JUDGMENT
M. Anantanarayanan, J.
1. This is a very unfortunate case. The victim in this Criminal Appeal is a certain Krishnaveni Ammal, aged about 25 and the wife of one Srinivasan (P.W. 1). The appellant. Divan Sahib alias Pythiakkaran alias Samiyar, is an exorcist or magician, who was charged with the murder of this unfortunate young woman, by literally suffocating her to death with smoke, in the course of an attempt to cure her of the evil spirits which according to the Appellant, had possessed her and were proving to be troublesome. The learned Sessions Judge of Chingleput convicted the appellant under Section 302, Indian Penal Code, and sentenced him to the lesser penalty of imprisonment for life.
2. Of the facts themselves, we are unable to see any room for doubt. We have the very clear evidence of the husband (P.W. 1) corroborated by the testimonies of his cousin Kadirvelu (P.W. 2) and the mother of the deceased (P.W. 3), regarding what happened that night, and how the victim met with her death. This is further elucidated by the detailed report of the autopsy furnished by Dr. Gopalkrishnan (P.W. 10) the Professor of Forensic Medicine, Madras Medical College and Police Surgeon. We have also the photographs of the body of the victim in the room in which the rituals of exorcism were conducted (M.O. 4 series) which uncontravertibly established what must have happened. The real question is, is the accused guilty of murder or of some other offence and, if he is not guilty of murder, under what section of the Indian Penal Code is he liable to be convicted ?
3. We may take it that the unfortunate Krishnaveni was suffering from some form of hysteria, which showed itself in the usual mode of spells of fainting, and fits or convulsions. These were taken by her husband (P.W. 1) and others as symptoms of possession by an evil spirit and the deceased was then examined by the accused an exorciser, who confirmed this diagnosis. In pursuance of it, on an earlier occasion, the victim was tied up in the koodam of the house of P.W. 1 and left alone with the accused for a number of hours at night ; the accused used a lighted fire, and coals, as well as other articles to raise considerable quantities of smoke in order to effectively exorcise the evil spirit. On that particular occasion, the victim was unharmed, and the accused pronounced her cured after the ritual of exorcism, but her symptoms returned with unabated vigour and this led to the second very unfortunate ceremony which resulted in Krishnaveni’s death.
4. We might take it for granted that the ritual was held, on the second occasion as spoken to by P.Ws. 1 to 3. Quantities of stuff were purchased in double measure, as the previous exorcism had not been effective. They included salt, mustard, firewood, charcoal and other sundries inclusive of incense and two green chameleons. A fire was again raised and the deceased was made to sit before it, after which the accused tied her hands and feet, and further secured her to a granite mortar in the koodam by means of a rope (M.O. 3). The doors were also closed, and, at the instance of the accused, P.Ws. 1, 2 and 3 left him strictly alone with the victim. As on the previous occasion, the deceased was raising cries throughout the night, but these were not heeded to. The cries ceased by 4 A.M., and P.W. 1 and the other immediate relatives became anxious and knocked at the doors. When the accused opened the doors and these people went inside, they saw the deceased lying on her back, her hands and legs tied as formerly ; but her life was then extinct, and the entire body showed signs of blistering and charring. After this, an outcry was raised, and P.W. 5 and others came. One of the new arrivals was P.W. 4, the President of the Panchayat Board. The accused slipped away, and persons were sent to catch him. P.W. 4 made a report (Exhibit P-1) upon which investigation by the Police followed.
5. The medical evidence is, of course, of prime significance, in this case. Dr. Gopalakrishnan (P.W. 10) deposed there were early decomposition changes present on the body, and second degree burns involving both knees, the legs and left cheek. There were first degree burns on both breasts, face and both shoulders. There was a lacerated wound 6 inches by 3 inches muscle deep over the front of chest, showing some external violence or interference with a blunt object. There was another similar lacerated wound on the lower part of right side of neck 2 1/2 inches by 1 inch muscle deep, but, actually death was not due to the burns, and P.W. 10 is specific on the point. There were signs of marked congestion and edems of the lungs, with carbon particles in the respiratory passages and congestion of all the internal organs. P.W. 10 is positive that death was really due to suffocation, as evidenced by the state of internal congestion, particularly of the lungs, and the presence of carbon particles. In other words, this unfortunate girl had been tied up in such a manner that she could not move, and forced to inhale very large quantities of smoke. The flames were also kept or brought, so near her as to cause the first and second degree burns found on the body. The fumes of the smoke must have made her incapable of breathing or crying out after some time, and, she was literally suffocated to death. Of this inference there can be no doubt whatever. According to the Doctor, P.W. 10 so much suffocation and such burns would be sufficient to cause death, even in the ordinary course of nature.
6. The accused attempted a defence, which is somewhat fantastic, and which does not appear to deserve any credence. According to him, he was not left alone with the vicitim, nor did he tie her hands and foot, or tie her up to the mortar. P.Ws. 1 to 3 were throughout present when he performed the pooja, and they held down the victim. The accused got into a trance and when he opened his eyes at 3 A.M., and came back to normal consciousness, he found that the victim had fallen on the fire and had been burnt. This version is opposed to the probabilities, and to the clear and natural testimonies of P.Ws. 1, 2 and 3. We have no hesitation, therefore, in rejecting it. But the problem still remains what is the offence that the accused is guilty of, on the established facts ? It is not claimed for the prosecution that the accused intended to cause the death of the woman, or even to do her grave injury. However deluded he might have been, the accused was under the genuine impression that the woman was possessed by an evil spirit, and that he could exorcise her effectively by means of this prolonged ritual. The learned Sessions Judge considers that the accused must be credited with the knowledge that the violence that he was causing to the victim, by compelling her to inhale smoke and also to bear the flames so near her body, was likely to cause her death. “The learned Sessions Judge adds that the lacerated injuries that we have earlier referred to, also show that the accused inflicted some further external violence on the unfortunate victim. Upon the findings, as arrived at by the trial Court, it is clear enough that the accused ought to have been convicted under Section 304, Part II, Indian Penal Code, and not under Section 302, Indian Penal Code. The only clause that is really applicable is the third clause of Section 299, Indian Penal Code, at the highest for the prosecution. The question is whether this view is correct, or whether the accused would be guilty only under Section 304-A, Indian Penal Code of causing the death by a rash or negligent act.
7. Upon a careful consideration of the evidence and the probalitites, particularly the data furnished in the medical evidence, we are of the view that the accused should be properly convicted under Section 304, Part II, Indian Penal Code. Two decisions to which our attention has been drawn, which related to almost identical situations, are Haku v. The Crown (1928) I.L.R. 10 Lah. 555. and Naa Po Tha v. Emperor (1918) 44 I.C. 679. Both these were cases of attempted exorcism of an evil spirit, by means of some external violence administered to the victim, in the hope of driving away the evil spirit. In both cases the offences were held to be punishable under Section 304, Part II, Indian Penal Code. It is true that both these decisions relate to blows administered to the victim, whereas here we have a case of prolonged suffocation by smoke, during the course of ritual, in addition to burns caused by heat brought too near the body. But we do not think that that makes any essential difference. In this case also, the accused has to be credited with the knowledge that such measures were likely to cause the death of the victim, and if he indulged in those measures notwithstanding such knowledge, he did so under the peril of being convicted under the criminal law. Learned Counsel for the appellant had drawn our attention to certain features of the evidence, which, according to him, tend to throw a doubt upon the veracity of the testimonies of P.Ws. 1, 2 and 3. According to him, the photographs show that the woman could not have been tied up by the accused, in the manner deposed to by the witnesses ; they are more suggestive of the woman having been tied up after death. Similarly, since the blouse admittedly showed no signs of having been burnt on any portion of the garment, the suggestion is that the woman did not wear this blouse during the exorcism, but it must have been put upon her after death. But these inferences are not really supported by any established facts, and, with regard to the latter inference, there is not even a suggestion put to the witnesses, in the record of evidence. We have no reason for holding that the woman was not tied up by the accused when she was alive as spoken to by the witnesses, or that she was not wearing the blouse during the ritual.
8. Accordingly, we convict the appellant under Section 304, Part II, Indian Penal Code. It is true that the appellant does deserve some sympathy, under the particular circumstances. He has himself been a victim of the grossest superstition and he had no intention of harming the woman, or causing her death by external violence. Taking all the circumstances of the matter into account, we sentence the accused to undergo rigorous imprisonment for three years. The appeal is otherwise dismissed.
