Delhi District Court
State vs Bhaskar And Ors on 6 May, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ-04
CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
CNR No. DLCT01-000576-2008
SC No. 28303/2016
FIR No. 126/2008
U/s. 302/498A/304B/201/34 IPC
PS Prasad Nagar
STATE
vs.
1. Bhaskar
S/o. Sh. Ram Chandra
R/o. H. No. 16/835-E,
PS Road, Bapa Nagar, Karol Bagh,
New Delhi.
2. Praveen @ Pappu
S/o. Sh. Ram Chandra
R/o. H. No. 16/835-E,
PS Road, Bapa Nagar, Karol Bagh,
New Delhi.
3. Bhupinder
S/o. Sh. Ram Chandra
R/o. H. No. 16/835-E,
PS Road, Bapa Nagar, Karol Bagh,
New Delhi.
Date of institution of case : 18.02.2020
Date on which judgment reserved : 08.02.2024
Date on which judgment pronounced : 06.05.2024
Decision : Acquitted.
FIR No. 126/2008 State Vs. Bhaskar and Ors.
PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 1 of 73
JUDGMENT
1. In the present case, the accused persons Bhaskar, Praveen @ Pappu and Bhupinder are facing trial for the offences u/s. 498-A/304B/34 IPC and two accused persons namely Bhaskar and Praveen are also facing trial for additional charge u/s. 201/34 IPC. All the accused persons are also facing trial for the alternate charge u/s. 302/34 IPC.
BRIEF FACTS OF THE CASE
2. Succinctly, the facts of the prosecution case are that on 11.07.2008 complainant Parvati (mother of deceased) went to PS Prasad Nagar and stated that she is living along with her son Naresh and she had four daughters, out of which, one of them namely Madhu had already expired. The youngest daughter is Bhawna @ Pinky, who was married to accused Bhaskar on 08.02.2006. She stated that accused Bhaskar along with his elder brother accused Praveen @ Pappu, mother Krishna Devi and others, used to beat her daughter and subjected her to cruelty and also used to demand dowry. She further stated that on 07.07.2008, when she went along with her daughter Bhawna to her in-laws to leave her there, the husband of her daughter quarrelled with them and said that "mai teri aankh phor donga". It is further alleged that her daughter was admitted in Ganga Ram Hospital FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 2 of 73 on 10.07.2008 and she seems to have been given some substance due to which her daughter died on 11.07.2008 at about 3:30 AM (night). On such complaint of Smt. Parvati Devi, FIR was registered in the present case under Section 498-A IPC.
3. After completion of investigation, final report under Section 173 Cr. P.C. was filed against four accused persons under Section 498-A/304-B/201/34 IPC. One of the accused Smt. Krishna Devi expired during investigation and proceeding against her stood abated.
CHARGE
4. After committal of the case to the Sessions Court, charge under Section 498-A/304-B/34 was framed on 19.02.2010 against the accused persons namely Bhaskar, Praveen and Bhupinder.
5. Additional Charge was framed under Section 201/34 IPC on 11.11.2010 against two accused persons namely Bhaskar and Praveen.
PROSECUTION EVIDENCE
6. In order to establish the culpabilitity of accused persons, the prosecution has examined 20 witnesses.
7. PW-1 ASI Tarsem Kumar was the Duty Officer on 11.07.2008 who recorded the present FIR no.126/2008 PS Prasad Nagar Ex.PW1/A. FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 3 of 73
8. PW-2 Smt. Parvati Devi is the complainant and mother of deceased Bhawna. She stated that Bhawna was married on 08.02.2006 with accused Bhaskar and huge amount was spent on marriage. She alleged that all the house hold articles and jewellery were given to her in- laws but they were not satisfied. PW-2 further stated that after marriage, the in-laws of deceased Bhawna i.e. her husband, dewar Praveen, jeth Bhupinder and mother-in law (since expired) used to torture, harass and pressurize her to bring money from her parents and they were demanding dowry. PW-2 further stated that she had given Rs.20,000/- on one occasion and Rs.25,000/- on another occasion to the in-laws of deceased Bhawna. PW-2 has further stated that three days prior to her death, when PW-2 had gone to drop Bhawna to her in-laws' house, accused Bhaskar quarreled with them and threatened by saying "mai teri aankh phor donga". She further stated that on 10.07.2008, she was informed that her daughter Bhawna was admitted in Ganga Ram Hospital and she also visited her in the hospital but on the next day, her daughter expired in the hospital. She suspected that her daughter was killed by the accused persons. She proved her statement Ex. PW-2/A given to the police and statement Ex. PW-2/B given before the SDM. She proved the marriage card and photographs as Ex. PX and Ex. PX1-PX9 respectively.
9. PW-3 Naresh Kumar is the elder brother of deceased Bhawna. PW-3 has stated that marriage of his sister was FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 4 of 73 solemnized on 08.02.2006 with accused Bhaskar. Huge amount of money was spent on the marriage and household articles were given to the in-laws of deceased Bhawna. PW-3 stated that after 6/7 months of her marriage, Bhawna's husband used to torture her and she was not allowed to visit her parental house. Accused Bhaskar used to talk in a rude manner. Accused Bhaskar would not allow her to call her parents. All the accused persons used to torture her for less dowry. It is further stated by PW-3 that his sister deceased Bhawna told him that her husband Bhaskar, dewar Praveen, jeth Bhupender and mother-in-law Krishna Devi (since expired), used to torture and harass her. They also used to pressurize her to bring more money and dowry from her parents. It is stated that on one occasion Rs.20,000/- was given and on another occasion Rs.25,000/- was given to her in-laws as pressurized by them alleging that they need this money for purchasing goods/material for their shop/business. He further stated that her sister used to telephonically informed her about the torture and harassment given to her by the accused persons. He further stated that on 10.07.2008, he was informed that his sister Bhawna was admitted in Ganga Ram Hospital and he also visited her in the hospital. He also suspected that his sister was killed by the accused persons. He also stated that the accused persons misled them by saying that his sister was bitten by some insect and due to that reason, she was unwell. PW-3 proved his statement Ex. PW-3/A recorded by the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 5 of 73 SDM. He also identified the deadbody of his sister in the hospital vide his statement Ex. PW-3/B and after postmortem, her deadbody was handed over vide receipt Ex. PW-3/C.
10. PW-4 Ct. Ravinder Singh joined the investigation with the IO and proved the arrest of the accused Praveen and Bhaskar vide arrest memos Ex. PW-4/A and Ex. PW-4/B respectively and vide personal search memos Ex. PW-4/C and Ex. PW-4/D respectively.
11. PW-5 Y.P. Malhotra was the Executive Magistrate, Karol Bagh division who conducted inquest proceedings of deceased Bhawna. PW-5 stated that on 11/07/2008, he received directions from SDM Sh. M.T. Kom and went to Ganga Ram Hospital. He recorded the statement of Bhaskar, Parveen, Smt. Parwati (mother of deceased) and Naresh (brother of deceased) Ex. PW-5/A, Ex. PW-5/B, Ex. PW-2/B, Ex. PW-3/A respectively. He proved the documents relating to inquest proceedings as Ex. PW5/C to Ex. PW-5/F.
12. PW-6 ASI Khem Chand was the 1st IO of the present case. On receiving DD No. 6A, he alongwith Ct. Rajesh Kumar reached Ganga Ram Hospital and obtained the MLC of the deceased. He informed the SDM and shifted the deadbody to Maulana Azad Medical College. The deadbody was identified by Bhaskar and Naresh Kumar vide Ex. PW-6/A and Ex.PW-3/B respectively. After postomortem, the deadbody was handed over to the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 6 of 73 accused Bhaskar vide receipt Ex. PW-3/C. He seized the pullandas received from the hospital vide memo Ex. PW- 6/B. He recorded the statement of the complainant Ex. PW-2/A, prepared rukka Ex. PW-6/C and got the FIR Ex. PW-1/A registered. He conducted the search at the house of the deceased but no incriminating material was found. He added the offence u/s. 304B IPC to the present case and further investigation was handed over to SI Ram Niwas.
13. PW-7 Retd. SI Mange Ram was also one of the IO. He seized the photographs Ex. PX-1 alongwith wedding card Ex. PX from the complainant vide seizure memo Ex. PW- 2/C. He formally arrested the accused Bhupender vide arrest and personal search memo Ex. PW-7/A and Ex. PW-7/B respectively. He prepared the charge-sheet and filed the same in the Court. He also received the FSL result and obtained subsequent opinion from autopsy surgeon which is Ex. PW-7/C.
14. PW-8 Inspector Ram Niwas was also one of the IO. He collected the PM report. He also arrested the accused Bhaskar and Praveen vide arrest memo Ex.PW4/A and Ex.PW4/B respectively.
15. PW-9 HC Pharlad Prasad was the Duty Officer on 11.07.2008. He received a message through telephone which was reduced into writing and the same was handed over to ASI Khem Chand. The DD Entry so registered by PW-9 is Ex.PW9/A. FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 7 of 73
16. PW-10 Dr. Sanjay Solanki identified the handwriting and signature of Dr. Vikas Sharma who prepared the MLC of deceased Bhawna which is Ex.PW10/A, having alleged history of insect bite over right forearm.
17. PW-11 W/ASI Suman was the Duty Officer on 10.07.2008. She recorded DD No. 17A and handed over the same to HC Sukhbir Singh. The DD no.17A dated 10.07.2018 is Ex.PW11/A.
18. PW-12 Dr. Amit Sharma conducted the post-mortem on the dead body of deceased Bhawna. He stated that patient was brought with the alleged history of being bitten by an insect on 10/07/2008 at about 11 am at her home. She expired on 11/07/2008 at 3:40 am. He pointed out that one contusion of size of 1.5 cm x 1 cm was present over outer front of right forearm 0.5 cm below right elbow. He further stated that venepuncture wound was present in the middle of contusion. He further observed that subcutaneous tissue and muscle underneath this injury was showing extra vassation of blood. After postmortem, the viscera and skin sample from the injury sites were preserved, sealed and handed over to the IO for chemical analysis. On 28.11.2008, the FSL result and PM report was placed before him for subsequent opinion and he opined that the cause of death was poisoning due to aluminium phosphide. The detailed PM report is Ex.PW12/A and subsequent opinion is Ex. PW-12/B.
19. PW-13 Smt. Indra is the neighbour of accused persons FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 8 of 73 and deceased Bhawna. She stated that on the day of incident, when she saw certain people gathering outside the house of accused persons and she inquired from Bhawna (since deceased) as to what has happened, Bhawna (since deceased) herself stated that some insect had bitten her. PW-3 further stated that at that time, deceased Bhawna was present at the ground floor. She was found to be resiling from her earlier statement and was cross examined by the Ld. Addl. PP for the State.
20. PW-14 Sh. Dev Shankar Singh deposed that in the year 2008, he was employed as Assistant at Clinic of Dr. Rakesh Malhotra, which was situated on Padam Singh Road, Bapa Nagar, Delhi. He further deposed that on 10.07.2008, it was around 2 pm, he was closing the clinic for lunch session and Dr. had already left the clinic. One person came to him and asked him about the Doctor as the Doctor had already left, that person requested him to accompany him. He further deposed that the said person took him at H. No. 16/835E, Bapa Nagar on the third floor where one female patient was lying on the bed on the third floor and she was not feeling good. He further deposed that he asked the patient what had happened to her and she was indicating towards her arm. He further deposed that the family members of the said patient who were present over there, told him that some insect had bitten her. He advised them to immediately shift her to Ganga Ram Hospital. Thereafter, he left from there. He had seen some water on the floor. He had not seen any FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 9 of 73 objectionable material around the patient or in the said room. He was found to be resiling from her earlier statement and was cross examined by the Ld. Addl. PP for the State.
