Punjab-Haryana High Court
Anita vs State Of Haryana on 22 March, 2010
Author: Hemant Gupta
Bench: Hemant Gupta, Jaswant Singh
Crl. Appeal No. 151-DB of 2006 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 151-DB of 2006
Date of Decision: March 22, 2010
Anita ......Appellant
Versus
State of Haryana .......Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri N.K. Sanghi, Advocate, and
Shri Aditya Sanghi, Advocate, and
Shri Aditya Pal Singh, Advocate, for the appellant.
Shri Sandeep Vermani, Additional AG, Haryana.
HEMANT GUPTA, J.
This appeal is directed against the judgment and order dated 12/23.1.2006 passed by the learned Sessions Judge, Narnaul, whereby the appellant has been convicted under Sections 302 and 328 IPC and sentenced to undergo life imprisonment for an offence under Section 302 IPC and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo RI for a period Crl. Appeal No. 151-DB of 2006 [2] of 10 months and to undergo RI for 7 years under Section 328 IPC and to pay fine of Rs.7000/- and in default of payment of fine to further undergo RI for 7 months.
The prosecution case was set in motion on the basis of the statement of Smt. Prem Devi, Exhibit PL/2 on 23.9.2004. She stated that that she has one son, named, Mahesh Singh and daughter Maina. Her daughter is married. Mahesh Singh was married to Smt. Anita of village Luhari about 7 years ago. Mahesh, who used to work as labourer, has no child. The character of Smt. Anita was not good and she used to remain out of house for many days. On 21.9.2004, she came home in the evening after three days. On 22.9.2004 in the evening, Smt. Anita told that she would go anywhere and would not stay in the house. On this, she (Prem Devi) told this fact to her other family members. Her family members gathered in the morning of the day of occurrence and were preparing to leave the appellant to her parental home at Luhari. A vehicle was arranged. In the meanwhile, her brother Mangal Singh and her son Mahesh Singh, who used to live with his maternal uncle, came. She asked Smt. Anita to prepare tea and Smt. Anita prepared tea and brought two cups. One cup of tea was drunk by her son Mahesh Singh and another cup by Bhagirath @ Pappu son of Ram Kumar, resident of village Kheri. Her brother did not take the tea. Thereafter, Dashrath Singh son of Phool Singh, Tejpal Singh son of Rachhpal Singh, Mahabir Singh son of Phool Singh and Mahabir Singh son of Rangilal Singh , residents of the same village, along with Anita left for village Luhari in a vehicle. The tea was taken at 11.30 a.m. After 10 minutes, her son Mahesh Singh and Bhagirath became unconscious and she raised alarm. Her neighbours came and took away them to Kanina Crl. Appeal No. 151-DB of 2006 [3] hospital in a vehicle. Thereafter, she came to know that her son Mahesh Singh has expired and Bhagirath @ Pappu has been referred to Rohtak. The cause of death of her son is mixing of some poisonous substance in the tea by the appellant. On the basis of the said information, a ruqa was sent by the SHO, Police Station, Kanina. On such statement, FIR (Exhibit PL) was recorded.
The post mortem (Exhibit PH) on the dead body of Mahesh Singh was performed by PW9-Dr. Balwinder Singh, Medical Officer, Civil Hospital, Charki Dadri. He deposed that there was no external mark of injury present on the body. The scalper, skull, chest wall, pleura, pericardium, abdomen wall and peritoneum were found to be healthy. The brain, trachea, larynx, both lungs and the food pipe, were found to be congested. There was blood in the chamber of heart. The stomach, small gut, large gut with its contents, parts of lever, spleen and kidney were sent for chemical analysis. Opinion of the cause of death was withheld till the arrival of viscera report.
Bhagirath alias Pappu was medico legally examined by PW7-Dr. Rajesh Kumar Sharma, SMO, CHC, Kanina, vide Exhibit RD. He has referred the patient to the PGIMS, Rohtak. He has deposed that the general condition of the patient was poor, when he examined him at 1.30 p.m. and that the blood pressure was 160 MMHG. He was unconscious. He repeatedly vomited and mostly vomited out the infested food material. The patient had bronchorrsota. There was excessive salivation and pulse rate was 96 per minute. The patient had convulsions in the ward. Pupils of the patient were pinpoint. As per this witness, it was a case of suspected poisoning probably organophosphorus. He has further Crl. Appeal No. 151-DB of 2006 [4] deposed that Bhagirath, who was medically examined by him, is present in the Court and he identifies him from the marks of the identification given in the medico legal report. In the cross- examination, he has stated that celphos was definitely not consumed by the patient and that signs and symptoms of each case of poisoning are different.
