Crl. Appeal No.208-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.208-DB of 1998 Date of Decision: 25.01.2008 Vijay ....Appellant. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. Tribhuvan Dahiya, Advocate for the appellant. Mr. J.S. Toor, Addl. A.G., Haryana for the respondent. ... J.S. Khehar, J. The instant appeal is directed against the judgement and order of the Sessions Judge, Faridabad, dated 17.3.1998, whereby the appellant - Vijay son of Ram Naresh, was held guilty for having committed the murder of Kamal Singh. He was, accordingly, convicted under Section 302 of the Indian Penal Code. The trial Court also found him guilty of having committed the offence punishable under Section 379 of the Indian Penal Code on account of his having committed theft of cash of Rs.8,000/- and other articles from the possession of Kamal Singh. On account of his conviction under Section 302 of the Indian Penal Code, the appellant – Vijay was sentenced to life imprisonment and to pay a fine of Rs.1,000/-. In Crl. Appeal No.208-DB of 1998 2 default of payment of fine, he was ordered to further undergo rigorous imprisonment for six months. He was also sentenced to two years' rigorous imprisonment and a fine of Rs.500/- on account of his conviction under Section 379 of the Indian Penal Code. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for three months. The aforesaid sentences awarded to the appellant – Vijay, were ordered to run concurrently. The prosecution version of the incident is, that the deceased – Kamal Singh, a railway employee, was waiting at Platform No.3 to board the Punjab Mail for his village. The accused – Vijay and a co-accused Purshotam met Kamal Singh at the Platform at Faridabad. On the asking of the accused – Vijay, the co-accused – Purshotam brought three bottles of 7 Up from the canteen at the Railway Station. The accused – Vijay mixed some poisonous material in a bottle of 7 Up which was offered to Kamal Singh. After having taken the cold drink (7 Up), the accused – Vijay boarded the Punjab Mail alongwith the deceased – Kamal Singh. Constable Hira Lal and Constable Sat Dev were posted for patrol duty on the same train. When the train crossed Kosli Kalan Railway Station, the aforesaid police officials noticed Kamal Singh vomitting. The deceased – Kamal Singh on being asked by the aforesaid constables on duty, informed them that the accused had mixed some poisonous substance in the cold drink offered to him at the Railway Platform at Fardabad. At the next station i.e. at Mathura Junction Railway Station, the aforestated constables on patrol duty, having arrested the accused – Vijay, handed him over alongwith Kamal Singh, to the Assistant Station Master. The belongings of Kamal Singh were also handed over to the Assistant Station Master. On the same Crl. Appeal No.208-DB of 1998 3 day, Kamal Singh died at about 2.25 PM. Consequent upon the post- mortem examination on the dead body of the deceased – Kamal Singh, it was learnt, that the death of Kamal Singh was due to poisoning. On the receipt of the aforesaid information from the Assistant Station Master, Mathura Junction Railway Station, First Information Report bearing No.171 was registered on 29.4.1995 at Police Station, GRP, Faridabad, in district Fardabad. On the completion of investigation, a challan was presented before the Chief Judicial Magistrate, Faridabad. On 31.7.1995, the Chief Judicial Magistrate, Faridabad, committed the case to the Court of Session for trial. On 31.8.1995, the Sessions Judge, Faridabad, framed charges against the accused – Vijay and Purshotam for having committed the murder of the deceased – Kamal Singh, under Section 302 of the Indian Penal Code. As against the accused – Vijay, an additional charge of having committed the theft of cash amounting to Rs.8,000/-, besides other articles from the possession of Kamal Singh, under Section 379 of the Indian Penal Code, was also framed. Both the accused were confronted with the charges to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined Dr. M.A. Khan as PW1. Dr. M.A. Khan, who had rendered first-aid to the deceased – Kamal Singh at Mathura Junction Railway Station, having suspected it to be a case of poisoning, advised his hospitalization at District Hospital, Mathura. The statement of Shri R.K. Adwal, Assistant Station Master, Mathura Junction Railway Station, was recorded as PW2. The statement of Constable Muna Lal of Police Station, Kotwali Mathura who Crl. Appeal No.208-DB of 1998 4 had taken the dead body of the deceased – Kamal Singh for post-mortem examination at Mathura, was examined as PW3. Hari Narain and Gaya Parshad, the brothers of the deceased – Kamal Singh, were examined as PW4 and PW5, respectively. The former is a railway employee, posted at Railway Station, Jhansi. He was a witness to the disclosure statement at the hands of the accused – Vijay and Purshotam which they had made at the time of their interrogation. He was also