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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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