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2000 DIGILAW 603 (KER)

Chandraraj v. State of Kerala

2000-11-16

JACOB BENJAMIN KOSHY, N.KRISHNAN NAIR

body2000
JUDGMENT 1. Crl. R. T. No. L of 2000 is a death reference arising out of the judgment of conviction and sentence of death awarded by the II Additional Sessions Judge, Thiruvananthapuram in SC 105/1995. Against the same judgment of conviction and sentence, Crl. Appeal No. 28/2000 has been preferred by the convict accused. The R.T. and the appeal are heard together and are disposed of by this common judgment. 2. The prosecution case is briefly as follows: The deceased Syamalakumari was the wife of the accused. Bereaved of her parents in childhood, the deceased was taken care of by her elder brother, P.W. 1 and his wife P. W. 27. P.W. I got her married to the accused. The marriage was solemnized on 23rd August 1989. After the marriage the accused and the deceased were living together in the family house of the accused at Vellarada in Kunnathukal Village. The deceased was taken to the house of P. W. 1 for delivery on 17th July 1990 and she gave birth to a female child on 17th November 1990. After the marriage the accused wanted the deceased to dispose of 65 cents of coconut garden belonging to her to appropriate the sale proceeds. But, the deceased was not willing to sell her property. On account of this, the accused was nursing a grudge against the deceased. While the deceased was in the house of P.W. 1 for her delivery the accused had managed to procure some sodium cyanide on the false pretext that it was required for killing rats. After procuring the poison he was waiting for an opportunity to put an end to the life of his wife by administering the poison. While so the deceased returned to her matrimonial home after delivery, on 3rd December 1990, at about 10 a. m. the accused caused the death of the deceased by forcibly administering the poison and left the house. 3. The deceased was taken to the St. Thomas Hospital, Panachamoodu. The Doctor examined the deceased and declared her dead. 4. P.W. 1 proceeded to the Vellarada Police Station and he gave Ext. P-2 statement. P.W. 30 recorded Ext. P-2 information and registered crime No. 190/1990 under S.174 of the Cr. P. C. Ext. P-2 (a) is the F.I.R. P.W. 20, the then Tahsildar and Executive Magistrate, Neyyattinkara held inquest over the dead body on 4th December 1990. 4. P.W. 1 proceeded to the Vellarada Police Station and he gave Ext. P-2 statement. P.W. 30 recorded Ext. P-2 information and registered crime No. 190/1990 under S.174 of the Cr. P. C. Ext. P-2 (a) is the F.I.R. P.W. 20, the then Tahsildar and Executive Magistrate, Neyyattinkara held inquest over the dead body on 4th December 1990. The post mortem examination was performed by P. W. 41. Alleging that the investigation conducted by the G. I. of Police, Neyyattinkara was not proper, P. W. 1 lodged a complaint before the Director General of Police. Subsequently, the investigation was taken up by the C.B.C.I.D. and the case was registered as C.B.C.I.D. Grime No. 475/CR/1991. P.W. 43 took up the investigation ia the case. P.W. 45 laid the charge before the court. 5. The accused denied the charge. In order to prove its case, prosecution examined P.W. 1 to P.W. 45, marked Exts. P-l to P-56 and identified M.Os. 1 to 11. In his statement recorded under S.313 of the Code of Criminal Procedure the accused denied the prosecution allegations. The accused stated that he had procured cyanide from one Labeeb to kill the rats in his herbal medicine store at Panachamoodu. He further stated that after killing the rats by cyanide poisoning the remainder was given to his wife to kill a cat which was a nuisance to their house. He would also say that he did not enquire as to whether there was any remainder after killing the cat. According to him, his wife did not like his company with the "Oozhiyakkari" ladies who used to accompany him to the church. He added that his wife used to quarrel with him and even on the date of occurrence early in the morning the deceased had a quarrel with him. He has also stated that on the date of occurrence when he left his house the deceased was seen standing near the well with the child. He contended that he is innocent of the allegations levelled against him and he is falsely implicated in the case. The defence examined two witnesses as D.W. 1 and D.W. 2 and marked Exts. D-1 to D-2(b). On an elaborate consideration of the evidence the learned Additional Sessions Judge found the accused guilty of the offence, convicted him and sentenced him as stated. earlier. 