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Three test need to be established to prove the case of poisoning: SC Reiterates

Three tests came to be reiterated, as necessary to establish in a case of poisoning. 1.Death took place on account of poisoning

2.The accused had the poison in his possession

3.The accused had an opportunity to administer the poison (Para 47)

Sandeep Kumar and Others v. State of Uttarakhand and Another

Criminal appeal nos.1512-1513 of 2017

December 02, 2020.

Learned senior counsel for the appellants - Siddharth Dave,

Learned counsel for the first respondent-State - Krishnam Mishra,

Learned counsel for the second respondent -Shri Sanjay Kumar Dubey

The Hon’ble Supreme Court comprising of Justices Rohinton Fali Nariman, K.M. Joseph and Aniruddha Bose held in this case that, the High Court erred in its judgment by overturning the acquittal made by the Trial Court. Therefore, an order to set aside the impugned judgment of the High Court and to restore the judgment of the Sessions Judge was passed.

The appellants were charged with the offence punishable under Section 304B of the Indian Penal Code. They were acquitted for the charges by the learned sessions judge, Haridwar. Following which an appeal was carried by the complainant/respondent No.2. The High Court set aside the verdict of acquittal and the appellants after conviction under section 304-B of IPC were sentenced to undergo imprisonment for life.

The facts in the present case are that, the daughter of the second respondent was married to the first appellant. After few days of the marriage, the appellants who are the husband, father-in-law and mother-in-law of his deceased daughter started harassing her for dowry for a sum of Rupees ten lakhs. Seeing tears of his daughter who said that her parents must pay the amount otherwise they will kill her, they consoled her. Thereafter, his daughter is alleged to have phoned him, his family and his relatives thereby informing them that her husband, mother-in-law and father-in-law were torturing her for money and they are provoking her to commit suicide. The second respondent, received phone call from his deceased daughter on 23.01.2011 at about 9.30 am, to come at Haridwar, otherwise they will kill her on that day. So, they went there. The dead body of the daughter was found in the car given by them in marriage. They alleged that the death of the daughter was caused by poison and the appellants were responsible.

The prosecution examined 11 witnesses and the appellant examined four witnesses DW 1 to DW 4 before the Trial Court and some documents including FSL Report were also produced. From the Evidences, the findings by the Sessions Judge is that,

The telephonic call, which is made by PW1 on the fateful day cannot be treated as First Information Report and it is just an information given to the police and the FIR marked in the case is that what he had given after seeing the dead body of his daughter. The deceased was married to the first appellant on 10.12.2009. She died on 23.01.2011.The death was within seven years of marriage. The prosecution was unable to prove that the deceased died due to poison. From the search in the house of the deceased, no poisonous substance was found. It is also found that in the Wiper by which vomiting of the deceased was wiped, it was not proved that this was only poison. In the viscera also, there is no poison. Though there was a long gap in sending the viscera, the appellants could not be blamed for the same. Though, the deceased died at a very young age of 28 years, there is a history of tuberculosis before marriage. He refers to the evidence of the doctors which we have already referred to and also the information provided by the first appellant that he had taken the deceased to the hospital. It was the duty of the investigating officer to record the statements of the last treating doctor. It cannot be said that deceased died due to poison. No injury was 28 found on the body of the deceased as per the inquest report and post mortem. The oral evidence adduced by the prosecution itself ruled out physical cruelty in connection with the dowry (Para.22).

Later, this appeal was filed under criminal appellate jurisdiction in this Hon’ble Supreme Court where the counsel for the appellants submitted that,

For a conviction under Section 304B, the fundamental basis is to be the unnatural death of the woman within seven years of her marriage among other elements. But in this case, the prosecution has not proved that the death was unnatural. She was taking treatment. No poisonous substance was found in viscera. No poison was found in the house of the appellants. There were no marks of any injury as already noted. There is no demand for dowry right from the beginning. There was no basis to draw the inference which is drawn on the basis that the body was found in the rear portion of the car. With the support from the Judgment of this Court in Chhotan Sao and another v. State of Bihar, the accused is not found guilty.

The Counsel for the Respondents on the other hand contented that the finding of the dead body in the rear of the car in front of the house was emphasized. It was stated that the affidavit by appellant No.2, wherein he states that the deceased died of poisoning was suffice to show that the death was unnatural attracting Section 304B.

No case is thus made out for drawing any inference against the appellants. (Para.45)

They further observed that, there was no evidence at all that the deceased died of poisoning. Secondly, there is no evidence to show that the appellants had poison in their possession. The doctor has also opined that the death could have taken place due to Tuberculosis.

As already noticed, in this case, apart from the fact that prosecution has not been able to establish that the cause of death was unnatural, the case setup about the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison has been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113B applies, there must be evidence that soon before the death of the person, which proves that the person, who is alleged to have caused death, treated the deceased with cruelty or harassed her or in connection with a demand of dowry. We have noticed the state of the evidence in this regard. We are also of the view that there was no justification at all for the High Court, in the facts of this case, to have overturned acquittal by the Trial Court. (Para.62).

Thus it was held that the High Court without any justification reversed the acquittal. It has clearly erred in interfering with the acquittal of the appellants by 69 the High Court. The appeals are only to be allowed. Therefore, the impugned judgment of the High Court is to be set aside and the judgment of the Sessions Judge is restored. It ordered that the first appellant who is in custody shall be released unless his custody is required in any other case. As the appellants 2 and 3 are already on bail, their bail bonds shall stand discharged.