Karnataka High Court
Eregowda @ Kulla vs The State Of Karnataka By on 29 November, 2018
Bench: K.N.Phaneendra, K.Somashekar
1 ®
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 941/2013 (C)
BETWEEN
EREGOWDA @ KULLA
S/O CHIKKIREMADAIAH
AGED ABOUT 45 YEARS
VOKKALIGA, AGRICULTURIST
R/OF NERALEKERE VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 401 ... APPELLANT
(BY SRI. A.N. RADHAKRISHNA, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY ARAKERE POLICE STATION
SRIRANGAPATNA CIRCLE
SRIRANGAPATNA, MANDYA DIST
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BANGALORE - 560 001 ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE
THE ORDER OF CONVICTION AND SENTENCE DATED
2
20.06.2013 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE, MANDYA (SITTING AT
SRIRANGAPATNA) IN S.C.NO. 228/2011 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498(A), 307 AND 302 OF
IPC ETC..
THIS CRIMINAL APPEAL COMING ON FOR
HEARING, THIS DAY, K.N. PHANEENDRA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The sole accused in S.C.No.228/2011 on the file of the III Additional District and Sessions Judge, Mandya (for short, 'trial Court'), has challenged the judgment passed in the said case vide judgment dated 20.06.2013 convicting the appellant/accused and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default sentence for the offence punishable under Section 302 IPC; and also to undergo rigorous imprisonment for a period of one year with fine of Rs.5,000/- with default sentence for the offence punishable under Section 498-A of IPC; and also sentencing him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- with default sentence for the offence punishable under Section 307 of IPC.
3
2. Before adverting to some of the important grounds urged by the learned counsel for the appellant while elaborating his arguments on the grounds of appeal, we feel it just and necessary to have the brief factual matrix of this particular case, on which basis the prosecution has levelled the charges against the accused for the above said offences.
3. It is the case of the prosecution that, the accused and PW-2 Nagamma are husband and wife and both of them were residing in Neralekere village in Mandya District, along with their children by name Abhishek and Mamatha. Further, it is the case of the prosecution that, the accused was addicted to alcohol and he started ill-treating and harassing his wife in demand of money and also that the accused had demanded from his wife a land which was given to her by her parents, for the purpose of selling the land and utilizing the money for his vices. His wife had refused the same. In this context, there were differences between the accused and PW-2, in respect of which several panchayaths were held and accused assured 4 that he would take care of his wife. Again, the husband and wife joined together and started living happily with each other. It is the further case of the prosecution that the accused had an ill-motive in his mind against his wife (PW.2) and therefore, he wanted to do away her life.
4. In the above context, it is the specific case of the prosecution that on 4.3.2011, the accused purchased some insecticide tablets containing Organo- phosphorous poison and he was waiting for an opportunity to administer the same to kill his wife. It is the further case of the prosecution that on 5.3.2011, PW-2 had prepared tamarind rice (puliogare) in her house for the purpose of breakfast and lunch to all her family members and also for the purpose of taking the same for lunch for herself in the afternoon, as she was doing coolie work in the land of PW.14-Mahadeva. It is the case of the prosecution that when PW-2 was away from the kitchen, the accused taking advantage of her absence, powdered the said tablets containing organo- phosphorous poison and mixed the same in the 5 Tamarind rice which was intended to be consumed by PW-2 at her work place during her lunch time. Since PW-2 was not aware of the fact of her husband mixing poison in the tamarind rice that she had prepared, she packed some portion of the said tamarind rice in her lunch box and took the same to her work place. In the afternoon, it appears she consumed the said tamarind rice and also gave some portion to her co-coolie worker by name Smt. Jayasheela. After consuming the said food, both of them developed vomiting sensation, restlessness, in fact PW.2 vomited some portion of the food that she had consumed and both of them also developed giddiness, etc. The co-coolie workers and others including the husband of PW-2, that is the accused shifted both the victims, that is PW-2 and Smt.Jayasheela to the hospital. There in fact, PW-2 who is the wife of the accused, survived. However, the other lady who consumed puliyogere containing organo- phosphorous poison and succumbed to the poison and died in the hospital. On the above said allegations, the prosecution has laid charge-sheet specifically contending that, the accused had intended to kill his 6 wife and therefore, he administered poison to her through tamarind rice. As she survived, the accused has committed the offence under Section 307 of IPC and though he had no specific intention to kill Smt. Jayasheela, but the intention to kill a person has been established, he has committed the murder of Smt. Jayasheela under section 302 of IPC. The police also came to the conclusion from the materials on record that the accused had ill-treated and harassed PW-2 and therefore they also invoked Section 498-A of IPC. The accused was arrested on 24.07.2011 and since then, he has been in custody.
5. The Trial Court, after securing the presence of the accused, proceeded to frame charges for the above said offences. The accused pleaded not guilty and the trial went on. The prosecution, in order to bring home the guilt of the accused, examined as many as 27 witnesses as PWs.1 to 27 and got marked 15 documents as Exhibits P-1 to P-15 and Material Objects MOs-1 to 4, apart from marking MO-1(a) to 1(c). The defence also got marked a portion of the evidence of PW-3, which is 7 marked as Ex.D1 and another document is also relied upon, which is marked at Ex. D2.
6. After the examination of the prosecution witnesses, the court also examined the accused under Section 313 Cr.P.C. and called upon the accused to enter into defence, if any. As the accused did not choose to lead any evidence, the court after hearing the counsel on both sides and after appreciating the oral and documentary evidence on record, has come to the conclusion that, the prosecution has proved the case beyond all reasonable doubt. Therefore, it delivered a judgment of conviction and passed the order of sentence, as noted supra.
7. The learned counsel for the appellant very strenuously contended before this court that, the prosecution has not established any motive before the court. It is contended that, the demand of any property by accused from PW.2, which was given to her by her parents, is not the case projected by the prosecution at all and the said motive is not spoken to by any of the witnesses examined by the prosecution. Further, he 8 contended that, there are serious lapses on the part of the Investigating Agency as, they have not seized the material objects in this case which are the vessels namely the Tiffin boxes which were used by the deceased as well as PW-2 and had not sent them for forensic examination to ascertain whether the remaining food contained any organo-phosphorous poison. He also contended that, the movements of PW-2 and PW-3 in and out of the house as well as the accused on that particular day is contradicted by the witnesses, to each other. It is also submitted that after conducting the post-mortem examination, the undigested food contained in the dead body of Jayasheela was not sent to FSL for examination. The learned counsel also contended that with regard to cooking of the puliyogere or tamarind rice in the house, there is discrepancy in the evidence of PW-2 and PW-3. He also contended that bringing of the tablets containing organo- phosphorous by the accused on the previous day and the accused going out of the house on the next day, the conduct of the accused as projected by the prosecution has not been properly established. He further 9 contended that, the conduct of the accused was also reasonable regarding his innocence, since he actually took the deceased to the hospital and he never absconded and he voluntarily surrendered himself before the police for the purpose of preliminary examination and the police had left him free after conducting enquiry as they found that there was no material against him at the initial stages.