6. The defence examined two witnesses as D.W. 1 and D.W. 2 and marked Exts. D-1 to D-2(b). On an elaborate consideration of the evidence the learned Additional Sessions Judge found the accused guilty of the offence, convicted him and sentenced him as stated. earlier. 6. The learned counsel for the appellant contended that the court below should have held that the death of Syamalakumari was not homicidal. According to the learned counsel, the deceased must have in all probability committed suicide. He further contended that the court below has not properly scanned or weighed the evidence in this case. On the other hand, the learned Public Prosecutor supported the judgment and urged that there is no ground for interference. 7. The important question to be considered in the case is whether the death of Syamalakumari was homicidal as alleged by the prosecution or suicidal as contended by the accused. The law relating to the mode and manner of proof of cases of murder by administration of poison is fairly settled by a catena of decisions of the Supreme Court and the High Courts. As early as 1933 Benett, J. in Mt. Gajhani v. Emperor AIR 1933 All. 394, observed as follows: ''In a case of murder by poison there are three main points to be proved: Firstly, did the deceased die of the poison in question; secondly, had the accused got the poison in question in his or her possession; and thirdly, had the accused an opportunity to administer the poison in question to the deceased. If these three points are proved, a presumption may under certain circumstances be drawn by the Court that the accused did administer poison to the deceased and did cause the death of the deceased." In Ramgopal's case AIR 1972 SC 656 , the Supreme Court held as follows: "Three questions arise In such cases, namely (firstly), did the deceased die of the poison in question? (Secondly) had the accused the poison in question in his possession? and (thirdly) had the accused an opportunity to administer the poison in question to the deceased? (Secondly) had the accused the poison in question in his possession? and (thirdly) had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the Court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death." In Shard v. State of Maharashtra AIR 1984 SC 1622 also, the Supreme Court observed thus: "So far as this matter is concerned, in such cases 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. (4) that he had an opportunity to administer the poison to the deceased." 8. Keeping in view the above principles of law, let us examine the circumstances which have been proved in this case. The first circumstance relied on by the prosecution is that the deceased had died of Cyanide poisoning. Dr. K. Sreekumari (P. W. 41) the then Assistant Professor of Forensic Medicine and Deputy Police Surgeon, Medical College, Trivandrum has sworn that she performed post mortem examination of the dead body of Syarnalakumari on 4th December 1990. Ext. P-38 is the post mortem certificate. In Ext. P-38, thirteen ante mortem injuries including contusions and abrasions are noted. Visera including spleen, blood and vaginal smear and swab were preserved and sent for chemical analysis. Ext. P-23 is the chemical analysis report. On the basis of Exts. P-23, and P-38, P.W. 41 gave her final opinion regarding the cause of death as per Ext. P-39. The Doctor has opined that the deceased died of Hydrocyanide Acid poisoning. According to P.W. 41, death can occur in the case of Cyanide poisoning within 2 to 30 minutes. There is no reason to discard the evidence of P.W. 41. and Exts. P-23, P-38 and P-39. Therefore, it has to be held that the deceased died of Cyanide poisoning, as alleged by the prosecution. 9. The next question which falls for consideration is whether the accused did possess Cyanide poison at the relevant time. There is no reason to discard the evidence of P.W. 41. and Exts. P-23, P-38 and P-39. Therefore, it has to be held that the deceased died of Cyanide poisoning, as alleged by the prosecution. 9. The next question which falls for consideration is whether the accused did possess Cyanide poison at the relevant time. P.W. 36 has sworn that on several occasions the accused approached him and expressed his desire to get Cyanide on the pretext that it was required for killing rats. At last, because of the insistence of the accused, he was forced to sell 5 gms. of Cyanide for Rs. 5. He has further deposed that his brother-in-law Labeeb (C.W. 50) was conducting a shop by name Star Gilt Works at Panchamoodu during the year 1990. When the said Labeeb went to Gulf in 1993, he took up the management of the said shop. He admitted in cross examination that he had no licence to possess Cyanide. P.W. 37 is the brother of P.W. 36. He would say that two or three months