Himachal Pradesh High Court
State Of H.P vs Ajay Chadda Alias Aju And Others on 13 April, 2016
Bench: Rajiv Sharma, Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 366 of 2010
Reserved on : 12.04.2016
Date of Decision: 13.04.2016
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______________________________________________________________________
State of H.P. .....Appellant.
Vs.
Ajay Chadda Alias Aju and others .....Respondents.
Coram:
of
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the appellant
rt : Mr. M.A. Khan, Additional Advocate
General.
For the respondents : Mr. Satyen Vaidya, Senior Advocate,
with Mr. Vivek Sharma, Advocate.
Ajay Mohan Goel, J. :
The present appeal has been filed by the State against judgment, dated 31.03.2010, passed by the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in Sessions Case No. 15-P/VII/07/06 (Sessions Trial No. 13/10). By way of the said judgment, the learned trial Court has acquitted the accused of the offences alleged against them by concluding that the prosecution has miserably failed to prove the alleged liability of the accused persons beyond all reasonable doubts.
2. In brief, the case of the prosecution was that on 13.04.2009, police party headed by then SI/SHO Baldev Singh, Police Station, Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 2Bhawarna went to Kasba Sullah in the official vehicle. SI/SHO Balev Singh near temple Sur Sundary found a number of persons standing outside the temple and he also saw one Jyoti Parkash alongwith his wife Raj Kumari sitting inside the temple. SHO felt smell of some medicine .
there and he also brought Jyoti Parkash and his wife Raj Kumari to CHC Bhawarna in his official vehicle. While on the way to CHC Bhawarna, on inquiry by the SHO, Jyoti Parkash told him that accused Ajay Kumar and Sanjay Kumar had forcibly put powder in his mouth. At CHC Bhawarna, of Jyoti Parkash vomited and his vomitus and blood sample were preserved.
Jyoti Parkash was medically examined and thereafter referred to rt Palampur hospital, where he expired. In this background, the statement of Raj Kumari under Section 154 of the Criminal Procedure Code was recorded, wherein she stated that on 13.04.2009 at about 7:30 a.m., her husband Jyoti Parkash had left the house for Palampur to collect his pension. At around 8:45 a.m., she also went to Nalti bridge on the motor cycle of her son, where her husband was waiting for her. Thereafter, both of them went to Bhattu. According to her, at around 9:30 a.m., one Van came from Sullah side and accused Ajay, Sanjay, Satish, Pawan and Parveen came out from the said Van and they started beating Jyoti Parkash. Thereafter, Jyoti Parkash and his wife Raj Kumari were brought to temple of Mata Sur Sundari, Sullah in the Van by the abovementioned accused, where other accused, namely, Ranjna, Reeta, Pushpa, Bandna and Sharestha joined the abovementioned accused. Thereafter, all the accused gave leg and fist blows to Jyoti Parkash. According to Raj Kumari, the accused persons were saying that they would take Jyoti ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 3 Parkash to the Police Station, as the accused had tried to outrage the modesty of the mentally retarded daughter of accused Ajay Chadda. Raj Kumari further stated that she went to her home in order to leave some articles and when she came back, she saw that her husband was lying in .
the Verandah of the temple. Therefore, she took her husband inside the temple, who told her that accused Ajay Chadda and Sanjay Chadda had made him to consume some powder. Raj Kumari further stated that on the asking of Jyoti Parkash, she gave him water to drink and in the of meantime, police also reached at the spot.
3. After registration of the FIR, relevant investigation was rt carried out and the post mortem of the deceased was conducted. From the Verandah of the temple, police lifted the sample of powder, which was allegedly given to Jyoti Parkash. One diary written by Jyoti Parkash and one separate leaf which was also written by Jyoti Parkash were taken into possession by the police. Two vehicles alongwith documents were also taken into possession. The viscera as well vomitus and blood sample were sent to Chemical examination and the report of the Chemical examiner was obtained. The writing on the diary as well as separate leaf was sent to the Questioned Documents Examiner alongwith admitted hand writing of Jyoti Parkash and his opinion was also obtained. The police also recovered one glass and bottle of poison from the temple. During investigation, it transpired that accused Ajay and Sanjay had procured the poison from the pesticide shop of accused Anil Ohari. Therefore, the licence of the shop was also taken into possession and the necessary spot maps of Bhattu as well as Mata Sur Sundari temple, Sulah were prepared ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 4 by the Investigating Officer. Upon completion of the investigation, the challan was prepared and presented in the Court and all the accused were produced to face the trial.
