Patna High Court
State vs Basu Tanti on 2 August, 1955
Equivalent citations: AIR1957PAT462, 1957CRILJ990, AIR 1957 PATNA 462, ILR 34 PAT 821
JUDGMENT Misra, J.
1. The third Additional Sessions Judge of Manbhum-Singhbhum, camp Chaibassa, has made this reference under Section 374, Code of Criminal Procedure, for confirmation of the sentence of death passed by him on Basu Tanti alias Basdeohari Tanti on his conviction under Section 302, Indian Penal Code. The accused was also found guilty of the offence under Section 328, Indian Penal Code, but no separate sentence was passed in respect of that charge. The accused has preferred two appeals, one from jail and the other is a regular appeal. The two appeals and the reference have been heard together and are being disposed of by this judgment.
2. The deceased was one Hazari Tanti, who was working as a Mali at the Railway Institute at Chakradharpur. On the 18th of May, 1954, he came back to his house at about 7 p.m. and poured out some wine into a cup from a bottle. He drank a little of the wine and complained that it tasted bitter, and threw away the cup. Immediately after taking the wine, Hazari Tanti began to vomit and also showed symptoms of shivering and pain in his body. He uttered that the appellant Basu Tanti committed treachery towards him inasmuch as he gave him the bottle of wine from which he poured a small quantity into the cup. His wife Mt. Mouli Tantin (P. W. 2) and his daughter Udia Tantin were presented there. His son Alakh Tanti, a student, who was in the playground near the quarters of the deceased, also came to his house on hearing the alarm raised by the inmates of the house.
Gohan Tanti (P. W. 11) happened to come there soon after. Gohan Tanti happened to be the son-in-law of the deceased Hazari Tanti. Gohan's advice was that Hazari should be taken to Bara Babu (Raghunath Sanyal), who is P. W. 1 in the case. He was accordingly taken there and Raghunath Sanyal (P. W. 1) advised the party to take Hazari Tanti to the hospital at Chakradharpur. He was treated there by Dr. Gopi Nath Prasad (P. W. 7), who suspected it to be a case of poisoning and immediately gave him stomach wash. Hazari Tanti, however, did not survive the action of the poison for long and died soon after at about 9-15 p.m.
3. The further case for the prosecution was that the appellant Basu Tanti had been to the house of, Hazari at 11 a.m. that day to call him to do a little jhar-phung as the appellant had some physical ailment which might be cured as a result of the jhar-phunk of the deceased person. Hazari Tanti, however, refused to comply. The appellant, however, repeated his visit to the house of the deceased in the evening at about 6 p.m. and the deceased was persuaded somehow to accompany the appellant to his house. When Hazari Tanti came back he had with him the bottle of wine and he said, after he sipped a little of it from the cup into which he poured a part of the contents of the bottle, that it was given to him by the appellant.
The motive suggested by the prosecution for the commission of the offence by the appellant was that he had happened to be a friend of Deohari Tanti to whom Udia (P. W. 3), one of the two daughters of the'deceased Hazari Tanti was married. Udia was married first to Babuji Tanti and after his death she was married again to Deohari Tanti. Deohari, however, did not take kindly to her and actually, ill-treated her so much that she had to come back to her father's house. Hazari Tanti was annoyed with Deohari on this account. It was alleged that the appellant was an intimate friend of Deohari and it was probably to satisfy the grudge his friend Deohari bore against his father-in-law, the deceased Hazari Tanti, that the appellant volunteered to commit the murder on behalf" of his friend.
4. Hazari Tanti's wife was Mouli Tantin (p. W. 2) and his first daughter, as I have said, was married to Deohari, but his second daughter was married to Gohan Tanti (P. W. 11), who had his house, close to the house occupied by the deceased Hazari Tanti. . (5) Dr. Gopi Nath Prasad (P. W. 7) sent a chit ,at 10-30 p.m. on the 18th May, 1954, after the death of Hazari Tanti, to Chakradharpur police station which was received there by the Assistant Sub-Inspector. He stated therein that Hazari Tanti died at about 9-15 p.m. He was having spasms. He also said therein that Hazari Tanti gave him the history of vomiting several times after he drank the country liquor that was given to him by one Basu Angwalla Loco CKP. It may be stated that the appellant is an employee at the Loco house at Chakradharpur and he, claims to be ah engine khalasi in the Loco.
