B.K. Patra, J.
1. The appellant and his elder brother Jogendra Kar were tried on charges under Section 328/302, Indian Penal Code for committing the murder of their youngest brother Baburi Kar by administering poison to him. Jogendra was acquit' ted but the appellant was convicted for the offences with which he was charged and was sentenced to imprisonment for life for his conviction under Section 302, I.P.C., but no separate sentence was imposed for his conviction under Section 328, I.P.C.
2. The deceased Baburi Kar who was the youngest of the three brothers was running a sweetmeat stall in Pakistan and was remitting money to his brother Gajendra Kar who was staying in the village, for the maintenance of the family. Jogendra Kar was working as a Panda for the pilgrims at Puri. The money which Gajendra was receiving from time to time was being utilised for purchase of lands. Round about the year 1964 Baburi came back from Pakistan to his village and the brothers lived jointly. In course of time, disputes arose amongst the brothers regarding division of the properties and the matter reached a climax during Raja festival of the year 1966. The disputes were referred to a Panchayat for amicable settlement. There was separation in mess and residence between Gajendra and the deceased. Jogendra was unmarried. The Panchayatdars decided that Jogendra should come down from Puri and effect the partition of the properties. Accordingly, Jogendra came from Puri and took up the matter but the division could not be effected. The prosecution case is that while the matters stood thus, the eldest brother Jogendra who had come down to the village and was staying with the appellant, invited the deceased on the morning of 14-7-1966 to go the Khanja of the appellant to eat some pithas (cakes). Gajendra's wife handed over the Pithas to Jogendra who in turn gave them to the deceased. The appellant Gajendra brought some gur (jaggery) from the Khanja and gave the same to the deceased to eat with the Pithas. The deceased ate the Pithas and the gur and after coming back to his Khanja complained to his wife (P.W. 2) that he was having reeling sensation and then he slept on a mat. After about an hour, he began to vomit. Both the accused then came to the deceased. The wife of the deceased raised a hulla on hearing which several persons of the locality gathered at the spot and they noticed that the vomitings were giving out smell of the poison endrex. On being questioned by the persons as to what happened to him, the deceased who was then not in a position to spea Merely pointed his fingers at his two brothers who were present there. As the persons who had gathered there remarked that the vomitings were giving a smell of endrex, the appellant got up and went inside his Khanja and came out with a bottle which he threw inside a cane bush in the backyard and then went away towards the river ghat. Some people ran to the river ghat and caught hold of the appellant and brought him back to the house. Meanwhile Baburi had expired. Information was sent to the police. The A. S. I. of Police came to the spot that night, took charge of the vomitings that had been preserved, held an inquest over the dead body and sent it for post-mortem examination. The viscera of the deceased was preserved by the Medical Officer who conducted the autopsy. The investigating officer who reached the place of occurrence on the night of 15-7-1966 seized the bottle M. O. I which the appellant Gajendra is alleged to have thrown in the bushes. The bottle M. O. I which was empty and the viscera of the deceased as also the vomitings which had been preserved were sent to the Chemical Examiner who detected endrine in the viscera, the vomitings and the washings of the glass bottle M.O. I. After completing necessary investigation, the two accused persons were put on trial.
2A. Both the accused persons pleaded not guilty. They denied having invited the deceased to eat Pithas and stated that the deceased never ate any Pithas in their house. There was therefore no occasion for them to administer any poison to the deceased. On finding that Baburi was vomiting, both the accused went near him. They denied the allegation that on being questioned by the persons who gathered at the spot as to what happened to him, Baburi pointed his fingers to the two accused. They stated that a Muslim compounder examined Baburi and asked the accused to get a doctor from Asureswar and so Gajendra went inside his house to put on his shirt and then went to the river ghat on his way to Asureswar. While he was sitting in the boat some people went and told him that Baburi had expired. It is thereafter that he came back to his house. Gajendra denied having thrown any bottle in bushes. Both the accused stated that during the absence of Baburi Kar in Pakistan his wife P. W. 2 was leading an immoral life and that on account of that she was being chastised by Gajendra. After Baburi came back from Pakistan, he heard about the immoral conduct of his wife and there were therefore constant quarrels between the husband and wife. He finally drove her out of his house a month before the Raja festival in 1966. She stayed with her brother P. W. 1 for about a month and then came back to Baburi's house on the first day of Raja. The suggestion of the accused was that Baburi either committed suicide by taking poison or poison was administered to him by his wife.
