Shri Nitish Yadav vs The State
2011 Latest Caselaw 467 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 27.01.2011

+            CRL.A. 331/1997

SHRI NITISH YADAV                                                 ..... Appellant

                                         versus

THE STATE                                                       ..... Respondent

Advocates who appeared in this case:

For the Appellant        : Mr Vikrant Sarin
For the Respondent       : Mr Sanjay Lao & Ms Richa Kapoor, Addl. Standing Counsel for
                           the State.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

1. Whether Reporters of local papers may be allowed to see the judgment ? YES.

     2.    To be referred to the Reporter or not ?                           YES.

     3.    Whether the judgment should be reported in Digest ?               YES.

BADAR DURREZ AHMED, J (ORAL)

1. This appeal is directed against the judgment of the learned

Additional Sessions Judge dated 13.05.1997 whereby the appellant was

convicted under Section 302/328 IPC in connection with the death of

Seema, who, it is alleged was living with the appellant at the time the

incident in question took place on 01.05.1994. Seema was removed to JPN

Hospital on that date and she died three days later on 04.05.1994. It is an

alleged case of poisoning at the instance of the appellant.

2. The appellant, after being convicted, by virtue of the impugned

judgment, was sentenced to rigorous imprisonment for life in respect of the

offence under Section 302 IPC and a fine of Rs. 2,000/- was also imposed

upon him and in default whereof he was to undergo rigorous imprisonment

for one month. In addition, the appellant was also sentenced to undergo

rigorous imprisonment for a period of seven years in respect of the offence

under Section 328 IPC and a fine of Rs. 2,000/- was also imposed and in

default whereof the appellant was to undergo rigorous imprisonment for one

month. All the sentences were directed to run concurrently. The order

awarding the sentence was passed on 17.05.1997.

3. The entire case of the prosecution rests on the so-called dying

declaration Ex. PW-7/A which was recorded by S.I. Roop Singh who was

the Investigating Officer initially. However, S.I. Roop Singh could not be

produced before the court, inasmuch as he had passed away on 09.01.1997,

before his testimony could be recorded. Apart from the said Ex. PW-7/A,

the trial court has also relied on the testimonies of PW-6 Asha (Seema‟s

mother) and PW-7 Kailash Chand Sharma (Seema‟s father). Reliance was

also placed by the trial court on Ex. PW-10/D which is the report of the

Forensic Science Laboratory indicating that aluminum phosphide was

detected in exhibit 1a (stomach and small intestine with contents) and

exhibit 1b (pieces of liver, spleen and kidney). Reliance was also placed on

the post-mortem report Ex. PW-10/A which, however, did not indicate any

definite opinion as to the cause of death and revealed that viscera had been

preserved for the purpose of sending the same to the Forensic Science

Laboratory. PW-10 Dr. Lalit Kumar who conducted the post-mortem

examination deposed before court, after examining the report received from

the Forensic Science Laboratory, that death was caused due to aluminum

phosphide poisoning.

4. There were as many as twelve prosecution witnesses and two

defence witnesses. The defence witnesses essentially deposed to the effect

that the appellant was not in Delhi on 01.05.1994 but was in Ferozpur,

Punjab.

5. The learned counsel for the appellant has assailed the impugned

judgment and order on sentence on the ground that the trial court had

wrongly placed reliance on Ex. PW-7/A, considering it to be the dying

declaration of the deceased Seema. He submitted that there is no witness to

the said alleged dying declaration. Furthermore, there is no certificate of

fitness with regard to the fitness of Seema prior to her making the dying

declaration on 03.05.1994 before the then Investigating Officer S.I. Roop

Singh. It was also pointed out by the learned counsel for the appellant that

the true and correct dying declaration was not PW-7/A but the MLC Ex.

PW-9/A which was prepared at the time when Seema was brought to JPN

Hospital on 02.05.1994. In the said MLC Ex. PW-9/A it was recorded by

the doctor preparing the MLC that Seema herself had given the history of

consuming „diazepam tablets (20-25)‟ and of consuming printing dye in the

morning following a dispute with her husband. The said MLC was prepared

at 9.45 a.m. on 02.05.1994. It also records that the deceased Seema was

brought to hospital by Neelam (PW-2). The learned counsel for the

appellant, therefore, submitted that the true and correct dying declaration

was the one given to the doctor, an independent person, who recorded the

history as given by the patient herself on the MLC Ex. PW-9/A. If that were

the case, then it is apparent that Seema had committed suicide, inasmuch as

she had herself consumed diazepam tablets and consumed printing dye.

6. In any event the learned counsel for the appellant submitted that

as there were two purported dying declarations, there was enough doubt in

the matter and the benefit of which would have to be given to the appellant.

The learned counsel for the appellant also placed before us some literature

with regard to aluminum phosphide poisoning. Importantly he submitted

that aluminum phosphide was usually used as a rodenticide and that,

although it was not soluble in water, it actively reacted with water to form

aluminum hydroxide and phosphine gas. The exact chemical reaction that

takes place when aluminum phosphide reacts with water is as under:

ALP + 3H2 O = AL (OH)3 and PH3 (Aluminum Phosphide + Water = Aluminum Hydroxide + Phosphine)

7. From the aforesaid he submitted that once aluminum phosphide

is placed in water it immediately reacts and releases phosphine gas leaving a

residue of aluminum hydroxide. He submitted that aluminum phosphide as

available commercially has a very bad odour and smells like garlic or dead

fish and, as such, it would have been immediately noticed by Seema if it

were true that she was administered the same by the appellant as alleged in

Ex. PW-7/A. But, the statement in Ex. PW-7/A does not mention anything

about the odour of the medicine which was said to have been given to her.

This, also, according to the learned counsel for the appellant raises serious

doubts with regard to the authenticity of the alleged dying declaration Ex.

PW-7/A.

8. The learned counsel for the appellant further submitted that the

testimonies of PW-6 and PW-7 who are the parents of deceased Seema do

not inspire much confidence, inasmuch as they are clearly interested in the

sense that they were inimical towards the appellant as would be evident

from what is stated in Ex. PW-7/A itself as also in their testimonies. They

were, therefore, interested in seeing that the appellant, somehow or the

other, is convicted, now that their daughter had lost her life. The learned

counsel for the appellant also pointed out that PW-6 and PW-7 had also not

stated in their statements recorded under Section 161 Cr.P.C. that the dying

declaration of deceased Seema was recorded in their presence.

9. Mr Lao, appearing on behalf of the State, supported the

judgment of the trial court as also the order on sentence. He stated that the

trial court was correct in convicting the appellant on the basis of the dying

declaration Ex. PW-7/A which was recorded by the then Investigating

Officer S.I. Roop Singh and the said dying declaration had also been signed

by the deceased Seema. He submitted that the said signature has

subsequently been identified by her father Kailash Chand Sharma (PW-7).

10. He also submitted that the medical evidence also indicates that

Seema died due to aluminum phosphide poisoning. According to him, this is

in consonance with what is stated in the dying declaration Ex. PW-7/A. He

also submitted that the conduct of the appellant is also something which

ought to be given due consideration, inasmuch as, after administering the

said poison, the appellant disappeared from the scene and that he could only

be arrested several days later, on 09.05.1994.

11. We have examined the testimonies of the witness as well as the

exhibits. After hearing counsel for the parties, we are of the view that the

appellant has to be given the benefit of doubt. There are several reasons for

this.

12. First of all, there are two so-called dying declarations on record.

The first being what was stated by Seema herself before the Doctor who

recorded her history on the MLC Ex.PW-9/A. In the said document, it was

stated that she consumed diazepam tablets and some printing dye in the

morning following a dispute with her husband. The said MLC Ex. PW9/A

(except the purported statement of fitness at mark X) has been proved by

PW-9 Om Parkash who is the record clerk working at JPN Hospital. The

history given in the MLC Ex.PW-9/A suggests that the deceased had herself

consumed diazepam tablets and some printing dye in the morning. She,

therefore, according to the said statement committed suicide. Of course, the

presence of diazepam or any other printing dye toxin has not been disclosed

in the FSL report, but, we must remember that Seema died three days later

on 4.5.1994. Consequently, there is a doubt which has arisen as to whether

the statement given by Seema to the Doctor who recorded the MLC is the

true and correct statement or whether the statement allegedly given by

Seema to the Investigating Officer SI Roop Singh is the one which is true

and correct.

13. Secondly, on the MLC Ex.PW-9/A there are two certificates

which are both dated 2.5.1994. One certificate says that Seema was unfit

for making a statement. The other certificate mentions that she was "fit at

the moment" and this statement is at mark X. Somebody has signed below

this statement at mark X. No time has been mentioned under either of the

statements. With regard to the statement at mark „X‟, PW-9 Om Prakash,

the record clerk, who came from JPN Hospital, stated categorically that he

could not identify the handwriting and signature at portion mark „X‟. The

clear implication of which is that the certificate at mark „X‟ has not been

established by the prosecution. This will eliminate the certificate indicating

"fit at the moment". We are, therefore, left with only one certificate which

says "unfit for making a statement". This in itself would make the statement

Ex.PW-7/A of a very doubtful character, to say the least.

14. Thirdly, PW-6 Asha (Seema‟s mother) and PW-7 Kailash Chand

Sharma (Seema‟s father) made contradictory statements with regard to the

statement allegedly given by Seema. PW-7 Kailash Chand Sharma stated

that he had met Seema in the hospital on 2.5.1994 at about 12-12.30 noon.

He further stated that no statement was made by her in the day and that

police officials came in the evening and Seema gave her statement to the

police at about 12 midnight in their presence. Two issues arise out of this

deposition. The first being that if the statement of Seema was recorded by

IO Roop Singh in the presence of PW-6 and PW-7 then why were they not

shown as witnesses. The second issue that arises is that why did PW-7 not

say that the statement of Seema was recorded in his presence when he gave

his statement under Section 161 Cr.P.C. Both these questions remain

unanswered.

15. Coming to the testimony of PW-6 Asha (Seema‟s mother), it

appears that when she went to the hospital on 02.05.1994, Seema was

woken up but she did not say anything and she only gave her statement in

the night intervening 2/3.5.1994 at about 10.00 p.m. and that, too, to the

mother and father (i.e., PW-6 and PW-7). But this fact is not corroborated

by PW-7 who did not mention about any statement having been given by

Seema to them at 10.00 p.m. Another issue that arises is that if Seema had

woken up in the afternoon and she was fit throughout the afternoon and

evening as suggested by PW-6, then, why did the police not record her

statement throughout the afternoon and evening and wait till midnight to

record the so-called dying declaration Ex.PW-7/A?

16. Fourthly, we are not in agreement with the findings recorded by

the trial court whereby the trial court discarded the MLC Ex.PW-9/A in toto

by recording that the doctor who recorded the said MLC had not been

examined and, therefore, no reliance should be placed on the history

recorded in the MLC. The trial court failed to note that PW-9 Om Prakash,

the record clerk, who had been produced by the prosecution had proved the

MLC (except the portion at mark X) and had categorically stated that the

MLC was recorded by Dr Rakesh Dogra whose handwriting and signature

he could identify. Thus, even as per the prosecution case, the MLC Ex.PW-

9/A stood proved and established (except the portion marked X regarding

which we have already indicated the same to be not proved).

17. Fifthly, we may point out that PW-2 Neelam, the person who

took Seema to JPN Hospital, stated clearly that Seema, at that point of time,

was conscious but she did not say anything about the appellant. She is also

a witness to the fact that at the time Seema arrived at the hospital, she was

conscious. This also lends credibility to the history recorded in the MLC

Ex.PW-9/A which was recorded immediately upon her arrival at the hospital

at 9.45 a.m. on 02.05.1994.

18. Sixthly, while the so-called dying declaration Ex. PW 7/A is

fairly detailed there is no mention of the nature, odour or colour of the

drink that was administered to her. The English translation of Ex.PW-7/A

is set out as under:

"I used to reside along with my parents at the aforementioned address. In the year 1990, I passed my inter school Examination and thereafter, I tried to find some employment and I found a job at „Dear Security Service, 18-Jwala Puri. The proprietor of the said firm was Anita Yadav and the same was run by Nitish Yadav. In October 1991, Nitish Yadav employed me as a typist in the said firm where I worked for a period of eight months. Thereafter, Nitish Yadav opened an office of Screen printing at Mahavir Nagar and he made me the proprietor of the same and opened a bank account in my name. There was no money in the bank and Nitish started getting fake cheques issued from me. I was entangled by Nitish and ill acts were committed in my name. Thereafter, Nitish entangled me in his web and got himself photographed with me as his bride after making me eat some unknown substance. Afterwards I was completely trapped by him. I broke my relations with my parents on 15.09.1993 and Nitish started living with me at different places.

Nitish made me eat some unknown substances and maintained illicit relations with me and tattooed the letters „NN‟ on the elbow of my left hand. He threatened me that in case I married anyone else, he would show my tattooed mark to those persons. He asked me to marry him although he was already married. About four months ago, he brought me to S-56, Pandav Nagar where he started ignoring me and asked me to return to Mangolpuri but I refused. On 01.05.1994 in the morning time I was not feeling well and I asked Nitish to bring some medicine for me. Nitish went outside the house and returned after a short while. He poured some powder in a glass and asked me to drink that and told that doctor would be coming shortly. He asked me drink that medicine and I drank the same. After a short while, I started feeling giddy and I fell on the charpoy (cot). I do not know as to what medicine was administered to me by Nitish as a result of which I developed diarrhea. I do not know as to where Nitish went thereafter. I, subsequently was taken to the hospital by my one acquaintance Neelam and I lost my senses. I do not know about the hospital where Neelam got me admitted. Nitish has committed fraud with me and has administered poison to me on the pretext of medicine. Legal action may be taken against him. I have heard the statement and it is correct.