8. The learned counsel apart from arguing the above said point, also alternatively pleaded before this court that, without admitting anything with regard to the prosecution case, even if the case of the prosecution without reference to any grounds urged, is accepted as it is, the offence under Section 302 IPC is not made out because, the accused had never intended to kill the deceased Jayasheela. That he had committed the act of causing the death of deceased Jayasheela without his knowledge or intention, that he never knew that she would consume the said tamarind rice carried by PW-2 to the work place. Therefore, the accused neither had any intention nor had any knowledge to cause the death 10 of the deceased Jayasheela. Therefore, the accused has not committed any offence under Section 302 or under Section 304 Part I of IPC. Even if the court for any reason comes to the conclusion that it was well within the knowledge of the accused, with regard to the cause of death of the deceased Jayasheela, at the most, the offence falls under Section 304 Part II of IPC and not under Section 302 of IPC. With these observations, the learned counsel for the appellant submitted that the accused is entitled for acquittal of the charges levelled against him, or for reduction of the sentence.
9. Sri. Vijayakumar Majage, learned Additional SPP equally with all force, countering the arguments of the learned counsel, for the appellant submitted that, though there are some lapses on the part of the Investigating Officer in not seizing some vessels and not sending some articles to the FSL, it will not in any manner paralyse the case of the prosecution. He submitted that, the said materials on record, that is the material objects collected during the course of investigation coupled with the post-mortem report and 11 also the FSL report, unequivocally indicate the administering of Organo-phosphorous poison in the food consumed by PW-2 and Smt.Jayasheela. Therefore, he contends that, the act of the accused is very much clear that he intended to kill his wife and also he had the knowledge and intention that if any person consumes such food, he or she may also die. He also further contends that the Tiffin boxes containing the remains of the food though were not sent for FSL examination, the FSL report regarding the undigested food which was in the stomach of deceased Jayasheela and the evidence of the Scientific Officer clearly disclose that the poison was collected in the liver of deceased Jayasheela. Therefore, it also does not make any difference in this regard. He also contends that, though there are some contradictions and omissions in the evidence of PWs-2 and 3 with regard to the conduct of the accused and movements of PWs 2 and 3, but the whole gamut of the prosecution case is, that on that day, taking advantage of the situation that PW-2 and 3 went outside the house, the accused had mixed up the powder containing organo-phosphorous into the food prepared by PW-2. 12 Therefore, the core of the prosecution has not been disturbed even if such contradictions and omissions are there.
10. The learned Additional SPP also contended before this court that, the offence precisely falls under Section 302 IPC and not under Section 304 IPC. If the whole case of the prosecution is read meticulously appreciating the evidence of the witnesses, it reveals that the prosecution has made out a case that the accused had intention to kill his wife or he had the required knowledge that, anybody who consumes that particular food, may also die. Therefore, the intention of causing death as per the ingredients of Section 299 and 4th Explanation to Section 300 IPC, is very much there in this particular case. When such ingredients have been established by the prosecution, in that eventuality, the court cannot say that, he had no knowledge or had no intention to kill anybody at all. Therefore, though there was no specific intention that can be attributed by the prosecution with regard to the cause of death of Smt. Jayasheela, but the intention of 13 the accused to kill his wife is established before the court. Therefore, he contends that the offence under Section 302 IPC is attracted and it does not fall under Section 304 Part I or II of IPC.
11. Bearing in mind the above said rival contentions of the parties, we shall now look to the evidence of the prosecution witnesses first to ascertain whether the prosecution has made out a case for the offences punishable under Section 498A and 307 of IPC and then we will consider whether the offence under Section 302 is attracted or Section 304 Part II is attracted. The initial burden is there on the prosecution to prove the guilt of the accused for the above said offences, beyond all reasonable doubt. If for any reason the court comes to the conclusion that the prosecution itself has not proved the case for the above said offences, then the accused is entitled for acquittal. If for any reason the court comes to the conclusion that the offences are established, only then the court has to bestow its attention as to whether the offence falls under Section 302 or 304 Part I or II of IPC. 14
12. The prosecution examined as many as 27 witnesses. A cursory reading of the evidence of these witnesses is necessary because, after going through the gist of the evidence of these witnesses, later we would consider evidence of some of the important witnesses for appreciation.
12.1. PW-1 Chikkaningegowda is the husband of deceased Smt. Jayasheela. Of course, he is a hearsay evidence regarding the incident. He does not say anything. He is a witness for the circumstances that, he admitted deceased Smt. Jayasheela to the hospital and he spoke about the fact of the deceased having died in the hospital. There is no much cross-examination so far as this witness is concerned. From his evidence, we can make out that there is no dispute with regard to the death of Smt. Jayasheela in the hospital.
12.2. PW-2 Nagamma is the material witness. She is the wife of the accused and she has spoken about the allegations with regard to offence under Section 498-A, 307 and 302 IPC. She has 15 categorically stated about the incident and what happened later and also about the conduct of the accused in the house.
12.3. PW-3 Mamatha is another important star witness to the prosecution. She is the daughter of PW.2 and the accused and she has almost reiterated the evidence as spoken to by PW-2.
12.4. PW-4 Siddegowda is the brother of deceased Jayasheela. He has also deposed about the circumstances regarding admitting the deceased to the hospital and the death of the deceased in the hospital.
12.5. PW-5 Indramma and PW-6 Chikkatayamma are the co-coolie workers who were working on the date of incident and present at the time of the incident in the agricultural land of one PW-14 Mahadevu. They have also deposed as to what exactly happened on that particular day.
12.6. PW-7 Nanjegowda is the neighbour of the land of Mahadevu PW-14 and he has also stated about the fact that PW-2, PW-5, PW-6 and others had been to 16 coolie work in the land of PW-14 for the purpose of plucking green chillies. He also reiterates about the conduct of the accused and also the deceased that they were quarrelling with each other, etc. 12.7. PW-8 Mr. N.P. Suresh is the person who attested Exhibit P-3 which is the inquest report. Apart from that, he has also spoken about the conduct of the accused in ill-treating and harassing PW-2 and about a panchayath having been convened by them and that thereafter the accused and PW-2 again started living together.
12.8. PW-9 Kempegowda has also in a similar manner, deposed before the court as deposed by PW-8.
12.9. PW-10 Siddegowda is one more inquest witness who attested the inquest proceedings on the dead body of Jayasheela as per Exhibit P-3. There is no need to discuss the evidence of this witness any further because, we have observed that the death of Jayasheela is not disputed and whether it is homicidal death or otherwise has to be decided by this court later. 17
12.10. PW-11 Ningegowda is the owner of the shop where he was running Agro Traders and selling insecticides and pesticides in his shop. He has also spoken about the conduct of the accused who purchased an insecticide containing organo- phosphorous, on the previous day of the incident.
