17 March 2021 2:58 PM GMT
"There is no conclusive cause of death. It's laughable in my view. even suicide is not established." submitted Senior Advocate Vikas Pahwa appearing on behalf of Congress MP Dr. Shashi Tharoor, an accused in the Sunanda Pushkar Case. Special Judge Geetanjali Goel heard Mr. Pahwa in the presence of Dr. Tharoor in the courtroom while the arguments took place. As the case was listed for the...
"There is no conclusive cause of death. It's laughable in my view. even suicide is not established." submitted Senior Advocate Vikas Pahwa appearing on behalf of Congress MP Dr. Shashi Tharoor, an accused in the Sunanda Pushkar Case.
Special Judge Geetanjali Goel heard Mr. Pahwa in the presence of Dr. Tharoor in the courtroom while the arguments took place.
As the case was listed for the stage of arguments on charges, main thrust of Mr. Pahwa's arguments today rested on the primary contention that no case under the relevant provisions of IPC is not made in the matter.
Pushkar had been found dead in January 2014 at a hotel in New Delhi. In 2015, and an FIR had been filed in this regard. In May 2018, Dr. Tharoor was charged with abetment to suicide and marital cruelty under Sections 306 and 498A of the Indian Penal Code.
"Very often we see chargesheets are filed which are flimsy, somehow trying to get rid of the matter. This is one such case. I will demonstrate from paper to paper, from day 1 that every document in this case comes to closure of the matter. I am innocent. The case has been made out of the figment of imagination of the IO." Pahwa submitted.
On Allegations Pressed Upon By Police
Mr. Pahwa began his submissions by arguing that the prosecution wanted to invoke sec.498A of IPC along with sec. 113A of Indian Evidence Act against Tharoor in order to prove the charge under sec. 306 of IPC, however, it was his case that they failed in proving that this was actually the case of suicide.
According to Mr. Pahwa, there were "positive evidences" to show that the present case was not the case of suicide.
"The law on presumption is very clear. Even before sec. 113A is invoked, they have to establish the foundational facts of the case. But they feel by invoking sec. 306, charges can be framed. They did not prove whether it is a case of suicide or homicide. There is no question of sec. 306 here. It comes when at least suicide is established. In this case, it has been established that it is not a suicide. My case is much better than this." Pahwa submitted at the outset.
Coming to the allegations on there being an extra marital affair of Tharoor, it was argued in the Court that there was in fact no affair or relationship with any lady.
On Questioning the Conduct of Doctors Conducting Medical Autopsy and Post Mortem
Another major submission advanced by Mr. Pahwa rested on the argument that the prosecution, over the period of 4 years i.e. 2014 to 2017, failed to ascertain the cause of death of the deceased. It was also submitted that the doctors who conducted the preliminary post mortem report while suspecting that the case was of poisoning due to Alprazolam, went beyond their jurisdiction by taking cognizance of circumstantial evidences falling outside the autopsy room.
"This case would not have been registered at all. It was registered because one doctor while conducting post mortem on 18th January 2014, in its report submitted on 20th January 2014, went into taking circumstantial evidences into account. I have not seen a report where medical doctors go outside their autopsy room. I don't know why the report was delayed by 3 days and cognizance was taken of material outside the autopsy room. One of the doctors, Dr. Puniya, in his 161 CrPC statement, admitted that they have never given cause of death in case of poisoning without taking into consideration the CFSL report." Pahwa argued.
While denying the position taken by the prosecution by alleging that the deceased was in a normal condition, it was also argued by Mr. Pahwa that the condition of deceased Sunanda Pushkar was already in a worse shape before arriving in New Delhi. It was submitted that there was evidence to show that Pushkar boarded the airplane on wheelchair, she travelled in the corridors on the wheelchair and even reached the hotel on a wheelchair.
"In January 2014, she was not a healthy person. A lady who cant talk, who was on a wheelchair, who had autoimmune disease, they says such a lady is fit." Pahwa submitted at the outset.
No Definite Opinion on Cause of Death Made Out From 2014 to 2017 As Per Various Reports by Medical Boards
Mr. Pahwa has cited the timeline of events dating back from 2014 to 2017 by relying on 3 AIIMS board reports and 4 chemical examination reports over these years which failed to suggest the actual cause of death. According to Mr. Pahwa, there was "no definite opinion on the cause of death" even after the examination and medical reports by different boards comprising of different doctors.
