095-NLR-NLR-V-49-THE-KING-v.-MUNIANDI.pdf
HOWARD C.J.—The King «. Muniandi
316
[Cotot or Criminal Appeal]
1948Present : Howard C. J., Dias and Nagalingam JJ.
THE KING v. MUNIANDIAppeal No. 2 of 1948 with Application No. 4.S. C. 31—M. C. BaduUa-Haldumulla, 4,178.
Court of Criminal Appeal—Charge of murder—Direct evidence of only one witness—Evidence full of infirmities—Suggestion that he was accomplice—Not put tojury—Substantial doubt as to guilt—Accused entitled to acquittal.
The accused was charged with murder by pouring arsenic into toddy whichhe afterwards gave the deceased to drink. The case for the Crown restedalmost entirely on the evidence of one P who testified that he was presentand watched the accused pouring arsenic into the bottle that contained thetoddy. The defence was that it was P who administered the poison. Theevidence of P was found to be full of infirmities. The trial Judge asked theJury to consider whether P was an accomplice but his charge did not containany detailed examination of his evidence with particular reference to theinfirmities in it. Apart from the evidence of P the evidence against the accusedwas of a purely circumstantial nature which amounted merely to suspicion.
Held, that the Jury had not given the accused the benefit of a grave doubtand that his conviction could not stand.
Appeal, with, application for leave to appeal, from a conviction in atrial before a Judge and Jury.
5. jST- Kulatilleke, for the applioant, appellant.
Boyd Jayasuriya, Crovm Counsel, for the Crown.
Cur. adv. vult.
February 9, 1948. Howard C. J.—
The aooused in this oase appeals from his conviction on a charge ofmurder. It was alleged by the Crown that the accused caused the deathof the deceased by pouring a oaustio solution of arsenio in a oonoentrated
1 (1866) I Q. B. 379.
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HOWARD C. J.—The King v. Muniandi
form into toddy which the accused afterwards gave to the deceased todrink. The case, .for the Crown rested almost entirely on the evidenceof one Pitchamuttu who testified to the faot that he was present andwatched the aooused pouring the arsenic mixture from the bottle PIinto the bottles P5, P6 and P7 that contained toddy. Both the accusedand the deceased were employed by Mr. Andrews, a Mechanical Engineer,living at Diyatalawa. At the trial Mr. Andrews being dead thedeposition made by him before the Magistrate was put in evidence. Hestated that the aooused had been employed by him as house cooly fromJuly 5, 1946. At that time a man oalled Bernard Peter was employedas oook. Bernard Peter was discharged by Andrews on July 26, 1946,as he was suspected as the result of complaints by the accused of havingstolen 6 bottles of beer and the deceased was installed as cook in hisplace. The deceased had previously helped Andrews as an aoting cook.Andrews also stated that in a cupboard of the sideboard he kept a pre-paration of arsenic for preserving skins of animals. On August 1, 1946,he forced open the door of the servants’ room as the key had been takenby Bernard Peter. This was done in the presence of the deceased andthe acoused. In the servants’ room he found the bottle PI standingin a comer with about one-eighth of the contents missing. Andrewsstates in evidence that he told the aocused and the deoeased that thebottle contained poison and they should not meddle with it. Boththe acoused and the deceased lived outside Andrews’ bungalow andleft it at night when the day’s work was over. On August 3, 1946, thedeceased came to Andrews with Pitchamuttu and asked him whetherhe would employ him in the garden. Pitchamuttu was then employedas a garden labourer. According to Andrews the deceased and aocusedappeared to get on with each other. Nor had the latter asked for thepost of cook. Pitohamuttu in his evidence states that on August 3,1946, he was taken at 7 A.ai. by the deceased to work in Andrews’ garden.At 12 noon when he had finished work the deoeased gave him two logsof firewood to take to his house and asked him to bring back two emptybottles. He delivered the firewood to Pottu, the deceased’s wife, andthe latter gave him two bottles (Po and P6) which she washed in hispresence. The deceased on being handed these bottles gave PitchamuttuIts. 5 and asked him to go to Bandarawela and bring two bottles oftoddy. Near the Co-operative Store Pitchamuttu says that he met theaccused. They went at the latter’s request to his house and then tookthe empty bottles and both walked to Bandarawela. Pitchamuttusays he told the .accused that he was bringing toddy for the deceased.They went to a toddy tavern and after drinking 1J bottles purchasedtwo bottles which was put into P5 and P6. The accused, according toPitchamuttu, also purchased two bottles one of whioh was P7. Theythen returned together and readied Andrews’ bungalow about 8 P.M.Pitehamuttu says he handed the bottles P5 and P6 to the deceased.The latter who was working in the kitohen plaoed P5 and P6 on a tableinside a small room adjoining the kitchen. The aocused kept his bottlesinside the kitohen and proceeded to work in the bungalow. Thedeceased said that two bottles of toddy were not enough for him andasked the accused to lend him one of his. The accused then gave himP7 which the deoeased kept with P5 and P6. The deceased then went
HOWARD C.J.—The King v. Muniandi.
