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2018 DIGILAW 573 (ALL)

STATE OF U. P. v. BRAHMA KUMARI SANTOSH

2018-03-09

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : (Delivered by Hon'ble Arvind Kumar Mishra-I,J.) 1. Heard learned AGA for the State-appellant, learned counsel for the informant-revisionist, learned counsel for the accused-respondent and perused the material on record. 2. The instant appeal along with leave to appeal has been filed by the State-appellant and the criminal revision has been filed by the informant-revisionist against the judgment and order of acquittal dated 09.09.2005 passed by the Additional Sessions Judge, FTC No.3, Shahjahanpur in Session Trial No.195 of 2002, arising out of Case Crime no.168 of 2001 under Section 302 IPC, Police Station Sadar Bazar, District Shahjahanpur whereby the accused-respondent Brahma Kumari Santosh has been acquitted of charge under Section 302 IPC. 3. Since the instant appeal and criminal revision arise out of the one and same judgment, therefore, the same are being decided by a common judgment/order. 4. The stream of events leading upto this appeal and criminal revision, as discernible from record, appear to be that the informant Dr. Kamal Deep Singh PW-1 lodged the written report Ext. Ka-1 at Police Station Sadar Bazar, District Shahjahanpur on 25.04.2001 at 6:20 a.m. which was taken down in the concerned Check FIR Ext. Ka-11, the very same day at 6:20 a.m. at Case Crime No.168 of 2001 under Section 328, 302 IPC, wherein the allegations, inter-alia, were made against the accused Brahma Kumari Santosh that yesterday on 24.04.2001, the informant as usual had gone to his clinic at Sindhauli and came back to home after closing his clinic in the evening at 5:00 p.m. He stayed at home for about five minutes, thereafter he left for market from where he went to his friends Dr. Sanjeev Kannaujia and Dr. Vijay Jauhari. It was around 11:00 p.m. when he was at the residence of Dr. Vijay Jauhari then Dr. Sanjeev Kannaujia informed him on telephone that condition of the informant's wife Dr. Nina Singh had deteriorated and he was called home immediately, whereupon the informant along with Dr. Vijay Jauhari arrived at his home where he found his wife Dr. Nina Singh writhing in almost unconscious condition and vomiting. The first aid treatment was given to her but her condition continued to deteriorate, therefore, she was rushed and admitted to the District Hospital Shahjahanpur in the night where she died during course of treatment around 3:00 a.m. 5. Vijay Jauhari arrived at his home where he found his wife Dr. Nina Singh writhing in almost unconscious condition and vomiting. The first aid treatment was given to her but her condition continued to deteriorate, therefore, she was rushed and admitted to the District Hospital Shahjahanpur in the night where she died during course of treatment around 3:00 a.m. 5. On information being given to the family members and domestic servant, they came over there where the domestic servant Ramu told him that the condition of the informant's wife was good in the night and she went upstairs on the roof of her house for walking around 9:00 p.m. when Brahma Kumari Santosh, her neighbour gave her some 'Prasad' which was eaten by her, thereafter the informant's servant went away to his shop. After coming to know about this fact, the informant expressed his apprehension regarding some intoxicating substance being administered deceitfully to his wife due to which she died. 6. The case was registered at Serial No.10 of the general diary of date 25.04.2001 at 6:20 a.m. under Sections 328, 302 IPC at aforesaid case crime number (168 of 2001) at Police Station Sadar Bazar, District Shahjahanpur. The general diary entry is Ext. Ka-12. 7. The investigation ensued and was entrusted to Jagdish Kumar Arora PW-8 who after recording statement of the informant also inspected the spot and prepared spot map Ext. Ka-13. Thereafter, the investigation was transferred to another police officer on 27.04.2001 and was taken over by Inspector Mangali Prasad Kureel PW-5 on 28.04.2001, he also proceeded further and recorded statement of various witnesses. 8. Record reflects that inquest report Ext. Ka-2 was prepared under supervision of the Naib Tehsildar - Harihar Ram - PW-6 on 25.04.2001. Since inquest witnesses concurred with Naib Tehsildar that the dead body should be sent for post mortem examination in order to ascertain real cause of death, therefore, the relevant papers were prepared for sending the dead body to the mortuary which are Ext. Ka-6, Ext. Ka-7, Ext. Ka-8, Ext. Ka-9 and Ext. Ka-10. 