4. The learned trial Court, after hearing both the parties and .
going through the record, found a prima facie case against accused Ajay Chadda and Sanjay Chadda under Sections 302, 201, 147, 323/149 and 342/149 I.P.C., under Sections 302 and 201 I.P.C. against accused Anil Ohari and under Sections 147, 323/149 and under Sections 342/149 of I.P.C. against accused Satish, Pawan, Parveen, Surestha, Reeta, Ranjna, Bandna and Pushpa. Changes were accordingly framed against all the rt accused and put to them, to which all the accused pleaded not guilty and claimed to be tried.
5. The prosecution, in order to substantiate its case, examined twenty witnesses. This was followed by recording the statements of all the accused under Section 313 of the Criminal Procedure Code, wherein all of them pleaded innocence. No evidence was led in defence by the accused, though opportunity in this regard was duly given to them. After hearing both the parties and after going through the record, the learned trial Court came to the conclusion that the prosecution was not successful in proving the liability of accused Ajay Chadda and Sanjay Chadda under Sections 302, 201, 147, 323/149, 342/149 I.P.C. and liability of accused Anil Ohari under Sections 302/201 I.P.C. and that of accused Satish, Pawan, Parveen, Sureshta, Reeta, Ranjna, Bandna and Pushpa under Sections 147, 323/149 and 342/149 beyond the scope of all reasonable ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 5 doubts. Accordingly, the learned trial Court acquitted all the accused as per operative part of the judgment.
6. We have heard the learned counsel for the parties and also perused the records of the case.
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7. Smt. Raj Kumari, wife of deceased has appeared as PW-1.
She has deposed in her statement that on 13.04.2009, her husband left the house at around 7:30 a.m. for Palampur to collect his pension and she accompanied her son up to Nalti bridge at around 8:45 a.m. on his of motor cycle, where her husband was waiting for her as she was also to go with him to Palampur. She further states that she went with her husband rt to Bhattu on foot and at around 9:30 a.m., they were waiting for the bus.
From Sulah side one Van came which went ahead of them and turned back and stopped in front of them. From the said Van, Ajay, Pappu, Satish, Gandhi and driver got down, who gave leg and fist blows to her husband. She further states that her husband was dragged and taken inside the Van. She was also caught hold of her arm and was made to sit inside the Van. Thereafter, they were taken to near Sulah Kasba temple where Rita Vandna, Ranjna, Shresta and mother of Ajay Pushpa accused were already standing, who also started giving beating to her husband.
She further states that she tried to save her husband, but she was also beaten up by the accused. She further mentions that at this stage, she went to her house to leave the articles and then came back on foot. When she returned back, she found her husband inside the temple under shed, who informed her that Ajay and his brother Pappu had administered some powder to him and he asked for some water. She further states that ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 6 she fetched water from outside the Kuhal to her husband and in the meantime, police came at the spot and the police made both of them to sit in the Van. She further states that on the way, police inquired from her as to what was consumed by her husband and she told the police .
that her husband has told her that Ajay and Pappu had administered him some powder. She further states that police also asked her husband, who also told that he was administered powder by Ajay and Pappu. In her cross-examination, she stated that at Bhattu, accused had beaten her of husband for about 10/15 minutes and every post of the body of her husband was hit by the accused with legs, fist and shoes and that her rt husband was dragged to 4-5 feet by Ajay and Pappu. Incidently, she admits in her cross-examination that these facts were not disclosed by her to the police. She further mentions in her cross-examination that her house was situated at a distance of 30 mtrs. from the temple. She further admits in her cross-examination that she had not disclosed to the police that before sitting in the Police Van she had gone to her house.
