when the death was not proved by posioning by proseution - setting up demand of dowry and apply of Sec.113 B not correct.
prosecution has not been able to establish that the cause of death was unnatural, the case setup
about the demand of Rs. 10 lakhs by accused appears to
be riddled with irreconcilable contradictions. Neither
the post-mortem nor the Forensic Lab Report shows any
poisoning. No poison has been recovered at all from
the house of the appellants. There are no marks of
injury at all on the deceased. Even the
material (wiper) recovered, according to prosecution,
and which allegedly was used to clean vomit of the
deceased, did not disclose any poison. The statement
of Medical Practitioner (DW2) that the deceased was
having weight of 39 kilograms and weight below normal
as on 11.05.2010 cannot be ignored. Equally, the
evidence of DW4 that the Doctor has prescribed medicine
for Anaemia because the deceased had told about
Tuberculosis earlier also, cannot be ignored. Evidence
as to advice to the deceased in 2007 to undergo blood
test and the x-ray, to confirm whether TB has totally
cured or not and that the patient did not bring any
x-ray or blood report, cannot be overlooked.
Section 113B of Evidence Act may not apply in this
case for the reason that in order that Section 113B applies, there must be evidence that soon before the
death of the person, which proves that the person, who
is alleged to have caused death, treated the deceased
with cruelty or harassed her or in connection with a
demand of dowry. We have noticed the state of the
evidence in this regard. We are also of the view that
there was no justification at all for the High Court,
in the facts of this case, to have overturned acquittal
by the Trial Court. The High Court, in our view, without any
justification, reversed the acquittal. The High Court
has sought to draw support from the circumstance that
the dead body of the deceased was recovered from the
car. The first appellant has a case that he has taken
the deceased to certain hospitals. There is also a
case that they themselves notified the Police. We find
it certainly not a circumstance so as to draw an
inference that the deceased died an unnatural death or
that the appellants administered poison to her.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1512-1513 OF 2017
SANDEEP KUMAR AND OTHERS ... APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND AND ANOTHER ... RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The appellants, who were charged with the offence
punishable under 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/respondent No.2 herein, the verdict of
acquittal was set aside and the appellants after
conviction under section 304-B of IPC stand sentenced
to undergo imprisonment for life.
2
2. We heard Siddharth Dave, learned senior counsel
for the appellants. Shri Krishnam Mishra, learned
counsel for the first respondent-state and Shri Sanjay
Kumar Dubey, learned counsel for the second
respondent.
3. On the basis of the complaint, by second
respondent dated 23.01.2011 at 5.00 pm, an FIR was
lodged. This led to the appellants finally being
charge sheeted for having committed the offence under
Section 304B of the IPC. Th e facts stated in the FIR
read inter alia as follows:
The daughter of the second respondent was
married to the first appellant on 10.12.2009.
After few days of the marriage the appellants who
are the husband, father-in-law and mother-in-law
of his deceased daughter started harassing her for
dowry. About one month ago, his daughter and son
-in-law came to his house and remained there for
two days. 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 lakhs
3
within 10 to 15 days for the construction of the
house. The second respondent expressed his
inability. Thereafter, seeing tears of his
daughter who said that her parents must pay the
amount otherwise they will kill her, she was sent
away after being consoled. Thereafter, his
daughter is alleged to have phoned him, his family
and his relatives thereby informing them that her
husband, mother-in-law and father-in-law were
torturing her for money and they are provoking her
to commit suicide. On 23.01.2011 at about 9.30 am,
he received phone call from his deceased daughter
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 car given by them
in marriage. The death of the daughter was caused
by poison and the appellants were responsible.
4. In the charge-sheet, it is, inter alia, stated
that on the basis of investigation and evidence given
by the witnesses and the recovery of the material from
the spot, which contains the vomiting of the deceased
4
and 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 documents including 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 marriage and they did not make any
demand of dowry from him. In the marriage they
gave Alto Car but they demanded Santro Car. He
arranged for Santro car. He spent Rupees fifteen
lakhs. At the marriage there was no dispute.
After the marriage when they came for meeting, at
that time also, there was no demand for dowry.
The deceased got opportunity for admission in
B.Ed. before marriage. After marriage, these
persons (the appellants) asked to complete B.Ed.
and the expense has to be borne by him. Thus, on
5
appellants wishes, he bore the expense. After one
month the daughter came and the appellants said
that their marriage could have been arranged for
20-25 lakhs. Upon being confronted with this, the
appellants stated that the mistake has been
committed and they will not say such words.
Thereafter, the deceased used to say in between
that the appellants are demanding ten lakhs.
Before 3 to 4 months he received phone call from
deceased that the appellants are pressing her to
take poison forcefully and asking for ten lakhs.
He made phone calls to the relative of the first
appellant and asked him to intervene. The middle
man who arranged the marriage, was contacted (Be
it noted that the middle man is not examined). He
has further deposed that upon bringing these facts
by them and the son (PW2) and asking as to why he
should not file complaint to the Police, the
second appellant said that he will manage the
Police and again 1
st appellant apologised. They
all live together in one house. Again, about one
month ago, the first appellant came to his house
6
along with deceased and he started demanding ten
lakhs for the construction of the house and said
that they will return the money. First appellant
remained in the house for two days. Deceased also
told him to arrange the money otherwise the
appellants will kill her. He pawned ornaments of
his wife and paid Rs. one lakh to his daughter and
son-in-law. They went back. On 23.01.2011, in
the morning at 09.30 a.m., the fateful day, he
received a call from deceased asking him to come
Haridwar otherwise the appellants will kill her.
He called his youngest daughter (PW4). She, on
phoning, was told by sister of Appellant No.1,
that the condition of deceased was not good. She
told the appellant’s sister to take the deceased
to hospital. They reached Haridwar where the
deceased lived at about 3.00 pm. The dead body
of the deceased was lying in the Santro car. He
first made a call at number 100 which was received
by the Police Station, Roorkee. He also made
phone call to the Police Station, Ranipur on the
basis of the number given by the police but the
7
police had already reached the spot before him.
At the time of marriage, he has taken a loan of
Rupees two lakhs from his PF account. PW 1 has
four children and the deceased was the last one.
In 2009, he was receiving Rs.10,000/- after
deduction. The first appellant is Software
Engineer. He denies that no demand was made. He
does not know whether the second appellant got
Rs.35 lakhs when he retired in July as General
Technician in BHEL. The registration of the
Santro car stood in his name. He denies that he
used to use Santro car for business and used to
give occasionally to his daughter and first
appellant. He admits having got the car released
from the court. After the marriage he has gone
2-3 times to the house of second appellant and
stayed there. After the marriage of the deceased,
he and his family members used to talk to the
deceased daughter. He is unable to say on which
date, month and year the deceased told him that
the appellants are saying that they were getting
20-25 lakhs in the marriage. Thereafter, he said
8
that it was one year after the marriage and in
2011 (It be noted that in chief examination, PW1
says that the deceased told him about it one month
after marriage). The deceased had told him
regarding the demand for money 5-6 months of her
reaching her in-laws and during this period, she
had told him more than 10 times. He has never met
Mahavir Singh. He has not told that when the
deceased told regarding taking of salfas (some
kind of poison). In 5 to 6 months, 10 phone calls
came from the in-laws’ house. He is unable to say
whether the appellant has done medical examination
of his daughter on 1.12.2010 from DW1-Dr. K.K.
