Delhi District Court
St. vs . Sagar Yadav on 28 October, 2017
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.7486/16 (Old No.51/14)
Unique ID No.02406R0025782012
FIR No.21/09
U/s: 302 IPC
Police Station: Sarojini Nagar
State
Vs.
Sagar Yadav S/o Sh. Manik Yadav
R/o H. No. 597, Pocket-8,
Sector-A5, Narela, New Delhi
Date of Committal :10.01.2012
Arguments concluded :24.10.2017
Judgment pronounced on :28.10.2017
JUDGMENT
Prosecution case as per charge sheet
1. In this case, accused faced trial for the charges of offence punishable u/s 302 IPC. Before narrating the facts of the prosecution case, it is necessary to first mention the brief background of the matter.
2. As per record, the FIR was lodged u/s 156 (3) Cr.P.C., vide order dated 09.01.2009 passed by Ld. Magistrate on the application moved by the complainant Smt. Bindu, the mother of the deceased. However, after completing the investigation, IO filed the cancellation report by concluding that no sufficient material was found against accused Sagar Yadav as the investigation revealed that complainant never approved deceased's relation with the accused and this was the main reason of tension between deceased and complainant. It was further mentioned by the IO that no definite or conclusive opinion had FIR No.21/09 1/22 St. Vs. Sagar Yadav been given by the autopsy surgeon regarding the cause of death and even as per the viscera report, no presence of poison was detected. However, Ld. Magistrate disagreed with the report filed by the police u/s 173 Cr.P.C. and decided to proceed against accused Sagar Yadav and issued summons against him.
3. The brief facts of the case as narrated in the FIR are that the daughter of complainant Smt. Leela w/o Dalip Pandey was having friendly relations with one Sagar Yadav i.e. accused. On 20.11.2008, accused came to the house of deceased and gave her poison with an intention to kill her. Thereafter, he took her to Safdarjung hospital and got her admitted there by introducing himself as husband of deceased. When complainant reached hospital and tried to meet her daughter, she was told by the deceased that accused had given her poison and she (deceased) wanted to get her statement recorded. However, the complainant was turned out of the hospital by the accused. Thereafter, she could not meet her daughter as she (deceased) was shifted to ICU at that time. On 24.11.2008, complainant's daughter i.e. the deceased expired. Thereafter, one police official visited the complainant and got her signatures on some blank papers. Later on, the FIR was lodged against accused Sagar Yadav on the directions of the court when the complainant moved an application u/s 156(3) Cr.P.C. before area Magistrate.
4. As mentioned above, despite cancellation report, Ld. Magistrate had taken cognizance in the matter and proceeded against accused and committed the case to the court of Sessions vide order dated 20.12.2011, and thereafter, the case came to be assigned to FIR No.21/09 2/22 St. Vs. Sagar Yadav the predecessor court on 10.01.2012. Vide order dated 05.05.2014, charge for the offence punishable u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined as many as eight witnesses i.e. PW1 Smt. Bindu, PW2 Dilip Kumar Pandey, PW3 Dr. Manish Kumath, PW4 Vijay Kumar, PW5 Inspector Anil Sharma, PW6 Inspector Sunil Kumar, PW7 Retired SI Mohd. Yusuf and PW8 Dr. Lalit Mohan.
