Himachal Pradesh High Court
______________________________________________________ vs Of on 1 March, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.A No. : 478 of 2009 Reserved on: 26.2.2016 Decided on: 1.3.2016 ______________________________________________________ State of H.P. ...Appellant Versus of Samir Sood. ...Respondent _________________________________________________________ Coram:
rt Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes For the appellant: Mr. Ramesh Thakur, Asstt. Addl. A.G. For the Respondent: Mr. Rajesh Mandhotra and Ms. Kanta Thakur, Advocates.
_________________________________________________________ Justice Rajiv Sharma, Judge.
This appeal is instituted against the judgment dated 25.4.2009 rendered by the Additional Sessions Judge (I), Kangra at Dharamshala in Sessions Case No.4-B/08 whereby the respondent-accused (hereinafter referred to as 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 2 the "accused" for convenience sake), who was charged with and tried for offences punishable under sections 498-A and .
302 of the Indian Penal Code, has been acquitted.
2. Case of the prosecution, in a nutshell, is that on 23.7.2007 at about 4/4.30 P.M., mother of lady constable Anuradha (deceased) telephonically informed of from village Thural that she has come to know that her daughter Anuradha has consumed poison and died. She rt suspected that her daughter has been killed. This information was recorded in the daily diary in the Police Station, Baijnath. Thereafter, SI Tameshwar alongwith police officials went to the spot. Statement of the mother of deceased Smt. Daya Kumari was recorded under section 154 of the Code of Criminal Procedure vide Ex.PW-1/A. According to the contents of Ex.PW-1/A, deceased Anuradha was married with Samir Sood for the last 8 years. She was working in the Police Department. Accused started harassing Anuradha and she disclosed to her mother. Mother used to advise her daughter and her husband to live peacefully. Mother of the deceased further claimed in her statement that about 2 years back ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 3 Anuradha informed her on telephone that she had taken poison. She asked her mother to take her child and when .
the mother alongwith other relatives Ashok Kumar and Ajmer Singh came to the house of deceased Anuradha, she disclosed that her husband Samir Sood used to harass her.
She further asked her mother to accompany her, but after of advising her daughter and son-in-law to live peacefully, mother came back. She further claimed that on 19.5.2007, rt husband of her daughter disclosed on telephone that he suspects the character of his wife and thereby called her to his house. She came to the house of her daughter. The husband of her daughter disclosed that his wife Anuradha used to go here and there during night and further levelled allegation of illicit relation with his driver. The husband used to take her entire salary. On 23.10.2007 at about 4.00 P.M., she was informed by her son-in-law Samir Sood that Anuradha has taken poison. Police Station, Baijnath was informed. Mother alongwith her husband and other relatives went to the house of accused where the dead body of Anuradha was lying. Cause of death was due to phosphide poisoning. Statement of one Rajinder Kumar ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 4 was also recorded under section 164 of the Cr.P.C. The police investigated the case and the challan was put up in .
the Court after completing all the codal formalities.
3. Prosecution examined as many as 23 witnesses to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. According to the of accused, FIR has been registered under pressure of the police. The trial court acquitted the accused. Hence, the present appeal.
rt
4. Mr. Ramesh Thakur, learned Asstt. A.G. has vehemently argued that the prosecution has proved its case against the accused.
5. Mr. Rajesh Mandhotra and Ms. Kanta Thakur have supported the judgment rendered by the learned trial court.
6. We have heard the learned counsel for the parties and have gone through the judgment meticulously.
7. PW-1 Daya Kumari deposed that her daughter was serving in the Police Department. She was married with accused Samir Sood 8-9 years back. After 4-5 years of the marriage, accused started harassing her daughter.
::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 5Her daughter used to tell her on telephone about her harassment by the accused. She used to make her .
understand to live peacefully with her husband. The accused had love marriage with her daughter and due to this reason they had not gone to their house for 2-3 years after the marriage. Two years before her death, her of daughter had telephonically informed her about her having consumed poison and she had requested to take her son.
rt She alongwith her brother-in-law Ashok, Ajmer and Harbans went to the house of accused. When they reached in the house of her daughter she told that accused had been harassing her and also giving beatings to her. She requested the accused and deceased to live peacefully. On 19.5.2007, accused telephonically informed her in the morning that character of her daughter was not good. He requested her to go to his house. Accused had sent his vehicle for her. She visited the house of accused. She found S.H.O. Baijnath Shreshtha Thakur, her Bhabhi and 3-4 servants of accused present there. Accused told her that his wife was having illicit relations with drivers and she should be taken back. She asked him not to level such ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 6 allegations as such allegations will only defame both the families. Her daughter denied the allegations. There was .
injury on the head of her daughter. Her daughter told her that accused takes her salary and also sold her vehicle and taken her Rs. 40,000/-, which was withdrawn from her account. She was informed at about 3.30 P.M. on of 23.10.2007 about consumption of poison by her daughter.
