JUDGMENT R.L. Anand, J.
1. Smt. Baljit Kaur widow of Joginder Singh, aged 47 years, household, has filed the present criminal appeal and it has been directed against the judgment and order dated 19.8.1998 passed by Additional Sessions Judge, Barnala, who while acquitting Balwinder Singh son of Malkiat Singh, an old man of 73 years, has convicted the present appellant under Section 302 of the Indian Penal Code for committing the murder of Harbans Singh and sentenced her to undergo life imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine she was directed to undergo rigorous imprisonment for a period of three months.
2. Smt. Baljit Kaur and Balwinder Singh (since acquitted) were charge-sheeted under Section 302/34 of the Indian Penal Code of the allegations that on 4.7.1995 in the area of Barnala, District Sangrur, in furtherance of their common intention they committed the murder of Harbans Singh and thereby allegedly committed an offence punishable under Section 302/34 of the Indian Penal Code.
3. The investigating agency came into action when SI Surinder Pal Singh received a ruqa from Civil Hospital, Barnala regarding the death of Harbans Singh. Consequently he along with ASI Jasmel Singh and other members of the police party proceeded for Civil Hospital, Barnala in order to take the action and when the police party reached at Chowk Gadda Khanna, Jaspal Singh PW met the Investigating Officer SI Surinder Pal Singh and gave statement Ex.PK stating therein that he was a resident of Sant Uttar Dev Nagar, Barnala. On the date of occurrence i.e. 4.7.1995 at about 7/8 p.m. he was present at his house when Surjit Singh alias Jita Singh son of Bhan Singh of Barnala came to him and informed that his brother Harbans Singh was admitted in Civil Hospital, Barnala. On receipt of that information he went to Civil Hospital, Barnala where his brother was admitted. On reaching there he came to know that he was got admitted by Smt. Baljit Kaur alias Bhuro widow of Joginder Singh, resident of Bhadaur Chowk, Barnala (present appellant). He asked from his brother who was writhing in pain as to what had happened, upon which his brother told him that he was given poison in some eatable article by Smt. Baljit Kaur appellant and as a result of that he was not feeling well and that he might not survive. Jaspal Singh further stated that on his enquiry from his brother the latter told him that woman had played a black magic upon him. She developed illicit relations with him and she used to ask him to get his share in the property by seeking partition from his family members but he was not prepared to do so and he used to tell to Smt. Baljit Kaur that since he does not earn anything so how he could ask his family members for his share, but Baljit Kaur used to compel him to seek partition but on the contrary he (deceased) told her that she should not raise the demand for separation for his share. Jaspal Singh further stated that then he enquired from Baljit Kaur how the condition of his brother became serious. Upon this Baljit Kaur became nervous and finding an opportunity he slipped away from the hospital. In the meanwhile the condition of his brother deteriorated and he started breathing with difficulty and after sometime at about 9.15 p.m. he expired. Finally Jaspal Singh complainant has alleged that his brother has been intentionally murdered by Smt. Baljit Kaur who is a lady of bad character and it is possible that some other person might have having illicit relations with her also. According to the complainant, the motive for the crime is that Baljit Kaur used to reside near their house and she had enticed his brother and developed illicit relations with him. When this fact came to the notice of the complainant and his family members they used to desist Baljit Kaur from carrying on illicit relations. So much so, on one occasion his father (Labh Singh) gave a slap on the face of Baljit Kaur who even threatened the complainant party to ruin their family. It is also alleged by the complainant that Baljit Kaur after developing relations with his brother Harbans Singh had committed his murder and therefore action may be taken. The above statement Ex.PK was read over and explained to the complainant who signed the same in token of correctness and it was attested by SI Surinder Pal Singh who made endorsement underneath the said statement and it was sent to the police station for the registration of case under Section 302 of the Indian Penal Code. The endorsement was concluded at 11.30 p.m. on 4.7.1995 at Gadda Khana Chowk and on the basis of that formal FIR Ex.PK/1 was recorded in Police Station, Barnala itself vide DDR No. 33 at 11.40 p.m. on 4.7.1995 just after 10 minutes. The Area Magistrate also sits Barnala proper but the special report of this case was received by him at 4.00 a.m. on 5.7.1995.
4. The story of the prosecution proceeds that Harbans Singh was brought to Civil Hospital, Barnala and the Medical Officer sent ruqa Ex.PH to SHO, Police Station, Barnala by narrating that the patient named Harbans Singh son of Labh Singh aged about 25 years, male, resident of village Barnala came to the hospital on 4.7.1995 at 6.00 p.m. with an alleged case of suspected poisoning. He has been brought by his wife Baljit Kaur and, therefore, action may be taken. This intimation was received in the police station by Gujarat Singh at 6.25 p.m. on 4.7.1995. Meaning thereby the intimation was received in the police station within 25 minutes. On receipt of ruqa in the police station the message was flashed to SI Surinder Pal Singh to proceed into the matter and he started the investigation of this case. After recording the statement Ex.PK on 4.7.1995 the Investigating Officer again visited the hospital on 5.7.1995 and prepared inquest report Ex.PF in the presence of Jaspal Singh and Bhan Singh. He then prepared Ex.PE, the request for post-mortem and the dead body was sent to mortuary for post-mortem examination. He raided the house of the accused but the same was found locked. Search was also made at the railway station and bus stand and hotels of Barnala but Smt. Baljit Kaur could not be arrested. After post-mortem examination Constable Teja Singh handed over to the Investigating Officer a copy of the post-mortem report and the parcels of viscera and the clothes of the deceased and those were taken into possession vide recovery memo Ex.PV and on return to police station he deposited the case property with seals intact. Efforts were also made to arrest Smt. Baljit Kaur on 8th, 9th, 13th and 19th of July, 1995 but she could not be arrested.
