KUDAL, J. - (1.) THE accused-appellant Ram Swaroop has filed this appeal from Jail against his conviction dated 23rd January, 1973, by the learned Addl. Sessions Judge, Dholpur. THE learned Addl. Sessions Judge has convicted the accused-appellant under Section 3o2, I. P. C, and sentenced him to imprisonment for life, and a fine of Rs. 500/- and in default of payment of fine to further rigorous imprisonment for six months.
(2.) THE prosecution story is that one Hukam Singh, deceased, accompanied his sister Shiv Devi, on 26-4-1970, to the bus-stand, at about mid-day. Smt. Shiv Devi was going to her father-in law's place, and as such, was wearing the ornaments. THE accused-appellant Ram Swaroop met them at the Bus-station. He offered a 'laddu' to the deceased Hukam Singh stating that it was a 'prasad'. Hukam Singh ate the 'laddu'. As the bus had arrived at that time, Mst. Shiv Devi boarded the bus. In the meantime, another brother Budhi of Mst. Shiv Devi also came there. Mst. Shiv Devi left by the bus. Hukam Singh accompanied by Budhi came back to their house in village Dogarpur. After sometime, Hukam Singh started shivering and felt giddy. He started tearing his clothes. On enquiry being made, Hukam Singh stated that he was feeling awefully giddy after having eaten the 'laddu' given by Ram Swaroop. Ram Swaroop had gone to village Dubepura. Karan Singh, Bhagwan Singh and Pritam went to village Dubepura, and brought Ram Swaroop from there. Ram Swaroop said if Hukam Singh vomits his condition would be improved. Hukam Singh was brought to Dholpur in a jeep as his condition was worsening. It is said that Ram Swaroop told the villagers that he had administered 'dhatura' to Hukam Singh in that 'laddu', as he intended to remove all the ornaments which Mst. Shiv Devi was putting on. He further stated that as Mst. Shiv Devi boarded the bus, the 'laddu' of dhatura could not be given to her. THE Chief Medical Officer of Sadar Hospital, Dholpur, Dr. S. K. Soloman, was approached at about 1. 40 A. M. At the time Hukam Singh was gasping with one or two respiration per minute. THE pulse was also imperceptible. He was, therefore, rushed to the hospital for emergency treatment. Before any treatment could be given to him, he died. Dr. Dilip Singh, Medical Jurist, performed the post-mortem. Pritam P. W. 10 lodged the first information report of this incident to Rajveer Singh P. W. 2, Station House Officer, Dholpur, at 4 A. M. on 24-7-1970. THE accused-appellant was arrested vide Ex. P/4, and on his personal search a packet containing 'dhatura' seeds was found in a cloth tied around his waist. A sealed packet containing the 'dhatura' seeds and the visceras preserved by the Doctor Dilip Singh were sent to (he Chemical Examiner for analysis. THE contents of the bottle containing visceras were found on examination to be negative for 'dhatura'. THE sealed packet containing the seeds was positive for 'dhatura'. After investigation, the case was challaned on 4-5 1970 before the learned Addl. Munsiff Magistrate No. 2, Dholpur. THE accused was committed to the Court of Sessions on 7-11-1970, by the committing Court after enquiry. THE learned Addl. Sessions Judge found the accused-appellant guilty under Section 302, I. P. C, and sentenced him to imprisonment for life, and a fine of Rs. 500/-, and in default of payment of fine to undergo a further rigorous imprisonment for six months, by his order dated January 23, 1971. It is against this order of conviction that the present appeal has been filed. Shri Doongar Singh, Amicus Curiae, in this case, contended on behalf of the accused appellant that there is no evidence on the basis of which conviction of the accused-appellant under Section 302, I. P. C. could be sustained. He contended that no remanants of the 'laddu' offered to Hukam Singh by Ram Swaroop accused appellant have been recovered. He also contended that the vomits of the deceased Hukam Singh were not collected. He also contended that if the vomits had fallen on the earth or clothes of the deceased Hukam Singh, then, neither the clothes have been collected, nor the earth containing the vomits of the deceased have been collected. It was also contended that the medical evidence negatives the entire prosecution case. The examination of the visceras was negative for 'dhatura', and even the post mortem report does not support the prosecution story of poisoning. It was also contended that there were other 'laddus' with Ramswaroop, accused-appellant, which too have not been seized by the police, and put to any chemical analysis. It was also contended that the prosecution story that Ram Swaroop accused-appellant wanted Hukam Singh and Shiv Devi to become unconscious by taking 'dhatura' to facilitate the removal of ornaments, is improbable. This could not have been done at the bus stand and especially when the other brother of Hukam Singh, viz. Budhi, was also present at the site. On behalf of the State; it was contended that the accused-appellant, Ram Swaroop, is not a person of sound character. He is a pick-pocket and had practised such a trick on a person previously also. Attention was invited to a decision by the Assistant Sessions judge No. 1, Dholpur dated 29-7-1970, in Sessions Case No. 1 of 1970, in which the assused-appellant Ram Swaroop had been found guilty of committing an offence under Section 328 read with Section 392, I. P. C. , and was sentenced to five years rigorous imprisonment for administering 'dhatura' poisoning in 'laddu' to one Raja Ram, his wife Mst. Kstoori and his son Bachan Singh, on the ground that after making them unconscious, the accused-appellant Ram Swaroop removed the ornaments of Mst. Kastoori when the victim became unconscious. It was also contended that the circumstantial evidence leads only to one inference that Hukam Singh died because of 'dhatura' poisoning administered by the accused-appellant Ram Swaroop. It was also contended that the extra-judicial confessions made by the accused appellant Ram Swaroop are sufficient for sustaining the conviction of the accused-appellant under Sec. 302, IPC. We have carefully considered the respective contentions of the learned counsel for the parties, and have closely examined the record. Dr. Dilip Singh P. W. 1 stated that he suspected it a case of 'dhatura' poisoning, and in his view, the cause of death was poisoning. He preserved the visceras, and sent it for chemical examination. The witnesss further stated that he had not noted any other symptoms of the 'dhatura' poisoning in his post-mortem report Ex. P/1. The symptoms which were present before the death, and at the time when the patient was admitted in the hospital could be on the bed-head ticket. The congestion is possible in the cases of pneumonia and heat-stroke. The death had been caused due to asphyxia. If the visceras are found negative for 'dhatura' poisoning, then he was sure the death was not caused by 'dhatura' poisoning. Dr. S. K. Soloman P. W. 12, stated that he saw the patient. He was in an unconscious state. He was also gasping with one or two respirations per minute. The pulse was imperceptible. He has further stated that as it was a suspected ease of poisoning the Medical Jurist, Dr. Dilip Singh was informed and he was directed to contact the police as well. He further stated that he had noted down the condition of the patient in Ex. P/7, which was in his hand and signed by him. In his opinion, the condition of the deceased before his death could be the result of 'dhatura' poisoning, because the respiratory system was failing. The cardio respiratory system was also failing. The pluse was also irregular and intermittent. The patient had also reached the state of coma, which is the culminating point in the case of 'dhatura' poisoning. On being cross examined, he stated that he had not concluded in the bad-head ticket that it was a case of 'dhatura' poisoning because it was too much premature to do so. In the case of 'dhatura' poisoning, the effect of the poison depends on the quantity, and the mode of administering it. It cannot be definitely said that the cause of death would be by 'dhatura' poisoning even if the visceras are found negative for 'dhatura'. He also stated that cardio respiratory failure is the cause of death in so many diseases like high fever, diarrhoea or severe infections.
(3.) BUDHI P. W. 8, the brother of the deceased Hukam Singh stated the Mst. Shiv Devi was going to her father-in-law's place in the last Baisakh. Ho saw Ram Swaroop giving him 'laddu' to Hukam Singh describing it as 'prasad'. He has further stated that the accused-appellant Ram Swaroop had few more 'laddus' with him in his cloth-pocket. Ram Swaroop could not give 'laddu' to Shiv Devi as the bus had arrived, and she was in a hurry to board on the bus. Mst. Shiv Devi P. W. 7 stated that 'laddu' was offered as 'prasad' at the bus-stand by Ram Swaroop to Hukam Singh, and as the bus had arrived, she boarded the bus, and left for her father-in-law's place. P. W. 10 Pritam stated that Hukam Singh told him that Ram Swaroop had given him a 'laddu' as 'prasad', and that after eating the same he felt giddy, and his condition was worsening. He also told him that 'laddu' was given to him at the bus-stand. Bhagwan Singh, Pritam and Karan Singh went to Debepura, and brought Ram Swaroop Ram Swaroop told them that he was Hukam Singh's sister Shiv Devi wearing ornaments, therefore, he wanted to make Hukam Singh unconscious and his sister with a view to deprive her of the ornaments. He further stated that his plan could not succeed as the bus had arrived in the meantime, and Shiv Devi boarded the same. Bhagwan Singh PW. 11 also went to Hukam Singh's house. He saw Hukam Singh tearing the clothes, feeling giddy and vomitting. His body was aching. What Ram Swaroop stated to P. W. 10 Pritam was stated in the presence of P. W. 11 Bhagwan Singh also. Having discussed the material evidence, we now first advert to the decision of the learned Assistant Sessions Judge, Dholpur in Sessions Case No. 1 of 1970 dated 29-7 1970. This decision has not been relied upon by the learned trial Court also. Only such decisions are relevant which are covered by Secs. 40, 41 and 42 of the Indian Evidence Act. The present incident of poisoning is alleged to have taken place on 26 4 70. The judgment of the learned Assistant Sessions Judge is dated 29-7-1970, which is a subsequent decision, and is not covered either by sections 40, 41 and 42 of the Indian Evidence Act. Under these circumstances, the trial Judge was correct in not placing any reliance on this judgment. ;