SANDEEP KUMAR AND OTHERS versus STATE OF UTTARAKHAND AND ANOTHER on 2 December 2020

848

SUPREME COURT REPORTS

[2020] 13 S.C.R.

SANDEEP KUMAR AND OTHERS

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v.

STATE OF UTTARAKHAND AND ANOTHER

(Criminal Appeal Nos. 1512-1513 of 2017)

BDECEMBER 02, 2020

[R. F. NARIMAN, K.M. JOSEPH ANDANIRUDDHA BOSE, JJ.]

Penal Code, 1860 – s.304B – Dowry Death – PoisoningCalleged – Appellants (husband, father-in-law and mother-in-law)acquitted by trial court – Acquittal set aside by High Court – Onappeal, held: PW1 (father of the victim) admitted that there was nodemand for dowry before or at the time of marriage – Version aboutthe demand for Rs.10 lakhs by first appellant (husband) is whollyunacceptable – Further, there is no evidence that the deceased diedDof poisoning – Police did not recover any poison from the appellantsor their house – FSL report categorically rules out the presence ofany poison – Prosecution not able to establish that the cause ofdeath was unnatural – Appellants in their questioning u/s.313 setup the case of Tuberculosis (TB) – PW5-Doctor opined that theEdeath could have taken place due to TB, leading to congestion ofinternal organs – s.113B not applicable in the present case –Impugned judgment set aside while that of Sessions Judge is restored– Evidence Act, 1872 – s.113B – Code of Criminal Procedure, 1973– ss.378, 386, 313.FPenal Code, 1860 – s.304B – Dowry Death – Ingredients –Held: A marriage performed within seven years before the death ofwife; death must be unnatural; soon before the death, the deceasedwife must have been at the receiving end of cruelty or harassment,on account of demand for dowry.

Evidence Act, 1872 – s.113B – Applicability of – Discussed.GAllowing the appeals, the Court HELD: 1. ANALYSIS

The charge is one under Section 304B. The ingredients ofthe offence are well-settled. A marriage performed within sevenH

years before the death of the wife. The death must be unnatural.Soon before the death, the deceased wife must have been at thereceiving end of cruelty or harassment, on account of demand fordowry. It is described as dowry death. The relatives concerned,including husband, become liable. Section 113B of the EvidenceAct comes to the rescue of the prosecutor by providing for apresumption that a person has caused dowry death if, it is shownthat soon before her death, she was subjected by such person forcruelty or harassment for or in connection with demand for dowry.PW1 admitted that there was no demand for dowry before or atthe time of marriage. The marriage took place on 10.12.2009.The death was on 23.01.2011. Though PW1, PW3, PW4 and PW6have spoken about harassment on account of dowry, the SessionsJudge did not find material reliable. The version about the demandfor Rs.10 lakhs is found wholly unacceptable. [Paras 36, 39][873-D-F; 874-E]

2.1 THE LAW ABOUT POISONING: APPLICATION TOFACTS

In Anant Chintaman Lagu v. State of Bombay, three testscame to be reiterated, as necessary to establish in a case ofpoisoning- 1) Death took place on account of poisoning, 2) Theaccused had the poison in his possession, 3) The accused had anopportunity to administer the poison. In this case, there is noevidence at all that the deceased died of poisoning. Secondly,there is no evidence to show that the appellants had poison intheir possession. Thus, even proceeding on the basis that beingthe wife and daughter-in-law who was living with them that theappellants may have had the opportunity to administer poison,the other two tests are not satisfied. The police did not recoverany poison from the appellants or their house. The FSL reportcategorically rules out the presence of any poison. There isabsolutely no evidence relating to poison in relation to thedeceased. Were it a case of forcible poisoning, by using acorrosive poison, there would been some marks. There are none.If it were forcible poisoning by using any kind of poison, therewould be struggle and resistance from the victim. In this regard,PW1 is to be believed on 23.01.2011 at 9:30, he received a phonecall from his daughter who, asked him to reach Haridwar, ABC

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Aotherwise these people will kill her. Also, in the charge-sheetthe prosecution proposed to prove its case based apart from theoral evidence the material recovered from the spot containingthe vomiting of the deceased, which was cleaned by the accused.However, as noticed by the Sessions Judge, the prosecution wasunable to prove the presence of poison in the cleaning materialBreferred to as the wiper. [Paras 47, 50 and 52][875-G-H; 877-D-E; 880-D-F]

2.2 This Court finds itself unable to subscribe to paragraph-42 in the impugned judgment that the chain is complete from thetime of the telephone call received by PW1 from his daughter tillCthe recovery of the body in the Santro car. This Court is unableto appreciate the circumstances as unfolded on the morning of23.1.2011 which allegedly started from the phone call of thedaughter of PW1 as thereafter the only other circumstance, isthe recovery of the body in the rear seat of the Santro car. TheDexistence of any circumstances, as would fulfil the requirement,as laid down by this court in paragraph-59 in Anant ChintamanLagu v. State of Bombay are not present. In paragraph-34 of theimpugned judgment, the High Court refers to the FIR to noticethat it is a case of poisoning. It further refers to the evidence ofPW5-Medical Doctor that he admitted that on opening the body,Ethe internal organs were congested, which could be due topoisoning. In this regard it may be noticed that PW5 has statedthat he was not definite about the cause of death. He has furtherstated that on account of food poisoning the organs may becongested. Even more importantly, the doctor has opined thatFthe death could have taken place due to Tuberculosis as in thecase of Tuberculosis, the internal organs can be congested. TheHigh Court has not referred to this part of the evidence, namely,that the congestion of internal organ could be due to Tuberculosis.Still further, there is a case for the appellants that food poisoning is to be distinguished from administering of poison and what theGdoctor has referred to is food poisoning. The High Court findsthat merely because poison is not found, it cannot be said thatdeceased was not administered poison. At this juncture, thoughif in a given case, there is clinching evidence which establishespoisoning, it may be true that absence of poison in the visceraH

may not be decisive. That is not the position in the facts of thiscase. There are no symptoms, which point to poisoning. Nothingin the post mortem appearance is brought out to show poisoning.The evidence of witnesses do not establish poisoning. [Paras 53-55][880-F-H; 881-A-E; 882-B]

Bhupinder Singh v. State of Punjab (1988) 3 SCC513:[1988] 3 SCR 409 – relied on.

Anant Chintaman Lagu v. State of Bombay AIR 1960SC 500: [1960] SCR 460 – held inapplicable.

Shanmughan vs. State of Kerala AIR 2012 SC1142:[ 2012] 1 SCR 411 – distinguished.

Modi’s Medical Jurisprudence and Toxicology –referred to.

2.3 There is no evidence in this case which could havepersuaded the High Court to conclude that there were compellingreasons to interfere with the acquittal by the High Court. Theappreciation of the evidence of the witnesses by the trial courtunless it is found to be a case of misreading of the evidence orare based on an erroneous understanding of the law, could nothave been interfered with. When the High Court records thatthere is ample evidence on record that the accused weredemanding dowry from the deceased, it is done without noticingthe features in regard to the demand for Rs.10 lakhs. As far asthe other evidence is concerned, the evidence has not beenaccepted by the trial court as inspiring confidence. At best it couldbe said that there were two views possible. Even if that were so,it did not furnish a ground to the High Court to overturn thejudgment of the trial court containing the findings which havebeen referred to by this Court. This is not a case where the findingof the trial case could be characterised as perverse. [Para 56][882-B-E]

2.4 There is a contention raised by the second respondentthat no reliance can be placed on the deposition of DW2 (aGynaecologist) and DW4 (a Medical Practitioner) that thedeceased told these doctors that she was suffering from A

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ATuberculosis as it was hearsay. No such contention is raisedbefore the trial court or before the High Court. Therefore, thisCourt need not really deal with it. The statement attributed tothe deceased that she had told the doctors (DW2 and DW4) abouther having suffered from TB is admissible for the fact of her havingstated so even if it is not admissible for the truth of the statement.BThat apart, the action of the Medical Practitioner in acting uponit, by way of prescribing medicines and ordering blood test andx-ray would appear to be relevant and admissible. The appellantsin their questioning under Section 313 CrPC, set up the case ofTB. The matter need not be probed further including the aspectCas to whether the matter may be relevant under Section 32 of theEvidence Act. Second respondent should not be permitted todraw support from the statement in the Affidavit of the secondappellant accompanying the Bail Application of his wife to theeffect that the deceased herself took poison. Quite clearly, thisis not evidence in the trial, as such. As already noticed, in thisDcase, apart from the fact that prosecution has not been able toestablish that the cause of death was unnatural, the case setupabout the demand of Rs. 10 lakhs by accused appears to be riddledwith irreconcilable contradictions. Neither the post-mortem northe Forensic Lab Report shows any poisoning. No poison hasEbeen recovered at all from the house of the appellants. Thereare no marks of injury at all on the deceased. Even the material(wiper) recovered, according to prosecution, and which allegedlywas used to clean vomit of the deceased, did not disclose anypoison. The statement of Medical Practitioner (DW2) that thedeceased was having weight of 39 kilograms and weight belowFnormal as on 11.05.2010 cannot be ignored. Equally, the evidenceof DW4 that the Doctor has prescribed medicine for Anaemiabecause the deceased had told about Tuberculosis earlier also,cannot be ignored. Evidence as to advice to the deceased in 2007to undergo blood test and the x-ray, to confirm whether TB hasGtotally cured or not and that the patient did not bring any x-ray orblood report, cannot be overlooked. Section 113B of EvidenceAct may not apply in this case for the reason that in order thatSection 113B applies, there must be evidence that soon before H