a witness to the recoveries made on the basis of the disclosure statements by the two accused. The second brother – Gaya Parshad had identified the dead body of the deceased – Kamal Singh at the time of post-mortem examination. The statement of Constable Raj Pal who had prepared the scaled plan at the place of occurrence at the Railway Station, Faridabad, was recorded as PW6. The statement of Chandu son of Yamuna, an employee of the contractor of the canteen from whom three bottles of soft drink were allegedly purchased by the accused at Platform No.3, Railway Station, Faridabad, was recorded as PW7. It would be pertinent to mention, that Chandu resiled from the statement made by him to the police. The statement of Sub Inspector Rajender Singh, was recorded as PW8. He had taken charge of the case property, handed over to him, and he handed the same to Inspector Ram Kumar of GRP, Faridabad . Constables Hira Lal and Sat Dev, GRP, Palwal, who were on patrol duty on the Punjab Mail and to whom the deceased – Kamal Singh had made his statement, were examined as PW9 and PW10, respectively. The statement of Partap Singh Meena, who attested Ex. PK i.e. inventory of the luggage produced by Constable Hira Lal – PW9 and Constable Sat Dev – PW10, in the presence of the Assistant Station Master, Mathura Junction Railway Station, was recorded as PW11. Dr. N.K. Mittal, Crl. Appeal No.208-DB of 1998 5 Surgeon, District Hospital, Mathura, who conducted the post-mortem examination on the dead body of Kamal Singh, was produced as PW12. The Investigating Officer – Om Parkash, Sub Inspector, GRP, Hissar, was examined as PW13. The prosecution also placed on record the report of the Forensic Science Laboratory, Madhuban as Ex.PJ. As per the aforesaid report, in so far as the broken injection ampoule recovered from the Railway Station, Faridabad is concerned, the same was containing Aldrin (from Ex.1a and 1b). In so far as, the sealed injection ampoule recovered at the instance of the accused – Purshotam is concerned, the same was stated to contain Chloroform (from Ex.3), whereas no common poison was detected in Ex.2 and 4. Ethyl alcohol was detected in Ex.1c. The statements of the accused – Vijay and Purshotam were recorded under Section 313 of the Code of Criminal Procedure, on 3.3.1998. Both the accused pleaded innocence and asserted, that they had been falsely implicated. On 12.3.1998, both the accused closed their defence evidence, without producing any defence witness. The Sessions Judge, Faridabad delivered the judgement in Sessions Case No.19 of 1995, on 17.3.1998, wherein the accused – Vijay was found guilty of having committed the murder of Kamal Singh, and was, accordingly, convicted under Section 302 of the Indian Penal Code. The accused – Vijay was also found guilty of serving poison to the deceased – Kamal Singh in order to commit the murder of Kamal Singh and to snatch Rs.8,000/- from him, besides the other belongings in his possession, and was, accordingly, convicted under Section 379 of the Indian Penal Code. The accused – Purshotam was, however, acquitted as the Crl. Appeal No.208-DB of 1998 6 allegations levelled against him could not be established on the basis of the evidence produced on behalf of the prosecution. After the accused – Vijay was granted hearing by the Sessions Judge, Faridabad on 17.3.1998, he was sentenced to life imprisonment and a fine of Rs.1,000/- under Section 302 of the Indian Penal Code. In default of payment of the aforesaid fine, he was ordered to further undergo rigorous imprisonment for six months. The accused – Vijay also sentenced to two years' rigorous imprisonment and a fine of Rs.500/- under Section 379 of the Indian Penal Code. In default of payment of the aforesaid fine, he was ordered to further undergo rigorous imprisonment for three months. The substantive sentences awarded to the accused – Vijay, were required to run concurrently. A perusal of the evidence produced by the prosecution, as well as, the judgement rendered by the Sessions Judge, Faridabad, reveal that the trial Court heavily relied on the dying declaration of the deceased – Kamal Singh, emerging from the statements of Constables Hira Lal - PW9 and Sat Dev – PW10, who were on patrol duty on Punjab Mail on the fateful day i.e. on 13.4.1995. Reliance was also placed on the report Ex. PJ from the Forensic Science Laboratory, Madhuban, coupled with the recovery of the ampoule at the behest of the accused – Vijay, which completed the entire chain of events leading to the poisoning of the deceased – Kamal Singh by the accused – Vijay. The trial Court arrived at the conclusion, that there was no basis for disbelieving the sworn testimony of Hira Lal – PW9 and Sat Dev – PW10, as they belonged to GRP, Delhi, and were not inimical to the accused nor were they shown to be in any manner friendly with the deceased – Kamal Singh. The report of the chemical examiner Ex.PJ dated Crl. Appeal No.208-DB of 1998 7 13.12.1995 