Uttarakhand High Court
Harendra Singh Pal vs Sandeep Kumar And Others on 14 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 61 of 2017
Harendra Singh Pal ....Appellant
Versus
Sandeep Kumar & others ....Respondents
Mr. S.K. Shandilya, Advocate for the appellant.
Mr. V.K. Jemini, Dy.A.G. for the State.
Mr. H.C. Pathak, Advocate for the respondent nos.1 to 3.
Judgment Reserved- 29.06.2017
Date of Judgment - 14.07.2017
Coram: Hon'ble Rajiv Sharma, J
Hon'ble Sharad Kumar Sharma, J
Per: Hon'ble Rajiv Sharma, J
This appeal is instituted against the judgment
dated 08.02.2017, rendered by learned Sessions Judge,
Haridwar in Sessions Trial No.112 of 2011, whereby the
respondent nos.1 to 3-accused, who were charged with
and tried for the offences under Section 304-B of IPC, were
acquitted.
2. The case of the prosecution, in a nutshell, is that
PW1 Harendra Singh, S/o Shri Udai Singh lodged an FIR
on 23.01.2011 to the effect that his daughter Priyanka Pal's
marriage was solemnized on 10.12.2009 with accused
Sandeep. He has given the dowry according to his capacity.
However, after few days, her husband Sandeep, father-in-
law Bhundiya Singh and mother-in-law Smt. Harpali Devi
started harassing his daughter for bringing insufficient
dowry. After one month, his daughter and son-in-law came
to his house. They stayed there for two days. His son-in-law
demanded Rs.10.00 lacs for the construction of house
within 10-15 days. He has shown his inability to pay the
money. His daughter insisted him to pay Rs.10.00 lacs
otherwise, they would kill her. He persuaded his daughter
to go back. He and his relations were informed by his
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daughter about the demand of dowry. Thereafter, a number
of times Priyanka has informed him that her husband,
mother-in-law and father-in-law were harassing her and
she was treated with cruelty by her in-laws and forcing her
to commit suicide. He received a telephonic call from his
daughter on 23.01.2011 at 9:30 AM insisting him to come
to Haridwar otherwise they would kill her. Thereafter, the
phone got disconnected. He reached the house of in-laws of
his daughter at Shivalik Nagar. The dead body of his
daughter was lying in the car bearing No. UP15 AM- 7568.
The body was taken to hospital. According to him, his
daughter died due to poisoning and her husband, mother-
in-law and father-in-law were responsible for the same.
Thereafter, the body was sent for postmortem examination.
The postmortem examination was carried out by PW5 Dr.
Ashok Kumar.
3. The investigation was carried out and the challan
was put up after completing all the codal formalities. The
prosecution has examined as many as eleven witnesses in
support of its case. The statements of the accused were
also recorded under Section 313 of Cr.P.C. They have
denied the case of the prosecution. The accused have
examined as many as four witnesses DW1 K.K. Aggarwal,
DW2 Mamta Tyagi, DW3 Dr. Rajeev Kumar Sharma, DW4
Dr. Neera Chandra. The accused vide judgment dated
08.02.2017 were acquitted. Hence, this appeal.
4. Learned counsel for the appellant/ complainant
has vehemently argued that the prosecution has proved its
case beyond reasonable doubt. Learned counsel on behalf
of the respondents has supported the judgment dated
08.02.2017.
5. We have heard learned counsel for both the
parties and perused the judgment carefully.
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6. PW1 Harendra Singh is the father of deceased.
According to him, his daughter was married to Sandeep
Kumar Pal on 10.12.2009.. He has agreed to give Alto car
but they were insisting for Santro car. He accordingly gave
Santro car. He spent Rs.15.00 lacs in the marriage. He has
also borne the expenditure of his daughter towards her
B.Ed. education. His daughter also visited his house. She
told him that she was harassed for bringing insufficient
dowry. He had a conversation with the in-laws of his
daughter. He also received a telephonic call after 3-4
months and his daughter again told him that her in-laws
were demanding Rs.10.00 lacs. He also informed PW3
Mahaveer Singh. The accused were residing in one house.
One month back his son-in-law has come to his house. He
has demanded Rs.10.00 lacs and told that he would return
the same. He also pledged his wife's jewllery with Goyal
Jeweller and arranged Rs.1.00 lac and the same was paid
to Sandeep. He received a telephonic call from his daughter
on 23.1.2011 at 9:30 AM asking him to come immediately
otherwise her in-laws would kill her. Thereafter, he asked
his younger daughter to talk to Priyanka on landline. The
phone was picked up by sister-in-law of Priyanka and she
told her that Priyanka was unwell. His daughter told the
sister-in-law of Priyanka to take her to the hospital. He also
reached his house and went towards the in-laws house of
his daughter and en-route he also informed the police. His
daughter was repeatedly saying that "Papa you come, Papa
you come". He has denied the suggestion in his cross-
examination that the car was with him and he used the
same, though, admitted that he got the car released in his
name. He has denied the suggestion that his daughter has
committed suicide. He has categorically deposed in his
examination-in-chief that the dead body was lying in
Santro car. Thereafter, body was taken into possession. He
signed the recovery memo. The wiper used in cleaning the
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vomit of Priyanka was taken into possession in his
presence.
7. PW2 Sandeep Kumar has corroborated the
statement of PW1 Harendra Singh. In his examination-in-
chief, he has deposed that the marriage of his sister was
solemnized on 10.12.2009. There was no demand of dowry
at the time of marriage. However, when his sister came
back to her parental house, she told that her in-laws were
demanding dowry. Four months back, his brother-in-law
has come to their house and demanded Rs.10.00 lacs. He
arranged Rs.1.00 lac. On 23.01.2011, his sister rang up his
father and asked him to come to Haridwar failing which
they would kill her. The phone got disconnected. He has
admitted in his cross-examination that except report dated
23.01.2011, no report was ever filed against the accused.
He also deposed that the body was lying in Santro car when
he reached the house of in-laws of his sister.
8. PW3 Sohanveer Singh has deposed that PW1
Harendra Singh (brother-in-law) told him that in-laws of his
daughter were harassing her for bringing insufficient
dowry. They were demanding Rs.10.00 lacs for the
construction of house. PW1 Harendra Singh has pledged
his wife's jewellery with the Jeweller and arranged Rs.1.00
lac. He informed him on 23.01.2011 that some mishap has
happened. They reached Haridwar. Accused Sandeep and
his parents were not present in the house. It was apparent
that poisonous substance was given to Priyanka. The body
was bluish in colour. He has also seen the dead body lying
on the rear seat of Santro car.
9. PW4 Monika Pal has deposed that Priyanka used
to tell her that her in-laws were demanding dowry. She
received a telephonic call of her father on 23.01.2011
asking her to talk to Priyanka on landline. She rang up her
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sister at 10:00 PM. The phone was picked up by Sandeep's
sister Meenakshi. She asked her to talk to her sister. She
told her that she was unwell. She (PW4 Monika Pal) asked
Meenakshi to take Priyanka to hospital. Thereafter, the
phone got disconnected.
10. PW5 Dr. Ashok Kumar has conducted the
postmortem examination. He has categorically deposed that
the internal organs were congested. The viscera was
preserved. According to him, the internal organs could be
congested due to poisoning. In his cross-examination, he
has deposed that organs could congest due to poison and
due to tuberculosis.
11. PW6 Smt. Imlesh has deposed that marriage of
Priyanka with Sandeep was solemnized on 10.12.2009. The
mother of Priyanka died seven year back. At the time of
marriage, there was no conversation with regard to dowry.
However, after 2-3 months of the marriage, Priyanka told
that her husband, father-in-law and mother-in-law were
harassing her for bringing insufficient dowry. In her cross-
examination, she has denied the suggestion the Priyanka
was under treatment of tuberculosis from Smt. Anguri Devi
Nursing and Maternity Home, Meerut Road, Bhawana. She
has also denied the suggestion that Priyanka was under
treatment at Leelawati Hospital by Dr. Mamta Tyagi. She
had no knowledge that Priyanka was under treatment of
Dr. K.K. Aggarwal. She has denied the suggestion that
Priyanka has died due to some disease. She deposed that
when they reached at Haridwar at 3:00 PM, they saw that
the dead body of Priyanka was lying in the car parked in
front of in-laws house of Priyanka.
12. PW7 Constable Sanjay Kotiyal has deposed that
he was posted as Constable Clerk on 23.01.2011 at P.S.
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Ranipur. He registered the FIR vide exhibit A-3. He also
proved G.D.
13. PW8 Puran Singh Rana has deposed that he was
a Tehsildar, Haridwar on 23.01.2011. He prepared the
inquest report. The body was sealed. According to opinion
of Panchas, the death occurred due to poisoning. He has
also deposed that the dead body of Priyanka was lying on
the rear seat of Santro car bearing registration No.UP-15
AM- 7568.
14. PW9 Vijay Kundliya has deposed that he was
posted as SHO, P.S. Ranipur. The FIR was registered. He
reached Shivalik Nagar. He noticed that the vomiting of
Priyanka was washed with wiper. The same was taken into
possession by him and recovery memo was signed by
Harendra and Meenakshi. He arrested the accused.
15. PW10 Sunil Kumar Meena has initiated the
investigation of the case. He recorded the statement of PW1
Harendra Singh Pal. In his cross-examination, he has
deposed that during the course of investigation, it
transpired that the accused-Sandeep has taken the
deceased in different hospitals for treatment. He has
deposed that the wiper was taken into possession by which
the vomit of Priyanka-deceased was washed. He has also
taken into possession the Santro car.
16. PW11 Pankaj Bhatt has deposed that he went to
the hospital and recorded the statement of Dr. A.K. Paliwal.
17. DW1 Dr. K.K. Aggarwal has deposed that after
his retirement, he started private practice at Ranipur since
1990. Priyanka has visited his clinic on 01.12.2010,
complaining of dry cough. He advised her to undertake
blood test. According to her blood test report, she was
suffering from Eosinophil. She was under treatment w.e.f.
