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Criminal Appeal No. 142 of 1963, decided on 19th June 1967.
S. 301-Murder-Circum stantial evidence-Conviction of accused solely on circumstantial evidence-Circumstances proved neither compatible with accused's innocence nor capable of any hypothesis other than that of guilt - Conviction upheld.
Alla Ditta v. The State P L D 1958 S C (Pak.) 290 ; Siraj v. The Crown P L D 1956 F C 123 and Moina Mia v. . The State P L D 1966 Dacca 589 rel.
S. 302-Murder-(Poisoning case)-Circumstantial evidence-Ingredients of offence of murder by poisoning.
In a case of murder by poison, the following points have to be proved : firstly, did the deceased die of the poison in question ; secondly, bad 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.
In the instant case it had been proved beyond reasonable doubt that the deceased died of oleander poison. It had also been proved that one accused supplied a package of paper to deceased's wife, another accused, and she received the paper package, a little while before the poison was administered. "There is no escape from the conclusion in the state of evidence in the case that first accused actually passed poison in that paper packet and that poison was in the possession of the second accused. She had certainly the opportunity to administer the poison to the deceased through dal which she brought from neighbour's house and poured it into the plate of the deceased against the latter's will. She was always hostile to her husband. All these facts having been satisfactorily proved in the case, in the light of the above decision and the circumstances discussed above, a presumption can rightly be drawn that the accused wife did administer oleander poison to the deceased and did cause the death of her husband. In this connection there was no particular explanation on the part of the accused and as such the question of acceptability of any such explanation did not arise.
Mst. Gajrani and another v. Emperor 144 I C 357 rel.
S.24-Confession-Extra judicial confession substantially corroborated by overwhelming evidence and circumstances-Nothing on record to take contrary view-Confession, in circumstances, held voluntary and true Confession whether judicial or extra-judicial, retracted or not retracted, if proved voluntary and true, can lead to conviction of accused on its sole basis.
Nawabdin v. Crown P L D 1952 Lah. 345 and State v. Minhum Gul Hassan P L D 1964 S C 813 rel.
S. 342--Examination of accused-Prejudice-Portion of confessional statement put to accused, but not whole--Accused conscious of admission and thoroughly cross-examining witnesses proving confession, and also denying genuineness of confession-Accused, held, not prejudiced, in circumstances.
S. 30-Confessional statement implicating co-accused albeit of very little value yet not of no value-Such statement can be taken into consideration to strengthen other evidence.
It is well settled that a confessional statement of an accused in so far as it implicates a co-accused is of very little value, but it would not be correct to say that it is of no value whatsoever. It is also well settled that the statements of a confession of an accused cannot be the basis or foundation of conviction of a co-accused. Its evidentiary value is not such by itself, but it can certainly be taken into consideration to strengthen the other evidence in the case and to lend an assurance to the same. To hold it is of no value at all would be to ignore the provisions of section 30 of the Evidence Act.
K. Harunur Rashid for Appellants.
A. T. M. Masud D. L. R. with Syed A. N. M. Nasiruddin for the State.
-The appellants Ayesha Khatun and Khajamuddin have been convicted under section 302 of the Pakistan Penal Code an(: sections 302/109 of the Pakistan Penal Code respectively and sentenced to transportation for life by Mr. Abdus Subhan Choudhuri (now Mr. Justice), the Sessions Judge, Bogra. They have preferred this appeal from Jail.
This is an appeal of 1963. A Division Bench of this Court taking undefended Criminal matters, while admitting the appeal for hearing, directed that it should be heard and disposed of by a regular Division Bench. Accordingly, the matter came up for hearing before a regular Division Bench presided over by Mr. Justice A. Subhan Choudhuri but that Bench feeling embarrassed to take up the appeal submitted it to the Chief Justice with a request to send it to some other Bench. The appeal then came up in the list before the Division Bench presided over by Mr. Justice Baquer and that Bench finding the accused undefended in a case under section 302, P. P. C. directed the State to engage a lawyer to represent the accused persons. The Legal Remembrancer, East Pakistan, accordingly appointed an Advocate to defend the accused and thus the appeal has now come before us for disposal.
The case for the prosecution is that on the 25th Chaitra, 1367 B. S. corresponding to 8-4-61 at about 9 a.m. accused Ayesha murdered her husband Ayeruddin by administering poison to him through dal and that accused Khajamuddin and two others (since acquitted) abetted the offence of commission of murder by Ayesha.
The deceased Ayeruddin married accused Ayesha Khatun about 4 years before the occurrence. After the marriage accused Abdul Gani alias Gani developed intimacy with Ayeruddin and then with accused Ayesha. He used to visit their house frequently both when Ayeruddin was at home as also in his absence. The intimacy developed into illicit connection between him and Ayesha and so about a year before the occurrence she fled away with Gaui. An information was lodged by Ayeruddin at Joypurhat Police Station to that effect. She was searched for here and there and afterwards recovered from the house of Gani's sister at Namsahar in the district of Rajshahi. After that incident Sairuddin Mondal, father of the deceased asked Ayeruddin to divorce Ayesha but as Ayeruddin was reluctant to divorce his wife, the father separated the son from him and since then Ayeruddin was living in separate mess in a separate homestead with Ayesha.
On Saturday, the 8th April 1961, Ayeruddin went to Bhatsha hat and in his absence the accused Khajamuddin came to his house at about dusk and handed over a package of paper to Ayesha. This was witnessed by P. Ws. 1 and 2. On the query of P. W. 1 Kasimuddin Mondal, Ayesha was at first reluctant to disclose what was passed to her by Khajamuddin, but on being repeatedly asked she, however, stated that Khajamuddin gave her bi-f. About half an hour after dusk Ayeruddin returned from Bhatsbahat with one seer of rice and some curd in a pot. He took some curd and after a wash sat down to take his evening meal on the southern verandah of his south facing hut. Rice was supplied but as Ayesha did not cook curry, his step-mother Sabejan who is also the sister of his mother supplied meat-curry to him and Ayeruddin started taking his rice with the said meat curry. Ayesha then went to the house of Alefa Khatun, cousin of Ayeruddin and brought some dal, from there. Ayeruddin was reluctant to take dal as he had meat curry to go on but Ayesha poured half quantity of dal from a bell-metal cup into his plate. Ayeruddm then ate rice with that dal and meat curry. Within half an hour, he began to complain of acute burning sensation in the throat, chest and stomach and started vomiting and purging. He cried and told that he began to feel unbearable burning sensation after taking dal poured into his plate by Ayesha. At that time, Ayesha attempted to escape by breaking a window but was caught by Kashemuddin Mondal (P. W. 1) and others and kept in the dwelling but of P. W. 2 Sairuddin, father of Ayeruddin. Ayeruddin also stated that Ayesha must have poisoned him through dal and thereafter he died about an hour and a half after taking of the dal. There was hue and cry over the matter and when some neighbouring people assembled there, the inmates of the house narrated the story to them.
Next morning when Mohiruddin Mondal (P. W. 8) Tasiruddin Mondal (P. W. 9) and Afazuddin Mondal (P. W. 10) and others came, Ayesha confessed that she had poisoned her husband Ayeruddin through dal brought from the house of Alefa, at the instance of accused Abdul Gani, Khajamuddin and Aishadi. She also stated that Khajamuddin supplied her poison in the previous evening and that Khajamuddin and Gani came together but the latter stayed back behind the house. Ayesha further showed a bell metal cup with some dal in it under their Chouki which was brought out-Mohiruddin and others who fed a chicken with a little quantity of this dal and as a result the chicken died almost instantaneously. They also recovered an earthen pot containing dal from the house of Alefa and gave a small portion of that dal and little quantity of curd found in an earthen pot in the house Ayeruddin to another chicken but that chicken did not die.
On these allegations P. W. 1 Kasimuddin Mondal lodged an information with the Joypurhat Police. An U. D. (unnatural death) case was recorded by the police on the basis of the information. P. W. 13, Syeduzzaman, an A. S. I. of Police visited the spot, held inquest on Ayeruddin's dead body and forwarded it to Bogra morgue through constable No. 505 Habibur Rahman (P. W. 14). He also seized the alamats comprising one bell-metal cup with some mosur dal an earthen pot with some curd recovered from Ayeruddin's house and also an earthen pot containing some mosur dal brought from the house of Alefa Khatoon by preparing a seizure list.
Post-mortem examination on the dead body of Ayeruddin was conducted by P. W. 12 Dr. S. K. Guha and he noticed some symptoms of poisoning. The visceras of Ayeruddin was chemically tested by P. W. 18 Md. Anwarul Karim and oleander poison was detected in the said visceras.
