Delhi District Court
The State vs . Naresh Kumar Dass on 3 June, 2010
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS CASES)
OUTER DISTRICT ROHINI COURTS: DELHI
SC No.: 37/08
FIR No.: 267/08
PS: Nangloi
U/Sec. 302/498A/304B/406 IPC
THE STATE VS. NARESH KUMAR DASS
S/o Hari Lal Dass
R/o H369, J.J. Colony,
Village Bakkarwala,
Nangloi, Delhi.
Date of institution in Sessions : 03.09.2008
Date of conclusion of arguments : 28.05.2010
Date of decision : 03.06.2010
JUDGMENT
1 Accused has been booked for committing murder of his wife. 2 Police Control Room received information at 6:59:35 hours on 13.04.08 whereby the caller revealed that his wife had committed suicide. DD No. 9A was accordingly recorded at 7:05 am at PS Nangloi and SI Mahender Singh and Ct. Sunil were deputed for investigation. They both reached the spot and found one lady, whose name was later on found to be Kanchan, hanging from wooden log of roof with the help of a saree. SI Mahender informed SDM of the area as well as the Crime Team. FIR No.: 267/08, PS: Nangloi 1
page of 26 Accused Naresh Kumar Dass (husband of deceased) was already at the spot and further investigation revealed that the marriage between them had taken place within the period of seven years reckoned from the date of incident. Relatives of deceased were informed about the incident. Crime Team inspected the spot. Dead body was brought down and was sent to mortuary. Father and brother of deceased made statements before Ld. SDM. They alleged that accused used to trouble and harass Kanchan and used to ask her bring money from her parents. On the basis of recommendation of SDM, rukka was prepared by SI Mahender Singh and consequently, FIR was registered u/s 498A/304B/34 IPC. Brother of deceased also levelled allegations against two other brothers of accused and their respective wives. Police carried out investigation but did not find their complicity. Post Mortem Report exposed the cause of death to be asphyxia consequent to pressure over neck structure inflicted by other party and, therefore, Section 302 IPC was added. It would be, however, not out of place to mention here that when the police had reached at the spot initially, suicide note was also recovered from the spot and in such suicide note, the deceased had claimed that after her death, her husband should not be held responsible and made request in this regard to her parents as well. During investigation, admitted handwriting of deceased was collected and was sent to forensic laboratory for necessary comparison.
FIR No.: 267/08, PS: Nangloi 2
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3 Investigating agency chargesheeted accused. His other four
relatives were, however, not sent up for want of evidence. 4 Case was committed to the Court of Sessions and was received on allocation by this court on 03.09.08.
5 IO was directed to collect the result and to place the same on record. As per FSL Report, Aluminum Phosphide was found in the viscera and, therefore, Ld. Prosecutor contended that matter may be adjourned so that fresh medical opinion is obtained to reascertain the exact cause of death. Such subsequent medical opinion, however, remained unaltered.
6 Accused Naresh Kumar Dass was charged u/s 498A IPC. He was also charged u/s 304B IPC and in alternate u/s 302 IPC. He pleaded not guilty and claimed trial.
7 Prosecution was directed to adduce evidence and has examined seventeen (17) witnesses. These are PW1 HC Jai Bhagwan (Duty Officer), PW2 Mahender Prasad Dass (father of deceased), PW3 Dr. Manoj Dhingra (doctor who had conducted the postmortem of the body of deceased), PW4 Dr. Brijesh Singh, PW5 Ct. Ramveer, PW6 Manish Kumar Dass (brother of deceased), PW7 Sh. B.P. Mishra (SDM), PW8 SI Mahesh Kumar (Draftsman), PW9 HC Narender Kumar (MHC(M)), FIR No.: 267/08, PS: Nangloi 3 page of 26 PW10 Ct. Sunil, PW11 HC Suresh, PW12 Inspector Mahendra Singh (First Investigating Officer), PW13 HC Brijesh (official from PCR), PW14 SI Baljeet Singh (Incharge, Crime Team) PW15 Inspector Prakash Chand (Second Investigating Officer), PW16 Sh. Anurag Sharma (Sr. Scientific Officer, Documents, FSL), PW17 Jitender Kumar (Sr. Scientific Assistant, Chemistry, FSL) 8 Accused in his statement u/s 313 Cr.P.C. pleaded innocence. He though admitted that he had informed PCR about the suicide committed by his wife. He also examined three witnesses in his support. These are DW1 Dinesh Dass, DW2 Ashok Dass and DW3 Meera. Accused himself also entered into witness box as application moved u/s 315 Cr.P.C. was allowed by the court.
