Rakesh Kumar vs State Of UP

[PER : HON’BLE AJAY BHANOT, J.]

The instant appeal arises out of the judgement dated 14.09.2020 rendered by the learned Additional District and Sessions Judge, Court No.1-Jalaun at Orai in Sessions Trial No.141 of 2013 CNR No.UPJL 010002152013 JOCode-UP5860 (State of U.P. v. Rakesh Kumar). The F.I.R. which culminated in the criminal trial and the impugned judgment was registered as Case Crime No.894 of 2012 under Section 302 IPC (which was later converted into Section 306 IPC) at Police Station-Jalaun, District-Jalaun.

The learned trial court by the impugned judgement has found the appellant guilty of the offence under Section 302 I.P.C. and has imposed a punishment of life imprisonment with a fine of Rs.15,000/-. In the event of default of payment of fine the appellant is liable to undergo additional imprisonment of 2 years.

The FIR was registered on 21.08.2012 at 10:40 hours at P.S. Jalaun, District Jalaun at Orai. As per the F.I.R. the deceased died on 27.12.2010.

Briefly put the prosecution case set out in the FIR is that the daughter of the first informant was married to Rakesh Kumar in the year 2002 and resided in her marital home at Jalaun. The couple was blessed with one daughter-Upasana aged about 6 years and an infant boy-Naitik who was aged about 18 months old. The daughter of the first informant was often assaulted and tormented by his son-in-law who had relations with multiple women. Efforts to reconcile the couple and resolve their disputes amicably were of no avail. Rakesh Kumar murdered Gyanvati-daughter of the first informant by administering poison to her on 26.12.2010 at about 08:00 P.M. The first informant was informed by his grand daughter that her father had administered a medicine with water mixed with sugar to the deceased. The first informant thereafter became busy with the last rites of the deceased. He filed a complaint before Police Station- Kotwali, District- Jalaun on 28.12.2010 but was not given any document of receipt. No action was taken on the complaint, despite several visits by the first informant to the police station.

Subsequently an application was made before U.P. Human Rights Commission, Lucknow to direct the police to register the FIR. This is the brief summary and history of the F.I.R.

Pursuant to lodgment of the F.I.R. police investigation ensued. A charge sheet was filed by the Investigating Officer against the appellant on 20.10.2012 under Section 306 I.P.C. Cognizance of the offence was taken by the learned trial court on 22.10.2013.

Charges were framed by the learned trial court on 06.09.2013 and are extracted hereinafter:

The accused pleaded not guilty to the charges and the case went to trial.

Tabular charts depicting the evidences adduced by the prosecution during the trial are as under:

The FIR was lodged after receipt of communication sent by the Uttar Pradesh Human Rights Commission, Lucknow dated 25.11.2011. The FIR dated 21.08.2012 references a communication sent by the Uttar Pradesh Human Rights Commission, Lucknow 25.11.2011 which contains the application sent by the first informant to the Chairman Human Rights Commission, Lucknow.

There is no Tehrir in the record. The F.I.R. extracts an application which was forwarded by the State Human Rights Commission to the police station. The G.D. entry dated 21.08.2012 was made in pursuance of the aforesaid F.I.R. which was proved by P.W.3-Head Muharrir-Chabbi Lal which is marked as Ex. Ka-3.

P.W.3 in his testimony stated that he transcribed the Chick F.I.R., and proved the same before the trial court which was marked as Ex. Ka-2.

The inquest report was not drawn up in the instant case by the police. No incriminating articles were recovered by the police during the investigation.

The site plan was drawn up by the I.O./S.S.I. Chandrika Prasad Sharma, P.W. 6 at the pointing out of the first informant.

The site plan depicts the place of incident which is the house of the appellant. P.W.2 has stated that when he reached the house of the deceased, he found the deceased lay dead. He took her to hospital where doctors had declared her dead.

The Majroobi letter which depicted the movement of the body from the place of death to the mortuary, the letters from the concerned Police Station to the R.I. as well as the C.M.O. regarding the fact of death for conduct of autopsy are not part of the prosecution evidence.

It is noteworthy that Challan Nash, Letter to R.I., Letter to C.M.O., Photo Nash which is the documentation which is appended to the sealed body while it is being sent for post-mortem were also never introduced by the prosecution as evidence.

