Shaik Saidulu vs State of Andhra Pradesh

Krishna Saran Shrivastava, J.—The appellant has challenged his conviction under S. 302 of the IPC and sentence of imprisonment of life passed by the III Additional Sessions Judge, Guntur in Sessions Case No. 254 of 1994.

A resume :- There were two political factions in village Kasanupalli, one led by deceased Bolla Venkaiah and the other rival faction headed by one late Nelluri Pedaramaiah. The appellant-accused as well as acquitted accused persons A-2 to A-5 was in the party of late Nelluri Pedaramaiah. There was bad blood between these two factions. Late Nelluri Pedaramaiah was the brother of A-2 and cousin of A-3. About seven or eight years prior to the date of incident, Nelluri Pedaramaiah was murdered and the deceased Bolla Venkaiah was also tried along with other persons for committing his murder, but was acquitted. He was the Sarpanch of the village and the deceased Bolla Venkaiah was the Upa-Sarpanch. In the Gram Panchayat elections held about three or four months prior to the date of incident, the party of the deceased Bolla Venkaiah obtained four seats, while the party of the appellant secured six seats. The deceased Bolla Venkaiah wanted to become Sarpanch. The appellant-accused succeeded in defecting to the party of the deceased Bolla Venkaiah by obtaining Rs. 3,000/- as consideration for the same and, as a result of his defection, the deceased Bolla Venkaiah became the Sarpanch of his Gram Panchayat. Though defected, he continued his loyalty to his original party.

On 24-8-1988 at about 1-00 P.M., the appellant went to the house of the deceased Bolla Venkaiah with Shaik Nagulu PW-7 and presented one bottle of whiskey and one fowl to him in presence of his wife PW-2, daughter PW-3, son PW-4 and farm servant PW-5 on the eve of Peerla Festival (Moharam) and went away.

The deceased Bolla Venkaiah, though warned by his wife PW-2 not to consume liquor presented by the appellant, who was not a dependable person, asked her to give some mutton and a tumbler and went to the western room with the same and the bottle of whisky presented by the appellant and consumed about 3/4th of the same. After some time, he raised cries where upon PWs-2 to 5 rushed inside the room and found Bolla Venkaiah lying unconscious on the ground. He was removed in a cart to a local doctor and then to the hospital, on his advice, in a serious condition and was later declared dead in the hospital. PW-2 narrated the incident to her husband''s brother PW-1, who lodged a written report Ex. P-1 in the police station, where FIR, was recorded.

The investigating officer PW-13 held inquest over the dead body of Bolla Venkaiah. He seized the whisky bottle M.O. - 1 containing 1/4th of liquor, tumbler M.O. - 2 and the steel plate M.O. - 3 vide inquest report Ex. P-6. He sent the dead body of the deceased for post-mortem. Civil Assistant Surgeon PW-11 conducted the autopsy of the dead body of Bolla Venkaiah on 26-8-1988 at about 10-30 p.m, and preserved the viscera and other parts of the abdomen, which were sent for chemical examination to Forensic Science Laboratory. The Civil Assistant Surgeon PW-11 opined vide post-mortem report Ex. P-8 that Bolla Venkaiah has died due to cyanide poison within 18 to 24 hours from the time of post-mortem.

After usual investigation, the accused-appellant and the acquitted-accused A-2 to A-5 were charge sheeted under Ss. 120-B and 302 of the IPC.

The trial Court framed charge under S. 120-B of the IPC against all the five accused persons, under S. 302 of the IPC against the appellant-accused and under S. 302 read with S. 149 of the IPC against the acquitted accused persons.

The accused-appellant denied the guilt and pleaded that the deceased Bolla Venkaiah was highly indebted and, therefore, he committed suicide due to frustration. He did not examine any witness in defence.

The trial Court, on assessment of the evidence on record, acquitted A-2 to A-5, but convicted and sentenced the accused-appellant as stated above.

Feeling aggrieved by the judgment of conviction and sentence, A-1 has preferred this appeal.

Relying on Sharad Birdhichand Sarda Vs. State of Maharashtra, , it has been urged on behalf of the appellant as follows :

"In the cases, of murder by administration of poison the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction : (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; and (4) that he had an opportunity to administer the poison to the deceased."

It has been further contended on behalf of the appellant that the evidence as accepted by the trial Judge does not lead to the conclusion that the appellant has committed the offence, particularly, because the prosecution has miserably failed to establish that the accused had the poison in his possession and in the absence of this material circumstance, the accused-appellant is entitled to acquittal.

12A. Discussing the facts law as laid down in Mt. Gajrani and Another Vs. Emperor, , Dharambir Singh v. State of Punjab (1958) Criminal Appeal No. 120 of 1957, Mohan Vs. State of Uttar Pradesh, , Anant Chintaman Lagu Vs. The State of Bombay, , Ram Gopal Vs. State of Maharashtra, and Sharad Birdhichand Sarda Vs. State of Maharashtra, , it has been held in the case of Bhupinder Singh Vs. State of Punjab, , as follows :

"The poison Murder cases are not to be put outside the rule of circumstantial evidence. There may be obvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possession of poison with the accused. The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders. Murder by poisoning is run like any other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw from the circumstances an inference on any matter one way or the other

We do not consider that there should he acquittal on 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 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."

The position as gathered and gleaned from the catena of the Supreme Court cases and the decision of other High Courts, it will be seen that in poison murder cases the following circumstances should be established to justify a conviction :

"(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."