The appellant was arrested on 24.9.2004. She suffered a disclosure statement (Exhibit PM) on 24.9.2004 itself, inter-alia, stating that vial of medicines containing poison was given to her by Bablu alias Nathia son of Balbir caste Swami resident of Kheri and that the letters written to her by him are kept by her in her house in a box and she can get the same recovered. On the basis of such disclosure statement, the vial and the love letters were recovered vide recovery memo Exhibit PN. The vial with label of Saduri cough syrup 100 ml, was recovered on the basis of disclosure statement. There was half liquid in the vial. She also produced three love letters, which were written by Nathia @ Bablu. Such vial was sealed with the seal `RK'. The parcels of vial and love letters were taken into possession vide Exhibit PO.
From the house of Smt. Prem Devi, a dolli containing milk and dollu containing remaining tea, frying pan in which the tea was prepared containing some tea leafs, plastic sieve and two tea cups, which were of steel, were recovered. The recovered dolli containing milk and dollu containing tea were put into separate empty plastic bottles. Separate parcels of dollu, dolli, milk bottle, tea bottle and recovered frying pan with tea leafs, sieve and two steel cups were prepared and the same were sealed with the seal `RK'. After use, the sample seal was handed over to the witnesses Surender Singh and Dashrath Singh on the same day i.e. Crl. Appeal No. 151-DB of 2006 [5] 24.9.2004.
It has also come on record that Smt. Prem Devi died on 18.7.2005 vide death certificate Exhibit PQ. The report dated 20.6.2005 of the Forensic Science Laboratory Exhibit PG, was received when the prosecution was leading its evidence and the trial Court issued a show cause notice to the Director, Forensic Science Laboratory, Madhuban, in not sending the report when the accused was in custody. The FSL report found organophosphorus pesticides in all the parcels, except parcels of viscera contained in Exhibits 5a to 5d. In respect of Exhibit 5a and 5b, it found Aluminium phosphide, whereas phosphide was detected in Exhibit 5c. In respect of Exhibit 5d, no poison could be detected.
PW9-Dr. Balwinder Singh has on the basis of FSL report deposed in Court that the cause of death of Mahesh Singh was Aluminium Phosphide. The prosecution has, inter-alia, examined PW13-Dashrath Singh, PW12-Shyam Singh, PW14-Tejpal Singh, PW15-Dr. Anurag Kaushal, who treated Bhgirath @ Pappu at Rohtak, PW16-Mahabir Singh and PW17-Laxmi Narain, Investigating Officer, in order to prove the charges against the appellant.
PW13-Dashrath Singh, is the material witness. Smt. Prem Devi in her statement Exhibit PL, has stated that Dashrath Singh was one of the persons, who proceeded to drop the appellant at village Luhari in a vehicle. PW13 has deposed that on 21.9.2004, he was called by Smt. Prem Devi. Tejpal Singh, Mahabir Singh, Surinder Singh, another Mahabir Singh and he himself were present there. Smt. Prem Devi told them that Smt. Anita had returned home after three/four days. He also enquired the matter from Smt. Anita. She said that she would positively go at 10 a.m. on the next day as she has promised someone. The appellant told Crl. Appeal No. 151-DB of 2006 [6] him that she did not want to live in her matrimonial home. All of them settled that Smt. Anita would be taken to her parental home next day. Mahesh Singh, husband of Smt. Anita had gone to his maternal uncle. A message was conveyed to him to come next day. On 23.9.2004 at about 11.30 a.m., when they were preparing to take the appellant to village Luhari, Mahesh Singh along with his maternal uncle Managat Ram came there. Smt. Prem Devi asked the appellant to prepare two cups of tea for her son and for her brother. Smt. Anita brought two cups of tea, out of which one cup was given by her to Mahesh Singh and another cup was offered to Mangat Ram, but he refused to take the same. The said cup of tea was given to Bhagirath @ Pappu, who was also sitting there. When Mahesh Singh and Bhagirath were taking the tea, they took Smt. Anita to village Luhari in a hired jeep. When they reached village Luhari, they received the message that the condition of Mahesh Singh and Bhagirath was serious, so they returned to their village in the jeep. Tejpal Singh, Mahabir Singh, Surender Singh and he (Dashrath Singh) had accompanied Smt. Anita from village Kheri to village Luhari and on returning back also. When they reached Hospital at Kanina, they came to know that Mahesh had expired and Bhagirath stands referred to PGIMS, Rohtak. The police officials reached at the house of Mahesh Singh, from where utensils