Muppala Maheswara Raju vs State of Andhra Pradesh

1.This appeal by Accused No. 1 is from the judgment of the learned I Additional Sessions Judge, Cuddapah, in S.C. No. 9 of 1991 convicting and sentencing him to suffer Imprisonment for life, for the offence punishable under S. 302 of the Indian Penal Code.

2.There were two accused in the Sessions Case before the learned Additional Sessions Judge. The charge against them is that on or about 13-6-1990 at about 10 a.m. at the house of the deceased No. 1 Vellamraju Chinna Subbamaraju committed the murder of deceased No. 1 and Deceased No. 2 Pandeti Venkataraju by making them to consume arrack which was mixed with potassium cynide supplied by one Konduru Subbarama Raju (P.W. 3).

In support of its case, the prosecution has examined P.Ws. 1 to 18 and marked Exs. P.1 to P.20, P.1(a), P.1(b), P.1(c), P.12(a) and P.13(a). On behalf of the defence Exs. D.1 to D.5 were marked.

On a consideration of the evidence adduced on behalf of the prosecution, the learned Additional Sessions Judge held that the charge has been positively proved only against A.1 and accordingly the learned Judge convicted and sentenced A.1 to suffer imprisonment for life. The learned Judge however gave benefit of doubt to A-2 and acquitted him of the charge. Hence, A.1 has preferred this appeal.

The case of the prosecution, in brief, is as follows : A.1, A.2 and the two deceased are residents of village called Pollapalli in Chitvenl Mandal, Cuddapah district. P.W. 1 is the resident of Isukapalli village and he is the brother-in-law of the 1st deceased (hereinafter referred to as D.1). P.Ws. 2 to 5 are the residents of Pellapalli. P.W. 2 is the wife of D.1. P.W. 4 is the brother of P.W. 2. P.W. 3 is a resident of that village. On 13th June, 1990, at about 10 a.m. D.1 and the 2nd deceased (D.2) were sitting in the house of D.1. They are alleged to have called P.W. 3 who was passing on the way and asked him to bring arrack and D.2 gave him twenty rupees to purchase the arrack and D.2 is alleged to have told P.W. 3 to collect one empty bottle from the house of A.1 and bring the arrack in the said bottle. P.W. 3 went to the house of A.1 and asked him to give a bottle. A.1 asked him to wait outside and after five minutes A.1 handed over a bottle. P.W. 3 took that bottle to the arrack shop of P.W. 5 and purchased the arrack for Rs. 12/-. P.W. 5 brought arrack in a can and filled the arrack in the bottle given by P.W. 3. Then P.W. 3 took that bottle to the house of D.1 and handed over the bottle to D.2. D-1 went inside the house and brought a steel glass. D.2 poured some arrack into the glass and D.2 consumed first. Thereafter D.1 poured the remaining arrack into the same glass and he consumed it. Thereafter both the deceased fell down and froth was coming out from their mouths. On seeing this, P.W. 2, the wife of D.1 raised alarm, and on hearing the alarm her brother P.W. 4 and others came there. Then, both the deceased were taken in a cart to the Government hospital, Chitvel. A.1 also accompanied the cart and on the way the deceased died. The bodies were brought back to the village and they were placed at their respective houses. P.W. 9 the arrack contractor learning that the deceased died due to consumption of arrack went to the village and consumed some quantity of arrack in the can which was supplied to P.W. 3 by P.W. 5. He also gave some quantity of arrack to the son of P.W. 5 and nothing happened to them. Then they went to the house of D.1 and they tested the arrack found in the bottle by dipping a swab of cotton through a stick and when it was inserted in the mouth of a chick, it died immediately. P.W. 1, the brother-in-law of D.1 on being informed about the incident went to the village at 11 p.m. He saw the dead bodies. Then on the next morning i.e. on 14-6-90 at 5 a.m. P.Ws. 1 and 4 went to the Police Station which is at a distance of five miles and gave Ex. P.1 report to the police. P.W. 17, the Sub-Inspector of Police registered a case in Cr. No. 24 of 1990 under S. 174, Cr.P.C. and issued F.I.R. Ex. P.14. He went to the village at about 11 a.m. and examined P.Ws. 1, 2, 4 and some others. He held inquest over the dead body of D.1 in the presence of P.W. 15 and others. Ex. P.10 is the inquest report. Then he went to the dead body of D.2 and held inquest and Ex. P.11 is the inquest report. He seized the empty bottle M.O. 1 dead chick, empty arrack bottle M.O. 1. He sent the dead bodies of D.1 and D.2 and the dead chick for the post-mortem examination. P.W. 6 the Civil Asst. Surgeon, Rajampet conducted autopsy on the dead body of D.1 and P.W. 7 another Civil Asst. Surgeon, Rajampet conducted autopsy on the dead body of D.2. On the basis of the chemical examiner''s reports the doctors gave opinion that the death of the two deceased was due to cardio respiratory arrest and asphyxia due to cyanide poison. Exs. P.2 and P.3 are the chemical examiner''s report and post-mortem certificate in respect of D.1 Exs. P.5 and Ex. P.6 are the Chemical examiner''s report and post-mortem certificate in respect of D.2. P.W. 8 is the Veterinary Doctor who conducted post-mortem examination on the chick and Ex. P.7 is the certificate issued by him. P.W. 18, the Inspector of Police conducted further investigation and on 14-7-90 at about 2.50 p.m. he arrested the accused in the garden of A.2. A.1 is alleged to have made a statement Ex. P.12 and he is alleged to have produced one plastic bag containing some white powder and the same was recovered under Ex. P.13. P.W. 13 is a Sales Representative in the Laboratory of one Dr. P. Mohan Rao at Tirupathi. According to him, he supplied 500 grams of potassium cyanide to the Accused No. 2 in the month of February, 1990. P.W. 14 is the Sarpanch of the village Pollapalli who spoke about the motive of the accused. According to him, he wanted to lay a road from his garden to Durgampolu hillock. But, A.2 took objection for laying the road as it has to be routed through his field. He was, however, treated hostile.