Investigation of the case was taken up by P. W. 14 Rashiduddin Khan, S. I. of Police after drawing up a regular First Information Report and on completion of investigation, he submitted charge-sheet against accused Ayesha Khatun under Section 302 of the P. P. C. and accused Abdul Gani, Khajamuddin and Aishadi under section 302/109, P. P. C. on receipt of report of the Chemical Examiner.
A preliminary enquiry was held by Mr. A. Islam Magistrate 1st Class, Bogra and the accused persons were committed to the Court of Sessions to face trial under section 302, P. P. C. and 302/109, P. P. C. respectively.
All the accused pleaded not guilty to the respective charges levelled against them. Their defence is a denial of their complicity in the alleged poisoning of deceased Ayeruddin through dal. Further defence is that the story of extra-judicial confession of Ayesha is anything but true and that the confession was obtained from Ayesha by means of coercion, threat, intimidation and inducement. They also asserted that after return of Ayeruddin from the hat, P. W. 6 Rashida Khatun supplied him with food and she might be responsible for the crime.
The trial was held with the aid of four assessors and all of them unanimously found the two appellants guilty and others not guilty to the respective charges.
18 witnesses for the prosecution and none for the defence were examined in the case. The learned Sessions Judge on appraisal of the evidence and the extra-judicial confession of Ayesha convicted and sentenced the two accused as stated above and acquitted the others.
The death of Ayeruddin is not disputed and it has been proved by overwhelming evidence of the local P. Ws. Nos. 1, 2, 5, 6, 7, 8, 9, 10 and the doctor P. W. 12 who held the post-mortem examination on the dead body of deceased. P. Ws. 1, 2, 5 and 6 have stated that on 8-4-61 about half an hour after dusk the deceased Ayeruddin returned from Bhatshahat and after washing his face, sat down to take his evening meal on the southern verandah of his south facing hut. Rice was served to him but as no curry was cooked by his wife Ayesha, some meat curry was supplied to him by his step-mother Saherjin Bibi (P. W. 5) who is also his mother's sister and he started taking rice with the same. Ayesba then went out and brought some dal from the house of Alefa Khatun (P. W. 7) and poured about half the quantity in the plate of Ayeruddin. In spite of the latter's reluctance to take dal as he had meat curry. Ayeruddin then took rice with meat curry and dal and within a short times began to complain of acute burning 'sensation in the throat, chest and stomach and he also started vomiting and purging. He cried and said that he began to feel unbearable burning sensation inside after taking dal poured into his meal by Ayesha and died about an hour and half thereafter. P. Ws. 7, 8, 9 and 10 have corroborated the above facts. P. W. 13 who held inquest on the dead body forwarded it to Bogra Sadar Hospital and P. W. 12 held post-mortem examination oil the same. The Doctor found the following conditions :-
Conjunction was suffused. Both the pupils were slightly dilated. Tongue was within. Serosanquinous fluid was found coming from both nostrils.
Dried forces were found around the arms (sic arms). No mark of injury was found in the body. Multiple incisions were given on various parts of the body but no extravasation of blood was found anywhere. On dissection he found the inner wall of the stomach congested with punctiform haemorrhagic spot scattered. Stomach contained about two ounces of dirty grevish fluid of peculiar odour.
Inner wall of the intestines was found congested. They contained loose foeces and gas. Kidneys were found congested.
All other organs were found normal.
His evidence further shows that visceras consisting of whole stomach with its contents, a portion of liver and one kidney were preserved for chemical analysis under his direct supervision and sent to the Chemical Examiner, Government of East Pakistan, Dacca by Railway parcel after being duly packed and sealed in accordance with rules.
P. W. 18, the Chemical Examiner on chemical test of visceras of Ayeruddin consisting of stomach, a portion of liver and one kidney detected oleander poison in the contents and submitted report accordingly. The doctor P. W. 12 on receipt of the report Exh. 2 from the Chemical Examiner showing that oleander poison was detected in the visceras, opined that death of Ayeruddin was due to oleander poison administered to him. That the death of Ayeruddin was caused by poisoning has thus been proved beyond any shadow of doubt. The question now is who is responsible for this poisoning and whether the accused Ayesha caused the death of her husband Ayeruddin by administering poison through dal and whether the accused Khajamuddin supplied Ayesha Khatun with the poison and thus abetted the commission of the offence of murder of Ayeruddin.
Prosecution has examined a number of witnesses and proved a series of circumstances to substantiate its case which rests mainly on circumstantial evidence and the extra judicial confession of accused Ayesha Khatun. Let us first consider the circum stantial evidence in this case.