containing milk, remaining tea, two steel cups having the residue tea, frying pan and plastic sieve and some tea leafs were taken into possession by the police. All these articles were sealed. Recovery memo Exhibit PO was prepared and was attested by him. He identified the sealed articles, which were taken into possession by the police from the house of Mahesh Singh deceased. He also identified Aluminium dollu and steel lota etc. In the cross- Crl. Appeal No. 151-DB of 2006 [7] examination, this witness could not depose about the duration of absence of the appellant. However, he has stated that when he was in field, he has seen her coming with some stranger in the evening. He denied the suggestion that he has not seen the appellant making the tea in the kitchen. He has further deposed that they reached village Luhari at 1.30/1.45 p.m. and returned from that village within 10 minutes. The information regarding the condition of Mahesh Singh and Bhagirath @ Pappu was given by Mukesh, who reached village Luhari on a motorcycle. He denied the suggestion that Smt. Anita was not present in the matrimonial home. He deposed that the appellant was detained in the matrimonial home in the evening of 24.9.2004, when the police came.
PW12 is Shyam Singh. He has deposed that the appellant had suffered a disclosure statement Exhibit PM in his presence. The parcels containing the articles recovered in pursuance of the disclosure statement were opened in the Court and the witness identified the contents thereof. In the cross- examination, the witness has deposed that the box from which the articles were got recovered, were having lock, which was opened by the accused. Key of that lock was with the accused. The lock was opened by the accused in his presence at about 3.30/4.00 p.m. on 24.9.2004.
PW14 is Tejpal Singh. He took the appellant to her parental home at village Luhari on 23.9.2004 along with PW13- Dashrath Singh and was present when the appellant was asked to prepare tea and she gave tea to the deceased and to Bhagirath. He has deposed in the cross-examination that PW13-Dashrath Singh is jeth (brother-in-law) of the appellant in relation. However, he Crl. Appeal No. 151-DB of 2006 [8] could not tell the name of the driver of the vehicle, which was hired to take the appellant to Luhari. He has not seen the appellant putting the extraneous material in the tea. He denied the suggestion that Mahesh has committed suicide and that the appellant did not prepare the tea and that she was not present at home.
PW16 is Mahabir Singh son of Phool Singh. He accompanied the appellant to drop her at her village and was present at the time of directing the appellant to prepare tea, the offering of tea by the appellant to Mahesh, her husband and to Bhagirath and then both of them taking tea. He has deposed that when they reached village Luhari, they came to know that Mahesh Singh and Bhagirath @ Pappu have become unconscious after taking the tea and that both were taken to hospital at Kanina. The cross-examination on the said witness, did not lead to any discrepancy or contradiction in the prosecution case.
PW17-Laxmi Narain is the Investigating Officer, who has deposed that he has taken into possession, from the spot, utensils containing remaining tea, two steel cups having the residue tea, frying pan and plastic sieve and some tea leafs and also one dollu having some tea, plastic bottle in which milk was put and the remaining tea of the dollu was also put in the plastic bottle. All these articles were sealed and taken into possession vide Exhibit PO. He stated that he conducted the inquest proceedings, the report of which is Exhibit PS. He has also moved an application to the Medical Officer, Mohindergarh, for post mortem examination of the dead body. It was on 24.9.2004, the appellant was arrested and she made a disclosure statement Exhibit PM and in pursuance of the disclosure statement, half filled bottle with some liquid and Crl. Appeal No. 151-DB of 2006 [9] three letters purportedly written by Bablu @ Nathia were recovered from the disclosed place. In the cross-examination, the witness has stated that there was only one cot in the room where the glass bottle was given to him by Smt. Anita. There were no drops of liquid found on the floor of the kitchen. He denied the suggestion that the disclosure statement of the appellant was recorded in the police station. He denied the suggestion that no recovery was effected from the appellant. He admitted that when steel cups, frying pan, plastic sieve and some tea leafs along with dollu having some tea, were taken into possession on 25.9.2004, the appellant was not present.