12.11. PW-12 Mahadeva is the neighbour of the accused and PW-2. He has also stated samething about the conduct of the accused and PW-2.
12.12. PW-13 Kumara is also another panch witness to Exhibit P-4 under which the police have seized the clothes of deceased Jayasheela after post- mortem examination, which are marked at MOs 1 to 3. There is no dispute so far as this aspect is concerned with regard to seizure of clothes of deceased Jayasheela.
12.13. PW-14 Mahadev is the owner of the land in which the deceased Jayasheela, PW-2 and other co- coolie workers referred to above had been to the land of this witness for the purpose of plucking green chillies. 18 He has also spoken about drawing up of a spot mahazar and seizure of remains of tamarind rice at the spot under Mahazar Exhibit P-5. He is also a witness to the spot mahazar Exhibit P-2. He has also deposed as to what happened in his land on that day.
12.14. PW-15 Javaregowda is also one more witness to the spot mahazar Exhibit P-2.
12.15. PW-16 Shankaramurthy is the Village Accountant who has given the RTC extract pertaining to the land of Mahadevu, where the incident actually happened, that is in Sy.No.68/2. There is no cross- examination so far as this witness is concerned and there is no dispute that the said land (place of incident) belonged to Mahadevu (PW.14).
12.16. PW-17 Sunil is the Assistant Executive Engineer attached to PWD, who drew up the spot sketch as per Exhibit P-7. Exhibit P-8 is the covering letter. There is no dispute so far as this aspect is concerned.
12.17. PW-18 Govindaraju is the Police Constable who showed the spot to PW-17 for the purpose of 19 drawing the spot sketch Exhibit P-17. There is no much cross-examination so far as this witness is concerned.
12.18. PW-19 H.M. Mahadevu is another Police Constable who carried the FIR and a report, and submitted them to the court. Exhibit P-10 is the report, Exhibit P-9 is the FIR and Exhibit P-11 is the hospital report, which were annexed to the FIR. Exhibit P-12 is also a copy of the UDR report of deceased Jayasheela registered in UDR No.4/2011, which was also marked through this witness.
12.19. PW-20 Chowdaiah is the Head Constable who apprehended the accused and there is no dispute with regard to the arrest of the accused on 24.07.2011.
12.20. PW-21 M.C. Chikkaraju is the retired ASI who had gone to the spot, conducted inquest proceedings and sent the dead body for post-mortem examination and handed over the dead body of Jayasheela to her brother. There is no dispute so far as these aspects are concerned.
20
12.21. PW-22 Chowdegowda is a neighbour of the accused who has also stated about the conduct of the accused and PW-2 with reference to Section 498A of IPC.
12.22. PW-23 Dr. C. Thammaiah is the Doctor who treated the deceased Jayasheela at the first instance and thereafter he referred the injured to K.R. Hospital, Mysore. He has also treated Nagamma PW-2 who was also admitted to the Hospital with the same history that, she and Smt. Jayasheela consumed some food and they experienced giddiness.
12.23. PW-24 Dr. Ravi is the person who conducted post-mortem examination on the dead body of Smt. Jayasheela. Exhibit P-13 is the post-mortem report. He has specifically mentioned after perusal of the FSL report, that the cause of death was due to consuming organo-phosphorous poison resulting in cardio-respiratory failure.
12.24. PW-25 Mr. S. Nagaraju, is the retired PSI. He received the complaint Exhibit P-1 and immediately 21 registered a case in UDR No.4/2011 and started investigation. It appears after the receipt of FSL report and the opinion of the Doctor, the case has been converted for the offences under Sections 307 and 302 of IPC.
12.25. PW-26 V.G. Nayak is the Assistant Director attached to Forensic Science Laboratory Mysuru. He explained as to how he conducted the test of the articles sent to him and the prosecution got marked the FSL report as per Exhibit P-14.
12.26. PW-27 A.V. Venkateshamurthy is the Police Inspector working at that particular point of time and he, after completion of the investigation, filed a charge-sheet.
13. After cursory examination of the evidence, now, we would consider the evidence of the important witnesses to ascertain whether the prosecution has proved the case against the accused beyond reasonable doubt.
22
14. It is quite acceptable after the arguments of the learned counsel for the appellant that, the prosecution has to first establish that the accused had an intention to kill his wife and the ingredients of Section 299 and first part Section 300 of IPC ie., Explanation to Section 300 IPC are attracted. Then only intention to cause the death of Smt.Jayasheela can be inferred. Therefore, the court has to examine whether the prosecution has proved the guilt of the accused beyond reasonable doubt and that the accused had really intended to kill his wife and thereafter, the Court has to ascertain whether the death of Smt. Jayasheela was exclusively due to the act of the accused and that the accused was also responsible for the death of Smt. Jayasheela.
15. In the above said backdrop, the evidence of PW.2 and PW.3 would play a dominant role in this particular case, so far as to what happened on that particular day in the house of the accused. PW.2- Nagamma as we have already referred, is the wife and PW.3 is the daughter of the Accused. PW.2 and PW.3 23 have categorically stated that they were all residing together with the accused at Neralekere village. The accused was taking care of them for some years after the marriage and birth of PW.3 and there after he was addicted to alcohol, because of that reason, PW.2 sent her children to her father's residence. About two years thereafter, she continued with the accused and thereafter, she also could not tolerate the ill-treatment of the accused and she also went to her parental house. After some compromises and panchayaths, when the accused gave an assurance that he would take care and lookafter PW.2 and her children, they again came back and started living with him. It is the further evidence that the accused was demanding the land which was given to PW.2 by her parents for the purpose of selling the same, as PW.2 was not willing to give him the land, he had some ill-intention against her.
16. In this backdrop, she further deposed that, about one year prior to the date of her evidence (on the date of incident) at about 5.00 a.m., the accused had gone out from the house and came back at 6.00 am. 24 This witness had been to the house of Smt.Jayasheela for the purpose of payment of coolie amount. She had prepared tamarind rice and put that tamarind rice into a box along with other spices prepared for the purpose of mixing and for the purpose of taking the same to the work spot. It is further stated that she went to work spot, and in the afternoon, she consumed the same and she also requested some persons who were there along with her to take some portion of Tamarind rice but they refused to take the same. However, Smt.Jayasheela shared the said Tamarind rice with PW.2. After some time, PW.2 and Smt. Jayasheela developed giddiness and they drank water and in spite of that, they could not tolerate uneasiness and giddiness. Thereafter, they were shifted to the hospital at Neralekere. The doctor at Neralekere told that, the victims have to be shifted to higher hospital. Accordingly, they were shifted to higher hospital. However, PW.2 after taking treatment survived, but the said Smt.Jayasheela died in the hospital.