Prosecution Evidence
6. PW1/Smt. Bindu is the complainant/mother of deceased. She in her examination in chief deposed that her daughter Leela Pandey was married to Dalip Pandey and was having a son now aged about 17 years, namely Deepak. Her daugther alongwith her husband used to reside with her. However, her son in law was having a shop at Rajasthan and therefore, he used to visit her house frequently. Further, as per her deposition, her daughter had a plot of land in Narela and the accused used to reside in the neighbouring plot of her daughter (Leela). She further deposed that she did not know about the relationship between her daughter and the accused. It is further stated that five years back, on 20th, the month she did not remember, when she (PW1) had gone to attend her duty at District Park, near Deer Park, she was informed by one guard of her locality that her daughter had been taken by one person on the scooter. After said information when she came home, she found the lock of the door of her house lying open, the bed and one helmet was lying outside the house and nobody was present in the house. Thereafter, she FIR No.21/09 3/22 St. Vs. Sagar Yadav (PW1) called her daughter on her phone but she (deceased) did not pick up her phone. Then, PW1 went to the school of her grandson Deepak and informed him that his mother was not picking up her phone. Then her grandson made a call to his mother which was picked up by the accused and the accused asked Deepak to bring a bottle of water and clothes of his mother (Leela) and called him to Safdarjung hospital. It is further testified by PW1 that he alongwith her grandson Deepak had gone to Safdarjung hospital where she found her daughter admitted in the hospital and accused was also present with her. PW1 was informed by the doctor that accused introduced himself as husband of her daughter to which she clarified that he was not the husband of her daughter. In the evening her daughter regained consciousness but she was unable to speak. Further, as per PW1, her daughter was pointing towards her head. Thereafter, her daughter was shifted to a ward and accused called his wife and other family members and asked the complainant i.e. PW1 to go out of the ward. The complainant kept waiting outside the ward requesting the doctor to give treatment to her daughter who was put on oxygen. Thereafter, her daughter was shifted to ICU and wife of accused Smt. Anita was inside the ICU and asked the complainant/PW1 to go outside the ICU.
7. PW1 further deposed that wife of the accused had told the hospital employees sitting outside the ICU that if her daughter i.e. deceased was admitted in the ICU she would catch electrical wire and therefore, her daughter was not admitted in the ICU but she continued to be on oxygen. As per PW1, the condition of her daughter had improved but she (PW1) was not allowed by the accused and his FIR No.21/09 4/22 St. Vs. Sagar Yadav wife to enter in the ward where her daughter was admitted. When PW1 went inside the ward to clean the mouth of her daughter, she was pushed outside the ward by the accused's wife. Thereafter, as per the instruction of accused's wife, PW1 went to a temple for praying and when she came back she found that the oxygen on which her daughter was put, had been removed. She was informed by the person who were on duty in the ward that accused and his wife had removed the oxygen. PW1 further testified that accused and his wife asked the guard to take her (PW1) out of the ward and thereafter, she was not allowed to go inside the ward. It is further stated that at that time, her daughter was dead.
8. PW1 further deposed that she did not know what was done with her daughter by the accused and his wife. She was not allowed to see her daughter. Further that, accused and his wife told her that they would raise her grandson Deepak. Further that, she was not even shown the dead body of her daughter. In the meantime, police came in the hospital. Police did some writing work and removed the dead body of her daughter to mortuary. The postmortem was conducted and next day, the dead body of her daughter was handed over to her. PW1 further deposed that she had made a complaint to police against the accused but no action was taken against him by saying that it was a case of accident. Thereafter, she made a complaint to senior police officer and lastly moved the complaint u/s 156(3) Cr.P.C., which is available on record as Ex. PW1/A before the court, upon which the directions were given for registration of FIR. She further deposed that during investigation, she (PW1) handed over the list of witnesses to the police but police did not record their statement nor made an FIR No.21/09 5/22 St. Vs. Sagar Yadav interrogation either from her or from said witnesses. PW1 further deposed that one Khan Sahab r/o Narela had informed her that before the death of her daughter accused used to beat her daughter at her plot at Narela.
9. In the cross-examination, PW1 further deposed that nobody had told her that oxygen of her daughter had been removed in the hospital by the accused or his wife. But she herself had seen that the oxygen of her daughter had been removed. She further deposed that police had not recorded her statement.