Reliable, cogent and consistent evidence has been led by the prosecution by examining PW13-Dashrath Singh, PW14-Tejpal Singh and PW16-Mahabir Singh in respect of preparing tea by the appellant and offering of the same to Mahesh Singh and Bhagirath. The witnesses have deposed that the accused-appellant had prepared the tea, which was consumed by her husband-Mahesh Singh and Bhagirath @ Pappu. They have consistently deposed that they have taken the appellant in a hired vehicle to her parental village at Luhari, but as soon as they reached Luhari, they received information about the condition of Mahesh Singh and Bhagirath. They came back to their village. The said statement has not been contradicted in any substantial manner by the defence. Therefore, the fact that the tea was prepared by Smt. Anita (appellant) and it is the said tea, which was consumed by the deceased Mahesh and Bhagirath, stands proved.
Though the dollu, dolli, cups and other utensils containing the remaining tea, were not taken into possession by the prosecution in the presence of the appellant, but that aspect itself Crl. Appeal No. 151-DB of 2006 [10] is not sufficient to doubt the correctness of the recovery of such articles. Utensils were recovered by the prosecution soon after they received information about the death of Mahesh Singh. Since the immediate cause, which led deterioration of the condition of the deceased Bhagirath, was the consumption of tea, therefore, it was natural for the prosecution to recover utensils, which are related to preparation of tea. It is on the next day, the appellant made a disclosure statement, which led to recovery of bottle "Saduri cough syrup (100 mls)", as well as the love letters. Though the author of the letters has not been examined, but the recovery of letters would show that the marital relations were not cordial between the appellant and the deceased. The disclosure statement of recovery of half filled vial, is in the presence of Dashrath Singh (PW-13) and Shyam Singh (PW-12).
Learned counsel for the appellant has vehemently argued that as per statement Exhibit PL given by Smt. Prem Devi, the appellant was not having cordial relations with her in-laws and that her husband and brother of Prem Devi came unannounced. Therefore, there was not enough time with the appellant to procure poison, mix it with the tea to be consumed by her husband.
We do not find any merit in the said argument. Though the husband was with his maternal uncle, but was to visit sooner or later his village, where his mother and wife were residing. The place of occurrence is not a place stranger to the deceased or to the appellant. It is matrimonial home of the appellant. The appellant had enough time to procure poison, store and use the same at an appropriate time. Therefore, it cannot be said that there was not enough time for the appellant to plan the mixing of poison in the tea to be consumed by her husband.
Crl. Appeal No. 151-DB of 2006 [11]
However, the main stress of the argument raised by the learned counsel for the appellant was that the Forensic Science Laboratory has found Aluminium Phosphide in the viscera, whereas the poison, which has been found in the vial recovered in pursuance of the disclosure statement of the accused-appellant and the remaining tea in the cups in the frying pan is organophosphorus. It is contended that the two poisons i.e. Aluminium Phosphide and organophosphorus have different chemical composition, therefore, the prosecution has failed to complete the link circumstances so as to hold the appellant guilty of the offence.
The said argument is attractive, but we do not find any merit in the same. As mentioned above, the Forensic Science Laboratory has given report when the learned trial Court issued a show cause notice to the Director, Forensic Science Laboratory, Madhuban for not giving the report. The said report, finding Aluminium Phosphide in viscera, is patently incorrect. The symptoms of poisoning of Aluminium Phosphide could not be found either in the post mortem examination of the deceased Mahesh Singh or in the medico legal report of Bhagirath @ Pappu.
