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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 576/2019 CRL.M.A. 37206/2019

STATE (GNCT OF DELHI) ….. Appellant
Through: Ms. Aashaa Tiwari, APP for the State
with SI Ramavtar, PS Prasad Nagar.
versus

BHASKAR ORS. ….. Respondents
Through: Mr. Ajay Vikram Singh, Advocate
with Ms. Priyanka Singh and
Mr.Chandra Shekhar, Advocates.

% Date of Decision: 13th January, 2020

CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

JUDGMENT

MANMOHAN, J (Oral):-

1. Present appeal has been filed by the State challenging the judgment
dated 13th August, 2018 passed by learned Additional Sessions Judge-04
(Central) Tis Hazari Courts, Delhi in Sessions Case No.28303/2016 arising
from FIR No.126/2008 registered with police station Prasad Nagar under
Sections 498A/304B/201/34 of the Indian Penal Code (hereinafter referred
to as “IPC”) whereunder all the respondents i.e. respondent No.1(husband of
the deceased) and respondents No.2 and 3 (brothers-in-law of the deceased)
had been acquitted on the ground that none of the Sections under which
charges had been framed against them for death of Ms. Bhawna @ Pinky,

CRL. A. No.576/2019 Page 1 of 11
had been established by the prosecution beyond reasonable doubt.

2. Ms. Aashaa Tiwari, learned APP for the State states that the learned
Additional Sessions Judge failed to take into consideration the subsequent
opinion/report dated 12th August, 2016 submitted by Dr. Amandeep Kaur,
Assistant Professor, Department of Forensic Medicine, Maulana Azad
Medical College and Lok Nayak Hospital, New Delhi, wherein she had
stated as under:-

“Ques.3. During the FSL examination of other two samples i.e. blood
and viscera, FSL, Rohini opined that Aluminium Phosphide is found in
the body of the deceased. Kindly opine whether the above mentioned
poison is taken orally and otherwise. Also, you are requested to
please opine whether any insect bite can cause the above mentioned
poison, i.e. Aluminium Phosphide.

Ans.3. The commonest route of poisoning in case of Aluminium
Phosphide is through ingestion of the compound in the form of
tablets/powder/solution which is easily available. However,
poisoning can occur through inhalation of vapours or through
injection of the compound in solution form. Insect bite does not cause
Aluminium Phosphide poisoning.”

3. Learned APP points out that the deceased’s sister had deposed that
when she reached the deceased’s house on the date of the incident, she
found foul smell coming from her clothes and one bandage was tied on her
arm which the deceased’s sister-in-law ascribed to a mosquito bite. The
sister of the deceased had further stated that the deceased while being
removed to the hospital had taken out four fingers and gesticulated that she
had been given something in the forearm.

4. Ms. Aashaa Tiwari emphasises that subsequent opinion given by Dr.
Amandeep Kaur had established beyond doubt that insect bites do not cause
Aluminium Phosphide poisoning.

CRL. A. No.576/2019 Page 2 of 11

5. Learned APP submits that the Trial Court also erred while framing the
charges on 19th February, 2010 by neglecting to frame an alternate charge
against the respondents under Section 302 IPC. In support of her
submission, she relies upon the judgment of the Supreme Court in Rajbir
Alias Raju Anr. vs. State of Haryana, (2010) 15 SCC 116 wherein it has
been held as under:-

“7. We further direct all trial Courts in India to ordinarily add
Section 302 to the charge of Section 304-B, so that death
sentences can be imposed in such heinous and barbaric crimes
against women. Copy of this order be sent to the Registrars
General/Registrars of all High Courts, which will circulate it to
all trial courts.”

6. Per contra, Mr. Ajay Vikram Singh, learned counsel for the
respondents submits that it is not mandatory to frame an alternate charge of
Section 302 IPC in all matters where Section 304B IPC has been invoked.
He emphasises that only if there is evidence, whether direct or
circumstantial, to support the charge under Section 302 IPC, the Trial Court
can and indeed ought to frame a charge of murder under Section 302 IPC.
He states that in Jasvinder Saini Ors. Vs. State (Government of NCT of
Delhi), (2013) 7 SCC 256 it was held that the direction issued in Rajbir
Alias Raju’s case (supra) was not mandatory.

7. Learned counsel for the respondents states that the testimony of the
sister of the deceased-Ms. Bhawna @ Pinky is unreliable as she had
admitted in her cross-examination that she had deposed against the
respondents at the instance of her mother, brother, police and being sister of
the deceased.

