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Sandeep Kumar vs The State Of Uttarakhand on 2 December, 2020

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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.

Signature Not Verified

Digitally signed by
Nidhi Ahuja
Date: 2020.12.02
17:29:05 IST
Reason:

1

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

2
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
3
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

4
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 1st appellant apologised. They

all live together in one house. Again, about one

month ago, the first appellant came to his house

5
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

6
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

7
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

8
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.

9
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 in-

laws took place. While sitting in the car during the

4-5 hours of journey, they talked only with sister

10
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

11
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

12
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

13
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).

14
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.

15
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

16
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

17
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),

18
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

19
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,

20
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.

21

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.

22

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

23
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.

24

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.

25

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
26
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

27
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.

28
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

29
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

30
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:

31
“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

32
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
33

(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

34
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)

35

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

36
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

37
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
38

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

39
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
40
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 well-

settled 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
41
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

42
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

43
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:

44
“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

45
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

46
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-
47
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
48

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
49
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.”

50

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

51
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

52
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

53
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

54
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)

55
“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
56
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

57
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

58
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

59
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

60
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
61
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

62
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.

63

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:

64

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

65
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

66
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

67
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

68
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.

69

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