Shanmughan Vs. State of
No(S). 1157 of 2007]
J U D G M E N T
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 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
victim Raji was sleeping on the fateful day in the bed room with her husband-
the appellant herein.
deceased and the appellant had a love marriage about 14 years prior to the
had three children from the said marriage.
is evidence of mal-treatment of the deceased by the appellant.
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:
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.
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.
contusion 1x0.6 cm and 1.7x0.8 cm over the front and back of left ear lobule
deep irregular wound 1.1x0.3 cm over the back of root of left ear.
wound 0.3x0.2 cm over the mucosal aspect of upper lip in between the left
canine and 1st premolar.
wound 0.5x0.2 cm over the mucosal aspect of lower lip opposite the lower left
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. 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. 5 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 6charred.[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 (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
is a clear motive for an accused to administer poison to the deceased,
the deceased died of poison said to have been administered,
the accused had the poison in his possession,
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
However, it appears that
on those principles which have been formulated by Justice 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. 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
death took place by poisoning.
the accused had the poison in his possession and.
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 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 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 out the remaining sentence.
(ASOK KUMAR GANGULY)