JUDGMENT

K. JAYACHANDRA REDDY, J.:—The sole accused in the case is the appellant. He has been convicted under Ss. 302 and 328, IPC and sentenced to undergo imprisonment for life under S. 302, IPC and no separate sentence was awarded under S. 328, IPC. The appeal preferred by him was dismissed by the High Court. Hence the present appeal pursuant to the special leave granted by this Court. It is alleged that he committed the murder of Chandra Mani Lal Chowdhary (the deceased) by administering poison. The prosecution case is as follows:

The deceased was the husband of Smt. Kamla Kumari Devi, P.W. 7, the informant in this case. There was a litigation between the accused and the deceased. Therefore they were on inimical terms. However, the accused tried to establish friendship with the deceased putting an appearance of having changed in his attitude and used to visit the deceased now and then. On 7-2-79 at about 7 p.m. the accused visited the house of the deceased and requested him to go to his house. In spite of the protests made by his wife and daughters the deceased went to the house of the accused. He returned at 9 p.m. in the night and started vomitting. He informed his wife that after he took betel (pan) offered by the accused at his residence he had five or six vomittings and became restless. The informant P.W. 7, Kamla Kumari Devi and her family members took the deceased to Dr. Arun Kumar Sinha, P.W. 6 attached to the local hospital. He admitted the deceased in the hospital. He found the deceased to be in drowsy condition. The wife and other family members of the deceased told the Doctor, P.W. 6 that somebody made the deceased to take wine and betel and thereafter he started vomitting. P.W.6 treated him by giving a stomach wash and preserved the same. He informed the police. The deceased, however, died at 1-40 a.m. After recording the statement of P.W. 7, the wife of the deceased an FIR was registered and the investigation was commenced by P.Ws. 12 and 13, the Investigating Officers. The dead body was sent for post-mortem. The Doctor, who conducted the post-mortem, sent the viscera to the Chemical Examiner and reserved the opinion regarding the cause of death till the report of the Chemical Examiner was available. However, the report of the Chemical Examiner was not even marked in the case and therefore from the post-mortem report the cause of death could not be ascertained. It may also be mentioned that the Doctor who conducted the post-mortem was not examined. The prosecution examined the daughters of the deceased namely P.Ws. 8, 9 and 10. The prosecution, however, relied on the Chemical Examiners report regarding the vomitted substance which shows that Strychnine Nux Vomica, a poison was present in the gastric contents and the vomitted substance, The trial court relying on the oral testimony of the wife and the daughters of the deceased who deposed that the deceased told them that the accused took him to his house and gave him betel and thereafter he became giddy and vomitted and also on the other circumstance that in the vomittings and the gastric contents Nux Vomica was found by the Chemical Examiner, reached the conclusion that the prosecution has established that the accused administered the poison to the deceased which resulted in his death. The appeal preferred by the accused was dismissed by the High Court.

2. Learned counsel for the appellant submits that the earliest version was that the deceased told his family members that somebody gave wine and betel to him and it is only in their later version that they improved and implicated the accused by stating that the deceased told them that it was the accused who gave him the betel. His further submission is that the cause of death is not established by the prosecution and therefore it is highly unsafe to convict the appellant.

3. We find considerable force in this submission. P.W. 6, the Doctor, in his chief examination itself has stated that the family members who bro