Sharma, J.—This is an appeal by Mst. Javitri alias Shanti against her conviction u/s 328 I.P.C. and sentence to three years R. I. by the learned Sess. Judge, Alwar.

2. According to the prosecution, the appellant was purchased by Chiranji Brahaman of village Salvedi for a sum of Rs. 2000/- about a couple of months before the occurrence to live with him as his wife. In the evening preceding the 21st September, 1954, the appellant had cooked food and served it to Chiranji. After taking that food Chiranji felt giddy but on some treatment he got well. In the evening of the 21st of September, 1954, at about 6 p.m. Chiranji took rice prepared by the appellant along with sugar and thereafter he lay down. Then be asked the appellant to bring hukka for his smoke. She brought the hukka and Chiranji smoked it. Soon after Chiranji began to feel giddy and become unconscious. He was taken to Kherli Ganj Dispensary where Dr. H. Chakarvati, Medical Officer suspecting that it was the case of dhatura poisoning thrust a tube into the throat of Chiranji and made him vomit. The contents of this vomit are said to have been taken in a bottle and after sealing it, it is said it was sent for the chemical examination. The chemical examiners report shows that the liquid inside the sealed bottle, which was sent for chemical examination, contained atropine, an ingredient of dhatura. Mst. Javitri, the appellant was arrested. It is said that some dhatura seeds were recovered tied in a red cloth from a trunk at the instance of the appellant, who had stated that she had dhatura seeds with her and would get them recovered

3. After investigation the case was challaned against the appellant u/s 328 I.P.C. in the court of the 2nd Extra Magistrate, Alwar who after inquiry committed the appellant to take her trial before the court of sessions at Alwar u/s 328 IPC.

4. There was no direct evidence to prove that Mst. Javitri had mixed up dhatura seeds in the food which was served to Chiranji. However the lower court relied upon the following circumstantial evidence in order to convict the accused u/s 328 IPC.

(1) It was the accused and the accused alone who used to cook food for Chiranji and the food complained of was cooked by her and served before Chiranji who took it.

(2) Soon after taking that food Chiranji felt giddy and became unconscious,

(3) The contents of the vomit of Chiranji were found by chemical examiner to contain atropine, an ingredient of dhatura, and

(4) dhatura seeds were recovered from the possession of the appellant at her instance.

5. In this appeal it has been argued by Mr. D.K. Soral on behalf of appellant that it has not been satisfactorily established that the same vomit which was obtained by thrusting a tube in the throat of Chiranji was examined by the chemical examiner. It was argued that according to the statement of Manoharlal P. W. 7 who made investigation in the case, the sealed bottle containing the vomit of Chiranji was sent to Jaipur for chemical examination through Parbhati but Parbhati has not been examined to say that it was the same bottle which was handed over to him by Manoharlal and which was handed over to the chemical examiner by him. The evidence of Dr. H. Chakarvati does not disclose how he formed an opinion that the condition of Chiranji disclosed a case of dhatura poisioning. The so called dhatura seeds are not satisfactorily proved to have been taken from the possession of Mst. Javitri, the appellant. There is no convincing evidence that the seeds which are said to have been recovered from the possession of Mst. Javitri were dhatura seeds. According to the prosecution evidence Chiranji had smoked the hukka before he is said to have become unconscious and felt giddy. It cannot, therefore, be said that it was on account of the food cooked by Mst. Javitri that he felt giddy and unconscious. It it not proved satisfactorily that Mst. Javitri used to cook food for Chiranji and that the food which is complained of was cooked by her.

6.

Click Here to Read the rest of this document