Before we consider and analyse post mortem and the medico legal reports, a comparison of the symptoms and effect of the two poisons i.e. Aluminium Phosphide and Organophosphorus on the basis of the reputed text book and research papers, is tabulated below:-
Aluminium Phosphide Organophosphorus
(Celphos)
As per Modi's Texicology, 23rd Edition, 2009 Crl. Appeal No. 151-DB of 2006 [12] Symptoms Symptoms Symptoms are burning pain in the mouth, According to the route of entry the throat and stomach, vomiting mixed with respiratory or gastro-intestinal symptoms blood, dyspnoea, rapid pulse, subnormal are more marked. Early headache, nausea, temperature, loss of coordination, giddiness, anorexia, tightness of the chest, convulsions of a clonic nature and death. In oppression, dimness of vision, miosis the solid form, it acts as a corrosive in the twitching of the eye muscles, tremulous mouth and throat as it precipitates proteins. tongue and profuse frothing may be present. Later vomiting, sweating, salvation, oronasal froth, pallor, apprehension, incoordination, twitching of voluntary muscles accompanied by severe muscular weakness, mental confusion, diarrhoea, tenesmus, delirium, weakness and paralysis of respiratory muscles, areflexia, incontinence, bronchospasm, Post Mortem Appearance cyanosis, pulmonary oedema, convulsions, The toungue, mouth and oesophagus are coma and death may follow. Paralysis of oedematous and corroded. The mucous limb muscles as a sequal has been reported. membrane of the stomach is corrugated, loosened or hardened and is stained red or Muscarine-like effect:
velvety. The intestines are inflamed. Muscarine like effect on most of the organs/systems supplied by post ganglionic parasympathetic nerves, showing anorexia, nausea, vomiting, abdominal cramps, colic, sweating, salivation, bronchial spasm and profuse bronchial secretion, pupilary contraction, defective vision and cyanosis.
Restrosternal pain, bradycardia, hypotension may not be uncommon.
Nicotine-like effect:
Stimulation of nicotinic receptors at sympathetic and parasympathetic ganglia and at neuro -muscular junction will occur. This will be followed by depression.
Nicotinic stimulation and depression may be giving rise to various symptoms like arrhythmia, tachypnoea fasciculation, twitching and paralysis of skeletal muscles.Crl. Appeal No. 151-DB of 2006 [13]
Lyon's Medical Jurisprudence & Toxicology 11th Edition, 2009.Crl. Appeal No. 151-DB of 2006 [14]
Signs and Symptoms:-
Inhalation of phosphine or phosphide may Signs and cause severe pulmonary irritation. Mild symptoms exposure may cause only mucous membrane irritation, with initial symptoms Muscarinic effects mimicking an upper respiratory tract infection. Other symptoms may include nausea, vomiting diarrhoea, headache, GI Tract fatigue, and coughing, whilst more severe Nausea, symptoms may include ataxia, paraesthesia, vomiting, intention tremor, diplopia, and jaundice. diarrhea, Very severe cases may progress to acute abdominal colic, pulmonary oedema, cardiac arrhythmias, involuntary convulsions, and coma. Renal damage and defecation, leukopenia may also occur. increased peristalsis.
Salivary
Glands
Excessive
salivation
Eye (pupils,
ciliary body
and lacrimal
gland)
Lacrimation,
blurring of
vision, miosis,
papilloedema.
Respiratory
(bronchial
tree)
Bronchorrhoe
a,
breathlessness,
crackles, rales,
pulmonary
oedema,
respiratory
depression,
suffocation.
Heart
Crl. Appeal No. 151-DB of 2006 [15]
From Parikh's Textbook of Medical Jurisprudence, Forensic Medicines and Toxicology (Sixth Edition), 1999.
(Page No. 10.49) (Page No. 10.41) This is an effective pesticides and The main toxic effects are: (a) muscarine- rodenticide. It is sold under various trade like (b) nicotine-like, and (c) on the central names, eg. Celphos, Alphos, Fumigran, nervous system. phostoxin, etc. A 3 gms tablet, which As a result of muscarine-like effects the resembles a medicinal preparation, contains following symptoms and signs are 56 per cent of the active ingredient. It is observed:
easily available and cheap. Therefore, it is (1) Bronchial tree- Tightness in the chest frequently misused with homicidal intent in with prolonged wheezing expiration cases of dowry deaths in rural India; only a suggestive of bronchospasm and increased part of the tablet is usually sufficient for secretion. Therefore, there is discomfort or this purpose. The toxic effects are due to pain in the chest, dysponea, cough, liberation of phosphine gas when the tablet pulmonary oedema, froth at the mouth and comes in contact with gastric juice. nose, and cyanosis. The effect simulate Symptoms, signs, and other details are bronchial asthma.
similar to poisoning by zinc phosphide, (2) Gastrointestinal - Anorexia, nausea, discussed under zinc. vomiting, abdominal cramps, epigastric and substernal tightness (? Cardiospasm) with heartburn and eructations, diarrhea, tenesmus, and involuntary defaecation. (3) Sweat glands- increased sweating.
