Case: SANDEEP KUMAR AND OTHERS Vs. STATE OF UTTARAKHAND AND ANOTHER

statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. 59. Even if we were to follow the said principles the statement attributed to the deceased that she had told the doctors (DW2 and DW4) about her having suffered from TB is admissible for the fact of her having stated so even if it is not admissible for the truth of the statement. That apart, the action of the Medical Practitioner in acting upon it, by way of prescribing medicines and ordering blood test and x-ray would appear to be relevant and admissible. The appellants in their questioning under Section 313 CrPC, set up the case of TB. We need not probe the matter further including the aspect as to whether the matter may be relevant under Section 32 of the Evidence Act. 60. We may also draw support from the decision of this Court, relied upon by the appellant in Chhotan Sao vs. State of Bihar (supra) and reported in (2014) 4 SCC 54 . This was a case in fact where except for the cause of death all other facts necessary to prove the offence under Section 304B of the IPC stood proved. This Court, however, proceeded to hold as follows: 12 . No doubt the prosecution has adduced sufficient evidence to establish all other facts necessary to prove the offence under Section 304-B IPC except the cause of death. As seen from the trial court judgment there are no injuries on the body of the deceased. Even according to the first information report the death was caused due to poisoning which the deceased was compelled to consume. In such circumstances, the non-examination of the doctor who conducted the post-mortem coupled with the failure to produce the forensic laboratory report regarding the examination of viscera of the deceased leaves a gaping hole in the case of the prosecution regarding the nature of the death of Babita Devi. 13. The learned counsel for the State placed reliance on the decision of this Court in Bhupendra vs. State of M.P. [(2014) 2 SCC 106 : (2014) 1 SCC (Cri) 1 : (2013) 13 Scale 552 ], to which one of us, Ranjana Prakash Desai, J. , was a party. In the said case, no doubt this Court held that the production of chemical examination report is not mandatory. The Court held as follows: (SCC p. 112, para 23). 23. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B IPC or under Section 306 IPC takes place; in a case of an unnatural death inviting Section 304-B IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary- On the facts of that case, this Court reached to the conclusion that there was sufficient evidence on record to come to the conclusion that the death was due to poisoning. 61. We are of the view that second respondent should not be permitted to draw support from the statement in the Affidavit of the second appellant accompanying the Bail Application of his wife to the effect that the deceased herself took poison. Quite clearly, this is not evidence in the trial, as such. 62. As already noticed, in this case, apart from the fact that prosecution has not been able to establish that the cause of death was unnatural, the case setup about the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison has been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anaemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113Bapplies, 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]34. Though, since long, the law declaring the narrowing of appellate courts jurisdiction in regard to scope of interference with a verdict of acquittal, is settled, we may only refer to one decision. In Ghurey Lal vs. State of Uttar Pradesh, (2008) 10 SCC 450 after an exhaustive review of case law, this Court laid down, as follows:69. The following principles emerge from the cases above:1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial courts conclusion with respect to both facts and law.2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial courts acquittal bolsters the presumption that he is innocent.3. Due or proper weight and consideration must be given to the trial courts decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial courts acquittal:1. The appellate court may only overrule or otherwise disturb the trial courts acquittal if it has very substantial and compelling reasons for doing so.A number of instances arise in which the appellate court would have very substantial and compelling reasons to discard the trial courts decision. Very substantial and compelling reasons exist when:(i) The trial courts conclusion with regard to the facts is palpably wrong;(ii) The trial courts decision was based on an erroneous view of law;(iii) The trial courts judgment is likely to result in grave miscarriage of justice;(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;(v) The trial courts judgment was manifestly unjust and unreasonable;(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.(vii) This list is intended to be illustrative, not exhaustive.2. The appellate court must always give proper weight and consideration to the findings of the trial court.3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.35. It is well to remember that while the search of the truth and adjudicatory function of the judiciary are not strange bedfellows, these self-imposed limitations on the pursuit are based on the nature of jurisdiction. Every deviation from such limits could indeed result in grave injustice requiring correction to prevent miscarriage of justice. Excess of jurisdiction can have very serious repercussions, particularly when, what is involved is, personal liberty, which is inevitably at stake in a criminal trial.36. We have set out the findings of the Trial Court. The charge is one under Section 304B. The ingredients of the offence are well-settled. A marriage performed within seven years before the