Delhi District Court
State vs Sanjay on 17 October, 2014
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0032032013
SC : 37/3/14 dated 21.03.2014
FIR No. : 254/2012
PS: : Delhi Cantt.
U/S: : 498A/304B IPC
State
Versus
Sanjay
S/o Sh. Bishamber Dayal
R/o 16/11, 24 Quarter,
Sadar Bazar, Delhi Cantt.
Case received by Court : 21.03.2014
Arguments concluded : 07.10.2014
Date of judgment : 17.10.2014
JUDGMENT:
1 Accused Sanjay has been sent up to face trial for offences alleged to have been committed by him under section 498A/304B IPC by the SHO, PS SC No. 37/3/14 1/28 State Vs Sanjay Delhi Cantt on the allegations that the accused was married to the victim namely Meenakshi on 02.05.2007 according to Hindu Rites and Customs and thereafter they had started living as husband and wife at their matrimonial home i.e. 16/11, 24 Quarter, Sadar Bazar, Delhi Cantt. New Delhi and out of the said wedlock two children were also born. During the subsistence of marriage of the accused with Ms Meenakashi, i.e. from 2.5.2007 till 19.10 2012, the accused had subjected his wife Meenakshi to cruelty with a view to meet his unlawful dowry demands.
2 On 19.10.2012, when Meenakshi could not meet the said illegal demands of dowry made by the accused, the accused had administered some poisonous substance to his wife Smt. Meenakshi at her matrimonial home and thereafter on the same day victim Meenakshi came to her parental home at Vasant Village, New Delhi in a TSR and she had told her mother the entire episode, who had immediately taken her daughter Meenakshi to Charak Palika Hospital for treatment and from there, victim Meenakshi was referred to Safdarjung hospital on the same day and the doctor on duty at Safdarjung hospital had declared the victim "dead" at about 10.25 PM on the very same day itself. The matter was reported to the police. On the directions of the concerned SDM, present case was registered under section 498A/304B IPC and after completion of the investigation, charge sheet for the commission of aforesaid offences was SC No. 37/3/14 2/28 State Vs Sanjay filed against the the accused before the court of Ld. MM. 3 After completion of the proceedings u/s 207Cr.P.C., the Ld. MM had committed the case to the sessions Court on 11.4.2013. Thereafter, the case was received by the Ld. Predecessor Court by way of assignment on 16.4.2013.
4 Charge for the offences punishable under sections 498A/304B IPC was framed against the accused on 03.05.2013 to which he had pleaded not guilty and had claimed trial.
5 In order to prove the charge against the accused, the prosecution had examined 18 witnesses in all.
6 PW1 Smt. Usha Rani is the mother of deceased Meenakshi. She had deposed on oath that on 2.5.2007 Meenakshi was married to the accused. She had further deposed that after the marriage, the accused had started harassing her daughter and used to demand money from her daughter and also used to send her to her parents home to bring Rs.50,000/. She had further deposed that she had also given some money to her daughter on several occasions and it was the habit of the accused to beat her daughter and send her to her parental home to bring money. On 19.10.2012 her daughter Meenakshi came to her in a TSR at CBlock Market, near Vasant Gaon, New Delhi where she used to work as maid, and had told her that she was not able to see properly through SC No. 37/3/14 3/28 State Vs Sanjay her eyes and requested her "Mummy mujhe bacha lo"(Please save me mom). Thereafter, she immediately took her daughter to Charak Palika Hospital and she was treated there. In the evening her daughter Meenakshi was shifted to Safdarjung Hospital. PW1 had further deposed that her daughter Meenakshi had told her before her death that accused Sanjay had administered her some poisonous substance. She had further deposed that her daughter Meenakshi had expired at Safdarjung hospital on 19.10.2012. Police came in the hospital. Her family members had also reached there in the hospital. SDM had recorded her statement on 20.10.2012 which was Ex. PW1/A. 7 PW2 Smt. Phoolwati is the maternal grandmother (naani ) of deceased Meenakshi. PW4 Sh. Jagdish and PW6 Rahul are respectively the father and brother of deceased Meenakshi. They all have corroborated the statement of PW1 Smt. Usha regarding the marriage of the accused with Meenakshi and also about the fact of repeated demands of dowry made by the accused from the victim and the death of Meenakshi at Safdarjung hospital on 19.10.2012. PW4 Sh. Jagdish had further deposed that the accused also used to demand Rs. 500, Rs.1000/ and Rs.2000/ on various occasions and he had also given the same to his daughter Meenakhsi to deliver the same to the accused to save her marriage. He had further deposed that in the mortuary of Safdarjung hospital, he had identified the dead body of his daughter Meenakashi vide statement SC No. 37/3/14 4/28 State Vs Sanjay Ex. PW4/A and after postmortem, the dead body of Meenakshi was handed over to him. PW6 had also proved his statement Ex. PW6/A regarding identification of dead body of Meenakshi.
