State vs . 1)Jogender Singh on 21 May, 2022

[Cites 28, Cited by 0]

Delhi District Court

State vs . 1)Jogender Singh on 21 May, 2022

    IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS
             JUDGE04 (NORTH), ROHINI COURTS, DELHI

Session Case No.58329/2016
CNR No. DLNT010002842010

State             Vs.                                     1)Jogender Singh
                                                          S/o Sh. Ram Kumar
                                                          R/o H.No. 321, Prahlad Pur Bangar,
                                                          Delhi.

                                                          2) Narender Singh @ Nande
                                                          S/o Sh. Ram Kumar
                                                          R/o H.No. 321, Prahlad Pur Bangar,
                                                          Delhi.

                                                          3) Ved Kaur @ Phullo
                                                          W/o Sh. Ram Kumar
                                                          R/o H.No. 321, Prahlad Pur Bangar,
                                                          Delhi.

                                                          4) Sanjeeta
                                                          w/o Sh. Narender Singh @ Nande
                                                          R/o H.No. 321, Prahlad Pur Bangar,
                                                          Delhi.

                                                          5) Shamsher Singh @ Babloo
                                                          s/o Sh. Ishwar Singh
                                                          R/o H.No. 458H,
                                                          Village & PSBawana, Delhi.

                  FIR No.        : 136/2009
                  Police Station : Shahbad Dairy
                  Under Sections : 498A/304/323/341/506/34 IPC


SC No. 58329/16    FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors.   Page 1 of 78
 Date of Institution                   :                                        06/01/2010
Date of committal to Sessions Court :                                          24/02/2010
Date of institution in sessions Court :                                        26/02/2010
Date of Argument                      :                                        18/04/2022
Date of reservation of judgment       :                                        18/04/2022
Date on which Judgment pronounced:                                             21/05/2022

                                     JUDGMENT

1. Briefly stated, the case of prosecution is that on 14/05/2009, at 3.35 p.m., DD no. 18A was recorded at PS Shahbad Dairy on receipt of PCR call regarding quarrel by inlaws with a girl at Plot no. 321, Prahladpur, Shahbad Dairy. Copy of this DD was handed over to ASI Satbir Singh for taking necessary action, who accordingly reached at the spot, where Anita w/o Jogender Singh was met in ailing condition and her parents & others who had come from the village and brother, Bhabhi (sisterinlaw) and mother of Jogender (accused herein) were also present, who were not interested in taking Anita for treatment. On 15/05/2009, vide DD no. 3A, information was received regarding admission of Anita in PGIMS after consuming poison. Accordingly, on 16/05/2009, ASI Satbir Singh reached at PGIMS Rohtak, where Anita w/o Jogender was found admitted in ICU, whose MLC bearing no. SK/389/09 PP PGIMS Rohtak was collected from duty constable. Gastric lavage and blood sample with sample seal of Anita were also obtained. Patient Anita was declared unfit for statement by the concerned doctor. Sh. Umed Singh, father of Anita, had handed over a written complaint to ASI Satbir Singh on 16/05/2009 in the hospital itself for taking legal action against Jogender, Nande, Sanjeeta w/o Nande and Phoolo w/o Ram Kumar. In the said complaint, Umed Singh claimed that he is resident of Village Raiya and he got married his daughter Anita with Jogender s/o Ram Kumar, R/o Village Prahladpur, Delhi, 10 SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 2 of 78 years back. He further claimed that since her daughter Anita could not bear a child, therefore her husband Jogender, her motherinlaw Phoolo, Jethani Sanjeeta and Jeth Nande used to taunt her, due to which, her daughter Anita was residing with her for the last five months and that at that time also, none had come from the matrimonial side to take Anita. Umed Singh further claimed in his complaint that on 05/05/2009, his daughter Anita was about to go to her matrimonial home, they asked her not to go, but Anita went to her matrimonial house by saying that a girl cannot live in village for longer period. He further claimed that on 14/05/2009, at about 10.00, he received a telephonic call at his house at Jharoda Kalan from Village Prahaladpur that condition of Anita was serious and to reach Prahaldpur at the earliest. He further claimed that said phone call was attended by her daughter Sunita and thereafter Sunita apprised telephonically about the same to him at Village Raiya. He further claimed that on this, he along with his brother Ram Kishan, nephew Jagdish s/o Ram Kishan, his wife Bhateri and Bhabhi Indrawati reached at Village Prahladpur at 2.00 p.m., where husband Jogender, motherinlaw Phoolo, Jethani Sanjeeta and Jeth Nande of Anita were watching T.V. in a room and on asking about his daughter, Phool, motherinlaw of Anita, had pointed out towards a locked room, which was latched from outside. Umed Singh further claimed that after opening the latch, when they saw inside the room, Anita was unconscious. He further claimed that they asked inlaws of Anita for treatment of Anita, then Jethani Sanjeeta and Jeth Nande had refused to get her treated and on this, some altercation took place with them. He further claimed that in the meantime Babloo s/o Ishwar, Village Bawana, who is brother of Sanjeeta, cam there and he straightway abused them & when he (Umed Singh) asked him not to abuse, then Babloo caught hold of his throat and threatened to kill him. He further claimed that he made call at 100 number from SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 3 of 78 his mobile and Delhi police came. Umed Singh further claimed that when they started taking Anita for treatment at Medical Rohtak, they asked the inlaws family to accompany them, but they refused. He further claimed that thereafter they took their daughter Anita to Medical Rohtak and admitted her there, who is under treatment. He further claimed that husband Jogender, motherinlaw Phoolo, Jethani Sanjeeta and Jeth Nande of Anita got consumed some poisonous substance to Anita with intent to kill her & legal action may be taken against her.

2. During treatment, on 18/05/2009, Anita had died at PGIMS Rohtak. Her postmortem was got conducted. The autopsy surgeon got preserved the heart, lungs, liver, spleen and kidney of deceased Anita for the purpose of viscera and histopathological examination, which were seized by ASI Satbir.

3. On 06/06/2009, on the basis of aforesaid complaint of Umed Singh, the present case was got registered u/s 498A/34 IPC. After that, investigation was handed over to Inspector Vikram Singh.

4. During investigation, Inspector Vikram Singh had collected the marriage photographs of deceased Anita and bills of medicines purchased during treatment of Anita and seized the same by preparing a memo. Exhibits were got deposited in Pathology departments PGImS Rohtak for the purpose of HPE examination. Viscera and gastric lavage were got deposited in FSL Madhuban (HR) for the purpose of chemical examination. Verification qua treatment of Anita (since deceased) was done from Jeevan Jyoti Hospital. Thereafter, investigation was marked to Inspector Rakesh Rawat.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 4 of 78

5. During further investigation, gastric lavage and viscera report were collected from FSL Madhuban, wherein organo phosphorous pesticide was found. On the basis of PM report of autopsy surgeon, HPE report & FSL report, the cause of death of Anita (since deceased) was Organo phosphorous pesticide poisoning. Statements of parents & relatives of Anita and other related witnesses were recorded. Later on, Sections 323/341/304/506/34 IPC were added. Accused Jogender (husband), Narender Singh @ Nande (Jeth), Sanjeeta (jethani), Ved Kaur @ Phullo (motherinlaw) and Shamsher Singh @ Babloo (brother of jethani Sanjeeta) were arrested in the present case.

6. On 12/06/2009, one handwritten document of Anita was produced by complainant Umed Singh.

7. On completion of investigation, all the accused persons except accused Shamsher Singh were chargesheeted for the offence u/s 498A/304/323/34 IPC, whereas accused Shamsher Singh was chargesheeted for the offence u/s 323/341/506/34 IPC. The chargesheet was filed before the concerned Magisterial Court against all the accused persons on 06/01/2010. The case was committed to the Court of Sessions on 24/02/2010 and was received on assignment by the Sessions Court on 26/02/2010.

8. Vide order dated 01/06/2010, order on charge was pronounced. On 09/07/2010, charge u/s 498A/304/323/34 IPC was framed against accused Jogender, Narender, Ved Kaur and Sanjeeta, whereas charge for the offence u/s 323/341/506/34 IPC was framed against accused Shamsher Singh, to which they pleaded not guilty and claimed trial.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 5 of 78

9. In the meanwhile, the complainant had filed a Criminal Revision Petition bearing no. 346/2010, titled as Umed Singh Vs State & Ors. before Hon'ble Delhi High Court against order on charge dated 01/06/2010 and vide order dated 09/07/2021, the proceedings before the Trial Court were stayed. Vide order dated 19/08/2011, two expert witnesses namely the Chemical Examiner, who had analyzed the viscera and submitted report as also the doctor concerned, who had given opinion regarding cause of death on the basis of viscera report were ordered to be examined. FSL report was filed on 10/01/2012, which was taken on record. Vide order dated 15/03/2011, the Hon'ble High Court has vacated the stay granted vide order dated 09/07/2010. Thereafter, vide order dated 07/09/2012 passed in aforesaid criminal revision petition, proceedings were again stayed till 29/01/2013. Vide order dated 13/11/2014 passed by Hon'ble Delhi High Court in aforesaid criminal revision petition, charge u/s 302 IPC was ordered to be framed against accused Jogender Singh, Narender Singh, Ved Kaur and Sanjeeta. Accordingly, on 13/12/2014, amended charge u/s 498A/302/323/34 IPC was framed against all the aforesaid four accused persons. All these four accused persons have stated that they do not want to recall or resummon PW1 to PW4 and their statements in this regard have also been recorded.

10. In order to prove its case, prosecution has examined 26 witnesses in all. The details of said witnesses are as under: S. Name of prosecution witness Purpose of examination No. 1 PW1 Devak Ram, SSO (Documents), FSL, Who came to prove report Ex. PW1/A qua the Rohini, Delhi. question documents Q1 and Q2 Ex. PW1/B &Ex. PW1/C and admitted signatures of deceased at point A on Ex. PW1/D and Ex.

PW1/E. 2 PW2 Dr. Jagdish Ram, Deputy Director, FSL, For proving chemical examination report Ex.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 6 of 78

Madhuban, Haryana PW2/A.
3 PW3 Dr. Dhruva Chaudhary, Professor & For proving medical documents of deceased
Head, Pulmonary & Critical Care Medicine &
Anita Ex. PW3/A, death certificate Ex. PW3/B,
Unit Head Medicine VI, Pandit Bhagwat Dayal
Case summary Ex. PW3/C, information given
Sharma PGI MS, Rohtak, Haryana. to police of Rohtak qua admission of
deceased Anita Ex. PW3/D, intimation qua
death of Anita to police vide Ex.PW3/E and
observation of Dr. Chirag about treatment of
deceased Ex. PW3/F.
4 PW4 Dr. Ramanjit Kaur, Autopsy Surgeon, For proving postmortem report Ex. PW4/A &
PGIMS Rohtak, Haryana opinion qua cause of death Ex. PW4/C after
seeing FSL report Ex. PW2/A,
histopathological report Ex. PW4/B and
postmortem report Ex. PW4/A.
5 PW5 Umed Singh, father of deceased For proving the complaint Ex. PW5/A,
statements Ex. PW5/B, Ex. PW5/C, receipt of
dead body vide Ex. PW5/D, photographs of
marriage of deceased Anita Ex. PW5/F seized
vide memo Ex. P5/E,handwriting of his
daughter contained in laminated sheets Ex.
PW1/B and Ex. PW1/C seized vide memo Ex.
PW5/G.
6 PW6 HC Shambhu Singh, the then MHC(M) For proving the entries qua deposit of case
property and sending of case property Ex
PW6/A to Ex. PW6/E.
7 PW7 HC Sunil, Duty Officer For proving carbon copy of FIR Ex. PW7/A &
endorsement Ex. PW7/B.
8 PW8 Ct Sandeep Kumar For proving Ex. PW8/A and Ex. PW8/B.
9 PW9 Dr. Sandeep Kumar, Deputy Medical For proving Medico Legal Report Ex. PW9/A

Superintendent, PGIMS, Rohtak, Haryana. of deceased Anita.

10 PW10 Jagdish, nephew of complainant/PW5 For proving seizure Ex. PW5/G qua handing Umed Singh over of one written paper by PW5 Umed Singh to IO Ex. PW1/B & 1/C, handing over of photographs of deceased Anita Ex. PW5/F colly to IO by PW5 which were seized vide memo Ex. PW5/E, handing over of one attendant pass in the name of Anita, five cash memos of Sai Medicine Centre and 7 cash memos of Malik Medicos Ex. PW10/B colly to IO by PW5 which were seized vide memo Ex.

PW10/A. 11 PW11 HC Jaibir Singh, Duty Officer For proving DD no. 30A Ex PW11/A. 12 PW12 W/Ct Manju For proving personal search memos Ex.PW12/A & Ex.PW12/B & arrest memos Ex.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 7 of 78

PW12/C & Ex. PW12/D respectively of accused Ved Kaur @ Phullo Sanjeeta.

13 PW13 Smt. Bhateri Devi, mother of Qua proving the factum of marriage of deceased. deceased Anita with accused Joginder, qua demand of cash and scooter, qua the treatment of deceased Anita and qua the factum of condition of deceased Anita prior to taking her to hospital and death of deceased.

14 PW14 HC Jogender Kumar For proving the factum of receiving the sealed containers containing gastric lavage and blood sample of deceased Anita along with sample seal from concerned doctor, which were seized by the IO vide memo Ex. PW14/A. 15 PW15 Ct. Abhay Qua proving arrest memo and personal search memo of accused Jogender Singh Ex.

PW15/A & Ex PW15/B. 16 PW16 Ct. Suresh For proving the factum of collecting the exhibits from MHC(M) vide R.C. No. 61/21/09 and depositing the same at Pathology Department, PGIMS Rohtak, Haryana 17 PW17 HC Rajesh Kumar Qua receiving of sealed pullanda containing viscera from MHC(M) vide R.C. No. 66/21/09 and depositing the same to FSL, Haryana Madhuban Karnal & handing over of acknowledgment to MHC(M) concerned.

18 PW18 HC Rajender Kumar For proving PCR form Ex. PW18/B, original of which was got destroyed vide order No. 6238 6327 dt. 18.12.2012 Ex. PW18/A. 19 PW19 Dr. Rakesh Mishra For proving the medical documents of deceased Anita of Jeevan Jyoti Hospital, Bahadurgarh, Haryana and his statement Ex.

PW19/A. 20 PW20 Retired SI Anand Singh For proving DD no. 3A 20/A qua admission of Anita (since deceased) in PPPIGMS Rohtak, Haryana.

21 PW21 Dr. Reema Bahri For proving laboratory test report qua serum sample of deceased Anita Ex. PW21/A. 22 PW22 SI Satbir Singh, first IO Qua the initial investigation conducted by him. 23 PW23 HC Baljeet For proving the arrest memo and personal search memo of accused Shamsher Singh Ex.

