Matru Mal and anr. vs State of Haryana

S.S. Grewal, J.

This appeal is directed against the order of Sessions Judge, Kurukshetra, dated 1611987, whereby both the accused were convicted under Section 302/34, Indian Penal Code, and, each of them was sentenced to undergo imprisonment for life. These two accused were further convicted under Section 328 read with Section 34, Indian Penal Code, and were sentenced to undergo rigorous imprisonment for five years each, Criminal Appeal No. 37DB of 1987 has been filed by both the accused against their conviction and sentence, whereas, Narinder Pal, first informant, has filed Criminal Revision No. 170 of 1987 for the award of compensation to the heirs of the deceased. Both the appeal, as well as, the revision, shall be disposed of by one judgment.

In brief the facts of the prosecuti9on case, which emerge form the first information report lodged by Narinder Pal (P.W. 7), are, that his brother Anil Kumar (deceased) had entered into an agreement for purchase of shop No. 42 form both the accused, as well as, their father Rajinder Kumar, for a consideration of Rs. 48, 000/. Out of the said amount, Rs. 25, 000/ had been received by the accusedparty as earnest money from Anil Kumar (deceased), and, the saledeed was to be executed, and, registered on or before 1.6.1986. The accusedparty did not get the saledeed registered by the said date, and, would put off the matter on one pretext or the other, in spite of repated requests made by Anil Kumar (deceased) to the accused, either to get the saledeed registered or to return the earnest money.

On 7.6.1986 Anil Kumar (deceased) was called by the accused to their shop No. 41. The accused first gave Anil Kumar water, and subsequently, they served him with tea. After some time Narinder pal, first informant and his brother Surinder Pal heard sherieks of Anil Kumar. They along with other persons from the grain market went to the said shop. There Anil Kumar complained to them that both Ashwani Kumar, and, Matru Mal, accused, had administered poison in tea, he requested them to save him. Both Narinder Pal, and Surinder Pal took Anil Kumar in a car for treatment, first to Civil Dispensary. Ladwa, then to L.N.J.P. Hospital, Kurukshetra, wherefrom he was referred to P.G.I. Chandigarh.

On receipt of ruqa from Civil Dispensary, Ladwa, A.S.I Ram Prakash (P.W. 10) first went to the said dispensary and was informed by the doctor that Anil Kumar had already been referred to Kurukshetra, and subsequently to P.G.I. On receipt of this information, A. S.I. Ram Parkash (P.W. 10) along with other police officials, came to Chandigarh and recorded the statement of Narinder Pal P.W. at 11.10 P.M. on the same night. On the basis of the said statement, formal first information report was subsequently registered at police Station, Ladwa, at 10.40 A.M. On the next morning of the occurrence, special report reached the Ilaqa Magistrate at Kurukshetra on that very day at 2.30 P.M.

Anil Kumar died in P.G.I. Chandigarh on the morning of 8.6.1986. On receipt of this information, A.S.I. Ram Parkash went to the said hospital, prepared inquest report, and sent the dead body for postmortem examination which was subsequently conducted by Dr. K.K. Sharma (P.W. 12) at 1.00 P.M. on 8.6.1986.

Autopsy on, the dead body did not reveal any internal or, external injury. Both the lungs, liver, and spleen were congested. Visceras from the stomach were sent to the Analyst, who opined that death in this case could be caused due to administration of aluminum phosphide (celphos).

The accused when examined under Section 313, Code of Criminal Procedure, denied the prosecution allegations, appearing in evidence against them and, pleaded false implication. None of the accused, however, led any evidence in his defence.

After completion of the investigation the accused were challaned, tried, convicted and, sentenced as indicated above.

We have heard the learned counsel for the parties, and perused the record with their help.

The prosecution case rests entirely on the circumstantial evidence. It has alleged definite motive in this case. According to the testimony of Narinder Pal (P.W. 7) and, Shiv Kumar (P.W. 9), Rajinder Kumar, father of the accused, who was carrying on business of Commission Agent in Shop No. 41, had entered into an agreement to sell his adjacent Shop No. 42 in favour of Anil Kumar (deceased) for a consideration of Rs. 48,000/ on 1381985. Out of the said amount, Rs. 25,000/ had already been paid by the deceased to the vendor, and, the saledeed was to be executed on, or, before 1.6.1986. Rajinder Kumar father of the accused was not willing to execute the saledeed. Anil Kumar (deceased) moved an application before the Sub Registration on 28.5. 1986, which, came up before the said authority on 29.5.1986, and, was adjourned for 2.6.1986. Rajinder Kumar, father of the accused, wanted to let out the said shop Anil Kumar (deceased) asked Rajinder Kumar vendor several times, either to get the saledeed executed, or, refund the earnest money, already paid by him to the vendor. These circumstances do indicate that the accused party did not want either to execute the saledeed, or, part with possession of the shop in question even after receiving substantial amount as sale consideration. Apart from the fact that both the accused had no immediate interest in the shop in question, there was specific stipulation in the agreement that in case the saledeed was not executed by the due date because of the nonperfomance of his part of the contract by Anil Kumar, the earnest money, or, the amount already paid by him to the vendor, shall stand forfeited. In these circumstances it cannot be said that the motive would be entirely on the side of the accused to commit the murder of Anil Kumar.

