Delhi District Court
State vs Anjan Mishra @ Pandit on 6 February, 2025
IN THE COURT OF MS. SHIVALI SHARMA, ADDITIONAL
SESSIONS JUDGE-03: WEST DISTRICT, THC, DELHI.
Digitally signed
CNR No. DLWT01-005918-2018
SHIVALI
SHARMA
by SHIVALI
SHARMA
Date:
SC No. 411-2018
State Vs. Anjan Mishra @ Pandit
2025.02.06
16:39:17
+0530
FIR No. 94-2018
U/s. 304 IPC
PS: Nangloi
JUDGMENT
1. Sr. No. of the case : 411-2018
2. Date of Committal to Sessions : 04.07.2018
3. Name of the complainant : Sh. Rahul
4. Date of Commission of Offence : 14.03.2018
5. Name and Parentage of Accused : Anjan Mishra @
Pandit S/o Sh.
Prabhu Nath Mishra
R/o Village
Kataibhoj, District
Aara, Bihar.
6.Offence complained of :U/s.
304 IPC.
7.Offence Charged : Accused
charged U/s.
304 IPC.
8.Plea of Guilt : Not guilty.
9. Final Order : Acquitted.
10.Date on which Order Reserved : 04.02.2025
SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 1/27
11. Date on which Order Announced : 06.02.2025
BRIEF FACTS AND REASONS FOR DECISION:
1. The case against accused Anjan Mishra is that on 14.03.2018 at about 12:00 Noon at Godown under the name and style of Ravinder Laxmi Timber situated at Gali no. 10, Rajdhani Park, Nangloi, Delhi, he inserted the nob of air pump in the anal canal of the deceased Sh. Ravinder and made the air pressure with the pump, due to which the deceased expired. The accused was arrested and chargesheeted for offence U/s. 304 IPC.
CHARGE:
2. Detailed arguments were heard on charge from Ld. Counsel for accused and Ld. Additional PP for State. Vide order dated 04.10.2018, charge was framed u/s 304 IPC against accused Anjan Mishra @ Pandit who pleaded not guilty to the charge and claimed trial. PROSECUTION EVIDENCE:
3. The prosecution led evidence and examined 19 witnesses in all to bring home the guilt against the accused.
4. PW-1 Rahul is the elder son of the deceased Ravinder, who deposed that on 14.03.2018 at about 12:00 Noon, while he was having food, he received a phone call of his father who stated that his condition was serious. He immediately rushed to the place where his father was working. He met Sh. Prakash, Muneem of the Godown who stated that his father had gone to washroom for natural call. After some time, his father came out of the washroom and he inquired SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 2/27 about his health. His father was having stomach pain. Also, the shirt of his father was slightly torn and same was dirty with dust of wood. Therefore, he gave his shirt to his father. Thereafter, accused Pandit and Sunil who also worked there, took his father to Sanjay Gandhi Hospital by motorcycle. PW-1 also went to hospital after 1-2 hours as his father assured him not to worry about him. His father remained admitted in Sanjay Gandhi Hospital and during his treatment, he expired on 16.03.2018.
5. He further deposed that on 15.03.2018, his father told him that he could get the company sealed as Pandit inserted the pump used for flowing the air in his anus. His statement Ex. PW-1/A was recorded by the police. He identified the dead body of his father vide identification statement Ex. PW-1/B. After the post mortem of his father, dead body was handed over to him and other relatives vide receipt Ex. PW-1/C.
6. PW-2 Vipin is a helper at Mahalaxmi Lumbus Timber Company situated at Assam Market, Nangloi. He did not remember the date, month and year of the incident. He deposed that on the day of incident, at about 10:00 AM, he was doing his job in the company. All the workers were busy in their respective works. He heard some noise when he was busy in his work. On hearing the noise, he rushed towards the place from where the noise was coming in the company. On reaching there, he saw that his co-worker Ravinder was lying there and he asked him the reason for the same. Ravinder told him that he was having gastric SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 3/27 pain. On the advice of his co-workers, ENO was given to Ravinder. However, Ravinder did not feel any relief and therefore, he was taken to a nearby clinic by Sunil and Asif. He also deposed that Ravinder did not disclose anything about the incident to him.