3. There is sufficient evidence on record to warrant the conclusion that death of the deceased Baburi Kar was due to poison. This position was not contested either before the learned Sessions Judge or before us in appeal and it is therefore not necessary to make any detailed reference to the evidence bearing on this point. Admittedly, there is no eye-witness to the actual administration of poison by either of the two accused to the deceased. But on the basis of the evidence on record, the learned Sessions Judge believed the prosecution case that on the morning of the date of occurrence, the deceased was invited by Jogendra to go to Gajandra's house to take pithas, that he did take Pithas and the gur given by Gajendra and that immediately afterwards he developed vomitings and died. It may be stated here that when the three brothers separated in mess and residence some time before the occurrence took place, two rooms were allotted to each of the three brothers in the family house. The two rooms adjoining the Danda, fell to the share of Baburi, the youngest brother. The doors of these two rooms have their openings into the inner court-yard. The two accused persons who remained joint had four rooms allotted to them two of which were separated from the two rooms of Baburi Kar by a courtyard. The living rooms allotted to Baburi were in the upper Khanja and the living rooms allotted to the accused persons were in the Tala Khanja. The kitchens however were located in the upper Khanja. P. W. 2 stated that when her husband went to take Pithas to the house of the accused, she was engaged in husking paddy and was therefore in a position to see the place where her husband was eating Pithas. According to her, Gajendra's wife handed over the Pithas to Jogendra who in turn served the same to the deceased Baburi. Immediately thereafter Gajendra brought some gur from inside his Khanja and gave it to Baburi to take along with Pithas, Three persons were therefore concerned in serving the Pithas and the gur to Baburi, namely, the two accused and the wife.of Gajendra. The possibility of Gajendra's wife administering the poison was eliminated because no suggestion at all was made to anybody that she might have administered the poison. The possibility of Jogendra administering the poison was eliminated by the learned Sessions Judge because P. W. 2 in her cross-examination stated
My husband's eldest brother Jogendra loved my husband utmost. My husband agreed for the partition of the properties by the eldest brother Jogendra.
The learned Sessions Judge did not believe that circumstances existed to warrant the conclusion that P. W. 2 herself might have administered the poison to her husband or that the latter had any reason to commit suicide by taking poison. Relying on a number of circumstances detailed in the judgment he came to the conclusion that it was Gajendra who must have administered the poison and accordingly convicted and sentenced him as stated above.
4. As already indicated, the finding of the learned Sessions Judge that the death of the deceased was due to poisoning is not assailed on behalf of the appellant. The report Ext. 20 of the Chemical Examiner shows that the poison endrine had been detected in the viscera of the deceased as well as in his vomitings which had been sent to the Chemical Examiner and examined by him. There is the positive testimony of P. W. 2 the wife of the deceased that her husband developed vomiting about an hour after he ate some cakes and gur in the house of the appellant. Doubtless her evidence on this point stands uncorroborated and the only other person Bhuban Maa who was helping her in husking the paddy and might have thrown some light on this part of the case has not been examined. It, therefore, becomes all the more necessary to scrutinise the evidence of P, W. 2 with greater care and to see if the other evidence in this case lends assurance to her testimony. P. Ws. 4, 5, 6, 7, 8, 11 and 12 are some of the persons who came to the house of Baburi on hearing the hulla raised by P. W. 2. By the time they went there Baburi was still alive although he was not able to speak. He was found struggling, tightening his hands, closing and opening his eyes and was also vomiting now and then. The two accused persons were present there. These witnesses say that P. W. 2 was then crying in the Danda saying that her husband had been killed by the accused. It is significant that despite this open and definite accusation made by P. W. 2 there was no protest either by the appellant or by his brother. If there was no basis for the accusation, one would have naturally expected them to protest. The significance of this circumstance cannot at all be lost sight of. Then there is the evidence of P. W. 7 who had stated that on an enquiry by her as to what happened to him, Baburi who was unable to speak pointed his two fingers towards his legs where the appellant and his brother were sitting. The statement of P. W. 7 on this point is corroborated by P. W. 2. Nothing has been suggested to P. W. 7 to show that she has any motive to falsely implicate the appellant or his brother. We do not see any reason why this part of the evidence should not be believed. It would be safe to infer from this part of the evidence that Baburi by means of gestures indicated that his two brothers were responsible for the condition in which he was found at that time. Baburi died as a result of poisoning. Any statement by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death is relevant under Section 32(1) of the Evidence Act. It is significant that in Section 32 the word used is 'verbal' and not 'oral'. Such a dying declaration may therefore be in writing or oral or may be made by signs and gestures in answer to questions when the declarant is unable to speak. In Alexander Perera Chandarsekera v. The King AIR 1937 PC 24 : 38 Cri LJ 281 the victim whose throat was cut by the accused was alive for some time and being questioned regarding the ofifence and the person who committed it, she answered the questions by signs and nods being unable to speak. She described the accused by signs and when she was asked whether that person was the accused she showed assent by a nod. The question having arisen as to whether her statement was relevant and admissible against the accused, it was held by their Lordships of the Privy Council that the statement made by the deceased constituted a verbal statement resembling the case of a dumb person and was relevant and admissible in evidence, under Section 32 of the Ceylon Evidence Ordinance (Act 14 of 1895) which corresponds to Section 32 of the Indian Evidence Act (Act I of 1872). By enacting Section 32, the Legislature in its wisdom' has placed a dying declaration on par with evidence on oath for the reason that at the time when a man is in danger of losing himself it is not likely that he would speak a falsehood and involve an innocent person. The weight attached to a dying declaration is such that in appropriate cases it may form the sole basis of a conviction. But, in this case, it is not necessary to go thus far because as would be shown hereafter, there are several circumstances which corroborate the dying declaration made by Baburi. We have already referred to the positive testimony given by P. W. 2 that Baburi was invited to take cakes in the house of the appellant and that there he did take the cakes handed over to him by logendra and the gur handed over to him by the appellant, and that shortly thereafter he developed vomiting which ultimately resulted in his death. We have also referred to the fact that in presence of the villagers P. W. 2 was openly accusing the appellant and his brother as having killed her husband by poisoning and that the appellant and his brother who were present when these accusations were made did not raise any protest. The third circumstance which is of significance is that after the people who had gathered at the spot gave out that the vomitings were smelling of end-rex, the appellant got up, went inside his house and came out with a bottle which he threw into the bushes in the Bari and then went away towards the river ghat. The Police seized this bottle M. O. I at 10.45 a.m. on the day following the occurrence under the seizure list Ext. 2. It is mentioned in the seizure list Ext. 2 that this bottle was smelling of endrex. This is also deposed to by P. W. 3 who was one of the witnesses to the seizure. The appellant denied having brought any bottle from inside his house and having thrown the same in the bushes. P. Ws, 2, 7 and 8 had specifically stated that the appellant got up from the place where Baburi was lying in a dying condition, went inside his own Khanja and then came oul holding a bottle under the folds of his cloth and then proceeded towards the Bari of the house. P. W. 8 had seen the appellant actually throwing the bottle into the bushes, and immediately declared about it and several persons ran to the Bari and saw the bottle lying in the said bushes. Nobody touched the bottle because P. W. 3 had cautioned them not to do so because the Police might require it for examination. This bottle was subsequently sent to the Chemical Examiner who detected endrine in the washings of the bottle.
5. There is then the circumstanca that after throwing the bottle Gajendra went away to the river ghat not through the usual pathway leading from his house to the river ghat, but through fields. He was then given a chase by some villagers and when they reached the river ghat, Gajendra was already seated in the boat. He was then brought back to his house. The explanation offered by the appellant to this part of the case is that one Musalman compounder of Tarat Sasan examined Baburi and suggested that the doctor from Asureswar might be brought and that therefore he (appellant) went into his house, put on a shirt, went to the river ghat and sat in the boat. Just at that moment some people came and informed him that Baburi died, and therefore he came back with them to his house. There is absolutely no evidence on record that a Muslim compounder had actually examined Baburi and that he suggested that the doctor should be brought from Asureswar. On the other hand, the positive testimony of P. W. 12 is that
Myself, Managovind Kar and several others seeing Gaji Kar running away in the paddy field north of his house chased him and captured him in the Pubandha river ghat, while going away in the boat and brought him back to his house. Though I did not ask, others asked where he was running. He told us that he was going to the hospital to bring a doctor. The path which he followed to the river side was across the paddy field. None uses that way to go to the hospital through the paddy field.