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the death of the person, which proves that the person, who isalleged to have caused death, treated the deceased with crueltyor harassed her or in connection with a demand of dowry. Thestate of the evidence in this regard has been noticed. There wasno justification at all for the High Court, in the facts of this case,to have overturned acquittal by the Trial Court. [Paras 57-59, 61and 62][882-E-F; 883-D-E; 884-F-H; 885-A-D]

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2.5 The High Court without any justification, reversed theacquittal. The High Court has sought to draw support from thecircumstance that the dead body of the deceased was recoveredfrom the car. The first appellant has a case that he has taken thedeceased to certain hospitals. There is also a case that theythemselves notified the Police. It is certainly not a circumstanceso as to draw an inference that the deceased died an unnaturaldeath or that the appellants administered poison to her. Theimpugned judgment of the High Court is set aside and thejudgment of the Sessions Judge is restored. [Para 63][885-E-F]

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Chhotan Sao and another v. State of Bihar (2014) 4SCC 54: [2013] 17 SCR 843 – relied on.

Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC450 : [2008] 11 SCR 499; Sharad Birdhichand Sardav. State of Maharashtra (1984) 4 SCC 116 : [1985]1 SCR 88; Jaipal v. State of Haryana (2003) 1 SCC169 : [2002] 2 Suppl. SCR 714 – referred to.

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Subramanian v. Public Prosecutor 1956 (1) WLR 965– referred to.

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Case Law Reference

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A[2002] 2 Suppl. SCR 714 referred toPara 51[2012] 1 SCR 411 distinguishedPara 52

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1512-1513 of 2017

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From the Judgment and Order dated 14.07.2017 as modified byorder dated 19.07.2017 and 24.07.2017 of the High Court of Uttarakhandat Nainital in Criminal Appeal No. 61 of 2017.

Siddharth Dave, Sr. Adv., Vivek Gupta, Mrinmay Bhattmewara,Sanjay Kumar Dubey, Shuchi Singh, Krishna Kant Dubey, Rajiv RanjanCDwivedi, Rakesh Kumar Tewari, Jatinder Kumar Bhatia, KrishnamMishara, Advs. for the appearing parties.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.D1. The appellants, who were charged with the offence punishableunder Section 304B of the Indian Penal Code (hereinafter referred to as“IPC”) stood acquitted of the said charge by learned sessions judge,Haridwar. However, in appeal carried by the complainant/respondentNo.2 herein, the verdict of acquittal was set aside and the appellantsafter conviction under section 304-B of IPC stand sentenced to undergoEimprisonment for life.

2. We heard Siddharth Dave, learned senior counsel for theappellants. Shri Krishnam Mishra, learned counsel for the first respondent-state and Shri Sanjay Kumar Dubey, learned counsel for the secondrespondent.F

3. On the basis of the complaint, by second respondent dated23.01.2011 at 5.00 pm, an FIR was lodged. This led to the appellantsfinally being charge sheeted for having committed the offence underSection 304B of the IPC. Th e facts stated in the FIR read inter alia asfollows:

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The daughter of the second respondent was married to the firstappellant on 10.12.2009. After few days of the marriage the appellantswho are the husband, father-in-law and mother-in-law of his deceaseddaughter started harassing her for dowry. About one month ago, hisdaughter and son-in-law came to his house and remained there for twoHdays. On both these days his son-in-law, namely, the first appellant demanded from him, his sons and sons’ wives a sum of Rupees ten lakhswithin 10 to 15 days for the construction of the house. The secondrespondent expressed his inability. Thereafter, seeing tears of his daughterwho said that her parents must pay the amount otherwise they will killher, she was sent away after being consoled. Thereafter, his daughter isalleged to have phoned him, his family and his relatives thereby informingthem that her husband, mother-in-law and father-in-law were torturingher for money and they are provoking her to commit suicide. On23.01.2011 at about 9.30 am, he received phone call from his deceaseddaughter to come at Haridwar otherwise they will kill her on that day. So,they went there. The dead body of the daughter was found in the cargiven by them in marriage. The death of the daughter was caused bypoison and the appellants were responsible.

4. In the charge-sheet, it is, inter alia, stated that on the basis ofinvestigation and evidence given by the witnesses and the recovery ofthe material from the spot, which contains the vomiting of the deceasedand was cleaned by the accused, thus, on the basis of the evidence,offence under Section 304B was proved.

5. Before the trial Court, the prosecution examined 11 witnesses.The appellant examined four witnesses DW 1 to DW 4. Some documentsincluding FSL Report, were produced.

THE PROSECUTION EVIDENCE

6. PW1 is none other than the father of the deceased. He deposed,inter alia, as follows:

The appellants and other relatives had come before the marriageand they did not make any demand of dowry from him. In themarriage they gave Alto Car but they demanded Santro Car. Hearranged for Santro car. He spent Rupees fifteen lakhs. At themarriage there was no dispute. After the marriage when they camefor meeting, at that time also, there was no demand for dowry.The deceased got opportunity for admission in B.Ed. beforemarriage. After marriage, these persons (the appellants) asked tocomplete B.Ed. and the expense has to be borne by him. Thus, onappellants wishes, he bore the expense. After one month thedaughter came and the appellants said that their marriage couldhave been arranged for 20-25 lakhs. Upon being confronted withthis, the appellants stated that the mistake has been committed ABCD

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Aand they will not say such words. Thereafter, the deceased usedto say in between that the appellants are demanding ten lakhs.Before 3 to 4 months he received phone call from deceased thatthe appellants are pressing her to take poison forcefully and askingfor ten lakhs. He made phone calls to the relative of the firstappellant and asked him to intervene. The middle man who arrangedBthe marriage, was contacted (Be it noted that the middle man isnot examined). He has further deposed that upon bringing thesefacts by them and the son (PW2) and asking as to why he shouldnot file complaint to the Police, the second appellant said that hewill manage the Police and again 1st appellant apologised. TheyCall live together in one house. Again, about one month ago, the firstappellant came to his house along with deceased and he starteddemanding ten lakhs for the construction of the house and saidthat they will return the money. First appellant remained in thehouse for two days. Deceased also told him to arrange the moneyotherwise the appellants will kill her. He pawned ornaments of hisDwife and paid Rs. one lakh to his daughter and son-in-law. Theywent back. On 23.01.2011, in the morning at 09.30 a.m., the fatefulday, he received a call from deceased asking him to come Haridwarotherwise the appellants will kill her. He called his youngestdaughter (PW4). She, on phoning, was told by sister of AppellantENo.1, that the condition of deceased was not good. She told theappellant’s sister to take the deceased to hospital. They reachedHaridwar where the deceased lived at about 3.00 pm. The deadbody of the deceased was lying in the Santro car. He first made acall at number 100 which was received by the Police Station,Roorkee. He also made phone call to the Police Station, RanipurFon the basis of the number given by the police but the police hadalready reached the spot before him. At the time of marriage, hehas taken a loan of Rupees two lakhs from his PF account. PW 1has four children and the deceased was the last one. In 2009, hewas receiving Rs.10,000/- after deduction. The first appellant isGSoftware Engineer. He denies that no demand was made. Hedoes not know whether the second appellant got Rs.35 lakhs whenhe retired in July as General Technician in BHEL. The registrationof the Santro car stood in his name. He denies that he used to useSantro car for business and used to give occasionally to his daughterand first appellant. He admits having got the car released from the H

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court. After the marriage he has gone 2-3 times to the house ofsecond appellant and stayed there. After the marriage of thedeceased, he and his family members used to talk to the deceaseddaughter. He is unable to say on which date, month and year thedeceased told him that the appellants are saying that they weregetting 20-25 lakhs in the marriage. Thereafter, he said that it wasone year after the marriage and in 2011 (It be noted that in chiefexamination, PW1 says that the deceased told him about it onemonth after marriage). The deceased had told him regarding thedemand for money 5-6 months of her reaching her in-laws andduring this period, she had told him more than 10 times. He hasnever met Mahavir Singh. He has not told that when the deceasedtold regarding taking of salfas (some kind of poison). In 5 to 6months, 10 phone calls came from the in-laws’ house. He is unableto say whether the appellant has done medical examination of hisdaughter on 1.12.2010 from DW1-Dr. K.K. Agarwal, Haridwarand on 18.12.2010 got her X-ray from Super Pathology, ShivalikNagar, Haridwar and her investigation got done on 11.5.2010 orthat she was got treated from Dr. Mamta Tyagi. He does notknow that the illness of his daughter was got treated from herparental house. The first appellant was B.Tech. He denies thatthe first appellant informed him on 23.9.2011 that the condition ofhis daughter is not good. The suggestion is put that the phone wasswitched off. PW 1 states he does not know whether first appellanttook his daughter to Satbadi Hospital when her condition becameserious. He further deposes to say he does not know whether thefirst appellant took her from Satbadi Hospital to District Hospitalwhere she was treated. He does not know whether on the adviceof District Hospital, the first appellant took his daughter to JollyGrant Hospital, BHEL. He admits that on the date of incident,when he reached his daughter’s house, they did not ask from theappellants as to how his daughter had died. The suggestion is putthat Police had come on the basis of information of the first appellantwhich was denied. He denies that the marriage was performedwithout any dowry and in a simple manner. He stated that the in-laws of his daughter were not present when he reached there.

