- (1.) THIS is criminal appeal against the judgment and order dated 16-11-1981 passed Sri Jaswant Singh the then III Additional Sessions Judge, Bijnor in ST No. 86 of 1980, State v. Mahendra and others, thereby convicting appellant Mahendra Singh under Section 302 IPC and sentencing him to rigorous imprisonment for life. He was acquitted of the charge under Section 120-B IPC. Co-accused Bhagwat and Om Prakash alias Lala were also acquitted of the said charge.
(2.) BRIEFLY stated the prosecution story was that on 13-8-1977 sometime in the afternoon the appellant went to the house of Smt. Dhanno wife of Thani, resident of village Pundari Kalan, Police Station Nangal, District Bijnor. The appellant told Smt. Dhanno that since he had won a case, he is distributing 'prasad'. Smt. Dhanno asked him to keep the 'prasad' in the kitchen since she then was busy in some work. He left the said prasad in her kitchen. It was alleged that the 'prasad' was smeared with some poisonous substance probably by co-accused Om Prakash @ Lala and Bhagwat with the intention of causing the death of Smt. Dhanno and her husband. The motive behind the mixing of poison in the so called 'prasad' was that Smt. Dhanno and her husband were issueless and on their death their property, 50 bighas of land, would have devolved upon co-accused Bhagwat and his brothers Preetam and Vikram. After the appellant left the house of Smt. Dhanno, Smt. Somwati wife of Preetam Singh came to the house of Smt. Dhanoo and asked her to give something to eat to her children. She was accompanied at that time by her children namely Khajan Singh aged 7 years, Bitto aged 3 years and Km. Chanchal aged two years. Smt. Dhanno asked the children to eat 'prasad' which was kept in the kitchen by the appellant. The children of Smt. Somwati took the 'prasad' and came to their house with the mother. The prasad was consumed by them. Soon thereafter, they started vomiting. Though a local Vaidya of the village gave some medicine to these children but their condition continued to deteriorate. In the night intervening 13/14-8-1977 at about 1. 00 a. m. Km. Chanchal died and in the morning her funeral took place. The remaining two children were brought by their father Preetam Singh to the District Hospital, Bijnor where it was informed by the Doctor that these children had consumed some poison. The same day Bitto also died in the hospital while Khajan Singh recovered. He told his father, in the presence of some witnesses, that one Shambhu Singh, resident of the same village had given them 'prasad' to eat. On this information Preetam Singh lodged a report at Police Station Kotwali City, Bijnor on 14-8-1977 at 3. 30 p. m. On the basis this report a case under Section 302/328 IPC was registered against accused Shambhu Singh. The papers of this case were sent to Thana Nangal. A case was registered at P. S. Nangal on the basis of these papers. The case was investigated and it was found that Shambhu Singh was falsely implecated. The police submitted a final report. During the investigation the names of all the aforesaid three accused came to light according to police and the accused were arrested. S. I. Harish Chandra interrogated Smt. Dhanno on 15-8-1977 and also recorded the statements of other witnesses. Statement of Smt. Dhanno was also recorded by the Munsif Magistrate, Bijnor under Section 164 Cr. P. C. in which she narrated the prosecution case dealt with above. When the appellant was interrogated by the Investigating Officer he admitted his guilt and volunteered for the recovery of the remaining poison which he had concealed in the chhaper of the house of co-accused Lala. He led the investigator to the house of Lala and took out a 'pudia' from the Chhapper of the said co-accused in the presence of witnesses Chandra Pal and Balbir. The police prepared the recovery memo and sealed the recovered powder. On the death of the younger son of Preetam Singh S. I. N. K. Tyagi went to the hospital and sealed the body and prepared the inquest report and other connected papers. The body was sent for post-mortem. Dr. N. N. Pandey conducted the post-mortem on 15-8- 1977 at 11. 30 a. m. and prepared the post- mortem report. The cause of death could not be ascertained. Hence he preserved the viscera which was sent by the police to Chemical Examiner, Agra. The report of Chemical Officer, Ext. Ka-17, mentioned that poison was found in the viscera. The investigator recorded the statements of the witnesses and after inspecting the place of occurrence prepared the site map. After completing the investigation he submitted a charge-sheet against all the three aforesaid accused. A charge under Sections 120-B and 302/34 IPC was framed against all the three accused by the trial Court to which they pleaded not guilty. They contended that they have been falsely implicated in this case due to enmity and village Partibandi. The appellants examined (DW 1) D. V. Gupta the then compound posted in the District Hospital, Bijnor to prove the papers of the Hospital regarding admission of Bitto and Khajan Singh in the hospital and their statements. The prosecution examined eleven witnesses namely, Dr. N. Pandey (PW 1), Smt. Dhanwanti @ Dhanno (PW 2), Sri Ram Chandra (PW 3), Sri Daya Ram (PW 4), Sri Chandrapal (PW 5), Sri Balbir Singh (PW 6), Sri N. K. Tyagi, S. O. (PW 7), Sri Harishchandra Saxena (PW 8) Dr. Prabodh Kumar (PW 9), Sri Devendra Singh, S. O. (PW 10) and Sri Shahi Ram (PW 11) to prove its case against the appellant. After considering the entire evidence on record the learned Additional Sessions Judge convicted the appellant, under Section 302 IPC and passed the aforesaid sentence and acquitted him of the charge under Section 120-B IPC. The remaining two accused namely Bhagwat and Om Prakash @ Lala were given benefit of doubt and acquitted of the charges framed against them.
(3.) AGGRIEVED by this judgment the convicted accused Mahendra Singh has preferred this appeal. We have heard the learned Counsel for the appellant as well as the learned AGA we have been taken through the evidence on record. There is no eye-witness of the fact that the appellant had mixed poison in the sweatmeat (Pera ). The evidence against the appellant is that he went to the house of Dhanwanti @ Dhanno (PW 2) and gave Pera to her saying that it was 'prasad' since he had won the case. She asked him to keep it in the kitchen. The appellant kept the Prasad in her kitchen and went away. Immediately thereafter, the wife of Preetam Singh came to house of Dhanwanti, accompanied by her three children, two boys and a girl. The children asked Dhanwanti as to what was kept in the bowl. She told them that the bowl contained Prasad. The wife of Preetam Singh took the Prasad and gave it to the children. After eating the same they all returned to their house. A little later, the wife of Preetam Singh came back and asked Dhanwanti as to what type of 'prasad' it was. Her children have started vomiting after eating it. The prosecution, in order to prove this allegation, examined Smt. Dhanwanti (PW 2 ). She turned hostile on the prosecution and stated that the appellant had not come to her house nor he gave anything to her. Somwati, wife of Preetam had come to her house and had told her that her children have fallen ill and are vomiting. In her cross-examination, she also denied that these children had come to her house and had asked her to give them something to eat. When she was confronted with her statement recorded by the investigator under Section 161 Cr. P. C. she denied to have given any such statement. Thus her evidence does not foster the prosecution cause in any manner. It is to be discarded accordingly.;