Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Arvind Kumar Mishra-I, J.) Present criminal appeal has been preferred by appellant Eram Nasir @ Bantu R/o House No.260 Gher Sheikh Mattoo Near Hina Junior School, Police Station- Qila, District Bareilly against judgment and order of conviction and sentence dated 10.8.2010 passed by Additional Sessions Judge, court no.1, Bareilly in Sessions Trial No.660 of 2008 (State of U.P. Vs. Eram Nasir @ Bantu Vs. State of U.P.), under Sections 328, 304 IPC, Police Station Qila, District Bareilly arising out of Case Crime No.105 of 2007, whereby the appellant has been sentenced under Section 304 IPC to undergo rigorous imprisonment for life with a fine of Rs.20,000/- in default of payment of which, further imprisonment for a period of six months and under Section 328 IPC to suffer rigorous imprisonment for 5 years with a fine of Rs.5,000/- in default of payment of which, a further imprisonment for a period of 3 months, both the sentences to run concurrently.
Facts giving rise to this appeal are that complainant Smt. Fatima wife of Late Mohammad Sardar, resident of Gher Sheikh Mithoo Near Hina Junior School, District Bareilly lodged written report at police station Qila on 17.1.2007 regarding incident dated 30.4.2006 at about 5.30 p.m. to the effect that her son Afsar was engaged in embroidery as well as work of B.C. (collection of money and distribution among certain members) for his livelihood. Accused Eram Nasir @ Bantu had taken Rs. 7,000/- from her son Afsar. Complainant's son Afsar went to Eram Nasir @ Bantu on 30.4.2006 around 5.30 p.m. asking for Rs.7,000/-. Eram Nasir @ Bantu did not give the money but avoided payment of the same, called her son inside his house and began to talk to him. Accused asked her son that he should take some pill (medicine) for increasing his masculine power. Complainant's son (Afsar) refused to take the same even then Eram Nasir @ Bantu administered pill to her son. After he swallowed the pill his condition deteriorated. In the meantime, Bablu son of Khalil Khan resident of the same village, who was present over near house of Eram Nasir @ Bantu took care of his son and informed about the incident to her. Abrar, the second son of complainant took Afsar to District Hospital, Bareilly for treatment. Complainant also accompanied her son. On being asked her son told that Eram Nasir @ Bantu has administered some poisonous substance for improving his masculine power due to which his condition deteriorated. Complainant's son was got admitted in the hospital in the night on 1.5.2006 where he expired in the morning hours. Postmortem examination was conducted and the dead body was handed over for performing funeral. At that point of time his report was not lodged, instead she was advised to wait for viscera report. It has been mentioned in the first information report that complainant was informed by her counsel that the viscera report has been submitted, therefore, the complainant has come to the police station to lodge the report. This report has been proved by Fatima P.W.1 as Exhibit Ka-1. Contents of aforesaid report were taken down in the relevant Check FIR No.12/2007 on 17.1.2007 at 21.35 hours at Police Station Qila, district Bareilly at crime no.105 of 2007, under Sections 328 and 304 IPC. This Check FIR is Exhibit Ka-3 on record. On the basis of Check FIR relevant entries were made in the concerned GD and the case was registered against accused at Crime No.105 of 2007, under Sections 328 and 304 IPC, Police Station Qila. The concerned GD is Exhibit Ka-4 on record. It is reflected from the record that prior to the lodging of above first information report inquest report was prepared on 1.5.2006 itself for the dead body of deceased Afsar, wherein, it was observed that in order to know the cause of death postmortem examination of the dead body is required. The inquest report is Exhibit Ka-13, thereafter the relevant papers for sending body for postmortem examination were prepared. These papers are Exhibit Ka-14, Ka-15, Ka-16, Ka-17 and Ka-18. It is also reflected from the record that postmortem examination on the dead body of the deceased took place on 1.5.2006 at 4 p.m. at mortuary Bareilly, wherein the cause of death could not be ascertained, therefore, viscera was preserved. This postmortem examination report dated 1.5.2006 is Exhibit Ka-2 on record and has been proved by P.W.2 Dr. Anil Kumar Gupta. After lodging of the first information report on 17.1.2007 steps for investigation was taken by the concerned Investigating Officer S.I. Ranvir Singh P.W.6 and S.I. Satish Chand Tyagi P.W.7, who in order to complete the investigation recorded statement of prosecution witnesses under Section 161 Cr.P.C., prepared the site plans of two places relating to the incident which are Exhibit Ka-5 and Exhibit Ka-9, respectively. After completing the investigation S.I. Ranvir Singh P.W.6 filed the charge-sheet Exhibit Ka-11 against the appellant under Sections 304, 328 IPC.
