Madras High Court
M.S. Mani vs The State on 6 January, 1989
JUDGMENT Janarthanam, J.
1. Referred Trail No. 17 of 1987 is a reference made by the learned Sessions Judge, Anna District at Dindigul for confirmation of the death sentence passed against the accused under S. 302, I.P.C. (two counts) by him in Sessions Case No. 29 of 1987 on his file. The accused also preferred Criminal Appeal No. 785 of 1987 challenging the legality of his conviction and sentence.
2. The brief facts are :-
(i) One Subramania Iyer (since deceased hereinafter referred to as 'deceased 1') was running a hotel under the caption "Jayamangala Vilas" at Thadicombu Road, Dindigul, ably assisted by his son, P.W. 6 and other member of his family. He owned a site opposite to his hotel. He leased out a portion of the site to one Bose (since deceased hereinafter referred to as 'Deceased 2'). Deceased 2 was running a petty shop in the leased out vacant site. Deceased 1 also leased out a vacant portion of the site situate on the north of the petty shop of deceased 2 to the accused, who was running a parotta stall there. In between the parotta stall of the accused and the petty shop of the deceased 2, there is a vacant space. Deceased 1 used to lease out the vacant space to the deceased 2 for running a sharbath stall during the summer seasons. This was objected to by the accused, resulting in the difference of opinion between the accused on the one hand and deceased 1 and 2 on the other hand. Excepting this small difference of opinion between them, they are otherwise friends.
(ii) Sometimes prior to the occurrence, which happened on 23-8-1986, the accused contacted P.W. 8's father, a goldsmith for procuring sodium cyanide poison on the pretext that he wanted the same for the purpose of treating an injury on his leg. The goldsmith appeared to have stated that he was not in possession of such a poison. The accused however insisted that the same was required by him for the treatment of the injury on his leg. The goldsmith thereafter contacted another goldsmith by name Arumugha Asari and persuaded him to part with some sodium cyanide. The same was sent by Arumugha Asari through P.W. 9, a worker in his shop to the father of P.W. 8. Subsequently, the accused obtained the same from P.W. 8.
(iii) Two days prior to the occurrence, the accused went to the Hotel of deceased 1 for the purpose of taking some tiffin there. The time was then about 10 p.m. While washing his hands after taking the tiffin, he appeared to have engaged himself in soliloquy and stated that "only when the persons were alive, they would be in a position to run the hotel and shop". This was overheard by P.W. 6, who happened to be present there.
(iv) On the night of the date of occurrence, the accused went to the hotel of deceased 1. At that time, deceased 2 found conversing with deceased 1. The accused invited both of them for deriving the rendezvous pleasure of consuming arrack in company. Deceased 1 and 2 appeared to have stated that they were not willing for such a course that night, since, they were not having money then. The accused again persuaded them to accompany him to the arrack shop by stating that he will provide the requisite finance for consumption of arrack. Then all the three went to the arrack shop No. 2 situate in Pensioners Street. Such a personal invitation extended by the accused to deceased 1 and 2 was personally known to P.W. 5, who happened to go over to the hotel of deceased 1 that night for taking some tiffin; P.W. 6, who was transacting the business in the hotel and P.W. 7, son of deceased 2.
(v) All the three reached the arrack shop at about 8-45 p.m. The accused took three glass tumblers from P.W. 2, a salesman in the arrack shop and went to nearby hotel "Om Muruga" for washing the same. After the washing operation, the accused demanded P.W. 2 to pour 150 ml. of arrack in each of the three tumblers. P.W. 2 obliged him in doing so. The accused paid the necessary price for the arrack. The accused taking two glass tumblers of arrack in his right hand and one tumbler in his left hand, served the two tumblers on his right hand to deceased 1 and 2 and he retained the tumbler in his left hand for himself. Then all the three consumed the arrack. Thereafter, deceased 1 and 2 went towards west while accused went towards east. This has been witnessed by P.W. 1, a rickshaw puller, P.W. 3 a mutton stall owner doing business in front of the arrack shop and P.W. 4, a person who went to the shop for the purpose of consuming arrack.
(vi) While deceased 1 and 2 were walking towards east, deceased 2 developed convulsion and fell down near a telephone post situate in front of 'Nirmal Finance' building. In a bid to stop the convulsion, P.W. 1 gave an iron pedal axle of the rickshaw to deceased 2. The convulsion thereafter stopped. On the request of deceased 1, both deceased 1 and 2 were taken to a nearby nursing home run by P.W. 14 The doctor P.W. 14 gave both deceased 1 and 2 first aid treatment and referred them to the Government Headquarters Hospital, Dindigul as their conditions became precarious.
