Adami, J.@mdashThe appellant Phulmani Mundain has been found guilty of the murder of her husband, Lodro Munda, and has been sentenced to death by the learned Judicial Commissioner of Chota Nagpur. The appellant Sagar Munda has been found guilty of abetment of the murder and has likewise been sentenced to death. The learned Judicial Commissioner has referred these sentences to this Court for confirmation.
2. It appears that Lodro Munda had for nine years before served as a servant of one Abraham Munda at Kadma, Abraham being some relation of his, but for the last eighteen months he had transferred his services to for Masidas Kumar who lived not far away from Abraham. Lodro lad no house of his own; he took his meals with his relation Abraham and slept at the house of his master Masidas.
3. Three years ago Lodro married the appellant, Phulmani, whose parents lived at a village called Hesahatu some little distance away. Having no home of his own Lodro had to let his wife live generally with her parents but she used to come at times and stay with him at the house of Abraham. As far as one can see there were no quarrels between Phulmani and Lodro but the neighbours inferred that they did not get on very well together from the fact that Phulmani used only to stay for a short time at Abraham''s house and, then used to escape home.
4. At mid-day on the nth June 1923 Phulmani came to the house of Abraham and stayed there for the day. In the evening when Abraham, Lodro, Phulmani''s mother, Bharosi, who had come with her, and Abraham''s wife Mariam were in the house, Phulmani cooked the food for the party. Lodro partook of rice and dhal which had been cooked by Phulmani and after staying for sometime in the house of Abraham left for the house of Masidas where he went to deep. During his meal he had mentioned that the rice and dhal tasted bitter. At about 10 o''clock that night Lodro complained to Israel, the son of Masidas, that he was feeling ill and that there were burnings in his body; he also started vomiting. Isreal told Masidas and Masidas came and saw Lodro, and seeing his condition, sent for Abraham and Mariam; and Phulmani also came to the house. The women proceeded to rub oil on Lodro''s body. Then Masidas sent for a build called Boraya who brought two kinds of roots which he crushed and administered to Lodro in water, but Lodro, it seems, could not swallow the mixture and vomited it out. His condition grew worse and early in the morning, at about 4 A.M., he died. He had been lying on a mat in the verandah and had, it seems, vomited on the mat. In the, morning Masidas went off to the Police Station and gave information at 7 o''clock. The Sub-Inspector came and investigated the case and found the dead body of Lodro on a mat in Masidas'' verandah. He also found vomited matter a little distance away below the verandah it looked as it had been swept there. He collected this and he also cut portions of the mat where he found stains, he collected also scrapings of portions of the surface of the verandah where he saw what he thought were blood stains or vomited matter, and these substances were subsequently sent to the Chemical Examiner. The Sub-Inspector then went to the house of Abraham and there found a chicken that had died and also two dogs which had been paralysed during the night. He was handed the dubha in which Phulmani was said to have administered the dhal to her husband and he also collected what remained of the rice from the evening before.
5. The Sub-Inspector took all proper steps to forward the substances which be had found to the Chemical Examiner, The chicken, and the hen which was subsequently found were sent to the Veterinary Surgeon in order that the contests of their bodies might be submitted to the Chemical Examiner. The result of the chemical analysis may be stated now. Aconite was found in the rice vomited by Lodro Munda as also in the rice which had been vomited by the dogs and in the katora (brass cup) which had contained the dhal which Lodro had consumed. No trace of poison was found in the other articles, namely, the cut pieces of mat and the scraping from the verandah in Misidas'' house. In the vomit of the dogs were found some pieces of wood and in the vomit collected outside Masidas'' verandah were found small pieces" of paper. No explanation has been given how the wood and the proper came to be mixed with the vomit but it is quite likely that in scraping up the substances some wood of paper got mixed up with it.
6. Lodro''s body was duly sent to the Assistant Surgeon for post mortem. The post mortem examination was held by Assistant Surgeon who found signs leading him to believe that death was caused by some poisonous stuff such as aconite or belladona. There was general venous congestion and hemorrhages in the mucuous membrane of the stomach while the heart was full of dark clotted blood. All the symptons of poisoning were present and the stomach and other vital organs such as the liver, kidney and intestines were sent to the Chemical Examiner who detected aconite in the portions sent to him. There can, therefore, be no doubt that the death of Lodro was due to poisoning by aconite.
