IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.09.2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal No.1306 of 2004 Kuppusamy .. Appellant versus Inspector of Police, Taramangalam Police Station Taramangalam. (Crime No.926 of 2002) .. Respondent PRAYER: Appeal against the judgment dated 26.2.2004 made in S.C.No.319 of 2003 on the file of Principal Sessions Judge, Salem. For Appellant : Mr.G.M.Ramasubramaniam For Respondent : Mr.C.T.Selvam Addl. Public Prosecutor. * * * * JUDGMENT (Judgment of the Court was delivered by P.D.DINAKARAN,J.) The appeal is directed against the judgment dated 26.2.2004 made in Sessions Case No.319 of 2003 on the file of the Principal Sessions Judge, Salem, whereunder the appellant herein, sole accused was tried for the offence punishable under Section 302 I.P.C., in connection with the occurrence said to have taken place at about 7.00 p.m., on 7.12.2002 near a pond at Karukkalvadi Kadakaranur village, within the jurisdiction of Taramangalam Police Station, for having said to have administered Monocrotophos, a poisonous substance, mixed with alcohol and caused the death of one Annamalai. 2.1. The case of the prosecution was built up on the statement lodged by one Pappathi (P.W.1) to P.W.14, a police constable attached to Taramangalam police station at about 7.00 a.m. on 8.12.2002, which was subsequently marked as Ex.P1. P.W.1 is nonetheless the wife of the deceased. Based on the complaint (Ex.P1), a First Information Report https://hcservices.ecourts.gov.in/hcservices/ (Ex.P14) was registered by P.W.14 in Crime No.926 of 2002 on the file of the said police station. 2.2. The story of the prosecution is that P.W.1, the wife of the deceased, was residing at Kadakaranur village and out of the wedlock between P.W.1 and the deceased, a boy child was born to them. P.W.1's father-in-law, i.e., father of the deceased, Rathinam, had two wives. His first wife is Pappathi. His second wife is Chinnathayee, who was already married to one Poongavanam. 2.3. The deceased was born to Rathinam and Pappathi whereas the accused was born to Chinnathayee through her first husband, Poongavanam. 2.4. The mother of the accused, viz.,Chinnathayee, after leaving her first husband, Poongavanam, was staying in the house of the deceased Annamalai for the past twenty years. The deceased and the accused were thus moving closely. The accused married one Govindammal and both the accused family and the deceased family were living under the same roof. 2.5. The further case of the prosecution is that there was a talk in the village that the wife of the accused, Govindammal and the deceased had illicit relationship with each other. 2.6. While so, on 7.12.2002, at about 7.00 p.m., the accused invited the deceased to a shop nearby. At that time, P.W.1, the wife of the deceased, P.W.2, the brother of the deceased and P.W.3, the mother of the deceased, were in the house. Within half-an-hour thereafter, the deceased came running to the house and told P.Ws.1 to 3 that he had burning sensation in his stomach. The deceased told them that the accused gave him the brandy mixed with poison. Immediately, P.W.2, the brother of the deceased, brought a car and the deceased was placed in the car and taken to a private hospital at Salem. The doctors in the said hospital refused to admit the deceased and hence, the deceased was taken to the Government Hospital at Salem, where he was admitted at 00.00 hours. But, in spite of the treatment given, the deceased died at about 2.00 a.m. on 8.12.2002. 2.7. At about 7.00 a.m. on the next day, i.e., 8.12.2002, on the advice of the villagers, P.W.1 went to the police station and lodged the complaint. P.W.14, a police constable, who reduced the complaint into writing, registered the same in Crime No.926 of 2002 for the offence under Section 302 I.P.C. Ex.P.14 is the printed F.I.R. 2.8. Pursuant to the F.I.R. (Ex.P14), the investigating officer (P.W.15) undertook the investigation, visited the place of occurrence at about 8.30 a.m., prepared an Observation Mahazar (Ex.P2) and also a Rough Sketch (Ex.P15), recovered M.O.1, a brandy bottle mixed with poison under mahazar Ex.P3 in the presence of P.W.5 and another. Thereafter, he proceeded to the hospital and conducted inquest on the body of the deceased in the presence of witnesses and the inquest report is marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.P.16. After the inquest, the body of the deceased was sent for post mortem with the requisition marked as Ex.P.10, through the head Constable, who handed over the body of the deceased to P.W.13, Police Surgeon and Professor of Forensic Medicine, Government M.K.Medical College, Salem. 2.9. P.W.13, who conducted post mortem at 2.10 p.m. on 8.12.2002 and issued Post Mortem Certificate (Ex.P.11), found the following:- "Appearances found at the postmortem moderately nourished body of a male. No external or internal injuries present anywhere on the body. Other Findings: Finger nails bluish. Lips bluish in colour. Pleural, peritoneal cavities - empty. Pericardium - 10 ml. of straw coloured fluid present. Heart: fluid blood present. Lungs: Congested and oedematous. Stomach: 300 ml. of yellowish chyme present with pungent odour. Mucosa intensely congested. Liver, Spleen, Kidneys - Congested. Bladder - empty. Small Intestine - Yellowish chyme present. Scalp, bones, membranes - intact. Skull - intact. Brain - Congested. Pelvis - intact. Spinal Cord and column - intact. " P.W.13 reserved the cause of death pending the report of chemical analysis of viscera. On receipt of Exs.P.12 and P.13, chemical analyst's report of the examination of viscera and the serologist's report respectively on 31.12.2002, P.W.13 opined that the deceased would appear to have died of Mono Crotophos poisoning. 