Delhi District Court
Slipping Of A Food Bolus In The ... vs Unknown on 24 January, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.48/10
FIR No.173/06
PS Maurice Nagar
In the matter of:
State
Versus
Ajay Luthra,
S/o Late Sh. Man Mohan Luthra R,
R/o H. No. 37/30, Third Floor,
Old Rajinder Nagar, Delhi. .... Accused
Date of institution: 01.06.2007
Date of judgment: 24.01.2013
J U D G M E N T
Accused Ajay Luthra has been facing trial for an offence under Section 302 IPC on the allegations that on the night intervening 15th and 16.12.2006, he committed murder of Ms. Lucy Kashung.
2. It is case of the prosecution that Lucy Kashung (since deceased) used to work as Manager with Expression Beauty Parlour, Banglow Road, Kamla Nagar. On 15.12.2006 after having left for duty, at about 7 p.m, in the company FIR No.173/06 1 of the accused, she did not return home in the evening. Complainant Ngayopam Kahsung waited for her, but could not contact her.
Lucy used to reside at house no. 5/10 in Vijay Nagar, Delhi in the neighbourhood of PW7 Naveen Narang @ Lucky. Accused used to reside nearby in the area of Malkaganj, Delhi.
In the morning of 16.12.2006 the accused called his friend PW Anand Thukral and both fo them brought the victim to Hindu Rao Hospital where she was declared brought dead.
On 16.12.20]06, at abut 8/8.15 am Naveen Narang @ Lucky received a phone call on his mobile phone from the accused. In the conversation, accused represented to Naveen Narang that on the previous night, Lucy was with him and she had consumed excess liquor in his company and fallen ill, and further that he had taken Lucy to hospital in the morning and that there she was declared brought dead. Constable present on duty at Hindu Rao Hospital informed police station Sabzi Mandi, where information regarding arrival of the victim was recorded. Initially, police of P.S.Sabzi Mandi visited the hospital, but when it transpired in the enquiry made from the accused that occurrence had taken place within the jurisdiction of P.S.Roop Nagar, police of that police station was informed.
On 17.12.06, Ngayopam Kashung submitted a complaint to SHO PS Roop Nagar, Delhi and on its basis case came to be registered.
On 18.12.2006, Inspector Rakesh Tyagi accompanied by Inspector N. K. Bisht and SI PC Sharma reached 1046, Malka Ganj and apprehended the FIR No.173/06 2 accused. Accused made disclosure statement before police and then pointed out the place where the dead body of Ms. Lucy was present in his car. Accused was got medically examined. Samples collected by the doctor and undergarments of the accused were seized.
It is also case of prosecution that on 23.12.2006, Inpsector Rakesh Tyagi arrested one Bhupinder, friend of accused, from the area of Hakikat Nagar. He was also got medically examined.
Material exhibits were sent to CFSL Hyderabad where same were analyzed.
On completion of investigation. Challan was put in Court. Charge
3. Prima facie case having been made out, charge for an offence punishable under Section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial. Bhupinder Singh alias Palti was ultimately discharged vide order dated 21.09.2007.
Prosecution evidence
4. When called upon to lead evidence, in order to prove its case, prosecution examined following 37 witnesses: PW1 Dr. C. B. Dabas To prove autopsy on the dead body of Ms. Lucy Kash.
PW2 Sh. Anand Thukral Who accompanied the accused to Hindu
Rao Hospital at the time Lucy was taken
on 16.12.2006
PW3 HC Kunwar Jeet Singh To prove recording of FIR Ex PW3/A
PW4 HC Uday Bhan Concerned MHC(M)
FIR No.173/06 3
PW5 HC Makkhan Singh Who handed over parcels to SI Mahipal
Singh after collecting the same from
hosptial.
PW6 Ms. Achan Sister of deceased Lucy Kash.
PW7 Naveen Narang Whom the accused contacted on
16.12.2006 and apprised that Ms. Lucy
Kash had died.
PW8 Awon Kash, cousin brother To prove identification of dead body.
of Lucy
PW9 Sh. Krishan Pal Who did not support the case of
prosecution.
PW10 Sh. Shaleen Jain, Nodal To prove call details record in respect of Officer mobile phone no. 9212791900, 9212205929 & 9212017553 PW10 M. N. Vijyana, Nodal To prove record of mobile phone no.
Officer 9212791900, 9212205929 & 9212017553
PW11 HC Anil Kumar To prove factum of identification of dead
body by relatives of Ms. Lucy Kash.
PW 12 Ngayopam Kashung Complainant
PW13 Ct. Dheer Singh To prove investigation part of the
prosecution story.
PW 14 Cr. Brij Lal To prove seizure of parcels collected from
hospital, vide memo Ex PW14/A.
PW15 Dr. Sanjay Kumar Partidar To prove MLC of Lucy Kash Ex PW15/A
prepared by Dr. Sunil Chaurasia
PW16 HC Vijender Singh To prove investigation part of the
prosecution story.
PW17ASI Gobind Singh To prove seizure of parcel containing
blood sample of Bhupinder Singh @ Palti
collected from hospital, vide memo Ex
PW17/A
FIR No.173/06 4
PW18 SI Harish Chand To prove recording of DD No. 7A and
10A on 16.12.2006 at PS Subzi Mandi and
the part investigation conducted in his
presence.
PW19 Retd. Inspector Devender To prove scaled site plan Ex PW19/A and Singh B PW20 HC Mohd. Zakir Hussain To prove investigation part of the prosecution story.
PW21 Sh. Parveen Kumar, Legal To prove CDRs in respect of phone no. Executive, Reliance 9312683670 Ex PW21/A. (it may be Communications, Connaught Place, mentioned that witness was not examined after 20.04.2009 when his statement was recorded in part.