7. He was asked to identify Pandit but he was unable to do so. He was declared hostile as he was resiling from his earlier statement and was cross-examined by Ld. Additional PP for the State but he denied the suggestion that on the date of the incident, Pandit inserted the nozzle of the pipe of air compressor in the anus of Ravinder and made air compression with the same or that due to this reason, Ravinder started feeling stomach pain. He also failed to identify accused despite being specifically shown.
He identified his signatures on site plan Mark B but stated it was not prepared in his presence. He identified the air compressor from photographs Ex. PW-2/A (colly) as that being available in the company but denied the suggestion of being an eyes witness to the incident.
8. PW-3 Sunil is also a worker who worked with Ravinder in Mahalaxmi Lumbus Timber Company. He deposed that he did not remember the date, month and year of the incident. On the day of the incident, at about 10:00 AM, he reached at the above mentioned company/factory. He found that Ravinder was lying there and was feeling gastric pain. He suggested Ravinder to take ENO. Ravinder was given ENO but he did not feel any better. Therefore, Ravinder was taken to a nearby clinic by him and brother of SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 4/27 Thekedar. He was not able to recollect the name of brother of Thekedar but later on, he revealed his name as Wasim. On reaching the clinic, doctor sent him to fetch some juice. He brought juice which was given to Ravinder. The concerned doctor gave some medicines to Ravinder but his condition did not improve and thereafter, he was taken to Sanjay Gandhi Hospital. In his presence, Wasim did not disclose about the incident before the doctor. He was unable to identify any person by the name of Pandit.
9. He was also declared hostile as he was resiling from his earlier statement and was cross-examined by Ld. Additional PP for the State. He denied the suggestion that in his presence, Ravinder informed the doctor that Pandit inserted air compressor in his anus and made air pressure with it. He also failed to identify accused and stated that he had never seen him.
10. PW-4 ASI Devender Kumar is the Incharge, Mobile Crime Team, Outer District. He deposed that on 16.03.2018, on receiving a call from control room, he along with photographer HC Satyawan and Finger Print proficient Ct. Rahul reached at Khasra No. 49/4, Rajdhani Park, Nangloi, Delhi where SI Pramod Kumar and other staff also met them. He along with his team inspected the spot, took photographs and he prepared his report Ex. PW-4/A.
11. PW-5 SI Pramod Kumar is one of the IO to whom investigation was marked on 15.03.2018 after demise of injured Ravinder. He deposed that on 15.03.2018, on SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 5/27 receiving DD No. 37A, he along with Ct. Balraj reached at Sanjay Gandhi Hospital where he obtained the MLC of Ravinder who expired during the treatment. He shifted the dead body to the mortuary. He recorded statement of Rahul, son of deceased who was also present at the hospital. Thereafter, he came back to the PS.
12. He further deposed that on 16.03.2018, the post mortem of the dead body of deceased was conducted at the mortuary of SGM Hospital on his application in this regard. After the post mortem, the dead body was handed over to the relatives of the deceased for last rites. The doctor handed over sealed parcel stated to contain blood in gauze of the deceased along with sample seal which was seized by him vide memo Ex. PW-5/A1. The doctor handed over the postmortem report to him in which the cause of death was opined to be shock due to abdomen injury. Thereafter, he went to the spot i.e. Khasra No. 49/4, Rajdhani Park, Nangloi, Delhi where crime team had also reached and inspected the spot. He prepared the rukka Ex. PW-5/A. He came back to PS and handed over the rukka to Duty Officer and got the FIR registered. He again went to the spot where munshi of the factory namely Prakash met him and narrated the incident and at his instance, accused was arrested and personally searched vide memos Ex. PW-5/B and Ex. PW-5/C. He recorded disclosure statement of the accused Ex. PW-5/D and prepared site plan Ex. PW-5/E at the instance of co-worker of the deceased namely Vipin. He prepared sketch of nob of air compressor machine from SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 6/27 which air was filled by the accused in the rectum of the deceased which is Ex. PW-5/F. He took into possession the cylinder of the compressor machine, the motor affixed on the cylinder, the compressor, the fan and the plastic pipe connected with the cylinder vide seizure memo Ex. PW-5/G. He went to the nearby Shubham Clinic where he recorded statement of Dr. Varun Vishwas. Thereafter, he came back to PS along with accused and deposited the case property with MHC(M). During investigation, he recorded the statement of the witnesses.
