Vs. State of Rajasthan & Anr  Insc 553 (18 October 2001)
K.T.Thomas S. N. Variava, J.
Special Leave Petition (crl.) 32 of 2001
appeal is against the judgment dated 5th July, 2000, by which the High Court has
summarily dismissed the Revision Petition filed by the Appellant herein.
stated the facts are as follows:
Appellant is the father of one Munki. The said Munki was married to the 2nd
Respondent. Of the said marriage there is a girl child born to these two
On 16th September, 1998, the Appellant filed a First
Information Report with the Mahatma Gandhi Police Chauki, Jodhpur, Rajasthan. The complaint was to
the effect that the 2nd Respondent used to beat his wife and harass her without
any reasons. It was complained that even when the 2nd Respondent had been told
not to beat his wife or harass her, he refused to listen to reasons. It was
further complained that on 15th September, 1998, the Appellant was informed that Munki was seriously ill and had been
admitted to Jodhpur Hospital. It was stated that when the Appellant went to the Hospital
he found Munki in Emergency Ward. It was stated that Munki had informed the
Appellant that she had been beaten and administered a glass of pesticide by her
husband i.e. the 2nd Respondent.
basis of the FIR, a complaint under Section 498-A and 323 was registered.
Subsequently Sections 307 and 324 were also added. The 2nd Respondent was then
tried for the said offences. By an Order dated 27th March, 2000 the 2nd
Respondent was acquitted by the Second Additional District & Sessions
the Order of acquittal the Appellant filed Criminal Revision Petition, which
has been dismissed by the impugned Judgment dated 5th July, 2000. Hence this Appeal.
though the State had not filed an Appeal against the Order of acquittal dated 27th March, 2000 and has not filed any SLP before
this Court, Mr. Ranji Thomas, who appears for the State of Rajasthan, informs us that he is supporting the
support of its case the Prosecution had examined a number of witnesses. Among
the witnesses that it had examined was one Dr. N.S. Kothari, who was examined
as Prosecution Witness No. 9. He deposed that after Munki was admitted to the
Hospital, her gastric lavage and blood sample were preserved and sent for
chemical examination. He deposed that the chemical examination disclosed that
an insecticide poison namely, organo-phosphorous, which was dangerous to life,
was found present in gastric lavage and blood sample. He further deposed that
if the treatment had not been given in time, Munki would have died. The report
had been marked as Ex.P. 8. The result of the report read as follows :
chemical examination, portion of blood sample and gastric lavage gave position
test for the presence of organo- phosphorous insecticide." On the basis of
this evidence the Second Additional District & Sessions Judge concluded
that poison dangerous to life was found in the body of Smt. Munki. Inspite of
this finding the 2nd Respondent was acquitted. The reasoning of the Second
Additional District & Sessions Judge, for acquitting the 2nd Respondent, are
difficult to follow. Munki was supposed to have been taken to the Hospital by
her Jeth. Munki had also deposed that when poison was administered to her, her
mother-in-law and sister-in-law were also present. The Second Additional
District and Sessions Judge has concluded that the Jeth and the mother-in-law
and sister-in-law should have been examined by the prosecution. The Jeth was
not an eye witness to the administration of poison. We fail to understand what
evidence the Jeth could have given except to say that he took Munki to the
Hospital. We also fail to understand how the Second Additional District &
Sessions Judge expected prosecution to lead evidence of the 2nd Respodent's
mother and sister. We fail to understand how non-examination of these parties
was fatal to the prosecution case. The Second Additional District &
Sessions Judge also held that the tumbler through which the poison was supposed
to have been administered to Munki had not been produced by the Prosecution and
that this was a serious lapse on part of the prosecution. On such specious
reasoning it was held that there was no oral, documentary or circumstantial
evidence to show that the 2nd Respondent had administered poison to his wife Munki.
view the reasoning of the Second Additional District &Sessions Judge is
entirely erroneous and cannot be sustained. It could not be said that there was
no oral or direct evidence available in this case. The wife Munki survived. She
has given evidence as PW 6. We have perused her deposition. She deposed about
being beaten by her husband regularly. She has deposed that, on one occasion,
when she was conceiving with a 7 months old child, she had been beaten so badly
that the child died in the womb and she had remained ill for 15 days. She
deposed in clear terms that her husband i.e. the 2nd Respondent had held her
nose and poured the poison into her mouth, forcing her to take two or three
sips of poison. She deposed that she remained conscious and ten minutes
thereafter started vomiting.
deposed that her Jeth took her to the Hospital and that she received treatment
over there. She deposed that when her father came to see her in the Hospital,
she had informed him that poison had been administered to her by her husband.
In cross examination her testimony has not been shaken at all even though there
has been a lengthy and detailed cross examination. We find her evidence to be
trustworthy and reliable.
Appellant, father of Munki, has given evidence as PW 3. He also corroborates
the fact that Munki was regularly beaten by her husband. He deposed that on
hearing that she had been admitted to the Hospital, he went to the Hospital. He
deposed that she had informed him that her husband had administered poison to
her. His testimony has also not been shaken in cross examination. This is
direct evidence, which was available before the Court.
Second Additional District & Sessions Judge was wrong to have ignored this
evidence. This evidence was supported by the fact that on chemical examination organo-phosphorous
i.e. an insecticide poison was found in the gastric lavage and blood sample of Munki.
The evidence showed that this substance was dangerous to life. Through the
evidence of these two witnesses the prosecution had also conclusively proved
that 2nd Respondent had subjected Munki to cruelty. In view of this direct
evidence we fail to understand how it could have been concluded that there was
no oral, documentary or circumstantial evidence. This finding cannot be
sustained and has to be set aside.
though the Order of the Second Additional District and Sessions Judge was
clearly unsustainable, the High Court approached the Revision in a most
perfunctory manner. The High Court summarily dismissed the Criminal Revision.
this view of the matter the order of the trial court acquitting the 2nd
Respondent cannot be sustained and is set aside. The accused, Respondent No. 2,
is held guilty of offences under Sections 307, 324 and 498-A of the Indian
Penal Code. The 2nd Respondent will have to be heard on the question of
sentence to be imposed on him. We, therefore, send the matter back to the
Second Additional District & Sessions Judge for hearing the 2nd Respondent
on the quantum of sentence and for imposing the necessary sentence in
accordance with law.
Appeal stands disposed of accordingly. Needless to state that the impugned
Order is also set aside. There will be no Order as to costs.