9 Ms. Purnima Gupta, Ld. APP has contended that prosecution has been able to prove its case to the hilt. She has argued that there is no dispute regarding the fact that Kanchan had died under mysterious circumstances and that her such death is within seven years of marriage. She has also argued that there is clearcut case to the effect that she used to be treated with cruelty and there were demands of dowry. She has further contended that accused was alone with his wife at the relevant time and he misled the police by claiming that his wife had committed suicide. She has argued that Autopsy Report clearly indicates it to be a case of homicide instead of a suicide and since no one else was present FIR No.: 267/08, PS: Nangloi 4 page of 26 inside that house, accused is squarely responsible for the murder of his wife.
10 Sh. Manish Bhardwaj, Ld. defence counsel has, on the other hand, refuted all the aforesaid contentions. He has argued that accused has been falsely implicated. It has been argued that there was never any demand of dowry and there was never any harassment or cruelty from the side of accused. It is argued that Kanchan was earlier residing at Village Matiari as she was required to look after the ailing father of accused and after the death of father of accused i.e. barely 2 or 2 ½ months before the incident, Kanchan was brought to Delhi to by her husband. It has been argued that Kanchan was issueless and, therefore, she used to remain disturbed and depressed and that might be the real cause behind her suicide. He has also argued that the suicide note recovered from the spot clinches the issue in favor of defence. He has also argued that the report of concerned autopsy surgeon is not believable at all. 11 I have given my thoughtful consideration to the rival contentions and carefully perused all the documents available on record. 12 As already noticed above, accused was initially booked for offence of dowrydeath but subsequently, in view of the report of autopsy surgeon, Section 302 IPC was also added.
FIR No.: 267/08, PS: Nangloi 5
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13 Let me first see as to what the immediate relatives of the deceased
have to say regarding the alleged cruelty or harassment on account of dowry.
14 There is no dispute to the effect that the death has taken place within the period of seven years of marriage. Such fact is even admitted by the defence. There is no dispute that the death is otherwise then under normal circumstances. PW2 Mahender Prasad Dass is the father of deceased and PW6 Manish Kumar Dass is her brother. They both are residents of VPO Khera Prachand Sameli, District Katiar, Bihar. According to Mahender Prasad Dass, marriage had taken place at Matiari Village and accused Naresh hailed from such village. He deposed that for approximately two years, Kanchan remained with Naresh in Matiari Village and thereafter, Naresh came to Delhi alone. Such arrangement continued for 2/3 years. Her father further deposed that he felt disturbed and told Naresh that it was not appropriate that his daughter was residing at Matiari Village and her husband at Delhi. He further deposed that his daughter died on 13.04.08 and approximately one month before that, father of Naresh had expired and then Naresh had brought Kanchan to Delhi at instance of villagepeople and his relatives. In his further deposition, he claimed that 1 or 2 years after the marriage of Kanchan, Kanchan told him and her mother that Naresh used to demand money for running his work and then he made arrangements with great difficulty and gave Rs. 50,000/. This is all what he has to offer in his FIR No.: 267/08, PS: Nangloi 6 page of 26 examinationinchief. His testimony reveals that he was unhappy on two counts. Firstly, he did not like that his daughter should stay away from her husband. Secondly, he had to make payment of Rs. 50,000/ so that accused was able to do some work. From this testimony, I am not able to decipher any concrete material which may show that there was cruelty or harassment related to dowry. PW6 Manish Kumar Dass has also deposed that accused used to beat his sister and used to demand money from him to establish some shop and, therefore, his father had arranged a sum of Rs. 50,000/ and had given the same to accused. According to defence counsel, father of accused used to remain unwell and in such a peculiar situation, accused had no option but to ask his wife to take care of his father. He also claimed that after the death of his father, Naresh immediately brought Kanchan to Delhi.
