Supreme Court of India
SANDEEP KUMAR AND OTHERSversusSTATE OF UTTARAKHAND AND ANOTHER
- Citation
- 2020 INSC 671
- Decided
- 2 December 2020
- Disposal
- Appeal(s) allowed
- Bench
- R F NARIMAN
Holding
The Supreme Court held that the prosecution failed to establish an unnatural death or the requisite dowry harassment, so the presumption under Section 113B could not be invoked and the acquittal of the appellants stands.
Summary
The appellants (husband, father‑in‑law and mother‑in‑law) were convicted under Section 304B IPC for dowry death based on a claim that the deceased was poisoned after demanding Rs 10 lakhs. The Supreme Court examined whether the prosecution proved the essential ingredients of a dowry death – marriage within seven years, an unnatural death and cruelty/harassment for dowry – and whether the presumption under Section 113B Evidence Act could be invoked. It found no reliable evidence of a dowry demand, no proof that the death was caused by poison, and no medical evidence establishing an unnatural death; the forensic report ruled out poison. Consequently, the Court held that the High Court had no basis to overturn the trial court’s acquittal and restored the Sessions Court judgment, acquitting the appellants. The appeals were allowed.
Issues considered
- The prosecution must prove the ingredients of Section 304B IPC: marriage within seven years, unnatural death, and cruelty/harassment for dowry.
- Whether the presumption under Section 113B of the Evidence Act applies in the absence of proof of cruelty or harassment immediately before death.
- Whether the death was caused by poisoning and, if so, whether the accused possessed the poison and had the opportunity to administer it.
- Whether the alleged demand for Rs 10 lakhs constitutes a dowry demand under the law.
- Whether an appellate court can set aside an acquittal without "very substantial and compelling reasons".
Legislation cited
- Code of Criminal Procedure, 1973s. 313, s. 378, s. 386
- Indian Evidence Act, 1872s. 113B
- Indian Penal Code, 1860s. 304B
Subjects
dowry deathSection 304Bpresumption under Section 113Bpoisoningcircumstantial evidenceappellate review of acquittalforensic reportunusual deathevidence of dowry demand
Judgment
848 [2020]REPORTS
SUPREME COURT 13 S.C.R. 848 [2020] 13 S.C.R.
A SANDEEP KUMAR AND OTHERS
v.
STATE OF UTTARAKHAND AND ANOTHER
(Criminal Appeal Nos. 1512-1513 of 2017)
B DECEMBER 02, 2020
[R. F. NARIMAN, K.M. JOSEPH AND
ANIRUDDHA BOSE, JJ.]
Penal Code, 1860 – s.304B – Dowry Death – Poisoning
C alleged – Appellants (husband, father-in-law and mother-in-law)
acquitted by trial court – Acquittal set aside by High Court – On
appeal, held: PW1 (father of the victim) admitted that there was no
demand for dowry before or at the time of marriage – Version about
the demand for Rs.10 lakhs by first appellant (husband) is wholly
unacceptable – Further, there is no evidence that the deceased died
D of poisoning – Police did not recover any poison from the appellants
or their house – FSL report categorically rules out the presence of
any poison – Prosecution not able to establish that the cause of
death was unnatural – Appellants in their questioning u/s.313 set
up the case of Tuberculosis (TB) – PW5-Doctor opined that the
E death could have taken place due to TB, leading to congestion of
internal organs – s.113B not applicable in the present case –
Impugned judgment set aside while that of Sessions Judge is restored
– Evidence Act, 1872 – s.113B – Code of Criminal Procedure, 1973
– ss.378, 386, 313.
F Penal Code, 1860 – s.304B – Dowry Death – Ingredients –
Held: A marriage performed within seven years before the death of
wife; 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.
Evidence Act, 1872 – s.113B – Applicability of – Discussed.
G
Allowing the appeals, the Court
HELD: 1. ANALYSIS
The charge is one under Section 304B. The ingredients of
the offence are well-settled. A marriage performed within seven
H
848
SANDEEP KUMAR AND OTHERS v. STATE OF 849
UTTARAKHAND AND ANOTHER
years before the death of the wife. The death must be unnatural. A
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
B
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.
PW1 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 C
have spoken about harassment on account of dowry, the Sessions
Judge did not find material reliable. The version about the demand
for Rs.10 lakhs is found wholly unacceptable. [Paras 36, 39][873-
D-F; 874-E]
2.1 THE LAW ABOUT POISONING: APPLICATION TO D
FACTS
In Anant Chintaman Lagu v. State of Bombay, 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 E
opportunity to administer the poison. 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 with them that the
appellants may have had the opportunity to administer poison, F
the other two tests are not satisfied. The police did not recover
any poison from the appellants or their house. The FSL report
categorically rules out the presence of any poison. There is
absolutely no evidence relating to poison in relation to the
deceased. Were it a case of forcible poisoning, by using a G
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,
H
850 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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 was cleaned by the accused.