In this case, there are no direct witness to the occurrence and the entire case rests on circumstantial evidence.

The circumstances relied upon by the prosecution are that D.1 and D.2 sent P.W. 3 to the house of A.1 to collect an empty bottle for bringing arrack and P.W. 3 collected the bottle from the house of A.1. In that bottle the arrack was brought by P.W. 3 from the shop of P.W. 5. Another circumstance relied upon by the prosecution is that immediately after consuming the arrack, the two deceased fell down and then froth started coming out from their mouths, which was seen by P.W. 2 the wife of D.1 and ultimately D.1 and D.2 died on the way to the hospital. The Chemical Examiner''s reports indicate that the pieces of various parts of the body of the deceased sent for chemical examination contain the poisonous substance cyanide and alcohol.

The learned counsel for the appellant Sri Padmabha Reddy contended that the person i.e. A.2 who is alleged to have purchased cyanide from P.W. 13 has been acquitted and the prosecution has failed to establish that how A.1 came into possession of the poison that is said to have been purchased by A.2 four months prior to the incident and in view of the fact that the prosecution has failed in their attempt in adducing evidence to the effect that how A.1 came into possession of the poison purchased by A.2 and he has an opportunity to administer the same to the deceased resulting in their death, the reasoning given by the learned Judge in convicting A.1 while acquitting A.2 is bad.

As early as in the year 1972 in a case of poison in Ram Gopal Vs. State of Maharashtra, , the Supreme Court has observed that if the accused has poison in his possession and that he had an opportunity to administer the same, then the Court can infer that the accused administered the poison to the deceased resulting in his death. In this case, the death of deceased was due to consumption of poisonous arrack as found by the medical evidence and also during the inquest. The arrack in the arrack shop from which it was supplied to the deceased in the bottle supplied by A.1 has not been seized for sending the same for chemical analysis. The Chick which is alleged to have been administered the drops of poisonous arrack remaining in the bottle died. No doubt the death of the deceased was on account of the consumption of arrack brought by P.W. 3 in the bottle supplied by A.1 has been duly established. But, how A.1 came into possession of the alleged poison said to have been purchased by A.2 from P.W. 13 has not been established. In the absence of evidence to the effect that A.1 had come into possession of the poison and had an opportunity to administer the same to the deceased, it is difficult to infer that he administered the poison to the deceased.

Now, we will deal with various circumstances and see whether A.1 had an opportunity to administer the poison so as to infer that he had administered the same to the deceased resulting in their death.