15 According to PW2 Mahender Prasad Dass, he was angry with accused as he was earlier living separately in Delhi and Kanchan was living at Village Matiari. He also claimed that Kanchan had come to Delhi twice and earlier on one occasion also, she had come to Delhi approximately one year before her death and stayed there for one month or so. Surprisingly, Manish Kumar Dass does not know anything about this particular fact. He has categorically claimed in his cross examination that he never visited the house of accused in Delhi before the death of Kanchan and he also did not know whether Kanchan had earlier come to Delhi and stayed with accused. Even as regards the FIR No.: 267/08, PS: Nangloi 7 page of 26 demand of money, Mahender Prasad Dass has categorically claimed in his examination that such demand was made after two years of marriage and was for starting some work. There is nothing to show that demand was anyway connected with the dowry.
16 Moreover, even if it is assumed that there was torture or harassment related to dowry, there is nothing to indicate that Kanchan was subjected to cruelty or harassment in this regard soon before her death.
17 PW6 Manish Kumar Dass has tried to come up with improvement in this regard as in his testimony, he claimed that when Kanchan had come to Delhi, she had made a call to them and told them that accused was maltreating her and was demanding money. However, there is no explanation on record as to why he did not tell such fact when his statement was recorded by SDM. I have seen his statement Ex.PW6/C and, nowhere, he made any whisper to such effect. Narration of such fact for the first time in witness box, therefore, does not inspire much confidence.
18 Now, I come to the suicidenote.
19 It is a very vital piece of document and I can understand the dilemma of prosecution as well. Such suicidenote was seized from the FIR No.: 267/08, PS: Nangloi 8 page of 26 spot immediately and prosecution cannot run away from such fact. I have seen the testimony of the concerned handwriting expert as well which absolutely supports the defence plea of suicide. Such suicidenote has been exhibited as Ex.PX and it reads as under:
"Mai Kanchan Devi apne hosho hawaas me likh rahi hai mere marne par me pati Naresh ko jimmedar naa diya jaye mere ma babu ji se bhi yahi request hai.
Aapki Abhaagin Kanchan 12/4/08"
20 Its translated version would be as under: I Kanchan Devi declare in full senses that after my death, my husband Naresh may not be held responsible and I make similar request to my mother and father.
Yours unfortunate Kanchan 12/4/08 21 Suicidenote clearly indicates that Kanchan had committed suicide of her own and she emphatically declared that her husband may not be held responsible for her death. There is no dispute that her admitted handwriting was also collected during the investigation and was sent to forensic laboratory for necessary comparison. PW16 Sh. Anurag Sharma, Sr. Scientific Officer (Documents), FSL, Rohini, has proved report Ex.PW15/E and he categorically opined that the questioned FIR No.: 267/08, PS: Nangloi 9 page of 26 handwriting i.e. suicide note was found freely written and showed natural variations and was found similar to the admitted handwriting and gave final opinion that question handwriting and admitted handwriting have been written by the one and the same person. His such testimony is very decisive. His report is very defined and unambiguous. He noticed natural variations and opined that question handwriting was written freely which clearly means that Kanchan was not made to write suicide note by any one and that she was not under any force or pressure. I am at bay to understand as to how the prosecution can wriggle out of such suicide note?
22 Let me now come to the postmortem report. Dr. Manoj Dhingra is the concerned autopsy surgeon. Injuries observed by him and his opinion is as under: External Injuries:
1) Horizontally placed ligature mark present in the middle of the neck continuous and transverse length being 24 cm and breadth 0.8 cm. Margins of both the sides are bruised.