6. After investigation by the police of the case, charge-sheet was submitted against the appellant under Sections 302 and 328, Indian Penal Code, and he was duly committed to the Court of Session. The learned Additional Sessions Judge found the charge against him proved beyond reasonable doubt and accordingly held him guilty on both the charges.
7. The accused pleaded that he was innocent and that he had not committed any offence. In answer to the Court question as to whether he had any friendship or relationship with Deohari, he said "I have nothing". He said further that he had not given the bottle of liquor to the deceased Hazari. Tanti. The learned Additional Sessions Judge, however, did not accept the defence plea and accepting the evidence led by the prosecution found him guilty.
8. The case for the prosecution rests upon the testimony of Mouli Tantin (P. W. 2), who gave the most incriminating evidence against the appellant. She stated that the appellant came to her house to call her husband at 11 a.m. on the date of occurrence and that when her husband refused to go out in the company of the appellant he came back again in the evening at about 6 p.m., when her husband agreed to go out to the house of the appellant to do jhar-phunk. She stated further that her husband came back again at 6-30 p.m. with a bottle of liquor with him and also how he poured a little of the liquor into the cup and drank some of the wine. The fact that the deceased Hazari Tanti died as a result of the wine taken by him on the evening of the 18th May, 1954, is not challenged before us by learned counsel for the appellant.
The post mortem report and the evidence of the doctor (P. W. 7) make it clear beyond doubt that the deceased was killed as a result of the action of the poison. In the opinion of the doctor the cause of death would be oleander present in the alcohol which was found in the stomach-wash. The chemical analysis of the stomach-wash was to the effect that alcohol as well as oleander were detected in the vomited matter. The chemical analysis also shows that alcohol as well as oleander were detected in the contents of the glass bottle out of which a little was poured into the cup by the deceased Hazari Tanti producing the fatal symptoms, which resulted in his death.
The evidence, therefore, of Mouli Tantin (P. W. 2) is very important in so far as the offender is Concerned. I have said above that she stated the circumstances in which her husband went out at 6 p.m. in the company of the appellant and came back again at about 6-30 p.m. Her evidence that her husband told her that the appellant gave him dhokha is also highly important inasmuch as there is a clear indication in the statement that Hazari Tanti knew that the bottle of liquor which was given to him by the appellant, in fact, contained poison and that produced the symptoms which were found soon after the deceased drank a little of the wine. Mouli Tantin (P. W. 2) further stated that her daughter Udia was married to Deohari who was cruel to her so that she had to come-back to her father's house.
There is nothing in the cross-examination of this witness to show that she had any particular grudge against the appellant Basu Tanti. The direct grudge, if any, was against her own son-in-law Deohari. It is, therefore, difficult to see why Moult Tantin would come to depose falsely (that her husband told her that the appellant had committed treachery towards him. The circumstance, therefore, that the deceased was taken out on a certain plea by the appellant and soon came back with a bottle of wine and spoke to his wife that the appellant committed treachery for Wards him supplies valuable links in the prosecution story. Learned counsel for the appellant has not been able to give any convincing answer to our query as to why this woman, Mouli Tantin, would make statements of an incrimmating character against the appellant instead of her own son-in-law Deohari, who was cruel to her daughter. Udia (P. W. 3), the daughter of the deceased, also supported her mother.
It is difficult to see why this witness also would depose against the appellant, because there is nothing on record to show that this appellant was in any way instrumental in helping Deohari in his cruelty towards her. It was urged, however, that this witness said in the committing Court that Gohan (P. W. 11) was not her sister's husband, which is abundantly proved by the evidence on record. The argument, however, has no force inasmuch as she stated in the very next sentence before the committing Court that Mohan was her brother-in-law's brother. It would show that Mohan's brother Gohan was married to the sister of this witness Udia. The fact that the deceased Hazari Tanti said further that the bottle of wine was given to him by the appellant becomes clear from the evidence of Raghunath Sanyal (P. W. 1) the Bara Babu of Chakradharpur.
