Om Prakash Jangid vs State Of Rajasthan

Appellant has filed this appeal challenging the judgment/order dated 15.12.2016 passed by the Trial Court, whereby, he was convicted and sentenced

qua offence punishable under Section 302 & 328 Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).

Appellant- Om Prakash Jangid was convicted and sentenced as under:-

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo one year simple imprisonment.

U/s. 328 IPC: Ten years simple imprisonment and to pay a fine of Rs.5,000/- and in default thereof to undergo six months simple imprisonment.

Prosecution story was set in motion on the basis of the report Exhibit P-23 lodged by the complainant Satish Kumar. On the basis of the report Exhibit

P-23, formal FIR Exhibit P-24 bearing No.402 dated 21.11.2011 was registered at police station Chirawa, District Jhunjhunu under Section 307, 328

IPC.

Prosecution story, in brief, as per the FIR is that appellant had taken Rupees twenty lacs from Ramavtar on the pretext of providing him a plot. On

20.11.2011, appellant called Ramavtar to his house between 6.00 a.m. to 9.00 a.m. and gave him a Bhabhuti (sacred ash) to consume. Ramavtar

informed the complainant about the said fact at his residence before losing his consciousnesses. After consuming the puriya (small paper packet),

Ramavtar left for his village. Ramavtar became unconscious and was removed to the hospital at Chirawa and from there he was referred to Sikar

hospital. Since, condition of Ramavtar was serious, he was referred to Jaipur and was got admitted in Soni hospital at Jaipur. Doctor disclosed that it

was a case of poisoning and Ramavtar was admitted in ICU on account of his serious condition. Appellant Om Prakash was a Tantrik (Occultist).

Ramavtar died on 21.11.2011 at 6.00 p.m. Thereafter, offence under Section 302 IPC was added in the FIR.

After completion of investigation and necessary formalities, challan was presented against the appellant.

Charges were framed against the appellant under Section 302, 328 I.P.C. Appellant did not plead guilty to the charges framed against him and claimed

trial.

In order to prove its case, prosecution examined twelve witnesses, during trial. Appellant when examined under Section 313 Code of Criminal

Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’), after the close of prosecution evidence prayed that he was innocent and had been

falsely involved in this case. He had not met the deceased prior to the incident nor had given him any Bhabhuti. He was not a Tantrik.

Appellant did not examine any witness in his defence.

Learned counsel for the appellant has submitted that the prosecution had failed to prove its case. In-fact, from the police proceedings recorded in

Exhibit P-23, it was evident that a fax message had been received from Satish Kumar with regard to the crime-in-question. However, the said fax

message was not attached with the challan and had been later taken on record as Exhibit P-20 on an application moved by the prosecution under

Section 311 Cr.P.C. A perusal of Exhibit P-20 reveals that it is purported to be signed by Sandeep in Hindi, whereas, Exhibit P19, application moved

by Sandeep to police station Jaipur bore the signatures of Sandeep in English. Thus, the fax message Exhibit P-20 had been created later by the

prosecution to strengthen its case. Moreover, as per the fax message, deceased was alive and the fax message had been sent on 21.11.2011 at 7.15

p.m, whereas, the deceased had already died on 21.11.2011 at 6.00 p.m. Moreover, PW-7 in his crossexamination deposed that they had sent

information to the police after the death of Ramavtar. As per PW-7, he had been told by his father Ramavtar that Om Prakash had administered him

Bhabhuti and the residue part of the Bhabhuti had been kept by him under the mattress. The ash, which was lying under the mattress was taken in

possession during investigation and as per the Forensic Science Laboratory Exhibit P-5, the said article did not contain any poison. PW-2 Sher Singh

and PW-3 Satyaveer had been later introduced as witnesses of the ‘last seen’ to strengthen the prosecution case. PW-2 is the brother of the

deceased and, in case, he had actually seen his brother vomiting, he would have immediately rushed him to the hospital. PW-2 was working as a police

inspector with Delhi Police and should have taken recourse to law immediately.

Learned state counsel who is assisted by the counsel for the complainant has opposed the appeal.

Learned counsel for the complainant has submitted that from the statements of the witnesses examined by the prosecution it was duly established that

the appellant had administered poison to Ramavtar on account of their money dispute. Appellant had to pay Rupees twenty lacs to the deceased and

due to this reason he had murdered him.