The charge reads as if A.1 conspired with P.W. 3 and made D.1 and D.2 to consume the same. On a reading of the evidence of P.W. 3, it is clear that when he was passing through the house of D.1, D.2 asked him to go to the house of A.1 and take an empty bottle and then go to the arrack shop and bring arrack in the said bottle. What D.2 has stated to P.W. 3 will not be to the knowledge of A.1. A.1 cannot be expected to know that P.W. 3 will come for an empty bottle for supplying arrack in the bottle. The connecting link of P.W. 3 approaching A.1 for the supply of a bottle said to have been relied upon by the prosecution appears to be artificial and unnatural. It is not the case of the prosecution that A.1 conspired with P.W. 3 and he deputed P.W. 3 and made him to approach the deceased for bringing the empty bottle from his house for taking arrack in the said bottle. If such a circumstance is there, then it can be said that A.1 had an opportunity to put the poison into the bottle. Further, A.1 will be having no knowledge that P.W. 3 will be sent by the deceased for empty bottle. As P.W. 3 was happened to pass on the way, D.1 and D.2 who are sitting at the house of D.1 called him to bring the arrack by taking an empty bottle from the house of A.1. There is also no evidence to establish that A.2 passed on the cyanide said to have been purchased by him from P.W. 13 to A.1 and therefore A.1 had come into possession of the poison. Therefore, the connecting link that A.1 had an opportunity to administer the poison to the deceased is missing in this case. The prosecution tried to rely upon the circumstance that when P.W. 3 went to the house of A.1, A.1 went into the house asking P.W. 3 to wait outside and that after five minutes he made a gesture to P.W. 3 to come and take the bottle and therefore there was an opportunity for A.1 to put the poison in the empty bottle. We are not inclined to accept this circumstance. Mere taking of five minutes by A.1 to supply the bottle to P.W. 3 cannot be said to be a definite circumstance to say that A.1 had an opportunity to administer the poison to the deceased by putting the poison in the bottle. According to P.W. 3 he asked A.1 to supply a brandy bottle. Since the bottle asked was a brandy bottle, A.1 might have asked P.W. 3 to wait outside. Therefore, taking of five minutes by A.1 to supply the brandy bottle is of any help to the prosecution case. It cannot be said to be a circumstance to hold that he A.1 had an opportunity to administer the poison and on that it can be inferred by the Court that A.1 administered the poison to the deceased resulting in their death, particularly when the prosecution has failed to prove how A.1 came into possession of the cyanide said to have been purchased by A.2 from P.W. 13. The seizure of cyanide powder from the house of A.1 is not a circumstance from which it can be inferred that A.1 had an opportunity to administer the same to the deceased, because there was no evidence how A.1 got into possession of the same from A.2. There is also no evidence to show that the poison that was said to be seized from the possession of A.1 was put into the bottle that was supplied by A.1 to P.W. 3. Another factor is that the incident took place on 13-6-90 which the alleged seizure of powder from A.1 was on 14-7-90 on which date the accused were arrested. Nowhere it has been established that the deceased have an idea of taking arrack and the same was to the knowledge of A.1 and A.1 thereafter had come into possession of the cyanide purchased by A.2 and administered the same to the deceased through the bottle supplied by him to P.W. 3. Under those circumstances, we find that the prosecution must fail on the ground of not connecting the link with regard to poison that has been purchased by A.2 from P.W. 13 and the same was administered by A.1 to the deceased through the bottle supplied by him.

There is also no motive for the accused to cause the death of the deceased as the dispute in regard to laying of road is between the accused No. 2 and P.W. 14 the Sarpanch. Further, as held by the Supreme Court in the case referred to above, if in a criminal case motive as a circumstance is put forward it must be fully established like any other incriminating circumstance. It is not the case of the prosecution that A.1 hatched a plan to do away the deceased, without the knowledge of P.W. 3, and accordingly made P.W. 3 to come to his house to take the bottle so that he will have an opportunity of pouring cyanide poison into the bottle so that it can mix up with the arrack that will be taken by P.W. 3 from the arrack shop of P.W. 5. The fact that D.2 sent P.W. 3 to the residence of A.1 for taking an empty brandy bottle itself shows that there was no enmity between A.1 and the deceased and as such no motive can be attributed to A.1. Since in this case, motive as a circumstance relied upon by the prosecution has not been established, we feel that the prosecution has failed to prove that circumstance also.

In the light of the above, it is highly unsafe to conclude that A.1 had an opportunity to administer the poison to the deceased by pouring it into the bottle that was supplied by him to P.W. 3 for taking arrack from the shop of P.W. 5 so that it can be inferred that he had administered the poison to the deceased resulting in their death. It is also not the case of the prosecution that P.W. 3 had observed any powder in the bottle that was supplied by A.1. Under the circumstances, the finding of the learned Additional Sessions Judge that the charge was positively proved against A.1 cannot be sustained.

For the reasons aforesaid, we set aside the conviction of A.1 for the offence punishable under S. 302, I.P.C. and the sentence of imprisonment for life imposed thereunder by the learned Addl. Sessions Judge. A.1 shall be set at liberty forthwith if he is not required in any other cause.

The Criminal Appeal is allowed accordingly.

Appeal allowed.

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