G.K. Misra, J.
1. Arundhati has been convicted under Section 302, Penal Code and Maharagu Keut under Sections 302/109, Penal Code. Each one of them has been sentenced to R.I. for life.
2. Arundhati is the widow of deceased Nisakar Naik. Two days prior to the date of occurrence (3.6.1964) Nisakar and Arundhati shifted to one of the rooms of Narayan Banabada (P.W. 18). In the evening of that day Nisakar complained of colic pain. Arundhati mixed Gur and some powder with water and gave it to her husband as medicine. On taking it Nisakar felt a bitter taste. Arundhati gave him some Maduhi (fried, rice). He had also burning sensation and his tongue and throat were dried up. These are all symptoms of poisoning. He went to the village tank for bath. As he could not come back, P. Ws. 1 and 2 carried him to his house and placed him on a cot, He vomited. The deceased told P. Ws, 1, 2, 9 and 18 that he had burning sensation after taking the medicine given by his wife. Boon after he died. On post mortem examination poison could not be detected. A Theki (M.O. III) was seized from the house of Maharaghu. A tin Diba (M.O. II) and a Khuri (M.O.I) in which the mixture was given were seized from the house of Arundhati. These M. Os., with the viscera of the deseased were sent to the Chemical Examiner who reported that all of them contained oleander, prison. The defence of Maharaghu was simply one of denial. Arundhati staged that she merely gave some water to her husband when he wanted to take some medicine.
3. The learned Sessions Judge found that Arundhati administered oleander mixed with Gur to the deceased as a result of which he died. The finding stands amply established by the material on record. P.W. 18 is an independent witness. His statement is that immediately after Arundhati gave the mixture as medicine, the deceased complained of bitter taste. The viscera, the tin Diba and the Khuri contained oleander. The direct and circumstantial evidence leads to the irresistible conclusion that death was due to poison administered by Arundhati, This condition is reinforced by the statement made by the deceased to different persons as to the circumstances of the transaction resulting in his death. The deceased had told P. Ws. 1 and 2 that Arundhati gave him some medicine and after taking it he was feeling bitter taste and burning sensation in his body. P.W. 8 is the brother of Arundhati. He arrived at her house the moment he heard of illness of the deceased who made similar statement to him as to the cause why he was feeling bitter taste and burning sensation. P. Ws. 9 and 10 were present when the deceased made the statement to P.W. 8. P. Ws. 1, 2, 8, 9 and 10 are all disinterested witnesses and P. W. 8 is the own brother of Arundhati. Their evidence inspires confidence. The statements made by the deceased regarding the circumstances of the transaction which resulted in his death are admissible under Section 32(1) of the Evidence Act. We accordingly confirm the finding of the learned Session Judge that death was due to oleander poison administered by Arundhati.
4. It was contended that the prosecution failed to prove that Arundhati knew the mixture to be poison. Such an element is not essential in Section 300, Fourthly, Indian Penal Code, which runs thus:
Section 300 Except in the case hereinafter excepted, culpable homicide is murder,
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Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Arundhati committed the act of administration of poison. That oleander is a dangerous poison is well known to the people of the State. She knew that oleander poison was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. The act was also committed without any excuse for incurring the risk of causing death or such injury as aforesaid. The section thus applies in terms.
5. The essential ingredients in a case of poisoning are no longer in doubt. The matter is concluded by a series of Supreme Court decisions. In : 1960CriLJ682 , Anant Chintaman Lagu v. State of Bombay their Lordships pronounced that the prosecution establish three propositions in a case of poisoning (i) Death took place by poisoning (ii) Accused had the poison in his possession ; and (iii) Accused had the opportunity to administer poison to the deceased.
In this case, Arundhati had the poison in her possession and in fact administered the same and death took place by poisoning. Thus all the elements essential for a conviction are found.
6. In paragraph 59 their Lordships laid down that though the three propositions must always be kept in mind, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the 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 person, then the conviction can be rested on it.
The circumstantial chain in this ease is complete. The moment oleander was administered, the deceased complained bitter taste, burning sensation and drying up of the tongue and throat. Soon after he died. There can be no escape from the conclusion that death was due to poisoning.
7. It would be too much to expect the prosecution to establish that the accused knew that what was administered was poison. The answer to it is furnished in paragraph 65 of the afore, said Supreme Court decision. Their Lordships observed thus:
A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence, and his preparations for the commission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to avoid its detection. The greater his knowledge of poisons, the greater the secrecy, and consequently the greater the difficulty of proving the case against him. What assistance a man of science can give, he gives but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is nothing else each a course would be incumbent upon the prosecution.
