SHANMUGHAN versus STATE OF KERALA

This appeal is from the judgment and order of conviction dated 13.6.2006 of the Division Bench of the Kerala High Court in Criminal Appeal No. 1303 of 2003 whereby the High Court confirmed the judgment and order of sentence of the learned Trial Judge. The Sessions Judge, Thrissur in Sessions Case No. 224 of 2002 convicted the appellant under Sections 323/ 302 l.P.C and gave him life imprisonment. No separate sentence was given for Section 323.

p. 414, margin F

The material facts as appearing from the judgments are A that one Raji, wife of the appellant died as a result of poisoning on having been administered cyanide on the night of 2nd March, 1992. In this case, there are certain admitted facts: 1. The victim Raji was sleeping on the fateful day in the bed room with her husband- the appellant herein. 2. The deceased and the appellant had a love marriage atiout 14 years prior to the incident.

p. 415

They had three children from the said marriage.

p. 415

There is evidence of mal-treatment of the deceased by .the appellant.

p. 415

Their son PW 5 deposed that there were some D quarrel between the father - appellant and mother - deceased and with the intervention of neighbours the deceased was sent to her parental home. 3. This happened couple of weeks prior to the death of the E deceased. It is also evident from the evidence that the appellant devel6ped suspicion about the character of the deceased and · tortured her in the past. There is evidence of the deceased suffering from burn injuries from cigarette buts inflicted by the appellant. Therefore the relationship between the couple was F strained. · 4. PW 7 Dr. N. Rajaram, Lecturer in Forensic medicine, Medical College, Thrissur who conducted the post mortem examination on the body of the deceased found the following G injuries on the body of the deceased. The injuries.are set out herein below: 1. Abrasion 0.4x0.1 cm oblique over the back of chest; its lower end 17.5 cm above the hip bone and its upper end 9.6 cm to the right of midline. H 2. Crescentic abrasion 0.5x0.1 cm vertical over the back of lower part of chest; its upper end 6.5 cm to the left of midline; its lower end 21.5 above hip. 3. Skin contusion 1x0.6 cm and 1. 7x0.8 cm over the front and back of left ear lobule 4. Skin deep irregular wound 1.1x0.3 cm over the back of root of left ear. 5. Lacerated wound 0.3x0.2 cm over the mucosa! aspect of upper lip in between the left canine and 1st premolar.

pp. 415–416

Lacerated wound 0.5x0.2 cm over the mucosa! aspect of lower lip opposite the lower left canine ..

p. 416, margin C

Lacerated wound 1.3x0.6 cm over the mucosa! aspect of lower lip close to the left angle of mouth and in between injury number 5 and 6. 5. Assailing the concurrent finding of facts, the learned counsel appearing for the appellant made his first submission . that the prosecution has not proved that the appellant was in possession of the poison which is said to have been administered on the deceased. The next argument is that the defence suggestion that the deceased committed suicide by taking poison herself cannot be ruled out in view of the fact that the deceased was not going out any where and was simply confined in her house. 6. The next submission of the learned counsel is that there is no direct evidence and the entire case is based on the circumstantial evidence. Since this is a case of circumstantial evidence, the prosecution can only succeed in proving the guilt b¥ the appellant by showing that there is no gap in the chain of circumstances proved by it. 7. We take up for consideration the last submission made by the learned counsel for the appellant. We are inclined agree that when a case is sought to be proved by prosecution on the basis of circumstantial evidence, the burden on the prosecution is that it must prove each circumstance such a way as to complete the chain and at the same time should be consistent with the guilt of the accused. reasonable doubt in proving the circumstances must resolved in favour of the accused. The accused must be the benefit of any fact or circumstance which is consisted his innocence, which is to be presumed, unless the contrary proved by chain of circumstances.

pp. 416–417, margin D

If we go to the aforesaid principle, we find that in instant case, the prosecution has succeeded in proving motive of the appellant and the entire chain of circumstances is consistent with the guilt of the appellant.

p. 417, margin C

On the fateful night, admittedly nobody was present the bed room where the appellant and the deceased sleeping as husband and wife. The victim admitted!y screamed at about 2 a.m. This attracted the inmates of the house to to the bed room to find the victim dead as a result of administering of poison. This is not in dispute.

p. 417, margin C

The only dispute is who administered the poison, whether it was a case of suicidal poisoning or homicidal poisoning. The injuries which have been found on the deceased by PW 7 are very vital to answer this question. It is the case the prosecution that the victim died of cyanide poison which a highly corrosive poison and is obtained by distilling potassium cyanide or potassium ferrocyanide with dilute sulphuric [See: Modi, a textbook of Medical Jurisprudence Toxicology 24th Edition Year 2011 Page 260, Chapter Section 2]. As a result of administering such corrosive poison, there is bound to be local and chemical action of corroding destroying all tissues which come in contact with it. [See: (supra) page 31, Chapter 2, Section 2)

p. 417, margin E

The post mortem examination in cases administering such corrosive poison, would show that lips, skin and mucous membrane are corroded in in acute cases, the same may be charred.(See: pages 33-37, Chapter 2, Section 2).

