# SANDEEP KUMAR AND OTHERS v. STATE OF UTTARAKHAND AND ANOTHER

- **Citation:** [2020] 13 S.C.R. 848
- **Court:** Supreme Court of India
- **Decided:** 2020-12-02
- **Case number:** Criminal Appeal Nos. 1512-1513 of 2017
- **Bench:** R. F. Nariman, K.M. Joseph, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sandeep-kumar-and-others-v-state-of-uttarakhand-and-another-34378
- **Pages:** 38

## Headnote

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
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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,
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## Text

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SANDEEP KUMAR AND OTHERS
v.
STATE OF UTTARAKHAND AND ANOTHER
(Criminal Appeal Nos. 1512-1513 of 2017)
DECEMBER 02, 2020
[R. F. NARIMAN, K.M. JOSEPH AND
ANIRUDDHA BOSE, JJ.]
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
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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,
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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
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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
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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
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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.
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
[1985] 1 SCR 88
referred to
Para 49
[1988] 3 SCR 409
relied on
Para 50
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[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
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
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.
1. The appellants, who were charged with the offence punishable
under Section 304B of the Indian Penal Code (hereinafter referred to as
"IPC") stood acquitted of the said charge by learned sessions judge,
Haridwar. However, in appeal carried by the complainant/respondent
No.2 herein, the verdict of acquittal was set aside and the appellants
after conviction under section 304-B of IPC stand sentenced to undergo
imprisonment for life.
 2. We heard Siddharth Dave, learned senior counsel for the
appellants. Shri Krishnam Mishra, learned counsel for the first respondentstate and Shri Sanjay Kumar Dubey, learned counsel for the second
respondent.
3. On the basis of the complaint, by second respondent dated
23.01.2011 at 5.00 pm, an FIR was lodged. This led to the appellants
finally being charge sheeted for having committed the offence under
Section 304B of the IPC. Th e facts stated in the FIR read inter alia as
follows:
The daughter of the second respondent was married to the first
appellant on 10.12.2009. After few days of the marriage the appellants
who are the husband, father-in-law and mother-in-law of his deceased
daughter started harassing her for dowry. About one month ago, his
daughter and son-in-law came to his house and remained there for two
days. On both these days his son-in-law, namely, the first appellant
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demanded from him, his sons and sons' wives a sum of Rupees ten lakhs
within 10 to 15 days for the construction of the house. The second
respondent expressed his inability. Thereafter, seeing tears of his daughter
who said that her parents must pay the amount otherwise they will kill
her, she was sent away after being consoled. Thereafter, his daughter is
alleged to have phoned him, his family and his relatives thereby informing
them that her husband, mother-in-law and father-in-law were torturing
her for money and they are provoking her to commit suicide. On
23.01.2011 at about 9.30 am, he received phone call from his deceased
daughter to come at Haridwar otherwise they will kill her on that day. So,
they went there. The dead body of the daughter was found in the car
given by them in marriage. The death of the daughter was caused by
poison and the appellants were responsible.
4. In the charge-sheet, it is, inter alia, stated that on the basis of
investigation and evidence given by the witnesses and the recovery of
the material from the spot, which contains the vomiting of the deceased
and was cleaned by the accused, thus, on the basis of the evidence,
offence under Section 304B was proved.
5. Before the trial Court, the prosecution examined 11 witnesses.
The appellant examined four witnesses DW 1 to DW 4. Some documents
including FSL Report, were produced.
THE PROSECUTION EVIDENCE
6. PW1 is none other than the father of the deceased. He deposed,
inter alia, as follows:
The appellants and other relatives had come before the marriage
and they did not make any demand of dowry from him. In the
marriage they gave Alto Car but they demanded Santro Car. He
arranged for Santro car. He spent Rupees fifteen lakhs. At the
marriage there was no dispute. After the marriage when they came
for meeting, at that time also, there was no demand for dowry.
The deceased got opportunity for admission in B.Ed. before
marriage. After marriage, these persons (the appellants) asked to
complete B.Ed. and the expense has to be borne by him. Thus, on
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
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and they will not say such words. Thereafter, the deceased used
to say in between that the appellants are demanding ten lakhs.
Before 3 to 4 months he received phone call from deceased that
the appellants are pressing her to take poison forcefully and asking
for ten lakhs. He made phone calls to the relative of the first
appellant and asked him to intervene. The middle man who arranged
the marriage, was contacted (Be it noted that the middle man is
not examined). He has further deposed that upon bringing these
facts by them and the son (PW2) and asking as to why he should
not file complaint to the Police, the second appellant said that he
will manage the Police and again 1st appellant apologised. They
all live together in one house. Again, about one month ago, the first
appellant came to his house along with deceased and he started
demanding ten lakhs for the construction of the house and said
that they will return the money. First appellant remained in the
house for two days. Deceased also told him to arrange the money
otherwise the appellants will kill her. He pawned ornaments of his
wife and paid Rs. one lakh to his daughter and son-in-law. They
went back. On 23.01.2011, in the morning at 09.30 a.m., the fateful
day, he received a call from deceased asking him to come Haridwar
otherwise the appellants will kill her. He called his youngest
daughter (PW4). She, on phoning, was told by sister of Appellant
No.1, that the condition of deceased was not good. She told the
appellant's sister to take the deceased to hospital. They reached
Haridwar where the deceased lived at about 3.00 pm. The dead
body of the deceased was lying in the Santro car. He first made a
call at number 100 which was received by the Police Station,
Roorkee. He also made phone call to the Police Station, Ranipur
on the basis of the number given by the police but the police had
already reached the spot before him. At the time of marriage, he
has taken a loan of Rupees two lakhs from his PF account. PW 1
has four children and the deceased was the last one. In 2009, he
was receiving Rs.10,000/- after deduction. The first appellant is
Software Engineer. He denies that no demand was made. He
does not know whether the second appellant got Rs.35 lakhs when
he retired in July as General Technician in BHEL. The registration
of the Santro car stood in his name. He denies that he used to use
Santro car for business and used to give occasionally to his daughter
and first appellant. He admits having got the car released from the
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court. After the marriage he has gone 2-3 times to the house of
second appellant and stayed there. After the marriage of the
deceased, he and his family members used to talk to the deceased
daughter. He is unable to say on which date, month and year the
deceased told him that the appellants are saying that they were
getting 20-25 lakhs in the marriage. Thereafter, he said that it was
one year after the marriage and in 2011 (It be noted that in chief
examination, PW1 says that the deceased told him about it one
month after marriage). The deceased had told him regarding the
demand for money 5-6 months of her reaching her in-laws and
during this period, she had told him more than 10 times. He has
never met Mahavir Singh. He has not told that when the deceased
told regarding taking of salfas (some kind of poison). In 5 to 6
months, 10 phone calls came from the in-laws' house. He is unable
to say whether the appellant has done medical examination of his
daughter on 1.12.2010 from DW1-Dr. K.K. Agarwal, Haridwar
and on 18.12.2010 got her X-ray from Super Pathology, Shivalik
Nagar, Haridwar and her investigation got done on 11.5.2010 or
that she was got treated from Dr. Mamta Tyagi. He does not
know that the illness of his daughter was got treated from her
parental house. The first appellant was B.Tech. He denies that
the first appellant informed him on 23.9.2011 that the condition of
his daughter is not good. The suggestion is put that the phone was
switched off. PW 1 states he does not know whether first appellant
took his daughter to Satbadi Hospital when her condition became
serious. He further deposes to say he does not know whether the
first appellant took her from Satbadi Hospital to District Hospital
where she was treated. He does not know whether on the advice
of District Hospital, the first appellant took his daughter to Jolly
Grant Hospital, BHEL. He admits that on the date of incident,
when he reached his daughter's house, they did not ask from the
appellants as to how his daughter had died. The suggestion is put
that Police had come on the basis of information of the first appellant
which was denied. He denies that the marriage was performed
without any dowry and in a simple manner. He stated that the inlaws 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-inlaw never give full food to his sister. Four months before the incident the
SANDEEP KUMAR AND OTHERS v. STATE OF
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first appellant along with his sister asked for ten lakhs. He says after
pawing the ornaments of his wife he paid one lakh. He refers to the
phone call of 23.1.2011 from the deceased. He says from the perusal of
the dead body it seemed his sister died due to poison. He is unable to
explain why the statement that his father has spent 15 lakhs during the
marriage is not found in his statement under Section 161 CrPC though he
has mentioned it. Another omission marked is about the statement imputed
to the in-laws of his sister (appellant 2 and 3) that they used to ask for
dowry and that the marriage of their son could have taken place in rupees
20-25 lakhs. They have not made any complaint against the appellants
anywhere apart from the complaint made on the date of the death. He
had not talked on phone to his sister on 23.1.2011 nor her in-laws talked
on that day. Even though he had a mobile phone with him, no talks with
sister and in- laws took place. While sitting in the car during the 4-5
hours of journey, they talked only with sister near Roorkee. She had
called. Her voice was very low. From Roorkee it took about 11⁄2 to 2
hours to reach Haridwar. His father made a phone at 100 number from
the car. Roorkee is about 100 kilometres from the house of PW2. They
were not invited when the second appellant retired from BHEL for the
farewell function and therefore none reached from their family (Be it
noted that PW1 has categorically said that he was invited for the party).