10. PW2/Dalip Kumar is the husband of deceased. As per his version, around six years back during summer season his wife Leela Pandey expired in Safdarjung hospital. During that period, he was working in District Bikaner, Rajasthan and came to know about the incident from her mother in law Smt. Bindu on telephone pursuant to which he came to Delhi on the same day and he was informed by her mother in law that at that time of incident, when his wife i.e. deceased was alone at the house, the accused and his wife had visited the house of his mother in law and took his wife to hospital. PW2 further deposed that by that time, he was not knowing the accused nor he was aware about any relationship of his wife with the accused. He further deposed that in the mortuary, his signatures were taken on certain papers at the time of handing over of dead body of the deceased. But no inquiries were made from him about the cause of death of his wife by the police. Further as per his version, his mother in law was having property at 62/1, Arjun Nagar and she was also having properties at Najafgarh and Narela. Further that, the FIR No.21/09 6/22 St. Vs. Sagar Yadav accused wanted to grab said properties and for that reason accused Sagar Yadav used to visit the house of his mother in law.
11. In cross-examination, PW2 further deposed that deceased Leela Pandey was short tampered and used to get angry with his mother in law frequently. Further that, as per his knowledge, even prior to the incident, deceased Leela had consumed sleeping pills after a fight with his mother in law i.e. complainant/mother of the deceased. PW2 however, deposed that he was not aware whether on any other occasion deceased had cut the veins of her wrist after any fight with her mother. He however, admitted the suggestion that deceased wanted her mother to sell off her plots at Arjun Nagar, Najafgarh and Narela to purchase a big plot at some other place but her mother did not agree and told her to wait for sometime. He further deposed that his wife never had any fight on that issue with his mother in law. He denied the suggestion that on the date of incident his wife/deceased had a fight with her mother and thereafter, she attempted suicide. PW2 further denied that accused Sagar Yadav had nothing to do with the death of his wife.
12. PW3/Manish Kumath, Associate Professor, Department of Forensic medicine, Safdarjung hospital, is the autopsy surgeon who conducted the postmortem on the body of deceased Smt. Leela Pandey on 25.11.2008. As per his deposition, no sign of external injury was found on the body during postmortem and the opinion regarding cause of death was kept pending for want of report of blood and viscera which were sent for examination. PW3 proved on record the postmortem report bearing no. 2216/08 as Ex. PW3/A. He further FIR No.21/09 7/22 St. Vs. Sagar Yadav deposed that on 13.01.2010 at the request of Inspector Anil Sharma, he had given his subsequent opinion Ex. PW3/B after perusing the postmortem report and FSL report and in the subsequent opinion, he had opined that the death in the present case was caused due to acute cerebral and pulmonary congestion. PW3 further testified that on 25.07.2012, again at the request of IO/Inspector Anil Sharma he had given final opinion Ex. PW3/C in respect of postmortem report no. 2216/08 of deceased Leela Pandey and he had opined that possibility of acute cerebral and pulmonary congestion due to organophosphorus compound cannot be ruled out and also gave answer to the query raised by the IO that "yes the possibility of accidental/suicidal ingestion cannot be ruled out". Upon being put a court question regarding meaning of acute cerebral and pulmonary congestion, the witness further says that the pooling of blood in brain and pulmonary lungs leads to the congestion and it is a common feature when a person dies without loosing blood. Further upon being put a court question in respect of reason of acute cerebral and pulmonary congestion in the present case, the witness answered that it was not possible for him to tell that because the report of the viscera and blood sent for examination was negative i.e, no poisonous or organo phosphorus compound was detected in the sample examined.
