Maniyan Vs. State of Kerala - Court Judgment

K.G. Balakrishnan, J.

1. The appellant was tried by the Sessions Court, Kottayam for the offence punishable under Section 302, I.P.C. He has been convicted by the Sessions Court for the offence under Section 304 Part II, I.P.C. and sentenced to undergo rigourous imprisonment for a period of 7 years.

2. Deceased Chandikunju is a tea shop owner. On 6-7-86 he had gone to his parents' house as he wanted some financial assistance from his father. He had his supper from the family house and he returned to his place of abode in the evening. He had to walk through a field bund. There were cocunut trees in the field bund, and some of them were used for toddy tapping. It is alleged by the prosecution that on his way back deceased Chandikunju stealthily consumed some toddy from the 'matom' (an earthern pot kept on the tree for collecting toddy) kept in one of the trees. By about 10.30 p.m. he reached his house and told his wife (PW 5) that he had taken supper from his father's house and so saying he retired to his bed room. By about 1 O'clock in the night PW 5 heard the sound of opening of door. Then she saw the deceased vomitting. There was also diarrhoea. Deceased told PW 5 that on the way from his father's house, he had consumed toddy from a cocunut tree and he suspected some admixture of poison in the toddy. Deceased Chandikunju vomitted several times and by about morning he was completely exhausted. PW 5 informed the brothers of deceased Chandykunju and at 8 a.m. on 7-7-1986 Chandykunju was admitted in the Medical College Hospital, Kottayam. By about 3 p.m. PW 5 told the doctors that the symptoms of nausea and vomitting were due to the drinking of adulterated toddy. Then the doctor who had been treating Chandikunju wanted to know as to which type of poison might have been added in the toddy. PW 1, the brother of deceased Chandykunju hired a taxi and proceeded to the house of the accused. After much persuation the accused told that he had added Nuvacron in the toddy to prevent pilfering of toddy. This was conveyed to the doctors. But the doctors could not save the life of Chandikunju. He died at 9 a.m. on 8-7-1986.

3. PW 1, the brother of deceased Chandykunju, gave Ext.P1 information before PW 15. On the basis of Ext.P1 statement crime No. 116/86 was registered against the accused. PW 17 took over the investigation. He inspected the place of occurrence and prepared Ext.P17 mahazar. He also recovered the earthern pot used for collecting toddy and MO2 leaves found near the coconut tree. PW 16, the Sub Inspector of Police, held inquest over the dead body and Ext.P16 is the report. Some of the material objects were sent for chemical analysis and Ext.P23 is the Chemical Analyst's report. The post mortem examination was conducted by PW 11 and Ext.P7 is the post mortem certificate. PW 17 thereafter filed the final report.

4. On the side of the prosecution PWs 1 to 17 were examined. Exts. P1 to P23 were marked. The prosecution adduced evidence to the effect that the appellant had filed a complaint before police that the toddy tapped by him was pilfered by some of the persons in the locality. The prosecution also relied on the dying declaration of deceased Chandikunju and the extra judicial confession alleged to have been made by the appellant to PW 1. The court below accepted the prosecution case mainly on the basis of the circumstantial evidence adduced in this case. The appellant in this case totally denied his involvement in the crime. The learned counsel for the appellant contended that the circumstances relied on by the court below are not sufficient to hold that the appellant committed the offence. The counsel further contended that the evidence on record would only create a serious suspicion against the accused and each link in the chain of circumstantial evidence relied on by the court below is very weak and fragile and no reasonable prudent man could accept the same.