5. On 5.7.1995, PW1 Dr. Lachhman Dass Gupta at 11.15 a.m. conducted post-mortem examination on the dead body of Harbans Singh when it was brought by Constable Teja Singh and was identified by Jaspal Singh and Bhan Singh. It was the dead body of a youngman of 24 years. There was no external mark of injury on the body. The larynx and trachea were congested and having secretion. Right lung was healthy and congested. The doctor took a piece of the lung for the purpose of chemical examination. Similarly, he found that heart was healthy and full of blood. he also took a sample of the blood for the purpose of chemical examination. Stomach was healthy and contained about 75 cc of the digested food. The contents of the stomach were also preserved like that of small intestines and large intestines for the purpose of analysis. Similarly pieces of liver, spleen and kidneys were preserved and a sealed parcel was prepared. The doctor also took a sample of the urine for the purpose of examination. The cause of death, in the opinion of the doctor, was due to blockage of respiratory track due to secretion which was sufficient to cause death in the ordinary course of nature. After the post-mortem report the doctor handed over to the police copy of the post-mortem report along with the police papers and the sealed parcel of the clothes besides a sealed box containing viscera of the deceased. As per the opinion of the doctor, the probable time that elapsed between death and post-mortem was within 24 hours. Ex.PA is the correct carbon copy of the post-mortem report. On receipt of the report of the Chemical Examiner Ex.PB, the doctor opined that the cause of death was due to poisoning of aluminium phosphide and to that effect he gave his report Ex.PC. The post-mortem was conducted on the police request Ex.PE. The doctor also opined that poisoning of aluminium phosphide causes increase secretion of the bronchial (respiratory track) which leads to blackening and death. This opinion Ex.PG/1 was given by him on the police application Ex.PG. The doctor also stated in his statement that ruqa Ex.PH was sent to the police station regarding arrival of the patient by Dr. Baldev Raj Gupta and ruqa Ex.PJ regarding the death of Harbans Singh was sent to the police station by Dr. Tirloki Nath. It may be mentioned here that Dr. Baldev Raj Gupta and Dr. Tirloki Nath have not been examined by the prosecution for the reasons best known to it. In the cross-examination the witness categorically stated that he could not say if he deceased could remain conscious on consuming poison as determined in the Chemical Examiner's report.
6. The story of the prosecution further proceeds that Smt. Baljit Kaur was not only carrying on with the deceased but she was also carrying on with his co-accused Balwinder Singh and both of them had administered aluminium phosphide by mixing in some juice etc. to Harbans Singh and thereafter they disposed of the residue poison and the tumbler which were subsequently recovered at their instance under Section 27 of the Evidence Act. We may also make a mention that the learned trial court has disbelieved these recoveries of the residue poison and the tumbler. Be that as it may, it is also the case of the prosecution that Baljit Kaur and Balwinder Singh allegedly suffered extra-judicial confession before PW4 Darbara Singh on 20.7.1995 and allegedly confessed that they had administered poison to Harbans Singh by mixing into tea and they should be produced before the police. Resultantly both the accused, namely, Baljit Kaur and Balwinder Singh were produced before PW8 SI Surinder Pal Singh who arrested them on 21.7.1995. After their arrest the investigation was handed over to ASI Jasmel Singh (PW10). On 24.7.1995 Baljit Kaur and Balwinder Singh were interrogated separately by ASI Jasmel Singh in the presence of Ravinder Kumar and HC Kewal Krishan and on interrogation Baljit Kaur disclosed that the glass in which the poison was administered to Harbans Singh was lying in a box at her house and that she could get the same recovered by pointing out the place of concealment. Her disclosure statement Ex.PM was recorded and in pursuance of the said disclosure statement Baljit Kaur in the presence of witnesses led the police party to the disclosed place and got recovered the tumbler. Similarly, Balwinder Singh also disclosed on interrogation that he has kept concealed some poison in a heap of manure in front of the house of Baljit Kaur and could get the same recovered. His disclosure statement Ex.PN was recorded and in pursuance of said disclosure statement Balwinder Singh got recovered one bottle which was half filled containing aluminium phosphide and it was taken into possession vide recovery memo Ex.PQ, attested by the witnesses and the tumbler which was got recovered by Baljit Kaur in pursuance of her disclosure statement was taken into possession vide recovery memo Ex.PR after making a sealed parcel thereof. The Investigating Officer also prepared a rough site plan of the place of recovery.
7. The sealed parcels of the viscera and that of the small bottle and tumbler were sent to the office of the Chemical Examiner and vide report Ex.PB aluminium phosphide a pesticide was detected in the contents of stomach, small and large intestines and phosphide a constituent of aluminium phosphide was detected in the pieces of lung, liver, kidney, spleen and heart and the sample of blood. Vide report Ex.PZ it was opined by the Chemical Examiner that the small bottle contained poison and similarly the tumbler contained the stains of poison. Finally, on completion of the investigation of the case, the appellant and her companion Balwinder Singh were challaned in the Court of Area Magistrate, who supplied the copies of the documents relied upon by the prosecution to the accused as required under the law and vide separate commitment order the appellant and her companion were committed to the Court of Session to face the trial under Section 302/34 of the Indian Penal Code.