However, as noticed by the Sessions Judge, the prosecution was
unable to prove the presence of poison in the cleaning material
B
referred to as the wiper. [Paras 47, 50 and 52][875-G-H; 877-D-
E; 880-D-F]
2.2 This Court finds itself unable to subscribe to paragraph-
42 in the impugned judgment that the chain is complete from the
time of the telephone call received by PW1 from his daughter till
C the recovery of the body in the Santro car. This Court is 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
D 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 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 the body,
E 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
F 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
G 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. 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
H
SANDEEP KUMAR AND OTHERS v. STATE OF 851
UTTARAKHAND AND ANOTHER
may not be decisive. That is not the position in the facts of this A
case. 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. [Paras 53-
55][880-F-H; 881-A-E; 882-B]
Bhupinder Singh v. State of Punjab (1988) 3 SCC B
513:[1988] 3 SCR 409 – relied on.
Anant Chintaman Lagu v. State of Bombay AIR 1960
SC 500: [1960] SCR 460 – held inapplicable.
Shanmughan vs. State of Kerala AIR 2012 SC
1142:[ 2012] 1 SCR 411 – distinguished. C
Modi’s Medical Jurisprudence and Toxicology –
referred to.
2.3 There is no evidence in this case which could have
persuaded the High Court to conclude that there were compelling D
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 E
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 there were two views possible. Even if that were so, F
it did not furnish a ground to the High Court to overturn the
judgment of the trial court containing the findings which have
been referred to by this Court. This is not a case where the finding
of the trial case could be characterised as perverse. [Para 56][882-
B-E]
G
2.4 There is a contention raised by the second respondent
that no reliance can be placed on the deposition of DW2 (a
Gynaecologist) and DW4 (a Medical Practitioner) that the
deceased told these doctors that she was suffering from
H
852 SUPREME COURT REPORTS [2020] 13 S.C.R.
A Tuberculosis as it was hearsay. No such contention is raised
before the trial court or before the High Court. Therefore, this
Court need not really deal with it. 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.
B
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. The matter need not be probed further including the aspect
C as to whether the matter may be relevant under Section 32 of the
Evidence Act. 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. As already noticed, in this
D
case, apart from the fact that 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
E 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
F
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
G 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
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SANDEEP KUMAR AND OTHERS v. STATE OF 853
UTTARAKHAND AND ANOTHER
the death of the person, which proves that the person, who is A
alleged to have caused death, treated the deceased with cruelty
or harassed her or in connection with a demand of dowry. The
state of the evidence in this regard has been noticed. There was
no justification at all for the High Court, in the facts of this case,
to have overturned acquittal by the Trial Court. [Paras 57-59, 61
B
and 62][882-E-F; 883-D-E; 884-F-H; 885-A-D]
2.5 The High Court 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 C
themselves notified the Police. It is 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. The
impugned judgment of the High Court is set aside and the
judgment of the Sessions Judge is restored. [Para 63][885-E-F] D
Chhotan Sao and another v. State of Bihar (2014) 4
SCC 54: [2013] 17 SCR 843 – relied on.
Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC
450 : [2008] 11 SCR 499; Sharad Birdhichand Sarda
v. State of Maharashtra (1984) 4 SCC 116 : [1985] E
1 SCR 88; Jaipal v. State of Haryana (2003) 1 SCC
169 : [2002] 2 Suppl. SCR 714 – referred to.
Subramanian v. Public Prosecutor 1956 (1) WLR 965
– referred to.
F
Case Law Reference
[1960] SCR 460 held inapplicable Para 26
[2013] 17 SCR 843 relied on Para 31
[2008] 11 SCR 499 referred to Para 34
G
[1985] 1 SCR 88 referred to Para 49
[1988] 3 SCR 409 relied on Para 50
H
854 SUPREME COURT REPORTS [2020] 13 S.C.R.
A [2002] 2 Suppl. SCR 714 referred to Para 51
[2012] 1 SCR 411 distinguished Para 52
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1512-1513 of 2017
B From the Judgment and Order dated 14.07.2017 as modified by
order dated 19.07.2017 and 24.07.2017 of the High Court of Uttarakhand
at Nainital in Criminal Appeal No. 61 of 2017.