5. The fact that Chandikunju died on 8-7-1986 at 9 a.m. while undergoing treatment in the Medical College Hospital, is not disputed. The case of the prosecution is that the consumed toddy adulterated with poison and it resulted in his death. Ext.P7 post mortem certificate issued by PW 11 coupled with the chemical analyst's report would show that Chandikunju died of organo phosphorus compound, which is a poisonous substances. The case sheet pertaining to the treatment of Chandikunju has been marked as Ext.D1 in this case. The learned Counsel for the appellant pointed out that in Ext.D1 the words Organo Phosphorus and Nuvacron was subsequently added. It is not possible to accept that conention. The case sheet would show that the doctors knew that a poison by name Nuwacron was added to the toddy. It is also contended on behalf of the appellant that there is no evidence to show that Nuvacron is an organo phosphorus compound. It is true that either PW 11 or PW 12 has not deposed that Nuvacron is an organo phosphorus compound. Ext.P9, the Chemical Analyst's report, would show that the stomach contents, intestine, kidney, blood and urine contained highly poisonous substance such as organo phosphorus compound and methyl alcohol. In Ext.D1 case sheet it is mentioned that Nuvacron is an organo phosphorus compound and the appellant did not dispute this fact during trial. So, the medical evidence coupled with Ext.P7 post mortem certificate and Ext.P9 chemical analyst's report would conclusively prove that Chandikunju died of poison by name Nuvacrown, which is an organo phosphorus compound.

6. The next item of evidence relied on by the prosecution is the dying declaration alleged to have been made by deceased Chandikunju. PWs 1, 4, 5 and 7 deposed that they were told by deceased Chandikunju that he had consumed toddy and at the time of drinking the same the toddy had a bitter taste and Naucea and vomitting was due to the drinking of adulterated toddy. The above statement is a relevant fact since it gives some indication leading to the death of the victim. The evidence of these four witnesses were severally attacked by the appellant's counsel for the reason that the deceased was in a serious condition and he was unable to give any statement. The evidence of PW 12, the doctor who treated deceased Chandikunju, was pressed into service to canvass this proposition. Of course PW 2 stated that the speech of deceased Chandikunju was slurred and he was not able to give any coherent answers. The condition of the patient would have been serious. However, the evidence of these witnesses cannot be rejected for that reason. There is no case that deceased Chandikunju was in a thoroughly exhausted condition and that he was unable to utter a syllable. He would have been definitely in a position to convey his ideas to his near relatives. Especially the evidence of PW 1 in this regard cannot be rejected. PW 5 deposed that by about 1 O'clock in the night he heard the sound of deceased Chandikunju opening the door. Thereafter she saw the deceased vomitting. Naturally PW 5, the wife, would have been curious and anxious to know what had happened to her husband. PW 5 further deposed that deceased Chandikunju said that he had consumed toddy from the tree standing on the field bund. I find no reason to disbelieve the evidence of PW 5. So, even if the evidence of PWs 1, 4 and 7 are discarded on the aspect of dying declaration, the evidence of PW 5 is so convincing and there is a ring of truth.

7. The next important circumstance is the evidence of PW 1 regarding the alleged extra judicial confession. PW 1 deposed that he had also accompanied his brother to the Medical College Hospital, Kottayam and in the evening of 7-7-1986 the doctors wanted some clue as to what type of poison had been consumed by the patient. PW 1 rushed to the appellant and he interrogated the appellant. The appellant was initially not prepared to divulge the details. On persuasive questioning the appellant stated to PW 1 that he had added Nuvacron to the toddy. Immediately thereafter PW 1 conveyed this matter to the doctors. Ext.D1 case sheet also would show that the doctor knew that it was Nuvacron which was added to the toddy. So the alleged extra judicial confession is probabilised by the entries found in Ext.D1 case sheet. One important aspect pointed out by the appellant's counsel is that in Ext.P1 information PW 1 did not make any revelation regarding the extra judicial confession made by the appellant. He also did not mention that it was Nuvacron which was added to the toddy by the appellant. Merely for the reason that the same was not mentioned in Ext.P1, it cannot be taken as a ground to reject the extra judicial confession. It seems quite probable that the doctors were not in a position to give any sort of treatment as they were unable to know the actual poison consumed by the patient. If the type of poison was known to the doctors they could have very well taken a particular type of treatment and given the antidote. So, it is likely that they would ascertain from the by standards as to what line of poison was consumed by the patient. It is equally probable and natural that PW1 would approach the appellant and seek the information to save his brother who was struggling for his life. So, in the circumstances of the case. I am inclined to hold that the evidence of PW1 in this regard is acceptable

