Punjab-Haryana High Court
Om Parkash vs State Of Punjab on 9 December, 2011
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D 1071-DB of 2007
Date of decision: 09.12.2011
Om Parkash
.....Appellant
versus
State of Punjab
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.D.S.Bali, Senior Advocate with
Ms.Neha Mann, Advocate for the applicant-appellant
Mr.Pardeep Singh Poonia, Addl.A.G. Haryana
Jasbir Singh, J.
Appellant Om Parkash was made to face trial in an FIR No.57 dated 26.4.2006 registered in PS Bound Kalan district Bhiwani for commission of offences under Sections 302/328 IPC. It was allegation against him that by administering poison (aluminum phosphide/ celphos), he had committed murder of Rati Pal @ Rati Ram on 26.4.2006 between 11.30 am and 12.30 pm. It is an admitted fact that the deceased and the appellant accused were jointly running a brick kiln in village Rankoli. The appellant was partner in the business to the extent of 1/3rd share.
PW1 is the real nephew, PW2 and PW4 are the real brothers of the deceased. The process of law was set in motion on a statement made by Sanjit Singh (PW1) son of Sukhbir Singh (PW4) at 8.45 pm on the above date in PGMIS Rohtak. The above statement led to registration of an FIR (Ex.PH) at 10.30 pm on 26.4.2006. Special report reached the Illaqa CRA-D 1071-DB of 2007 2 Magistrate at 1.20 am on 27.4.2006. Statement of PW1 was recorded by ASI Hawa Singh (PW5). Relevant contents of the FIR (Ex.PH) read thus:-
"Stated that I am resident of above address. I am working as munshi on the Vijay Laxmi brick kiln Rankoli which is of my uncle Ratipal. This brick kiln is in motion for the last 8/10 years by my uncle Ratipal s/o Bhag Singh. At about six months ago my uncle Ratipal also allowed Om Parkash @ Parkash s/o Prithi Singh caste Rajput r/o Rankoli as 1/3 share in this brick kiln. Today in the morning I and my uncle Ratipal Singh came from Ranila to Rankoli on this brick kiln at about 11.30 am. I was driving the vehicle. I went to see the tractors on the brick kiln. My uncle was blowing Dhoop Bati in the office. After some time my uncle called me and said to leave Rajesh munim of Delhi coal wale on bus stand Bound Kalan. Then I left Rajesh on bus stand Bound Kalan and went to the shop of Naresh barber on masposh road to whom we have to take money. I met him and came back on our brick kiln. Om Parkash partner met me when he was going to his house at Rankoli on motorcycle. My uncle Ratipal Singh called me in and said I am feeling giddy. Call your uncle Rishi Raj we will go to Bhiwani. I went to Surya Brick Kiln Rankoli but my uncle Ratipal Singh is about to vomit but the vomiting did not come. I called Madan Jamadar s/o Satan Singh caste Balai (Harizan) r/o Jhalra PS Patan distt. Sikar. My uncle rati Ram stated that Om Parkash my partner has given me poison in Patasha. I informed my uncle Rishi Raj, Ramdhan and Sita Ram on telephone. My uncle Rishi Raj said that I am not at CRA-D 1071-DB of 2007 3 Bhiwani. Brought him on the clinic of Dr.M.L.Sharma then I brought him Bhiwani in that vehicle. Dr.M.L.Sharma gave him injection and medicine and said that took him to PGIMS Rohtak at once. That my uncle Rishi Raj and driver Sunil s/o Durjan Singh, Rajpur r/o Jatu Lohari took him to PGI Rohtak. I also went to PGI Rohtak and my father Sukhbir Singh also reached PGI Rohtak from Ranila and admitted him in PGI Rohtak. Doctor at once started to care him. My uncle Ratipal was expired after ½, ¾ hours. I have complete doubt that my uncle Ratipal has been given poison thing by Om Parkash @ Parkash s/o Pirthi Singh caste Rajput r/o Rankoli and due to that my uncle has expired. Legal action be taken against him."
As per evidence on record, ASI Hawa Singh (PW5) reached PGMIS Rohtak on receipt of a telephonic message. After recording statement of PW1, he sent intimation to the Police station on the basis of which FIR was recorded by SI Prahlad Singh (PW11). The investigating officer prepared inquest report on the dead body and sent it for post-mortem examination, which was conducted by Dr.Archana Gupta (PW12) on 27.4.2006 at 12.00 Noon. Parts of the liver intestine etc. were sent to the chemical examiner. Opinion regarding cause of death was not given. After receipt of chemical examiner's report (Ex.PX), cause of death was declared consumption of Celphos/ poisoning.
On completion of investigation, final report was put in Court. Trial was committed to the competent Court for adjudication. The appellant was charge sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced 12 witnesses and also brought on record documentary evidence to prove its case. Thereafter, statement of the appellant was CRA-D 1071-DB of 2007 4 recorded under Section 313 Cr.P.C. He claimed innocence and false implication. It was further stated by him that the deceased was under heavy debt, when unable to repay the same, he had committed suicide. The appellant also led evidence in defence.
The trial Court on appraisal of evidence found the appellant - accused guilty and accordingly vide impugned judgment and order he was convicted for commission of an offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- with a default clause. Hence, this appeal.
Counsel for the appellant has vehemently contended that it was a case of suicide and the appellant has falsely been involved in the same. To say so, reference has been made to the written notes left by the deceased (Ex.PB and Ex.PB/1), medical evidence on record, statement made by PW2 Rishi Raj stating that heavy amount was due to the creditors. Further reference was made to defence evidence brought on record to show above facts. It is stated that when the deceased failed to repay the loan amount, he committed suicide, with mala fide intention, the appellant was shown as a culprit. By referring to the mode and manner in which the appellant was involved in this case, it is stated that all witnesses are interested being nephew and brothers of the deceased and their testimony being bias cannot be relied upon. By making reference to the sequence of events, it is stated that as to whether when the deceased was shifted from the place of occurrence to the hospital, he was alive, it is not clear on record. The material witness to say so Dr.M.L.Sharma at Bhiwani was not joined in the investigation. Except bald statement made by the interested witnesses, there is nothing on record to prove that the appellant-accused was last seen in the company of the deceased. Death has occurred in the office of a running CRA-D 1071-DB of 2007 5 brick kiln. No employee was joined in the investigation. Stating the above fact, it is prayed that appeal be allowed and the appellant be acquitted of the charges framed against him.
Prayer made has vehemently been opposed by the State Counsel, who by making reference to the statement made by Sanjit Singh (PW1), argued that the deceased himself told him that poison was administered to the deceased forcibly, in a Patasha (sweetmeat), by the appellant-accused. To say that death was the result of poison, reference was made to the medical evidence on record. To strengthen case of the prosecution, contents of Ex.PB and Ex.PB/1 were also read in Court, wherein it is specifically stated that the deceased was killed by the appellant by giving him poison. Counsel further argued that there is nothing on record to show that the deceased was under debt, as alleged. He prayed that the appeal having no substance be dismissed.
After hearing counsel for the parties, this Court is of the opinion that the case put up by the prosecution does not inspire confidence.
PW1 Sanjit Singh (nephew of the deceased) is the prime witness. He has stated that he along with deceased was available in the office of brick kiln on 26.4.2006 at 11.30 am. Thereafter, this witness has gone to the bus stand to drop Rajesh, who was working as a munim with a coal supplier. Then this witness has gone to Naresh to collect some payment. Thereafter he came back to the brick kiln. To implicate the appellant-accused in this case, regarding last seen of the appellant-accused with the deceased, this witness has only stated as under:-
"When I was on the way to brick kiln accused Om Parkash met me while going on a motorcycle towards Rankoli." CRA-D 1071-DB of 2007 6
It is further stated that when this witness reached at the brick kiln, the deceased told him that he was feeling giddy and told him to call Rishi Pal (PW2) from Bhiwani. The witness then went to another brick kiln to call Rishi Pal. When he came back, deceased was trying to vomit. He was told by the deceased that poison was administered to him forcibly in a patasha (sweetmeat) by the appellant-accused. The said information was given to the family members on telephone. PW1 Sanjit Singh was asked to bring the deceased to Bhiwani, where as per case of the prosecution, he was examined by Dr.M.L.Sharma and then he was taken to PGIMS Rohtak, where he died after about 30/45 minutes. The above story of the prosecution was supported by Rishi Raj (PW2). This witness has stated that he was informed by the deceased regarding forcible administration of poison by the appellant-accused.