death of the wife. The death must be unnatural. Soon before the death, the deceased wife must have been at the receiving end of cruelty or harassment, on account of demand for dowry. It is described as dowry death. The relatives concerned, including husband, become liable. Section 113B of the Evidence Act comes to the rescue of the prosecutor by providing for a presumption that a person has caused dowry death if, it is shown that soon before her death, she was subjected by such person for cruelty or harassment for or in connection with demand for dowry.37. In this case, as regards the demand for Rs.10 lakhs by the first appellant, there are three striking features. PW1, the complainant and the father of the deceased, deposes that about one month before the death, the deceased and the first appellant came to him at Mawana and first appellant sought Rs.10 lakhs from him and that they will return the money. He being moved by the tears in his daughters eyes, pawned his late wifes jewellery, raised one lakh and gave to the appellant and his daughter. However, PW2, his son, deposed that it was four months before the death that the deceased and the first appellant came to their house at Mawana, asked for Rs.10 lakhs. He sets up the version that he raised one lakh by pawning his wifes ornaments. Thus, the versions of PW1 and PW2 both as regards time of demand and the manner of raising Rupees One lakh, appear to be clearly contradictory. What is more significant is the further contradiction introduced by PW3 who is the brother-in-law of PW1. He deposes that two months from the incident, he had gone to the home of PW1, who informed him that the in-laws of the deceased are demanding Rs.10 lakhs for the construction of the house for the purpose of rent. PW1 showed his inability.38. What follows next is the last nail in the coffin of the prosecution version, which completely falsifies what both PW1 and PW2 has deposed. PW3 states that PW1, after pawning ornaments of his sons wife, paid Rs. 1 lakh to the first appellant. The learned Sessions Judge entered findings noting these contradictory versions. He also finds that if the father-in-law is approached for a sum of money after the marriage, on the basis that it will be returned back, it may not amount to a dowry demand.39. It is to be noted that PW1 has admitted that there was no demand for dowry before or at the time of marriage. The marriage took place on 10.12.2009. The death was on 23.01.2011. Though PW1, PW3, PW4 and PW6 have spoken about harassment on account of dowry, the learned Sessions Judge did not find material reliable. It is to be noted that the version about the demand for Rs.10 lakhs is found wholly unacceptable. The Trial Court has the advantage of watching the demeanor of the witnesses.40. The 1.0s- PW10 and PW11, have not made any enquiry from the neighbours of the appellants. The deceased was attending the B.Ed course as seen from the evidence of DW3. No complaint, whatsoever was given by PW1 to PW3 to any authority. We do not see any material except the testimony of PW1 to PW3 and PW6, which did not, at any rate, inspire the confidence of the Trial Court. It does not also commend itself to us either.41. PW6, aunt of the deceased also has given evidence in support of the prosecution. The forensic report is dated 28.3.2014. It states that metallic poisons, Ethyl Alcohol, Methyl Alcohol, cyanide, phosphides, Alkaloids, Barbiyurates, Tranquilizers and Pesticides were not detected in the exhibits.42. The incident took place on 23.01.2011. PW1 deposed that on the said date the Police had taken in their custody the Santro car before PW1 because in the car the dead body of the deceased was kept. Next, he says that the first appellant was present.43. Next the appellant would point out the statement of PW 11, the second investigating officer. He deposed in answer to the question in cross examination as to the oral evidence of which witness was available regarding unnatural death, that at the time of death all the accused were with her. Therefore, it was not possible to record the oral evidence of the appellants.44. Further the evidence of PW9, police officer, is to the effect that on 24.1.2011 he arrested the appellants from their house at L-84, Shivalik at 6.45 pm.45. No case is thus made out for drawing any inference against the appellants.46. PW1 has deposed that the Police had already reached the spot before him. Appellants have a case that they had informed the police. No doubt, the respondent No. 2 has sought to rely upon an entry in the general diary suggesting that PW1 had called from his mobile number that his daughter informed that in-laws have killed her by giving poison and he is reaching at her home and he may also be provided help. In fact, this is a document which is produced by the second respondent before this Court in the petition to produce additional documents. It is not marked as such. But when PW9 is examined, he refers to the carbon copy of the Report No. 28. However, he says he was not present at the Police Station at the time of Report. We do not see anything turning on it at any rate to advance the prosecution version.50. In this case, there is no evidence at all that the deceased died of poisoning. Secondly, there is no evidence to show that the appellants had poison in their possession. Thus, even proceeding on the basis that being the wife and daughter-in-law who was living with them that the appellants may have had the opportunity to administer poison, the other two tests are not satisfied. The police did not recover any poison from the appellants or their house. As already noticed the FSL report categorically rules out the presence of any poison. As regards the appellants not being found with any poison, we no doubt notice the view taken by a Bench of two learned judges and reported in Bhupinder Singh vs. State of Punjab, (1988) 3 SCC 513 . The same reads as under:24. From the foregoing cases, it will be seen that in poison murder cases, the accused was not acquitted solely on the failure of the prosecution to establish one or the other requirement which this Court has laid down in Dharambir Singh case [Criminal Appeal No. 98 of 1958, decided on 4-11-1958 (SC)] . We do not also find any case where the accused was acquitted solely on the ground that the prosecution has failed to prove that the accused had the poison in his possession. The accused in all the said cases came to be acquitted by taking into consideration the totality of the circumstances including insufficient motive, weakness in the chain of circumstantial evidence and likelihood of the deceased committing suicide.