(vii) P.W. 12, the doctor attached to the Government Hospital, Dindigul examined deceased 1 and 2 in the casualty ward in the hospital and found them dead. He sent both the bodies to the mortuary, after making necessary entries in the accident register. Exhibit P-10 is the accident register copy in respect of deceased 1. Exhibit P-8 is the accident register copy in respect of deceased 2. The doctor also sent Exhibits P-11 and P-9 death intimation to the police relating deceased 1 and 2.
(viii) P.W. 18, Sub-Inspector of Police, Dindigul Town West Police Station received telephone message regarding the deaths of deceased 1 and 2 in the Government Hospital from Dindigul North Police Station. He immediately rushed to that police station obtained death intimations from P.Ws. 15 and 16 went to the hospital and obtained the statement Exhibit P-1 from P.W. 1. He returned to the police station at 12 midnight and registered Exhibit P-1 Crime No. 12/86 as "death under suspicious circumstances". Exhibit P-21 is the printed F.I.R. sent to court. He referred the accused to the Government Hospital with a requisition Exhibit P-6 for examination of his blood and urine. He also passed on the message over phone to P.W. 21 Inspector of Police.
(ix) Pursuant to Exhibit P-6 requisition, the doctor P.W. 12 examined the accused at 1.30 a.m. on 24-8-1986. The blood and the urine were taken and sent for chemical examination. On the strength of Exhibit P-12 report, from P.W. 20, Assistant Director, Regional Forensic Laboratory, Vellore, the doctor gave his final opinion that the accused had consumed arrack. Exhibit P-7 is the final opinion.
(x) P.W. 21, Inspector of Police, on receipt of the telephone message at 12 midnight took up further investigation in the case. He immediately rushed to the scene, after inspecting the scene, he prepared the observation Mahazar, Exhibit P-2. At 1 a.m. he seized from the arrack shop M.O. 1 series - seven arrack bottles; M.O. 2 series - two arrack bottles and M.O. 3 series - 96 empty arrack bottles under Exhibit P-3 Mahazar attested by P.W. 10. At 1.30 a.m. he drew a rough sketch of the scene of occurrence, Exhibit P-32. He examined P.Ws. 1 and 14. Between 7 and 10 a.m., he held inquest over the body of deceased 2. Exhibit P-33 is the inquest report. Between 10 and 11-30 a.m. he held inquest over the body of deceased 1. Exhibit P-34 is the inquest report. He handed over the body of the deceased 1 to a Constable by name Raju along with the requisition Exhibit P-15 for the purpose of autopsy. He handed over the body of deceased 2 to the constable, P.W. 17, along with the requisition Exhibit P-13 for the purpose of autopsy.
(xi) P.W. 13 the doctor attached to the Government Hospital, Dindigul conducted autopsy over the body of deceased 2 at 12 noon. During the course of autopsy, the doctor preserved the viscera in concentrated sodium chloride and sent the same for chemical examination. He reserved his opinion till the receipt of the chemical examiner's report. Exhibit P-19 is the report of the chemical Examiner P.W. 20 regarding the viscera of deceased 2. On the strength of Exhibit P-19 the doctor gave his final opinion that deceased 2 would appear to have died of cyanide poisoning. Exhibit P-14 is the final opinion in respect of deceased 2.
(xii) At 1.30 p.m., he conducted autopsy over the body of deceased 1. During the course of autopsy, he preserved the viscera in concentrated sodium chloride and sent the same for analysis to the Chemical Examiner. He reserved his final opinion. Exhibit P-20 is the report of the Chemical Examiner, P.W. 20 regarding the viscera of deceased 1. On the strength of Exhibit P-20 the doctor gave the final opinion that the deceased 1 would appear to have died of cyanide poisoning. Exhibit P-16 is the final opinion in respect of deceased 1. Exhibit P-18 and P-17 are the post-mortem certificates of deceased 1 and 2 respectively.
(xiii) P.W. 22 succeeded P.W. 21 and he took up further investigation in this case on 25-8-1986. He sent Exhibits P-22, P-24 and P-29 requisition to court for sending the blood and urine of the accused, viscera of deceased 1 and 2 and M.Os. 1 to 3 series to the Chemical Examiner for the purpose of examination. He examined P.W. 13 on 2-9-1986 and thereafter, he altered the F.I.R. into one under S. 302, I.P.C. Exhibit P-35 is the altered F.I.R. sent to court. At 4 p.m. he examined the accused in the branch road leading to Rani Mangammal Colony in the presence of P.W. 11. The accused, gave a voluntary confession, the admissible portion of which Exhibit P-4. The accused, pursuant to the confession, took them to his house and produced M.O. 4 a packet containing sodium cyanide kept concealed in a crevice in the cement tub where the electric earth-wire is planted. He seized M.O. 4 under Exhibit P-5 Mahazar attested by P.W. 11. He examined P.Ws. 8, 9 and 11. On 3-9-1986, he sent Exhibit P-26 to court for sending M.O. 4 to the Chemical Examiner for the purpose of analysis.
(xiv) P.W. 19, the Head Clerk attached to the Judicial Second Class Magistrate No. 1's Court, Dindigul, as per the directions of the Magistrate, sent all the incriminating articles to the Chemical Examiner for the purpose of analysis. Exhibits P-23, 25, P-27 and P-30 are the office copy of the letters under which the incriminating articles have been despatched to the Chemical Examiner. Exhibits P-28 and P-31 are the reports of the Chemical Examiner pertaining to the analysis of M.O. 4 and M.Os. 1 to 3 series respectively.
(xv) After completing the formalities of the investigation, P. W. 22 laid a report under S. 173, Cri.P.C. before the Judicial Second Class Magistrate No. 1, Dindigul on 23-10-1986 for the offence under S. 302, I.P.C. appeared to have been committed by the accused.
3. Upon committal, the learned Sessions Judge framed a charge under S. 302, I.P.C. (two counts) against the accused. The accused, when questioned as respects the charges framed against him, denied the same and claimed to be tried.
4. The prosecution, in proof of the charges framed against the accused, examined P.Ws. 1 to 22, filed Exhibits P-1 to P-35 and marked M. Os. 1 to 4.
5. The accused, when examined under S. 313, Cri.P.C. as regards the incriminating circumstances appearing in evidence against him, denied his complicity in the crime. He did not choose to examine any witness on his side. He however marked Exhibit D-1, his statement recorded under S. 164, Cri.P.C.
6. The learned Sessions Judge, on perusal of the materials placed before him and after hearing the arguments of the learned Public Prosecutor and the learned counsel for the defence, found the accused guilty, convicted and sentenced him as stated above, giving rise to the reference as well as appeal.
7. Learned counsel for the accused would submit that the evidence available on record is so scanty as is not possible to fasten criminal liability upon the accused for any offence whatever and therefore it is that the accused is liable to be acquitted by his being given the benefit of reasonable doubt, in the circumstances of the case.
8. Let us make an endeavour to sift the materials available on record in the light of the submission made by the learned counsel for the accused.
9. The motive put forward by the prosecution does not appear to be strong enough for the accused to harbour a desire to wreak vengeance against deceased 1 and 2 in the circumstances of the case. The case of the prosecution is that the accused objected to the leasing out the vacant space in between his shop and the shop of deceased 2 by deceased 1 to deceased 2 enabling deceased 2 to conduct a sharbath stall during summer seasons and despite such objections, deceased 1 continued to lease out the same to deceased 2 and that ever since then there arose differences of opinion between the accused on the one hand and the deceased 1 and 2 on the other hand. The materials on record in the shape of the testimony of P.Ws. 6 and 7 point out that the differences of opinion between them did not last long and they were otherwise moving as friends. It is not as if the deceased 2 conducted a separate parotta stall in the said vacant space posing as a competitor to the business of the accused, so that the accused could have entertained a desire or harbour a motive to do away with deceased 1 and 2, the persons responsible for slashing his business in running a parotta stall. What had been done by deceased 2 was that he, after all, ran a sharbath stall in that vacant space during summer season, which can by no stretch of imagination be stated to be a business transacted in competition with that of the business of the accused. The conduct of the sharbath stall by deceased 2 could not have affected the business of the parotta stall of the accused. This apart, the evidence of P.W. 6, the son of deceased 1 makes it abundantly clear that the differences of opinion between them did not last long. He would candidly admit in the course of his cross-examination that though the accused and deceased 1 would at times resort to skirmishes regarding the leasing of the said vacant space, yet they had settled their differences of opinion in no time and behave like friends as usual. In such state of affairs, the evidence of P.W. 6, in chief-examination, that two days prior to the occurrence at about 10 p.m. the accused while washing his hands after taking tiffin engaged himself in soliloquy and stated that "only when the persons were alive, they would be in a position to run the hotel and shop" thereby impliedly stating that deceased 1 and 2 would be done to death, cannot be given any credence and weight at all. Such evidence had been resorted to be given so as to give a credible look to the case of the prosecution by utilising the services of no less a person than the son of the deceased 1. If really such a thing had happened, P.W. 6 could not have remained a silent spectator without revealing the same to any one inclusive of his father, deceased 1. If this incident had happened as stated by P.W. 6, it was rather inconceivable as to how the accused and deceased 1 had been conversing together as, usual between 6 and 8 p.m. on the night of the occurrence by sitting in front of the hotel of deceased 1. It is puzzling to hear that only thereafter, the accused extended the invitation to deceased 1 and 2 for consumption of arrack and deceased 1 and 2 went along with the accused to the arrack shop. It is not as if P.W. 6, who over-heard the soliloquy of the accused two days prior to the occurrence, was not available to them. He did not even whisper or murmur a word requesting his father deceased 1 and deceased 2 not to accompany the accused for consumption of the arrack. As such, the motive aspect of the case of the prosecution appears to be flimsy as not to make the accused to rise in revolt against deceased 1 and 2 wreak vengeance against them.
10. The prosecution let in evidence attaching signal importance to the invitation extended by the accused to deceased 1 and 2 for consumption of arrack on the fateful night as if it was done with a sinister purpose. The cumulative effect of the evidence of P.Ws. 5, 6 and 7 would point out that the accused invited deceased 1 and 2 on the fateful night for consumption of arrack. Deceased 1 and 2 initially refused to comply with that request and stated that they had no money to drink. The accused persuaded them to come along with him to the arrack shop by stating that he would provide the requisite finance. Thereafter, all the three went to the arrack shop and consumed arrack. Their evidence would further disclose that the accused went to P.W. 2, a salesman in the arrack shop, procured three glass tumblers, washed them in the nearby hotel, got the three tumblers, filled each tumbler with 150 ml. of arrack; took two tumblers on his right hand and one tumbler on his left hand, served first the two tumblers on his right hand to deceased 1 and 2 and then retained the tumbler on his left hand for himself. The conduct of the accused in extending the invitation to deceased 1 and 2; in himself playing the active role of procuring the tumblers, washing them and later serving the arrack to deceased 1 and 2 is not something unusual or strange that had happened on that day only. Their evidence in cross-examination would unmistakably reveal that it was the accused, who played the active role on all occasions, by extending the invitation to deceased 1 and 2 for deriving the ecstatic land rendezvous pleasure of consuming arrack in common and this sort of an activity was going on for quite a long time prior to the occurrence. In such circumstances, no signal importance can be attached to the invitation extended by the accused to deceased 1 and 2 for consumption of arrack on the fateful night in question.
11. P.Ws. 2 and 4 would of course speak to the active role played by the accused regarding the procuring of the glass tumblers, washing operations and serving the tumblers, with arrack to deceased 1 and 2. They however did not whisper a word that the accused put any extraneous substance or matter in any of the glass tumblers before serving the arrack in the glass tumblers, to deceased 1 and 2. Nor did P.W. 2 say that whiled he poured arrack in those glass tumblers, he found any odd lot extraneous matter in any of the glass tumblers. He did not even say that after filling the arrack in the glass tumblers, he found any reaction or colour changes taking place in the arrack so poured. What was poured by P.W. 2 in the glass tumblers was served by the accused to deceased 1 and 2. Undoubtedly, as revealed by the Chemical Examiner's reports, Exhibits P-19 and P-20, both deceased 1 and 2 died of cyanide poisoning. But the vital and important link of the accused mixing cyanide poison in the arrack served to deceased 1 and 2 is missing.