There is ample evidence to the effect that the co-accused Abdul Gani (since acquitted) had illicit connection with accused Ayesha Khatun. P. Ws. 1, 2, 8, 9 and 10 have proved that accused Ayesha Khatun developed illicit intimacy with accused Abdul Gani and that she once eloped with him about a year before the occurrence. She was untraceable for some days but ultimately recovered from the house of Gani's sister at Namshahar in the district of Rajshahi. This story is also borne out of the G. D. entry Exh. 4 dated 7-9-59 which has been formally proved in this case. It is thus evident that Ayesha was not sincere to her husband Ayeruddin. After this incident P. W. 2 Sairuddin Mondal asked his son Ayeruddin to divorce this fallen woman. But as the deceased Ayeruddin refused to divorce her, Sairuddin separated his son and since then Ayeruddin began to live in separate mess in a separate homestead. In this connection the defence suggestion that Ayeruddin quarrelled with hi; step-mother Sabejan (P. W. 5) and that is why he was separated by his father, has been stoutly denied by P. Ws. 2 and 5 and there is no evidence to support it.
It has been contended by the defence that after the above incident the deceased Ayeruddin and accused Ayesha Khatun lived peacefully till the present occurrence, that they got a female child and that there was nothing to doubt the loyalty of the accused Ayesha Khatun thereafter. But this argument is belied by the evidence of P. Ws. 1 and 2 who have stated that even after the above incident accused Abdul Gani used to visit Ayesha Khatun surreptitiously rather than openly as before in the absence of Ayeruddin. This indicates that accused Ayesha was not changed nor was fair to her husband.
There is evidence that accused Ayesha, Gani, Khajamuddin and Aishadi (since acquitted) used to talk together secretly. P. Ws 3 and 4 have proved this association. These P. Ws. have stated that before the present occurrence they saw the above four accused conversing together in the house of Aishadi although they could not know the subject matter of the conversation. It is true that many people gossip like this in many houses but the conversation of accused Ayesha with the other amused after the above incident of elopement and before the present occurrence is significant.
It is in evidence that on the date of occurrence shortly before dusk the accused Khajamuddin came to accused Ayesha and handed over a package of paper to her. P. W. 1 Kasimuddin and his wife P. W. 6 Rashida Khatun affirmatively stated that they found Khajamuddin passing paper packet to Ayesha just before the dusk and when the woman was asked as to what was given to her by Khajamuddin she was reluctant to answer and on being repeatedly questioned she stated that he gave her biri. Why Khajamuddin would come to give biri to Ayesha at this unusual hour in the absence of her husband and why biri would be supplied in a paper packet. Although it is not known what was actually passed but the plea of suppliance of biri in the context of things seems to be suspicious. Whether this package of paper contained Uri, or oleander poison would be cleat later on.
Next circumstances are that the deceased Ayeruddin after returning from Bhatshahat with one seer of rice and some curd in an earthen pot, took some curd and after having a wash he sat down to take his evening meal with the curry supplied by N. W. 5 Sabejan. Ayesha went to Alefa's house and brought some dal in a bell-metal cup. P. W. 7 Alefa Khatun proved that Ayesha Khatun went to her house after dusk and brought some dal from her for Ayeruddin in a bell-metal cup. Bringing of dal from Alefa's house at that moment was very significant. Package of paper supplied by Khajamuddin was already in her possession. Ayeruddin was reluctant to take dal as he had meat-curry to go on, but Ayesha still poured half quantity of dal into his plate whereupon he consumed the rice, meat-curry and the dal. A question arises here why Ayesha poured this dal into the plate of Ayeruddin who was not willing to take the dal. Was it served with a bona fide intention or a bad motive
The deceased Ayeruddin began to complain of severe burning sensation in the throat, chest and stomach within half an hour of taking dal and started vomiting and purging. P. Ws. 1, 2, 5, 6, 7 and 8 deposed to the effect that Ayeruddin cried and told them that he began to feel unbearable burning sensation inside after taking dal poured into his meal by Ayesha. It is in evidence that when Ayeruddin was extremely restless due to the burning sensation and all others present were worried over the matter, Ayesha then attempted to escape by breaking the window. But she was caught by Kasimuddin and others and taken to Ayeruddin's dwelling but where she was kept. P. Ws. 1, 2, 5, 6 and 8 have proved this fact and there is no reason to disbelieve these witnesses. This conduct of Ayesha is really very suspicious. Why she would attempt to flee away when her husband was in a precarious condition Is it the normal conduct of a wife.
P. Ws. I, 2, 5, 6, 7, 8 and 11 have proved that the deceased Ayeruddin told them that accused Ayesba must have poisoned him through dal. This is a very important piece of evidence. The witnesses who have proved this fact have no reason to falsely implicate her in the case. P. W. 2 Sairuddin, father of deceased Ayeruddin might have some bad notion against Ayesha over the incident of 1959, but the others had no particular reason to take false oath against her. In this connection the general criticism that the local P. Ws. are all biased against Ayesha, has not been substantiated by the evidence on record. P. Ws. 8 and 11 are absolutely independent. There is hardly any discrepancy in their evidence, except that of P. W. 1 Kasimuddin who stated in his report to the police, Exh. 3 that Ayeruddin took dal from her chachi Shashuri. P. W. 1 did not personally witness the bringing of dal from the house of Alefa and as such he might have made a mistake and this in our opinion, does not affect the prosecution case in the least. The evidence of the P. Ws. to the effect that Ayeruddin said that he must have been poisoned by Ayesha through dal brings the accused Ayesha directly in the picture.
Another sigaificart circumstance in the case is that it was this accused Ayesha Khatun who pointed out the bell-metal cup containing some dal under their chouki An their dwelling hat. This fact has been established by the evidence of P. Ws. 8, 9 and 10 who are village prodhans (leading men) and absolutely independent and disinterested person. These village prodhans in presence of other witnesses recovered the little quantity of dal in a biti from Ayesha's chouki and gave a portion from the said bell-metal cup to a chicken which after taking the dal died almost instantaneously. It transpires from the evidence that they also managed to recover one earthen pot containing some dal from Alefa's house but when another chicken was fed with the dal brought from the house of Alefa and curd left in another earthen pot in which it was brought by the deceased from the hut, that chicken did not die. This test was made by the village prodhans P. Ws. 8, 9 and 10 and there is no reason to disbelieve them. It thus appears from their evidence that the dal in the bell-metal cup which caused the death of the chicken instantaneously contained some sort of poison.
P. W. 13 the A. S. I. of Police came to the spot on 9-4-61 at about noon and seized alamats comprising one bell-metal cup with some quantity Musur dal, some curd in an earthen small pot and some Musur dal in an old earthen cooking pot by a seizure list, Exh. 1 and handed over the alamals to P. W. 16 Rashiduddin the investigating Officer of the case. These alamats were there after sent to P. W.18 Mr. Anwarul Karina the Chemical Examiner, Government of East Pakistan, Dacca for Chemical examination through the S. D. O., Bogra. The Chemical Examiner received from the S. D. O. 2 wooden boxes containing 4 exhibits which were marked A, B, C, D respectively by him. Exh. A con sisted of a glass bottle containing some quantity of dal, Exh. B was a bell-metal bati (cup) containing dried dal, Exh. C consisted bf some quantity of curd in an earthen pot and Exh. D was an earthen pot containing some dried dal. On chemical examination he found no poison in Exhs. C and D but detected oleander poison in Exhs. A and B i e. the dal in bell-metal cup preserved in a glass bottle and the dried dal in the cup itself. The Chemical Examiner also detected oleander poison in the visceras of Ayeruddin as mentioned earlier. The poison found in the dal in the bell-metal cup and that found in the visceras of Ayeruddin are the same kind of poison. This leads to the inference that the dal which was poured into the meal of Ayeruddin from the bell-metal cup contained oleander poison. No poison having been detected in the curd or the dried dal contained in the earthen pot recovered from the house of Alefa, one can presume that oleander poison was mixed with the dal in the bell-metal cup just before pouring it into the meal of Ayeruddin with a sinister motive. While the deceased alas taking his meal Ayesha brought the dal from Alefa's house and poured it into his plate. There was thus hardly any scope for others to mix poison with it.