He had good talks with the deceased. He does not remember the month,
date when the deceased told about the demand for Rs.10 lakhs but it
was made in 2010. He says that his sister has no such disease and therefore
they did not take any treatment before marriage. The suggestion is clearly
put to him that the appellant had taken the deceased to three hospitals on
23.01.2011. When the phone from the deceased was received at Roorkee
from there about 11⁄2 to 2 hours was taken in reaching the house of the
accused persons.
8. PW 3, a relative of PW 1 (brother-in-law) states that after
demand for Rs. 10 lakhs and payment of Rs.1 lakhs by PW1 also, there
was demand and torture by the appellants. He has not seen any torture
of the deceased with his own eyes. Even after knowing about the
harassment and torture by the in-laws he has never gone to the house of
the appellants either by himself or with PW1 or any other person.
9. PW4 is the sister of the deceased. She has said that the appellants
2 and 3 used to torture her for money and they did not allow her to see
television and asked her to bring television from their parent's house.
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She made a phone call at 10 am on 23.01.2011 which is answered by the
sister of the first appellant and she told that the condition of the deceased
was bad and upon being asked to take her to the hospital appellant's
sister said that till now they have not taken her to the hospital. She says
that she is the youngest. She has her mother. She said that before one
month from her death, the deceased has come to her house. The omission
in her 161 statement about deceased telling her parents about torture and
demand for money is brought out. She reiterates this was mentioned to
the Police. Another omission which is noted is regarding the alleged
statement made by her to the Police that a phone call from PW1 (her
father) that he has asked her to make a phone at the landline number of
the in-laws house of the deceased. She has never seen from her own
eyes anybody beating her sister. She further says she does not how the
death of her sister occurred (Even though in chief examination she has
deposed that her sister was killed for the demand of dowry). She says
her sister was very sensitive. She says that the appellants committed
murder of her sister and that they used to demand dowry. The omission
in her 161 statement about the appellant having murdered the deceased
is brought out. She denies that the appellants were present in the house
when they reached on 23.01.2011.
10. PW 5 is the doctor who conducted post mortem. He deposed
that the body of the deceased was stiff. Post Mortem was conducted on
24.01.2011 at 11.00 am. Therefore, the time of the incident was within
24 hours. There was no mark of any injury on the dead body. All organs
were found congested. The viscera was preserved. The death of the
deceased was possible on 23.01.2011 from 2.30 pm to 3.00 pm. In cross
examination he states as follows:
After the post mortem, he was not definite about the cause
of death, and therefore, in order to know he had preserved and
sealed the viscera and one piece of liver and spleen. The present
case being of the sensitive nature, a panel of doctors with utmost
care and caution conducted the post mortem. It was sought to be
confirmed whether there was any external injury on the body of
the deceased or strangulation or whether the marks of the death
was concealed or not. Next, he says that on account of food
poisoning, the organs may be congested and death could have
taken place due to Tuberculosis, as due to Tuberculosis, the internal
organs could be congested.
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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
investigation on the same day (23.01.2011) after 5:00pm. When he went
for inspection of the place of occurrence, at that time, the door was not
locked and no accused was present in the house. He says that he has not
specified in the diary that the accused was searched in the house and
they did not meet him. The place of occurrence is Shivalik Nagar. There
are several houses in the locality of different persons near the house of
the accused. He admits that he has not inquired regarding the incident
from any neighbourhood person. He further states that he had not collected
any evidence regarding the demand of dowry from any independent
person. There is no mention about any reason in the arrest of the accused
persons in Exhibit Ka-15. He continued with the investigation till
03.03.2011. He deposes that the complainant (PW1) had given the
statement that before one month, the first appellant had reached their
house along with the deceased and he stated that he was constructing a
second house for rent purposes and therefore Rs. 10,00,000/- was
demanded which he will return. PW2 has not told him that his father had
spent Rs. 15,00,000/- according to his capacity. It is correct, he says that
in the cause of death of Priyanka, the word 'dowry' has not been used.