9. Thereafter, the dead body was sent for post mortem examination in the mortuary at Shahjahanpur where post mortem examination on the cadaver of the deceased Dr. Nina Singh was conducted by Dr. Yogesh Kaul PW-4 on 25.04.2001 at 02:30 p.m. wherein he noted the following ante mortem injuries: 1. Ka-6, Ext. Ka-7, Ext. Ka-8, Ext. Ka-9 and Ext. Ka-10. 9. Thereafter, the dead body was sent for post mortem examination in the mortuary at Shahjahanpur where post mortem examination on the cadaver of the deceased Dr. Nina Singh was conducted by Dr. Yogesh Kaul PW-4 on 25.04.2001 at 02:30 p.m. wherein he noted the following ante mortem injuries: 1. Multiple venepuncture marks present over front of elbow area (cubital fossa) and both hands and wrists. (2) There is a surgical wound measuring 4 cm in length stitched dark, clotted blood present on opening with an indivelling intracath (wound of venesection) 3. Venepuncture wound also seen over both ankles, no mark of any other external injury present. 10. In the opinion of the doctor, cause of death could not be ascertained, therefore, viscera was preserved for chemical analysis. This post mortem examination report is Ext. Ka-4. 11. In the meanwhile, the investigation remained in progress and Mangali Prasad Kureel PW-5, besides recording statement of various witnesses, after completing the investigation filed charge sheet Ext. Ka-5. 12. Thereafter, the proceeding was committed to the Court of Session where after allotting it session trial number 195 of 2002, the case was transferred for conduction of trial to the aforesaid court of the Additional Sessions Judge, (FTC-III) Shahjahanpur, who after hearing the accused was satisfied with the prima facie case and charged the accused under Section 302 IPC. Charge was denied and trial claimed by the accused. 13. In turn, the prosecution produced in all 8 witnesses. A brief sketch of witnesses is ut-infra:- Dr. Kamal Deep Singh PW-1 is the informant and husband of the deceased Dr. Nina Singh. Alok Kumar Gupta PW-2 and Ramu PW-3 are witnesses of fact. Dr. Yogesh Kaul PW-4 conducted autopsy on the cadaver of the deceased Dr. Nina Singh. Mangali Prasad Kureel PW-5 is the subsequent Investigating Officer who filed charge sheet against the accused. Harihar Ram PW-6 is Naib Tehsildar, he had prepared inquest report of the deceased Dr. Nina Singh on 25.04.2001. Constable Ganga Ram PW-7 made relevant entry in the concerned Check FIR and general diary. Jagdish Kumar Arora PW-8 is the first Investigating Officer who conducted the investigation for short period commencing from 25.04.2001 to 27.04.2001 when it was taken over by the subsequent Investigating Officer Mangli Prasad Kureel on 28.04.2001. 14. Except as above, no other testimony was adduced. Constable Ganga Ram PW-7 made relevant entry in the concerned Check FIR and general diary. Jagdish Kumar Arora PW-8 is the first Investigating Officer who conducted the investigation for short period commencing from 25.04.2001 to 27.04.2001 when it was taken over by the subsequent Investigating Officer Mangli Prasad Kureel on 28.04.2001. 14. Except as above, no other testimony was adduced. Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein she has categorically stated that Kamal Deep Singh wanted to grab her house and had forcibly occupied her house, when the complaint was made to the Human Rights Commission and high officers, the possession of her house was given back to her and the informant used to pick quarrel with his wife due to which his wife consumed poison either herself or the informant administered her poison. This false case has been planted against her by the informant in order to grab her house and money accruing due to the insurance policy in the name of his wife. 15. The accused produced Tahir Husain Khan, DW-1, pharmacist of district hospital Shajahanpur. He has proved fact that Dr. Nina Singh was medically examined by Dr. S.K. Yadav. She died on 25.04.2001 at 3:15 a.m. The bed head ticket no.1599 was produced before the trial court and photocopy of the same was also filed before the trial court. Dr. S.K. Yadav DW-2 claimed to have treated the deceased Dr. Nina Singh on 25.04.2001 at 1:00 a.m. when the deceased was admitted to the emergency ward of the district hospital Shajahanpur. 16. Except as above, no other testimony was led. Consequently, evidence for the defence was also closed and the case was posted for arguments. 17. The trial court after hearing respective submissions of both the sides and considering merits of the case found the prosecution story highly improbable as it did not inspire confidence, acquitted the accused in above session trial under section 302 IPC vide impugned judgment and order dated 09.09.2005. 18. Resultantly, the government appeal by the State-appellant and the criminal revision by the informant-revisionist. 19. It has been vehemently urged on behalf of the State-appellant that the trial court overlooked the merit of evidence and it failed to properly appreciate circumstances of the case while recording the finding of acquittal against the accused. 18. Resultantly, the government appeal by the State-appellant and the criminal revision by the informant-revisionist. 19. It has been vehemently urged on behalf of the State-appellant that the trial court overlooked the merit of evidence and it failed to properly appreciate circumstances of the case while recording the finding of acquittal against the accused. It has been specifically claimed that dying declaration was wrongly disbelieved by the trial court. The finding of acquittal is per se illegal and unjust in view of misinterpretation of the facts and law on record. 20. It has been further urged that the finding of acquittal recorded by the trial court is based on conjecture and surmises. There is no contradiction in the statement of the prosecution witnesses. The contradictions, if any, are minor. The case of the prosecution has not been properly assessed and weighed in right perspective. Therefore, the finding of acquittal recorded by the trial court is not sustainable in the eye of law. 21. Per contra, learned counsel for the accused has submitted that each and every finding has been recorded by the trial court not only after consideration of specific testimony on the point vis-a-vis facts and circumstances of the case but also after proper appraisal of facts pointing to the innocence of the accused. The entire prosecution case was set up in utter disorder. If the trial court would have taken things for granted as asserted by the prosecution then the assertions so made do not conform to the legal norms and do not fit in such set up as claimed against the accused and are not in consonance with the charge under scrutiny. 22. We have also considered the aforesaid submissions. The moot point that arises for adjudication of this appeal and revision basically relates to fact whether the finding of acquittal recorded by the trial court is not justified and the same is not grounded on the material on record? 23. At the very outset, we may take into consideration contents of the written report lodged by the informant Kamal Deep Singh PW-1, husband of the deceased Dr. Nina Singh which gives impression that on the day and time of occurrence i.e. 24.04.2001, the informant was away from his home at the house of his friend when he was telephonically informed about the deteriorating condition of his wife at his home. Nina Singh which gives impression that on the day and time of occurrence i.e. 24.04.2001, the informant was away from his home at the house of his friend when he was telephonically informed about the deteriorating condition of his wife at his home. He came back to home on 24.04.2001 around 11:00 p.m. when he saw his wife writhing with pain and vomiting. Since the informant and the others attending on the deceased, at that particular point of time, were doctors and versed in treatment, they gave the first aid treatment to the deceased but the condition of the deceased Dr. Nina Singh continued to deteriorate, therefore, she was taken to the district hospital, Shahjahanpur in the night itself where the doctor admitted her and started treatment but Dr. Nina Singh expired shortly afterwards on 25.04.2001 around 3:00 a.m. The aforesaid description in the written report further adds to the import that the informant's servant Ramu informed him (Dr. Kamal Deep Singh) in the morning that condition of Bhabhi (Dr. Nina Singh) was good around 9:00 p.m., she went to the roof of the house for a walk when Brahma Kumari Santosh, her neighbour gave some 'Prasad' to Bhabhi (deceased Dr. Nina Singh) which was eaten by her, thereafter he (Ramu) went away from there to his shop. 24. In the backdrop of the aforesaid description contained in the written report, the entire investigation took place and charge sheet was filed against the present accused. Without giving vent to unnecessary details bascially touching on the peripheral circumference of this case, it would be better to enter scrutiny of the substratum and foundation of the case as the centre point, it would be in the fitness of things to take into account the point of administration of 'Prasad' as some substance - say sulphas by the accused to the deceased on 24.04.2001 around 9:00 p.m. while she was walking on her roof after taking dinner. 25. Dr. Yogesh Kaul PW-4 who happened to be present in the evening/night of 24.04.2001 at the house of the deceased, as reflected from the record, incidentally conducted post mortem examination of the deceased Dr. Nina Singh on 25.04.2001 at 2:30 p.m. in the mortuary at Shahjahanpur, has proved the post mortem examination report Ext. Ka-4. 25. Dr. Yogesh Kaul PW-4 who happened to be present in the evening/night of 24.04.2001 at the house of the deceased, as reflected from the record, incidentally conducted post mortem examination of the deceased Dr. Nina Singh on 25.04.2001 at 2:30 p.m. in the mortuary at Shahjahanpur, has proved the post mortem examination report Ext. Ka-4. He has been cross examined on the point of administration of sulphas its effect whereupon he has categorically stated in unequivocal terms that sulphas is a poisonous substance with highly offending smell. He had studied about this poisonous substance while pursuing study for MBBS degree course. He can tell about smell of sulphas. He has further testified to the effect that in case sulphas comes in contact with moisture then gaseous change takes place as it contains aluminium phosphide. If sulphas is mixed with other substance (some eatable) and administered (to someone) then smell of sulphas will be there and it will be so sensed and felt. This smell is badly odorous and offending in normal circumstance, if it is tried to be administered to a person deceitfully, he/she will not consume/eat it. Either it can be administered forcibly or it can be taken by the concerned person of his/her free will. But in case it is administered in deceitful manner then sulphas may be administered by keeping it in air tight capsule but it cannot be administered openly in normal circumstances. Here in this case, there is nothing on testimonial record or inferable from circumstances that 'Prasad' so given by the accused, in fact, contained sulphas (tablet) or any poisonous substance in the nature of sulphas. The prosecution account runs into voidness on point of administration of sulphas. 'Prasad' has been guessed to be sulphas without any relevant evidence on record. 26. The testimony of Ramu PW-3 does not inspire confidence for so many reasons; one of them being fact that at the usual time when he claims to have been present on the roof, he was asked by Dr. Nina Singh that no work was left to be done by him even then he kept on standing there on the roof. On specific question being put to him in cross examination he kept silent and did not answer to the query. Demeanor of the witness has been noted by the trial court that he kept mum. Nina Singh that no work was left to be done by him even then he kept on standing there on the roof. On specific question being put to him in cross examination he kept silent and did not answer to the query. Demeanor of the witness has been noted by the trial court that he kept mum. His silence shakes credibility and shatters his truthfulness to the ambit that he is not telling the truth and he is deliberately claiming his presence on the roof at 9:00 p.m. on 24.04.2001. What is surprising? The record shows in unequivocal terms that Alok Kumar Gupta PW-2 and Ramu PW-3 were kept away by the informant from meeting and coming in contact with the Investigating Officer and his (Ramu) statement was recorded after 3-4 months of the incident after notice was issued by the Investigating Officer to him. In the wake of this conspicuous circumstance and fact situation, presentation of affidavit by this witness is a calculative step showing that he is working at the instance of someone interested in proving facts on affidavit to the detriment of the accused. This witness was deliberately kept away from the Investigating Officer for quite long time. 27. Insofar as point of giving dying declaration by Dr. Nina Singh to PW-2 is concerned as claimed by Alok Kumar Gupta (PW-2), the same does not inspire confidence. Fact situation