8. Head Constable Mohinder Singh has been examined as PW-
2, who at the relevant time was posted as I.O., Police Station Bhawarna.
He has stated that on 13.04.2009, he had gone to Sullah Kasba temple alongwith SHO and that inside the temple in the Varandah, Jyoti Parkash was lying down and Raj Kumari was sitting besides him. SI Baldev Raj made Jyoti Parkash to sit in the Government vehicle, who was thereafter taken to CHC Bhawarna. He further states that on the spot in the Varandah, there was one glass containing some water which was smelling of sulphas and that he poured the said water in one Kyam Churan plastic ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 7 bottle, which was brought to the Police Station. The SHO had prepared the memo Ex. PW2/A and that both glass and bottle of Kayam Churan were separately sealed in parcel with seal 'X'. In his cross-examination, he states that in the Varandah, Jyoti Parkash and Raj Kumari told the .
SHO that accused Ajay, Surinder and Anil Ohari had administered some medicine to Jyoti Parkash. He also stated in his cross-examination that they did not associate any independent witness out of so many persons present outside the temple.
of
9. Son of the deceased, namely Amit Kumar has entered the witness box as PW-3 and he has stated that on 13.04.2009, at around rt 7:30 a.m., his father had gone to Palampur to collect his pension and that at around 8:30 a.m., he left the house alongwith his mother on motor cycle and dropped his mother at Nalti bridge where his father was waiting for her. Thereafter, he went to the school and at around 11:00 a.m., he received a telephone call from his mother that his father had been beaten and he had been brought to CHC, Bhawarna for treatment.
He further states that he went to Bhawarna and saw that his father was serious and the doctor referred him to Palampur and that he was also told that his father had been administered poison. In his cross-
examination, he stated that when he received the telephonic information from his mother, he obtained leave from Head Master concerned and that the distance between Sidhpur Sarkari and Bhawarna is around 10 kms.
He further states that in his presence, the SHO did not record any statement of his father.
::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 810. PW-4 Ajay Bhushan has stated that he was driving the vehicle in which Jyoti Parkash was taken to CHC Bhawarna. In his cross-
examination, he has mentioned that SHO did not record any statement of Jyoti Parkash and that when Jyoti Parkash had verbally told SHO, the .
approximate time was around 10:30/10:45 a.m.
11. Smt. Hema Devi has been examined as PW-5, who was President of Mahila Mandal. She has mentioned in her examination that she keeps the keys of temple Sur Sundari Kasba Sullah and that she also of used to clean the temple. On 13.04.2009, Police had taken Jyoti Parkash from the temple and then closed the door. Thereafter, she put the lock rt and kept the keys. She thereafter opened the door when police came after 3-4 days and in between nobody had opened the temple. In her cross-
examination, she mentioned that on 13.04.2009, Jyoti Parkash and his wife were sitting in the Varandah and in her presence Ajay Chadda and Pappu did not put any powder in the mouth of Jyoti Parkash. She has further stated that Raj Kumari had left her husband in the temple and came back after some time. She has further deposed in her cross-
examination that during the period when Raj Kumari had gone to her house, she remained present in the Varandah of the temple and then Raj Kumari took her husband inside the room of the temple. She told that blood pressure of Jyoti Parkash was low and he was to be given some medicine and thereafter, after some time police came and Raj Kumari went to her house running. She further states that she did not see Raj Kumari administering any medicine to Jyoti Parkash.
::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 912. Sanjiv Kumar has been examined as PW-6, to the effect that police had taken into possession vehicle of Ajay Chadda in his presence.
In his cross-examination, he states that in his presence, Ajay Chadda and his brother Pappu did not put any powder in the mouth of Jyoti Parkash.
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He has further stated that Raj Kumari had given a glass of water to her husband Jyoti Parkash and that she was saying that she was to administer medicine of BP to her husband.