7. In his information Masidas stated that Phulmani served Lodro with the food end that Lodro arid his wife were not on good terms. It transpired too that, though Phulmani had been rubbing Lodro''s body with oil while he was ill, she had disappeared before he died. It also came to, be known that there was some intimacy between Phulmani and the appellant Sagar Munda, and it was suspected that she had gone to join Sagar, but when search was made both at her parents'' house and in Sagar''s village neither of these two persons could be found. It was, not until some days later, after warning had been given to the chawkidar of Kolma to look out for these two people, that one day prosecution witness No. 19, Simon, saw Phulmani in Kolma about 40 yards from Sagar''s house. He asked her who she was and where she was going and she said that she was looking for Sagar. He asked her what she had to do with Sagar end she replied that she had masked Sagar for medicine so that she might give it to her husband to make him cease to care for her and that he had given her some medicine which she had given to her husband who had died in consequence and so she was looking for Sagar. Simon also saw Sagar and told him what the woman had said to him and Sagar said that he had done no wrong and he could not understand why the woman had made such statements. The chaukidars were called in and Phulmani and Sagar were both taken to the Sub-Inspector on the 16th June. They got to the Police station on the 17th and were taken before the Sub-Divisional Magistrate of Khunti. After the necessary warning had been given, and precautions taken, the statements of these two persons were recorded by a Magistrate of the First Class. Phulmoni stated that she had given her husband some medicine but not with the intention of killing him; she had given it to him so that he might not leave her she had run a way in tear when she saw him dying because she thought that it might be suspected that her intention had been to kill him. Sagar corroborated whet Phulmani had said. He asserted that the woman had asked him for a medicine to give for husband so in it the husband should not desert her and that he hid secured the medicine from one Birsa of Giving. A week after he got it he gave the medicine to Phulmani, but he denied that he had asked for any medicine which would kill Lodro. Sagar said that alter Lodro''s death Phulmani had come to his house.
8. Again on the 9th of August both Phulmaniand Sagar made statements to the Committing Magistrate. Here Phulmani said that on the day on which Lodro had died from illness she had given her husband medicine in order that he might cease to care for her. She said that when she married him she had cared for him but she no laager did so. Sagar had given her the medicine and when Lodro was dying she had run away to Sagar to inform him that, whereas she had wanted medicine to make Lodro leave her, the medicine was causing Lodro''s death. She admitted that it was she who cooked Lodro''s rice and dhal and that she had put the medicine into his dhal. She had not, however, given him the medicine with the intention of killing him but only in order to cause him to leave her. Before the Committing Magistrate Sagar made a similar statement corroborating what Phulmani had said. Phulmani, he said, had told him that she hid no longer cared for her husband and wanted her husband to give her up. He had procured the medicine from Birsa, Whom he had asked whether he know of any medicine which would make husband and wife leave each other and Birsa said that he knew some medicine and had given him some a week after words. He, Sagar, had given the medicine to Phulmani a and then he heard from Phulmani that Lodro was dying owing to the medicine. Before the learned Judicial Commissioner these statements by the two accused were retracted. Phulmani stated that it was Miriam, the wife of Abraham, who prepared the dhal and rice and that she, Phulmani, had been driven to make the previous statements because she had been tutored to do so by the Sub-Inspector and the Head Constable. She denied that she was present when Lodro died and she also denied that she had any intercourse with Sagar. Sagar stated that it was Phulmani who had implicated him and that he had made previous statements to the Police and to the Magistrate out of fear; he denied giving any medicine to Phulmani. The reason he gave for his implication by Phulmani was that he had scolded her and told her that she ought to stay with her husband.
9. Now the evidence as to the events which took place on the 11th June is quite clear. There is no doubt that Phulmani administered the poison to her husband in his dhal. This is proved quite conclusively by the witnesses and by the chemical analysis and there had no doubt that Lodro died of poison administered in the dhal. Of course the confessions made by Phulmani as to the administration of the drug have to be taken with care because they were afterwards retracted but those previous statements are strongly corroborated by all the evidence given in the case. The case is a clear one so far as the facts are concerned. The only question which really arises here is the question of the intention with which the powder was procured by Phulmani and the intention with which it was a administered to hex husband.