8. Vide orders dated 18.11.1995, the Court of learned Addl. Sessions Judge, Barnala framed charge under Section 302/34 of the Indian Penal against Baljit Kaur and Balwinder Singh. The charge was read over and explained to the accused to which they pleaded not guilty and claimed a trial.
9. In order to prove the charge the prosecution examined PW1 Dr. Lachhman Dass Gupta, who on 5.7.1995 conducted post-mortem examination on the dead body of Harbans Singh and issued Ex.PA, the carbon copy of the post-mortem report. The observations of the doctor with regard to the post-mortem on the dead body of Harbans Singh have already been incorporated by us in the earlier portion of this judgment.
10. The prosecution further examined PW2 Jaspal Singh, the real brother of the deceased and the complainant in this case. PW3 is Harbhajan Singh, who, according to the case of the prosecution, on 4.7.1995 at about 4.30 p.m. when he was going on the crossing of Bhadaur and reached near the house of Baljit Kaur heard shrieks from her house and he allegedly found that the deceased was lying on the cot in the courtyard and at that time Baljit Kaur was present there besides Balwinder Singh and they were pouring water on the head of Harbans Singh who was shouting that poison has been administered to him. Later on this witness learnt that Harbans Singh had expired. We shall deal with the statement of Harbhajan Singh in the subsequent portion of this judgment. PW4 is Darbara Singh, the witness of extra-judicial confession and the witness who produced both the accused before SI Surinder Pal Singh. His statement shall also be discussed by us in the later portion of this judgment. PW5 is Ravinder Kumar, the witness of disclosure statement and the recovery. At the cost of repetition we may state here that the learned trial court had already disbelieved the recoveries. Meaning thereby that the statement of Ravinder Kumar has also bee disbelieved. PW6 is Nirmal Singh Head Constable who gave his statement on affidavit Ex.PS. PW7 is Kamaljit Singh Constable who also gave his statement on affidavit Ex.PT. PW8 is SI Surinder Pal Singh, the main Investigating Officer. PW9 is Shiv Pal Sharma Draftsman who on 29.9.1995 prepared scaled site plan Ex.PAA and PW10 is ASI Jasmel Singh. PW11 is Constable Teja Singh who gave his statement on affidavit Ex.PDD. Finally, the prosecution tendered into evidence the two reports of the Chemical Examiner and closed the case after giving up the remaining witnesses as unnecessary.
11. On closure of the evidence of the prosecution the statement of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. They denied those circumstances and it was stated by Baljit Kaur that she has been falsely implicated in this case. We need not incorporate the plea of Balwinder Singh (since acquitted) as the State has not filed any appeal against him.
12. When called upon to enter into defence the accused did not examine any witness. The learned trial court, however, believed the story of the prosecution in part. With regard to Balwinder Singh it was observed by the learned trial court that the prosecution has not been able to prove the charge against him. Resultantly, for the reasons given in paras No. 14 to 17 of the impugned judgment he was acquitted and in our opinion it is necessary for us to incorporate these paras in the present judgment also in order to appreciate that once the trial court has disbelieved the story with regard to extra-judicial confession vis-a-vis Balwinder Singh, would it be safe for us to believe this weak evidence qua Baljit Kaur also. The said paras are quoted as below:-
"14. As far as Balwinder Singh accused is concerned, Jaspal Singh complainant does not implicate him at all. Jaspal Singh is brother of deceased Harbans Singh. Balwinder Singh was not name din the FIR. Harbhanjan Singh PW.3 had stated that he saw Balwinder Singh and Baljit Kaur pouring water on the head of Harbans Singh and Harbans Singh was shouting that poison had been administered to him. Then there is statement of Darbara Singh PW.4 that both Baljit Kaur and Balwinder Singh had come to him on 20.7.1995 and they had said that they had administered poison to Harbans Singh by mixing in the tea. Baljit Kaur and further disclosed that she had illicit relations with Harbans Singh and then she had developed relations with Balwinder Singh to which Harbans Singh was objecting and, therefore, poison was administered to Harbans Singh. Darbara Singh further stated that the accused had requested that they be produced before the police and that then Darbara Singh produced the accused before the police on 21.7.1995. However, Darbara Singh admitted that Baljit Kaur was not related to her nor he was having visiting terms with Baljit Kaur. He stated that she was known to him since she was his customer. I find that death of Harbans Singh had taken place on 4.7.1995. There had been no special relationship of the accused with Darbara Singh nor Darbara Singh had any influence with the police; that the accused will come present and make extra judicial confession about their guilt before him after 16-17 days of the occurrence. As far as recoveries of glass in which poison is stated to have been mixed and administered in tea and the poison itself in pursuance of the disclosure statements made by Balwinder Singh and Baljit Kaur, are concerned, Ravinder Kumar PW.5 stated in the cross-examination that he had gone to the Police Station to serve the glass of juice, since he was running his juice shop in front of the Police Station and when he was coming back from the Police Station, he was asked to stay there. Baljit Kaur was not known to him earlier. He stated that he could not disclose the locality where the house of Baljit Kaur was located, but it was on the Ludhiana road. He stated that Baljit Kaur interrogated and Balwinder Singh also for 7-8 minutes. In this connection ASI Jasmail Singh PW.10, who is stated to have interrogated the accused, had stated that the accused were interrogated on 21.7.1995 on Sangher Crossing at the time of their arrest. At that time, no disclosure statement was made. They were lodged in police lock up on 21.7.1995. They were then interrogated on 23.7.1995 and the interrogation had continued for one hour and no disclosure statement was made. On 24.7.1995 accused were interrogated for three hours and after interrogation of half an hour, the accused had suffered the disclosure statements and the work regarding recording of the statements had taken for about one and a half hours. This witness stated that nobody was present at the house of Baljit Kaur when the recovery was taken place. The house was not locked. The house consisted of two rooms. All the rooms were lying unlocked. House of Baljit Kaur is located in the lanes from three sides. There were number of other residential houses. He also stated that the police party had visited the house of Baljit Kaur on 21.7.1995 also. The box from which the glass is stated to have been recovered, was not locked.
15. No witness of the locality was joined while the recoveries are alleged to have been effected from the residential house of Baljit Kaur in pursuance of the disclosure statement. Ravinder Kumar PW.5 appears to be a man, who had just gone to the Police Station and his signatures were obtained, since he says that interrogation continued only for 4-8 minutes, whereas ASI Jasmail Singh PW.10 stated that it had continued on 21.7.1995, 23.7.1995. And on 24.7.1995, it continued for about 3 hours. It is quite improbable if the accused had concealed those articles in the house and they will allow the house and the box unlocked for about 20 days.
16. Balwinder Singh accused is aged about 70 years, whereas Baljit Kaur is aged about 40 years. Merely because he (Balwinder Singh) was pouring water on the head of Harbans Singh, will not lead to the conclusion that he had administered poison to Harbans Singh. No reliance can be placed on the so called extra judicial confession made before Darbara Singh or the recovery of the poison at the instance of Balwinder Singh. He could not possibly have illicit relations at the old age of 70 years with Baljit Kaur to which Harbans Singh may be objecting and then led Balwinder Singh to enter into conspiracy with Baljit Kaur to administer poison to cause the death of Harbans Singh.
17. From all this I hold that the prosecution has not been able to prove its case against accused Balwinder Singh beyond doubt."
13. However, the learned trial court for the reasons given in paras 18 to 24 of the impugned judgment came to the conclusion that the prosecution has been able to prove the charge against Baljit Kaur and she was convicted and sentenced in the manner as stated above and in our opinion paras No. 18 to 24 of the judgment of the learned trial court are also required to be reproduced in the present judgment in order to appreciate whether the conviction against Baljit Kaur can be sustained or not.
"18. According to Jaspal Singh PW.2, who is brother of deceased Harbans Singh, he had gone to the Hospital, when Surjit Singh told him, at about 8.00 P.M. on 4.7.1995, that his brother was admitted in the Civil Hospital, Barnala. When he went to the Hospital, Baljit Kaur was present there and when he enquired from Harbans Singh, then Harbans Singh had told him that Baljit Kaur had administered some poisonous substance and on account of that he had fallen ill. He stated that Harbans Singh had illicit relations with Baljit Kaur and was living with her and Harbans Singh also told him that Baljit Kaur wanted his share in the property. He stated that when he enquired from Baljit Kaur about the condition of his brother, she had felt perplexed and then left the Hospital. Thereafter Harbans Singh died at about 9.00 P.M. on that day. Statement Ex.PK of Jaspal Singh, which is the basis of FIR Ex.PK/1 was recorded and completed at about 11.30 P.M. by SI Surinder Paul Singh. The FIR had reached the Ilaqa Magistrate at about 4.00 A.M. on 5.7.1995.
19. Addl.P.P. for the State had argued that the FIR was quite prompt. The statement made by Harbans Singh before Jaspal Singh complainant about the cause of death was admissible into evidence under Section 32(1) of the Evidence Act.
20. It was argued by Sh. Rajdev Singh Khalsa Adv. counsel for Baljit Kaur accused that as per ruqa Ex.PH. Harbans Singh had been taken to the Hospital by Baljit Kaur on 4.7.1995 at about 6.00 P.M. It was a case of suspected poisoning. This ruqa was sent by Dr. Baldev Raj Gupta. Then there is another ruqa by Dr. Tarloki Nath Ex.PJ that Harbans Singh had expired at about 9.15 P.M. on 4.7.1995. He pointed out that both these doctors were not produced by the prosecution to state that at any time Harbans Singh was in a fit condition to make any dying declaration or statement. He argued that Hospital record was not produced to show as to what treatment was given and in what condition Harbans Singh remained, from 6.00 P.M. to 9.00 P.M. It was pointed out that, in fact, Gian Singh SSP was the maternal uncle of the deceased. He argued that statement of Jaspal Singh was quite improbable and could not be relied upon, as Jaspal Singh was just a boy of 22 years and was a student only; that if the condition of Harbans Singh was that serious, then his parents would have gone to the Hospital. He pointed out that Jaspal Singh says that he had sent the message through telephone from the Hospital to his father, but his father did not come. It was pointed out that Surjit Singh, who is stated to have informed Jaspal Singh about the admission of his brother in the Hospital, was also not produced. It was pointed out from the statement of Jaspal Singh that he remained with his brother for about one hour and during that period two doctors had attended to his brother, but no police official visited the Hospital during that time. From the cross-examination of Jaspal Singh, it was also pointed out that his statement was recorded at 11.30 P.M. although he had met the police party at 10.10 P.M. It was also pointed out that, in fact, maternal uncle of the deceased is Gian Singh SSP and it was admitted by Jaspal Singh that Gian Singh had visited Barnala on 5.7.1995 in the evening.
