connection with the committees and had executed pronote for Rs.1 lakh.
He, however, reiterated the prosecution case that Rajbir Singh (appellant)
had received Rs.1 lakh from his father and had executed the pronote.
He was then confronted with the statement Ex-DA where he had not                G
mentioned about Sheela taking a jug from him, both the accused inside
the room and then the appellant coming out with the jug and handing it
over to him. He stated that he had recorded this fact in the statement
Ex-DA before the police but the same was not recorded. He also denied
of keeping poison in his house to kill rats. He then admits that some           H
92             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A    members of the Committees had taken away the amount of the
     Committees and had not returned the amount to his father. He also
     admitted that other members of the Committees who were paying
     instalments regularly were demanding the amount from his father. It
     was also suggested to him that they were facing financial crisis; that
     there used to be quarrel between his father and mother due to the financial
B
     problems and that his mother had committed suicide. All three suggestions
     were denied by him.
            22. The pronote has been proved by PW-3 Balwinder Singh, who
     is real brother of the informant. He admits that he had never seen the
     original pronote and receipt.
C           23. PW-4 Dr. Avtar Singh had conducted the autopsy. He proved
     the post-mortem report and its contents. He has further stated that he
     had prepared the four jars out of which three jars contain the viscera
     and the fourth jar contained saturated saline. He also stated that he has
     received all the police papers before conducting the autopsy. He also
D    stated that after receiving the report of the Chemical Examiner Ex-PF
     he had declared the cause of death was due to poisonous compound
     found in the viscera. In his cross-examination he stated that in the case
     of poison the colours of nail turn into a bluish colour and the colour of the
     body also turns bluish. He stated that the body was not bluish and,
     therefore, he had not mentioned it in the post-mortem report. He further
E    stated that remaining viscera’s poison gives a foul smell. He was asked
     whether he observed or felt the foul smell to which he stated that he
     neither observed such smell nor he felt the foul smell while conducting
     the post-mortem examination. He also stated that upon opening the
     stomach a foul smell will come in case it is a case of organophosphorus
F    poison. He further stated that he did not experience any foul smell after
     opening the stomach and as such did not mention it in the post-mortem
     report. He was then suggested whether the muscles of the body shrink
     in case of poisoning which he denied but he clearly said that he did not
     observe symptoms of poisoning and on that account he did not mention
     it in the post-mortem report. He further stated that in case
G    organophosphorus poison is put in the milk it will give smell even to a
     person who is standing at some distance from the utensil in which milk
     with such poison is kept.
            24. PW-5 Head Constable Kapur Chand is a formal witness who
     had carried the body of the deceased for post-mortem and he affirmed
H    the contents of his affidavit (Ex-PH).
            RAJBIR SINGH v. THE STATE OF PUNJAB                               93
                     [VIKRAM NATH, J.]