8. The next item of evidence is whether the appellant was tapping toddy from the particular tree and he had in fact added the poison in the toddy. In a case of death by poison it is the duty of the prosecution to prove that the accused had access to the poison and that he had also the opportunity to add the poison to the substance which was consumed by the deceased. In this case the prosecution has produced a bill showing that the appellant had purchased Nuvarcron from a fertilizer shop. Of course the evidence in this regard is not sufficient to create a strong suspicion against the appellant. PW8 is the shop owner, who sold one bottle of Nuvarcron to the appellant under Ext. P5 bill. The bill is dated 6-12-1985 that is few months prior to the date of occurrence. It is proved that the appellant was an agriculturist. Nuwacron is an insecticide, which is commonly used as a pesticide. Probably the appellant might have purchased the same to use as a pesticide. The purchase of Nuvarcron under Ext. P5 bill itself is not a strong circumstance to be used against the appellant. However, there is yet another circumstance to show that the appellant had strong motive and in all probability he might have added poison to the toddy. Ext. P13 is a complaint submitted by the appellant and another before the police station. In the complaint it is alleged that several persons of the locality had been pilfering toddy from the pot kept in the tree for collecting toddy and in Ext. P3 it is also alleged that this sort of mischief is being done regularly and he was unable to control the same and he found it difficult to earn his livelihood. A reading of Ext. P13 would show that the appellant was in a very difficult situation and was under a desparate condition. There is also evidence of PW3, the father of deceased, that the appellant had complained to him that the deceased was also indulging in the pilfering of toddy. Ext. P13 complaint and the attendant circumstances would show that the appellant had strong motive in adding poison to the toddy.

9. There is also evidence to show that the appellant was tapping the coconut tree which was standing on the field bund. This is spoken to by PW7 and also PW5 the toddy shop contractor. Therefore, the evidence of prosecution conclusively proved that in all probability the appellant had added poison to the toddy and the deceased Chandikunju happened to consume the same and it ultimately resulted in his death. All the links in the circumstantial evidence conslusively proved that it was the appellant and none else who added poison to the toddy. Therefore the finding of the learned Sessions Judge that the appellant was responsible for adding poison to the toddy is correct and proper.

10. The next point that would arise for consideration is whether the offence committed by the appellant would come within the purview of Section 304 Part II, I.P.C. The learned counsel for the appellant contended that the offence if any, would come within the purview of Section 304A of the I.P.C. I am unable to accept this contention. The death of the victim has happened within two days. Evidence shows that sufficient quantity of poison was added to the toddy and Nuvacrone is an insecticide and the fact that the appellant was an agriculturist would show that he was aware of the potency of this insecticide. So the intention has to be gathered from the nature of the act committed by the appellant. Illustration (d) to Section 299, I.P.C. reads as follows:

'A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls and is killed. A has committed the offence of culpable homicide.' The above illustration shows that the, offence of this nature would come within the purview of culpable homicide. In the present case the appellant added poison to the toddy without caring for the possible consequence of the potiential victims of his negligence and want of care. So the offence would come within the purview of Section 304, Part II, I.P.C.

11. The next point that would arise for consideration is whether any interference is called for in the case of sentence. Ext. P13 complaint submitted by the appellant to the police would show that the appellant was in a desparate condition and he possibly might have done the crime, when he reached the tether end. The appellant was unable to earn the profit of his work and the complaint was that on several time toddy was pilfered by the miscreants. So in a desparate and angry mood he had done the crime possibly without apparent reason that the same would be consumed by the deceased. Therefore I am of the view that a leniency should be shown towards the accused in the case of sentence. I reduce seven years' rigorous imprisonment to 3 years rigorous imprisonment.

With the modification in sentence the criminal appeal is disposed of.