13. On 12.04.2018, he made a request to Electrical Department, GNCT of Delhi at 5, Shyamnath Marg, Delhi for mechanical inspection of air compressor machine. On 15.04.2018, he was transferred from the PS and he submitted the case file with MHCR.
14. PW-6 HC Satyawan deposed that on 16.03.2018, he along with ASI Devender, I/C Crime Team reached at the spot i.e. Khasra no. 49/4, Rajdhani Park, Nangloi, Delhi where they inspected the spot and he took photographs of the spot from different angles from a digital camera. The photographs were proved as Ex. PW-6/A1 to Ex. PW-6/A12 and Ex. PW-2/A.
15. PW-7 Varun Vishwas deposed that he was doing medical practice for the last 7-8 years. Earlier, he used to work as a compounder. He was running a clinic by the name of Shubham Clinic. On 14.03.2018, in the afternoon hours, two persons came to him along with one more person who was having complaint of gas and stomach pain. He gave SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 7/27 one injection Aciloc and digene syrup for gas to the patient. Thereafter, they left.
16. PW-8 HC Rajesh deposed that on 16.03.2018, he joined the investigation with SI Pramod Kumar. They went to Khasra No. 49/4, Rajdhani Park, Nangloi, Delhi where the munshi of the factory namely Prakash met them who pointed out towards the accused who was apprehended. SI Pramod Kumar recorded statement of crime team officials and obtained the crime team report. SI Pramod recorded statement of other eye witnesses. SI Pramod Kumar prepared site plan at the instance of Vipin which is Ex. PW-5/E. Accused Anjan Mishra @ Pandit was arrested and personally searched vide memos Ex. PW-5/B and Ex. PW-5/C. IO recorded his disclosure statement Ex. PW-5/D. SI Pramod prepared sketch of the nob of air compressor which is Ex. PW-5/F and he took into possession the cylinder of the compressor machine, the motor affixed on cylinder, the compressor and plastic pipe vide seizure memo Ex. PW-5/G.
17. PW-9 Prakash deposed that he was working at Maha Laxmi Pvt Ltd company situated at Aasam Market, Rajdhani Park Metro Station as a Munim since 2015 and used to reside at the godown of the company. On 14.03.2018 at about 09:45 AM, he left the godown for market and when he returned back at about 10:45 AM, he saw that labours of the company had gathered outside the godown. When he enquired about the reason, the labours pointed towards one labour namely Ravinder and informed SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 8/27 that he was having stomach pain. He asked them to give him some medicine. Thereafter, Sunil and accused Anjan Mishra who were also working as labour in their company took Ravinder to Bangali Doctor. After sometime, they returned back and Ravinder took rest near him for half an hour but his condition was not good. Ravinder was taken to Sanjay Gandhi Hospital at about 01-01:30 PM by Sunil and accused Anjan Mishra where he was admitted. After some time, Sunil and Anjan Mishra returned back to the factory as son of Ravinder namely Rahul and nephew of Ravinder reached the hospital. On 15.03.2018, he came to know that Ravinder had expired. Later on, police came to the godown and made enquiries and also arrested accused Anjan Mishra. He produced the rough record of the attendance and leaves of various labours working in the factory which was maintained by him which is Ex. PW-9/X. He identified the compressor machine installed in the factory from photographs Ex. PW-6/A4 to Ex. PW-6/A8 and also photographs of the different installations in the company area which are Ex. PW-6/A10 to Ex. PW-6/A12.