Skin over ligature mark is soft and red. On description of neck tissue underneath the ligature mark is extravasation of blood.
2) Multiple patchy abrasions on the back of size 8 cm x 4cm to 6 cm x 2 cm. (Twothree abrasions marks present)
3) Bruising present over the right side of the face of size 3 FIR No.: 267/08, PS: Nangloi 10 page of 26 cm x 2 cm.
4) Bruising on the right leg just below the knee joint of size 4 cm x 2cm and 3 cm x 2 cm.
5) Bruising over back of chest. Scalper region of right side of size 3 cm x 2 cm.
Internal Examination:
Head: Left subscalp Hematoma present at left temporal region and parietal region.
Opinion:
The cause of death is asphyxia consequent to ligature pressure over neck structures inflicted by other party. 23 In witness box, he further deposed that he came to such conclusion as ligature marks were found in circular shape and if any person hangs himself or herself then the ligature marks would not be circular but would be obliquely based. He also opined that Ligature marks were ante mortem in nature and sufficient to cause death in ordinary course of nature.
24 His report is very specific. He has completely ruled out suicide and according to him, it's a case of homicide. It was only on his opinion that Section 302 IPC was added. His opinion was primarily based on the fact that ligature mark was found in circular shape and not oblique. FIR No.: 267/08, PS: Nangloi 11
page of 26 Surprisingly, he only opined ligature mark to be ante mortem and did not express his opinion about other abrasions or bruises which can well be post mortem.
25 There are certain unusual factors which compel me to disbelieve the medical opinion which even otherwise is advisory in nature and not binding.
26 PostMortem Report has been proved as Ex.PW15/C and in the postmortem report, it has been mentioned by the doctor that site visit was done along with IO. Postmortem was conducted by him on 15.04.08 and in his crossexamination, he deposed that he had given the opinion regarding the opinion of the death in the postmortem report same day. Thus, if he is to be believed then the postmortem report was given on 15.04.08 but it is not clear as to when he had visited the spot. In his crossexamination, he claimed that he was taken to spot by the IO and he spent 30 months at the spot.
27 I have seen the case dairy in order to assess as to when the doctor had actually visited the spot, if at all he had visited the spot. Case dairy is conspicuously silent as there is no mention to the effect that IO had taken the concerned doctor to the spot at any point of time. So much so, even IO has not said anything in his deposition regarding any such visit of doctor to the spot.
FIR No.: 267/08, PS: Nangloi 12
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28 Moreover, I am not able to find out the genuine and valid reason of
doctor visiting the spot. The doctor had already observed the particular pattern of the ligature mark. Such pattern was circular and, therefore, he was convinced that it was a case of homicide and not suicide. If he was really certain and confident then what was the reason of his going to the spot? If he had actually gone to the spot then it must be automatically assumed that he was lurking some doubt. It, therefore, reflects that he was having some uncertainty with respect to the cause of death as no doctor, under normal circumstances, ventures into such visit.
Undoubtedly, such visit can be undertaken by any doctor in order to reach the root cause of the death and association of doctor is a welcome step but it should reflect from the record and there should be some real purpose behind such visit. Such visit may be useful when there is some element of distrust or improbability. Doctors are normally overburdened and they don't have any time to go the spot. In the present case, prosecution has not been able to explain as to why the doctor had gone to the spot. It is also equally puzzling as to how he remembered such tiny details. He had not prepared any rough notes at the time of his inspection. There is no reasonable explanation or answer to the following facts.
i. When did the doctor actually visit the spot?
ii. Was he alone or accompanied by IO as IO has not made even a whisper that he had gone to the spot with doctor?
FIR No.: 267/08, PS: Nangloi 13
page of 26 iii. Why did the doctor go to the spot if he was so sure that it was a case of homicide?
iv. Where are the photographs of the dead body taken at the time of postmortem in order to clearly indicate that such ligature mark were circular in nature and not oblique?
v. Where is the ligature material?
29 Ligature material i.e. saree piece is very crucial piece of evidence. When the dead body was brought to mortuary and when it was examined by Dr. Manoj Dhingra, ligature in situ was there. Thus, the alleged saree or piece of saree , whatever the case may be, was there in the neck of the deceased but nobody knows as to where such ligature material has vanished.
30 There is no entry in the malkhanna register showing that such ligature material was ever deposited in the malkhanna. It was never brought before the court during the trial. Ld. Prosecutor was asked to make necessary queries from the investigating agency but she could not throw any light on this aspect as no police officer knew about such valuable piece of evidence.
FIR No.: 267/08, PS: Nangloi 14
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31 At the time of framing of charge, I had observed that the
photographs showing the dead body in hanging condition were very crucial in nature. However, to my utter dismay, these photographs have not been proved in accordance with law. When the Crime Team had reached at the spot, such photographs were taken but nobody knows as to who had taken those photographs and where the negatives were?. PW14 SI Baljeet Singh was the Incharge of Crime Team. He had reached at the spot and inspected the same. He has categorically deposed that photographs of the spot could not be taken as the camera of Crime Team's photographer i.e. of Ct. Dalbeer was not in order and photographs were taken by the private photographer summoned by the IO. PW12 Insp Mahender has also deposed that the Crime Team photographer could not take the photographs as his camera developed some snag and, therefore, the photographs were taken by a private photographer. So far so good. Certainly, camera can malfunction. Ld. Prosecutor was again asked to give some concrete clue about the identity of such private photographer so that the photographs could be proved in accordance with law and the negatives are brought on record but again for want of requisite information coming from the side of investigating agency, Prosecution had to meekly surrender. Thus, I am constrained to exclude these photographs from the scope of consideration and discussion as nobody knows as to who had taken the photographs. Negatives are also not there. So much so, the concerned photographer of Crime Team was not even cited as witness. At least, he could have thrown some light. FIR No.: 267/08, PS: Nangloi 15
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32 It is also important to see as to what those police officials have to
say who had reached at the spot immediately. It is very important to note as to what was the condition in which the body was hanging. PW12 Inspector Mahender Singh had reached at the spot along with PW10 Ct. Sunil. According to PW12 Inspector Mahender Singh, he found the dead body hanging from wooden garter of roof with the help of piece of saree. In his crossexamination, he claimed that lot of people were already present outside the house but no one present inside the room where the incident had taken place. He claimed that room was bolted from outside. He was accompanied by PW10 Ct. Sunil but according to PW10 Ct. Sunil, the door was merely closed and not bolted and door got opened by a mere push. Surprisingly, he does not remember as to who pushed the door.
33 As per PW12 Inspector Mahender Singh, that room was a small room having size of 8 ft x 6 ft and a cot and a very small table were lying in that room. He claimed that height of the table was merely 1 or 11/2 feet and cot was a wooden charpai jute knitted. According to him, the height of the ceiling was approximately 9 feet from the ground. He does not remember the exact height of the deceased. If the height of the cot and that of small table is added then it would be around 3 feet. Total height of ceiling was 9 feet from the ground and even the scaled site plan reflects the same. In such a situation, the possibility of suicide by placing the small table over the cot cannot be totally ruled out. FIR No.: 267/08, PS: Nangloi 16
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34 It is also imperative to see as to what was the condition of hanging
body at that point of time. Crime Team had reached at the spot and according to Crime Team Incharge i.e. PW14 SI Baljeet Singh, feet of deceased were in the air and the distance of feet from the floor was about 1 foot. He does not recall exactly but according to him, perhaps the stool was lying near the dead body. Curiously, he does not even remember about the suicide note. Be that as it may, according to the Incharge of Crime Team who is supposed to be an expert and who is supposed to assess the entire crime scene and to reconstruct the same, the feet were in the air and the distance of feet from the floor was about 1 ft. I again lay stress on this issue as according to him, such distance was from the floor and not from the cot. Photographs, though not been proved in accordance with law, show that the feet were over the cot and not over the floor. PW7 Sh. B.P. Mishra, SDM had also reached at the spot and had inspected the spot. He had recommended the registration of FIR and according to his report Ex.PW7/B, dead body's feet were resting on the charpai (cot). Resting means touching. Thus, there is utter confusion as to what was the exact hanging position of the dead body. It is not clear whether the distance between the feet of deceased and floor was 1 feet or whether the feet was in the air just above the cot or whether the feet were resting on the cot. PW10 Ct. Sunil is also one of the two police officials who had reached at the spot at the earliest moment. He does not know whether dead body was hanging by string or rope or chunni. FIR No.: 267/08, PS: Nangloi 17
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35 As already noticed above, ligature material has been held back.
