Basi Reddy, J.
1. The appellant, Charku Sathiah, who figured as the 1st accused in the court below, was tried along with one Deverpalli Ramaiah, who figured as the 2nd accused, on a charge under Section 302 read with Section 34 I.P.C. which was framed in the following terms :
'That you the said Cheruku Satliiah along with. Deverpalli Ramaiah on the 21st day of September 1957, at 5 P.M. with the common intention to do away with Deverpalli Malliah as there was longstanding land dispute between Deverpalli Ramaiah and Malliah, administered poison to Deverpalli Malliah mixed with sugar, saying that it is 'prasad', as a result Malliali died in the hospital at Ramannapet after 15 days, and that you have thereby committed an offence punishable under Section 302 read with Section 34 I.P.C. and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charge.'
2. A similar charge was framed against the 2nd accused. The learned Sessions Judge has acquitted the 2nd accused and convicted the appellant of an offence under Section 302 I. P. C. and sentenced him to imprisonment for life. The result of the finding of the learned Sessions Judge is that the prosecution had failed to prove the existence of a common intention between the two accused and had also failed to prove that the appellant had administered poison to the deceased Malliah in furtherance of such a common intention.
3. The facts of the prosecution cose lie within a narrow compass and are as fellows: The 2nd accused and the deceased were first cousins and at the time of the occurrence a civil suit between them with regard to certain lands was pending in the Court of the Munsif-Magistrate, Bhongir. The 2ndaccused hoped to get the entire property if he succeeded in doing away with the deceased. The appellant had no motive whatever to do any harm to the deceased but it was alleged by the prosecution that be and the 2nd accused were close Friends and that the 2nd accused had procured poison and induced the appellant to administer it to the deceased through the medium of 'prasad.'
4. It may be mentioned at once that the learned Sessions Judge, after a scrutiny of the evidence adduced by the prosecution to establish the alleged friendship between the two accused, has found the evidence to bo unconvincing and has held that the prosecution has failed to prove that there was any particular friendship between the appellant and the 2nd accused. The learned Sessions Judge has, however, found that the 2nd accused had a Strong motive to do away with the deceased.
5. It is alleged that just before sunset on the 21st September, 1957, the deceased Maliiah who had gone to his field to tend his cattle, left the cattle in the field and returned home in a critical condition with his face all swollen up and complaining of giddiness and burning sensation in the stomach. When questioned by his sister Siddamma (P. W. 1) and his grand-mother Mallamma (P. W. 3), he told them about what had happened in the field; and since his statement forms the bed-rock of the prosecution's case against the appellant, the evidence of P.Ws, 1 and 3 with regard to that statement may be reproduced verbatim.
This is what P. W. 1 deposed:
'Deverapalli Maliiah was my elder brother. He was poisoned by these two accused persons about 5 months back at our chalka, Banda Kadi, just before sun-set. The chalaka is 150 yards from our house. My brother told me in the house. When he came home his face was swollen. I asked him the reason. He said that Sathaiah had given him sugar while Ramaiah was standing by his side. Sathaiah had told my brother that it was 'prasad'; then again he gave some other thing just like sugar and my brother had eaten this. There was some sensation in his mouth. He vomitted. His head was heavy and he felt giddy. He left the cattle there and came home. The deceased had told me all these things. My grandmother was with me who had also heard all these things. I left my grand-mother at home and went to bring the cattle home and I had seen there vomitting substance which was lying at the kadabi field which belongs to my uncle.'
P. W. 3's version is as follows:
''I was living with Devarapalli Maliiah at Areguda. Maliiah died. He was poisoned by the son of his uncle. Devarapalli Ramaiah and Sakal Sathiah. (The witness identified both the accused). They had poisoned him about 5 months back in the Chalka. Mv grandson, the deceased, told me when he returned to the house before sun-set. At the time myself and Siddamma were in the house. When he came he was feeling giddy and had reeling sensation. His lips were swollen and some fluid substance was coming out of his mouth. We asked him what the matter was. He said: 'Sakal Sathiah had given twice sugar saying that it was 'prasad', then asked to bring leaf; on bringing the leaf he had put some sugar on the leaf. Ramaiah was there who was grazing his sheep. The sugar which was on the leaf was eaten by me and there was at once some sort of sensation in the head, then I vomitted.'
Then the winess added this significant assertion as having been made by the deceased:
'Sakal Sathiah thinking that this was due to biliousness ('pitham') gave some grains of rice. I had eaten those; then I came home.'
6. It will he seen from the narration of the story by P. W. 3 that when the deceased complained of an uneasy feeling after having eaten the 'prasad', the appellant thought that it was duo to biliousness and so gave some grains of rice to be taken by the deceased, which the latter did.