PW23/A and Ex. PW23/B respectively.

24 PW24 Retired Inspector Vikram Singh, Qua the incident conducted by him.

second IO 25 PW25 Inspector Rakesh Rawat, IO Qua the investigation conducted by him. 26 PW26 Ct. Ranbir Singh For proving arrest memo and personal search SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 8 of 78 memo of accused Narender Ex. PW25/C and Ex. PW25/D.

11. Vide joint statement recorded on 03/01/2018, all the accused persons have admitted the contents of statement U/s 161 Cr.P.C. dated 01.09.2009 of PW Ct. Inderjeet, No. 1046, PP PGIMS, Rohtak, Haryana and have further stated that they have no objection if the statement U/s 161 Cr.P.C. of the said witness be read as piece of evidence against them during trial.

12. After completion of prosecution evidence, statements of accused persons were recorded u/s 313 Cr.P.C., wherein they have denied the case of prosecution and claimed that they are innocent and have been falsely implicated in this case. They have claimed that Anita was suffering from prolonged kidney ailment for which, she was being treated at PGIMS Rohtak and on 14.05.2009, her medical condition worsened, therefore, her parents had brought her to Delhi for her medical treatment, but as there was no bed available in the hospital in Delhi, they tried to arrange medical facilities for Anita in Delhi, but no arrangement could be made and on this, minor altercation took place between them and the family members of Anita. They further claimed that thereafter, family members of Anita had taken her to PGIMS Rohtak, where she subsequently died and her family members lodged the present false FIR after due deliberation by manipulating the facts of the case. They further claimed that no demand of dowry was ever made from Anita or from any of her family members. Accused Shamsher Singh has further claimed that he was named by the witnesses as accused being the brother of coaccused Sanjeeta. All the accused persons have chosen to lead evidence in their defence.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 9 of 78

13. In defence, all the accused persons have examined DW1 Vinod Kumar.

14. I have heard ld. Addl. PP for the State and ld. Counsel for the accused persons and have carefully gone through the record.

15. Ld. Addl. PP for the State in assistance with ld. counsel for the complainant has submitted that chain of circumstances has been fully proved by the prosecution witnesses beyond reasonable doubt and the circumstances so proven form a complete chain, which leads to the conclusion regarding the guilt of the accused persons. He has further submitted that it is proven that accused persons had a motive to do away with the deceased as she was unable to bear a child and the sister and father of the deceased had rejected the proposal to marry the younger sister of the deceased with accused Jogender. He has further submitted that the deceased had failed to fulfill the demands of the accused persons to get Rs. 50,000/ and a scooter from her parents. He has further submitted that there is ample evidence to show that the deceased was harassed and tortured for the above reasons. He has further submitted that deceased had developed kidney disease and she was not provided with medical treatment for her said ailment. He has further submitted that the evidence on record shows that the deceased was getting treatment through her parents and she was abandoned at her parental home, where she remained for five months and was treated for the kidney ailment. Ld. Addl. PP has further submitted that it has been proven on record that the deceased was found, in a precarious condition, lying in a room bolted from outside and the fact that the accused persons were aware of the health condition of the deceased and yet did not make any effort to provide her SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 10 of 78 with medical help, on the contrary locked her in a room and were happily watching T.V and drinking tea, goes a long way to show the intention of the accused persons and is covered by explanation 2 to Section 299 IPC and is clearly an offence as defined under Section 300 of IPC. He has further submitted that it has also been proven by the depositions of witnesses that when the parents of the deceased requested to accused persons to allow them to take her hospital, they denied and started fighting with them and thereafter a police call was made by the parents of the deceased as deposed by PW18 Ex. PW18/B. He has further submitted that the fact that the deceased was found seriously ill after having been poisoned with organo phosphorus, at matrimonial home within 45 odays of having returned there from her parental home is also a strong circumstance which points towards the complicity of the accused persons. Ld. Addl. PP for the State has further submitted that it is the accused who are bound to explain the circumstances which lead to the deceased being poisoned in their home as has been held by the Hon'ble High Court. He has further submitted that the accused have merely made wild suggestions to witnesses which have no basis in facts and reality and merely making suggestions are not sufficient in law to disprove the case of the prosecution or to create reasonable doubt. He has further submitted that the defence witness examined by the accused persons is not a witness to any fact and is only a hearsay witness, who deposition is inadmissible in law and deserves to be discarded. He has further submitted that FSL report itself indicates that organo phosphorus pesticide was detected in stomach and other exhibits during the examination sent to the FSL. He has further submitted that the prosecution witnesses who examined the deceased have also fully supported the case of the prosecution and deposed that the death of the deceased Anita was caused due to the poisoning i.e. organo phosphorus pesticide. Ld. Addl. PP for SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 11 of 78 the State has further submitted that the FSL official who had examined the exhibits of the deceased stated in his examination that there were offensive smell found in the internal organs that had been sent for examination and deposed that if a person is standing in close proximity of the person who has consumed aforesaid pesticide and tried to smell, then he can smell the pungent smell. He has further submitted that this fact further supports the prosecution version of the death of the deceased being an intentional act of the accused. He has further submitted that postmortem report clearly states that some greenish fluid approximately 150 ML was found in the stomach and thus the postmortem report also clearly shows the ingredient/remark of poison, thereby suggesting unnatural death. He has further submitted that the actions of the accused persons also clearly indicate that the death of deceased was caused by the actions of the accused persons. Ld. Addl. PP has further argued that the act of the accused persons is covered u/s 299 of IPC i.e. "culpable homicide". He has further submitted that accused persons did not provide medical treatment to the deceased and also did not get her admitted in hospital and when her parents came to the matrimonial house of the deceased, they found her in a locked room which clearly shows the intention of the accused persons was to cause death. He has further submitted that the accused persons also stopped the complainant to remove the deceased to a hospital to get medical help further fortifies the case of the prosecution. In support of his arguments, ld. Addl. PP as well as ld. counsel for the complainant have relied upon the following judgments:

a) Rampal Singh Vs State of UP 2012 (6) SCALE 574

b) Bhupinder Singh Vs State of Punjab, MANU/SC/0049/88, CA no 379 of 1986, date of decision: 06/04/1988.

c) Shanmughan Vs State of Kerala, MANU/SC 052/2012.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 12 of 78

d) Trimukh Maroti Kirkan Vs State of Maharashtra 2007 CrLJ 20.05.2009.

e) State of Rajasthan Vs Parthu, MANU/SC/ 7953/2007, Criminal Appeal no. 325 of 2002 date of decision 13/09/2007.

f) Bhupender @ Kale Vs State (Crl. A. No. 1397/2010 of Hon'ble Delhi High Court, date of decision: 15/05/2012.

g) Sanjay VS State, MANU/DE/2926/2014, Crl. A. 1151/2010, date of decision:24/11/2014.

h) Raj Kumar Prashad Tamarkar VS State of Bihar & Ors. 2007 CRJ 1174, 04/01/2007.

i) Narendra VS State of Karnataka, Criminal Appeal No. 1502 of 2007, date of decision 05/05/2009.

16. Ld. counsel for the accused persons has submitted that the prosecution is solely relying upon the version of family members of the deceased i.e. PW5 Umed Singhfather of deceased, PW10 Jagdishcousin of deceased and PW13 Bhatri Devi,however, the examination of the said witnesses categorically established the fact that they have levelled false allegation against the accused persons with due deliberation, only after the health of deceased deteriorated to very dangerous level and the said fact gets apparent as several contradiction, improvements and omissions appear in the versions of the said witnesses. He has further submitted that aforesaid witnesses had not leveled any direction allegation of being eyewitness to the fact that accused persons administered some poisonous substance to deceased, rather they attempted to create a false chain of events, which they miserably failed to connect. He has further submitted SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 13 of 78 that aforesaid witnesses/family members of deceased had falsely claimed that demand of dowry as being the motive for alleged incident, however, they did not specify any specific date or time as to when the said demands were allegedly raised by the accused persons, which establishes the fact that no such demand was ever made by accused persons. He has further submitted that the facts that there was no demand of dowry on part of the accused persons gets corroborated by the confrontation and improvement in the testimony of PW5 complainant. He has further submitted that PW5 admitted the fact that his version was recorded by police at 3 different instance but bare perusal of said version demonstrate that no allegation of demand of dowry was ever made by the aforesaid PW5 and the allegation of demand of dowry were allegedly leveled by the complainant for the first time in the month of October 2009 i.e. five months after the unfortunate death of deceased. Ld. counsel has further submitted that the family members of the deceased to further create a false evidence against the accused persons had produced a forged letter allegedly written by the deceased to prove their alleged version qua demand of dowry, however, perusal of said letter depicts that same was planted by the family members of deceased as no day, date or time has been mentioned by the complainant party as to when said letter was recovered by them. He has further submitted that the fact that the said letter was manipulated further gets corroborated by the fact that forensic examination of the said letter demonstrate that alleged letter does not bear signature of deceased and further the handwriting of deceased was deliberately not sent to examination at the behest of the complainant party. He has further submitted that neither the complainant nor prosecution has denounce the said statement of the complainant nor any explanation qua contradiction has been provided by any of the prosecution witnesses. He has further submitted that there is an unexplained delay in the SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 14 of 78 recording of the statement of the prosecution witnesses by the investigating agency as the aforesaid witnesses were very much available before the investigating agency but still their statements were not recorded and further that initially the family members of the deceased had no grievance with the accused persons and allegations were levelled against them with due deliberation. He has further submitted that PW10 has claimed that investigating agency has not recorded their true statement and they were even turned away from the police station, however, there is no complaint against errant police officials nor the aforesaid fact of mistreatment by police officials finds mention in the version of PW5, who had also accompanied PW10 to the PS. In this regard, ld. counsel for the accused persons has relied upon the judgment of Hon'ble Supreme Court in the case of State of M.P. Vs Ratan Singh and Ors., MANU/SC/1082/2018, date of decision 05/09/2018. He has further submitted that there are material contradictions in the testimony of PW5, PW10 and PW13 qua visiting of deceased to her matrimonial house. He has further submitted that investigation had established that deceased was being treated at Bahadurgarh till 08/05/2009, where she was treated for her kidney ailment by her parents, hence to contradict the same all the aforesaid witnesses deliberately concealed their initial version and it further proves that deceased was not residing with accused persons. He has further submitted that aforesaid witnesses have also made a veiled attempt to hid the fact regarding illness of the deceased. He has further submitted that cross examination of several witnesses including family members of deceased and statement of PW19 demonstrate that deceased was suffering from kidney ailment, which fact was concealed by family members of the deceased before investigating agency in their subsequent statements. Ld. counsel has further submitted that complaint Ex. PW5/B categorically establishes the fact that a case of unfortunate SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 15 of 78 demise of deceased due to prolong ailment was converted into false case of poison with aid of false allegation and if PW5 or other witness apprehended administration of poison to deceased, they they had every occasion to mention the same in their initial version on 14/05/2009. He has further submitted that version of PW5 qua the fact that Panchayat had taken place is not corroborated by any independent witness. He has further submitted that PW13 in her cross examination had denounced the case of the prosecution in toto and has categorically stated that she had not met with accused persons on 14/05/2009 and the testimony of PW13 suffers from improvements and hence same is liable to be discarded. He has further submitted that statements of all the family members are ought to be read with great caution as they are interested witnesses and investigating agency has failed to bring forward any independent public witness/neighbour who would have corroborated the allegation of demand of dowry or of alleged version qua incident dated 14/05/2009. Ld counsel has further submitted that prosecution has further relied upon medical evidence in form of treatment and FSL report in which allegedly Organophosphorous appears in the body of the deceased and the prosecution has attributed a circumstance that deceased was administered poison by accused persons, however, the medical examination of deceased remained unreliable, thus cannot be ground for conviction. He has further submitted that a glaring discrepancy which appeared in the case is the manner in which FSL report in the present case was sought from FSL Madhuban, Karnal. He has further submitted that investigating agency has not claimed that exhibits were directly sent from PGI Rohtak to FSL Madhuban, Karnal, rather initially they were allegedly brought to PS Shahbad Dairy on 16/05/2009 and 19/05/2009 and thereafter they were sent to FSL Madhuban Karna without any justification, as prudence was required that same should have SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 16 of 78 been sent to FSL in Delhi. He has further submitted that perusal of the alleged FSL report further established that the report categorically does not establish poisoning in the present case, rather the said report merely mentions an organo phosphorous pesticide was detected in exhibits of deceased. Ld. counsel has further submitted that on the basis of aforesaid report, subsequent opinion was sought from PW4, who has stated that cause of death was organophosphorous poison. He has further submitted that PW4 stated that said opinion was provided on the basis of FSL report along with HPE report (which was supplied to the court by PW4 at the time of her examination). He further submitted that said report was not cited by the investigating agency in their chargesheet, which render said report and subsequent opinion highly disputed and it cannot be relied upon. Ld. counsel has further submitted that PW3 stated in crossexamination that organo phosphorous enters body of human being in normal course as said pesticide enters food chain, which demonstrate that alleged article which may have appeared in FSL analysis, however, said natural phenomena was converted into the deliberate attempt to tamper the FSL report of the deceased. He has further submitted that aforesaid fact gets corroborated by the fact that PW4, who conducted the postmortem of the deceased, has categorically stated that she had not preserved the content of the intestine nor the samples of blood, urine and stool of body were preserved which demonstrate apparent lacuna in conducting the postmortem of deceased. He has further submitted that PW2 has categorically stated that he had not analyzed the quantity of the pesticides nor PW2 had mentioned in the report how much part of small and large intestine, liver, spleen and kidney were sent for examination and he (PW2) categorically stated that he cannot even say sample he examined was having 1 milligram or more than 10 milligram of pesticides nor he had mentioned quantity of samples examined by him SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 17 of 78 or portion of the particular part of body and cannot tell as to which specific component in material he examined. Ld. counsel has further submitted that said testimony further corroborate the fact that even if said pesticide was allegedly detected (which may appear in natural course) in absence of quantity, it cannot be definitively stated that poison was administered to deceased or same was the cause of death of deceased. He has further submitted that PW2 has stated that criteria given in Book J.B. Mukherji Forensic Medicines and Toxicology were specific as in how much quantity of sample was to be sent for examination, however, PW2 contradicting said literature had claimed that same are ideal condition and viscera can be allegedly examined even in lesser quantity, but has further stated that they are bound to examine viscera even it is sent in less quantity. He has further submitted that FSL examiner and the postmortem doctor PW2 and PW4 had not mentioned the colour of sample which were examined or seized by them nor PW2 could explain the specific component in the material which he examined. He has further submitted that PW3 alleged treating doctor has failed to mention the colour of vomit of deceased nor mentioned the said colour in any of the report and PW2 has stated that vomiting colour may be the same as of colour of the pesticides, though PW4 stated that colour of contents of stomach was greenish brown, which further contradict the version that deceased was administered organo phosphorous (which admittedly is purplish blue). Ld. counsel has further submitted that absence of observation of colour in FSL report further dent the case of the prosecution. He further submitted that as per statement of PW2, the said pesticide had a very pungent smell, which could be detected by persons standing close to a person to whom it has been administered. He further submitted that PW2, who examined the articles after 30 days, had stated that offensive smell was coming from the exhibits when they were SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 18 of 78 examined or sealed. He further submitted that it is very surprising that no such smell was felt by family members of deceased or the police officials who arrived at the spot on 14/05/2006, which is apparent from the PCR form Ex. PW4/B, which further render version of said witnesses very disputed. Ld. counsel has further submitted that PW2 has categorically stated that in kidney, which he had examined, he could not detect if the kidney was suffering from any disease nor any tablet or powder were found in it. He further submitted that medical history available on record and the version from investigation categorically establish the fact that deceased was suffering from kidney ailment, however absence of same in FSL demonstrate that either report was tampered with or the sample sent to FSL were manipulated. He further submitted that PW2 has further stated that he cannot tell the time when a person can recover from consumption of pesticides and person who consume such pesticides, if survives upto 24 hours, there are chances of recovery and survival. He has further submitted that the deceased not only survived for 5 days in hospital but also surprisingly survived for more than 12 hours without treatment, which seems highly improbable in case of poisoning and same corroborate that the present case was not of poisoning but that of kidney failure. He has further submitted that PW3 has stated that initially they suspected that it was a case of poisoning, but admitted that they had not mentioned that there is suspicion of poisoning. He further submitted that statement of PW3 is very disputed as he had mentioned that he was the supervising doctor, however, medical documents were not signed by the said doctor. He has further submitted that kidney ailment of deceased was being deliberately withheld by the concerned doctor and said doctor claimed that it was specifically stated by them that death was due to poison,however, information provided to concerned PS in Rohtak and medical documents available on record, no decisive opinion was given by the SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 19 of 78 doctor concerned, rather it was alleged that case appeared to be that of kidney failure and poisoning. He has further submitted that it is apparent that either report was biased against the accused persons or the same was prepared on the basis of exhibits which were already tampered and manipulated, hence no reliance can be placed on the said report. He has further submitted that even if the version of prosecution and the alleged medical report are taken to be a gospel truth, though not admitted, still it itself does not depict that poison was administered to the deceased, rather case of suicide could not be ruled out in totality as accused cannot admit of deny the same and further no evidence of forced administration of poison to deceased has come on record and the evidence in the form of DD no.3A dated 15/05/2009, which stated that deceased had consumed poison and fact that Section 306 IPC was added in the case without any explanation depict that investigating agency may have tampered with evidence to change suicidal case to homicidal. In support of his argument, ld. counsel has relied upon the judgment of Hon'ble High Court of Chattisgarh in Baldau Sharma Vs State of Chattisgarh, MANU/CG/0045/2017, date of decision:24/01/2017).