(4) Salivary glands - increased salivation. (5) Lacrimal glands- Increased lacrimation.
Tears may be red due to porphyrin in lacrimal glands.
(6) Heart- Slight bradycardia.
(7) Pupils - Slight miosis, occasionally unequal, and later more marked miosis.
(8) Ciliary body - Blurring or dimness of vision.
(9) Urinary bladder - Frequency of micturition and involuntary micturition.
From the paper titled as "Toxicology- Acute Aluminium Phosphide Poisoning in northern India" written by Dr. Mitra Basu and Prof. S.B. Siwach, Head of Department of Medicine, PGIMS, Rohtak, published in the Current Medical Journal of India, Vol.I, No. 5, July, 1995.Crl. Appeal No. 151-DB of 2006 [16]
Etiological Factors.
In a prospective study spread over a period of 14 months we studied all the 559 patients, who came to this hospital with the diagnosis of acute poisoning. 67.8% of them were of ALP poisoning followed by organophosphates (13.9%). All other constituted only 18.3% of the total cases. Although it was very difficult to obtain the true cause of self poisoning, but with persistent efforts we found that:-
a) All cases of ALP poisoning were suicidal (none accidental or homicidal)
b) Important precipitating factors were marital disharmony; economic hardships and disagreement/scolding/quarrel with other family members in 32.7, 15.3 and 11.6% cases respectively.
Diagnosis A spot clinical diagnosis is possible in majority of cases of ALP poisoning. A positive history and presentation of remaining stuff/container by relatives was available in most of the cases although (fearing legal action) most of them pretended having taken it accidentally mistaking it for a pain killer.
However, ALP on account of its very pungent smell (which can drive out all inmates from house if left open) cannot be taken accidentally. Silver nitrate paper test can be utilised for making a diagnosis in doubtful cases.
Such extracts from the Journals on Toxicology show that Aluminium Phosphide (celphos) is available in the form of chalky white tablets used as pesticide and rodenticide. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphine gas. All the published works are to the effect that Aluminium phosphide i.e. celphos tablet is not homicidal as it cannot be taken accidentally as it emanates highly pungent smell. In fact, the Hon'ble Supreme Court in Jai Pal v. State of Haryana, AIR 2002 Supreme Court 3447 has quoted extensively from Modi's Medical Jurisprudence and Toxicology as well as the paper titled as "Toxicology - Acute Aluminium Phosphide Poisoning in Northern India" written by Dr. Mitra Basu and Prof. S.B. Siwach, Head, Deptt. Of Medicine, PGIMS, Rohtak, and has concluded that Crl. Appeal No. 151-DB of 2006 [17] Aluminium Phosphide on account of its very pungent smell, which can drive out all inmates from house if left open, cannot be taken accidentally.
The post mortem examination on the body of Mahesh Singh shows froth and both lungs congested. None of the body parts was corroded or corrugated. The Medico Legal Report in respect of Bhagirath @ Pappu is proved by Dr. Rajesh Kumar Sharma, while appearing as PW7. He has deposed that the patient repeatedly vomited mostly vomiting infested food material. The patient has bronchorrsota and there was excessive salivation. The convulsion and the pupils of the patient were pinpoint. Such factors are the symptoms of poisoning by Organophosphorus as per the comparative symptoms of poisoning by Organophosphorus and Aluminium Phosphide extracted above. Bhagirath had excessive salivation, breathing problem and above all pinpoint pupils. PW7-Dr. Rajesh Kumar Sharma, who is a Senior Medical Officer, has in his examination-in-chief as well as in cross- examination has deposed that the suspected poisoning is organophosphorus. He has deposed that celphos was definitely not consumed by the patient. As against the said statement, the statement of PW9-Dr. Balwinder Kumar, Medical Officer, is based upon the report of the Forensic Science Laboratory, when it has reported that the poison was Aluminium Phosphide. Apart from congestion of trachea, larynx and both lungs, symptoms of corrosiveness, corrugated membrane of stomach and inflammation of intestine were not noticed by Dr. Balwinder Kumar, during the course of postmortem.
