JUDGMENT

Manmohan, J. (Oral) - Present appeal has been filed by the State challenging the judgment dated 13 th 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, 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 12 th 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 deceaseds sister had deposed that when she reached the deceaseds 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 deceaseds 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.

5. Learned APP submits that the Trial Court also erred while framing the charges on 19 th 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 Rajus 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 depos