13. PW4/Vijay Kumar deposed that prior to year 2003, he was residing in jhuggi cluster near Kamal Cinema and complainant Smt. Bindu and her daughter i.e. deceased Leela Pandey were residing in his neighbourhood. Dilip Pandey, the husband of deceased Leela Pandey also used to visit there once or twice in a year. He further deposed that at that time he used to give tuition classes to the son of FIR No.21/09 8/22 St. Vs. Sagar Yadav deceased namely Deepak. He further deposed that in the year 2003, the jhuggi cluster was demolished by Govt. authorities. Thereafter, he started living at Humayunpur near Safdarjung Enclave, while, Smt.Bindu alongwith her daughter and her grandson had shifted to house no.62/1, Arjun Nagar. Despite shifting of residence at different locality, Deepak (deceased's son) continued with his tuition classes and used to come at his home to take tuition. He further deposed that on 20.11.2008 at about 8:45 am, he had gone to the house of complainant at Arjun Nagar as Deepak had to attend his exam which was to commence at about 9:00 am. When he reached there, he saw from the window of the house that accused Sagar Yadav was quarreling with deceased Smt. Leela Pandey and she was shouting. On seeing this incident of quarrel, he returned home. He further deposed that on 24.11.2008, he had come to know about death of Smt. Leela Pandey at Safdarjung Hospital but he did not know the reason of her death. On the said day, he had also gone to the mortuary where he had identified the dead body of Smt. Leela Pandey before the police. Two policemen were present there. One of them was namely Mohd. Yusuf Khan of PS Sarojini Nagar. Police did not make any inquiry from him about the incident. He further deposed that after demolition of jhuggi cluster, one plot was alloted to deceased Smt. Leela Pandey in Sector 6A, Narela and one plot of land was alloted to complainant. Initially, he was also alloted a plot of land but later on, it was cancelled as he was having ancestral property in Humayunpur. He further deposed that he had seen the accused for the first time on 20.11.2008. Prior to that, he (PW4) had not seen him and he did not even know where he used to reside.
As PW4 was not coming out with complete facts, he was FIR No.21/09 9/22 St. Vs. Sagar Yadav allowed to be cross examined by Ld. Addl. PP for State.
14. In his cross-examination by Ld. Addl. PP for State, upon being confronted with his statement Ex. PW4/PX, PW4 denied the suggestion that police made inquiries from him or that he had told police that accused Sagar Yadav was Pradhan of Narela and he was having good relations with deceased Smt. Leela Pandey or that accused Sagar Yadav used to visit Arjun Nagar to meet the deceased Smt. Leela and similarly, she (deceased) also used to go to Narela to meet accused Sagar. He denied the suggestion that he deliberately did not depose about said facts.
15. PW5/Inps. Anil Sharma in his examination in chief deposes that on 19.02.2009, while he was posted at PS Sarojini Nagar, the investigation of present case was assigned to him by the then SHO Insp. Ramesh Kumar. During course of investigation, he had recorded supplementary statements of witnesses, collected the FSL result and subsequent opinion from Safdarjang Hospital regarding the death of deceased Leela w/o Dalip. He further deposed that during investigation, it was revealed that deceased Leela was having an extra marital affair with the accused Sagar Yadav on which her mother i.e. the complainant was having an objection. The deceased was having an excessive impulsive nature and often had fights with her mother on the issue of deceased's relations with accused Sagar Yadav. PW5 further deposes that on 20.11.2008, after a fight with the accused Sagar Yadav, Leela consumed some unknown poison at her mother's residence at Arjun Nagar and she was admitted in the hospital by the accused Sagar Yadav, but she expired on 24.11.2008.
FIR No.21/09 10/22St. Vs. Sagar Yadav PW5 further testified that during investigation, he (PW5) had collected the FSL result/viscera report vide Ex.PW5/A. Subsequently, he (PW5) obtained subsequent opinion on the basis of FSL report from Dr. Manish vide Ex.PW3/B wherein the cause of death in present case was opined to be acute cerebral and pulmonary congestion. He further deposed that due to lack of sufficient evidence against the accused, he had prepared the cancellation report Ex. PW5/B.