18. PW-10 Kanti Lal deposed that he was running a timber cutting factory at 49/4, Aasam Gali, Timber Market, Near Rajdhani Park, Nangloi, Delhi. In the month of March, 2018, probably it was 14th or 15th, he received a call from the police and he was called at his factory. He reached there and came to know that air was blown in the stomach of one of the worker namely Ravinder by air compressor SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 9/27 machine by some other staff. Prakash used to maintain the attendance register of the regular workers. No employment letters were issued to the workers. Prakash used to send the attendance of the workers and he used to pay the salary in cash to the workers. He had no approval/license/permission or authorisation to run the aforesaid work from the place from any authority. He deposed that he cannot say that it was within his knowledge that he should have approval or authorisation to carry out the work. There were around 5-6 persons who were under his employment on daily basis.
19. PW-11 Satish Kumar is the nephew of deceased Ravinder. He deposed that on 14.03.2018, at about 09:00 PM, his father called him on his mobile phone and informed that his uncle namely Ravinder was unwell. He made a call to his cousin Rahul, son of his uncle who told him that his uncle was admitted at SGM Hospital. His uncle was operated on the next day, however, he was declared dead in the evening. On 16.03.2018, he identified the dead body of his uncle Ravinder in the mortuary of SGM Hospital vide his statement Ex. PW-11/A. After the post mortem, dead body was handed over to them for last rites.
20. PW-12 Riyaz and PW-13 Javed are the co-workers of deceased Ravinder, who deposed that in the month of March, 2018, they got the employment at Mahalaxmi Timber company, Rajdhani Park, Nangloi, Delhi. They further deposed that they did not know anything about the present case. They were declared hostile as they were SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 10/27 resiling from their earlier statement and were cross- examined by Ld. Additional PP for the State. However, they failed to identify accused Anjan Mishra and denied any knowledge about the incident.
21. PW-14 ASI Surender Singh is the Duty Officer who deposed that on 16.03.2018, SI Pramod handed over one rukka to him, on the basis of which he registered the FIR, copy of which is Ex. PW-14/A. After registration of FIR, he handed over copy of FIR and original rukka to SI Pramod after making endorsement on the rukka Ex. PW-14/B.
22. PW-15 HC Balraj deposed that he was on emergency duty along with SI Pramod on 15.03.2018, on receiving DD No. 37A, he along with SI Pramod went to SGM Hospital where SI Pramod collected MLC of deceased Ravinder and thereafter, his dead body was shifted to the mortuary. After the dead body was identified by the relatives, post mortem was conducted and after the post mortem, dead body was handed over to the relatives for last rites.
23. PW-16 ASI Malkhan Singh deposed that on 16.03.2018, he was posted at PS Nangloi as MHC(M). On that day, SI Pramod deposited one sealed parcel along with sample seal with copy of seizure memo at the malkhana. He also deposited one air compressor machine at the malkhana with copy of seizure memo. He made entry in register no. 19 of malkhana vide serial no. 2238, copy of which is Ex. PW-16/A (OSR).
24. PW-17 Farooq deposed that on 14.03.2018, he was SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 11/27 working at Mahalakshmi Timber Co. Khasra No. 49/4, Rajdhani Park, Nangloi, Delhi. On that day, accused Anjan Mishra and deceased Ravinder were also working in the same factory. At about 10:00 AM, he came to know that Anjan Mishra has filled air in the anus of Ravinder with air compressor installed in the factory, due to which he became unwell and his stomach inflated. One Sunil and brother of contractor Yasin, namely Wasim took Ravinder to a nearby hospital. They brought Ravinder back to the factory. In the afternoon, the condition of Ravinder again deteriorated and he was again taken to Sanjay Gandhi Hospital. Later on, he came to know that Ravinder had expired.
25. PW-18 Sh. Kaushik Sadhukhan is the Inspector of Factories. He deposed that on 09.07.2018, on the request of SHO PS Nangloi, he inspected the air compressor at police malkhana of PS Nangloi and he found during the inspection that air compressor machine was functional and prepared the report (Ex. PW-18/A) and submitted the same to SHO.
26. PW-19 SI Sunil deposed that on 15.04.2018, investigation of the present case was marked to him. He perused the file as the accused was running in JC and investigation of the case was complete except the inspection regarding the air compressor, he prepared the chargesheet and filed the same before the Court. He further deposed that on 09.07.2018, Sh. Kaushik Sadhukhan, Assistant Director (ISH), Directorate of Industrial Safety and Health, Labour SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 12/27 Department, GNCT of Delhi inspected the air compressor on his request letter Ex. PW-19/A and gave his report Ex. PW-18/A.