Such ligature material would have certainly thrown some light. As
already noticed above, the concerned doctor had gone to the spot, if he is to be believed and in his examinationinchief, he claimed that he had noticed the mud/dust on the beam from which the deceased was hanging. He even opined that keeping in the mind the height of the beam and the height of the deceased, it was not possible for the deceased to have hung herself. He also opined that there was no other article in the room and the room was dusty. Dr. Dhingra tried to wear the cap of a detective but, nobody knows as to when exactly he had visited the spot. Incident is of night intervening 12.04.08 and 13.04.08. Dead body was examined by Dr. Manoj Dhingra not before 15.04.08 and, therefore, there was no chance of his going to the spot before 15.04.08. Nobody knows whether the spot was preserved till the time the doctor visited the spot. Moreover, as per the police officials, there was a small table as well in that particular room. Doctor does not say so at all. The concerned doctor had even examined the beam and noticed some dust on the beam but his such observation does not take the case of prosecution anywhere. How does it really matter? He had claimed that keeping in mind the height of the deceased and the height of the beam, it was not possible for deceased to have committed suicide but when he was questioned by defence, he answered that height of the deceased was not mentioned in the postmortem report and, therefore, he failed to give the height of deceased.
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36 According to him, ligature mark would always be there
irrespective of quality of fabric and according to him, the manner and shape of ligature mark in the present case was not possible in suicide. He also claimed that it was not necessary that in case of strangulation, blood would come out from nostrils, mouth and eyes. He noticed some bruises on the right side of the face but further deposed that he could not say whether those were out of nail scratches or otherwise 37 As per Modi's Medical Jurisprudence and Toxicology, 23rd Edition, in hanging as well as strangulation, the ligature should be photographed in situ. In the case in hand, there is no close up of such ligature in situ. Nobody knows where the knot was or whether the knot was single or otherwise. Such material is required to be removed by cutting, without untying the knot and it should be measured as well. Position of knot is very important to assess theory of selfsuspension. In the present case, ligature material has gone missing. As per Modi's Medical Jurisprudence and Toxicology, ligature mark depends on nature and position of ligature used and the time of suspension of body after death. Dr Manoj deposed that ligature mark would always be there irrespective of quality of fabric. As per Modi's Medical Jurisprudence and Toxicology, if ligature is soft and body is brought down immediately, there will be no mark. According to Dr. Manoj, death was homicidal as ligature mark was circular. As per Modi's Medical FIR No.: 267/08, PS: Nangloi 19 page of 26 Jurisprudence and Toxicology, even in suicidal hanging, mark may be circular if ligature is first placed at the nape of the neck and then its two ends are brought horizontally forward and crossed and carried upwards to the point of suspension from behind the angle of the lower jaw on each side. Mark can be circular and oblique if ligature is passed around the neck more than once. Post Mortem Report does not specifically say that neck was found notstretched. I feel that it was foremost duty of the doctor to have opined on this aspect either way. Hanging is mostly suicidal. There are no signs or symptoms or injuries which may show that Kanchan was assaulted and murdered. In strangulation, there is chance of bleeding from nose, eyes and mouth which is missing here. Ligature mark pattern itself cannot decide the homicide theory. Moreover ligature mark can appear by application of ligature on neck even after death but Dr. Manoj denies the same.