8 PW 3 Dr. Sarvesh Tandon, Senior Specialist, Department of Forensic Medicine, Safdarjung Hospital, New Delhi, had conducted the postmortem on the dead body of Meenakashi on 22.10.2012, who was admitted at Safdarjung Hospital on 19.10.2012 with history of breathlessness increased from past two days, alongwith vomiting, abdominal pain and swelling of both lower limbs, and who had died during the course of her treatment on 19.10.2012 at 10:25 PM, whose past history was stated to be abdominal koch's (TB) and she was on CATII ATT treatment. No external injuries were found present over her body and internally there were findings of diseased process seen in the internal organs and cavities of the body. The stomach had about 1.50 ml of digested liquid food material and walls of the stomach were congested, blood vessels were prominent. Uterus had no products of conception. Visra and blood sample were preserved and were later on handed over to the IO. He had also proved his detailed report in this regard which is Ex. PW 3/A. He had further deposed that on a written request of the IO, regarding subsequent opinion about cause of death Ex.PW3/B, he had opined that the cause of death was due to "zinc phosphide" poisoning, which was detected in the viscera of the SC No. 37/3/14 5/28 State Vs Sanjay deceased Meenakshi and his report in this regard was at point 'X' on Ex. PW3/B. 9 PW5 Sh. Alok Sharma the then SDM concerned, had deposed that on 20.10.12 , while he was posted as SDM Vasant Vihar, New Delhi, upon receipt of a call from PS Vasant Vihar regarding unnautural death of a woman, namely Meenakshi w/o Sanjay within seven years of her marriage, he had reached Safdarjung hospital and had conducted inquest proceedings on form 25, 35B & C which were Ex. PW5/A and Ex. PW5/B respectively, both bearing his signatures at points A, B and C. He had also proved the statement of Ms Usha, mother of the deceased recorded by him as Ex. PW1/A and had directed the Autopsy Surgeon for postomortem on the dead body of deceased Meenakshi vide Ex. PW5/C and thereafter had ordered SHO, PS Delhi Cantt. through SHO, PS Vasant Vihar for registration of the present case. He had proved his said order as Ex. PW5/D. 10 PW7 Dr Sandeep Sharma, Sr. Medical Officer, Safdarjang Hospital had prepared the MLC of deceased Meenakshi on 21.10.2012 and had proved the said detailed MLC as Ex. PW7/A. 11 PW8 Sh Amar Pal Singh, Assistant Director, Chemistry, FSL, Rohini, Delhi had deposed that he had been working with FSL since 1994 and upon chemical examination of the visra of deceased Meenakshi which was received SC No. 37/3/14 6/28 State Vs Sanjay at FSL on 17.12.2012 through one Ct. Subhash, he had given his opinion Ex. PW8/A wherein he had opined that all the exhibits were found containing phosphide, whereas her stomach and pieces of intestines were found containing zinc phosphide.
12 PW9 (wrongly mentioned as PW8) Ct. Subhash, No. 949SD, PS Delhi Cant. had joined the investigation with IO/Insp. O P Jakar on 5.11.2012, 6.11.2012 and on 17.12.2012. On 5.11.2012, he had collected the viscera of deceased from Malkhana of PS Vasant Vihar and had brought the same to PS Delhi Cantt. on the instructions of Insp. O.P. Jakkar. On 6.11.2012, accused was arrested by the IO in his presence vide arrest memo Ex. PW8/A bearing his signatures at point "A" and he had taken the accused for his medical examination at Safdarjung Hospital. On 17.12.2012, he had collected the viscera of deceased from Malkhana of PS Delhi Cantt. and had deposited the same with FSL Rohini.
