Delhi District Court
Smt Saroj vs State (Govt. Of Nct Of Delhi) on 14 September, 2017
Criminal Revision No.189/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 189/2017
Under Section : 302 IPC
CC No. : 54832/2016
FIR No. : 190/2016
Police Station : Mayur Vihar Phase - 1
CNR No. : DLET01-009026-2017
In the matter of :-
1. SMT SAROJ
W/o. Late Jagdish Lal Oberoi.
R/o. 218, Second Floor,
Chand Nagar, Delhi.
2. SH JATIN
S/o Late Jagdish Lal Oberoi.
R/o. 218, Second Floor,
Chand Nagar, Delhi. ..........PETITIONERS
VERSUS
1. STATE (GOVT. OF NCT OF DELHI)
2. SMT. USHA OBEROI
W/o. Late Prem Nath Oberoi,
R/o 18/47, Gali no. 23,
Old Govind Puri,
Chander Nagar, Delhi. ..........RESPONDENTS
Date of Institution : 05.08.2017
Date of Receiving : 08.08.2017
Date of reserving order : 05.09.2017
Date of pronouncement : 14.09.2017
Decision : Petition is allowed and trial
court order dated 08.05.17 is
set aside.
ORDER
1. This revision petition is directed against the order dated 08.05.2017, passed by trial court in a case titled as State v. Saroj & Ors, bearing Page 1 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.189/2017 CC No. 54832/2016, under Section 302 IPC, PS Mayur Vihar Phase- I. Vide impugned order, the trial court did not accept the cancellation report and summoned petitioner no. 1 i.e. Smt. Saroj and petitioner no. 2 i.e. Sonu @ Jatin.
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that petitioners herein above were summoned as accused persons in the cancellation report filed by State and are facing trial in this case. GROUNDS : -
3. Being aggrieved of the impugned order dated 05.07.2017, petitioner has preferred this revision petition on the following grounds :-
● That the trial court did not appreciate the fact that the deceased died natural death, which fact is confirmed in the postmortem report, wherein the cause of death was acute mycardical ischemio over preexisting coronary artery disease i.e. a natural death and as such the Ld. MM failed to appreciate that the deceased was having pre-existing coronary artery disease and on account of that he died. Thus, trial u/s 302 could not be conducted against the petitioners.
● That the trial court failed to appreciate that as per CFSL's report no common pesticides, drug, alkaloid, metallic and volatile poison was detected in the viscera of deceased and the casue of death was given by the doctor only after perusing the CFSL report and report of doctor is conclusive.
● That the trial court failed to appreciate that there was litigation pending between the complainant/respondent no. 2 and the deceased, which was admitted by the complainant/respondent no. 2 herself before police on 14.08.2014.
● That the trial court issued summons to the petitioners for facing Page 2 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.189/2017 trial as accused on the basis of last seen theory. However, it failed to appreciate that deceased used to go at his brother's house on every Sunday and on 03.08.14, he went to the house of the petitioners where he took lunch and stayed till 2.30 p.m. and left. Admittedly, deceased was a chronic alcoholic and this fact was also admitted by the complainant.
● That the complainant lodged complaint for the first time only on 26.09.14, which was recorded vide DD no. 41B, which was transferred to PS Mayur Vihar.
● That the trial court failed to appreciate that the complainant/respondent no. 2 leveled false and frivolous allegations against both petitioners as well as against sister-in-law Smt. Geeta Grover, brother-in-law Sh. Inder Grover and Sh. Pavan Oberoi.
● That the trial court failed to appreciate that there was dispute regarding the property i.e. Shop no. 577, Shradhanand Market, Lahori Gate, Delhi between the complainant and petitioners, which culminated in a series of litigation between the parties. ● That the trial court failed to appreciate that there was no legally admissible evidence against the petitioners, which could connect them with commission of crime u/s 302 IPC.
ARGUMENTS :-
4. This revision is against the summoning order passed against the petitioners, thereby rejecting the cancellation report filed by State and the submissions of ld. counsel for petitioner had been that the FIR in the present matter was registered u/s 156(3) Cr.P.C. but police filed cancellation report on the basis of postmortem report and other ingredients. It was further argued that in the initial statement dated 13.08.2014 complainant did not make any allegations, rather all the Page 3 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.189/2017 allegations were made by the complainant only in complaint dated 26.09.14. It was further argued that in MLC injury is shown as abrasion and tenderness. Ld. Counsel referred to postmortem report stating that no abnormality was found in the head of deceased, still ld. MM talked about the head injury. He further submitted that ld. MM applied last seen theory, though as per case of complainant deceased had come to house of petitioner on 03.08.14 at Paharganj and he remained there till 2.30 p.m. He left that house on same day and he was found lying unconscious next day i.e. on 04.08.14, at Trilok Puri. There was big distance between Paharganj and Trilok Puri and there was huge gap of time as well. Therefore, last seen theory could not be invoked. Ld. counsel further referred to statement of Sewa Singh, who had stated that he had seen the deceased leaving house of petitioner on 03.08.14.
