Nirmal Yadav, J.
1. The appeal filed by the State and revision filed by Vijendra Kumar Goyal, father of Preeti (deceased) shall be disposed of vide this common judgment as both arises out of the judgment dated 05.10.2004 passed by the learned Sessions Judge Almora in sessions trial No. 1 of 2000 acquitting the accused-Manish Goyal, Jagdish Prasad, Smt. Sushma Goyal and Vikas Goyal for the offences under Sections 498-A and 304-B of the I.P.C. For the sake of convenience the facts have been narrated from appeal No. 241 of 2006.
2. The facts in brief are that Preeti Goyal, daughter of Vijendra Goyal was married with Manish Goyal on 28.01.1993 as per the Hindu rites and customs. Her parents had given sufficient dowry as per their capacity but her mother-in-law Smt. Sushma Goyal, father-in-law Jagdish Prasad Goyal, husband Manish Goyal and brother-in-law Vikas Goyal were not happy and have been harassing her for not bringing adequate dowry. She was being tortured and treated with cruelty in connection with demand of dowry. On 13th September 1999 at about 2:00 p.m. someone telephonically informed Vijendra Goyal (complainant) that his daughter had expired in the hospital. The complainant could not believe the information as he had talked to his daughter on telephone just two days earlier. He therefore, requested the Superintendent of Police, Almora to get her last rites deferred to be performed till his arrival. When he reached Ranikhet on 14th September 1999 he was informed that his daughter died in Herakhan Hospital, Ranikhet. The complainant suspected that his daughter Preeti was killed by the accused persons by administering poison on account of greed for dowry. He submitted a written report Ex. Ka-5 to In-charge Police Station Ranikhet on the basis of which Chick F.I.R. Ex. Ka-14 was recorded on 14th September 1999 at 12.30 p.m. in police station Ranikhet under Section 304-B of the I.P.C.
3. After the death of Preeti in Herakhan Hospital, the Medical Officer sent written information Ex. Ka-7 informing Tehsildar, Ranikhet about her death. On receipt of the said information Maya Dutt, Tehsildar (PW-6) reached the hospital and took the dead body of Preeti in possession and prepared the Panchnama Ex. Ka-9 and vide letter to C.M.O. Ex. Ka-11 sent dead body of Preeti in sealed cover for postmortem. The postmortem was conducted on 14.09.1999 by a panel of two doctors, one of them being Dr. C.L. Maheshwari (PW-4). The cause of death could not be ascertained. No ante mortem injury was noticed on the dead body. Viscera was preserved and sent for chemical examination. He also prepared the site plan Ex. Ka-12 of the hospital. After the registration of the case, he recorded the statements of Smt. Shashi Prabha, Vijendra Kumar Goyal and Manuj Goyal, mother, father and brother of Preeti (deceased). On 17.09.1999 all the accused were arrested. The parents of the Preeti (deceased) handed over certain letters written by her on 23.09.1999 to the Investigating Officer and thereafter on 24.09.1999 the statements of other witnesses and doctors were recorded. On completion of the investigation, the challan was presented and the accused were charge sheeted under Sections 498-A and 304-B of the I.P.C. to which they pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case produced as many as six witnesses. On conclusion of prosecution evidence, statements of the accused-respondents were recorded under Section 313 Cr.P.C. They denied all the allegations of prosecution and claimed innocence and false implication. In defence Manish Goyal himself appeared as DW-1 and submitted certain letters.
5. We have heard Mr. Nandan Arya, learned A.G.A. for the State-appellant and Mr. G.C. Kandpal Advocate with Mr. Vinod Tiwari, Advocate for the respondents and perused the material available on record.
6. After taking into consideration the evidence, facts and circumstances of the case, the trial court acquitted all the accused for the charges levelled against them.
7. The trial court acquitted the accused persons mainly on the ground that the prosecution has failed to prove that there was any demand of dowry at the time of marriage or even soon before the death of Preeti Goyal. It has further been held that testimony of Smt. Shashi Prabha, Vijendra Kumar Goyal and Manush Goyal, mother, father and brother of Preeti (deceased) is not corroborated by any independent evidence and also the letters written by deceased. Their evidence is rather contradictory to each other on material points. Another circumstance which has weighed in the mind of learned trial judge is that Preeti Goyal was issueless and she was undergoing treatment for her infertility for the last five years before her death. She was under the treatment of Dr. Sadhana Singh (PW-5). According to doctor, Preeti Goyal (deceased) was under her treatment. She was examined by the Dr. Sadhana Singh on 28.08.1999 and some medicines were prescribed, thereafter, she was advised to visit again on 13.09.1999 for check up. As per the documents available on record accused Manish Goyal had taken the deceased for treatment in various medical centers. On 13.09.1999 she was taken by her husband in Herakhan Hospital, Ranikhet for check up, it appears that she died due to medical negligence. In paragraph-29 of the judgment of the trial court, it is observed that the condition of Preeti (deceased) was not critical. When she came for check up to Herakhan Hospital, she was stated to be suffering from fever, nausea and vomiting for last three days prior to her admission in the hospital. She was given treatment and referred to Dr. Prasad. Dr. Prasad has not been produced by the prosecution. Dr. Sadhana Singh (PW-5) stated that she did not suspect administering of poison i.e. Ammonium Celphos and there is not such indication in the prescription.
8. The trial court has posed a question as to why accused persons would administer poison on that very day when she was due to come for check up in Herakhan Hospital by Dr. Sadhana Singh. It has further been mentioned that the deceased died six years seven months and fifteen days after her marriage in other words seven years would have been completed only after four months after her death. If the accused themselves wanted to eliminate the deceased they could have deferred their plan to do so for four months to escape the legal complications and to avoid the presumption available to the prosecution against them. Another circumstance, which has been highlighted by the learned trial court, is that all the witnesses have admitted having good relations between them and the accused persons, which is also evident from the several letters exchanged between the parties. The trial court has discussed all the letters in detail wherein the pleasantries and greetings have been exchanged. Father of the deceased was helping the accused Jagdish Prasad to find a match for his daughter. A reference to Ex. Kha-8 a letter dated 09.09.1999 written by Vijendra Kumar Goyal (complainant) to accused Manish Kumar Goyal and his father also shows a very good and pleasant relations between the parties. There is no mention of any demand of dowry i.e. colour T.V. and Rs. 50,000/- as alleged by the prosecution.
9. The trial court has also discussed the medical evidence available on record in detail. As per the viscera report Ex. Ka-13 alcohal and aluminium phosphide was detected. The veracity of this report has been challenged by the defence. It has rather been pleaded in defence that the death of Preeti was on account of medical negligence. The viscera report has been attacked mainly on the ground that as per Dr. C.L. Maheshwari (PW-4), he did not find any pungent smell from the intestine or stomach of the deceased. Even Dr. Sadhana Singh (PW-5) did not mention about patient having burning pain in the mouth, throat and stomach nor mentioned about vomiting mixed with blood. There is no mention of loss of coordination nor convulsions of a clonic nature.
10. The trial court has agreed with suggestion given by the defence that the viscera was manipulated. Though we do not find any circumstance which shows that the viscera could be manipulated. However, it appears that it was not a case of aluminum phosphide having been administered to the deceased. There was no external injury found on the body of the deceased to suggest that the poison was administered forcibly. Moreover, it is common knowledge that Celphos bears pungent smell, therefore it is not possible to administer it to any person even by deception.
11. There is a strong circumstance in favour of the accused persons showing that they did not have guilty mind. In defence the accused have produced receipts of P.C.O. to prove that information was given to the father of deceased from a P.C.O. Manish Goyal appeared as DW-1 and stated that his father Jagdish Prasad gave a telephone call to the father of deceased disclosing about the death of Preeti. The plea of prosecution that someone who did not disclose his name had made a call to Vijendra Kumar Goyal (complainant) about the death of Preeti is falsifiled from the documentary evidence i.e. the receipts of the P.C.O. which clearly show that it was the accused who had given call on the residence and office numbers of the complainant and autopsy was also conducted in the presence of father of deceased on the next day.
12. The trial court has discussed in detail the entire evidence available on record, which we do not find having been misread or misinterpreted by the trial court in any way. In order to hold any accused guilty of dowry death under Section 304-B of the I.P.C., the prosecution has to prove the following circumstances:
(i) The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances
(ii) Such death should have occurred within seven years of her marriage.
(iii) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband.
(iv) Such cruelty or harassment should be for, or in connection with the demand of dowry. And
(v) Such cruelty or harassment the deceased should have been subjected to soon before her death.
13. In the present case it is not disputed that Preeti (deceased) died otherwise then under normal circumstances within seven years of her marriage. However, the prosecution has miserably failed to prove that the deceased was subjected to cruelty or harassment by her husband or by other relative of her husband in connection with the demand of dowry soon before her death. In the present case the deceased was not having any issue and she was being treated for infertility for the last five years before her death. She was an educated girl and she had been writting letters to her parents and brother regularly. Some of the letters are placed on the record, but none of theses letter find mention about the demand of dowry or some specific demand of colour T.V. and Rs. 50,000/-. Rather from the letters it is apparent that the relation between both the parties were cordial. Simply by making vague allegations while deposing in the court that there was demand of colour T.V. and Rs. 50,000/-, the prosecution has not been able to make out the case of demand of dowry. There is no independent corroboration to the statements of the father; mother and brother of Preeti (deceased). Even in the first information report the complainant did not mention any specific demand of dowry having been made by the accused. It has simply been mentioned that after the marriage of Preeti, her mother-in-law, father-in-law, husband and brother-in-law were taunting and giving beatings and that the complainant suspected about Preeti having been killed by administering the poison out of greed for dowry. There is not even a single word about any specific demand of colour T.V. and Rs. 50,000/- having been made by the accused.
14. As regards the allegation of beating also, there is no evidence except one prescription Ex. Ka-1. This prescription relates to the year 1996 showing some infection in the left leg of Preeti (deceased). About this injury Vijendra Goyal (PW-1) stated that once when his daughter came to meet them, she was having injury on her leg and on an enquiry she informed that her husband had given her kick blows. He had taken her for treatment to Dr. H.K. Joshi. Except this prescription slip there is no evidence to substantiate the allegation of beatings given to Preeti by her husband. Simply by the prescription it cannot be presumed that this injury was caused by the husband of the deceased. Shashi Prabha, mother of deceased (PW-3) does not make any mention about this injury nor this fact is mentioned by her brother Manuj (PW-2).
15. After going through the entire evidence available on record, we are of the opinion that the prosecution has failed to prove the guilt of the accused by any cogent and reliable evidence. From the evidence on record, it is not a case of dowry death as basic ingredients of dowry death as defined under Section 304-B of the I.P.C. are not at all substantiate. There was no demand of dowry soon before her death nor was there any such demand at the time of marriage or thereafter.
16. We are thus of the opinion that the conclusions arrived at by the trial court are not in any manner perverse nor there appears to be any misreading of evidence. We may also refer to the judgment of Apex Court in this regard.
17. The Apex Court in the case of Ashok Kumar v. State of Rajasthan reported in : 1991(1) SCC 166 observed as under:
Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at; the prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless.
18. In view of the above discussion, we find no merit in the appeal as well as revision filed by the revisionist and therefore, the same are accordingly dismissed.