JUDGMENT

Bennet, J. - This is a criminal appeal by Mt. Gajrani and Mula, both of Shahjahanpur district, each of whom has been sentenced to death, u/s 302, Penal Code, in the case of Mt. Gajrani, and under Sections 302 and 109, Penal Code, in the case of Mula, by the learned Sessions Judge of Saharanpur. There is also the reference from the learned Sessions Judge for the confirmation of his sentences. The offence in the case is the alleged murder of Girja Shankar, the husband of Mt. Gajrani, by the administration by her of arsenic at Laksar railway station on 29th. March 1932, causing his death in the early hours, of the following morning at about 5-40 a. m. In a case of murder by poison there are three main points to be proved: I firstly, did the deceased die of the poison in question; secondly, had the accused got the poison in question in his or her possession; and thirdly, had the accused an opportunity to administer the poison in question to the deceased. If these three points are proved, a presumption may under certain circumstances be drawn by the Court that the accused did administer poison to the deceased and did cause the death of the deceased. It is not usual that reliable direct evidence is available to prove that the accused did actually administer poison to the deceased. The evidence of motive which is frequently given in these cases is of subsidiary importance, and the mere fact that the accused had a motive to cause the death of the deceased is not a fact which will dispense with the proof of the second and third points that the accused had the poison in his or her possession, and that the accused had an opportunity to administer the poison. In the present case the most important question is whether the prosecution has succeeded in proving that the deceased did die. of arsenic poison. The prosecution is faced with the serious difficulty at the outset that the corpse of the deceased was cremated, and therefore the body was not available for the purposes of chemical examination to see whether it contained arsenic or not. The story of the prosecution is as follows:

Girja Shankar, the deceased, was an inhabitant of a village called Jatpura, in thana Shahabad, district Hardoi and he was a Brahmin, and his wife belonged to village Barhmula, in Shahjahanpur district. The witness for the prosecution Dayashankar on p. 16 stated that for six years Mt. Gajrani had been living in a village called Chanda in Shahjahanpur district at the house of her maternal uncle, and that he and his brother Girja Shankar, deceased had gone many times to bring her away, and that Mula, accused and her maternal grandmother did not let her go with them. As Mt. Gajrani is aged 22 years, it is clear that she has not lived with her husband since she. was 16 years, if indeed she lived with him as his wife for any appreciable period at all. The case for the prosecution is that Mula, the accused, had an intrigue with Mt. Gajrani, and there is evidence for this of Hasnu, a pointsman at Kahilia railway station, and of Ganga Ram of Chanda. The accused Mula was at that time also a pointsman at Kahilia railway station in Shahjahanpur district. Girja Shankar, deceased was a pointsman further up the line at Seohara railway station. Girja Shankar came to Chanda to take away his wife, and he left Chanda accompanied by his wife and the accused Mula. They all three went by train to Seohara about 21st or 22nd March 1932, and they stayed there a few days. This station is in Moradabad district. The deceased and the two accused left Seohara about 27th or 28th, according to the statement of Chandra Sen, and they went for a few days to Hardwar, which is a famous place for Hindu pilgrims from all parts of these provinces.

2. The next date which is fixed is 28thMarch, on which Mula and Mt. Gajrani arrived at Landhaura station from Hardwar, and they proceeded to reside in the quarters assigned to Mula who had been transferred to Landhaura as a pointsman a considerable time