      25. PW-6 Head Constable Darshan Singh is also a formal witness          A
with whom the articles of post-mortem report and the parcel containing
clothes of the deceased were deposited. He affirmed the contents of his
affidavit (Ex-PJ).
        26. PW-7 Sub-Inspector, Balwinder Singh is the Investigating
Officer. He stated that he received the information about the poisoning       B
from the Children and General Hospital whereupon he went there and
later went to the Civil Hospital where the deceased had been shifted. At
the Civil Hospital he was informed by the doctor that Kuldeep Kaur had
already died. There he recorded the statement of the informant, got his
signatures made thereon and himself made endorsement for registering
the case (Ex-PA/1) which he duly proved and also proved the formal            C
FIR (Ex-PA/2) recorded by ASI Harbans Singh. He thereafter prepared
the inquest report and sent the dead body for autopsy in the custody of
Head Constable–Kapur Chand (PW-5) and Constable Satpal (PW-10)
along with request memo (Ex-PD). He then states that on the next day
he visited the house of the deceased, prepared the rough site plan (Ex-       D
PK). He collected the utensils and milk and prepared the recovery memo
(Ex-PL). Thereafter, he went to the Civil Hospital where he was handed
over the parcel of viscera by constable Satpal along with other papers
given by PW-4 conducting the post-mortem and also the other articles
and clothes returned by PW-4. He deposited the case property with
Head Constable Darshan Singh at police station Kotwali. In his cross-         E
examination, the Investigating Officer states that he did not go to the
house of the appellant Rajbir Singh for house search on the same day
but visited there later on. He states that he did not find any container in
the house of the appellant. He also admits that he did not investigate
regarding purchase of poison by the appellant. He also admits that he         F
did not make any house search of the house of the informant. He then
states that Gursharan Singh (PW-2) had not stated the presence of Sheela
along with Rajbir and that they had taken the container inside the room
and that both of them had poured the milk. He then states that he cannot
say whether anyone can tamper with the milk during the intervening
period of 18th to 19th September. It is interesting to note that the          G
Investigating Officer says that when milk was boiled in his presence on
19.09.2000 when he visited the house of the informant, it was emitting
foul smell in great extent. He also stated that even the two witnesses
Manjit Singh and Harbans Singh (witnesses of recovery) stated that
there was pungent smell to a great extent. He also states that many           H
94             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A    other persons were purchasing milk from Rajbir Singh but none of them
     had complained about the quality of the milk. He also states that he did
     not arrest Rajbir Singh during investigation. He, however, denied that he
     did not arrest Rajbir Singh as there was no evidence against him. He
     also stated that the doctors in both the hospitals did not disclose to him
     that the deceased had vomited or was having loose motions.
B
           27. PW 8 Sub-Inspector Manjit Singh had arrested the appellant
     on 12.06.2001.
            28. PW-9 ASI Kuldeep Singh stated that he had taken into
     possession the pronote (marked ‘X’) on 16.07.2001 and that he had
C    recorded the statements of the marginal witnesses. In the cross-
     examination he states that he had not seen the original pronote and receipt;
     that he had no knowledge whether the payment had actually been made
     or not.
            29. PW-10 Satpal was accompanying the dead body for post-
D    mortem and also had delivered the viscera and parcel of the recovered
     utensils and milk to the chemical laboratory. In his cross-examination he
     had stated that he did not remember how many seals were affixed on
     the parcel. He further states that the parcel was received on 21.09.2000
     at 10-11 AM which he kept with him. In the night it was kept in the
     police station and that he had stayed at the police station overnight. It
E    was on 22.09.2000 that the parcels were delivered at the laboratory.
            30. PW-11 Constable Paramjit Singh has stated that he received
     a special report at 9.15 PM dated 18.09.2000 and on the next morning at
     07.00 AM he gave the special report to the Judicial Magistrate, Bathinda.

F           31. PW-12 Dr K.S.Brar, on the relevant date was posted as an
     Emergency Officer at the Children and General Hospital, Bathinda. He
     states that on the said day the deceased had come to the hospital with
     suspected case of poisoning. He informed the police and thereafter
     referred her to the Civil Hospital considering her serious condition. In
     the cross-examination he had stated that the phosgene gas smell was
G    coming from the mouth of the patient and he had given treatment to the
     patient regarding aluminium phosphide poisoning. He further states that
     the patient was vomiting but he did not remember whether she had passed
     motion or not. It was suggested to him that the deceased was never
     admitted to the hospital for treatment and that he was deposing falsely
     for covering up the delay at the instance of the police, which he denied.
H
               RAJBIR SINGH v. THE STATE OF PUNJAB                             95
                        [VIKRAM NATH, J.]