21. PW-15 Daulat Ram is Brother-in-law (Jija Ji) of deceased Bhawna. He stated that on 10.07.2008, at around 3.15 p.m., nephew of accused Bhaskar came to his house and informed him that Bhawna was ill. PW-5 went to the house of the deceased and found that in-laws of the deceased were taking out Bhawna and coming down from stairs. He saw that Bhawna was unconscious and when he asked them as to what has happened to her, they replied that some insect had bitten on the arm of Bhawna. His wife Meena and two other female family members took the deceased to Ganga Ram Hospital by TSR. He alongwith accused Praveen also reached at Ganga Ram Hospital and found that the deceased was in emergency ward. After that he made call to his mother in- law i.e. Smt. Parvati and informed her about the incident. Thereafter, Smt. Parvati reached there. On the next day, he came to know that Bhawna had expired.
22. PW-16 Smt. Bimla is the Sister-in-law (Devrani) of deceased Bhawna, who is stated to be residing in the same house at ground floor. She stated that her mother-in- law Krishna Devi (since deceased) was admitted in Safdarjung hospital on 7th in the month of Sawan. Next day, she went to see her mother-in-law and thereafter on FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 10 of 73 10th of month of Sawan at around 1:00 pm, she saw her sister-in-law Asha had gone to roof for drying the clothes. PW-16 also saw that Bhawna was lying on bed. Asha called her and said that Bhawna was not well. PW-16 went there and asked Bhawna as to what has happened. PW-16 has stated that Bhawna told her that one insect bit her on the right arm in the bathroom while she was taking the bath. Thereafter, Bhaskar, Praveen and Raj Kumar were called. One doctor was also called who said that Bhawna got food poisoning and advised her to shift to Ganga Ram hospital. Thereafter, they took deceased to Ganga Ram Hospital by TSR and in the night of 10th, Bhawna expired.
23. PW-17 Meena is the sister of deceased Bhawna. She stated that on the day of incident, one boy came to her house and informed that her sister Bhawna had fallen ill. When she reached the house of Bhawna, she saw that Bhawna was lying on bed and her hair were wet and tied. She further stated that foul smell was coming from the room and her clothes. One cloth in the size of bandage was tied on her arm. Her husband came after five minutes. When she inquired about the bandage on the arm of Bhawna, one of the sister-in-law (jethani) of deceased Bhawna told that mosquito has bitten her. She further stated that her sister was lying unconscious and she was taken to Ganga Ram Hospital and later on she had expired.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 11 of 73
24. PW-18 Inspector Harish Kumar has also remained the IO. He stated that in May 2010, he received one complaint Mark X on which he made inquiry and came to know that the deceased had vomitted on that day and one Dev Shankar who had initially visited the deceased had seen some fluid near the cot of the deceased but when ASI Khem Chand visited the spot, he did not find any vomitting at the spot and as such there was possibility that the accused might have removed the evidence. Therefore, he filed supplementary charge-sheet u/s. 201 IPC. He also obtained the subsequent opinion on the complaint Mark X from the autopsy surgeon and placed the same on the file.
25. PW-19 Inspector Joginder Singh also remained the IO in the present case. He stated that on 26.01.2011, the complaint Mark X of Smt. Parvati Devi was marked to him and he inspected the spot and prepared the site plan Ex. PW-19/A and filed the same in the Court with his request Ex. PW-19/B.
26. PW-20 Jitender Kumar, Senior Scientific Officer, FSL Rohini examined the blood sample etc. pertaining to deceased Bhawna. He proved his report Ex.PW7/C, in which he opined that Ex.1A (blood sample), Ex.1B (blood sample), Ex.2B (pieces of liver, spleen and kidney) and Ex.2C (blood sample) were found containing phosphide and Ex.2A (stomach and piece of small intestine) was found containing Aluminium Phosphide.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 12 of 73 STATEMENT OF ACCUSED U/S. 313 CR.P.C.
27. Statement of accused Bhaskar U/s. 313 Cr. P.C. was recorded on 11.05.2012 and statements of accused Praveen and Bhupinder U/s. 313 Cr.PC were recorded on 24.05.2012.
28. Additional statement of all the accused persons was recorded on 18.11.2015. Accused persons claimed innocence and false implication. They opted to lead defence evidence.
DEFENCE EVIDENCE
29. The accused persons examined 7 witnesses in their defence.
30. DW-1 Shankar Prasad is Medical Record Technician, AIIMS who brought record Ex. DW-1/A (Colly) and Ex. DW-1/B (Colly) and Mark D1 pertaining to the medical history of deceased Bhawna and stated that as per record she was under treatment at Gynae Department of AIIMS.
31. DW-2 Dr. Mamta Pandey from Sardar Vallabh Bhai Patel Hospital stated that the OPD card Mark B with respect to patient Bhawna dated 04.02.2008 pertains to her hospital but she is unable to identify the writing of the concerned doctor.
32. DW-3 Smt. Malti Devi, LDC, Gynae Department, Lady Harding Medical College brought the summoned record pertaining to deceased Bhawna which is Ex.DW3/A and FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 13 of 73 Ex. DW-3/B. Vide these documents, DW-3 stated that deceased Bhawna was treated at Lady Harding Medical College for gynae problem.
33. DW-4 K.D. Sharma, Record Clerk from Maharaja Agrasen Hospital, Punjabi Bagh brought the record pertaining to the treatment of deceased Bhawna related to gynae problem at their hospital. The relevant documents are Mark XY, Ex.DW4/A, Ex.DW4/B and Ex.DW4/C.
34. DW-5 accused Bhaskar examined himself as defence witness under Section 315 Cr. P.C. He stated that deceased Bhawna was living happily with him. He further stated that deceased Bhawna was suffering from lower abdomen pain and gynae problem. She was being treated from AIIMS, Maharaj Agrasen Hospital, Sardar Vallabh Bhai Patel Hospital, Dr. Mrs. Kochar and Lady Harding Hospital. He further stated that deceased Bhawna had delivered pre-mature infants at AIIMS and thereafter, she was under depression and tension. He further stated that deceased Bhawna was given proper medical treatment for her problem till her death.
35. DW-6 Vijay Kumari is the neighbour of accused Bhaskar and his family. DW-6 stated that she was known Bhawna very well who was wife of Bhaskar. She further stated that deceased Bhawna and accused Bhaskar were living happily and lovingly. They were living separately from other family members on the third floor having separate kitchen. It is further stated by DW-6 that FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 14 of 73 deceased Bhawna used to share her feelings with her and she never complaint of any harassment, beatings or maltreatment given by her husband and her in-laws on account of dowry. She further stated that deceased Bhawna was suffering from lower abdomen pain and some gynae problem. DW-6 further stated that deceased Bhawna also delivered immature infants twice at AIIMS and thereafter, she was under depression and frustration. DW-6 further stated that deceased Bhawna was under
treatment for above mentioned problem and accused Bhaskar used to take her to the hospital regularly. Deceased Bhawna was keen desirous to have a child due to which she was under depression.
36. DW-7 Asha is the wife of accused Praveen. She stated that she is residing at the same address on the ground floor where accused Bhaskar was living with deceased Bhawna on the third floor. She stated that deceased Bhawna was suffering from lower abdomen pain and gynae problem. Accused Bhaskar used to love her and never harass her or demanded any dowry. DW-7 further stated that due to her gynae problem, deceased Bhawna went under depression and was undergoing treatment for the same. She stated that deceased Bhawna used to tell about her disease to her as well as to her neighbours Vijay and Indra. She further stated that the accused Bhaskar used to take Bhawna to the hospitals for her treatment. She further stated that on 07.07.2008, her mother in law namely Smt. Krishna Devi (since deceased) was admitted FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 15 of 73 in Safdarjung Hospital. Bhaskar and deceased Bhawna went to LHMC Hospital for treatment of Bhawna and from there, they went to Safdarjung Hospital where her mother-in-law was admitted and they came on the next day in the morning. She further stated that on 10.07.2008, at about 8/2 p.m., she went to the roof for drying the clothes and in the meantime, deceased Bhawna called her at her room on third floor and showed her right hand and told that some insect had bitten her hand. She immediately called her jethani Bimla and Bhawna told her that some insect had bitten her arm while she was taking bath in the bathroom. Thereafter, she called her husband who was running a shop outside the house on the road and she also called accused Bhaskar. Thereafter, one assistant of doctor namely Dev Karan was called. She also informed the sister of the deceased who was residing in the nearby colony through the son of her jeth. Meena, sister of deceased alongwith her husband came there and the deceased also told her by showing her arm that some insect had bitten her. The assistant of the doctor told them to take Bhawna to the hospital and the deceased Bhawna was taken to Ganga Ram Hospital by the family members except her. In the night, they received the information that Bhawna had expired and later they came to know that she had died due to consuming poison. She further stated that the accused persons including Bhaskar has no role in the death of deceased.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 16 of 73 BACKGROUND
37. After hearing the final arguments, the Ld. Predecessor of this Court acquitted all the accused persons of the charges against them vide Judgment dated 13.08.18.
38. Aggrieved by the said Judgment, State of NCT of Delhi preferred an appeal to the Hon'ble High Court of Delhi. Vide Judgment dated 13.01.20 in Crl. A. 576/2019 and Crl. M.A. 37206/2019, the Hon'ble High Court of Delhi set aside the Judgment passed by the Ld. Predecessor and remanded the case back to this Court for framing alternate charge under section 302 IPC against accused persons and for giving opportunity to the accused persons to cross-examine Dr Amandeep Kaur, for leading additional evidence in defence and for recording statement u/s 313 Cr. P.C. afresh and for the Trial Court to arrive at its own conclusion. The relevant extract of the said Judgment passed by the Hon'ble High Court of Delhi is reproduced below:
"11. Having heard learned counsel for the parties, this Court finds that in the present case the deceased has died due to Aluminium Phosphide poisoning. The said poison was found in the blood and stomach of the deceased-Ms. Bhawna @ Pinky.
12. However, the Trial Court has acquitted the respondents of the charge framed under Section 304B IPC primarily on the ground that Doctor Amit Sharma (PW-12) had deposed that Aluminium Phosphide will not act if given by injection.
13. From the Trial Court judgment, it is apparent that though Dr. Amandeep Kaur, Assistant Professor, Department of Forensic Medicine, Maulana Azad Medical College and Lok Nayak Hospital, New Delhi FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 17 of 73 vide her report dated 12th August, 2016 had opined that "death in this case was due to Aluminium- Phosphide poisoning" and that the said "poisoning can occur..... through injection of the compound in solution form" and the said opinion had been brought on record after furnishing a copy to the respondents, yet the same was not taken into consideration by the Trial Court.
14. While it is true that the opinions of Dr. Amit Sharma (PW-12) and Dr. Amandeep Kaur are advisory and contradictory, yet the Trial Court should have examined both the opinions and given reasons as to why it was accepting one opinion and rejecting the other.
15. Further, this Court is of the view that in the present appeal, it cannot examine as to whether the opinion of Dr. Amandeep Kaur is contrary to medical texts as firstly the said submission has not been examined by the Trial Court. Moreover, as no alternate charge under Section 302 IPC had been framed, this Court if it were to reject the submission of learned counsel for respondents, would not be able to carry the matter to its legal conclusion.