p. 418, margin A

In this case, we find from the injuries discussed that there is presence of lacerated wounds contusions in the ear and abrasions in the chest. These clearly show that some force was used while administering poison. Without any force these injuries could not case of suicidal poison. Apart from the appellant there in bed room to apply force on the victim. That evidence of PW 7 also shows that all the injuries injuries and cannot be sustained by fall on a hard PW 7 also deposed that the injuries could be forcible administration of poison. Thus the prosecution rightly proved that it is a case of murder and there for our interference.

p. 418, margin B

On the next point urged by the learned counsel the prosecution has failed to prove that the appellant possession of poison, the prosecution's case will we are not accepting the aforesaid proposition. support of the aforesaid submission, learned counsel appellant relied upon a three Judge Bench decision in the case of Sharad Birdhichand Sarda vs. Maharashtra reported in (1984) 4 SCC 116 and counsel relied upon paragraph 165 at page 188 of where Justice Fazal Ali, J. formulated certain propositions indicate that in a case relating to murder by important circumstances can justify a conviction Lordship laid down the following principles: "1. there is a clear motive for an accused to poison to the deceased, 2 that the deceased died of poison said to have been · A administered, 3. that the accused had the poison in his possession, 4. that he had an opportunity to administer the poison to the deceased" B

pp. 418–419, margin C

We have gone through the said judgment carefully. We find that in the said case, the learned Judges gave the accused the benefit of doubt in view of the last seen theory.

p. 419

Here the facts are much more loaded against the C appellant. In this case, the appellant and the deceased were admittedly sleeping together at the night-of occurrence inside a bed room and no third person was there and administration of poison took place inside the bed room. However, it appears that on those principles which have been formulated by Justice D Fazal Ali, some doubts were expressed both by Justice Varadarajan and Justice Mukharji, JJ (as His Lordship then was) in paragraphs 199 and 204 of the Judgment. However, the learned Judges agreed with the conclusions reached by Justice Fazal Ali. E

p. 419

Another three Judge Bench of this Court in a matter relating to murder by poisoning gave a unanimous verdict formulating different principles. In the case of Anant Chintaman Lagu vs. The State of Bombay reported in AIR 1960 SC 500, Justice Hidayatullah (as His Lordship then was) elaborated these principles succinctly in paragraph 58 of the judgment. His Lordship referred to three principles which are necessary to prove in order to return a conviction in a case of murder by poisoning. Those principles are as follows: a. That death took place by poisoning. b. That the accused had the poison in his possession and. c. That the accused had an opportunity to administer the poison to the deceased. H

p. 419

At page 520 of report, in paragraph 59, the Learned Judge clarified those principles by saying that "three propositions must be kept in mind always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the facts of each case''. His Lordship further clarified by saying "If circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that the death was a result of administration of poison and that the poison must have been administered by the accused persons, then the conviction can be rested on it".

p. 420, margin A

In the instant case, there was no third person in the bed room and there are clear injuries on the deceased, which cannot be self inflicted. Therefore, poison could only be administered by the accused - appellant.

p. 420, margin C

Reference in this connection can also be made to other judgments of this Court where this Court has taken a view which is consistent with the view taken by the unanimous three Judge Bench of this Court in Anant Chintaman Lagu (supra).

p. 420, margin C

In Bhupinder Singh vs. State of Punjab reported in (1988) 3 sec 513, this question has been fully answered by this Court in paragraph 25 which reads thus: "We do not consider thaf there should be acquittal or the failure of the prosecution to prove the possession of poison with the accused. Murder by poison is invariably committed under the cover and cloak of secrecy. Nobody will administer poison to another in the presence of others. The person who administers poison to another in secrecy will not keep a portion of it for the invest:gating officer to come and collect it. The person who commits such murder would naturally take care to eliminate and destroy the evidence against him. In such cases, it.would be impossible for the prosecution to prove possession of poison with the accused. The prosecution may, however, establish other A circumstances consistent only with the hypothesis of the guilt of the accused. The court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused". B

pp. 420–421, margin E

Similarly, in a subsequent decision of this Court in the case of Nirma/a Devi vs. State of J & K (1994) 1 SCC 394, this Court again affirmed the aforesaid principles in paragraph 7 by holding as follows: " ........ Yet another submission of the learned Counsel is that the prosecution has not established as to how the appellant came into possession of arsenic poison. We are of the view that this by itself does not affect the prosecution case when the other evidence is clinching". D

p. 421

In the instant case, at the time of his statement under Section 313 Cr.P.C also, the attention of the accused appellant was specifically drawn by the trial court to the injuries on the deceased. To that the appellant did not give any answer. E

p. 421

Therefore, taking all these facts and also the concurrent findings of the two courts, we are not inclined to interfere in this appeal. The appeal is accordingly dismissed. The appellant is to serve out the remaining sentence. N.J. Appeal dismissed.

p. 421