Agarwal, Haridwar and on 18.12.2010 got her X-ray
from Super Pathology, Shivalik Nagar, Haridwar and
her investigation got done on 11.5.2010 or that
she was got treated from Dr. Mamta Tyagi. He does
not know that the illness of his daughter was got
treated from her parental house. The first
appellant was B.Tech. He denies that the first
appellant informed him on 23.9.2011 that the
condition of his daughter is not good. The
9
suggestion is put that the phone was switched off.
PW 1 states he does not know whether first
appellant took his daughter to Satbadi Hospital
when her condition became serious. He further
deposes to say he does not know whether the first
appellant took her from Satbadi Hospital to
District Hospital where she was treated. He does
not know whether on the advice of District
Hospital, the first appellant took his daughter
to Jolly Grant Hospital, BHEL. He admits that on
the date of incident, when he reached his
daughter’s house, they did not ask from the
appellants as to how his daughter had died. The
suggestion is put that Police had come on the
basis of information of the first appellant which
was denied. He denies that the marriage was
performed without 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 the appellants used to taunt his sister regularly.
10
Mother-in-law and father-in-law never give full food
to his sister. Four months before the incident the
first appellant along with his sister asked for ten
lakhs. He says after pawing the ornaments of his wife
he paid one lakh. He refers to the phone call of
23.1.2011 from the deceased. He says from the perusal
of the dead body it seemed his sister died due to
poison. He is unable to explain why the statement
that his father has spent 15 lakhs during the marriage
is not found in his statement under Section 161 CrPC
though he has mentioned it. Another omission marked
is about the statement imputed to the in-laws of his
sister (appellant 2 and 3) that they used to ask for
dowry and that the marriage of their son could have
taken place in rupees 20-25 lakhs. They have not made
any complaint against the appellants anywhere apart
from the complaint made on the date of the death. He
had not talked on phone to his sister on 23.1.2011 nor
her in-laws talked on that day. Even though he had a
mobile phone with him, no talks with sister and inlaws took place. While sitting in the car during the
4-5 hours of journey, they talked only with sister
11
near Roorkee. She had called. Her voice was very low.
From Roorkee it took about 1½ to 2 hours to reach
Haridwar. His father made a phone at 100 number from
the car. Roorkee is about 100 kilometres from the
house of PW2. They were not invited when the second
appellant retired from BHEL for the farewell function
and therefore none reached from their family (Be it
noted 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, date when
the deceased told about the demand for Rs.10 lakhs but
it was made in 2010. He says that his sister has no
such disease and therefore they did not take any
treatment before marriage. The suggestion is clearly
put to him that the appellant had taken the deceased
to three hospitals on 23.01.2011. When the phone from
the deceased was received at Roorkee from there about
1½ to 2 hours was taken in reaching the house of the
accused persons.
8. PW 3, a relative of PW 1 (brother-in-law) states
that after demand for Rs. 10 lakhs and payment of Rs.1
lakhs by PW1 also, there was demand and torture by the
12
appellants. He has not seen any torture of the
deceased with his own eyes. Even after knowing about
the harassment and torture by the in-laws he has never
gone to the house of the appellants either by himself
or with PW1 or any other person.
9. PW4 is the sister of the deceased. She has said
that the appellants 2 and 3 used to torture her for
money and they did not allow her to see television and
asked her to bring television from their parent’s
house. She made a phone call at 10 am on 23.01.2011
which is answered by the sister of the first appellant
and she told that the condition of the deceased was
bad and upon being asked to take her to the hospital
appellant’s sister said that till now they have not
taken her to the hospital. She says that she is the
youngest. She has her mother. She said that before
one month from her death, the deceased has come to her
house. The omission in her 161 statement about deceased
telling her parents about torture and demand for money
is brought out. She reiterates this was mentioned to
the Police. Another omission which is noted is
regarding the alleged statement made by her to the
13
Police that a phone call from PW1 (her father) that he
has asked her to make a phone at the landline number
of the in-laws house of the deceased. She has never
seen from her own eyes anybody beating her sister.
She further says she does not how the death of her
sister occurred (Even though in chief examination she
has deposed that her sister was killed for the demand
of dowry). She says her sister was very sensitive.
She says that the appellants committed murder of her
sister and that they used to demand dowry. The
omission in her 161 statement about the appellant
having murdered the deceased is brought out. She
denies that the appellants were present in the house
when they reached on 23.01.2011.
10. PW 5 is the doctor who conducted post mortem. He
deposed that the body of the deceased was stiff. Post
Mortem was conducted on 24.01.2011 at 11.00 am.
Therefore, the time of the incident was within 24
hours. There was no mark of any injury on the dead
body. All organs were found congested. The viscera
was preserved. The death of the deceased was possible
14
on 23.01.2011 from 2.30 pm to 3.00 pm. In cross
examination he states as follows:
After the post mortem, he was not definite
about the cause of death, and therefore, in order
to know he had preserved and sealed the viscera and
one piece of liver and spleen. The present case
being of the sensitive nature, a panel of doctors
with utmost care and caution conducted the post
mortem. It was sought to be confirmed whether
there was any external injury on the body of the
deceased or strangulation or whether the marks of
the death was concealed or not. Next, he says that
on account of food poisoning, the organs may be
congested and death could have taken place due to
Tuberculosis, as due to Tuberculosis, the internal
organs could be congested.
THE TWO INVESTIGATING OFFICERS
11. PW10 started investigation on 23.01.2011. He took
the statement of Smt. Imlesh (aunt of deceased)(who
was examined as PW6) and also PW4 (sister of deceased).
15
On 05.03.2011, on being promoted, he was transferred.
In his cross-examination, he says that he had started
investigation on the same day (23.01.2011) after
5:00pm. When he went for inspection of the place of
occurrence, at that time, the door was not locked and
no accused was present in the house. He says that he
has not specified in the diary that the accused was
searched in the house and they did not meet him. The
place of occurrence is Shivalik Nagar. There are
several houses in the locality of different persons
near the house of the accused. He admits that he has
not inquired regarding the incident from any
neighbourhood person. He further states that he had
not collected any evidence regarding the demand of
dowry from any independent person. There is no mention
about any reason in the arrest of the accused persons
in Exhibit Ka-15. He continued with the investigation
till 03.03.2011. He deposes that the complainant (PW1)
had given the statement that before one month, the
first appellant had reached their house along with the
deceased and he stated that he was constructing a
second house for rent purposes and therefore Rs.
16
10,00,000/- was demanded which he will return. PW2
has not told him that his father had spent Rs.
15,00,000/- according to his capacity. It is correct,
he says that in 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 and examined
as PW6) has not used the word ‘dowry’ in harassing the
deceased by her in-laws. Smt. Imlesh has not stated to
him in the statement that father-in-law has ever
harassed her for dowry. He admits as correct that
during investigation, the first appellant informed him
that he had taken the deceased for medical treatment
in different hospitals. This fact came to him in the
knowledge from his statement. PW10 admits that he had
not done any investigation from any hospital regarding
the treatment of the deceased and the cause of death.
He is unable to give the reason as to why he did not
do it.
12. PW11 is the investigating officer who took over
the investigation on 05.03.2011 from PW10. He says
that on 18.04.2011 after recording the statement of
17
the witnesses and on the evidences available he
submitted the charge sheet against the appellants. He
has also not done investigation by way of recording
any statement of any neighbour. He admits that it is
necessary that the death should be unnatural for
submitting a charge sheet under Section 304-B. In the
opinion of PW5 doctor who conducted the post mortem,
the cause of death was unknown. He preserved viscera
to know the reason for death. When he is asked as to
whether till the filing of the charge sheet, he was
having any reliable evidence for unnatural death of
the deceased, his answer is only he was having oral
evidence. When he is further questioned as to what
evidence was available with regard to which witness
regarding unnatural death, he responds by deposing
that when she died, the deceased was not with her
family members. At that time all the three appellants
were with her. Therefore, it was not possible to record
the oral evidence of the accused persons. He admits
that it is correct that no public witness was found
regarding the unnatural death during investigation.