7. PW 2 is the brother of the deceased. He stated that theappellants used to taunt his sister regularly. Mother-in-law and father-in-law never give full food to his sister. Four months before the incident the AB

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Afirst appellant along with his sister asked for ten lakhs. He says afterpawing the ornaments of his wife he paid one lakh. He refers to thephone call of 23.1.2011 from the deceased. He says from the perusal ofthe dead body it seemed his sister died due to poison. He is unable toexplain why the statement that his father has spent 15 lakhs during themarriage is not found in his statement under Section 161 CrPC though heBhas mentioned it. Another omission marked is about the statement imputedto the in-laws of his sister (appellant 2 and 3) that they used to ask fordowry and that the marriage of their son could have taken place in rupees20-25 lakhs. They have not made any complaint against the appellantsanywhere apart from the complaint made on the date of the death. HeChad not talked on phone to his sister on 23.1.2011 nor her in-laws talkedon that day. Even though he had a mobile phone with him, no talks withsister and in- laws took place. While sitting in the car during the 4-5hours of journey, they talked only with sister near Roorkee. She hadcalled. Her voice was very low. From Roorkee it took about 1½ to 2hours to reach Haridwar. His father made a phone at 100 number fromDthe car. Roorkee is about 100 kilometres from the house of PW2. Theywere not invited when the second appellant retired from BHEL for thefarewell function and therefore none reached from their family (Be itnoted that PW1 has categorically said that he was invited for the party).He had good talks with the deceased. He does not remember the month,Edate when the deceased told about the demand for Rs.10 lakhs but itwas made in 2010. He says that his sister has no such disease and thereforethey did not take any treatment before marriage. The suggestion is clearlyput to him that the appellant had taken the deceased to three hospitals on23.01.2011. When the phone from the deceased was received at Roorkeefrom there about 1½ to 2 hours was taken in reaching the house of theFaccused persons.

8. PW 3, a relative of PW 1 (brother-in-law) states that afterdemand for Rs. 10 lakhs and payment of Rs.1 lakhs by PW1 also, therewas demand and torture by the appellants. He has not seen any tortureof the deceased with his own eyes. Even after knowing about theGharassment and torture by the in-laws he has never gone to the house ofthe appellants either by himself or with PW1 or any other person.

9. PW4 is the sister of the deceased. She has said that the appellants2 and 3 used to torture her for money and they did not allow her to seetelevision and asked her to bring television from their parent’s house.H

She made a phone call at 10 am on 23.01.2011 which is answered by thesister of the first appellant and she told that the condition of the deceasedwas bad and upon being asked to take her to the hospital appellant’ssister said that till now they have not taken her to the hospital. She saysthat she is the youngest. She has her mother. She said that before onemonth from her death, the deceased has come to her house. The omissionin her 161 statement about deceased telling her parents about torture anddemand for money is brought out. She reiterates this was mentioned tothe Police. Another omission which is noted is regarding the allegedstatement made by her to the Police that a phone call from PW1 (herfather) that he has asked her to make a phone at the landline number ofthe in-laws house of the deceased. She has never seen from her owneyes anybody beating her sister. She further says she does not how thedeath of her sister occurred (Even though in chief examination she hasdeposed that her sister was killed for the demand of dowry). She saysher sister was very sensitive. She says that the appellants committedmurder of her sister and that they used to demand dowry. The omissionin her 161 statement about the appellant having murdered the deceasedis brought out. She denies that the appellants were present in the housewhen they reached on 23.01.2011.

10. PW 5 is the doctor who conducted post mortem. He deposedthat the body of the deceased was stiff. Post Mortem was conducted on24.01.2011 at 11.00 am. Therefore, the time of the incident was within24 hours. There was no mark of any injury on the dead body.All organswere found congested. The viscera was preserved. The death of thedeceased was possible on 23.01.2011 from 2.30 pm to 3.00 pm. In crossexamination he states as follows:

After the post mortem, he was not definite about the causeof death, and therefore, in order to know he had preserved andsealed the viscera and one piece of liver and spleen. The presentcase being of the sensitive nature, a panel of doctors with utmostcare and caution conducted the post mortem. It was sought to beconfirmed whether there was any external injury on the body ofthe deceased or strangulation or whether the marks of the deathwas concealed or not. Next, he says that on account of foodpoisoning, the organs may be congested and death could havetaken place due to Tuberculosis, as due to Tuberculosis, the internalorgans could be congested.

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ATHE TWO INVESTIGATING OFFICERS

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ATHE TWO INVESTIGATING OFFICERS

11. PW10 started investigation on 23.01.2011. He took the statementof Smt. Imlesh (aunt of deceased) (who was examined as PW6) andalso PW4 (sister of deceased). On 05.03.2011, on being promoted, hewas transferred. In his cross-examination, he says that he had startedBinvestigation on the same day (23.01.2011) after 5:00pm. When he wentfor inspection of the place of occurrence, at that time, the door was notlocked and no accused was present in the house. He says that he has notspecified in the diary that the accused was searched in the house andthey did not meet him. The place of occurrence is Shivalik Nagar. Thereare several houses in the locality of different persons near the house ofCthe accused. He admits that he has not inquired regarding the incidentfrom any neighbourhood person. He further states that he had not collectedany evidence regarding the demand of dowry from any independentperson. There is no mention about any reason in the arrest of the accusedpersons in Exhibit Ka-15. He continued with the investigation tillD03.03.2011. He deposes that the complainant (PW1) had given thestatement that before one month, the first appellant had reached theirhouse along with the deceased and he stated that he was constructing asecond house for rent purposes and therefore Rs. 10,00,000/- wasdemanded which he will return. PW2 has not told him that his father hadspent Rs. 15,00,000/- according to his capacity. It is correct, he says thatEin the cause of death of Priyanka, the word ‘dowry’ has not been used.It is further stated that Smt. Imlesh (the aunt of the deceased andexamined as PW6) has not used the word ‘dowry’ in harassing thedeceased by her in-laws. Smt. Imlesh has not stated to him in the statementthat father-in-law has ever harassed her for dowry. He admits as correctthat during investigation, the first appellant informed him that he hadFtaken the deceased for medical treatment in different hospitals. This factcame to him in the knowledge from his statement. PW10 admits that hehad not done any investigation from any hospital regarding the treatmentof the deceased and the cause of death. He is unable to give the reasonas to why he did not do it.G12. PW11 is the investigating officer who took over the investigationon 05.03.2011 from PW10. He says that on 18.04.2011 after recordingthe statement of the witnesses and on the evidences available he submittedthe charge sheet against the appellants. He has also not done investigationby way of recording any statement of any neighbour. He admits that it isHnecessary that the death should be unnatural for submitting a charge sheet under Section 304-B. In the opinion of PW5 doctor who conductedthe post mortem, the cause of death was unknown. He preserved viscerato know the reason for death. When he is asked as to whether till thefiling of the charge sheet, he was having any reliable evidence for unnaturaldeath of the deceased, his answer is only he was having oral evidence.When he is further questioned as to what evidence was available withregard to which witness regarding unnatural death, he responds by deposingthat when she died, the deceased was not with her family members. Atthat time all the three appellants were with her. Therefore, it was notpossible to record the oral evidence of the accused persons. He admitsthat it is correct that no public witness was found regarding the unnaturaldeath during investigation. PW10 has recorded the statement of firstappellant that he has taken the deceased to hospital, deposes PW11. Hesubmits that this came to his knowledge after perusal of the investigationdone by the previous investigating officer. He also did not record thestatement of any doctor of the aforesaid hospitals and he did notinterrogate.

13. It is necessary now to notice the evidence adduced byappellants. DW1 is Dr. K.K. Aggarwal,

Retired Chief Medical Officer and Physician, BHEL, at ShivalikNagar. He deposed that on 01.12.2010, the deceased went to him withthe complaint of dry cough. He advised blood investigation. She wassuffering from Eosinophilia. Exhibit-Kha-1, is the original MedicalPrescription by DW1. She was treated from 01.12.2010 to 19.12.2012.in cross-examination he states that Eosinophilia may be caused due tochange in weather. By increase in Eosinophilia, it may cause cough,sneezing and breathing problem. Several persons are suffering fromdisease of higher Eosinophilia.

14. DW2 is a Gynaecologist working in Lilavati Hospital, ShivalikNagar. She has passed M.B.B.S. and B.G.O. Degree. On 11.05.2010,Priyanka (the deceased), aged 24 years, went to her for treatment. Shecomplained of pain in her stomach and discharge of white fluid. She wasold patient of Tuberculosis (TB), which was told by her. She remained inher treatment from 11.5.2010 to 14.5.2010. The patient was having weightof 39 kilograms and her weight was below normal limit. She proved theoriginal prescription as Exhibit-Kha-2.