Present case relates to murder of Ramavtar.

As per Exhibit P-4, cause of death of the deceased was reserved till the receipt of report of Forensic Science Laboratory and Histopathology

Laboratory. Postmortem examination report Exhibit P-4 has been proved by Dr. Dinesh Sharma PW-5. Exhibit P-5 is the report of the Forensic

Science Laboratory and the relevant part of the same reads as under:-

Description of Articles

1). Stomach as whole with contents) Â Â Â Â Â Â Â Â Â Â Â Â Â In packet marked 1.

2). Piece of small intestine with contents.) Â Â Â Â Â Portions of viscera of Sh. Ramawtar.

3). Piece of Liver )

4). Piece of Spleen) Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â In packet marked 2.

5). Piece of Kidney)

6.). Plain Blood sample of Sh. Ramawtar) Â Â Â Â Â In packet marked 3.

7). Ash and Coal sample collected from crime scene) In packet marked A.

8). Vomit on cotton piece taken from Ritz Car) In packet marked F.

9). Vomit smeared sample of Sh. Ramawtar) Â In packet marked G.

10). Plain Soil sample) Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â In

packet marked H.

11). Ash like sample recovered from Om Prakash) Â Â Â In packet marked I

Result of Examination

On chemical examination, portions of viscera (1-5) washings of Vomit on cotton piece Exhibit (8), Vomit smeared sample Exhibit (9) and material

sample recovered Exhibit (11) from five packets marked 1, 2, F, G and I respectively gave positive tests for the presence of Aluminium Phosphide and

gave negative tests for metallic poisons, cyanide, alkaloids, barbiturates, tranquilizers and insecticides.

Portion of viscera (1-5) gave negative tests for ethyl and methyl alcohol.

Portions of Blood sample Exhibit (6) from packet marked (3) gave negative tests for metallic poisons, ethyl and methyl, alcohol, cyanide, alkaloids,

barbiturates, tranquilizers, insecticides and gave inconclusive results for Aluminium Phosphide and Zinc Phosphide.

Portions of Ash and Coal sample Exhibit (7) from packet marked (A) collected from crime-scene gave negative tests for metallic poisons, cyanide,

alkaloids, barbiturates, tranquilizers, insecticides and Aluminium Phosphide and Zinc Phosphide.

PW-2 Sher Singh deposed that on 20.11.2011, he was sitting in the veranda of his house. Satyaveer came at about 12 o’ Clock and started talking

to him. In the meantime, a white colour car bearing No. RJ 18 CA 5669 came and stopped there. Car was being driven by the appellant. Appellant got

down from the car. Appellant was working as a Tantrik and gave Bhabhuti. He had also taken Bhabhuti from him. Ramavtar got down from the car

and entered his house. Thereafter, they heard noise of knocking at door. When they went inside they saw that his brother Ramavtar was kicking the

door and told him that he was not feeling well and was feeling vomitish. Thereafter, Ramavtar vomited. On enquiry, Ramavtar told him that appellant

had given him a Bhabhuti mixed with some poisonous substance. He helped Ramavtar to pass stools as he was suffering from loose motion. He took

the mobile-phone of his brother and informed his (Ramavtar) son Sandeep regarding the condition of his father. At about 1.00 p.m., Sandeep came

with a car and took Ramavtar to Chirawa. In the evening, condition of his brother was serious and he was taken to Soni Hospital, Jaipur, where he

died.

PW-3 Satyaveer has corroborated the statement of PW-2.

PW-2 Sher Singh is none other than the brother of the deceased and was working as ASI Delhi Police. In his crossexamination, he deposed that he

had only made a phone-call to the son of Ramavtar and had not made any effort to take his brother to the hospital. He had not informed the police

regarding the fact that Ramavtar had been administered poison. He had not gone to Sikar or Soni Hospital at the time of the treatment of his brother

Ramavtar. The conduct of PW-2 is most unnatural. He was none other than the brother of the deceased and was working as ASI Delhi Police.

Hence, he was well conversant with the criminal law and the legal procedure. In normal circumstances, he would have immediately informed police

regarding the crime disclosed to him by his brother. Moreover, he made no effort to immediately take his brother to the hospital. Hence, the possibility

that PW-2 and PW-3 might have been later introduced as witnesses to strengthen the prosecution case cannot be ruled out.