CRL. A. No.576/2019 Page 3 of 11

8. Mr. Ajay Vikram Singh further submits that the opinion of Dr.
Amandeep Kaur is contrary to authoritative medical texts and being of
advisory character should be examined by this Court rather than remanding
the matter to the Trial Court after so many years. In support of his
submission, he relies upon the judgment of the High Court of Gujarat at
Ahmedabad in State of Gujarat vs. Maheshwari Mills Ors.,
MANU/GJ/0701/2012 wherein it has been held as under:-

“12. In the case of Ramesh Chandra Agrawal v. Regency Hospital Ltd. and
others (supra), the Supreme Court was dealing with an issue relating to
expert opinion. The court held as thus:

11) EXPERT OPINION:

The law of evidence is designed to ensure that the court considers only
that evidence which will enable it to reach a reliable conclusion. The
first and foremost requirement for an expert evidence to be admissible
is that it is necessary to hear the expert evidence. The test is that the
matter is outside the knowledge and experience of the lay person.
Thus, there is a need to hear an expert opinion where there is a
medical issue to be settled. The scientific question involved is assumed
to be not within the court’s knowledge. Thus cases where the science
involved, is highly specialized and perhaps even esoteric, the central
role of expert cannot be disputed. The other requirements for the
admissibility of expert evidence are:

i) that the expert must be within a recognized field of expertise

ii) that the evidence must be based on reliable principles, and

iii) that the expert must be qualified in that discipline.
[See Errors, Medicine and the Law, Alan Merry and Alexander
McCall Smith, 2001 ed., Cambridge University Press, p. 178]

12) Section 45 of the Indian Evidence Act speaks of expert evidence. It
reads as under:

45. Opinions of experts-When the Court has to form an opinion upon
a point of foreign law, or of science, or art, or as to identity of hand
writing or finger-impressions, the opinions upon that point of persons
specially skilled in such foreign law, science or art, or in questions as
to identity of handwriting or finger impressions, are relevant facts.
Such person called experts. Illustrations:

(a) The question is, whether the death of A was caused by poison. The

CRL. A. No.576/2019 Page 4 of 11
opinions of experts as to the symptoms produced by the poison by
which A is supposed to have died, are relevant.

(b) The question is whether A, at the time of doing a certain act, was
by reason of unsoundness of mind, in capable of knowing the nature of
the act, or that he was doing what was either wrong or contrary to
law. The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether
such unsoundness of mind usually renders persons incapable of
knowing the nature of the acts which they do, or knowing that what
they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have
been written by A.

The opinion of experts on the question whether the two documents
were written by the same person or by different persons are relevant.

13) The importance of the provision has been explained in the case of
State of H.P. v. Jai Lal and Ors., [MANU/SC/0557/1999 : (1999) 7
SCC 280]. It is held, that, Section 45 of the Evidence Act which makes
opinion of experts admissible lays down, that, when the court has to
form an opinion upon a point of foreign law, or of science, or art, or
as to identity of handwriting or finger impressions, the opinions upon
that point of persons specially skilled in such foreign law, science or
art, or in questions as to identity of handwriting, or finger impressions
are relevant facts. Therefore, in order to bring the evidence of a
witness as that of an expert it has to be shown that he has made a
special study of the subject or acquired a special experience therein
or in other words that he is skilled and has adequate knowledge of the
subject.

14) It is not the province of the expert to act as Judge or Jury. It is
stated in Titli v. Jones (MANU/UP/0107/1933 : AIR 1934 All 237) that
the real function of the expert is to put before the court all the
materials, together with reasons which induce him to come to the
conclusion, so that the court, although not an expert, may form its
own judgment by its own observation of those materials.

15) An expert is not a witness of fact and his evidence is really of an
advisory character. The duty of an expert witness is to furnish the
Judge with the necessary scientific criteria for testing the accuracy of
the conclusions so as to enable the Judge to form his independent

CRL. A. No.576/2019 Page 5 of 11
judgment by the application of these criteria to the facts proved by the
evidence of the case. The scientific opinion evidence, if intelligible,
convincing and tested becomes a factor and often an important factor
for consideration along with other evidence of the case. The
credibility of such a witness depends on the reasons stated in support
of his conclusions and the data and material furnished which form the
basis of his conclusions. (See Malay Kumar Ganguly vs. Dr. Sukumar
Mukherjee and Others) [Criminal Appeal Nos. 1191-1194 of 2005
alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009].

16) In the case of State of Maharashtra v. Damu s/o Gopinath Shinde
and others., [MANU/SC/0299/2000 : AIR 2000 SC 1691 at page
1700], it has been laid down that without examining the expert as a
witness in Court, no reliance can be placed on an opinion alone. In
this regard, it has been observed in The State (Delhi Administration)
v. Pali Ram, [MANU/SC/0189/1978 : AIR 1979 SC 14] that “no expert
would claim today that he could be absolutely sure that his opinion
was correct, expert depends to a great extent upon the materials put
before him and the nature of question put to him.”