2.10. P.W.15, the investigating officer, continued his investigation by examining witnesses and recording their statements. He arrested the accused at about noon on 9.12.2002 near Taramangalam bus stand and questioned him in the presence of witnesses. The accused gave a voluntary confession statement, the admissible portion of which is marked as Ex.P.4. Pursuant to Ex.P.4, the accused produced a plastic box having a capacity of 100 ml., which is marked as M.O.2 in the case and the same was seized by P.W.15 under Ex.P.5 mahazar attested by witnesses. Thereafter, the accused was sent to Court for judicial remand. The material objects that were seized in the case were forwarded for chemical analysis through the Court and accordingly, the chemical analyst's report (Ex.P.19) was obtained. P.W.15 recovered M.Os.3 and 4, the lungi and the waist cord, produced by the head constable, who seized the same at the time of post-mortem, under Form 95. After completing investigation, P.W.15 filed the final report against the accused on 3.3.2003 for the offence under Section 302 I.P.C. 3. Since the accused denied the charge, he was tried in S.C.No.319 of 2003 on the file of Principal Sessions Judge, Salem. On behalf of the prosecution, 15 witnesses were examined. P.W.1 is the wife of the https://hcservices.ecourts.gov.in/hcservices/ deceased, who spoke about the accused taking the deceased with him to a shop. P.Ws.2 and 3 are the brother and mother of the deceased. P.W.13 is the doctor who conducted post mortem, P.W.14 is the head constable, who registered FIR, and P.W.15 is the Investigating Officer. On the side of the prosecution, Exs.P.1 to P.19 and M.Os.1 to 4 were marked, the relevant exhibits and material objects are already referred to above. 4. When the accused was questioned under Section 313 Cr.P.C. with respect to the incriminating circumstances found against him in the evidence of prosecution witnesses, he denied the same. The accused neither examined any witness, nor marked any document. 5. The learned Principal Sessions Judge, Salem, after appreciating the evidence on record, convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life with a fine of Rs.1000/- in default six months rigorous imprisonment. Hence, the above appeal. 6.1. Learned counsel appearing on behalf of the accused painstakingly took us to the whole evidence and contended that the prosecution had not been able to establish that it was the accused who committed the murder. According to the learned counsel the circumstances emerging out of the evidence were too insignificant to connect the accused with the offence under Section 302 IPC. 6.2. Learned counsel also contended that there was delay in lodging the first information report. 6.3. Referring to the evidence of P.W.3, it is contended that the statement said to have been given by the deceased to the Doctor was not produced before the Court and therefore, the non-production of the said statement renders the prosecution case unbelievable. 7. Per contra, learned Additional Public Prosecutor contends that the witnesses examined by the prosecution to speak about the motive and occurrence unerringly point to the guilt of the accused in committing the crime and that there is no reason at all to interfere with the well considered judgment of the trial Court. 8. We have given our careful consideration to the rival submissions made by the learned counsel on either side and also perused the evidence on record. 9. The point that arises in this appeal is whether the Sessions Judge was right in holding that the prosecution has proved the guilt of the accused beyond reasonable doubts. 10. It is not in dispute that the father of deceased, viz., Rathinam had two wives, Pappathi and Chinnathayee and the deceased was his son through first wife, Pappathi. The second wife of Rathinam, viz., https://hcservices.ecourts.gov.in/hcservices/ Chinnathayee left her first husband, viz., Poongavanam and was living with Rathinam for 20 years. The accused Kuppusamy was born to Chinnathayee through her first husband, Poongavanam. Both the accused and the deceased were living in the same village. It is the evidence of witnesses that the deceased Annamalai had illicit intimacy with the wife of the accused Kuppusamy. P.W.1, wife of the deceased, P.W.2, brother of the deceased, P.W.3, mother of the deceased and P.W.4 a resident of the village all categorically speak about the illicit intimacy between the deceased and the wife of the accused. Therefore the motive behind the crime has been established by the prosecution. 11. Then, the next point that has to be seen is whether the deceased was done to death. It is the version of the prosecution that on the fateful day, i.e., 7.12.2002, at about 7.00 p.m., the accused took the deceased to a nearby pond and with the intention to murder the deceased, offered him brandy mixed with poison (Mono Crotophos) and the deceased drank the same with the result, the deceased died in the hospital. 