It was argued that in the year 2014, after 20th January till August, the AIIMS doctors were not called as they were collecting the viscera report. However it was submitted by Pahwa that Alprazolam was found nowhere.
"Ethyl Alcohol and caffeine was found in the stomach. What is found from the blood was only caffeine. No where any poison was found. The Doctors should have waited for this report and then would have given an opinion." Pahwa argued.
Referring to another report titled "Biological Examination and DNA Profiling Report" which came out after a few days in 2014, Pahwa argued even that report did not suggest anything incriminating, unnatural, suspicious or other than the ordinary.
"Alprazolam is not found in any report, it was there in the medicine. It was not found anywhere in viscera report. Ethyl alcohol are not poisons, they are medicine salt prescribed by AIIMS. A parallel investigation was started by them which goes late to August 2014. Is it the job of doctors to go into investigation? They refused to give an opinion in April 2014." Pahwa submitted.
Arguing that there was no registration of FIR till September 2014, it was submitted by Pahwa that "The whole objective of their interpretation is that the whole case is about poisoning. The doctor should be at least bothered. Their job should end the time autopsy report is published. From where you can say it's poisoning, no poison was mentioned. Just because you mentioned it on the basis of circumstantial evidence doesn't mean it is the truth."
Suggesting that it was the Medical board which was interested in the case and was guiding the investigation, it was submitted that doctors failed to take into consideration viscera report which is the primary function of the doctors to do. Arguing that the board even went ahead to call upon the call records, photographs of medicines and statements of relatives of the deceased, it was submitted by Pahwa that it was not the job of the doctors to go into such questions.
It was further argued by Mr. Pahwa that other reports which came in December 2014 after which the police started investigating the poison angle in the matter, were contrary to the chemical reports and FSL reports suggestion there was no poison found. The said report also suggested the deceased was normally fit and a healthy individual.
"Can this report be accepted at the face value? This has to be rejected here. How can the board say she was healthy when the IO gave statements of doctors? Still they say it's a case of poisoning whereas the scientific evidence says its not. Thereafter the Medical Board then went to the site (where body was found). Imagine the plight of the case. IO sends doctor to the site. This was because IO thought 'I don't want to take a call'." Pahwa argued.
"Anything which goes into favour of accused should be ignored and what is tainted and untruth should be relied on. No final opinion was given by the board." Submitted Pahwa.
Arguing that from January 2014 to 2016, none of the reports showed the exact cause of death, Pahwa submitted that a new board comprising of 4 doctors was constituted in 2016. Thereafter the IO wrote a letter to the said Board seeking a definite opinion into the cause of death. Pahwa argued that even in the year 2016, the IO was still seeking the opinion into the cause of death. The said report, according to Pahwa, also did not reveal the definite opinion.
"The IO sat on the file for one year then wrote a letter after one year in 2017 to the Chairman of the Board. Till this date there is no conclusion. In the end, they ask, tell me again what is the definite conclusive opinion on cause of death. If I have to commit suicide, I will gulp it. I wont take a sip. Their argument is that 27 tablets resulted in death, this is absurd. The tablet is of 0.5 mg. what study says is that 9750 tablets, around 10 times into 2 will be the dose."
While concluding the arguments for the day, Pahwa submitted that:
"If you cannot establish suicide, then there can be no sec. 306 case. First you have to establish there has been a suicide. From 2014 to 2017, it has been 4 years. They have given opinion, its neither suicide nor homicide. Again a null in the investigation. Even when the report said there was no suicide, they registered a case under sec. 302. They don't say it's suicide. This is answer to your third category, accidental. This is accidental where there is no intention. Suicide cannot be without intent. I am not talking abetment at the moment. I am talking about suicide. For suicide there has to be intent. I am relying on medical documents relied by them. How does sec. 306 come into play?"
Posing a question to the Court, Pahwa went ahead to submit "Had she been alive, whether this could be a sec. 309 (attempt to suicide) case? Whether she could have been prosecuted under attempt to suicide? Certainly not. There is no conclusive cause of death. It's laughable in my view. Suicide is not established."