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01.12.2010 to 19.12.2010. In his cross-examination, he
has categorically admitted that Eosinophil is caused due to
change in weather. Eosinophil may lead to bad cold, cough
and breathlessness. Priyanka has never visited him except
only once as per the record maintained by him. The disease
for which he has treated Priyanka was very common.
18. DW2 Dr. Mamta Tyagi has deposed that she
was working as Obstetrics and Gynecologist since 2009 at
Leelawati Hospital. One lady Priyanka age 24 years has
come to her for treatment. She was complaining of stomach
ache and discharge of white fluid. According to her, she
was old tuberculosis patient. She remained under
treatment with her w.e.f. 11.05.2010 to 14.05.2010. In her
cross-examination, she has admitted that she has asked
the patient to come back on 15.05.2010 at 12:00 PM but
she did not come back. She has also admitted that the
disease which was treated by her, the patient recovers
within 4-5 days. She has further deposed that on her
asking the patient, the patient told her that she was
suffering from tuberculosis and she has already taken nine
months treatment for the same. She has specifically said
that she has not treated Priyanka for tuberculosis. She has
admitted that her treatment of Priyanka was not for
tuberculosis. She has also admitted that tuberculosis is
cured after taking 6-9 months treatment.
19. DW3 Dr. Rajiv Kumar Sharma, Head of
Education Department, has deposed that he was working
as Lecturer in R.N. College, Hasthinapur since 2004. He
has brought the record of academic session 2008-09. It
starts from June, 2009 to April, 2010. In his cross-
examination, he has admitted that Priyanka was regular till
December, 2009 and thereafter her attendance graph
immediately came down.
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20. DW4 Dr. Neera Chandra has deposed that she
was practicing since 1987. One patient came to her on
02.06.2007. She treated her. She has told her previously
about tuberculosis. Thereafter, patient had come to her on
02.12.2009 and she told that her marriage was to be
solemnized on 10.12.2009 and thus, wanted her menstrual
period to be postponed. She gave her some medicine.
Thereafter, patient came to her on 31.08.2010 for
treatment and told her that she was the patient of
tuberculosis. She has proved prescription slips B5, B6 and
B7. She has told the patient to undergo blood test and x-
ray examination on 02.06.2007, however, the patient has
not brought her blood test report or x-ray report. In her
cross-examination, she has admitted that she was
Gynecologist and Priyanka came to her on 02.06.2007 and
she was complaining only about weakness. Priyanka has
told her medical history that she was suffering from
tuberculosis ten years ago. However, she has never told of
any signs of tuberculosis thereafter. She has also admitted
that once a patient is completely treated ten years back for
tuberculosis, there is no possibility of re-occurrence of
tuberculosis. She has only prescribed her dosage of iron.
On 02.12.2009, Priyanka had come to her only for
postponement of her menstrual cycle. She has also
admitted that even after 02.12.2009, patient has never
complained of tuberculosis. She has complained of only
stomachache. She has also admitted that Priyanka has
visited her clinic on 02.06.2007 and 31.08.2010 but never
told her about tuberculosis. She has also not diagnosed the
disease during her treatment.
21. PW1 Harendra Singh, PW2 Sandeep Kumar, PW3
Sohan Singh, PW4 Monika Pal have categorically deposed
that the accused were demanding dowry from Priyanka.
PW1 Harendra Singh has deposed that at the time of
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marriage, there was no demand of dowry but he had
arranged for Alto car but the in-laws were insisting for
Santro car. He gave Santro car. According to him, as and
when his daughter used to come to his house, she told him
about the dowry demand raised by her in-laws. His son-in-
law came to his house with his daughter. His son-in-law
asked for Rs.10.00 lacs. He arranged Rs.1.00 lac by
pledging his wife's jewellery. On 23.01.2011, his daughter
told him on phone to come Haridwar immediately otherwise
they would kill her. The phone got disconnected. He asked
his younger daughter to call Priyanka on landline. The
phone was picked-up by the sister-in-law of Priyanka. She
told PW4 Monika Pal that Priyanka was not well. PW4
Monika Pal asked her to take Priyanka to hospital. PW2
Sandeep Kumar has corroborated the statement of PW1
Harendra Singh. PW3 Sohan Singh also deposed that his
brother-in-law (PW1 Harendra Singh) told him that his
daughter's in-laws were demanding dowry for construction
of house. He received a telephonic call of PW1 Harendra on
23.01.2011, informing him that the incident has taken
place with Priyanka. He went to Priyanka's house.
According to him, it was a case of poisoning. The body has
turned blue. PW4 Monika Pal has deposed that her father
asked her to talk to Priyanka on landline. The phone was
picked up by sister-in-law of Priyanka. She told her that
Priyanka was not well. PW4 Monika Pal asked her to take
Priyanka to hospital.
22. The postmortem was conducted by PW5 Dr.
Ashok Kumar Paliwal with Dr. Himanshu Singh. In his
examination-in-chief, he has deposed that the internal
organs were congested. The death of Priyanka has occurred
between 9:30 PM to 3:00 AM on 23.01.2011. In his cross-
examination, as discussed hereinabove, he has deposed
10
that food poisoning and tuberculosis could lead the
congestion in organs.
23. PW6 Imlesh has deposed that though, at the
time of solemnizing of marriage, there was no discussion of
dowry. However, after 2-3 months, the accused and his
family members started demanding dowry from Priyanka.
24. According to PW8 Sanjay Kotiyal, the panchas
opined that it was the case of poisoning. PW5 Dr. Ashok
Kumar Paliwal has conducted the postmortem examination.
He has sent the viscera for chemical examination.
According to FSL report, no poison was detected. The cause
of death was uncertain. According to FIR, the cause of
death was poisoning.
25. Learned counsel on behalf of the respondents -
accused has vehemently argued that it was a natural death
due to tuberculosis. He has placed strong reliance on the
statements of DW1 K.K. Aggarwal, DW2 Mamta Tyagi, DW3
Dr. Rajeev Kumar Sharma and DW4 Dr. Neera Chandra.
26. DW1 Dr. K.K. Aggarwal has not stated anything
in his statement that Priyanka was suffering from
tuberculosis. According to him, she remained under
treatment with him w.e.f. 01.12.2010 to 19.12.2010 for
eosinophil. In his cross-examination, he has admitted that
he had no other records of patient except this prescription
exhibit Kha-1.
27. The statement of DW2 Dr. Mamta Tyagi is very
important. She has deposed that Priyanka visited her clinic
on 11.05.2010. She was complaining only of stomachache
and discharge of white fluid. She remained under treatment
with her w.e.f. 11.05.2010 to 14.05.2010. She has asked
the patient to visit on 15.05.2010 at 12:00 PM. The patient
never came. She has also admitted specifically that
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Priyanka has never told her about tuberculosis. She has
also admitted that the treatment given to Priyanka was not
related to tuberculosis. She has also admitted that
tuberculosis gets cured after taking 6-9 months treatment.
28. Thus, it is evident from the statements of DW1
Dr. K.K. Aggarwal and DW2 Dr. Mamta Tyagi that deceased
was not suffering from tuberculosis.
29. Learned counsel for the respondents-accused
has placed strong reliance on the statement of DW4 Neera
Chandra, R/o Smt. Anguri Devi Nursing and Maternity
Home, Meerut. According to her, the patient has visited her
on 02.06.2007 for treatment. Priyanka told her about
tuberculosis. Thereafter, the patient visited her on
02.12.2009. She told her that her marriage was to be
solemnized on 10.12.2009. She wanted to postpone her
menstrual cycle. She gave her medicine. Thereafter, the
patient came to her on 31.08.2010. She has proved the
prescription slips dated 02.06.2007, 02.12.2009 and
31.08.2010 vide exhibit Kha5, Kha6 and Kha7. She has
also admitted in her cross-examination that on 02.06.2007,
Priyanka was complaining only of weakness. Priyanka
never told her about tuberculosis. She has also admitted
once the treatment was taken ten years back for
tuberculosis, there was no question of re-occurrence of
disease. She has further admitted in her cross-examination
that Priyanka had come to her 02.12.2009 for the
postponement of her menstrual cycle. She has also deposed
that Priyanka has never told her about the symptoms of
tuberculosis after 02.12.2009. She has also admitted that
Priyanka never told her about the tuberculosis w.e.f
02.06.2007 till 31.08.2010.
30. It is thus, evident from the statements of DW1
Dr. K.K. Aggarwal, DW2 Dr. Mamta Tyagi and DW4 Dr.
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Neera Chandra that Priyanka was not suffering from
tuberculosis. She was never treated by them for
tuberculosis. DW1 Dr. K.K. Aggarwal has treated Priyanka
for common ailment. DW2 Dr. Mamta Tyagi has admitted
that the treatment given to Priyanka has nothing to do with
tuberculosis.
31. DW4 Dr. Neera Chandra has deposed in her
examination-in-chief that Priyanka has come to her on
02.06.2007. Thereafter, she has visited her on 02.12.2009
and told her that her marriage was to be solemnized on
10.12.2009 and she wanted postponement of her
menstrual cycle. She has given her medicine. Thereafter,
she came to her on 31.08.2010. She was narrating about
the history of tuberculosis. She has advised her blood test
and x-ray test of breast, however, the patient has never
come back with blood test report and x-ray report. In her
cross-examination, she has categorically admitted that
Priyanka came to her on 02.06.2007. Priyanka has only
told her about weakness. Priyanka has told her that she
had tuberculosis ten years back but she has categorically
admitted that Priyanka has never told her about the fact
that she had tuberculosis ten years back till she met her.