25
17. In the course of cross-examination, as pointed out by the learned counsel, there are some discrepancies stated by these two witnesses. Of course PW.3 also stated in similar fashion with regard to the conduct of the accused as deposed by her mother (PW.2) that, they were often quarrelling with each other and her father was not taking care of them etc.. Apart from that, she has specifically stated in the examination in chief that, on that particular day, PW.2 prepared food and her father (i.e. the accused) told this witness not to eat tamarind rice and he told her to prepare Tomato Bath for eating. Accordingly, she prepared Tomato Bath and thereafter, accused also went away from the house. She has also deposed before the court that she had been to hospital on that particular day. She further stated that, her mother survived, but Smt. Jayasheela died in the hospital.
18. The learned counsel for the appellant has submitted before the court that, there are serious contradictions in the evidence of both of these two witnesses with regard to preparation of the food and 26 movement of these witnesses and the accused. Of course, there are some contradictions in explaining that the accused had gone outside the house on that particular day at about 5.00 a.m. and he came back at 6.00 a.m.. But, this timing has not been stated by PW.3 in her evidence. With regard to the preparation of the Tamarind Rice, PW.2 says that, she prepared Tamarind Rice but PW.3 also says that she had prepared the same. PW.2 has stated that she had gone out of the house for the purpose of payment of coolie amount to Smt. Jayasheela and it is contended that the said PW.2 was not a Mestry and she was not entrusted to bring any coolie workers, but it is one Chikkatayamma who was a Mestry, supposed to bring coolie workers. In the course of cross-examination, of course PW.3 has accepted that, her mother went out of the house on that day. But she has not stated as to why she went outside the house and this witness also went out for the purpose of attending the nature call. But, she has not stated the same before the Court that, she had gone outside the house for the purpose of attending nature call. She also admitted with regard to bringing PW.2 to 27 the house in a autorickshaw after she fell ill, in the land of PW.14.
19. Though there are certain contradictions and omissions in the evidence of these two witnesses, we are of the opinion that, the Court has to see whether the core of the prosecution is disturbed. PW.2 and PW.3 in their examination in chief and also in the cross examination have spoken about their presence and the presence of the accused at relevant time in the house and also regarding preparation of Tamarind rice, and the accused going out of the house at the relevant point of time. Therefore, the core of the factual aspects has not been disturbed even during the course of cross examination. Whatever may be the reason, at the relevant point of time, PW.2 or PW.3 went outside the house. The question is, actually at that particular point of time when PW.2 gone out of the house after preparing the food, whether the accused was alone in the house and he had an opportunity to mix the poison in the food and that is the core of the prosecution case, which has not been disturbed in this particular case. 28 Therefore, though some contradictions or omissions are elicited in the course of the cross-examination of PW.2 and PW.3, we are of the opinion that, the same do not go to the root of the prosecution case and also to discredit their evidence. Therefore, the preparation of the tamarind rice in the house and taking that tamarind rice to the work spot and eating of the tamarind rice by PW.2 and deceased Jayasheela are not at all disputed in the course of cross-examination.
20. Now we discuss about the evidence of other important witnesses i.e., PW.5, PW.6 and PW.14, to ascertain as to what happened at the work spot in the land of PW.14.
20.1. PW.5 - Indramma is another witness, who is a co-worker of PW.2. She has also categorically stated in her examination-in-chief that, PW.2 asked her to have some tamarind rice at the lunch time, but she refused to take the same, as she was suffering from gastric trouble. Therefore, PW.2 - Nagamma and deceased Jayasheela jointly consumed the tamarind rice and developed giddiness while working in the land 29 of PW.14-Mahadeva. They developed giddiness at about 11.30 or 12.00 in the afternoon and they were admitted to the hospital at Bannur and thereafter, to K.R.Hospital. As we have already discussed above, there is no dispute with regard to admitting of the deceased and also PW.2 to the hospital. It is the case of the accused that, he himself voluntarily took PW.2 to the hospital as soon she was brought back to the house by some persons. Therefore, there is no much dispute so far as this aspect is concerned.
20.2 In the course of cross-examination of this witness (PW.5), of course, some materials have been elicited with regard to collecting of the lunch boxes of PW.2 and deceased Jayasheela from the spot by the Police. We will consider that aspect little later as those items were not sent for FSL examination, while discussing the other materials on record. Though there is some contradiction in the cross-examination with regard to how PW.2 and deceased Jayasheela were shifted to the hospital, whether it is on a scooter or in an auto rickshaw, but in our opinion it is a minor 30 discrepancy. The totality of the case of the prosecution that is shifting of these two persons i.e., PW.2 and Smt. Jayasheela to the hospital is not at all disputed by the accused himself at any stage of the case. PW.3 also has categorically stated that PW.2 was shifted to the house first on a scooter and thereafter they went to the hospital in an auto rickshaw.
20.3. PW.6-Chikkathayamma another co-coolie worker has almost reiterated the said aspects of the matter i.e., she also has stated as to what happened at the work spot. Her evidence fully corroborates the evidence of PW.5 and she has also stated about the shifting of PW.2 and deceased Smt.Jayasheela to the hospital and death of Jayasheela in the hospital and also survival of PW.2.
20.4. PW.14 - Mahadevu is the owner of the land, where these PW.2 and deceased Jayasheela and other co-workers were working. He has deposed before the Court that he had entrusted PW.6- Chikkathayamma to bring some coolie workers for the purpose of plucking the green chillies in his land. Accordingly, 31 Chikkathayamma brought several coolie workers i.e., PW.2, deceased - Smt.Jayasheela, PW.5 - Indiramma along with her. She has also stated that on that particular day, all the co-workers had brought food from their houses in their lunch carriers. PW.2 and Smt. Jayasheela had parted the tamarind rice brought by PW.2. In fact, PW.14 also stated that PW.2 offered tamarind rice to almost all the coolie workers including this PW.14. He also refused to take the same because he had also gastric trouble. He candidly stated that he saw PW.2 and Smt. Jayasheela having put that tamarind rice to a dog but the dog also did not eat the same. However, PW.2 and Smt. Jayasheela consumed the same and developed giddiness at about 12.30 in the afternoon. He also fully corroborated the evidence of other witnesses that PW.2 and deceased were shifted to the hospital and there PW.2 survived but unfortunately, Smt. Jayasheela died in the hospital.
20.5 In the course of cross-examination, of course, bringing of lunch boxes and also those boxes being thrown at the spot itself at the time of these two 32 persons being shifted to the hospital is elicited. He also states that when the police came to that particular spot these boxes were not present and he does not know what happened to those boxes. Some contradictions have been elicited from the mouth of this witness to the effect that he has not stated before the police that PW.2 and Smt. Jayasheela offered some tamarind rice to the dog but the dog did not eat it.
20.6 From the evidence of these above witnesses it is clear even considering the entire cross- examination, the core of the prosecution that, on that particular day, PW.2 after preparation of the tamarind rice in her house took the tamarind rice to the work spot and parted the said tamarind rice with Smt. Jayasheela. Thereafter both of them consumed the same and because of that consumption they developed giddiness, uneasiness and inconvenience and that they were shifted to the hospital and there PW.2 survived and Smt. Jayasheela died in the hospital, these aspects are not eradicated.
33
21. Now the question that arises is, what was the reason for giddiness and uneasiness suffered by PW.2 and the cause of death of Smt. Jayasheela. In this background, the evidence of the Doctor - PW.23 who had actually seen PW.2 and the deceased at the first instance, is relevant. He has stated that, during that particular point of time he was working as a Medical Officer at Venkateshwara Clinic in Bannur. On that particular day, a lady by name Smt.Jayasheela was brought to his hospital and after examining her, he found that she was very uneasy and she told that she consumed the food prepared and took it to the work spot and thereafter, she developed some uneasiness and giddiness. After finding that, she must have developed such giddiness and inconvenience due to consumption of food, he advised to take her to K.R.Hospital. On that advise, Smt. Jayasheela was shifted to K.R.hospital at Mysuru. It is further deposed that, about one hour later PW.2 - Nagamma was also brought to the same hospital with the same history and PW.2 has also stated that herself and Smt. Jayasheela consumed the food in the lunch box taken by her and 34 they developed giddiness. After administering glucose and also giving some tender coconut PW.2 vomitted and in spite of that the Doctor advised to take her also to the K.R.Hospital, Mysuru.
22. In the course of cross-examination, it is elicited that though Smt. Jayasheela was seen by this Doctor, but the said Smt. Jayasheela did not vomit in the hospital. Perhaps that may be the reason, for her death. The poison consumed by her could not be washed out from the stomach of Smt. Jayasheela, which must have caused her death in the hospital, later. Further, in the course of cross-examination it is elicited that, both the victims stated before him that, they had consumed the food brought by them in a Tiffin carrier and thereafter, developed giddiness. Though it is suggested to this witness that, he has not maintained any records pertaining to his clinic, but in the course of cross-examination it is not specifically denied that he never treated PW.2 - Nagamma and the deceased though a formal suggestion is made.
35
23. On meaningful reading of the evidence of this witness it is clear that, initially this Doctor has seen the victims by name Nagamma and deceased Jayasheela. There is no reason elicited in the course of cross-examination as to why this doctor has to tell lie before the Court. From the evidence of this Doctor also it is clear that the Doctor has doubted that due to the consumption of the food, some problem arose to PW.2 and the deceased.
24. Now we may come to the evidence of PW.24
- Dr.Ravi, who has specifically spoken about the real cause of death of Smt. Jayasheela. This Doctor has deposed that he conducted the post mortem examination on the dead body of the deceased Smt. Jayasheela. On dissection he found some rice particles partially digested to the extent of 75 ml with yellowish color with peculiar smell. Therefore, he suspected that the death might be due to poisoning. He collected the contents of the stomach of deceased Jayasheela while conducting post mortem examination and sent the same to the FSL. After receipt of FSL report he has given his 36 opinion as per Ex.P13 stating that, death was due to Organo Phosphorous poisoning resulting in Cardio Respiratory Failure. Though in the course of cross- examination it is elicited that the Doctor had sent the undigested food in the stomach of the deceased, but the learned counsel submitted that, there is no mention of this in the FSL report or in the evidence of witness - PW.26. We will discuss it a little later. But the fact is clear from the evidence of the Doctor that the deceased died due to poisoning i.e., Organophosphorus found in the food. From the above evidence, it is made clear by the prosecution that PW.2 also developed such giddiness and inconvenience due to consumption of the poison in the food which was taken by PW.2 and consumed by both PW.2 and Smt. Jayasheela.
25. Now before adverting as to who must have done this particular act, whether the accused is the perpetrator or not, we would also refer to the evidence of PW.26, the FSL Director. PW.26 is a responsible officer by name V.G.Naik who was working as Assistant Director in FSL, Mysuru. He has stated that the 37 investigating officer had sent certain articles in UDR No.4/2011 and he actually examined the contents of the materials sent for examination and in those articles i.e., item Nos.1, 2, 3 and 5, he found Organophosphorus (insecticide). However, he did not find any such poison in item Nos.4, 6, 7 and 8. His report is marked as Ex.P14 and it discloses that item Nos.1, 2, 3 and 5 are the materials sent by the police in UDR No.4/2011. Those items are a plastic bottle containing contents of the stomach, portion of small intestine and its contents pertaining to the deceased Smt. Jayasheela and also the portion of liver and kidney of deceased Smt. Jayasheela and the blood sample and also cloth packet containing mud mixed with tamarind rice. So it is clear that the stomach contents, kidney and liver of the deceased were carefully examined by this witness and he found that those items were containing organophosphorus poison.
25.1 In the course of cross-examination of PW.26, in fact, it is elicited that, the Doctor has not specifically sent the undigested food in the stomach of Smt. Jayasheela, but the explanation given by this 38 witness is that, the entire liver was sent for examination and liver also contained the undigested food and therefore, such opinion has been given. The function of the liver may also be kept in view. The report discloses that there was Organo-phosphorus poison in the liver. It goes without saying that the food particles consumed by a person passes through the liver for the purpose of digestion. After completion of process of digestion of food, the liver pushes all the undigested food through excretory organ of the human body. Therefore, when the liver contents are examined by the Doctor it goes without saying that it amounts to examination of the food particles which was consumed by a person, whether it was digested or undigested. Therefore, no much importance need be given so far as this discrepancy is concerned.
26. It is clear from the evidence of the witnesses that, only due to the consumption of tamarind rice which contained Organophosphorus poison, PW.2 and deceased Smt. Jayasheela have developed such giddiness and were admitted to the hospital. However, 39 fortunately PW.2 survived, but unfortunately, Smt. Jayasheela died in the hospital.
27. Now the prime question arises as to who is responsible for this particular incident. It is the allegation of the prosecution that, due to the differences between accused and PW.2 and ill-will and hatred and cruelty being shown by the accused towards PW.2 as spoken to by PW.2 and PW.3 and other witnesses, the accused in fact had poisoned the food that was prepared by PW.2 or PW.3 knowing fully well that PW.2 would consume this food during the working hours in the work spot and she would die. For that reason, the accused prepared himself by bringing the insecticide tablets containing Organophoshorus and mixed that powder of the said tablets into tamarind rice prepared by PW.2 with an intention to see that PW.2 should die. Whether this is established by the prosecution or not has to be looked into by this court.