prior to the death of the deceased, the accused approached him for procuring Cyanide. But, he refused to give it. He has also stated that the accused told him that Cyanide is required for killing rats. Though P.W. 32 was cited and examined to prove that the accused approached him also for getting Cyanide, he turned hostile to the prosecution. But he had to admit that he has stated before the Magistrate that the accused approached him for getting Cyanide three months prior to the death of the deceased. Thus, the evidence on record would help the prosecution to prove that about three months prior to the death of the deceased, the accused made several attempts to get Cyanide and at last, he got 5 gms. of Cyanide from P.W. 36. 10. No doubt, the accused has a case that he procured Cyanide for killing rats. His further case is that at the request of the deceased he gave a part of the poison to her for killing a cat which was a nuisance to their house. The version of the accused that he procured Cyanide for killing rats could be accepted only with a pinch of salt. Even according to the accused, the deceased did not like his relationship with 'Oozhiyakkars' and the deceased used to quarrel with him. The version of the accused that he procured Cyanide for killing rats could be accepted only with a pinch of salt. Even according to the accused, the deceased did not like his relationship with 'Oozhiyakkars' and the deceased used to quarrel with him. If that be so, it is very difficult to believe that he had given Cyanide to his wife for killing a cat. It is also relevant to note that he did not enquire as to whether there was any remainder after killing the cat. The learned counsel for the appellant contended that since the procurement of Cyanide was some months prior to the incident in this case, the version of the accused in this regard is not improbable. We cannot agree. It is true that the evidence in the case would indicate that the accused procured the poison some months prior to the occurrence. It is to be noted that when he procured the poison the deceased was not available in his house. It is in evidence that the deceased was taken to her family house on 17th July 1990 for delivery and she delivered a female child on 11th August 1990. The deceased was taken back to her matrimonial home only on 17th November 1990. Again after two days, the deceased and the child were taken to the house of P.W. 1. Though they returned to the house of the accused, they again came to the house of P.W. 1 on 28th November 1990. It was on 30th November 1990 that the accused took back the deceased and the child. It is also in evidence that the parents of the accused were residing in the house of the accused and they shifted their residence from there only two or three days prior to the occurrence. Thus, the accused had no opportunity to administer the poison during this time. In this connection, it is relevant to note the following observations of the Supreme Court in Anant Chintaman Lagu v. The State of Bombay AIR 1960 SC 500 : "A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence, and his preparations for the commission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to avoid his detection." 11. The poisoner seldom takes another into his confidence, and his preparations for the commission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to avoid his detection." 11. In this case, the accused while procuring the Cyanide made out a false pretext that it is meant to kill rats and a cat. The conduct of the accused in making out that he meant Cyanide for killing rats and a cat is totally false and it was so said as a false pretext to conceal his motive for getting rid of his wife. 12. Another circumstance relied on by the prosecution is that at the relevant time the accused and the deceased were living together in the house where the occurrence took place and the accused was very much present in the house prior to the occurrence. The prosecution examined P.W. 2 to 4, P.W. 8 and P.W. 10 to prove this circumstance. P.W. 2 has deposed that on the date of occurrence at 8 a.m., when she went to the house of the accused for drawing water from the well, both the accused and the deceased were present in the house. She further deposed that after 9.30 a.m., while she was going to the market through the bund, the accused came there and asked her to purchase fish and dosha. P.W. 3 is residing on the western side of the house of the deceased. According to her, when she went to the house of the accused at about 10 a.m. to purchase the cadjan leaves she saw the accused and the deceased. No doubt, she has stated in cross examination that she saw the accused standing on the bund. P.W. 4 is also a neighbour of the accused. She would also say that on the date of the occurrence at 7.30a.m., the accused and the deceased were seen together in the courtyard of the house. 