IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28/10/2004 CORAM THE HONOURABLE MR.JUSTICE R. BALASUBRAMANIAN AND THE HONOURABLE MR.JUSTICE N. KANNADASAN CRL. APPEAL No. 870 of 2002 Sasikumar ..Appellant -Vs- State rep. by Inspector of Police, Karungalpalayam Police Station, Erode District. (Cr.No.436/2000) ..Respondent Prayer: Appeal against the judgment of the learned Principal Sessions Judge, Erode District in S.C. No. 138/2001 on 30.4.2002. !For Appellant :: Mr.C.R. Malarvannan for Mr.Mohideen Basha ^For Respondent :: Mr.V.Arul, GA (Crl.Side) :JUDGMENT (Judgment of the Court was delivered by R.Balasubramanian,J) The appellant in this appeal is the sole accused in S.C. No. 138 of 2001 on the file of the Court of Principal Sessions Judge, Erode. In that case, he was tried for an offence under Section 302 I.P.C. (2 counts) and on being found guilty, stands sentenced to undergo imprisonment for life on each count with a further direction that the sentence has to run concurrently. He is challenging that conviction by filing this appeal. Heard Mr. C.R. Malarvannan, learned counsel for the appellant and Mr.V. Arul, learned Government Advocate for the State. 2. The case of the prosecution is that at about 2.15p.m. on 22.5.20 00, the accused, by mixing nitrite poison in a cool drink with the brand name "Mirinda" and by adding it to liquor namely brandy, made two persons by name Karuppannasamy and Ponnusamy consume it. As a result thereof, both of them died. To substantiate the charge, the prosecution examined P.W.s 1 to 24 besides marking Exs-P1 to P34. The accused neither examined any witness on his side nor brought in documentary evidence. In this judgment, we will refer Karuppannasamy as deceased No.1 (in short "D1") and Ponnusamy as deceased No.2 (in short "D2). The case of the prosecution as spoken to by the witnesses, in short, is as hereunder: P.W.1 is the mother of D2. D1 and D2 are working in an export printing factory. It belongs to P.W.4. Both the deceased have been working there for almost 15 years as "Dye Masters". The accused is employed there as a supervisor. At 8a.m. on 22.5.2000, D2 went for his work. At 3.30p.m., the accused came home and informed P.W.1 that D2 is lying unconscious in the factory. She and others went to the factory where they found D1 and D2 lying dead with froth through their mouth. She went to the Police Station immediately and gave the complaint which stands marked as Ex-P1. She had indicated that she has suspicion regarding the death of her son (D2). P.W.2 is the father of D1 - he being the eldest son. P.W.2's son went for work on the morning of the occurrence day and at 5p.m. on that day, he came to know that his son as well as P.W.1's son died. Immediately, he went to the work place where he found both D1 and D2 lying dead with froth through their mouth. He came to know that Mirinda cool drink mixed with nitrite poison had been consumed by both of them, which resulted in their death. He also came to know that the accused is responsible for those deaths. It is his further evidence that the accused was having an illicit affair with a girl called Sumathi, who was also working in the same factory. P.W.3 is a woman worker in the same factory where both the deceased and the accused were working. She is not an eye witness to the occurrence. She would state that on coming to know about the event, she went to the factory where she observed the dead bodies. She would also say that the accused had an illicit affair with Sumathi and that Ponnusamy (D2) is the cousin of Sumathi. Both the dead had vomitted near the water tank. Both the deceased used to make fun of the accused as an handicapped person and she came to know that both the deceased had consumed medicine mixed with nitrite poison and they died. 3. P.W.21 is the Sub Inspector of Police in the investigating police station. On the occurrence day evening, P.W.1 appeared before him and gave a written complaint, which he registered as Ex-P1 in his police station crime No. 436/2000 under Section 174 Cr.P.C. Ex-P30 is the printed First Information Report prepared by him and he sent the material records to the court as well as to the higher officials. P. W.23 is the Inspector of Police holding additional charge in the investigating police station. On receipt of the material records sent by P.W.21, he commenced investigation and reached the scene of occurrence at about 7p.m. In the presence of P.W.7 and another, he prepared Ex-P2 - Observation Mahazar and Ex-P31 - rough sketch. He recovered the vomitted material available