which showed, that the stomach and its contents, pieces of spleen, liver and brain, loops of intestines and half of both the kidneys contained Aldrin (an organochloro pesticide), proved beyond any doubt, that the contents from the empty ampoule recovered on the basis of information furnished by the accused – Vijay, were poured in the bottle of cold drink offered by the accused – Vijay to the deceased – Kamal Singh. It was also concluded by the trial Court, that the murder of the deceased – Kamal Singh had been stage managed by the accused so as to snatch Rs.8,000/- and the other articles in possession of Kamal Singh. It is, therefore, that the trial Court convicted the appellant – Vijay, accused of having committed offences under Sections 302 and 379 of the Indian Penal Code. Shri Tribhuvan Dahiya, learned counsel representing the appellant invited our attention, first of all, to the statements of Constables Hira Lal – PW9 and Sat Dev – PW10. In order to shake the credibility of their statements, while referring to the examination-in-chief conducted on Constable Hira Lal – PW9, our attention was invited to the portion where the aforestated witness had stated, that Kamal Singh had told him while travelling on the Punjab Mail on 13.4.1995, that the accused – Vijay had taken away Rs.8,000/-, besides his other belongings, whereas, Constable Sat Dev – PW10 stated, that the luggage of the deceased – Kamal Singh was lying near his seat, but cash amounting to Rs.8,000/- belonging to the deceased – Kamal Singh was recovered from the accused – Vijay. Learned counsel also invited our attention to Ex.PK i.e. the list/inventory of articles recovered from Kamal Singh when he was brought to the office of the Assistant Station Master, Mathura Junction Railway Station. A perusal of Crl. Appeal No.208-DB of 1998 8 Sr. No.8 of the list of articles reveals, that a cash amounting to Rs.8,000/- was recovered from the possession of Kamal Singh. It is, therefore, the contention of the learned counsel for the appellant – Vijay, that a false story was concocted. The second contention of the learned counsel for the appellant – Vijay is based on the statement of Chandu – PW7. It would be pertinent to mention, that Chandu was an employee of the contractor of the canteen at the Railway Station, Faridabad. He denied the fact, that he knew the accused – Vijay and Purshotam. He also denied having ever made any statement to the police in connection with the present controversy. It is, therefore, that he was confronted with his statement recorded under Section 161 of the Criminal Procedure Code, by the Investigating Officer on 29.7.1995, wherein, he had asserted, that the accused – Vijay and Purshotam had come to the canteen on 13.4.1995 before the arrival of the Punjab Mail and had bought three bottles of cold drink. Since Chandu, the contractor's employee of the canteen at the Railway Station, Faridabad, had resiled from his earlier statement, it was the contention of the learned counsel for the appellant – Vijay, that an important chain in the incident remained unproved, and as such, the conviction of the appellant – Vijay at the hands of the trial Court was wholly unjustified. Last of all, learned counsel for the appellant – Vijay emphatically submitted, that the sequence of facts attributed to the appellant – Vijay, were the same as the sequence of facts attributed to the accused – Purshotam, and since Purshotam has been acquitted, the appellant – Vijay should also have been acquitted. We have given our thoughtful consideration to the submissions Crl. Appeal No.208-DB of 1998 9 advanced by the learned counsel for the appellant – Vijay. In so far as the first contention of the learned counsel for the appellant is concerned, it needs to be acknowledged that there are some discrepancies in the statements of Hira Lal PW9 and Sat Dev PW10, but we are of the view that the same would not have any serious implications to the result of the present appeal. Hira Lal and Sat Dev PW9 and PW10, were on patrol duty on the Punjab Mail on the fateful date. They were neither known to the accused – Vijay nor the deceased – Kamal Singh. If the fact that they had detained the accused – Vijay and handed him over to the Assistant Station Master, Mathura Junction Railway Station alongwith Kamal Singh and his belongings cannot be disputed, the basis for their having done so also cannot be disputed. The statement of the Assistant Station Master, Mathura Junction Railway Station, R.K. Adwal PW2 is on record, affirming the fact, that the custody of the accused – Vijay and the deceased – Kamal Singh was handed over to him by Hira Lal PW9 and Sat Dev PW10, as such we have no reason to doubt the veracity of the statement of the aforesaid two constables. The fact that emerges from their statements is, that the accused – Vijay was taken into custody on the statement of the deceased – Kamal Singh. In so far as the statement of hostile witness Chandu PW7 is