B.N. Katju, J. - (1.) Ashok Kumar Singh Sengar has filed this appeal against the judgment of the Sessions Judge, Etawah dated 10-12-1987 passed in S.T. No. 233 of 1986 convicting him under Section 302, I.P,C. and sentencing him to death.
(2.) The case of the prosecution is that the appellant was married to Smt. Suvira deceased daughter of Smt. Sarla Devi P. W. 3 on 20-6-1983 at Etawah. The appellant had done his M. Sc. in Chemistry and was doing. his Ph D. at the time of his marriage. He was a resident of Gwaliar His marriage with Smt. Suvira deceased was arranged by Ramvir Singh, the brother-in-law of Snit. Suvira deceased. Rs. 45.000/- was settled as dowry. Rs. 20,000/- was paid by Bank Draft. Rs. 10,000/- was paid in cash and a scooter costing Rs. 10,000/- and a fridge costing Rs. 5,000 and utensils and other articles were given at the time of the marriage according to custom. Arjun Singh Sengar, the father of the appellant, and also the appellant gave out at the time of the marriage that the cost of the scooter and the fridge was not to be included in the dowry that was settled and both of them demanded Rs. 15,000/- as the balance of the dowry. They were, however, told by Ramvir Singh that the said amount would be paid to them later, but it did not satisfy them and they were annoyed. The Barat party left Etawah with the bride without taking the fridge as it could not be kept in the bus in which it was travelling. On 1-7-1983 Rajiv Kumar P. W. 2, the brother of Smt. Suvira (deceased) went to Gwalior for the Bidai of the deceased and brought her from there to Etawah on 2-7-1983. Both he and Smt. Suvira (deceased) informed their mother Smt, Sarla Devi P.W. 3 that Arjun Singh Sengar and his wife were annoyed as Rs. 15,000 was not paid to them. They had kept all the ornaments and cloths which were given to Smt. Suvira (deceased) at the time of her marriage and She had been allowed to go from their house wearing only the silver Mangal Sutra. Ashok Kumar Singh Sengar appellant came to the house of Smt. Sarla Devi P.W. 3 at Etawah on 6-7-1983 and said that he had come on a month's leave and that he would be taking Smt. Suvira (deceased) to Mussoorie for their honey-moon. He also told Smt. Sarla Devi that his father was annoyed but he would be all right. The appellant behaved well and did not mention anything regarding dowry. Tickets for going to Mussoorie were purchased from the Railway Station at Etawah by Rajiv Kumar P.W. 2 for 9-7-1983 and berths were also reserved for the appellant and the deceased. On his return from the Railway Station the appellant insisted that the fridge be sent to Gwalior and Rajiv Kumar took the fridge from Etawah on 7-7-1983 for Gwalior. On 8-7-1983 at about 7 A.M. the appellant and Smt. Suvira deceased had tea together. Smt. Suvira deceased had also eaten some Laddus when the appellant asked her to do so. About an hour thereafter Km. Shalini P. W. 4 took a glass of water for the deceased and in the presence of Smt. Serla Devi P. W. 3 the deceased took a tablet and a capsule with water. When Smt. Serla Devi asked what medicine Smt. Suvira deceased was taking, the appellant told her that it was a preventive for malaria, which was in an epidemic form at Mussoorie. The appellant told Smt. Sarla Devi that the deceased had taken the tablet of resoehin and the capsule of Becasule. About an hour thereafter the condition of the deceased deteriorated and she complained of nausea and stomach ache. She was given some lemon and pickles and also some Laddus. The condition of the deceased, however, became worse and she could not speak. The appellant and others took the deceased to the district Hospital, Etawah where she was admitted in the Emergency Ward at 10-30 A. M. on the same day (8-7-1983). She was examined by Dr. H. N. Singh P. W. 5 who found her unconscious and her condition to be gave. She was given Decadwon, Mafentine, Coramine and Aderelene injection and also glucose and Haemoxenle drip. She, however, died ten minutes after her admission at 10-40 A. M. on the same day (8-7-1983). The report regarding the death of Smt. Suvira deceased was sent to P.S. Kotwali at 10.45 A. M. on the same day (8-7-1983). The post mortem examination was conducted by Dr. M. A. I P. W. on 9-7-1983 at 2-40 P. M. As no external injury was found on the body of Smt. Suvira deceased and the cause of her death could not be determined, the viscera was preserved. The viscera of the deceased was sent to the Chemical Examiner Shri J. P. S. Harpalani P. W. 6 and his report shows that it contained chloroquin and copper sulphate and the cause of death was poisoning. The prosecution examined four witnesses to connect the appellant with the crime, namely, Rajiv Kumar P. W. 2, Smt. Sarla Devi P. W. 3 Km. Salini P. W. 4 and J. S. P. Harpalani, P. W. 6. The appellant pleaded not guilty and stated that he was implicated falsely due to enmity. The trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellant and convicted and sentenced him as mentioned earlier.