12. There is also a disturbing or disquieting feature in the case of the prosecution, which is not comprehensible, in the circumstances of the case. Admittedly, the case had been originally registered as 'death under suspicious circumstances'. P.W. 22, the Inspector of Police would say that subsequent to the examination of the doctor, P.W. 13, who conducted the autopsy over the body of the deceased 1 and 2 on 2-9-1986, he altered the case into one under S. 302, I.P.C. and sent the altered F.I.R. Exhibit P-35 to Court. It is not conceivable as to how P.W. 22 altered the case into one under S. 302, I.P.C. subsequent to the examination of P.W. 13 on 2-9-1986. The doctor conducted the autopsy over the body of the deceases 1 and 2 on 24-8-1986 and he was unable to give any opinion as to the cause of death of the deceased 1 and 2 till up to the receipt of the reports of the chemical Examiner, namely, Exhibits P-19 and P-20. Admittedly there is no evidence available on record to point out the date of receipt of the reports of the Chemical Examiner by the doctor. But it is so certain that both the reports could not have been received by the doctor P.W. 13 earlier to 23-9-1986, the date on which the reports were sent by the Chemical Examiner, P.W. 20. It is only thereafter, the doctor could have given his final opinion regarding the cause of the death of the deceased 1 and 2, in the sense that both of them died due to administration of cyanide poison. In such state of affairs, it remains a mystery as to how P.W. 22, the Inspector of Police, altered the case into one under S. 302, I.P.C. even on 2-9-1986
13. Another disturbing feature of the case of the prosecution lies in the acquisition of cyanide poison by the accused. Even according to the prosecution, as disclosed by the evidence of P.W. 6, the differences of opinion, if at all between the accused on the one hand and the deceased 1 and 2 on the other hand, arose some three months prior to the occurrence. It is puzzling to hear from P.Ws. 8 and 9 that the accused obtained the cyanide poison some ten months prior to the occurrence, on the pretext that he required the same for treating the injury on his leg with medical leaves. One can understand the acquisition of the cyanide poison subsequent to the eruption of the differences of opinion between the accused and the deceased 1 and 2. As such, the acquisition of the cyanide poison by the accused appears to be a cock and bull story in the circumstances of the case and in that view of the matter, no credence and weight could be attached to the evidence of P.Ws. 8 and 9 when they say that the accused procured cyanide poison on the pretext of treating some injury on his leg some ten months prior to the occurrence.
14. The arrest confession and consequent recovery of M.O. 4, a packet containing cyanide poison do not appear to be ringing true, in the circumstances of the case. The Inspector of Police, P.W. 22 by a slip did not say specifically in the evidence that he arrested the accused on 2-9-86. But the material evidence available on record in the shape of arrest card shows that he had been taken into custody on 2-9-1986. The defence would virtually amount an attack that the arrest of the accused, confession and consequent recovery are nothing but stage-managed to create an incriminating piece of circumstance against the accused. The accused had been sent to the Hospital for examination of his blood and urine by the Sub-Inspector of Police, P.W. 18. It is intringuing to note that even though the case has been registered as 'death under suspicious circumstances', yet P.W. 21 could say that he instructed P.W. 18 to apprehend the absconding accused and send him to the hospital for his blood and urine to be taken and tested by the Chemical Examiner. The doctor P.W. 12 in fact took the sample of blood and urine from the accused at 1-30 a.m. on 24-8-1986. After this, the accused was not left free. The doctor P.W. 12 would say that the accused was taken back by the constable. It is further interesting to note that P.W. 21 would say that in both the inquest reports, he had mentioned that there was suspicion that the accused could have had a hand in the murder of the deceased 1 and 2 and despite that he had the audacity and guts to say that he had not searched for the accused. The suggestion put by the defence to P.W. 21 that the accused had been kept in the police station, all along had been denied by him. The denial of the suggestion and the previous answer given by P.W. 21 would let the cat out of the bag in the sense that it was highly probable that the accused had been in the custody of the police on and from 24-8-1986, the date on which he was sent to the hospital for his examination by P.W. 18. When the police entertained a suspicion about the complicity of the accused in the crime, it is rather unbelievable to hear them say that the accused had to been taken into custody on 24-8-1986, subsequent to his examination by the doctor, P.W. 12. As such, the arrest of the accused on 2-9-1986 cannot at all be believed, in the circumstances of the case. As adverted to earlier, the investigating machinery was not at all aware that the deceased 1 and 2 died due to cyanide poisoning on 2-9-1986. Such being the case, the recovery of M.O. 4, a packet containing cyanide poison pursuant to the imaginary confession of the accused is nothing but a stage-managed show creating an incriminating piece of circumstance so as to be in tune with the reports of the Chemical Examiner.
15. In view of what has been stated above, we are unable to sustain the conviction and sentence of the court below and the accused had to be acquitted by giving him the benefit of reasonable doubt, in the circumstances of the case.
16. In the result, the appeal is allowed; the conviction and sentence of death imposed on the accused are set aside and the accused is acquitted. The accused is directed to be set at liberty unless otherwise required in connection with any other case.
17. The reference is answered accordingly.
18. Order accordingly.