Madras High Court
Syed Abdul Rahman vs The State Rep. By on 21 June, 2019
Equivalent citations: AIRONLINE 2019 MAD 764
Author: B.Pugalendhi
Bench: P.N.Prakash, B.Pugalendhi
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 23.04.2019
PRONOUNCED ON : 21.06.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mr.JUSTICE B.PUGALENDHI
CRL.A.(MD).No.332 of 2017
Syed Abdul Rahman .. Appellant
Vs.
The State rep. by,
The Inspector of Police,
Kamuthi Police Station,
Ramanathapuram District.
(Cr.No.317 of 2012) .. Respondent
Criminal Appeal filed under Section 374 Cr.P.C., praying to call for
the records and set aside the sentence and conviction imposed by the learned
Additional Sessions Court (Fast Track Court), Paramakudi, Ramanathapuram
District in S.C.No.131 of 2013, dated 22.10.2016.
For Appellant : Mr.J.William Christopher
For Respondent : Mr.M.Chandrasekaran, APP
http://www.judis.nic.in
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JUDGMENT
B.PUGALENDHI, J.
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Those who sleep resemble the dead; the drunkards are always like those who take poison.
The facts of this case are proof of the fact that we have done very little to make our citizens imbibe the values expounded by Thiruvalluvar in the Kural. Except paying lip service to the savant from time to time in public platforms, we are steadily moving far away from the moral and ethical standards set by him.
2. The deceased Bose @ Periya Bose (D1), Kanagaraj (D2) and the appellant hailed from Keezharamanathi village in Kamuthi taluk of Ramanathapuram District. The appellant had borrowed monies from Bose (D1) from time to time, which aggregated to Rs.40,000/-. Due to matrimonial discord, the appellant left the village and went to Chennai and got employment in a hotel. Since there was no news of the appellant, Bose (D1) went to Chennai and traced the appellant and demanded return of the loan. It is alleged that Bose (D1) had quarrelled with the appellant in the work place and thus, affronted him. The appellant felt hurt and wanted to avenge this insult. It is alleged that on 05.10.2012, around 12.00 noon, the appellant came to the http://www.judis.nic.in 3 house of Bose (D1) and gave a quarter bottle of 'Black Magic' brand brandy mixed with cyanide as gift from Chennai. Bose (D1) accepted the gift gleefully and after the appellant left, he went to the house of his neighbour Kanagaraj (D2), around 12.30 in the noon, for a booze rendezvous. The duo cheerfully sipped the liquor and soon they swooned. Arundevi (PW1), W/o.Kanagaraj (D2) raised alarm, hearing which, relatives of both men assembled and carried them to the Government Hospital, Kamuthi. Dr.Chandramouli (PW21) examined Bose (D1) at 1.00 p.m. on 05.10.2012 and found that he was unconscious, pulse not palpable, pupils not reacting to light and heart sound was faint. He made necessary entries in the Accident Register a copy of which was marked as Ex.P8. Thereafter, Dr.Chandramouli (PW21) examined Kanagaraj (D2) and noticed similar symptoms. The copy of the Accident Register qua Kanagaraj (D2) was marked as Ex.P9. Within a short while, both of them died and their bodies were sent to the mortuary.
2.1. On the written complaint (Ex.P1) lodged by Arundevi (PW1), W/o.Kanagaraj (D2), Premanand (PW27), Sub Inspector of Police, registered a case in crime No.317 of 2012 at 03.45 p.m. under Section 174 Cr.P.C. and prepared the printed FIR (Ex.P15). Investigation of the case was taken over by Ramachandran (PW28), Inspector of Police, who went to the Government Hospital mortuary and conducted inquest over the body of Kanagaraj (D2) and prepared the Inquest Report (Ex.P16). On the request of the Investigating Officer, Dr.Chandramouli (PW21) conducted autopsy on the body of Bose (D1) http://www.judis.nic.in 4 and did not find any external injury on the body. He sent the Viscera samples of the stomach, intestine and kidneys to the Tamil Nadu Forensic Sciences Department for analysis. The Viscera Report (Ex.P13) disclosed the presence of cyanide and traces of ethyl alchocol. After receiving the Viscera Report, Dr.Chandramouli (PW21) issued the Post-mortem Certificate (Ex.P10) qua Bose (D1), wherein, he has opined as follows :
"Final report :- The person died of cyanide poisoning 3-6 hours prior to post-mortem."
Thereafter, Dr.Chandramouli (PW21) performed autopsy on the body of Kanagaraj (D2) and did not find any external injuries. He sent the visceral samples to the Tamil Nadu Forensic Science Laboratory and the report (Ex.P14) showed that cyanide and traces of ethyl alcohol were detected in the stomach contents, intestine contents, liver and kidney. After receiving the Viscera Report (Ex.P14),Dr.Chandramouli (PW21) issued the Post-mortem Certificate (Ex.P11) qua Kanagaraj (D2), wherein, he has opined as follows:
“Final report: The above mentioned person died of cyanide poisoning 3-6 hours prior to post-mortem.” While the autopsies were going on, the Investigating Officer proceeded with the investigation and from the house of Kanagaraj (D2), a brandy bottle (MO.1) with the label 'Black Magic' containing around 2 ml brandy was recovered under the cover of mahazar (Ex.P5). Of course, even before the receipt of the Post-mortem Report, the Investigating Officer had sufficient materials to believe that the death had occurred due to mixture of poison in the brandy, that was gifted by the appellant to Bose (D1) and therefore, the case was http://www.judis.nic.in 5 altered from one under Section 174 Cr.P.C. to Section 302 IPC vide Alteration Report (Ex.P18), which reached the jurisdictional Magistrate on 06.10.2012.
The appellant was arrested at 03.30 p.m. on 06.10.2012 and his confession statement was recorded.
2.2. Based on the disclosure of the appellant, the Investigating Officer seized the following items from the residence of the appellant on 06.10.2012 at 15.30 hours under the cover of mahazar (Ex.P6), in the presence of witnesses Gurumoorthy (PW14) and Meenatchi Sundaram (not examined).
1. A tricoloured cell phone carton marked as GLX U-20 measuring about 12.5 cms in breadth, 6.5 cms in height and 11 cms in length inside containing four thick khaki cardboards measuring about 14 x 12 cms – M.O.2
2. A 5 ml DISPOVAN syringe without needle – M.O.3
3. A 5 ml DISPOVAN syringe with a bent needle – M.O.4
4. Ribbon pack DISPOVAN single use 5 ml syringe cover-M.O.5
5. A polythene cover measuring 8.5 x 7.5 cms with a green colour substance inside - M.O.12
6. A polythene cover measuring 7 x 7 cms with another polythene cover inside containing cement coloured powder
- M.O.6
7. A round box with writings bubble kitz inside containing
3 ml white coloured fluid in a small round box - M.O.7 http://www.judis.nic.in 6 2.3. The items that were seized from the house of the appellant and from the house of Kanagaraj (D2) were sent to the Tamil Nadu Forensic Sciences Laboratory through Court for analysis. Vairamuthu (PW22), Junior Scientific Officer, Tamil Nadu Forensic Science Laboratory, in his evidence as well in his report Ex.P12, has stated that Cyanide was detected in the following items :
1.A synthetic bottle containing a glass Detected M.O.1 bottle labelled " ... BLACK MAGIC Cyanide BRANDY ... 180 ml ..." and containing 2 ml of brown colour liquid
2.A synthetic bottle containing a synthetic Detected M.O.3 syringe (6 ml) Cyanide
3.A synthetic bottle containing a synthetic Detected M.O.4 syringe (6 ml) with bended Cyanide needle with cap
4.A synthetic bottle containing a green Detected M.O.12 colour stained polythene cover with few Cyanide crystals
5.A synthetic bottle containing a polythene Detected M.O.6 cover with 5 gm of white colour crystals Cyanide
6.A synthetic bottle containing a synthetic Detected M.O.7 small tube with synthetic lid with printed Cyanide letters 'BUBBLE Kidz' and containing 3 ml of colourless liquid After examining various witnesses and collecting the reports of the experts, the Investigating Officer completed the investigation and filed Final Report in P.R.C.No.12 of 2013 before the District Munsif-cum-Judicial Magistrate, Kamuthi under Section 302 IPC (2 counts) against the appellant.
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3. On the appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.1 of 2013 and was made over to the Additional Sessions Court, FTC, Paramakudi for trial. The trial Court framed charges under Section 328 IPC (2 counts) and 302 IPC (2 counts) against the appellant and when questioned, the appellant pleaded ‘not guilty’.