16.1. Ld. counsel for the accused persons has further argued that the manner in which the jurisdiction of the case was changed from Haryana to PS Shahbad Dairy further raises suspicion on the entire case of the prosecution and the same was done with the sole motive to falsely implicate the accused persons in a false case by concocting the story that deceased was residing with accused persons at the time of her death. He has further submitted that involvement of the police officials of Haryana remained highly disputed in the entire case. He has further submitted that PW14 has stated that he had handed over samples of deceased to IO PW22 on 16/05/2009 and said samples were allegedly received by SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 20 of 78 PW14 on 15/05/2009 without any paper work and said witness had not deposited the said sample to concerned office for safe keeping and rather had kept the same along with him, which raises serious question regarding the authenticity of said articles and further raises suspicion that same may have been tampered with and therefore result of FSL or said seizure cannot be relied upon. Ld counsel has further argued that the manner in which PW14 has concealed the factum that a report/information was filed before concerned police officials in Haryana regarding treatment and unfortunate death of deceased, further raises serious question mark regarding accuracy of PW14. He has further argued that information was received by concerned police official of Rohtak and as per PW14, the said information was duly mentioned in rukka register by said police official, but the same was deliberately concealed by police officials. He further submitted that PW25 has categorically stated that during investigation he did not get information from PS Rohtak regarding any complaint or proceeding initiated regarding admission of deceased in PGIMS Hospital, Rohtak and further stated that PW14 Ct Joginder did not tell him whether he had lodged any DD entry at PS Rohtak regarding receiving of blood sample and handing over same to ASI Satbir, which raises serious doubt on the case of prosecution. Ld. counsel has further submitted that the language of DD no. 3A dated 15/05/2009, PS Shahbad Ex. PW20/A further raises strong suspicion on entire case of prosecution as it categorically establishes the fact that it was a alleged case of poisoning consumed by deceased, however, no explanation was sought by investigating agency as to how said version was provided by concerned person and what was the source of said information. He has further submitted that aforesaid version was recorded by one Ct Inder Singh of Haryana police, but prosecution during trial deliberately dropped the said witness from the list of witnesses and when the aforesaid witness was called for SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 21 of 78 examination by the accused persons, it was revealed that no such witness existed or deliberately his true version was withheld. Ld. counsel has further submitted that there is an unexplained delay of more than 20 days in registration of FIR, which was initially registered u/s 498A IPC. He has further submitted that if the alleged case of prosecution is seen in totality, then alleged evidence of poisoning was available on 14/05/2009, therefore there was every occasion for police officials to register a case u/s 307 IPC or 302 IPC post death of victim, however the manner in which it was not registered demonstrate the fact that initial investigation demonstrated no fault of accused persons and with due deliberation said evidence was deliberately removed from case file and a fresh false story of poisoning was concocted in the present case in the FIR. He has further submitted that on 14/05/2009, PW5, PW10 & PW13 had not made any allegation against accused persons nor case of poisoning was brought forward, however, investigating agency had deliberately withheld the said fact in its investigation nor any explanation was sought from the said persons regarding their silence on 14/05/2009 and rather investigating agency with a view to conceal the said true version of 14/05/2009 had deliberately not mentioned the factum of DD no. 51B, PS Shahbad Dairy dated 14/05/2009. He further submitted that PW22 carried out investigation qua DD no. 51B and DD no. 3A dated 15/05/2009, however in rukka prepared by him only mentions about DD no. 3A and DD no. 51B is being deliberately withheld by the investigating agency. He has further submitted that the manner in which the investigation was carried out by Haryana Police was concealed nor IO of the case enquired in this regard, which raises serious doubt on the entire case of prosecution. He has further submitted that manner of seizure of samples of deceased raises serious doubt qua the same, however it further raises doubt on said seizure as perusal of MHCR register reveals that same was SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 22 of 78 seized by IO from concerned doctor. He has further submitted that even PW22, who had seized the exhibits, had not disclosed presence of PW14 and the aforesaid seizure memo due to said contradiction was exhibited twice in the present case being PW14/A and Ex. PW22/A. He further argued that the manner as to how the postmortem was conducted further raises serious apprehension on the entire case of prosecution as admittedly the request for postmortem and the death report dated 19/05/2009 were never exhibited by the prosecution. He further submitted that the initial version as per aforesaid documents depicted alleged version that deceased had consumed poison and for the said reason the same were not exhibited. He has further submitted that in absence of aforesaid document for seeking postmortem, the manner in which postmortem was conducted at PGI Rohtak in a case which was pending enquiry in Delhi, further raises serious question on the aforesaid alleged postmortem. Ld. counsel has further submitted that as per the alleged case of the prosecution, initial IO PW22 on 19/05/2009 had seized kidney, liver and other sample of the deceased after the postmortem and the same were allegedly submitted in Malkhana of PS Shahbad Dairy, however, the aforesaid initial IO in his testimony before the Court has not uttered even a single word regarding seizure of said articles or depositing the same in the malkhana nor it finds mentioned in rukka/endorsement prepared y PW22, which further demonstrate that sample and their seizure were planted in the present case with due deliberation by manipulating the aforesaid alleged seizure and the MHCM register with the aim to corroborate the case of the prosecution. He has further submitted that faulty manner of seizure of articles raises serious apprehension that same were tampered, hence any report prepared on the basis of said seized articles, cannot be relied upon for convicting the accused persons.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 23 of 78

16.3. Ld. counsel for the accused persons has further argued that there was a deliberate attempt by the investigating agency to conceal the true facts of the case, which is apparent from the fact that PW22 during his examinationin chief has not uttered even a single word regarding enquiry conducted by him under DD no 18 A dated 14/05/2009 or the statement Ex. PW5/B recorded by him of the complainant nor it finds mentioned in the rukka made by the IO. He has further submitted that aforesaid DD was the first information received in the present case and the proceeding dated 14/05/2009 carried out under said DD by PW22 were very much part and parcel of the present case, which were against the case of the prosecution on account of the fact that neither the parents of the deceased nor police officials present at the spot have made averment of poisoning in the present case, therefore, for the said reason attempt was made to conceal the said DD and proceedings initiated in the same. He further argued that aforesaid argument further gets corroborated by the fact that even after receiving the alleged report in the present case merely Section 306 IPC was added. He has further submitted that as per the chargesheet, no allegation to corroborate addition of Section 306 IPC in form of any statement finds mention, however, in absence of the same, the manner in which Section 306 IPC was added in the present case and the language of DD no. 3A dated 15/05/2009, wherein it was specifically stated that deceased had consumed poison, further demonstrate that facts/version qua allegation of suicide were deliberately concealed by the prosecution or the complainant party. Ld. counsel has further argued that accused persons had no role in poisoning the deceased further gets corroborated with the fact that investigating agency has failed to establish a sequence of events to depict how the said poison was allegedly administered to deceased, in form of any alleged disclosure statement of accused nor investigating agency was able to SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 24 of 78 establish the alleged source of said poison in form of recovery or even pointing out memo of the alleged shop from where it was allegedly purchased and in absence of aforesaid chain of evidence, the sequence of events remains incomplete in the present case, which is based on circumstantial evidence. He has further argued that investigating agency has failed to establish as to who had informed the complainant party regarding alleged illness of the deceased on 14/05/2009. He has further argued that as per the alleged version of the prosecution, the daughter of complainant namely Sunita had allegedly received call from Shahbad Dairy regarding the same, however, the investigating agency strangely had not recorded statement of Sunita nor the CDR or phone record of complainant or accused persons were obtained. He further submitted that no such call was ever made, therefore the same point was not investigated as deceased was residing with her parent till 14/05/2009 and the version of alleged call was merely concocted with the aim to give tooth to the toothless and improbable story of the complainant. Ld. counsel has further submitted that investigating agency has merely sought signature specimen of the deceased from CBSE and deliberately had not obtained the handwriting which was also available with CBSE as it was apparent that alleged suicide note was not written by deceased, therefore, no effort was made by investigating officer to establish the authenticity of the said letter. In support of his arguments, ld. counsel has relied upon the judgment of Hon'ble Supreme Court in the case of Motial & Ors Vs State of Rajasthan, MANU/SC/10434/2019, date of decision 05/05/2019.

16.4. Ld. counsel for the accused persons has submitted that the evidence on record has proven that deceased was suffering from prolong kidney ailment for which she was being treated regularly. He has further submitted that the version SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 25 of 78 of DW1 further corroborates the defence of the accused persons as he has categorically stated that deceased was suffering from kidney ailment and was residing in her parent house till 14.05.2009. He has further submitted that testimony of DW1 is credible and trustworthy as parents of deceased have admitted the said fact during their crossexamination. Ld. counsel has further submitted that if the alleged version of the complainant is believed, than the conduct of the accused persons is very strange who after allegedly administering poison to deceased at 10.00 am would allegedly inform her parents about her ill health or would have let her suffer till her parents arrive. He has further submitted that if the accused persons had any intention to murder the deceased, they had every opportunity to do so as per the alleged case of the prosecution, however, the present case does not infuse confidence of a prudent mind and depict the fact that unfortunate death of deceased due to prolong illness was unfortunately given criminal colour. He has further submitted that accused persons have provided a proper explanation that deceased was not present in their house on 14/05/2009, therefore presumption under Section 106 of Evidence Act cannot be assumed against them and onus remains on the prosecution to prove its case beyond reasonable doubt,which prosecution has failed to do so. Ld. counsel has further submitted that prosecution has failed to prove offence u/s 302 IPC against the accused persons as it failed to bring on record any direct evidence against the accused persons, rather the case is based on circumstantial evidence, but the investigating agency failed to connect the chain of evidence to prove their case against the accused persons. He has further submitted that the motive in a circumstantial case ought to be proven by the prosecution and the investigating agency had alleged demand of dowry to be motive for alleged murder of deceased in the present case, however, it failed to bring any evidence which would remotely SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 26 of 78 demonstrate demand of dowry by the accused persons as the allegation of demand leveled by parents of deceased are unsubstantiated, which were brought into the case at a very belated stage in the form of delayed statements and the same are without any date, time or specification, further no independent witness was cited by the investigating agency to corroborate their case and even the alleged letter of the deceased was found to be a fake document planted by family members of the deceased, hence motive in the case remained unproven. He has further submitted that prosecution has failed to prove the offence of murder against the accused persons as no recovery was effected from any of the accused persons which would have remotely connected the accused nor the investigating agency has provided even alleged version of accused persons in form of disclosure to demonstrate how the sequence of event had taken place on the date of the incident. He has further submitted that the chain of circumstances remained incomplete as the investigating agency has failed to connect the chain and deliberately withheld vital facts of the case like who informed parents of deceased about the unfortunate incident, who informed local police that deceased is admitted at PGIMS Rohtak or who directed PGIMS Rohtak to carry out postmortem of deceased and under what circumstances. Ld. counsel has further submitted that investigating agency had filed the chargesheet against the accused persons u/s 304 IPC without providing any explanation as to under what circumstances the aforesaid offence is being made out against the accused persons. Ld. counsel has lastly prayed that keeping in view the given facts and circumstances of this case and on the basis of evidences which have come on record, the accused persons may be acquitted in the present case. He has further relied upon the judgment of Hon'ble Supreme Court in the case of Nagendra Sah VS The State of Bihar, Criminal Appeal no. 1903 of 2019, date of SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 27 of 78 decision14/09/2021 & judgment of Hon'ble High Court of Delhi in the case of Saroj Mittal Vs The State, Crl. A. No. 1504/2014, date of decision 26/05/2016.