17) In the Article “Relevancy of Expert’s Opinion” it has been opined
that the value of expert opinion rest on the facts on which it is based
and his competency for forming a reliable opinion. The evidentiary
value of the opinion of expert depends on the facts upon which it is
based and also the validity of the process by which the conclusion is
reached. Thus the idea that is proposed in its crux means that the
importance of an opinion is decided on the basis of the credibility of
the expert and the relevant facts supporting the opinion so that its
accuracy can be cross checked. Therefore, the emphasis has been on
the data on basis of which opinion is formed. The same is clear from
following inference: “Mere assertion without mentioning the data or
basis is not evidence, even if it comes from expert. Where the experts
give no real data in support of their opinion, the evidence even though
admissible, may be excluded from consideration as affording no
assistance in arriving at the correct value.

xxx xxx xxx

15. On the other hand, the defence had also produced an analysis report
submitted by ATIRA and has examined an expert witness. The report of
ATIRA reveals that the composition of the blended fabric is as per the
markings stamped on the face plaits of the cloth. It has been argued by the
learned Additional Public Prosecutor that the ATIRA is not a notified

CRL. A. No.576/2019 Page 6 of 11
Laboratory under the notification issued by the Textile Commissioner.

Though, no evidence has been brought on record to indicate that the ATIRA
has not been notified as a laboratory by the Textile Commissioner, there is no
evidence to the contrary also. However, even if much credence is not
attributed to the report of the ATIRA, it is for the prosecution to prove its
case beyond reasonable doubt by leading cogent and convincing reasons. In
the present case, except for the laboratory report given by the Central
Testing Laboratory, Coimbatore, which merely states the percentage
composition of the blended fabric, there is absolutely no material in support
of the conclusions arrived at by the expert, including the method of analysis
adopted by the expert. Under the circumstances, by mere dint of the fact that
Central Testing Laboratory is a laboratory notified by the Textile
Commissioner under the notification dated 7th March, 1988, the report
submitted by the said laboratory which merely states the percentage of
Polyester and Cotton in the sample cloth without anything more, cannot be
placed at so high a pedestal so as to base a conviction thereon. As held by
the Supreme Court in the decision cited above, an expert is not a witness of
fact and his evidence is really of an advisory character. The duty of an expert
witness is to furnish the Judge with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable the Judge to form his
independent judgment by the application of these criteria to the facts proved
by the evidence of the case. In the present case, apart from the fact that no
expert has been examined by the prosecution, the report submitted by the
Central Testing Laboratory does not contain the material together with the
reasons which induced the expert to come to the conclusion on the basis of
which the Court may form its own judgment by its own observation of those
materials. Under the circumstances, no reliance can be placed on such
report which does not even mention the nature of the tests which were
carried out for the purpose of testing the composition of the blended fabric.

As noticed earlier, the report of the Central Testing Laboratory forms the
fulcrum of the prosecution case, on the basis of which the prosecution seeks
an order of conviction against the accused. As held by the Supreme Court in
the case of Ramesh Chandra Agrawal (supra), where the experts give no real
data in support of their opinion, the evidence even though admissible, may be
excluded from consideration as affording no assistance in arriving at the
correct value. In the premises aforesaid, in the light of the fact that this court
has found that the report cannot be relied upon without any supporting
evidence to show as to how the expert has come to the conclusion regarding
the percentage of Polyester and Cotton contained in the sample cloth,
evidently the prosecution has failed to prove its case against the accused
beyond reasonable doubt.”

CRL. A. No.576/2019 Page 7 of 11

9. Learned counsel for the respondents further contends that if
Aluminium Phosphide is given by injection, it should have been found in
blood and not in the stomach of the deceased. He also states that there is no
evidence on record to show that the respondents had administered any
injection to the deceased.

10. In rejoinder, learned APP for the State points out that the Division
Bench of this Court in Sanjay Singh vs. State;Crl.A.No.156/2000 dated 28th
May, 2015, in similar circumstances, had remanded the matter to the Trial
Court for framing of an additional charge after many years. The relevant
portion of the said judgment is reproduced hereinbelow:-

“7. In view of the aforesaid position, the impugned judgment
convicting the appellant Sanjay Singh for the offence under Section
304-B IPC on account of unnatural death of his wife Suman when
the original charge was only under Section 302 IPC, cannot be
sustained and to this extent, the appeal of Sanjay Singh has to be
allowed.

xxx xxx xxx

11. Learned counsel for the appellant Sanjay Singh, however,
submitted that this is an old case and, therefore, order of remit
should not be passed. It was highlighted that appellant has already
suffered incarceration of about six years, five months and seven
days and has also earned remission of 11 month and 16 days as per
the nominal roll dated 23rd January, 2004. The learned Addl.
Public Prosecutor has, however, opposed the said submission
referring to the facts, which he claims are gross and extreme. Our
attention was specifically drawn to testimonies of several
prosecution witnesses.

xxx xxx xxx

13. We reiterate that we have not made any pronouncement or
expressed our findings on merits on the said allegations. It is
noticeable that in the present case the charge-sheet was filed in the
year 1997. The charge-sheet was under Sections 302, 304B and

CRL. A. No.576/2019 Page 8 of 11
498A IPC. However, the charge was framed only under Sections
498A and 302 IPC in terms of order dated 13th May, 1998, passed
by the Additional Sessions Judge. Thus, there was a lapse on the
part of the Additional Sessions Judge in not framing charge in
alternative under Section 304-B IPC, though the charge-sheet had
invoked the said section.