Thereafter case was committed to the court of sessions from where it was made over for trial to the learned trial Judge, who after hearing the prosecution and the accused on point of charge found prima facie ground existing for framing charges under Sections 328 and 304 IPC. The charges were read over and explained to the accused in Hindi, who denied the charges and opted for trial.
In turn, the prosecution was required to produce evidence. The prosecution in all produced as many as eight witnesses. P.W.1 is the complainant Fatima, she has proved the first information report. P.W.2 is Dr. Anil Kumar Gupta, who conducted the postmortem examination on the dead body of the deceased Afsar on 1.5.2006 and has proved the postmortem. P.W.3 is Guddu, who has testified about the incident. P.W.4 is Abrar, the elder brother of deceased Afsar. He is also witness of fact and has narrated about the incident. P.W.5 is Constable Balbir Singh, who is the formal witness and has proved the concerned Check FIR and GD. Besides he has also proved the inquest report Exhibit Ka-13. The Investigating Officer S.I. Ranvir Singh has been examined as P.W.6. He has proved various steps taken by him in completing the investigation. P.W.7 is Satish Chand Tyagi, S.I. He investigated into the case for two days only. Thereafter the investigation was transferred from him.
It is relevant to take note of fact that viscera report dated 29th October, 2006, Paper No.10-Ka/1 was obtained in this case from Vidhi Vigyan Prayogshala. Perusal of the same shows that in some part of the body say liver and stomach Organo Chloro Insecticide poison was detected. In this regard the prosecution has produced Dr. A. Prasad P.W.8, who has proved the letter dated 14.2.2007 addressed to C.M.O. by the S.S.P. Bareilly for obtaining report/opinion of Medical Board on viscera report as Exhibit Ka-10 and has also proved Exhibit Ka-12-the very opinion/report of medical board dated 27.2.2007.
Thereafter the evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, he has stated that he has been falsely implicated in this case on account of enmity. The defence/appellant has not given any ocular testimony. Appellant has filed certain papers as documentary evidence before the trial court. Paper No.1 is the certified copy of the application moved under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Bareilly and the same is Kha-1 on record. Paper No.2 is the certified copy of report submitted by the police authority on the aforesaid application moved under Section 156(3) Cr.P.C. which is marked Kha-2 and third paper is certified copy of the order of C.J.M. Bareilly dated 9.6.2006 passed on aforesaid application, and the same is Exhibit Kha-3. All these papers have been filed as per list 10-Kha.
Thereafter the case was posted for argument by both the sides.
Upon hearing both the sides and considering the merit of the case the learned trial court passed aforesaid impugned judgment and order of conviction dated 10.8.2010 in Sessions Trial No.660 of 2008 (State of U.P. Vs. Eram Nasir @ Bantu Vs. State of U.P.), under Sections 328, 304 IPC, Police Station Qila, District Bareilly arising out of Case Crime No.105 of 2007, whereby the appellant has been convicted and sentenced (for offence under Section 304 IPC) to undergo rigorous imprisonment for life, with a fine of Rs.20,000/- in default of payment of which, additional imprisonment for six months is to be suffered and under Section 328 IPC rigorous imprisonment for 5 years, with a fine of Rs.5,000/- in default further imprisonment for a period of 3 months will have to be suffered. Both the sentences have been directed to run concurrently.
Consequently, this appeal.
We have heard respective submissions of both the sides and perused the record.
Learned counsel for the applicant submitted that in this case the incident allegedly took place on 30.4.2006 at 5.30 P.M., however, the first information report was lodged only on 17th January, 2007, therefore, delay in lodging the FIR is inordinate and has not been properly explained by the prosecution. Learned counsel continued that previously application under Section 156(3) Cr.P.C. (Exhibit Ka-1) dated 11.5.2006 was moved before the appropriate Court by the first informant Fatima and the same was dismissed. In that case report was submitted by the concerned police station Qila, district Bareilly that the allegations made in the application are baseless and the entire exercise is aimed at extorting money. Next contended that this application was dismissed on 9.6.2006. The chain of incident leading to death of the deceased Afsar has not been properly established by evidence. Motive imputed for committing the crime is weak. Prosecution version is vacillating and is inconsistent with medical evidence and finally submitted that the very proximity of the time of incident with the time of death is not closely connected but the very time span between the incident and death are wide enough to give varying columns to the incident to suit ones' interest. This time gap negates the allegations of administering any intoxicating substance to the deceased and the consequent death. One vital witness Babloo has not been examined, however, under circumstances, he was the best witness. There was sufficient time for recording any dying declaration, but the same was not duly recorded. The statement of witnesses of fact particularly P.W.1 Fatima, P.W.3 Guddu and P.W.4 Abrar are mutually contradictory in material particulars. The testimony of doctor witness P.W.8 Dr. K. Prasad in his cross-examination on point of effect of such types of intoxicants has categorically stated that it starts working within five minutes of its intake. But in this case the deceased was hale and hearty from 5.30 p.m. upto 9 p.m. on 30.4.2006, which medical evidence absolutely falsifies the prosecution case. Even the fact of administering intoxicating tablet has not been duly proved by the prosecution.
Learned AGA while refuting aforesaid contention has submitted that the prosecution theory has been duly established and the charges under Sections 328, 304 IPC have been proved beyond reasonable doubt. The witnesses have no reason to falsely implicate the appellant in this case. There is no material contradiction in the testimony of the prosecution witnesses. The prosecution has been able to prove satisfaction by the delay in lodging the FIR and the same has been reasonably explained that on account of refusal by the police to lodge the report unless viscera report is received. This by itself is sufficient to explain the delay. Learned AGA further submitted that the dying declaration need not be recorded in all cases. Oral dying declaration can be believed in this case because that is coming forth at an opportune time from persons, who are in close relationship with the deceased. As such the dying declaration is consistent and voluntarily and the evidenciary value of the same cannot be brushed aside. In support of his claim learned AGA placed reliance on the case of (2013) 2 Supreme Court Cases 81 Parbin Ali and another Versus State of Assam.
In view of the rival contentions so raised the moot point arises for consideration in this appeal relates to fact as to whether the prosecution has been able to prove charges beyond reasonable doubt against the appellant or there is material contradiction in the testimony placed by the prosecution?
To began with, we may for a moment look to the first information report Exhibit Ka-1, which is typed one, wherein averments have been made to the effect that complainant's son Afsar went to the house of appellant on 30.4.2006 at about 5.30 P.M. asking for his money Rs.7,000/-. Appellant Eram Nasir @ Bantu avoided giving back the money and called the deceased inside his house and told him that his marriage took place 15 days ago and he will give him some tablet for increasing his masculine power and the tablet was administered. After this the condition of victim deteriorated. Babloo son of Khalil Khan of the same locality was also present over there near house of Eram Nasir @ Bantu, took care of complainant's son witnessed the incident and informed about the same at complainant's house. Deceased was taken to the hospital by another son of complainant Abrar. Complainant also accompanied them. In the meanwhile, Afsar told about administration of some intoxicating tablet by the appellant. It has been further averred that complainant's son was admitted at District Hospital, Bareilly in the night of 1.5.2006 where he died in the morning. The complainant went to lodge the report but the same was refused by the police on ground that it shall be registered only after viscera report is submitted in court. In the above backdrop of allegations and the circumstances, we have to examine the point of delay in lodging the FIR and the point of consequent death and its nexus between death and the fact of administration of intoxicating tablet.
Bare perusal of record on its own reflects that at the time of conducting postmortem examination on 1.5.2006 at about 4 p.m. cause of death could not be ascertained by the doctor, therefore, viscera report was preserved and the same was sent to Vidhi Vigyan Prayogshala, Agra for obtaining report. The viscera report dated 19.10.2006 pointed out presence of Organo Chloro Insecticide poison in stomach and liver. It is obvious that the viscera report dated 19.10.2006 was received in court later on during the course of proceedings and as soon as the first informant came to know about the same through her counsel, she lodged the FIR in question on 17.1.2007. In this view of the matter, we notice that after the viscera report was submitted in court and information received about the same the FIR was lodged almost within three months period (counting from 19.10.2006). This, by itself, under circumstance is justified and it cannot be said at this juncture that the first information report was delayed. Therefore, the contention raised by the learned counsel for the appellant that there is inordinate delay in lodging the FIR is not accepted for the aforesaid reasons and particular circumstance.
Now, we switch over to the meritorial aspect of the case particularly on point of nexus between the administration of noxious intoxicant and the consequent death of Afsar. While scrutinizing the record, we notice that the first information report alleges administration of intoxicating tablet at 5.30 p.m. on 30.4.2006 to the deceased Afsar by the accused appellant Eram Nasir @ Bantu. In this way it would be relevant to take stock of testimony of witnesses of fact P.W.1 Fatima. P.W. 3 Guddu and P.W.4 Abrar. Fatima is the mother of deceased. She has corroborated the version of FIR regarding administration of intoxicating tablet to the deceased by the appellant. She has proved the first information report Exhibit Ka-1. In her cross-examination she has stated that her son took dinner at 9 p.m. (on 30.4.2006) and at that point of time her son was absolutely alright. Similar version has been given by P.W.3 Guddu with slight variation that he took meal around 8.30 p.m. Version of dinner has been further stated to be 8 p.m. by Abrar. The relevant point to be considered at this stage relates to administration of intoxicating tablet at 5.30 p.m. on 30.4.2006 and information of the same given by the deceased to the prosecution witnesses. In this context, testimony of P.W.1 Fatima reflects that as soon as intoxicating tablet was administered the condition of deceased Afsar started deteriorating. However, in cross-examination on page-3 of the testimony it has come that the dinner was taken by the deceased at 9 p.m. and at that point of time the deceased was absolutely alright. It has come in the testimony of P.W.1 that as soon as her son was brought home his condition started deteriorating and he was taken to the District Hospital. She was told by her son that some power tablet was administered by the appellant, which deteriorated his condition. In this context, testimony of P.W.3 another witness of fact Guddu reflects that he was not told by Babloo that Eram Nasir @ Bantu administered any intoxicating tablet to Afsar. He has gone to the extent by testifying that this witness had no talk with Babloo son of Khalil Khan. Further, he testified on page-3 of his testimony in his cross-examination that the deceased remained in his house from 6 p.m. onward and was talking in the meanwhile. Deceased did not narrate anything to anyone before his condition deteriorated. It has also come in the testimony of P.W.1 Fatima and P.W.3 Guddu, respectively that the deceased bought the material for preparing food from market around 6 p.m. Thus, it is obvious that from 6 p.m. to 9 p.m. on 30.4.2006 condition of deceased was normal and it did not deteriorate in any degree and the deceased was moving freely for the reason that he bought articles for preparing food after 5.30 p.m. when the alleged intoxicant had already been administered. Under aforesaid circumstance, it is obvious that the version of prosecution witnesses that the condition of the victim deteriorated soon after administration of intoxicating tablet is not warranted by the circumstances. Further it has come in the testimony of P.W.1 Fatima, P.W.3 Guddu and P.W.4 Abarar that the condition of the victim deteriorated only after he took dinner, which as per version of P.W.1 Fatima was taken around 9 p.m. At this stage it would be relevant to take note of testimony of P.W.8 Dr. K. Prasad, who was one of the member of the medical board constituted by the C.M.O., Bareilly in order to give medical opinion on the viscera report pertaining to the nature and effect of Organo Chloro Insecticide poison. The report Exhibit Ka-2 has been proved by this witness. As per his version aforesaid Organo Chloro Insecticide poison is mostly found in D.D.T. Endrin, Gammexene, Dieldrin etc. In his cross-examination he has categorically stated that in case these ingredients are taken by any person these ingredients will show its effect within five minutes of its intake or administration. In this view of the matter, it is obvious that the very fact that some intoxicating tablet was administered around 5.30 p.m., which infact deteriorated the physical condition of victim is very much falsified. Admittedly Afsar's physical condition deteriorated only after he took dinner around 9 p.m. and not before that. This circumstance by itself is self-speaking and warrants no further corroboration.
We notice that the best testimony in this case would have been that of Babloo son of Khalil Khan, who is stated to have witnessed the incident and who took care of the deceased after intoxicating substance was administered to him and he was told by the victim himself about the happening inside the house. But surprisingly for the reasons, best known to the prosecution, this witness was not produced before the trial court to establish the fact of actual incident so alleged by the prosecution. If the victim was hale and hearty from 5.30 to 9 p.m. on 30.4.2006 then how can deterioration in physical condition of victim can be attributed solely to administration of intoxicating tablet at 5.30 p.m. when the victim was freely moving, talking and marketing. Relevant to mention that the doctor witness (P.W.8) specifies in his testimony in his cross-examination that intoxicating substance like D.D.T. Endrin, Gammexene, Dieldrin etc. are reasonably sufficient to deliver effect within five minutes of its intake.
Thus, the deteriorating condition cannot be linked with the administration of intoxicating substance. Now, in so far as administration of intoxicating substance is concerned, the version of prosecution witnesses is vacillating and shaky in material particulars. As per language of first information report, victim soon after administration of tablet informed about the same to Babloo and as soon as he reached at his house, the same was narrated to his mother P.W.1 Fatima and P.W.4 Abrar, his brother. However, testimony of P.W.3 Guddu reflects that victim did not narrate anything to anyone before his condition deteriorated. P.W.4 Abrar has testified in his cross-examination that Babloo went inside the house around 5.30 P.M. and came back home around 7 P.M. then the theory that the victim was taken care of by Babloo and Babloo informed about the incident and took Afsar back to home is falsified and becomes doubtful. Thus, the very administration of poisonous substance/tablet cannot be directly attributed to be the act of the appellant because condition of victim remained normal for about three and half hours after the alleged administration of poisonous tablet.
The core consideration that arises at this juncture relates to the value of oral dying declaration, as claimed by the prosecution. In this case, it is obvious that the very narration of incident regarding administration of poison was found to be vacillating by the witnesses of fact. In this regard the best witness was none other than Babloo son of Khalil Khan, who infact was stated to have accompanied the victim and came back home after 5.30 P.M. But this witness has not been produced. The hypothesis that the condition of victim deteriorated only after administration of intoxicating tablet is very much ruled out by the testimony and circumstances of this case and it is rendered virtually improbable by the testimony of P.W.8 Dr. K. Prasad, who in clear cut terms specified in his cross-examination that intoxicating substances like D.D.T. Endrin, Gammexene, Dieldrin etc. are reasonably sufficient to deliver effect within five minutes of its intake. Thus, the theory of dying declaration brought by the prosecution is found to be not creditworthy because the dying declaration does not inspire confidence and appears to be tainted one. The dying declaration in this case cannot be said to have been proved to be either voluntarily or truthful. Thus, all the relevant facts and circumstances alleged by the prosecution have not been proved for proving the charges beyond any reasonable doubt and the incident as alleged in the first information report is not reasonably proved beyond reasonable doubt by the very testimony of prosecution witnesses. The circumstances profusely allude to different interpretations than the guilt of the appellant and advantage of the same as per criminal jurisprudence shall be given to the accused/appellant.
The very citation of the Hon'ble Apex Court in the case of Parbin Ali and another Versus State of Assam (2013) 2 Supreme Court Cases 81 is also not helpful to the prosecution, for the reason that the dying declaration in this case cannot be said to be either truthful or voluntary instead the theory of dying declaration appears to have been manufactured at the best only after 9 p.m. Thus, the dying declaration so made does not inspire confidence and cannot be acted upon. In the aforecited case, the factual aspect was different. In that case, the injured victim was found lying on the road side on 17.7.1994 at about 9 p.m. On coming to know about the same, a number of people gathered on the spot including the father-in-law of the injured, his wife and at that point of time injured Saket Ali told them that he was assaulted by the accused persons. It is admitted fact that Saket Ali remained lying on the road side and neither the relatives nor his wife could arrange any conveyance for carrying him to the hospital and, eventually, he succumbed to the injuries around 11.00 P.M.
The above factual aspects are not matching with the factual case in hand. In that case the dying declaration was found to be voluntary and inspired confidence free from any flaw under the facts and circumstances of the case and was rightly acted upon but here the situation is entirely different in the case in hand.
For the reasons discussed herein above, we are of the firm opinion that learned trial court while appreciating the evidence and circumstances on record did not correctly appreciate the same in the light of material on record and was not justified in recording conviction. Consequently, impugned judgment and order dated 10.8.2010 passed by Additional Sessions Judge, court no.1, Bareilly in Sessions Trial No.660 of 2008 (State of U.P. Vs. Eram Nasir @ Bantu Vs. State of U.P.), under Sections 328, 304 IPC, Police Station Qila, District Bareilly arising out of Case Crime No.105 of 2007 is to be set aside and this appeal is allowed accordingly.
Appellant is in jail. He shall be set at liberty forthwith after complying with the provisions of Section 437-A Cr.P.C., if appellant is not wanted in any other case. His bail bonds and sureties are hereby discharged.
Let a copy of this judgment be certified to the concerned trial court, Bareilly for necessary compliance.
Dt.12th January, 2016 Raj/Criminal Appeal-5905 of 2010