## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
## **&**
**THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941 CRL.A.No.1107 OF 2014(A)**
**AGAINST THE JUDGMENT IN SC 364/2013 DATED 07-02-2014 OF ADDITIONAL SESSIONS COURT-II MAVELIKKARA**
**AGAINST THE ORDER/JUDGMENT IN CP 104/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, MAVELIKKARA CRIME NO.121/2007 OF CBCID, KOLLAM, KOLLAM**
## **APPELLANT/1st ACCUSED:**
**SIVAPRASAD @ ARAVINDAN S/O SANKARA NARAYANAN, AGED 30 YEARS, VETTUKULATHIL THEKKETHIL VEEDU, BARANIKKAVU MURI, KATTANAM VILLAGE, ALAPPUZHA DISTRICT, FROM POROONNIL KIZHAKKETHIL, BARANIKKAVU MURI, KATTANAM VILLAGE, ALAPPUZHA DISTRICT, (PRESENTLY LODGED IN CENTRAL PRISON)**
**BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SMT.RESHMI JACOB**
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## **RESPONDENT:**
**1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. (DYSP, CBCID, H AND H WING-1, SUB UNIT, KOLLAM)**
## **SMT.S.AMBIKADEVI, SPL.PP FOR ATTROCITIES AGAINST WOMEN AND CHILDREN**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2307-2019, THE COURT ON 23-01-2020 DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
Dated this the 23[rd ] day of January, 2020
## _**Shaffique, J.**_
Appeal is filed by the first accused in SC No.364/2013 challenging the judgment dated 7/2/2014 by which the accused was convicted for the offence u/s 302 of I.P.C., and sentenced to undergo imprisonment for life and to pay a fine of `2 lakh. Though three other accused were tried along with him, they were all acquitted.
2. The prosecution case as borne out from the record reveals that Girija Kumari, who was married to the first accused/appellant died due to consumption of poison. Her marriage with the first accused was on 6/1/2006. After the marriage, they were living in a rented house and according to the prosecution, accused 1 to 4 were harassing and treating Girija Kumari with cruelty with an intention to take all her gold ornaments. The first accused lost his job and he was persuading Girija Kumari to commit suicide. Prosecution further alleges that
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accused No.1 had given a banana fruit mixed with furadan (a poisonous pesticide) to Girija Kumari and he also pretended that he would eat the said fruit mixed with furadan. Girija Kumari swallowed the same, but the first accused did not do so. Girija Kumari was taken to the hospital where she died due to consumption of poison. Charge came to be filed against all the accused invoking Sections 498A and 302 r/w S.34 of I.P.C.
3. In order to prove the prosecution case, PW1 to PW42 were examined, Exts.P1 to P67 were the documents relied upon and MO1 to MO8 were identified. Defence relied upon Exts.D1 to D5 documents.
4. On questioning under section 313, the first accused denied all incriminating circumstances against him. He filed a written statement under section 313(5) of Cr.P.C., interalia stating that he did not purchase furadan, on 19.5.2006 and 20.5.2006 he was at Kayamkulam in connection with his job. On 20.5.2006, by noon, he came home for lunch and saw his wife lying unconscious. Immediately he took her to the Hospital. He denied having written any suicide pact. After completing the procedural formalities, the trial Court convicted the first accused
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as stated above and the other accused were acquitted.
5. Learned counsel for the appellant Sri.Renjith B. Marar contended that it is a clear case of suicide and though offence u/s 498A was charged, all the accused were acquitted for the said charge. It is pointed out that the first accused himself had taken Girija Kumari to hospital. If he had any intention to commit murder, he would not have taken her to the hospital. That apart, there is no evidence to prove that the accused had purchased furadan and it was administered to Girija Kumari. Court below however had placed reliance upon irrelevant materials and had convicted the accused which is liable to be interfered with. In a case which rests absolutely on circumstantial evidence, when there is suspicion regarding the nature of crime, the Court should have given the benefit of doubt to the accused. It is argued that at any rate, question of culpable homicide amounting to murder does not arise at all in the factual aspects involved in the matter. Even according to the prosecution, the accused was instrumental in Girija Kumari consuming poison. But, there is no case that accused had forcibly administered any poison to Girija Kumari. Under such circumstances, at any rate, an offence u/s 302 is not
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made out. Learned counsel placed reliance upon the following judgments:-
(i) _**Rajesh v. State of Kerala**_ (2007 (4) KLT 1052). This was a case in which Division Bench of this Court held that if there is a suicide pact between the accused and the deceased and one of them dies, the other cannot be convicted for offence u/s 302 of I.P.C. and can be convicted only for offence u/s 304 Part I of IPC.
## (ii) _**Sharad Birdhichand Sardar v. State of**_
_**Maharashtra**_ [(1984) 4 SCC 116]. This is a case in which death was on account of poisoning and the accused was charged with offence u/s 302 of I.P.C. The Apex Court held at paragraph 167 as under:-
_“167. The comment made by the High Court appears to be frightfully vague and absolutely unintelligible. While holding in the clearest possible terms that there is no evidence in this case to show that the appellant was in possession of poison, the High Court observes that this fact may be proved either by direct or indirect (circumstantial) evidence. But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant was in possession of poison. If the Court seems to suggest that merely because the_
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_appellant had the opportunity to administer poison and the same was found in the body of the deceased, it should be presumed that the appellant was in possession of poison, then it has committed a serious and gross error of law and has blatantly violated the principles laid down by this Court. The High Court has not indicated as to what was the basis for coming to a finding that the accused could have procured the cyanide. On the other hand, in view of the decision in Ramgopal case [(1972) 4 SCC 625 : AIR 1972 SC 656] failure to prove possession of the cyanide poison with the accused by itself would result in failure of the prosecution to prove its case. We are constrained to observe that the High Court has completely misread and misconstrued the decision in Ramgopal case [(1972) 4 SCC 625 : AIR 1972 SC 656] . Even prior to Ramgopal case [(1972) 4 SCC 625 : AIR 1972 SC 656] there are two decisions of this Court which have taken the same view. In Chandrakant Nyalchand Seth case [ Criminal Appeal No 120 of 1957, decided on February 19, 1958] this Court observed thus:_
_“Before a person can be convicted of murder by poisoning, it is necessary to prove that the death of the deceased was caused by poison, that the poison in question was in possession of the accused and that poison was administered by the accused to the deceased. There is no direct evidence in this case that the accused was in possession of potassium cyanide or that he administered the same to the deceased._ ”
(iii) _**Vijay Alias Gyan Chand Jain v. State of M.P.**_ [(1994) 6 SCC 308]. This was a case in which it was held that
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Exception 5 to S.300 I.P.C. must receive a very strict and not a liberal interpretation and in applying the said exception, the act alleged to be consented to or authorised by the victim must be considered with a very close scrutiny. Reference was also made to the judgment of a Full Bench decision of the Calcutta High Court in _**Queen Empress v. Nayamuddin**_ [ILR (1891) 18 Cal 484] _._
(iv) _**Narendra v. State of Rajasthan**_ [(2014) 10 SCC 248]. This is also a case in which the Apex Court considered the Exception to S.300. In this case, the lady was stabbed with injuries and she succumbed to the same. At the same time, the accused was also found with stab wounds on his abdomen. He was convicted under S.302 of I.P.C. The explanation of the accused was that he acted in furtherance of the suicide pact. Question considered was whether the homicide falls under Exception 5 of 300 of I.P.C. and whether the conviction of the appellant is to be modified u/s 304 Part I of I.P.C. The Apex Court held that the death of the deceased was in furtherance of an understanding between them to commit suicide and the consent of the deceased and the act of the accused falls under Exception 5 of S.300 I.P.C. Therefore, he is guilty u/s 304 Part I of I.P.C.
