SHANMUGHAN Vs STATE OF KERALA
Bench: ASOK KUMAR GANGULY,T.S. THAKUR
Case number: Crl.A. No.-001157-001157 / 2007
Diary number: 21240 / 2006
Advocates: ROMY CHACKO Vs
LIZ MATHEW
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1157 OF 2007
SHANMUGHAN Appellant (s)
VERSUS
STATE OF KERALA Respondent(s)
J U D G M E N T
GANGULY,J
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 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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