CIRCUMSTANTIAL EVIDENCE

17. In the present case, there is no eyewitness and whole of the case of prosecution is based on circumstantial evidence. Generally, when there are eye witnesses to the incident, the Court has to rely upon the veracity of the witnesses to establish the incident, but while dealing with the case based on circumstantial evidence, not only the veracity of the witness but also other points become relevant. Before we proceed further it is necessary to state the requirements in a case based on circumstantial evidence. In this regard, we can rely upon the judgment of Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. (AIR 1990 SC 79), which have laid down the requirements with regard to circumstantial evidence as under: "10.This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests :

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 28 of 78 with his innocence. (See Gambhir v. State of Maharashtra )."

(6 of 22) (CRLDR-7/2020) It has also been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as under:-

"There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial."

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 29 of 78

18. In Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984: 1984 AIR 1622, 1985 SCR (1) 88, the honorable supreme Court upheld as under: "Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far 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."

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 30 of 78 Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

19. Therefore, in a case, which is based on circumstantial evidence, the abovestated requirements need to be established.

20. As discussed above that in a case based on circumstantial evidence, the abovestated requirements are to be fulfilled and the facts on which the case is based, has to be cogently and firmly established. In the present case, the establishment of following facts is very much essential:

i) Whether the victim Anita (since deceased) was present at her matrimonial house on 14/05/2009.

ii) Whether phone call was received from the matrimonial house of the deceased.

iii) Whether the door of the room in which Anita (since deceased) was present on 14/05/2009, was latched from outside & Phone call SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 31 of 78 at 100 number was made by PW5 Umed Singh

iv) Whether there is any previous complaint.

v)Whether the deceased was taking treatment since long.

vi)Whether the deceased was taken to PGI MS Rohtak & she was unconscious at that time.

vii) Death of deceased & cause of death.

Whether the victim Anita (since deceased) was present at her matrimonial house on 14/05/2009.

21. As per the case of the prosecution, Anita (since deceased) was at her matrimonial home on 14/05/2009. In this regard, the prosecution has relied upon the testimony of PW5 Umed Singh, PW10 Jagdish and PW13 Bhateri Devi. Now, let us see what these witnesses have deposed in this regard.

21.1. PW5 Umed Singh, father of deceased Anita, has deposed that Ram Kumar, his wife accused Ved Kaur (A3) and brother of Ved Kaur and the daughter of brother of Ved Kaur came to his house at Jharoda Kalan, Najafgarh and they asked him for getting married his younger daughter with accused Joginder, otherwise they will not keep his daughter Anita also. He further deposed that he flatly refused the said proposal and it annoyed them and they left his house. He further deposed that one year thereafter his daughter was sent to his house after threatening her and she remained at his house for about five months. He further deposed that after five months, accused Joginder came to his house to take Anita and he refused to send her back but accused Joginder requested to send Anita with him. PW5 further deposed that his daughter also said that it is better to go with Joginder and accordingly he sent his daughter Anita with Joginder. He has denied the suggestion in the crossexamination that in the morning on 14/05/2009, he himself had brought his daughter to her matrimonial house along with his SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 32 of 78 relative under the pressure of his family members, as her medical condition was not improved.

21.2. PW10 Jagdish has deposed that his cousin sister Anita (since deceased) resided at her parental house for about five months and she joined her matrimonial house 34 days prior to the occurrence. Though, in the cross examination conducted on behalf of the accused persons, he stated that he had not stated in his statement dated 12/06/2009 that Anita had joined her matrimonial house 34 days prior to 14/05/2009 as stated by him in his examinationinchief. However, he has denied the suggestion that Anita was undergoing medical treatment continuously at her parental house for about 56 months prior to 14/05/2009 or that due to some quarrel in the family of his uncle Umed Singh over the expenses incurred in respect of medical treatment of Anita, they decided to take Anita to her matrimonial house or that on 14/05/2009, he along with his uncle Umed Singh or other family members brought Anita to her matrimonial house.

21.3. PW13 Bhateri Devi (mother of deceased) has deposed that after about 45 years of marriage of his daughter Anita, accused persons had stated to them that since Anita was not able to conceive, they would keep Anita with them and asked for the marriage of his another daughter namely Babli with accused Joginder, otherwise they would not keep Anita with them. She further deposed that the said proposal was rejected by them as well as by his daughter Babli and thereafter, his daughter Anita came to their house and stated to her that she had been feeling pain in her abdomen, but her husband and other relatives had not been taking her to any doctor for her medical treatment. PW13 further deposed that upon this, she and her husband (PW5) took his daughter Anita to a doctor and SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 33 of 78 the said doctor had conducted relevant medical tests and after conducting tests, stated to them that there was a minor swelling over the kidney area of Anita and also stated that the said ailment could be cured by taking medicines. She further deposed that Anita stayed with them for about 56 months and took medication and was completely cured of the said ailment. PW13 further deposed that thereafter, her daughter Anita had stated to her that she had received a phone call of her husband Joginder and Joginder had stated to her that she should come back to her matrimonial house and the medical treatment, if any, would be taken care by him and upon this, her daughter Anita left for her matrimonial house and she accompanied her upto the Bus Stand to see her off. In the crossexamination conducted on behalf of accused persons, PW13 has denied the suggestion that in the morning on 14.05.2009, she along with her husband had brought Anita to her matrimonial house alongwith their relatives under the pressure of their family members, as her medical condition was not improving or that accused Joginder tried his level best for the treatment of their daughter, but in vain or that accused Joginder tried his level best for the admission of their daughter in the hospital, but no bed was available in any nearby hospital.

22. From the plain reading of testimonies of aforesaid three witnesses, it can be inferred that though there is minor contradiction with regard to the exact date of visit of Anita (since deceased) at her matrimonial house, but the same is not major. At best, it also establishes the fact that she had visited her matrimonial house few days back from her parental house. Nothing could be elicited in the crossexamination to demolish their testimony. Thus, it has been proved on record that Anita (since deceased) went to her matrimonial house few days prior to 14/05/2009.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 34 of 78

Whether phone call was received from the matrimonial house of the deceased.

23. The case of prosecution is that on 14/05/2009, the family of deceased received a telephonic call qua the serious condition of Anita (since deceased), whereupon they visited the matrimonial house of Anita. Now, let us see what the PWs have deposed in this regard in their testimonies.

23.1. PW5 Umed Singh (father of deceased) has deposed that after about 56 days (i.e. of leaving of Anita to her matrimonial house) on 14/05/2009, at about 10.00 a.m., a telephone call was received at his house at Jharoda Kalan that Anita is seriously ill and if he wanted to meet Anita, he can meet her while coming at Prahladpur. He further deposed that the telephone call was received by his another daughter Sunita and at that time he along with his wife was outside Delhi. PW5 further deposed that his daughter Sunita informed him on his telephone about the telephone call.

23.2 PW10 Jagdish has deposed that on 14/05/2009, an information was received to them by telephone that Anita (since deceased) was not well (Anita ki tabiyat kharab hai).

23.3. PW13 Bhateri Devi (mother of deceased Anita) has deposed that after about 57 days thereof ( i.e. going of Anita to her matrimonial home), her daughter Sunita had received a phone call from the matrimonial house of Anita (since deceased) and it was informed to her that Anita (since deceased) was seriously ill. She further deposed that her daughter Sunita had informed them about the said call. In her crossexamination, PW13 has deposed that on SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 35 of 78 14/05/2009, the telephone was attended by her daughter Sunita, however, she cannot tell as to exactly who made the said call from the matrimonial house of his daughter, but it was made by some lady.

24. From the testimony of PW5 Umed Singh, PW13 Bhateri Devi and PW10 Jagdish, it has been established on record that on 14/05/2009, a telephone call was received from the matrimonial house of Anita intimating that Anita was seriously ill, which was made by a lady (as per PW13) and was attended by Sunita (daughter of PW5 & PW13, whereupon they went to the matrimonial house of Anita (since deceased) at Prahladpur. However, the identity of the lady, who had allegedly made the said call, has not been proved on record. Nonproduction of Sunita is also not fatal to the case of the prosecution, keeping in view the cogent and consisting testimonies of aforesaid three witnesses in this regard.

Whether the door of the room in which Anita (since deceased) was present on 14/05/2009, was latched from outside & Phone call at 100 number was made by PW5 Umed Singh

25. It is the case of the prosecution that the room in which Anita (since deceased) was present inside, was bolted from outside.

25.1. On 14/05/2009, on receipt of call from the matrimonial house of Anita (since deceased), PW5 Umed Singh, PW10 Jagdish and PW13 Bhateri along with Ramkishan & his wife Indrawati reached Prahladpur. PW5 Umed Singh deposed that they opened the outer gate of matrimonial house of Anita and saw that in the front room, Joginder, Nande (jeth), Ved Kaur and Sanjeeta were taking tea and were watching T.V. and on seeing them, they got frightened. PW5 further SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 36 of 78 deposed that they made inquiries from them as to where is Anita, on which, accused Sanjeeta had pointed out by her hand towards the back room. He further deposed that they went towards the back room and saw that the door was bolted from outside and his nephew had opened the door and when they entered into the room, they saw that their daughter Anita was lying unconscious in the room.

25.2. PW10 Jagdish has deposed that upon reaching the said house, they had seen the Jeth, Jethani, Nanad Sanjeeta, motherinlaw Phulo and her husband Joginder watching TV in a room & when they enquired from the aforesaid accused persons about Anita, accused Phulo pointed out towards a room and they found the said room bolted from outside. He further deposed that upon opening the room, when they entered inside the said room, they found Anita unconscious.

25.3. PW13 Bhateri Devi (mother of deceased) has deposed that when they reached at the matrimonial house of Anita, they saw accused persons sitting at the outside room of their house and were taking tea. She further deposed that they enquired from them about Anita and the motherinlaw Phoolo Devi had pointed out towards the room of Anita. She further deposed that when they reached in front of the said room of Anita, they found the said room bolted from outside and her nephew Jagdish unbolted the said room and thereafter, they entered inside the said room and saw Anita lying over the bed and froth was coming out from her mouth, her body was blueish in colour and she was unconscious.

25.4. PW5 Umed Singh (father of deceased) further deposed that when they found their daughter Anita (since deceased) unconscious in the room, in the SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 37 of 78 meantime, all the family members of Joginder (accused herein) reached there and they made inquiry from them as to why Anita has not been taken to any hospital and why she was lying there. PW5 further deposed that only the jeth of Anita replied that there was no bed available in the Ambedkar Hospital and they will not take her to any other hospital. He further deposed that when they asked the accused persons that they are taking Anita to hospital, but they did not allow them to take Anita in the hospital. He further deposed that during this, jethani of Anita made telephone call at Bawana to her brother Babloo, who came there in the meantime. PW5 further deposed that on reaching there, Babloo caught hold him with neck and slapped him and threatened to kill him and asked them to go from there and due to this, scuffle/altercation took place and he (PW5) made a call to the police on 100 number. He further deposed that police came there and made inquiry and he narrated all the incident to the police.

25.5. PW10 Jagdish and PW13 Bhateri Devi have corroborated the version of PW5 Umed Singh in this regard. However, in the crossexamination, PW13 Bhateri Devi has stated that she does not remember the exact or approximate date when police recorded her statement in this case & so far as she remembered, her statement was recorded by the police after about two months of death of her daughter Anita. PW13 Bhateri Devi on one hand had stated in the crossexamination that she does not remember about her exact location as on 14.05.2009 and that if any police official had met her as on 14.05.2009. She further stated that she did not meet any of the accused persons on 14.05.2009. However, on the other hand, she further stated in the crossexamination that they remained at the matrimonial house of Anita on 14/05/2009 at Prahladpur from 2.00 p.m. to 6.00 p.m. and her husband had made call at 100 number in her presence SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 38 of 78 in between the aforesaid period. She further stated that she does not know if any police official had recorded the statement of her husband as on 14/05/2009 and that she did not disclose to the said police official on 14/05/2009 the facts which has deposed before the Court. She further deposed that she did not disclose before any police official on 14.05.2009 that upon entering the room of Anita, they saw her lying over the bed or that they also saw that froth was coming from her mouth or that her body was found blueish in colour or that the door of the room in which Anita was lying, was bolted from outside. She further deposed that she does not remember if she had stated any of the aforesaid facts to any of the police officials during the investigation of the present case. PW13 further stated in the crossexamination that she cannot say if her husband had told any of the aforesaid facts to the police official who had visited matrimonial house of Anita on 14.05.2009 or not. However, she has voluntarily stated that police official had been writing on piece of paper after making enquiries from her husband on that day.

26. PW18 HC Rajender Kumar had produced copy of Order No. 6238 6327 dt. 18.12.2012 Ex. PW18/A vide which the original PCR form has been got destroyed. According to the deposition of PW18 , as per the said PCR form (dated 14/05/2009), a PCR call was received by W/Ct. Dhara at 15:31:56 hours to the effect that quarrel had taken place at Plot no. 6, Pool Prahladpur, near Shahbad Dairy and informer had informed "meri ladki ke saath sasuralwale quarrel kar rahe hai" & that W/Ct. Dhara recorded the said information in PCR form Ex.PW18/B.

27. As per case of prosecution, DD no. 18A was marked to ASI (now SI) Satbir Singh, who has been examined as PW22. However, the testimony of SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 39 of 78 PW22 is silent in this regard. In his entire examinationinchief, this witness has nowhere stated that DD no. 18A was marked to him and pursuant thereto, he reached at the spot i.e. matrimonial house of Anita (since deceased), where he met with PW5 Umed Singh, PW15 Bhateri Devi and PW10 Jagdish and only during crossexamination conducted on behalf of all the accused persons, PW22 has admitted that on 14/05/2009, DD no. 18 A and 10B were also marked to him.

28. From the testimonies of PW5 Umed Singh, PW13 Bhateri Devi, PW5 Jagdish and PW18 HC Rajender Kumar, though it is proved on record that a call at 100 number was made by PW5 Umed Singh on 14/05/2009, whereupon DD no. 18A was recorded, which was marked to ASI Satbir Singh, but PW22 SI Satbir Singh has nowhere claimed in his examinationinchief that on receipt of any such DD, he visited the matrimonial house of the deceased and met with PW5, PW10 and PW13 there and it was only in the crossexamination, he has admitted that DD no. 18A was marked to him and he recorded the statement of PW5 Umed Singh Ex. PW5/B. The prosecution has failed to explain as to why PW22 SI Satbir Singh has withheld such important piece of evidence in his testimony. Further, it is not believable that accused persons on one hand would call the complainant party and on the other hand, they would keep the room latched from outside in which Anita (since deceased) was found to create suspicion in the mind of the family of the deceased. From the testimonies of aforesaid witnesses, at the most, it can be said that there was quarrel between the complainant side and accused persons with regard to taking of Anita (since deceased) to hospital. Moreover, keeping in view the twist and turn taken by PW13 Bhateri Devi in her crossexamination qua her presence on 14/05/2009 at the matrimonial house of her daughter, creates doubt about her presence on 14/05/2009.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 40 of 78

Whether there is any previous complaint

29. The case of prosecution is that Anita (since deceased) was harassed and was subjected to cruelty for demand of dowry i.e. Rs. 50,000/ and scooter. Now, let us see, what witnesses have deposed in this regard.

29.1. PW5 Umed Singh (father of deceased) has deposed that deceased Anita was his daughter and she was married with Joginder Singh (accused herein) s/o Ram Kumar r/o VillPrahladpur on 06/05/2000 according to Hindu rites and ceremonies. He has further deposed that the matrimonial life of his daughter sailed smoothly for about 34 years after the marriage and thereafter, motherin law Smt. Ved Kaur, Jethani Sanjeeta, Jeth Nande and his soninlaw Joginder (accused herein) started harassing his daughter and started demanding Rs. 50,000/ or scooter. He has further deposed that thereafter when his daughter came to their house, then she told him about the same. PW5 further deposed that thereafter, he along with his wife Bhateri and his daughter Anita went to the house of accused, where he talked to fatherinlaw, motherinlaw, jeth, jethani and husband of his daughter and they assured him that they will not repeat such demand and harassment. He has further submitted that after some days, the abovesaid persons again started harassing his daughter on account of the non fulfillment of above said demand i.e. Rs. 50,000/ or scooter. He further deposed that his younger daughter Suman @ Guddi, who used to visit to the matrimonial house of Anita, told him about the harassment and demand. He further deposed that thereafter, he along with 34 respectable persons of his village visited matrimonial house of his daughter and 56 respectable persons of Village Prahladpur also gathered there and a "panchayat" was convened and all the accused persons were also present in the "panchayat". PW5 further deposed that SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 41 of 78 in the "panchayat", Ram Kumar and his wife Ved Kaur (accused herein) felt sorry about their conduct and assured that in future this will not happen.

29.2. PW5 Umed Singh further deposed that few months thereafter, Ram Kumar, his wife accused Ved Kaur and brother of Ved Kaur and the daughter of brother of Ved Kaur came to his house at Jharoda Kalan, Najafgarh and they asked him for getting married his younger daughter with accused Joginder, otherwise they will not keep his daughter Anita also. He further deposed that he flatly refused the said proposal and it annoyed them and they left his house. He further deposed that one year thereafter his daughter was sent to his house after threatening her and she remained at his house for about five months. He further deposed that after five months, accused Joginder came to his house to take Anita and he refused to send her back but accused Joginder requested to send Anita with him. PW5 further deposed that his daughter also said that it is better to go with Joginder and accordingly he sent his daughter Anita with Joginder.

29.3. In the crossexamination conducted on behalf of all the accused persons, PW5 Umed Singh has stated that he cannot say as to whether he had mentioned the facts as appearing in portion A to A1 to E to E1 of his chief examination dated 01.06.2012, in his written complaints already Ex. PW5/A and PW5/B. The contents of written complaints already Ex. PW5/A and PW5/B have been read over to PW5 and after hearing the same, he admitted that portions A to A1 to E to E1 of chief examination dated 01.06.2012, were not mentioned in both the said written complaints. However, he has voluntarily stated that he is illiterate and cannot read or write even Hindi language and he can only put his signature in Hindi language. He has further voluntarily stated that he had disclosed about facts SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 42 of 78 mentioned in portions A to A1 to E to E1 of his chief examination dated 01.06.2012, to the police in his subsequent statements recorded by the police. He further admitted that he had not made any allegation against the accused persons in his statement u/s 161 CrPC dated 12/06/2009 Ex. PW5/D1.

29.4. PW10 Jagdish (cousin of deceased) deposed that his cousin sister Ms. Anita (since deceased) was married to accused Joginder Singh on 06.05.2000 as per Hindu rites and ceremonies & in the said marriage, they had spent more than their capacity. He further deposed that after marriage, accused Joginder, present in the Court today (correctly identified), had demanded dowry from his cousin sister i.e. a cash sum of Rs. 50,000/ and scooter.

29.5. PW10 Jagdish has further deposed that the aforesaid accused persons used to harass Anita on account of dowry and she was treated with cruelty by the aforesaid accused persons. He further deposed that his cousin sister Anita resided at her parental house for about 5 months and she joined her matrimonial house 34 days prior to the occurrence. In his crossexamination conducted on behalf of the accused persons, PW10 has stated that his first statement u/s 161 CrPC was recorded by the police on 12/06/2009 and he does not remember if he had made any other statement to the police after 12/06/2009 or not. He has further stated that he did not state to the police in his statement dated 12.06.2009 that accused persons used to demand cash sum of Rs. 50,000/ and scooter from Anita. He has voluntarily stated that on that day, he was not aware, again said, police had not heard of them, even they were turned out of the PS on that day including his uncle Umed Singh. He further stated that he did not make any call to any higher police officer in this regard nor made any written SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 43 of 78 complaint in this regard. He further deposed that he does not remember the date, month or year when demand for cash amount of Rs. 50,000/ and scooter was made as dowry from his cousin sister. He further stated that he had also not stated in his statement dated 12/06/2009 about the allegation of any demand of dowry by the accused persons.

29.6. PW13 Bhateri Devi, is the mother of the deceased Anita. She has deposed that she was having six daughters and her daughter Anita (since deceased) was born at 3 rd number. She further deposed that her daughter Anita was married with accused Joginder Singh, present in the Court (correctly identified) in the year 2000 & in the said marriage, they had given fridge, TV, cooler, furniture, jewellery including other household articles, utensils, clothes, etc. She further deposed that after the marriage, his daughter Anita was being taunted by her husband i.e. by accused Joginder, motherinlaw i.e. accused Phoolo Devi @ Ved Kaur, Jethani Sanjeeta as well as by accused Narender Singh and Shamsher Singh. PW13 has correctly identified all accused persons present in the Court today. She further deposed that after about one year of marriage of his daughter Anita with accused Joginder Singh, his daughter had stated to him that her husband i.e. accused Joginder had been demanding a sum of Rs. 50,000/ as dowry from her, but since they were not in a position to arrange a sum of Rs. 50,000/, she (PW13) had shown his inability to his daughter to arrange the said amount. She further deposed that thereafter, after some days, accused Joginder started demanding scooter from her daughter Anita and stated to her that if she could not bring the scooter, they would have to give them the documents of their agricultural land. She further deposed that when his daughter was being pressurized to fulfill the aforesaid demands, her husband Umed Singh (PW5) and SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 44 of 78 few of their relatives went to the matrimonial house of his daughter Anita in order to make accused Joginder and his other relatives understand & upon this, father of accused Joginder Singh, had stated to her husband that the said demands would not be repeated in future. PW13 has further deposed that after about 45 years of marriage of his daughter Anita, accused persons had stated to them that since Anita was not able to conceive, they would keep Anita with them and asked for the marriage of his another daughter namely Babli with accused Joginder, otherwise they would not keep Anita with them. She further deposed that the said proposal was rejected by them as well as by his daughter Babli. In the crossexamination, PW13 has stated that she does not remember about the exact date, month or year or occasion when accused persons started taunting her daughter about the less dowry brought by her and that she also does not remember about the exact date, month or year when accused Joginder had demanded Rs. 50,000/, scooter and documents of their agricultural land from her daughter. She further deposed that she also does not remember about the exact date, month or year when she alongwith her husband and relatives went to the matrimonial house of her daughter Anita to make accused persons understand. She further deposed that she also does not remember about the exact date, month or year when accused persons had asked for performing marriage of her younger daughter namely Babli with accused Joginder.

29.7. With regard to the demand of Rs. 50,000/ and scooter, the prosecution has relied upon one handwritten note in the handwriting of deceased Anita. PW5 Umed Singh (father of deceased) has deposed that during investigation, he also produced the photographs of marriage of his daughter Anita with accused Joginder which police had seized vide seizure memo Ex. PW5/E. He SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 45 of 78 has identified the said six photographs as Ex. PW5/F colly. He further deposed that during investigation, he also handed over to IO one laminated sheet seemed to bear the handwriting and signature of his daughter Anita and he told to the IO that the said document was found in the box of Anita when they were going to Garh Ganga for performing the last rights "Asthiyaan Visarjan". He further deposed that police had seized the said document Ex. PW1/B and PW1/C (both sides) vide seizure memo Ex. PW5/G. PW24 Inspector (Retd.) Vikram Singh is the second IO whom further investigation was entrusted. He has deposed that on 10.06.2009, he was posted at PS Shahbad Dairy as Additional SHO & on that day, further investigation of the present case was marked to him. He further deposed that during investigation on 12.06.2009, PW5 complainant Umed Singh had produced one handwritten laminated document stated to be in the handwriting of deceased Anita, which was seized by him vide seizure memo Ex.PW5/G & which has been annexed with the said seizure memo. He further deposed that on the same day, PW5 Umed Singh had also produced six photographs of marriage before him, which he seized vide seizure memo Ex.PW5/E & the said photographs are annexed with the said seizure memo. PW24 further deposed that on the same day, PW5 Umed Singh had also produced certain cash memos and attendant pass before him, which he seized vide seizure memo Ex.PW10/A & the said documents are annexed with the said seizure memo. He further deposed that he recorded the statements of PW5 Umed Singh and PW10 Jagdish in this regard.

29.8. The said handwritten note was examined by PW1 Sh. Devak Ram, Senior Scientific Officer (documents), FSL, Rohini, Delhi85. PW1 Sh. Devak Ram has deposed that the documents i.e. questioned documents Q1 & Q2 and admitted signatures of Anita (since deceased) were received in his laboratory on SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 46 of 78 15/09/2010 vide letter no. 3362/SHO/Shahbad Dairy in case DD no. 136/09 of PS Shahbad Dairy. He further deposed that he examined the documents with the help of available instruments in his laboratory, but it was not possible to fix the authorship of questioned documents Q1 and Q2 with comparison of admitted signatures A1. He has exhibited his detailed report as Ex.PW1/A and questioned documents Q1 and Q2 as Ex. PW1/B & Ex. PW1/C respectively and admitted signatures of deceased at point A1 on Ex. PW1/D and the forwarding letter of their department Ex. PW1/E. As per the report of said witness Ex. PW1/A, it was not possible to fix the authorship of Q1 & Q2 (i.e. signatures of deceased Anita on Ex. PW1/B & 1/C) in comparison with admitted signature marked A1 of deceased Anita, however, further attempt can be made if admitted signature of contemporary period are supplied for the comparison of the person concern. PW25 Inspector Rakesh Rawat (IO) has stated in the crossexamination that they had obtained the admitted signature of the deceased from her school & he tried to obtain the admitted handwriting of the deceased from her school, but only her admitted signatures were given to him by the School Authority. He further stated that he did not try to obtain the admitted handwriting of the deceased from CBSE Board.

30. From the aforesaid testimonies of PW5 Umed Singh, PW10 Jagdish and PW13 Bhateri Devi, it can be safely inferred that there were no previous written complaints qua the demand of scooter and Rs. 50,000/ from the deceased. Even all these PWs have failed to give any specific date, month and year as to when the such demand were ever raised by the accused persons. In in earlier complaints given by PW5 Umed Singh i.e. Ex. PW5/A & PW5/B, there is no mention qua the alleged demands of scooter and Rs. 50,000/. None of these three witnesses have stated that they made any complaint previously in this SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 47 of 78 regard. Admittedly, the marriage between accused Joginder and Anita (since deceased) had taken place in the year 2000, whereas the allegations of dowry demand have been levelled by PW5 Umed Singh for the first time in his supplementary statement dated 25/06/2009, whereas Anita was admitted in PGIMS Rohtak on 14/05/2009. Similarly, statement of PW10 Jagdish was recorded on 25/06/2009, wherein he also claimed that Anita (since deceased) was tortured by her inlaws family for demand of dowry. Statement of PW13 Bhateri Devi was recorded on 01/01/2010, wherein she also claimed that accused persons demanded Rs. 50,000/ and scooter. Had there been any such demand, then PW5 Umed Singh & PW13 Bhateri Devi (parents of deceased) and PW10 Jagdish would have told about the same at the initial stage of investigation and there is no explanation as to why they kept mum for such a long period and did not allege any such allegation. No such demands even find mentioned in the earlier statements of PW5 Umed Singh made to the police i.e. Ex. PW5/A & Ex. PW5/B. All such allegation qua demand of dowry have been raised at a belated stage, which seems to be an afterthought to strengthen their case. Even PW10 Jagdish has stated in his crossexamination that he did not allege any allegation of demand of dowry in his statement dated 12/06/2009. PW13 Bhateri Devi (mother of the deceased) has categorically stated in her crossexamination that she does not remember the exact date, month or year when accused Joginder demanded Rs. 50,000/, scooter and agricultural land. Furthermore, as already discussed in preceding para, the testimony of PW22 SI Satbir Singh is silent qua the proceedings conducted on 14/05/2009. There is no explanation on the part of PW22 as to how statement Ex. PW5/B of PW5 Umed Singh was recorded on 14/05/2009. Hence, keeping in view all these facts and circumstances, the prosecution has failed to prove on record that there was any demand of dowry i.e. SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 48 of 78 Rs. 50,000/. The prosecution has further failed to connect the FSL report Ex. PW1/A qua the demand of Rs. 50,000/ and scooter against the accused persons.

The deceased was taking treatment since long

31. With regard to the factum of illness of deceased Anita, the testimonies of PW5 Umed Singh and PW13 Bhateri Devi, parents of deceased, are relevant.

31.1. PW5 Umed Singh has deposed in his testimony before the Court that after about 56 years of marriage, his daughter Anita complained to him that she was suffering from regular stomach pain & he took his daughter to a doctor and after checking, doctor stated to them that Anita was suffering from some kidney problem and the said doctor of AIIMS and Safdarjung prescribed some medicines to his daughter and stated to them that the treatment would take quite a long time. PW5 further deposed that his daughter remained with him for about 5 months prior to the occurrence of the present case & 56 days prior to the occurrence when his daughter went to her matrimonial house, she received a phone call from her in laws, who asked her to bring all the medical papers so that they could get her further treated, but within 56 days of his daughter joining her matrimonial home, he received a call that her condition was serious.

31.2. In the crossexamination conducted on behalf of the accused persons, PW5 Umed Singh has deposed that he had getting started treatment of his daughter in 2008 from Safdarjung Hospital, Delhi, which was for 45 months and he visited the said hospital alongwith his daughter only twice during said 45 months. He further deposed that during the said 45 months, his daughter resided SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 49 of 78 with him as well as at her matrimonial home in Prahladpur, Delhi. He further stated that after Safdarjung Hospital, no further treatment of his daughter was taken from any other hospital.