15. In cross-examination she states as follows:

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AShe complained of stomach pain and discharge of whitefluid. She asked the patient to come on 15.05.2010 at 12.00 p.m..Thereafter, the patient did not go to her. It was correct, she says,that the disease, which was treated by her, was cured within fourto five days. Then she says that, it is possible that the patient maybe cured, and therefore, she did not come on 15.05.2012. SheBvolunteered further that she called the patient on 15.05.2010 butshe did not return. She does not know why. She further states thatit is correct that it was told by the patient upon her query that shewas suffering with the disease of TB and took treatment for ninemonths. She does not treat TB. The treatment, which she gave,Chas no relationship with TB. It is correct that TB may be curedafter taking treatment for six months or nine months. She deposedthat it is wrong to state that the patient, who is suffering pain instomach, since several days, and eat very less, therefore, his weightmay reduce. This is after admitting that the patient had complainedfor stomach pain.D

16. DW3 is the Head of the Department of Education Faculty in aCollege. He has deposed, inter alia, that the deceased got admission incollege in 2008-09 and completed the course for the year 2009-2010.The attendance of the deceased was more than 75 per cent. Thus, sheappeared in the examination in August, 2010. She also appeared for theEpractical examination on 16.11.2010.

17. In cross-examination, inter alia it is brought out that herattendance fell drastically after December, 2009, and that, it was morethan 99 per cent, prior to December.

F18. DW4 is a Medical Practitioner since 1987 in a Nursing andMaternity Home at Meerut Road, Mawana, Meerut District. She haspassed M.B.B.S. and B.G.O.. On 02.06.2007, the deceased came to herand she remained under her treatment. She told about her disease of TB.Thereafter, the patient went to her on 02.12.2009. On that day she toldthat she is about to marry on 10.12.2009, thus, she wanted to postponeGher periods, for which, she gave her medicines. Thereafter, the deceasedwent to her on 31.08.2010. The patient told about the history of Coax(TB of stomach). The original prescription for the three dates weremarked as Kha- 5, 6 and 7, respectively. On 02.06.2007, she advised thepatient, on her prescription, for blood test and x-ray of chest. She prescribedHmedicines for Anaemia because the patient told about TB earlier.

Therefore, she advised blood test and x-ray to confirm whether TB hadbeen totally cured or not. But the patient did not bring any x-ray or bloodreport.

19. In cross-examination she says that she is a Gynaecologist.On 02.06.2007, the deceased came to the hospital with the disease ofweakness. In her medical history, she has stated about TB for last tenyears. She states that it is correct that after ten years, and till coming toher, the deceased never told about symptoms of such disease. If thepatient takes complete treatment for three years, there is no possibilityfor the said disease. She says that during the two and a half years, between02.06.2007 and 02.12.2009, and after 02.12.2009, the deceased nevercomplained about TB. On 31.08.2010, DW4 did not investigate for TBsymptoms nor any complaint about it. TB may be caused in the chest,stomach or any other organ. It is further stated that from 02.06.2007 to31.08.2010, Priyanka (the deceased), was regularly coming to DW4 fortreatment for three years. She ends her deposition by stating that duringthe three years period, the deceased never complained about TB nor shefound any symptoms under investigation.

20. The analysis of the above evidence would reveal the following:

DW1 treated the deceased from 01.12.2010 to 19.12.2010.The deceased was suffering from high Eosinophilia. She hadcomplained of dry cough. DW2, a Gynaecologist, treated thedeceased from 11.05.2010 to 14.05.2010. The deceased complainedof pain in the stomach and discharge of white fluid. The deceasedtold the Doctor that she was an old patient of TB. Markedly, thedeceased was found to have weight of only 39 kilograms, whichwas found to be below the normal limit. DW4, again anotherGynaecologist, also treated her on 31.08.2010. The Doctor clearlydeposed about the patient telling about the history of TB in thestomach. While DW1 and DW2 are from Haridwar, where theappellants reside, it is noteworthy that DW4 practised at Mawana,Meerut where the deceased had her paternal home. The evidenceof DW4 would show that the deceased was under treatment ofDW4, for 3 years from 02.06.2007 to 31.08.2010. On 02.06.2007,the Doctor advised her to go in for blood test and x-ray of chest toconfirm whether she was cured, the DW4 is categoric that shedid not bring any x-ray or blood report. It is within little over amonth, from the date of treatment of DW1 and within a few months AB

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Aof treatment of DW4, that the deceased passed away in January,2011 on 23.01.2011.

21. We may also notice that in the Van Nostrand’s ScientificEncyclopaedia (3rd Edition). It is stated, inter-alia, as follows:

Tuberculosis: A chronic or acute infectious disease caused by anBinvasion of the body by the Bacillus tuberculosis. It may exist withoutcausing symptoms (inactive tuberculosis) or with symptoms (activetuberculosis). The symptoms of tuberculosis depend on the organinvolved, the virulence of the strain of tubercle bacilli and theresistance of the individual infected. Almost any organ or tissue ofCthe body may be attacked by the tuberculosis process, althoughthe commonest site is the lungs.

We notice that in the discussion relating to pulmonary Tuberculosis,it is, inter alia, stated as follows:

Some individuals are unable to handle the infection, and inDspite of good treatment early in the disease they go on to developsevere symptoms and widespread, often fatal, tuberculosis. Othersare able to keep a small lesion localized, and in the course of ayear of treatment complete healing may be accomplished.

The complications of pulmonary tuberculosis are associatedEwith spread of the disease to near and distant organs. In someinstances, the pulmonary disease may b quite minor, and the firstmanifestation may occur when urinary tract, or abdominal,tuberculosis begins to cause symptoms.

The various forms of abdominal tuberculosis are treatedFwith x-ray and ultra-violet light as well as the usual generalmeasures.

The prognosis in tuberculosis depends on many factors. Thetype, duration and extent of disease when treatment is begun, theresistance of the patient to the tubercle bacillus are of primeGimportance. Early treatment increases the percent of curesenormously. The importance of continuation of treatment, usuallyfor a minimum of 2 years, cannot be overestimated. Since relapsesare relatively common even after apparent cure, restriction ofactivities and regular check-up examinations for a period of yearsare essential.H

In the latest edition, the 10th edition of the same work, we noticethe following:

If the disease is left untreated, very serious complications canoccur. Sometimes patients are hospitalized during the initial stagesof therapy. The administration of drugs for about two weeks usuallymarkedly reduces the ability of the patient to infect others. Personswith nonpulmonary tuberculosis are considerably less infectiousthan those with the pulmonary form and thus sometimes can bemanaged entirely as outpatients.

The rise of incidence of TB commencing in the mid 1980sgenerally is attributed to two causes, each of which has hada measurable effect:

1. An increased resistance shown by M. tuberculosis to thedrugs administered. Current research is illustrating theveracity of the cause.

22. The telephonic call, which is made by PW1 on the fateful daycannot be treated as First Information Report and it is just an informationgiven to the police and the FIR marked in the case is that what he hadgiven after seeing the dead body of his daughter. The deceased wasmarried to the first appellant on 10.12.2009. She died on 23.01.2011. Thedeath was within seven years of marriage. The prosecution was unableto prove that the deceased died due to poison. From the search in thehouse of the deceased, no poisonous substance was found. It is alsofound that in the Wiper by which vomiting of the deceased was wiped(referred to in the charge sheet noted by us at para 4 of this judgment) itwas not proved that this was only poison. In the viscera also, there is nopoison. Though there was a long gap in sending the viscera, the appellantscould not be blamed for the same. Though, the deceased died at a veryyoung age of 28 years, there is a history of tuberculosis before marriage.He refers to the evidence of the doctors which we have already referredto and also the information provided by the first appellant that he hadtaken the deceased to the hospital. It was the duty of the investigatingofficer to record the statements of the last treating doctor. It cannot besaid that deceased died due to poison. No injury was found on the bodyof the deceased as per the inquest report and post mortem. The oral A

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Aevidence adduced by the prosecution itself ruled out physical cruelty inconnection with the dowry.

