Khagen Chandra Borah vs State of Assam

P.G. Agarwal, J.—This appeal is directed against the judgment dated 30.4.1997 passed by the Sessions Judge, Tinsukia in Sessions Case No. 60(T) of 1993 convicting the accused Appellant Khagen Chandra Borah u/s 302, IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/- in default to undergo further rigorous imprisonment for two years.

The accused Appellant Khagen Borah was charged for committing murder of his wife Jyoti Bora by administering poison. The prosecution allegation is that on the morning of 16.3.91, the accused left for Sibsagar at about 5 A.M. The deceased Jyoti Bora, wife of the accused stayed in the house of one Bogi (P.W. 9), took her breakfast alongwith other family members and thereafter she also took medicine, and the deceased then started vomiting and felt uneasy. She was removed to hospital but on the way, she breathed her last. Autospy over the dead body was held by the doctor who could not ascertain the cause of death. The Liver/Stomach contents 2nd the part of the vomit were sent to the Forensic Science Laboratory who opined that the sample contained Oregano Chemico Pesticide which goes to show that the death was due to the consumption of above Pesticide. Further case of the prosecution is that the accused had brought medicine and he insisted upon taking of the said medicine by the deceased and accordingly the deceased took the said medicine and died. During the course of investigation two bottles of medicines were seized by the I/O on being produced by the mother of the deceased and these were also sent to the Forensic Science Laboratory. Assam, Guwahati. On analysis, it was found that one of the said bottles contained oregano chemico pesticide whereas the other bottle gave negative test of having any poison. Hence a logical inference can be drawn up this consumption of medicine in the bottle which was marked as M-2 tone- numbered as Tox-57 (d) by the F.S.L. which contained organo chlorin pesticide which has led to the death of the deceased. The other bottle of the medicine was branded as Dexorange and marked as Tox-57(c) did not contain any poison.

In this case, admittedly, the accused Appellant was absent when the medicine was taken by the deceased. There is also no evidence to show as to who had brought these medicines. The evidence on record shows that both the accused and the deceased had gone to consult the doctor for the ailment of the deceased and one Dr. Sarma gave the medicine. As stated above, there are two bottles of medicines out of which one contained poison and the other was normal medicine. Even if it is conceded that the accused had insisted on taking the medicine, can it be presumed that the accused had insisted upon taking the medicine from the wrong bottle and not from the normal bottle. P.W. 9 further stated that even after the complaint by the wife that the medicine does not smell good, the accused presumably relied that the medicine may be taken by closing the nose. This happens in every day life; when children complained of bitter test of medicine, the elders ask them to take the same in order to cure the ailment. This does not mean that the accused had any knowledge that the medicine contained pesticide. There is absolutely no evidence on record to show as to which bottle of medicine was brought by the accused and wherefrom the bottle marked Tox-57(d) was brought or brought in by whom. However, P.W. 9 does not say that the accused had insisted upon taking the medicine from which particular bottle. The learned P.P. was fair enough to submit that the evidence on this point is not specific or categorical.

The learned Counsel for the Appellant has further submitted that the present case rests on the circumstantial evidence and as per the guidelines laid down in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, none of the circumstances have been established. In the said case the Apex Court observed:

In the case of murder by administration of poison the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:

(1) There is a clear motive for an accused to administer poison to the deceased,

(2) that the deceased died of poison said to have been administered,

(3) that the accused had the poison in his possession,

(4) that he had an opportunity to administer the poison to the deceased.

In the instant case there is absolutely no evidence that the accused had poison in his possession or that he had administered poison to the deceased. The learned Counsel for the Appellant submitted that as the accused had already text the house in the morning, it can not be said that he had an opportunity to administer poison to the deceased. Further, in the impugned judgment, the learned trial Judge has observed that in order to get rid of the wife, the accused might have administered the poison and this could be the motive. There is absolute no evidence to show that the accused wanted to get rid of the wife. It is a case of love marriage and that too inter-caste. None of the witnesses has stated that the relation between the deceased and the accused were in any way strained. The observation of the trial court that the accused wanted to get rid of the wife is not based on the evidence on record.

As stated above, we find that there are two bottles of medicine, one of which contained the poison and in the absence of evidence it can not be said that the said bottle was brought by the accused. What emerges from the evidence on record is that either the accused might have brought the poisoned bottle or the normal bottle and in such a case the benefit, of doubt must go to the accused and it is well settled that if there are two possible conclusions the accused is entitled to the benefit of doubt.

In the result we hold that the conviction and sentence awarded against the accused Appellant is not maintainable. The accused Khagen Chandra Borah is acquitted on the benefit of doubt and he is set at liberty forthwith. The Criminal Appeal stands allowed.