The court cannot sustain a conviction based on witness statements that have been discredited and contradicted, and the absence of evidence and suspicion cannot justify a conviction.

ORDER :

1. This appeal is directed against the order of the High Court of Punjab and Haryana dated 03.05.2012 by which the conviction of the accused-appellant under Sections 302 and 201 of the Indian Penal Code and the sentence of rigorous imprisonment for life has been affirmed.

2. The case of the prosecution in short is that the accused-appellant is married to PW-12 (Parveen) and out of the said marriage two children, namely, a son aged about 3 years, at the time of occurrence, and the deceased daughter, aged about 1½ years, were born.

3. According to the prosecution on the day of occurrence i.e. 05.07.2006, after PW-12 had returned from the S.T.D. booth where she had gone to make a telephone call, she had found that the appellant-accused was giving poison to her daughter, the deceased. On the next day at about 5.00 a.m., the appellant-accused had taken his daughter to the hospital for treatment. The accused-appellant returned home with the dead body of his daughter and soon thereafter buried the deceased. On these allegations, mentioned in the F.I.R. lodged by PW-12, a criminal case was registered, which was duly investigated. On investigation, charges were framed against the accused and he having pleaded not guilty, prosecution examined its witnesses in the case and at the conclusion of the trial and after recording the statement under Section 313 Cr.P.C., the trial Court returned the verdict of guilty, which was affirmed by the High Court in appeal.

4. In her deposition, in Court, PW-12, the wife of the accused and mother of the deceased, took entirely a different stand. She had stated that her husband had never ill-treated her or the children and that it is not correct that her husband, i.e. the accused-appellant, had administered poison to the deceased. It was further stated on oath that the deceased had accidentally taken the poison (Salphas), which was kept in the house to deal with the problem of rodents.

5. PW-12 was declared hostile and on cross-examination by the prosecution, her earlier statements recorded under Section 161 Cr.P.C., wherein she had implicated the accused-appellant, were brought to her notice. In other words she was contradicted with reference to her previous statement in accordance with the provisions of Section 145 of the Evidence Act.

6. PW-13 (Kamla), the mother of PW-12, similarly denied that PW-12 had informed her about the accused administering poison to the deceased. The said witness was also declared hostile and contradicted with reference to her statement recorded under Section 161 Cr.P.C.

7. PW-11 (Dr. Rajat Pankaj), who had conducted the post-mortem of the deceased, in his deposition as well as in the post-mortem report, which we have examined in original, found the following injury on the deceased :

“A diffuse reddish contusion of size 6cm x 4cm was present in the left tempro parietal region of skull on dissection, all the layer of scalp were ecchymosed. On further dissection meninges and brain matter was found to be ecchymosed.”

PW-11 had given his opinion that the cause of death is on account of the aforesaid injury. However, the viscera was preserved for chemical analysis. The report of the chemical analysis indicated the presence of aluminium phosphide (Salphas) in the stomach as well as in the liver, spleen and kidney of the deceased. In cross-examination, PW-11 has stated that the cause of the death of the child was the head injury and it cannot be ruled out that if a child of 1½ years, who had taken poison, accidentally falls on the head on a hard substance, head injury found by him can be caused.

8. PW-12, having been discredited by the prosecution and she having been contradicted with reference to her previous statements recorded under Section 161 Cr.P.C, as required under Section 145 of the Evidence Act, no part of the testimony of PW-12 can be taken into account for determining the culpability of the accused-appellant. The statements made by her in the course of her investigation and