Indian Kanoon - Search engine for Indian Law

5. On 5.7.1995, PW1 Dr. Lachhman Dass Gupta at 11.15 a.m. conducted post-mortem examination on the dead body of Harbans Singh when it was brought by Constable Teja Singh and was identified by Jaspal Singh and Bhan Singh. It was the dead body of a youngman of 24 years. There was no external mark of injury on the body. The larynx and trachea were congested and having secretion. Right lung was healthy and congested. The doctor took a piece of the lung for the purpose of chemical examination. Similarly, he found that heart was healthy and full of blood. he also took a sample of the blood for the purpose of chemical examination. Stomach was healthy and contained about 75 cc of the digested food. The contents of the stomach were also preserved like that of small intestines and large intestines for the purpose of analysis. Similarly pieces of liver, spleen and kidneys were preserved and a sealed parcel was prepared. The doctor also took a sample of the urine for the purpose of examination. The cause of death, in the opinion of the doctor, was due to blockage of respiratory track due to secretion which was sufficient to cause death in the ordinary course of nature. After the post-mortem report the doctor handed over to the police copy of the post-mortem report along with the police papers and the sealed parcel of the clothes besides a sealed box containing viscera of the deceased. As per the opinion of the doctor, the probable time that elapsed between death and post-mortem was within 24 hours. Ex.PA is the correct carbon copy of the post-mortem report. On receipt of the report of the Chemical Examiner Ex.PB, the doctor opined that the cause of death was due to poisoning of aluminium phosphide and to that effect he gave his report Ex.PC. The post-mortem was conducted on the police request Ex.PE. The doctor also opined that poisoning of aluminium phosphide causes increase secretion of the bronchial (respiratory track) which leads to blackening and death. This opinion Ex.PG/1 was given by him on the police application Ex.PG. The doctor also stated in his statement that ruqa Ex.PH was sent to the police station regarding arrival of the patient by Dr. Baldev Raj Gupta and ruqa Ex.PJ regarding the death of Harbans Singh was sent to the police station by Dr. Tirloki Nath. It may be mentioned here that Dr. Baldev Raj Gupta and Dr. Tirloki Nath have not been examined by the prosecution for the reasons best known to it. In the cross-examination the witness categorically stated that he could not say if he deceased could remain conscious on consuming poison as determined in the Chemical Examiner's report.

6. The story of the prosecution further proceeds that Smt. Baljit Kaur was not only carrying on with the deceased but she was also carrying on with his co-accused Balwinder Singh and both of them had administered aluminium phosphide by mixing in some juice etc. to Harbans Singh and thereafter they disposed of the residue poison and the tumbler which were subsequently recovered at their instance under Section 27 of the Evidence Act. We may also make a mention that the learned trial court has disbelieved these recoveries of the residue poison and the tumbler. Be that as it may, it is also the case of the prosecution that Baljit Kaur and Balwinder Singh allegedly suffered extra-judicial confession before PW4 Darbara Singh on 20.7.1995 and allegedly confessed that they had administered poison to Harbans Singh by mixing into tea and they should be produced before the police. Resultantly both the accused, namely, Baljit Kaur and Balwinder Singh were produced before PW8 SI Surinder Pal Singh who arrested them on 21.7.1995. After their arrest the investigation was handed over to ASI Jasmel Singh (PW10). On 24.7.1995 Baljit Kaur and Balwinder Singh were interrogated separately by ASI Jasmel Singh in the presence of Ravinder Kumar and HC Kewal Krishan and on interrogation Baljit Kaur disclosed that the glass in which the poison was administered to Harbans Singh was lying in a box at her house and that she could get the same recovered by pointing out the place of concealment. Her disclosure statement Ex.PM was recorded and in pursuance of the said disclosure statement Baljit Kaur in the presence of witnesses led the police party to the disclosed place and got recovered the tumbler. Similarly, Balwinder Singh also disclosed on interrogation that he has kept concealed some poison in a heap of manure in front of the house of Baljit Kaur and could get the same recovered. His disclosure statement Ex.PN was recorded and in pursuance of said disclosure statement Balwinder Singh got recovered one bottle which was half filled containing aluminium phosphide and it was taken into possession vide recovery memo Ex.PQ, attested by the witnesses and the tumbler which was got recovered by Baljit Kaur in pursuance of her disclosure statement was taken into possession vide recovery memo Ex.PR after making a sealed parcel thereof. The Investigating Officer also prepared a rough site plan of the place of recovery.

7. The sealed parcels of the viscera and that of the small bottle and tumbler were sent to the office of the Chemical Examiner and vide report Ex.PB aluminium phosphide a pesticide was detected in the contents of stomach, small and large intestines and phosphide a constituent of aluminium phosphide was detected in the pieces of lung, liver, kidney, spleen and heart and the sample of blood. Vide report Ex.PZ it was opined by the Chemical Examiner that the small bottle contained poison and similarly the tumbler contained the stains of poison. Finally, on completion of the investigation of the case, the appellant and her companion Balwinder Singh were challaned in the Court of Area Magistrate, who supplied the copies of the documents relied upon by the prosecution to the accused as required under the law and vide separate commitment order the appellant and her companion were committed to the Court of Session to face the trial under Section 302/34 of the Indian Penal Code.

22. It has been proved on the file that Harbans Singh was admitted in the Hospital at 6.00 P.M. on 4.7.1995 and he died at 9.15 P.M. In the ruqa Ex.PH it is written that the case was of suspected poisoning. It was sent to the Police Station by the Doctor, but the police did not go there. Meanwhile Jaspal Singh had reached the hospital on hearing that his brother was admitted there. The doctors attending on Harbans Singh would not themselves take trouble of recording any dying declaration or involving themselves as to what a person, who was about to die, would say about the cause of his death. There was no time and occasion to call for a Magistrate. The police also did not reach the Hospital before the death of Harbans Singh. Under these circumstances, when Jaspal Singh reached there and whatever was disclosed about his death by Harbans Singh to Jaspal Singh, will be the statement to the cause of his death and will be admissible into evidence under Section 32(2) of the Evidence Act. There was no time to record written dying declaration. Harbans Singh was living in the house of Baljit Kaur. He had been removed to the Hospital by Baljit Kaur. It was the case of suspected poisoning and during the post mortem examination aluminium phosphide was detected from the body parts sent to the Chemical Examiner. It cannot be said that the FIR in this case was delayed. Jaspal Singh met the police party at 10.10. P.M. It will naturally take sometimes for the police to write the statement and complete the same, which was completed at 11.30 P.M. The FIR was immediately recorded and had reached the Ilaqa Magistrate at 4.00 A.M. on 5.7.1995. The fact of the statement made by Harbans Singh about the cause of death before Jaspal Singh is mentioned. Jaspal Singh could not be expected to use the exact words, when that statement was not reduced into writing. In fact, there was no time to do all that. No explanation had come forth from Baljit Kaur, who had taken Harbans Singh to the Hospital as to why the health of harbans Singh deteriorated and how he happened to take aluminium phosphide resulting in his death. Under these circumstances, the authorities relied upon by the counsel for the accused are not applicable to the facts of the present case.