23. PW1 and PW2 had deposed about the demand of Rs. 10 lacs.The Sessions Judge even finds that apart from the fact that the said factis not clearly proved and there are many interpretations about the sameBasking for such an amount by the accused (first appellant), after themarriage and when he assured that he will return the same, it cannot bea demand for dowry. The Court took the view that all the witnessesadmitted that before the marriage and at the time of marriage, there wasno demand for dowry by the appellants. Even when she came home,immediately after the marriage, there was no demand for dowry. TheCCourt notes the following contradictions in evidence of PW1 and PW2.PW1 has deposed that one month before the incident, the first appellantand the deceased came to the house at Mawana. There, the first appellantdemanded Rs. 10 lacs. PW1 expressed inability. But he pledged ornamentsof his wife and gave Rs. 1 lakh.D

PW2, his son, on the other hand, says that four months before thedate of an incident, the first appellant and the deceased came to theirhouse at Mawana and they demanded for Rs. 10 lacs. He pledges thejewellery of his wife and gave Rs. 1 lakh. PW3 has developed this theoryfurther and deposed that PW1 had pledged the jewellery of his daughter-Ein-law and gave Rs. 1 lakh to the first appellant. This is not the version ofeither PW1 or PW2. On the basis of contradictions, he finds that there isneither demand for Rs. 10 lacs by the first appellant nor was Rs. 1 lakhgiven. The deceased was found doing her B.Ed.. DW3, who is the officialof the college, has deposed about the deceased attending the college andalso the attendance which we have already referred to. It is admittedFthat while doing B.Ed., the deceased remained with her parents as thecollege was nearby. She visited her home so many times. There is noreport to the police in regard to the harassment for dowry. As told by thedeceased regarding the taking of Salfas (poison), it is noted as a seriousmatter, in which case, the report should have not been lodged which isGadmittedly not the case. There is no reference as to the date of demand.The car was found registered in the name of PW1. The application forthe release of the car which had been taken into custody was made byPW1. This falsified the case of gift set up by the prosecution. The takingof help for some purposes would not fall within dowry (this is with respectto the demand for Rs. 10 lacs). There is ample evidence to show that theH

deceased was a patient of Tuberculosis and also suffering fromEosinophilia and stomach ache. This may be the cause of her death. Ithas been found that this is not a dowry death. There is no charge underthe Dowry Prohibition Act and Section 498A of the Indian Penal Codeand the only charge under Section 304-B not being proved, the appellantswere acquitted.

THE FINDINGS BY THE HIGH COURT IN THEIMPUGNED JUDGMENT.

24. Though at the solemnization of marriage, there is no discussionof dowry, however, after 2-3 months, the accused and his family members(appellants) started demanding dowry. Thereafter, reference is made toPW8, who deposed that Panchas opined that it was a case of poisoning.The High Court finds that the evidence of DW1 does not reveal that thedeceased was suffering from Tuberculosis and that she had Eosinophilia.Referring to the evidence of DW2- Dr. Mamta Tyagi, the High Courtsays that the deceased was only complaining of stomach ache anddischarge of white fluid. The patient has never told the doctor about herTuberculosis. The treatment also did not relate to the Tuberculosis. Thedoctor has admitted that Tuberculosis can be cured after six to sevenmonths of treatment. The High Court, thus, concludes that it is in evidenceof DW1 and DW2 that deceased was not suffering from Tuberculosis.Thereafter, the High Court goes through evidence of DW4 and finds thatthe doctor had admitted that once the treatment was taken ten yearsback for Tuberculosis, there was no question of recurrence of the disease.The deceased had gone to her on 02.12.2009 for the postponement ofher menstrual cycle and the marriage took place on 09.12.2009. Thedeceased has never told the symptoms of Tuberculosis after 02.12.2009.The High Court finds as follows:

“It is thus, evident from the statements of DW1 Dr. K.K.Aggarwal, DW2 Dr. Mamta Tyagi and DW4 Dr. Neera Chandrathat Priyanka was not suffering from tuberculosis. She was nevertreated by them for tuberculosis. DW1 Dr. K.K. Aggarwal hastreated Priyanka for common ailment. DW2 Dr. Mamta Tyagihas admitted that the treatment given to Priyanka has nothing todo with tuberculosis”

25. The deceased was never taken to any hospital. According tothe investigation officer, she was taken to various hospitals though thereis no record. It is further pointed out that when specific question was put AB

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Ato the accused under Section 313 CrPC, as to how the deceased wasrecovered from the car parked in front of their house, a simpliciter denialwas made. Thereafter, we may notice paragraph-34:

“There is ample evidence on record that the accused weredemanding dowry from the deceased. The parents of the deceasedBwere not in a position to meet the illegal demand of dowry. It hascome in the FIR that it was the case of poisoning. PW3 SohanSingh has noticed that body has turned blue. PW5 Dr. Ashok Kumarhas admitted that on the opening of body, internal organs werecongested, which could be due to poisoning. Merely the fact thatpoison was not found on the Viscera vide exhibit 55 Ka/4, it cannotCbe said that deceased was not administered poisoning.”

26. Then the High Court refers to the judgment of this Court inAnant Chintaman Lagu v. State of Bombay1. This Court therein heldthat in any case of poison, the three elements must be established:

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1. Death took place by poisoning.

2. The accused had the poison in his possession.

3. The accused had an opportunity to administer the poison tothe deceased.E

Thereafter, there is reference to case law. The Court then finds as follows:

“(42).In the instant case, the prosecution has proved the case basedon entirely circumstantial evidence. The chain is complete fromFthe date of telephonic call received by PW1 Harendra Singh fromhis daughter till the recovery of body in Santro car on 23.01.2011.The plea taken by the accused is false and it is a vital link to provecircumstantial evidence on which the present case rests.

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G(44). In the present case, the deceased was in the house of accusedat the time of her death. It was for the accused to explainsatisfactorily the circumstances under which the victim died on23.01.2011. PW3 Sohan Singh has also deposed that the accused ran away from the spot. It was a case of homicide by poisoning.The accused were required to explain under Section 106 of Cr.P.C.,the circumstances in which the death of Priyanka was caused andher dead body was recovered from the rear set of the car parkedin front of their house. It has also come on record that the husbandof Priyanka-deceased and other family members were residing inthe same house.”

27. With regard to medical opinion, it was found that the opinion ofthe doctor cannot affect the value of deposition of truthful eyewitness. Itis found that the appellants have failed to rebut the presumption underSection 113B of the Evidence Act.

28. Then the Court finds that the prosecution has duly proved thatthe deceased was killed due to cruelty and harassment for dowry andthat it proved the ingredients of cruelty and harassment in connectionwith the demand for dowry immediately before the death. Thereafter,we may notice:

“(60).The dead body of Priyanka was recovered from the rearseat of Santro car, as per the statements of PW1 Harendra Singh,PW2 Sandeep, PW3 Sohan Singh and PW8 Puran Singh Rana.The accused have not given any explanation why the dead bodyof Priyanka was lying in the car. The accused have not explainedthe circumstance why the dead body was lying in the car, even, inthe statement recorded under Section 313 of Cr.P.C.

(61). Learned Trial Judge has overlooked this very vital fact thatthe dead body of Priyanka was recovered from the rear seat ofthe car and to which no explanation whatsoever has been givenby the accused.”

(Emphasis supplied)

Finally, we notice:

“(64).In the present case, the statements of DW1 Dr. K.K.Aggarwal, DW2 Mamta Tyagi and DW4 Dr. Neera Chandra donot inspire confidence. They have issued false certificates to savethe accused. Priyanka-deceased was never suffering fromtuberculosis. This tendency on the part of private practitioners toissue false certificate is required to be curbed.”

(Emphasis supplied)

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A 29. On this basis, the appellants were found guilty under Section304-B read with Section 498A and Sections 3 and 4 of the DowryProhibition Act. Thereafter, by exercising power under Section 362 ofthe CrPC and noticing that there is an error in that the appellants werealso wrongly convicted under Section 498A of IPC and Sections 3 and 4of Dowry Prohibition Act. The conviction thereunder was ordered to beBdeleted. Thereafter, the appellants were sentenced to undergoimprisonment for life under Section 304-B of IPC.

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30. We have heard learned senior counsel for the appellants, ShriSiddharth Dave, Shri Krishnam Mishra, learned counsel for the firstrespondent-State and Shri Sanjay Kumar Dubey, learned counsel forCPW1(father of the deceased) and the appellant before the High Court.

31. Learned senior counsel for the appellants submitted that thereis absolutely no basis for the High Court to reverse the judgment ofacquittal rendered by the learned Sessions Judge, overlooking the well-settled principles in regard to the approach to be made by the AppellateDCourt, when there is an acquittal by the Trial Court. Apart from initialpresumption, it is elementary that the acquittal of the accused by theTrial Court completely reinforces the presumption and there is a doublepresumption of innocence. The Appellate Court will interfere with theacquittal only if the judgment of the Trial Court is perverse, he points out.EHe would urge that the deceased was indeed taken to the doctors whenher condition was noticed. He submitted that for a conviction under Section304B, the fundamental basis is to be the unnatural death of the womanwithin seven years of her marriage among other elements. But in thiscase, the prosecution has not proved that the death was unnatural. Shewas taking treatment. The findings of the Sessions Judge to the effectFthat there was demand for dowry, could not be acted upon, has beenjettisoned without any basis. The deceased weighed just 39 kilograms,an unerring pointer to both her illness and her health condition, in 2010, afew months before her death. No poisonous substance was found inviscera, he poses the question as to on what basis, the High Court couldGhave entered the verdict of guilt after reversing the judgment of the learnedSessions Judge. No poison was found in the house of the appellants.There were no marks of any injury as already noted. There is no demandfor dowry right from the beginning. The first appellant had informed thePolice. They had not run away. Reliance is placed on the evidence ofPW11-I.O. besides the evidence of PW1. There was no basis to drawH

the inference which is drawn on the basis that the body was found in therear portion of the car. He drew support from the Judgment of this Courtin Chhotan Sao and another v. State of Bihar[2].

32. Per contra, the learned counsel for the State pointed out thatthere was demand for dowry and harassment after few months ofmarriage. Even in the questioning by the Court under Section 313, thedenial by the first appellant would show that he was complicit in thecrime. The finding of the dead body in the rear of the car in front of thehouse, is emphasized.