He also stated that he did not know about the body temperature of the          A
patient at the time of her arrival. He also did not produce the OPD
register as it was not summoned.
      32. It would be relevant to note that PWs 10, 11 and 12 were
examined after the prosecution had closed its evidence on 27.10.2004
and the statements of both the accused under Section 313 CrPC were             B
recorded on 10.11.2004.
       33. The Trial Court proceeded on the premise that the appellant
had not denied the execution of the pronote while discussing the motive.
This fact is apparently not correct in as much as the appellant in his
statement under section 313 CrPC recorded on 10.11.2004 had                    C
specifically denied not only borrowing of the money but also that he
never executed the pronote. The question as framed and the answer is
reproduced below:
         “Q: It is further in evidence against you that you had borrowed a
         sum of Rs. One Lac from father of PW-5 Gursharan Singh and            D
         had executed a pronote and receipt for the same on 01.01.2000.
         PW Gursharan singh was demanding amount from you and putting
         of the matter and agreed to pay amount on 18.09.2000. What
         have you to say about it?
         A: It is false evidence against me. I had never borrowed the said     E
         amount and I had never executed the said pronote.”
        34. Further the Trial Court did not take into consideration the time
gap from the alleged time of collecting the milk from the appellant till the
time it was administered and further the time the samples were collected.
It also did not give any importance to the post-mortem report and the          F
statement of Dr. Avtar Singh who had conducted the autopsy. The use
of compound organophosphorus has a homicidal purpose because of its
extremely strong pungent smell has also not received due attention by
the Trial Court. The High Court judgment was cryptic and evidence had
been only cursorily dealt with.
                                                                               G
       35. This is a murder case of circumstantial evidence by poisoning.
In a case of circumstantial evidence, the five golden principles as laid
down by this Court in the case of Sharad Birdhichand Sarda vs. State
of Maharashtra3 as stated in paragraph 153 of the report read as follows:

3
    (1984) 4 SCC 116                                                           H
96            SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A          “A close analysis of this decision would show that the following
           conditions must be fulfilled before a case against an accused can
           be said to be fully established:
           (1) the circumstances from which the conclusion of guilt is to be
           drawn should be fully established.
B          It may be noted here that this Court indicated that the
           circumstances concerned ‘must or should’ and not ‘may be’
           established. There is not only a grammatical but a legal distinction
           between ‘may be proved’ and ‘must be or should be proved’ as
           was held by this Court in Shivaji Sahabrao Bobade & Anr. v.
C          State of Maharashtra, (1973) 2 SCC 793, where the following
           observations were made:
               “Certainly, it is a primary principle that the accused must be
               and not merely may be guilty before a court can convict and
               the mental distance between ‘may be’ and ‘must be’ is long
D              and divides vague conjectures from sure conclusions.”
           (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,
E          (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
F
           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.”
            36. Before laying down the five aforesaid principles, Justice Fazal
     Ali speaking for the Court in paragraph 152 extracted a paragraph from
G    the case of Hanumant vs. State of Madhya Pradesh as stated by Mahajan,
     J. Paragraph 152 is reproduced hereunder:
           “Before discussing the cases relied upon by the High Court we
           would like to cite a few decisions on the nature, character and
           essential proof required in a criminal case which rests on
H
            RAJBIR SINGH v. THE STATE OF PUNJAB                                 97
                     [VIKRAM NATH, J.]

      circumstantial evidence alone. The most fundamental and basic             A
      decision of this Court is Hanumant v. The State of Madhya
      Pradesh, AIR 1952 SC 343,. This case has been uniformly followed
      and applied by this Court in a large number of later decisions up-
      to-date, for instance, the cases of Tufail (Alias) Simmi v. State of
      Uttar Pradesh,(1969) 3 SCC 198 and Ramgopal v. State of
                                                                                B
      Maharashtra, (1972) 4 SCC 625. It may be useful to extract what
      Mahajan, J. has laid down in Hanumant’s case (supra):
                 “It is well to remember that in cases where the evidence
          is of a circumstantial nature, the circumstances from which
          the conclusion of guilt is to be drawn should in the first instance
          be fully established and all the facts so established should be       C
          consistent only with the hypothesis of the guilt of the accused.
          Again, the circumstances should be of a conclusive nature and
          tendency and they should be such as to exclude every
          hypothesis but the one proposed to be proved. In other words,
          there must be a chain of evidence so far complete as not to           D
          leave any reasonable ground for a conclusion consistent with
          the innocence of the accused and it must be such as to show
          that within all human probability the act must have been done
          by the accused.””
      37. These golden principles have remained unaltered and are still         E
followed. One of the issues to be considered in the present case would
be as to whether the chain of evidence was so complete so as not to
leave any reasonable ground that there could be any other hypothesis
except the one put forward by the prosecution.
      38. With respect to the case of poisoning, this Court in the case of      F
Sharad Birdichand Sarda (supra) further laid down four important
circumstances for recording a conviction in paragraph 165 which is
reproduced hereunder:
      “165. So far as this matter is concerned, in such cases the court
      must carefully scan the evidence and determine the four important         G
      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,
                                                                                H
98            SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A          (3) that the accused had the poison in his possession,
           (4) that he had an opportunity to administer the poison to the
           deceased.”
            39. The principles laid down in the case of Sharad Birdichand
     Sarda(supra) have remained unaltered and even as recently as
B    11.08.2022 this Court in Criminal Appeal No.25 of 2012, Ram Niwas
     vs. State of Haryana, has relied upon the same with approval. It is also
     well settled that suspicion, howsoever strong it may be, cannot replace
     proof beyond reasonable doubt.
            40. In the background of the above legal position we now proceed
C    to analyze the evidence and draw our conclusions.
            41. The motive set up by the prosecution that appellant had taken
     a loan of Rs. 1 lakh and had executed a pronote as well as receipt is
     denied by the appellant. In his statement under section 313 CrPC, there
     is specific denial of borrowing any money and also executing of pronote.
D    The defence set up in the cross-examination of PW-1, PW-2 and PW-7
     as also the statement under section 313 of CrPC was that the informant
     was carrying on a business of Committees of which the appellant was a
     member and there was an amount due from the informant to the appellant.
     Running of business of Committees by the informant; there being
E    defaulters; there being financial loss is admitted. According to the
     appellant, amount was due to him from the informant and that he had
     been falsely implicated to deprive him from recovering the same from
     the informant. A case of false implication, therefore, cannot be ruled
     out.

F           42. Reliance placed upon the pronote and the receipt is also not
     proved in as much as the original was not produced, rather a false plea
     was raised that it was filed before the Civil Court, which stands belied
     by the Ex-D/1 filed by the appellant, and secondly, no attesting witness
     was produced by the prosecution.
            43. The next question which arises for consideration is as to
G
     whether mixing of the poisonous compound in the milk was done by the
     appellant or it could have been done by someone else, and for the same
     there are two windows. First, the time between the collection of milk
     from the appellant on the morning of the fateful day, till the time it was
     consumed by the deceased, was about five hours. Second window being
H    the time after consumption of milk at around 12:30 PM on the fateful
               RAJBIR SINGH v. THE STATE OF PUNJAB                            99
                        [VIKRAM NATH, J.]

day, till the next day when the Investigating Officer recovered and took      A
into possession the sample of milk and the utensils, which had a gap of
about 20-24 hours. Total time gap from the time milk was collected from
appellant till the samples were collected is more than 24 hours. Chances
of mixing poison during this period cannot be ruled out. Defence had
cross-examined both PW-1 and PW-2 on this aspect.
                                                                              B
       44. The next question which arises for consideration is whether
the death of deceased was caused due to consumption of
organophosphorus, a poisonous compound or for any other reason.
Organophosphorus has a strong pungent smell. This smell could not be
sensed by the informant, his son as also the deceased. The milk which is
said to be adulterated with the poison was taken out from the refrigerator,   C
transferred into a pan for boiling and thereafter given to the deceased. If
it actually had organophosphorus in it the smell would have filled up the
room. The deceased being a healthy woman aged 45 years would not
have consumed it if the pungent smell was coming from the milk. Even
the informant (PW-1) did not sense any foul smell from the milk while         D
boiling it. It would be worthwhile to refer to a judgment of this Court in
Jaipal vs. State of Haryana4. It was a case of aluminium phosphite
(sulphas) which also has a strong pungent smell. It is observed that such
compounds are generally used for suicide rather than in a case of
homicide. Further, Dr. Avtar Singh (PW-4) who had conducted the autopsy
has clearly stated in both his statements that he did not find any smell of   E
organophosphorus coming out of the body. The first statement was
recorded on 08.04.2002 and the second statement was recorded on
03.11.2003, in both the statements he had stated that he had not seen
any change in colour of nails as also in the body, which would have been
a common symptom in the case of poisoning. He had also deposed that           F
all the organs of the body were healthy. Even though he admits in the
case of poisoning by organophosphorus there would be shrinking of the
muscles, however, there was no squeezing or shrinking in the outside
muscles of the abdomen, which were healthy. According to him, there
were no symptoms of poisoning noticed during the autopsy despite the
fact that it was reported in all police papers about the case being that of   G
poisoning. PW-4 must have been careful in observing whether any
symptoms of poisoning were present in the body. This may lead to an
inference that death could have been caused by some other reason but