The fact that accused Ayesha was all along insincere to her husband and once eloped with her finance, Gani, deserting Ayeruddin ; that she was always in link with Gani and allowing him to visit her secretly ; that she was gossiping with Gani, Khajamuddin and others behind the back of Ayeruddin ; that she received a package of paper from accused Khajamuddin in a suspicious manner ; that she did not cook any curry and brought some dal in a bell-metal cup from Alefa's house and then poured some dal into the plate of Ayeruddio against his will ; that after taking the dal when Ayeruddin was feeling burning sensation and was also vomiting and purging, she attempted to flee away by breaking the window ; that the statement of Ayeruddin that Ayesha must have poisoned him through dal ; that she pointed out a bell-metal cup containing some dal under their chouki ; that the village Prodhans fed a chicken with the dal in the bell metal cup with the result that the chicken died at once while another chicken wbich was fed with the curd and the dal brought from the house of Alefa did not die and that the chemical examiner detected oleander poison in the dal contained in the bell- metal cup and also in the visceras of deceased Ayeruddin and found no poison in the curd of dal brought from Alefa's house lead conclusively to the inference that oleander poison was mixed with dal in the bell-metal cup just before pouring it into the plate of Ayeruddin and that the poison was mixed with the dal by none else except accused Ayesha Khatun.
Mr. K. H. Rashid, learned counsel appearing for the accused has contended that the poison might have been mixed with the food by somebody else and the possibility of administering poison to Ayeruddin by others cannot be excluded and that P. W. 5 Sabejan having supplied the meat-curry to the deceased, she might be held responsible for poisoning Ayeruddin.
This argument, in our opinion, does not stand scrutiny. Sabejan is the sister of Ayerundin's mother. She has no bias or enmity with the deceased. There is nothing on record to show any ill-feeling or quarrel between them. The suggestion of quarrel has been stoutly denied by P. Ws. 2, 5 and others. Why she would administer poison to her sister's son who is also her step-son. She supplied meat-curry to Ayeruddin in good faith as Ayesha did not cook any curry at all. Although the meat-curry could not be seized or chemically examined as it was already exhausted, yet no aspersion can be cast on Sabejan on that score as she had no particular reason to administer poison to Ayeruddin through the meat-curry. Oleander poison having been detected in the dal contained in the bell-metal cup, it cannot be said that poison passed through the meat-curry. Again Ayeruddin having died due to poison at about 9 p.m. and the oleander poison having been detected in the viscera, the chance of mixing the poison with dal is the bell-metal cup subsequently by other seems to be very little.
The defence allegations that P. W. 6 Rashida supplied food to the deceased as Ayesha had not cooked rice, has no legs to stand. There is no evidence whatsoever to support the defence plea in this respect.
Learned counsel next contended that the circumstances as brought forward by the prosecution are not incompatible with the innocence of the accused and that the circumstances are not such as can rule out any hypothesis ocher than that of the guilt of the appellants. In this connection he also cited three decisions, viz., the case of Allah Ditta v. The State (P L D 1958 S C (Pak.) 290) the case of Siraj v. The Crown (P L D 1956 F C 123) and the case of Moina Mia v. The State (P L D 1966 Dacca 589).
We have carefully perused the three decisions referred to above and respectfully agree with the principles enunciated therein. The law with regard to circumstantial evidence is that in order to convict an accused solely on circumstantial evidence, the circumstances proved in the case must be incompatible with the innocence of the accused and incapable of explanation or any other hypothesis than that of the guilt of the accused. The chain of circumstances must be so strong as to rule out any reasonable theory of innocence of the accused and if there be a reasonable hypothesis consistent with the innocence of the accused, he will be entitled to an acquittal. It is only when there is apparently) no reasonable hypothesis consistent with the innocence of the accused or where on the facts hold proved, no hypothesis consistent with the innocence of the appellants can be suggested, the conviction must be upheld.
Considering the facts and circumstances of the present case, in the yard-stick of the above principles, we think that the chain of circumstances as discussed above, is indeed very strong so much so that it rules out any reasonable likelihood of innocence of the accused. The circumstances if taken individually or separately may not exclude altogether the possibility of the innocence of the accused, but all the circumstances taken together and considered cumulatively lead to one and only one inference that accused Ayesha Khatun administered the oleander poison to Ayeruddin through dal and in consequence thereof he died.
This is a case of poisoning. What are the points to be proved in a case of poison have been lucidly discussed in the case of Mst. Gajrani and another v. Emperor (144 I C 357). In that case it has been held that :-
"In a case of murder by poison, the following points have to be proved : Firstly did the deceased die of the poison in question : Secondly, bad 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 has further been held in that case that-
"It is not usual that reliable direct evidence is available to prove that the accused did actually administer poison to the deceased."