16. Consequently, this Court in exercise of its power under Section 464(2) of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C"). remands the case back to the Trial Court as there has been an omission on the part of Trial Court to frame charge and such omission has resulted in failure of justice.
17. Accordingly, the impugned judgment is set aside and the matter is remanded back to the Trial Court for framing of an alternate charge under Section 302 IPC against the accused persons. The accused persons will be given an opportunity to cross-examine Dr. Amandeep Kaur and to lead additional evidence in defence, if they so desire. The statement of the accused under Section 313 Cr. P.C. shall also be recorded afresh."
ALTERNATE CHARGE
39. On 27.03.21, Alternate charge u/s 302/34 IPC was framed against all the three accused persons to which they pleaded not guilty and claimed trial.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 18 of 73 ADDITIONAL EVIDENCE
40. Dr. Amandeep Kaur, Professor, Department of Forensic Medicine, Maulana Azad Medical College and Lok Nayak Hospital was examined as PW-21, cross examined by the Ld. Counsel for accused persons. The evidence of PW-21 is reproduced below:
"ON SA.
On 10/08/2016, I was posted as Assistant Professor at Department of Forensic Medicine Maulana Azad Medical College & Lok Nayak Hospital, New Delhi. On that day an application was moved by SI Mohit Malik PS Prashad Nagar Delhi seeking clarification in respect of skin samples preserved in case FIR No. 126/2008 PS Prashad Nagar and put forward few queries on which a subsequent opinion vide No. FM/XII/(MLW)/10/OPN/Yr of PM 2008/ OPN/118 dated 12/08/2016 which is exhibited as Ex.PW21/A(running into 3 pages) bearing my signatures at points A on each page, was given by me as follows.
Q-1. What is the purpose of keeping skin samples during the postmortem of deceased?
Ans. The skin samples are preserved from the alleged site of insect bite for analysis of insect toxins.
Q-2. If the purpose of keeping skin samples during the postmortem of deceased to rule out the insect bite then it is requested that please provide the address of laboratory where the skin sample will be sent for expert opinion?
Ans. The samples are sent for chemical analysis to FSL/CFSL where the facility to assess such toxin is available. If not, FSL/CFSL may be contacted for further guidance regarding this matter.
Q-3. During the FSL examination of other two samples i.e. blood and viscera, FSL Rohini opined that aluminum phosphide is found in the body of the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 19 of 73 deceased. Kindly opine whether the above mentioned poison is taken orally or otherwise, also you are requested to please opined whether any insect bite can cause the above mentioned poison i.e. aluminum phosphide.
Ans. The commonest route of poisoning in case of aluminum phosphide is through ingestion of the compound in the form of tablets/powder/solution which is easily available. However, poisoning can occur through inhalation of vapours or through injection of the compound in solution form. Insect bite does not cause aluminum phosphide poisoning.
Q-4. Is it necessary to obtain expert opinion of skin samples when the other samples opined as aluminum phosphide?
Ans. As a cause of death has already been opined as aluminum phosphide poisoning in the subsequent opinion. Further analysis of skin sample is not required.
XXXXXX by Sh. Kishore Kumar, ld. Counsel for all accused persons.
"I have no personal knowledge about this case. I was not the head of the department at the that time when I had given the opinion Ex.PW21/A. I was posted as Assistant professor in the department of Forensic Medicine, Maulana Azad Medical College and Lok Nayak Hospital, Delhi.
Q. Under which capacity you have given this opinion to the police?
Ans. I was authorized by my HOD.
Q. Do you have any such authorization letter to
give said opinion?
Ans. I do not have any such authorization at present and even in the Court file and the same may be called from the record.
It is wrong to suggest that I was not authorized by the HOD to give opinion Ex.PW21/A or that I myself gave the opinion to SI Mohit Malik as per his convenient.
I am doctor of medicine (MD) in Forensic Medicine. I did not conduct any research in the chemicals i.e. FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 20 of 73 hazardous chemical, poison or other chemical even used in the farming or in other fields. I did not conduct research in respect of aluminium phosphide(ALP). Vol., we in forensic medicine do see cases / conduct postmortems which subsequently have been alleged to die of aluminium phosphide (ALP) or thereafter confirmed by forensic science laboratory report. I do not have any knowledge in respect of aluminium phosphide. I rely upon the encyclopedia, my seniors research and their books, scientific literatures etc. in respect of ALP. It is correct that acute aluminium phosphide poisoning is an extremely lethal poisoning; mode of ingestion is usually suicidal in intent commonly accidental and rarely homicidal. It is correct that ALP used as rodenticide, weedicide or pesticide in grain, wheat, rice etc. in tablets form. ALP is available in only powder and tablet forms. It is correct that ALP used in fumigant and oral pesticide. It is correct that if ALP comes in contact with water or moisture in air, it releases phosphine gas which vaporises in air. It is correct that after release of phosphine gas, the residue powder is harmless. It is also correct that on coming to contact with moisture present in air (or with HCL or and water in the stomach), ALP liberates phosphine leaving behind aluminium hydroxide(or chloride) which is harmless and non toxic. The contents of the textbook of Forensic Medicine and Toxicology are correct which is written by Dr. Anil Aggarwal (retired Director Professor). He was my senior. I have seen the book today in the Court. It is correct that commonly the ALP cannot be given by force homicidally as it emits very bad smell like rotten fish and garlic. As far as I know the absorption of ALP through intact skin is rare, hence, if it causes burning on the skin (by ALP or phosphine) is not known to me. I cannot say regarding the mode of intake of ALP in this case if it was ingested, injected or inhaled. I know Dr. Amit Sharma. Dr. Amit Sharma is senior and expert. I have seen the postmortem report and opinion given by Dr. Amit Sharma. The deceased Bhavna had taken ALP orally in the present case as per the FSL report already Ex.PW-7/C. Any tablet / poison tablet when taken orally do appear in blood either by absorption or after metabolism. It is wrong to suggest that I gave my opinion to the police at the instance of the IO and complainant. It is wrong to suggest that I am deposing falsely."
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 21 of 73 EXAMINATION UNDER SECTION 313 CR. P.C. AFRESH
41. Thereafter, the accused persons were examined afresh u/s. 313 Cr. P.C. and they opted to lead evidence in their defence but did not led any further defence evidence and the case was listed for final arguments.
FINAL ARGUMENTS
42. Ld. Addl. PP for the State argued that the prosecution has proved its case against the accused persons beyond reasonable doubt. It is argued that the accused persons misled the doctors by informing that the deceased was bitten by the insect, however, the postmortem report and subsequent FSL result reveal that the deceased had expired due to poisoning. It is argued that the burden was upon the accused persons to prove as to how the deceased had expired. It is further argued that the accused persons have caused disappearance of evidence as they have cleaned the vomiting of the deceased from the place of incident. It is argued that the deceased had died unnaturally under suspicious circumstances and the cause of death is confirmed due to poisoning. It is argued that there is no evidence on record that the poison was consumed by the deceased herself and the circumstances point towards the guilt of the accused persons. It is therefore, prayed that the accused persons may be convicted for the offences charged against them.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 22 of 73
43. Ld. Counsel for the accused persons has filed written submissions and it is argued that the present FIR was registered on the complaint of the mother of the deceased Bhawna against the accused persons (husband and brothers-in-laws of the deceased) u/s. 498A/304 B/201/34 IPC and after thorough investigation, the prosecution had filed charge-sheet against the accused persons and produced 21 witnesses. He further stated that the accused persons also led 7 witnesses in their defence. It is further argued that on the basis of entire evidences and materials on record, the accused persons were acquitted by the ld. Predecessor of this Court vide judgment dated 13.08.2018. It is further argued that after the remand back of the case by the Hon'ble High Court of Delhi, the prosecution produced Dr. Amandeep Kaur as PW-21 and even she has not supported the prosecution's case. She corroborated the version of PW-12 Dr. Amit Sharma (who conducted PM of deceased). It is argued that PW-12 stated that "as there were no evidence of any sign of struggle, injury mark in this case therefore deceased possibly taken the tablet/poison herself". It is argued that both above important witnesses stated that "ALP is available in Tablet and Powder form and same cannot be given via injection". It is argued that Bhawna was conscious and she herself told the witnesses that some insect has bitten on her arm. It is argued that there were no marks of struggle on body of deceased. It is argued that even the star/prime/complainant and independent FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 23 of 73 witnesses stated that Bhawna and Bhaskar loved each other and they were living happily. It is argued that they were living separately having their own mess from other family members. It is argued that accused Praveen and Bhupender were living separately from deceased and Bhaskar and hence, they have no concern and interference in the family of the deceased. It is argued that there was no demand of dowry, harassment, cruelty by accused and his family. It is argued that Bhawna never made any complaint in respect to demand of dowry, harassment and cruelty to police, authority and her family members and the accused never received any dowry or any thing from the side of the deceased. It is argued that Bhawana was suffering from lower abdomen pain and Gyane problem since long time and she was undergoing treatment for her problems from various hospitals. It is argued that she loved the children and wanted to get a child from her womb. It is argued that she had suffered miscarriages and due to above, she was under stress and depression. It is argued that Bhaskar used to provide treatment for Bhawna so that she could deliver healthy child and does not suffer pain. It is argued that whenever she used to suffer any medical problem, Bhaskar used to take her to the doctor and hospital for treatment. It is argued that no incriminating material was found and accused persons cooperated during the investigation and they joined investigation. It is argued that the accused were at their work at the time of incident and they were FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 24 of 73 called by the family members and even the family members also called relatives of deceased and after reaching at home, immediately, Bhasker (husband) took and got admitted the deceased in the best hospital of Delhi/India for her treatment and relatives of both side and neighbors were present in the hospital and cremation ground. It is argued that the dead body of deceased-wife was handed over to her husband (Bhaskar) and he performed the last rituals of deceased in the presence of complainant, both relatives and neighbors. It is argued that till then there was no complaint from the side of complainant against accused persons. It is argued that there was no motive or intention to kill the deceased because there was no complaint whatsoever against accused as they loved each other and living happily and her husband performed all his duties as an ideal husband towards deceased. It is argued that there was no struggle mark on the body of the deceased. It is argued that PW-17 Smt. Meena (sister of deceased) already stated that "I have deposed against accused before the court and police at the instance of my mother, brother, police and also being a sister of Bhawna" and it is also on record that she is mentally ill. It is argued that during the present trial, the complainant (mother of the deceased) i.e. plaintiff had also filed a civil suit for recovery of Stridhan of the deceased against the accused no. l i.e defendant on the similar facts and incidents which was dismissed by the court of Ms. Harshita Vatsayan Ld. CJ (Central), THC, FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 25 of 73 Delhi vide order dated 19.02.2018 on the merits and thereafter, complainant filed an appeal bearing no. RCA no. 63/18. The ld. Appellant Court of Dr. Rakesh Kumar, ADJ-03, (Central), THC, Delhi upheld the decision of the ld. Civil Judge, Delhi and dismissed the same on merits vide judgment dated 05.12.2022 holding that "I am clear view that the plaintiff has falsely stated the facts regarding cause of action having been arisen in her favour to institute the present suit as admittedly, she had never made any demand to return the Stridhan or even had not met the defendant. Therefore, there existed no cause of action. In light of evidence, the bills relied appears to be fake. The plaintiff has also failed to prove the allegations made by her regarding cruelty and harassment committed by the defendant and his family members against her daughter. She has also miserably failed to prove any such demand". It is argued that in the said civil suit, the complainant had leveled the similar allegations and facts as of the case before this ld. Court. It is further argued that the accused persons are innocent. It is further argued that the deceased was suffering from said illness since long time and due to this, she was under
stress and depression and Bhaskar (husband) being an ideal husband performed his duties and also was providing best treatments from various hospitals. It is further argued that he loved her deceased wife very much and they were living happily and separately from the other accused and hence, other accused had no concern or FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 26 of 73 interference in their family life. It is further argued that the complainant also made false and fabricated allegations against mother-in-law of deceased who was already admitted in Safdarjung Hospital even prior to incident. It is further argued that all alleged incidents/facts of the story of prosecution are also false, fabricated and after-thought, as the complainant herself admitted that she never visited at the matrimonial home of her daughter and accused never demanded dowry and the deceased never made any complaint in respect to demand of dowry, cruelty and harassment even before her death. It is further argued that the all accused persons were not present on the spot at the time of incident and they were called by family members when the deceased suffered ill and they also took her to the best hospital with her family members. It is further argued that no incriminating material was found from the spot or from the accused persons. It is further argued that the accused persons cooperated with investigation and there was no reason for causing death of the deceased by the accused persons due to dowry demand or harassment soon before death. It is further argued that the prosecution has failed to prove any motive or intention to kill the deceased. It is further argued that after remanding back, except PW-21, (who has also not supported the prosecution's case) the prosecution has not produced any other evidence/witness and material against the accused persons and on the basis of evidences/witnesses and materials on record, the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 27 of 73 accused persons have already been acquitted by the ld. Predecessor of this Court. It is further argued that there is no allegation of 406 IPC in the present case and there was no cruelty, harassment and demand of dowry by the accused at any time. It is further argued that there are no ingredients/facts/material in the present case to show that soon before her death, Bhawna was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with, any demand of dowry. It is further argued that the prosecution has failed to establish his case beyond reasonable doubts and the accused persons have already rebutted the presumption u/s. 304-B and 113-B IPC and hence, Sec. 304 B, 201, 498 A/34 IPC are not made out against the accused. It is further argued that the prosecution has also failed to give any cogent and material evidence against the accused persons who have been charged u/s. 302 IPC. Therefore, it is respectfully prayed that the accused persons may kindly be acquitted in the present case from all false and fabricated allegations in the interest of justice. Ld. Counsel for accused has relied upon the following judgments in support of his arguments :
i. (2016) DMC 360 DB (Uttar Pradesh)
ii. 1996 CRI.L.J 2733 (P & H) DB
iii. (1) 2007 DMC 708
iv. 2004 (1) JCC 627 SC
v. 1995 CRI.J. 1020 (Rajasthan High Court)
FIR No. 126/2008 State Vs. Bhaskar and Ors.
PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 28 of 73 vi. 1999 CRI.L.J. 356 (Guwahati High Court) vii. 2014 (2) JCC 903 (High Court of Delhi) viii. 1989 CRL.APP.NO-406-SB (P&B) ix. 2002 CRI.L.J. 2246 (Rajasthan High Court) x. 2003 (3) CRIMES 570 (Allahabad High Court) xi. 1992 CRI. L.J 309 (Rajasthan High Court) xii. II 2012 DMC 283 (DB) (Delhi High Court) xiii. 1997 CRI.L.J 2033 (Himachal High Court) xiv. 2012 (3) CRIMES 19 (PAT.) (Patna High Court) xv. (2007) 139 Delhi Law Times 407 (Delhi High Court) xvi. 208 (2014) Delhi Law Times 396 (DB) (Delhi High Court) xvii. 2007 (2) JCC 959(Supreme Court of India) xviii. 2008 (2) JCC 1372 (Supreme Court of India) xix. 2012 (2) JCC 1334 (High Court Of Delhi) xx. VII (2001) SLT 220 (Supreme Court Of India) xxi. 2012 (2) JCC 906 (High Court Of Delhi) xxii. 1999 CRL. APP. 756 (State Of Punjab) (P & B) xxiii. I (2007) DMC 143 (SC) (Supreme Court Of India) xxiv. 2013 CRL. APP. 1308 (Supreme Court Of India) xxv. 2004 CRL.APP.1514 (Tirath Kumar) (Supreme Court ) xxvi. 1993 CRI.L.J. 2766 (Himachal Pradesh High Court) xxvii. 2012 CRI.APP.1145(State Of Punjab) xxviii. 2007 CRA.465(State of West Bengal) xxix. CRL. A.331/1997(Delhi High Court) xxx. CRL. APP.1022 OF 2008 (Supreme Court of India) xxxi. I(2006)DMC377(DB) (Allahabad High Court) xxxii. APPEAL (CRL.) 705 of 2001 FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 29 of 73 xxxiii. W.L.A 331/1997 (Delhi High Court)
44. Ld. Counsel for complainant has also filed written submissions. He stated that at the outset, it is brought to kind consideration of this court that the instant case was never tried in its true perspective, owing to the failure of justice. It is further argued that the Hon'ble High Court of Delhi set aside the Judgment passed by the Ld. predecessor of this Court vide order dated 13/08/2018 by which it had acquitted all the accused u/s. 498A/304 B 201/34 IPC on the ground that none of the sections under which charges had been framed against them for the death of Ms. Bhawna @ Pinky and remanded it back vide its order dated 13/01/2020 to frame alternate charge under u/s. 302 IPC and accused persons were given opportunity to examine Dr. Amandeep Kaur who had opined contradictory to PW-12 Dr Amit Sharma. It is further argued that the Hon'ble High court also observed in Para 18 of its judgment that all the contentions of all parties are left open. It is humbly submitted that in the light of the observations of Hon'ble High court, the complainant is submitting what was not considered by the Ld predecessor Court which resulted into failure of justice in the instant case. It is further humbly submitted that the family members of the accused were made witnesses in the instant case and their submissions alludes towards hiding of facts relevant to determine the instant case. It is further argued that their submissions are untrustworthy vis-a-vis medical and other facts which FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 30 of 73 established that the death of the deceased Bhawna happened under mysterious situations and the accused persons never explained the facts relevant to her death. It is further argued that they concocted a story of insect bite and made the relevant evidence i.e vomiting disappear and mislead the entire trial resulting into failure of justice in the instant case. It is further argued that the deceased Bhawna was married to accused Bhaskar on 08/02/2006 as per Hindu rituals and she expired in the seven years of marriage in her matrimonial home under unnatural circumstances. It is further argued that she was poisoned by the accused persons and a false and cooked up story of insect bite was created to cover their culpable criminal act of murdering a human being. It is further argued that that the deceased was admitted to Ganga Ram Hospital at 3:30 PM on 10/07/2008 by accused No. 1 as per MLC which records the fact that the deceased Bhawna was brought by accused no.1 to Ganga Ram hospital with the complaint that insect bite over (R) forearm at 11.00 AM at his residence 16/835 E Bapa Nagar, Padam Singh Road, Karol Bagh Delhi. MLC also records the fact that the patient (deceased Bhawna) was not fit for statement. It is further argued that in Post Mortem Examination Report (Department of Forensic Medicine, Maulana Azad Medical College), it is clearly mentioned at para (v) that the deceased Bhawna was admitted to Ganga Ram Hospital with alleged history of being bitten by insect on 10/07/08 at about 11 AM at home and she was taken to FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 31 of 73 Ganga Ram Hospital at 3 PM on 10/07/08 where she expired at 3: 40 AM on 11/07/08. It is humbly submitted that the accused persons delayed her admission to hospital deliberately so that she could not be given proper and right treatment. It is further argued that at para (ix) in external examination, Dr. Amit Sharma has mentioned that contusion present over right arm before right elbow and venepuncture wound (query Insect Bite or injection mark) was found present in the middle of the contusion. It is further argued that the subcutaneous tissues and muscle underneath the injury shows extraction of blood. It is further argued that that Ex. PW-7/C the viscera Report/ FSL report mentioned that Aluminium Phosphide was detected in Stomach and Intestine of the deceased Bhawan, hence, the cause of death was poisoning by ALP. It is further argued that the Death Certificate of Ganga Ram Hospital under the signature of Resident Doctor Amit Madaan on 11/07/2008 mentions cause of death as Insect Bite/ Unknown/Poisoning. It is further argued that that Death Report- Unnatural Death by poisoning (Inquest Report) mentions that the deceased was in good health, not suffering from any disease, not taken any medicine, taken Bread and Tea between 10:30 AM and 1:30 PM on 10/07/08 at the commencement of symptom. It is further argued that the deceased started vomiting as first symptom and she was sensible in the intervals of the convulsions. It is further argued that the medical evidence clearly established that the deceased FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 32 of 73 Bhawna was administered poison and a concocted story of Insect Bite was created to cover up the murder by the accused persons. It is further argued that that the story cooked up by the accused persons is revealed in their statements/examinations before the Court. It is further argued that in PMR, it has been found that a condition of stomach hemorrhage congesting the whole stomach which goes on to cook and scientifically prove that there would have been heavy vomiting replete with blood. It is further argued that the accused did not help in fair investigation and made these evidences disappear. It is further argued that when the visible reactions and symptoms of the poisoning by ALP subsided only then the accused persons took the victim to hospital for any medical treatment under a conspiracy to hide the murder and created a false story of insect bite which has been falsified by the fact that the victim was subjected to Aluminium Phoshide poisoning. It is further argued that that the prosecution had to rely on the statement of family members of the accused persons who deposed only to save the skin of the accused persons and lied before the Court about the time, cause of death, vomiting fouls smell and other relevant with be read vis-a-vis statement of PW-14 Dev Shankar and PW-17 Meena who deposed before PW-18 Inspector Harish Kumar that they had seen vomiting and PW-17 was very clear that foul smell was coming out of the room where the deceased was kept and from her clothes. It is further argued that the submissions FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 33 of 73 of PW-13, PW-15, PW-16 may be read vis-a-vis the medical facts and submissions of PW-14, PW-17, PW-18 and PW-19 to cull out the truth and real facts. It is humbly submitted that it has also come on record that all the accused persons came to the spot within 15 minutes in the congested gali which is not motorable. It is further argued that these facts go on to prove that the accused persons were present on the spot. It is further argued that that PW-14 and PW-17 proved beyond unreasonable doubt that the deceased did not make any submission with regard to the insect bite only she indicated towards her forearm where the wound was present which even PW-12 has found out that it needed enquiry whether it is insect bite or injection mark. It is further argued that that the submissions of PW-12 and PW-21 both doctors went on to prove that the death of Bhawna is due to the poisoning (ALP herein ) and PW-21 has established that it cannot be caused by insect bite. It is further argued that PW-12 only opined that ALP is easily available in market and as there was no sign of struggle, injury mark deceased possibly has taken the poison herself. It is further argued that such opinion was unwarranted as he himself found the injury on the right arm in the nature of injection or insect bite he was not sure hence, his opinion with regard to suicide which is merely advisory is not to be relied upon in the instant case. It is further argued that PW-21 had opined that the commonest route of poisoning in ALP case through ingestion of the compound in the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 34 of 73 form of Tablets/Powder/solution which is easily available and poisoning can occur through inhalation of vapours or through injection of the compound in solution form. It is further argued that insect bite does not cause ALP poisoning. It is further argued that the deposition of PW- 21 goes on to establish that the ALP is very pungent and has reiterated the fact that she has seen FSL report PW- 7/C about which it has been opined by PW-12 that the deceased had taken it orally. It is further argued that she has gone to say that ALP poisoning is extremely lethal mode of ingestion is usually suicidal, commonly accidental and rarely homicidal. It is further argued that she has gone to establish that when ALP will come into contact with stomach water it will release Phosphine leaving behind Aluminium hydroxide (or chloride) which is non toxic. It is further argued that that it is humbly submitted that the Phosphine gas is the reason of Pungent foul smell of 20 ALP. It is further argued that the submission of PW-21 may be read vis-a-vis the fact that vomiting and foul smell was found at the spot which was never let to come before the Court. It is further argued that the accused persons flushed the most essential piece of evidence for which only they are liable. It is further argued that that the defence has tried to create a theory that the deceased was suffering from depression as she had given birth the still born and because of that depression she committed suicide. It is further argued that this theory has been created to give a cover to their both FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 35 of 73 mens-rea and actus-reus. It is further argued that the defence has not produced any documents which show that the deceased was treated for depression. It is further argued that all the documents are with regard to Lower abdomen pain suffered by the deceased. It is further argued that DW-1 and DW-2 cannot even identify the signature of the doctors whose signature was there on the documents, they cannot be relied upon. It is further argued that DW-4 has submitted that the summoned record was destroyed hence, it did not prove anything. It is further argued that in their statement u/s. 313 Cr. P.C. the accused no.1 has admitted that he deliberately gave false and fake address in the medical papers showing the treatment of the deceased Bhawna. It is further argued that in his statement, accused No.1 again tried to create a theory that when he alongwith Meena and Bimla was taking the deceased to Ganga Ram Hospital by auto/TSR, Bhawna was conscious and she told them that she had been bitten by some insect. It is further argued that he is lying to save himself under the concocted theory of insect bite which is falsified by the medical proofs. It is further argued that the accused persons have not been able to explain all the incriminating medical evidence and Ex. PW-19/A and the submission of Inspector Harish Kumar who punctured the theory of insect bite which is again proved by Ex. PW-7/CFSL report whereby ALP was found the reason and cause of death which cannot be due to insect bite as per PW-21. It is further argued that in a FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 36 of 73 recent judgment Cr. Appeal no. 301/2015 titled Balvir Singh vs state of Uttarakhand, the Hon'ble SC in para 29 has mentioned that "in such circumstances, the only inference can be drawn is that the Aluminium Phosphide either in liquid form or in the form of tablets was procured by the accused husband and the same was administered to the deceased" and the theory of suicide as sought to be put forward on behalf of appellant/accused is ruled out. It is further argued that in the instant case also, the theory of suicide is ruled out by the facts and circumstances and it gets proved that the the only inference can be had that the accused persons procured ALP and administered it to the deceased and created a concocted theory of Insect Bite. It is thus prayed that the accused persons be convicted for the alleged offences.