The postmortem was conducted on 27.12.2010 by Dr. R.P. Singh. As per the postmortem report, the said proceedings commenced on 2:30 pm.

P.W.5-Dr. R.P. Singh and Dr. Basant Lal conducted the post-mortem of the deceased on 27.12.2010 at 02:30 PM at District Hosptial, Urai, Jalaun. The relevant findings of the post-mortem report pertaining to the injuries suffered by the deceased, cause of death and time of death are extracted hereinunder:-

The post mortem report records that ribs, pleura, lungs and trachea were in normal condition. P.W.5 in his deposition stated that aforesaid organs were in normal condition. The vessels, abdomen, peritoneum cavity, Buccal Cavity, oesophagus did not show any abnormality.

As per the post-mortem report the cause of death could not be ascertained. Viscera sample was preserved and sent to the F.S.L. for further investigations.

P.W.5 identified his handwriting and signatures on the photocopy of the post-mortem report. He proved the post-mortem report which was marked as Ex. Ka-4.

Dr. Basant Lal, who was Surgeon posted at the District Hospital, Orai and Dr. R.P. Singh, Senior Consultant (Eye) had conducted the post mortem. Dr. R.P Singh as seen earlier had deposed as P.W.-5. The P.W.-5 has proved the post-mortem report before the learned trial court. The P.W.-5 in his deposition stated that various internal organs including ribs, pleura, trachea and both lungs were found to be in a normal state. He also testified that since the cause of the death could not be ascertained, viscera samples were extracted and preserved. Viscera samples were handed over to the Police Constable for being sent for chemical analysis.

Original copy of the post mortem report was never produced before the trial court.

Km. Upasna the daughter of the appellant and the victim entered the witness box as P.W. 1. On the date of her testimony before the trial court P.W. 1 was 11 years of age while on the date of the incident she was of 6 years. Learned trial court before recording her testimony satisfied itself that the child witness was in a position to understand and respond to questions posed to her.

P.W. 1 in her testimony stated that her mother was Gyanvati who has since died. Gyanvati was done to death by her father by administering poison.

She identified her father in the Court. P.W.-1 deposed that she was staying with her parents & brother when poison was given to the deceased on 26.12.2010. On the fateful day at about 9 to 10 AM there was an altercation between her parents and her father left the house. Her mother often accused her father of meeting other women, which was the cause for discord between couple.

According to P.W.1, after her father returned home at 06:00 PM, he put something in a half glass of water and administered the liquid to her mother. Her mother did not speak after 07:00 PM.

Raj Kumar, brother of the deceased testified before the Court as P.W. 2.

P.W. 2 deposed before the trial court that his brother-in-law assaulted his sister from time to time. The couple was estranged as his brother-in-law was intimate with other women. On the day of the incident, his brother-in-law called him on phone and told him that he was unwell and thereafter disconnected the call. When he reached the sister’s marital home, he found his sister lay dead. He made inquiries from his niece who told him that her father had mixed something in the tea and given it to her mother. Thereafter, he brought a vehicle and left his house for the District Hospital with his dead sister. The doctors declared his sister dead on arrival. His brother-in-law reached the hospital after him.

P.W. 2 also stated that he and Rakesh (appellant) took the deceased to Urai and not to CHC, Jalaun. He stated that the doctors at Urai Hospital declared his sister dead.

P.W.-4 Hari Shankar Arya, who is the brother of the deceased deposed before the trial court as P.W.-4. P.W.-4 testified that his sister and brother-in-law were often at loggerheads as the latter had illicit relations with various women. Efforts were constantly made by the family members to effect a reconciliation, but the accused continued to assault and torture the deceased. He stated that his deceased sister did not make any complaint to the higher authorities regarding any ill treatment being meted out to her by her husband. P.W.-4 claims that he reached government hospital at Orai in the morning. He was later informed by his niece Upasana that her father had administered medicine, water and sugar to the her deceased mother. Rakesh had administered poison to the deceased at about 8 P.M. on 26.12.2010 and murdered her. P.W. 4 testified that he had submitted a complaint to the P.S.-Kotwali after the funeral rites of his deceased sister. However, no report was got registered by the Police Station.