He said in clear terms that when the deceased was taken to him, he told him that Basu had given him liquor, on taking a little of which it tasted bitter and he had vomits and shivering. Hazari told him also that his tongue Was drying as Basu had mixed poison in the liquor. This witness is obviously more independent than the other witnesses and nothing has been suggested as to why he would depose falsely against the appellant. The only suggestion made to him was that Hazari was the Mali of the Railway Institute. That, however, does not give any explanation as to why the Bara Babu would depose against a local employee Basu Tanti. Alakh Tanti (P. W. 4) who came to his house at 7 p.m. on the 18th May, 1954, and saw his father vomiting, perspiring and shivering, also stated that his father said that Basu had put something in the bottle of liquor. There is no reason to disbelieve this witness on this point. The only criticism offered by learned counsel on behalf of the appellant against the evidence 'of P. Ws. 2, 3 and 4 was that they are the widow, daughter and son of the deceased, respectively.
That, however, does not explain as to why they would speak against the appellant Basu Tanti against whom they bore no grudge of any kind nor was any suggestion in that regard made to them. The learned Judge disbelieved the evidence of Gohan Tanti (P. W. 11). It is, therefore, unnecessary to dilate upon his testimony. Even if his evidence, therefore, is left out of account, the evidence of P. Ws. 1, 2, 3 and 4 shows that the appellant was responsible for giving the bottle of wine to the deceased Hazari Tanti which contained alcohol mixed with oleander. There is no other reasonable hypothesis which might show that the bottle was given to the deceased by someone other than the appellant.
9. Learned counsel for the appellant contended that there is no direct evidence to show that the appellant gave the bottle to the deceased, person. The evidence of Gohan on his point having been disbelieved, the matter is one of pure conjecture. The argument, as I have discussed above, is of no force inasmuch as the evidence of P. W. 2 together with the evidence of P. Ws. 1, 3 and 4 makes it dear that no other person than the appellant in fact made over the bottle to the deceased, and the statement of Hazari Tanti (the deceased) that it was given to him by the appellant must be accepted in this contaxt as reliable.
10. Learned counsel for the appellant contended that oleander is not such a deadly poison as, necessarily, to result in the death, of the person whom it is administered. He drew our attention to Modi's Medical Jurisprudence, 11th Edition, at pages 691-694. I find, however, that the opinion of Dr. Modi as expressed in the book does not support the contention of learned counsel with regards to the dose. Modi states:
"Fatal does uncertain. More than a quarter of a tola of the fresh root bark have produced poisonous symptoms. Two hundred and fifty grains may be considered as a fatal dose for an adult. Fatal period uncertain. Death may take place in about 24 to 38 hours."
Since the colour of the liquor was natural and it was not affected, the oleander mixed with the liquor in the case is not of the yellow variety. It is clear from the opinion of Dr. Modi that the nature of the working of the poison will depend to a considerable extent upon the quantity of the dose of the poison. Learned counsel contended that in the present case the post mortem or the chemical analysis does not show the exact quantity of oleander, which might be called a lethal dose, which was mixed with the liquor. That is correct, no doubt. But the fact remains that as soon as Hazari Tanti sipped the liquor he felt a bitter taste in his mouth and threw it away.
It was accompanied by an extreme degree of vomiting, perspiration and dryness of the tongue etc., and the man died within 34 hours of the time when the poison entered his body. It is obvious from this that the dose must have been definitely lethal because, even according to Dr. Modi, if oleander is administered, death may take place in about 24 to 36 hours; although he has referred to the instance of a Hindu female who took oleander root as an abortifacient and died in two to three hours. It is clear, therefore, that the quickness with which the poison acted in the present case proves it beyond doubt that the dose was a lethal one.
Even, therefore, if there is no direct evidence in so far as the chemical analysis is concerned. I have no difficulty in coming to the conclusion that it was; a very powerful dose which the accused person knew or should have known that it was bound to cause the death of a person if it was administered to him. It was also urged that the appellant had no motive to commit the murder of Hazari Tanti. The dispute, if any, was between his own son-in-law Deohari Tanti and himself, and even if the prosecution witnesses, 2, 3, 4, 5 and 6 deposed to the enmity, it was confined to the dispute between Hazari Tanti and his son-in-law, Deohari. All -that P. W. 2 states further is that the appellant happened to be a friend of Deohari Tajati. That, however, appears to be too slight a motive to explain the offence of murder being committed by the appellant on that account.