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into the bungalow to attend to the dining table. The accused was insidethe small room where the toddy was. According to Pitchamuttu afterthe deceased left the accused brought the white bottle PI containing aliquid with the colour of coconut oil and poured part of the contentsinto each of P5, P6 and P7 and shook the bottles to mix the liquor.Pitchamuttu says the accused brought PI from the direction of thekitchen. Having done this the accused went inside the bungalow toattend to his duties taking PI with him. It was then about 9 f.m.After he had finished his work the deceased came to the kitchen with theaccused. The latter took a bottle of toddy (P7), filtered the whole of itinto a saucepan (P2) and gave the deceased a cup of toddy (P4). Thedeceased drank one cupful of toddy from P7. The accused did not drinkany. Accused then washed P7. What remained in P2 was thrownaway bjr the accused. The deceased, accused and Pitchamuttu left thebungalow together. Subsequently they parted' company, the deceased•going to his house by himself taking P5 and P6 with him. His wifePottu says that the deceased returned about 9 p.m. He poured a littletoddy from P6 and drank it. He immediately started vomiting. Hethen handed a glass of toddy to his son Yelu. Velu said it had a peculiarsmell and should not be drunk. Velu then went to fetch a doctor. Thedeceased was crying out that he had a burning sensation in his stomach.Dr. Misso came and treated him. His condition got worse and at 5 a.m.on August 4 he died. Pottu kept P5 and P6 and handed them to thePolice. The evidence of Pottu is corroborated by that of Velu, the sonof the deceased. The latter also states that on the morning of the 4thhe went with his brother Vadivel to tell Andrews about his father’sdeath and that Vadivel found bottle PI against a -wire post near theKitchen. Velu says he handed Pi to Andrews. Andrews in his state-ment says PI had been emptied of ^ of its contents. The evidence ofDr. Misso was to the effect that he found sjTnptoms of arsenic poisoning.Dr. Nayagam, the District Medical Officer, Haputale, held a post-mortemexamination on August 4, 1946. He took specimens from the deceased’sbody which were sent to the Government Analyst. Dr. Nayagamdiagnosed the death of the deceased as due to arsenic poisoning. Mr.Chanmugam, the Government Analyst, analysed the specimens (P8,P9, P10 and Pll) of the body of the deceased and found arsenic in allof them. PI, P5, P6 ad P7 were also sent to him. He found in PIa caustic solution of arsenic in a concentrated form. He also found acaustic solution of arsenic in P5 and P6. No arsenic was found in P7.