LAW, ANALYSIS, AND FINDINGS
45. This Court has heard the rival final arguments and perused the judicial record meticulously.
46. The accused persons are prosecuted for the offences u/s 498A/304B/201/302/34 IPC. The prosecution was under
obligation to prove the following ingredients:
a. That all the accused persons in furtherance of their common intention, jointly subjected deceased Bhawna to cruelty by demanding dowry and committed an offence under Section 498-A/34 IPC.
b. That all the accused persons jointly and in furtherance of their common intention caused the death of Smt. Bhawna within seven years of her marriage by subjecting her to cruelty for fulfillment of their demand FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 37 of 73 of dowry and thereby committed an offence under Section 304B/34 IPC.
c. That accused Bhaskar and accused Praveen jointly and in furtherance of their common intention flushed out the floor where deceased Bhawna had vomited before she died and by doing so, they destroyed the evidence and thereby committed an offence under Section 201/34 IPC.
d. That all the accused persons jointly and in furtherance of their common intention caused the murder of Smt. Bhawna by administering Aluminium Phosphide (ALP) to her and thus committed the offence under Section 302/34 IPC.
FINDINGS WITH REGARD TO THE OFFENCE U/S. 498A IPC
47. With reference to the first point, the prosecution was required to establish the fact that there was a demand of dowry and in furtherance thereof, deceased Bhawna was subjected to cruelty. In this regard, it is important to mention the essential components of Section 498-A IPC which are as follows:
(i) That the perpetrator is the husband or relative of the husband of a woman.
(ii) Such woman is subject to cruelty, which is:
(a) Any wilful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical.
(b) Harassment with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security.
48. Section 498-A IPC was incorporated in the Act 1983 as a response to Dowry Prohibition Act, 1961. Cruelty as FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 38 of 73 defined in this Section, consists of two Clauses as mentioned above in point (ii) (a) and (ii) (b). Section 498- A IPC postulates the wilful conduct on the part of perpetrator. Mensrea is an essential ingredient of the offence. Complainant, in order to substantiate her averments has to prove that there was an unlawful demand from husband or any of his relative.
49. Now, adverting to the facts of the present case, the most important material public witnesses of the prosecution with regard to the allegations of demand of dowry and subjecting the deceased to cruelty are PW-2 Parvati Devi (Mother of deceased), PW-3 Naresh Kumar (Elder brother of deceased), PW-13 Indra (Neighbour of deceased), PW-15 Daulat Ram (Brother in law of deceased). This court shall now analyse the testimonies of these witnesses to conclude whether the alleged offence of Section 498A IPC is made out or not against the accused persons.
50. PW-2 Parvati Devi (mother of deceased) in her testimony mainly alleged that at the time of marriage all the house- hold articles and jewellery were given to the accused persons, but they were not satisfied. She further alleged that the accused persons including the mother-in law (since expired) used to torture, harass and pressurize the deceased to bring money from her parents and as such, the accused persons were demanding dowry. She also alleged that she had given Rs.20,000/- on one occasion FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 39 of 73 and Rs.25,000/- on another occasion to the in-laws of her deceased daughter. She also alleged that three days prior to the death of her daughter, when she had gone to drop her daughter to her in-laws' house, accused Bhaskar quarrelled with them and threatened her.
51. Bare perusal of the examination-in-chief of PW-2 would reveal that there are no specific averments with regard to demand of dowry and subjecting the deceased Bhawna to cruelty. During her cross-examination, PW-2 herself has stated that accused Bhaskar loved his wife very much and they were living happy married life. PW-2 has further stated that since the day of marriage of her daughter Bhawna with accused Bhaskar till her death, she never made any complaint regarding demand of dowry, money, articles, assault or harassment.
52. PW-3 Naresh Kumar (elder brother of deceased) in his testimony mainly alleged that huge amount was spent on the marriage of his sister with accused Bhaskar and household articles given to her in-laws. He alleged that after 6/7 months of her marriage, Bhawna's husband used to torture her and she was not allowed to visit her parental house. He alleged that accused Bhaskar used to talk in a rude manner and did not allow her to call her parents and that all the accused persons used to torture her for less dowry. He alleged that his sister deceased Bhawna told him that her husband Bhaskar, dewar Praveen, jeth Bhupender and mother-in-law Krishna Devi FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 40 of 73 (since expired), used to torture, harass and pressurize her to bring more money and dowry from her parents. He alleged that on one occasion Rs.20,000/- was given and on another occasion Rs.25,000/- was given to her in-laws as pressurized by them alleging that they need this money for purchasing goods / material for their shop / business.
53. During his cross-examination, PW-3 has stated that at the time of marriage of his sister Bhawna, he was residing in a tenanted house. PW-3 further admitted that his sister was suffering from gynaecological problem and was being treated at Lady Harding Hospital, AIIMS, Maharaja Agarsen Hospital, Dr. Mrs. Kochhar Clinic etc. PW-3 also admitted that deceased Bhawna suffered two miscarriages and had also delivered pre-mature child. PW-3 also admitted that accused Bhaskar used to provide treatment to deceased Bhawna so that she could deliver healthy child and do not suffer pain. PW-3 further stated that whenever deceased Bhawna used to suffer any medical problem, accused Bhaskar used to take her to the doctor. It has also been admitted by PW-3 that his sister deceased Bhawna and accused Bhaskar used to love each other a lot. It is further stated by PW-3 that deceased Bhawna never made any complaint to the police, court or any other authority regarding harassment or dowry demand or beating. PW-3 also stated that last rites of deceased Bhawna were done by her husband accused Bhaskar and his family.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 41 of 73
54. PW-2 and PW-3 who are mother and brother of deceased Bhawna, are the vital public witnesses of prosecution and their testimonies are crucial for determining the culpability of the accused persons. A meticulous perusal of their testimonies would reveal that they do not inspire confidence of the Court. None of the duo alleged that at the time of marriage, there was a demand of dowry. They have also not claimed any articles given in dowry nor there is any allegation of Section 406 IPC against accused persons. Both the witnesses have alleged two instances of making payment of Rs.20,000/- and Rs.25,000/- without any specific details and documentary proof.
55. The other material witness PW-13 Smt. Indra who is stated to be the neighbour of accused persons and deceased Bhawna, has turned hostile and has not supported the prosecution case. She stated that on the day of incident, when she saw certain people gathering outside the house of accused persons and she inquired from Bhawna as to what has happened, to which Bhawna herself stated that some insect had bitten her. PW-13 was cross-examined by the Ld. Addl. PP for the State but of no benefit to the prosecution. During cross-examination, PW-13 stated that deceased Bhawna did not vomit in her presence. Certain Court questions were also put to the witness and in response to that, PW-13 stated that on the day of incident deceased Bhawna was lying on bed on ground floor and she was neither smeared with vomiting nor was emitting any foul smell. In her cross-
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 42 of 73 examination by the accused persons, PW-13 stated that when she had talked with deceased Bhawna, she was conscious. PW-13 further stated that deceased Bhawna used to talk with her frequently and used to say that she was living in good condition in her matrimonial house. PW-13 further stated that deceased Bhawna was residing separately on the third floor with her husband. It is further stated by PW-13 that she had not heard that any demand for dowry was made or deceased Bhawna was harassed or beaten up for dowry. PW-13 has categorically stated that deceased Bhawna was living happily with her husband Bhaskar.
56. The next witness PW-15 is Brother-in-law (Jija Ji) of deceased Bhawna who stated in his cross-examination that no demand of dowry was made in his presence.
57. To add further, the accused persons examined DW-1 from AIIMS who produced the record pertaining to the medical history and treatment of deceased Bhawna at Gynae Department of AIIMS. DW-2 from Sardar Vallabh Bhai Patel Hospital produced the medical documents Mark B. DW-3 from Gynae Department, Lady Harding Medical College produced the medical record pertaining to deceased Bhawna for her treatment at Lady Harding Medical College for gynae problem. DW-4 Record Clerk from Maharaja Agrasen Hospital, Punjabi Bagh produced medical record pertaining to the treatment of deceased Bhawna related to gynae problem, at their hospital. All FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 43 of 73 these defence witnesses were cross-examined on behalf of the State, however, no material contradiction has emerged from their cross examination.
58. It is not in dispute that the deceased by suffering from gynae problem for which she was under treatment at several medical institutions. Further, DW-6 Vijay Kumari stated that deceased Bhawna and accused Bhaskar were living happily and lovingly, on the third floor of the building having separate kitchen. She also deposed that deceased Bhawna used to share her feelings with her and she had never complained of any harassment, beatings or maltreatment given by her husband and her in-laws on account of dowry. She further stated that deceased Bhawna was suffering from lower abdomen pain and some gynae problem. DW-6 further stated that deceased Bhawna also delivered immature infants twice at AIIMS and thereafter, she was under depression and frustration. DW-6 further stated that deceased Bhawna was under
treatment for above mentioned problem and accused Bhaskar used to take her to the hospital regularly. She deposed that deceased Bhawna was keen desirous to have a child due to which she was under depression. DW-6 was cross examined on behalf of the State but no contradiction emerged in her statement.