27. In addition to the above evidence, the accused admitted u/s 294 CrPC the genuineness of the documents that are MLC No. 3982 of Ravinder dated 15.03.2018 and post mortem report of deceased Ravinder prepared by Dr. Anurag Thapar and accordingly, the relevant witnesses to prove these documents were dropped by Ld. Additional PP for the State.
STATEMENT OF ACCUSED:
28. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to accused Anjan Mishra @ Pandit and his statement was recorded U/s. 313 CrPC on 20.03.2024. He denied all the incriminating evidence and asserted that he was innocent and falsely implicated in the present case. He deposed that although, death of deceased Ravinder who was working with him is a fact, but he had nothing to do with his death. He was falsely implicated in this case by the IO to work out the case.
DEFENCE EVIDENCE:
29. Accused did not avail the opportunity to lead any evidence in his defence.
30. Final arguments have been heard and record carefully perused.
JUDICIAL RESOLUTIONS:
31. It is a settled proposition of criminal law that prosecution SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 13/27 is supposed to prove its case on the judicial file by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot derive the benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and the onus to prove the case against the accused beyond reasonable doubts never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
32. In the present case, accused is charged with the offence u/s 304 IPC.
33. Section 304 IPC provide punishment for culpable homicidenot amounting to murder. The offence of culpable is defined in Sec. 299 IPC and provides that whoever causes death by doing an act with the intention of causing death, or with the intention of cvausing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the genus and murder is its species. All kinds of culpable homicide which are not covered under the definition of murder as provided in Section 300 IPC or fall within any of the exceptions to that Section are punishable as culpable homicide not amounting to murder punishable under 304 IPC.
34. Now, let us apply the above discussed definitions of the offences with which accused has been charged to the facts SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 14/27 of the present case.
ARGUMENTS ON BEHALF OF ACCUSED
35. It is argued by Ld. Defence counsel that as per the case of the prosecution deceased Ravinder had expired as accused Anjan Mishra @ Pandit had inserted nozzle of air compressor in his anus and pumped air with pressure inside. However, there is no eye witness to the alleged incident. Various public witnesses/co-workers of the deceased as well as accused Anjan Mishra have been examined by the prosecution, however, none of them deposed being an eye witness to the reported incident. The testimony of all the public witnesses examined by prosecution is consistent on the point that on the date of incident the deceased was having stomach pain on account of some gastric problem due to which he was rushed to the doctor and thereafter to hospital. As per the deposition of public witnesses/ co-workers of the deceased Ravinder, he was initially given eno for his gastric problem and thereafter taken to a nearby clinic run by Varun Vishwas who has been examined as PW-7. Even PW-7 deposed that he had given one injunction of Aciloc and digene syrup to the patient as he was complaining of gas and stomach pain. PW-7 or the treating doctors at DDU hospital did not depose that deceased Ravinder had informed them about inserting air pressure pump and blowing air inside his anus by anyone. His post-mortem report (Ex.C1) does not record any external injury on his anus which might have been caused due to forcible insertion of the nozzle of the SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 15/27 air compressor. Similarly, there are no tears found on his wearing lower to indicate forcible insertion of nozzle of air compressor. The air compressor which has been seized by the IO from the factory and is alleged to have been inserted in the anus of the deceased has not been sent for FSL examination to collect any DNA evidence of the deceased from the nozzle of the same. In these circumstances, the entire case of the prosecution that the reason for the death of deceased Ravinder was insertion of nozzle of air compressor inside his anus by the accused and forcibly putting air pressure inside falls on its face. Although, it is correct that as per post-mortem report (Ex.C1) the death of the deceased was caused due to septicemic shock as a result of abdominal injury due to blunt force/ object impact, however, merely this opinion is not sufficient to hold that the alleged injury was caused by the accused in the manner as described in the case of the prosecution. Thus, the evidence on record is highly insufficient for convicting the accused in the present case. Hence, it is prayed that the accused be given the benefit of doubt and be acquitted in the present case.
