(1.) THE appellant and his elder brother Jogendra Kar were tried on charges under Section 328/302, Indian Penal Code for committing the murder of their youngest brother Baburi Kar by administering poison to him. Jogendra was acquitted but the appellant was convicted for the offences with which he was charged and was sentenced to imprisonment for life for his conviction under Section 302, I.P.C., but no separate sentence was imposed for his conviction under Section 328, I.P.C.
(2.) THE deceased Baburi Kar who was the youngest of the three brothers was running a sweetmeat stall in Pakistan and was remitting money to his brother Gajendra Kar who was staying in the village, 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 of 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. I which the appellant Gajendra is alleged to have thrown in the bushes. The bottle M. O. I 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. Both the accused persons pleaded not guilty. They denied having invited the deceased to eat Pithas and stated that the deceased never ate any Pithas in their house. There was therefore no occasion for them to administer any poison to the deceased. On finding that Baburi was vomiting, both the accused went near him. They denied the allegation that on being questioned by the persons who gathered at the spot as to what happened to him, Baburi pointed his fingers to the two accused. They stated that a Muslim compounder examined Baburi and asked the accused to get a doctor from Asureswar and so Gajendra went inside his house to put on his shirt and then went to the river ghat on his way to Asureswar. While he was sitting in the boat some people went and told him that Baburi had expired. It is thereafter that he came back to his house. Gajendra denied having thrown any bottle in bushes. Both the accused stated that during the absence of Baburi Kar in Pakistan his wife P. W. 2 was leading an immoral life and that on account of that she was being chastised by Gajendra. After Baburi came back from Pakistan, he heared about the immoral conduct of his wife and there were therefore constant quarrels between the husband and wife. He finally drove her out of his house a month before the Raja festival in 1966. She stayed with her brother P. W. 1 for about a month and then came back to Baburi's house on the first day of Raja. The suggestion of the accused was that Baburi either commited suicide by taking poison or poison was administered to him by his wife.
There is sufficient evidence on record to warrant the conclusion that death of the deceased Baburi Kar was due to poison. This position was not contested either before the learned Sessions Judge or before us in appeal and it is therefore not necessary to make any detailed reference to the evidence bearing on this point. Admittedly, there is no eye -witness to the actual administration of poison by either of the two accused to the deceased. But on the basis of the evidence on record, the learned Sessions Judge believed the prosecution case that on the morning of the date of occurrence, the deceased was invited by Jogendra to go to Gajandra's house to take pithas, that he did take Pithas and the gur given by Gajendra and that immediately afterwards he developed vomitings and died. It may be stated here that when the three brothers separated in mess and residence some time before the occurrence took place, two rooms were allotted to each of the three brothers in the family house. The two rooms adjoining the Danda, fell to the share of Baburi, the youngest brother. The doors of these two rooms have their openings into the inner court -yard. The two accused persons who remained joint had four rooms allotted to them two of which were separated from the two rooms of Baburi Kar by a courtyard. The living rooms allotted to Baburi were in the upper Khanja and the living rooms allotted to the accused persons were in the Tala Khanja. The kitchens however were located in the upper Khanja. P. W. 2 stated that when her husband went to take Pithas to the house of the accused, she was engaged in husking paddy and was therefore in a position to see the place where her husband was eating Pithas. According to her, Gajendra's wife handed over the Pithas to Jogendra who in turn served the same to the deceased Baburi. Immediately thereafter Gajendra brought some gur from inside his Khanja and gave it to Baburi to take along with Pithas. Three persons were therefore concerned in serving the Pithas and the gur to Baburi, namely, the two accused and the wife of Gajendra. The possibility of Gajendra's wife administering the poison was eliminated because no suggestion at all was made to anybody that she might have administered the poison. The possibility of Jogendra administering the poison was eliminated by the learned Sessions Judge because P. W. 2 in her cross -examination stated -
"My husband's eldest brother Jogendra loved my husband utmost. My husband agreed for the partition of the properties by the eldest brother Jogendra."