(3.) Smt. Serla Devi P. W. 3 narrated the prosecution case mentioned earlier. It is, however, noteworthy that she stated in her statement under Section 161, Criminal Procedure Code made to S. I. Ranvir Singh, C. W. 1 that when her daughter Smt. Suvira deceased had come to her house at Etawah on 2-7-1983 from Gwalior, she was happy and she and her son-in-law Ashok Kumar Singh Sengar appellant had stayed happily at her house. The appellant and the deceased had taken Dalmot and ten in the morning on 8-7-1983 and then the appellant had gone to the market to get himself shaved. The deceased thereafter had eaten two Laddus and lemon pickles. The relations between the appellant and the deceased were good. The appellant sent a telegram to his father and his relations informing them of the death of the deceased. There was no dispute regarding dowry between her and the relations of the appellant. All this was, however, denied by her in the trial court, but S. I. Ranvir Singh C. W. 1 has proved the aforesaid statements made by her to him on 11-7-1983. In these circumstances, her statement that the relations between the appellant and the deceased were strained on account of non-payment of Rs. 15,000/- as the balance of dowry cannot be accepted. Thus there does not appear to be any motive for the appellant to have committed the murder of the deceased. Further his conduct prior as well as subsequent to the death of the deceased is consistent with his innocence. The statement of Smt. Sarla Devi that the appellant made the deceased take a tablet and a capsule in her presence, however, appears to be correct, considering the fact that chloroquin was found in the viscera of the deceased by the Chemical Examiner, it appears that the tablet that was taken by the deceased was of chloroquin. It is note-worthy that it was stated by Smt. Sarla Devi that the appellant had said before the deceased took the tablet that he was making her take an anti-malarial drug as malaria was prevalent in Mussoorie. The capsule that was taken by the deceased along with the tablet appears to be of Becasule as Smt. Sarla Devi has stated that the appellant had said that he was giving the deceased Becasule capsule along with chloroquin tablet. In view of the statement of Dr. R N. Katiyar, the medical expert, one tablet of chloroquin could not normally cause the death of the deceased as the minimum fatal dose of chloroquin is oie gram per kilogram body weight and a tablet weights only 150 mg. It appears that the deceased was allergic to chloroquin as Smt. Sarla Devi deposed that the condition deteriorated rapidly after she had taken the giblet of chloroquin and she died in the hospital within ten minutes of her arrival there In these circumstances, it is obvious that the appellant did not make the deceased that the chloroquin tablet with the intention of causing her death or even with the knowledge that her death was likely to be caused by taking a tablet of chloroquin. It appears that her death took place as she was allergic to it. It may be mentioned that although copper sulphate was found in the viscera of the deceased by the Chemical Examiner, its quantity has not been determined. According to Dr. B. N. Katiyar, the minimum fatal dose of copper sulphate is half ounce to one ounce (16 gram to 30 gram) and a capsule could only contain between 500 to 700 mg. It is also highly unlikely that the appellant made the deceased take a capsule of copper sulphate. It is quite possible that traces of copper sulphate may have been found in the viscera of the deceased as had taken pickles before she had gone to the hospital and it is quite possible that the utensil from which the pickles were taken may have been made of copper and traces of copper sulphate may have been present in the utensil as it may not have been cleared. It is note- worthy that it has not been established by the evidence of the Chemical Examiner that fatal doses of chloroquin and copper sulphate were administered to the deceased as quantitative analysis was not done by him. Further, according to Dr. Katiyar one capsule of copper sulphate and one tablet of chloroquin could not normally cause the death of the deceased. In these circumstances, it cannot be held that the appellant committed the murder of the deceased by making her take a tablet of chloroquin and a capsule of copper sulphate. Rajiv Kumar P. W. 2 deposed that Shrimati Suvira deceased was his sister. She was married on 20-6-1983 to the appellant who was a resident