1. The appellant in Cr. Ap. No. 769 was accused 2 and the appellant in Cr. Ap. No. 772 was acoused 1 in S.O. No. 89 of 1940 tried by the learned Sessions Judge of Kurnool. The charge against the accused was that accused 1 at the instigation of accused 2 had murdered Pedda Eangadu, the husband of accused 1, by means of poisoning. The prosecution theory was that the two accused were on terms of illicit intimacy, and that Pedda Eangadu was also incensed against accused 2 because accused 2 was keeping as his concubine the aunt of accused 1. In these circumstances the case was that accused 2 had supplied accused 1 with powdered root of aconite which accused 1 had mixed with the food prepared and served by her to her husband on the evening of 3rd July last.
2. Pedda Eangadu died at about 10 P.M. on 3rd July and there is no reasonable doubt about the fact that he died of poisoning. The chemical examiner certified that 'aconte' was found in some vomited matter sent to him for inspection. This was matter which Pedda Eangadu had vomited some time after he took his evening meal. 'Aconitine' was also found by the ohemioal examiner on some bits of rag which were produced by accused 1 when the Police In-spector (P.W. 10) questioned her on 5th July. We experienced some difficulty over this 'aconitine,' because the works of Medical Jurisprudence and Toxicology to which we have access, state quite clearly that 'aconitine' is an alkaloid extracted from the ropt of aconitum napellus. The root which accused 2 is said to have alleged that he had had in his possession and supplied to accused 1 was called in the vernacular 'Vasanabhi' (Telugu) and this is undoubtedly aconitum ferox, Aconitum napellus is apparently rare in this country but aconitum ferox is said to be very common on the slopes of the Himalayas and in other hilly places. Aconitum ferox, according to the books, contains no 'aconitine' but is the source of an alkaloid known as 'pseudo aconitine.' The treatises also show that these two alkaloids have different chemical compositions. If therefore the chemical examiner's certificate that 'aconitine' had been found in the vomit and on the rags were accurate, it seemed to us that there could be no case of any kind against either of the accused involved.
3. We thought it necessary therefore to take the evidence of the chemical examiner under Section 420, Criminal P. 0. He appeared before us today and gave evidence; and from his evidence it appears that by 'aconitine' he only meant any alkaloid of the aconitine typo derived from any of the poisonous varieties of 'aconite.' The books show that there are many varieties of the plant aconite, that a large number of them are poisonous and that some are not. The evidence of the chemical examiner is that from the roots of the poisonous varieties, alkaloids can be extracted which vary in their chemical composition but have certain toxilogical resemblances and which produce similar pharmacological results. The chemical examiner told us that the tests he is able to apply do not enable him to distinguish between the various alkaloids. They do enable him to say whether the matter submitted to him contains any of the alkaloids of the 'aconitine' type, but the quantities available are so small that it is not possible to distinguish between, for instance, 'aconitine' and 'pseudo-aconitine.' The chemical examiner, we are glad to say, has undertaken for the future to word his certificates more accurately, so that there may be no danger of misunderstanding.
4. There was evidence given by the father and sister of the deceased (P.Ws. 5 and 6) that on 3rd July accused 1 served food to her husband. P.W. 5 says that his son complained of the taste of the food and then accused 1 said that the dholl had been burnt in cooking. She then, it is said, added milk to the food that she had offered to her husband and told him to get on with his meal. Her husband finished his meal and afterwards went out to listen to a story-tiellor who was reciting near a well about ' 70 of 80 yards away from his house. Some time later (the interval is not accurately given-one witness says about half-an-hour, and P.W. 5 says 'the time taken to cook jonna food') Pedda Eengadu came back complaining that his stomach was burning, that his tongue was numb and that he was perspiring all over. After some time he began to vomit and the vomited matter, as already mentioned, was preserved. He died a little later, according to P.W. 5. Before he died, he is said by P.W. 5 to have accused his wife of having given him some drug.
5. For some unexplained reason the Village Munsif was not informed until 6 o'clock the next morning when P.W. 5 made a statement to him which has been recorded in Ex. o, The Village Munsif sent off his report and the Circle Inspector (P.W. 10) received information of the case at 2 p. M. on 4th July when he was at Kunkanur. He reached the village at 5 P. M. and held an inquest. The Inspector also seized the vomited matter and the remains of the cooked food in the house of the accused and had them sent to the chemical examiner.
6. On 5th July the Inspector arrested and questioned accused 2 and afterwards arrested and questioned accused 1; and the main items of circumstantial evidence against both the appellants are derived from the evidence given by the Inspector. He says that accused 2 admitted that he had bought 'aconite' about a year before, that he had powdered it and sent it to accused 1 on the morning of Tuesday, the 2nd July, by the hand of his concubine's son Viranna. Ha said that he had wrapped up that poison in a bit of paper and had then wrapped up that paper packet in a bit of rag which ha had torn off a cloth in his house. He offered to show the cloth and he took the Inspector to his house and produced an old bedshee of which he said was the cloth. He showed also a well on the brink of which he stated he had pounded the aconite to powder, but nothing was to be found there. Accused 1 when questioned told the Inspector that she had torn up into bits the cloth in which the packet of poison had been wrapped and threw the bits in the lane to the south of the house, She took him to the place indicated and produced three bits of rag, M.os. 1, 1-a and 1-b. She also showed the piece of paper in which she said that the poison had been wrapped. These were the bits of rag upon which the chemical examiner found 'aconitine.' P.W.4, the son of accused 2's concubine Obalamma said that he had given accused 1 a packet which accused 2 had given. Some corroboration of his evidence was provided by P.W. 8, Basamma, a little shopkeeper, who says that on that day P.W. 4 spent three pies at her shop. The three pies was P.W. 4's reward from accused 2 for conveying this packet to accused 1. P.W. 5, the father of the deceased, spoke to the illicit intimacy of the two appellants, but his was the only evidence on that point; and it was clear that he was very hostile to his daughter-in-law. He made a statement under Section 164, Criminal P. C., on 14th July in which he said to the Sub-Magistrate:
About two or three months prior to this offence we came to know that Nagamma was in illicit intimacy with Bdiga Ohinna Muneppa (accused 2).
6. In chief examination in the Sessions Court he said:
There is a rumour that accused 2 is on terras of intimacy with accused 1. Twice I found accused 1 and 2 in a compromising situation in the straw yard.
7. But when cross-examined, P.W. 5 said that he had actually seen accused 2 and 1 in the act of illicit intercourse once six months before the death of his son and once two months before. It is clear that the evidence of this witness is not to be safely relied upon. It is noticeable, we think, that in Ex. C, a statement made by P.W. 5 to the village munsif at least 8 hours after his son had died, there is no mention of accused 2 or of any intimacy between accused 1 and 2. It is difficult therefore to say with the learned Sessions Judge that a motive for this crime had been established by this evidence. It appears from Exs. E and F that both the accused made confessions to the Inspector of Police. Accused 2 admitted that he had instigated accused 1 to poison her husband and accused 1 admitted that she had consented to do so. But the contents of these panchayatnamas are of course not evidence and no evidence was given by the Inspector (P.W. 10) or the village munsif (P.W. 9) of any such confes-sions. All that was proved by P.W. 9 and P.W. 10 was that accused 2 said that he had sent aconite to accused 1 and accused 1 admitted that she had reoeived it and had thrown the paper and the rags away.
8. The chemical examiner said after examining M. os. 1, 1a and 1-b and the bed-sheet from which they were supposed to have been torn, that the fabrics were different. The learned Sessions Judge was inclined to disregard this testimony of the chemical examiner on the ground that the chemical examiner is not a textile expert. But before us the chemical examiner has explained that he examined the fragments of these two cloths side by side under a miscroscope and was thereby enabled to see them simultaneously, highly magnified, and to see quite clearly that they were not torn of the same cloth. This is a remarkable thing. Accused 2 appears to have told the Circle Inspector that he had torn the bit of rag in which he wrapped the poison from the bedsheet which he produced from his house; but the chemical examiner in his evidence shows quite conclusively that the bits of rag had not been torn from that sheet. It is difficult to understand what could have been the motive of accused 2 for telling a falsehood on this point; and it is also of course difficult to understand why anybody should have fabricated false evidence on such a point. It is however clear that the statement of the accused to the Inspector of Police was not wholly true-with regard to the cloth.
9. The most important point that the learned Counsel for the appellants have been able to-bring out is that, on the evidence given by the prosecution witnesses, there was a considerable interval between the taking of the food by the deceased and the appearance of the symptoms of poisoning. All the witnesses P. Ws. 5, 6 and 7, are agreed that after he had taken his meal, Bangadu went to the well to listen to the story-teller. As to the time of the appearance of the symptoms, the only evidence is that given by P.W. 7. He says that he had to pass the house of Rangadu on his way to the storyteller and Rangadu joined him. He goes on:
We sat down by the well and listended to the-story-teller for a while. Rangadu then complained that his tongue was getting numb and that his stomach was uneasy and that his head felt heavy. He wanted to go home. I accompanied him.
10. He says in cross-examination that they were at the well for half an hour. There was apparently some interval between the taking of the food and the going of Rangadu to the well; for, P.W. 5 told the Inspector that after he had had his food, his son-smoked a beedi and then went to the well; and the evidence of P. Ws. 5 and 6 also shows that, after Rangadu had gone out, the rest of the family had their meals audi had finished before Rangadu came back. P.W. 6 says that Rangadu and P.W. 7 came-home while they were washing the vessels. Learned Counsel for the appellants have shown us by references to the treatises that, in cases of aconite poisoning, the symptoms of numbness of the tongue and so forth in the mouth come on very quickly, according to Taylor's Medical Jurisprudence (Edn. 9, Vol. 2, p. 735) within three to five minutes. Learned Counsel for the appellants are therefore able to argue that Rangadu could not have got this poison in his food' but must have got it later. Since there was-no poison found in the vessels or in the remains of the food but only in the vomit, this argument has considerable force. On the whole we think that, though there is (as the inquest panchayatdars found) room for suspicion against the wife of the deceased, there is not such reliable evidence against these appellants that we can feel safe in confirming their conviction for Jmurder.
11. The evidence of P.W. 5, as we have already said, is tinged with hatred against his daughter-in-law and he has undoubtedly shown everything that she did in the darkest colours. He was however obliged to admit in cross-examination that when his son was complaining of nausea, his son's wife (accused l) was holding his head. This is in agreement with the statement made by accused 1 herself in the Sessions Court. The learned Sessions Judge has said that this conduct of accused 1 does not positively indicate either that she had murdered her husband or that she had not. It is consistent with her innocence, but it might also be a piece of clever acting, but it is important, because it has a bearing upon the conduct of Eangadu himself. After he came back from the well, convinced that his wife had given him some deleterious drug (as his father says), it is hardly conceivable that he should have allowed his wife to take his head on her lap. This throws more suspicion upon the version given by P.W. 5. We think there are elements of reasonable doubt in this case and we must therefore set aside the conviction of these appellants for the offence of murder and the sentences of death and direct that they be set at liberty forthwith.