TARSEM KAUR AND OTHERS Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) The appellants, in the instant case, are the mother-in-law, elder brother-in-law and elder sister-in-law of the victim. The First Information Report, in the instant case, was lodged by the victim herself. Each of the appellants herein has been convicted for offences punishable under Sections 304B and 498A of the Indian Penal Code and also Section 3/4 of Dowry Prohibition Act. On the First Information Report, the fingerprint of the victim has been affixed. The First Information Report was proved in course of trial and was exhibited by the Investigating Officer. He was cross-examined at length, but it was not suggested that the fingerprint appearing on the First Information Report is not that of the victim.

(2.) In the First Information Report, it was alleged that the appellants forced her to consume Sulphos (Aluminum Phosphide), because she and her paternal family had not be able to meet certain dowry demands, as were put forward by the appellants. The Investigating Officer, while conducting investigation pursuant to the First Information Report, recorded the statement of the husband of the victim under Section 161 of the Code of Criminal Procedure, when the husband held out that he was away alongwith his father to the field and when he returned, he found that the victim is alone in the house and she was not well and, as such, he had taken the victim to the hospital. According to the records of the hospital, victim was admitted in the hospital around 8 O' clock in the morning and she died at 11 O' clock in the morning itself. In between that, while she was admitted and waiting for her death, victim organized sending of a memo to fetch the Investigating Officer and, in his presence, recorded her statements and affixed her fingerprint thereon for the purpose of using the same as a First Information Report. In that, she clearly held out that it was a case of homicide as Sulphos was administered on her. The dead body of the victim was sent for post-mortem. Doctor, who conducted post-mortem, reported that the cause of death is not decipherable from conduction of such post-mortem. He stated that viscera has been preserved for the purpose of obtaining ultimate opinion pertaining to the death. The Investigating Officer forwarded the viscera to FSL, Agra. FSL, Agra reported that the viscera contained Aluminum Phosphide. The Investigating Officer also recorded statements of the father and the mother of the victim, when they held out that the appellants harassed her for non-fulfilment of dowry demands. In those circumstances, when the charge-sheet was filed, a case punishable under Sections 304B and 498A of I.P.C. and also Section of Dowry Prohibition Act had been made out. The court below framed charge in the same line. In order to bring home the charge, reliance was placed by the prosecution on the First Information Report and another similar statement given by the victim to the doctor, the post-mortem report, the viscera report of the victim, evidence tendered by the Doctor, who conducted the post-mortem and also the evidence given by the father and the mother of the victim. While the case, as was made out in course of trial by the prosecution, was put to the appellants under Section 313 of the Code of Criminal Procedure, while they denied the same, the defence relied upon the evidence of the husband of the victim. The husband of the victim deposed that the victim was having stomach ache, in respect thereof he had brought medicine and she had taken such medicine, whereupon he had taken the victim to the hospital and, in course of treatment at the hospital, she died. The husband, therefore, held out that the substance, that the victim had swallowed immediately before her death and which prompted the husband of the victim to take the victim to the hospital, was the same medicine brought by the husband himself. It is surprising that though he had stated that the medicine was prescribed by a Government Doctor, but the prescription was not produced. It is even more surprising that the medicine, which was prescribed, was not named. In the viscera report, it has not been reported that apart from Aluminum Phosphide, any other chemical substance was available. The conclusion, therefore, would be that the husband himself brought Aluminum Phosphide for the purpose of administering the same on the wife. This piece of evidence, in the backdrop of the contents of the First Information Report and the evidence tendered by the mother and the father of the victim, would amply demonstrate that the husband was making a last attempt to save his mother, his elder brother and his sister-in-law. In other words, though it is an accepted situation that the victim died an unnatural death by administration of a poisonous substance known as Aluminum Phosphide, the husband of the victim was trying in vain to derail the accepted situation. Inasmuch as, the charge under Section 302 of I.P.C. was not framed, we need not go into the question, whether it was self-inflicted or it was administered. The defence has not even attempted to make out any case as to why a poisonous substance, as that of Aluminum Phosphide, would be consumed by the victim of her own.

(3.) Be that as it may, the conclusion would be that one of the limbs of Section 304B of IPC, namely, death was an unnatural death stands conclusively established in the facts and circumstances of the case. The second ingredient of the said Section is also established in view of the fact that the marriage of the victim took place on 26 th June, 2002 and the death, in the instant case, took place on 21st June, 2003. The question is, whether the last ingredient stands proved or not The counsel for the appellants submitted that the victim was a literate lady, but she never wrote a letter to her parents indicating that she is being harassed or tortured for non-fulfilment of dowry demand. It was contended further that the husband of the victim was living separate from his mother, brother and his wife. It was contended that, in such circumstances, appellants asking for anything in dowry did never arise. It was contended that, in defence, the husband stated that he is separate from the appellants in all matters. The learned counsel, appearing in support of the appeal, further contended that there is no other evidence suggesting harassment or cruelty by the appellants or any of them soon before the death of the victim in connection with any demand for dowry.