59. DW-7 Asha also stated that deceased Bhawna was suffering from lower abdomen pain and gynae problem, due to which deceased Bhawna went under depression FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 44 of 73 and was undergoing treatment for the same. She further stated that accused Bhaskar used to love her and never harass her or demanded any dowry. DW-7 was cross- examined at length by the Ld. Addl. PP for the State but, no material contradiction has emerged in her cross examination.
60. Accused Bhaskar examined himself as DW-5 and stated that deceased Bhawna was living happily with him. He further stated that deceased Bhawna was suffering from lower abdomen pain and gynae problem. She was being treated from AIIMS, Maharaj Agrasen Hospital, Sardar Vallabh Bhai Patel Hospital, Dr. Mrs. Kochar and Lady Harding Hospital. He further stated that deceased Bhawna had delivered pre-mature infants at AIIMS and thereafter, she was under depression and tension. He further deposed that deceased Bhawna was given proper medical treatment for her problem till her death.
61. It evinces from the aforementioned testimonies on record that though the prosecution witnesses are alleging that deceased Bhawna was treated badly and there was a demand of dowry by the accused persons but to the contrary, the defence witnesses including the accused Bhaskar as DW-5 are alleging that there was no demand of dowry and deceased Bhawna was treated properly and was also given proper medical treatment and was not subjected to cruelty. From the testimonies of prosecution witnesses, two instances of demand of Rs.20,000/- and FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 45 of 73 Rs.25,000/- are coming out but there is no other instance of giving any cash or any article by the parents or brother of deceased Bhawna to any of the accused persons. It is needless to mention that mere allegations of demand of dowry would not suffice in themselves. These allegations have to be much more than mere averments itself. The burden to prove the specific allegation of demand of dowry is upon the prosecution and it was for the prosecution to prove the facts that dowry was demanded. The obligation was upon the prosecution to prove specific instances beyond one or two casual instances of payment, which should be put forward in the form of evidence, which is absent in the present case
62. Though PW-2 and PW-3 have alleged that there was a demand of dowry however, they are not citing any specific incident except payment of money on two occasions. They themselves have stated that this money was given to the accused persons for their necessity as they had to do some business out of the said money. The defence witnesses and even the prosecution witnesses have deposed that deceased Bhawna used to love her husband and her husband was providing medical treatment to her. None of the PWs have disputed the fact that deceased Bhawna was being treated at various hospitals by her husband. It is not the case of prosecution that all the medical expenses of deceased Bhawna or her day to day household expenses occasionally, frequently or regularly were borne by the family of deceased and not FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 46 of 73 by the husband. None of prosecution witnesses have deposed that the expenses of treatment of deceased were not borne by her husband.
63. It is also not the case of prosecution that at the time of marriage, there was any demand of dowry or any dowry in the form of cash and jewellery etc. was given. There are no allegations of Section 406 IPC against the accused persons.
64. The testimonies of PW-2 and PW-3 are nothing but oral evidence which could not be substantiated or corroborated by any concrete evidence. PW-2, PW-3 and PW-13 have deposed that accused Bhaskar and deceased Bhawna used to love each other. PW-16 and PW-17 have also deposed similar facts.
65. Therefore, the testimonies of complainant and other prosecution witnesses cannot be said to qualify any of the essential ingredients of Section 498-A IPC. In different words, the testimonies of prosecution witnesses are insufficient to substantiate the allegations of dowry demand and subjecting the deceased to cruelty. Thus, the charge of Section 498A/34 IPC does not stand proved against the accused persons.
FINDINGS WITH REGARD TO THE OFFENCE U/S 304B IPC
66. Now coming to the allegations pertaining to Section 304B/ 34 IPC. Section 304B IPC reads as under:
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 47 of 73 304B. Dowry Death.
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with,any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation--- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
67. The following are the essential ingredients for establishing the offence punishable u/s 304B IPC:
(a) That there is a demand of dowry and harassment by the accused.
(b) That the deceased died.
(c) That the death is under unnatural circumstances.
(d) That the death has taken place within 7 years of marriage.
(e) That it should also be shown that soon before her death that she was subjected to cruelty or harassment by husband or a relative of husband.
(f) That such harassment or cruelty should pertain to demand for dowry.
68. At the outset, it is important to mention that Section 304B IPC is a special provision which was inserted by the amendment in 1986 to deal with cases of dowry death. It FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 48 of 73 applies to all cases where the death occurs otherwise than under normal circumstances. If other conditions are satisfied, when the deceased committed suicide, still the death comes within the scope of Section 304B IPC.
69. Section 304B IPC has proximate nexus with section 113A and 113B Indian Evidence Act which lays down the presumption in such cases where death of a married woman occurs otherwise than under normal circumstances within 7 years of her marriage.
70. Section 113A and 113B of the Indian Evidence Act, 1872 reads as under:-
113A. Presumption as to abetment of suicide by a married woman.
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative or her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.--- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1960).
113B. Presumption as to dowry death.
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation. --- For the purposes of this section FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 49 of 73 "dowry death" shall have the same meaning as insection 304B of the Indian Penal Code (45 of 1960).
71. In GV Sidaramesh Vs State of Karnataka, [(2010) 3 SCC 152], it was held that there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman.
72. It was further held in Kailash Vs State of MP, [AIR 2007 SC 107], that the words 'soon before' in section 113B Evidence Act cannot be limited by fixing time limit. It is left to be determined by the courts, depending upon the facts and circumstances of the case.
73. In C.Veerudu Vs State of AP, [1989 CRLJ(NOC) 52 (AP)], it was held in that so far as presumption under section 113A Evidence Act is concerned, unless the offence u/s 498A IPC is established, no presumption can be invoked.
74. From the above-mentioned precedents, it is clear that the death must be within seven years of marriage and it should be as a result of cruelty soon before her death and such cruelty should be related the dowry. In the present case, the prosecution has not been able to establish that there was a demand of dowry and the offence under Section 498-A IPC has been committed. In such circumstances, the judgment C Veerudu (supra) applies FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 50 of 73 with full force and vigour.
75. Now, adverting back to the facts of the present case, PW-2 Smt. Parvati (mother of deceased) is the star witness of the prosecution. With regard to the cruelty soon before death or any other cruelty, it is conspicuous that PW-2 has not thrown much light in her entire examination-in-chief. There are only two instances regarding demand of dowry and cruelty as alleged by PW-2 in her examination-in-chief. She has stated that she gave Rs.20,000/- and Rs.25,000/- to the accused persons and when she had gone alongwith her daughter to her in-laws house to drop her there, accused Bhaskar quarrelled with them and also threatened her by saying that "mai teri aankh phor donga". Besides these facts, no other incident has been deposed with regard to the cruelty or harassment of deceased Bhawna, soon before her death or at any point of time.
76. During her cross-examination, PW-2 has stated that the last rites of deceased Bhawna were performed by her in- laws. She also stated that no complaint was ever lodged with the police at any point of time before the death of deceased Bhawna. PW-2 has also admitted that deceased Bhawna was suffering from gynae problem and was treated in that regard by her husband accused Bhaskar. PW-2 during her cross examination categorically stated that accused Bhaskar loved his wife very much and they were living happy married life.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 51 of 73
77. If the evidence of PW-2 is to be considered as it is, it does not prove the essential ingredients of Section 304B IPC. In other words, testimony of PW-2 is not sufficient to bring the case of prosecution within the realm of Section 304B/34 IPC.
78. Coming to the testimony of PW-3 Naresh Kumar, he is the brother of deceased Bhawna and is a material witness. His testimony is most important for proving the story of prosecution. He stated that after the marriage of his sister deceased Bhawna, she was tortured by her husband for dowry, but no specific instance has been deposed by him. He has not disclosed as to how this fact came into his knowledge. He has not deposed whether he was witness to any such incident or someone else had told him. PW-3 has clarified in this regard that his sister deceased Bhawna used to tell him that her husband, dewar Praveen, jeth Bhupender and mother-in-law (since expired) used to torture and harass her, but no details have been furnished by PW-3 as to when any such incident has happened. With regard to payment of Rs.20,000/- and Rs.25,000/-, it is stated by PW-3 that it was given to deceased Bhawna for the reason that it was needed for purchasing of goods/material for their business/ shop. In cross examination, PW-3 stated that he suspects that his sister deceased Bhawna has been killed by accused persons. No specific detail or basis for such belief has been explained by PW-3 as to how he has reason to believe that it was accused persons who had FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 52 of 73 killed his sister deceased Bhawna.
79. With regard to allegations qua 'cruelty soon before death', PW-3 stated that deceased Bhawna was suffering from gynae problem however, accused Bhaskar used to provide treatment to her. He also stated that accused Bhaskar and deceased Bhawna used to love each other. He also admitted that no complaint was ever lodged to the police, court or any other authority qua dowry demand, harassment or beating. It is apparent that testimony of PW-3 also does not suffice for attracting Section 304B/34 IPC against accused persons.
80. The next important public witness examined by the prosecution is PW-13 Smt. Indra. She did not support the story of prosecution and stated that deceased Bhawna told her that some insect had bitten her. PW-13 further stated that deceased Bhawna did not vomit in her presence and when she saw deceased Bhawna on the day of incident, she was not smeared with vomiting nor there was any foul smell coming from her clothes.
81. PW-15 Daulat Ram (brother-in-law of deceased) was the one who reached at the spot in question on 10.07.2008 and saw that Bhawna was lying unconscious and upon inquiry, in-laws' of deceased Bhawna told that some insect bite on her arms. PW-15 also reached at Ganga Ram hospital on same day. Deceased Bhawna was in emergency ward of Ganga Ram hospital when PW-15 made a call to the mother of deceased Bhawna about the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 53 of 73 incident. It is stated by PW-15 that he came to know about the death of Bhawna on the next day. PW-15 in his cross-examination has stated that his wife Smt. Meena, sister of deceased Bhawna was not mentally fit. PW-15 corroborated the fact that Bhawna (since deceased) delivered two dead infants at AIIMS. PW-15 categorically stated that no demand of dowry was made in his presence. Thus, testimony of PW-15 is also of no benefit to the prosecution for the allegations regarding 304B/34 IPC against accused persons.
82. PW-16 Smt. Bimla (Sister-in-law (Devrani) of deceased, is again a material witness who is stated to be residing in the same house at ground floor. She stated that on he day of incident at around 1:00 pm, she saw her sister-in-law Asha had gone to roof for drying the clothes. She also saw that Bhawna was lying on bed. Asha called her and said that Bhawna was not well. She has stated that Bhawna told her that one insect bit her on the right arm in the bathroom while she was taking the bath. Thereafter, Bhaskar, Praveen and Raj Kumar were called. One doctor was also called who said that Bhawna got food poisoning and advised her to shift to Ganga Ram hospital. During her cross-examination, PW-16 has stated that when she reached in the room of Bhawna, she was conscious. She further stated that Bhawna and Bhaskar used to live happily and there was no complaint from her side against the accused persons. She further stated that Bhawna was disturbed as she had delivered two dead child and that she FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 54 of 73 was also being treated at AIIMS. There is nothing in the testimony of PW-16 to support the allegations regarding 304B/34 IPC against accused persons.
83. PW-17 Meena (sister of deceased) deposed that on the day of incident, when she reached the house of Bhawna, she saw that Bhawna was lying on bed and her hair were wet and tied. She further stated that foul smell was coming from the room and her clothes. One cloth in the size of bandage was tied on her arm. Her husband came after five minutes. When she inquired about the bandage on the arm of Bhawna, one of the sister-in-law of deceased Bhawna told that mosquito has bitten her. During her cross examination, PW-17 stated that deceased Bhawna had stated through her gestures that she was given something by syringe. PW-17, however, admitted that she is being treated for mental illness at RML hospital. She has further stated that she has deposed against the accused persons at the instance of her mother and brother and also being sister of deceased Bhawna. By admitting such fact, PW-17 has put her entire statement under doubt. She herself has suggested that she is deposing at the instance of her mother, brother and being sister of deceased Bhawna. Thus, she seems to be an interested witness. Above all, she herself has admitted that she is getting treatment for mental illness from RML hospital for the last more than 5 years. Testimony of PW- 5 is does not substantiate nor it is reliable to prove the allegations of offence u/s. 304B/34 IPC against the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 55 of 73 accused persons.
MEDICAL EVIDENCE
84. Now coming to the medical evidence, Dr. Vikas Sharma had prepared the MLC of deceased Bhawna on the day of incident when she was taken to Ganga Ram hospital, however, he had left the services of the hospital. The prosecution examined PW-10 Dr. Sanjay Solanki who identified the handwriting and signature of Dr Vikas Shrama on the MLC of deceased Bhawna Ex.PW10/A. The MLC reflects the alleged history of insect bite and further states that patient was not fit for statement and referred to further department.
85. Another important witness examined with regard to medical evidence is PW-5 Y.P. Malhotra, the Executive Magistrate who conducted inquest of deceased Bhawna. On 11/07/2008, he went to Ganga Ram Hospital and recorded the statement of Bhaskar, Parveen, Smt. Parwati (mother of deceased) and Naresh (brother of deceased). He proved his inquest report as Ex.PW5/C.
86. Next crucial witness examined by prosecution is PW-12 Dr. Amit Sharma who had conducted the post-mortem on the dead body of deceased Bhawna. PW-12 opined that the cause of death was poisoning due to Aluminium Phosphide and proved the Post-mortem report as Ex.PW12/A. During cross examination, PW-12 stated that most common mode of intake of Aluminium FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 56 of 73 Phosphide is through oral routes in the form of tablet which are readily and easily available in open market. He categorically stated that it will not act if given via injection. He further stated that it is extremely difficult and virtually impossible to give an adult and healthy individual this tablet forcibly. He ruled out the possibility of an struggle of injury mark upon the deceased alleging that there was no evidence of any such sign.
87. PW-20 Jitender Kumar is the witness from FSL Rohini who examined the blood sample etc pertaining to deceased Bhawna and in his report Ex.PW7/C, he opined that Ex.1A, Ex.1B, Ex.2B and Ex.2C were found containing phosphide and Ex.2A was found containing aluminium phosphide. No material contradiction has emerged from the cross examination of this witness.
88. Apart from above, the remaining witnesses are police officials including IO who have conducted the investigation or remained apart thereof. It is important to mention here that neither the incident nor any part thereof has happened in the presence of any of the police officials which is a matter of record. Investigating officers of the case including other police officials have stated whatever has been alleged by the other witnesses and as mentioned in the charge-sheet which is not repeated here for the sake of brevity.
89. Accused persons have also led their evidence in defence and examined 7 witnesses to prove that the deceased was FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 57 of 73 suffering from gynae problems and was receiving treatments from different hospitals viz. AIIMS, Sardar Ballabh Bhai Patel hospital, Lady Harding Medical College, Maharaja Agrasen hospital and to prove that was under depression as she was unable to deliver a child. From the medical evidence led in defence, it evinces that the deceased had delivered immature, still born child twice and she was having difficulty in conceiving the child again due to which she was suffering from depression.
90. From the careful perusal of the evidence on record, it is apparent that the prosecution is not able to shift the burden upon the accused that it were the accused persons who subjected deceased Bhawna to cruelty soon before her death and due to that she died. It is pertinent to mention that the nature of cause of death of Bhawna is not disputed. After considering the testimony of PW-12 Dr. Amit Sharma who conducted the post-mortem of deceased and the testimony of PW-20 Jitender Kumar from FSL, it transpires that poisonous substance i.e. Aluminium Phosphide was found in her body. In other words, the death of Bhawna was not natural for the reason that the cause of death was due to poisonous substance by the name of Aluminium Phosphide.
91. None of the prosecution witnesses, be it PW-2 Parvati Devi or PW-3 Naresh Kumar or PW-16 Bimla or PW-17 Meena has stated anything in this regard that soon before FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 58 of 73 her death Bhawna was subjected to cruelty by the accused persons. As concluded earlier, the testimonies of the PWs do not even qualify the essential ingredients of Section 498A IPC itself. It is apparent that the IO during the investigation has not been able to collect any concrete evidence qua cruelty upon deceased Bhawna. In these circumstances, this Court is of the considered opinion that the prosecution case has not crossed the threshold required to raise the most basic and essential presumption under Section 113B Evidence Act and thus, it has not been able to establish the offence u/s 304B IPC against the accused persons.
92. It is needless to say that Section 113B Evidence Act lays down a presumption, however, there has to be some sufficient and cogent material on which such presumption is based. It has come on record that Bhawna (since deceased) did not die naturally as some poisonous substance by the name of Aluminium Phosphide was found in her body which is the cause of her death. There is nothing on record to suggest that the said poisonous substance was administered to her by the accused persons. This Court is of the opinion that the prosecution has failed to prove the culpability of accused persons beyond reasonable doubt that they had subjected Bhawna to cruelty soon before her death and thereby caused her death or that her death was caused due to their actions.
93. To recapitulate, the following position emerges after FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 59 of 73 consideration of evidence on record:
A) It is a matter of record that marriage of Bhawna (since deceased) took place with accused Bhaskar in Feb 2006 and she had expired on 11.07.2008. The death is therefore, within the seven years of her marriage. It is also reflected from the record that the death is not natural as per post-mortem report and the cause of her death is due to poisoning by Aluminium Phosphide.
B) The allegations of demand of dowry are raised, however, except payment of cash on two occasions i.e. Rs.20,000/- and Rs.25,000/- there is no evidence available on record. There is no specific details and no documentary proof. Further, with regard to payment of such cash, PW-2 and PW-3 have themselves stated that accused persons demanded this money for their necessity i.e. for their business purpose. If, this submission is presumed to be correct, even then it is not leading to conclusive demand of dowry by the accused persons.
C) None of the public witness has stated with certainty that accused Bhaskar or other accused persons used to torture the deceased or subject her to cruelty. To the contrary, it has been said by all the public witnesses and more particularly PW-2 Parvati Devi (mother of deceased Bhawna) and PW-3 Naresh Kumar (brother of deceased Bhawna) that accused Bhaskar and Bhawna (since deceased) were living happily and lovingly.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 60 of 73 D) With regard to cruelty, either with regard to Section 498-A IPC or Section 304-B IPC under the qualification 'soon before her death', none of the PWs have thrown any light on this subject. It is not the case of prosecution nor it is alleged by PW-2 and PW-3 that there was demand of dowry at the time of marriage or thereafter. They did not depose that dowry either in the form of cash or jewellery was given, as per the requirement and demand of accused persons. There is a difference between gift given at the time of marriage and dowry. The difference though, is a thin line difference, however, is of great importance and entirely depend upon the testimonies of prosecution witnesses. Testimonies of any of the prosecution witnesses, in this regard, do not inspire the confidence of this Court.
E) PW-13, PW-15, and PW-16 are the most important witnesses who had seen the deceased just before her death. None of these witnesses have said anything with regard to any cruelty caused upon the deceased. To the contrary, all these witnesses have stated that they were told by deceased that some insect had bitten up on her arm. PW-17 Meena (sister of deceased) deposed that when she reached at the house of Bhawna (since deceased), she was lying on bed and upon inquiry, Bhawna (since deceased) herself had stated that some mosquito had bitten her. None of these prosecution witnesses have alleged that Bhawna (since deceased) had stated that either something was injected into her or she FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 61 of 73 was given some tablets orally against her wishes.
F) It has come on record that the death of Bhawna (since deceased) was not natural and as per report from FSL, poisonous substance by the name of Aluminium Phosphide was found in her body. However, prosecution has not been able to collect any evidence as to how such poisonous substance went into the body of the deceased. The possibility of any force or struggle or taking such poisonous substance through injection has been ruled out by PW-12 Dr. Amit Sharma.
G) PW-13 Smt. Indra (neighbour of accused persons and deceased) stated that deceased used to share all her feelings with her but she never complained against accused persons that she was harassed or subjected to cruelty.
H) No complaint is stated to has been lodged against the accused persons either by Bhawna or by her parents or brother at any point of time that accused persons used to demand dowry or that she was subjected to cruelty or harassment.
I) It is also reflected from the evidence on record that Bhawna was having some gynae problem for which she was being treated at various hospitals and clinic. It has also not been disputed that Bhawna had given birth to two still born premature children and as she was not able to have any child, therefore, she was under some kind of FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 62 of 73 depression.
94. In the light of aforementioned discussions, this Court is of the considered opinion that prosecution has not been able to establish the offence u/s 304B/34 IPC against the accused persons.
FINDINGS WITH REGARD TO THE OFFENCE U/S 201 IPC
95. Now coming to the charge u/s. 201/34 IPC against accused Bhaskar and Praveen, this offence depends upon the prime offence under Section 304-B IPC. In other words, concealing or removing the evidence by the accused persons is always dependent upon and subject to the commission of main substantive crime. As concluded above, the evidence available on record is not sufficient to establish that Bhawna (since deceased) died due to cruelty which was soon before her death, by the accused persons. With regard to Section 201 IPC, though prosecution has examined PW-14 Dev Shankar Singh and PW-15 Daulat Ram who had come to the spot, however, they have not stated with certainty that there was any vomiting found spread on the spot. Only one witness i.e. PW-17 Meena has stated that she had observed foul smell coming from the room and the clothes of Bhawna, however, she also did not see any vomiting on the floor or at any other place. No other PW has stated anything in this regard that he or she saw vomit at the place of incident.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 63 of 73
96. PW-14 Dev Shankar Singh is an independent witness who reached at the spot and had examined Bhawna. PW- 14 had also not seen anything either on the bed or at the floor. PW-14 had stated that he saw some water on the floor. If, the testimony of PW-14 is presumed to be correct, even then it cannot be said with certainty that the water found on the floor was there in order to wash the vomiting. Thus, the testimonies of all the PWs available on record are not sufficient to conclude any of the essential ingredients of Section 201 IPC. Thus, the prosecution has failed to establish its case for the offence under Section 201/34 IPC against the accused persons.
FINDINGS WITH REGARD TO THE OFFENCE U/S 302 IPC
97. The accused persons are alternatively charged u/s. 302 IPC consequent to the observations of the Hon'ble High Court of Delhi in the Judgment on appeal. Regarding the allegations of murder of deceased by the accused persons, it is pertinent to mention that there is no direct evidence. Adverting to the circumstantial evidence, there is no proof on record that the accused persons were present on the spot when the alleged incident had taken place.
98. As per prosecution case, vide DD no. 17A PS Prasad Nagar dt. 10.07.08 at 3.57 pm, Dr. Vikas from Ganga Ram Hospital informed that Bhavna w/o Bhaskar has been admitted been bitten by poisonous insect.