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 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.52. This court also explained the view taken in Anant Chintaman Lagu vs. State of Bombay, AIR 1960 SC 116. Again, in Shanmughan vs. State of Kerala, AIR 2012 SC 1142 the decision in AIR Bhupinder Singh v. State of Punjab (supra) came to be noticed. It was a case where death by poisoning was not in dispute. The only dispute was whether it was homicidal or suicidal. The court took note of the injuries which were found on the deceased. The victim had died of cyanide poison which is a highly corrosive poison. The evidence of PW7 in the said case was that the injuries could be due to forcible administration of the poison. The accused was specifically questioned about the injuries for which he had no answer. It was in these circumstances that the court after referring to paragraph-25 of Bhupinder Singh v. State of Punjab (supra) found that it was a case of poisoning. As far as the facts of the present case is concerned, we have noticed that there is absolutely no evidence relating to poison in relation to the deceased. Were it a case of forcible poisoning, by using a corrosive poison, there would been some marks. There are none. If it were forcible poisoning by using any kind of poison, there would be struggle and resistance from the victim. In this regard, PW1 is to be believed on 23.01.2011 at 9:30, he received a phone call from his daughter who, asked him to reach Haridwar, otherwise these people will kill her. Also, in the charge-sheet the prosecution proposed to prove its case based apart from the oral evidence the material recovered from the spot containing the vomiting of the deceased, which was cleaned by the accused. However, as noticed by the Learned Sessions Judge, the prosecution was unable to prove the presence of poison in the cleaning material referred to as the wiper.53. We find ourselves unable to subscribe to paragraph-42 in the impugned judgment that the chain is complete from the time of the telephone call received by PW1 from his daughter till the recovery of the body in the Santro car. We are unable to appreciate the circumstances as unfolded on the morning of 23.1.2011 which allegedly started from the phone call of the daughter of PW1 as thereafter the only other circumstance, is the recovery of the body in the rear seat of the Santro car. The existence of any circumstances, as would fulfil the requirement, as laid down by this court in paragraph-5 9 in Anant Chintaman Lagu v. State of Bombay (supra) , are not present. In paragraph-34 of the impugned judgment, the High Court refers to the FIR to notice that it is a case of poisoning. It further refers to the evidence of PW5-Medical Doctor that he admitted that on opening the body, the internal organs were congested, which could be due to poisoning. In this regard it may be noticed that PW5 has stated that he was not definite about the cause of death. He has further stated that on account of food poisoning the organs may be congested. Even more importantly, the doctor has opined that the death could have taken place due to Tuberculosis as in the case of Tuberculosis, the internal organs can be congested. The High Court has not referred to this part of the evidence, namely, that the congestion of internal organ could be due to Tuberculosis. Still further, there is a case for the appellants that food poisoning is to be distinguished from administering of poison and what the doctor has referred to is food poisoning. The High Court finds that merely because poison is not found, it cannot be said that deceased was not administered poison.54. At this juncture, though if in a given case, there is clinching evidence which establishes poisoning, it may be true that absence of poison in the viscera may not be decisive. That is not the position in the facts of this case. It is true that the division bench of the High Court also refers to Modis Medical Jurisprudence and Toxicology wherein the author has stated as follows: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 be 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 deciding a charge of poisoning, should weigh in evidence the symptoms, postmortem appearances and the moral evidence.55. There are no symptoms, which point to poisoning. Nothing in the post mortem appearance is brought out to show poisoning. The evidence of witnesses do not establish poisoning.56. It is to be noticed that there is no evidence in this case which could have persuaded the High Court to conclude that there were compelling reasons to interfere with the acquittal by the High Court. The appreciation of the evidence of the witnesses by the trial court unless it is found to be a case of misreading of the evidence or are based on an erroneous understanding of the law, could not have been interfered with. When the High Court records that there is ample evidence on record that the accused were demanding dowry from the deceased, it is