12. Of course, there is no direct eye-witness to speak about the occurrence proving the crime committed by the accused. The prosecution case therefore wholly rests on the evidence of circumstances which may be best understood by comparison with direct evidence. It is not evidence direct to the point in issue, but evidence of various facts other than the fact in issue which are so associated with the fact in issue that taken together they form a chain of circumstances leading to an inference or presumption of the existence of the principal fact. Circumstantial evidence is something from which facts in issue are to be inferred. It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests, (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. To speak eloquently, the circumstantial evidence should be like spider's web, leaving no exit for the accused to slip away. The various links in the chain, when taken in isolation, might not connect the accused with the commission of the crime but when taken together may unmistakably point out the guilt of the culprit. Therefore, the Court has to judge the total cumulative effect of all the proved circumstances, each of which reinforces the conclusion of the guilt of the accused. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. https://hcservices.ecourts.gov.in/hcservices/ 13. Keeping the above in view, now let us consider the evidence. The prosecution examined P.Ws.1 to 4 and P.W.9 to prove the guilt of the accused. P.W.1, the wife of the deceased in her evidence has stated that the accused took her husband out and immediately within half an hour, her husband returned shouting that the accused gave him brandy mixed with poison and he had stomach pain. P.W.2 and P.W.3 corroborate the same. P.W.4 who is running a shop in the village deposes that she saw the deceased coming along with the accused and bought betel nuts and within half an hour, the deceased came running shouting that the accused had mixed poison in brandy and gave him to drink and he drank the same. P.W.9 who is also a resident of the same village, in his evidence, has stated that the deceased informed him that the accused had given poison and he had burning sensation in his stomach. It is deducible from the evidence that thereafter the deceased was first taken to a private hospital and then to the Government Hospital at Salem where he died as the treatment given to him had failed. 14. Even though the learned counsel for the appellant/accused submitted that when the deceased was in the hospital he made a statement to the doctor to the effect that the accused took the deceased and gave the drink and the said statement was recorded by the doctor and signed by the deceased as well as P.W.2 and 3, the statement is not before the Court which arouses a doubt in the prosecution case. It is true that P.W.3 in her cross-examination has stated that the deceased made a statement before the doctor to the effect that accused offered drink and asked him to take a half and return the remaining half for the accused. It is her further evidence that the doctor recorded the statement in which the deceased as well as P.Ws.2 and 3 signed. 15. Though the learned counsel for the appellant attacked the prosecution case submitting that the statement recorded by the doctor is not before the Court, in our view, it does not carry much weight, as, nothing in this regard has been elicited in the cross-examination of P.W.2 who is said to have been present at the time of recording of such statement. The doctor, P.W.7 who attended on the deceased in the Government Hospital has not spoken anything about the statement allegedly given by the deceased. In his cross-examination he has only stated that he had made entries in Exs.P-6 and P-7, copy of accident register and intimation to police respectively, that the deceased was alleged to have been administered poison mixed with alcohol by a male person. Nothing has been discerned in his cross-examination as to the statement alleged to have been given by the deceased. In such circumstances, the argument advanced by the learned counsel for the appellant/accused that the conviction is not sustainable as the statement of the deceased to the doctor is not before the Court has to fail. 16. Further, the trial Court relied upon the extra-judicial confessions made by the deceased before P.Ws.1 to 4 and 9 to the effect that the accused gave him brandy mixed with poison. Besides P.Ws.1 to 3 who are wife, brother and mother of the deceased, P.Ws.4 and 9 who are https://hcservices.ecourts.gov.in/hcservices/ independent witnesses also speak about the same. According to P.W.4, the deceased came running shouting that the accused had mixed poison in brandy and gave him the same to drink stating that it was a special liquor, and he drank the same. It is the evidence of P.W.9 that the deceased came to him and stated that the accused had given poison to him and his stomach was burning. Their evidence remain unshattered even in cross-examination. Therefore the trial Court has rightly believed the evidence of P.Ws.1 to 4 and 9 to come to the conclusion that the accused only gave the drink to the deceased which led to his death. 17. What has to be seen next is whether the drink which the deceased had consumed, contained poisonous substance. For that, the prosecution relied on the evidence of P.Ws.11 and 12 as well as medical evidence, besides M.Os.1 and 2 and Exs.P-12,13 and 19. P.W.11 was running a Wine Shop and his evidence is that the deceased bought brandy bottle of 150 ml. P.W.12 is running Sangam Agro Services. He has stated that on 7.12.2002 at about 3.00 p.m., the accused sought for pesticides and he gave him 100 ml. Monocrotopas, M.O.2. Even though the trial Court has taken note of the above evidence, it mainly proceeded with the extra- judicial confessions made by the deceased before the witnesses, and in our view, the trial Court should have gone into this aspect of the matter in detail, as it is essential to go into the question whether the drink allegedly consumed by the deceased contained poisonous substance. 