She telephonically informed her husband in the shop. She rt informed Police Station, Baijnath. She told the police that her daughter has been poisoned to death by the accused.
Thereafter, she, her husband and brothers-in-law went to the house of the accused. Her statement was recorded under section 154 Cr.P.C. vide Ex.PW-1/A. She has admitted in her cross-examination that her daughter had not visited her house even after giving birth to her son.
She has also admitted that son of her daughter was 7 years old. She has also admitted that her husband had gone to the house of accused for the first time at the time of death of her daughter. She has also admitted that she did not make any report about the injury sustained by her ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 7 daughter. She has also admitted that the accused was well-to-do contractor.
.
8. PW-2 Mahinder Singh is the father of deceased.
According to him on 19.5.2007, accused had severely beaten his daughter and the stitches were applied. His wife, Ajmer and Ashok had gone to the house of accused.
of Accused apologized. However, no report was made to the police or to any other authority. His wife had told him that rt accused had severally beaten their daughter and she had also told her that the allegations were false. In the year 2005 also, accused had given beatings to their daughter.
She was turned out from the house. The matter was not reported to the police or before any other authority since they had made the accused realized. He had also apologized not to beat and harass their daughter in future.
In his cross-examination, he has admitted that from the time of residing with the accused till her death, their daughter Anuradha had not visited their house. He has never met his daughter when she started residing in the house of accused. He came to know about the illicit relations of accused with SHO Shreshta. He did not make ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 8 any report against her or against the accused to the higher authorities.
.
9. PW-3 Brahmi Devi testified that she was maid servant in the house of accused in the year 2007.
Anuradha was serving in Police Station, Baijnath. She used to stay back during night in their house. Anuradha of used to come for lunch from her duty and again she used to go back for duty and returned to the house in the evening.
rt Accused and his wife Anuradha used to reside together in the house. On 23.10.2007 Anuradha came for lunch from duty. Her son was also present. Accused had just arrived from his tour. She had prepared the food for them which comprised of rice, Kari and vegetable of potato and Bari. She served them food. Anuradha did not take lunch. She told her that she was feeling something bad in her chest and thereafter she went to sleep. She was declared hostile by the learned Public Prosecutor. She has admitted that she had also taken the same food and nothing had happened to her. She denied the suggestion that the food was served to the son of accused on a cot in the separate adjoining room. She has admitted that ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 9 accused had taken food. She has denied that Anuradha had vomited after taking lunch though she vomited. She .
has denied that Anuradha was perfectly alright when she came for lunch. She denied that accused had mixed the poison in the food served to Anuradha and due to consuming poisonous food she died. In her cross-
of examination by the learned defence counsel, she admitted that vomiting of Anuradha consisted of yellow water and nothing else.
rt
10. PW-4 Ajmer Singh deposed that deceased Anuradha was his niece. She contacted love marriage with the accused. In December, 2005, she had gone with his sister-in-law to the house of accused. His brother Ashok Kumar was also with them. His sister-in-law told them that Anuradha was given beatings by the accused. He noticed injury on her person. When they asked the cause for dispute, she told them that accused was suspecting her illicit relations with someone else. When his sister-in-law prevailed upon the accused, he apologized. Thereafter, during summer accused had given beatings to the accused in the year 2007. He, his brother Ashok and sister-in-law ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 10 went to Police Station, Baijnath. The accused again apologized. In his cross-examination, he admitted that .
Anuradha had left her parental house about 13 years back.
He also admitted that after leaving the parental house, Anuradha never came back to their house during her life time. He also admitted that after abandoning their house of by Anuradha they snapped their social relation with her.
11. PW-5 Rajinder Kumar was working as servant rt in the house of Samir Sood. He did not know that accused had been harassing and beating Anuradha. The accused never told him that some one had been coming to his house and he had requested him to perform the duty of a guard. He was declared hostile and was cross-examined by the learned Public Prosecutor. His statement was also recorded under section 164 Cr.P.C. vide Ex.PW-20/C. He had given the statement before the Magistrate, Baijnath where the police official who had given beatings to him was also present and as per his instructions whatever he was instructing he was stating the same. He has denied the suggestion that Magistrate had given time to him to reflect.
He also denied that the Judicial Magistrate, Baijnath had ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 11 read over statement after writing to him, which has been stated to be recorded under section 164 Cr.P.C.
.
12. PW-6 Jeewan Lal deposed that he was working in the shop of Samir Sood. The accused had never told him about coming 3rd person in his house. He was declared hostile and cross-examined by the learned Public of Prosecutor.
13. PW-10 Ashok Kumar testified that two years rt prior to the death of deceased, her mother had told him that accused and deceased Anuradha had a quarrel. He, his Bhabhi (mother of deceased) and his cousin Ajmer Singh had gone to Police Station, Baijnath. Thereafter, they went to the house of accused. The deceased and accused were present in the house. He had not seen the injury on the person of Anuradha. They impressed upon the accused not to give beatings to the deceased. Accused gave assurance not to beat and quarrel with Anuradha. In his cross-examination, he has admitted that information regarding the death of deceased had been telephonically conveyed by accused to the father of deceased. He has also ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 12 admitted that they had snapped their relations with the deceased after the marriage with the accused.
.
14. PW-11 Amit Kumar has deposed that he was serving with the accused Samir Sood. Wife of the accused was serving in the Police Department at Baijnath. He used to take the deceased to the Police Station and bring her of back. Deceased Anuradha never told him on telephone about having pain in her throat. He was cross-examined rt by the learned Public Prosecutor.
15. PW-12 Dr. Tilak Bhagra has conducted the post-mortem examination of the deceased. The report is Ex.PW-12/B. He gave the final opinion vide Ex.PW-12/D. The cause of death was due to consumption of phosphide.
16. PW-13 Dr. Jitender Kaul has deposed that on 31.10.2007, Police had moved an application Ex.PW-13/A for ascertaining probable cause of death of deceased Anuradha. He gave his opinion vide Ex.PW-13/B. According to his opinion, death of deceased was possible by poisoning. On 21.1.2008, Police had moved another application Ex.PW-13/C to know whether the poison could be given without the consent of a person. He gave his ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 13 opinion Ex.PW-13/D. In his cross-examination, he has admitted that aluminium phosphide poison gives peculiar .
smell when it comes in contact with water. He has also admitted that food item such as prepared Dal and Kari contain water contents and if aluminium phosphide poison is added and mixed in Dal, Kari and any other liquid, it will of give such a pungent smell that could easily be detected.
He has also admitted that such type of food in which rt aluminium phosphide is mixed cannot be consumed by anyone.
17. PW-19 SI Mangat Ram has testified that he was working as SHO, Police Station, Baijnath in the year 2007.
He has partly investigated the case. He has admitted that the witnesses of the locality have not been associated in this case as witnesses. He has also admitted that in the statement of Renu Sharma, time of arrival of deceased Anuradha in the hospital and of her death has not been recorded.
18. PW-20 Ajay Mehta has recorded the statement of Rajinder Kumar under section 164 Cr.P.C.
::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 1419. PW-21 Dr. Gaurav Srivastav examined the deceased at about 3.55 P.M./4.00 P.M. The patient was .
unconscious and the blood pressure was not recordable.
He administered life saving injection to the patient;
however, she could not survive.
20. PW-23 S.I. Tameshwar Thakur has deposed of that deceased used to go to her house during lunch hours from Police Station. She used to come to the Police rt Station, Baijnath at 10.00 A.M. from her house and thereafter she used to go in the evening at 5.00 P.M. On 23.10.2007, Anuradha had gone to take lunch from Police Station, Baijnath to her house. He recorded the statement of mother of deceased under section 154 Cr.P.C. vide Ex.PW-1/A.
21. PW-2 Mahinder Singh has categorically admitted in his cross-examination that from the date deceased started residing with the accused till her death, his daughter has never visited their house. He has also admitted that they had snapped their relations with Anuradha after her marriage with the accused being from different caste. He has also admitted that when he came to ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 15 know about illicit relation of the accused with S.H.O. Shreshta Thakur, he had not made report against her or .
accused to the higher authorities. Similarly, PW-4 Ajmer Singh has also deposed that Anuradha had left her parental house about 13 years back. He has also admitted that after leaving parental house, Anuradha had never of come back during her life time. They had snapped their social relations with her. PW-1 Daya Kumari has deposed rt that accused used to beat her daughter. He was suspecting her character. He had given beatings to Anuradha on 19.5.2007, but no report was lodged either before the police authorities or any other authorities by her. Similarly, PW-2 has also admitted that no report was ever lodged about the beatings given to her daughter by the accused. PW-10 Ashok Kumar has deposed that it was the accused who informed the father of deceased about her death. He has also admitted that they had snapped their social relations with deceased Anuradha after her marriage with accused. PW-2 Mahinder Singh has also admitted that he has never met his daughter after her marriage till her death since the social relations between the deceased ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 16 and her family were snapped. Thus, the version of PW-1 Daya Kumari, PW-4 Ajmer Singh and PW-10 Ashok Kumar .
cannot be believed that they had visited the house of deceased when the accused used to maltreat the deceased.
The cause of death is phosphide poison. According to the prosecution, accused had administered poison to the of deceased by mixing poison in her food. The post-mortem report is Ex.PW-12/C. According to it, cause of death was rt due to phosphide poisoning. According to Ex.PW-12/C, phosphine gas was detected in of Ex.P/1-1, P/1-2, P/1-3, P/1-4 and P/3. PW-3 Brahmi Devi has categorically deposed that she had prepared the food for the family, which comprised of Rice, Kari and vegetable. She served the food but Anuradha did not take lunch as she told that she was feeling something bad in her chest and thereafter she went to sleep.
22. PW-13 Dr. Jitender Kaul, who also conducted the post-mortem with PW-12 Dr. Tilak Bhagra and Dr. Bindu Sood, has deposed in his cross-examination that aluminium phosphide poison gives peculiar smell when it comes in contact with water. He has admitted that if ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 17 aluminium phosphide poison is added and mixed in Dal, Kari and any other liquid, it will give such a pungent smell .
which can be easily detected. He has also admitted that such type of food in which aluminium phosphide is mixed cannot be consumed by anyone.
23. Their Lordships of the Hon'ble Supreme Court of in Jaipal vs. State of Haryana, (2003) 1 SCC 169 have held that phosphine released from zinc phosphide (rat rt poison) and from aluminium phosphide, is mainly used as fumigant to control insects and rodents in food grains and fields. Aluminium phosphide is available in the form of chalky-white tablets and when the same are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reason takes place liberating phosphine gas (PH3). Their Lordships have further held that if only the tablet given by the accused to the deceased was celphos it is not likely that the deceased would have consumed it inasmuch as the pungent smell of celphos would have alerted P and S and certainly the deceased would not have consumed the tablet. Their Lordships have held as under:
::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 18[15] Dr. Sharma's opinion, as expressed during his deposition, has authoritative support. Modi in Medical Jurisprudence and Toxicology (Twenty-Second Edition) .
states (at pp. 197-198) that aluminium phosphide (celphos) is used as a fumigant to control insects and rodents in food grains and fields. In reported cases of poisoning, symptoms which have been found are burning pain in the mouth, throat and stomach, vomiting mixed with blood, dyspnoea, rapid pulse, subnormal temperature, loss of co-ordination, convulsions of a clonic nature and death.In the solid form, it acts as corrosive in the mouth and throat as it of precipitates proteins. In post-mortem appearance, the tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety.The intestines rt are inflamed.
[16] According to Modi symptoms and signs of poisoning by aluminium phosphide are similar to poisoning by zinc phosphide (p. 197, ibid). The chief symptoms after the administration of zinc phosphide are a vacant look, frequent vomiting with retching, tremors and drowsiness followed by respiratory distress at death. -inc phosphide acts as a slow poison and is decomposed by hydrochloric acid in the stomach with the liberation of phosphine which acts as a respiratory poison. Being a very fine powder zinc phosphide adheres firmly to the crypts in the mucous membrane of the stomach, and a very small quantity only in the stomach even after vomiting is sufficient to cause death by slow absorption.
[17] Phosphine released from zinc phosphide (rat poison) and from aluminium phosphide, is mainly used as a fumigant to control insects and rodents in food grains and fields. Liberated from the metal phosphide by the action of water or acids, gaseous phosphine exerts more potent pesticidal action, for it penetrates to all areas otherwise inaccessible for pesticide application.
Pathological findings from phosphine inhalation are pulmonary hyperemia and oedema. It causes both fatty degeneration and necrosis of liver. (p. 174, ibid) [19] We may briefly sum up the opinion of the learned authors from their published paper. Phosphine gas (active ingredient of ALP) causes sudden ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 19 cardiovascular collapse; most patients die of shock, cardiac arrhythmias, acidosis and Adult Respiratory Distress Syndrome (ARDS). Aluminium phosphide is .
available in the form of chalky white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phsophene gas (PH3) which is the active ingredient of ALP. This gas is highly toxic and effectively kills all insects and thus preverves the stored grains. When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and of within minutes phosphine gas dissipates and spreads into the whole body. The gas is highly toxic and damages almost every organ but maximal damage is caused to heart and lungs. Sudden cardiovascular collapse is the hallmark of rt acute poisoning. Patients come with fast thready or impalpable arterial pulses, unrecordable or low blood pressure and icy cold skin. Somehow these patients remain conscious till the end and continue to pass urine despite unrecorded blood pressure. Vomiting is a prominent feature associated with epigastric burning sensation. The patients will be smelling foul (garlic like) from their breath and vomits. Many of them will die within a few hours. Those who survive for some time will show elevated juglar venous pressure, may develop tender hepatomegaly and still later Adult Respiratory Distress Syndrome (ARDS), renal shut down and in a very few cases toxic hepatic jaundice. The active ingredient of ALP is phosphine gas which causes extensive tissue damage. A spot clinical diagnosis is possible in majority of cases of ALP poisoning. However, ALP on account of its very pungent smell (which can drive out all inmates from house if left open) cannot be taken accidentally.
[23] Thus on the state of the evidence as it exists we cannot conclude positively that aluminium phosphide (celphos) was administered to the deceased.
This finding has also to be read in the light of very pertinent statement made by Smt. Beena. According to her while the accused and the deceased were busy talking in the inner room, the witness was sitting just outside in the outer room.
When she entered in the inner room Prakash Devi complained of feeling uneasy.::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 20
She never stated that she was administered anything by the accused or anything given by the accused was consumed by the deceased or that anything which the .
deceased was made to consume by the accused was the cause of her feeling of uneasiness. On the contrary it was in the presence of the witness Smt. Beena that the accused offered to give the deceased a tablet which could remove the feeling of uneasiness. Such tablet according to Smt. Beena was of two colours; its half portion was blue and half portion was white. Such could not have been the colour of celphos tablet. If only the tablet given by the accused to the deceased of was celphos it is not likely that the deceased would have consumed it inasmuch as the pungent smell of celphos would have alerted Prakash Devi and Smt. Beena and certainly the deceased would not have consumed the tablet. It also sounds rt unnatural, and therefore, doubtful, if the accused would administer any poisonous tablet to the deceased by calling her to his house and at a point of time either when Smt. Beena was sitting just outside the room or when she was present inside the room. The presence of smell in the room, if any celphos tablet had remained in open there would not have escaped the attention of Smt. Beena.
But she does not depose to the presence of any smell in the room having been felt by her.
24. Moreover, PW-3 Brahmi Devi in her cross-
examination has specifically denied that poison was mixed in the food served to Anuradha by the accused and that due to consuming such poisonous food she died. PW-5 Rajinder Kumar who had given statement under section 164 Cr.P.C. has turned hostile. PW-6 Jeewan Lal has also turned hostile. He has denied that accused has never told about coming third person in his house. PW-11 Amit ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 21 Kumar has specifically deposed that Anuradha has never come to reside with them. He was also declared hostile.
.
25. In case aluminium phosphide had been added to the food, it could be easily detected even as per statement of PW-13 Dr. Jatinder Kaul. When aluminium phosphide is taken out and comes in contact with of atmospheric moisture and the chemical reaction takes place liberating phosphine gas (PH3) this gas is highly rt toxic. This food could not be consumed. Phosphine gas gives poisonous smell as per the statement of PW-13 Dr. Jatinder Kaul. PW-2 Mahinder Singh, father of the deceased, has also levelled allegations against the accused that he was having illicit relations with SHO Shreshta, but he has never made any complaint to the higher authorities.
26. The deceased was serving in the Police Department. In case she was given beatings by the accused, she would have lodged the complaint in the Police Station where she was working. The prosecution has failed to prove that accused has killed the deceased by mixing poison in her food and has also failed to prove any specific act of cruelty or harassment to the deceased by the ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP 22 accused. The version of the prosecution that the accused has administered the poison to the deceased forcibly .
cannot be believed since she was healthy person working in the Police Department.
27. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to of prove the case against the accused for offences punishable under sections 498-A and 302 of the Indian Penal Code.
rt Thus, there is no need to interfere with the well reasoned judgment of the learned Additional Sessions Judge (I), Kangra at Dharamshala.
28. Accordingly, there is no merit in the appeal and the same is dismissed.
(Justice Rajiv Sharma), Judge.
(Justice Sureshwar Thakur), Judge.
1.3.2016 *awasthi* ::: Downloaded on - 15/04/2017 19:51:14 :::HCHP