16. PW6/Insp. Sunil Kumar is the first IO of the case. As per his version, in the month of January 2009, when he was posted as Inspector investigation at PS Sarojini Nagar, present FIR was registered on the directions of Ld. MM on the application moved u/s 156(3) Cr.PC. and after registration of FIR, the investigation of this case was marked to him. PW6 further deposed that on 14.01.2009, he had visited the house No.62/1, Arjun Nagar, Safdarjung Enclave, New Delhi where he met the complainant Smt. Bindu, mother of deceased and made inquiries from her (complainant) about the pesticide used by the deceased, but she was not aware what type of pesticide was used by her daughter as she had already destroyed the container. PW6 also made local inquiries from the neighbours but they also did not disclose anything saying that they did not have any knowledge about the incident. Thereafter, he (PW6) visited the house of Dilip Pandey, husband of deceased at Mundka Village, Delhi but he was not there. On 16.01.2009, PW6 visited Safdarjung hospital and discussed the matter with the doctors about the nature of pesticide consumed by the deceased but he was informed by the Doctor that it was not possible for them to give any opinion about the pesticide used by the deceased in absence of viscera report. He further FIR No.21/09 11/22 St. Vs. Sagar Yadav deposed that on 19.01.2009, Mr. Dilip Pandey, husband of deceased had arrived at police station and inquiries were made from him and he told PW6 that he was married to deceased in the year 1994 but she had stayed with him only for about 3-4 years and thereafter, she left him and started living with her mother. Dalip Pandey further informed him that their son was also living with deceased and that deceased was very violent in behaviour. PW6 further deposed that on 18.02.2009, after he was transferred from PS Sarojini Nagar, he handed over the case file to MHCR.
17. PW7 is retired SI Mohd. Yusuf to whom DD no. 25A regarding admission of deceased in Safdarjung hospital on 20.11.2008 was assigned. As per his deposition, on 20.11.2008 while he was posted at PS Sarojini Nagar as ASI, upon receipt of DD No.25A, he alongwith one constable reached at Safdarjung hospital, where Leela wife of Sagar was found admitted in Ward A, Safdarjung Hospital. He collected the MLC of said patient, wherein she was declared unfit for statement. No family member of patient Leela was found present in the hospital. Thereafter, PW7 went to the house of patient Leela at House No.62, Arjun Nagar, where the house was found locked. Thereafter, he came back to police station. Next day, he again visited Safdarjung hospital where Leela was found shifted to ICU and he was not allowed to meet her and mother of Leela and other relatives who were found present in the hospital, did not agree to give their statement in the hospital. Thereafter, he came back to police station. PW7 further deposed that on 24.11.2008, on receipt of DD No.14A regarding death of patient Leela in ICU Safdarjung hospital, he reached the hospital and found that the dead body was already sent FIR No.21/09 12/22 St. Vs. Sagar Yadav to Mortuary. PW7 recorded the statement of relatives of Leela, who were found present in the hospital. Thereafter, he inquired about the husband of deceased Leela and came to know that he used to reside in Haryana. Next day, husband of deceased came to join the investigation. PW7 further testified that on 25.11.2008, he recorded the statement of Dilip Kumar Pandey, the husband of deceased Leela in the mortuary of Safdarjung hospital and after postmortem the dead body was handed over to him vide memo Ex.PW7/A. PW7 further deposed that he had also conducted proceedings u/s 174 Cr.PC vide Ex.PW7/B. He further deposed that doctor had handed over sealed parcel containing viscera of deceased which he (PW7) seized vide seizure memo Ex.PW7/C. Thereafter, he (PW7) came back to police station and deposited the case property in the malkhana. On the basis of statement of witnesses, no case was registered and thereafter, the exhibits were sent to FSL through SHO and he deposited the papers with the SHO. The said witness was not cross examined by the defence counsel.
18. PW8 Dr. Lalit Mohan is the doctor who prepared the MLC of deceased on 20.11.2008. As per his version, on 20.11.2008, while he was posted as Medical Officer at Safdarjung hospital, he medically examined one patient Smt. Leela Pandey vide MLC No.C/231862 as Ex. PW8/A. Further as per his version, the patient was brought to the hospital at about 12.05pm by her husband and as per alleged history, she had consumed some unknown substance such as anti mosquito liquid/kerosene at home. There was no visible external injury and patient was conscious but unable to speak properly. PW8 further deposed that he was also informed by the person who had brought FIR No.21/09 13/22 St. Vs. Sagar Yadav her at hospital that she had vomited at home. He (PW8) had declared the patient as unfit for statement and his opinion in this regard is at point B on MLC Ex.PW8/A. The said witness was also not cross examined by the defence counsel.