She has also admitted that once tuberculosis was cured ten
years back, it could not re-occur. She has also admitted
that Priyanka had visited her on 02.12.2009 only for
postponement of her menstrual cycle and even after 2 ½
years, she has never told her about symptoms of
tuberculosis. She has never asked for any test of
tuberculosis when she visited her on 31.08.2010 nor she
has even told her about the symptoms of tuberculosis. She
has given her medicine for stomachache. She has also
admitted that the deceased has visited her w.e.f.
02.06.2007 to 31.08.2010 for about three years but has
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never told her about tuberculosis nor she has found any
symptoms of the same.
32. The deceased was never taken to any hospital,
but according to Investigating Officer, she was taken to
various hospitals, though, there is no record.
33. A specific question was put to the accused under
Section 313 of Cr.P.C. how the dead body of Priyanka was
recovered from the car parked in front of their house.
However, a simpliciter denial was made.
34. There is ample evidence on record that the
accused were demanding dowry from the deceased. The
parents of the deceased were not in a position to meet the
illegal demand of dowry. It has come in the FIR that it was
the case of poisoning. PW3 Sohan Singh has noticed that
body has turned blue. PW5 Dr. Ashok Kumar has admitted
that on the opening of body, internal organs were
congested, which could be due to poisoning. Merely the fact
that poison was not found on the Viscera vide exhibit 55
Ka/4, it cannot be said that deceased was not administered
poisoning.
35. According to Modi's Medical Jurisprudence &
Toxicology, 22nd Edition, Page No. 22 of Chapter I "Poisons
and Their Medico-Legal Aspects", it is stated as under: -
"It is possible that a person may die from the effects of a
poison, and yet, none may be found in the body after death if the
whole of the poison has disappeared from the lungs by
evaporation, or has been removed from the stomach and intestines
by vomiting and purging, and after absorption has been detoxified,
conjugated and eliminated from the system by the kidneys and
other channels. Certain vegetable poisons may not be detected in
the viscera, as they have no reliable tests, while some organic
poisons, especially the alkaloids and glucosides, may, by oxidation
during life or by putrefaction after death, be split up into other
substances which have no characteristic reactions sufficient for
their identification.
Modi saw cases in which there were definite signs of death from
poisoning, although the Chemical Examiner failed to detect the
poison in the viscera preserved for chemical analysis. It has,
therefore, been wisely held by Christison that in cases where a
poison has not been detected on chemical analysis, the judge, in
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deciding a charge of poisoning, should weigh in evidence the
symptoms, postmortem appearances and the moral evidence."
36. Their Lordships of the Hon'ble Supreme Court in
AIR 1960 SC 500, in the case of "Anant Chintaman Lagu
vs. The State of Bombay", have held that the prosecution
must establish in a case of poisoning: (a) that death took
place by poisoning; (b) that the accused had the poison in
his possessin: and (c) that the accused had an opportunity
to administer the poison to the deceased. Though these
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 not
justify the inference that death is the result of poisoning
because of the failure of the prosecution to prove the fact
satisfactorily, either directly or circumstantial evidence,
then the benefit of the doubt will have to be given to the
accused person. But if circumstantial proof of the three
elements, is so decisive that the court can unhesitatingly
hold that death was a result of administration of poison
(though not detected) and that the poisoin must have been
administered by the accused person, then the conviction
can be rested on it. Their Lordships have further held that
in a case of murder by administration of poison is almost
always one of secrecy. The poisoner seldom takes another
into his confidence, and his preparations for the
commission of the offence are also secret. The
circumstantial evidence in this context means a
combination of facts creating a network through which
there is no escape for the accused, because of the facts
taken as a whole do not admit of any inference but of his
guilty. Their Lordships have held as under: -
"16. Ordinarily, it is not the practice of this Court to re-
examine the findings of fact reached by the High Court particularly
in a case where there is concurrence of opinion between the two
Courts below. But the case against the appellant is entirely based
on circumstantial evidence, and there is no direct evidence that he
15
administered a poison, and no poison has, in fact been detected by
the doctor, who performed the post-mortem examination, or by the
Chemical Analyser. The inference of guilt having been drawn on an
examination of a mass of evidence during which subsidiary findings
were given by the two Courts below, we have felt it necessary, in
view of the extraordinary nature of this case, to satisfy ourselves
whether each conclusion on the separate aspects of the case, is
supported by evidence and is just and proper. Ordinarily, this Court
is not required to enter into an elaborate examination of the
evidence, but we have departed from this rule in this particular
case, in view of the variety of arguments that were addressed to us
and the evidence of conduct which the appellant has sought to
explain away on hypotheses suggesting innocence. These
arguments, as we have stated in brief, covered both the factual as
well as the medical aspects of the case, and have necessitated a
close examination of the evidence once again, so that we may be in
a position to say what are the facts found, on which our decision is
rested.
58. Our findings thus substantially accord on all the relevant facts
with those of the two Courts below, though the arrangement and
consideration of the relevant evidence on record is somewhat
different. It is now necessary to consider the arguments which have
been advanced on behalf of the appellant. The first contention is
that the essential ingredients required to be proved in all cases of
murder by poisoning were not proved by the prosecution in this
case. Reference in this connection is made to a decision of the
Allahahad High Court in Mst. Gujrani v. Emperor1 and two
unreported decisions of this Court in Chandrakant Nyalchand Seth
v. State of Bombay2 decided on February 19, 1958, and Dharambir
Singh v. State of Punjab3 decided on November 4, 1958. In these
cases, the court referred to three propositions which the
prosecution must establish in a case of poisoning: (a) that death
took place by poisoning; (b) that the accused had the poison in his
possession; and (c) that the accused had an opportunity to
administer the poison to the deceased. The case in Dharambir
Singh v. State of Punjab3 turned upon these three propositions.
There, the deceased had died as a result of poisoning by potassium
cyanide, which poison was also found in the autopsy. The High
Court had disbelieved the evidence which sought to establish that
the accused had obtained potassium cyanide, but held,
nevertheless, that the circumstantial evidence was sufficient to
convict the accused in that case. This Court did not, however,
accept the circumstantial evidence as complete. It is to be observed
that the three propositions were laid down not as the invariable
criteria of proof by direct evidence in a case of murder by poisoning,
because evidently if after poisoning the victim, the accused
destroyed all traces of the body, the first proposition would be
incapable of being proved except by circumstantial evidence.
Similarly, if the accused gave a victim something to eat and the
victim died immediately on the ingestion of that food with
symptoms of poisoning and poison, in fact, was found in the
viscera, the requirement of proving that the accused was possessed
of the poison would follow from the circumstance that the accused
gave the victim something to eat and need not be separately proved.
There have been cases in which conviction was maintained, even
though the body of the victim had completely disappeared, and it
was impossible to say, except on circumstantial evidence, whether
that person was the victim of foul play, including poisoning.
Recently, this Court in Mohan v. State of U.P.4 decided on
November 5, 1959, held that the proof of the fact of possession of
the poison was rendered unnecessary, because the victim died soon
16
after eating pedas given by the accused in that case, and he had not
partaken any other food likely to contain poison. In Dr Palmer
case5, strychnine was not detected, and the accused was convicted
by the jury after Lord Chief Justice Campbell (Cresswell, J. and Mr
Baron Alderson, concurring) charged the jury that the discovery of
the poison on autopsy, was not obligatory, if they were satisfied on
the evidence of symptoms that death had been caused by the
ministration of the strychnine. The conduct of Palmer, which was
also significant, was stressed inasmuch as he had attempted to
thwart a successful chemical analysis of the viscera, and had done
suspicious acts to achieve that end. In Dr Crippen case6, the
conduct of the accused after the death of Mrs Crippen in making
the friends and relatives believe that Mrs Crippen was alive was
considered an incriminatory circumstance pointing to his guilt. No
doubt, in Dr Crippen case6, the body was found and poison was
detected, but there was no proof that Dr Crippen had administered
the poison to her, that being inferred from his subsequent conduct
in running away with Miss Le Neve. In the second case of this
Court, the poison was availiable to the victim, and it was possible
that she had taken it to end an unhappy life.
59. The cases of this Court which were decided, proceeded upon
their own facts, and though the three propositions must be kept in
mind always, the sufficiency of the evidence, direct or
circumstantial, to establish murder by poisoning will depend on the
facts of each case. If the evidence in a particular case does of not
justify the inference that death is the result of poisoning because of
the failure of the prosecution to prove the fact satisfactorily, either
directly or by circumstantial evidence, then the benefit of the doubt
will have to be given to the accused person. But if circumstantial
evidence, in the absence of direct proof of the three elements, is so
decisive that the court can unhesitatingly hold that death was a
result of administration of poison (though not detected) and that the
poison must have been administered by the accused person, then
the conviction can be rested on it.
74. If Laxmibai died in circumstances which prima facie admit of
either disease or homicide by poisoning, we must look at the
conduct of the appellant who brought her to the hospital, and
consider to what conclusion that conduct unerringly points. If the
appellant as an honest medical man had taken Laxmibai to the
hospital and she had died by reason of disease, his conduct would
have been entirely different. He would not have taken her to the
hospital bereft of property with which she started from home; he
would not have given a wrong or misleading name to cover her
identity; he would not have given a wrong age and wrong history of
her ailments; he would not have written a letter suggesting that she
had a brother in Calcutta, which brother did not exist; he would not
have abandoned the corpse to be dealt with by the hospital as an
unclaimed body; he would not have attempted to convince the world
that she was alive and happily married; he would not have obtained
her property by forgeries, impersonation and other tricks indulged
in both before and after her death; but he would have informed her
relatives and done everything in his power to see that she was
properly treated and stayed on to face whatever inquiry the hospital
wished to make into the cause of death and not tried to avoid the
post-mortem examination and would not have disappeared, never to
reappear. His prevarications about where Laxmibai was, make a big
and much varied list, and his forgeries cover scores of documents.