In the instant case it has been proved beyond reasonable doubt that the deceased died of oleander poison. It has also been proved that accused Khajamuddin supplied a package of paper to Ayesha and she received the paper package a little while before the poison was administered. There is no escape from the conclusion in the state of evidence in the case that Khaiamuddin actually passed poison in that paper packet and that poison was in the possession of accused Ayesha Khatun. She had certainly the opportunity to administer the poison to the deceased through the dal which she brought from Alefa's house and poured it into the plate of the deceased against the latter's will. She was always hostile to her husband Ayeruddin. All these facts having been satisfactorily proved in the case, in the light of the above decision and the circumstances discussed above a presumption can rightly be drawn that accused Ayesha Khatun did administer oleander poison to the deceased and did cause the death of Ayeruddin. In this connection there is no particular explanation on the part of the accused and as such the question of acceptability of any such explanation does not arise.
It may be mentioned here that the present case does not entirely depend on circumstantial evidence inasmuch as there is also an extra-judicial confession as well. Let us now discuss the evidence with regard to the extra-judicial confession.
The story of extra judicial confession by accused Ayesha Khatun has been proved by P. Ws. 1, 2, 5, 6, 7, 8, 9 and 10. P. Ws. 1, 2, 5, 6 and 7 have stated that on the morning of following the night of occurrence some leading men including P. Ws. 8, 9 and 10 assembled in house of the deceased Ayeruddin and on their query Ayesha confessed that at the instance of accused Abdul Gani and Khajamuddin she mixed poison with dal and poured it into the plate of Ayeruddin while the latter was taking his meal. She further confessed that the poison was supplied by accused Khajamuddin. The story has been corroborated by P. W. 8, Mohiruddin Mondal P. W. 9 Tasiruddin Mondal and P. W. 10 Afazuddin Mondal. These three witnesses have testified that they went to Ayeruddin's house on the morning following the night of occurrence and Ayesha told them that she poisoned her husband (Ayeruddin) through dal at the instigation of accused Gani and Khajantuddin and that the poison was given to her on the previous evening by accused Khajamuddin. Ayesha also stated that accused Gani also came with Khajamuddin but waited behind the house. P. Ws. 8, 9 and 10 are village pradhans and absolutely independent and disinterested persons. The witnesses referred to above have no reason to take false oath and there is no reason to disbelieve them. There is thus overwhelming evidence to prove the extra judicial confession of Ayesha and the prosecution has proved the said extra-judicial confession by convincing evidence.
It has been contended in this connection that the story of extra judicial confession by Ayesha is anything but true and that the confession was obtained from Ayesha by means of coercion, threat, intimidation and inducement. This criticism of the learned Advocate is against the weighty evidence on record. P. Ws. 1 and 2 have stoutly denied the defence suggestion that confession was obtained by coercion or threat or intimida tion or temptation. No Choukidar or Dafader was present at the time of confession by Ayesha. There is no iota of evidence to support the defence contention. It has already been told that P. Ws. 8, 9 and 10 are quite independent and disinterested witnesses and they have no reason to falsely depose against the accused. It thus appears that the confession was not obtained by any means of coercion, threat, intimidation or inducement and that it was made by Ayesha voluntarily. The confession is also true. It has been substantially corroborated in all respect by overwhelming evidence and the circumstance discussed shave. There is nothing on record to take any contrary view. We, therefore, hold that the extra-judicial confession of Ayesha proved by the P. Ws. named above is voluntary and true.
If a Court believes a confession-whether judicial or extra judicial, retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. This view has been expressed by a division Bench of the High Court of Wes Pakistan in the case of Nawabdin v. Crown (P L D 1952 Lah. 345). The Supreme Court of Pakistan in the case of the State v. Minhun alias Gul Hassan (P L D 1964 S C 813), observed as follows :-
"Retracted confessions whether judicial or extra judicial could legally be taken into consideration against the maker of those confessions himself and if his confessions were found to be true and voluntary then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession, judicial or extra-judicial whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."
We most respectfully agree with the principle of law enunciated therein and hold that the confession can form the basis of conviction in the present case.
It is true that an extra judicial confession in this country must be received with utmost caution and that as against judicial confession, extra-judicial confession called for a greater caution and care in their acceptance. In the present case although there is only oral evidence with regard to the confession of Ayesha Khatun, the evidence is of uniform--character and is supported by unimpeachable evidence of three village prodhans who are in no way interested to the complainant party nor hostile to the accused They made no discrepant statements whatsoever and their evidence is thoroughly consistent with regard to the extra-judicial confession. There is not an iota of evidence to support the defence plea that the extra-judicial confession was obtained by any sort of coercion, threat, intimidation or inducement. The extra-judicial confession has, therefore, been satisfactorily proved and is a substantial piece of evidence against the maker. The confession which is voluntary and true and receives corroboration from other materials on record can lead to conviction of the accused on its sole basis.
