Rajasthan High Court - Jaipur
Ashima And Anr vs State Of Rajasthan And Anr on 15 May, 2018
Author: G R Moolchandani
Bench: G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 1615/2011
1. Ashima w/o Shri Pawan Goyal, aged 42 years, r/o Manu Marg,
Alwar (Raj.)
2. Pawan Goyal s/o Shri Ashok Goyal, aged 47 years, r/o Manu
Marg, Alwar (Raj.)
----Petitioners
Versus
1. State Of Rajasthan through PP
2. Beena Gupta w/o Late Shri Om Prakash Gupta, r/o Outside
Delhi Gate, Near Kilali-Ka-Kunwa, Alwar (Raj.)
Respondents
For Petitioner(s) : Mr. S.S. Hora with
Mr. Dharmendra Gurjar
For Respondent(s) : Mr. R.S. Raghav, PP
Mr. Anil Upman
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment reserved on : 2nd April 2018
Judgment pronounced on : 15th May 2018
Judgment
Petitioners have assailed order dated 21.06.2011
passed by Judge, Special Court, SC/ST (Prevention of Atrocities) Cases, Alwar, whereby cognizance order dated 20.04.2011 passed by CJM, Alwar in Criminal Case (Protest Petition) No.131/2011, has been upheld.
Brief facts of the complaint case relates to a protest petition, which was filed by Smt. Beena Gupta wife of Om Prakash Gupta against FR No.122/2008 arising out of FIR No.55/2008 registered with Police Station Kotwali, Alwar. Investigating Agency conducting thorough investigation, submitted a negative FR and (2 of 9) [CRLMP-1615/2011] did not find any offence to have been committed, earlier to it, an inquest was also conducted at the time of unnatural demise of deceased Om Prakash, who was found to have died after consuming organochloro-phosphorus poison since same was detected by FSL and pungent smell of the said poison was also observed, while the patient was admitted and such are the notings on the BHT [Bed Head Ticket].
Inquest concluded with a conclusion that nothing abnormal was found and after satisfying, the Investigating Agency submitted a report under Section 174 of CrPC that the death was suicidal and not homicidal, similar was the conclusion of Investigating Agency conducting investigation in respect of FIR No.55/2008 that nothing abnormal was found and the said death was found to have taken place in suicidal manner, though factum of suspicion that poison was given to the deceased while he was doing chaukidari (night surveillance) at the premises of the accused-persons was expressed.
The deceased was a rickshaw-puller, who used to ply rickshaw in the day hours and was occasionally assigned night surveillance i.e. job of chaukidar at the abode of petitioners, lot of evidence is there that deceased was not able to earn handsomely and somehow managing his livelihood by rickshaw-pulling besides doing job of night chaukidari.
In the wee hours of 9th August 2007, deceased was found under precarious condition and was found trembling, subsequently was sent to his house by the petitioners.
Evidence collected at the time of morgue inquest does show that the patient/deceased was given treatment by some (3 of 9) [CRLMP-1615/2011] physician and tablet Crocin with a capsule was given to him, surprisingly, no evidence of that physician, who gave primary treatment to the patient/deceased, has been recorded, even evidence of physician treating the patient/deceased at General Hospital, Alwar, has been recorded by the Court of CJM, Alwar, prior taking cognizance against the accused-persons.
Learned counsel for the petitioners has given thrust mainly upon the following :-
(i) The FIR has been lodged belatedly after a lapse of four and a half months, without any cogent explanation.
(ii) that the trial court has taken cognizance without examining all the prosecution witnesses, which was a condition precedent in matters relating to offences triable by sessions, as such, has ignored mandate of law as enshrined under the provisions of Section 202(2) of CrPC.
(iii) Initially at the time of inquest pertaining to morgue enquiry, no allegation was even suspected that the cause of death was homicidal but in order to usurp and extort money from the employer, a bogus story has been concocted to fulfill unlawful ends.
(iv) Nature of poison organo-phosphorus poison (Sulfas) is highly reactive, pungent, emanating offensive smell and its mixture with liquid, leaves fumes, so, it is not possible that it could be given to anybody in clandestine way, without notice of the victim and has relied upon following precedents :-
(i) Ram Gopal v. State of Maharashtra (1972) 4 SCC 625
(ii) Jasbir Kaur v. State of Punjab AIR 1993 SC 151
(iii) Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors.
(1998) 5 Supreme Court Cases 794
(iv) Rosy and Anr. v. State of Kerala and Ors. (2000) 2 SCC 230
(v) Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.
(2007) 12 SCC 1
(vi) Harishchandra Prasad Mani and Ors v. State of Jharkhand and Anr.