In the words of Baron Parke in Towell case17:
"Circumstantial evidence is the only evidence which can in
cases of this kind lead to discovery. There is no way of investigating
17
them except by the use of circumstantial evidence; but it most
frequently happens that great crimes committed in secret leave
behind them some traces, or are accompanied by some
circumstances which lead to the discovery and punishment of the
offender.... Direct evidence of persons who saw the fact, if that proof
is offered upon the testimony of men whose veracity you have no
reason to doubt is the best proof; but, on the other hand, it is
equally true with regard to circumstantial evidence, that the
circumstances may often be so clearly proved, so closely connected
with it, or leading to one result in conclusion, that the mind may be
as well convinced as if it were proved by eyewitnesses."
76. These arguments, however, are of no avail, in view of the
appellant's entire conduct now laid bare, which conduct has been
proved to our satisfaction to have begun not after the death of
Laxmibai but much earlier. This conduct is so knit together as to
make a network of circumstances pointing only to his guilt. The
case is one of extreme cunning and premeditation. The appellant,
whose duty it was to care for this unfortunate lady as a friend and
as her medical adviser, deliberately set about first to ingratiate
himself in her good opinion, and becoming her confidant, found out
all about her affairs. All this time he was planning to get at her
property after taking her life. He did not perpetrate his scheme at
Poona, where the death might have brought a host of persons to the
hospital. He devised a diabolical scheme of unparalleled cunning
and committed an almost perfect murder. But murder, though it
hath no tongue, speaks out sometimes. His method was his own
undoing; because even the long arm of coincidence cannot explain
the multitude of circumstances against him, and they destroy the
presumption of innocence with which law clothed him. In our
judgment, the two Courts below were perfectly correct in their
conclusion that the death of Laxmibai was the result of the
administration of some unrecognised poison or drug which would
act as a poison, and that the appellant was the person who
administered it. We, accordingly, confirm the conviction."
37. Their Lordships of the Hon'ble Supreme Court in
AIR 1960 SC 659, in the case of "Mohan vs. State of Uttar
Pradesh", have held that thus, where the evidence in the
case shows that the accused gave the deceased three
"peras" and within half an hour, he became ill and died
within two hours. Their Lordships have further held that in
the case of murder by administering poison, the
prosecution has, along with the motive, also to establish
that the deceased died of a particular poison said to have
been administered, that the accused was in possession of
that poison and that he had the opportunity to administer
the same to the deceased.
38. In the present case, the motive to administer
poison was that the Priyanka's family was not in a position
18
to give the dowry, demanded from time to time. The
demand of dowry can be demanded before and after the
marriage.
39. Their Lordships of the Hon'ble Supreme Court in
1972 (1) SCC 748, in the case of "Mahabir Mandal & others
vs. State of Bihar", have held that lack of positive evidence
would not result in throwing out the entire prosecution
case, if the other circumstances clearly point out the guilt
of the accused. Their Lordships have further held that the
heart of the deceased at the time of postmortem
examination was found to be empty would not rule out
asphyxia death as a result of poisoning. There are several
poisons particularly of the synthetic hypnotics and
vegetable alkaloids groups, which do not leave any
characteristic signs as can be noticed on post-mortem
examination. Their Lordships have quoted para from page
847 of the book of Lambert namely "The Medico-Legal Post-
Mortem in India". Their Lordships have also referred the
contest of book "Legal Medicine Pathology and Toxicology",
by Gonzales and Others, Second Edition as under: -
"The post-mortem appearances in cases of
morphine poisoning are not particularly characteristic. There is a
congestion of the viscera, cyanosis and abundant dark fluid blood.
When crude opium is taken by mouth the stomach may contain
fragments of poppy, but nothing characteristic is found if
morphine is injected."
Their Lordships of the Hon'ble Supreme Court have
held as under: -
"37. The circumstances of the present case taken
in their entirety clearly point to the conclusion that the death of
Indira was not natural but was due to foul-play. In a number of
cases where the deceased dies as a result of poisoning, it is
difficult to successfully isolate the poison and recognise it. Lack of
positive evidence in this respect would not result in throwing out
the entire prosecution case if the other circumstances clearly
point to the guilt of the accused. Reference in this context may be
made to the following observations of Hidayatullah, J., (as he then
was) who spoke for the majority in the case of Anant Chintaman
Lagu v. State of Bombay1:
"A case of murder by administration of poison is
almost always one of secrecy. The poisoner seldom takes another
19
into his confidence, and his preparations to the commission of the
offence are also secret. He catches his opportunity and
administers the poison in a manner calculated to avoid its
detection. The greater his knowledge of poisons, the greater the
secrecy, and consequently the greater the difficulty of proving the
case against him. What assistance a man of science can give he
gives, but it is too much to say that the guilt of the accused must,
in all cases, be demonstrated by the isolation of the poison,
though in a case where there is nothing else such a course would
be incumbent upon the prosecution. There are various factors
which militate against a successful isolation of the poison and its
recognition. The discovery of the poison can only take place
either through a post-mortem examination of the internal organs
or by chemical analysis. Often enough, the diagnosis of a poison is
aided by the information which may be furnished by relatives and
friends as to the symptoms found on the victim, if the course of
poison has taken long and others have had an opportunity of
watching its effect. Where, however, the poison is administered in
secrecy and the victim is rendered unconscious effectively, there is
nothing to show how the deterioration in the condition of the
victim took place and if not poison but disease is suspected, the
diagnosis of poisoning may be rendered difficult."
38. Reliance in the above context was placed in the
cited case on the books on medical jurisprudence by different
authors wherein it has been stated that the pathologist's part in
the diagnosis of poisoning is secondary and that several poisons
particularly of the synthetic hypnotics and vegetable alkaloids
groups do not leave any characteristic signs which can be noticed
on post-mortem examination. The following dictum was laid down
in the case:
"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 not justify the inference that death is the
result of poisoning because of the failure of the prosecution to
prove the fact satisfactorily, either directly or by circumstantial
evidence, then the benefit of the doubt will have to be given to the
accused person. But if circumstantial evidence, in the absence of
direct proof of the three elements, is so decisive that the Court can
unhesitatingly hold that death was a result of administration of
poison (though not detected) and that the poison must have been
administered by the accused person, then the conviction can be
rested on it."
39. The case against Mahabir accused, in our
opinion, is covered by the latter part of the above observation. We,
therefore, find no cogent ground to interfere with the findings of
the two courts that the death of the deceased was not natural but
homicidal.
43. It may be mentioned that, according to the
confessional statement of Mahadeo, which was recorded by Shri
Rastogi Magistrate on September 21, 1963 and upon which
reliance was placed by the prosecution, no one was present in the
house when Mahabir took Mahadeo inside the house to bring out
the dead body of Indira for being placed in the taxi on the night of
occurrence. The confessional statement of Mahadeo thus rules out
the presence of Dasrath accused at his house on the fateful
night."
20
40. Their Lordships of the Hon'ble Supreme Court in
1984 (4) SCC 116, in the case of "Sharad Birdhichand
Sarda vs. State of Maharashtra", have held in the case of
poisoning or a suicide for proving murder the standard
tests for murder by poisoning must be satisfied,
circumstantial evidence should be conclusive. Their
Lordships have held that to prove death by poisoning the
Court must carefully scan the evidence and determine the
four important circumstances which alone can justify a
conviction:-
i) there is a clear motive for the accused to administer poison
to the deceased,
ii) that the deceased died of poison said to have been
administered,
iii) that the accused had to poison in his possession.
iv) that he had an opportunity to administer the poison to the
deceased.
41. Their Lordships of the Hon'ble Supreme in 1984
(4) SCC 116, in the case of "Sharad Birdhichand Sarda vs.
State of Maharashtra", have further held false plea or false
defence taken by accused when can constitute an
additional link in the chain of circumstances against the
accused. Their Lordships have held as under: -
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction
between "may be proved" and "must be or should be proved" as was
held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra19 where the observations were made: [SCC para 19,
p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and the
mental distance between 'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused
is guilty,
21
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one to
be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
159. It will be seen that this Court while taking into account the
absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said
earlier viz. before a false explanation can be used as additional link,
the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved,
(2) the said circumstance points to the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in proximity to the time and situation.
160. If these conditions are fulfilled only then a court can use
a false explanation or a false defence as an additional link to lend
an assurance to the court and not otherwise. On the facts and
circumstances of the present case, this does not appear to be such
a case. This aspect of the matter was examined in Shankarlal
case25 where this Court observed thus: [SCC para 30, p. 43: SCC
(Cri) p. 322]
"Besides, falsity of defence cannot take the place of proof of
facts which the prosecution has to establish in order to succeed. A
false plea can at best be considered as an additional circumstances,
if other circumstances point unfailingly to the guilt of the accused."
165. So far as this matter is concerned, in such cases the
court must carefully scan the evidence and determine the four
important circumstances which alone can justify a conviction:
(1) there is a clear motive for an accused to administer poison
to the deceased,
(2) that the deceased died of poison said to have been
administered,
(3) that the accused had the poison in his possession,
(4) that he had an opportunity to administer the poison to the
deceased.
166. In the instant case, while two ingredients have been proved
but two have not. In the first place, it has no doubt been proved
that Manju died of potassium cyanide and secondly, it has also
been proved that there was an opportunity to administer the
poison. It has, however, not been proved by any evidence that the
appellant had the poison in his possession. On the other hand, as
indicated above, there is clear evidence of PW 2 that potassium
cyanide could have been available to Manju from the plastic factory
of her mother, but there is no evidence to show that the accused
could have procured potassium cyanide from any available source.
We might here extract a most unintelligible and extraordinary
finding of the High Court--
"It is true that there is no direct evidence on these two points,
because the prosecution is not able to lead evidence that the
accused had secured potassium cyanide poison from a particular
source. Similarly there is no direct evidence to prove that he had
administered poison to Manju. However, it is not necessary to prove
each and every fact by a direct evidence. Circumstantial evidence
can be a basis for proving this fact.(p.160)
22
176. This now brings us to the fag end of our judgment. After
a detailed discussion of the evidence, the circumstances of the case
and interpretation of the decisions of this Court the legal and
factual position may be summarised thus:
(1) That the five golden principles enunciated by this Court in
Hanumant1 decision have not been satisfied in the instant case. As
a logical corollary, it follows that it cannot be held that the act of
the accused cannot be explained on any other hypothesis except the
guilt of the appellant nor can it be said that in all human
probability, the accused had committed the murder of Manju. In
other words, the prosecution has not fulfilled the essential
requirements of a criminal case which rests purely on
circumstantial evidence.