This Court feels that the oral testimony is in contradiction to the facts and medical evidence on record. Age of the deceased was about 48 years. Appellant is also of the same age. The deceased was a well built person. It was case of one against one. In that situation, this Court is of the opinion that it was not possible for the appellant-accused to forcibly administer poison to the deceased, that too in a patsha (sweetmeat). No sign of use of force was detected on the face of the deceased at the time of post- mortem examination.
Furthermore, as per case of the prosecution, poison was administered to the deceased between 11.30 and 12.30 pm on 26.4.2006. After consuming celphos /poison as per PW1, PW2 and PW4 the deceased remained alive till such time he was shifted to PGIMS i.e. at about 3.30 pm. To say that the deceased was alive when he was shifted from brick kiln to Bhiwani, Dr.M.L.Sharma was not associated in the investigation. As per CRA-D 1071-DB of 2007 7 Ex.PZ(intimation sent to the police by the doctor) the deceased was brought dead in PGIMS Rohtak at about 2.45 pm on 26.4.2006. In the said document, it was stated as under:-
"Alleged H/O forceful ingestion of some poisonous substance by somebody at Vijay Laxmi Batha at 11.00 am on 26.4.2006 near Vill. Ranila PS Bondh."
It was further stated that the dead body was brought by Sukhbir Singh (PW4) brother of the deceased. The intimation was sent at 3.25 pm. In the above document the appellant is not named as an accused. In FIR Ex.PH which was recorded on a statement made by PW1 Sanjit Singh, it is no where mentioned that Satbir Singh (PW4) had accompanied the deceased to PGIMS Rohtak. The sequence of events given above show that as per case of the prosecution after consumption of poison the deceased remained alive for about 3 to 4 hours. Celphos aluminium phosphide is a very deadly poison. If given, one can not survive for such a long time. Otherwise also, this poison has a very pungent smell and it is not possible to administer the same to somebody under deceit by mixing it in a patasha (sweatmeat). Dr.M.L.Sharma was not brought in the witness box to show that when deceased was taken to Bhiwani he was alive.
In view of above, story of the prosecution that PW1 Sanjit Singh was told by the deceased that he was forcibly administered poison by the appellant accused is doubtful.
It appears to be a case of suicide. Sukhbir Singh (PW4) brother of the deceased has specifically stated that after death of the deceased bricks lying at the brick kiln were auctioned for Rs.8/10 lacs. Remaining bricks were purchased by Krishan brother of the appellant/ accused. It is further admitted that above amount was deposited with the Panchayat and the same was used to repay debt amount of the deceased. Besides as above, it is CRA-D 1071-DB of 2007 8 positive case of the appellant-accused and also coming out from the alleged writings by the deceased that the deceased was under debt and the Panchayat was arranged to settle the dispute regarding repayment to the creditors. DW1 son of the appellant-accused has also stated so in the witness box. Photocopies of the Pronotes and receipts were brought on record as marks DB, DC, DD, DE, DF, DG and DH. DW2 Sudhir has also testified that the deceased was under debt.