Mr. Harunur Rashid next contended that the confession has not been put to the accused when examined under section 34 of the Code of Criminal Procedure and no question having been asked about the confession, the accused has been highly prejudiced and as such the order of conviction is liable to be set aside.
We have already stated earlier that the extra-judicial con fession in this case has been proved by unimpeachable evidence of three independent witnesses that there is no reason to disbelieve it. The witnesses who have proved the extra-judicial confession have been thoroughly cross-examined by the defence. The accused were aware of the evidence and they took specific defence in the case denying the genuineness of the confession. In the circumstances although the entire confessional statement ha not been put to the accused under section 342, Cr. P. C., the accused cannot be called to have been prejudiced. A careful scrutiny shows that some portion of the confessional statement was put to the accused and the accused were conscious of the confession. In the circumstances, although the other portion has not been so specifically put, in view of the uniform evidence in the case, we do not think that the accused have been prejudiced in any way. Even accepting this argument we would at best direct a retrial in the case but in view of the overwhelming evidence, as indicated above, we do not think that any useful purpose will b served by it.
After giving a careful consideration to the facts and circumstances of the case together with the extra-judicial confession, we are convinced beyond a shadow of doubt that accused Ayesha Khatun committed the murder of her husband Ayeruddin by administering to him with the intention of causing death.
The next point that calls for determination in the case is whether accused Khajamuddin abetted Ayesba Khatun in the commission of the murder of Ayeruddin by supplying the poison which she administered to the deceased. P. Ws. 3 and 4 have proved the association of accused Ayesha Khajamuddin and others, as has already been discussed earlier. P. Ws. 1 and 6 have affirmatively stated that they saw Khajamuddin passing a paper packet to Ayesha at about dusk on the date of occurrence.
When she was asked as to what was passed to her by accused Khajamuddin, she was at first reluctant to reply but on being repeatedly asked, she replied that Khajamuddin supplied biri. This story has been discussed earlier and what was supplied to her by Khajamuddin has been indicated there. The evidence of P. Ws. 1 and 6 have satisfactorily proved the suppliance of paper packet to Ayesha. There is no escape from the conclusion in the state of evidence that Khajamuddin actually supplied poison through that paper packet. The direct evidence of these two witnesses finds corroboration in the extra-judicial confession of Ayesha which have been proved by P. Ws. 8, 9 and 10. Accused Khajamuddin has been named by accused Ayesha in the extra-judicial confession as a supplier of poison and she categorically stated to the village prodhans that Khajamuddin supplied poison in a paper packet on the previous evening of the night of occurrence.
It is true that Ayesha retracted the confession but that retraction is immaterial when it has voce been held to be voluntary and true. Extra judicial confession can be acted upon when it is found to be voluntary and true and is also corroborated in material particulars by other independent sources and the fact that such confession is subsequently retracted is immaterial.
In the present case, Ayesha's confession is by no means the only material in the case to be taken into consideration against Khajamuddin. The evidence of association furnished by P. Ws. 3 and 4 and the evidence of suppliance of paper packet to Ayesha by Khajamuddin, as deposed to by P. Ws. 1 and 6, particularly at a time just before the murder, cannot be ignored Khajamuddin has not offered any explanation in this respect and the question of acceptance of any such explanation does not arise in the case.
It is well settled that a confessional statement of an accused in so far as it implicates a co-accused is of very little value, but it would not be correct to say that it is of no value whatsoever.
It is also well settled that the statements of a confession of an accused cannot be the basis or foundation of conviction of co-accused. Its evidentiary value is not much by itself, but it can certainly be taken into consideration to strengthen the other evidence in the case and to lend an assurance to the same. To hold it is of no value at all would be to ignore the provisions of section 30 of the Evidence Act.
Considering the case in the light of the above principles, we hold that the extra judicial confession of Ayesha Khatun may be used in the case at least to strengthen the evidence of the other witnesses referred to above and to lend an assurance to the same as against Khajamuddin.
We are, therefore, convinced that accused Khajamuddin supplied poison to Ayesha Khatun and thus abetted Ayesha in the commission of the murder of Ayeruddin and that he has been rightly convicted in this case.
For the reasons stated above, the appeal is dismissed.
The order of conviction and sentence passed against the appellants is confirmed.
-I agree.
Appeal dismissed.
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