8. In AIR 1926 Bom 518, Emperor v. Shetya Timma, the death was caused by Dhatura poisoning. After review of conflicting decisions on the point, their Lordships held that where the accused administered Dhatura poison to five men in order to facilitate commission of robbery and in consequence thereof three men died, the accused must be presumed to have knowledge that their act was so dangerous that it was likely to cause death. The acquittal of the charge under Section 302, Indian Penal Code, was set aside. The same view was taken in AIR 1930 Oudh 502, Emperor v. Chattarpal in that case a woman of middle age administered her husband with arsenic disguised in sugar and placed in his food. Their Lordships said that she must accept the full responsibility of her action which resulted in death. Gases where such drugs are administrated on the genuine impression that they would act as love philters and would not cause the death of the person to whom they were administered were noticed and distinguished.
On the principles enunciated in the aforesaid decisions we ate clearly of opinion that Arundhati was guilty of murder of the deceased by poisoning.
9. In this connection it is necessary to notice her defence. She stated that she only gave some water to the deceased and nothing else. In the Committing Court she stated that her husband kept some medicine. She mixed up the medicine with Our and gave it to him without knowing that it was poison and Maharagu gave no medicine to her. Before P.W. 12, who is an independent witness, she stated that accused Maharagu gave her some medicine. She mixed it with molasses and water and gave it to her husband who died as a result thereof. Thus her story regarding the circumstances under which she gave the mixture to the deceased is prevaricating. Her statement in the Sessions Court that she gave water only is falsified by the evidence of P.W. 18 and the statements of the deceased to various witnesses and by her own conflicting statements.
It was open to her to furnish an explanation consistent with her innocence. For instance, there may be cases where a bottle of medicine might be kept with a bottle of poison in the same cupboard. By a bona fide mistake the poison is administered in the place of the medicine. If a defence is taken about such a bona fide mistake, the explanation would be consistent with the absence of guilt. The accused is entitled to a benefit of doubt even if the truth of the version is not proved beyond reasonable doubt, Where, on the other hand, the accused does not offer an explanation, or offers a false explanation, that would furnish an additional link in the chain of circumstantial evidence lot the establishment of guilt AIR 1955 S.C 601, Deonandan v. State of Bihar.
10. It is necessary in this regard to examine the applicability of Section 106 of the Evidence Act. The normal rule is that the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. Section 106 of the Evidence Act does not affect this rule in any manner that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It cannot be invoked to make up the defect of the prosecution to produce evidence of facts and circumstances leading to the guilt of the accused. Prosecution must establish all elements of the offence. Positive1 facts must always be proved by the prosecution,! This rule has always however, no application to negative facts. It is not for the prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. When a person does not act with some intention Other than the character and the circumstances of the act suggest, it is not for the prosecution to eliminate all other possible intentions. If the accused had a different intention, that is a fact especially within his knowledge which he must prove. Illustration (a) appended to Section 106 of the Evidence Act is directly on the point. The same view has been taken in AIR 1960 Mad 218, In re Naina Mohamed.
11. The position may be illustrated with reference to this case. Prosecution established its cage beyond reasonable doubt by proving that Arundhati administered oleander poison and that the death of the deceased was as a result of such poisoning. Once the prosecution proved that what was administered was poison, it established that Arundhati knew that the poison was so imminently dangerous that it must in all probability cause death. Such inference is of commonsense. If, however, Arundhati had a different intention in administering the poison, for instance, a poison was given in the place of a medicine by bona fide mistake or by way of love philters to see that the husband is attracted towards her and not towards some other woman, such intention is a fact especially within her knowledge. It is for her to prove such an intention which would furnish a rational explanation consistent with her innocence. It is not the duty of the prosecution to anticipate and eliminate all such intentions.
12. The learned Sessions Judge held that illicit intimacy between Maharagu and Arundhati had not been established. Doubtless there is no positive proof of the existence of sexual intercourse; but there are broad facts tending to show that the association of Arundhati with Maharagu did not receive the approval of the deceased to the knowledge of both of them (Maharagu and Arundhati). Once Maharagu and Arundhati had gone together to husk paddy. The deceased appeared on the scene with a stick to chastise Arundhati. Maharagu left the place. 'We are not inclined to agree with the learned Sessions Judge that administration of poison was without any motive. Even assuming that no motive is established, prosecution case is not thereby in any manner weakened. Existence of motive is not an essential component in proof or the offence. The conviction of Arundhati is well founded.
13. So far as Maharagu is concerned, there was recovery of a Theki from his house which on chemical examination was found to have contained oleander. There is, however, no evidence that oleander poison was supplied by Maharagu to Arundhati. P.W. 12 stated that Arundhati admitted before him that Maharagu supplied a medicine which she administered to the deceased. Arundhati was not in the witness box and Maharagu had no opportunity to cross-examine her. P.W. 12's statement against Maharagu is hearsay and is not admissible against him. Thus though a strong suspicion attaches to Maharagu. there are no positive materials to support his conviction. Suspicion is not proof. He is accordingly entitled to acquittal.
14. The conviction and sentence passed on Maharagu Keut are set aside and his appeal is allowed. To that extent the judgment of the learned Sessions Judge is set aside. The appeal of Arundhati Keutuni is dismissed.
A. Misra, J.
15. I agree.