Shri N.I Jafri learned Senior Counsel and Amicus Curiae assisted by Shri Noor Muhammad made the following submissions:

Shri Paritosh Kumar Malviya, learned AGA-I and Shri Chandan Agarwal,learned AGA-I submits as under:

The prosecution evidence shall be appraised in the following sequence:

The incident occurred on 26.12.2010 at about 8 P.M. The F.I.R. was registered on 21.08.2012 on receipt of a communication sent by the U.P. State Human Rights Commission dated 25.01.2011. The first informant-Shree Prashad Arya, who was the father of the deceased died during the pendency of the criminal proceeding and was not examined as a prosecution witness. The P.W.-2/Raj Kumar brother of deceased in his deposition before the trial court had stated that he had sent a complaint to the P.S.-Kotwali and also the S.P.. But no action was taken on the same. It is noteworthy that the said application which was submitted to the P.S.-Kotwali or sent to the S.P. Jalaun was not produced by the prosecution before the trial court.

The P.W.-2 and P.W.-4 could not explain the long time gap between the incident and the letter written to the U.P. State Human Rights Commission on 17.01.2011 and the efforts made thereafter to get the F.I.R. registered.

From the deposition of P.W.-2 and P.W.-4 it appears that said witnesses were fully aware of their rights. P.W.2 and P.W.4 did not disclose the steps taken by them to promptly lodge the FIR. Further P.W. 2 and P.W. 4 could not prove any serious efforts to approach the police authorities at any time to register the FIR at any time proximate to the FIR or even thereafter. P.W. 2 and P.W. 4 in their testimonies have shown no cause regarding the failure to approach the competent Magistrate under the relevant provisions of Cr.P.C. for lodgment of F.I.R. incase the police had failed to do so. Efforts to approach the police authorities to lodge the FIR were not disclosed and proved by P.W. 2 and P.W. 4. The delay in lodgment of the F.I.R. has not been satisfactorily explained by the prosecution. The unexplained delay strenghthens the defence argument that the FIR was registered as an afterthought and upon due deliberation. The inordinate delay in lodgment of the F.I.R. is fatal to the prosecution case.

As per prosecution case set out in the F.I.R. the incident occurred in the residential quarters of the deceased and her husband situated in New Khande Rao P.S.- Jalaun. The recitals contained in the F.I.R. disclose that poison was administered by the applicant to the deceased at the aforesaid residence at Jalaun. Thereafter, P.W.-2 reached the residence of the deceased on being called by the accused Rakesh. According to P.W.-2 he and the accused Rakesh took the deceased to the District Hospital at Orai, where she was declared dead. However, no hospital records showing the arrival of the deceased with her P.W.-2 and accused Rakesh and medical examination have been produced by the prosecution.

The certificate of the medical practitioner pronouncing her dead on arrival at the hospital are not part of the prosecution evidence. Hence, the exact place of death could not be proved by the prosecution.

Under cross examination P.W. 1 stated that her father did not take her mother to the hospital. According to P.W.-1 her mother was taken to hospital by uncle Raj Kumar Arya. Her uncle arrived at home at 07:00 PM and took her mother to Orai Hospital. Her mother had not consumed anything throughout the day. The incident occurred on a Sunday.

P.W. 1 also testified that her father conducted the last rites of her mother and also completed Terahvi rituals after her mother’s death. According to P.W. 1, she had been staying with her maternal uncle and aunt and had not met her father or paternal grand parents after the death of her mother.

Under cross-examination, she did not remember the date, month and year in which she was admitted to Class-II. Further under cross-examination she could not state the direction in which the house door was facing. P.W. 1 stated that she was staying in a house which was facing east. However, later on, under cross-examination, P.W. 1 also stated that she did not have a sense of direction and made contradictory statements regarding the direction of house. She denied suggestions that she could not recall the date and month of her admissions since she had not been tutored about the same. She stated that she came to the court with her maternal uncle.