PW10 has recorded the statement of first appellant
18
that he has taken the deceased to hospital, deposes
PW11. He submits that this came to his knowledge after
perusal of the investigation done by the previous
investigating officer. He also did not record the
statement of any doctor of the aforesaid hospitals and
he did not interrogate.
13. It is necessary now to notice the evidence
adduced by appellants. DW1 is Dr. K.K. Aggarwal,
Retired Chief Medical Officer and Physician, BHEL, at
Shivalik Nagar. He deposed that on 01.12.2010, the
deceased went to him with the complaint of dry cough.
He advised blood investigation. She was suffering from
Eosinophilia. Exhibit-Kha-1, is the original Medical
Prescription by DW1. She was treated from 01.12.2010
to 19.12.2012. in cross-examination he states that
Eosinophilia may be caused due to change in weather.
By increase in Eosinophilia, it may cause cough,
sneezing and breathing problem. Several persons are
suffering from disease of higher Eosinophilia.
14. DW2 is a Gynaecologist working in Lilavati
Hospital, Shivalik Nagar. She has passed M.B.B.S. and
B.G.O. Degree. On 11.05.2010, Priyanka (the deceased),
19
aged 24 years, went to her for treatment. She
complained of pain in her stomach and discharge of
white fluid. She was old patient of Tuberculosis (TB),
which was told by her. She remained in her treatment
from 11.5.2010 to 14.5.2010. The patient was having
weight of 39 kilograms and her weight was below normal
limit. She proved the original prescription as
Exhibit-Kha-2.
15. In cross-examination she states as follows:
She complained of stomach pain and discharge
of white fluid. 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 four to five days. Then she says that, it
is possible that the patient may be cured, and
therefore, she did not come on 15.05.2012. She
volunteered further that she called the patient
on 15.05.2010 but she did not return. She does not
know why. She further states that it is correct
that it was told by the patient upon her query
20
that she was suffering with the disease of TB and
took treatment for nine months. She does not treat
TB. The treatment, which she gave, has no
relationship with TB. It is correct that TB may
be cured after taking treatment for six months or
nine months. She deposed that it is wrong to state
that the patient, who is suffering pain in
stomach, since several days, and eat very less,
therefore, his weight may reduce. This is after
admitting that the patient had complained for
stomach pain.
16. DW3 is the Head of the Department of Education
Faculty in a College. He has deposed, inter alia, that
the deceased got admission in college in 2008-09 and
completed the course for the year 2009-2010. The
attendance of the deceased was more than 75 per cent.
Thus, she appeared in the examination in August, 2010.
She also appeared for the practical examination on
16.11.2010.
17. In cross-examination, inter alia it is brought out
that her attendance fell drastically after December,
21
2009, and that, it was more than 99 per cent, prior to
December.
18. DW4 is a Medical Practitioner since 1987 in a
Nursing and Maternity Home at Meerut Road, Mawana,
Meerut District. She has passed M.B.B.S. and B.G.O..
On 02.06.2007, the deceased came to her and 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 told that she is about to
marry on 10.12.2009, thus, she wanted to postpone her
periods, for which, she gave her medicines.
Thereafter, the deceased went to her on 31.08.2010.
The patient told about the history of Coax (TB of
stomach). The original prescription for the three
dates were marked as Kha- 5, 6 and 7, respectively. On
02.06.2007, she advised the patient, on her
prescription, for blood test and x-ray of chest. She
prescribed medicines for Anaemia because the patient
told about TB earlier. Therefore, she advised blood
test and x-ray to confirm whether TB had been totally
cured or not. But the patient did not bring any x-ray
or blood report.
22
19. In cross-examination she says that she is a
Gynaecologist. On 02.06.2007, the deceased came to the
hospital with the disease of weakness. In her medical
history, she has stated about TB for last ten years.
She states that it is correct that after ten years,
and till coming to her, the deceased never told about
symptoms of such disease. If the patient takes complete
treatment for three years, there is no possibility for
the said disease. She says that during the two and a
half years, between 02.06.2007 and 02.12.2009, and
after 02.12.2009, the deceased never complained about
TB. On 31.08.2010, DW4 did not investigate for TB
symptoms 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 to 31.08.2010, Priyanka
(the deceased), was regularly coming to DW4 for
treatment for three years. She ends her deposition by
stating that during the three years period, the
deceased never complained about TB nor she found any
symptoms under investigation.
23
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 had complained of dry cough.
DW2, a Gynaecologist, treated the deceased from
11.05.2010 to 14.05.2010. The deceased complained
of pain in the stomach and discharge of white
fluid. The deceased told the Doctor that she was
an old patient of TB. Markedly, the deceased was
found to have weight of only 39 kilograms, which
was found to be below the normal limit. DW4, again
another Gynaecologist, also treated her on
31.08.2010. The Doctor clearly deposed about the
patient telling about the history of TB in the
stomach. While DW1 and DW2 are from Haridwar,
where the appellants reside, it is noteworthy that
DW4 practised at Mawana, Meerut where the deceased
had her paternal home. The evidence of DW4 would
show that the deceased was under treatment of DW4,
for 3 years from 02.06.2007 to 31.08.2010. On
24
02.06.2007, the Doctor advised her to go in for
blood test and x-ray of chest to confirm whether
she was cured, the DW4 is categoric that she did
not bring any x-ray or blood report. It is within
little over a month, from the date of treatment
of DW1 and within a few months of 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
Scientific Encyclopaedia (3rd Edition). It is stated,
inter-alia, as follows:
Tuberculosis: A chronic or acute
infectious disease caused by an
invasion of the body by the Bacillus
tuberculosis. It may exist without
causing symptoms (inactive
tuberculosis) or with symptoms (active
tuberculosis). The symptoms of
tuberculosis depend on the organ
involved, the virulence of the strain
of tubercle bacilli and the resistance
of the individual infected. Almost any
organ or tissue of the body may be
attacked by the tuberculosis process,
although the commonest site is the
lungs.
25
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 in spite of good treatment
early in the disease they go on to develop
severe symptoms and widespread, often
fatal, tuberculosis. Others are able to
keep a small lesion localized, and in the
course of a year of treatment complete
healing may be accomplished.
The complications of pulmonary
tuberculosis are associated with spread of
the disease to near and distant organs. In
some instances, the pulmonary disease may
b quite minor, and the first manifestation
may occur when urinary tract, or abdominal,
tuberculosis begins to cause symptoms.
The various forms of abdominal tuberculosis
are treated with x-ray and ultra-violet
light as well as the usual general
measures.
The prognosis in tuberculosis depends on
many factors. The type, duration and extent
of disease when treatment is begun, the
resistance of the patient to the tubercle
bacillus are of prime importance. Early
treatment increases the percent of cures
enormously. The importance of continuation
of treatment, usually for a minimum of 2
years, cannot be overestimated. Since
relapses are relatively common even after
apparent cure, restriction of activities
and regular check-up examinations for a
period of years are essential.
26
In the latest edition, the 10th edition of the
same work, we notice the following:
If the disease is left untreated, very
serious complications can occur.
Sometimes patients are hospitalized
during the initial stages of therapy.
