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Bombay High Court
Emperor vs Shetya Timma Waddar on 5 May, 1926
Equivalent citations: (1926) 28 BOMLR 1003, 97 Ind Cas 654
Author: Fawcett
Bench: Fawcett, Madgavkar


Fawcett, J.

1. In this case the two convicts, Shetya Timma Waddar and Tippava kom Shetya, were committed to the Sessions-Court at Dharwar on a charge of murder, Section 302, Indian Penal Code, in that they had caused the death of three persons, Karshiddappa, Mallappa and Nabisab, by administering poison with the intention of causing such bodily injury as they knew to be likely to cause death. The learned Sessions Judge held it proved that the two accused did administer dhatura to these three persona and thereby caused their death. But he held that there were no sufficient grounds for holding that these two accused knew that they were likely to cause death by the administration of dhatura. Consequently, he acquitted them of the charge under Section 802, Indian Penal Code, and convicted them under Sectoin 325, Indian Penal Code. There was another charge against the two convicts at the same trial in that at the same time and place they had administered poison to two other persons, by name Gadigeppa Hadagli and Govind-gauda Shankargauda, with intent to facilitate the commission of an offence, namely, robbery. The two convicts were convicted by the Court on that charge. The Sessions Judge sentenced them to suffer rigorous imprisonment for seven years on the charge under Section 325, and another period of rigorous imprisonment for seven years under Section 328, Indian Penal Code, the two sentences to be consecutive. The Government of Bombay have appealed against the acquittal of the two accused under Section 302, Indian Penal Code, and we have heard the learned Government Pleader and the pleader appointed for the accused.

2. The appeals, which were presented by the two convicts against their convictions, have already been summarily dismissed, and nothing has been urged before us that in any way suffices to justify our differing from the view taken by the lower Court that these two convicts did administer dhatura and so caused the death of these three persons.

3. The main question that arises upon this appeal is, whether the evidence adduced suffices to establish that the two accused did the act of administering this poison with the knowledge that they were likely by such act to cause death. If that is established, then the offence falls within the definition of culpable homicide under 299, Indian Penal Code,

4. Then, the next question, supposing that that knowledge is established, is whether the culpable homicide is murder under the definition in Section 300, Indian Penal Code. The clause which would apply to this particular case is Clause (4), namely, their committing the act with the knowledge that it was so imminently dangerous that it must, in all probability, cause death,

5. Now, upon this question of dhatura poisoning there are several reported authorities. Most of these are of the Allahabad High Court, and there two views have been taken. The first case, namely, Queen-Empress v. Tulsha (1897) I.L.R. 20 All. 143 has the high authority of Edge C.J. and Burkitt J. In that case the accused was a young woman of twenty or twenty-one, a widow, who had a lover, and she administered dhatura seed to three members of her family who were opposed to her living with that lover. The judgment says (pp. 144, 145):-

It is probable that Musammat Tulsha did not intend to kill her parents and her brother. No doubt she intended to incapacitate them for the time that she might fly with her lover. There is no evidence that she knew that datura when administered to a human being might cause death. The same might have been said if she had administered arsenic or nux vomica, It appears to us that we must, presume that people of her age have the ordinary knowledge of what the results may be of administering datura. It would be dangerous in the extreme to the public in this country if judges were to hold that it could not be presumed that a woman of twenty years of age in an Indian village was not aware that death might be caused by the administration of datura. If we were to hold that such was the presumption, we fear that poisoning by datura would become more frequent than it is.

6. That reasoning has been followed in two other cases of the Allahabad High Court, Emperor v. Gutali (1908) I.L.R. 31 All. 148 and Emper or v. Nanhu (1923) I.L.R. 45 All. 557. On the other hand, there is a contrary view taken in Emperor v. Bhagwan Din (1908) I.L.R. 30 All. 568 on which the learned Sessions Judge has relied. That was a ease in which, for the purpose of facilitating robbery, dhatura was administered by two accused to certain travellers, in consequence of which one of the travellers died and others were made seriously ill. With regard to the traveller who died, it was held that the offence committed was one punishable under Section 325, Indian Penal Code, and in respect of the travellers who did not die, the offence committed was punishable under Section 328, Indian Penal Code It was said in the course of the judgment (pp. 570, 571):-

We agree with our learned brother that the case does not fall under Section 304. If the accused administered the dhatura with the intention of causing death, or with the intention of causing Buch bodily injury as is likely to cause death, or with the knowledge that they were likely by administering the dhatura to cause death, they would be guilty of culpable homicide and their act would not have come within any of the exceptions mentioned in Section 300…

With regard to the appeal of the Government, we do not feel absolutely convinced that the accused or either of them had any intention to cause bodily injury likely to cause death, or knowledge that their act was likely to cause death. Dhatura is not exactly a deadly poison, and may often be given for the purpose of merely stupefying a victim.

7. That case has been dissented from expressly in Lala v. The Crown (1910) I.L.R. No. 32 of 1911 where the Court observed (p. 171) :-

It would be putting a premium on murder to hold that the giving of dhatura in this reckless fashion is comparatively a minor offence. We cannot agree with the date in the judgment of the Allahabad High Court in the case of Emperor v. Bhagwan Din (1808) I.L.R. 30 All. 668 and we prefer, in the interests of public safety, to follow the ruling of the same High Court in the case of Emperor v. Gutali (1908) I.L.R. 31 All. 148. As remarked by the learned judges in the latter case, ‘Although death does not always follow from dhatura poisoning, yet it does follow in a considerable proportion of cases’.

8. On the other hand, there is another Punjab case, Sadhu v. The Crown (1919) P.R. No. 19 of 1919 where the accused had caused the death of two persons by administering dhatura to them in order to facilitate the commission of robbery, and it was held that they were guilty of an offence under Section 825, Indian Penal Code, and not under Section 302. There it was said that ” no hard and fast rule can be laid down as to the section of the Indian Penal Code applicable, and that the circumstances of the particular case must be taken into consideration.” (p. 48.) That is a remark with which I certainly agree.

9. On the other hand, it seems to me, that, having regard to the extent to which dhatura poisoning does take place in India, both in the case of men and cattle, there is very adequate ground for attributing, at any rate, to ordinary Indian villagers a knowledge of the dangerous results that may occur from administering dhatura. It also seems to me that there is considerable danger in taking too lenient a, view as to the extant of the knowledge that should be attributed in such a case, having regard to the frequency of dhatura poisoning in this country. If, as is stated in Lyon’s Medical Jurisprudence, “there seems to be a widespread popular belief in India that dhatura is simply an intoxicant, and not a poison, ” then it seems to me all the more necessary that the Courts should add their weight to the correction of that fallacy.

10. Coming to the particular circumstances of this crime, it is clear that there was very considerable deliberation on the part of the two convicts. The five victims were taken to a field away from the village. They were not allowed to witness the cooking operations which were carried on by the accused, and every attempt was made to induce the victims to take all that was cooked for them. In fact the reason for the death of Mallappa, who ate his food with the two survivors, is apparently that he ate more of what was served than the other two, who did not like the taste of part of the food given to them. That is stated in the evidence of both the two survivors.

11. It is suggested by the pleader for the accused that the deaths may be really due to their having taken liquor with which some times dhatura is said to be mixed in order to increase its intoxicating effect. It may be the case that that is sometimes done, but there is no evidence that it was done in the case of any liquor that was consumed by any of the dead persons, nor is there any direct evidence that in fact those three or any of them had actually consumed liquor. The only evidence to which our attention is drawn is that an empty bottle that smelt of liquor was found near the body of Karahiddappa, and that the contents of the stomachs of the three persona smelt of country liquor. But assuming that they did consume country liquor, there is certainly no sufficient ground for supposing that that liquor contained any dhatura.

12. It seems obvious that the two accused must have administered a very considerable quantity of dhatura, because the very fact that three of the persona died, and that two escaped who did not take as much as they might otherwise have done, shows that enough was put in to cause death.

13. Then, the two accused are persons who, according to the evidence, deliberately adopted this method of committing robbery. The circumstances certainly suggest that it would not be the first time that they had actually administered dhatura. No doubt, it is not proved that they had ever administered dhatura before. But they are not in the position of persons who obviously never used poison before. It is a different case, for instance, to the case of Phulmani Mundain v. Emperor A.I.R. (1924) Patna 635 where the wife who wanted to influence her husband’s heart and without any intention to cause his death procured from another person a poisonous drug, the nature and effect of which she was not aware of, and administered it to her husband with the result that the husband died, the drug being a deadly poison, It was held that the wife was not guilty of murder under Section 302, because she only wanted to administer a love potion and was not aware of the real nature of the drug. In such a case certainly there is legitimate ground for saying that the accused did not know that she was likely to cause her husband’s death. But, in the present case, it seems to me the right view to take is that which has been expressed by Edge C.J. in Queen-Empress v. Tulshu (1897) I.L.R. 20 All. 143 The mere fact that the two accused made no efforts to do away with the incriminating dishes, does not, in my opinion, suffice to show that they did not commit murder. It simply shows carelessness or recklessness on their part, for, supposing that the victims had not died, they would still have probably complained and the incriminating evidence would be available for any such complaint. So, it does not seem to affect the question of their knowledge of the probable consequences of the drug one way or the other.

14. Therefore, I think that the view taken by the lower Court is not sustainable. The main fact is that the quantity of the drug given was sufficient to cause the death of three persons, and might easily also have resulted in the death of the other two if they had taken the full quantity of food given them. I think it is in no way straining the law to hold that the two accused, who are sixty and forty respectively, had sufficient knowledge of the fact that administering dhatura does often result in death and is likely to causa death. Therefore, I would reverse the acquittal of the accused under Section 302 Indian Penal Code, and convict them under that section. The ease clearly falls under Clause (4) of Section 300, Indian Penal Code. I do not, however, think that in this case, although three deaths have resulted, we should sentence the two accused to death, as it may be assumed that their intention really was not to cause death but to merely stupefy, and we are dealing with this case on an appeal by the Local Government. I would, therefore, convict the two accused of an offence under Section 302, Indian Penal Code, and sentence each of them to transportation for life with a direction that the other sentence of seven years’ rigorous imprisonment under Section 328; Indian Penal Code, should be consecutive. The conviction and sentence of seven years’ rigorous imprisonment under Section 325, Indian Penal Code, will be superseded by the conviction and sentence under Section 302, Indian Penal Code.

Madgavkar, J.

15. The facts as found by the Sessions Judge, and upheld by this Court in the appeal by the two accused against their convictions under Sections 325 and 328, Indian Penal Code, are shortly as follows: The two accused, husband and wife, are wandering Wadaris. In the village in question, they pretended to five villagers that they possessed mysterious powers of discovering hidden treasure. On this pretext they took the five villagers to a field belonging to one of them. In that field the two accused told them to cook their food. Accused No. 1 then took them to a distance and asked them to turn their back to the food that was being cooked, whilst accused No. 1 was performing his mysterious incantations. During this period accused No. 2 must have mixed with food sufficient dkutura or some such poisonous alkaloid of the atropine group. Of the five who partook of that food in the field, three died of the poison in that field, and the two others were discovered two days afterwards wandering about suffering from the poison and only recovered consciousness after four days in the hospital. The two accused expressly abstained from partaking of the food on the pretext, that they were fasting.

16. Under these circumstances the accused were convicted under Section 325, Indian Penal Code, in respect of the death of the three persons whose bodies were found in the field on the second day, and under Section 328, Indian Penal Code, in respect of the hurt to the two who survived.