18. It is the evidence of P.W.13 the doctor who conducted autopsy, as evident from Ex.P-11 postmortem certificate, that there was no external and internal injury found on the body of the deceased, but finger nails and lips were bluish in colour; 10 ml. of straw coloured fluid was present in the pericardium; the lungs were congested and oedematous; 300 ml. of yellowish chyme with pungent odour was present in the stomach; Mucosa was found intensely congested; Liver, Spleen, Kidneys were found congested; and yellowish chyme was present in small Intestine and therefore, opined that the stomach, intestine and liver of the deceased contained ethyl alcohol and monocrotophos. His evidence is based on Exs.P-12 and 13 wherein it is stated that monocrotophos and ethyl alcohol were detected and the deceased died of monocrotophos poisoning. Ex.P-19 Toxicology report makes it clear that monocrotophos with ethyl alcohol was found in M.O.1 brandy bottle. It is therefore clear that the deceased consumed poisonous drink given by the accused, as evident from the prosecution witnesses. 19. In the instant case, the prosecution fixed the guilt on the accused that the accused alone mixed the poison with alcohol and made the deceased to drink with the result the deceased died and thus the accused committed the murder of the deceased. 20. The Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], in the case of death by poisoning held that the Court must carefully scan the evidence and determine the following four important circumstances which can justify a conviction: https://hcservices.ecourts.gov.in/hcservices/ (i) There is a clear motive for the accused to administer poison to the deceased. (ii) The deceased died of poison said to have been administered. (iii) The accused had the poison in his possession. (iv) He had an opportunity to administer the poison to the deceased. 21. In the present case, all the above circumstances have been established by proper evidence. The motive that the accused had a grudge against the deceased because the deceased had illicit intimacy with the wife of the accused has been established by the evidence of P.Ws.1 to 4. The fact that the accused had purchased brandy and insecticide stands proved by the examination of P.Ws.11 and 12. It is the evidence of P.W.1 that the accused took the deceased out for a drink and P.Ws.2, 3, 4 and 9 corroborate the same. The witnesses saw the deceased with the accused immediately before the occurrence and within half an hour, they again saw the deceased running shouting that the accused gave him a drink and he drank the same and his stomach was burning. From the above, it is clear that the above four important circumstances enunciated by the Apex Court in Sharad Birdhichand Sarda case, cited supra, have been established beyond doubts. 22. Learned counsel for the appellant/accused then submitted that there is delay in lodging the first information report. According to him, the occurrence took place at about 7.30 p.m. on 7.12.2002, but P.W.1 gave Ex.P-1 complaint only at 7.00 a.m., next day and the delay remains unexplained. However, a reading of the evidence of P.W.1 shows that when her husband complained of stomach pain, he was immediately taken to a private hospital and then, to the Government Hospital, Salem where he died at 2.00 a.m. next day and since it was too late, they returned home in the morning and informed the village panchayatdars and at their instance, Ex.P-1 complaint was lodged at 7.00 a.m. next day. The evidence of P.Ws.2 and 3 are on the same line. It is undisputed fact that the deceased was taken to hospital in P.W.10's car and P.W.7 doctor attended on him in the night itself. After the occurrence, it is quite natural that P.Ws.1 to 3, who are all close relatives, would have been concentrating to save the life of the deceased and since the deceased died in the hospital at 2.00 a.m., they stayed there and returned to their village in the morning and being villagers, they first informed to village panchayatdars and then proceeded to the police station where the complaint Ex.P-1 was lodged at 7.00 a.m. on 8.12.2002. We therefore hold that there was no delay in lodging the complaint as submitted by the learned counsel for the appellant/accused and the gap between the time of occurrence and the lodging of complaint has been properly explained. https://hcservices.ecourts.gov.in/hcservices/ 23. From the above, we are of the considered view that the prosecution has brought home the guilt of the accused beyond all reasonable doubts and the trial Court was correct in convicting the accused for the offence under section 302 I.P.C. and sentencing him to undergo life imprisonment. In the result, the appeal fails and the same is dismissed. sra/na. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To: 1. The Principal Sessions Judge, Salem. 2. The Inspector of Police, Taramangalam Police Station. 3. The District Collector, Salem. 4. The Director General of Police, Chennai. 5. The Public Prosecutor, High Court, Madras. 6. The Superintendent, Central Prison, Coimbatore. 1 cc to Mr.Ram & Ram, Advocate SR 43728 Crl.A.No.1306 of 2004 jsk(co) bp/30.10 18.09.2006 https://hcservices.ecourts.gov.in/hcservices/