13 PW10 (wrongly mentioned as PW9) ASI Kapil Singh had recorded DD No. 9A dated 20.10.2012 at PS Vasant Vihar, copy of which is Ex. PW9/A. 14 PW11(wrongly mentioned as PW10) Ct. Bishamber Dayal had joined investigation of this case with IO/SI Kuldeep on 20/10/2012 and had received a box containing visra of the deceased from the doctor at Safdarjung hospital which was later on handed over by him to the IO and was taken into possession SC No. 37/3/14 7/28 State Vs Sanjay by the IO vide seizure memo Ex. PW10/A. 15 PW12 (wrongly mentioned as PW11) SI Suraj Bhan had recorded the FIR of this case on 29.10.2012 at PS Delhi Cantt., carbon copy of which was Ex. PW11/A. He had also proved his endorsement on the rukka as Ex. PW11/B and further investigation of the case was entrusted to Insp. Om Prakash on the instructions of SHO.
16 PW13 (wrongly mentioned as PW12) SI Narender Singh was the initial IO of the case, who alongwith Ct. Vikram, upon receipt of DD No. 6A dated 20.10.12 regarding death of Meenakshi had reached at Safdarjung hospital where relatives of the deceased met him and had informed him that they were residents of Vasant Vihar, therefore, he had lodged a DD at PS Vasant Vihar regarding the jurisdiction of the incident. Thereafter, on 5.11.2012 he had joined the investigation of this case with IO/Insp. Om Prakash of PS Delhi Cantt. and had also collected the PM report of deceased Meenakshi from Safdarjung hospital which was later on handed over by him to the IO of PS Delhi Cantt. who was investigating the present case. 17 PW14 (wrongly mentioned as PW13) HC Rajendra Prasad was the MHC/M of PS Vasant Vihar. He had proved the extracts of relevant entries of his register no. 19 dated 22.10.2012 and 5.11.2012 Ex. PW13/A and Ex.PW13/B respectively, regarding deposit of visra petti in the malkhana and SC No. 37/3/14 8/28 State Vs Sanjay later on sending of the same to PS Malkhana Delhi Cantt. 18 PW15 (wrongly mentioned as PW14) HC Sita Ram of PS Delhi Cantt. had proved the extracts of register no. 19 regarding deposit of visra petti of this case on 5.11.2012 and also regarding sending of the said visra petti to FSL on 17.12.2012, which are Ex. PW14/A and Ex. PW14/B respectively. 19 PW16 (wrongly mentioned as PW15) Insp. Mahesh Soni, was the part IO and he had arrested the accused in this case vide arrest memo Ex. PW8/A and had conducted personal search of the accused vide memo Ex. PW8/B on 6.12.2012.
20 PW17 (wrongly mentioned as PW16) SI Kuldeep Kumar was the IO and PW18 (wrongly mentioned as PW17) Insp. Om Prakash Jakar was the subsequent IO, who had taken over the further investigation of the case from SI Kuldeep on 29.10.2012.
21 After conclusion of the investigation PW17 Insp. had filed the charge sheet against the accused. He had also filed the supplementary charge sheet against the accused upon receipt of the FSL result regarding the cause of death of deceased Meenakshi.
22 As no witness remained to be examined, PE was closed by the Ld. Addl. PP for the State.
23 Thereafter, the accused was examined under section 313 CrPC, wherein SC No. 37/3/14 9/28 State Vs Sanjay he had denied all the incriminating evidence put to him in toto and reiterated that he was falsely implicated in this case. He had also stated that he had never demanded any money or received the same from his wife or that on her failure to meet his aforesaid illegal demands, he had ever harassed/tortured her or had quarrelled with her. It had also been denied by him that he had administered any poisonous substance to his wife. It had been stated further that his wife had left her matrimonial home on 15.10.2012 to visit her parents and after that he was not aware of the subsequent sequence of events that had taken place at his back. 24 In his defence, the accused had examined two witnesses, namely DW1 Sh. Jai Singh and DW2 Mohd. Danish.
25 DW1 Sh. Jai Ram Singh, UDC from Delhi Cantonment General Hospital, had proved the Emergency plus Out Patient register, as Ex. DW1/A, as per which patient Meenakshi (since deceased) had visited the said hospital on 17.10.2012 at about 9.10 AM and the relevant entry in this regard was made at Sl. No. 804. He had also proved certain other papers related to the said patient Meenakshi (since deceased) as Ex. DW1/B (six papers which also included out patient chit dated 27.8.2012).
26 DW2 Mohd. Danish, a Dot Provider from Jag Pravesh Chand Hospital, Shashtri Park, Delhi had stated that patient Meenakshi was referred to their hospital by Lala Ram Swaroop Chest Clinic, Mehrauli vide referral form Ex. SC No. 37/3/14 10/28 State Vs Sanjay DW2/A, as she was suffering from extra pulmonary tuberculosis of left pleural effusion and it was of category II, which meant that she had again suffered the tuberculosis after receiving the treatment once. He had further deposed that after visiting her house, he had started her treatment from 2.6.2012 onwards and had administered only one dose to her. He had proved the treatment card and Identity Card (photocopy) of the said patient Meenakshi as Ex. DW2/B and Ex. DW2/C respectively. He had also deposed that thereafter, the patient had not visited the hospital for her further treatment owing to her difficulty to visit the hospital and he was informed on phone by the deceased that she was inclined to take private treatment from some other hospital. 27 I have heard Sh. Ravinder Bhati, Ld. Addl. PP for the State as well as Ms. Tabassum, Ld. Defence Counsel, appearing for the accused and have carefully gone through the material available on record. 28 Sh. Ravinder Bhati, Ld. Addl. PP for the State has argued that the prosecution has successfully proved its case against the accused beyond any reasonable doubt for the offences under section 498A/304B IPC. 29 On the other hand Ld. Defence Counsel Ms. Tabassum had controverted and refuted the arguments of the Ld. Addl. PP for the State and had vehemently argued that the prosecution has miserably failed to prove its case against the accused beyond the shadow of any reasonable doubt, as all the SC No. 37/3/14 11/28 State Vs Sanjay material witnesses so examined by the prosecution to prove the charges for the offences under 498A/304B IPC have contradicted each other on material aspects and these material contradictions which had crept in the testimonies of the star prosecution witnesses has completely shaken and scattered the prosecution story, as put forth by them against the accused and hence the accused deserves to be acquitted honourably.
30 I have carefully considered the rival contentions of both sides and gone through the entire material available on record and my observations are as under: OFFENCE U/S 498A IPC:
31 In order to prove the charge for an offence u/s 498A IPC against the accused, the prosecution had relied upon the testimony of PW1 Smt. Usha Rani (mother of deceased), PW2 Smt. Phoolwati (maternal grandmother "naani" of the deceased), PW4 Sh. Jagdish Singh (father of deceased) and PW6 Sh. Rahul (brother of deceased), who had deposed that Meenakshi (since deceased) had been married to the accused Sanjay on 02.05.2007 and she had been subjected to cruelty by the accused for want of dowry. 32 PW1 and PW4 in their respective cross examinations, had deposed that their other daughter Reena was also married to the elder brother of accused namely Arun on the same date. PW1 had however stated that marriage of SC No. 37/3/14 12/28 State Vs Sanjay deceased Meenakshi with Sanjay was not a planned one and it was just decided on the day of marriage ceremony of Arun with Reena. She had further deposed that proposal for marriage of accused with Meenakshi was mooted from the side of accused and they had also threatened that if the said proposal was not accepted, then they would also not go ahead with the marriage of Arun as was planned earlier with her daughter Reena. However, PW4 Sh. Jagdish, father of the deceased and husband of PW1, during his crossexamination had contradicted the aforesaid version of PW1 and had stated that marriage of the accused with Meenakshi was not performed all of a sudden without any preparation on the day of marriage between Arun and Reena and had further admitted the suggestion put to him by the accused that the marriage between the accused and Meenaskhi had been arranged through a middle man residing at Dabri.