28. As we have already noticed in the evidence PW.2 and PW.3 have categorically stated about the conduct of the accused that he was not a care taking 40 husband or a care taking father. He neglected his wife and children. Because of that reason they were forced to shelter themselves in the house of the parents of PW.2. In this context, the prosecution has also examined in support of the evidence of PW.2 and PW.3 the other independent witnesses PW.8, PW.9 and PW.22. There is no need to discuss in detail the evidence of these witnesses. However, on overall appreciation of their evidence it is noticed that, these witnesses have categorically stated that, there were differences between the accused and the deceased and these witnesses were either related or neighbours of the accused. They have stated that on some occasions PW.8 secured the presence of the accused and advised him not to assault PW.2 and not to consume Alcohal. They have also deposed, because of the ill-treatment and harassment, PW.2 and her children had sheltered themselves in the parents house of PW.2 and that, there was some compromise, by way of panchayath had taken place and thereafter, once again the accused and PW.2 and her children started living together happily with each other.
41
28.1. But what exactly the motive running in the mind of the accused cannot be ascertained except by appreciating the evidence regarding the conduct of this accused. In the course of cross-examination except one suggestion that, accused was not addicted to Alcohol and he was not ill-treating, the entire cross-examination was concentrated with regard to the death of Smt. Jayasheela and developing of giddiness by PW.2. As we have already observed, this particular aspect of consumption of tamarind rice and developing giddiness has been proved by the prosecution. Even on reading the evidence of all these witnesses what could be gathered is that all was not well between the accused and PW.2 and they were at logger heads for various reasons. Though no specific motive has been established by the prosecution for the particular incident of poisoning PW.2, but on overall reading of the evidence it discloses that the accused was not an ordinary man and he is a careless person not taking care of his wife and children properly. Perhaps this must have been continued even after PW.2 and her children 42 joined the accused once again. In this context, the Court has to see the conduct of the accused.
29. The evidence of PW.2 and PW.3 discloses that on that particular ill fated day, the accused was in his house and after preparation of the tamarind rice, both PW.2 and PW.3 went out of the house for some reasons. At that particular point of time the accused was alone in the house and with all certainty we can say that he had the opportunity of putting the poison into the tamarind rice. In this background, the evidence of the owner of pesticide shop PW.11 - Ningegowda is helpful to the prosecution.
29.1. PW.11 - Ningegowda has deposed before the Court that he has been carrying on business in the name and style Veerabhadreshwara Agro Traders at Neralekere. People used to take insecticides and pesticides from the shop of this witness. He has specifically stated that on 4.3.2011 (previous day of the incident) at about 5.00 pm the accused went to his shop and asked for insecticide. This witness specifically deposed that, while giving the tablets (insecticide) 43 containing Organo-phosphorus, he cautioned the accused that, the said tablet should be very carefully used only for the specific purpose of safeguarding the grains otherwise, if there is any consumption by a human being there are chances of death of that person. Having taken that advice, the accused purchased two tablets on 4.3.2011. This witness came to know that on 5.3.2011 PW.2 developed giddiness and one lady died in the hospital and thereafter, he suspected that accused might have administered these two tablets to those ladies.
29.2. In the course of cross-examination, of course, it is elicited that this person (PW.11) has not given any receipt for having sold those tablets to the accused and he has given specific reasons as to why he has not given any receipts. Usually such transactions take place in the villages. He has also stated that, the police have not collected any materials to show that he has actually sold those tablets to the accused. It is suggested to this witness that as the accused had no lands to till, he did not purchase any tablets i.e., 44 insecticides and nothing has been suggested, though this witness is the same villager and known to the accused from many years as to what is the reason for this witness to depose falsehood against the accused. In the absence of eliciting in his evidence that he is a partisan, inimical or interested witness it is very difficult to disbelieve this witness. Therefore, we are of the opinion that the evidence of this witness clearly indicates that, the accused had prepared himself to take the tablets under the guise of purchasing the same for the purpose of safeguarding some grains. Therefore, the connectivity with regard to the purchasing of this insecticide containing Organophosphorus and the contents of Organophosphorus poison found in the food prepared by PW.2 and consumption of the same by PW.2 and Smt. Jayasheela and opportunity to the accused on that particular day i.e., on 5.3.2011 to mix up the said powder of the insecticide in the food consumed by PW.2, clearly discloses that, the prosecution has established beyond reasonable doubt that he must be the person who mixed that powder into the tamarind rice prepared by PW.2, on that day. 45
30. During the course of 313 Cr.P.C. statement or during the course of cross-examination of any witnesses, there is no suggestion even as to why and in what manner and for what reason PW.2 and Smt. Jayasheela developed such giddiness and Smt. Jayasheela died. There is no defence as such specifically taken by the accused and no explanation by the accused as to how this food prepared by PW.2 contained Organophosphorus. The above said proved circumstances clearly show the connection and certainty of the accused mixing of that powder in to the food prepared by PW.2.
31. The learned counsel for the accused has of course seriously brought to the notice of this Court that the police have not seized the tiffin boxes and sent them for FSL examination. We do not find any strong reason to disbelieve the case, though there is some lapse on the part of the investigating officer. At the most if those utensils were seized result would not have been different when there is specific positive evidence on record that the contents of the food consumed by 46 Smt.Jayasheela which was parted with by PW.2 contained Organophosphorus poison. The police have also collected the remains of the tamarind rice which was offered to by PW.2 to some dog which did not eat it. That sample also contained Organophosphorus poison. Therefore, it is clear from the above said evidence that the accused is the person who actually powdered the insecticide tablets and mixed the same in tamarind rice.
32. Now the question arises as to what was the intention of the accused in mixing of that insecticide powder to the tamarind rice. It is not that accused had no knowledge that, if such poisonous tablet powder is mixed with any food or if such food is consumed by a human being, that would definitely cause the death of a person. As we have already noticed from the evidence of PW.11, he had given a caution while selling two insecticide tablets to the accused by specifically telling that the insecticide tablet should be used carefully only for the purpose of protecting food grains and care should be taken to see that it is not consumed by any 47 human being. Therefore, the knowledge that, if he mixes the said poisonous tablet powder in the food and if it is consumed by his wife or by anybody, that will definitely cause the death of such person, can be attributed to the accused, and it can be inferred that, having such knowledge, the accused mixed that poisonous tablet powder into the tamarind rice prepared by his wife. Therefore, it is not only the knowledge that if any person consumes the same, that person would die, but the accused having such an intention to kill his wife, he mixed-up that insecticide particularly in the tamarind rice prepared by his wife, having specific knowledge that she would definitely consume the tamarind rice at the work spot and die.