ARGUMENTS ON BEHALF OF ADDITIONAL PP FOR THE STATE:
36. Per contra, it is argued by Ld. Additional PP for the State that the prosecution has duly proved on record its case against the accused beyond any reasonable doubt. PW-1 Rahul/ son of the deceased has duly deposed that deceased had informed him regarding the incident prior to his death.
SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 16/27MLC of the deceased bearing No. 3982 dated 15.03.2018 prepared at SGM Hospital also records that patient had informed the concerned doctor while on OT table regarding insufflation of air via pump via rectal route by unknown friend/ colleague. Both these statement of the deceased made prior to his death clearly talk about the reason of the injury sustained by him which has resulted in his demise. Even his post-mortem report gives opinion that his death was caused due to abdominal injury thus fortifying the case of prosecution in this regard. In addition to this, PW-17 Farooq has categorically deposed that on 14.03.2018 at about 10:00 Am he had come to know that Anjan Mishra has filled air in the anus of Ravinder with air compressor installed in the factory due to which he became unwell and his stomach got inflated. The accused has not disputed his presence in the factory at the time of incident. It is also not disputed that deceased Ravinder got unwell while in factory on the date of the incident. It is also an admitted fact that there was an air compressor in the factory which was later on seized by the IO. All these admitted facts coupled with the testimonies of PW-1 Rahul, PW-17 Farooq, MLC of the deceased as well as his postmortem report Ex.C-1 are sufficient to convict the accused for the offence charged against him. Merely because some of the public witnesses have turned hostile, it is not sufficient to doubt the evidence that has come on record against the accused. It is submitted that considering the over all evidence on record, the accused is SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 17/27 liable for conviction for offence u/s 304 IPC as charged against him.
FINDINGS:
37. I have heard the arguments at length and have carefully perused the record.
38. From the record, it is amply clear that this is not a case of direct evidence as no eye witness has deposed having seen accused Anjan Mishra @ Pandit inserting nozzle of the air pressure pump in the anus of the deceased and pumping air with pressure leading to his demise. Accordingly, from the evidence that has come on record, the present case has to be dealt with as a case based on circumstantial evidence.
39. It is a well settled law 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 for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
40. In the landmark decision of the Apex Court in Sharad Birdidhichand Sarda Vs. State of Maharashtra AIR 1984 Supreme Court 1622, the law relating to circumstantial SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 18/27 evidence has been scrutinized by the Apex Court. The relevant findings are reproduced herein under:-
152. A close analysis of this decision would show that the following condition 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 Sahebrao Bobade V. State of Maharashra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) 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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 19/27 a case based on circumstantial evidence."
41. Let us now examine the evidences that have come on record and the circumstances that have been proved against the accused.
42. It is duly proved on record that deceased Ravinder and accused Anjan Mishra @ Pandit were working at Mahalakshmi Timber Company situated at Assam Market, Nangloi and were on duty on the date of incident. This fact has been duly proved by the testimonies of PW-1 Rahul, PW-2 Vipin, PW-9 Prakash and PW-17 Farooq. This fact is even otherwise not disputed by the accused and is admitted by him in his statement recorded u/s 313 CrPC.
43. It is also duly proved on record beyond any reasonable doubt that on the date of incident i.e. 14.03.2018, while deceased Ravinder was in the office, his condition deteriorated and he was having some issues in his stomach for which he was taken to doctor and thereafter, to SGM Hospital. This fact is also duly proved on record through testimonies of PW-1 Rahul, PW-2 Vipin, PW-3 Sunil, PW-7 Varun Vishwas, PW-9 Prakash and PW-10 Kanti Lal, PW-12 Satish Kumar and PW-17 Farooq. This fact is also not disputed by accused Anjan Misha@ Pandit.
44. The third circumstance that is duly proved on record beyond any reasonable doubt is that deceased Ravinder had expired on 15.03.2018 at SGM Hospital and his post mortem was conducted vide PM report 229/2018 dated 16.03.2018 as per which his death was caused due to SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 20/27 "septicemic shock as a result of abdominal injury due to blunt force/object impact. All injuries are ante-mortem in nature and possible in the manner as alleged". This fact is duly proved through the post mortem report Ex. C-1 which has been admitted by the accused u/s 294 CrPC.