The administration of drugs for about
two weeks usually markedly reduces the
ability of the patient to infect others.
Persons with nonpulmonary tuberculosis
are considerably less infectious than
those with the pulmonary form and thus
sometimes can be managed entirely as
outpatients.
The rise of incidence of TB commencing
in the mid 1980s generally is
attributed to two causes, each of
which has had a measurable effect:
1.An increased resistance shown by M.
tuberculosis to the drugs
administered. Current research is
illustrating the veracity of the
cause.
2. xxx xxx xxx
THE FINDINGS BY THE SESSIONS JUDGE.
22. The telephonic call, which is made by PW1 on the
fateful day cannot be treated as First Information
Report and it is just an information given to the
police and the FIR marked in the case is that what he
27
had given after seeing the dead body of his daughter.
The deceased was married to the first appellant on
10.12.2009. She died on 23.01.2011. The death was
within seven years of marriage. The prosecution was
unable to prove that the deceased died due to poison.
From the search in the house of the deceased, no
poisonous substance was found. It is also found 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) it was not proved that this
was only poison. In the viscera also, there is no
poison. Though there was a long gap in sending the
viscera, the appellants could not be blamed for the
same. Though, the deceased died at a very young age
of 28 years, there is a history of tuberculosis before
marriage. He refers to the evidence of the doctors
which we have already referred to and also the
information provided by the first appellant that he
had taken the deceased to the hospital. It was the
duty of the investigating officer to record the
statements of the last treating doctor. It cannot be
said that deceased died due to poison. No injury was
28
found on the body of the deceased as per the inquest
report and post mortem. The oral evidence adduced by
the prosecution itself ruled out physical cruelty in
connection 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 fact is not clearly proved
and there are many interpretations about the same
asking for such an amount by the accused (first
appellant), after the marriage and when he assured
that he will return the same, it cannot be a demand
for dowry. The Court took the view that all the
witnesses admitted that before the marriage and at the
time of marriage, there was no demand for dowry by the
appellants. Even when she came home, immediately after
the marriage, there was no demand for dowry. The Court
notes the following contradictions in evidence of PW1
and PW2. PW1 has deposed that one month before the
incident, the first appellant and the deceased came to
the house at Mawana. There, the first appellant
demanded Rs. 10 lacs. PW1 expressed inability. But he
pledged ornaments of his wife and gave Rs. 1 lakh.
29
PW2, his son, on the other hand, says that four months
before the date of an incident, the first appellant
and the deceased came to their house at Mawana and
they demanded for Rs. 10 lacs. He pledges the
jewellery of his wife and gave Rs. 1 lakh. PW3 has
developed this theory further and deposed that PW1 had
pledged the jewellery of his daughter-in-law and gave
Rs. 1 lakh to the first appellant. This is not the
version of either PW1 or PW2. On the basis of
contradictions, he finds that there is neither demand
for Rs. 10 lacs by the first appellant nor was Rs. 1
lakh given. The deceased was found doing her B.Ed..
DW3, who is the official of the college, has deposed
about the deceased attending the college and also the
attendance which we have already referred to. It is
admitted that while doing B.Ed., the deceased remained
with her parents as the college was nearby. She
visited her home so many times. There is no report to
the police in regard to the harassment for dowry. As
told by the deceased regarding the taking of Salfas
(poison), it is noted as a serious matter, in which
case, the report should have not been lodged which is
30
admittedly 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 for the release of
the car which had been taken into custody was made by
PW1. This falsified the case of gift set up by the
prosecution. The taking of help for some purposes
would not fall within dowry (this is with respect to
the demand for Rs. 10 lacs). There is ample evidence
to show that the deceased was a patient of Tuberculosis
and also suffering from Eosinophilia and stomach ache.
This may be the cause of her death. It has been found
that this is not a dowry death. There is no charge
under the Dowry Prohibition Act and Section 498A of
the Indian Penal Code and the only charge under Section
304-B not being proved, the appellants were acquitted.
THE FINDINGS BY THE HIGH COURT IN THE IMPUGNED
JUDGMENT.
24. Though at the solemnization of marriage, there is
no discussion of dowry, however, after 2-3 months, the
accused and his family members (appellants) started
demanding dowry. Thereafter, reference is made to
PW8, who deposed that Panchas opined that it was a
31
case of poisoning. The High Court finds that the
evidence of DW1 does not reveal that the deceased was
suffering from Tuberculosis and that she had
Eosinophilia. Referring to the evidence of DW2- Dr.
Mamta Tyagi, the High Court says that the deceased was
only complaining of stomach ache and discharge of white
fluid. The patient has never told the doctor about
her Tuberculosis. The treatment also did not relate
to the Tuberculosis. The doctor has admitted that
Tuberculosis can be cured after six to seven months of
treatment. The High Court, thus, concludes that it is
in evidence of DW1 and DW2 that deceased was not
suffering from Tuberculosis. Thereafter, the High
Court goes through evidence of DW4 and finds that the
doctor had admitted that once the treatment was taken
ten years back for Tuberculosis, there was no question
of recurrence of the disease. The deceased had gone
to her on 02.12.2009 for the postponement of her
menstrual cycle and the marriage took place on
09.12.2009. The deceased has never told the symptoms
of Tuberculosis after 02.12.2009. The High Court finds
as follows:
32
“It is thus, evident from the statements
of DW1 Dr. K.K. Aggarwal, DW2 Dr. Mamta
Tyagi and DW4 Dr. Neera Chandra that
Priyanka was not suffering from
tuberculosis. She was never treated by
them for tuberculosis. DW1 Dr. K.K.
Aggarwal has treated Priyanka for common
ailment. DW2 Dr. Mamta Tyagi has admitted
that the treatment given to Priyanka has
nothing to do with tuberculosis”
25. The deceased was never taken to any hospital.
According to the investigation officer, she was taken
to various hospitals though there is no record. It is
further pointed out that when specific question was
put to the accused under Section 313 CrPC, as to how
the deceased was recovered from the car parked in front
of their house, a simpliciter denial was made.
Thereafter, we may notice paragraph-34:
“There is ample evidence on record that
the accused were demanding dowry from the
deceased. The parents of the deceased
were not in a position to meet the
illegal demand of dowry. It has come in
the FIR that it was the case of
poisoning. PW3 Sohan Singh has noticed
that body has turned blue. PW5 Dr. Ashok
Kumar has admitted that on the opening
of body, internal organs were congested,
which could be due to poisoning. Merely
the fact that poison was not found on the
33
Viscera vide exhibit 55 Ka/4, it cannot
be said that deceased was not
administered poisoning.”
26. Then the High Court refers to the judgment of this
Court in Anant Chintaman Lagu v. State of Bombay1. This
Court therein held that in any case of poison, the
three elements must be established:
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 to the deceased.
Thereafter, there is reference to case law. The
Court then finds as follows:
“(42).In the instant case, the
prosecution has proved the case based on
entirely circumstantial evidence. The
chain is complete from the date of
telephonic call received by PW1 Harendra
Singh from his 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 prove
circumstantial evidence on which the
present case rests.
xxx xxx xxx xxx
1 AIR 1960 SC 500
34
(44). In the present case, the deceased
was in the house of accused at the time
of her death. It was for the accused to
explain satisfactorily the circumstances
under which the victim died on
23.01.2011. 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 and her dead body was
recovered from the rear set of the car
parked in front of their house. It has
also come on record that the husband of
Priyanka-deceased and other family
members were residing in the same house.”
