R.Santosh Kumar vs State (Nct Of Dlehi)

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30.03.2026
Pronounced on: 18.06.2026
+ CRL.A. 473/2002
R.SANTOSH KUMAR .....Appellant
Through: Mr. Vineet Dhanda, Amicus
Curiae with Ms. Ishika
Ahluwalia, Adv.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Aman Usman, APP for
State with Mr. Manvendra
Yadav, