STATE OF HLMACHAL PRADESHversusRAJIV JASSI

                             [2016] 2 S.C.R. 468



A                   STATE OF HlMACHAL PRADESH
                                      v.
                                RAJIV JASS!
                     (Criminal Appeal No. 771 of2005)
B                              MAY06,2016
           (V. GOPALA GOWDA AND ARUN MISHRA, JJ.]
            Penal Code, 1860: s.302 - Conviclion based on circumstantial
    evidence and imposition of life imprisonment ·· Murder of pregnant
    11·ife by adminislering poison - Conviction by trial court. set aside
c   by appellate court - SI ale~· appeal against acquillal - Held: Accused
    failed to explain the injuries on the person of the victim-deceased
    including swelling on the ll'omb when admittedly he was in the
    company of the deceased - Injury on the front part of body was
    strong circumstance to show that deceased was subjected to violence
D   b~fore she succumbed due to poisoning · There was ovenvhelming
    evidence indicating that the behaviour of the accused IOll'ards the
    deceased was not proper and he used to freque111/y beat her - The
    conduct of accused in not opening !he door when neighbours came
    hearing the shrieks of deceased and in not /liking her to hospital
    also pointed towards guilt of the accused -· Neighbours stated that
E
    on being asked what had happened. deceased raised the hand
    to111ards the accused ~ Moreove1~ there lVas evidence to sho1v
    purchase of Nivan poison by accused few days before the incide111
    - The conduct of the accused and gesture of the victim at the crucial
    time as projected in the case. medical evidence. evidence as to
F   purchase ofpoison unerringly poinl toll'ards !he guilt of the accused
    - Order of conviction passed by trial courl 11•as based upon proper
    appreciation of evidence, the circumstances found established by
    trial court has been unnecessarily doubted and brushed aside lightly
    by the High Court - Order of conviction restored.
G         Sentence/Sentencing: Plea of leniency - Murder of pregnant
    wife - Plea that son aged 17 years old residing with the accused -
    Held: That cannot be a ground so as to sho11• any leniency in such
    kind of offence. particularly when the accused had not cared and
    caused death of his wife who was pregnalll, carrying 8 months child
    whose foetus was recovered from her womb He had kicked the
H
                                     468
      STATE OF HIMACHAL PRADESH v. RAJIV JASS!                        469



womb also - In the circumstances, accused is not entitled to any       A
lenient treatn1ent.
     Allowing the appeal, the Conrt
      HELD: 1. The High Court unnecessarily doubted the post
mortem report which recorded as many as seven injnries. The
said nature of the injuries indicated that they could not have been    B
caused by convulsions. The High Court unnecessarily doubted
the deposition of the autopsy surgeon who clearly opined that
the nature of injuries indicated positively the administration of
poison forcibly to the victim. Such injnries could be caused while
administering poison forcibly when victim was trying to .save          c
herself from that. In the cross-examination, the doctor PW-2,
has also stated that it could not be a suicidal case. However, on
a suggestion being made to PW-2 and PW-3 that it could be a
case of voluntary consumption of poison by the victim to commit
suicide, obviously the doctors were not able to deny the said
suggestion as they were not eye witnesses. Moreover they were          D
not .supposed to be an arbiter on this issue whether the victim
had taken the poison herself. Their objective opinion stood writ
large that considering the nature of injuries it could be a case of
forcible poisoning and in the process accused had caused injuries
while deceased bad struggled. Thus the approach of High Court          E
cannot be said to be of objective assessment of evidence. [Para
14] [480-H; 481-A-E]
      2. The accused was admittedly in the company of the
deceased. It was for him to explain so many injuries fonnd on the
person of the deceased as to how they were caused including            F
swelling in womb. He totally failed to explain them. It was not
stated by him that the injuries were caused to the deceased dne
to convulsions. It was not stated by him that she ever fell down
dnring convulsions, if any. The injnries on her lips, chin, throat
and neck etc. as held by the trial conrt, were cansed while
administering the poison forcibly is a strong circumstance against     G
the accused which cannot be brushed aside lightly. Injuries were
on the front part of the body which indicated that the deceased
was subjected to violence before she succumbed due to poisoning.
Section 106 of the Evidence Act requires a person having special
knowledge of the fact to explain the same. Failure to explain          H
470            SUPREME COURT REPORTS                 [2016] 2 S.C.R.



A     that the deceased was unconscious position coupled with other
      evidence is a grave circumstance which militates against such a
      person. [Para 15] [481-F-H; 482-A-B]
         3. There was overwhelming evidence on record indicating
   that the behavior of the accused towards the deceased was not
 B proper and he was turned out of the house by landlord at Chait.
   The previous landlord of the accused clearly stated that under
   the influence of liquor, accused used to frequently beat the victim
   and quarreled with her due to that he had asked the accused to
   vacate the house. Thereafter the accused had shifted in the nearby
   house in which the incident has taken place. The statements of
 c PWs.6 and 11 also indicated that there was c'onsistent ill-
   treatment and incidents of beating and thrashing caused to the
   victim by the accused. There was nothing to doubt the statement
   of brother of the deceased namely PW-8 who was also given
   beating on the night of the incident. PW-8 stated that the accused
 D had  given kick-blows on the abdomen of the victim while she
   was carrying in her womb pregnancy of 8 months, and the factum
   of pregnancy stood proved by the post mortem report that the
   foetus aged 8 months was recovered from the womb of the victim.
   PW-3 found abdominal swelling of the victim while conducting
   the autopsy which was obviously caused by the kick blow given
 E by the accused. The statement of PW-8 found medical
   corroboration. There was nothing to doubt the statement of PW-
   8 that the accused had also caused injury to him in the form of
   multiple scratches over neck and face. PW-1 has proved the
   injuries found on the person of PW-8 and has proved the injury
 F report. The High Court has erred in holding otherwise. [Para
   16] [482-C-G]
         4. Yet another circumstance which casts a grave doubt on
   the accused is that he was fully aware that the condition of the
   victim was precarious and she was struggling for life due to organo
 G phosphorous poisoning. In spite of that initially when the
   neighbours came hearing the shrieks of the victim, he did not
   open the door immediately and opened theaoor only after five
   minutes. Even if same is ignored, there was absolutely no reason
   for the ·accused to state to the neighbours when they asked him
   to take victim to hospital that nothing had happened to the victim
 H and it was his family affair and she would be all right very soon.
      STATE OF HIMACHAL PRADESH v. RAJIV JASS!                       471



He intentionally delayed taking the victim to the hospital and it     A
was only when the Police came that victim was taken to the
hospital. In case the accused was innocent he would have taken
the victim to the hospital immediately and would not have declined
the request of the neighbours and delayed her taking to the
hospital and ought not to have waited for arrival of the police.
                                                                      B
The High Court erred in holding that accused accompanied victim
to hospital as such that circumstance is iu his favour. Thus the
conduct of the accused of not taking the victim to the hospital
points a finger of doubt upon him. The overall circumstances
unerringly point towards the guilt of the accused. Accused was
well-aware that the victim was suffering from organo phosphorous      c
poisoning, the bottle was also lying open. There was a bad odour
of 'nuvan' poison in the room. Domestic articles and luggage were
scattered in the room and the child was found crying. PW-10
clearly stated that on being asked what had happened, she raised
her ·hand t<>wa,rds the accused, her husband. Similar was the
                                                                      D
statement of PW-8 and PW-9. [Paras 17, 18] (482-H; 483-A-F]
       5, Apart from that, the High Court bas discarded the
evidence of PW-13, who is an independent witness. He has stated
that 14-15 days before the accused Jiad purchased Nuvan poison
from his shop for a consideration of Rs.SO/- ou the pretext of
killing flies etc. The trial court held that in summers there was E
no necessity to purchase a deadly poison for killing the flies.
Accused intended to kill the victim and purchased the poison to
cause the end of life of victim. The High Court did not believe
the statement of PW-13 on the ground that the accused being a
doctor and posted at different places could have purchased a F
better poison of sophisticated nature from elsewhere, he wonld
not have created the evidence against him. The High Conrt
brushed aside the evidence of pnrchase of Nuvan for no good
reason. Sometime the facts are stranger than fiction. There was
absolutely nothing to doubt the statement of PW-13 for purchase
of said Nuvan poison and when it was found in the house, it was G
purchased either by the victim or the accused. There was nothing
to doubt that it was purchased by the accused and it was fonnd in
the room and due t,o this poison only the victim succumbed to
death. The fact of giving salty water by the accused to the victim
by itself is not enough to abs<>lve him of the guilt. Apart from .H
472            SUPREME COURT REPORTS                    (2016] 2 S.C.R.



A  that the administering of poison forcibly was supported by medical
   evidence in the form of injuries which were found on the front
   side shows sign of struggle by deceased to save herself in the
   said process. These injuries could not have been caused by
   convulsions and the overall conduct of the accused and the
   gesture of the deceased in pointing her hand towards her husband
 B
   as the person responsible for her condition, delay caused by the
   accused in taking the victim to the hospital knowing fully well
   the kind of deadly poison organo phosphorous unerringly points
   towards his guilt and the chain of circumstances is complete.
   [Paras 19, 20) (483-H; 484-A-F)
 c          6. Four circumstances are to be examined before recording
      a conviction. (i) There was a clear motive for the accused to
      administer poison to the deceased, (ii) the deceased died of
      poison said to have been administered, (iii) that the accused had
      poison in his possession and (iv) that he had an opportunity to
 D    administer the poison to the deceased. The prosecution alleged
      that the husband administered the poison to her whereas defence
      took the plea that there was a strong possibility of her having
      been ill-treated, being sensitive and impressible, she might have
      committed suicide out of depression and frustration arising from
      an emotional upsurge. The said tests stand satisfied in the instant
 E    case and the prosecution has proved the case beyond periphery
      of doubt. The conduct of the accused and gesture of the victim at
      the crucial time as projected in the case, medical evidence,
      evidence as to purchase of poison unerringly point towards the
      guilt of the accused. (Para 21 J (484-G-H; 485-A-B)
 F        7. The plea of respondent-accused that the child now 17
   years old and is residing with the accused, as such a lenient view
   should be taken cannot be a ground so as to show any leniency in
   such kind of offence, particularly when the accused had not cared
   and caused death of his wife who was also a doctor and at the
 G same time she was pregnant, carrying 8 months male child whose
   foetus was recovered from her womb. He had kicked the womb
   also that is why swelling in womb was found. In the circumstances,
   accused is not entitled to any lenient treatment as it can only be
   within legal parameters. The High Court gravely erred in
   reversing the well-reasoned judgment of conviction and order of
 H sentence recorded by the trial court. [Paras 22, 23) [485-C-E]
      STATE OF HIMACHAL PRADESH v. RAJIV JASS!                              473



      C.S.D. Swami v. The State AiR 1960 SC 7: 1960                          A
      SCR 461; PN. Krishna Lal & Ors. v. Govt. of Kera/a
      & Am: 1995 Supp (2',.SCC 187: 1994 (5) Suppl. SCR
      526 ; Sidhartha Vashisht @ Manu Sharma v. State
      (N.C.T. of Delhi) AIR 2010 SC 2352: 2010 (4) SCR
      103 - relied ou.
                                                                             B
      Sharad Birdhichand Sarda v. State ()/'Maharashtra AIR
      1984 SC 1622:1985 (1) SCR 88 - referred to.
                         Case Law Reference
      1960 SCR 461                       Relied on.       Para 15
                                                                             c
      1994 (5) Suppl. SCR 526            Relied on.       Para 15
                                          (


      2010 (4) SCR 103                   .Relied on.      Para 15
      1985 (1) SCR 88                     Referred to.    Para 21
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
                                                                             D
No. 771 of 2005
     From the Judgment and Order dated 09.08.2004 of the High Court
ofHimachal Pradesh at Shim la in Criminal Appeal No. 10 of2002
       Suryanarayana Singh Sr. Addi. Adv., Ms. Pragati Neekhra, Adv.,
with him for the Appellant.                                                  E
      Ms. Jaspreet Gogia, Adv., for the Respondent.
      The Judgment of the Court was delivered by
       ARUN MISHRA, J. I. The State is in appeal as against the
reversal of the judgment of the trial court acquitting the respondent for
                                                                             F
commission of the offence under section 302 IPC by committing murder
of his wife by way of administering poison. The respondent was imposed
life imprisonment and fine ofRs.5,000 by the trial court which has been
reversed by the appellate court.
       2. The prosecution case in brief is that the respondent Dr. Raj iv
                                                                             G
was married to Dr. Suman Lala, daughter of Ram Kishan, PW9. The
marriage was performed on 25.4.1998. The incident took place on
26.5.2000. At the relevant time deceased was posted as Dental Surgeon
at Civil Hospital, Chai I, district Solan; whereas the accused was posted
as Medical Officer in Primary Health Centre, Gharuan in district Ropar,
State of _Punjab.                                                            H
474             SUPREME COURT REPORTS                         (2016] 2 S.C.R.



A        3. Prosecution has alleged that the relationship between the
  deceased and the accused became estranged due to demand of dowry
  and excessive drinking habit of accused. Under the influence of liquor
  he used to beat the deceased. On 23.5.2000 Anil Kumar, PW 8 brother
  visited the deceased at Chail and stayed with her. In the intervening
  night of 25'h and 26'" May, 2000 the accused reached Chail where
B
  deceased was residing. He was drunk and started abusing, kicking and
  beating the deceased. When Anil Kumar tried to intervene he was also
  beaten by the accused and was turned out of the house. On 26.5.2000 at
  about 3 a.m., Surender Kumar, PW 5 came out for urination when he
  heard the shrieks and cries of the deceased and extreme weeping of her
c child. The deceased was crying "Give me salty water. I do not want to
  die." Surender Kumar went to the house of the deceased. It was closed
  from inside. He informed Ved Prakash, PW 4 Ex-President of Chail
  Gram Panchayat as well as Om Prakash PW 7. All three of them went
  to the house of the deceased. Ved Prakash knocked the door of the
  house which was bolted from inside. None opened the door for sometime,
D
  after about 5 minutes door was opened by the accused. On entering the
  room, PWs.4, 5 and 7 smelt poisonous odour in the room. The articles in
  the room were scattered. The deceased was lying on the bed having
  bruises and contusions on her face. Water was splashed on the bed as
  well as on the floor.of the room. The clothes of the deceased were also
E drenched. PW 5 asked the accused to take the deceased to the hospital
   immediately. However the accused replied that there was no necessity
  therefor and that deceased would be all right very soon.
             4. Prosecution has alleged that in the meantime Dayal Singh, PW
      6, Anil Kumar, PW-8 and Shiv Kumar, PW-I 0 also arrived. They noticed
 F    the condition of the room and also the precarious and deteriorating
      condition. of the deceased. When they asked the accused what had
      happened, he retorted that it was his private life and they need not bother.
      The accused refused to take the deceased to the hospital on the pretext
      that nothing had happened and he himself being a docforcould look after
      her. PWs.6, 8 and I 0 also smelt poisonous odour in the room. Deceased
 G    was crying that she did not want to die and she be saved. On being
      asked what had happened, she raised her hand towards the accused.
      Om Prakash, PW-7 informed the police at about 4.30 a.m. On that Biru
      Ahmad, PW-17 entered the information in the daily diary and proceeded
      towards the spot. He found the deceased lying on the bed in an
 H    unconscious position. Dr. O.P. Choudhary, PW-2, examined the deceased
       STATE OF HIMACHAL PRADESH v. RAJIV JASS!                                 475
                   [ARUN MISHRA, J.]

at about 6 a.m. and noted the patient was semi-conscious with history of         A
consumption of poisonous substance. He also noted (i) contusion reddish
in colour over the lateral side of the right eye brow with swelling present
of the size of 7 cm. x 5 cm. and (ii) both lips were swollen. It was also
noted that complete examination of the body could not be done because
patient was in serious condition. B.P. was not recordable and Pupils
                                                                                 B
bilateral circular, pin point not reacting to light.
       5. PW-2 administered the initial treatment. He carried out Gastric
lavage first with saline solution and then with ordinary tap water.
Thereafter he referred the deceased to I.G.M.C. Hospital, Shimla at
about 7 a.m. for expert opinion and further treatment. Deceased died at
IGMC Hospital, Shim la on the.same day in the evening of 26.5.2000
                                                                                 c
which was informed to the police. Post mortem was conducted by Dr.
Piyush Kapila, PW-3 in association with Dr. V.K. Mishra, Assistant
Professor, Forensic Medicine. As to the cause of death it was opined
that the deceased had died due to asphyxia secondary to the organo
phosphorus poison. Following ante-mortem injuries were found on the              D
person of the deceased :
      "(i) I 0 cm x 6 cm bruise on the right periorbital area with swelling
      of right eye lid with two contentric nai I scratches abrasions, one
      on forehead and other on upper eye lid. Bluish in colour.
       (ii) 9 cm x 4 cm big contusion, bluish in colour, on intraorbital area    E
       and cheek on left side.
       (iii) Y2 cm x y, cm contusion on the inner side of lower lip towards
       left side mid line with respect to left lateral incisor (lower). Blue
       in colour.        ·
       (iv) 8 cm x 7 cm abraded contusion over chin and submental area           F
       in midline. Bfuish·in colour.
       (v) 11 cm x 5 cm multiple small abrasions over neck and right of
       upper chest in front 3 cm lateral to sterno calvicular joint.
       (vi) I 0 cm x 4 cm contusion in infra-axillary area in mid axillary
       line. Blue in colour.                                                     G

       (vii) 7 cm x 5 cm large purple coloured pach over dorsum ofright
       hand with multiple needle prick marks (Iatrogenic)."
In addition it was found in the post mortem report that there was a dead
male foetus 40 cm. in length with head circumference of 29 cm. with
                                                                                 H
476              SUPREME COURT REPORTS                         [2016] 2 S.C.R.


A     body weight of 1300 gms. present in the uterus of the deceased and he
      calculated the age of foetus as 8 months.
             6. On 27.5.2000 Anil Kumar, PW-8 lodged a report at the Police
      Station mentioning the harassment caused by the accused to the deceased
      for dowry. It was mentioned that he talked with in-laws and was informed
 B    that the accused was coming to Chai! in the evening. In the midnight al
      about 12, accused reached Chai! in his Santro car. He was under the
      influence of liquor and was carrying a bottle of liquor in his hand and
      started abusing them and gave a kick-blow on the abdomen of the
      deceased who was pregnant. When he tried to stop, accused pounced
      upon them due to which he received scratches and swelling on face.
c     Then his sister asked him to leave. Thereafter he went to the house of
      his friend Bablu. Later on two/three persons came. They called Bablu
      and enquired about him and told that the condition of his sister was not
      good. Then he rushed to the residential quarter of his sister and found
      accused Raj iv who opened the door and the condition of his sister was
 D    precarious. His sister was having a son aged 13 months. He suspected
      that his brother-in-law Rajiv had forcibly administered poison with
      intention to kill his sister. Death had occurred due to mal-treatment by
      the accused and action be taken against him.
             7. The investigation revealed that 14-15 days before the
 E    occurrence the accused had purchased organo phosphorus sold under
      the trade name of"NUVAN" from Sanjay Kumar, PW-13, a shopkeeper
      at Chai I on the pretext that he required the same to kill the flies. It was
      also alleged by the prosecution that on the fateful day accused forcibly
      administered poison to the deceased in order to kill her. During the course
      ofadministration of poison deceased struggled as such sustained injuries
 F    on her face, lips and neck. Deceased was being harassed and treated
      with cruelty on account of demand of dowry by the accused and his
      parents. Chargesheet was filed under sections 302, 304-8, 314 and 498A
      read with section 120-B IPC.
            8. The accused abjured the guilt and pleaded innocence. The
 G    prosecution in the course of trial examined 18 witnesses. Accused in his
      statement under section 3 13 Cr.PC did not deny the factum of the
      deceased having died due to poison. It was stated by him that the
      deceased had disclosed to him that she had consumed some drugs and
      had asked him to give her salty water. Deceased was under convulsion
      due to some drug. He had given her water to vomit. He had taken the
 H
       STATE OF HIMACHAL PRADESH v. RAJIV JASS!                                477
                   [ARUN MISHRA, J.)

deceased firstly to Primary Health Centre at Chai I and then to l.G.M.C.        A
Hospital at Shimla. Deceased was a sensitive lady. His relationship with
the deceased was cordial. He examined 3 witnesses in defence.
      9. The trial court acquitted the parents, however convicted the
respondent husband for commission of the offence under section 302
I~.                                                                             B
       I 0. The trial court came to the conclusion that the circumstantial
evidence brought on record contained positive proof, credible sequence
of events, factual truth linking the accused with commission of offence
by means of forcible administration oforgano phosphorus poison to the
wife. The trial court based conviction upon the following circumstances         c
       (i) Relied upon the statements of PWs.6 and 11 regarding consistent
mal-treatment, beating and thrashing by the accused to the victim. (ii)
Landlord Dayal Singh has stated that while in a state of intoxication
acc1;sed used to beat the victim and quarreled with her. On that he had
~:;ked him to vacate the house. Then the accused had shifted to the             D
house in question. (iii) Accused was maintaining his criminality
consistently. The conduct of the accused on the fateful night indicates
that he came to the house and started beating and hitting Anil Kumar
PW-8 and his deceased sister. (iv) He kicked on the abdomen of the
victim though she was pregnant. Abdominal swelling was found by the
Atopsy Surgeon Dr. Piyush Kapila, PW-3. (v) On the fateful night the            E
accused had turned out the brother of the deceased PW-8 from the
house at Chai! after beating him. PW-8 suffered three injuries in the
form of multiple scratches over neck, chin, face and other parts of the
body. (vi) the accused was present in the room of the deceased. (vii)
The nature of.injuries which was found on the person of the deceased            F
were ante-mortem. All injuries were on the front portion of the body and
could be caused while she was lying on the bed. Such injuries could be
found in cases of smothering and strangulation and forci~le administration
of poison. The injuries suffered by the victim on her lips, chin, throat and
neck could be caused by the accused while administering poison forcibly.
(viii) The accused did not open the door immediately but opened it after        G
considerable time of five minutes. (ix) The accused did not take the
deceased to the hospital and stated that nothing had happened to her and
that she would be alright very soon. It was the duty of the accused being
a doctor to immediately rush her to the hospital. The accused wanted
the victim to breathe her last and thus delayed taking her to the hospital.     H
478             SUPREME COURT REPORTS                        (2016] 2 S.C.R.



A     lt was Rot a case of self-poisoning considering the nature of injuries
      found on the deceased. (x) The domestic articles and luggage were
      scattered in the room. Child was crying and his small empty bottle which
      contained the organo phosphorus poison was found lying there. Its cap
      used as stopper was also lying and a pungent poisonous odour was present
      in the room. (xi) When the witnesses asked what had happened to her,
 B
      the victim had raised her hand towards the accused. Thus the victim
      raised her accusing finger towards the culprit that is.her husband. (xii)
      The accused had purchased the organo phosphorus from the shop of
      Sanjay Kumar, PW-13, I 4-15 days before the date of the incident for a
      sum of Rs. 50/-. There was no necessity for the accused to purchase
 c    the same to kill flies. He purchased the same with design to cause end
      of the life of the victim. (xiii) Considering the nature of injuries found
      on the body of the victim they could not have been caused by convulsion.
          11. The High Court has acquitted the.respondent by the impugned
  judgment and order on the ground that the circumstances are not of
D conclusive nature. Chain of circumstances is not complete so as to
  unerringly point to the guilt of the accused. Though Dr. O.P. Choudhary,
  PW-2 stated that injuries indicated positively the administration of
  poisonous substance forcibly to the victim, however, )1e could not say
  whether the deceased had consumed the poison herself to commit
  suicide. Similar was the statement of Dr. Piyush Kapila, PW-3. His
E statement was also disbelieved on the ground that he could not rule out
  the possibility of the victim committing suicide. by herself. The first
  information given to the police was that the victim had consumed some
  poisonous substance. Initially the offence under sections 306 and 498A
  was registered. Dr. Chaudhary, PW-2 had noticed only two injuries on
F the person of the deceased. However, the injuries increased from 2 to 6
   in the post mortem report submitted by Dr. Piyush Kapila, PW-3. The
  possibility of the injuries could be caused by convulsions was not ruled
  out. Possibility of injuries caused by convulsions is strengthened from
  the fact that number of ante-mortem injuries had increased from the
  period the victim was examined initially and the post mortem was
G conducted. The prosecution has failed to prove that poison was in
   possession of the accused. Since the trial court has not convicted the
   accused under section 49&A or section 304-B, lPC, it could not be said
  that the deceased was being ill-treated or harassed with cruelty on
   account of dowry. The evidence of shopkeeper Sanjay Kumar, PW-13
H from whose shop accused allegedly purchased poison, is not reliable.
          STATE OF HIMACHAL PRADESH v. RAJIV JASS!                               479
                      rARUN MISHRA, J.l

    Accused is a medical doctor. He has knowledge of poison. He would A
    not create evidence against him by purchasing poison from Chai I itself.
    Accused would not choose poison like organo phosphorous i.e.,
c   ~NUVAN' a pesticide which has a pungent smell like kerosene to kill the
    victim. He would have purchased better poison. The accused had
    administered salty water in order to enable the victim to vomit. This
                                                                             B
    indicates that gastric lavage was carried out by the accused to save the
    deceased. He had accompanied her to Chai! hospital and then to hospital
    at Shimla. The victim did not name the accused as responsible for
    administering poison and there was no occasion·for her merely lifting
    her hand towards the accused. The conduct of brother of the deceased
    namely Anil Kumar, PW-8 is not free from doubt. The clothes of the · C
    deceased have not been produced to show that there were stains and
    traces of poison. When two views are possible one favourable to the
    accused is required to be adopted. Hence conviction has been set aside.
           12. It was submitted by learned counsel appearing on behalf of
    the appellant that the High Court has illegally reversed the judgment and     D
    onler of conviction passed by the trial court. Chain of circumstances is
    complete and proves the guilt to the hilt. Purchase of poison by the
    accused stands established. It was in poc:ession of the accused stands
    established. lt is not disputed that the deceased died due to poisoning.
    The accused had treated the victim with utmost cruelty, kicking her in
    the womb when she was carrying 8 months' child. Nature of injuries            E
    found on deceased indicates that it was a case of forcible administering
    poison to the victim while she has resisted. Accused in his statement
    under section 313 Cr.P.C. has not explained the injuries found on the
    person of the deceased. Dr. Chaudhary, PW-2, has stated that he could
    not make full examination of the body considering the precarious condition    F
    ofthe deceased, thus failed to mention all ante,mortem injuries found on
    the person of deceased. The post mortem report which records all the
    ante-mortem injuries has been unnecessarily doubted. It was not possible
    for the doctor to answer to the suggestions whether the victim had
    consumed the poison herself, it was not for them to state so. What was
    relevant as to their opinion they had stated that the nature of injuries      G
    indicated that she was administered the poison forcibly. The conduct of
    the accused also indicates that he did not take the victim to the hospital
    immediately and delayed it. He being a doctor knew the consequences
    of organo phosphorus poisoning and in spite of that he did not take the
    victim to the hospital despite requests being made by various witnesses.      H
480              SUPREME COURT REPORTS                       [2016] 2 S.C.R.



A     The police had taken the victim to the hospital. On being enquired by the
      eye-witnesses what has happened, victim had raised her hand pointedly
      towards the accused as she was in a precarious condition. Thus the
      accused did not take her to hospital immediately and ensured that she
      dies. The various circumstances found established by the trial court,
      unflinchingly and unerringly pointed towards the guilt of the accused.
B
              13. On the other hand, learned counsel appearing on behalf of the
      respondent has submitted that two views are possible in the case. The
      High Court as such has rightly given the benefit to the accused. Injuries
      were caused to the deceased while she was having convulsions. The
      witness Om Prakash PW-7 has stated that the deceased was trembling
c     and her condition was critical. She was writhing in pain, thus possibility
      of deceased sustaining the injuries while she was under convulsions could
      not be ruled out. Modi 's Medical Jurisprudence indicates that one of the
      symptoms after taking organo phosphorous poison can be convulsion
      also. The gastric lavage was given by the accused which is supported
D     by the evidence of PWs.4, 5 and 7, they have stated that the bed on
      which the deceased was lying was wet and water had been splashed on
      the bed as well as on the floor of the room. As the accused was in the
      process of giving gastric lavage, he took time to open the door. The
      deceased might have scratched her face and neck as itching and irritation
      which take place due to poisoning. No DNA test was conducted to
 E    prove that the nail scratches on the face of the deceased were caused
      by the respondent-accused. There was no motive to administer poison;
      that the accused was not in possession of the poison. Accused would
      not have purchased the poison from a person known to him. He could
      have selected a better type of poison to kill his wife. The accused has
 F    undergone the sentence for more than four years. The son left by the
      deceased is now 17 years old and is being looked after by the accused.
      Thus this Court should take a lenient view and no case for interference
       in the judgment passed by the High Court is made out.
            14. In our opinion the judgment and orderof conviction passed by
 G   the trial court was based upon proper appreciation of eviden·ce, the
     circumstances found established by trial court in the instant case have
     been unnecessarily doubted and brushed aside lightly by the High Court.
   · 'fhe High Court has unnecessarily doubted the post mortem report which
     recorded as many as aforesaid seven injuries. There were various
     contusions of big size on periorbital area, intraorbital area, forehead,
 H upper eyelid, cheek, 8 cm. x 7 cm. contusion over the chin, contusion
       STATE OF HIMACHAL PRADESH v. RAJIV JASS!                                  481
                   [ARUN MISHRA, J.]