33. In view of the above, we are of the opinion that the prosecution has established that there was ill- treatment and cruelty by the accused; the husband and wife were not happy with each other; the accused had an intention to kill his wife and therefore, he purchased the insecticide tablets and converted the same into powder and mixed the same in the tamarind rice 48 prepared by PW.2. Though having consumed the said tamarind rice, PW.2 fortunately survived. Merely because PW.2 survived, it does not mean to say that the intention of the accused is completely vanished. He really intended to kill his wife, but due to timely treatment or vomiting by PW.2, she saved and her sustaining capacity might have saved her. However, the intention to cause the death of PW.2 is not taken away from the above said facts and circumstances of the case. Therefore, we are of the opinion that absolutely there is no mistake committed by the Trial Court in convicting the accused for the offences punishable under Sections 307 and 498A of IPC, so far as PW.2 is concerned.
34. Now the next important question raised by the learned counsel for the appellant is that there was absolutely no intention whatsoever either to harm, hurt or cause the death of deceased Smt.Jayasheela. Even imputing the knowledge and intention on the accused so far as PW.2 is concerned, but the same knowledge, intention is totally absent in so far as Smt.Jayasheela is 49 concerned. Therefore, the offence under Section 302 IPC is not attracted and at the most it may fall under Section 304 Part II of IPC. In this context whether Section 301 of IPC can be pressed into service by the Court or not is to be ascertained. Though there is no specific punishment prescribed by the statute for the offence under Section 301 of IPC in our opinion, it is a supplement or extension to Section 299 of IPC and as well as Section 300 Explanation 1 to 4. In this background court has to ascertain whether the particular act of the accused attracts Section 302 r/w 301 of IPC, so far as this case is concerned.
35. In this backdrop, learned counsel for the appellant has relied upon two rulings. In a decision reported in AIR 2006 SC 3240, the Apex Court has observed that "Arrows shot by accused from a distance, not with accuracy - one of such arrows hitting the deceased - evidence of eye witnesses establishing that accused had shot arrow - no sudden quarrel - conviction of accused altered from Section 300 to Section 304 of IPC and accused was sentenced to 50 undergo ten years of imprisonment in connection with the said case."
36. Considering that there was no sudden quarrel as stated by the appellant, the Court has considered the same. Learned counsel wants to submit before the Court that, the accused had never intended to kill the deceased in the above said case. But without any accuracy he just shot the arrow without aiming at a particular person or the deceased. Therefore, when there is no intention or knowledge that the arrow would definitely kill the deceased, the Court has said that in the absence of intention, the offence should be under Section 304, Part I or II of IPC.
37. The above said ruling in our opinion is not in a straight jacket manner applicable to this case, because the court has not discussed the provision of Section 301 of IPC in the above said case. It was the accuracy of the arrow shot by the accused that was taken note of and also the fact that there was absolutely no quarrel between the accused and the deceased was also taken into consideration.
51
38. Therefore, it is just and necessary for us to consider in detail whether the above said act of the accused in poisoning PW.2 and though he had intention to kill his wife PW.2 and knowledge that the said act committed by him, in all probabilities cause the death of the deceased, whether such intention can be transferred under Section 301 of IPC towards the cause of death of deceased Jayasheela. We would make a thorough examination of the decisions in this particular regard.
39. In a decision rendered by Madras High Court between The Public Prosecutor and Mushunooru Suryanarayana Moorty reported in 13 Ind Case 833, the factual aspects of this case are also little bit relevant.
"in the said case, the accused intended to kill one Appala Narasimhulu as he had taken an insurance policy for a huge amount in the name of the said Narasimhulu. In order to have wrongful gain accused had given him sweet meat mixing poison - Arsenic in the said food. The said food was consumed by Narasimhulu, but however he survived. The remains of the said food was also consumed by one 52 Rajalakshmi and two little children. Rajalakshmi died due to poison Arsenic contained in the food".
"The Court discussing the provision under Section 299 and 301 of IPC in detail considering the previous judgments of Privy Council and other ruling of Kings Bench has come to the conclusion that Section 299 and 301 IPC gives the ingredients with reference to the intention and knowledge of the accused which say that, whoever causes by doing an act with an intention to cause death that itself is sufficient to draw an inference whether such an act caused death of intended person or any other person, but the act of the accused must be the cause for the death of the person who actually died".
Therefore, the Court has held that Section 301 r/w Section 299 of IPC are attracted and the Court convicted the accused for the offence punishable under Section 302 IPC even for the death of Rajalakshmi.
40. In another decision also, reported in (1917) ILR 39 All 161 between Emperor and Jeoli, the factual aspects disclose that, 53 "a lady by name Musammat Jeoli had prepared some Halwa and put it into a certain drag and in fact the said Halwa consisted of poison. She intended to kill her husband - Harwa. The husband of accused Harwa also consumed the said Halwa but one Mr.Madhania who also consumed the said Halwa only died. It had been established before the Court that wife - Musammat Jeoli was really intended to kill her husband but due to consumption of that halwa, husband survived but Madhania died. The court again considering the provisions under Section 299 r/w 301 of IPC came to the conclusion that cause of death of Madhania was due to the act of the accused mixing up the poison in the Halwa prepared by her to kill her husband. Therefore, inferring transfer of malice, the court convicted the accused for the offence punishable under Section 302 IPC".
41. In another decision reported in (1972) 4 SCC 819 between Gyanendra Kumar and The State of U.P. In this case "In a school committee meeting one 'B' uttered derogatory words against the father and uncle of the accused-appellant remarking that they were monopolizing all seats of 54 authority and were dishonest. Hearing this the appellant went to his house which was about a furlong away, fetched a gun and asked those who were near 'B' to move away because he wanted to kill 'B' and shoot 'B'. He then fired one shot while his maternal uncle rushed to prevent him from firing another shot, whom he pushed back and fired another shot. But the deceased maternal uncle came between the gun and 'B' and was shot in the back. He sustained severe injures and succumbed to the injuries later".
"The Court observed that though the accused never intended to kill the maternal uncle of 'B' but he really intended to kill 'B' and due to transferred malice, the intention to kill the uncle of 'B' also could be gathered by reading Section 301 of IPC with definition for murder under Section 299 of IPC".
42. In another ruling reported in (1979) 4 SCC 501 between Hari Shankar @ Hari Shankar Sharma and State of Mysore, "the Hon'ble Apex Court has observed that though the accused considering the provisions of Sections 301, 304-A and 307 of IPC, it has observed that the accused intended to kill 'A' but killed 'B' who came in 55 the way. The intention of the accused that he intended to kill 'A' is established but 'B' came across and he sustained injury and died. Conviction under Section 301 for murder of 'B' held to be proper. The Court also considered Section 301 IPC as an explanation or supplant to Section 299 of IPC".
