State vs Rishi Kumar
2012 Latest Caselaw 3474 Del

3
*         IN THE HIGH COURT OF DELHI AT NEW DELHI

     +      CRL.L.P. 201/2012 and Crl.M.A.No.4646/2012

%                                  Date of decision: 24th May, 2012

         STATE                                   ..... Petitioner
                           Through : Ms. Ritu Gauba, APP.

                      versus

         RISHI KUMAR                             ..... Respondent
                           Through : None.

         CORAM:
         HON'BLE MS. JUSTICE GITA MITTAL
         HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

1. The lower court record has been received. We have

heard Ms. Ritu Gauba, learned APP for the State and carefully

perused the record.

2. By way of the present petition, the State has sought

leave to appeal against the acquittal of the respondents with

regard to the commission of offence under Sections 304B and

406 of the Indian Penal Code by the judgment dated 10th

August, 2011. It appears that the respondents were arrested

in case S.C.No.110/2010/2004 arising from FIR No.226/2003

registered by the police station Mangol Puri under Sections

304B/498A/406/34IPC titled State v. Rishi Kumar and Others.

The case was registered against the respondents with regard

to the death of Smt. Beena who had got married to the

respondent, Rishi Kumar and unfortunately expired on 24th

April, 2003. It was the case of the prosecution that the

deceased was taken to Sanjay Gandhi Memorial Hospital on

24th April, 2003 in an unconscious condition. The deceased

Beena appears to have expired in the hospital.

3. The deceased was married to Rishi Kumar on 27th April,

2001, two years prior to her death. The case was registered

against the respondents on the complaint made by Shri Mohal

Lal, father of the deceased who mentioned dowry demands

made by Rishi Kumar (husband of the deceased), Yadav Ram

(father-in-law of the deceased), Bhagwan Devi (mother-in-law

of the deceased) and Kumari Gayatri and Kumari Kiran (sister-

in-law of the deceased/Nanads). The complainant alleged that

it appeared to them that Smt. Beena had been killed by her

husband, father-in-law, mother-in-law and sisters-in-law.

4. Apart from the statement of the close relatives of the

deceased, reliance was placed by the prosecution on the post-

mortem report as well as chemical analysis report of viscera

and histo pathology report of lungs tissues.

5. The learned trial court framed charges under Sections

498A/304B/34IPC against the respondents. The prosecution

examined 14 witnesses in support of his case including three

doctors. The respondents denied the charges leveled against

them and also led evidence of five witnesses in support of their

denial.

6. We find that after detailed consideration of the entire

material produced by the prosecution during the trial, the

learned trial court held that the respondents were guilty of

commission the offences under Section 498A/34 IPC but the

prosecution has failed to prove the charges under Section

304B and 406 of the Indian Penal Code against the

respondents.

7. The present petition has been filed by the State seeking

leave to appeal against the acquittal of the respondents for

commission of offence under Section 304B/406 IPC. We have

given considered thought to the submissions made before us

and the record placed before the learned trial court. In order

to bring home the charge of commission of offence under

Section 304B of the IPC, the State was bound to prove that the

death of the lady had occurred otherwise than under normal

circumstances. In the instant case, we find that the learned

trial judge has carefully considered the evidence led by the

prosecution and the report of the medical experts on this

subject. Dr.V.K. Jha - PW-11 stated that he was working as a

medical officer in Sanjay Gandhi Memorial Hospital on 8th April,

2004 and he had received the application of the SHO, PS

Mangol Puri for opinion with regard to the cause of the death of

the deceased. He had perused the chemical analysis report of

viscera and histo pathology report of lungs tissues dated 28th

April, 2003 and the post-mortem report. His opinion given on

8th April, 2004 has been placed on record and is proved as

Ex.PW11/B which reads as follow:-

"In reference Page Ante and pursuance of Police I.O. SHO Mangolpuri dated 8/4/04, I have seen the chemical analysis report of viscera vide report No. 13/CFSL (H)/EE/2003/8361 dated 16.1.04 which revealed negative findings for common poison and histopathology of Lung tissue dated 28/4/2003.

In view of PM findings and both the reports mentioned above I am of the consistent opinion that chronic vascular decease of heart is ruled out as description of heart in PM report is inadequate and incorrect. In view of the above No definitive opinion regarding cause of death can be given."

8. It appears that the SHO of P.S. Mangol Puri had made

further reference to the doctor on 7th May, 2004 raising the

following queries from PW-11, Dr. V.K. Jha:-

"Inquiry No. 1 Whether death of Smt. Beena is unnatural or otherwise.

Inquiry No. 2 whether final cause of death can be given by any way in that case."

9. On consideration of the material placed before the

doctor, Dr. V.K. Jha appearing as PW-11 has given the opinion

which is proved on record as Ex.PW11/D, the relevant extract

whereof reads as follows:-

"In pursuance of request letter of Police INQUIRY OFFICER dated 7.5.04 in reference page Ante the opinion given on the basis of histopathology and chemical analysis report by the undersigned on 8.4.04 is relevant as there was general congestion of Viscera found with patchy congestion of viscera of stomach which is not consistent with natural death.

It is also not uncommon that chemical analysis of viscera may reveal negative testing of common poison but there are enumerable toxic poison which are not categorized in the list of common poison and may show generalized congestion of viscera being caused with unnatural component cannot be ruled out.

However definite cause of death in this case cannot be ascertained in such a negative autopsy."

10. At this stage, we may also notice the observations of Dr.

R.K. Punia, the forensic expert who had conducted the post-

mortem on the 28th April, 2003 on the body of the deceased.

The post-mortem report of the deceased has been proved as

Ex.PW12/A on record. The doctor had found no injury on the

body of the deceased. However, while examining the heart,

the doctor had made the following observations:-

"Mitral valve left lets are thickened and small areas of calcification seen. Left atrium wall thickened measuring 2.8 mm in thickness."

11. We may note that doctor R.K. Punia appears to have left

the hospital and the post-mortem report was proved in the

testimony of Dr. Manoj Dhingra, PW-12.

12. The matter does not end here. The prosecution

examined yet another doctor as PW-13, namely, Dr. Avneender

Parsad who was posted as a Consultant Pathologist in the

Sanjay Gandhi Memorial Hospital in April, 2003 and had

examined the lung tissues of the deceased Beena through

microscopic examination. He had given his report which was

proved on record as Ex.PW13/A which reads as follows:-

"Microscopic Impression :

Chronic venus congestion with haemosiderine laden macrophagel and acanthosis with early fibrosis."

13. In view of the above, it is clearly evident that the

prosecution has failed to prove that the deceased had died an

unnatural death or that the respondents were in any manner

responsible to the same. The evidence of the expert on the

subject is to the contrary who have clearly recorded that no

definite finding with regard to the cause of death of late Beena

can be given.

The prosecution is also unable to point out any allegation

or evidence on record to bring home the finding of guilt with

regard to the charge under Section 406 of the IPC. It may be

observed that we are not aware as to whether the respondents

have filed any appeal with regard to the conviction under

Section 498A of the IPC. It is trite that in such circumstances

where two views are possible, the court would require to take

the view which is favourable to the accused person. In this

background, so far as the charge of commission of offence

under Section 304B of the IPC is concerned, we find no reason

to disagree with the findings returned by the learned trial

judge.

14. We are not called upon to examine the sustainability of

the conviction under Section 498A of the IPC in any manner in

the present appeal. Therefore, nothing herein contained shall

be deemed to be an expression of opinion on the correctness

of the finding of guilt so far as Section 498A of the IPC is

concerned.

15. For all the forgoing reasons, we find no merit in this

appeal, which is hereby dismissed.

Crl.M.A.No.4646/2012

The appeal has been dismissed. For this reason, this

application is not required to be considered and shall be

treated to be disposed of.

GITA MITTAL, J

J.R. MIDHA, J MAY 24, 2012/mk