19. As per record, accused did not dispute registration of FIR, the deposition of exhibits to FSL Rohini and their being deposited back to PS Sarojini Nagar. He also did not dispute deposition of viscera to FSL and in view of said admission record vide statement dated 16.05.2015 u/s 294 Cr.P.C., statement of PW Naresh Kumar, HC Attar Singh, HC Hari Ram MHC(M), Ct. Vikas and HC Giriraj.
Statement of accused
20. In the statement u/s 313 Cr.PC, accused pleaded his innocence by taking the plea that he and deceased were doing business of rehri patri and on the date of incident, they both had to attend a programme of vendor Divas at Jantar Mantar and therefore, he was called by deceased at her house. When he reached there, he saw the deceased quarreling with her mother, as she (deceased) was not willing to sell her plot at Narela despite insistence of her mother. After seeing accused, deceased's mother went out. Deceased offered him a glass of water, after that deceased started feeling dizzy and asked accused to take her to hospital and accordingly, accused took her to Safdarjung hospital in an auto rickshaw and got her admitted.
Defence's Arguments
21. Ld. counsel Sh. Wasim Ansari has vehemently argued that prosecution has miserably failed to prove its case against the accused FIR No.21/09 14/22 St. Vs. Sagar Yadav what to talk of proving the same beyond reasonable doubt. It is further argued that the prosecution has even failed to prove the death of the deceased as homicidal because as per viscera report no poisoning was detected in the body of the deceased nor as per postmortem report, there were any signs of external injuries. It is further argued that even from the statement of the mother and husband of the deceased, nothing has been brought on record to prove the complicity of the accused in the alleged offence. It is further argued that for lack of sufficient material, the IO had filed a cancellation report before Ld. Magistrate and though the cognizance was taken in the matter by Ld. Magistrate and case was committed to the Sessions court but despite, being given an opportunity to prove the allegation, nothing could be brought on record by the prosecution to prove the charges against the accused. It is further argued that that the material on record is totally lacking as no direct or indirect evidence has been adduced to prove complicity of accused in the alleged offence.
Arguments of Ld. Addl. PP
22. On the other hand, Ld. Addl. PP Sh. Rakesh Mehta who was also assisted by complainant argued that since the police was in hands in gloves with the accused therefore, the medical evidence has been manipulated but, the accused should not be given benefit of the loopholes deliberately left by the IO in the investigation. It is further argued that from the version of the complainant's mother and other witnesses, it is clear that at the time when the deceased was shifted to the hospital from her house she was alone with the accused and it was the accused himself who got her admitted in the hospital which FIR No.21/09 15/22 St. Vs. Sagar Yadav itself is a strong circumstance indicating his involvement in the alleged offence.
Court's Discussion
23. As per the charge framed against accused vide order dated 17.05.2004, the allegations against accused was that on 20.11.2008 he had administered poison to Smt. Leela i.e. the deceased with an intention to kill her as a result of which she expired on 24.11.2008 in the hospital.
24. Even in the complaint, which resulted into an FIR u/s 156 (3) Cr.PC, complainant had raised the allegations that accused had administered poison to her daughter; then he took her to Safdarjung hospital; and when complainant reached Safdarjung hospital she was told by deceased that accused had poisoned her; but thereafter, complainant could not meet her daughter as she was shifted to ICU ward and on 24.11.2008, her daughter expired.