The learned Sessions Judge did not believe that circumstances existed to warrant the conclusion that P. W. 2 herself might have administered the poison to her husband or that the latter had any reason to commit suicide by taking poison. Relying on a number of circumstances detailed in the judgment he came to the conclusion that it was Gajendra who must have administered the poison and accordingly convicted and sentenced him as stated above,
(3.) AS already indicated, the finding of the learned Sessions Judge that the death of the deceased was due to poisoning is not assailed on behalf of the appellant. The report Ext. 20 of the Chemical Examiner shows that the poison endrine had been detected in the viscera of the deceased as well as in his vomitings which had been sent to the Chemical Examiner and examined by him. There is the positive testimony of P. W. 2 the wife of the deceased that her husband developed vomiting about an hour after he ate some cakes and gur in the house of the appellant. Doubtless her evidence on this point stands uncorroborated and the only other person Bhuban Maa who was helping her in husking the paddy and might have thrown some light on this part of the case has not been examined. It, therefore, becomes all the more necessary to scrutinise the evidence of P. W. 2 with greater care and to see if the other evidence in this case lends assurance to her testimony. P. Ws. 4, 5, 6, 7, 8, 11 and 12 are some of the persons who came to the house of Baburi on hearing the hulla raised by P. W. 2. By the time they went there Baburi was still alive although he was not able to speak. He was found struggling, tightening his hands, closing and opening his eyes and was also vomiting now and then. The two accused persons were present there. These witnesses say that P. W. 2 was then crying in the Danda saying that her husband had been killed by the accused. It is significant that despite this open and definite accusation made by P. W. 2 there was no protest either by the appellant or by his brother. If there was no basis for the accusation, one would have naturally expected them to protest. The significance of this circumstance cannot at all be lost sight of. Then there is the evidence of P. W. 7 who had stated that on an enquiry by her as to what happened to him, Baburi who was unable to speak pointed his two fingers towards his legs where the appellant and his brother were sitting. The statement of P. W. 7 on this point is corroborated by P. W. 2. Nothing has been suggested to P. W. 7 to show that she has any motive to falsely implicate the appellant or his brother. We do not see any reason why this part of the evidence should not be believed. It would be safe to infer from this part of the evidence that Baburi by means of gestures indicated that his two brothers were responsible for the condition in which he was found at that time. Baburi died as a result of poisoning. Any statement by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death is relevant under Section 32 (1) of the Evidence Act. It is significant that in Section 32 the word used is "verbal" and not "oral". Such a dying declaration may therefore be in writing or oral or may be made by signs and gestures in answer to questions when the declarant is unable to speak. In Alexander Perera Chandarsekera v. The King, AIR 1937 PC 24 : (38 Cri LJ 281) the victim whose throat was cut by the accused was alive for some time and being questioned regarding the offence and the person who committed it, she answered the questions by signs and nods being unable to speak. She described the accused by signs and when she was asked whether that person was the accused she showed assent by a nod. The question having arisen as to whether her statement was relevant and admissible against the accused, it was held by their Lordships of the Privy Council that the statement made by the deceased constituted a verbal statement resembling the case of a dumb person and was relevant and admissible in evidence, under Section 32 of the Ceylon Evidence Ordinance (Act 14 of 1895) which corresponds to Section 32 of the Indian Evidence Act (Act I of 1872). By enacting Section 32, the Legislature in its Wisdom has placed a dying declaration on par with evidence on oath for the reason that at the time when a man is in danger of losing himself it is not likely that he would speak a falsehood and involve an innocent person. The weight attached to a dying declaration is such that in appropriate cases it may form the sole basis of a conviction. But, in this case, it is not necessary to go thus far because as would be shown hereafter, there are several circumstances which corroborate the dying declaration made by Baburi. We have already referred to the positive testimony given by P. W. 2 that Baburi was invited to take cakes in the house of the appellant and that there he did take the cakes handed over to him by Jogendra and the gur handed over to him by the appellant, and that shortly thereafter he developed vomiting which ultimately resulted in his death. We have also referred to the fact that in presence of the villagers P. W. 2 was openly accusing the appellant and his brother as having killed her husband by poisoning and that the appellant and his brother who were present when these accusations were made did not raise any protest. The third circumstance which is of significance is that after the people who had gathered at the spot gave out that the vomitings were smelling of endrex, the appellant got up, went inside his house and came out with a bottle which he threw into the bushes in the Bari and then went away towards the river ghat. The Police seized this bottle M. O. I at 10.45 a.m. on the day following the occurrence under the seizure list Ext. 2. It is mentioned in the seizure list Ext. 2 that this bottle was smelling of endrex. This is also deposed to by P. W. 3 who was one of the witnesses to the seizure. The appellant denied having brought any bottle from inside his house and having thrown the same in the bushes. P. Ws. 2, 7 and 8 had specifically stated that the appellant got up from the place where Baburi was lying in a dying condition, went inside his own Khanja and then came out holding a bottle under the folds of his cloth and then proceeded towards the Bari of the house. P. W. 8 had seen the appellant actually throwing the bottle into the bushes, and immediately declared about it and several persons ran to the Bari and saw the bottle lying in the said bushes. Nobody touched the bottle because P. W. 3 had cautioned them not to do so because the Police might require it for examination. This bottle was subsequently sent to the Chemical Examiner who detected endrine in the washings of the bottle.;