That some of the persons gave a chase after the appellant ran away towards the river ghat is spoken to by P. Ws. 4, 5, 7 and 8. We see no reason to discard their testimony. It follows from this evidence that the appellant brought out from his house an empty bottle in which endrine had previously been kept, threw it inside the bushes, ran away towards the river ghat and was sitting in a boat when people caught him there and brought him back to his house, and that the story that he got into the boat with a view to go to Asureswar to call a doctor is not proved. This conduct on the part of the appellant at a time when his brother was lying in a dying condition is a circumstance which is only consistent with his guilt and not with his innocence.
6. One of the contentions advanced on behalf of the appellant is that the prosecution case that shortly before his death, Baburi had taken any Pithas in the house of the appellant cannot stand in view of the post-mortem report Ext. 10 and the evidence given by the doctor P. W. 13 who conducted the post-mortem examination. Reliance is placed on the following statement made by the doctor.
The stomach content of the deceased was 11% ounces containing brown coloured liquid amounting to 6 ounces. The average minimum time for the complete disappearance of solid food materials inside the stomach is 3 hours. In this case I found no solid food in the viscera. If after taking food, poison is taken, at the time of vomiting a few particles are likely to come out. In case of rice the rice particles may be present. If it is Pitha it will remain in the form of undisgested gruel for 3 hours, if the man dies within 3 hours of taking his food. It was a slimy liquid (mucous liquid). The gruel was also not visible. In the case of gruel it is difficult to get and I could not also detect any trace of it after it was digested. Before digestion the gruel can be detected if it is visible. By gruel I mean liquid food. Pitha is not a gruel.
7. It is argued that if it takes three hours for the disappearance of the solid food materials inside the stomach, then in view of the prosecution case that the deceased began vomiting about an hour after taking the Pithas and died shortly thereafter one should have expected to find undisgested food particles inside the stomach and in the vomiting material and the absence of the same demolishes the prosecution case that shortly before his death Baburi had taken Pithas. The evidence given by the doctor is in general terms without any specific reference to the facts of the case. We have no reliable evidence as to the time that elapsed between the taking of Pithas and the death of Baburi. All that P. W. 2 says is that after eating the Pithas in the house of the appellant, her husband told her that the Pithas that he took were smelling something and that after eating them his head was reeling and then he slept on a mat on the Pinda and that about an hour thereafter when she was in the Khanja she heard the sound of vomitings by her husband. There is no evidence as to how long after Baburi started vomiting that he died. That apart there is evidence to show that after Baburi started vomiting, tamarind water and ginger water and such other digestive liquids were given to him. These might have accelerated the digestion. In these circumstances, the mere absence of undigested particles inside the stomach cannot in our opinion falsify the positive testimony of P. W. 2 that her husband had eaten Pithas in the house of the appellant. The absence of any food particles in the vomitings can also be explained. There is evidence to show that the appellant and his brother were pouring water over the vomitings. The suggestion of the prosecution is that the appellant deliberately did so with a view to avoid detection. The explanation offered by the appellant is that he did not pour water to wash the vomiting materials but that he was pouring water on the head and face of Baburi to cool and comfort him. The fact, therefore, remains that water was poured at that place which might have resulted in the earlier vomitings to be washed away. If at all any food particles had come out in the vomitings they must have been in the earlier vomitings which, as explained above, had been washed away. What was collected after the other villagers gathered at the spot were only the later vomitings and this accounts for the fact that no food particles had been found there.