Complainant while appearing in the witness-box as PW-8 Satish Kumar has deposed as per the contents of the FIR.

PW-7 Sandeep is the son of the deceased. The said witness deposed that his father had accepted the appellant as his Guru. On 20.11.2011 at about

1.15 p.m., he had received a phone-call from his uncle that his father was not feeling well. Then he asked his friend Kuldeep to bring his car and they

took his father to Dr. Shankar Lal at Chirawa. On the way, his father disclosed to him that he was demanding back Rupees twenty lacs from Om

Prakash and he had called him to his house in this regard. Om Prakash had given him a Bhabhuti mixed with some poisonous substance. Dr. Shankar

Lal disclosed that it was a case of poisoning and Ramavtar was referred to Sikar. His father was then removed to S.K. Soni Hospital, Sikar and after

half an hour on account of his serious condition, he was got admitted in S.K. Soni Hospital at Jaipur where he died at 5.30 p.m. After the death of his

father, Satish Kumar told him that police officials were not lodging the report in his absence and he should go to Chirawa police station. Thereafter,

Satish Kumar went to Chirawa police station and the police officials asked him to get an application from the son of the deceased. Then, he sent

application Exhibit P-20 via fax to police station Chirawa and also sent the original application. In his cross-examination, he further deposed that

Exhibit P-20 was written at 11.00 a.m. on 21.11.2011. He did not have any receipt with him with regard to the application sent by him via fax. He also

admitted that from the time they had started from Shampura till they reached S.K. Soni Hospital, they had not lodged any report with the police as

they were busy in the treatment of his father. He admitted that his father had not told him that Om Prakash had given any beatings to him. His father

had told him that the part of the Bhabhuti which was administered to him had been hidden by the appellant under the mattress and the same was

recovered vide Exhibit P-21.

PW-6 Kuldeep has corroborated the statement of PW-7. In his cross-examination, he deposed that he had not informed the police regarding the

incident.

Thus, in the present case from the testimony of PW-7, it transpires that the a Bhabhuti had been administered to Ramavtar by the appellant and the

same was mixed with some poisonous substance. From cross-examination of PW-7, it further transpires that the residue Bhabhuti which had been

administered to Ramavtar had been kept by Om Prakash under the mattress. As per PW-7, the said fact had been disclosed to him by his father. It

has also been admitted by PW-7 that the Bhabhuti which was lying under the mattress was recovered vide Exhibit P-21. A perusal of memo Exhibit

P-21 reveals that a plastic bag containing Bhabhuti lying under the mattress of the bed was recovered from the guest room of the house of the

appellant on 24.11.2011.

Thus, Bhabhuti which was recovered from the bed lying in the guest room of the appellant is the most relevant piece of evidence. The said Bhabhuti

as per PW-7 is the residue of the Bhabhuti which was administered to the deceased by the appellant. As per report of the Forensic Science

Laboratory Exhibit P-5, the ash sample which was collected from the crime scene gave negative test for metallic poisons, cyanide, alkaloids,

barbiturates, tranquilizers, insecticides and Aluminium Phosphide and Zinc Phosphide.

Thus, the ash which was recovered from the crime scene did not contain any poisonous substance. In view of the report of Forensic Science

Laboratory, the story put forth by the prosecution that appellant had administered poison to the deceased by mixing the same in the sacred ash is

rendered doubtful.

It is a settled proposition of law that the prosecution has to prove its case against an accused beyond the shadow of the reasonable doubt by leading

cogent and convincing evidence. An accused is presumed to be innocent till proved guilty. Whenever, there is doubt in the prosecution story, benefit of

the same has to be extended to the accused.

Since, in the present case, prosecution story is rendered doubtful in view of the report of the Forensic Science Laboratory, hence, we are of the

considered opinion that the appellant is liable to be acquitted by giving him benefit of doubt.

Accordingly, this appeal is allowed. Appellant is acquitted of the charges framed against him by giving him benefit of doubt. Impugned Judgment/order

dated 15.12.2016 passed by the Trial Court are set aside. Appellant who is in custody, be set at liberty forthwith, if not required in any other case.

In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Om Prakash Jangid S/o Arjun Ram Jangid is directed to

furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective

for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the

appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.