21. Counsel for the accused argued that, in fact, the complainant wanted to implicate Baljit Kaur somehow in the case. The statement Ex.PK, which is the basis of FIR Ex.PK/1 was not recorded at the time mentioned there on the statement, since the FIR reached the Ilaqa Magistrate quite late. The Police Station is at Barnala and the Magistrate was also residing at Barnala. It was argued that Baljit Kaur had taken Harbans Singh to the Hospital and if she had done anything wrong, she would not have got Harbans Singh admitted and would not have stayed there throughout. It was argued that if dying declaration was made in the Hospital, then certain rules are to be followed. The Doctor has to state if the patient was in a fit condition. He also pointed out that no opinion was taken by the police during the investigating also from the Doctors as to whether Harbans Singh could speak. If the Bed-Head Ticket of Harbans Singh had been produced, then also it would have been known as to what was the condition of Harbans Singh. It was also argued that aluminium phosphide, if mixed in the tea or milk, gives very bad smell and Harbans Singh being a young man none could administer that to him except forcibly, and further there was no injury on the person of Harbans Singh. He also pointed out that exact words of the dying declaration or the statement made by Harbans Singh were not reproduced by Jaspal Singh and it was just a made up story to implicate Baljit Kaur at the instance of Gian Singh, a relation of the deceased, who was in a senior position in the Police Department. On the question of dying declaration, counsel for the accused had relied upon authorities reported in (1987(1) RCR-240, Resham Singh v. State of Punjab, AIR 1994 SC-840, Mani Ram v. State of Madhya Pradesh, 1997(3) RCR-295, State or Haryana v. Om Prakash, 1993(1) Recent Criminal Reports-57 State of Haryana v. Surjit 1997(2) RCR-477 State of Punjab v. Brij Mohan. He argued that it has been held that dying declaration is a very weak type of evidence. Oral dying declaration has not to be relied. Exact words used by the accused are not coming on the record and where a death of a person by poisoning is there, then there should be a certificate of the Doctor and Doctor should be present at the time of recording of such dying declaration; that opinion of the Doctor was first required as to whether the deceased was fit to make the statement. He pointed out that the prosecution had avoided to produce any Doctor on this point, to depose as to whether the deceased could make the statement or not. He argued that from the statement of Jaspal Singh, it would come out that Jaspal Singh and his father were not happy will Baljit Kaur; that since Harbans Singh had developed illicit relations with Baljit Kaur and had started residing with her, and that Jaspal Singh had motive to falsely implicate Baljit Kaur for the death of Harbans Singh.
22. It has been proved on the file that Harbans Singh was admitted in the Hospital at 6.00 P.M. on 4.7.1995 and he died at 9.15 P.M. In the ruqa Ex.PH it is written that the case was of suspected poisoning. It was sent to the Police Station by the Doctor, but the police did not go there. Meanwhile Jaspal Singh had reached the hospital on hearing that his brother was admitted there. The doctors attending on Harbans Singh would not themselves take trouble of recording any dying declaration or involving themselves as to what a person, who was about to die, would say about the cause of his death. There was no time and occasion to call for a Magistrate. The police also did not reach the Hospital before the death of Harbans Singh. Under these circumstances, when Jaspal Singh reached there and whatever was disclosed about his death by Harbans Singh to Jaspal Singh, will be the statement to the cause of his death and will be admissible into evidence under Section 32(2) of the Evidence Act. There was no time to record written dying declaration. Harbans Singh was living in the house of Baljit Kaur. He had been removed to the Hospital by Baljit Kaur. It was the case of suspected poisoning and during the post mortem examination aluminium phosphide was detected from the body parts sent to the Chemical Examiner. It cannot be said that the FIR in this case was delayed. Jaspal Singh met the police party at 10.10. P.M. It will naturally take sometimes for the police to write the statement and complete the same, which was completed at 11.30 P.M. The FIR was immediately recorded and had reached the Ilaqa Magistrate at 4.00 A.M. on 5.7.1995. The fact of the statement made by Harbans Singh about the cause of death before Jaspal Singh is mentioned. Jaspal Singh could not be expected to use the exact words, when that statement was not reduced into writing. In fact, there was no time to do all that. No explanation had come forth from Baljit Kaur, who had taken Harbans Singh to the Hospital as to why the health of harbans Singh deteriorated and how he happened to take aluminium phosphide resulting in his death. Under these circumstances, the authorities relied upon by the counsel for the accused are not applicable to the facts of the present case.
23. Jaspal Singh had no motive to falsely name Baljit Kaur as the person named by Harbans Singh, who had administered poisonous substance to him. His statement inspires full confidence.