(2) That, at any rate, the evidence clearly shows that two views are
possible -- one pointing to the guilt of the accused and the other
leading to his innocence. It may be very likely that the appellant
may have administered the poison (potassium cyanide) to Manju
but at the same time a fair possibility that she herself committed
suicide cannot be safely excluded or eliminated. Hence, on this
ground alone the appellant is entitled to the benefit of doubt
resulting in his acquittal.
(3) The prosecution has miserably failed to prove one of the most
essential ingredients of a case of death caused by administration of
poison i.e. possession of poison with the accused (either by direct or
circumstantial evidence) and on this ground alone the prosecution
must fail.
(4) That in appreciating the evidence, the High Court has clearly
misdirected itself on many points, as pointed out by us, and has
thus committed a gross error of law.
(5) That the High Court has relied upon decisions of this Court
which are either inapplicable or which, on closer examination, do
not support the view of the High Court being clearly
distinguishable.
(6) That the High Court has taken a completely wrong view of law in
holding that even though the prosecution may suffer from serious
infirmities it could be reinforced by additional link in the nature of
false defence in order to supply the lacuna and has thus committed
a fundamental error of law.
(7) That the High Court has not only misappreciated the evidence
but has completely overlooked the well established principles of law
and in view of our findings it is absolutely clear that the High Court
has merely tried to accept the prosecution case based on
tenterhooks and slender tits and bits.
(8) We entirely agree with the High Court that it is wholly unsafe to
rely on that part of the evidence of Dr Banerjee (PW 33) which
shows that poison was forcibly administered by the process of
mechanical suffocation.
(9) We also agree with the High Court that there is no manifest
defect in the investigation made by the police which appears to be
honest and careful. A proof positive of this fact is that even though
Rameshwar Birdhichand and other members of his family who had
practically no role to play had been arrayed as accused but they
had to be acquitted by the High Court for lack of legal evidence.
(10) That in view of our finding that two views are clearly possible in
the present case, the question of defence being false does not arise
and the argument of the High Court that the defence is false does
not survive."
23
42. In the instant case, the prosecution has proved
the case based on entirely circumstantial evidence. The
chain is complete from the date of telephonic call received
by PW1 Harendra Singh from his daughter till the recovery
of body in Santro car on 23.01.2011. The plea taken by the
accused is false and it is a vital link to prove circumstantial
evidence on which the present case rests.
43. Their Lordships of the Hon'ble Supreme in 1988
(3) SCC 513, in the case of "Bhupinder Singh vs. State of
Punjab", have held that there should not be acquittal on 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 and the person who
commits such murder would naturally take care to
eliminate and destroy the evidence against him. Therefore,
the insistence on proof of possession of poison with the
accused invariably in every case is neither desirably nor
practicable. Their Lordships have further held that the
poison murder cases are not to be put outside the rule of
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. Their Lordships have held as under: -
"25. We do not consider that there should be acquittal or the
failure of the prosecution to prove the possession of poison with the
accused. Murder by poison is invariably committed under the cover
and cloak of secrecy. Nobody will administer poison to another in
the presence of others. The person who administers poison to
another in secrecy will not keep a portion of it for the investigating
officer to come and collect it. The person who commits such murder
would naturally take care to eliminate and destroy the evidence
against him. In such cases, it would be impossible for the
prosecution to prove possession of poison with the accused. The
prosecution may, however, establish other circumstances
consistent only with the hypothesis of the guilt of the accused. The
court then would not be justified in acquitting the accused on the
ground that the prosecution has failed to prove possession of the
poison with the accused.
26. The poison murder cases are not to be put outside the rule of
circumstantial evidence. There may be obvious very many facts and
circumstances out of which the court may be justified in drawing
permissible inference that the accused was in possession of the
24
poison in question. There may be very many facts and
circumstances proved against the accused which may call for tacit
assumption of the factum of possession of poison with the accused.
The insistence on proof of possession of poison with the accused
invariably in every case is neither desirable nor practicable. It would
mean to introduce an extraneous ingredient to the offence of
murder by poisoning. We cannot, therefore, accept the contention
urged by the learned counsel for the appellant. The accused in a
case of murder by poisoning cannot have a better chance of being
exempted from sanctions than in other kinds of murders. Murder
by poisoning is run like any other murder. In cases where
dependence is wholly on circumstantial evidence, and direct
evidence not being available, the court can legitimately draw from
the circumstances an inference on any matter one way or the
other."
44. In the present case, the deceased was in the
house of accused at the time of her death. It was for the
accused to explain satisfactorily the circumstances under
which the victim died on 23.01.2011. PW3 Sohan Singh
has also deposed that the accused ran away from the spot.
It was a case of homicide by poisoning. The accused were
required to explain under Section 106 of Cr.P.C., the
circumstances in which the death of Priyanka was caused
and her dead body was recovered from the rear set of the
car parked in front of their house. It has also come on
record that the husband of Priyanka-deceased and other
family members were residing in the same house.
45. Their Lordships of the Hon'ble Supreme Court in
1988 (4) SCC 302, in the case of "State of U.P. vs. Krishna
Gopal and another", have held that where the eye witnesses'
account is found credible and trustworthy, medical opinion
pointing to alternative possibilities is not accepted as
conclusive. Importance and primacy should be given to the
orality of the trial process. Their Lordships have held as
under: -
"24. It is trite that where the eyewitnesses' account is found
credible and trustworthy, medical opinion pointing to alternative
possibilities is not accepted as conclusive. Witnesses, as Bentham
said, are the eyes and ears of justice. Hence the importance and
primacy of the orality of the trial process. Eyewitnesses' account
would require a careful independent assessment and evaluation for
their credibility which should not be adversely prejudged making
any other evidence, including medical evidence, as the sole
25
touchstone for the test of such credibility. The evidence must be
tested for its inherent consistency and the inherent probability of
the story; consistency with the account of other witnesses held to
be creditworthy; consistency with the undisputed facts; the "credit"
of the witnesses; their performance in the witness box; their power
of observation etc. Then the probative value of such evidence
becomes eligible to be put into the scales for a cumulative
evaluation."
46. Their Lordships of the Hon'ble Supreme Court in
1995 Supp. (1) SCC 547, in the case of "Ram Dev and
another vs. State of U.P.", have held that medical opinion is
only opinion and it is not decisive, where oral testimony of
eyewitnesses found to be truthful, reliable and trustworthy
vague opinion of doctor cannot affect their value and
credibility of the prosecution case. Their Lordships have
held as under: -
"4. We are in agreement with the above view of the High Court.
That apart, since our analysis of the evidence of PW 1, Ram Saran
and PW 2, Ram Bharose has created an impression on our minds
that both these witnesses are truthful, reliable and trustworthy, as
has also been found by the trial court and the High Court, the
argument that the statement of Dr R.C. Gupta, PW 3 with regard
to the injuries of PW 1 Ram Saran has belied the oral testimony
does not appeal to us. The medical witness did not rule out the
possibility of injuries having been caused to Ram Saran, PW 1
from the grazing of pellets from the gunshot. It is well settled that
medical evidence is only opinion evidence. It is hardly decisive and
is often inconclusive. Since the oral testimony of PW 1 Ram Saran
and PW 2 Ram Bharose suffer from no infirmity whatsoever, the
vague opinion given by Dr Gupta cannot in any way affect the
value of oral testimony and cannot affect the credibility of the
prosecution case at all."
47. Their Lordships of the Hon'ble Supreme Court in
1998 (6) SCC 50, in the case of "State of U.P. vs. Harban
Sahai & others", have held that testimony of eyewitness
would be preferable unless medical evidence is so
conclusive as to rule out even the possibility of eyewitness's
version to be true. Their Lordships have held as under: -
"9. The second reason put forth by the High Court for
disbelieving the version of the eyewitnesses is this: PW 1 (Shashi
Bhushan) and PW 2 (Shiv Sagar Lal) said that two accused had
fired the gun simultaneously, but the deceased sustained only one
gunshot injury which is described in the post-mortem certificate as
Injury 2. The Public Prosecutor in the trial court endeavoured to
show that Injury 7 would possibly have been the result of a
gunshot. Dr R.S. Pandey (PW 7) answered to the said query saying
that there is a possibility of that injury being caused in a gunshot if
26
pellets have touched that part of the face and deflected therefrom.
Injury 7 is described as "multiple abrasions in an area of 7 cm × 6
cm on the right side of the face 2.5 cm below the right eye". But the
High Court ruled out the possibility of the said injury having been
caused in gunshot on the following reasoning:
"But in the cross-examination the doctor has denied the
possibility of such injury being caused while the deceased was
being chased from behind and that is exactly what the prosecution
case is, that while the deceased was running away the two
appellants armed with guns, fired from behind. Consequently Injury
7, even if it is said to be a gunshot injury, would not go to
corroborate the prosecution case in any manner."
The High Court has thus knocked out an eyewitness on the
strength of an uncanny opinion expressed by a medical witness.
Overdependence on such opinion evidence, even if the witness is an
expert in the field, to checkmate the direct testimony given by an
eyewitness is not a safe modus adoptable in criminal cases. It has
now become axiomatic that medical evidence can be used to repel
the testimony of eyewitnesses only if it is so conclusive as to rule
out even the possibility of the eyewitness's version to be true. A
doctor who conducted post-mortem examination or examined an
injured person is usually confronted with such questions regarding
different possibilities or probabilities of causing those injuries or
post-mortem features which he noticed in the medical report. But
the answers given by the witness to such questions need not
become the last word on such possibilities. After all he gives only
his opinion regarding such questions. But to discard the testimony
of an eyewitness simply on the strength of such opinion expressed
by the medical witness is not conducive to the administration of
criminal justice. (Vide Piara Singh v. State of Punjab1, Mange v.