It is further stated that Smt. Imlesh (the aunt of the deceased and
examined as PW6) has not used the word 'dowry' in harassing the
deceased by her in-laws. Smt. Imlesh has not stated to him in the statement
that father-in-law has ever harassed her for dowry. He admits as correct
that during investigation, the first appellant informed him that he had
taken the deceased for medical treatment in different hospitals. This fact
came to him in the knowledge from his statement. PW10 admits that he
had not done any investigation from any hospital regarding the treatment
of the deceased and the cause of death. He is unable to give the reason
as to why he did not do it.
12. PW11 is the investigating officer who took over the investigation
on 05.03.2011 from PW10. He says that on 18.04.2011 after recording
the statement of the witnesses and on the evidences available he submitted
the charge sheet against the appellants. He has also not done investigation
by way of recording any statement of any neighbour. He admits that it is
necessary that the death should be unnatural for submitting a charge
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sheet under Section 304-B. In the opinion of PW5 doctor who conducted
the post mortem, the cause of death was unknown. He preserved viscera
to know the reason for death. When he is asked as to whether till the
filing of the charge sheet, he was having any reliable evidence for unnatural
death of the deceased, his answer is only he was having oral evidence.
When he is further questioned as to what evidence was available with
regard to which witness regarding unnatural death, he responds by deposing
that when she died, the deceased was not with her family members. At
that time all the three appellants were with her. Therefore, it was not
possible to record the oral evidence of the accused persons. He admits
that it is correct that no public witness was found regarding the unnatural
death during investigation. PW10 has recorded the statement of first
appellant that he has taken the deceased to hospital, deposes PW11. He
submits that this came to his knowledge after perusal of the investigation
done by the previous investigating officer. He also did not record the
statement of any doctor of the aforesaid hospitals and he did not
interrogate.
13. It is necessary now to notice the evidence adduced by
appellants. DW1 is Dr. K.K. Aggarwal,
Retired Chief Medical Officer and Physician, BHEL, at Shivalik
Nagar. He deposed that on 01.12.2010, the deceased went to him with
the complaint of dry cough. He advised blood investigation. She was
suffering from Eosinophilia. Exhibit-Kha-1, is the original Medical
Prescription by DW1. She was treated from 01.12.2010 to 19.12.2012.
in cross-examination he states that Eosinophilia may be caused due to
change in weather. By increase in Eosinophilia, it may cause cough,
sneezing and breathing problem. Several persons are suffering from
disease of higher Eosinophilia.
14. DW2 is a Gynaecologist working in Lilavati Hospital, Shivalik
Nagar. She has passed M.B.B.S. and B.G.O. Degree. On 11.05.2010,
Priyanka (the deceased), aged 24 years, went to her for treatment. She
complained of pain in her stomach and discharge of white fluid. She was
old patient of Tuberculosis (TB), which was told by her. She remained in
her treatment from 11.5.2010 to 14.5.2010. The patient was having weight
of 39 kilograms and her weight was below normal limit. She proved the
original prescription as Exhibit-Kha-2.
15. In cross-examination she states as follows:
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She complained of stomach pain and discharge of white
fluid. She asked the patient to come on 15.05.2010 at 12.00 p.m..
Thereafter, the patient did not go to her. It was correct, she says,
that the disease, which was treated by her, was cured within four
to five days. Then she says that, it is possible that the patient may
be cured, and therefore, she did not come on 15.05.2012. She
volunteered further that she called the patient on 15.05.2010 but
she did not return. She does not know why. She further states that
it is correct that it was told by the patient upon her query that she
was suffering with the disease of TB and took treatment for nine
months. She does not treat TB. The treatment, which she gave,
has no relationship with TB. It is correct that TB may be cured
after taking treatment for six months or nine months. She deposed
that it is wrong to state that the patient, who is suffering pain in
stomach, since several days, and eat very less, therefore, his weight
may reduce. This is after admitting that the patient had complained
for stomach pain.
16. DW3 is the Head of the Department of Education Faculty in a
College. He has deposed, inter alia, that the deceased got admission in
college in 2008-09 and completed the course for the year 2009-2010.
The attendance of the deceased was more than 75 per cent. Thus, she
appeared in the examination in August, 2010. She also appeared for the
practical examination on 16.11.2010.
17. In cross-examination, inter alia it is brought out that her
attendance fell drastically after December, 2009, and that, it was more
than 99 per cent, prior to December.