 over the lower lip, l 1 cm. x 5 cm. multiple small abrasions over neck and       A
 upper chest, 10 cm. x 4 cm. contusion in infra-axillary area. The aforesaid
 nature of the injuries indicates that they could not have been caused by
 convulsions. The accused was in the company of the victim in the same
 room is not disputed. Thus, it was for him to explain the injuries found on
 the person of de.ceased. Exact number of injuries had not been noted by
                                                                                  B
 Dr. Chaudhary PW-2 as he himself had admitted that he could not examine
 the entire body physii:ally as the condition of the victim was precarious
 and he was busy in giving her treatment then referred her to hospital at
 Shim la. The victim became unconscious at the house itself. The High
 Court has unnecessarily doubted the deposition of the autopsy surgeon
 who has clearly opined that the nature of injuries indicated positively the      c
 administration of poison forcibly to the victim. Such injuries could be
 caused while administering poison forcibly when victim was trying to
 save herself from that. In the cross-examination Dr. Choudhary, PW-
 2, has also stated that it could not be a suicidal case. However, on a
 suggestion being made to the PW-2 and.PW-3 that it could be-a case of
                                                                                  D
.voluntary consumption of poison by the viCtim to commit suicide, obviously
 the doctors were not able to deny the said suggestion as they were not
 eye witnesses. Moreover they were not supposed to be an arbiter on
 this issue whether the victim had taken the poiS'on herself. Their objective
 opinion stands writ large that considering the nature of injuries it could
 be a case of forcible poisoning and in the process accused had caused            E
 injuries while deceased had struggled. Thus the approach of High Court
 cannot be said to be of objective assessment of evidence.
        15., The accused was admittedly in the company of the deceased.
It was for him to explain so many injuries found on the person of the
deceased as to how they were caused including swelling in womb. He                F
has totally failed to explain them. It was not stated by him that the injuries
were caused to the deceased due to convulsions. It was not stated by
him that she ever fell down during convulsions, if any. The injuries on
her lips, chin, throat and neck etc. as held by the trial court, were caused
while administering the poison forcibly is a strong circumstance against
the accused which cannot be brushed aside lightly. More so, in view of            G
the overall conduct of the accused to be discussed hereinafter. Injuries
were on the front part of the body which indicates that the deceased
was subjected to violence befo•e she succumbed due to poisoning. Section
 I 06 of the Evidence Act requires a person having special knowledge of
the fact to explain the same as required by section 106 of the Evidence           H
482              SUPREME COURT REPORTS                       [2016] 2 S.C.R.


A     Act, and laid down by this Court in C.S.D. S11'(J111i v. The State AIR
      1960 SC 7, P.N Krishna Lal & Ors. v. Govt. of Kera/a & Anr. I 995
      Supp (2} SCC 187 and Sidhartha Vashisht @ Manu Sharma v. State
      (N.C.T ofDelhi) AIR 2010 SC 2352. Failure to explain that the deceased
      was unconscious position coupled with other evidence is a grave
      circumstance which militates against such a person.
B
             16. The High Court has also erred in holding that since the trial
      court did not convict the accused under sections 498A and 304B !PC, it
      could not be said that the deceased was being ill-treated or harassed
      with cruelty on account of dowry. As such accused is entitled to benefit
      of doubt. There is overwhelming evidence on record indicating that the
c     behavior of the accused towards the deceased was not proper and he
      was turned out of the house by landlord at Chai I. The previous landlord
      of the accused namely Dayal Singh has clearly stated that under the
      influence of liquor, accused used to frequently beat the victim and
      quarreled with her due to that he had asked the accused to vacate the
D     house. Thereafter the accused had shifted in the nearby house in which
      the incident has taken place. The statements of PWs.6 and 11 also indicate
      that there was consistent ill-treatment and incidents of beating and
      thrashing caused to the victim by the accused. There is nothing to doubt
      the statement of brother of the deceased namely Anil Kumar, PW-8
      who was also given beating on the night of the incident. Anil Kumar
 E    has stated that the accused had given kick-blows on the abdomen of the
      victim while she was carrying in her womb pregnancy of8 months, and
      the factum of pregnancy stands proved by the post mortem report that
      the foetus aged 8 months was recovered from the woml:; of the victim.
      Dr. Piyush Kapila PW-3 found abdominal swelling of the victim while
 F    conducting the autopsy which was obviously caused by the kick blow
      given by the accused. The statement of Anil Kumar PW-8 finds medical
      corroboration. There is nothing to doubt the statement of Anil Kumar
      that the accused had also caused injury to him in the form of multiple
      scratches over neck and face. Dr. R.K. Sharma, PW- I has proved the
      injuries found on the person of Anil Kumar and has proved the injury
 G    report. The High Court has erred in holding otherwise.
             17. Yet another circumstance which casts a grave doubt on the
      accused is that though he was fully aware that the condition of the victim
      was precarious and she was struggling for life due to organo phosphorous
      poisoning. In spite of that initially when the neighbours came hearing the
H     shrieks of the victim, he did not open the door immediately and opened
       STATE OF HIMACHAL PRADESH v. RAJIV JASS!                                 483
                   [ARUN MISHRA, J.]