25. It is pertinent to note that in the entire FIR, it is nowhere the case of complainant that oxygen of her daughter was removed by the accused or his wife, as has been alleged by her in her examination in chief, where she deposed that her daughter was shifted to ward from ICU and she was not allowed by accused's wife, who was also present in the ward, to meet her daughter and she (accused's wife) instead insisted her to visit a temple to pray for her daughter and when complainant reached back to hospital, she was informed by the person who was on duty in the ward that accused and his wife had removed the oxygen. PW1 further deposed in her FIR No.21/09 16/22 St. Vs. Sagar Yadav examination that she did not know what was done with her daughter by the accused and his wife. Hence, the deposition of PW1 is totally on different lines as she has come up with a new case that on 20.08.2011, her daughter was admitted in Sardarjung hospital by accused where she (PW1) was not allowed to meet her daughter and later, she came to know that her daughter expired because accused and his wife had removed her oxygen supply. But, even with regard to said allegation of removal of oxygen supply of deceased, testimony of PW1 is nothing but a hearsay evidence. She did not even disclose the name of the employee who allegedly informed her in this regard.
26. The deposition of PW1 i.e. the complainant is totally silent about deceased having informed her (PW1) in the hospital, about administration of any poison by the accused as is the story put forward by her in her complaint Ex. PW1/A moved before Ld. Magistrate, which led to registration of present FIR. As per the said complaint Ex. PW1/A, the deceased was having friendly relations with accused Sagar Yadav but, PW1 in her deposition in court, stated that she did not know about relationship between her daughter and the accused. Further that, she did not know what was done to her daughter by accused or his wife in the hospital. Even the husband of deceased, who was examined as PW2 has deposed that till he reached Delhi after getting information about hospitalization of his wife, he was not aware about accused or about relationship of his wife with accused. As per his deposition, his mother in law had informed him that at the time of incident when deceased was alone at home, accused and his wife had visited the house of his mother in law and took his wife to hospital.
FIR No.21/09 17/2227. There is neither any direct nor indirect evidence to establish the charge that accused had administered poison to the deceased. Admittedly, it was accused who had got the deceased admitted in Safdarjung hospital with alleged history of ingestion of some unknown substance like kerosene or mosquito repellent liquid. As per the MLC Ex. PW8/A, at the time of admission, deceased was conscious though she was unable to speak properly, smell of kerosene was also present, no sign of external injury mark were present. As per MLC, patient had vomited at home but did not give any history of assault/trauma. Patient was advised for gastric lavage and as per death summary Ex. DX, the same was done on the patient but neither the chargesheet/cancellation report nor even the statement of IO suggests that gastric lavage was ever preserved or sent for chemical analysis. There is no medical or forensic report to suggest presence of any poison in the blood/body fluid of deceased on the date of her admission in the hospital or even on the date of her death. As already noted above, investigation is silent about gastric lavage collection or its having been sent to FSL for chemical analysis.
28. Deceased had expired on 24.11.2008 i.e. after four days of alleged incident and viscera of deceased was preserved after postmortem of dead body and as per FSL report of viscera and blood of deceased, no poison or organo phosphorus compound was detected in the sample examined. As the alleged incident relates to 20.11.2008, the possibility of detection/presence of alleged poison in the body after such long gap was remote, because by that time the alleged poison must have washed away from the body.
FIR No.21/09 18/2229. As per deposition of PW2, the husband of deceased, his mother in law had properties at Arjun Nagar, Najafgarh and Narela and accused wanted to grab said properties and for that reason accused used to visit house of his mother in law. Except said bald statement of PW2 that accused wanted to grab complainant's property, there is nothing else on record to attribute motive to accused for alleged offence. Said statement of PW2 has not been corroborated even by the complainant, as she has not deposed anything in this regard. Even otherwise, it is not clear how death of deceased would have facilitated accused to grab complainant's property, who was having no blood relation with the accused.
30. As per death summary of deceased dated 24.11.2008, which is available on record as Ex.DX, deceased had suffered two cardiac arrest but she revived after each attack but gradually her condition deteriorated as she developed difficulty in breathing and inspite of all efforts, patient could not be revived.