State of Haryana2, Ram Dev v. State of U.P.3)"
48. Their Lordships of the Hon'ble Supreme Court in
2003 (12) SCC 606, in the case of "Ramanand Yadav vs.
Prabhu Nath Jha & others", have held that oral evidence
has to get primacy and medical evidence is basically
opinionative. Their Lordships have held as under: -
"17. So far as the alleged variance between medical evidence
and ocular evidence is concerned, it is trite law that oral evidence
has to get primacy and medical evidence is basically opinionative. It
is only when the medical evidence specifically rules out the injury
as is claimed to have been inflicted as per the oral testimony, then
only in a given case the court has to draw adverse inference.
18. The High Court has thus knocked out an eyewitness on the
strength of an uncanny opinion expressed by a medical witness.
Overdependence on such opinion evidence, even if the witness is an
expert in the field, to checkmate the direct testimony given by an
eyewitness is not a safe modus adoptable in criminal cases. It has
now become axiomatic that medical evidence can be used to repel
the testimony of eyewitnesses only if it is so conclusive as to rule
out even the possibility of the eyewitness version to be true. A
doctor usually confronted with such questions regarding different
possibilities or probabilities of causing those injuries or post-
mortem features which he noticed in the medical report may
express his views one way or the other depending upon the manner
the question was asked. But the answers given by the witness to
27
such questions need not become the last word on such possibilities.
After all, he gives only his opinion regarding such questions. But to
discard the testimony of an eyewitness simply on the strength of
such opinion expressed by the medical witness is not conducive to
the administration of criminal justice."
49. Their Lordships of the Hon'ble Supreme Court in
AIR 2009 SC 2013, in the case of "Chhotanney & others
vs. State of Uttar Pradesh & others", have held that eye-
witnesses' evidence was found to be credible and
trustworthy, medical evidence pointing to alternative
possibilities was not accepted as conclusive. Their
Lordships have held as under: -
"6.Coming to the plea that the medical evidence is at variance with
ocular evidence, it has to be noted that it would be erroneous to
accord undue primacy to the hypothetical answers of medical
witnesses to exclude the eyewitnesses' account which had to be
tested independently and not treated as the 'variable' keeping the
medical evidence as the 'constant'.
7. It is trite that where the eyewitnesses' account is found credible
and trustworthy, medical opinion pointing to alternative
possibilities is not accepted as conclusive. Witnesses, as Bentham
said, are the eyes and ears of justice. Hence the importance and
primacy of the quality of the trial process. Eyewitnesses' account
would require a careful independent assessment and evaluation for
their credibility which should not be adversely prejudged making
any other evidence, including medical evidence, as the sole
touchstone for the test of such credibility. The evidence must be
tested for its inherent consistency and the inherent probability of
the story; consistency with the account of other witnesses held to
be creditworthy; consistency with the undisputed facts; the 'credit'
of the witnesses; their performance in the witness box; their power
of observation, etc. Then the probative value of such evidence
becomes eligible to be put into the scales for a cumulative
evalution."
50. Their Lordships of Hon'ble Supreme Court in
(2010) 13 SCC 689, in the case of Satya Narayan Tiwari @
Jolly and another vs. State of Uttar Pradesh, have
explained the term "soon before" the marriage which reads
as under :-
28. There can be no quarrel with the proposition that the proximity test
has to be applied keeping in view the facts and circumstances of each
case. Regarding the aforesaid decision, the facts were somewhat
different in that the deceased was not shown to have been subjected to
cruelty by her husband for at least 15 months prior to her death. On the
fact of that case, it was held that Section 304-B IPC was not attracted.
29. On the other hand, the present case fully answers the test of "soon
before". There is the testimony of demand of Maruti car being pressed
by the two accused persons after about six months of the marriage of
the deceased (which took place about three years before the incident)
and of her being pestered, nagged, tortured and maltreated on non-
28
fulfilment of the said demand which was conveyed by her to her parents
from time to time on her visits to her parental home and on telephone.
Things had reached to such a pass that on getting a message from her
about three months before the incident, Surya Kant Dixit PW 1
accompanied by Jaideo Awasthi PW 2 had to go to her sasural in
Farrukhabad in an attempt to dissuade the two accused from pressing
such demand, but they (the two accused) humiliated them and turned
them out of the house with the command not to enter their house again
without meeting the demand of a Maruti car. He did not take any action
on the consolation offered by the father-in-law of his daughter and also
on the advice of his daughter. It was natural that the victim also did not
want her father to take any extreme step against the two accused. She
might have thought that things would improve with the passage of time
but it seems that that did not happen.
30. Surya Kant Dixit PW 1 was in a helpless state after suffering
humiliation at the hands of the accused persons about three months
before the actual incident. He could simply wait and watch in the hope
of things to improve, but the 24 situation did not improve at all. It,
however, cannot be taken to mean that the demand made by the two
accused persons had subsided or was given up by them. It can
justifiably be inferred from what happened subsequently that they
continued to torture the unfortunate lady because of non-fulfilment of the
demand of Maruti car. In our opinion, the test of "soon before" is
satisfied in the facts, evidence and circumstances of the present case.
55. We are of the view that the presumption of Section 113-B of the
Evidence Act is attracted in this case and the discussion that we have
made hereinabove makes it abundantly clear that the defence could not
displace the said presumption. The culpability of the two accused in
committing this crime is established to the hilt by the facts and
circumstances proved by the prosecution. They undoubtedly are the
authors of this crime.
57. To sum up, the prosecution has been able to prove the following:
(1) The death of the deceased was caused by strangulation and burning
within seven years of her marriage.
(2) The deceased had been subjected to cruelty by her husband and
mother-in-law (the two appellant-accused) over the demand of Maruti
car in dowry raised and persistently pressed by them after about six
months of the marriage and continued till her death.
(3) The cruelty and harassment was in connection with the demand of
dowry i.e. Maruti car.
(4) The cruelty and harassment is established to have been meted out
soon before her death.
(5) The two accused were the authors of this crime who caused her
death by strangulation and burning on the given date, time and place.
58. In our opinion, the trial Judge recorded an acquittal adopting a
superfluous approach without in depth analysis of the evidence and
circumstances established on record. On thoroughly cross-checking the
evidence on record and circumstances established by the prosecution
with the findings recorded by the trial court, we find that its conclusions
are quite inapt, unjustified, unreasonable and perverse. Proceeding on a
wrong premise and irrelevant considerations, the trial court has
acquitted the accused. The accused are established to have committed
the offences under Sections 498-A and 304-B IPC and under Section 4 of
the Dowry Prohibition Act and the findings of the High Court are correct.
51. Their Lordships of Hon'ble Supreme Court in
(2011) 4 SCC 427, in the case of "Bachni Devi and another
Vs. State of Haryana", have reiterated the principle and
explained the term "demand for dowry' under Section 304-
B IPC and presumption. Their Lordships have held that as
under: -
29
"12. For making out an offence of "dowry death" under Section 304-
B, the following ingredients have to be proved by the prosecution:
(a) death of a woman must have been caused by any burns or bodily
injury or her death must have occurred otherwise than under normal
circumstances;
(b) such death must have occurred within seven years of her marriage;
(c) soon before her death, she must have been subjected to cruelty or
harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand
for dowry.
19. In the backdrop of the above legal position, if we look at the facts of
the case, it is clearly established that Kanta died otherwise than under
normal circumstances. There is no dispute of fact that death of Kanta
occurred within seven years of her marriage. That Kanta was subjected
to harassment and ill-treatment by A-1 and A-2 after PW 8 refused to
accede to 26 their demand for purchase of motorcycle is established by
the evidence of PW 8 and PW 9. Then there is evidence of PW 10 that
PW 8 had called him and DW 1 to his house where A-1 had made
demand of motorcycle. PW 10 stated that he sought to reason to A-1
about inability of PW 8 to give motorcycle at which A-1 got angry and
warned that Kanta would not be allowed to stay in her matrimonial
home. It is true that the appellants produced DW 1 in defence and he
did state in his examination-inchief that he did not meet A-1 at the
house of PW 8 but in the cross-examination when he was confronted
with his statement under Section 161 CrPC (portion A to A) where it was
recorded that he and PW 10 had gone to the house of PW 8 and both of
them (PW 10 and DW 1) counselled A-1 to desist from demanding
motorcycle but she stuck to her demand, DW 1 had no explanation to
offer. The evidence of DW 1 is, therefore, liable to be discarded.
20. In the light of the evidence let in by the prosecution, the trial court
cannot be said to have erred in holding that it was established that
unlawful demand of motorcycle was made by A-1 and A-2 from PW 8
and Kanta was harassed on account of his failure to provide the
motorcycle and that led Kanta to commit suicide by hanging. Pertinently,
the demand of motorcycle by A-1 from PW 8 was for A-2 and when PW 8
showed his inability to meet that demand, A-2 started harassing and ill-
treating Kanta. In this view of the matter, it cannot be said that there
was no demand by A-2.
21. The High Court has also examined the matter thoroughly and
reached the finding that A-1 and A-2 had raised a demand for purchase
of motorcycle from PW 8; this demand was made within two months of
the marriage and was a demand towards "dowry" and when this
demand was not met, Kanta was maltreated and harassed
continuously which led her to take extreme step of finishing her life. We
agree with the above view of the High Court. There is no merit in the
contention of the counsel for the appellants that the demand of
motorcycle does not qualify as a "demand for dowry". All the essential
ingredients to bring home the guilt under Section 304-B IPC are
established against the appellants by the prosecution evidence. As a
matter of law, the presumption under Section 113-B of the Evidence Act,
1872 is fully attracted in the facts and circumstances of the present
case. The appellants 27 have failed to rebut the presumption under
Section 113-B.
22. For the foregoing reasons, we find no merit in the appeal and it is
dismissed accordingly. Two months' time is given to A-1 to surrender for
undergoing the sentence awarded to her.
52. In the present case, respondents/accused have
failed to rebut presumption under Section 113-B of the
Evidence Act. 33. Their Lordships of Hon'ble Supreme
Court in (2011) 11 SCC 733, in the case of "Sanjay Kumar
30
Jain Vs. State of Delhi", have held that in order to bring
home the guilt under Section 304-B IPC, the prosecution
must prove that victim was subjected to cruelty or
harassment by her husband or his relatives. Such cruelty
or harassment was for, on in connection with any demand
for dowry. Such cruelty or harassment was done within
seven years of the marriage. Their Lordships have held that
as under :-
"48. In State of Punjab v. Iqbal Singh, this Court observed that
crimes are generally committed in the privacy of residential homes and
in secrecy and it is difficult to get independent direct evidence in such
cases. That is why the legislature has, by introducing Sections 113-A
and 113-B in the Evidence Act, tried to strengthen the prosecution
hands by permitting a presumption to be raised if certain foundational
facts are established that the unfortunate event has taken place
within seven years of the marriage.
49. On proper analysis of Section 304-B of the Penal Code and Section
113-B of the Evidence Act, it shows that there must be material to
show that soon before her death the victim was subjected to cruelty or
harassment. The prosecution is under an obligation to rule out any
possibility of natural or accidental death. Where the ingredients of
Section 304-B of the Penal Code are satisfied, the section would apply.
If death is unnatural, either homicidal or suicidal, it would be death
which can be said to have taken place in unnatural circumstances and
the provisions of Section 304-B would be applicable.
50. The death, otherwise than under normal circumstances, under
Section 304-B of the Penal Code would mean the death not in usual
course either natural or accidental death. Section 304- B creates a
substantive offence. The necessity for insertion of the two provisions
has been amply enumerated by the Law Commission of India in its
21st Report, dated 10-8-1988 on "Dowry Deaths and Law Reform".
This has been primarily done because of the pre-existing law in
securing evidence to prove dowry-related deaths.
51. In order to bring home the guilt under Section 304-B of the Penal
Code the following ingredients are necessary: (1) The victim was
subjected to cruelty or harassment by her husband or his relatives. (2)
Such cruelty or harassment was for, or in connection with any demand
for dowry. (3) Such cruelty or harassment was done within seven
years of the marriage. In the present case, deceased died within seven
years of marriage. She was subjected to cruelty and harassment by
her husband and relatives for bringing insufficient dowry."
53. Their Lordships of the Hon'ble Supreme Court in
2012 (10) SCC 476, in the case of "Darbara Singh vs. State
of Punjab", have reiterated, unless oral evidence available is
totally irreconcilable with medical evidence, oral evidence
would have primacy. It is only when contradiction between
two is so extreme that medical evidence completely rules
out all possibilities of ocular evidence being true at all, that
ocular evidence is liable to be disbelieved. Their Lordships
have held as under: -
31
"10. So far as the question of inconsistency between the
medical evidence and the ocular evidence is concerned, the law is
well settled that, unless the oral evidence available is totally
irreconcilable with the medical evidence, the oral evidence would
have primacy. In the event of contradictions between medical and
ocular evidence, the ocular testimony of a witness will have greater
evidentiary value vis-à-vis medical evidence and when medical
evidence makes the oral testimony improbable, the same becomes a
relevant factor in the process of evaluation of such evidence. It is
only when the contradiction between the two is so extreme that the
medical evidence completely rules out all possibilities of the ocular
evidence being true at all, that the ocular evidence is liable to be
disbelieved. (Vide State of U.P. v. Hari Chand3 and Bhajan Singh v.
State of Haryana4.)"
54. In (2015) 4 SCC Page 393, in the case of 'Ashok
v. State of Maharashtra' their Lordships of Hon. Supreme
Court have held that initial burden of proof is on
prosecution to adduce sufficient evidence pointing towards
guilt of accused. However, in case it is established that
accused was last seen together with deceased, prosecution
is exempted to prove exact happening of incident as
accused himself would have special knowledge of incident
and thus, would have burden of proof as per Section 106 of
the Evidence Act. Their Lordships have held as under: -
"12. From the study of abovestated judgments and many others
delivered by this Court over a period of years, the rule can be
summarised as that the initial burden of proof is on the prosecution
to bring sufficient evidence pointing towards guilt of the accused.
However, in case of last seen together, the prosecution is exempted to
prove exact happening of the incident as the accused himself would
have special knowledge of the incident and thus, would have burden
of proof as per Section 106 of the Evidence Act. Therefore, last seen
together itself is not a conclusive proof but along with other
circumstances surrounding the incident, like relations between the
accused and the deceased, enmity between them, previous history of
hostility, recovery of weapon from the accused, etc. non-explanation of
death of the deceased, may lead to a presumption of guilt."
55. In 2015 (6) SCC 477, in the case of "Rajinder
Singh vs. State of Punjab", their Lordships of Hon. Supreme
Court have held that any money or property or valuable
security demanded by any of the persons mentioned in
Section 2 of Dowry Prohibition Act, at or before or at any
time after the marriage which is reasonable connected to
the death of a married woman, would necessarily be in
connection with or in relation to the marriage. Such giving
32
or agreeing to give of any property or valuable security can
be at any time - it can be at, before, or at any time after the
marriage. Their Lordships have held as under: -
"1.The facts of this case raises questions relating to
one of the two great social evils practised against the
women of this country for centuries. In the facts
presented before us, a young woman consumes pesticide
having been driven to do so by repeated demands being
made on her for money by the family into which she is
supposed to merge her identity. Sati and dowry deaths
have plagued this nation for centuries. Sati--the practise
of sending a widow to her husband's funeral pyre to burn
in it--was first outlawed under British Rule in 1829 and
1830 under the Governor Generalship of Lord William
Bentinck in the Bengal, Madras and Bombay
Presidencies. General Sir Charles Napier, the
Commander-in-Chief of the British Forces in India
between 1859 and 1861, is supposed to have said to the
Hindu priests who complained to him about the
prohibition of Sati that "the burning of widows is your
custom but in my country, when a man burns a woman
alive, we hang them and confiscate all their property. Let
us both, therefore, act in accordance with our national
customs."
2. It took free India many years before the Commission of
Sati (Prevention) Act, 1987 was passed by Parliament
setting down various offences relating to the commission
of Sati and the trial of such offences by special courts. In
this appeal, however, we are confronted with the other
major problem, namely, dowry deaths. Parliament
responded much earlier so far as the prohibition of dowry
is concerned by enacting the Dowry Prohibition Act, 1961
under which minimum sentences were prescribed as
penalty for the giving or taking of dowry. The specific
menace of dowry deaths, however, was tackled by the
introduction of a new provision in 1986 -- Section 304-B
in the Penal Code together with another new provision
Section 113-B of the Evidence Act. These two sections
read as follows:
"304-B. Dowry death.--(1) Where the death
of a woman is caused by any burns or bodily injury
or occurs otherwise than under normal
circumstances within seven years of her marriage
and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband
or any relative of her husband for, or in connection
with, any demand for dowry, such death shall be
called 'dowry death', and such husband or relative
shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section,
'dowry' shall have the same meaning as in Section
2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which may
extend to imprisonment for life."
***
33 "113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
8. A perusal of Section 2 shows that this definition can be broken into six distinct parts:
(1) Dowry must first consist of any property or valuable security-- the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.
(2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.
(3) Such property or security can be given or agreed to be given either directly or indirectly.
(4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.
(5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.
(6) Such giving or receiving must be in connection with the marriage of the parties.
Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".
13. In order to arrive at the true construction of the definition of dowry and consequently the ingredients of the offence under Section 304-B, we first need to determine how a statute of this kind needs to be interpreted. It is obvious that Section 304-B is a stringent provision, meant to combat a social evil of alarming proportions. Can it be argued that it is a penal statute and, should, therefore, in case of ambiguity in its language, be construed strictly?
20*. Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in 34 Appasaheb case10 followed by the judgment of Vipin Jaiswal11 do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.
24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B.
25. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana27, in which the law was stated thus: (SCC p. 537, para 15)
15. "The expression 'soon before' is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straitjacket formula can be laid down by fixing any time of allotment. It can be said that the term 'soon before' is synonymous with the term 'immediately before'. The determination of the period which can come within term 'soon before' is left to be determined by the courts depending upon the facts and circumstances of each case." We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before".
56. In 2016 (4) SCC Page 604,in the case of 'Gajanan Dashrath Kharate v. State of Maharashtra', their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on 35 the accused to offer explanation. In paragraph no.13, their Lordships have held as under: -
"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
57. In AIR 1968 Bombay 127, in the case of "Palaiswamy Vaiyapuri vs. State", the Division Bench of Hon. Bombay High Court has held that contention that medical evidence alone should be considered in deciding whether the death is violent or unnatural and further held that the conduct of accused and other circumstantial evidence were also held relevant in proving the guilt of the accused. The Division Bench has held as under: -
"(9) The case for the prosecution solely rests upon circumstantial evidence. The principles relating to appreciation and evaluation of circumstantial evidence are well settled. In the first place, each of the circumstances on which the prosecution relies, must be affirmatively established. In the second place, these circumstances considered in their totality must be consistent and consistent only with the guilt of the accused. In the third place, the circumstances must be incompatible with the hypothesis of the innocence of the accused. The cases in which these principles have been propounded are legends and it is enough to cite a passage from the judgment of the Supreme Court in Govinda Reddy v. State of Mysore, AIR 1960 S.C.28:
"In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."36
Before we deal with the circumstantial evidence led in this case, the first question for our consideration is whether the deceased, Palaniammal met with an unnatural death. If the prosecution fails to prove that Palaniammal died by unnatural causes, then it would be an end of the prosecution case. The question as to whether the deceased died an unnatural or a violent death is to be decided mainly with reference to the medical evidence and the medical authorities. Mr. Kode contended that the question as to whether the deceased met with a violent or unnatural death can only be decided with reference to the medical evidence. We are not prepared to accept this proposition as an absolute proposition of law. Wills in his famous book on the Principles of Circumstantial Evidence, 1912 edition, page 333 states:
"In cases of homicide three propositions must be made out in order to establish the corpus delicti:
(1) That a death has taken place.
