Judgment

28-09-2021 Per G. S. Ahluwalia J.

This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 29-8-2008 passed by Additional Sessions Judge, Sironj, Distt. Vidisha in Sessions Trial No.141/2007 by which the appellants have been convicted and sentenced for the following offences :

Conviction under Section Sentence

328/34 of I.P.C. 7 years R.I. and fine of Rs. 1000/- in default 6 months R.I.

302/34 of I.P.C. Life Imprisonment and fine of Rs. 1000 in default 6 months R.I.

Both the sentences to run concurrently

2. According to prosecution story, an information was received from Community Health Center, Lateri, Distt. Vidisha to the effect that a patient has been brought in an unconscious condition and it has been informed by his brother that he has vomited and has consumed something.

3. On the aforesaid information, Ram Singh (Not Examined) conducted an enquiry. He also sent a requisition (Not filed) to the Tahsildar, Lateri, Distt. Vidisha to record the dying declaration. The dying declaration of the deceased, Ratan Singh was recorded. The deceased was referred to Higher Center for further treatment, however, he was declared dead by Hamidia Hospital, Bhopal. The postmortem was conducted. Viscera was preserved. In F.S.L. report, Aluminum Phosphide was found. The statements of the witnesses were recorded. The appellants were arrested. The police after completing the investigation filed charge sheet for offence under Sections 328, 302, 34 of I.P.C.

4. The Trial Court by order dated 10-8-2007, framed charges under Sections 328/34 and 302/34 of I.P.C.

5. The appellants abjured their guilt and pleaded not guilty.

6. The prosecution examined Shanker Singh (P.W.1), Munshilal (P.W.2), Dr. Vimla Prajapati (P.W.3), Chhotelal (P.W.4), Naresh (P.W.5), Ram Niwas (P.W.6), Aneesh (P.W.7), Dr. Ghanshyam Sahu (P.W.8), Gheesulal (P.W. 9), Sheshnarayan Bhandari (P.W. 10), and J.P. Dangi (P.W.11).

7. The appellants did not examine any witness in their defence.

8. The Trial Court by the impugned judgment and sentence, convicted and sentenced the appellants for the above mentioned offences.

9. Challenging the judgment and sentence passed by the Court below, it is submitted by the Counsel for the parties, that the prosecution has failed to prove the dying declaration of the deceased. The deceased was brought to the Hospital in an unconscious condition. There is nothing on record to suggest that he ever regained consciousness. The Doctor had not preserved the vomiting of the deceased. Aluminum Phosphide was found in the Viscera. According to Modi's Jurisprudence, Aluminum Phosphide becomes gaseous after coming into contact with Air and it is impossible to eat any sweet containing Aluminum Phosphide. The brother of the deceased himself has stated that since, the appellants belong to lower caste therefore, they donot eat anything from their hand and thus, the prosecution story that the appellants had offered tea and Peda (Sweet) to the deceased is false. Furthermore, the appellants had made a complaint to the police about the humiliation and outraging of modesty of appellant no.1, done by the deceased and the deceased was also summoned in the police station, then under this circumstances there was no reason for the appellants to offer tea or sweet.

10. Per contra, the Counsel for the State has supported the findings recorded by the Trial Court.

11. Heard the learned Counsel for the parties.

12. Before proceeding further, it would be appropriate to find out as to whether the death of the deceased Ratan Singh was Homicidal, Accidental or Suicidal?

13. Dr. Vimla Prajapati (P.W.3) has conducted the post-mortem of the dead body of Ratan Singh and did not find any external or internal injuries. As per her Opinion, the “death was due to cardio-respiratory failure as a result of suspected poisoning hence, viscera was preserved for chemical analysis and handed over to the Police Constable concerned.”

14. Duration of death was wit