In my opinion, however, it is one of those cases in which prosecution is not bound to find out a direct motive or even an adequate motive. For one thing, the very fact that other prosecution witnesses, who have deposed to the statement of the deceased Hazari Tanti, have said that he mentioned the name of the appellant as the person who gave him the bottle of liquor with oleander mixed therein, shows that they had apparently no reason to speak against the appellant. In the circumstances, the argument on behalf of the appellant, that he had no motive should be taken in his favour and against the prosecution case, cannot be accepted.
I have already discussed the point that the prosecution witnesses, who proved the statement of the deceased Hazari Tanti incriminating the appellant, in fact, appear to be straightforward, and even if the appellant had no direct motive that is no reason to hold that he could not have committed the offence. In so far as a motive is necessary, it appears to me that the appellant being a friend of Deohari, possibly, in his enthusiasm or on account of some innate wickedness, thought that he might accomplish the death of Hazari Tanti in a more skilful manner than his associate Deohari could do. That presents the deed of the appellant to the Court even in a blacker complexion than it would have otherwise been in.
11. From the evidence on the record in this case, it is established beyond reasonable doubt that the appellant did give the bottle of liquor containing oleander to the deceased, and that he had deliberately mixed oleander in the liquor which the deceased person took and died in consequence. The appellant, therefore, must be found guilty of murder, and the learned Additional Sessions Judge correctly came to that conclusion.
12. Learned counsel next contended that, assuming the facts alleged against the appellant to be true, the offence made out against him would not be one under Section 302, Indian Penal Code, but one under Section 328 of the Code. He drew our attention to the decisions in the cases of Emperor v. Bhagwan Din, ILR 30 All 568 (A); Emperor v. Gauri Shanker, ILR 40 All 360: (AIR, 1918 All 283) (B); Emperor v. Nanhu, ILR 45 All 557: (AIR 1923 All 608) (C) and Emperor v. Shetya Timma Wadar, AIR 1926 Bom 518 (D). The case of ILR 30 All 568 (A) was one where the accused persons were charged with robbery and in the commission of the offence committed murder by administering dhatura poison. That was a case where the direct object of the culprits was to commit robbery. Apart from that, learned counsel fairly conceded that the principle of law in the case of Bhagwan Din (A) was not followed by that very Court in the case of ILR 40 All 360: (AIR 1918 All 283) (B):
The three decisions referred to above have differed from the view of law as expressed in ILR 30 All 568 (A), and the principle laid down in these decisions is that where a person administers a poisonous substance to another which has resulted in his death, he is normally expected to know the effect of the poisonous substance and, if death has resulted, it must be held that the accused persons intended death or at least knew that death was the imminent result of the poison administered. Learned counsel contended that in the circumstances of the present case it should be held that the intention of the appellant was not to cause the death of Hazari Tanti. He had no direct interest of his own and in his enthusiasm he might have tried to help his friend but it did not exclude the possibility that he intended only to teach a lesson to the deceased Hazari Tanti for his hardihood in picking a quarrel with his friend Deohari. The argument might be of substance only if the poison had taken a long time to act.
As it is, however, the deceased began to show violent symptoms as soon as he sipped a small quantity of the liquor, which indicates that the appellant must have mixed oleander in high doses in the liquor. It is inconsistent with the theory that he might have intended only to punish Hazari in a mild form by rendering him unconscious for some time or by causing him some physical pain. The only conclusion which follows reasonably from the circumstances of the case is that the appellant deliberately mixed oleander in high dose in the liquor and that he Intended thereby to kill the deceased Hazari, and not only to cause him some physical pain.
13. In the result, it must be held that the appellant was rightly convicted of the charge of murder. Learned counsel, however, urged that the sentence of death passed upon the appellant may be commuted to that of transportation for life as, in any case, oleander administered would not be like more powerful poisons like Potassium Cyanide etc. I find myself unable to accept this argument. I have already mentioned that the act of the appellant in having undertaken for his friend to kill Hazari Tanti for a petty matter, like a domestic matter between husband and wife, shows that the murder was an extremely wicked one oh his part. There are no redeeming features in the case and I am not able to interfere with the sentence of death passed upon him. The reference made by the learned Additional Sessions Judge is accepted, the appeals preferred by the appellant are dismissed and the sentence of death passed upon him is confirmed, Sahai, J.
14. I agree.