Penal Code, 1860 – s.304B – Dowry Death – Poisoning 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 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 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.
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. 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 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. 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 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][873D-F; 874-E]
2.1 THE LAW ABOUT POISONING: APPLICATION TO
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 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, 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 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 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 referred to as the wiper. [Paras 47, 50 and 52][875-G-H; 877-DE; 880-D-F]
2.2 This Court finds itself unable to subscribe to paragraph42 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. 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 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, 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. 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. 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 5355][880-F-H; 881-A-E; 882-B]
Bhupinder Singh v. State of Punjab (1988) 3 SCC 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.
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 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 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 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][882B-E]
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 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. 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 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 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 been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anaemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113B applies, there must be evidence that soon before the death of the person, which proves that the person, who is alleged to have caused death, treated the deceased with cruelty or harassed her or in connection with a demand of dowry. 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 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 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]
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]
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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