Siddharth Dave, Sr. Adv., Vivek Gupta, Mrinmay Bhattmewara,
Sanjay Kumar Dubey, Shuchi Singh, Krishna Kant Dubey, Rajiv Ranjan
C Dwivedi, Rakesh Kumar Tewari, Jatinder Kumar Bhatia, Krishnam
Mishara, Advs. for the appearing parties.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
D 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
E imprisonment for life.
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.
F
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:
G
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
H days. On both these days his son-in-law, namely, the first appellant
SANDEEP KUMAR AND OTHERS v. STATE OF 855
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
demanded from him, his sons and sons’ wives a sum of Rupees ten lakhs A
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
B
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 C
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
and was cleaned by the accused, thus, on the basis of the evidence, D
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 E
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 F
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 G
complete B.Ed. and the expense has to be borne by him. Thus, on
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
H
856 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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
C all live together in one house. Again, about one month ago, the first
appellant came to his house 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
D
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
E 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
F
on the basis of the number given by the police but the 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
G 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
H
SANDEEP KUMAR AND OTHERS v. STATE OF 857
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
court. After the marriage he has gone 2-3 times to the house of A
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 that it was
B
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 C
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
D
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 suggestion is put that the phone was E
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
F
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 G
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. Mother-in-law and father-in-
law never give full food to his sister. Four months before the incident the H
858 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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
C 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 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
D
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,
E 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
F
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 appellants. He has not seen any torture
of the deceased with his own eyes. Even after knowing about the
G 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.
H
SANDEEP KUMAR AND OTHERS v. STATE OF 859
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
She made a phone call at 10 am on 23.01.2011 which is answered by the A
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
B
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 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 C
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
D
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 E
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 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 F
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 G
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.
H
860 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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). On 05.03.2011, on being promoted, he
was transferred. In his cross-examination, he says that he had started
B 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
C 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
D 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. 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
E 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
F
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.
G 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 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
H necessary that the death should be unnatural for submitting a charge
SANDEEP KUMAR AND OTHERS v. STATE OF 861
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
sheet under Section 304-B. In the opinion of PW5 doctor who conducted A
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
B
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 C
appellant 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.
D
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 E
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. F
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), 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 G
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:
H
862 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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 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,
C 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.
D
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
E practical examination on 16.11.2010.
17. In cross-examination, inter alia it is brought out that her
attendance fell drastically after December, 2009, and that, it was more
than 99 per cent, prior to December.
F 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
G 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
H medicines for Anaemia because the patient told about TB earlier.
SANDEEP KUMAR AND OTHERS v. STATE OF 863
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
Therefore, she advised blood test and x-ray to confirm whether TB had A
been totally cured or not. But the patient did not bring any x-ray or blood
report.
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 B
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 C
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 D
found any symptoms under investigation.
20. The analysis of the above evidence would reveal the following:
DW1 treated the deceased from 01.12.2010 to 19.12.2010.
The deceased was suffering from high Eosinophilia. She had
complained of dry cough. DW2, a Gynaecologist, treated the E
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 F
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 G
DW4, for 3 years from 02.06.2007 to 31.08.2010. On 02.06.2007,
the Doctor advised her to go in for blood test and x-ray of chest 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 H
864 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C the body may be attacked by the tuberculosis process, although
the commonest site is the lungs.
We notice that in the discussion relating to pulmonary Tuberculosis,
it is, inter alia, stated as follows:
Some individuals are unable to handle the infection, and in
D 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
E 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
F 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
G 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.
H
SANDEEP KUMAR AND OTHERS v. STATE OF 865
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
In the latest edition, the 10th edition of the same work, we notice A
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 B
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 C
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 D
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 had
E
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 F
(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.
G
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 found on the body
of the deceased as per the inquest report and post mortem. The oral H
866 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C 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.
D 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-
E 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
F 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
G 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
H
SANDEEP KUMAR AND OTHERS v. STATE OF 867
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
deceased was a patient of Tuberculosis and also suffering from A
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.
B
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 C
PW8, who deposed that Panchas opined that it was a case of poisoning.
The High Court finds that the evidence of DW1 does not reveal that 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 D
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 E
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: F
“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 G
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 H
868 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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 Viscera vide exhibit 55 Ka/4, it cannot
C 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:
D
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.
E
Thereafter, there is reference to case law. The Court then finds
as follows:
“(42).In the instant case, the prosecution has proved the case based
on entirely circumstantial evidence. The chain is complete from
F 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
G (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
1
H AIR 1960 SC 500
SANDEEP KUMAR AND OTHERS v. STATE OF 869
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
ran away from the spot. It was a case of homicide by poisoning. A
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
B
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.