17. This is an appeal by Government against the acquittal of the two accused on the charge under Section 302, Indian Penal Code. The learned Sessions Judge held that the fatal knowledge and intention of the accused were doubtful on three grounds:-

(1) Want of certainty as to the nature of the drug.

(2) The absence of evidence as to the quantity of the poison,

(3) Doubt as to the period between administration and death.

18. Further, in this appeal, reliance is placed on their behalf by their learned pleader on the statement in Lyon’s Medical Jurisprudence that villagers suppose dhatura to be an intoxicant, not necessarily fatal.

19. The first point is, in my opinion, immaterial. Chemical analysis showed that it was certainly an alkaloid poison or most probably dhatura. Whatever it was, it was sufficient to cause death to three, and serious injury to two, so that the quantity absorbed was large enough to be fatal. There was more poison discovered in the rice cooked in the field.

20. As regards the third point, there can be no question that the three persons who died, died on the spot in that very field. They were not seen wandering like the two others, and their deaths must, therefore, have taken place on that very night within a few hours of the administration of the poison.

21. It is on these facts that we have to decide the questions whether the accused can or cannot be inferred to have possessed the knowledge under Section 299, Indian Penal Code, that their act was likely to cause death, and the knowledge under Section 300, Indian Penal Code, that their act was so imminently dangerous that it must, in all probability, cause death. To neither of these two questions is it sufficient answer, in my opinion, on behalf of the accused, that their object was only robbery, and could have been achieved by mere intoxication sufficient, without killing, to stupefy and incapacitate the persons. Object is one thing, intention is another, and knowledge is quite a third, In the case of adult persons (accused No. 1 is sixty, and his wife is forty) deliberately administering dhatura or some such poison or deleterious substance, and in quantities such as to kill three persons within a few hours on the spot, the burden is heavily on the accused to show why the ordinary presumption from an act so imminently dangerous and so probably fatal should not be drawn. It is in evidence that the two survivors were only saved because by pure chance they partook of a considerably smaller quantity of the fatal food. And it was never put forward as a defence that the accused believed that what they administered was an intoxicant only and not a poison. The only defence raised was a denial in toto.

22. From all these circumstances, there can be no question that the accused must have possessed themselves of a very considerable quantity of poison, more than enough to kill all the five, and had with complete recklessness endangered their life and safety, and that they know, and were prepared, in order , to carry out the robbery, that all the five should incur even the risk of death. As death was actually caused, these facts, in my opinion, suffice to bring the case within the purview of Sections 299 and 300, Indian Penal Code.

23. With regard to the rulings of the Allahabad High Court, the question of knowledge is a question of fact in the circumstances of each case. It is impossible for the Courts, I opine, to lay down a rule of law to deprive the jury, for instance, in each case, of their right; to pronounce on the question of the presence or absence of fatal knowledge or intention. At the same time, I entirely agree with the ratio decidendi of the rulings in Queen-Empress v. Tulaha (1897) I.L.R. 20 All. 143, Emperor v. Gutali (1908) I.L.R. 31 All. 148, Emperor v. Gauri Shankar (1918) I L. B, 40 All 360 and Emperor v. Nanhu (1923) I.L.R. 45 All. 557; as against the single ruling in Emperor v. Bhagwan Din (1908) I.L.R. 30 All, 568. Persons making use of poisons which, besides being intoxicants, may likewise prove fatal if administered in sufficient quantity, cannot escape the fatal consequences of this reckless administration, without showing that they were not possessed of the ordinary knowledge of adults, which even villagers are presumed to possess.

24. For these reasons, I agree that the appeal by Government should be allowed, the acquittal of the two accused under Section 302, Indian Penal Code, set aside, and the two accused convicted and sentenced to transportation for life as proposed by my learned brother, in lieu of the convictions and sentences under Section 325, Indian Penal Code.

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