13. Dr. Arun Gupta (PW-10) is witness to the fact that on of 21.04.2009, Raj Kumari was examined by him and on examination, there was a superficial bruising on the right wrist joint, greenish yellow in rt colour and there was no swelling. According to him, the injury was simple caused with blunt weapon and duration was more than seven days.
14. PW-11 Vinod Kumar stated that he owns one Maruti Van and in April, 2009, the Car was used as taxi and its number was 'Applied For'.
Parveen Kumar was driver of the vehicle.
15. PW-12 Krishan Gopal is the owner of pesticide shop at Sullah, who has mentioned that the police had taken into possession the licence of his shop vide recovery memo Ex. PW12/A. Incidentally, in his cross-examination, there is no suggestion that the accused had purchased/taken any pesticides on the date of the alleged occurrence of the event.
16. PW-13 Rajesh Kumar did not support the version of the prosecution and was declared hostile, but in his cross-examination, the prosecution could not come out with anything substantial which could have corroborated the version of the prosecution.
::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 1017. Head Constable Paramjit Singh (PW-14) has stated that he was posted as MHC in Police Station Bhawarna and he has corroborated the deposits of sealed parcel etc. duly registered in Malakhana register.
PW-15 Pawan Kumar had deposited the parcels from Police Station .
Bhawarna to Forensic Science Laboratory, Junga.
18. Bisheeswar Sharma, Assistant Director, Regional Forensic Science Laboratory, Dharamshala has been examined as PW-16 and he has stated that he had prepared the report Ex. PW-16/A. He has further of mentioned that after examination, it was concluded that the writing, signatures, stamped and marked had been written by one and the same person.
19. rt Desh Raj Constable (PW-17) has deposed that on 23.05.2009, MHC Paramjeet had handed over to him one sealed envelope containing five seals of seal 'H', which were deposited by him with F.S.L. Dharamshala. Similarly, PW-18 Tarlochan Singh has stated that he was posted in Police Station Bhawarna and that on 13.04.2009 at 3:30 p.m., Constable Ajay Kumar had come with ruka Ex. PW2/A, upon which he had registered FIR Ex. PW18/A, which bears his signature. Kamal Kumar (PW-19) had prepared the CD of the post mortem of Jyoti Parkash which is Ex. PW19/A. SI Baldev has been examined as PW-20.
20. The prosecution has further examined one Sh. Chuni Lal as PW-7, who is a taxi driver. In his statement, he has stated that on 13.04.2009 at around 9:00 a.m., he had gone from Sullah to Nalti bridge with some local person. As per him, on his way back to Sullah side, when he reached at Bhattu, he saw Jyoti Parkash and his wife standing near ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 11 one Safeda tree and he asked whether he intended to go to Sullah. As per him, Jyoti Parkash refused and expressed by giving a signal that he intended to go Baijnath side. He further states that he had travelled about 40/50 paces. When he met Chhunnu driver, he was talking on .
mobile and uttered the name of Chadda. As per him, after 40-50 mtrs., one 'Applied For' vehicle came which was being driven by Parveen at the speed of about 60-70 k.m. per hours. On the seat adjacent to the driver in the said vehicle, Pawan was sitting. He further states that he came to of Nalti bridge and stopped there and at around 9:20 a.m., the above referred 'Applied For' vehicle came back and he followed the aforesaid rt vehicle. As per him, near Sullah temple, Jyoti Parkash alighted from the said vehicle and then he went to pick up the passengers. When he came back after picking up the passengers, about 150/200 persons were present near the temple and the road was blocked. He got down from the vehicle and saw that Jyoti Parkash was beaten by shoes and Chappals by the aforesaid 150/200 persons and wife of Jyoti Parkash was also with him, who was also being beaten up by them. He further states that wife of Jyoti Parkash went running away to her house while Jyoti Parkash remained there and then he saw mother of Ajay Chadda, who gave a leg blow on the private part of Jyoti Parkash, as a result of which, he fell down. He further states that then Ajay Chadda, Anil Ohri and Sanjay went to the pesticide shop of Anil, from where they took one pesticide bottle, one packet and one glass. Ajay was holding the glass, whereas Anil had put the medicines from the packet and bottle and put the same in the glass. Then, all the abovementioned persons caught hold of Jyoti ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 12 Parkash and Ajay put the medicine from the glass into the mouth of Jyoti Parkash. According to him, thereafter the road was opened and he went away. In his cross-examination, he states that Jyoti Parkash was beaten by 150/200 persons for about 10 to 15 minutes and that these 150/200 .
persons gave blows on each and every part of the body of Jyoti Parkash.
21. Ex. PW8/B is the copy of M.L.C. of Jyoti Parkash. The same has been issued by Dr. Ravi Kumar, whose statement has been recorded as PW-8. He has mentioned in his statement that on 13.04.2009, Jyoti of Parkash was brought to the hospital at around 10:15 a.m. with the alleged history of forcefully putting poisonous substance in his mouth for rt medical examination and treatment. He has further stated that at the time of examination, the person was not found comfortable lying in the bed and was also found not cooperative. He vomited out some vomitus with foul smelling. He further states that 'tingent' smell was coming from the person's clothes, not from his mouth or nose and no injury was seen on the body. A perusal of the M.L.C. demonstrates that it is mentioned in the same that there were no injuries seen on the body. Incidentally, there is no cross-examination of the said witness on this account. On the other hand, in his cross-examination, he has clearly stated that if an attempt is made to forcibly put poisonous matter in the mouth of a person and the same is resisted, then some time, it also cause injury on and around the mouth. One more important factor which is of utmost importance is this that PW-8 has clearly stated that the patient was conscious and fit to make statement and if the SHO had requested him to record his statement, then definitely, he would have recorded the same.
::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 1322. Dr. Jaidesh Rana has appeared as PW-9. He had conducted the post mortem of deceased Jyoti Parkash. In his statement, he has clearly mentioned that there was a bruise 1x 1 cm. light brown in colour present on the nose of the deceased and stated that there was no visible .
external injury on the body.
23. On one hand, PW-1 Raj Kumari, wife of the deceased has named the persons, who according to her gave beatings to her deceased husband, whereas on the other hand, PW-7 Chuni Lal has mentioned of that the deceased was given beatings by 150-200 people. Even if this Court, for one minute, believes either of the two versions, the body of the rt deceased would have had reflected signs of beatings, but as has already been mentioned above, it is categorically stated in the M.L.C. that the body of the deceased did not bear any marks of injury. In our opinion, this is highly improbable, irrespective of the fact whether the deceased was beaten up by 7-8 persons or 150-200 persons, especially in view of the fact that PW-7 has very unequivocally said that the deceased was beaten by 150-200 persons for 15-20 minutes. This demonstrates that the testimony of both PW-1 Raj Kumari and PW-7 Chuni Lal is not trustworthy, cogent and convincing at all. On the other hand, PW-5 Heema Devi has stated that during the period when Raj Kumari had gone to her house, she remained present in the Varandah of the temple and in her presence Ajay Chadda and Pappu did not put any powder in the mouth of Jyoti Parkash. Incidentally, the stand of Raj Kumari was that when she came back from her house, it is then that her husband told her that the abovementioned persons had administered some powder to him.
::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 14There is no reason to disbelieve Heema Devi, who appears to be a reliable eye witness.
24. Incidentally, PW-2 Head Constable Mohinder Singh has stated that on the spot in the Varandah, there was one glass containing .
some water, which was smelling of Sulphas and that he poured the same in one Kayam Churan plastic bottle. Ex.-PX is the report of the State Forensic Science Laboratory, Himachal Pradesh, Junga, as per which, phosphine gas was detected in the contents of exhibits/parcels P/1-1, of P/1-2,P/1-3, P/1-5, P/3, P/4, P/5 and P/6, but not in exhibits/parcels P/1-4 and P/2. It is further mentioned in the report that traces of
25. rt Aluminum Phosphide were detected in parcel P/7.
