Prashant Jain vs State
2014 Latest Caselaw 143 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Judgment delivered on: January 08, 2014
+     CRL.A. 1452/2010
      PRASHANT JAIN                                      ..... Appellant
                      Through           Mr.Harin Raval, Sr.Advocate with
                                        Mr.Vineet Malhotra & Mr.Aman
                                        Khan, Advocates
                          versus

      STATE                                                ..... Respondent
                          Through:      Ms. Richa Kapoor, Additional
                                        Public Prosecutor for the State

+     CRL.A. 1454/2010
      YASH JAIN                                           ..... Appellant
                          Through       Mr.K.K.Sud, Sr.Advocate with
                                        Mr.Chirag Khurana, Mr.Vishal
                                        Dabas & Mr. Ujas Kumar,
                                        Advocates
                          versus

      STATE                                                ..... Respondent
                          Through:      Ms. Richa Kapoor, Additional
                                        Public Prosecutor for the State

+     CRL.A. 1455/2010
      VEENA JAIN AND ANR                                  ..... Appellants
                          Through       Mr.K.K.Sud, Sr.Advocate with
                                        Mr.Chirag Khurana, Mr.Vishal
                                        Dabas & Mr. Ujas Kumar,
                                        Advocates

                          versus

      STATE                                                ..... Respondent
                          Through:      Ms. Richa Kapoor, Additional
                                        Public Prosecutor for the State
Crl.A.No. 1452/2010, 1454/2010 & 1455/2010                Page 1 of 20
       CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MS. JUSTICE INDERMEET KAUR
                        JUDGMENT

KAILASH GAMBHIR, J.

1. Challenge in the present appeals is the impugned Judgment dated

08.12.2010 passed by the learned Additional Sessions Judge-FTC

(Central), Tis Hazari Court, Delhi, whereby the appellant, Yash Jain has

been sentenced to undergo rigorous imprisonment for life for the offence

punishable under Section 304-B IPC. He has also been directed to

undergo rigorous imprisonment for a period of three years for an offence

punishable under Section 498-A of IPC in addition to payment of fine of

Rs.10,000 and in default whereof to undergo simple imprisonment for a

period of six months. Appellants -Veena Jain and Prashant Jain have been

sentenced to undergo rigorous imprisonment for a period of ten years for

the offence punishable under Section 304-B IPC. They have also been

sentenced to undergo rigorous imprisonment for a period of three years

for an offence punishable under Section 498-A IPC together with fine of

Rs.75,00/- each and in default whereof to undergo simple imprisonment

for a period of four months. The appellant, Subhash Jain has been

sentenced to undergo rigorous imprisonment for a period of seven years

for the offence punishable under Section 304-B IPC and for the offence

punishable under Section 498-A IPC he has been sentenced to undergo

rigorous imprisonment for a period of three years together with

imposition of fine of Rs.7,500/- and in default whereof to undergo simple

imprisonment for a period of four months.

2. Appellant - Yash Jain who is the husband of the deceased has filed

Crl.A.No. 1454/2010, appellants, Veena Jain and Subhash Jain, who are

parents-in-law of the deceased, have filed Crl.A.No. 1455/2010 while

appellant, Prashant Jain, who is the brother-in-law (Nandoi) of the

deceased has separately filed Crl.A.No. 1452/2010.

3. The case of the prosecution in brief can be summarised as under:-

"As per the charge-sheet, on 13.06.2000, telephonic information was received at Police Station Darya Ganj that Smt. Shalu Jain w/o Yash Jain r/o 4676/21, Ansari Road, Darya Ganj, Delhi had been taken by CATS Ambulance to JPN hospital in burnt condition. DD No.24A was accordingly recorded and SI Prabhu Dayal reached the hospital and obtained MLC of Smt. Shalu Jain she was declared unfit for statement. SI Prabhu Dayal met the complainant Smt. Kamlesh, mother of Smt. Shalu Jain and recorded her complaint Ex. PWI/A. the complainant stated that her daughter was married to accused Yash Jain s/o Subhash Jain on 23.01.1998. She alleged that since her marriage, her daughter was harassed by her in-laws and her husband use to beat her and ask for money. Even after the birth of her child, Shallu was harassed by her in- laws and was turned out of the matrimonial house

with the condition that she should return after bringing Rs. 40000/- which were spent on the delivery of her child. Shalu was again kept in the matrimonial house upon receipt of said 40,000/- Rs. The complainant also alleged that accused Yash Jain was unemployed and use to beat their daughter frequently. Complainant also alleged that her daughter also told her that her mother in law, Veena Jain also harass her on account of dowry and some days ago she was turned out of the matrimonial home, pursuant to which meeting was held in a temple in Shalimar Bagh where the matter was compromised and Shalu was taken back to the matrimonial home by the accused persons. She also alleged that her daughter was burnt by accused Yash Jain and accused Veena Jain. Subsequently, on 14.06.2000 Smt. Shalu Jain expired. As per the post mortem report her death was due to shock consequent on the ground of 75% burn injuries.

4. After completing the investigation, the police had also filed a

charge sheet against Anjali Jain (wife of Prashant Jain), Ruchi Jain

(sister-in-law) and Sanjay Jain (husband of Ruchi Jain) besides the above

appellants but at the time of hearing on the charge learned trial court

found allegations against Ruchi Jain, Sanjay Jain, and Anjali Jain quite

vague and inherently improbable and therefore these accused persons

were discharged by the court.

5. To prove its case, the prosecution had examined as many as 35

witnesses in order to bring home the guilt of the accused persons. After

the evidence of the prosecution, the entire incriminating evidence were

put to the accused persons at the time of recording of their statements

under Section 313 of Cr.P.C. and in response, they denied the prosecution

case as false and pleaded their innocence. In defence evidence, the only

evidence adduced by the defence was that of DW-1 - Dr. Bharat Singh.

6. Arguments on behalf of appellants in Crl.A.No. 1454/2010 and

1455/2010 were addressed by Mr. K.K Sud , Senior Advocate assisted by

Mr. Chirag Khurana, Advocate, while in Crl.A.No. 1452/2010,

arguments were addressed by Mr. Harin Raval, Senior Advocate assisted

by Mr. Vineet Malhotra, Advocate. State was represented through Ms.

Richa Kapoor, learned APP. Besides addressing extensive arguments,

both the parties, i.e., learned counsel for the appellants as well as learned

APP for the State have also filed their written synopsis.

7. Mr. K.K. Sud, learned Senior Advocate for the appellant - Yash

Jain, Veena Jain and Subhash Jain, of the outset, laid much strong

emphasis in his argument that the prosecution in the present case had set

up one case but tried to prove another case and such approach of the

prosecution is against the very tenets of criminal jurisprudence.

Contention raised by learned counsel for the appellant was that the

prosecution has built up a case of accidental death based on the dying

declaration of the deceased made to PW-13, Dharam Singh (CAT

Ambulance Officer) and PW-25, Dr. Nitin Kumar who examined the

deceased and prepared the MLC and before whom the deceased truthfully

stated that she had sustained burn injuries while cooking food. Learned

counsel for the appellant also submitted that at the time of examination by

the Doctor and also, while she was being carried out in the Ambulance,

the deceased was fully conscious and well oriented and her vitals were

stable and therefore there could be no reason for not believing her said

statements. Learned counsel for the appellant also submitted that giving

complete go-by to the case set up by the prosecution, the prosecution

ventured to set up another case i.e. of dowry death punishable under

Section 304-B of IPC. Learned counsel for the appellants further argued

that the prosecution has also made a vain attempt to set up a case of

homicidal death with the help of supplementary post mortem report

proved on record as Ex.PW32/B and FSL Report, proved on record as

Ex.PW-33/A, wherein one of the reasons for the cause of the death was

opined to be due to the presence of organophosphorous poison in the

stomach of the deceased. Learned counsel for the appellant also

submitted that no charge under Section 302 IPC was framed by the

learned trial court against the appellants although, nothing prevented the

prosecution to press for framing of additional charge under Section 302

IPC.

8. Ms. Richa Kapoor, learned Additional Public Prosecutor for the

State on the other hand with all her vehemence urged that all these

appellants were trying to hide their crime under the cover of alleged

statement made by the victim to the PW-13 (Ambulance incharge) and

PW-25, Doctor Nitin Kumar, who had conducted the medical

examination of the victim and prepared the MLC, were informed by the

victim that the cause of her getting burnt was due to accidental fire while

working in the kitchen. Contention raised by the learned APP was that the

FSL report proved on record as Ex.PW-33/A supported by the post

mortem report (Ex.PW-27/A), supplementary post mortem report

(Ex.PW-32/B), testimonies of PW-1, PW-2, PW-9, PW-10 and the other

corroborated evidence, clearly proves that the death of the victim was an

unnatural death and the said unnatural death resulted due to her murder at

the hands of these appellants. Learned APP for the State had invited

attention of this court to the FSL report Ex.PW-33/A wherein Dr.

Madhulika Sharma, Senior Scientific Officer clearly opined that the

Ex.3A and Ex.3B gave positive test for organophosphorous insecticides

and Ex.1 and Ex.2 were found to contain residue of kerosene oil. Learned

APP also submitted that after receipt of the said FSL Report,

supplementary opinion was sought by the prosecution from the post

mortem doctor and vide supplementary post mortem report proved on

record as Ex.PW-32/B the post mortem doctor opined that death of the

victim was due to combined effect of shock due to burn injuries and

organophosphorous poison. Placing reliance on the judgment of the Apex

Court in Rajbir vs. State of Haryana, reported in AIR 2011 SC 568,

learned APP for the State submitted that this court may enhance the

sentence of these appellants after taking into consideration the medical

and scientific evidence proved on record or in the alternative, to remand

the matter back to the trial court for framing the additional charge under

Section 302/34 of IPC against all the appellants. Learned APP for the

State also addressed extensive arguments on the other aspects of the case.

9. This is an unfortunate case of a young woman of 28 years who got

married with the appellant -Yash Jain on 23.01.1998 but lost her life

within a short span of two and a half years. There is no doubt and there

can't be any, between the prosecution and the defence that the victim had

died due to burn injuries and as per the MLC proved on record she had

suffered 75% burn injuries. The victim was taken in the CAT Ambulance

Van to JPN Hospital when she was accompanied by the appellant -

Mr.Subhash Chand Jain. As per MLC report proved on record as Exhibit

15/A the victim was admitted in the JPN hospital on 13.6.2000 at 6.00

p.m. Ironically, in the column "name of relative or friend" name of Shri

Dharam Singh, who was a junior ambulance officer, has been mentioned

instead of father-in-law of the victim. The MLC also disclosed the history

of assault as disclosed by the victim to the doctor being that she had

sustained burn injuries while she was cooking food and her sari caught

fire. MLC also discloses the condition of the patient as cautious/oriented

and her vital stable. In the left hand column of the MLC the patient was

shown to be unfit for her statement at 6.50 p.m, at 9.30 p.m. on 13.6.2000

and also at 1.30 a.m. and 7.00 a.m. on 14.6.2000 by the doctor who

attended the victim. The victim hardly survived for 15 hours. Rukka

Ex.PW-1/A was prepared based on the statement of the deceased PW-1,

Smt. Kamlesh Jain and on the basis of rukka, FIR was registered by the

police. After the death of the victim, the SDM had conducted the inquest

proceedings on 14.06.2000 and thereafter dead body was sent for autopsy

examination. The doctor conducting the post mortem of the dead body,

handed over the scalp hair and vicesera of the deceased to the

Investigating Officer which was taken into possession by the police vide

Memo Ex. PW-7/A and the same were deposited by the Constable

Virender (PW-7) in the Malkhana on the same day. The burnt clothes of

the deceased, Ex.P-2 to Ex.P-4 were also taken into possession vide

Memo Ex.PW-3/A after breaking open the lock of matrimonial house,

which was the place of incident i.e. house No. 4676/21, Ansari Road,

Darya Ganj by the police in the presence of the SDM. The burnt clothes

of the deceased, her scalp hairs and her Viscera were sent for scientific

analysis to the Forensic Science Laboratory on 10.07.2000 and the FSL

Report to this effect was proved on record by the prosecution as

Ex.PW33/A. The first post mortem report and the supplementary post

mortem report were proved on record as Ex.PW27/A and Ex.PW32/B. In

the first post mortem report Ex PW 27/A, the post mortem doctor opined

that the cause of the death of the victim was due to shock consequent

upon her receiving 75% burn injuries. It was further opined that all

injuries were ante mortem, recent in duration and were caused from

flames due to fire. It was further stated that the scalp hair sample has been

preserved at the request of the SDM and Viscera of the deceased was

preserved for chemical analysis to rule out any common poisonous

substance. The result of examination as opined in the FSL report dated 7 th

December 2001 with regard to Ex.1 and Ex.2 and Ex.3A and Ex.3B are

reproduced as under:-

On chemical examination:

(i) Exhibits '1' & '2' were found to contain residue of kerosene.

(ii) Exhibits '3A' and '4B' gave positive tests for organophosphorous insecticide.

(iii) Exhibit '3C' gave negative test for chemical poison.

10. To correlate the said exhibits, it is pointed out that Ex.1 relates to

the burnt clothes of the deceased; Ex.-2 was a bunch of brown black hair

of the deceased; while Ex.3A and 3B is the Viscera of the deceased and

Ex-3C was preservative sample, S.S of common salt. After receiving the

FSL report, firm opinion was sought from the medical experts regarding

the exact cause of death.

11. In the supplementary post mortem report, which was proved on

record as Ex.PW-32/A, Dr. Rohit, Sr. Resident, Dept. Of Forensic

Medicine MAMC, New Delhi after having examined the first post

mortem report Ex.PW-27/A and FSL report Ex.33/A, gave his opinion

with regard to the death of the deceased being due to combined effect of

shock due to burn injuries and organophosphorous poisoning.

12. Dr. Rohit (PW-32), Dr. Madhulika Sharma (PW-33) and Dr. Akash

Jhanjee (PW-35) were duly cross-examined by the defence.

13. PW-35 in his cross-examination in an answer to a question put by

the accused that 'could he specifically pin-point the material leading to

suspecting poison':- replied as under:-

"My finding that the stomach has burst open and 250 ml of greenish semi digested food material present in the peritoneal cavity was one such material for the reason that in the normal burn cases, stomach does not burst open. It is only in the cases of poisoning that the stomach gets burst."

14. Dr. Madhulika Sharma, (PW-33/A) in her examination-in-chief

deposed that Ex.1 and Ex.2 were found to contain residue of kerosene and

while Ex.3A and Ex.3B gave positive tests for organicphosphorous

insecticides and Ex.P-3C gave test for negative chemical poisons.

15. Dr. Rohit (PW-32) in his deposition proved his supplementary post

mortem report as Ex.PW-32/A wherein he opined that the cause of death

was due to combined effect of shock due to burn injury and organic

phosphorous poisoning.

16. The presence of the said medical and scientific evidence placed on

record by the prosecution, we are distressed to find that no additional

charge was framed by the learned trial court against these appellants

under Section 302/34 of IPC. On perusal of the trial court record, we find

that supplementary charge sheet was filed by the prosecution on 31 st July

2004 and based on this supplementary chargesheet, the prosecution

sought to summon the experts and Inspector Ranbir Singh to prove the

said reports. That was the stage when the accused persons were under

examination for recording their statements under Section 313 of Cr.P.C.

The evidence of Dr. Rohit (PW-32) and, Dr. Madhulika Sharma (PW-33)

was recorded by the learned trial court on 27th January 2005. It is

thereafter, on 18th March 2006, the statements of all the accused persons

were recorded by the learned trial court under Section 313 of Cr.P.C. and

the matter was adjourned for defence evidence. It is also a matter of

record that the defence had also examined an expert witness Dr. Bharat

Singh (DW-1) with a view to counter the said scientific and medical

evidence. After grant of several adjournments, final arguments were

heard by learned trial court on 23.11.2011 and 25.11.2011 and the

judgment was finally delivered on 8th December 2012 and order on

sentence was passed on 14th December 2012.

17. It is quite evident that the said FSL report and the supplementary

post mortem report was placed on record by the prosecution even prior to

recording of the statements of the accused persons under Section 313 of

Cr.P.C. and we find no reason for the learned trial court for not framing

an additional charge under Section 302/34 of IPC against the accused

persons. Even from the body of the judgment, we find that the learned

trial court had discussed these reports but in Para 67, it gave a reason by

saying that had the FSL report come in time, probably the case could

have been investigated form the angle of presence of organophosphorous

poison, which was found to be contained in the stomach of the deceased,

Shalu Jain. It is a settled legal position that under section 216 Cr. P.C the

charges can be amended by a trial court at any stage during a trial. The

said section reads as under

Section 216 of CrPC

1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read an explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had

been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

18. This section invests a comprehensive power in the Court to remedy

the defects in the framing or non-framing of a charge, whether discovered

at the initial stage of the trial or at any subsequent stage prior to

judgment. If there is any omission in the charge framed at the

commencement of the trial and the omission is discovered at any time

before giving the judgment, that omission can be remedied under this

section and an appropriate charge may be framed. The court has ample

power to amend or alter a charge only with a condition that it should give

full opportunity to the accused to make out his defence. The words "add

to" in the section do not mean an addition of a few words to the existing

charge. They mean addition of a new charge. Even after being

empowered with such vast power, we fail to comprehend that as to why

such an injudicious approach was adopted by the learned trial court.

19. The learned trial court perhaps had forgotten that fair and proper

trial is at the core of our judicial system to reach the ultimate goal of

dispensation of justice between the parties. It is first and foremost duty of

every court to see that neither any innocent man is punished nor any

guilty person escapes from the clutches of law. Both are public duties of a

Judge. During the course of the trial, the learned Presiding Judge is

expected to work objectively and in a judicious manner. A watchful and a

diligent trial Judge, before whom every piece of evidence is placed by the

prosecution and the defence, has to be a protector of the rights of both the

victims and the accused and nothing should escape his sight which can

unduly benefit either of them. While appreciating the evidence on record

the Court is expected to be fully cautious and ensure that the

determinative process is not sub-served. For truly attaining the object of a

'fair trial', the Court should leave no stone unturned to do justice and

protect the interest of the society as well.

20. Nevertheless, although a mistake had been committed by the

learned trial court in not framing an appropriate charge against the

accused persons, even this court is empowered under Section 464 Cr. P.C

to remand back the case to the trial court in case there is an omission on

the part of trial Court to frame any charge and where such omission

results into failure of justice. To fortify our aforesaid view point, it will

be useful here to refer to the recent decision of the Hon'ble Apex Court in

the matter of Manjit Kaur vs State of Punjab Crl.A.Nos. 418/2008 and

1511/2008 decided on 23rd July, 2013. In this case also the Trial Court

and High Court had not taken note of the serious injuries as were found

on the person of the deceased, opined in the post-mortem report. They

had taken note of only minor injuries mentioned in the postmortem report

and thus framed the charge under Section 304B IPC and the view taken

was that in the presence of such major injuries as per the post-mortem

report why could not the trial Court have altered the charge. Relevant

paras of the said judgment are reproduced as under:-

"We have heard Mr. S.K. Aggarwal, learned senior counsel for both the appellants, and Mr. V. Madhukar, learned AAG for the State of Punjab. The trial Court, as well as the High Court have proceeded on the basic charge of Section 304B IPC by appreciating the entire evidence. However, the medical report makes it crystal clear, that while convicting and awarding the sentence to the appellants, the Courts have taken note of only the minor injuries mentioned in the post-mortem report, and have completely brushed aside, and have not taken note of the serious injuries found on the person of the deceased Smt. Surjit Kaur. There is evidence on record to show this, which has also been proved by Dr. Baldev Singh, PW 1 in his statement that, "there was abnormal mobility of head at the neck". Further, "there was fracture of second and third cervical vertebrae".

Both the Courts below did not take note of these serious injuries or abnormalities, and instead, concentrated on minor injuries 1,2 & 3 mentioned in the post-mortem report, which are mere abrasions on the neck and the right knee of the deceased. The trial Court, after appreciating the evidence, came to the following conclusions:

"However, as regards accused Jagninder Singh, from the evidence on the record there is no manner

of doubt that it was he who was responsible for causing the death of Surjit Kaur alias Parveen Kaur deceased who died due to poisoning as well as due to injuries caused to her. As stated above upon post mortem examination injuries were found on the neck and right knee of the deceased and the death of Surjit Kaur deceased was opined to be due to poisoning as well as injuries on her neck. Injuries on the person of Surjit Kaur deceased are of such a nature which would not be self suffered or self inflicted. Of course, Dr. Baldev Singh PW 1 stated in his cross examination that injuries on the neck of the deceased could be caused if the deceased struck against the Pawa(wooden arm of the Cot) and that injury on the right knee could also be the result of striking against some hard substance but there was no occasion for the deceased to sustain such injuries by striking against any hard substance and accused Jagninder Singh in fact appeared to be responsible for causing injuries to the deceased as well a for administering poison to her resulting in her death and was liable for the same."

In view thereof, we fail to understand that if the trial Court was of the considered opinion that it was a case of murder, and that the appellant Jagninder Singh was responsible for causing her death, causing the mentioned injuries, and administering the poison, then why could the trial Court not have altered the charges at such a stage, and have heard the parties on that issue. The High Court, without taking note of the serious injuries, has dealt in a casual and cavalier manner with the case, and has taken a more lenient view and reduced the sentence of appellant Jagninder Singh from 10 years to 7 years. After hearing the learned counsel for the parties and perusing the record, we were shocked at how the trial Court, as well as the High Court have dealt with such a serious matter. It is, thus, in the

interests of justice, that we set aside both the judgments and orders, and remand the cases to the trial Court. The evidence is already on record. If additional evidence is required in the opinion of the trial Court, the parties may be permitted to lead the same further, after altering the charge. The learned trial Court is directed to proceed in accordance with law."

21. In the light of the aforesaid discussion, instead of dealing with the

various contentions raised by the counsel for the parties, for and against

the judgment, we find this to be a fit case to be remanded back to the trial

court for framing an additional charge under Section 302/34 of IPC

against the accused persons and it is only after the trial on additional

charge, this court will be in a position to appreciate the contentions raised

by both the sides whether the case in hand was a case of accidental death

or unnatural death or of culpable homicide. Accordingly the Judgment

and Order on sentence dated 08.12.2010 & 14.12.2010, passed by the

Learned Additional Sessions Judge is set aside and the matter is

remanded back to the concerned Additional Sessions Judge for framing

an additional charge under Section 302/34 of IPC against the accused

persons.

22. Not to prejudice the case of either of the parties on its merits, we

have not touched the merits of the case and we also make it explicitly

clear that if any observation made by us hereinabove touches the merits

of the case, the same shall not influence the learned trial court in arriving

at its own conclusion in its final judgment.

23. We also request the learned trial court to complete the trial, after

framing the additional charge under Section 302/34 of IPC against these

accused persons, within a period of six months from the date of this

order. We also permit the prosecution and the defence to lead any further

evidence after taking leave of the trial court on the additional charge. We

also direct that the appellants, who are already on bail need not seek their

bail again even after the framing of charge against them under Section

302/34 IPC and they shall remain on bail till the conclusion of the trial.

24. The matter shall be listed before the leraned Trial court on 18th

January 2014. Appellant - Yash Jain shall be produced by jail

Superintendant before the learned trial court on the said date.

25. With the above directions, these appeals stand disposed of.

KAILASH GAMBHIR, J.

INDERMEET KAUR, J.

JANUARY 08, 2014 pkb