of Gwalior. The marriage was arranged by Ramvir Singh. Rs. 45,000/- was settled as dowry out of this Rs. 30,000/- was to be paid in cash and articles for the remaining amount were to be given. A scooter and a fridge had been purchased for Rs. 15,000/-. The father of the appellant and the appellant said at the time of the marriage that the price of the scooter and the fridge should not be included in the amount of dowry that had been settled and Rs. 15,000/- should he given to them as part of the dowry, but this could not be given. The fridge was not taken in the bus by the barat party. The deceased went to Gwalior after her marriage and he went for her Baidai. The parents of the appellant were not prepared to send the deceased unless Rs. 15,000/- were paid to them. After persuasion they sent the deceased with him but kept her ornaments and clothes with them. The appellant came to his house, in Etawah on 6-7-1983. His behaviour was good and he told Smt. Sarla Devi P.W. 3 that he and the deceased would go to Mussoorie for their honeymoon. He purchased tickets for them on 7-7-1983 and berths were also reserved for them for 9-7-1983 from Etawah. The appellant, however, insisted that the fridge which had been left behind should be sent to Gwalior on 7-7-1983 and he took it from Etawah to Gwalior on that day and returned to Etawah on 8-7-1983. On his return to Etawah he was informed that the deceased had died because of administration of drugs by the appellant. He then went to the District Hospital and saw the body of the deceased He was informed at the hospital also that drugs had been given by the appellant to the deceased before she had died by telling her that there was malaria in an epidemic form at Mussoorie and drugs for its prevention were to be taken. The appellant had passed his M Sc. at the time of his marriage and was doing research. The inquest report of the deceased was prepared in his presence and also in the presence of the appellant. His statement that the appellant and his father were demanding Rs. 15,000 as the balance of the dowry from him and his other relations cannot be accepted in view of letters Ext. Ka-24, Ka-25 and Ka-26 written by the appellant to the deceased prior to their marriage and also after their marriage, from which it appears that they were happily married and there was no dispute regarding the payment of the balance of dowry between the appellant and his relations and the relations of the deceased. Further it was stated by him in his statement recorded under Section 161 Criminal Procedure Code by S.I. Ranvir Singh C.W. 1 on 11-7-1983 that neither the appellant nor his father had demanded dowry. It was also stated by him in his statement under Section 161 Criminal Procedure Code that at the time of the post mortem examination the appellant had told him that fie could not return his sister but he would return the money paid by him and the articles given by him at the time of his marriage. It is noteworthy that he denied having made these statements, but S.I. Ranvir Singh has proved these statements and there does not appear to be any good reason for not relying on the testimony of S.I. Ranvir Singh. Km. Shalini P.W. 4 deposed that she was the niece of the deceased. She was present at the house of her grand-mother in Etawah on the day the deceased died (8-7-1983). On that day at about 8.30 A.M. the appellant had asked her to bring water and she brought a glass of water and gave it to the deceased, who was in the Baithak, in the presence of the appellant. The appellant then went to the market to get himself shaved. After half an hour she again went to the baithak but the appellant had not returned by then. The deceased told her that she was not feeling well. Her grand-mother they made her eat laddus and lemon pickles. The conditions of the deceased, however, deteriorated and she vomited. She then called her neighbours Bhanu, Arvind and Raju and they took the deceased to the hospital. Shortly thereafter she and her grand-mother also went to the hospital. The appellant did not allow any one to meet the deceased and said that she should be allowed to rest. The deceased died shortly afterwards. Her evidence appears to be reliable as nothing has been brought out in her cross-examination to shake her credit, but it does not connect the appellant with the murder of the deceased. The result, therefore, is that the prosecution has failed to establish the guilt of the appellant under Section 302 Indian Penal Code.;