(2007) 15 SCC 494
(vii) Sonali Mukherjee v. Union of India (2010) 15 SCC 25
(viii) Vikas v. State of Rajasthan (2014) 3 SCC 321
(ix) Bhagwan Sahai Khandelwal & Ors. v. State of Rajasthan & Anr.
(2006) 2 WLC 239, it is further been contended that it is a fable that organo-phosphorus poison was administered in clandestine way, moreover serving of alleged cup of coffee in odd hours of midnight was also not feasible, in fact, deceased was having estranged (4 of 9) [CRLMP-1615/2011] marital relations and was not able to run family properly, so might have been compelled to take extreme step in order to get rid of his family agony.
Learned lower court, ignoring the mandate of law and ancillary relevant circumstances, without even examining medical expert, has acted at whims, while negating non-positive final report and taking cognizance against the petitioner and has acted in a hypothetical and hurried manner by directly issuing non- bailable warrants after taking cognizance even without adhering normal procedure of summoning through summon, which too is perverse and ample to indicate that learned trial court has acted hurriedly and perversely. Learned revisional court has also wrongly confirmed infirm and perverse findings of the trial court in an abrupt way in ignorance of law, hence the order/s impugned deserves to be set aside after allowing the petition, supplementing the argument it has also been added that the petitioner has even constrained to pay fiscal demands, so that aspect has also been met, therefore, the petition deserves to be allowed.
Section 202 sub-clause (2) of CrPC manifestly stipulates that in cases relating to sessions trial, magistrate is required to take entire evidence of all the witnesses arrayed/nominated, despite there being a list of thirteen witnesses, court below has erred by not recording evidence of all the prosecution witnesses and has merely recorded depositions of three witnesses, which is not the intent of law. Apex court in Rosy and Anr. v. State of Kerala and Ors. (supra) has observed as under :-
(5 of 9) [CRLMP-1615/2011]
41. If a case instituted on complaint is commuted to the Court of Session without complying with the requirements in Clause (1) of Section 208 of the Code how is it possible for the public prosecutor to know in advance what evidence he can adduce to prove the guilt of the accused? If no inquiry under Section 202 is to be conducted a magistrate who decides to proceed only on the averments contained in the complaint filed by a public servant (who is not a witness to the core allegation) and such a case is committed to the Court of Session, its inevitable consequence would be that the Sessions Judge has to axe down the case at the stage of Section 226 itself as the public prosecutor would then be helpless to state "by what evidence he proposes to prove the guilt of the aroused." If the offence is of a serious nature or is of public importance the consequence then would be miscarriage of justice.
42. In tins context it is useful to know the reason for incorporating such a proviso in Sub-section (2) of Section 202 of the Code. For that purpose a peep into the corresponding legal position which existed prior to the introduction of the new Code will be useful.
43. Under the Code of Criminal Procedure, 1898 (the old Code) a full-fledged magisterial inquiry was contemplated in the committal court and the prosecution was then required to examine all the witnesses at that stage itself. By Act 26 of 1955 Parliament abridged the above procedure and it was provided therein that in police charge-sheeted cases only the witnesses to the occurrence need be examined in the committal court (vide Section 207-A of the old Code).
Evidently, medical evidence, which was paramount to arrive at a positive prima facie conclusion, has not been recorded because BHT does not disclose that patient was conscious, rather it discloses that patient, while admitted in the hospital, was under
"unconscious condition" and within half-an-hour during that state, patient expired, at page nos.91 and 92 of Annexure-8, it is a manifest observation that patient was "unconscious" and frothing from mouth. At 10:00 AM patient was admitted in the hospital and expired at 10:30 AM on 9.8.2007, as such there is nothing to suggest that patient ever regained consciousness prior to expiry, which falsifies the testimony of all the three witnesses, who recorded that patient regained consciousness in the hospital and narrated that he was given a cup of coffee, which resulted his deterioration, it is an admitted position that deceased was brought (6 of 9) [CRLMP-1615/2011] in "unconscious" condition at his residence, while he was allegedly left there by the petitioner/accused family. Learned court below has failed to appreciate this vital aspect, while resorting to pass impugned order of taking cognizance.
Significant it is that a pungent foul emanating smell object, cannot be administered in a clandestine way and assertions to this effect are always doubtful. Supreme Court in Ram Gopal v. State of Maharashtra (supra), while dealing with a case of organochloro poison, has observed as under :-
Medical Jurisprudence - Poisoning - Consumption of pesticides or insecticides - Fatal dose of pesticide can be absorbed suicidally but it cannot occur accidentally or be used with intent to murder because of its repulsive taste or smell especially when taken with kerosene as solvent - A large quantity of poison such as D.D.T. in emulsion form would have to be imbibed before death may result - Many Chloro compounds have been synthesized as insecticides and pesticides which are available in market - If vomitting takes place immediately after administration of Organo Chloro compound in liquid form, traces of that compound will be found in the vomit.