31.3. PW13 Bhateri Devi has deposed before the Court that after about 4 5 years of marriage of his daughter Anita, accused persons had stated to them that since Anita was not able to conceive, they would keep Anita with them and asked for the marriage of his another daughter namely Babli with accused Joginder, otherwise they would not keep Anita with them. She further deposed that the said proposal was rejected by them as well as by his daughter Babli. Thereafter, my daughter Anita came to their house and stated to her that she had been feeling pain in her abdomen, but her husband and other relatives had not been taking her to any doctor for her medical treatment. PW13 further deposed that upon this, she and her husband (PW5) took his daughter Anita to a doctor and the said doctor had conducted relevant medical tests and after conducting tests, stated to them that there was a minor swelling over the kidney area of Anita and also stated that the said ailment could be cured by taking medicines. She further deposed that Anita stayed with them for about 56 months and took medication and was completely cured of the said ailment. PW13 further deposed that thereafter, her daughter Anita had stated to her that she had received a phone call of her husband Joginder and Joginder had stated to her that she should come back to her matrimonial house and the medical treatment, if any, would be taken care by him and upon this, her daughter Anita left for her matrimonial house and she accompanied her upto the Bus Stand to see her off.

31.4. In the crossexamination conducted on behalf of accused persons, SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 50 of 78 PW13 has stated that her daughter Anita was not suffering from any kidney ailment prior to her marriage & after 23 years of her marriage, her daughter Anita told her that she had been suffering from pain in her abdomen on which she was taken to the doctors of Safdarjung Hospital and AIIMS by her alongwith her husband and then the concerned doctor of AIIMS had told that there was swelling in the kidney of Anita. She has voluntarily stated that doctor had also told that there was nothing to worry. She further stated that her daughter Anita received treatment in respect of aforementioned ailment from Safdarjung Hospital and AIIMS till 57 days prior to her death. She has further deposed that she does not know as to whether any of the accused persons provided any help to her daughter Anita in getting treatment from the aforementioned two hospitals.

31.5. PW3 Dr. Dhruva Chaudhary, the concerned doctor from PGI MS, Rohtak, Haryana, has deposed that they found that she (Anita) was having chronic kidney disease with renal failure. In his crossexamination, PW3 stated that during the treatment, they noticed that it was a case of acute kidney failure but later on when they investigated further, they found that it was a case of chronic kidney disease.

31.6. PW19 Dr. Rakesh Mishra, M.D (Physician), ECHS Poly Clinic, Jhajjar, Haryana, has deposed that on 08.05.2009, he was posted as Junior Consultant in Jiwan Jyoti Hospital at Bahadurgarh, Haryana. He further deposed on that day, he medically examined patient Anita (since deceased) vide OPD no. 1091 who came from Delhi 41 on 08.05.2009. He further deposed that on the basis of medical documents, he opined that Anita (since deceased) was a patient of chronic Renal failure and presented with complaints of burning maturation and SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 51 of 78 back ache. He further deposed that he examined the said patient and advised for KFT. He further deposed that KFT of the said patient was conducted and as per the report, blood urea was 78, serum creatinane 3.5 and serum uric acid 5.4 & patient was advised medications accordingly. He further deposed that the patient did not turn up after that and during investigation, Investigation Officer approached him and he made statement Ex. PW19/A in this regard.

32. From the testimonies of aforesaid witnesses, it has been proved on record that Anita (since deceased) was suffering from kidney ailment for which she got treatment from Safdarjung Hospital and AIIMS too and as per version of PW3, it was a case of chronic kidney disease.

Whether the deceased was taken to PGI Rohtak & she was unconscious at that time

33. As per the case of prosecution, when the family of Anita(since deceased) reached at her matrimonial house, they found her unconscious in a room and froth was coming out from her mouth and her body was bluish in colour. It is further the case of prosecution that a quarrel took place between complainant side and accused side with regard to taking Anita to hospital, on which, PW5 Umed Singh, father of deceased, made call at 100 number on which police came and thereafter Anita (since deceased) was taken to PGI Hospital, Rohtak, Haryana, by her parental side. In this regard, the testimonies of PW5 Umed Singh, PW10 Jagdish and PW13 Bhateri Devi are relevant.

33.1. PW5 Umed Singh has further deposed that he made inquiry from the accused persons as to why Anita has not been taken to any hospital and whey she was lying there. PW5 further deposed that only the jeth of Anita replied that there SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 52 of 78 was no bed available in the Ambedkar Hospital and they will not take her to any other hospital. He further deposed that when they asked the accused persons that they are taking Anita to hospital, but they did not allow them to take Anita in the hospital. He further deposed that during this, jethani of Anita made telephone call at Bawana to her brother Babloo, who came there in the meantime. PW5 further deposed that on reaching there, Babloo caught hold him with neck and slapped him and threatened to kill him and asked them to go from there and due to this, scuffle/altercation took place and he (PW5) made a call to the police on 100 number. He further deposed that police came there and made inquiry and he narrated all the incident to the police. He further deposed that by that time, the body of his daughter turned bluish and froth came out from her mouth. He further deposed that on the asking of police, all the accused agreed that they can take Anita to hospital. PW5 has further deposed that police took his signature on a paper and told him that proceedings will be conducted later on. PW5 further deposed that he asked the police that it is better that one of the family members from inlaws side of Anita should accompany them and on this, police officials asked the accused persons to accompany them, but they refused to do so. He further deposed that thereafter they took his daughter to Medical College Rohtak and she was admitted there at about 8.00 p.m. on the same day i.e. 14/05/2009. In the crossexamination conducted on behalf of the accused persons, PW5 has deposed that he cannot say as to whether he had mentioned the facts as appearing in portion D to D1 & E to E1 of his examinationinchief dated 01/06/2012, in his written complaint Ex. PW5/A & ExPW5/B. During the cross examination, the contents of written complaint Ex. PW5/A & Ex. PW5/B were read over to PW5 and after hearing the same, he admitted that portion D to D1 & E to E1 of his examinationinchief dated 01/06/2021 were not mentioned in both the SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 53 of 78 written complaints. However, he has voluntarily stated that he had disclosed about facts mentioned in aforesaid portions of his examinationinchief dated 01/06/2012 to the police in his subsequent statement recorded by the police. During crossexamination of PW5, ld. Addl. PP for the State has sought permission to reexamine PW5 on the aspect of number of statements made by him before the police during investigation/enquiry and during such reexamination, PW5 has deposed that it might be correct that during investigation, IO had recorded his statement u/s 161 CrPC on 25/06/2009 and on being drawn his attention to said statement u/s 161 CPC, he stated that he had made statement dated 25/06/2009 to the IO, who recorded the same on his dictation. He further admitted that during investigation, IO had also recorded his statement u/s 151 CrPC on 01/01/2010. However, in his crossexamination, PW5 has stated that in his statement dated 01/01/2010, he had not levelled any allegation against any of the accused as it was regarding nonavailability of admitted handwriting of his daughter.

33.2. PW10 Jagdish and PW13 Bhateri Devi have corroborated the version of PW5 Umed Singh and they both have also deposed that Anita was unconscious, a quarrel took place between both sides, call at 100 number was made, upon which, police came at the matrimonial house of Anita (since deceased) and thereafter they took Anita to PGI MS, Rohtak, Haryana. However, in the crossexamination, PW13 Bhateri Devi has deposed that she does not remember the exact or approximate date when police recorded her statement in this case & so far as she remembered, her statement was recorded by the police after about two months of death of her daughter Anita. She further deposed that she does not remember about her exact location as on 14.05.2009 and that if any SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 54 of 78 police official had met her as on 14.05.2009. She further stated that she did not meet any of the accused persons on 14.05.2009. She further stated that she does not remember if she had met any police official concerning the present case on 01.01.2010 or not. PW13 further deposed that she did not meet any police official during the investigation of this case and again stated that she does not remember this fact today (i.e. the day of crossexamination of the witness) and that she does not remember if she had made any statement before any person during the investigation of this case. In further crossexamination, PW13 they remained at the matrimonial house of Anita on 14.05.2009 at Prahladpur from 2 pm to 6 pm and her husband made a call at 100 number in her presence in between the aforesaid period. She further deposed that she does not know if any police official had recorded the statement of her husband as on 14.05.2009. She further deposed that she did not disclose to the said police official on 14.05.2009, the facts which she has deposed before the Court. She further deposed that she did not disclose before any police official on 14.05.2009 that upon entering the room of Anita, they saw her lying over the bed or that they also saw that froth was coming from her mouth or that her body was found blueish in colour or that the door of the room in which Anita was lying, was bolted from outside. She further deposed that she does not remember if she had stated any of the aforesaid facts to any of the police officials during the investigation of the present case. PW13 further stated in the crossexamination that she cannot say if her husband had told any of the aforesaid facts to the police official who had visited matrimonial house of Anita on 14.05.2009 or not. However, she has voluntarily stated that police official had been writing on piece of paper after making enquiries from her husband on that day.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 55 of 78

33.4. PW3 Dr. Dhruva Chaudhary, Professor and Head, Pulmonary and Critical Care Medicine and Unit Head Medicine VI, Pandit Bhagwat Dayal Sharma PGI MS, Rohtak, Haryana, has deposed that on 14/05/2009, he was posted at the abovesaid institute and on that day, Anita w/o Joginder (deceased herein) was admitted in their hospital in ICU (A&E) and was treated under his supervision as suspected poisoning case. He further deposed that Dr. Chirag prepared the medical documents under his supervision. PW3 exhibited the medical documents as Ex. PW7/A on record prepared by Dr. Chirag. During crossexamination, PW3 has deposed that none of the document mentioned in his examinationinchief mentioned his signature. He further stated that he can identify the writing and signature of Dr. Chirag, hence he could mention the detail during examinationin chief. He has voluntarily stated that Dr. Chirag was his junior, however, he (PW3) was incharge Surgeon Physician and patient Anita was admitted under his supervision and Dr. Chirag was part of medical team on duty to look after the patient. During further crossexamination, PW3 has stated that as per the record, the deceased got admitted in their hospital on 14/05/2009 at about 8.50. He further stated that he cannot tell whether it was morning or evening time as it is not clear from the record. He further stated that he cannot tell who was the attendant of the patient when he saw Anita first time in the morning of 15/05/2009. He further stated that as per the record, the patient was having unconsciousness, breathlessness, increase frequency of stools (diarrha) and urine, froathing, pin point pupils and shallow respiration.

33.5. As per Ex. PW3/D, Anita was brought to PGIMS, Rohtak, Haryana, with alleged history of unconsciousness at Prahladpur, Delhi on 14/05/2009 and patient was brought from Delhi to PGIMS Rohtak.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 56 of 78

33.6. PW9 Dr. Sandeep Kumar, Deputy Medical Superintendent, PGIMS,Rohtak, Haryana, has deposed that on 14/05/2009, he was posted as Casualty & on that day, he medically examined Anita W/o Sh. Joginder, aged about 30 years, R/o Prahladpur, Delhi vide medico legal report no. SK/389/09 being brought by Umed Singh (PW5), father of said patient. He further deposed that the said patient was brought in the hospital with the alleged history of some drug intake by patient and the said history was obtained by him from the attendant of the patient. He further deposed that upon examination, the said patient was found drowsy,however, the vital were within normal limit. PW9 further deposed that after examination, he prepared Medico Legal Report Ex.PW9/A. He has further deposed that he also obtained one lavage sample and blood sample of the patient and both the exhibits were sealed with the seal of MCH and were handed over to the police officials of Rohtak Police. All the injuries were kept under observation.

34. From the testimonies of aforesaid witnesses, it is proved on record that on 14/05/2009, Anita was admitted in PGI MS, Rohtak, Haryana, though the exact timing, whether it was morning or evening, has not been proved on record. Even PW13 Bhateri Devi has taken different stands qua her presence at the matrimonial house of deceased on 14/05/2009. The testimony of PW5 Umed Singh, PW10 Jagdish & PW13 are consistent that Anita (since deceased) was unconscious at the time when she was taken to PGI MS, Rohtak, Haryana. PW3 has also admitted in crossexamination that Anita was unconscious, though PW9 Dr. Sandeep claimed that Anita was brought with the alleged history of some drug intake by patient and the said history was obtained by him from the attendant of the patient and she was found drowsy at that time.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 57 of 78

Death of deceased and cause of death

35. The case of prosecution is that Anita (since deceased) had died on 18/05/2009. The said information was sent to PS Shahbad Dairy and in this regard, DD no. 30A was recorded at PS Shahbad Dairy, which was assigned to ASI Satbir Singh (PW22). Further, as per prosecution, Anita (since deceased) died due to consumption of poisoning i.e. organo phosphorous. Now, let us see what the witnesses have deposed in this regard.

35.1. PW5 Umed Singh has deposed that on 14/05/2009 when they reached at the matrimonial house of their daughter Anita at Prahladpur and when they opened the door, which was bolted from outside and in which Anita was inside, they found that Anita was lying unconscious in the room, her body turned bluish and froth was coming out from her mouth. PW10 Jagdish has deposed that upon entering the room, the found Anita unconscious. PW13 Bhateri Devi has deposed that they entered inside the room and saw Anita lying over the bed and froth was coming out from the mouth of Anita, her body was bluish in colour and she was unconscious. All these three PWs have further claimed that they took Anita (since deceased) to PGIMS, Rohtak, Haryana.

35.2. PW10 Jagdish has stated in the crossexamination that he had not stated in his statement dated 12/06/2009 about the factum of giving some poisonous substance to Anita. He has further deposed that it is not within his personal knowledge that Anita had consumed or was administered any poisonous substance or not. He further deposed that his uncle Umed Singh (PW5) had raised suspicion that it was a case of consumption of poison since some bulles (jhaag) were noticed in the mouth of Anita, at the time when she had been taken inside SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 58 of 78 PGI Rohtak for medical treatment and he along with his uncle Umed Singh were sitting outside the room.

35.3. PW13 Bhateri Devi has taken a different stand in her cross examination and stated that she had not disclosed before any police official on 14/05/2009 that upon entering the room of Anita, they saw her lying over the bed or that they also saw that froth was coming from her mouth or that her body was found bluish in colour or that the door of the room in which Anita was lying, was bolted from outside. She further stated that she does not remember if she had stated any of the aforesaid facts to any of the police officials during the investigation of the present case. PW13 further stated in the crossexamination that she cannot say if her husband had told any of the aforesaid facts to the police official who had visited matrimonial house of Anita on 14.05.2009 or not. However, she has voluntarily stated that police official had been writing on piece of paper after making enquiries from her husband on that day. She further deposed that when they reached at the room of Anita in her matrimonial house and saw that froth was coming from her mouth, it appeared to them that some poisonous substance had been given to her, however, they had not disclosed the said fact before the concerned doctor of PGIMS Rohtak at the time of getting her admitted over there.

