EMPEOR Vs. SHETYA TIMMA WADAR

JUDGEMENT

(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 802, Indian Penal Code, in that they had caused the death of three persons, Karshiddappa, Mallapa 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 persons 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 302, Indian Penal Code, and convicted them under Section 325, Indian 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 other persons, by name Gadigeppa Hadagli and Govindgauda Shankargauda, with intent to facilitate the commission of an office, 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 accused under Section 302, Indian. Indian Penal Code, and we have heard the learned Government Pleader and the pleader appointed for the accused. 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.

(2.) 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. Then, the next question, supposing 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. 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] 2 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 Mt. 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.

(3.) That reasoning has been followed in two other cases of the Allahabad High Court-Emperor V/s. Gutali [1908] 31 All. 603 and Emperor V/s. Nanhu A.I.R. 1923 All. 60 A.I.R. 608. On the hand, there is a contrary view taken in Emperor V/s. Bhagwan Din [1908] 30 All. 568 on which the learned Sessions Judge has relied. That was a case 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 such 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.