In Re: Divan Sahib alias Pythiakkaran alias Samiyar

Anantanarayanan, J.—This is a very unfortunate case. The victim in this criminal appeal is a certain Krishnaveni Ammal, aged about 25, and

the wife of one Srinivasan, P. W. 1. The appellant, Diwan Sahib alias Pythiakkaran alias Samiyar, is an exorcist or magician, who was charged

with the murder of this Unfortunate young woman, by literally suffocating her to death with smoke, in the course of an attempt to cure her of the

evil spirits which, according to the appellant, had possessed her and were proving to be troublesome. The teamed Sessions Judge, Chingleput

convicted the appellant u/s 302, I. P. C. and sentenced him to the lesser penalty of imprisonment for life.

On the facts themselves, we are unable to see any room for doubt. We have the very clear evidence of the husband, P. W. 1, corroborated by

the testimonies of his cousin Kadirvelu P. W. 2, and the mother of the deceased P. W. 3, regarding what happened that night and how the victim

met with her death. This is further elucidated by the detailed report of the autopsy furnished by Dr. Gopaiakrishnan, P. W. 10 , the Professor fit

forensic Medicine, Madras Medical College and Police surgeon. We have also the photographs of the body of the victim in the room in which the

rituals of exorcism were conducted, M.O. 4 series, which incontrovertibly establish what must have happened. The real question is, is the accused

guilty of murder or of some other offence , and if he is not guilty of murder, under what section of the Indian Penal Code is he liable to be

convicted.

We may take it that the unfortunate Krishnaveni was suffering from some form of hysteria, which showed itself in the usual mode of spells of

fainting, and fits or convulsions. These were taken by her husband, P. W. 1, and others as symptoms of possession by an evil spirit and deceased

was then examined by the accused, an exerciser, who confirmed this diagnosis. In pursuance of it, an earlier occasion, the victim was tied up in the

koodam of the house of P. W. I, and left alone with the accused for a number of hours at night; the accused used a lighted fire, and coals, as well

as other articles to raise considerable quantities of smoke in order to effectively exorcise the evil spirit. On that particular occasion, the victim was

unharmed, and the accused pronounced her cured after the rituals of exorcism, but her symptoms returned with unabated vigour, and this led to the

second very unfortunate ceremony which resulted in Krishnaveni''s death.

We might take it for granted that the ritual was held, on the second occasion, as spoken to by P. Ws. 1 to 3. Quantities of stuff were purchased

in double measure, as the previous exorcism had not been effective. They included salt, mustard, firewood, charcoal and other sundries inclusive of

incense and two green chameleons. A fire was again raised and the deceased was made to sit before it, after which the accused tied her hands and

feet, and further secured her to a granite mortar in the koodam by means of a rope M. O. 3. The doors were closed, arid, at the instance of the

accused, P. Ws. 1, 2 and 3 left him strictly alone with the victim. As on the previous occasion, the deceased was raising cries throughout the night,

but these were not heeded to. The cries ceased by 4 a.m. and P. W. 1 and the other immediate relatives became anxious and knocked at the

doors.. When the accused opened the doors and these people went inside, they saw the deceased lying on her hack, her hands and legs tied as

formerly; but her life was then extinct, and the entire body showed signs of blistering and charring. After this, an outcry was raised, aid P. W. 5 and

others came. One of the new arrivals was P. W. 4 the president of the Panchayat Board. The accused slipped away, and persons were sent to

catch him P. W. 4 made a report Ex. P.I upon which investigation by the police followed.

The medical evidence is, of course, of prime significance , in this case. Dr. Gopalakrishnan, P. W. 10, deposed there were early decomposition''

changes present on the body, and second degree bums involving both knees, the legs and left cheek. There were first degree burns on both,

breasts, face and cloth shoulders. There was a lacerated wound 6 inches by 3 inches muscle deep over the front of chest, showing some external

violence or interference with a blunt object. There was another similar lacerated wound on the lower part of right side of neck 2 1/2 inches by 1

inch muscle deep, but, actually depth was not due to the burns, and P.W. 10 is specific on the point. There were signs of marked congestion and

edoms of the lungs, with carbon particles in the respiratory passages and congestion of ail the internal organs. P. W. 10 is positive that death was

really due to suffocation, as evidenced by the state of internal congestion, particularly of the lungs, and the presence of carbon particles. In other

words, this unfortunate girl who had been tied up in such a manner that she could not move, and forced to inhale very large quantities of smoke.

The flames were also kept or brought, so near her as to cause the first and second degree burns found on the body. The fumes of the smoke must

have made her incapable of breathing or crying out after sometime, and, she was literally suffocated to death. Of this inference'' there can be no

doubt whatever. According to the doctor, P. W. 10, so much suffocation and such burns would be sufficient to cause death, even in the ordinary

course of nature.

The accused attempted a defence, which is somewhat fantastic, and which does not appear to deserve any credence. According to him, he was

not left alone with the victim, nor did he tie her hands and feet or tie he upto the mortar P.Ws. 1 to 3 were throughout present when he performed

the pooja, and they held down -the victim. He, accused, got into a trance and when lie opened his eyes at 3 a.m. and came back to normal

consciousness, he found that the victim had fallen on the fire and had been burnt. This version is opposed to the probabilities, and to the clear and

natural testimonies of P. Ws. 1, 2 and 3. We have no hesitation therefore In ''rejecting it.

But the problem still remains what is the offence that the accused is guilty of, on the established facts? It is not claimed for the prosecution that the

accused intended to cause the death of the woman, or even to do her any grave injury. However deluded he might have been, the accused was

under the genuine Impression that the woman was possessed by an evil spirit, and that ha could exorcise her effectively by means of this prolonged

ritual. The learned Sessions Judge considers that the accused must be credited with the knowledge that the violence that he was causing to the

victim, by compelling her to inhale smoke and also to bear the flames so near her body, was likely to cause her death. The learned Sessions Judge

adds that the lacerated injuries that we have earlier referred to, also show that the accused inflicted some further external violence on the

unfortunate victim. Upon the findings, as arrived at by the trial court, it is clear enough that the accused ought to have been convicted u/s 304 Part

II, I. P. C. and not u/s 302 I. P. C. The only clause that is really applicable is the third clause of Section 299 I. P.C. at the highest for the

prosecution. The question is whether this view is correct, or whether the accused would be guilty only u/s 304-A I.P.C. of causing the death by a

rash and negligent act.

Upon a careful consideration of the evidence and the probabilities, particularly the data furnished in the medical evidence we are of the view that

the accused should be properly convicted u/s 304, Part II I.P.C.. Two decisions to which our attention has been drawn related to almost identical

situations, are Haku v. Crown, ILR 10 Lah 555 : AIR 1928 Lab 917 and Nga Po Tha v. Emperor, 44 Ind Cas 679 : AIR 1918 UB 24; both

these were cases of attempted exorcism of an evil spirit, by means of some external violence administered to the victim, in the hope of driving away

the evil spirit. In both cases the offences were held to be punishable u/s 304, Part II I. P. C. It is true that both these decisions relate to blows

administered to the victim; whereas here we have a case of prolonged suffocation by smoke, during the course of ritual, in addition to burns caused

by heat brought too near the body. But we do not think that that makes any essential difference, in this case also, the accused has to be credited

with the knowledge that such measures were likely to cause the death of the victim, and if he indulged in these'' measures notwithstanding such

knowledge, he did so wider the peril of being convicted under the criminal law.

Learned counsel for the appellant has drawn our attention to certain features of the evidence, which,'' according to him, tend to throw a doubt

upon the veracity'' of the"" testimonies of P.Ws. 1, 2 and 3. According to him, the"" photographs show that the woman could not have been tied up

by the accused, in the manner deposed to by the witnesses; they are more suggestive of the woman having been tied up after death. Similarly, since

the blouse admittedly showed no signs of having been burnt on any portion of the garment, the suggestion is that the woman did not wear this

blouse during the exorcism, but that it must have been put upon her after death. But these inferences are not really supported by any established

facts, and, with regard to the latter inference, there is not even a suggestion put to the witnesses, in the record of evidence. We have no reason for

holding that he woman was not tied up by the accused when she was alive as spoken to by the witnesses, or that she was not wearing the blouse

during the ritual.

Accordingly, we convict the appellant u/s 304 Part II I.P.C. It is true that the appellant does deserve some sympathy, under the particular

circumstances. He has himself been a victim, of the grossest superstition and, he had no intention of harming the woman, or causing her death by

external violence. Taking all the circumstances of the matter into account, we sentence the accused to undergo rigorous imprisonment for three

years. The appeal is otherwise dismissed.