13. P.W. 8 has deposed that on the date of occurrence at 9.30 a.m., the accused came to her and asked her to keep a watch on his house as he was going to the church. She would further say that after the accused left the house, she went to the house of the accused and saw the deceased there. Then the deceased asked her to go home and come after her work. She would further say that after the accused left the house, she went to the house of the accused and saw the deceased there. Then the deceased asked her to go home and come after her work. She was declared hostile and cross examined by the Public Prosecutor. 14. P.W. 10 is also a hostile witness. According to him, he saw the accused at about 9.30 a.m. going towards west. 15. Learned counsel for the appellant contended that the evidence of P.W. 8 and P.W. 10 would show that the accused had left his house before 9.30 a. m. and even thereafter, the deceased was found in this house. We cannot agree. The evidence of P.W. 8 is utterly unreliable. The accused is none other than the sen of her uncle. Therefore, naturally, she is inclined to-support the defence. The version of P.W. 10 that he saw the accused going towards west at 9.30 a.m. cannot also be believed. Admittedly he had no watch and therefore the time given by him was only approximate. Even according to P.W. 8, the accused met her at about 9.30 a.m. and asked her to keep a watch on his house. It is also gatherable from the evidence of P.W. 2 and P.W. 3 that the accused was seen standing on the bund at about 9.30 a.m. Therefore, the evidence of P.W. 10 would not help the defence to show that the accused left his house before 9.30 a. m. In this connection, it is also relevant to note the evidence of P.W. 19. P.W. 19 would say that the accused had told her that he would reach Anchumaramkala at 10 a. m. and she should wait him there for going to the Eeratinkara church. But, according to her, the accused reached there only at 10.45 a.m. and they reached the church only at 12.30 a.m. and by the time, the first session of prayer was over. She further deposed that the accused was silent when he was asked about his late arrival. 16. The learned counsel for the appellant submitted that since P.W. 2 and P.W. 3 saw the accused standing on the bund neatly dressed for going to the church, it is impossible to presume that he could have returned to his house to commit the crime. We see no force in this contention also. 16. The learned counsel for the appellant submitted that since P.W. 2 and P.W. 3 saw the accused standing on the bund neatly dressed for going to the church, it is impossible to presume that he could have returned to his house to commit the crime. We see no force in this contention also. It is in evidence that the bund is located very near to the house of the accused. In Ext. P-50 mahazar, it is specifically stated that the bund is located on the northern side of the house of the accused and the distance between the house and the bund is only 20 metres. There is nothing in the evidence of P.W. 2 and P.W. 3 to indicate that the accused proceeded further from the bund. On the contrary their evidence would only show that he remained on the bund itself. The accused could have returned to his house and committed the crime. It appears that the accused remained in the bund to give an impression to the neighbours that he was not present in his house at the time of the occurrence. On a careful consideration of the evidence and the circumstances in this case, we are of the opinion that the prosecution has succeeded in proving that the deceased was last seen with the accused and he had the opportunity to administer the poison. 17. Another circumstance relied on by the prosecution is that the accused had a motive to kill the deceased. According to the prosecution, the accused wanted to sell 65 cents of property belonging to the deceased to appropriate the sale proceeds. But the deceased was not willing to sell the property. P.W. 1, the brother of the deceased has sworn that at the time of the marriage 65 cents of property was given to the deceased as dowry. He has also stated that the deceased had told his wife (P.W. 27) that the accused had threatened her that if an amount of Rs. 10,000 is not paid by mortgaging: the property of the deceased, she would be done away with. Therefore he promised to arrange the amount by mortgaging the property. Again on 28th November 1990 the accused came to his house with his wife and child and demanded Rs. 10,000 for purchasing the share of his brother in the family house. 