4
    (2003) 1 SCC 169                                                          H
100               SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A     not poisoning. In so far as the chemical examination report is concerned
      it could be a case of tampering with the samples for the reasons discussed
      above and hereinafter.
              45. The presence of organophosphorus in the milk, utensils, and
      the viscera is proved by the Reports of Chemical Examiner dated
B     31.01.2001 (Ex-PF) and 05.02.2001 (Ex-PG). The sample was received
      in the laboratory on 22.09.2000, whereas as per the two reports, it was
      received by the Assistant Chemical Examiner, Dr. Sandeep Kakkar, on
      22.11.2000 from one Dr. O.P. Goel after his suspension, not in a sealed
      form, but as an open case. This note “This opened case, received by me
      from Dr. O.P. Goel on 22.11.2000 after his suspension.” is typed out in
C     both the reports after an overwriting /cutting is made by using alphabet
      “X” continuously. Ex-PF mentions that there were three sealed jars in
      the sealed parcel which contained parts of organs. This Ex-PF does not
      mention of any fourth jar, whereas as per the post- mortem report and
      the statement of Dr. Avtar Singh (PW-4), four sealed packets were
D     sent, three containing parts of organs, and one containing the saline
      solution. The result refers to presence of organophosphorus compound
      in the three sealed jars and it also refers to no poison found in the contents
      of fourth jar. The fourth jar does not find mention in the description of
      contents in Ex-PF. The other report, Ex-PG of the Assistant Chemical
      Examiner, Dr. Sandeep Kakkar, is with respect to the recovery made by
E     the Investigating Officer on the next day of the incident, which included
      milk, boiled and unboiled and the utensils. This also had a similar cutting,
      and a note attached that it was received as an open case from Dr. O.P.
      Goel on 22.11.2000 after his suspension. The result as reported is that
      organophosphorus compound was found in contents of all the Exhibit
F     Nos. (i) to (vi).
            46. The following doubts arise from the perusal of the reports of
      the Chemical Examiner:
             i.   That samples were not handed over to the Assistant Chemical
                  Examiner who had to conduct the analysis in a sealed form.
G
             ii. The cutting, and a fresh note regarding parcels being open
                 also creates a doubt.
             iii. Chances of tampering with the samples could not be ruled
                  out.
H
               RAJBIR SINGH v. THE STATE OF PUNJAB                             101
                        [VIKRAM NATH, J.]

       47. The Investigation Officer admits of having made no effort to        A
find out as to whether or not the appellant was in possession of the
poisonous substance said to be mixed in the milk. The Courts below
have proceeded on the assumption that organophosphorous was available
in every household.
       48. From the above discussion, it is more than evident that chain       B
of evidence has many missing and weak links. None of essential
ingredients to record conviction in a case of circumstantial evidence and
that of poisoning case are made out. Prosecution has thus failed to bring
home the guilt.
       49. Taking an overall view of the evidence on record, we are of         C
the firm view, that prosecution has not established the charge beyond
reasonable doubt so as to record conviction under Section 302 of IPC.
The appellant deserves to be extended benefit of doubt. Accordingly,
the appeal is allowed, the judgments of the High Court and the Trial
Court are set aside, the appellant is acquitted. He is already on bail. His
bail bond is cancelled and sureties are discharged.                            D


Divya Pandey                                                 Appeal allowed.


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