makes out a case that when he (PW-2) reached in the fateful night at the house of the deceased on 24.04.2001 around 9-10 p.m., he was told by Dr. Nina Singh that she has been administered some poisonous substance by the accused while she kept strolling on her roof around 9:00 p.m. (today). The aforesaid claim is negatived by conspicuous circumstance of the case. 28. Alok Kumar Gupta PW-2 is also witness of inquest prepared under supervision of Naib Tehsildar but he did not spell a single word at the appropriate time either to the Naib Tehsildar or to the Investigating Officer about such important fact regarding administration of poisonous substance by the accused, which specific fact was told to him (PW-2) by the deceased herself. This omission is not deliberate but it carries within itself implicit truth forthcoming to the magnitude that no such statement or dying declaration was ever made to PW-2 by the deceased. This omission is not deliberate but it carries within itself implicit truth forthcoming to the magnitude that no such statement or dying declaration was ever made to PW-2 by the deceased. Had it been so the inquest report must have whispered about it, but the inquest report does not contain any such description. What is surprising is the fact that the Investigating Officer was not told about any such statement given by Dr. Nina Singh. There was ample occasion for PW-2 to have disclosed substance of the dying declaration to the Naib Tehsildar and the Investigating Officer but he did not disclose any fact to them. This silence at the first opportune moment by PW-2 generates doubt on the claim of this witness that any such statement was given by Dr. Nina Singh to him. 29. The record also reflects that the statement of Alok Kumar Gupta PW-2 and Ramu PW-3 was recorded by the Investigating Officer after notice issued to them by him. A specific suggestion has been put to the specific sense that because of some illicit relationship between the informant - Dr. Kamal Deep Singh and his maid-servant/cook, some quarrel took place between the informant and the deceased, due to which, the deceased Dr. Nina Singh of her own free will consumed sulphas and attempted suicide. 30. Further when statement regarding sulphas being administered by the accused was given then PW-2 would have rushed to the Investigating Officer and would have got recorded his statement but he did not do so. On the contrary record suggests that he avoided meeting the Investigating Officer and the Investigating Officer issued notice to him to appear before him and give statement. Then only he appeared before the Investigating Officer. There is glaring inconsistency in his version given before the trial court and the one given in the affidavit. As per affidavit, the dying declaration was made in the presence of Dr. Kamal Deep Singh, Dr. Sanjeev, Dr. Kaul and Dr. Jauhari that the accused gave her 'Prasad' on the roof, whereas, in his examination-in -chief he has categorically stated that at that point of time when such statement was made by Dr. Nina Singh to him, he was all alone (page 25 of the paper book). Kamal Deep Singh, Dr. Sanjeev, Dr. Kaul and Dr. Jauhari that the accused gave her 'Prasad' on the roof, whereas, in his examination-in -chief he has categorically stated that at that point of time when such statement was made by Dr. Nina Singh to him, he was all alone (page 25 of the paper book). This story of dying declaration being made by the victim to PW-2 under aforesaid circumstance, is an afterthought and improvement, therefore, the same is neither truthful nor voluntary as such legally not sustainable. Assuming it to be correct that the dying declaration was made in the presence of aforesaid four persons then it must have been described in the written report. But the written report draws blank on this point/description. 31. The record further reveals fact that on 24.04.2001 around 1:00 a.m., the deceased was admitted in the district hospital Shahjahanpur. The doctor noted that the patient is alleged to have taken few tablets of celphas and this paper was deliberately concealed by the prosecution, whereas, the same has been proved by the defence as Ext. Kha-2. It reflects opinion of the doctor as suspected poisoning, but in the testimony of Dr. Yogesh Kaul PW-4, who conducted autopsy on the body of the deceased, has made it explicit in his testimonial account that under normal circumstance sulphas cannot be administered deceitfully as its smell is badly odorous. Thus Ext. Kha-2 goes to show that sulphas was never administered to the deceased by the accused either deceitfully or forcibly but it would have been willful act of the deceased herself. 32. Alok Kumar Gupta PW-2 and Ramu PW-3 filed affidavit before Superintendent of Police, which contains averment/description of facts touching on aforesaid aspect which has been discussed in detail. The falsity of the aforesaid factual aspect on point of dying declaration and administration of sulphas stands exposed as has been discussed herein above. Not a single, but there are a number of glaring inconsistencies, loopholes and contradictions appearing in the testimony of the prosecution witnesses of fact. Their testimony, on the whole, is embellished, vacillating and not inspiring confidence. 33. It is quite relevant to take note of fact that in this case, an enquiry was held and report was submitted by the Additional Superintendent of Police, Pilibhit in the matter of death of Dr. Their testimony, on the whole, is embellished, vacillating and not inspiring confidence. 33. It is quite relevant to take note of fact that in this case, an enquiry was held and report was submitted by the Additional Superintendent of Police, Pilibhit in the matter of death of Dr. Nina Singh to the ambit and import that under the prevailing circumstances of this case, it was not possible to administer poison to the victim by the accused. This specific testimony has emerged in the cross examination of the subsequent Investigating Officer PW-5, Mangli Prasad Kureel, on page 41 of the paper-book. 34. The Investigating Officer PW-5 has also testified that he searched for witnesses Alok Kumar Gupta and Ramu but they did not meet. The Investigating Officer also recorded tip off information to the effect that the informant sent Ramu somewhere outside and the informant did not allow Ramu to meet anyone. 35. This particular aspect of this case sheds lot of doubt on the conduct of the informant and the two prosecution witnesses Alok Kumar Gupta (PW-2) and Ramu (PW-3) that they are hand in glove with the informant which renders their testimony highly embellished and outcome of deliberation. Resultantly, their testimony being embellished and improved one is liable to be discarded and it does not inspire confidence. 36. Upon careful perusal of the wholesome evidence vis-a-vis facts and circumstances of the case, we may approve that the learned trial Judge has taken just and consistent view of the material on record and has scrutinized the same in right perspective and it cannot be said that the finding of acquittal is not based on material on record. Each and every aspect of the case, both factual as well as legal, has been extensively weighed and specific finding recorded. It is cardinal jurisprudential tent that in cases where finding of acquittal is found to be based on material on record and in the eventuality of possibility of two views, the view which favours the accused is to be preferred then the the appellate Court would not disturb the finding of acquittal. 37. Presumption of innocence runs in favour of the accused right from stage of commencement of trial and the same continues upto Appellate stage. 37. Presumption of innocence runs in favour of the accused right from stage of commencement of trial and the same continues upto Appellate stage. In case finding of acquittal is recorded by the trial court and acquittal is found to be based on material on record then presumption of innocence is fortified and strengthened in favour of the accused as has been held by Hon'ble Apex Court in Kanhaiya Lal & Ors. v. State of Rajasthan; AIR 2013 SC 1940 . 38. Even in cases where two views regarding the same incident are possible then the view adhered to and adopted by the trial court will not be disturbed if material on record justifies the finding so recorded as has been held by Hon'ble Apex Court in Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad; 2013 (4) Supreme 450 . 39. For the reasons aforesaid, we affirm and approve the judgment and order of acquittal dated 09.09.2005 passed by the trial court in Session Trial No.195 of 2002 arising out of Case Crime No.168 of 2001 under Section 302 IPC, Police Station Sadar Bazar, District Shahjahanpur. 40. Thus, leave to appeal is refused. 41. Consequently, the instant appeal and the revision being devoid of merit are dismissed. Let a copy of this order be certified to the trial court concerned.