(2) That the deceased is identified with the person alleged to have been killed.
(3) That the death was due to unlawful violence or criminal negligence."
"In the great majority of cases, the moral conduct of the person accused or suspected has little or nothing to do with the investigation of death, identity, or foul play, but it would be going too far to say that moral conduct of an accused or suspected person can have no bearing upon any of these questions".
Again at page 401 the following passage appears:
"The Lord Chief Justice, Lord Campbell, in his charge to the jury said that: 'in cases of this sort the evidence had often been divided into medical and normal evidence; the medical being that of the scientific men, and the moral the circumstantial facts which are calculated to prove the truth of the charge against the party accused. They cannot "be continued", be finally separated in the minds of the jury, because it is by the combination of the two species of evidence that their verdict ought to be found. . . . His Lordship also said;
'It is impossible that you should not pay attention to the conduct of the prisoner, and there are some instances of his conduct as to which 'you' will say whether they belong to what might be expected from an innocent or a guilty man.'"
The propositions enunciated by Wills have been accepted by the Supreme Court in Anant Lagu v. State of Bombay,1960CriLJ682 Hidayatullah J., who delivered the judgment for the majority of the Court, stated;
"Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the post-mortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with unerring certainty the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind the difficult task which the man of medicine performs and the limitations under which he works his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn".
Indeed, there may be cases where the corpus delicti may not be forthcoming at all. To quote Wills again, at page 326 the learned author observes:
37"It is clearly established law that it is not necessary that the corpus delicti should be proved by direct and positive evidence, and it would be most unreasonable to require such evidence. Crimes, and especially those of the worst kinds, are naturally committed at chosen times, and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present, or society must be broken up. Nor is it very often that adequate evidence is not afforded by the attendant and surrounding facts, to remove all mystery, and to afford such a reasonable degree of certainty as men are daily accustomed to regard as sufficient in the most important concerns of life; to expect more would be equally needless and absurd. Again, at page 328 the author observes:
"It is enough if its existence the highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just."
It would thus be clear that the Court would be entitled to raise an inference about the unnaturalness of death on the basis of only circumstantial evidence. In this connection, the case of Mary Anna Nash reported in Criminal Appeal Reports, Vol. VI page 225, edited by Herman Cohen (Stevens and Haynes, Law Publishers), gives us a proper perspective. The facts of that case were as follows:
On the 27th of June 1907 the appellant was charged with the murder of her illegitimate son, aged five years and nine months. The body was discovered in a well at Burbage in April 1908; an inquest was then held, quite close to the scene of the alleged murder and to the place where the appellant was then living. The features were unrecognisable, and decomposition was advanced. At that time, no evidence was forthcoming and no suggestion was made against the appellant. In October 1906, appellant removed the child from care of her father and placed him with Mrs. Mary Stagg, at Pewsey. She got behind in her payments, and on May 29, 1907, he was removed to a Mrs. Emma Stagg at Aughton, with whom appellant was herself then living. On the way the child was taken for a rest to the cottage of a Mrs. Taken for a rest to the cottage of a Mrs. Sherwood, which overlooks the field where the well is in which the body was afterwards found. Mr. Stagg objected to keeping the child, and one or two days after June 26, 1907, appellant took him away, saying she was going to the house of a Mrs Hiller, near Marlborough. She returned the same evening without him, after an absence of about twelve hours; and then on several other occasions stated, untruly, as was admitted at the trial, that the boy was at Mr. Hiller's alive and well. Mrs. Sherwood, which overlooks the field where after the child was at her house she met him walking on the Aughton side of her cottage' i.e. going for Mrs. Stagg's house towards the well, and beyond that in the direction of Marlborough, and that he was accompanied by a woman whom she could not identify, but who was tall. . . . . . . In December 1907, two workmen, looking in to the well, saw something floating, which they took to be a dog; they could touch the water with a stick. They saw nothing else; no doubt the well was wider down below than at the aperture, which was 18 inches in diameter. The remains of dog were afterwards found in the well. The evidence was that if the body of the child was put in the well in June 1907 it must have been floating by December. In April, 1908, it was found by two other workmen, although a doctor was called in, he made no post mortem or other careful examination. There was no evidence even as to sex except from the general appearance and dress. There was nothing to show whether death was natural or violent, nor whether it occurred before or after the body was put into the well. It was conceded that a child of five or six 38 years could lift the well cover, and might therefore, have fallen in accidentally.
The Lord Chief Justice, Mr. Justice Darling and Mr. Justice Banker held: but we cannot accept that Mr. Goddard cannot have meant that there must be proof from the body itself of a violent death"
In the famous Palmer's case where there was conflicting expert evidence on both the sides, Lord Campbell said that circumstantial evidence is all that can be reasonably expected and he pointed out that of the various heads of evidence in charges of poisoning that of moral conduct is of most general interest (see page 374 of Wills). At page 375 Wills says:
"In most criminal charges, the evidence of the corpus delicti is separable from that which applies to the indication of the offender; but in cases of poisoning, it is often impossible to obtain conclusive evidence of the corpus delicti, irrespectively of the explanatory evidence or moral conduct: and Mr. Justice Buller, in Donnellan's case told the Jury that:
If there was a doubt upon the evidence of the physical witnesses, they must take into their consideration all the other circumstances, either to show that there was some poison administered, or that there was not, and that every part of the prisoner's conduct was material to be considered" (Vide page 376 of Wills).
Again at pages 376 and 377 Wills observes: "It is indeed, obvious that where the medical evidence is not conclusive as to the cause of death, evidence of facts tending to show that the accused person knew that poison had been administered is relevant to the question whether the deceased did in fact die of poison".
It would thus be clear that even for the purpose of finding out as to whether death was unnatural, we can, and have got to take into account the conduct of the accused."
58. The prosecution has duly proved that the deceased-Priyanka was killed due to cruelty and harassment for dowry.
59. The prosecution has proved the ingredients of cruelty and harassment in connection with demand of dowry immediately before the death of Priyanka. Section 113(3) of the Evidence Act is also applicable in the case. The deceased has died within seven years of her marriage.
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 39 the dead body was lying in the car, even, in the statement recorded under Section 313 of Cr.P.C.
61. Learned Trial Judge has overlooked this very vital fact that the dead body of Priyanka was recovered from the rear seat of the car and to which no explanation whatsoever has been given by the accused.
62. Learned counsel appearing on behalf of the accused-respondent nos.1 to 3 has also argued that no independent witness was produced. However, it is settled law that statement of close-relatives can be relied upon but with due caution.
63. Their Lordships of Hon'ble Supreme Court in (2017) 3 SCC 247 in the case of Arjun and another vs. State of Chhattisgarh, have held that where prosecution case rests upon evidence of related witness, court shall scrutinise evidence with care as a rule of prudence and not as a rule of law. The fact of witness being related to victim or deceased does not by itself discredit the evidence. Their Lordships have held as under :-
"10. Shivprasad PW 6 is the real brother of the deceased. PW 6 has deposed in his evidence that on 19-11-2006 at about 8.45 a.m., his brother Ayodhya Prasad alias Rahasu had gone to the field for cutting of trees along with four labourers who are eyewitnesses i.e. PWs 1, 2, 7 and 8 and at that time A-1 Lalaram, A-2 Padumlal and A-3 Arjun came there with katta and gandasa and surrounded the deceased, quarrelled with him and prevented him from cutting the tree. The accused told the deceased that they are the owners of the land and questioned him as to why he was cutting the tree. When the deceased replied that he was the owner of the tree and he had the right to cut the tree, there was wordy altercation between the accused and the deceased and the accused attacked him with the weapons they had, namely, katta, gandasa and a stone. The deceased sustained injuries on his head, neck, back and abdomen and fell down on the field. He further deposed that he witnessed the incident from near the shop and the distance between the shop and the place of occurrence is 15 to 20 ft and due to fear, he did not go near.
12. In Mano Dutt v. State of U.P.2, this Court held as under:
(SCC p. 92, para 33) "33. The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to 40 such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the court would not fall in error of law in relying upon the statement of such witness. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect. Reference in this regard can be made to the judgment of this Court, in Anil Phukan v. State of Assam."
64. In the present case, the statements of DW1 Dr. K.K. Aggarwal, DW2 Mamta Tyagi and DW4 Dr. Neera Chandra does 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.
65. Consequently, the accused are found guilty under Section 304-B of IPC read with Sections 498-A and 3/4 of Dowry Prohibition Act.
66. Accordingly, in view of the observations and discussion made hereinabove, the appeal is allowed. The judgment dated 08.02.2017 is set-aside. The accused- respondents, namely, Sandeep Kumar, Bhundiya Singh and Smt. Harpali Devi are convicted under Section 304(B) of IPC, Section 498-A of IPC and 3/4 of Dowry Prohibition Act, 1961.
67. Let the convicts be produced before the Court for hearing on the quantum of sentence on July 21, 2017. Production warrant be accordingly prepared by the Registry of the Court ensuring the presence of the convicts for hearing on the quantum of sentence on the next date fixed.
68. Put up on July 21, 2017 for further orders.
69. However before parting with the judgment, it is directed that all the medical certificates and information 41 supplied by the private practitioner(s) throughout the State of Uttarakhand shall be countersigned by the respective CMO of the District to be relied/proved upon during the criminal as well as civil trials.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT