Case: State Of Himachal Pradesh Vs. Rajiv Jassi

the respondent Dr. Rajiv was married to Dr. Suman Lata, daughter of Ram Kishan, PW9. The marriage was performed on 25.4.1998. The incident took place on 26.5.2000. At the relevant time deceased was posted as Dental Surgeon at Civil Hospital, Chail, district Solan; whereas the accused was posted as Medical Officer in Primary Health Centre, Gharuan in district Ropar, State of Punjab3. Prosecution has alleged that the relationship between the deceased and the accused became estranged due to demand of dowry and excessive drinking habit of accused. Under the influence of liquor he used to beat the deceased. On 23.5.2000 Anil Kumar, PW 8 brother visited the deceased at Chail and stayed with her. In the intervening night of 25th and 26th May, 2000 the accused reached Chail where deceased was residing. He was drunk and started abusing, kicking and beating the deceased. When Anil Kumar tried to intervene he was also beaten by the accused and was turned out of the house. On 26.5.2000 at about 3 a.m., Surender Kumar, PW 5 came out for urination when he heard the shrieks and cries of the deceased and extreme weeping of her child. The deceased was crying Give me salty water. I do not want to die. Surender Kumar went to the house of the deceased. It was closed from inside. He informed Ved Prakash, PW 4 Ex-President of Chail Gram Panchayat as well as Om Prakash PW 7. All three of them went to the house of the deceased. Ved Prakash knocked the door of the house which was bolted from inside. None opened the door for sometime, after about 5 minutes door was opened by the accused. On entering the room, PWs.4, 5 and 7 smelt poisonous odour in the room. The articles in the room were scattered. The deceased was lying on the bed having bruises and contusions on her face. Water was splashed on the bed as well as on the floor of the room. The clothes of the deceased were also drenched. PW 5 asked the accused to take the deceased to the hospital immediately. However the accused replied that there was no necessity therefor and that deceased would be all right very soon4. Prosecution has alleged that in the meantime Dayal Singh, PW 6, Anil Kumar, PW-8 and Shiv Kumar, PW-10 also arrived. They noticed the condition of the room and also the precarious and deteriorating condition of the deceased. When they asked the accused what had happened, he retorted that it was his private life and they need not bother. The accused refused to take the deceased to the hospital on the pretext that nothing had happened and he himself being a doctor could look after her. PWs.6, 8 and 10 also smelt poisonous odour in the room. Deceased was crying that she did not want to die and she be saved. On being asked what had happened, she raised her hand towards the accused. Om Prakash, PW-7 informed the police at about 4.30 a.m. On that Biru Ahmad, PW-17 entered the information in the daily diary and proceeded towards the spot. He found the deceased lying on the bed in an unconscious position. Dr. O.P. Choudhary, PW-2, examined the deceased at about 6 a.m. and noted the patient was semi-conscious with history of consumption of poisonous substance. He also noted (i) contusion reddish in colour over the lateral side of the right eye brow with swelling present of the size of 7 cm. x 5 cm. and (ii) both lips were swollen. It was also noted that complete examination of the body could not be done because patient was in serious condition. B.P. was not recordable and Pupils bilateral circular, pin point not reacting to light5. PW-2 administered the initial treatment. He carried out Gastric lavage first with saline solution and then with ordinary tap water. Thereafter he referred the deceased to I.G.M.C. Hospital, Shimla at about 7 a.m. for expert opinion and further treatment. Deceased died at IGMC Hospital, Shimla on the same day in the evening of 26.5.2000 which was informed to the police. Post mortem was conducted by Dr. Piyush Kapila, PW-3 in association with Dr. V.K. Mishra, Assistant Professor, Forensic Medicine. As to the cause of death it was opined that the deceased had died due to asphyxia secondary to the organo phosphorus poison. Following ante-mortem injuries were found on the person of the deceased :(i) 10 cm x 6 cm bruise on the right periorbital area with swelling of right eye lid with two contentric nail scratches abrasions, one on forehead and other on upper eye lid. Bluish in colour(ii) 9 cm x 4 cm big contusion, bluish in colour, on intraorbital area and cheek on left side(iii) ½ cm x ½ cm contusion on the inner side of lower lip towards left side mid line with respect to left lateral incisor (lower). Blue in colour(iv) 8 cm x 7 cm abraded contusion over chin and submental area in midline. Bluish in colour(v) 11 cm x 5 cm multiple small abrasions over neck and right of upper chest in front 3 cm lateral to sterno calvicular joint(vi) 10 cm x 4 cm contusion in infra-axillary area in mid axillary line. Blue in colour(vii) 7 cm x 5 cm large purple coloured pach over dorsum of right hand with multiple needle prick marks (latrogenic)In addition it was found in the post mortem report that there was a dead male foetus 40 cm. in length with head circumference of 29 cm. with body weight of 1300 gms. present in the uterus of the deceased and he calculated the age of foetus as 8 months6. On 27.5.2000 Anil Kumar, PW-8 lodged a report at the Police Station mentioning the harassment caused by the accused to the deceased for dowry. It was mentioned that he talked with in-laws and was informed that the accused was coming to Chail in the evening. In the midnight at about 12, accused reached Chail in his Santro car. He was under the influence of liquor and was carrying a bottle of liquor in his hand and started abusing them and gave a kick-blow on the abdomen of the deceased who was pregnant. When he tried to stop, accused pounced upon them due to which he received scratches and swelling on face. Then his sister asked him to leave. Thereafter he went to the house of his friend Bablu. Later on two/three persons came. They called Bablu and enquired about him and told that the condition of his sister was not good. Then he rushed to the residential quarter of his sister and found accused Rajiv who opened the door and the condition of his sister was precarious. His sister was having a son aged 13 months. He suspected that his brother-in-law Rajiv had forcibly administered poison with intention to kill his sister. Death had occurred due to mal-treatment by the accused and action be taken against him7. The investigation revealed that 14-15 days before the occurrence the accused had purchased organo phosphorus sold under the trade name of NUVAN from Sanjay Kumar, PW-13, a shopkeeper at Chail on the pretext that he required the same to kill the flies. It was also alleged by the prosecution that on the fateful day accused forcibly administered poison to the deceased in order to kill her. During the course of administration of poison deceased struggled as such sustained injuries on her face, lips and neck. Deceased was being harassed and treated with cruelty on account of demand of dowry by the accused and his parents. Chargesheet was filed under sections 302, 304-B, 314 and 498A read with section 120-B IPC8. The accused abjured the guilt and pleaded innocence. The prosecution in the course of trial examined 18 witnesses. Accused in his statement under section 313 Cr.PC did not deny the factum of the deceased having died due to poison. It was stated by him that the deceased had disclosed to him that she had consumed some drugs and had asked him to give her salty water. Deceased was under convulsion due to some drug. He had given her water to vomit. He had taken the deceased firstly to Primary Health Centre at Chail and then to I.G.M.C. Hospital at Shimla. Deceased was a sensitive lady. His relationship with the deceased was cordial. He examined 3 witnesses in defence9. The trial court acquitted the parents, however convicted the respondent husband for commission of the offence under section 302 IPC10. The trial court came to the conclusion that the circumstantial evidence brought on record contained positive proof, credible sequence of events, factual truth linking the accused with commission of offence by means of forcible administration of organo phosphorus poison to the wife. The trial court based conviction upon the following circumstances :(i) Relied upon the statements of PWs.6 and 11 regarding consistent mal-treatment, beating and thrashing by the accused to the victim. (ii) Landlord Dayal Singh has stated that while in a state of intoxication accused used to beat the victim and quarreled with her. On that he had asked him to vacate the house. Then the accused had shifted to the house in question. (iii) Accused was maintaining his criminality consistently. The conduct of the accused on the fateful night indicates that he came to the house and started beating and hitting Anil Kumar PW-8 and his deceased sister. (iv) He kicked on the abdomen of the victim though she was pregnant. Abdominal swelling was found by the Atopsy Surgeon Dr. Piyush Kapila, PW-3. (v) On the fateful night the accused had turned out the brother of the deceased PW-8 from the house at Chail after beating him. PW-8 suffered three injuries in the form of multiple scratches over neck, chin, face and other parts of the body. (vi) the accused was present in the room of the deceased. (vii) The nature of injuries which was found on the person of the deceased were ante-mortem. All injuries were on the front portion of the body and could be caused while she was lying on the bed. Such injuries could be found in cases of smothering and strangulation and forcible administration of poison. The injuries suffered by the victim on her lips, chin, throat and neck could be caused by the accused while administering poison forcibly. (viii) The accused did not open the door immediately but opened it after considerable time of five minutes. (ix) The accused did not take the deceased to the hospital and stated that nothing had happened to her and that she would be alright very soon. It was the duty of the accused being a doctor to immediately rush her to the hospital. The accused wanted the victim to breathe her last and thus delayed taking her to the hospital. It was not a case of self-poisoning considering the nature of injuries found on the deceased. (x) The domestic articles and luggage were scattered in the room. Child was crying and his small empty bottle which contained the organo phosphorus poison was found lying there. Its cap used as stopper was also lying and a pungent poisonous odour was present in the room. (xi) When the witnesses asked what had happened to her, the victim had raised her hand towards the accused. Thus the victim raised her accusing finger towards the culprit that is her husband. (xii) The accused had purchased the organo phosphorus from the shop of Sanjay Kumar, PW-13, 14-15 days before the date of the incident for a sum of Rs. 50/-. There was no necessity for the accused to purchase the same to kill flies. He purchased the same with design to cause end of the life of the victim. (xiii) Considering the nature of injuries found on the body of the victim they could not have been caused by convulsion11. The High Court has acquitted the respondent by the impugned judgment and order on the ground that the circumstances are not of conclusive nature. Chain of circumstances is not complete so as to unerringly point to the guilt of the accused. Though Dr. O.P. Choudhary, PW-2 stated that injuries indicated positively the administration of poisonous substance forcibly to the victim, however, he could not say whether the deceased had consumed the poison herself to commit suicide. Similar was the statement of Dr. Piyush Kapila, PW-3. His statement was also disbelieved on the ground that he could not rule out the possibility of the victim committing suicide by herself. The first information given to the police was that the victim had consumed some poisonous substance. Initially the offence under sections 306 and 498A was registered. Dr. Chaudhary, PW-2 had noticed only two injuries on the person of the deceased. However, the injuries increased from 2 to 6 in the post mortem report submitted by Dr. Piyush Kapila, PW-3. The possibility of the injuries could be caused by convulsions was not ruled out. Possibility of injuries caused by convulsions is strengthened from the fact that number of ante-mortem injuries had increased from the period the victim was examined initially and the post mortem was conducted. The prosecution has failed to prove that poison was in possession of the accused. Since the trial court has not convicted the accused under section 498A or section 304-B, IPC, it could not be said that the deceased was being ill-treated or harassed with cruelty on account of dowry. The evidence of shopkeeper Sanjay Kumar, PW-13 from whose shop accused allegedly purchased poison, is not reliable. Accused is a medical doctor. He has knowledge of poison. He would not create evidence against him by purchasing poison from Chail itself. Accused would not choose poison like organo phosphorous i.e., NUVAN a pesticide which has a pungent smell like kerosene to kill the victim. He would have purchased better poison. The accused had administered salty water in order to enable the victim to vomit. This indicates that gastric lavage was carried out by the accused to save the deceased. He had accompanied her to Chail hospital and then to hospital at Shimla. The victim did not name the accused as responsible for administering poison and there was no occasion for her merely lifting her hand towards the accused. The conduct of brother of the deceased namely Anil Kumar, PW-8 is not free from doubt. The clothes of the deceased have not been produced to show that there were stains and traces of poison. When two views are possible one favourable to the accused is required to be adopted. Hence conviction has been set aside

Reasoning:
21. This Court has considered in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 , case of murder by administering poison and dealt with mode and manner of proof in such cases. Four circumstances are to be examined before recording a conviction. (i) There was a clear motive for the accused to administer poison to the deceased, (ii) the deceased died of poison said to have been administered, (iii) that the accused had poison in his possession and (iv) that he had an opportunity to administer the poison to the deceased. The prosecution alleged that the husband administered the poison to her whereas defence took the plea that there was a strong possibility of her having been ill-treated, being sensitive and impressible, she might have committed suicide out of depression and frustration arising from an emotional upsurge. The aforesaid tests stand satisfied in the instant case and the prosecution has proved the case beyond periphery of doubt. The conduct of the accused and gesture of the victim at the crucial time as projected in the case, medical evidence, evidence as to purchase of poison unerringly point towards the guilt of the accused22. It was also submitted by learned counsel appearing on behalf of the respondent-accused that the child now 17 years old and is residing with the accused, as such we should take a lenient view. That cannot be a ground so as to show any leniency in such kind of offence, particularly when the accused had not cared and caused death of his wife who was also a doctor and at the same time she was pregnant, carrying 8 months male child whose foetus was recovered from her womb. He had kicked the womb also that is why swelling in womb was found. In the circumstances, accused is not entitled to any lenient treatment as it can only be within legal parameters23. In the circumstances the High Court has gravely erred in reversing the well-reasoned judgment of conviction and order of sentence recorded by the trial court.