In our opinion, in the facts and circumstances of the present case, it seems improbable that Sulphas could have been administered to the deceased, because it is not likely that Sulphas could have been consumed by the deceased because of the pungent smell of the same without any resistence. He would have had, as a natural course, retaliated. We rely upon the judgment of this Court in Unpa Versus State of H.P, Criminal Appeal No. 382 of 2014, decided on March 11, 2016, in which this Court has taken note of the decision of the Hon'ble Supreme Court of India in the case of Jaipal Vs. State of Haryana, (2003) 1 SCC
169. The relevant para of the said judgment is quoted hereinbelow:
"28. The post mortem report is Ex.PW-3/D. The final opinion given by Dr. Piyush Kapila is that the deceased died as a result of ante mortem poisoning. Their lordships of the Hon'ble Supreme Court in the case of Jaipal Vs. State of Haryana, (2003) 1 SCC 169 ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 15 have held that phosphine released from zinc phosphide (rat poison) and from aluminium phosphide, is mainly used as fumigant to control insects and rodents in food grains and fields. Aluminium phosphide is available in the form of chalky-white tablets and when the same .
are taken out of the sealed contained, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphine gas (PH3).
Their Lordships have further held that if only the tablet given by the accused to the deceased was celphos it is of not likely that the deceased would have consumed it inasmuch as the pungent smell of celphos would have alerted P and S and certainly the deceased would not have consumed the tablet. Their Lordships have held rt as under:
"15. Dr. Sharma's opinion, as expressed during his deposition, has thoritative support. Modi in Medical Jurisprudence & Toxicology (Twenty- Second Edition) states (at pp.197-198) that Aluminium Phosphide (Celphos) is used as a fumigant to control insects and rodents in food grains and fields. In reported cases of poisoning, symptoms which have been found are burning pain in the mouth, throat and stomach, vomiting mixed with blood, dyspnoea, rapid pulse, subnormal temperature, loss of co-ordination, convulsions of a clonic nature and death. In the solid form, it acts as corrosive in the mouth and throat as it precipitates proteins. In postmortem appearance, the tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety. The intestines are inflamed.::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 16
16. According to Modi symptoms and signs of poisoning by aluminium phosphide are similar to poisoning by zinc phosphide (p.197, ibid). The chief symptoms after the administration of zinc phosphide are a vacant look, frequent vomiting with retching, .
tremors and drowsiness followed by respiratory distress at death. Zinc phosphide acts as a slow poison and is decomposed by hydrochloric acid in the stomach with the liberation of phosphine which acts as a respiratory poison. Being a very fine powder zinc of phosphide adheres firmly to the crypts in the mucous membrane of the stomach, and a very small quantity only in the stomach even after vomiting is sufficient to cause death by slow absorption.
rt
17. Phosphine released from zinc phosphide (rat poison) and from aluminium phosphide, is mainly used as a fumigant to control insects and rodents in food grains and fields. Liberated from the metal phosphides by the action of water or acids, gaseous phosphine exerts more potent pesticidal action, for it penetrates to all areas otherwise inaccessible for pesticide application.
Pathological findings from phosphine inhalation are pulmonary hyperemia and oedema. It causes both fatty degeneration and necrosis of liver. (p.174, ibid).
19. We may briefly sum up the opinion of the learned authors from their published paper. Phosphine gas (active ingredient of ALP) causes sudden cardiovascular collapse; most patients die of shock, cardiac arrhythmias, acidosis and Adult Respiratory Distress Syndrome (ARDS). Aluminium phosphide is available in the form of chalky white ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 17 tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphene gas (PH3) which is the active ingredient of ALP. This gas is highly toxic .
and effectively kills all insects and thus preverves the stored grains. When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and within minutes phosphine gas dissipates and spreads into the whole of body. The gas is highly toxic and damages almost every organ but maximal damage is caused to heart and lungs. Sudden cardiovascular collapse is the hallmark of acute poisoning. Patients come with fast rt thready or impalpable arterial pulses, unrecordable or low blood pressure and icy cold skin. Somehow these patients remain conscious till the end and continue to pass urine despite unrecordable blood pressure. Vomiting is a prominent feature associated with epigastric burning sensation. The patients will be smelling foul (garlic like) from their breath and vomitus. Many of them will die within a few hours.
Those who survive for some time will show elevated juglar venous pressure, may develop tender hepatomegaly and still later Adult Respiratory Distress Syndrome (ARDS), renal shut down and in a very few cases toxic hepatic jaundice. The active ingredient of ALP is phosphine gas which causes extensive tissue damage. A spot clinical diagnosis is possible in majority of cases of ALP poisoning. However, ALP on account of its very pungent smell (which can drive out all inmates from house if left open) can not be taken accidentally. Dr. ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 18 Ajay Mann (PW-10) who was the first to attend on Prakash Devi stated that the symptoms which he noted present in Prakash Devi could be the symptoms in the case of food poisoning, virus infection and gastroenteritis. Dr. Parveen Chaudhary .
of Navjeevan Hospital to whom Prakash Devi was carried by Smt. Beena and who had seen her between 3 to 4 p.m. on the fateful day was of the opinion that it was on account of smell coming out from the mouth of the patient that he suspected it to be a case of of poisoning.However, his statement was not recorded by police during investigation. The letter under which he referred Prakash Devi to Civil Hospital did not mention the fact of any smell coming rt out from the mouth of Prakash Devi. Assuming that Dr. Parveen Chadudhary is right in stating that some foul smell was coming out from the mouth of Prakash Devi, seen in the light of the statement of Dr. Ajay Mann, it is clear that such foul smell would come even in the case of virusinfection or gastroenteritis and merely from foul smell it cannot be doubtlessly concluded to be a case of celphos poisoning or poisoning. We have doubts about the genuineness of the samples of vomit said to have been seized from two places i.e. inside the house and outside the house. We have already pointed out the fatal omission on the part of the police in protecting the two places where valuable and clinching evidence as to the cause of death could have been available and the fatal delay in collecting the samples.
Though, the house of the accused is situated in a locality inhabited by people and not in a secluded place yet the two witnesses to the seizure ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 19 memo of the samples are Virender Singh, husband of Smt Beena (PW-3) and brother of the deceased, and one police employee namely Balbir Singh, ASI. It was suggested by the defence, during the cross- examination of Dr. S.N. Sharma, that the samples of .
vomit would give positive findings regarding aluminium phosphide (celphos) if it was sprinkled over the vomit before lifting the samples. The Trial Court has disbelieved the recovery of vomitus from the two places by the Investigating Officer. In the of opinion of the Trial Court the evidence relating to such seizure of vomitus was not trustworthy for two reasons: firstly, it is not mentioned in the FIR or in the statement of Smt. Beena (PW-3) that aluminium rt phosphide was administered by the accused to the deceased, and secondly, it is also not mentioned either in the FIR or in the police statement of Smt. Beena (PW-3) that the deceased had vomited inside the house. The Trial Court has also commented adversely on the lapse on the part of the Investigating Officer in not promptly seizing the samples of vomitus. The High Court has also doubted the recovery and seizure of vomitus from the room in view of this material fact finding omission in the FIR amongst other relevant factors. Though the High Court was inclined to place reliance on the seizure of vomitus from the place situated outside the house. However that recovery too has its own infirmities. As we have already noticed the vomitus has been seized from place situated at a distance of 150 yards from the house of the accused while according to Smt. Beena the deceased had vomited at a place just about 25 feet from the house. It is difficult to ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 20 reconcile the two depositions as to the distance.
Secondly, in a village it is highly doubtful that vomitus would remain lying untampered and intact for the period of more than 16 hours overnight and on a thoroughfare. From the presence of .
aluminium phosphide in the sample of vomitus, in the facts and circumstances of the case it is not safe to infer the deceased having been administered aluminium phosphide because a safe link between the vomitus samples and the deceased is not of established. Sample of vomitus from the hospital was not taken for whatever reasons.
23. Thus on the state of the evidence as it exists we cannot conclude positively that aluminium rt phosphide (celphos) was administered to the deceased. This finding has also to be read in the light of very pertinent statement made by Smt. Beena. According to her while the accused and the deceased were busy talking in the inner room, the witness was sitting just outside in the outer room. When she entered in the inner room Prakash Devi complained of feeling uneasy. She never stated that she was administered anything by the accused or anything given by the accused was consumed by the deceased or that anything which the deceased was made to consume by the accused was the cause of her feeling of uneasiness. On the contrary it was in the presence of the witness Smt. Beena that the accused offered to give the deceased a tablet which could remove the feeling of uneasiness. Such table according to Smt. Beena was of two colours; its half portion was blue and half portion was white. Such could not have been the colour of celphos tablet. If ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 21 only the tablet given by the accused to the deceased was celphos it is not likely that the deceased would have consumed it inasmuch as the pungent smell of celphos would have alerted Prakash Devi and Smt. Beena and certainly the deceased would not have .
consumed the tablet. It also sounds unnatural, and therefore doubtful, if the accused would administer any poisonous tablet to the deceased by calling her to his house and at a point of time either when Smt. Beena was sitting just outside the room or when she of was present inside the room. The presence of smell in the room, if any celphos tablet had remained in open there would not have escaped the attention of Smt. Beena. But she does not depose to the presence of rt any smell in the room having been felt by her."
26. From the above narration of facts, it is clear that the testimony of PW-7 Chuni Lal is highly doubtful. The learned trial Court has rightly come to the conclusion that the statement of said witness does not seem to be truthful and natural. This witness has stated that he has seen 150/200 persons giving beatings to the deceased, whereas the post mortem report clearly demonstrates that save and except a bruise 1x 1 cm. light brown in colour present on the nose of the diseased, there was no other visible external injury on the body of the deceased. Not only this, the conduct of the said witness is also suspicious, because it is highly unbelievable that had the incidence happened in the manner in which the same has been narrated by him, then none of the people present there including him did something to help Sh. Jyoti Parkash. Similarly, the statement of the wife of the deceased does not inspire confidence. It is ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 22 not natural that a lady whose husband was being beaten up would rather than come to the rescue of her husband leave for her house to keep articles. The learned trial Court has further rightly appreciated and concluded that there is variance between the statement given by her to .
the police under Section 154 Cr. P.C. and the statement which she has recorded before the learned trial Court.
27. SI Baldev, who at the relevant time was posted as SHO, Police Station Bhawarna, has appeared in the witness box as PW-20. He of has mentioned in his examination-in-chief that when Jyoti Parkash was being taken to the hospital, Jyoti Parkash told him that Ajay Chadda and rt his brother Sanjay had forcibly made him to swallow some powder.
Thereafter, as per him, Jyoti Parkash kept mum and he tried to make him speak, but he could not do so. On the other hand, PW-8 Dr. Ravi Kumar has in unequivocal terms mentioned in his cross-examination that the patient was conscious and fit to make statement and if the SHO had requested him to record his statement, then he would have recorded the same. The judgment passed by the learned trial Court has in detail gone into all these aspects of the matter and the conclusion drawn by the learned trial Court in this regard needs no interference. Further, the SHO has not been able to give any valid justification as to why no independent witness was associated by them when admittedly the alleged occurrence of the event has taken place where even as per the version of prosecution witnesses, more than 100 people were present. As already stated above, all the above facts have been duly considered and taken into consideration by the learned trial Court and the learned trial Court, in ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP 23 our opinion, has rightly come to the conclusion that the prosecution has not been able to prove its case successfully beyond the scope of all reasonable doubts against the accused.
28. Therefore, we do not see any reason to interfere with the well .
reasoned judgment, dated 31.03.2010, passed by the learned trial Court and the appeal is accordingly dismissed. No costs.
(Rajiv Sharma) Judge of (Ajay Mohan Goel) Judge April 13, 2016 (bhupender) rt ::: Downloaded on - 15/04/2017 20:07:37 :::HCHP