Autopsy report does not reveal any injury on the corpus of the deceased, this aspect is fortified by the "parcha surat haal"
laash (memo of status of the corpus) that motbirs/panch also did not find any kind of injury on the body of the deceased, as such allegation pertaining to administration of poison, per force, does not sustain, more so, the law as dealt above, rules out theory of administration of organochloro-phosphorus poison clandestinely or per force, learned court below has ignored this aspect, while passing order to take cognizance. Supreme Court, while dealing this aspect in Sonali Mukherjee v. Union of India (supra), has observed as under :-
The only two other possibilities of the introduction of the tablets to Biswajit could be the forcible opening of his mouth by the accused and putting the tablets into his mouth and compelling him to swallow the same or, secondly, Biswajit himself taking the tablets. It must be noted here that when we see the (7 of 9) [CRLMP-1615/2011] medical evidence and more particularly, the injuries described by Dr. Sahay, there is no injury on the face of Biswajit. The injuries were on the other parts of the body and they were extremely insignificant injuries. At least the injuries nowhere suggest that his mouth was forced open and then the tablets were put into his mouth compelling him to swallow the same. That does not appear in the tenor of evidence of Subbash Dass (PW 5). For that matter, if we accept the evidence of Subbash Dass (PW 5) on the aspect as to what exactly happened on that night in that room, then there would be no other view possible except to exonerate Assadid Poddar (A-2) at least insofar as the introduction of the tablets to Biswajit is concerned. The witness very clearly says that all the time till the door was closed, Assadid Poddar (A-2) was outside and it was only Sonali Mukherjee (A-1), who was with Biswajit, and this aspect has further been dealt in Jasbir Kaur v. State of Punjab (supra):-
"..it is difficult to conclude that a deadly dose of poison was mixed in the tea. The deceased would not have consumed the entire tea if poison was present in the same since it would have been bitter and emitting unpleasant smell. That gives scope for a possibility of the deceased having consumed something later. Therefore the cause of death cannot directly be the result of consuming the tea. Thus there are many missing links in the prosecution case seeking to establish that it was a case of murder. Accordingly the appeal is allowed. The conviction and sentence passed against the appellant are set aside. If she is on bail, her bail bonds shall stand cancelled."
Testimony of medical expert is vital, which has not been recorded by learned trial court prior to passing of cognizance order, list of witnesses, which was furnished before the trial court, has got names of thirteen witnesses, which also contains name of one Dr. Phool Singh Choudhary, but this aspect was ignored by court below despite there being provisions under Section 202(2) of CrPC that it was incumbent upon the trial court to record evidence of all the witnesses pertaining to sessions trial, which has admittedly not been recorded. In Harishchandra Prasad Mani and Ors v. State of Jharkhand and Anr. (supra), Supreme Court has observed that cognizance based on suspicion is not sustainable and at-least some material indicating guilt of the accused, is necessary, likewise, criminal prosecution cannot stand to vindicate private vendetta without sufficient evidence and (8 of 9) [CRLMP-1615/2011] Supreme Court has held in Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. (supra) that criminal prosecution is not used as an instrument of harasment or for seeking private vendetta.
Besides learned trial court, while allowing protest petition has straight forwardly issued non-bailable warrants, which is also indicative that the court below has acted in a perverse and hurried way, since it was not needed under the provisions of law to issue non-bailable warrants at that stage. Supreme Court in Vikas v. State of Rajasthan (supra) has observed that court has duty to protect and promote citizen's right and liberty guaranteed under Article 21 of the Constitution of India and a speaking order is also obligatory to be passed by the court, which lacks in case under hand because for want of medical evidence, no speaking order could have been passed but learned court below, while falling under error, has not passed the order in speaking terms.
Adverting upon all the evidence and material available on the record and in view of the facts and circumstances as dealt and deliberated above, order impugned dated 21.06.2011 warrants interference, therefore, the instant petition is allowed and order impugned dated 21.06.2011 passed by Judge, Special Court, SC/ST (Prevention of Atrocities) Cases, Alwar, is quashed altogether with the order of learned trial court dated 20.04.2011, consequently, the cognizance in respect of FIR No.55/2008 registered with Police Station Kotwali, Alwar, and proceedings in furtherance thereto, are quashed and order of cognizance is set aside. It will not be out of context to observe that both the sides (9 of 9) [CRLMP-1615/2011] have asserted that even aspect of labour compensatory fiscal demand, has also been met with.
In the result, appeal succeeds and is allowed in aforesaid terms. The appended Stay Application No.1660/2011 also stands disposed of accordingly.
(G R MOOLCHANDANI),J db/40