The administration of Aluminium Phosphide is ruled out accidentally. It cannot be mixed with tea for the reason of its Crl. Appeal No. 151-DB of 2006 [18] pungent smell as the phosphine gas is released immediately on its contact with moisture. Its contact with moisture or liquid will emanate pungent smell, which creates suspicion immediately to the person to be administered with poison. The prosecution witnesses are categorical to the effect that the appellant was asked by her mother-in-law to prepare tea for her brother who came there and for her son (husband of the appellant). Soon after the tea was administered, she left for her parental home along with PW-13 Dashrath Singh; PW14-Tejpal Singh and PW16-Mahabir Singh. Therefore, the prosecution evidence that the condition of deceased Mahesh Singh and Bhagirath deteriorated on drinking the tea, is based upon cogent and reliable evidence. The statements of the aforesaid witnesses are consistent. Such statements have not been shattered in the cross-examination, in any manner. Therefore, the argument raised by the learned counsel for the appellant that the prosecution has not been able to prove the poisoning, is not correct. The Aluminium Phosphide poisoning cannot be administered by deceit. Two persons cannot commit suicide at the same time and in the same manner. The recovery effected from the house of the appellant on the same day containing the remaining tea as well as utensils shows the poison to be Organophosphorus. The recovery of love letters and half filled vial is on the basis of disclosure statement (Exhibit PM). Therefore, the chain of the circumstances is complete, which proves the prosecution case without any reasonable doubt. The doubt is created only on the basis of the FSL report, reporting that the Aluminium Phosphide was the poison found in viscera. Such report of the FSL is contrary to direct medical evidence based upon the testimony of PW7-Dr. Rajesh Kumar Sharma, a Senior Medical Officer and the absence of Crl. Appeal No. 151-DB of 2006 [19] symptoms of Aluminium Phosphide, either in the post mortem examination or in the medico legal report also supports the prosecution case. The medico legal examination of Bhagirath, the post mortem report and the opinion of the experts as reproduced above, all lead to the conclusion that the poison administered was organophosphorus.
In Bhupinder Singh v. State of Punjab, AIR 1988 Supreme Court 1011, the Court has held that the report of the scientific experts may be used as evidence in any inquiry, trial or other proceedings of the Court in terms of Section 293 Cr.P.C., but the chemical examiner does not, as a rule, give an opinion as to cause of death, but merely gives report of chemical examination of the substance sent to him. It was held to the following effect:-
".....The report by itself is not crucial. It is a piece of evidence. The only protection to it is that it does not require any formal proof."
Therefore, the evidence of the report cannot be made basis to discard the entire prosecution story.
The argument that Bhagirath @ Pappu has not been examined in respect of the manner of incident, is again not of material consequence so as to throw doubt on the prosecution case. PW7-Dr. Rajesh Kumar Sharma, has deposed that Bhagirath @ Pappu was present in the Court when he made his statement on 5.4.2005. The Public Prosecutor has given up Bhagirath @ Pappu for the reason that he is not mentally well. Exhibit PP1, the treatment record in respect of Bhagirath at PGI, Rohtak is to the effect that the patient is medically handicapped. Therefore, non- examination of such witness is not sufficient to discard the Crl. Appeal No. 151-DB of 2006 [20] prosecution story.
In view of the above discussion, we find that the FSL report cannot be relied upon so as to cast a doubt on the prosecution story. In fact, the report itself is untruthful and seems to have been given in a casual manner. The higher officers of the FSL, will be well advised to examine the process of submission of the report and to find out the culpability of the officer negligent, careless and other circumstances, which might have prompted the examiner to give such dishonest report. Thus, in view of the eye witness account and the medical evidence, we find that the reliance on the FSL report is not tenable.
Consequently, we do not find any merit in the present appeal. Hence, the same is dismissed.
[ HEMANT GUPTA ] JUDGE [ JASWANT SINGH ] JUDGE March 22, 2010 ds