P.W. 1 is a child witness. It is established beyond any doubt that after the death of her mother P.W. 1 was staying with her maternal uncle, and never stayed with her father. P.W. 1 also stated that she came to the Court with her maternal uncle. P.W. 1 admitted that she was staying away from her father and paternal grand parents and had never met them after the death of her mother. P.W. 1 was not in contact with her father for a very long time. She was being raised by her maternal aunt and uncle. P.W. 1 was clearly under the influence of her maternal aunt and uncle. Evidence in record also shows that the maternal uncles of P.W.1 were inimically disposed towards the appellant. Tutoring of P.W. 1 against her father by her mother’s family was clearly in evidence in the testimony of P.W.1.

Confrontation of P.W.1 with her statement before the P.W. 6/I.O. during the investigation and also of P.W. 6/IO in that respect:

During the course of trial P.W. 1 was confronted with her statement made before the Investigating Officer under Section 161 Cr.P.C. In particular P.W. 1 was confronted with the fact that she did not disclose the fact of her father administering poison to the deceased in her statement given to the I.O. under Section 161 Cr.P.C. in the first instance. P.W. 1 in response to the same stated that she could not recall her statement to the Investigating Officer and in particular could not remember stating before the Investigating Officer that her father had given poison to her mother which caused her death. Upon the aforesaid confrontation, P.W.1 denied her statement before the Investigating Officer under S 161 CrPC wherein she had failed to mention the fact of her father giving poison to her mother.

Thereafter, P.W. 6/Investigating Officer was confronted with the statement of P.W. 1 made before him under Section 161 Cr.P.C. and her testimony before the trial court in regard to the same. While responding to the aforesaid confrontation P.W.6 reiterated the statement given by P.W. 1 to him under Section 161 Cr.P.C. during the course of investigation. More specifically, P.W. 6 stated that while giving her statement under Section 161 Cr.P.C., P.W. 1 had not stated that her father had mixed something in half a glass of water and gave it to her mother to drink.

In this manner the inconsistency in the statement given by P.W.1 before the Investigating Officer and her testimony before the trial court in regard to her father administering poison to her dead mother was duly established. The story of the appellant/father of P.W. 1 giving poison to her mother and causing the latter’s death was belatedly introduced by P.W. 1 in her testimony during the trial for the first time. The aforesaid statement of P.W. 1 before the trial court implicating the appellant was an improvement on her stand taken before the Investigating Officer under the influence of her maternal uncles.

In this manner, the defence successfully confronted P.W.1 in respect of the inconsistencies in her testimony before the learned trial court and a statement before the investigating officer.

P.W. 1 also stated that her mother died on the way to the hospital. However, the statement of P.W. 1 is contradicted by P.W. 2 who has stated that the deceased lay dead when he came home and had taken her dead body to the hospital. Further, P.W.1 in her testimony before the court had stated that poison was mixed in water and medicine. However P.W. 2 testified that P.W. 1 had told him that her father had mixed poison in the tea.

P.W. 1 also stated that her father did not take her mother to the hospital. Her mother was taken to the hospital by her uncle Raj Kumar Arya. This fact is clearly contradicted in the testimony of her maternal uncle, P.W. 2, who has specifically asserted that he and the appellant had accompanied the deceased to the hospital. P.W. 1 thus contradicted various material aspects of the case by P.W.2.

P.W. 1 could not remember any important dates in her life. However, she remembered the date and time of the incident. P.W. 1 did not have a sense of direction. Furthermore, P.W. 1 also had lapses of memory which cast further doubt on her credibility as a witness.

As seen earlier the testimony of P.W. 1 to the effect that her father had administered poison to her mother was made for the first time before the trial court. The aforesaid incriminating aspects were introduced by P.W. 1 as an afterthought and clearly at the behest of her uncles namely P.W. 2 and P.W. 4. P.W. 1 was a tutored witness who had falsely implicated the appellant.

Lastly, P.W. 1 was most credibly confronted with her statements made before the I.O.

The statement of P.W. 1 which is beset with contradictions, lacks maturity and is clearly under the influence of her maternal family which renders her testimony as fully unreliable. The credit of the P.W.1 has been successfully impeached and the said child witness cannot be relied upon to implicate the appellant in this case.

In this wake P.W. 1 who claims to be the sole eye witness of the incident is a wholly unreliable witness regarding the fact of the appellant administering poison to the deceased. It is unsafe to rely on her testimony for finding the guilt of the appellant.