C
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
with the demand for dowry immediately before the death. Thereafter,
we may notice:
D
“(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 E
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.” F
(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 G
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) H
870 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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
C 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 the well-
settled principles in regard to the approach to be made by the Appellate
D 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.
E 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
F 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 found in
viscera, he poses the question as to on what basis, the High Court could
G 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
H
SANDEEP KUMAR AND OTHERS v. STATE OF 871
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
the inference which is drawn on the basis that the body was found in the A
rear portion of the car. He drew support from the Judgment of this Court
in Chhotan Sao and another v. State of Bihar 2.
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 B
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.
33. Shri Sanjay Kumar Dubey, appearing for respondent No.2,
sought to support the impugned judgment. He referred to the entry in the C
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. D
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.
E
ANALYSIS
34. Though, since long, the law declaring the narrowing of appellate
court’s jurisdiction in regard 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 F
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 G
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
(2014) 4 SCC 54
3
(2008) 10 SCC 450 H
872 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B the trial court's decision. This is especially true when a witness'
credibility is at issue. It is not enough for the High Court to take 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
C 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
D 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:
E (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
F
miscarriage of justice”;
(iv) The entire approach of the trial court in dealing with
the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and
G 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.
H
SANDEEP KUMAR AND OTHERS v. STATE OF 873
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
(vii) This list is intended to be illustrative, not exhaustive. A
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.” B
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 C
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. D
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 E
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 F
appellant, there are three striking features. PW1, the complainant and
the father of the 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 G
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
H
874 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
what PW3 next says:
“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
C 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
D 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
E 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 Court has the advantage of watching the demeanor of the
witnesses.
40. The I.Os- PW10 and PW11, have not made any enquiry from
F 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
G 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.
H
SANDEEP KUMAR AND OTHERS v. STATE OF 875
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
DID THE APPELLANTS RUN AWAY? A
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 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, B
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. C
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. D
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-laws have killed her by giving poison E
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 F
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. G
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 H
876 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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,
B
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.
C “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
D 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 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
E 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
F 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
G 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
H the limitations under which he works, his failure should not be
SANDEEP KUMAR AND OTHERS v. STATE OF 877
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
taken as the end of the case, for on good and probative A
circumstances, an irresistible inference of guilt can be drawn.”
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 B
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,
C
(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.” D
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 with them that the
appellants may have had the opportunity to administer poison, the other E
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
F
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 G
any case where the accused was acquitted solely on the ground
that the prosecution has failed to prove that the accused had the
5
(1984) 4 SCC 116
6
(1988) 3 SCC 513 H
878 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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 insufficient motive, weakness in the chain
of circumstantial evidence and likelihood of the deceased
committing suicide.
B 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
C 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
D 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
E 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 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
F 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
G 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.”
H 51. We may notice that referring to the view taken in Bhupinder
SANDEEP KUMAR AND OTHERS v. STATE OF 879
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
Singh v. State of Punjab (supra) as above, another Bench of two learned A
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 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 B
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 C
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 D
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 E
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)
“68. Circumstantial evidence in this context means a
combination of facts creating a network through which there is F
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 G
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
7
(2003) 1 SCC 169 H
880 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
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
C 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
D 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,
E 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 was cleaned by the accused. However, as noticed by
the Learned Sessions Judge, the prosecution was unable to prove the
F 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
G 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,
8
AIR 1960 SC 116
9
H AIR 2012 SC 1142
SANDEEP KUMAR AND OTHERS v. STATE OF 881
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
as laid down by this court in paragraph-59 in Anant Chintaman Lagu v. A
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 the body, the internal organs were congested,
which could be due to poisoning. In this regard it may be noticed that
B
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 C
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.
D
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 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: E
“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 F
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 G
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 H
882 SUPREME COURT REPORTS [2020] 13 S.C.R.
A poison has not been detected on chemical analysis, the 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
B 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
C 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
D by the trial court as inspiring confidence. At best it could be said that
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
E 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.
F 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
G 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:
10
H 1956 (1) WLR 965
SANDEEP KUMAR AND OTHERS v. STATE OF 883
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
“In ruling out peremptorily the evidence of conversation between A
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
B
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 C
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.
59. Even if we were to follow the said principles the statement D
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 E
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 F
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:
G
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
H
884 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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.
B
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
C 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 report is sought for, its absence is not
D 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
E 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
F 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
G 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 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
H
SANDEEP KUMAR AND OTHERS v. STATE OF 885
UTTARAKHAND AND ANOTHER [K.M. JOSEPH, J.]
has been recovered at all from the house of the appellants. There are no A
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,
B
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 C
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
D
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 E
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 the High Court. F
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. G
Divya Pandey Appeals allowed
H
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