10. With regard to Sagar and also with regard to Phulmani we have to decide whether either of these two or both of them, were cognisant of the fact that the powder they were handling was a poison. It is true that Phulmani has changed her statement in her confessions. She first said that her object was to make her husband love her and afterwards that her object was to make her husband leave her; but in both statements she has averred that her object was to use the powder; as a potion to influence her husband''s heart, and she denied throughout that her object was to kill her husband. The learned Judicial Commissioner with regard to the knowledge of the appellants as to what the powder was, holds that the guilty relations between Phulmani and Sagar and the frequency with which the root of aconite is met with in Indian Bazars appear to me to justify the conclusion that they must have known perfectly well what, the medicine was. The frequency with which aconite is met with in Indian Bazars is mentioned in Lyon''s Jurisprudence." This statement is rather too broad. We have to remember that these people were Mundas, and even if Sagar knew the nature of the poison there was nothing which can satisfy us without, a doubt that Phulmani also knew. It is to be noted that Sagar stated that he had procured the aconite from one Birsa and Birsa has not been produced for examination, nor does the evidence show why he was, not produced. The probability is that Birsa denied that he had supplied aconite. It is hardly likely that he would admit it, but anyhow we have no evidence to show that Sagar was informed what the poison was when he procured it. It is possible that he too thought that he was procuring some substance which would be a potion of some sort. From the statement which Simon says Phulmani made to him, and from her confessions it would appear that Phulmani thought she was using the substance as a potion. There is no evidence: throughout to show that she knew the substance was a poison, or that she intended to kill her husband. The evidence as to enmity between Phulmani and her husband is based on inference. The witnesses themselves say that they have never seen any quarrel between the two.
11. Now if we are to hold that these confessions are corroborated by the evidence although they have been retracted, at the same time we have to remember that if we accept the confessions at all we must accept them as they stand and cannot add to then we can only take them as confessions by Sagar and Phulmani and that the substance procured by Sagar was administered with the object of influencing in some way or another the heart of Lodro. It is true that having regard to the fact that Phulmani''s own mother stated that Phulmani and Sagar had for the last year been intimate, (Bharosi puts it that they had been of one mind with each other. Sagar probably would not be anxious to make Lodro fonder of his wife. It is, as the learned Judicial Commissioner has found, very probable that the couple wanted to get rid of Lodro; but in this case there is no sufficient evidence to show us that such was their intention without any reasonable possibility of doubt. We have to remember that the people are ignorant and that such love potions are believed in by the ignorant. There have been several cases, all very much of the same nature as the present one, in which it has been held that where the intention to cause death cannot be clearly found without any other possible explanation of the act of the person giving poison, a conviction for murder cannot stand. The case of Emperor v. Ratnava Chennappa 28 Ind. Cas. 641 : 17 Bom. L.R. 217 : 3 Bom. Cr.C. 38 : 16 Cri.L.J. 305 is very similar en facts to the present one. It was there held that in a case like the present one, the proper conviction is a conviction not u/s 302 but u/s 304A. In Pika Bewa v. Emperor 14 Ind. Cas. 195 : 15 C.L.J. 512 : 13 Cri.L.J. 195 : 16 C.W.N. 1055 : 39 C. 855 the Calcutta High Court also held that unless it is shown clearly and without possible doubt that the intention was to cause death where a substance is administered as a love potion, the accused can not be convicted of murder. It was there said that "the mere administering of a love potion or drug, which a person thinks might be beneficial, is not in itself an offence; but when it is supposed to have effect upon persons with whom the paramour of the accused had enmity, and When she administers it without due care and caution or any enquiry as to what it really is, her act certainly falls within Section 304A." Similarly in the case of Jamna v. Emperor 2 Ind. Cas. 214 : 31 A. 290 : 6 A.L.J. 603 : 9 Cri.L.J. 522 it was held in a case almost similar to the present one that the offence committed was an offence u/s 304A of the Penal Code.
12. The learned Judicial Commissioner has held that there cannot be any possible doubt as to the intention of Phulmani and Sagar; but we are not able to hold that, considering the statements and the evidence there is no possibility that Phnlmani at any rate really believed that the drug which was given to her would merely influence her husband''s heart. Per subsequent action as shown by Simon''s Evidence corroborates this idea. There is no doubt that Phulmani was acting on the suggestion of Sagar and it is impossible in the absence of Birsa to say whether Sagar really thought that the substance was harmless. He too must get the benefit of the doubt so far as the conviction of murder is concerned, but of the two he is probably the more responsible for the consequences of the administration of the drug.
13. It is clear that Phulmani, even if she hid neither the intention to cause death nor the knowledge that she was likely to cause death, was careless of the consequences of her act, and administered the poison without due care and caution or any inquiry as to what it really was. Sagar, too, made no sufficient inquiry before he handed the poison to Phulmani, and by supplying her with the powder abetted the offence of which she has been found guilty.
14. The convictions u/s 302 and Section 302 lead with Section 109 and the sentences of death passed against the two appellants must be set aside, and there must be substituted therefore the conviction of Phulmani u/s 304A, Indian Penal Code, and of Sugar u/s 304A read with Section 109, They are sentenced to rigorous imprisonment for two years under those sections respectively.
Bucknill, J.
15. I agree.