4. To prove the case, the prosecution examined 29 witnesses and marked 18 Exhibits and 12 Material Objects.
5. When the appellant was questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against him, he denied the same. No witness was examined on behalf of the appellant and no document was marked. After hearing both sides and considering the evidence on record, the trial Court, by judgment dated 22.10.2016 in S.C.No.131 of 2013, has convicted and sentenced the appellant as under :
Provision of law under Sentence which convicted Section 328 IPC Ten years rigorous imprisonment and to (2 counts) pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of two years for each count.
Section 302 IPC Imprisonment for life and to pay a fine of (2 counts) Rs.1000/- in default to undergo simple imprisonment for a period of three years for each count.
http://www.judis.nic.in 8 The sentences were ordered to run concurrently. Challenging the conviction and sentence slapped by the trial Court, the appellant has filed the present appeal.
6. Heard Mr.J.William Christopher, learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State.
7. Though the prosecution has examined 29 witnesses, the case rests on the evidence of the widows of the deceased and the experts. Chinnammal (PW4) and Soundram (PW5) are sisters. Bose (D1) married Chinnammal (PW4) and thereafter, he took her younger sister Soundram (PW5) as his second wife. Through both wives, he has children. All of them were living under one roof.
8. Chinnammal (PW4) and Soundram (PW5) have stated that, they knew the appellant; he had borrowed Rs.40,000/- from their husband Bose (D1); their husband Bose (D1) went to Chennai and found that the appellant was working in a hotel and upbraided him for not properly repaying the debt; on 05.10.2012, around 12.00 noon, the appellant came to their house and when their husband Bose (D1) asked him as to whether he has brought money, he (appellant) gave him (Bose/D1) a liquor bottle and assured that he will come around 3'o clock in the evening and settle everything; after the http://www.judis.nic.in 9 appellant left, their husband went to the house of their neighbour Kanagaraj (D2), soon thereafter, they heard commotion near Kanagaraj's house and when they went there, they found both men lying unconscious; both of them were rushed to the hospital where they died.
9. In the cross-examination of Chinnammal (PW4), she has stated that sometimes her husband would take pro-note and at times, he would lend money on good faith. She has further stated that she chided her husband for accepting the liquor bottle from the appellant instead of getting payment and that, he ignored her protest and accepted the liquor bottle. Thus, from the evidence of Chinnammal (PW4) and Soundram (PW5), the prosecution has proved beyond cavil that the appellant came to their house on 05.10.2012 and gave a bottle of brandy to Bose (D1).
10. Arundevi (PW1), W/o.Kanagaraj (D2) in her evidence, has stated that, on 05.10.2012 around 12.30 p.m., her neighbour Bose (D1) came to her house and asked her husband Kanagaraj (D2) to join him for boozing; Bose (D1) told her husband Kanagaraj (D2) that the appellant had gifted the brandy bottle; Kanagaraj (D2) took two tumblers and water from inside and both of them sat on the pial of the house and drank; soon, Bose (D1) fell unconscious followed by her husband Kanagaraj (D2); on seeing this, she raised a hue and cry and everyone including Bose's wives gathered; Bose's son Selvaraj brought an auto, by which, both of them were taken to the Government Hospital, http://www.judis.nic.in 10 Kamuthi, where they died; thereafter, she gave the complaint (Ex.P1).
11. In the cross-examination, Arundevi (PW1) admitted that her husband used to drink at times. She has categorically stated that her husband Kanagaraj (D2) and Bose (D1) drank in her house and denied the suggestion that she was not present, when they drank liquor.
12. Be that as it may, the Police have seized the "Black Magic” labelled brandy bottle (MO.1) with remnants from the house of Arundevi (PW1) on 05.10.2012 at 16.00 hours under mahazar (Ex.P5), in the presence of Gurumoorthy (PW14) and Meenatchi Sundaram (not examined). Gurumoorthy (PW14) has corroborated the evidence of the Investigating Officer in this regard. As stated above, the brandy bottle was sent through the Court to the Tamil Nadu Forensic Sciences Laboratory for examination and Vairamuthu (PW22), Junior Scientific Officer, in his evidence, as well in the report (Ex.P12), has stated that cyanide was detected in the brandy.
13. Learned counsel for the appellant contended that the prosecution has failed to prove the motive, inasmuch as the pro-note that was allegedly obtained from the appellant by Bose (D1) was not marked. In this regard, Chinnammal (PW4) has stated that many a time, her husband Bose (D1) would lend money on good faith, even without obtaining any pro-note from the http://www.judis.nic.in 11 borrower. The fact remains that Bose (D1) and the appellant were from the same village and had known each other. It is also admitted by the wives of Bose (D1) that Bose (D1) was in the habit of lending money for interest. Under such circumstances, non filing of the promissory note cannot be said to be fatal to the prosecution case.
14. Learned counsel further contended that Premanand (PW27), the Sub Inspector of Police, has stated that he received information from the Government Hospital, Kamuthi at 12.45 p.m., whereas, the Accident Register copy (Ex.P8) shows that Bose (D1) was examined only at 01.00 p.m. by Dr.Chandramouli (PW21). In the opinion of this Court, this is not a serious discrepancy that would have the effect of cutting the root of the prosecution case because, the case of the prosecution is not based on the evidence of Premanand (PW27), Sub Inspector of Police, who registered the FIR, but, is predicated on the evidence of Arundevi (PW1), Chinnammal (PW4), Soundram (PW5), Dr.Chandramouli (PW21) and Vairamuthu (PW22).
15. Learned counsel further contended that Vairamuthu (PW22) has not stated what type of cyanide was used, i.e. whether sodium cyanide or potassium cyanide or calcium cyanide and therefore, his report deserves to be rejected. We are unable to countenance this submission because, there is absolutely no cross-examination of the witness on this aspect. He was only questioned as to whether the cyanide detected in the liquor bottle was pure or http://www.judis.nic.in 12 adulterated, for which, he stated he has not given any opinion on that aspect. No suggestion repudiating the report given by him was even made. Therefore, this Court has no reason to reject the testimony of Vairamuthu (PW22) and his report Ex.P12.
16. As regards the contention of the learned counsel for the appellant that though the prosecution has proved the offence qua Bose (D1), the appellant cannot be held liable for the death of Kanagaraj (D2), since the appellant could not have anticipated such an outcome. This is not a case of transferred malice for invoking Section 301 IPC, in the light of the judgment of the Supreme Court in Shankerlal Kachrabhai and Others Vs State of Gujarat [AIR 1965 SC 1260]. Had the liquor mixed with cyanide that was intended for boozing was mistakenly taken by Kanagaraj (D2), then, it would have been a case of Section 301 IPC. However, the appellant had the intention to cause the death of Bose (D1) when he mixed cyanide in the brandy and gave it as a gift to Bose (D1). Therefore, this would fall within the first limb of Section 300 IPC. As regards the death caused to Kanagaraj (D2), the act of the appellant would fall within the fourth limb of Section 300 IPC, since it is not open to the appellant to presume that when a bottle of liquor is offered to a person, he would gobble it up himself all alone without sharing it with anyone. Unlike drunkards who take to liquor for drowning away from frustration and depression, social drinkers would normally crave for company. Bose (D1) was not of the former category but of the latter.
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17. In view of the foregoing discussion, it is evident that the prosecution has proved beyond doubt that it was the appellant, who had handed over the brandy mixed with cyanide to Bose (D1), who, in turn, sought the company of Kanagaraj (D2) and together, they perished.
In the result, the criminal appeal is dismissed and the judgment of conviction and sentence passed by the Additional Sessions Judge, Fast Track Court, Paramakudi, Ramanathapuram District in S.C.No.131 of 2013 dated 22.10.2016 is confirmed. The trial Court is directed to take steps to secure the appellant and commit him to prison for undergoing the remaining period of sentence, if any. Registry is directed to send the original records to the trial Court forthwith.
(P.N.P.J.) (B.P.J.) 21.06.2019 gya To
1.The Additional Sessions Judge, Fast Track Court, Paramakudi, Ramanathapuram.
2.The Inspector of Police, Kamuthi Police Station, Ramanathapuram District.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper, http://www.judis.nic.in VR Section, 14 Madurai Bench of Madras High Court, Madurai.
P.N.PRAKASH, J.
AND B.PUGALENDHI, J.
gya CRL.A.(MD).No.332 of 2017 21.06.2019 http://www.judis.nic.in