38 As per Lyon's Jurisprudence and Toxicology, 11th edition, position, direction and character of ligature mark may vary. It has been observed that if a noose is employed, and especially if it is drawn taut before suspension, it will not slip upwards, but will grip tightly at the level of application. The mark might be continuous and may be situated on or even below the larynx. In these respects, it might resemble the mark of strangulation with a ligature.
It has further been observed in Lyon's Jurisprudence and FIR No.: 267/08, PS: Nangloi 20 page of 26 Toxicology, 11th edition as under: "A ligature mark on the neck, corresponding in appearance to a strangulation mark, cannot, by itself be taken as evidence of death by strangulation. Such a mark may be the result of the application of a ligature to the neck after death, or have been accidentally produced by the pressure a tightfitting article of dress, or be the result of putrefactive swelling against a string tied loosely round the neckpseudoligature mark. Hence, even when a ligature mark is found on the neck, corresponding in appearance to a strangulation mark, to establish the fact that death was due to strangulation requires proof that the pressure of such ligature was the cause of death.
Such proof may be afforded by the presence of the general postmortem appearances of death by strangulation. It must, however, be recollected that in hanging, as well as in strangulation by a ligature, death is due to the pressure of a ligature on the neck. Further, that in hanging the presumption is always in favour of suicide, while in strangulation it is in favour of homicide. Hence, in all cases of death from pressure of a ligature on the neck, all appearances indicating the cause of death to be hanging, rather than strangulation, or vice versa, should be most carefully noted."
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39 There are some more distinguishing feature between hanging and
strangulation. In the case of hanging, subcutaneous tissues under the
mark could be white, hard and glistening. In the case of in strangulation, there would be extravasation and the tissues under the mark would be Ecchymosed. In the case of hanging, injury to the muscles of the neck is rare but strangulation injury to the muscles of the neck is very common. In case of strangulation, carotid arteries, internal coats ordinarily ruptur but it is not so in the case of hanging unless there is a long drop. In the present case, undoubtedly, it has been observed by the doctor that there was extravasation of blood under the ligature mark but his such observation itself cannot be said to be sufficient. In such type of matters, there has to be extra care while conducting postmortem and neck and its structure should be examined after removing brain and chest organs and thereby allowing blood to drain from the blood vessels. Moreover, in case of hanging also, the inner and middle coats of the carotid arteries may be found lacerated with extravasation of blood within their walls in case of sudden drop. In such type of matters, portion of skin and deeper tissue in reaction to ligature mark should be examined microscopically for evidence because of tissue reaction which can indicate antemortem hanging. In the present case, it is not clear whether any such tissue reaction evidence was collected or not. There is nothing to indicate that there was any injury to the muscles of the neck. Nothing abnormal was detected with respect to the soft tissues of neck. FIR No.: 267/08, PS: Nangloi 22
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40 There is nothing to suggest that anyone had tried to strangulate
Kanchan. No Crime Team member or other police official observed any such thing or fact at the spot which may show that there was any scuffle or resistance. Bangles worn by deceased are found to be intact and if at all, she had been assaulted by someone, there would have been some sort of resistance from her side. There is no external injury, scratch or bruise or abrasion suggesting any such assault or consequent resistance. 41 It is also important to see as to what was the stand of the accused during the course of investigation and also before the court. Initially, when accused was arrested, police recorded his disclosure on 15.04.08. Undoubtedly, such disclosure statement is not admissible in evidence as it did not lead to recovery of any fact. However, in such disclosure statement, accused confessed that his wife had committed suicide as he used to ask her to bring money and dowry. After the report of postmortem, Section 302 IPC was added and accused was reinterrogated by the police and then accused made another disclosure statement. In such disclosure statement dated 03.07.08, he claimed that he had strangulated his wife with the help of saree and then hanged her. Disclosure statements made by accused has no evidentiary value but it clearly depicts that it is the police which dictates and prepares the statement as per the movement and drift of prosecution case. It seems to me that police has done a mere formality by recording such statements. It only wanted to show that there was substantiation from the side of FIR No.: 267/08, PS: Nangloi 23 page of 26 accused to their theory of homicide. I am quite convinced that no such disclosure statement was ever made by accused and police has created and fabricated the same simply to show that accused concurred with the investigation. Such act is indeed deplorable.