7. As the condition of the deceased did not improve, P. Ws. 1 and 3 took him that night to a 'hakim' at Motkur. The 'hakim' (P. W. 4) found the lips and throat of the deceased swollen and some fluid was coming out of his mouth. He was not in a condition to speak. P. W. 4 suspected that the deceased had been poisoned and so gave him injections of sodium theosulphate as also cocoanut-water as an antidote; but that had no effect. The next morning the Police Patcl on information went to the house of P. W. 4 and sent the deceased to the Police Station. From there the deceased was sent to the hospital at Rammannapet where he was admitted on the 24th.
8. The Doctor (P. W. 2) found the patient in a semi-conscious condition and his face was swollen and saliva was dribbling from his mouth and blood also was coming out. He had also purging with blood. The doctor gave him white of an egg, milk and some alkaline mixture. The man, however, expired on 6-10-1957. P. W. 2 conducted the postmortem and found that the intestines and stomach were dark in colour due to poison. He reserved his opinion as to the cause of death and sent the internal organs, namely, stomach, a portion of the intestine and liver to the Chemical Examiner. After receiving the Chemical Examiner's report, P. W. 2 opined that the deceased had died of mercuric poisoning. The Chemical Examiner's report showed that there were traces of mercury in the stomach, kidney and liver of the deceased. There can thus be no doubt that the deceased had died of mercuric poisoning.
9. Some attempt was made by the prosecution to trace the possession of poison to the two accused; but from the possession of the appellant a packet containing copper and sulphate was recovered. The appellant had kept it with him for treating his bullock for some skin disease. According to the prosecution's case, however, what had been administered to the deceased was mercuric chloride. In fact a packet of mercuric chloride was traced to the possession of the 2nd accused; but that can have no bearing on the guilt of the appellant inasmuch as a prior concert and a common design have been negatived by the trial Court by reason of the acquittal of the 2nd accused.
So that all that has been proved against the appellant is that he had given some 'prasad' to the deceased which had been supplied by the 2nd accused, that it contained poison and that it had proved fatal. But a vital link is missing in the prosecution evidence seeking to bring home the guilt to the appellant in that there is no proof direct or circumstantial that the appellant knew that what he had given to the deceased was in fact a poisonous substance. There are no circumstances from which such knowledge may reasonably he inferred. It will be remembered that the case for the prosecution was that the 2nd accused alone had the motive to get rid of the deceased and it was he who had induced the appellant to give the 'prasad' which must have contained the poisonous substance.
10. Unless there is proof of a guilty mind, an essential ingredient of the offence of murder would not have been established; and that is the position here. In other words, there is no proof of meas rea' in this case. As pointed out by the Lord Chief Justice of England in Brend v. Wood ((1946) 110 J. P. 317 at p. 380) :
'It is in my opinion of the utmost importance for the protection of the liberty of the subject that the Court should always bear in mind that unless the statute either clearly or by necessary implication, rules out 'mens rea' as a constitutent part of a crime, the defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind.'
In this case the prosecution has failed to prove the existence of a guilty mind in the appellant.
11. Here the definition of culpable homicide may be adverted to. Section 299 of the Indian Penal Code lays down :
'Whoever, causes death by doing an act 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 he is likely by such act to cause death, commits the offence of culpable homicide.'
Likewise Section 300 I.P.C. makes culpable homicide murder if the act by which the death is caused is done with the intention or knowledge specified in that section. Thus it is not enough to prove that death had been caused by an act of the accused but it must also be established that the act had been committed with the requisite intention or knowledge. It is a common place of the law that the burden of proving such intention or knowledge is on the prosecution; and the contention of the learned Public Prosecutor that the burden is on the accused of showing absence of knowledge that the substance which he had given to the deceased contained poison, is gather startling. In support of his contention the learned Prosecutor sought to rely on Section 106 of the Evidence Act which provides:
'When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him'.
We are clearly of opinion that that provision of law has no relevance to the facts of this case. It does not absolve the prosecution from proving all the essential ingredients of an offence, nor does it cast upon an accused the burden of proving that no crime has been committed. (See Stephen Seneviratne v. The King AIR 1936 PC 289 and Attygalle v. The King, AIR 1936 PC 169).
12. In this context it is useful to refer to the well-known passage in the judgment of the Lord Chancellor (Viscount Sankey) in the case of Woolmington v. Director of Public Prosecutions 1935 AC 462 at p. 481,
'Throughout the web of the English Criminal Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal'.
That is the law in England and that is the law in India too; and no attempt to whittle it down can be entertained; no inroad on its integrity can be countenanced.
13. In the present case we have no hesitation inholding that the prosecution has signally failed toestablish that the appellant had a guilty mind. Theappeal is accordingly allowed; the conviction andsentence are quashed and the appellant is directedto be set at liberty.