 the door only after five minutes. Even if same is ignored there was             A
 absolutely no reason for the accused to state to the neighbours when
 they asked him to take victim to hospital that nothing had happened to
 the victim and it was his family affair and she would be all right very
 soon. He intentionally delayed takingthe victim to th.e hospital and it was
.only when the Police came that victim was taken to the hospital and was
                                                                                 B
 examined by Dr. Chaudhary P_W-2 at 6 a.m. In case the accused was
 innocent he would have taken the victim to the hospital immediately and
 would not have declined the request of the neighbours and delayed her
 taking.Jo the hospital and ought not to have waited for arrival of the
 police and thereafter when police had taken the victim to the hospital, he
 accompanied her to the hospital. The High Court has erred in holding            C.
 that accused accompanied victim to hospital as such that circumstance
 is in his favour. Whereas after causing enormous delay and
 accompanying police with victim appears to be an effort to save himself
 and to know what transpires and for giving wrong history to doctors.
 Thus the conduct of the accused of not taking the victim to the hospital
                                                                                 D
 points a finger of doubt upon him. Men may lie but the circumstances do
 not, is the cardinal principle of evaluation of evidence. The overall
 circumstances unerringly point towards the guilt of the accused. Accused
 was well-aware that the victim was suffering frotl1 organo phosphorous
 poisoning, the bottle was also lying open. There was a bad odour of
 'nuvan' poison in the room. Domestic articles and luggage were scattered        E
 in the room and the child was found crying. The roo111 indicated tell-tale
 signs of violence. Several witnesses i.e. Dayal Singh, PW-6, Shiv Kumar,
 PW-I 0 and Gayatri Devi, PW-I I have clearly stated about it.
        I 8. Shiv Kumar, PW- I 0, has clearly stated that on being asked
 what had happened, she raised her hand towards the accused, her                 F
 husband. Similar is the statement of Anil Kumar, PW-8. Ram Kishan,
 PW-9 has also stated that the victim raised her hand towards the accused
 when asked as to what had happened. He could observe and feel that
 she had ·been administered poison by the accused forcibly. This last
 gesture of victim to raise her hand towards husband indicates that he
·had caused suc!t'Condition. The victim was also crying to save her              G
 militates against suicidal attempt to kill herself.
         19. Apart from that the High Court has discarded the evidence of
 Sanjay Kumar, PW- I 3, who is an independent witness. He has stated
 that I 4- I 5 days before the accused had purchased Nuvan poison from
 his shop for a consideration of Rs.SO/- on the pretext of killing flies etc.    H
484              SUPREME COURT REPORTS                         (2016] 2 S.C.R.


A     The trial court held that in summers there was no necessity to purchase
      a deadly poison for killing the flies. Accused intended to kill the victim
      and purchased the poison to cause the end of life of victim. The High
      Court has not believed the statement ofSanjay Kumar, PW-13 on the
      ground that the accused being a doctor and posted at different places
      could have purchased a better poison of sophisticated nature from
B
      elsewhere, he would not have created the evidence against him. The
      High Court has brushed aside the evidence of purchase ofN uvan for no
      good reason. Sometime the facts are stranger than fiction. There is
      absolutely nothing to doubt the statement ofSanjay Kumar for purchase
      of abovesaid Nuvan poison and when it was found in the house, it was
c     purchased either by the victim or the accused. There is nothing to doubt
      that it was purchased by the accused and it was found in the room and
      due to this poison only the victim succumbed to death. The fact of
      giving salty water by the accused to the victim by itself is not enough to
      absolve him of the guilt. The injuries could not be said to be self
      inflicted. The accused has not stated to that effect, as such it was not
D
      necessary to go for DNA test as argued by the counsel for respondent.
             20. Apart from that the administering of poison forcibly is supported
      by medical evidence in the form of injuries which were found on the
      front side shows sign of struggle by deceased to save herself in the said
      process. These injuries could not have been caused by convulsions and
 E    the overall conduct of the accused and the gesture of the deceased in
      pointing her hand towards her husband as the person responsible for her
      condition, delay caused by the accused in taking the victim to the hospital
      knowing fully well the kind of deadly poison organo phosphorous
      unerringly points towards his guilt and the chain of circumstances is
 F    complete.
          21. This Court has considered in Sharad Birdhichand Sarda v.
   State of Maharashtra AIR 1984 SC 1622, case of murder by
   administering poison and dealt with mode and manner of proof in such
   cases. Four circumstances are .to be examined before recording a
 G conviction. (i) There was a clear motive for the accused to administer
   poison to the deceased, (ii) the deceased died of poison said to have
   been administered, (iii) that the accused had poison in his possession and
   (iv) that he had an opportunity to administer the poison to the deceased.
   The prosecution alleged that the husband adn)inistered the poison to her
   whereas defence took the plea that there was a strong possibility of her
 H
       STATE OF HIMACHAL PRADESH v. RAJIV JASS!                                485
                   [ARUN MISHRA, J.]

having been ill-treated, being sensitive and impressible, she might have        A
committed suicide out of depression and frustration arising from an
emotional upsurge. The aforesaid tests stand satisfied in the instant case
and the prosecution has proved the case beyond periphery of doubt. The
conduct of the accused and gesture of the victim at the crucial time as
projected in the case, medical evidence, evidence as to purchase of
                                                                                B
poison unerringly point towards the guilt of the accused.
       22. It was also submitted by learned counsel appearing on behalf
of the respondent-accused that the child now 17 years old and is residing
with the accused, as such we should take a lenient view. That cannot be
a ground so as to show any leniency in such kind of offence, particularly
when the accused had not cared and caused death of his wife who was
                                                                                c
also a doctor and at the same time she was pregnant, carrying 8 months
male child whose foetus was recovered from her. womb. He had kicked
the womb also that is why swelling in womb ·was found. In the
circumstances, accused is not entitled to any lenient treatment as it can
only be within legal parameters.                                                D
       23. In the circumstances the High Court has gravely erred in
reversing the well-reasoned judgment of conviction and order of sentence
recorded by the trial court. Resultantly the appeal is allowed, the impugned
judgment and order passed by the High Court is hereby set aside and
that of the trial court is restored. The respondent is directed to surrender    E
failing which he shall be taken into custody forthwith.
Devika Gujral                                                Appeal allowed.