27. With regard to medical opinion, it was found that
the opinion of the doctor cannot affect the value of
deposition of truthful eyewitness. It is found that
the appellants have failed to rebut the presumption
under Section 113B of the Evidence Act.
28. Then the Court finds that the prosecution has
duly proved that the deceased was killed due to cruelty
and harassment for dowry and that it proved the
ingredients of cruelty and harassment in connection
35
with the demand for dowry immediately before the death.
Thereafter, we may notice:
“(60).The dead body of Priyanka was
recovered from the rear seat 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 body of Priyanka was lying
in the car. The accused have not
explained the circumstance why the dead
body was lying in the car, even, in the
statement recorded under Section 313 of
Cr.P.C.
(61). Learned Trial Judge has overlooked
this very vital fact that the dead body
of Priyanka was recovered from the rear
seat of the car and to which no
explanation whatsoever has been given by
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 do
not inspire confidence. They have issued
false certificates to save the accused.
Priyanka-deceased was never suffering
from tuberculosis. This tendency on the
part of private practitioners to issue
false certificate is required to be
curbed.”
(Emphasis supplied)
36
29. On this basis, the appellants were found guilty
under Section 304-B read with Section 498A and Sections
3 and 4 of the Dowry Prohibition Act. Thereafter, by
exercising power under Section 362 of the CrPC and
noticing that there is an error in that the appellants
were also wrongly convicted under Section 498A of IPC
and Sections 3 and 4 of Dowry Prohibition Act. The
conviction thereunder was ordered to be deleted.
Thereafter, the appellants were sentenced to undergo
imprisonment for life under Section 304-B of IPC.
30. We have heard learned senior counsel for the
appellants, Shri Siddharth Dave, Shri Krishnam Mishra,
learned counsel for the first respondent-State and
Shri Sanjay Kumar Dubey, learned counsel for
PW1(father of the deceased) and the appellant before
the High Court.
31. Learned senior counsel for the appellants
submitted that there is absolutely no basis for the
High Court to reverse the judgment of acquittal
rendered by the learned Sessions Judge, overlooking
37
the well-settled principles in regard to the approach
to be made by the Appellate Court, when there is an
acquittal by the Trial Court. Apart from initial
presumption, it is elementary that the acquittal of
the accused by the Trial Court completely reinforces
the presumption and there is a double presumption of
innocence. The Appellate Court will interfere with
the acquittal only if the judgment of the Trial Court
is perverse, he points out. He would urge that the
deceased was indeed taken to the doctors when her
condition was noticed. He submitted that for a
conviction under Section 304B, the fundamental basis
is to be the unnatural death of the woman within seven
years of her marriage among other elements. But in
this case, the prosecution has not proved that the
death was unnatural. She was taking treatment. The
findings of the Sessions Judge to the effect that there
was demand for dowry, could not be acted upon, has
been jettisoned without any basis. The deceased
weighed just 39 kilograms, an unerring pointer to both
her illness and her health condition, in 2010, a few
months before her death. No poisonous substance was
38
found in viscera, he poses the question as to on what
basis, the High Court could have entered the verdict
of guilt after reversing the judgment of the learned
Sessions Judge. No poison was found in the house of
the appellants. There were no marks of any injury as
already noted. There is no demand for dowry right
from the beginning. The first appellant had informed
the Police. They had not run away. Reliance is placed
on the evidence of PW11-I.O. besides the evidence of
PW1. There was no basis to draw the inference which is
drawn on the basis that the body was found in the rear
portion of the car. He drew support from the Judgment
of this Court in Chhotan Sao and another v. State of
Bihar2.
32. Per contra, the learned counsel for the State
pointed out that there was demand for dowry and
harassment after few months of marriage. Even in the
questioning by the Court under Section 313, the denial
by the first appellant would show that he was complicit
in the crime. The finding of the dead body in the
rear of the car in front of the house, is emphasized.
2(2014) 4 SCC 54
39
33. Shri Sanjay Kumar Dubey, appearing for respondent
No.2, sought to support the impugned judgment. He
referred to the entry in the General Diary indicating
that the phone call was made on 23.01.2011 pointing to
the events showing the complaint voiced over phone by
the deceased. He pointed out the affidavit by appellant
No.2, wherein he states that the deceased died of
poisoning. This suffices to show that the death was
unnatural attracting Section 304B. The alleged
contradictions in the deposition of prosecution
witness is also sought to be explained.
The learned Senior Counsel for the appellant would
point out that no reliance should be placed on
statement in the Affidavit of the second appellant in
the Bail Application about the death being a suicide.
This is not part of the evidence.
ANALYSIS
34. Though, since long, the law declaring the
narrowing of appellate court’s jurisdiction in regard
40
to scope of interference with a verdict of acquittal,
is settled, we may only refer to one decision. In
Ghurey Lal v. State of Uttar Pradesh3, after an
exhaustive review of case law, this Court laid down,
as follows:
“69. The following principles
emerge from the cases above:
1. The appellate court may
review the evidence in appeals
against acquittal under Sections
378 and 386 of the Criminal
Procedure Code, 1973. Its power
of reviewing evidence is wide and
the appellate court can
reappreciate the entire evidence
on record. It can review the
trial court's conclusion with
respect to both facts and law.
2. The accused is presumed
innocent until proven guilty. The
accused possessed this
presumption when he was before
the trial court. The trial
court's acquittal bolsters the
presumption that he is innocent.
3. Due or proper weight and
consideration must be given to
the trial court's decision. This
is especially true when a
witness' credibility is at issue.
It is not enough for the High
3 (2008) 10 SCC 450
41
Court to take a different view of
the evidence. There must also be
substantial and compelling
reasons for holding that the
trial court was wrong.
70. In light of the above, the
High Court and other appellate
courts should follow the wellsettled principles crystallised by
number of judgments if it is going
to overrule or otherwise disturb
the trial court's acquittal:
1. The appellate court may only
overrule or otherwise disturb the
trial court's acquittal if it has
“very substantial and compelling
reasons” for doing so.
A number of instances arise in
which the appellate court would
have “very substantial and
compelling reasons” to discard
the trial court's decision. “Very
substantial and compelling
reasons” exist when:
(i) The trial court's
conclusion with regard to the
facts is palpably wrong;
(ii) The trial court's
decision was based on an
erroneous view of law;
(iii) The trial court's
judgment is likely to result in
“grave miscarriage of
justice”;
(iv) The entire approach of
the trial court in dealing with
42
the evidence was patently
illegal;
(v) The trial court's
judgment was manifestly unjust
and unreasonable;
(vi) The trial court has
ignored the evidence or misread
the material evidence or has
ignored material documents
like dying declarations/report
of the ballistic expert, etc.
(vii) This list is intended
to be illustrative, not
exhaustive.
2. The appellate court must always
give proper weight and consideration
to the findings of the trial court.
3. If two reasonable views can be
reached—one that leads to acquittal,
the other to conviction—the High
Courts/appellate courts must rule in
favour of the accused.”
35. It is well to remember that while the search of
the truth and adjudicatory function of the judiciary
are not strange bedfellows, these self-imposed
limitations on the pursuit are based on the nature of
jurisdiction. Every deviation from such limits could
indeed result in grave injustice requiring correction
to prevent miscarriage of justice. Excess of
43
jurisdiction can have very serious repercussions,
particularly when, what is involved is, personal
liberty, which is inevitably at stake in a criminal
trial.
36. We have set out the findings of the Trial Court.
The charge is one 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 wife must have been at the receiving end of
cruelty or harassment, on account of demand for dowry.
It is described as dowry death. The relatives
concerned, including husband, become liable. Section
113B of the Evidence Act comes to the rescue of the
prosecutor by providing for a presumption that a person
has caused dowry death if, it is shown that soon before
her death, she was subjected by such person for cruelty
or harassment for or in connection with demand for
dowry.
37. In this case, as regards the demand for Rs.10
lakhs by the first appellant, there are three striking
features. PW1, the complainant and the father of the
44
deceased, deposes that about one month before the
death, the deceased and the first appellant came to
him at Mawana and first appellant sought Rs.10 lakhs
from him and that they will return the money. He being
moved by the tears in his daughter’s eyes, pawned his
late wife’s jewellery, raised one lakh and gave to the
appellant and his daughter. However, PW2, his son,
deposed that it was four months before the death that
the deceased and the first appellant came to their
house at Mawana, asked for Rs.10 lakhs. He sets up the
version that he raised one lakh by pawning his wife’s
ornaments. Thus, the versions of PW1 and PW2 both as
regards time of demand and the manner of raising Rupees
One lakh, appear to be clearly contradictory. What is
more significant is the further contradiction
introduced by PW3 who is the brother-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
of the deceased are demanding Rs.10 lakhs for the
construction of the house for the purpose of rent. PW1
showed his inability. It is important to notice what
PW3 next says:
45
“Thereafter, the in-laws of Priyanka (the
deceased) started torturing her badly”.
38. What follows next is the last nail in the coffin
of the prosecution version, which completely falsifies
what both PW1 and PW2 has deposed. PW3 states that
PW1, after pawning ornaments of his son’s wife, paid
Rs.1 lakh to the first appellant. The learned Sessions
Judge entered findings noting these contradictory
versions. He also finds that if the father-in-law is
approached for a sum of money after the marriage, on
the basis that it will be returned back, it may not
amount to a dowry demand.
39. It is to be noted that PW1 has admitted that there
was no demand for dowry before or at the time of
marriage. The marriage took place 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, the
learned Sessions Judge did not find material reliable.
It is to be noted that the version about the demand
for Rs.10 lakhs is found wholly unacceptable. The Trial
46
Court has the advantage of watching the demeanor of
the witnesses.
40. The I.Os- PW10 and PW11, have not made any enquiry
from the neighbours of the appellants. The deceased
was attending the B.Ed course as seen from the evidence
of DW3. No complaint, whatsoever was given by PW1 to
PW3 to any authority. We do not see any material except
the testimony of PW1 to PW3 and PW6, which did not, at
any rate, inspire the confidence of the Trial Court.
It does not also commend itself to us either.
41. PW6, aunt of the deceased also has given evidence
in support of the prosecution. The forensic report is
dated 28.3.2014. It states that metallic poisons,
Ethyl Alcohol, Methyl Alcohol, cyanide, phosphides,
Alkaloids, Barbiyurates, Tranquilizers and Pesticides
were not detected in the exhibits.
DID THE APPELLANTS RUN AWAY?
42. The incident took place on 23.01.2011. PW1
deposed that on the said date the Police had taken in
their custody the Santro car before PW1 because in the
47
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 in cross examination as to
the oral evidence of which witness was available
regarding unnatural death, that at the time of death
all the accused were with her. Therefore, it was not
possible to record the oral evidence of the appellants.
44. Further the evidence of PW9, police officer, is
to the effect that 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
against the appellants.
46. PW1 has deposed that the Police had already
reached the spot 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
the general diary suggesting that PW1 had called from
his mobile number that his daughter informed that in-
48
laws have killed her by giving poison and 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 before this Court in the petition to
produce additional documents. It is not marked as such.
But when PW9 is examined, he refers to the carbon copy
of the Report No.28. However, he says he was not
present at the Police Station at the time of Report.
We do not see anything turning on it at any rate to
advance the prosecution version.
THE LAW ABOUT POISONING: APPLICATION TO FACTS
47. The High Court refers to the oft quoted decision
of this Court in Anant Chintaman Lagu v. State of
Bombay4. In the said case, three tests 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
49
48. In fact, in the said case wherein the conviction
of the appellant was 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 the
deceased was taken to the hospital also, his presence
was noted. The deceased was left behind gold ornaments
and valuables by her late husband. Although there was
no scientific evidence to show poisoning, the court
relied upon a number of circumstances which in the
main was conduct of the appellant which has been
detailed in paragraph-74 of the judgment pointing to
poisoning of the deceased by the appellant. In this
context we notice the following statement of the law
contained in paragraphs-59 and 68.
“59. The cases of this Court which
were decided, proceeded upon their
own facts, and though the three
propositions must be kept in mind
always, the sufficiency of the
evidence, direct or circumstantial,
to establish murder by poisoning will
depend on the facts of each case. If
the evidence in a particular case
does of not justify the inference
that death is the result of poisoning
because of the failure of the
prosecution to prove the fact
satisfactorily, either directly or by
circumstantial evidence, then the
50
benefit of the doubt will have to be
given to the accused person. But if
circumstantial evidence, in the
absence of direct proof of the three
elements, is so decisive that the
court can unhesitatingly hold that
death was a result of administration
of poison (though not detected) and
that the poison must have been
administered by the accused person,
then the conviction can be rested on
it.
xxx xxx xxx xxx
68. Circumstantial evidence in this
context means a combination of facts
creating a net-work through which
there is no escape for the accused,
because the facts taken as a whole do
not admit of any inference but of his
guilt. To rely upon the findings of
the medical man who conducted the
post-mortem and of the chemical
analyser as decisive of the matter is
to render the other evidence entirely
fruitless. While the circumstances
often speak with unerring certainty,
the autopsy and the chemical analysis
taken by themselves may be most
misleading. No doubt, due weight must
be given to the negative findings at
such examinations. But, bearing in
mind the difficult task which the man
of medicine performs and the
limitations under which he works, his
failure should not be taken as the
end of the case, for on good and
probative circumstances, an
irresistible inference of guilt can
be drawn.”
51
49. Next, we may notice the judgment of this Court
rendered by a Bench of three learned judges in Sharad
Birdhichand Sarda v. State of Maharashtra5. We notice
only paragraph 165. The same reads as follows:
“165. So far as this matter is
concerned, in such cases the court
must carefully scan the evidence and
determine the four important
circumstances which alone can justify
a conviction:
(1) there is a clear motive for an
accused to administer poison to
the deceased,
(2) that the deceased died of poison
said to have been administered,
(3) that the accused had the poison
in his possession,
(4) that he had an opportunity to
administer the poison to the
deceased.”
50. In this case, there is no evidence at all that
the deceased died of poisoning. Secondly, there is no
evidence to show that the appellants had poison in
their possession. Thus, even proceeding on the basis
that being the wife and daughter-in-law who was living
5
(1984) 4 SCC 116
52
with them that the appellants may have had the
opportunity to administer poison, the other two tests
are not satisfied. The police did not recover any
poison from the appellants or their house. As already
noticed the FSL report categorically rules out the
presence of any poison. As regards the appellants not
being found with any poison, we no doubt notice the
view taken by a Bench of two learned judges and
reported in Bhupinder Singh v. State of Punjab6. The
same reads as under:
“24. From the foregoing cases, it will
be seen that in poison murder cases,
the accused was not acquitted solely
on the failure of the prosecution to
establish one or the other requirement
which this Court has laid down
in Dharambir Singh case [ Criminal
Appeal No. 98 of 1958, decided on 4-
11-1958 (SC)] . We do not also find
any case where the accused was
acquitted solely on the ground that
the prosecution has failed to prove
that the accused had the poison in his
possession. The accused in all the
said cases came to be acquitted by
taking into consideration the totality
of the circumstances including
6
(1988) 3 SCC 513
53
insufficient motive, weakness in the
chain of circumstantial evidence and
likelihood of the deceased committing
suicide.
25. We do not consider that there
should be acquittal or the failure of
the prosecution to prove the possession
of poison with the accused. Murder by
poison is invariably committed under
the cover and cloak of secrecy. Nobody
will administer poison to another in
the presence of others. The person who
administers poison to another in
secrecy will not keep a portion of it
for the investigating officer to come
and collect it. The person who commits
such murder would naturally take care
to eliminate and destroy the evidence
against him. In such cases, it would be
impossible for the prosecution to prove
possession of poison with the accused.
The prosecution may, however, establish
other circumstances consistent only
with the hypothesis of the guilt of the
accused. The court then would not be
justified in acquitting the accused on
the ground that the prosecution has
failed to prove possession of the
poison with the accused.
26. The poison murder cases are not to
be put outside the rule of
circumstantial evidence. There may be
obvious very many facts and
circumstances out of which the court
may be justified in drawing permissible
inference that the accused was in
54
possession of the poison in question.
There may be very many facts and
circumstances proved against the
accused which may call for tacit
assumption of the factum of possession
of poison with the accused. The
insistence on proof of possession of
poison with the accused invariably in
every case is neither desirable nor
practicable. It would mean to introduce
an extraneous ingredient 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
better chance of being exempted from
sanctions than in other kinds of
murders. Murder by poisoning is run
like any other murder. In cases where
dependence is wholly on circumstantial
evidence, and direct evidence not being
available, the court can legitimately
draw from the circumstances an
inference on any matter one way or the
other.”
51. We may notice that referring to the view taken in
Bhupinder Singh v. State of Punjab (supra) as above,
another Bench of two learned judges of this Court in
Jaipal v. State of Haryana7 and after setting out the
4 circumstances which were laid down by this court in
7
(2003) 1 SCC 169
55
Sharad Birdhichand Sarda v. State of Maharashtra
(supra) this Court held as follows:
“28. We may hasten to add that the
availability of the third piece of
evidence as necessary to establish the
case of murder by poisoning has been
doubted in some of the later
decisions. To wit, in Bhupinder
Singh v. State of Punjab [(1988) 3 SCC
513 : 1988 SCC (Cri) 694 : AIR 1988 SC
1011] it has been held that there may
be very many facts and circumstances
proved against the accused which may
call for tacit assumption of the
factum of possession of poison with
the accused, and therefore, the
insistence on proof of presence of
poison with the accused is neither
desirable nor practicable. Anant
Chintaman Lagu v. State of
Bombay [AIR 1960 SC 500 : 1960 Cri LJ
682] is a case peculiar to its own
facts and this Court by a majority of
2:1 held that even in the absence of
a decisive finding as to the exact
cause of death and on a finding that
the death of the victim was the result
of the administration of some
unrecognized poison or drug which
would act as a poison, a finding as to
guilt can be arrived at based on
circumstantial evidence. It was a case
of extreme cunning and premeditation.
The conduct of the accused after the
death of his wife was unusual and
abnormal and was so knit together as
to make a network of circumstances
pointing only to his guilt. Still the
majority opinion observed: (AIR p.
523, para 68)
56
“68. Circumstantial evidence in this
context means a combination of facts
creating a network through which
there is no escape for the accused,
because the facts taken as a whole
do not admit of any inference but of
his guilt.”
In the present case we do not find any
abnormality in the conduct of the
accused. He is an educated person, a
teacher. If only he had administered
any poison to the deceased he would
not have gone to the private clinic
and government hospital where
poisoning as a cause of death would be
immediately known or at least strongly
suspected by the doctor attending on
the victim. Rather the accused wanted
to be in the company of the deceased
and to have her treated. He attended
on her at Navjeevan Hospital and took
her to Civil Hospital.”
52. This court also explained the view taken in Anant
Chintaman Lagu v. State of Bombay8. Again, in
Shanmughan vs. State of Kerala9 the decision in AIR
Bhupinder Singh v. State of Punjab (supra) came to be
noticed. It was a case where death by poisoning was
not in dispute. The only dispute was whether it was
homicidal or suicidal. The court took note of the
injuries which were found on the deceased. The victim
8 AIR 1960 SC 116
9 AIR 2012 SC 1142
57
had died of cyanide poison which is a highly corrosive
poison. The evidence of PW7 in the said case was that
the injuries could be due to forcible administration
of the poison. The accused was specifically questioned
about the injuries for which he had no answer. It was
in these circumstances that the court after referring
to paragraph-25 of Bhupinder Singh v. State of
Punjab (supra) found that it was a case of poisoning.
As far as the facts of the present case is concerned,
we have noticed that there is absolutely no evidence
relating to poison in relation to the deceased. Were
it a case of forcible poisoning, by using a corrosive
poison, there would been some marks. There are none.
If it were forcible poisoning by using any kind of
poison, there would 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 phone call from his
daughter who, asked him to reach Haridwar, otherwise
these people will kill her. Also, in the charge-sheet
the prosecution proposed to prove its case based apart
from the oral evidence the material recovered from the
spot containing the vomiting of the deceased, which
58
was cleaned by the accused. However, as noticed by the
Learned Sessions Judge, the prosecution was unable to
prove the presence of poison in the cleaning material
referred to as the wiper.
53. We find ourselves unable to subscribe to
paragraph-42 in the impugned judgment that the chain
is complete from the time of the telephone call
received by PW1 from his daughter till the recovery of
the body in the Santro car. We are unable to appreciate
the circumstances as unfolded on the morning of
23.1.2011 which allegedly started from the phone call
of the daughter of PW1 as thereafter the only other
circumstance, is the recovery of the body in the rear
seat of the Santro car. The existence of any
circumstances, as would fulfil the requirement, 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 impugned judgment,
the High Court refers to the FIR to notice that it is
a case of poisoning. It further refers to the evidence
of PW5-Medical Doctor that he admitted that on opening
59
the body, the internal organs were congested, which
could be due to poisoning. In this regard it may be
noticed that PW5 has stated that he was not definite
about the cause of death. He has further stated that
on account of food poisoning the organs may be
congested. Even more importantly, the doctor has
opined that the death could have taken place due to
Tuberculosis as in the case of Tuberculosis, the
internal organs can be congested. The High 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 the doctor has
referred to is food poisoning. The High Court finds
that merely because poison is not found, it cannot be
said that deceased was not administered poison.
54. At this juncture, though if in a given case,
there is clinching evidence which establishes
poisoning, it may be true that absence of poison in
the viscera may not be decisive. That is not the
60
position in the facts of this case. It is true that
the division bench of the High Court also refers to
Modi’s Medical Jurisprudence and Toxicology wherein
the author has stated as follows:
“It is possible that a person may die
from the effects of a poison and yet,
none may be found in the body after
death if the whole of the poison has
disappeared from the lungs by
evaporation, or has been removed from
the stomach and intestines by
vomiting and purging, and after
absorption has been detoxified,
conjugated and eliminated from the
system by the kidneys and other
channels. Certain vegetable poisons
may not be detected in the viscera,
as they have no reliable tests, while
some organic poisons, especially the
alkaloids and glucosides, may be
oxidation during life or by
putrefaction after death, be split up
into other substances which have no
characteristic reactions sufficient
for their identification.
Modi saw cases in which there were
definite signs of death from
poisoning, although the Chemical
Examiner failed to detect the poison
in the viscera preserved for chemical
analysis. It has, therefore, been
wisely held by Christison that in
cases where a poison has not been
detected on chemical analysis, the
61
judge, in deciding a charge of
poisoning, should weigh in evidence
the symptoms, postmortem appearances
and the moral evidence.”
55. There are no symptoms, which point to poisoning.
Nothing in the post mortem appearance is brought out
to show poisoning. The evidence of witnesses do not
establish poisoning.
56. It is to be noticed that there is no evidence in
this case which could have persuaded the High Court to
conclude that there were compelling reasons to
interfere with the acquittal by the High Court. The
appreciation of the evidence of the witnesses by the
trial court unless it is found to be a case of
misreading of the evidence or are based on an erroneous
understanding of the law, could not have been
interfered with. When the High Court records that there
is ample evidence on record that the accused were
demanding dowry from the deceased, it is done without
noticing the features in regard to the demand for Rs.10
lakhs. As far as the other evidence is concerned, the
evidence has not been accepted by the trial court as
inspiring confidence. At best it could be said that
62
there were two views possible. Even if that were so,
it did not furnish a ground to the High Court to
overturn the judgment of the trial court containing
the findings which we have referred to. We do not
think that this is a case where the finding of the
trial case could be characterised as perverse.
57. There is a contention raised by the second
respondent that no reliance can be placed on the
deposition of DW2 and DW4 that the deceased told these
doctors that she was suffering from Tuberculosis as it
was hearsay.
58. No such contention is raised before the trial
court or before the High Court. Therefore, we need
not really deal with it. However, we may only notice
the view taken by the Privy Council in Subramanian vs.
Public Prosecutor10. In the said decision the
appellant was tried for being in possession of
ammunition illegally. His defence was that he had
10 1956 (1) WLR 965
63
been captured by terrorists and he was put in duress.
Evidence of the conversation by the terrorists was
shut out by the court on the basis that it constituted
hearsay. The Privy Council did not approve of the
said view. It laid down as follows:
“In ruling out peremptorily the
evidence of conversation between the
terrorists and the appellant the trial
judge was in error. Evidence of a
statement made to a witness by a
person who is not himself called as a
witness may or may no be hearsay. It
is hearsay and inadmissible when the
object of the evidence is to establish
the truth of what is contained in the
statement. It is not hearsay and is
admissible when it is proposed to
establish by the evidence, not the
truth of the statement, but the fact
that it was made. The fact that the
statement was made, quite apart from
its truth, is frequently relevant in
considering the mental state and
conduct thereafter of the witness or
of some other person in whose presence
the statement was made. In the case
before their Lordships statements
could 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
instant death if he failed to conform
to their wishes.
64
59. Even if we were to follow the said principles the
statement attributed 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 having stated
so even if it is not admissible for the truth of the
statement. That apart, the action of the Medical
Practitioner in acting upon it, by way of prescribing
medicines and ordering blood test and x-ray would
appear to be relevant and admissible. The appellants
in their questioning under Section 313 CrPC, set up
the case of TB. We need not probe the matter further
including the aspect as to whether the matter may be
relevant under 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) and reported in (2014) 4 SCC
54. This was a case in fact where except for the cause
of death all other facts necessary to prove the offence
under Section 304B of the IPC stood proved. This Court,
however, proceeded to hold as follows:
65
12. No doubt the prosecution has adduced
sufficient evidence to establish all
other facts necessary to prove the
offence under Section 304-B IPC except
the cause of death. As seen from the
trial court judgment there are no
injuries on the body of the deceased.
Even according to the first information
report the death was caused due to
poisoning which the deceased was
compelled to consume. In such
circumstances, the non-examination of
the doctor who conducted the post-mortem
coupled with the failure to produce the
forensic laboratory report regarding
the examination of viscera of the
deceased leaves a gaping hole in the
case of the prosecution regarding the
nature of the death of Babita Devi.
13. The learned counsel for the State
placed reliance on the decision of 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 doubt
this Court held that the production of
chemical examination report is not
mandatory. The Court held as follows:
(SCC p. 112, para 23).
“23. These decisions clearly bring out
that a chemical examination of the
viscera is not mandatory in every case
of a dowry death; even when a viscera
66
report is sought for, its absence is not
necessarily fatal to the case of the
prosecution when an unnatural death
punishable under Section 304-B IPC or
under Section 306 IPC takes place; in a
case of an unnatural death inviting
Section 304-B IPC (read with the
presumption under Section 113-B of the
Evidence Act, 1872) or Section 306 IPC
(read with the presumption under Section
113-A of the Evidence Act, 1872) as long
as there is evidence of poisoning,
identification of the poison may not be
absolutely necessary.”
On the facts of that case, this Court
reached to the conclusion that there was
sufficient evidence on record to come
to the conclusion that the death was due
to poisoning.
61. We are of the view that second respondent should
not be permitted to draw support from the statement in
the Affidavit of the second appellant accompanying the
Bail Application of his wife to the effect that the
deceased herself took poison. Quite clearly, this is
not evidence in the trial, as such.
62. As already noticed, in this case, apart from the
fact that prosecution has not been able to establish
67
that the cause of death was unnatural, the case setup
about the demand of Rs. 10 lakhs by accused appears to
be riddled with irreconcilable contradictions. Neither
the post-mortem nor the Forensic Lab Report shows any
poisoning. No poison has been recovered at all from
the house of the appellants. There are no marks of
injury at all on the deceased. Even the
material (wiper) recovered, according to prosecution,
and which allegedly was used to clean vomit of the
deceased, did not disclose any poison. The statement
of Medical Practitioner (DW2) that the deceased was
having weight of 39 kilograms and weight below normal
as on 11.05.2010 cannot be ignored. Equally, the
evidence of DW4 that the Doctor has prescribed medicine
for Anaemia because the deceased had told about
Tuberculosis earlier also, cannot be ignored. Evidence
as to advice to the deceased in 2007 to undergo blood
test and the x-ray, to confirm whether TB has totally
cured or not and that the patient did not bring any
x-ray or blood report, cannot be overlooked.
Section 113B of Evidence Act may not apply in this
case for the reason that in order that Section 113B
68
applies, there must be evidence that soon before the
death of the person, which proves that the person, who
is alleged to have caused death, treated the deceased
with cruelty or harassed her or in connection with a
demand of dowry. We have noticed the state of the
evidence in this regard. We are also of the view that
there was no justification at all for the High Court,
in the facts of this case, to have overturned acquittal
by the Trial Court.
63. The High Court, in our view, without any
justification, reversed the acquittal. The High Court
has sought to draw support from the circumstance that
the dead body of the deceased was recovered from the
car. The first appellant has a case that he has taken
the deceased to certain hospitals. There is also a
case that they themselves notified the Police. We find
it certainly not a circumstance so as to draw an
inference that the deceased died an unnatural death or
that the appellants administered poison to her. We
would think that the High Court has clearly erred in
interfering with the acquittal of the appellants by
69
the High Court. The appeals are only to be allowed.
We thus allow the Appeals. The impugned judgment of
the High Court is set aside and the judgment of the
Sessions Judge is restored. The first appellant who is
in custody shall be released unless his custody is
required in any other case. As the appellants 2 and
3 are already on bail, their bail bonds shall stand
discharged.
.....................J.
(ROHINTON FALI NARIMAN)
.....................J.
(K.M. JOSEPH)
.....................J.
(ANIRUDDHA BOSE)
NEW DELHI;
DECEMBER 02, 2020.