24. Even if the statements of Darbara Singh regarding extra judicial confession on being weak type of evidence and that of Ravinder Kumar PW.5 and ASI Jasmail Singh PW.10 regarding recovery of glass in which poison is stated to have been mixed before administering, are not relied upon, still I find it a fit case, where statement of jaspal Singh PW.2, corroborated by medical evidence and the report of Chemical Examiner about the cause of death and prompt recording of FIR giving the details of last statement made by Harbans Singh about the cause of his death are sufficient to hold that prosecution case against Baljit Kaur accused is convicted for offence Under Section 302 IPC for committing the murder of Harbans Singh. Accused Balwinder Singh is hereby acquitted of the charge framed against him. Let accused Baljit Kaur be heard on the quantum of sentence."
14. Smt. Baljit Kaur is not satisfied with her conviction and sentence and, therefore, she has filed the present appeal which we are disposing of wit the assistance rendered by Mr. A.S. Kalra, advocate who appeared on behalf of the appellant, Mr. G.S. Gill, Senior Deputy Advocate General, who appeared on behalf of the State of Punjab and with their assistance have gone through the records of this case.
15. The story of the prosecution proceeds on the allegations that on 4.7.1995 at about 4.00 or 4.30 p.m. Smt. Baljit Kaur and Balwinder Singh (since acquitted) allegedly gave the poison by mixing it in tea to Harbans Singh as a result of which Harbans Singh started raising shrieks which were allegedly heard by one Harbhajan Singh (PW3). We cannot lose sight of the fact that the house of Harbans Singh or Baljit Kaur is situated in a locality at Barnala and the place of occurrence is surrounded by various houses but strange enough not a single neighbour has come to fix the presence of Harbhajan Singh (PW3). As proved in this case that the cause of death was on account of aluminium phosphide and when a lethal dose had been administered to the deceased, he must have cried in pain and must have vomited in out as we all know that the smell of such pesticides is so repugnant and bitter that it is difficult to swallow in a powder shape.
16. Let us first examine the case of PW3 Harbhajan Singh who deposed that on 4.7.1995 at about 4.30 p.m. when he reached near the house of Baljit Kaur he heard (SIC) and found that Harbans Singh was lying on the cot in the courtyard of the house where Baljit Kaur and Balwinder Singh were present who were pouring water upon the head of Harbans Singh. It has also come in the statement of Harbhajan Singh that Harbans Singh was shouting that poison has been administered to him. But he does not make any mention that the deceased was saying that the poison was administered to him by Baljit Kaur or by Balwinder Singh. In the cross-examination Harbhajan Singh admits that Harbans Singh was residing at the house of Baljit Kaur and if that was so it is difficult for us to believe that Baljit Kaur who had a soft corner for Harbans Singh would administer the poison. The case of the prosecution is that Balwinder Singh was also having illicit relations with Baljit Kaur and in all probability if the poison was to be administered to the deceased it could be administered by Balwinder Singh so as to eliminate his rival from Baljit Kaur. To proceed further Harbhajan Singh admits that the house of Baljit Kaur is located in a thickly populated area. Still nobody came there on hearing the shrieks of Harbans Singh so as to fix the presence of Harbhajan Singh at the spot who happened to be a chance witness as he admittedly was going through the lane and was passing in front of the house of Baljit Kaur. Rather, Harbhajan Singh admits in the cross-examination that no other person was present in front of the house of Baljit Kaur. The statement of Harbhajan Singh is totally falsified when he admits in the cross-examination further that he could not tell the name of Balwinder Singh and he learnt about his name later on. He does not know about the family of Balwinder Singh. In these circumstances, to say that Harbhajan Singh had the occasion to see Baljit Kaur and Balwinder Singh on 4.7.1995 is doubtful. If Harbhajan Singh was present in the house of Baljit Kaur, in such a situation his normal conduct would be to take the patient to the hospital for treatment. But on the contrary the record of his case shows that it was Smt. Baljit Kaur, present appellant, who took Harbans Singh to the hospital as is proved from the ruqa Ex.PH which was sent by the doctor to the police station about the arrival of Harbans Singh. The very fact that Baljit Kaur removed Harbans Singh to the hospital and she got him admitted there shows that Baljit Kaur could not administer poison to Harbans Singh. Rather, she had given shelter to Harbans Singh in her house. In these circumstances, we are inclined to disbelieve the testimony of PW3 Harbhajan Singh nor he had the occasion to see Baljit Kaur and Balwinder Sigh inside the house.
17. The story of the prosecution further proceeds that Harbans Singh was brought to the hospital by Baljit Kaur and on his arrival ruqa Ex.PH was sent to the SHO, Police Station, Barnala. This ruqa was despatched just after the arrival of Harbans Singh because it has been received in the police station at 6.25 p.m. by Gurjant Singh W/A is evident from the endorsement made at the back of Ex.PH. In these circumstances, many questions have arisen in our mind in order to find out whether Harbans Singh was in a position to give any narration to his brother Jaspal Singh or not. The doctor who sent the ruqa Ex.PH has not been examined by the prosecution for the reasons best known to it. What was the condition of the patient at the time of his arrival and whether he was in a position to speak or not, is one's guess work. The prosecution has also not placed on record what type of treatment was given to the patient from 6.00 p.m. to 9.00 p.m. We are also not certain if any bed head ticket was prepared or not. There is no documentary evidence on the record to show that Jaspal Singh arrived in the hospital on coming to know about the admission of his brother Harbans Singh. Before we rely upon and discuss the statement of Jaspal Singh, it is very essential for us firstly to fix the presence of Jaspal Singh in the hospital and secondly it is also very essential on our part to determine whether Harbans Singh was in a position to make dying declaration in a fit mental condition. on both these aspects there is not evidence because in ruqa Ex.PH the name of Jaspal Singh does not figure. The bed head ticket has not been produced. The doctor who sent ruqa has not been examined. Similarly, in ruqa Ex.PJ which was sent by Dr. Triloki Nath regarding the death of Harbans Singh at 9.15 p.m. the name of Jaspal Singh does not find mention. In these circumstances, we are in a lurch whether Harbans Singh was ever fit to make a statement before Jaspal Singh who must have arrived in the hospital at about 8.00 or 8.30 p.m. as is evident from his own statement Ex.PK in which he has categorically stated that he came to know about the admission of his brother in the hospital at about 7/8 p.m. It is the case of the prosecution that Jaspal Singh came to know about the admission of his brother through one Surjit Singh alias Jita Singh son of Bhan Singh resident of Barnala. Said Surjit Singh has also not ben examined by the prosecution in the trial court. He could lend corroboration to the statement of Jaspal Singh to the extent that he informed Jaspal Singh and thereafter Jaspal Singh went to the hospital in order to know the welfare of his brother. This vital missing link again cast a reasonable suspicion in our mind about the presence of Jaspal Singh and about the alleged dying declaration made by deceased before his brother Jaspal Singh.
18. Further it is the case of the prosecution that Jaspal Singh came to know at about 7/8 p.m. about the removal of Harbans Singh to Civil Hospital, Barnala. In such a situation we would have expected the arrival of the complainant in the hospital at about 8.15 or 8.30 p.m. What was the condition of the patient from 6.00 p.m. to 8.30 p.m. is a yawning gap. What it look to be that Jaspal Singh virtually came to the scene after the death of his brother because he has given the time of death of his brother in his statement Ex.PK as 9.15 p.m. which coincides with the time given in ruqa Ex.PJ and thereafter the police came into action. We have earlier said that ruqa Ex.PH was received by the police at 6.25 p.m. By 7.30 or 8.30 p.m. even Jaspal Singh, according to the case of the prosecution, had reached the hospital, then what is the explanation on the part of the police that it recorded the statement of the witness at 11.30 p.m. as is evident from the endorsement made by the SI Surinder Pal Singh underneath the statement Ex.PK. The FIR in this case has been registered at 11.40 p.m. and what is the justification on the part of the prosecution when the special report which was supposed to be delivered to the Area Magistrate at Barnala itself reached to him at 4 a.m. on 5.7.1995. All these facts are clearly indicative of the fact that Jaspal Singh was brought on the scene after the death of Harbans Singh and thereafter his statement Ex.PK was prepared after due deliberations and consultations. Even the time recorded as 11.30 p.m. appears to be ante-dated because it does not take four hours approximately for the delivery of the special report to the Area Magistrate. This unexplained delay in the despatch of the special report in the present case is of vital importance and we have no hesitation to hold that just after the death of Harbans Singh his family members and the police connived with each other and made a story implicating Baljit Kaur whose name at that time only figured in the statement Ex.PK. Thereafter another twist was given by urging that Baljit Kaur was a lady of loose character or that she was carrying on with Balwinder Singh also. The case of the prosecution further is unexplainable on the premises of judicial scrutiny when we see with regard to the motive given by Jaspal Singh in his statement Ex.PK by stating that Smt. Baljit Kaur wanted the deceased to have his share in the property. So much so, at one point of time the father of the deceased had given a slap on the face of Baljit Kaur. There is no corroboration to this effect. There is no resolution of the gram panchayat to that effect nor any other independent witness of the village has come forward to say that Baljit Kaur was carrying on with the deceased or Balwinder Singh. On the contrary, it appears that when Harbans Singh was given the poison, it was so given in the house of Baljit Kaur who became nervous and she took the deceased to the hospital for his medical treatment. This is in more consonance with the documentary evidence which is proved on the record in the shape of ruqa Ex.PH. The conduct of Baljit Kaur speaks of her innocence when it is established that she brought the injured to the hospital as is evident from Ex.PH.
19. The prosecution in this case is relying upon oral dying declaration allegedly made by Harbans Singh to Jaspal Singh. We have already held above that Jaspal Singh came at the scene after the death of Harbans Singh and therefore there was hardly any occasion for Harbans Singh to give a narration at about 8.00 or 8.30 p.m. as to under what circumstances aluminium phosphide was given to him. We are also in lurch as to whether Harbans Singh could make a statement at about 8.00 or 8.30 a.m. when he admittedly expired at 9.15 p.m. just after 45 minutes of the alleged arrival of Jaspal Singh. There is no evidence on the record to suggest that on 4.7.1995 Jaspal Singh was present in the hospital or that he had gone there on coming to know about the condition of his brother. There could be some documentary evidence in the shape of bed head ticket or in the shape of some cash memos regarding the purchase of medicines etc. The doctor who admitted Harbans Singh in the hospital or the doctor who sent ruqa to the police station about the death of the patient were the best persons who could fix the presence of Jaspal Singh in the hospital on 4.7.1995 prior to the death of the deceased. The moment oral dying declaration is disbelieved by holding that there is no evidence that deceased was in a position to make that declaration or that Jaspal Singh was present in the hospital at the alleged relevant time, the story of the prosecution will fall to the ground like a house of cards especially when there is unexplainable delay in the arrival of special report to the Area Magistrate. When the FIR could be recorded within 10 minutes of the conclusion of the endorsement, why it took four hours to the police for the delivery of the special report to the Area Magistrate. There is no explanation in this regard from the prosecution.
20. The learned trial court relied upon the evidence of extra-judicial confession vis-a-vis Baljit Kaur. Strange enough the statement of PW4 Darshan Singh has been disbelieved vis-a-vis Balwinder Singh. If this is so how that very piece of evidence can be believed vis-a-vis Baljit Kaur because the case of this witness is that on 20.7.1995 when he was present at his house at about 10.00 a.m. Balwinder Singh and Baljit Kaur came to him and told that they administered poison to Harbans Singh by mixing into tea. This is a joint extra-judicial confession which is not admissible in evidence. Further it has come in the statement of PW4 Darshan Singh that Baljit Kaur further disclosed to him that since he had illicit relations wit Harbans Singh, therefore, she gave poison to him and now she had developed relations with Balwinder Singh and Harbans Singh used to object her relations with Balwinder Singh. This part of the version of Darshan Singh is again not acceptable because it does not become true on the yardstick of broad human probabilities. If Baljit Kaur had developed relations with Balwinder Singh, there was hardly any occasion on her part to take the deceased to the hospital. The very statement of Darshan Singh looks to be highly improbable. If the extra-judicial confession was made by Baljit Kaur and Balwinder Singh on 20.7.1995, what was the necessity on his part to allow them to go away from his residence. He should have either produced them before the police on the same day or at least he should have recorded their statement confessing their guilt. Darshan Singh further deposed that on the next day at about 11.00 a.m. the police was passing in front of his house and he stopped the police party and narrated the version earlier given to him by Baljit Kaur and Balwinder Singh. This conduct of Darshan Singh again looks to be highly improbable. The police met him per chance. On 20.7.1995 Darshan Singh does not go to the police station. He had no intention to go to the police station even on the morning of 21.7.1995. Had the police party not passed in front of his house, there was no occasion for Darshan Singh to make the narration about the alleged extra-judicial confession allegedly made by Baljit Kaur and Balwinder Singh. It is the case of Darshan Singh that after about one hour he produced Baljit Kaur and Balwinder Singh at Sanghera Chowk. What was the occasion for Baljit Kaur and Balwinder Singh to again go to Darshan Singh on 21.7.1995, has not been explained by the prosecution. Vis-a-vis Balwinder Singh the learned trial court has already disbelieved the alleged confessional statement of Darshan Singh and, therefore, in such a situation to rely upon the statement of Darshan Singh qua Baljit Kaur appellant does not look to be sound. Darshan Singh admits that Baljit Kaur is not related to him and that he was not on visiting terms with her. He never visited the house of Baljir Kaur and, therefore, it looks to be highly improbable that Baljit Kaur would repose confidence in Darshan Singh (PW4) regarding this matter. We all know that the evidence of extra-judicial confession is inherently a weak type of evidence and cannot be acted upon when it is a joint one made before a person who has no relationship with the accused and more so when the conduct of the witness is highly improbable.
21. Yet another circumstances which has been relied upon by the prosecution in this case was the evidence of discovery of the bottle containing poison and the discovery of the tumbler containing the contents of poison. These discoveries have already been disbelieved by the learned trial court vis-a-vis both the accused because the statement of Ravinder Kumar (PW5) does not inspire confidence. Firstly, these so-called discoveries have been made on 24.7.1995, after about 20 days of the occurrence and it is highly unlikely that the accused would keep the incriminating evidence in their power and possession for continuous 20 days. Also this witness runs a juice shop outside the police station and he is not in a position to disclose the locality where the house of Baljit Kaur was located. No independent witness was associated by the police before effecting the recovery except for Ravinder Kumar who appears to be a convenient witness for the police.
22. Then we are left with the medical evidence. Of course, the deceased had died on account of aluminium phosphide as has been certified by the Chemical Examiner but this circumstances alone will not advance the case of the prosecution. So far as the motive aspect is concerned, we have already stated that if there can be any possible motive that could be on the part of Balwinder Singh who might have wanted to eliminate Harbans Singh to have easy access to Baljit Kaur. This aspect of the case too appears to be doubtful because Balwinder Singh is an old man of 72 years. He may or may not have the motive.
23. Be that as it may, the fact remains that the prosecution has not been able to prove on the record that the deceased ever made any oral dying declaration before Jaspal Singh who is a related witness and has a direct interest in the success of the case. The so-called oral dying declaration is not proved from the solitary statement of Jaspal Singh. His statement lacks corroboration in material particulars and for the reasons stated above we are not inclined to endorse the judgment and order passed by the learned trial court vis-a-vis Baljit Kaur and the same are hereby set aside. We further hold and declare that the prosecution has not been able to prove the charge even against Baljit Kaur whose appeal is hereby accepted. She stands acquitted of the charge under Section 302 of the Indian Penal Code. She is ordered to be set at liberty forthwith if not wanted or required in any other case.
24. Let intimation about the acceptance of this appeal be sent to the Chief Judicial Magistrate, Sangrur and also to the jail authorities so that the appellant may be released forthwith.
25. The case property stands confiscated to the State and shall be destroyed according to rules after the result of the appeal, if any, filed by the State of Punjab before the Hon'ble Supreme Court.