Under cross-examination P.W. 2 departed from his original testimony made in the examination in chief. Contrary to his deposition in examination in chief P.W. 2 had stated that the accused who is the brother-in-law of P.W. 2 had not called him in the first instance. In fact P.W. 2 had called the accused persons who then informed him that his sister was unwell. Furthermore contrary to his earlier testimony, under cross-examination P.W. 2 stated that when he reached is sister’s house he found that she lay dead and her husband was sitting by her side. Under further cross examination P.W. 2 testified that he and Rakesh took the deceased to Urai and not CHC Jalaun.

P.W. 2 also stated that Rakesh was present at the mortuary on 27.10.2010. Both the families had gathered there. According to P.W. 2, Rakesh had conducted the last rites of the deceased. P.W. 2 also stated that he was not aware that any doctor resided in the neighbourhood of the deceased.

According to P.W. 2 he was not drawing any salary, but admitted to a dispute in his family.

P.W. 4 was the brother of the deceased. He is not an eye witness to the incident and is in fact a witness of hearsay insofar the administering of poison to the deceased was concerned.

In summation P.W. 2 and P.W. 4 are not eye witnesses of the incident. Their testimonies as regards the administering of poison is based on hearsay evidence of P.W.1 and is not admissible. Moreover P.W.1 has been discredited as an eye-witness of the murder.

P.W. 2 and P.W. 4 had made generalized allegations against the appellant by stating that the marital relations between the appellant and his deceased wife were estranged as the appellant was having extra marital affairs. However, beyond vague and generalized allegations nothing has been brought in the record to show that the accused was in an illicit relationship or there was disharmony in the matrimonial life of the couple. P.W. 2 has stated that the appellant worked with many female co-workers. However, presence of female co-workers in a work space does not raise any presumption of extra marital affairs. P.W. 2 and P.W.4 failed to prove extra marital relationships of the appellant and matrimonial discord between the appellant and the deceased.

According to the prosecution case, the discord between the appellant and his wife on account of extra marital affairs of the former formed the motive for the offence.

In this wake the testimonies of the aforesaid witness P.W.2 and P.W. 4 cannot be used to incriminate the appellant in the offences.

The defence introduced two witnesses, namely, D.W. 1-Poonam Devi and D.W. 2-Doctor Ram Narayan.

D.W.1-Phoolan Devi is the land lady of the deceased and the accused Rakesh. D.W. 1 in her testimony has testified that she knew the couple as the accused-Rakesh was her tenant. The couple had a harmonious matrimonial relationship. She had come to know that the deceased had vomited and assumed that she was an expectant mother.

D.W.2-Dr. Ram Narayan, testified that he is a private medical practitioner who stayed in the neighbourhood of the appellant-Rakesh and the deceased. On 26.12.2010, the appellant Rakesh came to him in the evening with his wife who was in a critical condition. The wife of Rakesh was not in a position to speak.

On seeing her condition, the D.W.-2 recommended to the appellant Rakesh that he should take his wife to a higher medical facility. The aforesaid witness held his ground under cross-examination and his credibility could not be impeached.

The defence evidence clearly establishes that the appellant had rushed his wife to the nearest medical facility and gave her prompt medical care that was available when she showed signs of unease.

The FSL report dated 16.07.2012 was submitted before the learned trial court and was proved by the Investigating Officer (P.W.6) and marked as Exh. Ka-6.

The FSL report the viscera sample references communication sent by the P.S. Kotwali and also GD entry No.4/2.45 dated 27.12.2010 under Section Nill/2010 P.S. Kotwali, District-Jalaun.

The F.S.L. report dated 20.01.2011 opined that Aluminium Phosphide poison was found in Viscera samples No. 1 to 6. The opinion of the F.S.L. report is extracted hereinunder:-

As per the recitals in the FSL, viscera samples from the stomach, intestine, liver, kidney, spleen, brain were preserved in two sealed plastic jars containing liquid.

The FSL report/Exh.Ka-6 only contains a cryptic conclusion that the Aluminium Phosphide was detected in the viscera sample after running chemical tests. However no details or protocols of the aforesaid chemical tests that were conducted are disclosed in the FSL report or otherwise produced by prosecution during the course of evidence. The FSL report merely records an ipse dixit that the sample contained aluminum phosphide but does not support the said conclusion with any reasons.