33. Shri Sanjay Kumar Dubey, appearing for respondent No.2,sought to support the impugned judgment. He referred to the entry in theGeneral Diary indicating that the phone call was made on 23.01.2011pointing to the events showing the complaint voiced over phone by thedeceased. He pointed out the affidavit by appellant No.2, wherein hestates that the deceased died of poisoning. This suffices to show that thedeath was unnatural attracting Section 304B. The alleged contradictionsin the deposition of prosecution witness is also sought to be explained.

The learned Senior Counsel for the appellant would point out thatno reliance should be placed on statement in the Affidavit of the secondappellant in the Bail Application about the death being a suicide. This isnot part of the evidence.

ANALYSIS

34. Though, since long, the law declaring the narrowing of appellatecourt’s jurisdiction in regard to scope of interference with a verdict ofacquittal, is settled, we may only refer to one decision. In Ghurey Lal v.State of Uttar Pradesh[3], after an exhaustive review of case law, thisCourt laid down, as follows:

“69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appealsagainst acquittal under Sections 378 and 386 of the CriminalProcedure Code, 1973. Its power of reviewing evidence is wideand the appellate court can reappreciate the entire evidence onrecord. It can review the trial court's conclusion with respect toboth facts and law.

2 (2014) 4 SCC 54

3 (2008) 10 SCC 450

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2. The accused is presumed innocent until proven guilty.The accused possessed this presumption when he was before thetrial court. The trial court's acquittal bolsters the presumption thathe is innocent.

3. Due or proper weight and consideration must be given tothe trial court's decision. This is especially true when a witness'credibility is at issue. It is not enough for the High Court to take adifferent view of the evidence. There must also be substantial andcompelling reasons for holding that the trial court was wrong.

70. In light of the above, the High Court and other appellate courtsshould follow the well- settled principles crystallised by number ofjudgments if it is going to overrule or otherwise disturb the trialcourt's acquittal:

1. The appellate court may only overrule or otherwisedisturb the trial court's acquittal if it has “very substantial andcompelling reasons” for doing so.

A number of instances arise in which the appellate courtwould have “very substantial and compelling reasons” to discardthe trial court's decision. “Very substantial and compellingreasons” exist when:

(i) The trial court's conclusion with regard to the factsis palpably wrong;

(ii) The trial court's decision was based on an erroneousview of law;

(iii) The trial court's judgment is likely to result in “gravemiscarriage of justice”;

(iv) The entire approach of the trial court in dealing withthe evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust andunreasonable;

(vi) The trial court has ignored the evidence or misreadthe material evidence or has ignored materialdocuments like dying declarations/report of theballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight andconsideration to the findings of the trial court.

3. If two reasonable views can be reached—one that leads toacquittal, the other to conviction—the High Courts/appellatecourts must rule in favour of the accused.”

35. It is well to remember that while the search of the truth andadjudicatory function of the judiciary are not strange bedfellows, theseself-imposed limitations on the pursuit are based on the nature ofjurisdiction. Every deviation from such limits could indeed result in graveinjustice requiring correction to prevent miscarriage of justice. Excess ofjurisdiction can have very serious repercussions, particularly when, whatis involved is, personal liberty, which is inevitably at stake in a criminaltrial.

36. We have set out the findings of the Trial Court. The charge isone under Section 304B. The ingredients of the offence are well-settled.A marriage performed within seven years before the death of the wife.The death must be unnatural. Soon before the death, the deceased wifemust have been at the receiving end of cruelty or harassment, on accountof demand for dowry. It is described as dowry death. The relativesconcerned, including husband, become liable. Section 113B of theEvidence Act comes to the rescue of the prosecutor by providing for apresumption that a person has caused dowry death if, it is shown thatsoon before her death, she was subjected by such person for cruelty orharassment for or in connection with demand for dowry.

37. In this case, as regards the demand for Rs.10 lakhs by the firstappellant, there are three striking features. PW1, the complainant andthe father of the deceased, deposes that about one month before thedeath, the deceased and the first appellant came to him at Mawana andfirst appellant sought Rs.10 lakhs from him and that they will return themoney. He being moved by the tears in his daughter’s eyes, pawned hislate wife’s jewellery, raised one lakh and gave to the appellant and hisdaughter. However, PW2, his son, deposed that it was four months beforethe death that the deceased and the first appellant came to their house atMawana, asked for Rs.10 lakhs. He sets up the version that he raisedone lakh by pawning his wife’s ornaments. Thus, the versions of PW1and PW2 both as regards time of demand and the manner of raising A

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ARupees One lakh, appear to be clearly contradictory. What is moresignificant is the further contradiction introduced by PW3 who is thebrother-in-law of PW1. He deposes that two months from the incident,he had gone to the home of PW1, who informed him that the in-laws ofthe deceased are demanding Rs.10 lakhs for the construction of the housefor the purpose of rent. PW1 showed his inability. It is important to noticeBwhat PW3 next says:

“Thereafter, the in-laws of Priyanka (the deceased) startedtorturing her badly”.

38. What follows next is the last nail in the coffin of the prosecutionCversion, which completely falsifies what both PW1 and PW2 has deposed.PW3 states that PW1, after pawning ornaments of his son’s wife, paidRs.1 lakh to the first appellant. The learned Sessions Judge enteredfindings noting these contradictory versions. He also finds that if thefather-in-law is approached for a sum of money after the marriage, onthe basis that it will be returned back, it may not amount to a dowryDdemand.

39. It is to be noted that PW1 has admitted that there was nodemand for dowry before or at the time of marriage. The marriage tookplace on 10.12.2009. The death was on 23.01.2011. Though PW1, PW3,PW4 and PW6 have spoken about harassment on account of dowry, theElearned Sessions Judge did not find material reliable. It is to be noted thatthe version about the demand for Rs.10 lakhs is found wholly unacceptable.The Trial Court has the advantage of watching the demeanor of thewitnesses.

40. The I.Os- PW10 and PW11, have not made any enquiry fromFthe neighbours of the appellants. The deceased was attending the B.Edcourse as seen from the evidence of DW3. No complaint, whatsoeverwas given by PW1 to PW3 to any authority. We do not see any materialexcept the testimony of PW1 to PW3 and PW6, which did not, at anyrate, inspire the confidence of the Trial Court. It does not also commenditself to us either.G

41. PW6, aunt of the deceased also has given evidence in supportof the prosecution. The forensic report is dated 28.3.2014. It states thatmetallic poisons, Ethyl Alcohol, Methyl Alcohol, cyanide, phosphides,Alkaloids, Barbiyurates, Tranquilizers and Pesticides were not detectedin the exhibits.H

DID THE APPELLANTS RUN AWAY?

42. The incident took place on 23.01.2011. PW1 deposed that onthe said date the Police had taken in their custody the Santro car beforePW1 because in the car the dead body of the deceased was kept. Next,he says that the first appellant was present.

43. Next the appellant would point out the statement of PW 11,the second investigating officer. He deposed in answer to the question incross examination as to the oral evidence of which witness was availableregarding unnatural death, that at the time of death all the accused werewith her. Therefore, it was not possible to record the oral evidence of theappellants.

44. Further the evidence of PW9, police officer, is to the effectthat on 24.1.2011 he arrested the appellants from their house at L-84,Shivalik at 6.45 pm.

45. No case is thus made out for drawing any inference againstthe appellants.

46. PW1 has deposed that the Police had already reached thespot before him. Appellants have a case that they had informed the police.No doubt, the respondent No.2 has sought to rely upon an entry in thegeneral diary suggesting that PW1 had called from his mobile numberthat his daughter informed that in-laws have killed her by giving poisonand he is reaching at her home and he may also be provided help. In fact,this is a document which is produced by the second respondent beforethis Court in the petition to produce additional documents. It is not markedas such. But when PW9 is examined, he refers to the carbon copy of theReport No.28. However, he says he was not present at the Police Stationat the time of Report. We do not see anything turning on it at any rate toadvance the prosecution version.

THE LAW ABOUT POISONING: APPLICATION TO FACTS

47. The High Court refers to the oft quoted decision of this Courtin Anant Chintaman Lagu v. State of Bombay[4]. In the said case, threetests came to be reiterated, as necessary to establish in a case of poisoning.

1. Death took place on account of poisoning

2. The accused had the poison in his possession

3. The accused had an opportunity to administer the poison 4 AIR 1960 SC 500

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A48. In fact, in the said case wherein the conviction of the appellantwas affirmed by a majority of 2:1., the appellant was a medical doctor.He was found in the company of the deceased on a train and when thedeceased was taken to the hospital also, his presence was noted. Thedeceased was left behind gold ornaments and valuables by her latehusband. Although there was no scientific evidence to show poisoning,Bthe court relied upon a number of circumstances which in the main wasconduct of the appellant which has been detailed in paragraph-74 of thejudgment pointing to poisoning of the deceased by the appellant. In thiscontext we notice the following statement of the law contained inparagraphs-59 and 68.C

“59. The cases of this Court which were decided, proceeded upontheir own facts, and though the three propositions must be kept inmind always, the sufficiency of the evidence, direct orcircumstantial, to establish murder by poisoning will depend on thefacts of each case. If the evidence in a particular case does of notDjustify the inference that death is the result of poisoning becauseof the failure of the prosecution to prove the fact satisfactorily,either directly or by circumstantial evidence, then the benefit ofthe doubt will have to be given to the accused person. But ifcircumstantial evidence, in the absence of direct proof of the threeelements, is so decisive that the court can unhesitatingly hold thatEdeath was a result of administration of poison (though not detected)and that the poison must have been administered by the accusedperson, then the conviction can be rested on it.

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68. Circumstantial evidence in this context means a combinationFof facts creating a net-work through which there is no escape forthe accused, because the facts taken as a whole do not admit ofany inference but of his guilt. To rely upon the findings of themedical man who conducted the post-mortem and of the chemicalanalyser as decisive of the matter is to render the other evidenceGentirely fruitless. While the circumstances often speak with unerringcertainty, the autopsy and the chemical analysis taken bythemselves may be most misleading. No doubt, due weight mustbe given to the negative findings at such examinations. But, bearingin mind the difficult task which the man of medicine performs andthe limitations under which he works, his failure should not be H

taken as the end of the case, for on good and probativecircumstances, an irresistible inference of guilt can be drawn.”

49. Next, we may notice the judgment of this Court rendered bya Bench of three learned judges in Sharad Birdhichand Sarda v. State ofMaharashtra[5]. We notice only paragraph 165. The same reads as follows:

“165. So far as this matter is concerned, in such cases the courtmust carefully scan the evidence and determine the four importantcircumstances which alone can justify a conviction:

(1) there is a clear motive for an accused to administer poison tothe deceased,

(2) that the deceased died of poison said to have beenadministered,

(3) that the accused had the poison in his possession,

(4) that he had an opportunity to administer the poison to thedeceased.”

50. In this case, there is no evidence at all that the deceased diedof poisoning. Secondly, there is no evidence to show that the appellantshad poison in their possession. Thus, even proceeding on the basis thatbeing the wife and daughter-in-law who was living with them that theappellants may have had the opportunity to administer poison, the othertwo tests are not satisfied. The police did not recover any poison fromthe appellants or their house. As already noticed the FSL reportcategorically rules out the presence of any poison. As regards theappellants not being found with any poison, we no doubt notice the viewtaken by a Bench of two learned judges and reported in Bhupinder Singhv. State of Punjab[6]. The same reads as under:

“24. From the foregoing cases, it will be seen that in poison murdercases, the accused was not acquitted solely on the failure of theprosecution to establish one or the other requirement which thisCourt has laid down in Dharambir Singh case [ Criminal AppealNo. 98 of 1958, decided on 4- 11-1958 (SC)] . We do not also findany case where the accused was acquitted solely on the groundthat the prosecution has failed to prove that the accused had the 5 (1984) 4 SCC 116

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Apoison in his possession. The accused in all the said cases came tobe acquitted by taking into consideration the totality of thecircumstances including insufficient motive, weakness in the chainof circumstantial evidence and likelihood of the deceasedcommitting suicide.

B25. We do not consider that there should be acquittal or the failureof the prosecution to prove the possession of poison with theaccused. Murder by poison is invariably committed under the coverand cloak of secrecy. Nobody will administer poison to another inthe presence of others. The person who administers poison toanother in secrecy will not keep a portion of it for the investigatingCofficer to come and collect it. The person who commits suchmurder would naturally take care to eliminate and destroy theevidence against him. In such cases, it would be impossible for theprosecution to prove possession of poison with the accused. Theprosecution may, however, establish other circumstances consistentDonly with the hypothesis of the guilt of the accused. The courtthen would not be justified in acquitting the accused on the groundthat the prosecution has failed to prove possession of the poisonwith the accused.

26. The poison murder cases are not to be put outside the rule ofEcircumstantial evidence. There may be obvious very many facts andcircumstances out of which the court may be justified in drawingpermissible inference that the accused was in possession of the poison inquestion. There may be very many facts and circumstances provedagainst the accused which may call for tacit assumption of the factum ofpossession of poison with the accused. The insistence on proof ofFpossession of poison with the accused invariably in every case is neitherdesirable nor practicable. It would mean to introduce an extraneousingredient to the offence of murder by poisoning. We cannot, therefore,accept the contention urged by the learned counsel for the appellant.The accused in a case of murder by poisoning cannot have a betterGchance of being exempted from sanctions than in other kinds of murders.Murder by poisoning is run like any other murder. In cases wheredependence is wholly on circumstantial evidence, and direct evidencenot being available, the court can legitimately draw from the circumstancesan inference on any matter one way or the other.”

H51. We may notice that referring to the view taken in Bhupinder Singh v. State of Punjab (supra) as above, another Bench of two learnedjudges of this Court in Jaipal v. State of Haryana7 and after setting outthe 4 circumstances which were laid down by this court in SharadBirdhichand Sarda v. State of Maharashtra (supra) this Court held asfollows:

“28. We may hasten to add that the availability of the third pieceof evidence as necessary to establish the case of murder bypoisoning has been doubted in some of the later decisions. To wit,in Bhupinder Singh v. State of Punjab [(1988) 3 SCC 513 : 1988SCC (Cri) 694 : AIR 1988 SC 1011] it has been held that theremay be very many facts and circumstances proved against theaccused which may call for tacit assumption of the factum ofpossession of poison with the accused, and therefore, the insistenceon proof of presence of poison with the accused is neither desirablenor practicable. Anant Chintaman Lagu v. State of Bombay[AIR 1960 SC 500 : 1960 Cri LJ 682] is a case peculiar to its ownfacts and this Court by a majority of 2:1 held that even in theabsence of a decisive finding as to the exact cause of death andon a finding that the death of the victim was the result of theadministration of some unrecognized poison or drug which wouldact as a poison, a finding as to guilt can be arrived at based oncircumstantial evidence. It was a case of extreme cunning andpremeditation. The conduct of the accused after the death of hiswife was unusual and abnormal and was so knit together as tomake a network of circumstances pointing only to his guilt. Stillthe majority opinion observed: (AIR p. 523, para 68)

“68. Circumstantial evidence in this context means acombination of facts creating a network through which there isno escape for the accused, because the facts taken as a wholedo not admit of any inference but of his guilt.”

In the present case we do not find any abnormality in the conductof the accused. He is an educated person, a teacher. If only hehad administered any poison to the deceased he would not havegone to the private clinic and government hospital where poisoningas a cause of death would be immediately known or at least stronglysuspected by the doctor attending on the victim. Rather the accused A

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Awanted to be in the company of the deceased and to have hertreated. He attended on her at Navjeevan Hospital and took her toCivil Hospital.”

52. This court also explained the view taken in Anant ChintamanLagu v. State of Bombay[8]. Again, in Shanmughan vs. State of Kerala[9]Bthe decision in AIR Bhupinder Singh v. State of Punjab (supra) came tobe noticed. It was a case where death by poisoning was not in dispute.The only dispute was whether it was homicidal or suicidal. The courttook note of the injuries which were found on the deceased. The victimhad died of cyanide poison which is a highly corrosive poison. Theevidence of PW7 in the said case was that the injuries could be due toCforcible administration of the poison. The accused was specificallyquestioned about the injuries for which he had no answer. It was in thesecircumstances that the court after referring to paragraph-25 of BhupinderSingh v. State of Punjab (supra) found that it was a case of poisoning. Asfar as the facts of the present case is concerned, we have noticed thatDthere is absolutely no evidence relating to poison in relation to the deceased.Were it a case of forcible poisoning, by using a corrosive poison, therewould been some marks. There are none. If it were forcible poisoning byusing any kind of poison, there would be struggle and resistance from thevictim. In this regard, PW1 is to be believed on 23.01.2011 at 9:30, hereceived a phone call from his daughter who, asked him to reach Haridwar,Eotherwise these people will kill her. Also, in the charge-sheet theprosecution proposed to prove its case based apart from the oral evidencethe material recovered from the spot containing the vomiting of thedeceased, which was cleaned by the accused. However, as noticed bythe Learned Sessions Judge, the prosecution was unable to prove theFpresence of poison in the cleaning material referred to as the wiper.

53. We find ourselves unable to subscribe to paragraph-42 in theimpugned judgment that the chain is complete from the time of thetelephone call received by PW1 from his daughter till the recovery of thebody in the Santro car. We are unable to appreciate the circumstancesGas unfolded on the morning of 23.1.2011 which allegedly started from thephone call of the daughter of PW1 as thereafter the only othercircumstance, is the recovery of the body in the rear seat of the Santrocar. The existence of any circumstances, as would fulfil the requirement, 8 AIR 1960 SC 116H9 AIR 2012 SC 1142

8 AIR 1960 SC 116H9 AIR 2012 SC 1142

as laid down by this court in paragraph-59 in Anant Chintaman Lagu v.State of Bombay (supra), are not present. In paragraph-34 of the impugnedjudgment, the High Court refers to the FIR to notice that it is a case ofpoisoning. It further refers to the evidence of PW5-Medical Doctor thathe admitted that on opening the body, the internal organs were congested,which could be due to poisoning. In this regard it may be noticed thatPW5 has stated that he was not definite about the cause of death. Hehas further stated that on account of food poisoning the organs may becongested. Even more importantly, the doctor has opined that the deathcould have taken place due to Tuberculosis as in the case of Tuberculosis,the internal organs can be congested. The High Court has not referred tothis part of the evidence, namely, that the congestion of internal organcould be due to Tuberculosis. Still further, there is a case for the appellantsthat food poisoning is to be distinguished from administering of poisonand what the doctor has referred to is food poisoning. The High Courtfinds that merely because poison is not found, it cannot be said thatdeceased was not administered poison.