99. Another information was received and recorded at PS FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 64 of 73 Prasad Nagar at 5.15 am on 11.07.2008 vide DD no. 6A. The information was recorded as "समय 5.15 बजज सस बह दजर हह कक इस Central Distt. कज Contral Room नज बजकरयज फफन इतलल दद हह कक 97/HMo 16/835 बललक E पदमकसस ह रफड KB कदललफ मज रद बहन कफ उसकज ससस रलल वललल नज जहर दज कर कबनल हमम बतललए Information कदयज गस गलरलम हसपतलल एडमदट करल कदयल हह । कजसकफ हफसपदटल मम Death हफ गयद हह और वह अभद Hospital मम हह Ph 9990084614 L/Ct Anita No. 8191/PCR हसब आमद इतलल दजर रफजनलमचल कद गई व बरलयज मस नलकसब कलयरवलहद Add SHO सलहब कफ बतललयल गयल कजनहफनज SI रलमकनवलस सलहब कफ इस कलल कज बलरज कलयरवलहद अमल मम ललयम गज कफ कहल कजनकफ फफन बतललयल जल रहल हह । रपट ईतललम दजर रफज कद गयल।"
100. The statement of PW-2 Parvati Devi Ex PW2/A was recorded by the IO wherein she raised that allegations of harassment of deceased Bhawna and dowry demand and causing of death of deceased by the accused persons. On such statement of PW-2, the present FIR was registered.
101. As per prosecution story PW-16 Bimla (jethani of deceased) was informed on 10.07.2008 by her devrani Asha, about the ill health of the deceased Bhavna. PW-16 went to the deceased who told her that one insect had bitten on her arm in the bathroom. After that accused persons Bhaskar (husband of deceased), Praveen (jeth of deceased) and Rajkumar were called. The sister and brother in law of deceased were also called. One doctor was also called.
102. The sister of deceased namely Meena (PW-17) on receiving the said information, reached at the house of her sister Bhawna and there, jethani of the deceased told FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 65 of 73 her that mosquito had bitten her. In evidence, Meena admitted that she has given statement to police wherein she had stated that her sister Bhawna had told her that some insect had bitten on her left arm.
103. PW-15 Daulat Ram (brother in law of deceased and husband of PW-17) also on receiving information reached at the house of deceased, where the deceased was found unconscious and her in laws informed him that she was bitten by some insect.
104. PW-14 Dev Shanker Singh was the assistant at the clinic of Dr Rakesh Malhotra. He was asked by one person to accompany him as the doctor has already left. He went to the spot and found one female lying on bed and on asking, she indicated towards her arm. The family members present there told him that some insect had bitten her. He advised them to take the patient immediately to Ganga Ram Hospital.
105. The MLC Ex PW10/A of deceased reveals that she was brought to Ganga Ram Hospital by her husband accused Bhaskar at about 3.00 pm on 10.07.08 with the alleged history of insect bite on 10.07.08 at around 11 am. She was not fit for statement.
106. During treatment, the deceased Bhawna expired on 11.07.08 at about 3.30 am. Post-mortem was conducted on the dead body of deceased vide PM report Ex PW12/A and the opinion regarding cause of death was reserved for FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 66 of 73 after the viscera chemical analysis, blood sample and soft tissue report.
107. The FSL report Ex PW7/A revealed that stomach and piece of small intestine was found to contain "Aluminium Phosphide" and the blood, pieces of liver, spleen and kidney were found to contain "Phosphide".
108. Vide subsequent opinion report Ex PW12/B, Dr Amit Sharma opined regarding cause of death as follows:
"Answers to the query asked by IO :- Since it is clearly mentioned in the viscera report that Aluminium Phosphide was detected in stomach and intestines, therefore it was taken orally. Poisoning by Aluminium Phosphide is usually suicidal in manner."
109. Vide further report Ex PW12/DA, Dr Amit Sharma responded to the queries posed by the IO as follows:
"Q-1 Whether Aluminium Phosphide can be given through injection or tablet easily available in open market?
Ans:- Most common mode of intake of Aluminium Phosphide is through oral route in the form of tablets of Aluminium Phosphide that are readily available in the open market. It will not act if given via injection.
Q-2 Whether it can be given forcibly to anyone and what is the status in this case?
Ans:- It is extremely difficult and virtually impossible to given an adult healthy individual this tablet forcibly. As there were no evidence of any any signs of struggle injury marks in this case therefore the deceased possibly taken the tablet herself.
Q-3 How much quantity of Aluminium Phosphide is sufficient to cause death in human beings?
Ans:- One tablet of Aluminium Phosphide is fatal if consumed by as person."
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 67 of 73
110. In the subsequent opinion/report dated 12.08.16 by Dr Amandeep Kaur, Assistant Professor, Department of Forensic Medicine, Maulana Azad Medical College and Lok Nayak Hospital, stated as under:
"Ques.3. During the FSL examination of other two samples i.e. blood and viscera, FSL, Rohini opined that Aluminium Phosphide is found in the body of the deceased. Kindly opine whether the above mentioned poison is taken orally and otherwise. Also, you are requested to please opine whether any insect bite can cause the above mentioned poison, i.e. Aluminium Phosphide.
Ans.3. The commonest route of poisoning in case of Aluminium Phosphide is through ingestion of the compound in the form of tablets/powder/solution which is easily available. However, poisoning can occur through inhalation of vapours or through injection of the compound in solution form. Insect bite does not cause Aluminium Phosphide poisoning."
111. Apparently, though Dr Amandeep Kaur opined that the death in this case was due to Aluminium phosphide poisoning but she also mentioned that "the said poisoning can occur ...through injection of compound in solution form".
112. Thus, the opinions of Dr Amit Sharma (PW-12) and Dr Amandeep Kaur were prima-facie contradictory to each other. In this regard, Dr Amandeep Kaur was examined in court as PW-21 and she proved has report as Ex. PW21/A. She deposed that commonest route of poisoning in case of aluminium phosphide is through ingestion of compound in the form of tablets/powder/solution which is easily available, however, poisoning can occur through inhalation of vapours or through injection of the FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 68 of 73 compound in solution form. She deposed that insect bite does not cause aluminium phosphide poisoning.
113. During cross examination, she admitted that she has no personal knowledge about this case. She was not the head of the department at the that time when she had given the opinion Ex.PW21/A. She denied the suggestion that she was not authorized by the HOD to give opinion Ex.PW21/A or that she herself gave the opinion to SI Mohit Malik as per her convenience. She stated that she is doctor of medicine (MD) in Forensic Medicine and she did not conduct any research in the chemicals i.e. hazardous chemical, poison or other chemical even used in the farming or in other fields and she did not conduct research in respect of Aluminium Phosphide (ALP). She voluntarily deposed that they in forensic medicine do see cases/conduct postmortems which subsequently have been alleged to die of Aluminium Phosphide (ALP) or thereafter confirmed by forensic science laboratory report.
114. PW-21 further stated that she does not have any knowledge in respect of Aluminium Phosphide. She stated that she relied upon the encyclopedia, her seniors research and their books, scientific literatures etc. in respect of ALP. She admitted that acute Aluminium Phosphide poisoning is an extremely lethal poisoning; mode of ingestion is usually suicidal in intent commonly accidental and rarely homicidal. She admitted that ALP is FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 69 of 73 used as rodenticide, weedicide or pesticide in grain, wheat, rice etc. in tablets form and that ALP is available in only powder and tablet forms. She admitted that if ALP comes in contact with water or moisture in air, it releases phosphine gas which vaporises in air. She admitted that after release of phosphine gas, the residue powder is harmless. She admitted that on coming to contact with moisture present in air (or with HCL or and water in the stomach), ALP liberates phosphine leaving behind Aluminium Hydroxide (or chloride) which is harmless and non toxic. She admitted that commonly, ALP cannot be given by force homicidally as it emits very bad smell like rotten fish and garlic. She further stated that as far as she knew the absorption of ALP through intact skin is rare, hence, if it causes burning on the skin (by ALP or phosphine) is not known to her.
115. After seeing the PM report and the opinion given by Dr. Amit Sharma, PW-21 stated that the deceased Bhavna had taken ALP orally in the present case as per the FSL report already Ex.PW-7/C. She stated that any tablet /poison tablet when taken orally do appear in blood either by absorption or after metabolism.
116. The allegations against the accused persons are that they caused murder of the deceased by administering Aluminium Phosphide (ALP) to her. It is one of the allegation that the deceased was given some poisonous substance through injection on her arm. First of all, it is FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 70 of 73 confirmed through forensic evidence that the deceased has expired due to Aluminium Phosphide poisoning. Now coming to the question whether the same was administered to her through injection, the answer comes out to be in negative. PW-21 specifically admitted that when ALP comes in contact with water, phosphine gas is released and the residue is harmless. Thus, ALP could not have been administered in solution form through injection. Moreover, PW-21 after going thought the PM report and the opinion given by Dr Amit Sharma categorically deposed that the deceased had taken the ALP orally in the present case. PW-12 Amit Sharma also in clear terms reported that since the ALP was found in blood, stomach and intestines, it was taken orally. Thus, there remained no contradiction in the reports of PW-12 and PW-21.
117. It is the case of prosecution that the deceased was given ALP forcefully, then in this context, it is important to read the cross examination of PW-21 wherein she states that the mode of ingestion is usually suicidal in intent commonly accidental and rarely homicidal. She also admitted that commonly the ALP cannot be given by force homicidally as it emits very bad smell like rotten fish and garlic. In the report Ex. PW12/DA, Dr Amit Sharma reported that it is extremely difficult and virtually impossible to give an adult heathy individual this tablet forcibly and as there were no evidence of any sign of struggle injury marks in this case therefore, the deceased FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 71 of 73 possibly took the tablet herself.
SKIN SAMPLE OF DECEASED
118. The judicial record reflects that vide order dated 29.04.2017, the Addl. PP for State prayed that the skin sample of the deceased be sent for obtaining expert opinion as to whether the alleged bite mark on the skin of the deceased was made by insect or by injection. The ld. Predecessor observed that since this facility is not stated to be available in FSL Rohini and FSL CBI (Lodhi Road), therefore, it was directed that the samples be sent to CFSL Hyderabad to obtain the expert opinion. The order dated 28.02.2018 of the ld. Predecessor of this Court records the report of CFSL Hyderabad that facility for giving the requisite opinion is not available and therefore, no opinion could be given. As such, the sample of skin collected from the deceased lend no credit to the prosecution case.
119. There is nothing on record to suggest that the accused persons administered ALP to the deceased. There is no direct or circumstantial evidence to connect the accused persons to the alleged crime. Thus, the offence u/s. 302/34 does not also stand proved against the accused persons.
FINAL CONCLUSION
120. For the foregoing reasons, this Court holds that the prosecution has miserably failed to prove its case against FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 72 of 73 the accused persons beyond reasonable doubts. The benefit of doubt goes in favour of the accused persons.
121. Hence, all the accused persons namely Bhaskar, Praveen @ Pappu and Bhupinder are acquitted for the offences under Section 498-A/304-B/201/302/34 IPC, charged against them.
122. The bail bonds already furnished under Section 437-A Cr.PC. shall remain in force for 6 months.
123. File be consigned to Record Room after due compliance.
Digitally signed SUSHIL by SUSHIL ANUJ
Pronounced in open court ANUJ TYAGI
Date: 2024.05.06
on 06th May, 2024 TYAGI 14:36:07 +0530
(SUSHIL ANUJ TYAGI)
Additional Sessions Judge-04,
Central, Delhi, THC, Delhi.
FIR No. 126/2008 State Vs. Bhaskar and Ors. PS Prasad Nagar, U/s. 302/498A/304B/201/34 IPC 73 of 73