The next circumstance relied upon by the prosecution is about the dying declaration alleged to have been made by Anil Kumar before Narinder Pal (P.W. 7), and, his brother Surinder Pal, According to Shiv Kumar (P.W. 9), he too was present at the spot when Anil Kumar made dying declaration to the effect that both the accused had administered poison to him in tea. The presence of Shiv Kumar P.W. at the relevant time is con spiquous by its absence in the first information report, alleged to have been recorded on the basis of the statement of Narinder Pal (P.W. 7). It has not been specifically mentioned by Narinder Pal, while appearing as P.W. 7, that Shiv Kumar P.W. too was present when the said dying declaration was made by Anil Kumar deceased before him, and his brother Surinder Pal. The only fact mentioned is that Narinder Pal P.W., along with his brother Surinder Pal, Shiv Kumar, and, others, removed Anil Kumar to Civil Dispensary, Ladwa. In case Shiv Kumar P.W., who was a business partner of Anil Kumar (deceased), had actually been present at the time when Anil Kumar allegedly made his dying declaration before Narinder Pal P.W. the latter would not have failed to mention this fact in the first information report. or in his statement during trial. Admittedly, Shiv Kumar, and, other persons had passed in front of Police Station, Ladwa, while Anil Kumar had been removed to Primary Health Centre, Ladwa. In case Shiv Kumar was actually present there at the relevant time, then he, at least, could have lodged the report with the Police.

As far as Narinder Pal (P.W. 7), is concerned, admittedly. he is working as a Munim in Shop No. 101 owned by M/s. Babu Ram Prem Chand. Apart from the fact that these two shops are situated in two different lines, the distance between the two was admittedly, more than 60 feet. It is difficult to believe that during the day time, when there was lot of hustle, and, bustle in the grain Market, Narinder Pal P.W. would be able to hear the cries of Anil Kumar, who was present at that time in shop No. 41. Thus, the reason given by Narinder Pal P.W. for going to the shop of the accused (shop No. 41), on hearing the shrieks of Anil Kumar, does not seem to be true. It is significant to note That the version given by Narinder Pal P.W. about the dying declaration, referred to above, was mentioned in his statement before the Police, which was recorded on 8.6.1986. No. such version was made before Dr. H.R. Guttain, Medical Officer Incharge, Civil Dispensary, Ladwa, when Anil Kumar (deceased) was taken there at about 2.50 P.M on 7.6.1986 or, to Dr. N.K. Doda, Medical Officer, L.N.J.P. Hospital, Kurukshetra, who referred the case to the P.G.I. Chandigarh at 4.50 P.M. on that very evening. Rather, in ruqa (Exhibit PC addressed by Dr. N.K. Doda to S.H.O. Police Station, it is mentioned that Anil Kumar who had taken poison, was admitted in the said hospital. All these circumstances cast grave doubt about the veracity of Narinder Pal, and, Shiv Kumar, P.W.s., about the dying declaration, alleged to have been made by the deceased before them, concerning administration of poison in tea by the accused. The testimony and report of Dr. Vijender Singh, Assistant Director, Forensic Science Laboratory, Madhuban (P.W. 11), does indicate presence of aluminium phosphide (celphos) in the stomach intestines, liver, spleen, kidneys, and, blood. In case small quantity of celphos upto 50 Miligram is administered in tea, there would be no effervescence, or, presence of odour, or smell, which can be detected in a cup of tea. Otherwise, garlic like odour, or, smell, at least, could be detected in case celphos exceeding 50 mg is administered in tea. Neither in the report, nor any medical expert has specifically mentioned that administration of aluminium phoshide upto 50 mg. in a cup of tea could prove to be a fatal dose. In these circumstances mere opinion of Dr. K.K. Sharma (P.W. 12), who conducted autopsy on the dead body of the deceased, to the effect that the cause of death in this case could also be due to administration of aluminium phospaide, cannot be considered sufficient to uphold the prosecution story about the administration of fatal dose of aluminium phosphide in a cup of tea.

Another important aspect of the case is that there is no evidence on the file from which it can be reasonably inferred that either the accused were in possession of aluminium phosphide, or, had the opportunity to mix up the same in the tea, brought from the shop of one Ramesh Kumar before the same was served to the deceased. Rather, all the circumstances would belie the prosecution story that fatal dose of the aluminium phosphide could be administered to the deceased in a cup of tea, without detection.

In the instant case it is quite evident that neither the prosecution has been able to prove the motive for the accused to commit the murder of the deceased, for there is any reliable evidence that the accused had aluminium phosphide (celphos) in their possession, or, that the accused had any reasonable opportunity to administer poison to the deceased. We are fortified in our view on this point by authoritative pronouncement of their Lordships of the Supreme Court in case Ramgopal v. State of Maharashtra. AIR 1972 Supreme Court 656. wherein under somewhat similar circumstances, neither motive, nor, administration of poison, nor its possession was proved, and, the accused were acquitted.

For the foregoing reasons, we are of the considered view that the prosecution has failed to prove all the links in chain of evidence so far complete as would be consistent only with the hypothesis of guilt of the accused, and, would be incompatible with their innocence.

Consequently we hereby set aside the order of conviction, and, sentence, passed against Matru Mal, and, Ashwani Kumar, accused, and, giving benefit of doubt, we hereby acquit them. Their appeal is, accordingly, allowed, whereas, Criminal Revision No. 170 of 1987, filed by Narinder Pal, is dismissed.