But, it is not necessary to prove the aforementioned facts by direct evidence. The circumstantial evidence can also be a basis for proving those facts. It is not an invariable rule of law that it should be proved by direct evidence that the accused was in possession of the poison in question. The facts and circumstances proved against the accused may be sufficient to call for assumption on the fact of possession of Poison with the accused because proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. The sufficiency of evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case.

In Mohan Vs. State of Uttar Pradesh, the death in question was by arsenic poisoning. The prosecution proved that the accused gave ''pedas'' to the victim as pershad and the victim died after eating the ''pershad'' which contained arsenic. The apex Court found that there was thus direct evidence as to the possession of poison with the accused and, therefore, sustained the conviction and sentence awarded to the accused.

Bearing in mind the aforementioned principles of law, we shall evaluate the evidence on record.

PWs 2 to 4 have stated on oath that the appellant had come on a cycle with Shaik Nagulu PW7 with a bottle of whisky and a hen and presented the same to Bolla Venkaiah on the eve of Peerla Festival. PW6 has stated that accused-appellant. while going to the house of the deceased Bolla Venkaiah at about 1.00 P.M., with Shaik Nagulu PW7, had talked to him and told him that he was going to present a bottle of whisky and a hen to the deceased Bolla Venkaiah. Shaik Nagulu PW7, though declared hostile by the prosecution, has testified that he had taken the accused appellant on his cycle to the house of Bolla Venkaiah. He saw the accused-appellant carrying a hen with him. He remained outside the house of the deceased and the accused-appellant had gone inside the house of the deceased with the hen and had returned without the hen after some time and that he took him back on his cycle. PW5 is the farm servant of the deceased Bolla Venkaiah. He has also deposed that the accused-appellant had presented a bottle of whisky and a hen on Peerla Festival at about 1.00 P.M., to Bolla Venkaiah. PWs 2 to 4 have stated in one voice that in spite of the suggestion of PW2 not to consume whisky presented by the accused-appellant, who was not a dependable man, the deceased Bolla Venkaiah asked for meat and a tumbler and went inside the room with the same and the bottle of whisky. After some time, they heard cries of Bolla Venkaiah and on reaching there they found him lying unconscious on the ground. The whisky bottle contained only 1/4th of the liquor in it. PW1 also reached there and was told about the incident by PW2. The deceased Bolla Venkaiah was removed to the hospital where he was declared dead.

From the evidence of the doctor PW9, who conducted autopsy of the deceased Bolla Venkaiah as also from the reports of Forensic Science Laboratory, which are at Exs. P7 and P14, it is revealed that cyanide poison was found in the viscera pieces of intestine, pieces of liver and pieces of kidney of the deceased as also the liquor contained in MO1 and tumbler MO2. The doctor opined that Bolla Venkaiah had died due to cyanide poison.

We get from the evidence of PW2 that before consuming liquor brought by the accused-appellant on that day her husband Bolla Venkaiah had not taken anything. She has also stated in cross-examaniation that the appellant-accused had presented the bottle of whisky in a wrapper. Under these circumstances, the absence of evidence on record whether the whisky bottle was sealed or not is of little consequence because PW2 has no occasion to see the same at the time when it was presented to her husband. Nothing could be brought out in cross examination of PWs. 1 to 7, which could detract from the weight of their evidence. The learned trial Judge has rightly relied on their testimonies to conclude that the appellant accused (A1), though defected, remained loyal to his original party and had presented a bottle of whisky and a hen to the deceased Bolla Venkaiah at about 1.00 P.M. on Peerla Festival Day, the deceased consumed the liquor immediately thereafter and became unconscious and subsequently died and that he died due to poisoning.

There is evidence on record that all this happened within twenty to thirty minutes. As noted above, the deceased had taken nothing on that day before consuming the liquor supplied by the appellant-accused (A1). The cases of Ram Gopal Vs. State of Maharashtra, , (supra) and Sharad Birdhichand Sarda Vs. State of Maharashtra, , (supra) are distinguishable on facts. The facts of this case are almost on all fours with the case of Mohan Vs. State of Uttar Pradesh, . (supra) because in that case the deceased had died immediately after eating the ''Pedas''. Under these circumstances, there appears to be no difficulty in holding that there is direct evidence as to the possession of the poison with the accused-appellant because the deceased Bolla Venkaiah had died immediately on consuming the liquor supplied by him and that he had taken nothing prior to that on that day. Even otherwise, the aforementioned incriminating circumstances are indicative and suggestive of the fact that the appellant-accused was in possession of cyanide poison at the relevant time.

The appellant-accused had taken an amount of Rs. 3,000/- for supporting the deceased in the election of Sarpanch of the Gram Panchayat but had remained to his original party. It appears that he had won the confidence of the deceased some how and succeeded in presenting a bottle of liquor mixed with poison to him. Thus there appears to be clear motive for the appellant to administer poison to the deceased.

There is no iota of evidence to infer that the deceased, with a view to commit suicide, had himself consumed liquor mixed with poison.

The proved facts and circumstances referred to above are consistent with the guilt of the accused and are entirely incompatible with his innocence. They exclude every reasonable hypothesis consistent with his innocence.

For the foregoing reasons, agreeing with the learned III Additional Sessions Judge, we reach to the conclusion that the accused-appellant (A1) is the author of the crime and he is solely responsible for causing the death of the deceased Bolla Venkaiah.

In result, the appeal fails and is hereby dismissed. The conviction and sentence awarded to the appellant by the Additional Sessions Judge, Guntur are hereby confirmed.

Appeal dismissed.