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2015 DIGILAW 43 (JK)

Sunny Gupta v. State

2015-02-23

B.L.BHAT, TASHI RABSTAN

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. Applicant-Sunny Gupta alongwith his sister Rupali Gupta and mother-Kanta Gupta faced trial before learned 1st Additional Sessions Judge, Udhampur for charge under Sections 498-A, 302, 201, 34 RPC. They were convicted on 31.01.2013 for commission of offence under Sections 302/201/34 RPC but acquitted of charge under Section 498-A RPC. Life imprisonment has been awarded to convicts for offence of murder. Besides imprisonment of three years has been imposed for offence under Section 201 RPC. Fine has been awarded in addition to the substantive sentences. All the three accused have preferred appeal against their conviction and sentence. Appellants Rupali Gupta and Kanta Gupta, who were on bail during trial, have been enlarged on bail after their sentence was suspended. Application of applicant/appellant - Sunny Gupta was, however, not considered earlier and had been deferred for consideration. Reiterating the grounds urged in Cr. MA No. 11/2013, it is contended on behalf of applicant/appellant that the deceased had committed suicide and her death was not because of any human intervention. It is pointed out that initially Police initiated proceedings under Section 174 Cr.P.C. for ascertaining the cause of death of the deceased and subsequently registered case for offence under Section 306/498-A RPC. It was at a later stage that offence under Section 306 RPC was altered to offence under Section 302 RPC and apart from Section 498-A RPC, offence under Sections 201 and 34 were added. The investigation culminated in filing of charge sheet against all the three accused for commission of offence under Sections 302, 498-A, 201 and 34 RPC. However, the charge under Section 498-A RPC was not established against the accused resulting in their acquittal of such offence. It is further contended that the allegations relating to alleged cruelty, demand of dowry, not informing the parental people of the death of deceased, giving a wrong and misleading information with respect to cause of death of the deceased, not having informed Police in time and efforts to cremate the deceased in a hurry attributed to the accused were not established at the trial and witnesses to prove such allegations being the parents and siblings of deceased have not supported the prosecution version to prove such allegations. It is contended that the learned trial Court has mis-appreciated the evidence brought on record by prosecution which has resulted in total miscarriage of justice. It is contended that the learned trial Court has mis-appreciated the evidence brought on record by prosecution which has resulted in total miscarriage of justice. It is contended that the parents of the deceased have completely knocked out the bottom of the prosecution story and proved the innocence of accused. 2. It is contended that the applicant is in custody since 2009 and he has been convicted despite there being no legal evidence to connect the accused with the alleged crime of murder of deceased, who had committed sell murder. 3. State has opposed the bail plea of applicant tooth and nail. It is contended on behalf of State that prosecution has established the circumstances leading to death of deceased due to administration of poison within five months of her marriage with the applicant. It is pointed out that the deceased breathed her last in her matrimonial home and the postmortem findings together with FSL report establishes that the death occurred due to administration of aluminium phosphide. It is further pointed out that there was a ligature mark on the neck of deceased suggesting that there was an attempt to strangulate her. It is contended that the deceased was subjected to cruelty and done to death by administration of poison. It is further contended that the deceased had no reason to commit suicide and the fact that the accused offered false explanation in regard to death of deceased and tried to hush up the matter making efforts to cremate the deceased without informing her parents is yet an additional circumstance incriminating the accused. 4. Heard the rival sides and perused the record. 5. Deceased-Rajni Gupta was married to applicant - Sunny Gupta in October, 2008. She died five months after her marriage. The death occurred on 09.03.2009 while she was living with the accused in matrimonial home at Udhampur. According to prosecution case, the deceased called her mother at 9.30 AM and told that she was being harassed by the accused persons. By the time, her brother and mother reached there, the deceased had died. Her brother reported the matter to Police which set the Police in motion. Proceedings under Section 174 Cr.P.C. were commenced. The inquiry revealed that ever since the marriage of deceased with applicant, the accused persons used to harass the deceased for want of dowry. By the time, her brother and mother reached there, the deceased had died. Her brother reported the matter to Police which set the Police in motion. Proceedings under Section 174 Cr.P.C. were commenced. The inquiry revealed that ever since the marriage of deceased with applicant, the accused persons used to harass the deceased for want of dowry. The deceased was beaten by the accused a day before her death. She was again assaulted physically by the applicant in the morning after which the deceased rang up her mother alleging harassment. The inquiry culminated in lodging of FIR No. 51/2009 for commission of offence under Section 498-A/306 RPC. FSL report in regard to viscera of deceased was obtained during investigation which revealed poison in the stomach of deceased. Postmortem report was obtained and the offence under Section 306 RPC was altered to offence under Section 302 RPC. The investigation culminated in filing of charge-sheet against the accused. 6. Mr. P.N. Raina, learned Senior Advocate, while seriously assailing the finding of guilt recorded by learned Sessions Judge submits that in absence of proof of motive and the accused being in possession of poison and having opportunity to administer the same to deceased, the trial Court was not justified in drawing inference of guilt against the accused. It is further submitted that the accused could not be convicted under Section 302 RPC on the basis of evidence, on consideration whereof the accused were acquitted of charge under Section 498-A RPC. Mr. Raina, while not disputing death of deceased occurring on account of consumption of poison, submitted that the deceased who called her mother in the morning never complained of having been administered poison by the accused. He has also pointed out with reference to evidence brought on record by prosecution that the deceased also did not complain of being strangulated or in any manner instigated to consume poison. Referring to the testimony of mother of deceased, Mr. Raina contends that the deceased implored her mother to reach her matrimonial home within two hours which suggested that the deceased had consumed poison to commit suicide and all probabilities of the accused having caused her death by administration of poison were ruled out. Referring to the testimony of mother of deceased, Mr. Raina contends that the deceased implored her mother to reach her matrimonial home within two hours which suggested that the deceased had consumed poison to commit suicide and all probabilities of the accused having caused her death by administration of poison were ruled out. He also pointed out that the applicant was not present when the deceased died and his presence at the time of consumption of poison by deceased is ruled out as the Expert evidence excludes the probability of aluminium phosphide having been mixed with food. 7. Mrs. Meenakshi Bhutyal, learned Government Advocate vehemently opposed the bail plea contending that the instant case did not deserve indulgence by this Court as a young house wife had died while living in her matrimonial home by administration of poison within five months of her marriage and any lapse in investigation resulting in acquittal of accused for offence under Section 498-A RPC should not be allowed to defeat the ends of justice. She further pointed out that the deceased had no reason to commit suicide and failure of accused to explain the circumstances leading to her unnatural death barely within five months of her marriage justified raising inference of guilt against the accused. 8. After hearing the rival sides, we are of the considered opinion that it would be appropriate to suspend the sentence and admit the applicant on bail pending determination of his appeal. It is so because we are of the opinion that the arguments canvassed on behalf of applicant make out a prima facie case for suspension of sentence. It is well settled by a catena of authorities of the Hon'ble Apex Court including the case titled "Ram Gopal v. State of Maharashtra" reported in 1972 Criminal Law Journal 473 that in a case of death by poisoning, it is only when the motive is there and it is proved that the deceased died of poisoning that the accused had the poison in his possession and that he had an opportunity to administer it to the deceased that the Court can infer that the accused administered the poison to the deceased resulting in death. Learned counsel for applicant has referred to evidence brought on record by prosecution to demonstrate that the proof of motive is lacking. Learned counsel for applicant has referred to evidence brought on record by prosecution to demonstrate that the proof of motive is lacking. He has also referred to the conclusions drawn by the trial Court on appreciation of evidence which persuaded it to record acquittal of accused for offence under Section 498-A RPC. It is further pointed out by him that no rodenticide/insecticide containing aluminium phosphide was seized during course of investigation. He has also referred to prosecution evidence to demonstrate that there was no evidence of procurement of any chemical/drug or substance by accused containing aluminium phosphide as an ingredient and that the same was administered to the deceased with the intention of eliminating her. He has also referred to the testimony of mother of deceased to whom no complaint of administration of poison was made by the deceased barely a few hours before her death. If these arguments of learned counsel were to prevail, the applicant and co-accused may earn an acquittal. 9. Without commenting upon the evidence brought on record by prosecution at the trial and taking into consideration the fact that the co-accused facing same charges and having been convicted of same offences have been admitted on bail after suspension of their sentence with further consideration that the applicant is facing incarceration for last more than 5 years, we are inclined to suspend sentence of life imprisonment and other sentences slapped upon the applicant and direct his release on bail at the post conviction stage as the peculiar circumstances brought to our notice warrant such a course being adopted. Accordingly, the application is allowed. Sentence of life imprisonment and other sentences slapped upon the applicant/convict are suspended and the applicant is directed to be enlarged on bail on furnishing a personal recognizance bond in an amount of Rs. 1.00 lac with two sureties of like amount to the satisfaction of learned Registrar Judicial of this Court with conditions in the bonds to the effect that the applicant/convict shall appear at the hearing of appeal on each and every date of hearing and shall not leave territorial jurisdiction of Jammu Division without seeking prior leave of this Court. 10. Disposed of accordingly.