1970 Supreme(Ori) 114

ORISSA HIGH COURT
B.K. Patra , K.B. Panda, J.
GAJENDRA KAR
VERSUS
STATE OF ORISSA
Criminal Appeal No. 201 of 1970 (From order of M. J. Rao, Addl. S.J., Cuttack,)
Decided on : 31-10-1970, January 9, 1973.

In a case of poisoning, the prosecution must establish (a) that death took place by poisoning, (b) that the accused had the poison in his possession and (c) that the accused had an opportunity to administer the poison to the deceased.

Headnote:

CRIMINAL APPEAL - MURDER - POISONING - CONVICTION - EVIDENCE - CIRCUMSTANTIAL EVIDENCE - SUFFICIENCY - MOTIVE - OPPORTUNITY - POSSESSION OF POISON - DYING DECLARATION - RELEVANCE AND ADMISSIBILITY - INTERPRETATION OF SECTION 32 OF THE EVIDENCE ACT.

Fact of the Case:

The appellant and his elder brother were tried for the murder of their youngest brother by administering poison to him. The deceased was running a sweetmeat stall in Pakistan and was remitting money to his brother Gajendra Kar for the maintenance of the family. Jogendra Kar was working as a Panda for the pilgrims at Puri. The money which Gajendra was receiving from time to time was being utilised for purchase of lands. Round about the year 1964 Baburi came back from Pakistan to his village and the brothers lived jointly. In course of time, disputes arose amongst the brothers regarding division of the properties and the matter reached a climax during Raja festival of the year 1966. The disputes were referred to a Panchayat for amicable settlement. There was separation in mess and residence between Gajendra and the deceased. Jogendra was unmarried. The Panchayatdars decided that Jogendra should come down from Puri and effect the partition of the properties. Accordingly, Jogendra came from Puri and took up the matter but the division could not be effected. The prosecution case is that while the matters stood thus the eldest brother Jogendra who had come down to the village and was staying with the appellant, invited the deceased on the morning if 14-7-1966 to go the Khanja of the appellant to eat some pithas (cakes). Gajendra's wife handed over the Pithas to Jogendra who in turn gave them to the deceased. The appellant Gajendra brought some gur (jaggery) from the Khanja and gave the same to the deceased to eat with the Pithas. The deceased ate the Pithas and the gur and after coming back to his Khanja complained to his wife (P.W. 2) that he was having reeling sensation and then he slept on a mat. After about an hour, he began to vomit. Both the accused then came to the deceased. The wife of the deceased raised a hulla on hearing which several persons of the locality gathered at the spot and they noticed that the vomitings were giving out smell of the poison endrex. On being questioned by the persons as to what happened to him, the deceased who was then not in a position to speak merely pointed his fingers at his two brothers who were present there. As the persons who had gathered there remarked that the vomitings were giving a smell of endrex, the appellant got up and went inside his Khanja and came out with a bottle which he threw inside a cane bush in the backyard and then went away towards the river ghat. Some people ran to the river ghat and caught hold of the appellant and brought him back to the house. Meanwhile Baburi had expired. Information was sent to the police. The A.S.I. of Police came to the spot that night, took charge of the vomitings that had been preserved, held an inquest over the dead body and sent it for post-mortem examination. The viscera of the deceased was preserved by the Medical Officer who conducted the autopsy. The investigating officer who reached the place of occurrence on the night of 15-7-1966 seized the bottle M.O. 1 which the appellant Gajendra is alleged to have thrown in the bushes. The bottle M.O. 1 which was empty and the viscera of the deceased as also the vomitings which had been preserved were sent to the Chemical Examiner who detected endrine in the viscera, the vomitings and the washings of the glass bottle M.O. I. After completing necessary investigation, the two accused persons were put on trial.

Finding of the Court:

The court found that the death of the deceased was due to poisoning and that the appellant had administered the poison to the deceased. The court relied on the following circumstances to arrive at this conclusion: 1. The appellant had the opportunity to administer the poison to the deceased. 2. The appellant had the motive to administer the poison to the deceased as he had a considerable stake in the partition of the properties. 3. The appellant brought out a bottle from inside his house and threw it away in the Bari after the villagers talked amongst themselves that the vomitings were smelling of endrex. 4. The appellant ran away to the river ghat and got into the boat at a time when his brother was lying in a dying condition at home. 5. The appellant's statement that he was passing through Sani Saptaha (influence of Saturn) and that his fate was bad and that he would not have committed it.

Issues: 1. Whether the death of the deceased was due to poisoning? 2. Whether the appellant had administered the poison to the deceased? 3. Whether the circumstances established satisfactorily that unknown to his wife and to his brother Jogendra it is the appellant who administered the poison through the Gur he himself brought out from inside the house and served to the deceased?

Ratio Decidendi: 1. The court held that the death of the deceased was due to poisoning on the basis of the report of the Chemical Examiner which detected endrine in the viscera, the vomitings and the washings of the glass bottle M.O. I. 2. The court held that the appellant had administered the poison to the deceased on the basis of the following circumstances: * The appellant had the opportunity to administer the poison to the deceased. * The appellant had the motive to administer the poison to the deceased as he had a considerable stake in the partition of the properties. * The appellant brought out a bottle from inside his house and threw it away in the Bari after the villagers talked amongst themselves that the vomitings were smelling of endrex. * The appellant ran away to the river ghat and got into the boat at a time when his brother was lying in a dying condition at home. * The appellant's statement that he was passing through Sani Saptaha (influence of Saturn) and that his fate was bad and that he would not have committed it. 3. The court held that the circumstances established satisfactorily that unknown to his wife and to his brother Jogendra it is the appellant who administered the poison through the Gur he himself brought out from inside the house and served to the deceased.

Final Decision: The court dismissed the appeal and upheld the conviction of the appellant.