There is likelihood that with a view to avoid repayment of debt and to save his family, the deceased appears to have created the writings Ex.PB and Ex.PB/1 alleged to have been recovered by PW4 Sukhbir Singh from pocket of the deceased. Above four writings are on two pages and are very neat and appears to have been written with a composed mind. The writings show that the deceased was under debt. Two writings at Ex.PB read thus:-
"Mein Gaddi Par Leta Hua tha. Om Parkash motorcycle par aaya or bola Hawaldar, Meine Kaha, Han Bhai Sahab, Patasa Nikala, Mere Muhun Ki Taraf Kiya. Maine Kaha Kya Kar Raha Hai. Mera Muhun Pakar usne andar thok diya or sath me pani ka glass muhun par lagakar pila diya. Uske bad motorcycle par chadh kar ghar ki taraf chala gaya. Maine diary me se panne phare aue likhna shuru kar diya. Bhathe ka tax nahi bhara hai. Royalti bhi nahi bhari hai. Meri rakam bhate mein 30,00000/- tis lakh lag rahi hai. Is hatiyare Om Parkash nein ikrarnama likhwaya hai lekin ek rupaya na diya hai. Bhageshwari bank loan Gramin Kashetriya bank ka loan, society ke 35000/- rupees Sd/- Rati Ram 26.4.06." CRA-D 1071-DB of 2007 9
"Aur Jo admi paise mangte hein unki dendari Om Parkash hatiyara karega kiyonki usne mere ko jahar pilaya hai patase mein dekar. Mein apni sachi aatma se likh kar ja rahan hun. Es hatiyare ne mujhe duniya se aalag kar diya hai aur mere parivar ka koi bhi aadmi paise nahi dega. Hatiyara Om Parkash hi dega kiyonki isne meri jaan li hai aur bhai sahib es hatiyare Om Parkash ke hadon mein se paise nikalwana. Ek copy DC sahib ke pass. Ek copy CM ke pass bhejna ji Ram-
Ram. Sd/- Rati Ram 26.4.06."
Similarly, two writings in document Ex.PB/1 read as under:-
"Bhathe ka malik Bholu s/o Sukhbir ko batana kiyonki len den wohi karta hein. Rishiraj, bhai Ramdhan Jhojhu Ki madad kare.
Aur Bhai Sahab Ram Avtar Daya Ram ko aadha hissa gehu nahi dekar gaya hai. Who lena aur 9 katte yani 286 uske pass rakhe hein, who lena paise maine dei rakhe hein"
150,000/- Lala son of Pirthi ke diya 1.12.05 mein 150,000/- Balu son of Pirthi ke diya 1.11.05 125,000/- Badan rathi hath udhare 4.2.2006 ko diya Sd/- Rati Ram 26.4.06 "40,000/- Ki payment reh chuki hei. Purani ho chuki hei payment. Gram Panchayat Mandoli ki tarih peshi noven mahine mein hai. Tarikh pata ka lena. Bondvasi bahiyon ka case kar rakha hain. Brijpal wakil se pata kar lena.
Pancho bhaiyo ko ram ram Kahna, mausi ke par chhuna pair sabhi thekedar bhainyon ko ram ram kehna. Mere ko Om Parkash hatiyare ne mar dala hai. Sd/- Rati Ram 26.4.06." CRA-D 1071-DB of 2007 10 Perusal of the above documents show that those writings could not have been written when the person is under the influence of the poison especially, Celphos. The writings appear to be a creation of the deceased's mind to save the family and to implicate the appellant-accused in the crime.
It is case of the prosecution that the poison was administered to the deceased mixed in a Patasha (sweetmeat). However, to the contrary, PW12 Dr.Archana Gupta in her statement has specifically mentioned that Aluminium phosphide was detected on the clothes of the deceased which shows that "the deceased may have consumed heavy dose of poison.". At the time of post-mortem examination, cloths of the deceased were taken in possession and sent to the Forensic Science Laboratory for chemical examination. As per report (Ex.PX), Aluminium Phosphide (Celphos) was found on the cloths of the deceased i.e. Ex.2. Regarding above material, following observation was noted in the above report:-
"Exbt-2 One white, terricotton 'Pajama'; one cut and torn, white terricotton shirt, one stripped, multicoloured, cotton underwear and one cut and torn white baniyan stated to be clothes of the deceased. All of the clothes except 'baniyan' were found profusely stained with some brownish coloured material. 'Baniyan' was found stained profusely with some yellow/brown coloured material."
It is positive case of the prosecution that stomach was not washed either by Dr.M.L.Sharma or in the PGIMS where the deceased was brought dead and further that the deceased had vomited at any time. The above report and the reading of the writings of the deceased Ex.PB and Ex.PB/1 clearly show that it was a case of suicide.
CRA-D 1071-DB of 2007 11
The above facts caste doubt about story of the prosecution, benefit of which should got to the appellant-accused.
In view of above, this appeal is allowed, judgment and order under challenge are set aside and the appellant is acquitted of the charges framed against him.
(Jasbir Singh)
Judge
09.12.2011 (Sabina)
gk Judge