45. Now, the question that arises for consideration is whether the abdominal injury caused to the deceased resulting in his demise was caused by accused Anjan Mishra in the manner as alleged by the prosecution. Even at the cost of repetition, it is reiterated that there was no eye witness who had seen accused Anjan Mishra inserting pressure in the body of the deceased by putting nozzle of the air pressure of the pump in his anus. At least no such witness has deposed this fact before this Court, even if there was one. All the public witnesses/co-workers of the deceased and accused have deposed that they had not witnessed any such incident. Although, PW-17 Farooq stated that he heard about the same but he is merely a hearsay witness to the alleged manner of commission of offence by accused.
46.In addition to this, there is no noting of any injury on the anus of the deceased due to forcible insertion of the nozzle of the air pressure pump. The MLC No. 3982 dated 15.03.2018 of the deceased is silent on this aspect and does not note any such injury on his person. Similarly, the post mortem report Ex. C-1 does not record any external injury on the body of the deceased which might have been caused in the manner as put forth by the prosecution. As per the case of the prosecution, the deceased was firstly taken to a SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 21/27 nearby clinic and was examined by Sh. Varun Vishwas who has been examined by PW-7. Perusal of testimony of PW-7 shows that when the deceased was taken to him, he had merely complained about gas and stomach pain and was given medicines for digestion and acidity i.e. injection aciloc and Digene syrup. Neither he had complained about any forcible insertion of air pressure inside his body through rectal route nor any complaint of any injury on his anus was reported by deceased Ravinder to PW-7 Varun Vishwas.
47. There is also no evidence on record to show that in any manner, the clothes of the deceased were forcibly removed or torn by the accused for inserting the air pressure pump inside the rectum of the deceased.
48. It is also noteworthy that there is no collection of any DNA evidence from the seized air pressure pump to prove that the same was used for putting air pressure inside the rectum of the deceased. Thus, the evidence on record is not consistent with the theory of the prosecution that the accused had forcibly inserted the air pressure pump inside the anus of the deceased and put the air inside him with pressure resulting in his demise.
49. Further, the prosecution is relying upon the noting made on MLC of the deceased bearing no. 3982 dated 15.03.2018 by the concerned doctor regarding the reason for his medical condition. The noting is reproduced hereinunder for the sake of clarity:
"Patient came to SGMH Casualty with history of pain SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 22/27 abdomen and distension X 1 day. Patient was diagnosed with hollow viscus perforation and peritonitis and planned explanatory laparotomy under high risk after resuscitation. Later on, patient gave alleged history while on OT table, insufflation of air via pump via rectal route by unknown friend/colleague. Operation was done and patient was shifted to ICU where he expired at 04:45 PM".
50. His MLC is signed by Dr. Vivek, SR Surgery but he has not been examined by the prosecution to prove this noting on the MLC. Accordingly, no evidence has come on record regarding giving of this statement by the deceased prior to his surgery to the concerned doctor. Although, it is correct that the accused had admitted the MLC of the deceased u/s 294 CrPC vide his statement dated 09.12.2019 but this admission of the MLC is not sufficient to hold that the alleged statement noted on the MLC of the deceased has also been proved on record beyond any reasonable doubt. Thus, the said noting on the MLC cannot be read as a dying declaration made by the deceased against the accused. It is a settled law that a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof was in a fit medical condition to make the statement before it can be made the sole basis for convicting a person. In the present case, the alleged dying declaration noted on the MLC of the deceased is neither duly proved on record as the concerned doctor has not been examined nor is a reliable statement as the name of the assailant has not been given to the concerned doctor by the deceased despite the fact that the accused was known to the deceased being a SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 23/27 co-worker. Even otherwise, from the MLC No. 3982 dated 15.03.2018, it is amply clear that the MLC was prepared and the alleged history was noted not at the time of first examination of the deceased but after his demise after his surgery. This also clouds the alleged dying declaration with doubt. Thus, it is not considered safe to rely upon the alleged dying declaration noted in MLC No. 3982 and make it the sole basis of conviction of accused without any corroboration.
51.The second argument of Ld. Additional PP for the State is regarding a dying declaration given by the deceased to his son PW-1 Rahul who has clearly deposed that on 15.03.2018, his father had told him that he could get the company closed as Pandit had inserted the pump used for flowing air in his anus. It is argued that this deposition of PW-1 clearly suggest that the cause of the death of the deceased was insertion of air with pressure inside his rectum by accused Anjan Mishra with air pressure pump.
52. I have carefully perused the statement of PW-1 to this effect. Admittedly, PW-1 had met the injured in the afternoon of 14.03.2018 when his father was feeling unwell. PW-1 had accompanied the deceased to the hospital on 14.03.2018. However, his statement was recorded only after demise of the deceased on 15.03.2018 at about 05:00 PM. There is no explanation as to why his statement was not recorded earlier when the deceased had informed him regarding the alleged incident on 15.03.2018 at 04:00 AM itself. In addition to this, as per the post SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 24/27 mortem report, the death of the deceased was due to septicemic shock as a result of abdominal injury due to blunt force/object impact. However, as per the death summary which is a part of judicial record, the deceased had suffered two cardiac arrests while on the operation table. Moreover, the alleged weapon of offence i.e. air pressure pump had not been examined by the concerned doctor for any subsequent opinion regarding the cause of death of the deceased. In these circumstances, mere statement of PW-1 to the effect that his father had told him about the incident in itself is not considered sufficient for convicting the accused in the present case. This is more so as there is no connecting evidence to prove that any kind of physical injury was caused to the deceased due to forceful insertion of the air pressure pump in his rectum. The material part of the alleged dying declaration of the deceased i.e. insertion of air pressure pump by the accused inside his anus and forceful insufflation of air inside his body has remained unproved on record due to the reasons discussed above. The statement is also clouded with doubt considering the statement of PW-1 who deposed that on that date of incident when he reached the factory, his father informed him about his stomach pain and was sent to clinic with accused Anjan Mishra @ Pandit. It is difficult to accept that a person who had been assaulted by another will go to doctor with the assailant without showing any resistance. Accordingly, the alleged dying declaration which has come on record after the demise of the SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 25/27 deceased in the form of a statement made to his son by the deceased regarding the injuries sustained by him is not considered sufficient and reliable for making a sole basis of convicting the accused. The alleged dying declaration has neither been made at the earliest opportunity nor finds a material corroboration from a prompt FIR, medical evidence and circumstances of the case. Although, it is correct that a dying person is not expected to make a false statement to implicate innocent persons but it is also a settled law that an accused is presumed to be innocent unless his guilt is proved on record beyond any reasonable doubt. In the present case, the entire case of the prosecution is clouded with doubt as there is no physical evidence of the alleged incident either collected by the IO in the form of DNA evidence from the air pressure pump or produced on record in the form of injuries on the rectum of the deceased. In these circumstances, I have no hesitation in holding that the prosecution has miserably failed to prove on record the offence charged against the accused persons beyond any reasonable doubt. The circumstances proved on record are not consistent only with the hypothesis of the guilt of the accused Anjan Mishra @ Pandit.
CONCLUSION:
53.In view of the reasons given above, I have no hesitation in holding that the prosecution has miserably failed to prove on record the offence u/s 304 IPC as charged against the accused Anjan Mishra @ Pandit beyond any reasonable SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 26/27 doubt. The benefit of the doubts on the case of the prosecution as detailed above has to be given to the accused. The evidence on record is highly insufficient for convicting accused for offences U/S 304 IPC charged against him. Thus, considering the overall evidence on record, the accused Anjan Mishra @ Pandit is acquitted for the offences u/s 304 IPC.
54. File be consigned to Record Room.
Digitally signed by SHIVALI Announced in the open court SHIVALI SHARMA Date: SHARMA 2025.02.06 Dated 06.02.2025 16:40:02 +0530 (SHIVALI SHARMA) ASJ-03/WEST/THC/DELHI/06.02.2025 SC No. 411-2018 State Vs. Anjan Mishra @ Pandit FIR No. 94-2018 Page No. 27/27