done without noticing the features in regard to the demand for Rs.10 lakhs. As far as the other evidence is concerned, the evidence has not been accepted by the trial court as inspiring confidence. At best it could be said that there were two views possible. Even if that were so, it did not furnish a ground to the High Court to overturn the judgment of the trial court containing the findings which we have referred to. We do not think that this is a case where the finding of the trial case could be characterised as perverse.57. There is a contention raised by the second respondent that no reliance can be placed on the deposition of DW2 and DW4 that the deceased told these doctors that she was suffering from Tuberculosis as it was hearsay.58. No such contention is raised before the trial court or before the High Court. Therefore, we need not really deal with it. However, we may only notice the view taken by the Privy Council in Subramanian vs. Public Prosecutor, 1956 (1) WLR 965. In the said decision the appellant was tried for being in possession of ammunition illegally. His defence was that he had been captured by terrorists and he was put in duress. Evidence of the conversation by the terrorists was shut out by the court on the basis that it constituted hearsay. The Privy Council did not approve of the said view. It laid down as follows:In ruling out peremptorily the evidence of conversation between the terrorists and the appellant the trial judge was in error. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may no be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.59. Even if we were to follow the said principles the statement attributed to the deceased that she had told the doctors (DW2 and DW4) about her having suffered from TB is admissible for the fact of her having stated so even if it is not admissible for the truth of the statement. That apart, the action of the Medical Practitioner in acting upon it, by way of prescribing medicines and ordering blood test and x-ray would appear to be relevant and admissible. The appellants in their questioning under Section 313 CrPC, set up the case of TB. We need not probe the matter further including the aspect as to whether the matter may be relevant under Section 32 of the Evidence Act.60. We may also draw support from the decision of this Court, relied upon by the appellant in Chhotan Sao vs. State of Bihar (supra) and reported in (2014) 4 SCC 54 . This was a case in fact where except for the cause of death all other facts necessary to prove the offence under Section 304B of the IPC stood proved. This Court, however, proceeded to hold as follows:12 . No doubt the prosecution has adduced sufficient evidence to establish all other facts necessary to prove the offence under Section 304-B IPC except the cause of death. As seen from the trial court judgment there are no injuries on the body of the deceased. Even according to the first information report the death was caused due to poisoning which the deceased was compelled to consume. In such circumstances, the non-examination of the doctor who conducted the post-mortem coupled with the failure to produce the forensic laboratory report regarding the examination of viscera of the deceased leaves a gaping hole in the case of the prosecution regarding the nature of the death of Babita Devi.13. The learned counsel for the State placed reliance on the decision of this Court in Bhupendra vs. State of M.P. [(2014) 2 SCC 106 : (2014) 1 SCC (Cri) 1 : (2013) 13 Scale 552 ], to which one of us, Ranjana Prakash Desai, J. , was a party. In the said case, no doubt this Court held that the production of chemical examination report is not mandatory. The Court held as follows: (SCC p. 112, para 23).23. These decisions clearly bring out that a chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B IPC or under Section 306 IPC takes place; in a case of an unnatural death inviting Section 304-B IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 IPC (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary-On the facts of that case, this Court reached to the conclusion that there was sufficient evidence on record to come to the conclusion that the death was due to poisoning.61. We are of the view that second respondent should not be permitted to draw support from the statement in the Affidavit of the second appellant accompanying the Bail Application of his wife to the effect that the deceased herself took poison. Quite clearly, this is not evidence in the trial, as such.62. As already noticed, in this case, apart from the fact that prosecution has not been able to establish that the cause of death was unnatural, the case setup about the demand of Rs. 10 lakhs by accused appears to be riddled with irreconcilable contradictions. Neither the post-mortem nor the Forensic Lab Report shows any poisoning. No poison has been recovered at all from the house of the appellants. There are no marks of injury at all on the deceased. Even the material (wiper) recovered, according to prosecution, and which allegedly was used to clean vomit of the deceased, did not disclose any poison. The statement of Medical Practitioner (DW2) that the deceased was having weight of 39 kilograms and weight below normal as on 11.05.2010 cannot be ignored. Equally, the evidence of DW4 that the Doctor has prescribed medicine for Anaemia because the deceased had told about Tuberculosis earlier also, cannot be ignored. Evidence as to advice to the deceased in 2007 to undergo blood test and the x-ray, to confirm whether TB has totally cured or not and that the patient did not bring any x-ray or blood report, cannot be overlooked. Section 113B of Evidence Act may not apply in this case for the reason that in order that Section 113Bapplies, 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.