Shanmughan vs State Of Kerala

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 I.P.C and gave him life imprisonment. No

separate sentence was given for Section 323.

The material facts as appearing from the

judgments are 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:

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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 about 14 years prior to

the incident.

3. They had three children from the said

marriage.

4. There is evidence of mal-treatment of

the deceased by the appellant.

5. Their son PW 5 deposed that there were

some quarrel between the father -

appellant and mother - deceased and

with the intervention of neighbours the

deceased was sent to her parental home.

This happened couple of weeks prior to the death

of the deceased. It is also evident from the

evidence that the appellant developed 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 strained.

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 injuries on the body of

the deceased. The injuries are set out herein below:

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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 9.5 cm to the right of midline.

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 mucosal aspect of upper lip in between the left canine and 1st premolar.

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

7. Lacerated wound 1.3x0.6 cm over the mucosal aspect of lower lip close to the left angle of mouth and in between injury number 5 and 6.

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.

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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 by the appellant by

showing that there is no gap in the chain of

circumstances proved by it.

We take up for consideration the last submission

made by the learned counsel for the appellant. We are

inclined to agree that when a case is sought to be

proved by the prosecution on the basis of

circumstantial evidence, the burden on the prosecution

is that it must prove each circumstance in such a way

as to complete the chain and at the same time it should

be consistent with the guilt of the accused. Any

reasonable doubt in proving the circumstances must be

resolved in favour of the accused. The accused must be

given the benefit of any fact or circumstance which is

consisted with his innocence, which is to be presumed,

unless the contrary is proved by chain of

circumstances.

If we go to the aforesaid principle, we find that

in the instant case, the prosecution has succeeded in

proving the motive of the appellant and the entire

chain of circumstances is consistent with the guilt of

the appellant.

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On the fateful night, admittedly nobody was

present in the bed room where the appellant and the

deceased were sleeping as husband and wife. The

victim admittedly screamed at about 2 a.m. This

attracted the inmates of the house to rush to the bed

room to find the victim dead as a result of

administering of poison. This is not in dispute.

The only dispute is who administered the poison,

and 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 of the prosecution that the

victim died of cyanide poison which is a highly

corrosive poison and is obtained by distilling

potassium cyanide or potassium ferrocyanide with dilute

sulphuric acid. [See: Modi, a textbook of Medical

Jurisprudence and Toxicology 24th Edition Year 2011

Page 260, Chapter 12, Section 2]. As a result of

administering such corrosive poison, there is bound to

be local and chemical action of corroding and

destroying all tissues which come in contact with it.

[See: Modi (supra) page 31, Chapter 2, Section 2)

The post mortem examination in cases of death by

administering such corrosive poison,would show that the

mouth, lips, skin and mucous membrane are corroded in

patches and in acute cases, the same may be

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charred.[See: Modi (supra) pages 33-37, Chapter 2,

Section 2).

In this case, we find from the injuries discussed

above that there is presence of lacerated wounds on the

lips, contusions in the ear and abrasions in the chest.

These injuries clearly show that some force was used

while administering the poison. Without any force these

injuries could not be there in a case of suicidal

poison. Apart from the appellant no one was there in

bed room to apply force on the victim. That apart the

evidence of PW 7 also shows that all the injuries were

fresh injuries and cannot be sustained by fall on a

hard substance. PW 7 also deposed that the injuries

could be because of forcible administration of poison.

Thus the prosecution has rightly proved that it is a

case of murder and there is no reason for our

interference.

On the next point urged by the learned counsel

that as the prosecution has failed to prove that the

appellant had the possession of poison, the

prosecution's case will be vitiated, we are not

accepting the aforesaid proposition. However, in

support of the aforesaid submission, learned counsel

for the appellant relied upon a three Judge Bench

decision of this Court in the case of Sharad

Birdhichand Sarda vs. State of Maharashtra reported in

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(1984) 4 SCC 116 and the learned counsel relied upon

paragraph 165 at page 188 of the judgment where Justice

Fazal Ali, J. formulated certain propositions to

indicate that in a case relating to murder by poison,

four important circumstances can justify a conviction

and His Lordship laid down the following principles:

"1. there is a clear motive for an accused to administer poison to the deceased,

2 that the deceased died of poison said to have been administered,

3. that the accused had the poison in his possession,

4. that he had an opportunity to administer the poison to the deceased"

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.

Here the facts are much more loaded against the

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 Fazal

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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.

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.

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

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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".

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.

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).

In Bhupinder Singh vs. State of Punjab reported in

(1988) 3 SCC 513, this question has been fully answered

by this Court in paragraph 25 which reads thus:

"We do not consider that 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 investigating officer to come and collect it. The person who commits such

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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 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".

Similarly, in a subsequent decision of this Court

in the case of Nirmala 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".

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.

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

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out the remaining sentence.

.................J (ASOK KUMAR GANGULY)

...................J (T.S. THAKUR) New Delhi;

Dated: JANUARY 19, 2012

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