1. This is an appeal from jail by one Chinna Hanumakka who has been convicted by the learned Sessions Judge of Bellary of the murder of her husband and sentenced to transportation for life. Mr. Basi Reddi has very kindly consented to act as amicus curia and we are grateful to him for his presentation of the case.
2. The prosecution case was that the appellant murdered her husband Thippanna on the night of the 29th of January last by poisoning him, the method of poisoning being by putting aconite powder into his evening meal. There can be no doubt, as found by the learned Sessions Judge, that this powder was introduced into the deceased's food on that occasion. Although the appellant denied everything in evidence against her at the trial, the evidence shows conclusively that she introduced the poison into her husband's food. She made a statement to that effect not only to several of the witnesses on the same night, but also in a formal statement under Section 164 of the Criminal Procedure Code, before the Sub-Magistrate of Adoni on the 3rd of February, and now in her petition from jail she has given up her futile attempt to maintain that the whole case against her is false, and she has reverted to her original plea. Her case however is that although she introduced the aconite powder into her husband's food she did so with no intention to kill him. In fact she did not know that the effect of the aconite powder would be to cause his death. She says that it was given her by her own sister and she used it in order to recapture her husband's failing affections. The further evidence in the case is that the husband and wife were not living happily together. In fact the husband suspected his wife of being fond of her maternal uncle one Bhimanna. The deceased in this case was a man considerably older than the appellant and in a weak state of health. As we have stated, there is really no doubt whatever in this case that the poison was administered by the appellant. The only difficulty in the case arises, and this was realised. by the learned Judge himself to be a serious difficulty, with regard to the intention of the appellant.
3. Mr. Basi Reddi asks us to take her statement before the Sub-Magistrate as the real truth in this case. There she says that her elder sister gave her a love potion and told her, that if she administered this to her husband he would be kind to her and subservient. She accordingly mixed it with his food. She did not know that her husband would die. This statement is, except in one important particular in conformity with what the witnesses say she told them. They agree that she told them that she did not expect her husband to die or know he would die, but that she gave the drug in order to make him ' mad.' There was no further investigation apparently at the time when the evidence was given as to what exactly the witnesses understood by the word ' mad.' It is now argued that what the appellant really must have meant at that time was only that she wanted to make her husband madly in love with her. The learned Judge discusses this matter in the final paragraph of his judgment. He points out that it is not easy to say that the appellant would be aware of the properties of the powder of which she had come into possession and that it might be possible that she did not know that it is so dangerous. However he seems to think that all possibility of accepting the view that she merely wished to use the powder as a love potion is ruled out by certain evidence given by P.W. 1. P.W. 1, it must be mentioned, is the wife of the deceased's brother. She and her husband were living in the same house as the deceased and the appellant and the house had not been actually divided by any walls even though the deceased and his brother had become separated in status. Her evidence is that two years before this offence the deceased had brought to her husband and herself some powdered glass mixed with chilly powder and complained that this must have been introduced into his house by his wife the appellant. She goes on to say that the appellant was rebuked and chastised for her conduct in procuring this dangerous material and the deceased was advised to get rid of her. The accused is said to have admitted that she Intended to poison her husband with the glass and the deceased is said to have refused to send her away because he had no one else to cook for him.
4. P.W. 2 the husband of P. W. 1 makes no reference at all to this incident. The learned Judge holds that in all probability P.W. 2 was doing his best to tone down the case against the appellant and that P.W. 1 could not join in this purpose because she herself might feel that unless she told the whole truth suspicion might fall upon her as being the only other woman living in the same house. He therefore accepts the evidence of P.W. 1 as true and does not consider it in any way invalidated by the omission of P.W. 2 to corroborate it. We have considered this evidence carefully and are of opinion that it would be unsafe to accept it. There is no definite evidence to that effect, but it is not improbable, we think, that P.W. 1 and the accused may not have been on particularly good terms. We think the story is inherently improbable. The appellant was 18 years of age at the time of the offence and would therefore be only 16 when this incident is said to have occurred. We think it very unlikely that a girl of that age, even though she might have fallen in love with another man, would have been so depraved as to have conceived the idea of poisoning her i husband by the use of powdered glass. It is perhaps significant also in regard to the animus of P.W. 1 that in cross-examination she does improve upon what she has stated in the examination in chief. There she merely stated the facts; but in cross-examination she goes on to say that the accused herself mentioned that she intended to poison her husband. That fact again is unlikely and it is still more improbable; we think, that the deceased, confronted with this attitude on the part of his wife, would have tamely consented to her remaining with him and going on cooking his food. We do not think therefore that we can rely upon this incident as any indication o of the intention which the appellant had at the time of the offence two years later. We think the probabilities in this case are in favour of the view that the appellant did not intend to kill her husband but did intend to obtain some kind of domination over him. We think the statements of the witnesses and the use of the word ' subservient ' in her own statement to the Sub-Magistrate suggest that what she really wanted to do was not so much to make her husband love her instead of hating her, but to deprive him of his will power and make him a kind of doting fool who would do anything she wished and be completely under her domination. That is an intention of course which cannot possibly result in any conviction for murder. But we consider that Section 328 will apply to the facts of this case. Section 328 renders punishable any one who administers to any person any poison with intention to cause hurt to such person, and in the view which we have taken there can, we think, be no doubt that the intention of the appellant was to cause bodily infirmity to the deceased. The definition of hurt in Section 319, Indian Penal Code, runs thus:
Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
We are unable to accede to the view that by the word ' mad ' which she used on the night of the offence, the appellant merely meant that the husband was to be madly in love with her. We think the word must be taken more literally as meaning that in one sense at least he must lose his mental powers and fall completely under the thumb of the appellant. It is significant in this connection that P.W. 2 has elaborated the statement of the appellant at the end of bis examination in chief. He there says that on the night of the offence the appellant said she had put the poison in her husband's food to make him mad ' so that she might go back to her village.' This is another possible view of the case, viz., that the deceased might be rendered completely incapable of interfering with the conduct of the appellant in carrying on intrigues with any one else whom she liked.
5. For the reasons which we have given we are unable to agree with the learned Sessions Judge in holding that the evidence in this case proves beyond reasonable doubt that the appellant intended to cause the death of her husband. We accordingly acquit her of the offence under Section 302, Indian Penal Code and find her instead guilty of an offence under Section 328. We do not consider that any but a lenient sentence is required in this case in view of the fact that the appellant has already gone through the mental anxiety of being tried on a charge which might have involved her being sentenced to death. We are of opinion that a sentence of six months' rigorous imprisonment will be adequate to meet the ends of justice, and order accordingly.