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6. Learned Public Prosecutor Smt.S.Ambika Devi would argue that this is a clear case in which the accused had deliberately given poison to his wife. There is enough circumstantial evidence to indicate that he had procured poison and in the guise that he would also consume poison, he had forced his wife to consume poison and he had the criminal intent to ensure that his wife is killed. He had no intention to commit suicide, whereas, by stating so, he prompted his wife to consume poison, which is evident from his own conduct and the facts and circumstances involved in the matter.
7. Before proceeding further, let us have a brief
understanding of the evidence available in the case.
8. PW1 is the father of deceased. He deposed that all the accused had with a common intention killed his daughter by poisoning. He had come to know about the fact that she had consumed poison on 20/5/2006. When he reached the hospital, he knew that his daughter had died. He enquired about it and he understood that the accused had demanded that her ornaments should be pledged and since she did not give the same, they had a quarrel pursuant to which she consumed poison. He had given
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Ext.P2 First Information Statement (FIS) to the police on 20/5/2006.
9. PW2, Sakunthala, is a relative of deceased. She deposed that at the time of marriage, Girija Kumari had 31 sovereigns of gold ornaments. Girija Kumari used to complain about her husband's mother and sister and without her consent, her gold ornaments were being pledged.
10. PW3, Sarala, is a neighbour of the accused. She turned hostile to the prosecution. PW4 also turned hostile to the prosecution.
11. PW5 is the wife of one Anil Kumar, who is doing business in Fertilizer, Pesticides and Insecticides under the name Agro Sales. She used to sit in the shop while her husband is away. She identified the first accused and deposed that he had purchased the pesticide 'furadan' on 19/5/2006. First accused purchased 50 grams of 'furadan' and no bill was given.
12. PW6 is Gopalakrishnan. He knew the first accused. He turned hostile to the prosecution. PW7 Sheela deposed that she knew the first accused and she deposed that the accused was a
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daily wage conductor in KCT. He had not come for job after his wife's death and she heard that both of them had consumed poison.
13. PW8, Sivaprasad, is the clerk of KCT Office. He knew the first accused and that the first accused was a Conductor in KCT for sometime. He heard that first accused and his wife had consumed poison. He had gone to the hospital. He understood that first accused's wife died and first accused was under treatment.
14. PW9, Krishna Pillai, is a witness to Ext.P11 mahazar by which police had prepared the mahazar of marriage register. PW10 Mariyamma has issued Ext.P12 marriage certificate of the first accused and Girija Kumari. She was the Panchayat Secretary at the relevant time. PW11 K.B.Sanil Kumar was the Branch Manager of SBT, Malayalappuzha Branch. He proved Ext.P13 seizure mahazar pertaining to an application submitted by the 4[th] accused to the State Bank of Travancore, Kurathikode Branch. PW12 is Mohanakumar, Branch Manager of Kerala State Financial Enterprises, Chengannoor Branch. He is a witness to Ext.P14 in which the police had recorded the details of the documents
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maintained in the KSFE Branch. PW13 Rejitha proved the treatment records Ext.P15 pertaining to Aravindan (A1). PW14 is Lal Kumar who was a peon of KCT. He is a witness to Ext.P16 mahazar. PW15 Gopi is a witness to Ext.P17 mahazar. PW16, Reghu @ Sivaprasad, turned hostile to the prosecution.
15. PW17, Dr.Sivasuthan had conducted autopsy on the deceased. Ext.P18 is the post-mortem certificate. He opined that there was no injury on the body of the deceased and deposed that death was on account of poisoning. He had also sent the viscera for chemical analysis. During cross-examination, he stated that he saw violet granular materials along with food materials in the stomach. According to him, the chemical nature of the poison can be ascertained only after receipt of the chemical analysis report.
16. PW18 is Dr.Satheesh Chandran. He examined the first accused and treated him. He was admitted with history of 'furadan' consumption as part of suicide pact with his wife. He deposed that he found that the physical findings were normal, but since the history of consumption of furadan was mentioned, he had written the diagnosis as “OP poison”. He gave necessary
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treatment. Pupil size was being watched. He was given stomach wash. Stomach wash contents were asked to be kept secured. On the 3[rd] day, the treatment of first accused was reduced and he was asked to take oral fluid. On the same day, he developed seizure (fits). He was seen by other physicians and he started necessary treatment for the said condition. He was being treated for epilepsy earlier and he discontinued medicine for the last three days. He was discharged on 24/5/2006. Doctor further deposed that he did not see any sign of poison consumption during treatment. The case sheet is marked as Ext.P15. Stomach wash was taken and forwarded for chemical analysis. During cross-examination he stated that at the time he was brought to the hospital, he was not unconscious.
17. PW19 is Jacob. He is a witness to Ext.P19 mahazar which by which Ext.P15 case sheet of first accused was seized by the police. PW20 is Reji Kumar. He is a witness to Ext.P20 inquest report. PW21, Thomas, was the Secretary of the Bharanikkavu Grama Panchayat. He issued Ext.P21 certificate relating to the house in which the accused and deceased were residing. PW22, R.P.Madhavan, had prepared the inquest report, Ext.P20. PW23
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Rajendran was the Special Village Officer. He stated that he had not prepared the sketch plan whereas it was prepared by Bharanikkavu Village Officer, Sri.G.Radhakrishna Pillai.
18. PW24 Sulekha was the Assistant Director, Regional Forensic Lab, Thrissur. She proved Ext.P22 report regarding the handwriting of questioned documents. The conclusions are marked as Exts.P23(a) and P23(b). The questioned document is Ext.P3. She deposed that the standard writings in Exts.P4(a) and P4(b) were written by the same person who had prepared Ext.P3.
19. PW25 is S.Binu. He prepared Ext.P2, FIS and registered Crime No.128/2006 u/s 174 Cr.P.C. The FIR is marked as Ext.P25. PW26 was the ASI of Chengannur Police Station who had handed over the dead-body to PW1 after post-mortem.
20. PW27 was working as Scientific Assistant - Documents, and was in the charge of Assistant Director on 4/3/2011. He had examined Ext. P10 series, P27 and P28 series and Ext.P26 is his report. He deposed that the questioned handwriting was similar to the standard handwriting.
21. PW28, Mohanan Pillai is a witness to Ext.P29 mahazar.
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PW29 was the Branch Manager of KSFE Branch at Kayamkulam. She produced the attested copy of Page No.131 of the gold pledge register dated 19/5/2006 which is marked as Ext.P30. The application submitted by first accused is marked as Ext.P31 series. Three gold bangles weighing 18.300 grams were produced and identified as MO1 to MO3.
22. PW30, Saru George, was the Branch Manager of Thiruvalla East Co-operative Bank. She identified Ext.P32 certificate which indicates that PW1 had taken a loan of `1 lakh. Loan account was closed on 3/01/2009.
23. PW31, N.Mohandas, was the Branch Manager of SBT, Kuruthikkad Branch. He submitted the loan application submitted by Sri.K.Harikumar for gold loan on seven occasions. Applications are marked as Ext.P33 series.
24. PW32 was the Chief Manager of KSFE, Ottappalam. She identified Ext.P30 and P31 series, the loan register, the loan applications and the certified extract of the pledge register. She is a witness to Ext.P14.
25. PW33 was the Branch Manager of Kollam Iravipuram
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branch of SBT. He identified Ext.P33 series by which K.Harikumar had submitted application for gold loan.
26. PW34 was the investigating officer who took over investigation in Crime No.128/2006. He identified his report Ext.P34 by which the offence was converted u/s 302 r/w S.34 of I.P.C. He deposed that when he questioned Dr.Satheesh Chandran and verified the suicide note. It was found that it was a case of murder and accordingly he had submitted the report. PW35 was the Dy.S.P. of Crime branch. He took over investigation from 20/5/2011 to 10/7/2011. He had collected the case sheet on the basis of mahazar. Ext.P15 is the case sheet and Ext.P19 is the mahazar. PW36 was the Dy.S.P. of Police during the relevant time. He prepared Ext.P36 mahazar on the basis of which, letter, a ball pen, a pillow, a black dhoti, a double dhoti and a towel were recovered and produced. He identified Ext.P3 series papers of suicide note. MO4 to MO8 are the material objects. The property list is Ext.P37. During his enquiry, it was observed that an offence u/s 498A and 306 I.P.C. has been made out. He filed Ext.P38 report before Court.
27. PW37, Radhakrishna Pillai was the Village Officer who
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prepared the scene plan.
28. PW38, Mohandas was the booking clerk of KCT, Kayamkulam office. He identified A1 and also the initials of first accused in Exts.P7, P8 & P9. He also identified Exts.P10(a) to P10(k) and according to him, it was prepared by the first accused.
29. PW39 is Dr.P.Jaya, who was working as Chemical Examiner, Chemical Examination Lab, Thiruvananthapuram. She examined the viscera of Girija. Ext.P41 is the report. Item 1 to 4 contained stomach and part of intestine. Item no.2, part of liver and kidney, item no.3 contained blood sample and item no.4 contained saturated saliva. She deposed that a poisonous compound, 'Carbofuran' was detected in item nos. 1, 2 and 3. according to her 'Carbofuran' is the toxic ingredient of the pesticide sold under the trade name 'furadan'. No poison was detected in item No.4, ie saliva. The stomach wash of Sivaprasad @ Aravindan (first accused) was also examined and Exts.P49 and P50 are the reports. No poison was detected in the stomach wash.
30. PW40 was the Crime Branch Dy.S.P. from 15/5/2008 to 31/3/2011. As part of investigation, he obtained the handwriting
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comparison in the suicide note with standard writings in Ext.P4, note book produced by Girija Kumari's father.
31. PW41 is Abdul Rasheed who conducted investigation from 4/9/2010 to 21/5/2011. PW42 continued the investigation from 11/8/2011 till 31/12/2012 and submitted the final report.
32. PW17, the Doctor who conducted autopsy, was of the _prima facie_ opinion that death of Girija Kumari was on account of consumption of poison. Her visceral parts were sent for chemical analysis and PW39 had given Ext.P49 report stating that the chemical found in the internal organs of the deceased was 'Carbofuran' which according to her is the toxic ingredient of the pesticide sold under the trade name 'furadan'. Therefore, there cannot be any dispute about the fact that the deceased Girija Kumari died on account of consumption of 'furadan'.
33. The only question is whether the accused had deliberately administered 'furadan' on the victim. Ext.P3 and P27 together forms the suicide note. Expert evidence in the form of testimony of PW24 and PW27 supported by Ext22 and Ext26, reports prove that Ext.P3 was written by the deceased and
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Ext.P27 by the first accused. Even in Ext.P3 there is a note by the first accused, which indicates that he was intending to commit suicide. It was written by the couple on 19.5.2006.
34. Prosecution case is that after having prepared such a suicide note, though the deceased consumed poison, the first accused did not consume poison, which by itself indicates that he had no intention to commit suicide, whereas he had plotted a device to ensure that his wife dies on her own. The intention to commit murder is very much evident, and the fraudulent method planned by him is evidence of a culpable mind.
35. Exhibit P15 is the case sheet of the 1[st] accused, while he was treated by PW18. In the evidence of PW18, he stated that the 1[st] accused was admitted in the hospital with the history of furedan poisoning as part of the suicide pact with his wife. But on examining the 1[st] accused, he found that all the symptomatic parameters were normal. There was no sign of poisoning. The stomach wash of the 1[st] accused was collected and sent for chemical analysis. PW39 had examined the same and Exhibit P50 is the report. She deposed that the stomach wash of the 1[st] accused did not contain any poison. From the aforesaid evidence,
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it is clear that the accused did not consume poison though his wife consumed poison.
36. There is evidence in the case in the form of oral testimony of PW7, PW8, PW14 and PW38 that the 1[st] accused was employed as a conductor in KCT bus service and later he lost his job.
37. The suicide note was prepared on 19.5.2006. There is no evidence regarding the date on which she consumed poison. The first accused in his statement underSection 313(5) has stated that he had taken the deceased to the hospital on 20.5.2006 by noon. It is evident that the accused himself had given a picture that both of them had consumed poison. In fact, the actual date and time of consuming poison is not evident. But, the involvement of the first accused is evident from the fact that he alone had purchased furadan, which fact is supported by the testimony of PW5. Defence has a contention that PW5 cannot be believed. Even if PW5’s evidence is eschewed, still the fact that presence of furadan was found in the viscera of the deceased, by itself indicates that furadan was the poisonous substance that caused the death of deceased. The accused had denied having
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prepared the suicide note. That he had consumed poison based on the suicide pact was informed to the Doctor, while he was being treated. The first accused alone can explain as to what happened between him and the deceased after preparing the suicide note Exts. P3 and P27. There is no valid explanation for the same, whereas the first accused denied having prepared such a note. But the prosecution was able to prove the handwriting of the deceased in Ext.P3 and the accused in Ext.P27, by examining the hand writing experts.
38. That the accused was in a financial strain is evident from the fact that he had lost his job and had pledged gold ornaments belonging to his wife. But that by itself may not be a motive to commit murder. It could be seen that prosecution could not prove the offence under Section 498A of I.P.C. Prosecution case itself is that the deceased agreed to commit suicide on the belief that both of them would commit suicide. Whereas the accused was misrepresenting to the deceased that he would commit suicide. Hence the prosecution case itself is that consent of the deceased to commit suicide is not a valid consent and will not attract Exception 5 to Section 300 of IPC.
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## 39. Exception 5 to Section 300 of IPC reads as under:
_“Culpable homicide is not murder when the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent”_
## 40. The Apex court in _**Narendra**_ (supra) held at paragraph
## 14 as under-
_“14. To attract Exception 5 to Section 300 IPC, there must have been free and voluntary consent of the deceased person. The onus of proving consent of the deceased person is on the accused. Exception 5 to Section 300 IPC must receive a strict and not a liberal interpretation. In applying the said Exception, the act alleged to be consented to or authorised by the victim must be considered by a close scrutiny. The court must in each case consider the evidence and the surrounding circumstances while considering the question of consent.”_
41. The question therefore to be considered in the case is whether the consent of the deceased to commit suicide was a valid consent or not. As pointed out in _**Narendra**_ (supra), we have to analyse the case as a whole to ascertain whether the consent given by the deceased was actuated by misrepresentation or fraud, with an intention to ensure that the deceased consumes poison and eventually dies.
42. Evidence in the case does not disclose any matrimonial
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cruelty. That the accused has lost his job and was in a financial strain is evident. That the accused was suffering from epilepsy is also evident. All these factors would have contributed to the couple deciding to commit suicide. But what was the reason for the accused failing to consume 'furadan' is the moot question. His stomach wash on chemical analysis did not contain any part of furadan or any other poisonous material, which indicates that he did not attempt to commit suicide. Even in the statement filed under section 313(5), the first accused does not have a case that he had consumed furedan. The first accused was conscious when he reached the hospital and the Doctor was informed that he had consumed poison. But he had no symptoms of poison consumption, and that apart, his stomach wash when examined in the lab was free from any form of poisoning. The aforesaid conduct of the accused itself proves, that the suicide pact was a farce and the consent to commit suicide from the deceased was obtained by misrepresentation. His intention was apparently to do away with his wife.
43. In the light of the above factual circumstances, we don't think that the trial court had committed any error in finding
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the first accused guilty. The sentence imposed on him is also commensurate with the nature of crime.
Appeal fails and is dismissed.
**Sd/-**
**A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR** Rp True Copy **JUDGE** PS to Judge