10,000 is not paid by mortgaging: the property of the deceased, she would be done away with. Therefore he promised to arrange the amount by mortgaging the property. Again on 28th November 1990 the accused came to his house with his wife and child and demanded Rs. 10,000 for purchasing the share of his brother in the family house. He along with the deceased and the accused went to P.W. 21 and obtained an amount of Rs. 10,000 on executing a promissory note. The accused alone returned to his house with the amount leaving the deceased and the child in his house. On 30th November 1998 the accused came to his house and took the deceased and the child to his house. The evidence of P.W. I in this regard is confirmed and corroborated by the evidence of P.W. 27. P.W. 27 has also stated that the deceased had told her that the accused wanted to sell the 65 cents of land to appropriate the sale proceeds and there were frequent quarrels between them on account of this. According to her, the deceased had also told her that the accused had illicit relationship with other women. According to the learned counsel for the appellant, since the amount of Rs. 10,000 as demanded by the accused was arranged and given to him promptly, the alleged motive could not be said to have been subsisting on the date of the occurrence. It is true that as demanded by the accused Rs. 10,000 was given to him prior to the occurrence. But the definite case of the prosecution is that the accused was nursing a grudge against the deceased since his demand to sell 65 cents of land was not complied with. That apart, it has come out in evidence that the accused had intimacy with the other woman. P.W. 27 has stated in her evidence that the deceased had told her that on account of this there were frequent quarrels in the house. Under these circumstances it cannot be said that the accused had no motive to kill the deceased. The Supreme Court in Sharad v. State of Maharashtra AIR 1984 SC 1622 has held that the motive factor available in the statement of the deceased cannot be regarded as a remote circumstance if it is otherwise intimately connected. with the circumstances of the transaction which resulted in the deceased's death. The Supreme Court in Sharad v. State of Maharashtra AIR 1984 SC 1622 has held that the motive factor available in the statement of the deceased cannot be regarded as a remote circumstance if it is otherwise intimately connected. with the circumstances of the transaction which resulted in the deceased's death. In State v. Ammini and others 1987 (1) KLT 928 a Full Bench of this Court has also held that statement by deceased regarding motive for murder is admissible in evidence under S.32(1) of the Indian Evidence Act. 18. Even if it is assumed that the prosecution has failed to prove the motive, the prosecution case cannot be thrown out on that ground. In State of Madhya Pradesh v. Digvijay Singh AIR 1981 SC 1740 the Supreme Court observed: "It may be that the prosecution was not able to prove the motive for the crime, but that could not possibly matter when the circumstantial evidence on the record was sufficient to prove, beyond any doubt, that it was the accused and no one else who intentionally caused the death of the deceased." 19. In this connection it is also advantageous to refer to the following observation of this Court in Sathyanesavn v. State of Kerala 1984 KLT 774 : "Often the motive is locked in the heart of the offender. The discovery of the true motive is not imperative and the circumstances proving the guilt of the accused are not weakened at all by the fact that the motive has not been established. When there is positive, clear, cogent and reliable evidence, the weakness of the motive suggested by the prosecution will be of no consequence." 20. The last circumstance projected by the prosecution is the conduct of the accused after the occurrence. It is in evidence that on the date of occurrence at about 2.30 p.m. the accused was informed that his wife was admitted in the hospital as she was seriously ill. In the normal course the accused would have rushed to the hospital immediately on receipt of the information. But in this case the accused instead of going to the hospital proceeded to Thiruvananthapuram and procured the company of his father, his brother and his wife and two policemen. In the normal course the accused would have rushed to the hospital immediately on receipt of the information. But in this case the accused instead of going to the hospital proceeded to Thiruvananthapuram and procured the company of his father, his brother and his wife and two policemen. Relying on the evidence of P. W. 