8. An effort had been made by tha defence in the trial Court to establish that poison might have been administered to the deceased by his wife P. W. 2. It was stated by the appellant that P. W. 2 the wife of the deceased was having love affairs with Bhagbat Jena and Siba Charan Panda of the village during the absence of Baburi at Pakistan and that on this account she was being admonished by him. It seems, after Baburi came back from Pakistan, he heard about these love affairs and punished his wife on certain occasions, and finally drove her out of the house a month before Raja festival. P. W. 2 stayed with her brother for about a month and came back to the house of the deceased at 10 p. m. on the first Raja day. It is, therefore, suggested by the defence that on account of these circumstances, Baburi either committed suicide by taking poison himself or poison had been administered to him by his wife so that after his death she would lead a free life with her lovers. This suggestion was made to P. W. 2 and to her brother P. W. 1 and both of them vehemently denied it. P. W. 1 explained that before the three brothers had separated in mess and residence, P. W. 2 had complained to her husband that she would not be happy so long as the management was left with the appellant who did not give necessary articles for their maintenance. Due to this reason the deceased asked P. W. 1 to take his sister to his house for some time till matters improved and to bring her back as soon as he (deceased) made necessary arrangements for him and his wife to live comfortably. Accordingly P. W. 1 took his sister for about a month to his house and brought her back on the first day of Raja. If, as a matter of fact, there was any love affair in which P. W. 2 was involved, which, according to the appellant, had become so notorious that the husband had to drive away his wife from the house, surely people in the village would have come to know about it. But it is significant that although several persons of the village both male and female had been examined in this case, no such suggestion was made by any of them excepting P. W. 10 who is a Ward Member of the Grama Panchayat of the village to which the parties belong. He stated that it is not a fact that the deceased sent away his wife because he was highly displeased with her character. The learned Sessions Judge was, therefore, correct in his conclusion that there cannot be any truth in the defence suggestion that Baburi either committed suicide by taking poison or poison was administered to him by his wife.
9. Once the wife P. W. 2 is eliminated from the category of persons who might have administered poison to the husband there is no reason why she should falsely implicate the accused. It has to be remembered that immediately after her husband began vomiting and the Sahi people gathered at the spot felt the smell of endrex in the vomitings, she burst out saying that it is the brothers of her husband who had poisoned him. That outburst on her behalf was spontaneous and cannot in the circumstances be the result of a previously thought out plan to implicate the brothers falsely. In fact, it was elicited from her in cross-examination that her husband's elder brother logendra used to love her husband very much and it is on this ground that the learned 'Sessions Judge held Jogendra not guilty. Oespite this, P. W. 2, narrated the incident as it happened saying that it is Jogendra who invited the deceased to eat Pithas in the house of the appellant and that it is Jogendra again to whom Gajendra's wife 'handed over the plate containing the Pithas and Jogendra handed it over the deceased. The part played by Gajendra according to
10. Of the three persons who are connected with the transaction of giving Pithas to the deceased, there is no suggestion against the wife of the appellant that she had any motive to bring about the death of Baburi. Of the two brothers the appellant and Jogendra the latter was unmarried and had no family of his own. and consequently had not much of interest in the family property. It is to the appellant that Baburi was sending money from Pakistan and it is alleged against him that with that money he purchased properties not in the joint names of all the three brothers but in his own name. There is also evidence to show that during the search of his house, a large number of currency notes had been found concealed. It is the appellant who had considerable stake in the partition of the properties. When disputes arose about . partition, the Panchayatdars decided that the partition should be effected by Jogendra in whom obviously both the appellant and the deceased had confidence that he would be impartial. P. W. 11 had stated that the day on which Baburi died was the date fixed for partition of movables amongst the brothers. P. W. 2 herself had deposed that Jogendra loved the deceased most. It is, therefore, highly unlikely that Jogendra had intended to cause the death of Baburi, although it is he who on getting the Pithas from the wife of the appellant served the same to the deceased. The circumstances establish satisfactorily that unknown to his wife and to his brother Jogendra it is the appellant who administered the poison through the Gur he himself brought out from inside the house and served to the deceased. Uchhaba Naik P. W. 4 has stated that when at the place of occurrence, he asked the appellant what had happened the latter said that.. he was passing through Sani Saptaha (influence of Saturn) and that his fate was bad and that he would not have committed it.
This statement which had it stood alone might not have been of much consequence, considered in the light of the circumstances already referred to, again points out to the appellant as the person who is guilty of administering poison to the deceased.
11. After a careful consideration of the evidence and circumstances of the case, we are satisfied beyond reasonable doubt that the conviction of the appellant is well-founded and that there is no merit in this appeal which we accordingly dismiss. The appellant who was released on bail must now surrender and serve out the sentence.
K.B. Panda, J.
12. I agree.