35.4. PW3 Dr. Dhruva Chaudhary has deposed that on 14/05/2009, he was posted at Pulmonary and Critical Care Medicine and Unit Head Medicine VI, Pandit Bhagwat Dayal Sharma PGI MS, Rohtak, Haryana and on that day Anita was admitted in their hospital in ICU (A& E) and was treated under his supervision and suspected poisoning case. He got exhibited the medical documents as Ex.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 59 of 78

PW3/A. He further deposed that Dr. Chirag prepared the medical documents under his supervision. He has proved the medical documents as Ex. PW3/A bearing the signature of Dr. Chirag at point A on page no. 1, 5 and 6. He further deposed that on 18/05/2009, Anita (since deceased) was declared dead. PW3 has proved the death certificate as Ex. PW3/B issued in respect of deceased Anita & case summary prepared by Dr. Chirag as Ex. PW3/C. He further deposed that they informed the police of Rohtak about the admission of Anita in their hospital vide Ex. PW3/D on 14/05/2009. He has further stated that they informed the police about the death of Anita vide Ex. PW3/E on 18/05/2009. He further deposed that during the treatment of Anita, they observed that she was having symptoms which were suggestive of organo phosphorous poisoning. He further deposed that they found that Anita was having chronic kidney disease with renal failure. PW3 further deposed that on 25/06/2009, Dr. Chirag gave his observation about the treatment of Anita vide Ex. PW3/F. He has produced the original clinical case sheet of deceased Anita.

35.5. In the crossexamination conducted on behalf of the accused persons, PW3 has stated that the police was informed about the admission of patient immediately vide Ex. PW3/D. He has admitted that in the information to the police, it was not mentioned that there is suspicion of poison to the patient. He has voluntarily stated that they give information to the police when there is suspicion about the cause of patient's illness. PW3 further stated in the cross examination that he came to know first time about the suspicion of poison when the patient was shifted to ICU under their care on seeing the documents which were sent to them by the concerned doctor of casualty. He further stated that it is not mentioned in the record as to when the patient was shifted to ICU. He further SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 60 of 78 stated that whenever there is suspicion of poisoning, they start the treatment by maintaining airway, breathing and circulation. PW3 further stated that after that depending upon the clinical features specific treatment is started. He further stated that they also gave direction for stomach cleaning as per need. PW3 further stated that the moment the patient was admitted, they observed that it was a case of organo phosphorous poisoning. He further stated that as per the record, the patient was having unconsciousness, breathlessness, increase frequency of stools (diarrhea) and urine, frothing, pin point pupils and shallow respiration. He has denied that in the case of suspected poison of organo phosphorous, the patient will have tearing with red colour. He has denied the suggestion that in the case of suspected poison of orgnao phosphorous, saliva comes from the nostril, tinged with blood. He further stated that he does not recall as to what was the colour of vomiting of the patient. He further stated that he did not mention in the record of treatment of patient about the colour of vomiting. PW3 further stated that all the components of organo phosphorous require the same treatment so it does not make any difference which component of the OP compound was taken by the patient. He further stated that during the treatment, they noticed that it was a case of acute kidney failure but later on when they investigated further, they found it was a case of chronic kidney disease. He further stated that he cannot tell whether the attendants of the patient were inquired about the past treatment of kidney of patient as nothing is mentioned in the medical record. PW3 further deposed that he is deposing that day on the basis of medial record of the patient and not on the basis of his memory. He further stated that they had categorically written in the death certificate that immediate cause of death was poisoning and other significant conditions contribute of the death, but not related to disease or conditions causing it was chronic kidney disease. In the further cross SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 61 of 78 examination, PW3 has stated that he is in medical profession for the last 25 years. He has admitted that in the rural and village area, the pesticide containing the organo phosphorous is used for the crops and vegetables and in the absence of complete cleanliness and hygiene,if it enters into the food chain and small amount of it can be detected even in mother's milk which cause adverse health affects. He further stated that due to the aforesaid reasons, the cases of organo phosphorous can be detected in any human being. He further stated that in most of the cases of poisons, the rate of poison firstly is aluminum phosphate followed by organo phosphorous and that the organo phosphorous affects the entire body.

35.6. PW21 Dr. Reema Bahri has deposed that on 16.05.2009, she was working as InchargeClinical Bio Chemistry with Vimta Labs situated at Genome Valley, Hyderabad and on that day, their laboratory had received one serum sample. She has further deposed that she conducted Clinical Bio Chemistry Examination of the said serum sample and after examination, she prepared laboratory test report Ex.PW21/A. She further deposed that upon examination, the said serum sample found containing 2393 U/L of Cholinesterase, whereas the normal reference range should be 540013200 U/L in case of children man and woman and 430011500 U/L in case of woman 1639 years. PW21 further deposed that since the Cholinesterase was found to be 2393 U/L and the age of Mrs. Anita (since deceased) was mentioned as 30 years and since the range of Cholinesterase was found to be less than the normal range as mentioned above, this could be a case of poisoning.

35.7. In the cross examination conducted on behalf of accused persons, PW21 has deposed that the normal levels/range of Cholinesterase could also SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 62 of 78 decrease if the patient /lady would be taking oral contraceptives, in case of liver diseases i.e. hepatitis as well as due to genetic deficiency of enzymes. She further stated that no previous history of patient was sent alongwith the sample. She further stated that it takes about 30 minutes in testing only and report could be prepared in a maximum period of 23 hours.

35.8. Further, as per case of prosecution, DD no.3A was recorded by PW20 SI (retired) Anand Singh, who was working as duty officer on 15.05.2009, at about 1.50 am, on receipt of telephonic information from Duty Const. Inder Singh regarding admission of Anita W/o Joginder in P.P.P.GIMS Rohtak, Haryana. PW20 has proved the true copy of DD no. 3A as Ex.PW20/A. The said DD was marked to ASI Satyavir Singh (PW22) for taking appropriate action.

35.9. PW22 SI Satbir Singh is the first IO of the case. He has deposed that on 16.05.2009, he was posted at PS Shahbad Dairy as ASI and was on day emergency duty. He further deposed that on that day, on receipt of DD no. 3A dated 15.05.2009, he went to Medical College, Rohtak, where he found Ms. Anita W/o Joginder (since deceased) admitted in the said hospital vide MLC No. SK/389/09 & he collected the said MLC from the Duty Constable of PP PGIMS Rohtak. He further deposed that he also collected one sealed pullanda containing lavage and blood sample alongwith one sample seal of SK from the said Duty Constable & seized the said exhibits vide seizure memo Ex.PW22/A. 35.10. PW14 HC Jogender Kumar has deposed that on 15.05.2009, he was on duty as Mohrar Constable at PP PGIMS Rohtak, Haryana and on that day, PW9 Dr. Sandeep Kumar handed over him one sealed container containing SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 63 of 78 gastric lavage of Anita as well as one sealed container containing the blood sample of Anita (since deceased). He further deposed that both the said containers were sealed with the seal of SK and the concerned doctor had also handed over one sample of similar specimen to him. He further deposed that on 16.05.2009, he handed over the said pullandas to PW22 ASI Satbir Singh of Delhi Police, who seized the same vide seizure memo Ex.PW14/A & during investigation, IO of the present case had recorded my statement in this regard.

35.11. In the crossexamination conducted on behalf of the accused persons, PW14 has stated that he did not prepare any seizure memo of the aforesaid pullandas. He further stated that he did not lodge any DD entry in Roznamcha in this regard on 15.05.2009. He further stated that he himself did not record the statement of Dr. Sandeep Kumar (PW9). He further deposed that his duty hours as on 15.05.2009 were round the clock & on the intervening night of 14/15.05.2009, they had received an information from the concerned hospital regarding the admission of Anita. He further stated that he does not remember the exact time of the receipt of said information, however, he made an entry regarding the said information in Rukka Register. He further stated that he informed to PW22 ASI Satbir regarding the said entry made by him in Rukka Register. He further stated that he did not state the aforesaid fact in his statement U/s 161 Cr.P.C. nor handed over the copy of said Rukka Register either to PW22 ASI Satbir or to IO of the present case. PW14 has stated that one Duty Constable used to remain on duty in PGIMS Rohtak & he does not remember as to who was on duty as Duty Constable on that day. He further stated that in his presence, the said Duty Constable had not given any information at PP PGIMS, Rohtak.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 64 of 78

35.12. PW22 SI Satbir Singh further deposed that the concerned doctor opined Anita (since deceased) unfit for statement. He further deposed that Umed Singh (PW5), father of Anita, handed over one written complaint Ex.PW5/A to him and he returned back to PS Shahbad Dairy and deposited the aforesaid exhibits in Malkhana. PW22 further deposed that on 18.05.2009, Anita (since deceased) had expired in the aforesaid hospital and accordingly he collected the postmortem report of Anita & as per postmortem report, the cause of death of Anita was kept pending. He further deposed that on the basis of the complaint given by Umed Singh (PW5) and postmortem report, he prepared rukka Ex.PW22/B on 06.06.2009 and handed over the same to the concerned Duty Officer, who got registered FIR No. 136/09 and after registration of FIR, investigation was marked to him (PW22). PW22 further deposed that during investigation on 09.06.2009, HC Sunil went to the concerned hospital i.e. PGIMS at Rohtak alongwith the aforesaid exhibits with a request to seal the aforesaid exhibits in separate pullandas. He further deposed that accordingly, the concerned doctor had sealed the aforesaid exhibits in separate pullandas & HC Sunil returned back to PS and deposited the said separate pullandas in Malkhana. PW22 further deposed that On 10.06.2009, further investigation of the present case was marked to Inspector Vikram Singh as per the direction of SHO.

35.13. During crossexamination conducted on behalf of the accused persons, PW22 has stated that he did not demand any medical treatment documents of Anita (since deceased) from PW5 Umed Singh either on 14.05.2009 or on 16.05.2009. He has further stated that neither he recorded the statement of Duty Constable Inder Singh who got lodged DD No. 3A Ex.PW20/A at PS Shahbad Dairy nor enquired as to who informed Ct. Inder Singh about the SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 65 of 78 fact that Anita was admitted in hospital after consuming poison. He has admitted that the concerned doctor had opined Anita unfit for statement as on 16.05.2009. He has further stated that he made enquiries from PW5 Umed Singh, who stated to him that his daughter Anita (since deceased) was ill since 4 to 5 months, but PW5 Umed Singh did not disclose him about her treatment record. He further stated that PW5 Umed Singh did not state to him as to since when, Anita (since deceased) was unconscious. PW22 further stated that he did not enquire from PW5 Umed Singh as to how, he came to know that Anita (since deceased) had consumed poison.

35.14. PW8 Ct. Sandeep Kumar has deposed that on 19.05.2009, he was posted at PS Shahbad Dairy & on that day, he joined the investigation of the present case alongwith ASI Satbir Singh (PW22). He further deposed that on that day, he accompanied ASI Satbir Singh (PW22) to PGIMS Rohtak Haryana, where PW22 prepared the inquest papers in respect of deceased Ms. Anita w/o Joginder and got conducted postmortem on the body of Ms. Anita. PW8 has further deposed that after postmortem, PW22 ASI Satbir Singh handed over the body of Ms. Anita to her father Sh. Umed Singh (PW5). He further deposed that after postmortem, Dr. Ramjeet Kaur had handed over to IO one sealed pullanda containing Viscera sealed with the seal of FM and one sealed envelope alongwith sample seal, one sealed jar sealed with the seal of FM and one envelope sealed with the seal of FM alongwith sample seal, who seized the same vide seizure memos Ex. PW8/A and Ex. PW8/B. 35.15. PW4 Dr. Ramanjit Kaur, Autopsy Surgeon, PGIMS, Rohtak, Haryana, has deposed that on 19/05/2009, she was posted as Medical SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 66 of 78 Officer,PGIMS, Rohtak. She further deposed that on that day, she conducted postmortem on the body of Anita w/o Joginder Singh. She further stated that body was identified by Umed Singh and Jagdish (PW5 & PW10 respectively). She further deposed that body was brought by ASI Satbir Singh (PW22) of PS Shahbad Dairy, Delhi, and there was no mark of external or internal injury. PW4 has further deposed that in the stomach, she found mucosa hemorrhagic, he also found that liver and spleen were congested, kidneys were shrunken, in the thorax, he found the lungs were congested, in the brain, the membrane was congested. She further deposed that after postmortem, she prepared her detailed postmortem report no. 763/09 Ex. PW4/A. She further deposed that she deferred her opinion about the cause of death and she also observed that same will be given after the report of chemical analysis and histopathological examination report. PW4 further deposed that the dead body was handed over to the police with all belongings of Anita. She further deposed that postmortem report, 11 police papers, a sealed box having 10 seals of forensic department containing viscera of the deceased Anita for chemical analysis and one envelope with five seals of forensic department with forwarding letter and copy of postmortem report for chemical analysis, a jar bearing two seals of forensic department containing viscera of deceased for histopathological examination. She further deposed that an envelope with five seals of forensic department containing forwarding letter and copy of postmortem report for histopathological examination and sample of seals were handed over to the police. PW4 further deposed that on 22/09/2009, SHO PS Shahbad Dairy produced one application for seeking her opinion about the cause of death with FSL reports. She further deposed that she perused the FSL report Ex. PW2/A and histopathological examination report no. P469/09 and postmortem report Ex. PW4/A. She further deposed that histopathological report SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 67 of 78 is neither on the judicial record nor in the police file. PW4 has filed the copy of the histopathological report Ex. PW4/B. She further deposed that after considering the FSL report Ex. PW2/A, histopathological report Ex. PW4/B and postmortem report Ex. PW4/A, she gave her opinion about the cause of death of Anita (since deceased) vide Ex. PW4/C. PW4 deposed that the cause of death was organo phosphorous pesticides poisoning.

35.16. In the crossexamination, PW4 has stated that the cutting/overwriting on the date under her signature was made by her. She further deposed that some other date was mentioned before she overwritten the same as 22/09/2009. PW4 further stated that she did not make any separate initial for the overwriting. She further deposed that during postmortem of the body, whatever she observed, smell and seen same, was mentioned by her in her postmortem report. She further stated that she did not mention any smell, odour in her postmortem report when she opened the stomach of the body. She further stated that she did not mention any injection mark on the body. She further deposed that she did not mention any garlic smell or pungent smell in the stomach or in the body during the postmortem. She further deposed that the colour of the contents of the stomach was greenish brown and no foreign articles including any tablet or powder was found in the stomach of body. She further stated that she did not preserve the contents of intestine, sample of blood, urine and stool of the body.

35.17. PW24 SI Vikram has further deposed that on 16.06.2009, on his instruction, PW16 Ct. Suresh had collected the exhibits from MHC(M) and deposited the same at Pathology Department, PGIMS Rohtak, Haryana & he recorded the statement of PW16 Ct. Suresh in this regard. He further deposed that SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 68 of 78 on 19.06.2009, on his instruction, PW17 Ct. (now HC) Rajesh had collected the exhibits from MHC(M) and deposited the same at FSL, Madhuban, Karnal & he recorded the statement of PW17 Ct. (now HC) Rajesh in this regard.

35.18. PW2 Dr. Jgdish Ram, Deputy Director, FSL, Madhuban, Haryana, has deposed that he is M.Sc.(Chemistry), Ph.D and has about 26 years of experience in the field of chemical examination. He further deposed that three sealed parcels were received on 19/06/2009 vide RC no. 66/21/09 dated 19/06/2009 through Ct (now HC) Rajesh Kumar (PW17) no. 1036/OD. He further deposed that seal affixed on the parcels were found intact and tallied with the specimen seal as per forwarding authority letter. PW2 further deposed that parcel no.1 was sealed with the seal of "MCHR" containing gastric lavage of the deceased Anita, parcel no.2 was sealed with three seals of "MCHR" containing blood of gastric lavage of deceased Anita, parcel no.3 was sealed with the ten seals of "FM" containing four exhibits i.e. Ex. 3a,3b, 3c and 3d. He further deposed th at on chemical examination, organo phosphorous pesticide was detected in Ex. 1, 2, 3a, 3b and 3c & no common poison could be detected in 3d. He has proved his detailed report as Ex. PW2/A. 35.19. In the crossexamination conducted on behalf of the accused persons, PW2 has stated that the parcel which he received was containing organo phosphorous pesticide. He further stated that it is a group of pesticides which contains phosphate as an active ingredient. PW2 further stated that there are so many pesticides in this group like malathion, parathion, cslor periphors, DD VP mono croto phors etc. He further stated that he cannot tell as to which was the specific component in the material which he had examined. He further stated that SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 69 of 78 fatal dose of this pesticide is 2 to 5 milligrams per kg body weight. He further stated that he cannot say if a person who is suffering from liver or kidney disease, then there are more chances that the dose less than 2 milligrams per kg body weight be fatal. He further stated that the does of 2 to 5 milligrams per kg body weight is for the healthy person and the dose vary depending on the condition as well as sensitivity of the person/patient. PW2 has admitted that he did not analyze the quantity of the pesticides in the sample sent to him. However, he has voluntarily stated that they do not analyze the quantity of the pesticides as the presence of the pesticides in itself indicates that the person was administered or ingested with pesticides and if death occurs it is due to the pesticides.

35.20. In further crossexamination, PW2 has stated that the sample which he examined was gastric lavage, stomach and its contents,small and large intestine, liver, spleen and kidney. He further stated that he had not mentioned in the report how much parts of small and large intestine, liver, spleen and kidney was sent for examination to him. However, he has voluntarily stated that whatever was sent, was sufficient to examine the samples and give opinion.

35.21. During further crossexamination, PW2 has admitted that he had not mentioned the quantity of the pesticides found in the aforesaid parts. He has voluntarily stated that quantity in milligrams is sufficient to kill a person. He further stated that he cannot say whether the sample which he examined was having one milligram or more than 10 milligrams of the pesticides. In further cross examination, PW2 further stated that the poison organo phosphorous pesticide first of all affects the autonomous nervous system and further led the cardiac and respiratory arrest. He further stated that he cannot tell if somebody consumes SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 70 of 78 organo phosphorous pesticide then tears of red colour flow from the eyes of the person. He further stated that the main symptoms of aforesaid poisoning are headache, diarrhea, giddiness, saliva comes from the nostrils tinsed with blood, eyes become semi open, staggering gate, laboured breath, vomiting, lungs become edematous, brain congestion, stomach membrane become hemorrhagic and become congested, liver and kidney become congested and left ventricle of the heart will be found empty and right ventricle will be having direct congested blood etc. 35.22. During further crossexamination, PW2 further stated that during examination, he could not detect the colour of the pesticide. He further stated that the vomiting colour may be the same as of the colour of the pesticide. He further stated that he did not mention in the report the colour of the sample of kidney, liver, spleen and other samples of the body. He further stated that there was offensive smell coming from the gastric lavage and other parts of the body. He further stated that he did not mention any smell in his report and colour of any sample. However, he has voluntarily stated that they do not mention such facts in the report as per the procedure.

35.23. PW2 further stated in the crossexamination that if a person is standing in close proximity of the person who has consumed aforesaid pesticides and tried to smell, then he can smell the pungent smell. He further stated that the aforesaid all the symptoms will start occurring within the span of 20 to 30 minutes if a fatal dose has been taken by the patient. He has voluntarily stated that duration of time may vary from person to person as per the body strength of the person as well as quantity of the pesticides consumed. He has admitted that the SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 71 of 78 smell of organo phosphorous pesticides is so pungent that it cannot be given to a person in smell less edible substance as the person will come to known that something is mixed in the edible substance. He has voluntarily stated that it can be given in a small quantity to someone by mixing in alcohol or in some edible substance which is emanating the smell. He further stated that he cannot tell in how much time a person can recover from the consumption of the aforementioned pesticides. He has voluntarily stated that this is the field of doctor who conducts the postmortem. He further stated that he has knowledge of the aforesaid question but the answer of the question does not pertain to him, therefore, he is not answering. On the asking of the Court, PW2 has stated that if a person who has consumed the aforementioned pesticides survives up to 24 hours, there are chances of recovery and survival of the patient.

35.24. In the further crossexamination, PW2 has stated that the taste of the aforementioned pesticides is bitter. He has admitted that the criteria given in the book J.B. Mukherjee Forensic Medicines and Toxicology is that for the preservation of viscera and proper examination, following things are necessary: a. small intestine(at least of one foot) with its contents. b. half of liver or its 500 gms when weight is less than 500 gm. Then whole of liver.

c. Longitudinal half of each kidney.

d. portions or cut sections of both lungs from its different parts in cases of poisons when gets excreted through lungs.

35.25. During further crossexamination, PW2 has stated that the aforesaid conditions are the ideal condition of the examination of viscera but viscera can be examined properly and can lead to correct result even less than the aforesaid quantity is sent. He further stated that they are bound to examine the viscera even SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 72 of 78 if less quantity has been sent by the doctor who conducted the postmortem. He further stated that he did not mention in his report anywhere as to what was the quantity of samples examined by him and the portion of the particular parts of the body. He has further stated that they only come to know about this when they open the parcels and he did not mention the aforesaid details in his report as per the procedure. He further stated that he did not mention in his report regarding the presence of any other foreign substance in the samples except the aforementioned pesticide i.e. organo phosphorous. He further stated that he did not find any foreign articles in the stomach in the shape of tablet or powder. He further stated that during examination of kidney part, the examiner cannot detect if the kidney was suffering from any disease.

36. From the testimonies of aforesaid witnesses, it has been established on record that Anita (since deceased) died due to Organo Phosphorous. However, the quantity of said Organo Phosphorous pesticide could not be specified. Whether organo phosphorous was the sole cause of death of the deceased or coupled with kidney problem with which Anita (since deceased) was suffering, could not be established as PW2 Dr. Jagdish Ram has stated in his crossexamination that if a person who has consumed the aforementioned pesticides, survives up to 24 hours & there are chances of recovery and survival of the patient. It seems that the physical condition of Anita (since deceased) deteriorated due to her prolonged kidney problem.

37. Now, the question arises who had administered Organo Phosphorous pesticide/poison to Anita (since deceased).

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 73 of 78

37.1. There is no direct evidence on record to prove that accused persons namely Joginder Singh, Narender @ Nande, Ved Kaur @ Phoolo and Sanjita had administered Organo Phosphorous pesticide/poison to Anita (since deceased) except the allegation levelled by her parents. There is no specific mention of injuries on the body of the deceased. Hence, it cannot be said that the organo phosphorous pesticide was forcibly administered to the deceased and she made any resistance in absence of any injuries. PW2 Dr. Jagdish Ram has admitted in his crossexamination that the smell of organo phosphorous pesticides is so pungent that it cannot be given to a person in smell less edible substance as the person will come to know that something is mixed in the edible substance. He has also stated that if a person is standing in close proximity of the person who has consumed the aforesaid pesticide and tried to smell, then he can smell the pungent smell. Even PW4 Dr. Ramanjit Kaur has stated in the crossexamination that she did not mention any smell, odour in her postmortem report when she opened the stomach of the body or any injection mark on the body. She further stated that she did not mention any garlic smell or pungent smell in the stomach or in the body during the postmortem. Had any such substance would have been given to the deceased by the accused persons, she must have felt the pungent smell of such substance. Moreover, PW3 Umed Singh, PW10 Jagdish and PW13 Bhateri Devi have nowhere stated in their testimonies that when they reached inside the room of Anita, they felt any foul smell or odour or any pungent smell. Furthermore, nothing incriminating was seized from the spot i.e. house of accused persons. Admittedly, as already discussed in preceding paras, Anita (since deceased) was suffering from prolonged kidney problem and was unable to bear a child and the possibility that she might have herself consumed the said substance, cannot be ruled out.

SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 74 of 78

38. Now, the question arises whether presumption u/s 106 of Indian Evidence Act can be invoked against the accused Joginder Singh, Narender @ Nande, Ved Kaur @ Phoolo and Sanjita.

38.1. For the sake of convenience Section 106 of the Indian Evidence Act is reproduced herein below: " 106. Burden of proving fact especially within the knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him"

39. As already discussed in the preceding para, the death of deceased was due to organo phosphorous poisoning. However, it could not be established on record whether the death of the deceased was solely due to consumption of said pesticide or was due to prolonged kidney disease. Furthermore, the possibility of consumption of such substance by the deceased herself due to her prolong kidney disease and inability to bear any child after so many years of marriage, as discussed above, cannot be ruled out. It has only come on record that a quarrel took place between complainant side and accused persons. At the most, these are high incriminating circumstances, which are not sufficient to invoke presumption u/s 106 of Evidence Act against accused Joginder Singh, Narender @ Nande, Ved Kaur @ Phoolo and Sanjita. There is nothing on record that the deceased was having any bodily injury which could suggest that she was beaten or was forced to consume the poison or that there was any effort on her behalf SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 75 of 78 to resist any such force. The onus cannot be shifted on the accused side as there are various possibilities which cannot be ruled out. In such circumstances, invocation of Section 106 of Evidence Act would not be justified.

Whether offence u/s 323/34 IPC has been proved against accused Jogender Singh, Narender @ Nande, Ved Kaur @ Phoolo & Sanjeeta & whether offences u/s 323/341/506/34 IPC have been proved against accused Shamsher Singh @ Bablu

40. PW5 Umed Singh has deposed that Jethani of Anita mae telephone call at Bawana to her brother Babloo and he came there (i.e. at the matrimonial house of Anita) in the meantime and on reaching there, Babloo caught hold of him with neck and slapped him and threatened him to kill and asked them to go from there. He further deposed that due to this scuffle/altercation, he made a call to the police on 100 number. PW10 Jagdish has stated that in the meantime, the brother of accused Sanjeeta also came there and he had started quarreling with us and threatened to kill them. PW13 Bhateri Devi has deposed that accused Sanjeeta had made a phone call to her brother namely Babloo and upon the said call, said Babloo had reached there and started quarreling with them and had also caught hold of the neck of her husband Umed Singh.

40.1. As per case of prosecution DD no.18A was recorded with regard to aforesaid call, which was marked to PW22 ASI (now SI) Satbir Singh. However, PW22 SI Satbir Singh has nowhere deposed in his examinationinchief qua the proceedings conducted on 14/05/2009 and his testimony is silent in this regard. Furthermore, PW5 Umed Singh has deposed in his testimony that his statement SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 76 of 78 Ex. PW5/B was recorded. In said statement Ex. PW5/B, PW5 has claimed that no quarrel or beating had taken place with him, whereas in his statement Ex. PW5/A recorded on 16/05/2009, PW5 claimed that in the meantime, Babloo s/o Ishwar, Village Bawana, who is brother of Sanjeeta, came there and he abused them and when he asked him not to abuse, then Bablu caught hold of his neck and threatened to kill him and then he made call at 100 number. Even in his statement recorded u/s 161 CrPC dated 25/06/2009, PW5 claimed so.

41. From the testimonies of aforesaid witnesses, it can be safely inferred that they did not allege against accused Jogender Singh, Narender @ Nande, Ved Kaur @ Phoolo & Sanjeeta that they had voluntarily caused any hurt on the person of PW5 Umed Singh. Furthermore, keeping in view the different stands taken by PW5 in his aforesaid statements, his testimony cannot be said to be reliable with regard to accused Shamsher Singh @ Bablu. Admittedly, no injury was caused to PW5. There is no MLC on record. At the most, it can be said that there was altercation between the parties.

42. In a case which is based on the circumstantial evidence, the chain should be complete and there should not be any breakage and it should be proved that accused had committed the offences. The circumstances have not been established to the extent that it can be said that accused Jogender Singh, Narinder Singh, Ved Kaur and Sanjeeta had demanded any dowry from Anita (since deceased) or her family members and was subjected to cruelty for such demands. It has not been proved on record that accused Jogender Singh, Narinder Singh, Ved Kaur and Sanjeeta had administered any organo phosphorous poisoning to Anita (since deceased) as a result of which she died, though it has been proved on SC No. 58329/16 FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors. Page 77 of 78 record that she died due to Organo Phosphorous poisoning. It has not been proved on record that accused Jogender Singh, Narender @ Nande, Ved Kaur @ Phoolo & Sanjeeta had voluntarily caused any hurt on the person of PW5 Umed Singh. It has also not been proved on record that accused Shamsher Singh @ Bablu had wrongfully restrained PW5 Umed Singh and voluntarily caused hurt to him and further criminally intimidated by threatening PW5 Umed Singh to kill him. The prosecution has failed to prove its case against all the accused persons beyond all reasonable doubts. Hence, accused Jogender Singh, Narender @ Nande, Ved Kaur @ Phoolo & Sanjeeta are acquitted for the offences u/s 498A/302/323/34 IPC. Accused Shamsher Singh @ Bablu is acquitted for the offences u/s 323/341/506/34 IPC.

43. They are directed to furnish personal bond in the sum of Rs. 35,000/ each with one surety each in the like amount u/s 437A CrPC.



Announced through CISCO Webex APP
today i.e. on 21st of May, 2022                                         (Shivaji Anand)
                                                                  Additional Sessions Judge04
                                                               North District/Rohini Courts/Delhi




SC No. 58329/16    FIR no. 136/2009 PS Shahbad Dairy State Vs Jogender Singh & Ors.   Page 78 of 78

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

State vs . 1)Jogender Singh on 21 May, 2022