5. Per contra, counsel for respondent/complainant argued that deceased was missing since 03.08.14 and DD no. 37A was lodged on 04.08.14 by the complainant. Complainant made inquiry from everyone, including petitioner but petitioner told complainant that deceased did not visit his place. On 13.08.14, PW-1 had called complainant to inform that body of deceased was lying in LBS Hospital. However, the question arises that how could police come to know about mobile number of the petitioner, so as to inform him. Ld. counsel further submitted that X-ray of head of deceased was not conducted out of conspiracy. He referred to motive on the part of petitioner to eliminate the deceased stating that within 14 days of death of deceased, petitioner prepared forged documents of property against which another FIR of cheating has been registered. He further submitted that doctor did not give opinion if cardiac arrest was caused due to poor condition of deceased or it was natural cardiac Page 4 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.189/2017 arrest. He further submitted that complainant was not informed, so as to avoid possibility of deceased being shifted to good hospital and to get him treated. Even IO did not collect any document to show if petitioner no. 1 was in Haridwar on 04.08.14. Ld. counsel further referred to death summary of deceased to submit that it is silent to say if head injury accelerated the reason for death. According to ld.
Counsel, petitioner knew about pre-existing disease of deceased. He further submitted that prior to death, there was no property dispute but after death all of a sudden forged documents were prepared to dispose of the property.
APPRECIATION OF ARGUMENTS, FINDINGS & DECISION :-
6. There is no doubt about the law that despite a cancellation report being filed by police, ld. MM had the power to disagree with the same and to summon accused persons for any particular offence. However, it is also well settled law that before summoning any person as accused for a particular offence, ld. MM must satisfy and ensure that all ingredients of alleged offence are duly established by the materials placed before the court. If the materials before the court are insufficient, though, ld. MM is not satisfied with the kind of investigation done, then other course of action has been provided in law, that is to vest the Magistrate with power to give direction for further investigation at post cognizance stage itself. After taking cognizance of any offence against any particular person, such power for further investigation cannot be exercised u/s 156 (3) Cr.P.C.
7. Coming back to the facts of this case, when a cancellation report was filed by police, ld. MM had three options. She could have accepted the report on being satisfied with the same. She could have pointed out particular aspects of the case on which investigation was not done and could have given direction for further investigation on those Page 5 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.189/2017 aspects. She could have summoned the accused for particular offence, thereby disagreeing with the report of police. It was the third option, which was taken in this case. However, as already mentioned herein above, to exercise this third option, ld. MM must have been satisfied about all ingredients of offence under section 302 IPC being established by materials placed on the record. The offence of murder is defined u/s 300 IPC, which is punishable u/s 302 IPC. It is the first and foremost ingredient of this offence that there must be a case of culpable homicide, meaning thereby, it should not be a case of natural death or death attributable to some different reasons, rather than an intentional act of a human being. The cause of death, therefore, assumes much importance in such cases.
8. In the present case, postmortem report clearly states that it was a natural death, occurring on account of 'Acute Myocardical Ischemio over preexisting coronary artery disease'. Viscera of deceased was also examined in CFSL, Hyderabad and nothing incriminating was found therein. Thus, the only piece of evidence, which could establish it to be a case of culpable homicide, is negative in nature. There is no other evidence on the record to suggest that deceased was murdered as alleged by the complainant.
9. An argument was made that petitioners knew about pre-existing decease of the deceased and it was not verified by IO if the cardiac arrest could have been caused due to poor condition of deceased.
Such argument itself incorporates the fact that there is nothing on record to suggest that the cardiac arrest was facilitated or actuated by any third person. Had it been so, then, there would have been some merit in this argument that petitioner knew about pre-existing decease of the deceased. Therefore, illustration (b) given with Section 300 of IPC cannot be applicable to this case.
Page 6 of 8 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.189/2017
10.Even otherwise, the whole allegations of complainant and arguments made by the complainant are based on her suspicion, which arose later on when a dispute regarding property came into existence between the parties and complainant could realise that some forged documents were prepared to dispose of the property. Then such suspicion took birth to say that since deceased had visited house of petitioner on 03.08.14 and thereafter he was missing, therefore, petitioners would have done something to eliminate the deceased. In my considered opinion, such presumption cannot substitute the evidence required, so as to satisfy the ingredients of alleged offence. Such presumption might have been raised out of vengeance or for any other reasons. The court has to act on the basis of concrete and admissible evidence, rather than any presumption. These presumptions are based on some motive i.e. to grab the property. However, motive is never sufficient to say that murder would have been committed by such persons.
11.I am in agreement with the contention of ld. counsel for petitioners that even last seen theory cannot be invoked because of huge gap of time and the place, when deceased was stated to be in company of petitioners and when he was found lying unconscious. Deceased in fact died after two days because of cardiac arrest. It is worth to be mentioned here that complainant was herself present at the time of postmortem of the deceased, which took place on 14.08.14 and a copy of the same was received by complainant on 30.09.14.
12.In view of my foregoing discussions, I do find that the impugned order vide which petitioners were summoned as accused for offence u/s 302 IPC, is not a legal order and is not based on correct appreciation of materials placed on the record as well as appreciation of law. Hence, same is set aside. Revision petition is allowed.
Page 7 of 8 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.189/2017 Petitioners herein stand discharged. Matter is remanded back to ld. MM to decide if any other option is required to be taken as per law.
13.Trial court record be sent back alongwith copy of this order to the trial court.
Revision file be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2017.09.15
17:20:42 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 14.09.2017 Special Judge (PC Act) CBI, East
(This order contains 8 pages) Karkardooma Courts, Delhi
Page 8 of 8 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi