"^ ^Ig ;<s,^v HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 101 of 1995 Shambhoo ^steUy^l Vs. StateofM.P. (Now State of Chhattisgarh) JUDGMENT For considn'"''' Sd/- . . SunaKumarSiaha •>g^^^ HON'BLE SHRI JUSTICE RAJEEV GUPTA ^^rr2-^—-- Sd/- Chief Justice •^jl 0» Post for Jud' Sd/- Juflge-' ^-^ /2- /2011 HIGH COURT OF CHHATTISGARH, BILASPUR CPRAM: Hgn'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT Criminal Appeal No. 101 of 1995 Shambhoo Soni S/o Balbhoo Soni, resident of Village Khandsara, Police Chauki Khandsara, Tahsil Bemetara, District Durg, M.P. (Now Chhattisgarh) Versus StateofM.P. (Now State of Chhattisgarh), (Criminal Appeal under Section 374 12) of The Code of Criminal Procedure. 1973) Appearance: Mr. V.G. Tamaskar, Advocate forthe appellant. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (i .03.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 29.12.94 passed in Sessions Trial No. 62/90 by the Sixth Additional Sessions Judge, Durg (Camp Bemetara). By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. (2) The facts, briefly stated, are as under:- Deceased- Rameshri Bai was a deserted lady. Her husband had deserted her 10 years back. She was living separately in village- Khandsara. The case of the prosecution is that the appellant developed illicit relations with the deceased, due to which a dispute arose in the family of the appellant. The allegations are Criminal Appeal No. 101 of 1995 that on 1.11.89 at about 8.00 a.m. the appellant given 2 tablets (sulphas tablets) to the deceased saying that they are vitamin tablets. The deceased took those tablets. At about 11.00 a.m. when she felt abnormal, she went to the police station and reported the matter to the police. Constable Kisanlat (PW-15) reduced the report in Rojnamchasahana No. 539 (Ex.-P/17) and sent her for medical examination to the local hospital vide memo Ex.-P/3-A. The deceased was examined by Dr. B.V. Tirki (PW-1). He found that pulse was just traceable; BP was 80/60 m.m. Hg; eyes were semi diiated; she was slightly reacting to light; she was semi conscious; and froth was come out from her mouth. After 20 minutes, the pulse became not traceable, BP also came to nil, her condition further deteriorated and she died. MLC report and the treatment given are contained in Ex.-P/3-A. An information was given to the police station by the Doctor vide Ex.-P/1. The Investigating Officer came to the hospital, gave notice (Ex.-P/S) to the Panchas and prepared inquest (Ex.-P/9) on the body of the deceased. The dead body of the deceased was sent for post- mortem. The post-mortem examination was conducted by a team of Doctors including Dr. N.K. Tiwari (PW-2). They found symptoms of poisoning. Viscera was preserved. It was sent for chemical examination to Forensic Science Laboratory, Sagar, from where, a report (Ex.-P/25) was received. According to the F.S.L. report poison was found in the viscera and the vomits of the deceased. It was detected as Aluminum Phosphate (sulphas insecticide). After completion of usual investigation, the charge-sheet was filed in the Court ofAdditional Chief Judicial Magistrate, Bemetara, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Sixth Additional Sessions Judge, Durg (Camp Bemetara), who conducted the trial and convicted & sentenced the appellant as aforementioned. (3) The Sessions Judge held that it was proved beyond reasonable doubt that the deceased died on account of consuming poison. On the ^ Criminal Appeal No. 101 of 1995 question of involvement of the appellant as a person administering poison on the deceased, the main evidence was that of oral dying dedaration of the deceased before treating Doctor namely Dr. B.V. Tirki (PW-1) whose 161 Cr.P.C. statement was recorded by police in which he stated that the deceased had told the name of the appellant as the person who administered poison on her. There were other witnesses of oral dying declaration namely Jagnu (PW-4), Kunwar Singh (PW-5) and Khelan Das (PW-10). All the above witnesses did not support the case of the prosecution as they turned hostile. The learned Sessions Judge relied on the entry of Rojnamchasahana No. 539 written by Constable Kisanlal (PW-15), and treating it as dying declaration ofthe deceased, convicted and sentenced the appellant as aforementioned. (4) Mr. V.G. Tamaskar, learned counsgl appearing on behalf of the appellant, argued that the entries made in Rojnamchasahana No. 539 were highly suspicious; Constable- Kisanlal (PW-15) was not a reliable witness; the entry appears to be concocted; according to the physical condition of the deceased which was observed by the Doctor it cannot be said that she could have made declaration in the manner as contained in Rojnamchasahana dated 1.11.89 (Ex.-P/17). Therefore, the conviction based on the sole evidence of entry of Rojnamchasahana, treating it as a dying declaration, cannot be sustained. (5) On the other hand.Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. Criminal Auoeal No. 101 of 1995 (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) There is no dispute that the deceased died on account of consumption of poison which was Aluminum Phosphate (sulphas insecticide). The question is as to whether the appellant administered the said poison on the deceased? In Rojnamchasahana (Ex.-P/17) the entry has been made at 11.00 a.m. This contains the name ofthe appellant as a person giving 2 tablets to the deceased saying that they were vitamin tablets. The deceased was taken to the hospital immediately and she was examined by Dr. B.V. Tirki (PW-1) at 11.10 a.m. Dr. Tirki has mentioned in his report (Ex.-P/S) that history of the patient was "tablets sulphas (insecticide tablets) given by anybody". That is to say that it was not told to the Doctor either by the deceased ot his family members that the appellant gave the tabtets to the deceased. Apart from the above, Jagnu (PW-4), Kunwar Singh (PW-5) and Khelan Das (PW-10), who were the witnesses of oral dying declaration which the deceased allegedly made before the Doctor taking the name of the appellant and who claimed to be present during the treatment of the deceased completely turned hostile and deposed that the deceased never told the name of the appellant in the hospital to the Doctor as a person who gave the tablets to her. We find that 161 Cr.P.C. statement of Dr. B.V. Tirki (PW-1) was recorded by the police, in which, it was mentioned that the deceased told the name ofthe appellant, but Dr. Tirki denied to giving such statement to the police. Admittedly this statement was recorded after the death of the deceased. If the deceased would have stated the name of the appellant Criminal Aweal No. 101 of 1995 before Dr. Tirki, he would have mentioned it in the history recorded by him in the MLC report as above. Dr. Tirki has written that "insecticide was given to the deceased by anybody". (9) Apart from the above, at 11.10 a.m. her pulse was just traceable and the blood pressure was 80/60 m.m. Hg. Eyes were semi dilated and the deceased was slightly reacting to the light. The Doctor observed that she was semi conscious and froth was come out from the mouth. We doubt that in such situation, the deceased would be able either to give oral dying declaration at that time as claimed by the police or even she would have been in fit mental condition to give written dying declaration just 10 minutes prior to the said examination on which the entry of Rojnamchasahana was made. <• (10) According to the entries of Rojnamchasahana,ihe deceased clearly stated that 2 tablets were given to her by the appellant saying that they were vitamin tablets and she has taken those tablets treating as vitamin, but in the MLC report (Ex.-P/S) it is specifically mentioned in the history that sulphas (insecticide tablets) were given to her by anybody. The above entry was obviously either on the instance of the deceased or somebody else, but how it came as sulphas in the MLC report is not clear. If it was written on the instance of the deceased, then it would be inferred that the deceased was knowing that the tablets was sulphas and in that situation she would have told the name of the tablets to the police also in the Rojnamchasahana No. 539, but the same is not mentioned in the said document (Rojnamchasahana Ex.-P/1 7). Criminal Aupeal No. 101 of 1995 (11) Constable- Kisanlal (PW-15) deposed that the deceased came to the police station at about 11.00 a.m. and lodged the report that the appellant had given 2 tablets to her on which he made an entry in Rojnamchasahana and sent the deceased to the hospital. He admitted that at that time except Itwari Das- Constable No. 843, no Head Constable or other higher officer was present in the police station, therefore, he had to write Rojnamchasahana. Assistant Sub-lnspector S.P. Singh (PW-13) is Investigation Officer. He contradicts the above evidence of Kisanlal (PW-15). He clearly deposed that the deceased came to the police station on 11.00 a.m. and told in his presence that the appellant had given tablets to her which was reduced into writing in Rojnamchasahana by PW-15. He also claims that the deceased made oral dying declaration before the Doctor in his presence. But the above evidence, as we have already stated, is not supported either by the Doctor or by the persons who were admittedly present at the time of treatment ofthe deceased. lfA.S.1. was present in the police station and the deceased was making a named complaint regarding administration of poison upon her, which was disclosure of a cognizable offence, in all probability a First Information Report would have been registered by the police. This was not done. It appears that for filing the said lacuna Constable- Kisanlal (PW-15) deposed that he alone along with an other Constable was present in the police station, therefore, he reduced the report into writing in Rojnamchasahana. There is no reason before us to disbelieve the entry made by Dr. B.V. Tirki (PW-1) in MLC report in which he simply mentioned that sulphas tablets were given by anybody and he did not mention the name of the appellant. On the face of this entry his Criminal Apueal No. 101 of 1995 ^^9yl 161 Cr.P.C. statement appears to be concocted. All this create a doubt on the solitary evidence of entry in Rojnamchasahana, on which, the learned Sessions Judge has relied treating it to be the dying declaration of the deceased. We also doubt that in the above physical and mental condition as is mentioned in the MLC report which was just after 10 minutes of entry of Rojnamchasahana, the deceased would be able to make a dying declaration at the relevant time in the manner in which it has been mentioned in the Rojnamchasahana. For the foregoing reasons, the entry of Rojnamchasahana appears to be doubtful and the conviction based on the solitary evidence of the above entry treating it as a dying declaration cannot be sustained. (12) In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC ar'e set-aside. The appellant is acquitted of the charges framed against him. The appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/'- Chief Justice Sd/- Sunil Kumar Siaha Judge vatti