26, the learned counsel for the appellant submitted that when the accused went to the hospital he was assaulted by some people and therefore he returned without paying a visit to his wife in the hospital. There is nothing in the evidence of P.W. 26 to show that the accused was assaulted by the people. According to P.W. 26, when he slowed down the car at Panachamoodu people were seen coming towards the car and at that time he was asked to proceed to the place near the panchayat office. Even if it is assumed that the accused was afraid of the people gathered at the hospital, there is no cogent reason for his non-participation in the funeral ceremonies of his deceased wife. It is in evidence that on the date of the occurrence in the night he took shelter ia the house of P.W. 13 at Kanyakumari. After five or six days he shifted his residence to Kulasekharam and started residence in the house of P.W. 16. Thereafter with the help of P.W. 15 he shifted all the articles in the shop at Panachamoodu in a tempo van during the night. The accused did not even care to see his child. Thus the behaviour and conduct of the accused after the occurrence finger definitely towards the guilt of the accused and none-else. 21. According to the face and nose. Some of the injuries could have been caused while the deceased resisted the poison being administered to her. 22. No doubt, in the decision referred to by the learned counsel, viz. Sharad v. State of Maharashtra AIR 1984 SC 1622 it has been held that the accused is entitled to benefit of doubt if two views are possible, one pointing to his guilt and another that the deceased might have committed suicide. But in that case the prosecution miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e. possession of poison with the accused. But in that case the prosecution miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e. possession of poison with the accused. On the other hand there was clear evidence that potassium cyanide could have been available to the deceased from the factory of her mother and there was no evidence to show that the accused could have procured potassium cyanide from any available source. But in this case, as noticed earlier, there is reliable evidence to show that the accused had cyanide poison in his possession at the relevant time and he had the opportunity to administer the poison. The circumstantial evidence would only lead to the conclusion that the accused committed murder by administering poison. Therefore, we find no reason to interfere with the finding of the lower court that the accused is guilty of the offence punishable under S.302 of the Indian Penal Code. 23. Then the question is whether this is a rarest of rare case where the accused can be saddled with capital punishment. S.302 I.P.C. casts a heavy duty on the court to choose between the death and imprisonment for life. In Allauddin Mian v. State of Bihar 1989 SCC (Crl.) 490 the Supreme Court observed that when the court is called upon to choose between the convict's cry 'I want to live' and the prosecutor's demand 'he deserves to die' it goes without saying that the court must show a high degree of concern and sensitiveness in the choice of sentence. In Bachan Singh v. State of Punjab 1980 SCC (Crl.) 580 a Constitution Bench of the Supreme Court has ruled that the sentence of death should not be passed except in rarest of rare cases. In Machhi Singh v. State of Punjab 1983 SCC (Crl.) 681 the Supreme Court observed that only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community, would it be permissible to award the death sentence. It is now settled position that the life sentence is the rule and death sentence is; an exception. No doubt this is a case of pre-planned murder. But it cannot be said that the accused caused the death of his wife in a very cruel, heinous and disasterly manner shocking the conscience of the community. It is now settled position that the life sentence is the rule and death sentence is; an exception. No doubt this is a case of pre-planned murder. But it cannot be said that the accused caused the death of his wife in a very cruel, heinous and disasterly manner shocking the conscience of the community. Therefore,-ve are not confident enough to include this case in the category of rarest of rare cases. In the result the death reference (R. T. No. 1/2000) submitted by the Second Additional Sessions Judge, Thiruvananthapuram, is hereby rejected. But the conviction of the accused under S.302 I.P.C. is confirmed. The sentence is altered by modifying the capital punishment to that of rigorous-imprisonment for life. The Criminal Appeal is dismissed subject to the above: modification in the sentence.