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Judgment
This appeal has been filed by the appellant, being aggrieved by the judgment dated 15.02.2008, passed by Sessions Judge, Harda in S.T. No. 44/2007, whereby the appellant has been found guilty for the offence punishable under Sections 302 (2 counts), 307 been sentenced to life imprisonment (2 counts) and fine of Rs.100/- each, rigorous imprisonment for ten years (2 counts) and fine of Rs.100/- each and simple imprisonment for one year and fine of Rs.100/- respectively, in default of payment of fine, he has to suffer one month additional imprisonment for each offence.
The prosecution story, in brief is that on 27.02.2007, between 4 to 7 P.M., appellant Sukhram consumed sulphas and also gave the same to his four minor children. All were in serious condition and taken to the hospital Sirali by the complainant Sukhlal (P.W.-1), his wife and son Pappu and Dilip. En-route to the hospital, Shantabai, aged 9 years died. The other minor Laxmi aged 5 years died during treatment in Bhopal hospital on 01.03.2007. Dehati Nalishi (Ex. P-1) in respect of the incident was recorded on the basis of information provided by P.W.-1 Sukhlal, who is brother-in-law of the appellant.
According to the prosecution, after the death of appellant's wife, he alongwith his four minor children had come to stay with P.W.-1 Sukhlal. On the date of incident, when Sukhlal (P.W.-1) returned from
village Lalmati, he saw the appellant and the four children in serious condition, suffering pain, agony and vomiting. The appellant on being asked had stated that he was depressed after the death of his wife and on account of his ailment, wished to die, hence consumed suplhas and gave the same to his children.
On the basis of Dehati Nalishi (Ex.P-1), FIR (Ex.P-28) was recorded and the criminal law was set in motion. Under the apprehension that appellant will not survive, Dr. Ashok Sharma (P.W.-14) was asked to record the dying declaration of the appellant and the same was recorded on 27.02.2007 at about 10.30 P.M.
Thereafter, Naib Tehsildar (P.W.-9) also recorded the statement of appellant (Ex.P-13) at 1.43 A.M. in the night of 28.02.2007 in the presence of the doctor who endorsed about the fitness of appellant. Thereafter, appellant and his three children were referred to and admitted in Medical college, Bhopal, where during the treatment, minor daughter Laxmi also died on
01.03.2007. Appellant and two minor sons were discharged after some days, after their treatment.
Body of the deceased Shantabai and Laxmi were sent for autopsy. P.W.-10 Dr. A.K. Sainger, who conducted the autopsy on deceased Shantabai opined that she
died of sulphas poisoning.
Dr. Pradeep Kumar Mishra (P.W.-12), who conducted the post mortem on deceased Laxmi has also opined that death occurred due to cardio respiratory failure as a result of sulphas poisoning. As per the medical report, all five of them had consumed Aluminum Phosphide (sulphas)
During the investigation, seized articles and viscera were sent for chemical investigation to FSL
Sagar. As per the FSL report (Ex. P-33), the viscera and vomit contained pesticide Aluminum Phosphide (Sulphas).
The trial Court on the basis of extra judicial confession given by the appellant before Dr. Ashok Sharma (P.W.-14) and S.U. Saiyad (P.W.-9), Naib Tehsildar and the medical evidence has recorded a finding against the appellant to the effect that he is guilty of offence punishable under Sections 302 (2 counts), 307 (2 counts) and 309 of the I.P.C . and sentenced him as aforementioned.
Having heard the learned counsel for the
parties, it is observed that P.W.-1 Sukhlal and P.W.-5 Sugaibai, sister of the appellant, who brought the appellant and his children to the hospital found them in pain, agony and vomiting. Appellant on being asked, has confessed to them that he had consumed sulphas and given the same to his children.
P.W.-14 Dr. Ashok Sharma has stated that he recorded the dying declaration of Sukhram on 27.02.2007 at 10.10.30 P.M., who in anticipation of death has confessed that he had consumed the pesticide used for wheat preservation and given the same to his children. P.W.-14 Dr. Ashok Sharma has further stated that Sukhram was in a fit and alert state of mind at that time. This dying declaration was recorded in the apprehension of death of Sukhram, however, he survived, hence can be considered as his extra judicial confession, as was made voluntarily in fit state of mind. P.W.-9 S.U. Saiyad, Naib Tehsildar, Harda has recorded the statement of appellant (Ex.P-13).
There was endorsement of the doctor regarding the mental altertness and full consciousness of the patient.
P.W.-16 Mohan Patel, T.I. Sirali has recorded the statement of deceased Laxmibai on 28.02.2007, in which she has stated that the her father had forced her to eat a tablet, which was bitter and having distinct smell and after which she got sick and started vomiting. Laxmibai has expired on 01.03.2007, on the very next day, hence her statement can be considered as her dying declaration. P.W.-11 Dr. Jyotsna Shrivastava, on examination found Aluminum Phosphate in gastric aspirate of Munna, Laxmi and Roop Singh.
In view of the evidence of P.W.-11 Dr. Jyotsna Shrivastava, the FSL report (Ex.P-33), coupled with the dying declaration given by Laxmi (deceased) to P.W.-16 Mohan Patel and the extra judicial confession given by the appellant to P.W.-14 Dr. Ashok Sharma, it is established that both the girls, Shantabai and Laxmi died on account of consumption of poisonous substance sulphas (pesticide). It is also established that the other two minor children Munna, Roop Singh and appellant who survived had also consumed the pesticide sulphas.
In view of the aforesaid facts and circumstances of the case, we do not find any illegality or infirmity in the conclusion recorded by the trial Court in recording a finding of guilt against the appellant.
The conviction of the appellant is accordingly upheld. It is informed that the appellant is in jail, it is ordered that he shall suffer out the remaining part of his sentence in accordance with the conviction recorded by the trial Court.
The appeal being meritless is accordingly dismissed.