Counsel for the appellant contends that the verdict of the Jury isunreasonable and cannot be supported by the evidence. The caseagainst the accused contained some most unusual features. There wasin the first place no apparent motive. Moreover if the story of Pitcha-muttu is to be believed the accused poured the arsenic solution into thetoddy in his presence. This clothes the story with a mantle of im-probability which makes it all the more necessary to'examine and dissectPitchamuttu’s evidence with the greatest care. According to the latter’sevidence the deceased had consumed the arsenic solution from the bottleP7 at Andrews’ bungalow. He apparently suffered no ill effects fromthis dose. There was no vomiting. On the other hand some time
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later when he drank at his own house some of the mixture from P6, heimmediately felt ill effects, and started to vomit and died eventuallyat 5 a.m. According to the Government Analyst arsenic may takeanything from 6 hours to 24 hours to take effect on the human systemafter consumption. The evidence of Pitchamuttu with regard to theeffect on the accused after he had drunk from P7 at the bungalow doesnot seem to fit in with the evidence of Pottu and Vein as to the effecton the deceased when he drank at his house. In this connection theevidence of Velu as to what the deceased told him is most relevant. Incross-examination he stated first of all the deceased told him he haddrunk some toddy in the bungalow. Asked whether he said to thePolice “ S. Muniandi and Pitchamuttu had asked my father to take thetoddy at the bungalow of Mr. Andrews, but my father had refused totake the toddy and brought the toddy home ” he said “ In the bungalowmy father was asked by Pitchamuttu and Muniandi to drink all thethree bottles of toddy, but my father refused and consumed only a littleand when he did so, these two people asked deceased to drink the restof the toddy in the bungalow, but my father refused and brought therest of the toddy home.” The evidence of Pitchamuttu as to the drinkingby the deceased of the toddy from P7 at the bungalow seems to conflictwith what the deceased told Velu. Moreover what the deceased toldVelu suggests in no uncertain manner that Pitchamuttu was anaccomplice. There are other matters connected with the testimony ofPitchamuttu which throw grave doubt on his veracity. At the Magisterialinquiry he says he did not question accused as to what he put in thetoddy. At the trial he says he did. In the lower Court he says that thedeceased strained and drank the whole contents of P7. At the trial hesays accused strained and the deceased drank one .cupful. Again beforethe Magistrate he says he did not question the accused as to what hewas pouring into the toddy. At the trial he says he did question him.Prom this examination of Pitchamuttu’s evidence it is obvious that itcontained many infirmities. The charge of the learned Judge does notcontain any detailed examination of Pitchamuttu’s evidence withparticular reference to these infirmities. The defence was that Pitcha-muttu was the person who administered the poison and it was furthersuggested that he might have done so at the instance of Bernard Peterwho had been superseded as cook by the deceased. The learned Judgehas asked the Jury to consider whether Pitchamuttu was an accomplice,but the Jury were not asked to examine this matter from the point ofview of the various infirmities in his evidence and the suggestion that hemight be acting as a tool of Bernard Peter. In the circumstances wefeel that the testimony of Pitchamuttu presents so may unsatisfactoryfeatures that no Jury could place any reliance on it. There remains forconsideration the question as to what remains of the case against the• accused when bereft of the testimony of Pitchamuttu. In this connectionit must of course be borne in mind that the only persons who knew of theexistence of the arsenic in PI were apart from Andrews and the deceased,Bernard Peter and the accused. Bernard Peter says that he wenton a pilgrimage to Kataragama on August 3. Therefore by a processof elimination one could reach the conclusion that it could only havebeen the accused. On the other hand this reasoning does not exclude
HOWARD C.J.—Indrasena v. Welifcada Police.
310
the possibility that Pitchamuttu might conceivably have been informedby Bernard Peter of the existence of the poison and administered it atthe latter’s instance. We have reached the conclusion, therefore, thatwithout the evidence of Pitchamuttu the evidence against the accusedrests merely on suspicion. Being of a purely circumstantial nature itdoes not point unequivocally to the guilt of the accused. Even if thiscircumstantial evidence is reinforced by the evidence of Pitchamuttu theease against the accused was very doubtful and there was a reasonableand substantial doubt as to his guilt particularly when it is taken intoconsideration that certain aspects of Pitchamuttu’s evidence were notsquarely placed before the Jury. In those circumstances following
R.v. Schrager1 we think the conviction cannot stand. Or to put the casein the way it was stated in R v. Parker 2 we think the Jury has not giventhe appellant the benefit of a grave doubt and it is safer that the con-viction should not be allowed to stand, R. v. Bradley3.
For the reasons given the appeal is allowed and the conviction setaside.
Conviction set aside.