31. Undisputably, it was accused, who got the deceased admitted in Safdarjung Hospital. Had the accused actually administered deceased some poison with an intention to kill her as alleged in the FIR, he would not have taken her to hospital especially when deceased was conscious even at the time of her admission in the hospital as she could have disclosed his name to the doctors. As per MLC, there was no visible external injury suggesting any history of assault/trauma. Even otherwise, there is nothing brought on record to establish any motive against the accused for alleged killing of FIR No.21/09 19/22 St. Vs. Sagar Yadav deceased. In cases based on circumstantial evidence, motive assumes great importance and therefore, even in the instant case which is also based on circumstantial evidence, failure of prosecution to prove motive of offence is certainly fatal to its case.
32. Furthermore, for proving the charges of offence u/s 302 IPC, before proving any circumstance against the accused, the prosecution has to first establish on record that the death of deceased was a homicidal death. Careful perusal of testimony of autopsy surgeon Dr. Manish Kumath i.e. PW3 and that of PW 8 Dr. Lalit Moha, who prepared the MLC of deceased, however shows that prosecution has failed to even prove the said material fact that death of deceased was a homicidal death.
33. Even otherwise, the circumstances that deceased was admitted in the hospital by accused himself that too when deceased was conscious and was able to speak, though not properly and there were no visible mark of external injury on her body, are not indicative of any complicity of accused in administration of any alleged substance to the deceased. In the complaint, Ex. PW1/A, though complainant had alleged that in the hospital deceased informed her that accused had given her(deceased) poison but in her examination in chief before court, she did not utter a word about any such dying declaration of deceased, which she allegedly made to her (complainant) in the hospital.
34. As per prosecution case, viscera of deceased was preserved after her post mortem, but even the viscera report did not FIR No.21/09 20/22 St. Vs. Sagar Yadav support the prosecution case because as per said report, Ex.PW5/A, no metallic poisons, ethyl or methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could be detected in the exhibit 1A, 1B, 1C, 1D. As per subsequent opinion Ex.PW3/B of autopsy surgeon, Dr. Manish Kumath (PW3), the cause of death of deceased Smt. Leela Pandey was acute cerebral and pulmonary congestion and in his final opinion Ex.PW3/C, he further opined that acute cerebral and pulmonary congestion may be possible due to organophosphorus compound and possibility of its accidental/suicidal ingestion cannot be ruled out. On being asked a court question about cause of acute cerebral and pulmonary congestion in the present case, PW3 deposed further that it was not possible for him to tell this because of negative report of viscera and blood sample as no poisonous or organophosphorus compound was detected in the sample examined. As noted above, gastric lavage which as per MLC Ex.PW8/A as well as death summary Ex. DX was done on the deceased on 20.11.2008, was never sent for chemical analysis.
35. In view of above circumstances, prosecution has miserably failed to prove that the cause of deceased's death was poisoning so as to further call for any finding as to whether it was a case of suicidal or accidental ingestion or it was a case of homicidal poisoning.
36. One cannot lose sight of the fact that it is one of the fundamental principles of criminal jurispuradance that an accused is presumed to be innocent till he is proved guilty. It is equally well settled that suspicion however, strong can never take the place of FIR No.21/09 21/22 St. Vs. Sagar Yadav proof. There is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence"
which must be transversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be washed away. Reliance placed on Kailash Guar & Ors. State of Aasam (2012) 2 SCC 34.
37. Similarly, in Sharad Birdi Chand Shardha 1984 4 SCC 116, Hon'ble Apex Court has observed that graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt of the accused is sought to be established by circumstantial evidence.
38. After analysing the material brought on record in the light of aforementioned position of law, I feel no hesitation in holding that the prosecution has miserably failed to bring home the charges against the accused. Accordingly, accused is acquitted from the charges of present case. File be consigned to record room.
Announced in open Court
on 28.10.2017 (Sunena Sharma)
Additional Sessions Judge-03, (South)
Saket Courts, New Delhi
FIR No.21/09 22/22
St. Vs. Sagar Yadav