KISHAN GANGARAM MAHATRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant has challenged his conviction for an offence of murder under section 302 of the Indian Penal Code. The facts leading to the prosecution of the accused are these.

(2.) On November 23, 1974, the four months old child of the complainant, Prayagbai, died of poisoning. It is alleged that the accused entered the house of the complainant at about 8 a.m. when the complainant had gone to the river for washing clothes and administered endrine poison to the infant child viz., Deepaji. It is the common ground that the complainants husband, Maruti, died about three years prior to the incident. After his death, the complainant was residing in her family house with her two children, Panchphula aged about eight years and Balasaheb aged about 5/6 years at the time of the incident. The complainants other two children and her mother, Warabai who were also residing with the complainant had left for the field in the early hours of the morning some time prior to the incident. According to the prosecution, in the morning at about 7.30 a.m. the complainant fed the child and left for the river for washing the clothes leaving the two children, Panchapule and Balasaheb along with the infant child in the house. Shortly after the departure of the complainant, Prayagbai, the accused entered the house and managed to drive away the two children out of the house and then he is said to have administered the poison and left the house within five minutes. It is further the case of the prosecution that thereafter the two children came back to the house and found that the child was vomiting, froth collected near the mouth and had convulsions. Having noticed this, Balasaheb ran to the river and brought his mother to the house. She found that the child, Deepaji, had his mouth getting foul smell like endrine and was getting convulsions. She then lifted the child and took him to Vishwanath who was residing in the adjoining house and informed the incident to him. Vishwanath then advised her to take the child immediately to the Medical Dispensary at Purna situated about two miles away from the village. In the meantime several persons including Sarpanch, Vyankaji, collected there. He brought butter milk, soap and salt and fed the liquid thereof to the child for the purpose of vomiting to eliminate poison. Thereafter, the child for the Medical Dispensary at Puna reaching there at about 9.30. a.m. Dr. Quadri the Medical Officer of the Dispensary, examined the child and found that it had convulsions. Its body was cold, there was frothing from the nose and its heart beats were very slow. On account of these symptoms Dr. Quadri suspected that the child suffered from endrine like poisoning. He also noticed that the mouth of the child was then smelling of the substance like endrine. He started treating the child mainly in order to eliminate poison from the body in order to avoid further complications. However, ultimately the succumbed at about 11 a.m. On the demise of the child, the police were informed by the doctor. The police then came to the dispensary and recorded the statement of the complainant. It may be stated here that the child died after the First Information Report of the complainant was recorded. Initially, therefore, the offence was registered as one under section 307 of the Indian Penal Code and on the death of the child, the offence was changed to the one under section 302 of the Indian Penal Code. The doctor gave his opinion that the death might have been caused of pulminary oedeme caused by ingestion of endrine like poison. Dr. Quadri also sent the viscera to the Chemical Analyser for his report and opinion. However the report shows that no recognizable poison was detected. In the circumstances the prosecution relies on the opinion given by the Dr. Quadri and his evidence before the Court in support of its case that it is a case of death by administration of poison.

(3.) It was alleged by the prosecution that there was strong motive for the accused to commit the crime. In this connection , the prosecution has led the evidence to the effect that after the death of Prayagbais husband she had developed illicit intimacy with the accused. The accused used to very often go to the house of Prayagbai, eat and even sleep there. This illicit intimacy resulted in her giving birth to the said child. In fact disputed by the accused that it was his child born of his illicit relations with Prayagbai. It is further the case of the prosecution that Prayagbai and the accused had purchased a piece of land in the village. However, the sale-deed was executed in the name of the accused alone. She came to know that the sale-deed did not stand jointly in the name of herself and the accused. Therefore, she started insisting on the accused that the land should be transferred in the name of the illegitimate child, which suggestion was not accepted by the accused and he went on maintaining the land purchased by him. This brought about an excitement between the complainant and the accused and it is said that for about a month or two prior to the incident the accused did not visit the house of Prayagbai. It is also common ground that the income earned by Prayagabai as a labourer was insufficient for the maintenance of her family and the accused used to supplement that income, so long as the relation between the two was not strained. According to the prosecution the demand by Prayabai for the transfer of the land in favour of her illegitimate child led the accused to commit the offence and that was the motive for the murder. The prosecution also relied on the circumstances that during the suo of investigation a small bottle containing endrine was seized from the house of the accused. Reliance was also placed on the testimony of witnessses who had seen the accused entering the house of Prayagbai during her absence and returning within a few minutes. It is, therefore, alleged that during this visit in the morning the accused administered the poison on the child.