33 So far as the alleged demands of dowry made by the accused are concerned, the same are vague in nature, in as much as no specific dates, months and years have been mentioned or cited by any of the aforesaid material witnesses either during their deposition before this court or at the time of recording of their respective statements by police during investigation of this case and even they had also contradicted each other on the material aspect related to the amounts so demanded by the accused, which creates a serious SC No. 37/3/14 13/28 State Vs Sanjay doubt as to the truthfulness and veracity of their testimonies in this regard and the same appears to have been made against the accused as an after thought only with an intention to somehow rope him in the present case after the death of Meenakshi, because in her statement made to concerned SDM, PW1 had nowhere mentioned about any dowry demands made by the accused at any point of time whatsoever. However, PW1 had deposed before this court that accused used to demand Rs. 50,000/ from her daughter, whereas PW2 Smt. Phoolwati, i.e. Maternal grandmother (naani) of deceased had deposed that Meenakshi used to take away only Rs. 100/ or Rs. 200/ or sometimes more and even took away Rs. 1000/ and Rs. 2000/ at times from her parents. PW6 Rahul, brother of deceased on the other hand had come up with an entirely new version that once he had also given an amount of Rs.3000/ to the accused through his sister Meenakshi after borrowing the same from one of his friends as was demanded by him. However, no particular date, month or year had been mentioned by PW6 in this regard. Even the alleged friend from whom he had borrowed the said money for the purpose of giving the same to the accused had not been even named by PW6 in his testimony nor any attempt was made by the prosecution either to cite him as witness or to examine him to substantiate the version narrated by PW6. In the absence of disclosure of the name of the said friend, the accused had been deprived of his probable defence SC No. 37/3/14 14/28 State Vs Sanjay by calling him as his own witness to show that he had never given any amount whatsoever to his brotherinlaw Rahul as had been claimed by him before the court during his deposition. Further, the allegations of demand of dowry against the accused made by these star witnesses cannot be taken as a gospel truth in the light of admission that had come on record during the cross examination of PW1 Smt. Usha Rani and PW6 Sh. Jagdish that the family of accused was well aware of the poor economic conditions of the said PWs at the time of marriage of their two sons with their two daughters including deceased Meenaskhi. Here, it would not be out of place to mention that Ms. Reena, daughter of PW1 and PW6 who has also been married to real brother of accused and is living in her matrimonial home with her inlaws and the present accused had not even come in the witness box to depose that her sister Meenakshi or even she herself had ever been tortured, harassed or maltreated by the accused or his parents for demand of dowry.
34 PW5 Sh. Alok Kumar Sharma, the then SDM Vasant Vihar, who had recorded the statement Ex. PW1/A of PW1 Smt. Usha Rani, had emphatically deposed during his crossexamination by the Ld. Defence Counsel that PW1 had not informed him that the deceased Meenakshi was ever being harassed either by accused or any of his other family members for bringing insufficient dowry or for bringing more dowry from her parents. In the light of this SC No. 37/3/14 15/28 State Vs Sanjay particular deposition by PW5, the testimony of PW1 before this court is certainly an improvement and is an after thought and hence her testimony to this effect has no credence and thus is liable to be discarded in toto. 35 Even the payment of meager amounts to the deceased by her parents such as Rs. 100/, Rs. 200/, Rs. 500/, Rs. 1000/ and Rs. 2,000/ upon her occasional visits to them cannot be considered as a demand of dowry to constitute an offence against the accused punishable u/s 498A IPC as the said amount appears only to be a customary gift given to a daughter by her parents out of love and affection. Further, no complaint whatsoever had been made regarding the alleged demand of dowry by the parents of the deceased against the accused or his family members at any point of time before her death and no satisfactory explanation had come forth on record in this regard. 36 In the light of the above discrepancies that had crept in the testimonies of these material witnesses and the dents pointed out by the Ld. defence counsel in the prosecution story, I am of the considered view that the prosecution had miserably failed to bring home the guilt of the accused for the offence u/s 498A IPC beyond the shadow of any reasonable doubt. OFFENCE U/S 304B IPC:
37 Now coming to the offence punishable under section 304B IPC, it has to be noticed that the entire prosecution story hinges on the testimony of PW1, as SC No. 37/3/14 16/28 State Vs Sanjay per which it was deceased Meenakshi, who had come to her place of work, i.e. a Kothi at CBlock Market, Vasant Gaon, New Delhi in a TSR from her matrimonial home on 19.10.2012 and had told her that she was not able to see things properly through her eyes and had pleaded before her, "mummy mujhe bacha lo"(Please save me mom) and thereafter, she had immediately taken her to Charak Palika Hospital for treatment. In the evening her daughter was shifted to Safdarjang hospital. She had further deposed that her daughter Meenakshi (since deceased) had told her before her death that accused had administered her some poisonous substance. Meenakshi had died on 19.10.2012 itself at about 10.25 pm at Safdarjang hospital. 38 It had been argued by the Ld. Defence Counsel that the deceased had left her matrimonial home and had come to reside with her parents on 15.10.2012 itself and hence the question of administering any poisonous substance to her by the accused does not arise. Further, the averment of PW1 that deceased had come all the way to meet her at her work place in Vasant Gaon on 19.10.2012 in semiunconscious condition in a TSR cannot be taken as a gospel truth as neither the driver of the alleged aforesaid TSR nor the employer of PW1 i.e. The occupant/owner of the place where she was allegedly working and from where she had taken her daughter Meenakashi to Charak hospital, were cited and examined as prosecution witnesses.
SC No. 37/3/14 17/28 State Vs Sanjay 39 It is the case of the accused that Meenakshi (since deceased) who was a TB patient had gone to her parental home on 15.10.2012 and since then she was residing there with her parents till her death. No investigation had been done by the IO in this regard. No efforts were made by the IO to collect any independent evidence in this regard. Even Reena, the real sister of the deceased Meenakshi had also not been examined by the IO to ascertain the truth of the claim made by the accused as to whether Meenakashi had actually gone to her parental home to reside on 15.10.2012 or not. PW4 Mr. Jagdish, father of the deceased, had deposed during his crossexamination by the accused that he could not remember as to whether his deceased daughter Meenakashi had come to their house on 15.10.2012 to reside with his family or not but had voluntarily stated that she had visited them once before her death on 19.10.2012 alongwith her daughter Mannu but had hardly spared few minutes with his family. Hence, the absence of corroboration of statement of PW1 that Meenakshi had actually come from her matrimonial home in a TSR at her workplace at Vasant Gaon, only on 19.10.2012 by any independent witness, would have definitely proved fatal to the prosecution particularly keeping in view the delay in lodging of the FIR which had remained unexplained as it is the cardinal principle of criminal law that an accused is presumed to be innocent unless proved guilty.
SC No. 37/3/14 18/28 State Vs Sanjay 40 So far as the allegations related to administration of poisonous substance by the accused to the deceased are concerned, it has been argued by the Ld. Defence Counsel that no investigation had been conducted by the investigating agency in this regard. Even, no investigation was either done to find out as to whether the alleged poisonous substance was soluble in liquid or not or whether it could have been easily mixed up in some eatable substance or not and also about its extent and strength as to what quantity of the said poisonous substance could have proved fatal for a normal human being. 41 It has further been argued by the Ld. Defence Counsel that no MLC was prepared in the present case and it is also not clear as to whether authorities of Charak Palika hospital had referred the deceased to Safdarjang hospital or she had gone there on her own. At this juncture, the Ld. Addl. PP for state had fairly conceded that in the present case, no MLC of the patient Meenakshi (since deceased) had been prepared either at Charak Palika hospital or at Safdarjung hospital at the initial stage of her admission. Hence, in the absence of any MLC, it cannot be said that the patient Meenakshi had ever disclosed to any of the doctors who had treated her either at Charak Palika hospital or at Safdarjung hospital, that she had been administered poisonous substance by the accused at her matrimonial home. It shall also be worthwhile to point out here itself that MLC in the present case was prepared only after the death of SC No. 37/3/14 19/28 State Vs Sanjay deceased Meenakshi and that too at the request of IO for the purpose of conducting postmortem of her body as no postmortem could have been conducted in the absence of a MLC.
42 Ld. Defence Counsel had further argued that none of the family members of the deceased including the mother i.e. PW1 had ever disclosed to any of the doctors at any point of time before her death that her daughter Meenakshi had been administered some poison by her husband i.e. the accused. Had the accused actually administered some poison or any poisonous substance to the deceased, at any point of time or he had picked up any quarrel with her, the same could have been certainly disclosed either by the deceased herself or by PW1, her husband or by their son as well to the doctors on duty who had attended and treated deceased Meenakshi in the aforesaid two hospitals before her death and those doctors would have certainly recorded those facts in their treatment papers maintained by the hospital authorities in ordinary course of their functioning and would have prepared her MLC as well, as admittedly no one from the accused side was present in the said hospitals to influence her or to persuade her not to make any statement against the accused for roping him in the present case.
43 Admittedly, the present case was registered against accused u/s 498 A/304B IPC after around a delay of 9 days of the death of deceased Meenakshi SC No. 37/3/14 20/28 State Vs Sanjay at the instance of PW1. Ld. Defence counsel had pointed out the admission of PW1 where she had deposed during her cross examination by accused that at the time of admission and treatment of Meenakshi in the hospital, she herself (PW1) alongwith her son Rahul (PW6) had remained present and the doctor on duty had told her that since her daughter had died, hence, she (PW1) should have called someone from her house to take her (deceased Meenakshi) body away and at that particular point of time, she had told the doctor that her daughter had been made to consume something by her husband when she died and on that day the doctor had told her that she should have informed him (doctor) of such fact earlier so that he could have recorded the statement of deceased. This part of the statement made by PW1 clearly indicated that deceased Meenakshi was conscious and oriented and was in a position to make a statement before the doctor treating her at that time. Had she (deceased) actually been administered any poisonous substance by the accused before her death, she would have definitely disclosed the same before the doctor treating her but it had not been done so. Even during this part of her statement of PW1, she had not stated that any poisonous substance was ever made to be consumed by the accused to the deceased. Hence, in the light of these particular assertions, the averment of PW1 that Meenakshi had made a statement before her death to her that she was administered any poisonous substance by the SC No. 37/3/14 21/28 State Vs Sanjay accused, cannot be treated to be a dying declaration made by Meenakshi before PW1.
44 It had been argued further by the Ld. Defence Counsel that Despite the fact that sister of deceased Meenakshi was also married to the real brother of the accused, neither she nor any other member of her family had ever lodged any complaint with the police regarding the alleged torture and harassment meted out to the deceased by the present accused related to any dowry demand and the said real sister of deceased Meenakshi is still happily living in her matrimonial home with the brother of the accused and she had never been examined by the investigating agency nor was even cited as a prosecution witness against the accused for the reasons best known to the investigating agency.
45 Ld. Defence Counsel has further argued that there has been a delay of nine days in lodging of the FIR, which delay itself has created doubt as to the truthfulness of the prosecution story. No investigation had been conducted by the IO to link the administration of poisonous substance by the accused to the deceased. It had also not come on record as to after how much time of administration of the alleged poisonous substance to her, the deceased had left her matrimonial home to meet her mother.
46 It is very pertinent to note and mention here itself that the version related SC No. 37/3/14 22/28 State Vs Sanjay to administration of poisonous substance in some liquid form to the deceased by the accused as reflected from the statement of Smt. UshaPW1, mother of the deceased had come only on the following day of her death and that too before the SDM concerned whereas as per the DD No. 9A dated 20.10.2012 which had immediately followed the death of Meenakshi, her brother (PW6) had stated that the poisonous substance was administered to his sister in some eatable substance which fact was entirely contradictory to the statement of his own mother, not only recorded by the SDM in his presence, but also which was further endorsed by him before the said SDM.
47 So far as the postmortem report relied upon by the prosecution is concerned, it has been argued on behalf of the accused that even as per the said postmortem report Ex. PW3/A, as per the brief history given by the IO, the patient had already problems of breathlessness, vomiting, abdominal pain etc even two days prior to the date of her admission to the hospital and as she was already on CATII ATT treatment with past history of abdominal kock's hence she had died on 19.10.2012 during her treatment, which fact was again contrary to the version of PW1 Smt. Usha, mother of the deceased, who had stated that it was on 19.10.2012 itself that the deceased had visited her and had told her about administration of some poisonous substances in a drink by the accused, which fact further gets negated from the version of PW3 Dr. Sarvesh SC No. 37/3/14 23/28 State Vs Sanjay Tandon, who had deposed that administration of poison could have proved fatal only within 12 to 24 hours of its administration. 48 The prosecution had also relied upon the testimony of PW8 Sh. Amar Pal Singh, Assistant Director, Chemistry, FSL Rohini, New Delhi who had examined the viscera of deceased Meenakshi on 17.12.2012 and had given his opinion that the stomach and pieces of intestine were found containing Zinc Phosphide. He had also examined pieces of liver, kidney, spleen and blood sample and he had given the opinion that all these exhibits were found containing Phosphide.
49 In his cross examination conducted on behalf of accused, PW8 had stated that Zinc Phosphide was in fact a poison and was basically used as a rodenticide and was available in the market but he could not say as to whether it was tasteless or it could have been administered to someone by mixing in milk, tea or water. He had voluntarily stated that it had a garlic like smell but he could not say if it could become tasteless when mixed with food and he also could not say that if there was garlic like smell bound to be present in the vomiting of the victim or not.
50 The prosecution had also relied upon the testimony of PW3 Sr. Sarvesh Tondon who had conducted postmortem on the dead body of the deceased and had proved his detailed report in this regard as PW3/A. This witness had SC No. 37/3/14 24/28 State Vs Sanjay categorically deposed in his cross examination that Zinc Phosphide poison after ingestion starts its effect immediately. However, the fatality of the poison might be seen within 1224 hours. The person affected with the said poison would have problems like vomiting, abdominal pain, etc. but loss of vision was usually not encountered during this kind of poisoning. 51 Relying upon the aforesaid cross examination of both these doctors, Ld. Defene counsel had argued that the prosecution had miserably failed to bring on record any substantial evidence to prove the exact time when the poisonous substance was either actually consumed by or was administered to the deceased as alleged and how and in what form, it was so consumed, i.e. whether in solid form or liquid form, whether it was consumed by the deceased herself owing to her prolonged illness or for some other reason specifically and exclusively within her knowledge.
52 It had also been argued that one other sister of the deceased, namely Bindu, had also died at her age of 10 due to sickness/TB. The factum of death of Bindu had not been denied or disputed by PW1 and PW4, though they had denied that Bindu had died due to TB, but had admitted that the cause of her death was due to some sickness. Ld. Defence Counsel had further argued that the deceased was suffering from TB of categoryII and she had discontinued her treatment of TB and owing to her prolonged ailment, she might have SC No. 37/3/14 25/28 State Vs Sanjay consumed any poisonous substance at her parental home after leaving her matrimonial home on 15.10.2012, and hence, the same was nothing but a suicidal death, which in the given circumstances could not be said to have squarely fallen within the ambit of section 304B IPC. 53 The accused in his defence had examined DW1 Sh Jai Ram Singh, UDC from Delhi Cantonment Board, New Delhi, who had proved the emergency plus out patient register dated 17.10.2012, Ex. DW1/A, as per which deceased Meenakashi had visited that hospital on 17.10.2012 at 9.10 AM. He had also proved her bio chemistry and haematology report both dated 17.10.2012 as Ex. DW1/D and Ex. DW1/E respectively and other treatment papers Ex. DW1/B and DW1/C respectively, as per which the deceased was being treated for TB. 54 The accused had also examined DW2 Sh Mohd. Danish, DoT Provider from Jag Pravesh Chand Hospital, Shastri Park, Delhi53, who had deposed that Meenakshi was referred to their hospital by Lala Ram Swaroop Chest Clinic, Meharauli vide referral form Ex. DW2/A and on 31.5.2012 after visiting her house at 16/11, Sadar Bazar, Delhi Cantt, he had started her treatment from 2.6.2012 for tuberculosis. He had proved the treatment card of deceased Meenakshi as Ex. DW2/B and her identity card as Ex. DW2/C. He had further deposed that he had administered only one dose to Meenakashi and thereafter she had declined to visit the hospital for further treatment on the SC No. 37/3/14 26/28 State Vs Sanjay pretext of getting further treatment from some private hospital. 55 Hence, from the testimonies of these two DWs, it becomes an established fact on record that deceased was already suffering from tuberculosis and despite having recovered once from the said ailment, she had again suffered from the same and that is why it was described as CATII. It is also an established fact on record that deceased had discontinued her treatment for the aforesaid disease.
56 Moreover, in case of her administration of poisonous substance either after mixing the same in some liquid or in some eatable item, the IO was duty bound to search and seize the utensil so used for the purpose of administration of said poison, which he had miserably failed to collect. Hence, in the absence of any substantial evidence appearing on record to link the accused with the administration of poisonous substance to the deceased Meenakshi so found present in her body, it cannot be held either with certainty or even beyond any reasonable doubt that it was the accused who had actually administered such poisonous substance to his deceased wife. Accordingly, the accused deserves to be acquitted from the charge for the offence under section 304B IPC as well.
57 Accordingly, in view of my afore going lengthy discussion, the accused is acquitted of the charges for the offences under sections 498A and 304B IPC. SC No. 37/3/14 27/28 State Vs Sanjay 58 Bail bond and surety bond furnished by him during trial shall remain in force for another six months u/s 437A IPC.
59 File be consigned to record room, after expiry of the period of appeal/revision, if any.
Announced in the open Court on 17.10.2014. (LOKESH KUMAR SHARMA) ADDITIONAL SESSIONS JUDGE04 NEW DELHI DISTRICT/ PATIALA HOUSE COURTS/NEW DELHI SC No. 37/3/14 28/28 State Vs Sanjay