at the scene of occurrence, which stands marked as M.O.1 under Ex-P3 attested by P.W.6 and another. Between 8.30p.m. and 11.30p.m., he conducted inquest over the dead body of D1 in the presence of panchayatars and witnesses. During inquest, he examined P.W.2 and others and recorded their statements. Ex-P32 is the inquest report. Then, he conducted inquest from the midnight of that day till 3a.m. on the following morning over the dead body of D2 in the presence of panchayatars and witnesses. Ex-P33 is the inquest report. Then, he sent both the dead bodies through P.W.s 19 and 20 respectively -police constables for postmortem. He examined P.W.s 1, 3,7 and others and recorded their statements. Then, he altered the section of offence from one under Sectio n 174 Cr.P.C. to one under Section 302 I.P.C and prepared Ex-P34, the altered express First Information Report, which he sent to the court. He examined further witnesses and recorded their statements. 4. P.W.19 accompanied the dead body of D2 for postmortem. He was present throughout postmortem. After postmortem, he removed M.O.s 7 and 8 from the dead body and handed over the same to the investigating officer with his special report Ex-P28. P.W.20 accompanied the dead body of D1 for postmortem and he was present throughout postmortem. He removed M.O.s 9 to 11 from the dead body and handed over the same to the investigating officer with his special report Ex-P29. P.W.16 is the doctor, who did postmortem on both the dead bodies on receipt of the dead bodies and requisitions Exs-P11 and P14. He commenced postmortem on the dead body of D2 at 9a.m. on 23.5.2000 and found various symptoms on the dead body as noted by him in Ex-P12, the postmortem report. The noted symptoms are as hereunder: "External Injuries: + x + cm abrasion seen in front of neck middle third. Blisters found over abdomen and left arm and back of right side washerman hand and feet present. Internal Examination: Heart: 200 gms, chambers empty. Lungs: Right 550 gms, left 500 gms both floats on water congested and cut section froth present. Hyoid: Intact Stomach: 100 ml of liquid material found. Liver: 1400 gms Spleen: 100 gms Kidneys: both 150 gms, congested Bladder: empty Brain: 1400 gms congested Spinal column: Intact Tracheo bronchial tube: froth present." The doctor is of the opinion that the deceased would appear to have died 18 to 20 hours prior to autopsy. His final opinion is Ex-P13 on the cause of death which would show that death was due to nitrite poisoning. Then, he commenced postmortem on the dead body of D1 at 8.45 a.m. On 23.5.2000. During postmortem, he found various symptoms as noted by him in Ex-P15 and they are as hereunder: "Appearances found at the postmortem: Body of a male, well nourished symmetrical, lying on its back in G.H. Mortuary with eyes congested and closed, teeth complete, tongue inside the mouth with jaws clenched. Blood stained froth found from both nostrils and mouth. Washerman hand and feet present. Blisters found over left ankle to leg and thigh - Blisters found over neck and right thigh - Blisters found over hip to left upper arm. No external injury made out. Internal Examination: Heart: 200 gms, chambers empty. Lungs: Right 500 gms, left 450 gms congested floats on water, froth present in the entire tracheo bronchial tube. Hyoid: Intact Stomach: Contains 100 ml semi solid liquid material Liver: 1400 gms congested. Spleen: 100 gms Kidneys: 150 gms both, congested Bladder: empty Brain: 1400 gms congested Spinal column: Intact" His final opinion is Ex-P16. According to him, death would have occurred 18-20 hours prior to autopsy due to nitrite poisoning. 5. P.W.24 is the regular Inspector of Police in the investigating police station. He took charge on 25.5.2000 and verified the investigation already done by P.W.23. Since the witnesses already examined by P.W.23 repeated the same thing to him when he examined them, he did not record their statements once again. He examined P.W.s 1 to 5 and others and recorded their statements. At about 11p.m in the night on 25.5.2000, on information given by P.W.12, he went to his house along with P.W.13 and another where he took custody of the accused and received his confession statement already recorded by about 11.30p.m. He examined P.W.13 and recorded his statement. Pursuant to the admissible portion of the confession statement of the accused namely Ex-P5 , he went to the scene of occurrence from where M.Os. 2 to 6 came to be recovered under Ex-P6. P.W.13 had spoken about the above referred to facts. Then, the case properties and the accused were brought to the police station. The accused was sent for judicial remand and the case properties were sent to the court under Form 95. Then, he sent a requisition to the court to subject the same for chemical examination. P.W.18 is the magisterial clerk, who speaks about the receipt of the case properties and Ex-P22, the requisition given by the investigating officer. As an enclosure to court's letter Ex-P20, the case properties were sent for chemical examination. Ex-P23 is the requisition given by the investigating officer to subject the viscera of both the deceased to chemical examination and they were also sent as an enclosure to court's letter Ex-P18 for scientific examination. Ex-P24 is the requisition given by the investigating officer to subject the hyoid bone of both the deceased for examination and as an enclosure to court's letter Ex-P25, they were sent for examination and Ex-P26 is the hyoid bone report of D2 and Ex-P27 is the hyoid bone report of D1. He gave a requisition to the court to record the statements of P.W.12 and others under Section 164 Cr.P.C. Accordingly, P.W.15, Judicial Magistrate No.1, Erode, recorded the statements of P.W.12 and others. The statements are Exs-P8 to P10. Ex-P7 is the requisition to the court to record the statements of those witnesses under Section 1 64 Cr.P.C. Thereafter,P.W.24 continued the investigation by examining further witnesses and recording their statements. 6. P.W.4 is the owner of the printing press where the deceased and the accused were employed. P.W.5 is his sister's son. P.W.5 is said to be managing the affairs of the printing press. P.W.4 would depose about the employment of both the deceased and the accused and that he is not in arrears of any salary payable to any of the deceased. He would also state that 2 months prior to the day of occurrence, the accused complained to him that both the deceased are making fun of him calling him as a disabled person and he called all the three and advised them to live in harmony. He would state that on the day of occurrence, he was not in the factory as he had gone out to get donations for the ensuing temple festival and at about 3p.m. on that evening, his wife P.W.10 informed him over phone that Karuppannasamy(D1) and Ponnusamy (D2) had died in the factory. He went to the police station straightaway after informing P.W.5. P.W.5 would depose as to how he used to manage the affairs of the printing press. He would state that on the day of occurrence, he was in the factory till about 2p.m. and P.W.6, who had come from Tiruppur for some business purpose was also there. He would also depose that about 3.45p.m., the accused informed him over telephone about the deaths in this case and he went to the factory at about 4p.m. where he found both the victims lying dead. He asked the accused to go and get an autorickshaw and the autorickshaw driver refused to transport dead bodies. He went to the police station at about 5.30p.m. to 5.45p.m. and complained about the incident. P.W.6 would depose that he went to the factory in question for business purpose at about noon and he was in the factory till about 2 p.m. along with P.W.5. He would further state that then he went to sleep from 2.15p.m. to 2.45p.m. and when he woke up at 2.45p.m., he found both the deceased working and reminding them to continue the work, he went to sleep once again. At about 3.30p.m., the accused told him that both the deceased after consuming brandy are lying drowned in the water tank. He observed both the dead bodies drowned in the water tank and the bodies were taken out of water and placed on the floor. He informed P.W.5 about this. P.W.7 witnessed the preparation of Ex-P2 - Observation Mahazar and recovery of M.O.1 under Ex-P3. P.W.8 is the autorickshaw driver, who went to the factory in question and on seeing the dead bodies, refused to transport it. P.W.9 would depose that at about 2p.m. on 22.5.2000, he was in his shop and at that time, he saw the accused passing his shop towards south. On questioning, he said that he is going to take cool drinks. At about 2.30p.m., the accused returned having a 500ml Mirinda cool drink bottle and 180ml brandy bottle in his hand. When asked, he said it is meant for "Dye Masters" (obviously D1 and D2). He came to know in the evening about the deaths and he went and observed the bodies. P.W.10 is the wife of P.W.4, who would depose that she passed on the information over telephone to her husband. She would state that she heard that the accused is having an illicit affair with a girl called Sumathi working in the factory and that P.W.3 informed her about the same. P.W.1 1 had been examined to show that he went along with P.W.4 on the day in question to collect donations for the ensuing temple festival and that P.W.10 informed P.W.4 over phone in the evening about the occurrence. P.W.12's father is the landlord of the building where P.W.4 is having the factory. P.W.12 used to come and collect rent sometimes. He would state that at about 9p.m. or 9.15p.m. on 25.5.2000, when he was in his house along with his friend Madheshwaran, the accused appeared and confessed to both of them about the murders he had committed. He reduced into writing whatever the accused told him and the said statement is Ex-P4 duly signed by the accused, P.W.12 and his friend as well. P.W.14 would state that at about 4p.m. on the occurrence day, when he was in the godown, he saw the accused coming in a hurry informing him that both the victims in this case are lying in the water tank. P.W.17 is the scientific expert, who speaks about the scientific tests done by his laboratory on the viscera of D2 and Ex-P17 is the report. He also deposed about the scientific tests done by him on the viscera of D1 and Ex-P19 is the report. Exs-P16 and P20 are the respective requisitions sent by the court. Ex-P21 is his report relating to his examination of other incriminating objects sent to him for examination. P.W.22 had been examined to show that on the day of occurrence, at about 2.15p.m., he sold 180ml of brandy to the accused. P.W.24, after completing the investigation, filed the final report in court against the accused on 30.8.2000 under Section 302 I.P.C. 7. As already stated, the learned Trial Judge, accepting the case of the prosecution as true, convicted the accused for the offence of murder (2 counts) and sentenced him to undergo imprisonment for life on each count - sentence to run When the accused was questioned under Section 313 Cr.P.C. on the basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to facts. He had not examined any witness on his side. No documentary evidence is also produced on his behalf. 8. Mr.C.R. Malarvannan, learned counsel appearing for the appellant would submit that the evidence on record do not show that the accused was in possession of the poison consumed, which he is shown to have administered to the victims. This being the most important material in a case of death due to poisoning and if it is absent, the court must necessarily acquit the accused. He would also submit that from the evidence of P.W.s 5 and 6, it is clear that the accused was not found to be at the scene of occurrence - factory during the relevant time and when especially, P.W.6 had seen both the deceased alive at about 2.45p.m., it must be shown by the prosecution that between 2.45p.m. and 3.30p.m., at which point of time P.W.6 came to know about the twin deaths, that the accused was at the scene of occurrence or anywhere near about it and he administered the poison, which is once again wanting in this case. To show the relevant material that must enter the mind of the court while considering the case of murder by poisoning, the learned counsel relied upon a number of judgments about which we will refer a little later. Learned counsel would also submit that the extra judicial confession Ex-P4 stated to have been recorded by P.W.12 is so very artificial and unnatural and no court of ordinary prudence, having utmost caution, would accept it as a true version. In other words, the learned counsel would submit that there are inbuilt materials in Ex-P4 itself which would show that the confession statement is definitely false, improbable and in any event, it is a tutored one. We heard the learned Government Advocate on all these points, who would state that there is nothing to doubt Ex-P4 and the circumstances under which it had come to be reduced into writing speaks about the genuineness of the said statement. There is no reason as to why this court should disbelieve P.W.12 before whom the accused had given the extra judicial confession. The accused is not disputing that he is employed in the factory and he admits that he was present in the factory at 2p.m. on the day in question. Therefore, a duty is cast upon him to explain how the twin deaths in this case had occurred especially, when they are his colleagues. The learned Government Advocate would therefore request us to confirm the judgment under challenge. 9. Having regard to the submissions made by the learned counsel on either side and in the context of two persons dying in unnatural circumstances on the same day and at the same time, we paid our utmost attention to the various materials on record. Admittedly and there is no dispute on this fact that there is no direct evidence to show that the accused administered poison which he had with him by mixing it with Mirinda cool drink and then diluting the brandy with the said poisoned cool drink. However, the fact remains that Karuppannasamy and Ponnusamy died due to nitrite poisoning. P.W.16 is the doctor, who did postmortem on the dead bodies and Exs-P12 and P15 are the postmortem reports of D2 and D1. The respective final opinions are Exs-P13 and P16. In between, the report on viscera and hyoid bone had come and they stand proved by the oral evidence of P.W.17. The scientific expert's reports are Exs-P17 and P19, which show that ethyl alcohol and sodium nitrite were detected in the stomach and contents, intestine and contents and liver. In the kidney, nitrite was not found. P.W.17 deposed that sodium nitrite is a poisonous substance and it would have a fatal effect on the person, who consumes it. P.W.16 would also state that it is poisonous and it would have a fatal effect. Therefore, reading the evidence of the doctor P.W.16, who did postmortem; P.W.17, the scientific expert; the respective postmortem reports and the scientific expert's reports would unerringly establish that Karuppannasamy and Ponnusamy died due to poisoning. The prosecution case is that it is the accused, who administered poison. Let us examine this case with reference to the evidence available on record. 10. To show that the accused purchased brandy, P.W.22 is examined. He claims to be working as a salesman in a wine shop called " Rajadiraja Wines" owned by one Selvam of Erode. Selvam had not been examined. To a wine shop, many persons would come and go. We went through the evidence of P.W.22, who would state that on the day of occurrence, at about 2.15p.m., the accused came to his shop and purchased quarter bottle of brandy and that he knows the accused since a month before the occurrence day, which was on 22.5.2000. Assuming that the accused had gone to the shop for a couple of times or more than a couple of times in May, 2000 to buy liquor, yet, we are unable to understand as to how P.W.22 could distinctly remember when he gave evidence in Court or even when he gave the statement to the police during investigation on 24.6.2000 that the accused came and purchased a brandy bottle. To a shop where liquor is sold, innumerable people will come and go and unless the customer is a person known either to the owner or to the salesman, it is not possible to conclude that the salesman namely, P.W.22 would remember precisely that the accused came to his shop on the day of occurrence to buy brandy. There is also nothing on record to show that P.W.22 is employed in the wine shop at all. There is no documentary evidence to show that on such and such a day, quarter bottle of brandy was sold by P.W.22 to the accused. Therefore, even at the threshold, we have a doubt about the credibility of the evidence of P.W.22. Then, we have the evidence of P.W.9, who had been examined to show that at about 2.30p.m. on the day of occurrence, the accused passed his shop with a brandy bottle and 500ml of Mirinda bottle. No witness had been examined to prove that on the day of occurrence, the accused purchased Mirinda cool drink bottle. P.W.9 was examined by the police during investigation on 25.5.2000 and his statement had reached the court only on 4.9.2000. P.W.9 would state that at the time when he saw the accused as referred to above, he was having 500ml of Mirinda bottle and a quarter bottle of brandy. There is nothing unusual in any person carrying a Mirinda cool drink bottle and a brandy bottle. Since, there is nothing unusual about it, we do not understand as to why P.W.9 should put a specific question to the accused as to whether there is any occasion for which the accused seems to have replied that he is taking it for the "Dye Masters" (obviously D1 and D2). Therefore, we are not impressed with the evidence of P.W.9 that he saw the accused on the day of occurrence carrying a Mirinda cool drink bottle and a quarter bottle of brandy. Assuming for a minute that this evidence of P.W.9 is true, even then, mere carrying of a Mirinda cool drink bottle and a quarter bottle of brandy would not amount to the accused mixing poison with Mirinda cool drink; diluting the liquor with the said cool drink and making the victims to drink. Therefore, the primary evidence