42 Accused moved an application u/s 315 Cr.P.C. and entered into witness box. He claimed that on the previous night, he had gone to his workplace. He used to sell water and according to him, he returned to his house on 13.04.08 at 5:45 am and informed the police about the suicide. He also claimed that there was perfect cordial relationship between him and his wife and there was never any dispute of any nature. He also claimed that his wife was issueless and was taking some ayurvedic treatment. He also examined his neighbour i.e. DW3 Meera and she claimed that deceased had come to her house on the night of saturday i.e. night before the fateful day and asked for water. She further deposed that while returning, deceased apologized uttering "mere se jo galti ho gayi ho, use maaf kar dena" (she may be pardoned for her mistakes) Ld. Defence counsel has contended that such remark clearly reveals the state of mind of Kanchan and shows that she had made up her mind to finish herself. He also examined DW1 Dinesh Dass and DW2 Ashok Dass who also sell water on trolley and are coworker of accused. In his statement u/s 313 Cr.P.C. also, accused claimed that when he returned from his work at about 6 am and pushed the door, he found his wife hanging and he immediately intimated PCR. He is the one who had informed the FIR No.: 267/08, PS: Nangloi 24 page of 26 police and PCR Form also clearly indicates that information was given by none other than accused Naresh Dass.
43 Aluminum Phosphide is basically a poison used to kill pesticides. Aluminum Phosphide, a fumigant pesticide, has a very pungent smell and its homicidal administration is almost impracticable. Such an exercise would certainly result in a scuffle. However, in the present case, there are clearly no signs of scuffle. Furthermore, the presence of digestible food measuring about 60 ML also belies the theory of administration of Aluminum Phosphide. Presence of food material in the abdomen is clearly uncommon in cases of Aluminum Phosphide poisoning primarily on account of vomiting which is bound to occur upon intake of such poison. Moreover, if Aluminum Phosphide was forcibly administered to Kanchan and she was hanged forcibly to show it to be a case of suicide, her body must have been lifted and dragged by her killer. In such a situation, there would have been dragging sign or struggle sign found on her body but there is no such sign at all which also belies homicidal theory and poison theory. Moreover, viscera was sent to FSL through Ct. Mukesh but it is not explained by the prosecution as to why such Ct. Mukesh was not even cited as witness. Moreover, it is not clear as to when exactly the viscera was sent to FSL. Statement of Ct. Mukesh was recorded on 06.07.08 and similarly, the statement of MHC(M) was also recorded on 06.07.08 and their statements reveal that viscera was sent to FSL same day but according to Road Certificate, viscera was taken to FIR No.: 267/08, PS: Nangloi 25 page of 26 FSL on 04.07.08. I cannot rule out the possibility of tampering with the viscera. Moreover, the story of consumption of poison or administration of poison even otherwise seems highly improbable. 44 Moreover, even if I assume for a moment that it was case of homicide, how accused can be straightaway held liable for such homicide. There has to be some positive evidence. It cannot be presumed that only he could have murdered Kanchan and no one else. 45 In view of my aforesaid discussion and keeping in mind the fact that the authenticity of suicide note is not in dispute at all which clearly exculpates accused, I am inclined to grant benefit of doubt to accused. Accused is accordingly acquitted of all the charges levelled against him. 46 He be released from jail, if not required in any other case. 47 File be consigned to Record Room.
Announced in the open court Today i.e. on 03rd June, 2010 (MANOJ JAIN) ASJ/SPECIAL JUDGE (NDPS) OUTER DISTRICT:ROHINI COURTS:DELHI FIR No.: 267/08, PS: Nangloi 26 page of 26