PW22 SI P. C. Sharma To prove investigation part of the prosecution story.
PW23 Inspector N. K. Bisht To prove investigation part of the prosecution story.
PW24 Inspector Pratima Sharma To prove investigation part of the prosecution story.
PW25 HC Rajpal, PhotographerMember of the Crime Team PW26 SI Parvinder Singh To prove seizure of certain items during investigation.
PW 27 Dr. Sanjeev Kumar To prove seizure of exhibits vide memo Ex PW27/A and medicolegal examination of Ajay Luthra accused vide Ex PW27/B. PW28 HC Parvesh Kumar, To prove entries in the registers concerned MHC(M) maintained at Malkhana.
PW29 SI Mahipal Singh To prove investigation part of the prosecution story.
PW 30 ASI Manish Kumar To prove Crime Team Report Ex PW30/A Bhardwaj PW 31 Dr. Shyam Dutt To prove MLC of Bhupinder Singh Ex PW31/A prepared by Dr. Giri Raj FIR No.173/06 5 PW 32 Mr. Kuruvilla Virges Manager of Xpression Beauty Parlor colleague of Ms. Lucy Kash PW 33 SI Vijay Kumar To prove investigation part of the prosecution story.
PW 34 Sh. Sanjeev Lakra, Nodal To prove call details record of mobile no.
Officer 9312683670 Ex PW34/A.
PW 35 Inspector Rakesh Kumar To prove investigation part of the
prosecution story.
PW 36 Dr. N. R. K. Rao, Retd. To prove report Ex PW36/A. Scientific Officer (Biology) PW37 Dr. Mohammad Afzal, Sr. To prove report Ex PW37/A. Scientific Officer (Toxicology) Statement of Accused
5. When examined U/s 313 Cr.P.C. the accused denied all incriminating circumstances appearing in evidence against him and claimed false implication.
The plea of accused is as under: "I and Lucy were friends for the last 15 years. It is correct that Lucy used to work as Manager with Expression Beauty Parlour and used to leave her house at about 10 am. However, she used to return from the said beauty parlour at about 7.30 - 8 pm. It is also correct that on 15.12.2006, she went to attend her job at the said beauty parlour. It is also correct that in the evening she did not return home.
On 15.12.2006, Lucy called me from landline phone of beauty parlour, on my mobile phone no. 9212017553, so far as I remember. She so called me at around 7/7.30 pm and inquired as where I was at that time. I told her that I was having drink (liquor) with my friend Bhupinder Singh @ Palti. At that I and my friend were taking liquor in my car maruti Zen HR06B6499, at the crossing of Malka Ganj, which was at a distance of 1 km from the beauty parlour. Then Lucy expressed her desire join us in FIR No.173/06 6 drinking (liquor). I and my friend then reached the beauty parlour and picked Lucy from there. All of us then reached the area of Kingsway camp as Lucy expressed desired to by mutton. Bhupinder Singh then bought mutton. We stayed in front of the mutton shop for about an hour. While sitting in my car, we had mutton and whiskey whereas Lucy had Vodka liquor. Lucy then expressed desired to have more liquor. So Bhupinder @ Palti bought more Vodka liquor. So we continued taking whiskey whereas Lucy had Vodka liquor. From their we reached, in my car, Malka Ganj crossing where scooter of Bhupinder @ Palti was parked by him. I dropped him there. Lucy expressed her desired to visit her cousin in the area of Malka Ganj. I drove and dropped Lucy near a park in the area of Malka Ganj as she desired to finish Vodka liquor. I then left for my house on foot, leaving Lucy behind in my car as she intended to visit the house of her cousin.
It is correct that I made a phone call to Naveen Narang apprising him that on the previous night, Lucy was with me and she had consumed excess liquor in my company and fallen ill and further that I had taken Lucy to Hindu Rao hospital in the morning and that there she was declared brought dead.
In morning of 16.12.2006, I went to bring my car back. When I reached near the car, I found Lucy lying on its rear seat. I tried to make her sit but I felt that she had died. Immediately, I called Anand Thakral from the neighbourhood near whose house I had parked my vehicle. In the company of Anand Thakral, I removed Lucy to Hindu Rao Hospital where she was declared brought dead. From the hospital, I made a call to Naveen Narang as noticed above.
From Hindu Rao Hospital police took me and Anand Thakral to PS Sabzi Mandi in my car. There both of us were detained. From there we were taken to police station Roop Nagar. We were detained there for about two nights.
Bhupinder Singh was also arrested by the police but I do not FIR No.173/06 7 know when and from which place he was arrested. "
In defence accused has examined himself as his own witness as DW1 and DW2 Dr.R.K.Sharma.
6. Arguments heard. File perused.
Discussion
7. This case is based on circumstantial evidence. Guidelines have been laid down by Hon'ble Apex Court as to how to decide a case based on circumstantial evidence. For appreciation of circumstantial evidence, the guidelines laid down by the Apex Court in the case reported as 2002 (4) RCR (Criminal) 95 : (2002 Cri LJ 4650), Balu Sonba Shinde v. The State of Maharashtra, have to be taken into consideration which are as under : "1. That there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused.
2. Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.
3. There should be no missing links but it is not that everyone of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts.
4. On the availability of two inferences, the one in favour of the accused must be accepted."
It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however farfetched and fanciful it might be. Nor does, it mean that prosecution evidence must be rejected on the slightest doubt because FIR No.173/06 8 the law permits rejection if the doubt is reasonable and not otherwise."
Taking into consideration the well settled law, this court proceeds to discuss the circumstantial evidence led by the prosecution.
Delay in registration of case
8. Occurrence is alleged to have taken place on the night intervening 15/16.12.2006.
Police came to know about the occurrence on 16.12.2006 at about 8.32 am when Ct. Ranbir of PCR, present in emergency of Hindu Rao Hospital informed police of police station Subzi Mandi that two boys had brought a girl in vehicle no. H R 06B 6499; that girl was not alive; and that all three were drunk. This information was communicated to SI Harish Chand. This information was recorded at PS Subzi Mandi on the same day vide DD NO. 7A Ex PW8/A. MLC Ex PW15/A i.e. of the victim, would reveal that she was brought to Hindu Rao Hospital on 16.12.2006 at 8 am by Ajay Luthra accused and PW2 Anand Thakral.
PW6 Achan is sister of victim, according to her in the morning of 16.12.2006, she got a phone call from her cousin Awon that the victim was serious and had been got admitted at Hindu Rao Hospital. On reaching the hospital, she found that Lucy had expired.
Awan Kash has been examined as PW8. According to this witness, he got a call from Mr. Lucky on 16.12.2006 between 88.15 am that his cousin sister Lucy was dead and lying at Hindu Rao Hospital.
Complainant Nagayopam, brother of the victim has been examined as FIR No.173/06 9 PW12. He learnt about demise of Lucy Kash from his cousin sister Awon Kash and then reached Hindu Rao hospital, where he found dead body of Lucy lying in the mortuary.
While making statement in chief examination, witness did not state complete facts. Learned Addl. PP made submissions before the Court seeking permission to put leading questions to the witness. Only when so allowed to be examined, the witness proved complaint Ex PW12/A. From the above evidence, it would transpire that the factum of death of Lucy Kash came to the notice of the complainant & other relatives on 16.12.2006 itself.
Dead body of the victim reached Hindu Rao Hospital in the morning of 16.12.2006. No missing report was lodged by any of the family member of the victim on the night of 15/16.12.2006. None of the family member or relative of the victim made any enquiry from the place of her employment to know her whereabouts after having left the job after duty hours. There is no explanation in this regard.
Case was registered on 17.12.2006 on the complaint of PW12 Nagayapam Kashung, younger brother of the deceased/victim.
Inspector Kailash Bisht of PS Maurice Nagar got the case registered on the basis of this complaint Ex PW12/A by appending rukka dt.17.12.06 Ex.PW35/A at 8.30 p.m. FIR Ex PW3/A was recorded on 17.12.06 at 8.30 pm. According to PW18 SI Harish Chander of PS Subzi Mandi on receipt of DD NO.7A he reached Hindu Rao hospital; collected MLC of the victim. FIR No.173/06 10 Further according to him on inquiries made from Ajay Luthra, it was found that case pertain to the jurisdiction of PS Roop Nagar. He got recorded DD No. 10A Ex PW18/B and further proceedings were assigned to SI Vijay Dahiya of PS Maurice Nagar. While appearing in Court as PW33 SI Vijay Dahiya stated to have accompanied Ct. Dhir Singh and reached PS Subzi Mandi and collected MLC of the victim. Family members of the Ms. Lucy Kash were present at PS Subzi Mandi and their statements were recorded. But it remains unexplained as to why the case was not promptly registered on the basis of complaint dated 16.12.2006 and statements of relatives of deceased.
So, there is delay in recording of FIR. It was for the prosecution to explain the delay, but it has failed to explain the same. In this regard reference be made to decision in Dhan Prasad vs. State of UP 2003 CrLJ 4127 wherein it has been observed that inordinate delay of 12 hours in lodging FIR left much time for concoction and deliberation and was held to have given serious jerk to prosecution case.
How the complainant raised suspicion about rape on the victim?
9. Case was registered on 17.12.2006. Autopsy on the dead body was conducted on 18.12.2006. In the complaint Ex PW12/A dated 16.12.2006 addressed to SHO PS Roop Nagar, PW12 alleged that he suspected it to be a case of rape and murder. However, when there was no eye witness to the occurrence, and autopsy had not yet been conducted, there is nothing in the statement of PW12 as to how, he came to suspect it to be a case of rape. It was for the complainant to explain the basis for a such suspicion. But PW12 has not FIR No.173/06 11 put forth the basis of raising such suspicion regarding commission of rape and as such it becomes doubtful that complaint Ex.PW12/A was given to police on 16.12.06.
Medical Evidence 10 PW1 Dr. C. B. Dabas, conducted postmortem examination on the dead body of deceased Lucy Kash on 18.12.2006. On autopsy, on "external examination", the doctor observed as under: "Dusky appearance on face and upper chest; skin below nipples was pale; rigors mortis had passed off; postmortem staining was present on the back and left lateral side of the body except contact points; straining was fixed; eyes were closed; cornea was hazy and conjunctiva was congested; blood stain fluid was oozing out from the angles of the mouth.
Following external injuries were observed on the dead body:
1. Bruise .8 x .8 cm on the knuckles of right ring finger.
2. Scratch abrusing horizontal placed over middle front of right leg of size 4 x .1 cm.
3. Bruise 1 x .5 cm over inner aspect of right leg.
4. Bruise 3 x 1.5 cm over upper front aspect of left leg." In the opinion of the doctor, injuries no. 1, 3 & 4 were caused by blunt force impact with hard surface or object. Injury no. 2 was caused by a pointed object. All the injuries were antemortem and fresh. FIR No.173/06 12
On examination of external genitalia, doctor observed that there was no mark of recent of external injury on labia majora and minora; Vaginal orifice was widely open and hymen was absent; there was no tear in the vaginal orifice; walls of vaginal was intact; straw coloured discharge was oozing out of vagina.
Pubic hair bunch on the pubic region of the deceased was preserved after cutting it and sealed with the seal of FM HRH in the envilock; Vaginal swab was taken and smeared on the two glass slides dried in air and slides were sealed in a separate parcel.
On "internal examination", the doctor observed as under: "1. Stomach contained about 400 grams of brown liquid food material with undigested big pieces of meat. Smell of alcohol was present in the gastric contents. Stomach wall was congested. Intestines, liver, spleen, kidney were intact and congested.
2. Urine bladder was full of urine. The pelvic bone over the uterous was intact.
3. Food particles were present in lynix and tracheal lumen upto bifurcation of trachea. Walls of trachea were congested. The other next structures were intact.
4. Both lungs were congested, oedematous and serosanjuinous fluid was oozing out from cut section of lungs. Petcheal haemorrages were present over interlober fissures of both lungs. The ribs and collar bones were intact.
FIR No.173/06 13
5. Petcheal haemorrhages were present on endocardium of the heart, the coronaries were intact and patent. Diaphargm and spinal column were intact. One sebaceous cyst over occipital region of the scalp was present. Sculp bone was intact. Petcheal haemorrhages was present in both cerebral hemispheres. The viscera of the deceased was preserved and sealed." Opinion regarding cause of death was deferred till report of vicera and other specimens were received.
As per postmortem findings, in the opinion of the doctor, the cause of death was asphyxia. Time that elapsed between death and postmortem examination was 3537 hours.
On 10.09.2007, on the basis of photocopies of report of CFSL dated 30.03.2007 regarding analysis of viscera, clothes, vaginal slides and bunch of pubic hair (which were preserved at the time of postmortem examination), Dr. C. B. Dabas opined that cause of death in the case was "traumatic asphyxia" by sustained constriction/compression of chest and abdomen from outside and that possibility of homicide could not be ruled out.
Scientific evidence of other experts
11. PW36 Sr. Scientific Officer (Biology) examined exhibits sent for analysis and prepared report Ex PW36/A. As per this report, Human Blood was detected in exhibits (6) and (11). Blood group 'B' was detected in exhibit 6, whereas group test was inconclusive due to disintegration of blood group specific substance in exhibits 11.
FIR No.173/06 14
PW37 Sr. Scientific Officer (Toxiology) examined exhibits and prepared report Ex PW37/A. As per this report, Ethyl Alcohol was detected in the contents of the exhibit marked as 12400/II. No common poison including ethyl alcohol was detected in the contents of the exhibits marked as 12400/I/1, 12400/I/2, 12400/I/3 and 12400/I/4.
Ld. Addl. PP has submitted that as per medical evidence, Lucy did not die of alcohol and rather she died of "traumatic asphyxia", which demolishes the defence plea that Lucy died of excessive alcohol.
Learned Addl. PP has further submitted that at the time of autopsy, four injuries were observed on the dead body of Lucy, but accused has failed to explain any of these injuries, and as such adverse inference has to be drawn against him that it is who is responsible for death of Lucy.
On the other hand, Learned defence counsel has contended that at the time autopsy was conducted, the doctor simply opined that death was due to asphxiya but the cause of death was deferred and that it is only after receipt of result from FSL that the doctor used word 'traumatic asphxiya'.
The contention is that had the doctor opined at the outset that it was a case of "traumatic asphxiya", it would have been a different matter, but herein no injury was observed on the ribs, chest and lungs, and in absence of injury on these organs, it cannot be said to be a case of "traumatic asphyxia". In support of this contention, learned defence counsel has referred to testimony of DW2 Dr.R.K. Sharma and observation recorded in the texts referred to by the doctor.
Another contention raised by learned defence counsel is that while opinion FIR No.173/06 15 of cause of death was given on receipt of report from FSL regarding viscera, the doctor opined that possibility of homicidal death of Ms. Lucy Kash could not be ruled out, but by using the words "possibility", doctor himself was not sure if it was a case of homicidal death. It has been submitted that asphyxia can be natural cause of death and that this case is also a case of natural asphyxia, as the food particles entered the wind pipe while the victim had consumed excessive alcohol. So, the contention raised by learned defence counsel is that prosecution has failed to establish that death of Ms. Lucy Kash was homicidal.
In support his contention, learned defence counsel has referred to decision in Pappey vs. State Crl. Appeal No. 146/2008 decided by our own Hon'ble High Court on 22.02.2010 and Subramainam vs. State of Tamil Nadu and Anrs. 2009 Crl. L. J. 3002.
As noticed above out of the four external injures observed on the dead body, injury no. 1 is Bruise .8 x .8 cm on the knuckles of right ring finger. Injury no. 2 is Scratch abrusing horizontal placed over middle front of right leg of size 4 x .1 cm, Injury no. 3 is Bruise 1 x .5 cm over inner aspect of right leg and injury no. 4 is Bruise 3 x 1.5 cm over upper front aspect of left leg.
Learned defence counsel has rightly submitted that none of these injuries was on any vital part of the body. In the course of arguments, learned Addl. PP has not disputed that none of these injuries led to death. The contention raised by learned Addl. PP is that from the medical evidence, it stands established that Lucy died on account of constriction/ compression of chest and abdomen from outside and that since accused and deceased were together in the car on the night FIR No.173/06 16 intervening 15/169.12.2006 and he has failed to explain death of Lucy, he is liable for commission of her murder.
Accused has examined in defence DW2 Dr. R.K. Sharma, earlier serving at AIIMS for about 23 years. The doctor has proved his opinion Ex.DW2/A. As per this opinion, death in this case occurred due to asphyxia on account of aspiration of food from stomach consumption of alcohol causing aspiration pneumonia and that there was no evidence of traumatic asphyxia in postmortem report dt.17.12.06.
The doctor further deposed that his opinion is based on scientific research, his experience and reference in following books / articles : "1. Text Book of Fornic Medicine and Toxicology by V.V. Pillay, 14th Edition, published by Paras Medical Publisher, page No.2.
2. Text Book of Principles of Forensic Medicine including toxicology by Apurba Nandy, published by new Central Book Agency (P) Ltd., Calcutta, page no.558.
3. Handbook of Forensic Medicine including toxicology by Dr. V.P. Patnaik, 11th edition, published by Paras Publishing, page 161.
4. Test book of Forensic Medicine and Toxicology, 3rd edition, by Dr. R.K. Sharma (myself) published by Global Education Consultants, Noida, page 59.
5. Article on Aspiration Pneumonia down loaded from FIR No.173/06 17 web address surgery.med.nyu.edu/content.
6. Article on passing out from Alcohol consumption down loaded from www.bc.edu/content/bc/offices/ade/info resources/passing_out.html
7. Article from advances in psychiatric treatment journal of continuing professional development, adverse physical effects of alcohol misue byG.A. Barclay and others."
DW2 Dr.R.K.Sharma further stated that traumatic asphyxia is caused as a result mechanical fixation of chest mostly seen in stampeds in fairs or crowded situations, road side vehicular accidents and natural calamities like earthquakes or falling of building or building material. In this situation, the mode of death is accidental and lot of injuries in the form of contusions/ abrasions/ lacerations/ fracture of ribs/ lung injuries are present. But none of such injuries was present in this case.
Further according to doctor, alcohol causes inhibition of cough reflex as a result of which the person can inhale stomach contents/ vomiting in wind pipes which can cause sudden aspiration pneumonia. In this case there was a severe broncospsm as a result of whch the lady died of asphyxia.
It is true that Dr. R.K. Sharma did not examine the dead body and that sufficient weightage is to be given to the doctor who has conducted examination as compared to the statement / observations which find in the text book, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value when it is self FIR No.173/06 18 contradictory. In this regard reference may be made to decision in Subramaniam's Case (supra).
It is well settled that opinion of expert is admissible and relevant evidence U/s 45 of Indian Evidence Act. The decision has to be of the court and it is duty of the court to consider and apply the known text on a matter of science and specialized knowledge. Reference in this regard may be made to decision in Pappe Vs. State (Supra).
In State of Himachal Pradesh Vs. Jeet, 1999 Crl. L.J. 2025, Hon'bleApex Court observed that even without seeing the chemical examination report herein, the doctors could see that death of the victim might be due to smothering and after seeing the chemical examiner's report, a doctor could say that poison could also work fatally in the victim.
Herein, PW1 Dr. C.B. Dabas stated in his cross examination that in the postmortem examination usually final opinion of cause of death is not given, since analysis reveal certain internal vital findings also and that initially, the doctors give only an immediate cause i.e. mode of death.
Herein, initially PW1 Dr. C.B Dabas observed in view of postmortem findings that it was a case suggestive of asphyxia. The doctor did not use term "traumatic asphyxia" at that time.
Had it been a case of traumatic asphyxia, the doctor would have given such opinion at the outset in view of postmortem findings. There is nothing in evidence to suggest as to what led to doctor witness to change in his opinion regarding the cause of death from asphyxia to traumatic asphyxia. FIR No.173/06 19
"Traumatic Asphyxia" as defined in Principles of Forensic Medicine including Toxicology is forceful compression of the chest which prevents respiratory movements of the chest wall and also causes injury to the chest wall.
Following are the circumstances of Traumatic Asphyxia, as observed by the Learned author in his book above titled book:
1. Due to house collapse.
2. When stampeded by a crowd, running in panic and without any sense, as it occurs for example, due to outbreak of fire in a cinema hall or at a public gathering.
3. By being run over by a vehicle.
4. Due to collapse of a wall inside a mine.
5. When held between the buffers of two bogies of a train. As regards pressure on the Chest, Learned author has observed at page - 591 of Modi's Medical Jurisprudence Toxicology as under :
"The terms traumatic (crush) asphyxia is applied where there is a mechanical fixation of the chest sufficient to cause death. The traumatic asphyxia results when the chest is pressed violently in a crowd, or trampled upon in the rush of such crowds. Pressure on the chest may also occur in a railway, motorcar or other vehicular accidents or by burial under the earth, sand or the debris of a falling wall or roof Cases of compression of the chest homicidally are also met with in India."
But it is not case of prosecution that Lucy died on account of any of the aforesaid circumstances. Furthermore, in case of constriction/compressedion of chest, one of the symptoms is fracture of ribs. But herein, no fracture of ribs was FIR No.173/06 20 observed.
DW2 Dr.R.K.Sharma has also deposed on same lines so as to opine that this was not a cause of "traumatic asphyxia" as observed by PW1 Dr.C.B.Cabbas.
Therefore, simply from the findings recorded by PW1 Dr.C.B.Dabbas in postmortemexamination that there was dusky appearance on face and upper chest; skin below nipples was pale; rigors mortis had passed off; postmortem staining was present on the back and left lateral side of the body except contact points; straining was fixed; eyes were closed; cornea was hazy and conjunctiva was congested; blood stain fluid was oozing out from the angles of the mouth, it cannot be said to be a case of "traumatic asphyxia".
Having regard to the aforesaid facts, Learned Addl. PP then changed the line of argument to submit that this is a case where because of some pressure on the abdomen of the victim (and not on account of constriction/compression of chest) , the food particles went to the wind pipe and as a result this is a case where death occurred due to traumatic asphyxia plus choking.
As discussed above, present case cannot be said to be a case of death of the victim due to Traumatic asphyxia.
As regards "Choking", it has been defined in Principles of Forensic Medicine as under: "In choking the air passage is occluded either by some foreign materials or due to some pathology or foreign substance in the neighbouring structure."
FIR No.173/06 21 Following are the circumstances of chocking, as observed by the author in the aforesaid book:
1. Slipping of a food bolus in the respiratory tract.
2. Children, chewing a toffee, or playing with a button or a coin in mouth, may get choked when that slips down through the larynx.
3. Children, sucking a piece of balloon to puff it inflate it inside the mouth, may get choked if that slips inside the larynx.
4. Fisherman, after a catch, when holds the fish temporarily between the teeth or lips, that may accidentally slip downwards and choke him.
5. People may be choked due to inhalation of irritating gas like chlorine gas, vapour of an acid etc. laryngeal spasm and excessive mucus secretion cause choking in these cases.
6. When food substance gets lodged and remains fixed at some curvature or constriction of the oesophagus, that may causes choking from outside the lumen of the trachea or the larynx.
7. Similarly, any swelling, abscess or new growth of any neighbouring structure will cause obliteration of the lumen of trachea and larynx is another and may cause choking.
8. Slipping of an artificial denture inside the larynx is another cause of choking.
In his crossexamination PW1 Dr.C.B.Dabbas has admitted that there can be possibility of asphyxia if larynx and trachea are choked with food material. He further stated in reply to a Court question that constriction and compression FIR No.173/06 22 make gastric contents get regurgitated into the larynx and trachea.
Learned defence counsel has referred to observations made by Modi, the learned author, in Medical Jurisprudence and Toxicology, 23rd Edition ,: "Certain diseases of the respiratory organs producing asphyxia, such a acute oedema of the glottis, membranous deposit in the larynx or trachea, or tumour pressing on the trachea or respiratory centre spasm of the vocal cords, air embolism, rupture of an emphysematous bullae or a tubercular cavity producing fatal pneumothorax, hameothorax, pleuritic effusion, haemoptysis in the course of plumonary tuberculosis or cracinoma, oedema of the lungs, asthma, ambulatory lobar pneumonia, bronchopneumonia and acute bronchitis in infants and children, acute epiglottitis, regurgitation of the stomach contents into the air passage in narcotic poisoning and other comatose condition due to alcohol, and uraemia."
Herein, PW1 Dr.C.B.Dabbas observed that stomach contained about 400 grams of brown liquid food material with undigested big pieces of meat. Smell of alcohol was present in the gastric contents. Stomach wall was congested. Intestines, liver, spleen, kidney were intact and congested.
Urine bladder was full of urine. The pelvic bone over the uterous was intact.
Food particles were present in larynx and tracheal lumen upto bifurcation of trachea. Walls of trachea were congested. The other next structures were intact.
Under the head 'Suffocation' available in chapter "Deaths from asphyxia"
at page - 591 of Modi's Medical Jurisprudence Toxicology, Learned author has FIR No.173/06 23 observed as to how choking or obstruction of air passages from within is mostly accidental. The relevant portion reads as under : "Choking or obstruction of the airpassages from within is mostly accidental. This may be due to the presence of foreign bodies such as a piece of meat, potato skin, fruitstone, corn, button, coin, cork, rag, Indiarubber teat, live fish, roundworm, loose artificial teeth, mud, cotton, and leaves.
It is not necessary that a foreign body should be of such a size as to block the airpassages completely. Even a small object blocking the lumen partially may cause death by laryngeal spasm. One can come across deaths in children by laryngeal spasm, due to a small piece of coconut, a monkeynut or a gramseed.
Vomited matter may regurgitate in the larynx, and by inspiratory efforts may be aspirated into the smaller bronchi and may cause suffocation. This is especially common in acute alcoholism, and occasionally occurs during a fit of epilepsy or in a case of badly administered anaesthesia. In must be remembered that the contents of the stomach fall into the larynx and trachea after death, owing to pressure of the gases of decomposition, but they cannot reach the smaller bronchi.
Having regard to the fact that victim consumed excessive alcohol with mutton, the observations in the text by the learned author and the admission by Dr. C. B. Dabbas that there can be possibility of asphyxia if larynx and trachea are choked with food material, and the opinion given by the doctor initially that cause of death was asphyxia, possibility of natural death of Lucy having so occurred cannot be ruled out.
FIR No.173/06 24
In view of above finding, this court further finds that medical evidence also does not show involvement of the accused in commission of crime against Lucy.
Motive
12. As noticed above, this case is based on circumstantial evidence. It is well settled that any such like based on circumstantial evidence, motive is of much significance. If the motive is not established and there is no direct evidence to connect the accusedappellant with the crime, then, the sole circumstance of "last seen" in the company of accused is not sufficient to convict the accused.
Herein as per prosecution version, the accused had sexual intercourse with the Lucy against her consent and and when she threatened to report the matter to police, he killed her.
To prove aforesaid allegation, prosecution examined PW2 Anand Thukral. But a perusal of his statement made in Court would reveal that he has not supported the case of prosecution in this regard at all. The witness was put leading questions by Ld. Addl. PP but nothing useful to the prosecution could be elicited from him, he was suggested by learned Addl. PP that on being asked, Ajay Luthra informed him that he had taken excessive alcohol and asked Lucy for sex, which she refused and then he committed rape on her and further that when she threatened to report the matter to police, he killed her.
Witness categorically denied this suggestion. He denied to have so stated to the police in any statement. So prosecution has failed to prove this fact from the statement of PW2.
FIR No.173/06 25
On examination of external genitalia, PW1 Dr.C.B.Dabbas observed that there was no mark of recent of external injury on labia majora and minora; Vaginal orifices was widely open and hymen was absent; there was no tear in the vaginal orifices; walls of vaginal was intact; straw coloured discharge was oozing out of vagina.
Pubic hair bunch on the pubic region of the deceased was preserved after cutting it and sealed with the seal of FM HRH in the envilock; Vaginal swab was taken and smeared on the two glass slides dried in air and slides were sealed in a separate parcel.
It is not case of prosecution that on scientific examination, no semen was detected on the exhibits collected by the doctor and sent for analysis. Surprisingly, no opinion was given by the expert on analysis of the two vaginal smear slides. Having gone through the FSL result, in the course of arguments, learned Addl.P.P has not disputed this fact.
From the above statement of PW2 and medical/expert evidence, this Court finds that prosecution has failed to prove that accused had any motive in commission of murder of Lucy Kash.
Were the Accused and the victim together during the fateful night?
13. It is in prosecution evidence that the victim who used to work as Manager, Expression Beauty Parlour, Banglow Road, Kamla Nagar, Delhi. She used to leave her house at 10.00 a.m. and return home by 9.00 p.m. On 15.12.06, she left for her job but did not return home by the evening. It has so come in the statement of PW12 Ngayapom Kashung.
FIR No.173/06 26
Accused has admitted these facts narrated by PW12 Nagayapom Kashung and PW32 Mr. Kurivilla Virgis.
It is also case of prosecution, as narrated by PW32 Kurnvilla Virgis, Manager of Expression Beauty Parlour that on 15.12.06, Lucy left parlour in the company of the accused.
Accused has admitted that on 15.12.06 he and his friend Bhupinder Singh @ Palti reached the Beauty Parlour and took Lucy along in Maruti Zen car no. HR 06B 6499. Accused has admitted that he used to meet Lucy outside the parlour even earlier.
As to what happened after Lucy accompanied the accused and his friend Bhupinder Singh @ Palti from the beauty parlor, the accused has put forth his submission as under : "All of us then reached the area of Kingsway camp as Lucy expressed desired to by mutton. Bhupinder Singh then bought mutton. We stayed in front of the mutton shop for about an hour. While sitting in my car, we had mutton and whiskey whereas Lucy had Vodka liquor. Lucy then expressed desired to have more liquor. So Bhupinder @ Palti bought more Vodka liquor. So we continued taking whiskey whereas Lucy had Vodka liquor. From their we reached, in my car, Malka Ganj crossing where scooter of Bhupinder @ Palti was parked by him. I dropped him there. Lucy expressed her desired to visit her cousin in the area of Malka Ganj. I drove and dropped Lucy near a park in the area of Malka Ganj as she desired to finish Vodka liquor. I then left for my house on foot, leaving Lucy behind in my car as she intended to visit the house of her cousin."
It may be mentioned here that even while appearing in the witness box as FIR No.173/06 27 his own witness as DW1, the accused has admitted to have taken Ms. Lucy along from the beauty parlour and rached Kingsway Camp, where they stayed for about half an hour whereas, he and his friend Bhupinder Singh took whiskey, the victim took vodka liquor. Further according to accused, all of them thereafter left the place in front of mutton shop in the area of Kingsway Camp reached Malkaganj reason being that scooter of Bhupinder was lying parked there. On reaching Malkaganj crossing, they dropped Bhupinder Singh there. The accused, as his own witness has further stated the manner in which he accompanied the victim to Malkaganj as Lucy expressed her desire to have more liquor there. The accused further stated to have left Lucy in his car in the area of Malkaganj and then left for his house, as she expressed to take liquor and go of her own to the houser of her cousin situated nearby.
Learned Addl. P.P. has referred to the above version given by the accused in his statement U/s 313 Cr.P.C. and also the version narrated while appearing as DW1 and pointed out that in the former he alleged to have dropped Lucy near a park, which is in contradiction with his version that he left Lucy behind in his car in the area of Malkaganj.
The plea put forth by the accused in reply to question no.3 in his statement U/s 313 Cr.P.C. has been reproduced above. Same reveals that although in the second last sentence of the answer, he stated to have dropped Lucy in the area of Malkaganj but in the very next sentence he specifically stated that he left Lucy in his car as she desired to finish Vodka and intended to visit her cousin. Therefore, this version cannot be said to be inconsistent with the version FIR No.173/06 28 furnished in his statement as DW1.
Learned Addl. P.P. has then referred statement of PW2 Anant Thukral, who deposed as to how the accused asked him to accompany to hospital in the morning of 16.12.06. According to PW2, in the morning of 16.12.06 when he was going to gym, the accused called his neighbour and asked him to accompany the hospital. But when he enquired as to for what purpose he was required to accompany him the accused did not tell him. Contention raised by learned Addl. P.P. is that this conduct of the accused goes against him.
It may be mentioned here that it is case of prosecution that Ajay Luthra made extra judicial confession of PW2 Anant Thukral regarding his involvement in causing death of Lucy after committing rape on her. However as discussed above, while appearing in court as PW2 Anant Thukral did not depose about any such extra judicial confession made by accused. He clearly stated that accused did not tell anything as to how Lucy had died.
From the statement of PW2 and MLC of the victim, it stands proved that the accused and PW2 Anant Thukral together took Lucy to Hindu Rao Hospital on 16.12.06 at about 8.00 a.m., where she was declared 'brought dead'.
Learned Addl. P.P. has referred to statement of PW7 Naveen Narang wherein he stated as to what the accused had disclosed to him on 16.12.06 at 8.00/8.15 a.m. by way of phone call and submitted that this goes to establishes his involvement in the crime. Learned Addl. P.P. has submitted that from the statement of PW7, it stands established that the accused actually remained with Lucy during the night of 15/16.12.06 and his plea that he had left in the car, does FIR No.173/06 29 not stand established.
According to PW7, on 16.12.06, at about 8.15 a.m., he received a phone call from Ajay Luthra that he was the same person who had met him about 20 days back at his STD shop and enquired about house of Lucy; that on the last night Lucy was with him but she has consumed excess liquor and fallen ill; and he had taken Lucy to the Hospital in the morning but there she was declared 'brought dead'; that he (PW7) should take away dead body from the hospital.
It is true that in his chief examination PW7 stated that accused had told him that on the last night Lucy was with him, but when the witness was confronted with his previous statement Ex.PW7/DA, this fact was found to have not been recorded therein. So, it can safely be said that PW7 improved upon his statement while deposing in this regard. Therefore, no reliance can be placed on the statement of PW7 on this aspect.
Herein, the prosecution wants the Court to believe that accused remained with the victim during the night of 15/16.12.2006 whereas accused has come up with the plea that he had left the victim behind in his car on her request as she had desired to take more liquor and then go to her cousin brother's house situated nearby and that in the morning when he returned to his car, he found the victim lying in it without any movement and then he removed her to hospital in the company of PW2 Anand Thukral, when she was declared brought dead.
As available in police records, address of the accused during those days was house no. 46, Malkaganj, Delhi. Car was parked in the are of Malkaganj near the house of PW2 Anand Thukral.
FIR No.173/06 30
During investigation, none of the IO collected any evidence to suggest if anyone from the neighbourhood including PW2 Anand Thukral or any police official of the area observed the victim and the accused together in the car on the night intervening 15/16.12.2009.
As per prosecution version, during the night intervening 15/16.12.2006 accused had contacted PW2 Anand Thukral declined his request as it was late night or that he told that accused that he would come and meet him in the morning. But this story of the prosecution has not been supported by PW2 Anand Thukral. When he was put leading questions by learned Addl. PP, the witness denied that Ajay Luthra accused made any telephonic call to him on the night of 15.12.2006 and asked him to come down or that he declined his request or said that he would see him on the morning.
From the aforesaid submission of Anand Thukral, prosecution has failed to prove that accused contacted PW2 during the night itself. Had the prosecution established this fact, this the matter would have been otherwise. Since prosecution has failed to prove any such conversation between accused and PW2 Anand Thukral during the night itself, it appears that nothing untoward had taken place during the night in presence of the accused. It may be mentioned here that Investigating Officer should have made efforts to collect location chart. No location chart was collected by the Investigating Officer from the concerned mobile phone service provider, to collect evidence regarding presence of the accused during the night.
As noticed above, PW2 Anand Thukral has not supported the case of FIR No.173/06 31 prosecution that the accused made disclosure statement to have killed the victim after having subjected her to rape. From the medical evidence available on record, it cannot be said that the victim was subjected to sexual assault during the night.
It is not case of the prosecution that any passerby heard any cries or noise emanating from the car or witnessed th88e accused and the victim together in the said car during the night.
PW32 Kuruvilla Vargis, Manager of Xpression Beauty Parlor, (where the victim was also serving as a Manager) clearly stated that accused used to frequently visit the parlor and that even on 15.12.2006 at about 7 pm, the victim had left the parlor with her friend. From this statement, it stands proved that the victim and the accused were friends since long. There is no evidence on record to suggest that at any point of time any quarrel or dispute took place between the vcitim and the accused prior to 15.12.2006. There is also no evidence that any quarrel or dispute took place between the two in the evening of 15.12.2006 or during the night intervening 15/16.12.2006.
In the given circumstance, it remains unexplained as to why a person like the accused would subject a friend like the victim to any injury or use of force so as to kill her.
There is nothing in the version of the prosecution that any mark of violence was noticed by the police in the car or at the place where the car was parked on that night after the accused left the victim behind.
During investigation, no pointed weapon was recovered from inside the FIR No.173/06 32 car. No material, in the form of any vomiting by the victim was observed in the car. No footprints were picked up from the outside the car.
In the given circumstances, this Court does not find any reason to believe that the accused used any kind of force against the victim or he intended to kill her.
Had the victim been done to death during the night intervening 15/16.12.2006, the accused would not have conducted in the manner he is proved to have acted.
Had any occurrence taken place during the night of 15/16.12.2006, accused had sufficient opportunity to remove the car and Lucy from the area of Malkaganj and throw away the victim and screen evidence regarding commission of any crime. However, in this case, prosecution has not come forth with any allegation that accused, at any point of time destroyed any evidence to screen himself. Rather he informed PW7 Naveen and PW2 Anand Thukral about it and removed the dead body to the hospital.
Had the prosecution been able to establish that the accused remained with the victim in the car during the entire night intervening 15/16.12.2006, it was for the accused to explain the circumstances in which the victim died. But when prosecution has failed to establish any of the circumstances, it cannot be said that it is the accused and accused alone who was responsible for causing death of the victim. Reference in this regard made to the decision of Subramaniam's case (Supra).
FIR No.173/06 33
Conclusion
14. In view of the above discussion, this Court finds that prosecution has failed to establish circumstances of extra judicial confession, the circumstance that he remained with the victim during the night intervening 15/16.12.2006; that he had any motive against the victim to cause her death; and the circumstance that he used any force against the victim or caused any injuries on her person, what to say of commission of rape, on the given night, this Court finds that the material available on record is not such which may lead to a definite conclusion that it is the accused and the accused alone who committed murder of Lucy the victim. Accordingly, this Court hereby orders for acquittal of the accused, while extending him benefit of doubt.
Case property be disposed of in accordance with rules on expiry of period for appeal/Revision, if none is preferred, or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 24.01.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi
FIR No.173/06 34