concerned, we are of the view, that despite his statement, there is sufficient evidence on record to substantiate the poisoning aspect. It is not a matter of dispute, that the disclosure statement of the appellant – Vijay recorded by the Investigating Officer, resulted in the recovery of broken glass bottle, which after chemical examination, was stated to contain Aldrin (an organochloro pesticide) . The disclosure statement of the accused – Vijay is Crl. Appeal No.208-DB of 1998 10 Ex.PD and the recovery memo of the broken empty injection ampoule recovered after removing earth from the roots of a Shisham tree situated behind the 'water piao' at Platform Nos.2 and 3, is Ex.PD/1. The disclosure statement, as also, the recovery memo bear the signatures of three witnesses – Mangat Ram son of Partap Singh, Virender son of Rameshwar Lal and Hari Narain son of Bhaiya Lal, besides the Investigating Officer. The contents of the material recovered match the contents of the poisonous substance found in the various organs of the deceased – Kamal Singh, as is apparent from the report of the Forensic Science Laboratory, Madhuban, Ex.PJ dated 13.12.1995. One cannot lose sight of the fact, that in his statement, Kamal Singh while travelling on the Punjab Mail, had informed Constables Hira Lal and Sat Dev, PW9 and PW10, respectively that he had not eaten anything in the morning, except having taken a the cold drink offered by the accused – Vijay at the Platform of Railway Station, Faridabad. There is independent corroboration to the aforesaid statement, inasmuch as, the deceased – Kamal Singh had made a similar statement before the Assistant Station Master, Mathura Junction Railway Station, R.K. Adwal PW2 when he was taken there by the police personnel referred to hereinabove, on 13.4.1995. The statements of Constables Hira Lal and Sat Dev – PW9 and PW10 cannot be doubted as there is no reason for them to have made a statement against the accused – Vijay. Coupled with the statement of Sri R.K. Adwal – PW2, Assistant Station Master, Mathura Junction Railway Station and the statement of Kamal Singh now deceased made immediately prior to his death, was his dying declaration and comes within the purview of Section 32 of the Indian Evidence Act, 1872, recorded in the presence of PW2, clearly depicting that the accused – Vijay Crl. Appeal No.208-DB of 1998 11 had served him a cold drink purchased from a canteen at the Railway Station, Faridabad, and that, he was having cash to the tune of Rs.8,000/-, besides luggage, is sufficient, in our view, to establish the fact, that the deceased – Kamal Singh was offered a bottle of cold drink by the accused – Vijay at Platform No.3, Railway Station, Faridabad. It is also not possible to accept the last contention of the learned counsel for the appellant, that the sequence of facts attributed to accused – Vijay were the same as had been attributed to accused – Purshotam. In this behalf, it would be pertinent to notice, that the accused – Vijay had accompanied the deceased – Kamal Singh on the Punjab Mail on the fateful day, whereas the accused – Purshotam had not. Likewise, the accused – Vijay had been detained by constables Hira Lal and Sat Dev PW9 and PW10 from the Punjab Mail and had handed him over to the Assistant Station Master, Mathura Junction Railway Station, whereas that was not the case in so far as accused Purshotam is concerned. The prosecution version of the case is, that the accused – Vijay was travelling on the Punjab Mail alongwith the deceased – Kamal Singh with the sole object of stealing the cash in his possession, as also, his luggage after the poison administered to him had shown its complete effect. In order to rebut the aforestated motive, it was imperative for the accused – Vijay to show as to for what other reason he was travelling on the same train alongwith Kamal Singh. He neither availed of the aforesaid opportunity while recording his statement under Section 313 of the Criminal Procedure Code, nor lead any evidence in that behalf. For the aforesaid reasons, we find no merit in the last contention of the learned counsel for the appellant. In our considered view, the ocular evidence, as well as, the Crl. Appeal No.208-DB of 1998 12 expert evidence produced by the prosecution, coupled with the statement of the deceased – Kamal Singh himself, clearly establishes the guilt of the appellant – Vijay, namely, that he had poisoned the deceased – Kamal Singh by administering Aldrin to him in a cold drink bottle at Platform No.3, Railway Station, Faridabad, and accompanied him on the Punjab Mail with the sole motive of depriving him of the cash , as well as, the luggage in his possession. For the reasons recorded hereinabove, we find no infirmity in the conviction and sentence awarded to the appellant – Vijay by the Sessions Judge, Faridabad, on 17.3.1998. The instant appeal is, accordingly, dismissed. ( J.S. Khehar ) Judge. ( Sham Sunder ) Judge. 25.01.2008 sk.