NITISH YADAV Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Additional Sessions Judge dated 13.05.1997 whereby the Appellant was convicted under Section 302/328 IPC in connection with the death of Seema, who, it is alleged was living with the Appellant at the time the incident in question took place on 01.05.1994. Seema was removed to JPN Hospital on that date and she died three days later on 04.05.1994. It is an alleged case of poisoning at the instance of the Appellant.

(2.) The Appellant, after being convicted, by virtue of the impugned judgment, was sentenced to rigorous imprisonment for life in respect of the offence under Section 302 IPC and a fine of Rs. 2,000/- was also imposed upon him and in default whereof he was to undergo rigorous imprisonment for one month. In addition, the Appellant was also sentenced to undergo rigorous imprisonment for a period of seven years in respect of the offence under Section 328 IPC and a fine of Rs. 2,000/- was also imposed and in default whereof the Appellant was to undergo rigorous imprisonment for one month. All the sentences were directed to run concurrently. The order awarding the sentence was passed on 17.05.1997.

(3.) The entire case of the prosecution rests on the so-called dying declaration Ex. PW-7/A which was recorded by S.I. Roop Singh who was the Investigating Officer initially. However, S.I. Roop Singh could not be produced before the court, inasmuch as he had passed away on 09.01.1997, before his testimony could be recorded. Apart from the said Ex. PW-7/A, the trial court has also relied on the testimonies of PW-6 Asha (Seema's mother) and PW-7 Kailash Chand Sharma (Seema's father). Reliance was also placed by the trial court on Ex. PW-10/D which is the report of the Forensic Science Laboratory indicating that aluminum phosphide was detected in exhibit 1a (stomach and small intestine with contents) and exhibit 1b (pieces of liver, spleen and kidney). Reliance was also placed on the post-mortem report Ex. PW-10/A which, however, did not indicate any definite opinion as to the cause of death and revealed that viscera had been preserved for the purpose of sending the same to the Forensic Science Laboratory. PW-10 Dr. Lalit Kumar who conducted the post-mortem examination deposed before court, after examining the report received from the Forensic Science Laboratory, that death was caused due to aluminum phosphide poisoning.