Maya Devi & Ors. vs The State & Anr.
2019 Latest Caselaw 5431 Del

$~1
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Reserved on:       11.10.2019
                                      Pronounced on:     06.11.2019

+      CRL.M.C. 536/2017 & Crl.M.A. 2323/2017
       MAYA DEVI & ORS.                                 ..... Petitioners
                    Through           Mr.Sandeep Garg, Adv. with
                                      Ms.Priya Saxena, Adv. with P-2 & 4
                                      in person.

                         versus

       THE STATE & ANR.                                 ..... Respondents
                     Through          Mr.Panna Lal Sharma, APP for State.
                                      Mr.Deepak Vashisht, Adv. with
                                      Mr.S.P.Yadav & Mr.Mahesh Saroj,
                                      Advs. for R-2.
                                      Insp. Sanjay Bhardwaj, SHO Subzi
                                      Mandi.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                            JUDGMENT

1. Vide the present petition, the petitioner seeks direction thereby

directing to set aside the judgment and order dated 31.01.2017 passed by the

Ld. Special Judge- CBI- 03 PC Act, Tis Hazari Courts, Delhi, in C.R. no.

12/16 titled as 'Ms. Versha Aggarwal versus State of NCT of Delhi & Anr.'

whereby the ld. Additional Sessions Judge was pleased to allow the criminal

revision filed by the respondent no. 2 and set aside the order on application

under section 156(3) Cr.P.C. dated 10.08.2016 passed by the ld.

Metropolitan Magistrate-07, Central District , Tis Hazari Courts, Delhi, in

complaint case titled as Versha Aggarwal vs. Maya Devi &Ors. whereby the

ld. Trial Court was pleased to dismiss the application of respondent no. 2

under section 156(3) Cr.P.C.

2. The brief facts leading to the filing of the present petition are as stated

in the complaint filed by the complainant i.e. respondent no. 2 that the

complainant married Pradeep Kumar Aggarwal on01.07.2009 and after

marriage she started residing at her matrimonial house consisting of

petitioners, who are her mother in law (petitioner no. 1), brothers in law

(petitioners nos. 2-4), sister in law (nanad) (petitioner no. 6) and jaithani

(sister in law) (petitioner no.5) respectively. As per the complainant i.e.

respondent no. 2, it is stated that on 27.11.2014, she and her husband went to

their relatives at Aligarh, and thereafter proceeded to Khurja for a marriage

function and both of them attended the marriage at Khurja and After

marriage on 02.12.2004, the complainant's husband departed for Delhi,

whereas, complainant stayed back. It came to the knowledge of the

Complainant that the deceased had his last dinner prepared and cooked by

his mother on 03.12.2014 and at around09:00 P.M, when complainant's

husband had reached home after attending the shop. On 04.12.2014 at about

12:30 p.m., she was informed about the death of her husband. The deceased

was taken to the Hindu Rao hospital and was declared dead after all the

formalities and medical examinations.

3. It is further submitted that in the month of August of 2015 the

respondent no.2 had filed a complaint case under section 156(3) Cr.P.C.

against the petitioners in the court of ld. CMM which was marked to the

concerned MM for registration of FIR. Ld. MM on the application and

complaint of respondent no.2 had directed to the concerned Police Station to

file status report i.e. ATR and accordingly status report was filed which

clearly show that it was a 'Natural Death'. Considering the status report and

other documents, the Ld. MM vide its order dt. 10.08.2016 dismissed the

application by observing that in the chemical analysis of viscera, no

poisonous substance was detected and as per the final opinion given by the

doctors of the Hindu Rao Hospital, the cause of death was septic shock due

to lung infection and therefore medical evidence collected by the police

during the inquiry was sufficient to rule out the possibility of any foul play.

Accordingly, matter was listed for leading complainant evidence with liberty

to the complainant to substantiate her allegations. Being aggrieved

respondent no.2 preferred a Criminal Revision which was marked and

assigned to Ld. ASJ, Delhi and vide order dt. 31.01.2017 the court was

pleased to set aside the order dt. 10.08.2016 passed by the Ld. MM.

4. In the present case the statement of the mother of deceased Maya

Devi was recorded by the IO of the case during the inquest proceedings on

04.12.2014 in which, she stated that his third son i.e. deceased was residing

on the first floor of the house and he was running a cloth shop in

Bhajanpura. On 03.12.2014 he came back from the shop at around 10:00

P.M, since his wife and children had gone to Aligarh, therefore she cooked

food for him at around 10:00 P.M , thereafter at around 02:00 in the night

she heard noise from the room of his son as if something had fallen down.

When she went up, she found the room was locked from inside. She called

him once or twice, thereafter she came back. At around 12:00 P.M., she

again went to the room of his son, as he had not woken up, though he used

to go to his shop at around 11:00 A.M in the morning. However, when she

pushed the door, the latch opened and she saw her son was lying on the

ground and his hands and legs were stiff. She raised an alarm, his son Pankaj

and tenant took him to the hospital. His son was a teetotaller and non

smoker, he was not having any problem of epilepsy, though he had the

problem of disorientation. At that stage, she was not having suspicion upon

anyone pertaining to the death of his son. On the same day statement of his

son Pankaj was also recorded, he also gave a similar version. The statement

of the present complainant was also recorded on 05.12.2014 by the same IO

ASI Bacchu Singh in which she had stated that she had gone to attend the

marriage of her relative at Aligarh and on 04.12.2014 she received a

telephone call from his Jeth Sanjay Jain that her husband had died, but she

was not having any suspicion upon anyone regarding the death of the

deceased. Same was the statement of father of the complainant Kailash

Chander Aggarwal recorded on 05.12.2014 in which he also stated that he

was not having any suspicion upon anyone.

5. However, it is the contention of Ld. Counsel for the complainant that

though no poison was detected in the viscera report, but there are many

kinds of poisons. The presence of which could not be detected, even in the

viscera report. In support of the said contention, learned counsel has also

relied upon the judgment of High Court of Madras titled as Ponnusamy vs.

State by Inspector of Police.

6. In this context, the observation made by the Hon'ble Supreme Court

in Mahabir Mandal and Others Vs. The State of Bihar: AIR 1972 SC

1331, which is relevant, is to be noted

"31. Empty reference has been made by Mr. Charl to report dated December 23, 1963 of the Chemical Examiner, according to whom no poison could be detected In the viscera of Indira deceased. This circumstance would not, In our opinion, militate against the conclusion that the death of the deceased was due to poisoning. There are several poisons particularly of the synthetic hypnotics and vegetable alkaloids groups, which do not leave any characteristics signs as can be noticed on post-mortem examination"

32. This observation, in our view, would squarely apply to the facts of the present case. The above observation of the Supreme Court was based on the reference made in Modi's Medical Jurisprudence and Toxicology. Those references were also referred to by the Apex Court, which are as follows:

"It is quite possible that a person may die from the effects of a poison, and yet none may be found In the body after death, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloids and glucosides, maybe oxidation during life or by putrefaction after death, be split up into other substances which have no characteristics reactions sufficient for their identification."

33. The observation would make it clear the poison like that of oleander poison may not normally be detected in the viscera as they have no reliable testes. Moreover, it is seen from this observation that he whole of the poison would disappear from the lungs by evaporation or removed from the stomach and intestines by vomiting and purging."

7. Learned counsel for the respondent no.2 has drawn the attention of

this court towards the photographs of the deceased, which were taken

immediately after his death, from which it is revealed that the face of the

deceased had turned into Blueish colour. He has also drawn the attention of

this court towards the MLC dated 04.12.14 prepared at Hindu RaoHospital

in which also the examining doctors had observed regarding stiffening of the

body as well as blue discoloration of the same. Therefore, it is apparent that

the body of deceased turned into blueish colour immediately after his death

when he was taken to Hindu Rao Hospital, where he was declared brought

dead.

8. On the other hand Ld. Counsel for petitioner has argued that deceased

had died a natural death as is evident from the viscera report as well as post-

mortem report, wherein his cause of death of has been opined as 'Septic

Shock' consequent to lung infection. The complainant also did not make any

complaint to the police immediately after the incident alleging foul play. He

has further argued that the complainant has made her present complaint only

in order to harass the petitioner and to extract money and property from

them.

9. I have gone through the rival contentions. It is the admitted case of the

mother of the deceased as well as his brother that the deceased was hale and

hearty prior to his death and he was not suffering from any major ailment.

He was also a teetotaller and non-smoker. However, it is not clear what

caused his immediate and sudden death on 04.12.14. The initial

investigation done by the police also does not appear to be proper, as though

the Mobile Crime Team was called to the spot and it is also mentioned by

the crime team in its report dated 05.12.2014 that since deceased had already

been taken to the hospital, though stool and vomit were also present in the

kitchen, yet the said stool and vomit were not captured, or seized and were

preserved properly for their forensic evaluation, as it would have been the

best piece of additional evidence to find out, whether any external substance

had been consumed or had been given to the deceased which may have been

disgorged by him by vomiting and by passing stool.

10. From above, it appears that the said crime team had only done some

sort of perfect investigation at the spot for the sake of doing it, though it was

their duty to preserve the vomitus and the stool of the deceased, which

would have also helped in finding out the cause of death. No doubt, in

viscera report dated 19.02.2015, no poison could be detected and in the final

Post-mortem Report, cause of death has been opined as 'Septic Shock

consequent to lung infection'. However perusal of the post-mortem report

dated 05.12.14 shows that with regard to the findings in the lungs, the

forensic expert who had conducted the post-mortem had reported "Exudes

pus on cut section in upper lobe". He had kept the opinion pending

regarding the cause of death pending the viscera report; however he should

had given initial cause of death without waiting for the viscera report as a

preliminary finding.

11. Thus the court below observed that practice of keeping the opinion on

cause of death pending viscera report cannot be countenanced, forensic

expert should give his initial opinion regarding the cause of death

immediately, so as to give the definite direction to the I.O., i.e. by providing

him the coordinates in which he should investigate and should not wait for

inordinate period of time for the viscera report to arrive at and to give an

opinion regarding the cause of death.

12. Further observed, though in some cases it may not be possible to give

such an opinion without viscera report. Taking recourse to such kind of

practice, wastes the precious initial time of the investigating agency in

pursuing the investigation in a proper direction. This precious time which is

so lost can lead to disappearance of vital evidence.

13. Also observed, the post-mortem expert has also not opined in a clear

way that the pus which was found in the upper lobe of his lung was of such a

nature, which could have caused sudden and immediate death of the

deceased, who was otherwise hale and hearty and was non-smoker as well as

teetotaller, nor suffering from any pre-existing illness of respiratory track.

Further, the lungs were not preserved forhisto pathology, in view of the

presence of pus in the lungs which could have also shed light on the cause of

death. He has nowhere given any clear indication in his postmortem report

that what was the kind of ailment the said pus could cause resulting into

immediate death of the deceased due to septic shock. This vital aspect is

totally missing in the post-mortem report, which is of paramount importance

in this case.

14. Though, initially the complainant had also not raised any suspicion

upon anyone regarding the cause of death of her husband. However, she

may have later on realized that there are number of suspicious

circumstances, shrouded in mystery, which have not been properly

explained, that is why she had filed complaint before the court praying it to

give directions U/s 156(3)CrP.C to register an FIR.

15. Accordingly observed, the aforesaid circumstances, clearly raise lot of

suspicion in the facts of the present case, which can only be dispelled on

thorough investigation by the investigating agency/police for which field

investigations would be required including recording the statement of the

relevant witnesses, which cannot be done by the complainant.

16. In the present case, it will also be expedient in the interest of justice

that appropriate medical board is constituted by the concerned authorities to

find out the exact cause of death of the deceased i.e. to find out whether the

pus which was found in the upper lobe of his lungs could cause sudden and

immediate death, though not suffering from any pre-existing illness, as has

been in this case and could have caused turning of his body into blueish

colour, as it is apparent from the photographs and MLC placed on record.

17. In the present case, the complaint clearly disclose(s) the commission

of cognizable offence(s) and the matter needs thorough field investigation as

well as aid of scientific and forensic investigation. Therefore, Ld. MM

instead of himself taking the cognizance of the matter should have

straightaway directed the police to inquire into the matter, which is primarily

the duty of the police in these intricate matters.

18. Accordingly, Ld. Trial Court is directed to direct the concerned SHO

to register FIR and investigate under the appropriate provision(s) of law U/s

156(3)Cr.P.C after one week of receipt of this order. However, SHO/IO

shall not straightaway jump to arrest any of the accused persons on mere

registration of FIR in this case, unless and until cogent and reliable

evidence/material is find out during the investigations against the accused

persons and that too with permission in writing of the Joint CP/DCP

concerned, who shall also give detailed reasons for the same.

19. In view of above, the petition is disposed of.

Crl.M.A. No. 2323/2017

20. In view of the order passed in the present petition, the application has

been rendered infructuous and is accordingly, disposed of.

(SURESH KUMAR KAIT) JUDGE NOVEMBER 06, 2019/ab