The opinion of an expert which is bereft of reasons or does not disclose the basic scientific criteria which has guided the said expert to reach the conclusion is of no avail to the prosecution. The purpose of an expert report to be supported by reasons is not far to seek. The reasons stated by the expert in the report will enable the Court to independently test the correctness of such opinion. For that purpose the Court may also rely on established authorities and protocols in the concerned field and examine the expert report in the perspective offered in such literature. In absence of reasons the Court will not be able to independently come to the conclusion regarding the correctness or otherwise of the expert’s opinion.

The observations made above are supported by long standing authorities in point. The Supreme Court in Madan Gopal Kakkar Vs. Naval Dubey: 1992 (3) SCC 204 while examining the scope and admissibility of a medical expert report held as under:

The issue pertaining to expert opinion also arose for consideration before the Supreme Court in Ramesh Chandra Agrawal Vs. Regency Hospital Ltd and Others ((2009) 9 SCC 709). The well established principles of admissibility of expert evidence were reiterated by the Supreme Court in Ramesh Chandra Agrawal(Supra) by holding thus:

At this stage certain authorities of repute regarding characteristics and effect of Aluminium Phosphide can be quoted fruitfully. Dr. K.S. Narayan Reddy in his authoritative work ‘Medical Jurisprudence and Toxicology’ has recorded the following conclusions in respect of Aluminium Phosphide:-

The aforementioned authority has been held to be scientific work of stellar value by this Court in Gyanmati @ Sangathiya v. State of U.P ^{11.Criminal Appeal No. 4257 of 2018}

The death caused by use of Aluminium Phosphide also came up for consideration before the Supreme Court in Jai Pal Vs. State of Haryana, AIR 2002 SC 3447. After discussing various authorities regarding the characteristics of Aluminium Phosphide and its impact on human body, the Supreme Court in Jai Pal (supra) held as under:-

The Supreme Court in Darshan Singh Vs. State of Punjab, AIR 2024 SC 627, after following Jai Pal (supra) held as under :-

The impact of consumption of Aluminum Phosphide on internal organs is notably absent in the post mortem report. The consumption of Aluminium Phosphide by the deceased could not be established by the prosecution by applicable standards of evidence.

Apart from the fact that consumption of Aluminium Phosphide has not been established by the medical evidence, there is another aspect to the matter. As held by the Supreme Court in Jai Pal (supra), Aluminium Phosphide gives out a pungent odour on coming in contact with moisture so much so that persons in a room have to leave the place on account of the stink. Except in suicidal cases such a poison obviously cannot be administered without resistance. No resistance to intake of Aluminium Phosphide is recorded in the testimony of P.W.1 not is evident from the post mortem. The fact that the deceased did not offer any resistance also excludes the possibility that Aluminium Phosphide was administered to her by the accused-appellant.

P.W.5 who had conducted the post-mortem report was not confronted with the findings of the FSL report which detected Aluminium Phosphide in the viscera samples. The prosecution failed to establish as to whether the body of the deceased of the suicide was having the symptoms of intake of Aluminium Phosphide. In the facts and evidences of this case, in absence of such corroboration the FSL report cannot be taken as a sole and reliable piece of evidence on a standalone basis to conclude that the death occurred on account of consumption of Aluminium Phosphide.

There are other aspects which militate against prosecution case that the deceased died after consuming Aluminium Phosphide. The post-mortem report found that all the internal organs were normal. The aforesaid confrontation is critical to determine whether the poison had any effect on the body and ascertain the cause of death with certainty.

There is no evidence regarding receipt of viscera samples and preservation at a safe place in proper laboratory conditions till the time the said samples were sent and received by the FSL. The docket and the GD entries regarding forwarding of the viscera samples to the FSL and mode of such transfer and the security precautions to prevent tampering and ensuring the proper preservation of samples were not part of the prosecution evidence. The aforesaid lapses tend to create doubts about the prosecution case.