14. On the question, whether there should be fresh de novo trial or
whether proceedings should begin from the stage of recording of
statement of the appellant Sanjay under section 313 Cr.P.C. we are
inclined to follow the dictum and the directions given by the
Supreme Court in the case of Shamnsaheb M. Multtani (supra),
wherein, it has been directed that the trial would begin from the
stage of recording of statement under Section 313 Cr.P.C. One of
the reasons why we have held and given the said direction, is that
charge had also been framed under Section 498A IPC. No doubt,
Section 498A is wider and includes mental cruelty in addition to
demand for dowry, but when we read the evidence relied upon by
the prosecution and the cross-examination, it is apparent that
allegations with regard to demand of dowry was a subject matter of
evidence-in-chief as well as cross-examination. It would not be
appropriate to direct recording of fresh evidence in the said
situation. As noticed above, in the case of Shamnsaheb M. Multtani
(supra) also, the Supreme Court had not directed recording of
entire evidence afresh.

15. In view of the aforesaid discussion, the Criminal Appeal
No.156/2000, filed by appellant Sanjay has to be allowed but with
an order of remit/remand of fresh proceedings from the stage of
recording of statement of the appellant Sanjay under Section 313
Cr.P.C.”

11. Having heard learned counsel for the parties, this Court finds that in
the present case the deceased has died due to Aluminium Phosphide
poisoning. The said poison was found in the blood and stomach of the
deceased-Ms. Bhawna @ Pinky.

CRL. A. No.576/2019 Page 9 of 11

12. However, the Trial Court has acquitted the respondents of the charge
framed under Section 304B IPC primarily on the ground that Doctor Amit
Sharma (PW-12) had deposed that Aluminium Phosphide will not act if
given by injection.

13. From the Trial Court judgment, it is apparent that though Dr.
Amandeep Kaur, Assistant Professor, Department of Forensic Medicine,
Maulana Azad Medical College and Lok Nayak Hospital, New Delhi vide
her report dated 12th August, 2016 had opined that “death in this case was
due to Aluminium Phosphide poisoning” and that the said “poisoning can
occur….. through injection of the compound in solution form” and the said
opinion had been brought on record after furnishing a copy to the
respondents, yet the same was not taken into consideration by the Trial
Court.

14. While it is true that the opinions of Dr. Amit Sharma (PW-12) and Dr.
Amandeep Kaur are advisory and contradictory, yet the Trial Court should
have examined both the opinions and given reasons as to why it was
accepting one opinion and rejecting the other.

15. Further, this Court is of the view that in the present appeal, it cannot
examine as to whether the opinion of Dr. Amandep Kaur is contrary to
medical texts as firstly the said submission has not been examined by the
Trial Court. Moreover, as no alternate charge under Section 302 IPC had
been framed, this Court if it were to reject the submission of learned counsel
for respondents, would not be able to carry the matter to its legal conclusion.

16. Consequently, this Court in exercise of its power under Section
464(2) of the Code of Criminal Procedure (hereinafter referred to as
“Cr.P.C”). remands the case back to the Trial Court as there has been an

CRL. A. No.576/2019 Page 10 of 11
omission on the part of Trial Court to frame charge and such omission has
resulted in failure of justice.

17. Accordingly, the impugned judgment is set aside and the matter is
remanded back to the Trial Court for framing of an alternate charge under
Section 302 IPC against the accused persons. The accused persons will be
given an opportunity to cross-examine Dr. Amandeep Kaur and to lead
additional evidence in defence, if they so desire. The statement of the
accused under Section 313 Cr.P.C. shall also be recorded afresh.

18. We clarify that we have not touched upon the merits of the case. The
rights and contentions of all the parties are left open. Needless to say, the
Trial Court shall arrive at its own conclusion without being influenced by
any observations made by this Court. The parties are directed to appear
before the District Judge (Central) on 18th February, 2020 for assigning of
the present case to an appropriate Court. With these directions, the present
appeal and pending application stand disposed of.

MANMOHAN, J

SANGITA DHINGRA SEHGAL, J
JANUARY 13, 2020
KA

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