54. At this juncture, though if in a given case, there is clinchingevidence which establishes poisoning, it may be true that absence ofpoison in the viscera may not be decisive. That is not the position in thefacts of this case. It is true that the division bench of the High Court alsorefers to Modi’s Medical Jurisprudence and Toxicology wherein the authorhas stated as follows:

“It is possible that a person may die from the effects of a poisonand yet, none may be found in the body after death if the whole ofthe poison has disappeared from the lungs by evaporation, or hasbeen removed from the stomach and intestines by vomiting andpurging, and after absorption has been detoxified, conjugated andeliminated from the system by the kidneys and other channels.Certain vegetable poisons may not be detected in the viscera, asthey have no reliable tests, while some organic poisons, especiallythe alkaloids and glucosides, may be oxidation during life or byputrefaction after death, be split up into other substances whichhave no characteristic reactions sufficient for their identification.

Modi saw cases in which there were definite signs of death frompoisoning, although the Chemical Examiner failed to detect thepoison in the viscera preserved for chemical analysis. It has,therefore, been wisely held by Christison that in cases where a A

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Apoison has not been detected on chemical analysis, the judge, indeciding a charge of poisoning, should weigh in evidence thesymptoms, postmortem appearances and the moral evidence.”

55. There are no symptoms, which point to poisoning. Nothing inthe post mortem appearance is brought out to show poisoning. TheBevidence of witnesses do not establish poisoning.

56. It is to be noticed that there is no evidence in this case whichcould have persuaded the High Court to conclude that there werecompelling reasons to interfere with the acquittal by the High Court. Theappreciation of the evidence of the witnesses by the trial court unless it isCfound to be a case of misreading of the evidence or are based on anerroneous understanding of the law, could not have been interfered with.When the High Court records that there is ample evidence on recordthat the accused were demanding dowry from the deceased, it is donewithout noticing the features in regard to the demand for Rs.10 lakhs. Asfar as the other evidence is concerned, the evidence has not been acceptedDby the trial court as inspiring confidence. At best it could be said thatthere were two views possible. Even if that were so, it did not furnish aground to the High Court to overturn the judgment of the trial courtcontaining the findings which we have referred to. We do not think thatthis is a case where the finding of the trial case could be characterised asEperverse.

57. There is a contention raised by the second respondent that noreliance can be placed on the deposition of DW2 and DW4 that thedeceased told these doctors that she was suffering from Tuberculosis asit was hearsay.F58. No such contention is raised before the trial court or before

58. No such contention is raised before the trial court or beforethe High Court. Therefore, we need not really deal with it. However, wemay only notice the view taken by the Privy Council in Subramanianvs. Public Prosecutor10. In the said decision the appellant was tried forbeing in possession of ammunition illegally. His defence was that he hadGbeen captured by terrorists and he was put in duress. Evidence of theconversation by the terrorists was shut out by the court on the basis thatit constituted hearsay. The Privy Council did not approve of the saidview. It laid down as follows:

“In ruling out peremptorily the evidence of conversation betweenthe terrorists and the appellant the trial judge was in error. Evidenceof a statement made to a witness by a person who is not himselfcalled as a witness may or may no be hearsay. It is hearsay andinadmissible when the object of the evidence is to establish thetruth of what is contained in the statement. It is not hearsay and isadmissible when it is proposed to establish by the evidence, notthe truth of the statement, but the fact that it was made. The factthat the statement was made, quite apart from its truth, is frequentlyrelevant in considering the mental state and conduct thereafter ofthe witness or of some other person in whose presence thestatement was made. In the case before their Lordships statementscould have been made to the appellant by the terrorists, which,whether true or not, if they had been believed by the appellant,might reasonably have induced in him an apprehension of instantdeath if he failed to conform to their wishes.

59. Even if we were to follow the said principles the statementattributed to the deceased that she had told the doctors (DW2 and DW4)about her having suffered from TB is admissible for the fact of her havingstated so even if it is not admissible for the truth of the statement. Thatapart, the action of the Medical Practitioner in acting upon it, by way ofprescribing medicines and ordering blood test and x-ray would appear tobe relevant and admissible. The appellants in their questioning underSection 313 CrPC, set up the case of TB. We need not probe the matterfurther including the aspect as to whether the matter may be relevantunder Section 32 of the Evidence Act.

60. We may also draw support from the decision of this Court,relied upon by the appellant in Chhotan Sao v. State of Bihar (supra) andreported in (2014) 4 SCC

54. This was a case in fact where except for the cause of deathall other facts necessary to prove the offence under Section 304B of theIPC stood proved. This Court, however, proceeded to hold as follows:

12. No doubt the prosecution has adduced sufficient evidence toestablish all other facts necessary to prove the offence underSection 304-B IPC except the cause of death. As seen from thetrial court judgment there are no injuries on the body of thedeceased. Even according to the first information report the death AB

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was caused due to poisoning which the deceased was compelledto consume. In such circumstances, the non-examination of thedoctor who conducted the post-mortem coupled with the failure toproduce the forensic laboratory report regarding the examinationof viscera of the deceased leaves a gaping hole in the case of theprosecution regarding the nature of the death of Babita Devi.

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13. The learned counsel for the State placed reliance on the decisionof this Court in Bhupendra v. State of M.P. [(2014) 2 SCC 106:(2014) 1 SCC (Cri) 1: (2013) 13 Scale 552], to which one of us,Ranjana Prakash Desai, J., was a party. In the said case, no doubtthis Court held that the production of chemical examination reportis not mandatory. The Court held as follows: (SCC p. 112, para23).

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“23. These decisions clearly bring out that a chemical examinationof the viscera is not mandatory in every case of a dowry death;even when a viscera report is sought for, its absence is notnecessarily fatal to the case of the prosecution when an unnaturaldeath punishable under Section 304-B IPC or under Section 306IPC takes place; in a case of an unnatural death inviting Section304-B IPC (read with the presumption under Section 113-B of theEvidence Act, 1872) or Section 306 IPC (read with the presumptionunder Section 113-A of the Evidence Act, 1872) as long as there isevidence of poisoning, identification of the poison may not beabsolutely necessary.”

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On the facts of that case, this Court reached to the conclusion thatthere was sufficient evidence on record to come to the conclusionFthat the death was due to poisoning.

61. We are of the view that second respondent should not bepermitted to draw support from the statement in the Affidavit of thesecond appellant accompanying the Bail Application of his wife to theeffect that the deceased herself took poison. Quite clearly, this is notGevidence in the trial, as such.

62. As already noticed, in this case, apart from the fact thatprosecution has not been able to establish that the cause of death wasunnatural, the case setup about the demand of Rs. 10 lakhs by accusedappears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison H

has been recovered at all from the house of the appellants. There are nomarks of injury at all on the deceased. Even the material (wiper) recovered,according to prosecution, and which allegedly was used to clean vomit ofthe deceased, did not disclose any poison. The statement of MedicalPractitioner (DW2) that the deceased was having weight of 39 kilogramsand weight below normal as on 11.05.2010 cannot be ignored. Equally,the evidence of DW4 that the Doctor has prescribed medicine for Anaemiabecause the deceased had told about Tuberculosis earlier also, cannot beignored. Evidence as to advice to the deceased in 2007 to undergo bloodtest and the x-ray, to confirm whether TB has totally cured or not andthat the patient did not bring any x-ray or blood report, cannot beoverlooked. Section 113B of Evidence Act may not apply in this case forthe reason that in order that Section 113B applies, there must be evidencethat soon before the death of the person, which proves that the person,who is alleged to have caused death, treated the deceased with crueltyor harassed her or in connection with a demand of dowry. We havenoticed the state of the evidence in this regard. We are also of the viewthat there was no justification at all for the High Court, in the facts of thiscase, to have overturned acquittal by the Trial Court.

63. The High Court, in our view, without any justification, reversedthe acquittal. The High Court has sought to draw support from thecircumstance that the dead body of the deceased was recovered fromthe car. The first appellant has a case that he has taken the deceased tocertain hospitals. There is also a case that they themselves notified thePolice. We find it certainly not a circumstance so as to draw an inferencethat the deceased died an unnatural death or that the appellantsadministered poison to her. We would think that the High Court has clearlyerred in interfering with the acquittal of the appellants by the High Court.The appeals are only to be allowed. We thus allow the Appeals. Theimpugned judgment of the High Court is set aside and the judgment ofthe Sessions Judge is restored. The first appellant who is in custody shallbe released unless his custody is required in any other case. As theappellants 2 and 3 are already on bail, their bail bonds shall standdischarged.

Divya Pandey

Appeals allowed

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