1. In this case there is no doubt whatever about certain facts. One Chenappa died shortly after eating food prepared by his wife. It was found that he had died of arsenic poisoning. Then there is really no substantial doubt about these further circumstances: that the poison was given to Chenappa's wife by her mother and that she mixed it with the food she gave to her husband. The wife was charged with the murder of her husband and her mother was charged with abetting the murder.
2. The case was tried by a Jury in Belgaum. In the course of his charge to the Jury, the Judge pointed out that although there was no separate charge under Section 304-A of the Indian Penal Code, it was open to the Jury to find a verdict of 'guilty' of an offence under Section 304-A and an acquittal under the charge of murder. With that direction in their minds the Jury came to the conclusion by a majority of three to two that the women were not guilty of any offence whatever. The Judge found himself unable to accept this verdict and has referred the case to us.
3. It is unnecessary to go into the evidence in detail, because it really is quite conclusive as to the circumstances I have mentioned. But at a very early stage in the case, that is to say, in their first statements to the Magistrate, the women maintained that the stuff which had been administered to Chenappa was a kind of medicine used as a love potion. If this is so, admittedly there is no case of murder, though there may be a case under Section 3O4-A. The Judge has come to the conclusion that it is a case of murder. One of the principal reasons which influenced his decision was that the day after the death of the man, the wife had made a statement to various of the witnesses which they regarded as an admission that she had intended to kill her husband, and the Judge came to the conclusion that these witnesses were not only telling the truth to the best of their ability but also had retained a correct impression of the purport of what the woman said. I do not doubt that the witnesses, according to their lights, were deposing truly. But I do gravely doubt whether they had retained a correct impression of what the woman actually said. The recollection of a conversation, when it is not corrected by some notes or account written down at the time or shortly afterwards, is a very tricky thing; and in the case of witnesses of the class of those with whom we are dealing, the recollection or supposed recollection is almost inevitably largely coloured by what transpired between the occurrence of the conversation and the recital of the conversation by the witnesses, In this case, for instance, I can quite readily conceive that what the woman said was that she had given medicine to her husband without either implying or suggesting that she knew that it was poison. Yet in the light of the events which subsequently came to knowledge, the witnesses may have quite honestly believed that what the woman really had implied, perhaps even said, was that she had intended to poison her husband. I think therefore, that that particular which was relied on by the Judge does not really exist in the form in which he supposes.
4. Then he finds that the proved facts are more compatible with the theory that the woman wished to get rid of her husband than that she wished to stimulate his affection for her. Here again I do not agree. The facts which are indicated by the evidence are considerable disagreement and friction between the husband and wife which may have been due, at least in part, to the impotence of the husband. Of course, we can have only a fragmentary and a very imperfect knowledge of what the relations between husband and wife really were. We never learn anything approaching the whole truth in these cases But the suggestions in this particular case do not seem to me to point at all definitely to any wish on the part of the wife to get rid of the husband. These are the principal circumstances which are believed to tell against the wife on the charge of murder.
5. A third important circumstance is that she was in possession of very nearly 250 grains of arsenious oxide and it was from arsenic poisoning that her husband died. Five grains of this stuff is roughly speaking, enough to kill any ordinary man. How this woman came to be in possession of enough of this deadly stuff to kill about fifty people is quite unintelligible, and, looked at as a matter of pure conjecture, it seems to me almost as unintelligible on the theory that she wished to poison her husband as it is on the theory that she wished to stimulate his affections. On the other hand, the fact-and it is a fact-that the wife gave the remnants of the food to their cow which also died of arsenic poison suggests that she did not know the deadly effects of the stuff she had used.
6. Therefore it seems to me that there is no good reason for disturbing the verdict of the majority of the Jury in so far as it is a verdict on the charge of murder. But, as I have said, there can be no doubt in this case that this deadly stuff was deliberately administered to the man by his wife with the connivance of her mother who had procured the stuff in some way and given it to her daughter, and, it seems to me, that to deal in this way as a love potion with a most deadly form of poison, is to act both rashly and negligently in whatever walk of life the person so doing may be. I think that an offence under Section 304-A of the Indian Penal Code is quite clearly made out by the facts proved.
7. We have had a somewhat lengthy and not an uninteresting argument as to whether Section 307 of the Criminal Procedure Code permits us to convict these persons under Section 3O4-A of the Indian Penal Code because of the fact that there was no charge under that section at the trial. It is contended on behalf of the prosecution that the terms of Sections 236 and 237 of the Criminal Procedure Code enable us to record this conviction. Whatever may be said about Section 238 of the Code, I do not feel any doubt that under Sections 236 and 237 we are empowered to record such a conviction. It was beyond question a doubtful matter in this case from the very beginning whether the facts, which the prosecution would be able to prove, would establish more than the administering of the poison in the way I have mentioned. It was doubtful whether they would go so far as to prove that poison was administered with the intention of killing. It would, therefore, it seems to me, quite clearly have been open to the prosecution to bring these persons to trial on charges both of murder and under Section 3O4-A of the Indian Penal Code. If that were so, it follows from the provisions of Section 237 of the Criminal Procedure Code that although the charge under Section 304-A of the Indian Penal Code was not formally made it was open to the Court to convict under that section.
8. We do convict these women, the first Ramava kom Chenappa under Section 304-A of the Indian Penal Code and the second Balava kom Shivbasappa under the same section read with Section 109 of the Indian Penal Code, that is, of abetment, and we direct that they do suffer rigorous imprisonment for two years.
9. I entirely agree.