The F.S.L. report does not disclose the state of sample and its fitness for laboratory testing at the time of receipt on 21.01.2011. Further time of receipt is not mentioned in FSL report. Details of laboratory conditions in which the sample was preserved after receiving same till the time of testing are absent in the FSL report. In this wake, it is not possible to determine whether the viscera sample was fit for analysis. The finding on the same is critical since there is a considerable time gap between the extraction of viscera sample and the F.S.L. analysis of the same.

The manner of receipt of samples, the search in the malkhana and transportation of the sample to the laboratory as brought out in the prosecution evidence does not inspire confidence in the safekeeping of the samples. Furthermore, the receipt at the FSL laboratory and its safekeeping in the appropriate laboratory conditions before testing have too not been established. The whole process tends to raise doubt about the possibility of tampering and deterioration of the sample making it unfit for laboratory testing.

The tehrir which was a most reliable piece of evidence regarding lodgement of FIR was never produced before the trial court. Similarly the documents pertaining to the admission of the deceased in hospital and record of treatment of the deceased at the hospital were held back by the prosecution and not adduced before the trial court. The aforesaid documents are credible pieces of evidence to support the veracity of the prosecution case. There is no good reason for the failure of the prosecution to produce such evidence before the trial court. The prosecution has clearly suppressed most material evidences which would have enabled the court to arrive at the truth of the matter.

The inquest report which depicted the conduct of inquest proceeding immediately after the receipt of the information of the death of the deceased by the concerned Police Station has not been brought in the record by the prosecution during the trial proceeding. The inquest report was a critical piece of evidence regarding the state of the body of the deceased after her death.

The sole motive for committing the offence according to the prosecution was that the accused Rakesh was having illicit relations with other women. The prosecution miserably failed to prove the aforesaid allegation of illicit relations of accused Rakesh with other women and P.W.2 and P.W.4 have been discredited in that regard. The defence witness D.W.-1 has also established that the couple had an amicable relationship and were happily married. The prosecution has failed to establish the motive for the offence.

It has been established beyond reasonable doubt that the appellant in the evening of 26.10.2010 returned home and found his wife in physical discomfort. He immediately took his wife to the nearest doctor and tried to administer medical aid. The testimony of D.W. 2 who is a doctor credibly establishes that the appellant had brought his wife to the nearest doctor and tried his best to provide medical help to the deceased in a prompt manner when her condition deteriorated. The accused-appellant promptly called his father-in-law and brother-in-law and informed them of the failing health condition of the deceased Gyanvati. The accused also accompanied P.W.-2 with Gyanvati to the hospital. The accused appellant conducted all the funeral rites after her death, and was present at other religious ceremonies for the peace of the soul called ‘Terahvi’. He was proactive and supportive at all relevant points in time. His conduct is not implicatory in any manner. The conduct of the appellant has been above board at all times and his actions speak of his bonafides.

In the proceedings under Section 313 Cr.P.C. the appellant when confronted with the issue of his illicit relations with other women, clearly stated that he worked at Beej Vidhayan Sanyantra where there were a number of women workers. His in-laws harboured misconceptions on account of his working with other co-workers. He also disclosed various property disputes as being the cause for differences between him and his in-laws and that he did not have any legal heirs and his in-laws wanted to usurp his properties. The defence of the appellant finds credence in the statement of P.W. 2 who has admitted that the appellant did not have any legal heirs and there were family disputes between the parties.

It is noteworthy that in the proceedings under Section 313 Cr.P.C. the appellant was not alerted to incriminating findings made in the FSL report. The FSL was simply referenced in the statement of P.W. 6. However, reliance was placed on the FSL report in the impugned judgment to incriminate the appellant.

The failure of the prosecution to faithfully comply with the procedure of Section 313 Cr.P.C. led to violation of principles of natural justice which disabled the accused from effectively tendering their defence. The proceedings under Section 313 Cr.P.C. are vitiated. The scope of Section 313 Cr.P.C. and adverse impact of non-compliance thereof have been stated in authorities of long standing. The Supreme Court in Nar Singh Vs. State of Haryana^{22.(2015) 1 SCC 496} examined significance and propounded the scope of Section 313 Cr.P.C. by holding:-

A similar view was taken in Sujit Biswas Vs. State of Assam^{33.(2013) 12 SCC 406}:-

The Supreme Court in State of U.P. Vs. Mohd Iqram & Anr.^{44.(2011) 8 SCC 80} has held as under:-

The mechanical conduct of proceedings under Section 313 Cr.P.C. in the instant case is in the teeth of the law laid down in preceding case laws. In the facts and circumstances of this case the non compliance of Section 313 Cr.P.C. in the spirit of the precedents discussed earlier vitiates the impugned judgement. Considering the long period which has elapsed since the commission of the offence and in view of other infirmities in the prosecution, it will not be in the interest of justice to remand the matter for fresh initiation of proceedings under Section 313 Cr.P.C. Further as per custody report the appellant was in jail from 14/09/2020 till 25/06/2026.

The inordinate delay in lodgement of the FIR and failure of the prosecution to plausibly explain the same supports the defence version that the FIR was an afterthought and lodged after much deliberation. In these facts, the delay discredits the prosecution case. P.W. 1 was the eye witness and the star witness of the prosecution case. P.W. 1 was successfully impeached by the defence. P.W. 1 introduced the theory of the appellant poisoning her mother for the first time in the deposition before the trial court. P.W. 1 was not in contact with her father after her mother’s death. P.W. 1 lived all this while with her maternal uncles under their care and protection. She was under the influence of her uncles namely P.W. 2 and P.W. 4. P.W. 2 and P.W. 4 were inimically disclosed to the appellant. P.W. 1 was a child witness whose reliability was successfully questioned by the defence during the trial. P.W. 1 was tutored by her maternal uncles to make the deposition implicating the appellant. P.W. 1 was also contradicted by P.W. 2 and P.W. 4 on various material aspects of the case.P.W. 1 is an unreliable witness and her testimony insofar as it implicates the appellant is completely discarded.

P.W. 2 and P.W. 4 were not eye witnesses. The delay in lodgement of the FIR could not be explained by them. P.W. 2 and P.W. 4 could not establish the motive to commit the offence and merely made generalized allegations against the appellant that he had illicit relations. P.W. 1 and P.W. 2 are held to be unreliable witnesses whose testimony cannot become the basis for convicting the appellant.

The cause for animosity between P.W. 2, P.W. 4 and the appellant was established during the course of trial.

The FSL report is inadmissible in evidence as it merely records a bald conclusion regarding presence of aluminium phosphide which is not supported by reasons or scientific protocols on which it is based. The prosecution could not establish the safekeeping of the sample which becomes relevant in view of the long delay between the collection of the sample and its final testing.

D.W. 1 has shown that the appellant and his wife had a harmonious relationship. D.W. 2 who is the doctor has established that the appellant had rushed his wife for medical attention after she had complained of physical discomfort. The prosecution completely failed to establish the charges against the appellant by applicable standards of evidence i.e. proof beyond reasonable doubt.

Learned trial court erred in law by relying on the testimony of the child witness who was a tutored witness whose credibility was impeached by the defence. Similarly learned trial court led into error by believing the testimonies of P.W.2 and P.W.4 who had been discredited by the defence.

The learned trial court neglected to consider the inordinate and unexplained delay in the lodgment of the FIR, which vitiates the judgment. Learned trial court, in the teeth of settled law, relied on the FSL report, which has been discarded for the reasons given in the preceding part of the judgment. The learned trial court also erred in law by failing to appreciate the defence evidence of high credit which was exculpatory in nature. The judgment of the learned trial court is also liable to be set aside for non-compliance of provisions of Section 313 CrPC.

The judgment rendered by the learned trial court dated 14.09.2020 in Sessions Trial No. 141 of 2013 (State of U.P Vs. Rakesh Kumar) is liable to be set aside and is set aside.

In the wake of the preceding discussion this Court finds that the prosecution has failed to prove the charges under Sections 302 IPC against the appellant beyond reasonable doubt. The accused appellant is acquitted of the charges which were laid against him by the trial court and which are the subject matter of this appeal.

The Criminal Appeal is allowed.

The appellant-Rakesh Kumar is on bail, his bail bonds and surety bonds are cancelled and sureties shall stand discharged.

The Court would also like to express its appreciation to Shri N.I.Jafri, learned Senior Counsel for assisting the Court as Amicus Curiae.

A copy of this judgment translated in Hindi to be served upon the appellant by the Secretary, District Legal Services Authority.