18. DW4 is a Medical Practitioner since 1987 in a Nursing and
Maternity Home at Meerut Road, Mawana, Meerut District. She has
passed M.B.B.S. and B.G.O.. On 02.06.2007, the deceased came to her
and she remained under her treatment. She told about her disease of TB.
Thereafter, the patient went to her on 02.12.2009. On that day she told
that she is about to marry on 10.12.2009, thus, she wanted to postpone
her periods, for which, she gave her medicines. Thereafter, the deceased
went to her on 31.08.2010. The patient told about the history of Coax
(TB of stomach). The original prescription for the three dates were
marked as Kha- 5, 6 and 7, respectively. On 02.06.2007, she advised the
patient, on her prescription, for blood test and x-ray of chest. She prescribed
medicines for Anaemia because the patient told about TB earlier.
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Therefore, she advised blood test and x-ray to confirm whether TB had
been totally cured or not. But the patient did not bring any x-ray or blood
report.
 19. In cross-examination she says that she is a Gynaecologist.
On 02.06.2007, the deceased came to the hospital with the disease of
weakness. In her medical history, she has stated about TB for last ten
years. She states that it is correct that after ten years, and till coming to
her, the deceased never told about symptoms of such disease. If the
patient takes complete treatment for three years, there is no possibility
for the said disease. She says that during the two and a half years, between
02.06.2007 and 02.12.2009, and after 02.12.2009, the deceased never
complained about TB. On 31.08.2010, DW4 did not investigate for TB
symptoms nor any complaint about it. TB may be caused in the chest,
stomach or any other organ. It is further stated that from 02.06.2007 to
31.08.2010, Priyanka (the deceased), was regularly coming to DW4 for
treatment for three years. She ends her deposition by stating that during
the three years period, the deceased never complained about TB nor she
found any symptoms under investigation.
20. The analysis of the above evidence would reveal the following:
DW1 treated the deceased from 01.12.2010 to 19.12.2010.
The deceased was suffering from high Eosinophilia. She had
complained of dry cough. DW2, a Gynaecologist, treated the
deceased from 11.05.2010 to 14.05.2010. The deceased complained
of pain in the stomach and discharge of white fluid. The deceased
told the Doctor that she was an old patient of TB. Markedly, the
deceased was found to have weight of only 39 kilograms, which
was found to be below the normal limit. DW4, again another
Gynaecologist, also treated her on 31.08.2010. The Doctor clearly
deposed about the patient telling about the history of TB in the
stomach. While DW1 and DW2 are from Haridwar, where the
appellants reside, it is noteworthy that DW4 practised at Mawana,
Meerut where the deceased had her paternal home. The evidence
of DW4 would show that the deceased was under treatment of
DW4, for 3 years from 02.06.2007 to 31.08.2010. On 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
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of treatment of DW4, that the deceased passed away in January,
2011 on 23.01.2011.
21. We may also notice that in the Van Nostrand's Scientific
Encyclopaedia (3rd Edition). It is stated, inter-alia, as follows:
Tuberculosis: A chronic or acute infectious disease caused by an
invasion of the body by the Bacillus tuberculosis. It may exist without
causing symptoms (inactive tuberculosis) or with symptoms (active
tuberculosis). The symptoms of tuberculosis depend on the organ
involved, the virulence of the strain of tubercle bacilli and the
resistance of the individual infected. Almost any organ or tissue of
the body may be attacked by the tuberculosis process, although
the commonest site is the lungs.
We notice that in the discussion relating to pulmonary Tuberculosis,
it is, inter alia, stated as follows:
Some individuals are unable to handle the infection, and in
spite of good treatment early in the disease they go on to develop
severe symptoms and widespread, often fatal, tuberculosis. Others
are able to keep a small lesion localized, and in the course of a
year of treatment complete healing may be accomplished.
The complications of pulmonary tuberculosis are associated
with spread of the disease to near and distant organs. In some
instances, the pulmonary disease may b quite minor, and the first
manifestation may occur when urinary tract, or abdominal,
tuberculosis begins to cause symptoms.
The various forms of abdominal tuberculosis are treated
with x-ray and ultra-violet light as well as the usual general
measures.
The prognosis in tuberculosis depends on many factors. The
type, duration and extent of disease when treatment is begun, the
resistance of the patient to the tubercle bacillus are of prime
importance. Early treatment increases the percent of cures
enormously. The importance of continuation of treatment, usually
for a minimum of 2 years, cannot be overestimated.