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2001 DIGILAW 1069 (PNJ)

Atish v. State Of Haryana

2001-10-03

A.S.GARG, HARJIT SINGH BEDI

body2001
Judgment A.S.Garg, J. 1. The appellant was friendly to Surinder deceased. The latter developed illicit intimacy with Minakshi niece of the former. On 30.7.1996, at about 9.00 A.M. Atish came to the house of the deceased and took him to his house, within the area of Police Station, Meham, district Rohtak. At about 10.30 P.M. one Joginder came to the house of Surinder and told Smt. Sunheri Devi PW-9, mother of Surinder, that her son was admitted in the clinic of Dr. Arjun Goel at Meham as he had consumed tablets. On this Daryao Singh PW-5, brother of Surinder went to the clinic of Dr. Goel along with his friend Subhash PW-6. As the condition was serious, Surinder deceased was removed to Medical College, Rohtak. On the way Surinder made on oral dying declaration before Daryao Singh PW-5 and Subhash PW-6 that he was given some poisonous substance by the appellant. Later on Surinder died at Medical College, Rohtak. Appellant Atish also got himself admitted in the said hospital. 2. On receipt of V.T. message HC Siri Kishan PW-4 went to PGIMS, Rohtak and enquired about the fitness of the appellant and Surinder deceased to make their statements but they were declared unfit to make statements. On the same very day he received a message that Surinder deceased had expired. He went to the PGIMS, Rohtak and found that none was present near the dead body of Surinder. On 31.7.1996 he recorded the statement Ex. PJ of Daryao Singh PW-5 in the hospital. He prepared inquest report Ex.PC and took into possession one sealed bottle from the doctor containing viscera. The dead body was sent for post-mortem. The Head Constable also prepared report Ex. PM vide daily diary No. 15 dated 31.7.1996. He also recorded the statement of Atish appellant on 2.8.1996. On 12.8.1996, Smt. Sunehari PW-9 made her statement Ex. PN before the said Head Constable and on its basis formal F.I.R. Ex. PN/2 was recorded at 12.30 P.M. on 12.8.1996. The special report reached the learned Ilaqa Magistrate at 4.00 P.M. on 12.8.1996. On the same day ASI Nathu Ram PW-10 went to the house of the deceased and prepared rough side plan Ex. PZ. The appellant was produced by Subhash Chander on 13.8.1996 and was arrested. 3. Dr. PN/2 was recorded at 12.30 P.M. on 12.8.1996. The special report reached the learned Ilaqa Magistrate at 4.00 P.M. on 12.8.1996. On the same day ASI Nathu Ram PW-10 went to the house of the deceased and prepared rough side plan Ex. PZ. The appellant was produced by Subhash Chander on 13.8.1996 and was arrested. 3. Dr. Suman Yadav PW-1 conducted autopsy on the dead body of Surinder deceased on 31.7.1996 at 3.45 P.M. and after receipt of report of the Chemical Examiner Ex. PA gave her opinion that the cause of death was due to aluminium Phosphide poisoning. Report of the Chemical Examiner indicated that contents of Exhibits No. l and 2 gave positive test for aluminium phosphide and contents of exhibit No. 3 gave positive test for saline only. 4. At the trial, the appellant pleaded innocence and claimed that in fact he along with the deceased had taken poisonous substance themselves as they were fed up with the life of vagabond and fortunately he survived while the deceased passed away and he had no hand in the crime. However, the learned trial Judge keeping in view the oral dying declaration allegedly made by the deceased before Daryao Singh PW-5 and Subhash PW-6 convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for one year. 5. The learned counsel for the appellant has vehemently assailed the conviction and sentence of the appellant and has urged that there was virtually no evidence on record which could be said to be enough to say that the deceased could have any chance to make an oral dying declaration before Daryao Singh PW-5 and Subhash PW-6 or to say that the appellant administered the deceased any poisonos matter. Dr. Suman Yadav PW-1, who conducted autopsy admitted that it was her first case of conducting autopsy in her career. Dr. R.P. Verma PW-8, who had admitted the deceased in the hospital stated that the deceased must have taken the poison about 2-1/2 hours earlier to his having been brought to the hospital. As per record, he was taken to the hospital at 12.30 P.M. and he reportedly died at 6.15 P.M. the same day. Dr. R.P. Verma PW-8, who had admitted the deceased in the hospital stated that the deceased must have taken the poison about 2-1/2 hours earlier to his having been brought to the hospital. As per record, he was taken to the hospital at 12.30 P.M. and he reportedly died at 6.15 P.M. the same day. Daryao Singh PW5 stated that the deceased had not told Dr. Arjun Kumar Goyal DW.1 that the appellant had administered him the poison. This witness did not tell to any of the Medical Officers that the appellant had administered poison to the deceased. According to Daryao Singh PW-5, Surinder deceased made oral dying declaration when he was being transported from Meham hospital to Medical College, Rohtak. Subhash PW-6 stated that when Surinder deceased was being transported from Meham to Rohtak he was in a semi-conscious state and he made the oral dying declaration but again became unconscious. So there is evidence of only oral dying declaration. No Medical Officer could vouch safe that the deceased was in a position to make an oral dying declaration. It does not appear to be probable firstly that he was almost unconscious and then lie came to senses and made the oral dying declaration and then he became unconscious. Such a situation does not appeal to reason and a natural human conduct in the given circumstances. Moreover, there is no explanation of any kind of delay of 15 days with which the first information report was lodged. Smt. Sunehari PW-9 has not explained the delay nor the learned trial Court has been able to substantiate this question in its judgment. 6. We are, therefore, of the firm view that the evidence of the oral dying declaration in the case in hand is neither believable nor such an oral dying declaration could have been probably made by the deceased. It is immaterial that no poison was found in the stomach of the appellant. The delay in such case cannot be ignored. Hence, we find that there are sufficient reasons to set aside the conviction and sentence of the appellant. Hence, the appeal is allowed and the appellant is acquitted of the charge framed against him.