Sd/- Seema Sharma (In English) Attested by:

Sd/- Roop Singh (In English) S.I. P.S. T. Puri 3.5.94"

(underlying added)

19. On examining the said Ex. PW-7/A, it is apparent that it contains

several details about the past relationship between Seema, her parents and

Nitish Yadav. It is apparent that Seema‟s parents and Nitish Yadav were

not in the best of terms, to say the least. In fact, it is because of Nitish

Yadav that Seema also broke her relations with her parents. It is also

pointed out by the learned counsel for the appellant that the allegation that

the letters „NN‟ had been tattooed on Seema‟s left elbow mean nothing

because the initials of the appellant were „NY‟. Furthermore, from Ex. PW-

7/A it is apparent that the allegation is that Nitish Yadav poured some

powder in a glass and asked Seema to drink the same and told her that the

doctor would be coming shortly. Thereafter, she drank the same and after a

short while she started feeling giddy and fell on the cot. It is stated that she

did not know as to what medicine was administered to her by the appellant

as a result of which she developed diarrhea and vomiting. Aluminum

phosphide is usually formulated as a greenish grey tablet of 3 gm and the

tablet has a typical odour of garlic or a dead fish. It is further found that it is

highly toxic and even 1/4th of a tablet is lethal in so far as the adults are

concerned. It is an admitted position that aluminium phosphide is a greenish

grey solid at room temperature and that phosphine gas, which is produced

by the reaction of aluminum phosphide in contact with water (even at

ambient humidity), has an odour similar to garlic or decaying fish (because

of the presence of impurities in the comnmercially available aluminium

phosphide). Aluminum phosphide is not soluble in water but is highly

reactive with water, and such reaction produces phosphine gas and leaves a

residue of aluminum hydroxide which is not toxic. All this suggests that if

what was administered to Seema was aluminum phosphide, she would have

immediately noticed the foul smell and odour and would have remarked

about the same in the statement Ex. PW-7/A. We say this because where

she has given details about everything else, she would not have forgotten to

mention the odour of the „medicine‟ which she was allegedly made to drink

by the appellant. In fact, neither PW-6 nor PW-7 have mentioned the fact

that the liquid which was given to her had a foul smell.

20. Most cases of aluminum phosphide poisoning are either suicidal

or accidental and rarely homicidal (see : "Acute aluminium phosphide

poisoning : an update : A. Wahab et al; HongKong Journal of Emergency

Medicine 2008; 15:152-155). Aluminium phosphide is available in the

form of 3 gm tablets or 0.6 gm pellets and also in sachets. The tablets,

pellets or powder generally contain about 56% of Aluminium Phosphide (as

the active ingredient) and 44% of Aluminium Carbonate (as the inactive

ingredient). The aluminium carbonate component is added to prevent self-

ignition of phosphine which is released when Aluminium Phosphide comes

in contact with moisture or water. Phosphine is a colourless, odourless gas.

But because the commercially available form of Aluminium Phosphide

contains added inactive ingredients and impurities, when phosphine is

released there is a distinct and strong smell of garlic or fish. Because of this

distinct odour it would not be possible to pass off aluminium phosphide as

some normal medicine. It can only be administered to an unwilling person

through force. There is no suggestion of any force having been applied by

Nitish Yadav in administering the concoction even as per Ex. PW-7/A. It is

also for this reason that we do not place much credence on Ex. PW-7/A.

21. In view of the foregoing discussion we find that the dying

declaration Ex. PW-7/A is not free from doubt, to say the least. It is well

settled that conviction can be based on a dying declaration provided it is

established that the dying declaration is of the person of whom it purports to

be and that the statement contained therein is also true. In the present case,

Ex. PW-7/A does not inspire such confidence. This is also because of the

presence of another dying declaration in which the story is of suicide. There

is enough doubt in this matter and, therefore, the benefit would have to go to

the appellant. Consequently, we allow this appeal and set aside the

impugned judgment and order on sentence. The appellant is already on bail.

His bail bond stands cancelled and the surety stands discharged.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J JANUARY 27, 2011 dp