43. In another ruling reported in 1991 Supp (1) SCC 549 between Jagpal Singh and others vs. State of Punjab "the Apex Court dealing with Section 301 of IPC and the specific application of the phrase 'Transfer of Malice" considered the facts that the - accused raiding the house of PW.2 with the intention to kill him - PW.2 taking shelter in another house - accused going in front of that house and opening fire hitting deceased who was then standing by the side of a door of a room and causing her death - while PW.2 admitting that he could not state as to who shot at the deceased, PW.3 deposing that it was the appellant no.1
- Husband of the deceased. However, categorically stating that the deceased was not shot at by any of the accused-appellants and that both PWs.2 and 3 were not in the 56 house at the time of the occurrence. But the trial court and High Court without placing any reliance on the evidence of deceased's husband convicted all the appellants under Section 302 of IPC. However, on analyzing the materials on record the Apex Court came to the conclusion that the doctrine of transfer of malice under Section 301 of IPC is applicable to appellant no.1 alone who had shot the deceased and remaining appellants were acquitted".
"While dealing with the above said aspect, the Hon'ble Apex Court has said that though the appellant had no intention to kill deceased as such but he had real intention to kill PW.2. PW.2 did not die actually in the incident but unfortunately, some other person died. The transferred malice principle has been applied and the accused was convicted under Section 302 of IPC.
44. In another ruling reported in 1980 Crl.L.J 235 between Ganga Singh and others vs. State, "the Allahabad High Court in detail dealt with the provisions of Section 301 and 299 of IPC. In this particular case "Accused 'A' fired a shot from his pistol at 'B' intended to kill 'B', but it hit 'C' and 'C' died, but the 57 Court held on facts, that though 'A' had committed an offence under Section 302 read with Section 301, the other accused did not share the common intention to cause the death with 'A'. But the accused intended to kill 'A' as such according to the transferred malice under Section 301 of IPC, the accused is liable to be convicted for the above said offence".
45. Last but not the least, in another ruling of Gujarat High Court between Shanabhai Balubhai Nayak vs. State of Gujarat, judgment dated 16.08.2004 in Criminal Appeal No.830/1996 the Gujarat High Court has also held in similar fashion.
"The facts are that, though the accused had no intention to kill the intended person, but killed somebody. In this case also a quarrel took place between the accused and his son Ranjit. In a flash, the appellant/accused took out a "chharo"(a large and sharp knife) a blade of which was seven inches long and handle of which was four inches long and aimed the same at Ranjitbhai to cause an injury to him. But deceased Lilaben, who was the wife of the appellant and mother of Ranjit apprehending that the 58 appellant would kill Ranjit, therefore, she rushed and came in between. The appellant inflicted knife injury on her chest which was upward in direction. Because of great force with which injury was inflicted on the deceased, the deceased sustained fracture of ribs and thereafter, she succumbed to the injuries".
"In this case also considering the provision of Section 301 of IPC read with Section 299 of IPC the Court has come to the conclusion that due to transferred malice the accused was liable to be convicted for the offence under Section 302 of IPC".
46. Now let us consider in the light of the above said decisions as to what exactly the provisions of Sections 299 and 301 as well as Section 300 of IPC would say:
46.1. Section 299 of IPC is the definition clause on the basis of which the Court has to ascertain what should be the ingredients to constitute a murder. This section says that,-
"A person commits culpable homicide if the act by which the death is caused is done 59
(a) with the intention of causing death, or
(b) with an intention of causing bodily injury as is likely to case death, or
(c) with the knowledge that the act likely to cause death.
46.2 Therefore, there is no rider in this part of provision that a particular intended person should die. But, if any person dies due to the act of the accused, if he really intended to cause the death of some person or he on such knowledge, his act was likely to cause the death then provision under Section 299 IPC is very well attracted.
47. Section 300 of IPC also to be referred in connection with the above said provision. This Section has got two parts. First part deals with the acts of the person which cause the death of another person or any person when it amounts to a culpable homicide and the second part deals with the exceptions which says that under what circumstances the act would be culpable homicide not amounting to murder. We are not concerned with the second part because the accused 60 has not claimed that his act would fall under any of the exceptions to Section 300 of IPC nor we find from the evidence on record that, it would fall under any of the exceptions to Section 300 of IPC. This provision says,-
"Subject to certain exceptions, culpable homicide is murder, if the act by which the death is caused is done,-
(1) with the intention of causing death, almost similar to sub clause (a) to Section 299 (2) with an intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or (4) with the knowledge that the act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.61
48. Therefore, on reading the above said provisions, Sections 299 and 300, of IPC the intention and knowledge of the person who commits positive or negative acts which are responsible for the death of a person are relevant. These two provisions do not express anything that the intended person should die. There is no indication in these two provisions that if some other (unintended) person dies these provisions are not attracted. Therefore, it becomes necessary for us to fall back upon Section 301 of IPC. Section 301 reads as under:
301. Culpable homicide by causing death of person other than person whose death was intended - If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.62
49. The provision of Section 300 of IPC is exactly applicable where the intention of the person is to cause death of a particular person, but for various other reasons the death of some other person has occurred. Here in this particular provision it shows that, by doing any act if a person intends or knows to be likely to cause the death whose death he neither intended nor he knew to be likely to cause the death and some other person's death occurred and the death of the intended person did not occur, even then it amounts to culpable homicide amounting to murder under Section 299 and 300 of IPC punishable under section 302 of IPC. Therefore, Section 301 of IPC is virtually an extension of Section 299 and first part of Section 300 of IPC. Section 301 of IPC also speaks about the act of a person which causes the death of an unintended person. But, if it is proved to the satisfaction of the court that the accused had intended to kill somebody, but that intention was not accomplished and due to the act of the accused and doing of a thing by the accused, he caused the death of some other person and if this is established, that act of 63 the accused also amounts to culpable homicide as per Sections 299 and 300 read with Section 301 of IPC, punishable under section 302 of IPC.
50. Therefore, for all the above said reasons, if the above said principles of transferred malice is applied to the present set of facts and circumstances, as we have already held that the accused had intention to kill his wife, therefore, he prepared himself by bringing the insecticide from the shop of PW.11, mixed the powder containing Organophosphorus to the tamarind rice prepared by PW.2. This is an act done by the accused and this act was mixed with an intention and knowledge of the accused that in all probability if PW.2 consumes the poisonous tamarind rice, she would die. We can also impute the knowledge to the accused that if any person other than PW.2 consumes this poisonous rice, there is all probability and possibility of causing death of that person also. Therefore, here reading of Sections 299, 300 and 301 of IPC, as noted above, though there was no direct intention on the part of the accused to kill Smt. Jayasheela in this particular case, but his intention 64 to kill PW.2, that malice virtually amounts or virtually is transferred to the cause of death of Smt. Jayasheela. Therefore, we are of the firm opinion that the accused has been rightly convicted by the Trial Court for the offence under Section 302 of Indian Penal Code. We do not find any reasons to convert the said punishment for the offence under Section 304 Part II of IPC, in any manner.
51. For the above mentioned reasons, there is no ground to interfere with the judgment of conviction and sentence passed by the trial Court. Hence, the appeal is devoid of merit and the same is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KS/KGR/DKB*