CRA No.946-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 946-SB of 2000 Date of decision: 25.11.2010 Jangir Singh ..Appellant Versus State of Haryana ..Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN. Present: Mr. Akshy Kumar, Advocate for the appellant. Mr.Pradeep Virk, DAG, Haryana **** JITENDRA CHAUHAN, J.(ORAL) 1. This appeal has been filed against the judgment and order dated 19.9.2000 by which the learned Additional Sessions Judge, Sirsa convicted the appellant under Section 328 IPC and imposed sentence to undergo R.I. for a term of 3 years and to pay a fine of ` 1000/- or in default of payment to further undergo R.I. For six months. 2. In short, brief facts of the case are that Lajju Ram alias Najju Ram, PW6, complainant was administered some poisonous substance by the appellant, Jangir Singh, at about 10.30 a.m. on 18.8.1996 at the shop of Bhagwan Dass, PW7, where he was then working as a tailor. It is alleged that the appellant, Jangir Singh, prepared a couple of cups of tea out of which he served one cup to Lajju Ram alias Najju Ram. Bhagwan Dass, PW7, also arrived at the shop. Lajju Ram took one sip of tea and found that some small globular in his mouth. He took it out from his mouth and vomited. Bhagwan Dass, PW7, immediately removed the injured to the CRA No.946-SB of 2000 -2- hospital where Bhajan Lal, PW13, opined that it was some type of poison. Thereafter, he was shifted to the Civil Hospital, Sirsa, for further medical treatment. The motive behind serving this was stated to be the dispute regarding possession of land. Therefore, Jangir Singh, appellant was nursing a grudge against him and, therefore, administered poison to Lajju Ram, the complainant. 3. Shri G.S. Kotla, the Chief Judicial Magistrate, PW1, recorded the statement under Section 164 Cr.P.C. on the police application, Ex.PA. The accused was arrested on 22.8.1996. The samples of the substance were sent for chemical examination. After completion of the investigation, the challan against the appellant was presented. The learned Judicial Magistrate 1st Class, Sirsa, committed the case to the Court of Sessions for trial vide order dated 10.1.1997. 4. The learned Additional Sessions Judge, Sirsa, charged Jangir Singh, appellant under Section 307/328 IPC to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined Lajju Ram alias Najju Ram, PW6. Wasawa Ram, PW5, was examined to prove the lodging of the FIR, Ex.PF. Bhagwan Dass, PW7, was examined to corroborate the prosecution version. Shri G.S. Kotla, Chief Judicial Magistrate, PW1, recorded the statement, Ex.PB, of Lajju Ram alias Najju Ram, PW6, in the hospital on the application, Ex.PA, on 20.08.1996 at 2.30 p.m. 6. Subhash, Draftsman, PW2, proved the site plan, HC Dilbagh Singh, PW3, proved his affidavit, Ex.PD, and Constable Gokal Chand, PW4, proved his affidavit, Ex.PE. The prosecution examined Om Parkash CRA No.946-SB of 2000 -3- Tanvar, to prove Bed Head Ticket, Ex.PK. Dr. S L Aggarwal, PW10, Dr. Dharminder Singh, PW11, Dr. Rakesh Garg, PW12, and Bhajan Lal, PW13, were examined to prove the medical evidence. 7. SI Mahinder Singh, PW9, proved recording of FIR, Ex.PF/2, and ASI Om Parkash, PW14, proved statement, Ex.PF, of Wasawa Ram, PW5. 8. In his statement under Section 313 Cr.P.C. The accused pleaded as under:- “There is a party faction in our village. Bhagwan Dass PW got registered this case against me because there was some dispute regarding money between me and Bhagwan Dass and Bhagwan Dass PW wanted to get possession of the plot and the entire story has been concocted. I never suffered any disclosure statement nor got recovered anything. I have been falsely involved in this case”. 9. The learned Additional Sessions Judge, Sirsa, convicted and sentenced the appellant as stated above. He was acquitted of the charge under Section 307 IPC. 10. This appeal was admitted for hearing on 9.10.2000 on which date, his sentence was suspended and allowed bail. 11. The learned counsel for the appellant submitted that it is a false case and result of animosity between the parties. The prosecution witnesses have failed to prove any offence under Section 328 of the IPC against the appellant. He has further submitted that the statement of Lajju Ram, PW6, recorded under Section 164 Cr.P.C. is inadmissible in evidence. The chemical examiner report, Ex.DC, shows negative test for common poison CRA No.946-SB of 2000 -4- including mercury poison. The investigation is one-sided as the police has planted recovery of vial upon the accused-appellant. 12. On the other hand, the State counsel submits that the prosecution has fully proved its case by producing Lajju Ram, complainant as PW6. His statement is corroborated by Wasawa Ram, PW-5, and Bhagwan Dass, PW7. The motive to administer mercury is fully proved on the record. 13. I have heard learned counsel for the parties and minutely scanned the evidence. 14. Lajju Ram, PW6, stated in his cross-examination that after narrating the incident to his brother, he became unconscious due to excessive vomiting and he was semi-conscious when he reached the hospital on the tractor. Thereafter, he became unconscious. However, on bed head ticket, Ex.PK, it is mentioned that Lajju Ram, patient, was conscious between 18.8.1996 to 21.8.1996. The prosecution has tried to establish that Lajju Ram was unconscious and was unable to make a statement before the police. From the evidence, it appears that on the way to hospital, he was tutored. It is not clear as to how much quantity of mercury was consumed by Lajju Ram, PW6. Dr. Rakesh Garg, PW12, made it clear in his cross-examination that mercury is insoluble in water at ordinary temperature and further he admitted that quantity of mercury is not mentioned in the report, Ex.PU, so, it is not clear that how much quantity was consumed by the victim. 15. The case is based on solitary statement of Lajju Ram alias Najju Ram, PW6. Wasawa Ram, PW5, and Bhagwan Dass, PW7, are the witnesses before whom, PW6, immediately after consuming tea, came and CRA No.946-SB of 2000 -5- narrated the serving of some poisonous substance by Jangir Singh, appellant. Thereafter, Wasawa Ram and Bhagwan Dass brought Lajju Ram alias Najju Ram, PW6, to the hospital. Lajju Ram, in his examination-in- chief, has stated that “About 1½ years back about 10/10.30 AM the electricity went off. I slept outside the shop. Jangir Singh accused prepared tea and placed cups on the counter. Accused awakened me and asked me to take a cup of tea. While I was taking tea Bhagwan Dass owner of the shop also came there”. From these lines, it is clear that when Jangir Singh, appellant, allegedly prepared tea, Lajju Ram, PW6, was lying asleep and the accused-appellant awakened this witness and asked him to take tea. There is no direct evidence available on record as to who prepared the tea. There is no evidence at all whether the accused-appellant himself prepared the tea or got it prepared from some tea vendor. From this statement, it is clear that Bhagwan Das, PW7, came later on, after the tea had already been poured into cups on the counter of the tailoring shop. After taking tea, when Lajju Ram, PW6, started vomiting, he went to his brother, Wasawa Ram, PW5. No doubt, the evidence of Wasawa Ram, PW5 and Bhagwan Dass, PW7, can be read in evidence being res gestae but if the statement of Lajju Ram, PW6, is found to be untrustworthy, then the statements of these two witnesses are inadmissible and hence, no legal evidence. 16. Wasawa Ram, PW5, who is real brother of Lajju Ram, PW6, proved enmity with the accused-appellant. He stated in his examination that the motive behind the occurrence is that they had a plot in Village Sikanderpur, which was forcibly occupied by Nihangs. The same was got vacated by Wasawa Ram, PW5 and Lajju Ram, PW6, from those Nihangs. After vacation of the plot, Jangir Singh, accused-appellant, had started CRA No.946-SB of 2000 -6- lifting earth from the plot which was stopped by their elder brother, Shera. It means, both the parties were nursing grudge against each other. The enmity is a double-edged weapon where both the parties are inimical, the testimony of the witnesses has to be carefully scrutinized. If there is a motive to give poison in tea to Lajju Ram, PW6, by Jangir Singh, accused- appellant, then vice versa, there is also motive for these witnesses to falsely implicate Jangir Singh, accused-appellant, whenever there is a proper opportunity. The version as spoken by Lajju Ram, PW6, even if accepted that the accused-appellant had awakened him to take a cup of tea and this witness took the same, it is difficult to conclude that the poisonous substance was mixed in the tea by the accused-appellant. There is a possibility of mixing such substance by somebody else excluding the accused-appellant. 17. There is no corroboration to the ipse dixit of these witnesses with the medical evidence too. There is a very strong circumstance in favour of the accused-appellant which cannot be ignored, i.e., the report of the Chemical Examiner, Ex.DC, the contents of which are as under:- “Contents of the exhibit gave negative test for common poison including Mercury poisoning.” 18. The substance recovered in pursuance of the disclosure statement was mercury. The prosecution has failed to collect evidence that the accused-appellant was in possession of such poisonous substance or mercury or the source from where the accused-appellant procured it. It was necessary to collect such type of evidence because Lajju Ram, PW6, is solitary witness. 19. The solitary witness is being disbelieved on the point of taking CRA No.946-SB of 2000 -7- substance in tea allegedly served by the appellant, Jangir Singh, the recovery of glittering substance vide memo, Ex.PJ, in pursuance of disclosure statement, Ex.PH, of the accused-appellant, is insignificant. 20. Similarly, as Lajju Ram, PW6, appeared in Court, his statement, Ex.PB, recorded by Shri G S Kotla, Chief Judicial Magistrate, PW1, on 20.08.1996 at 2.30 p.m. cannot be read in evidence keeping in view the fact that firstly, Lajju Ram, PW6, appeared in Court and gave statement on oath and secondly, when his statement, Ex.PB, was recorded, this witness was not subjected to cross-examination. When this statement, Ex.PB, was recorded, the condition of Lajju Ram, PW6, was not so critical. 21. So, the cumulative effect of all the circumstances is that the prosecution has failed to prove the case against the accused-appellant beyond reasonable doubt. 22. Resultantly, this appeal is allowed, the judgment of conviction under Section 328 IPC and sentence is set aside. The accused-appellant is acquitted of the charge. His bail bonds shall stand discharged. (JITENDRA CHAUHAN) 25.11.2010 JUDGE Poonam (II)/atulsethi Note : Whether to be referred to Reporter ? Yes / No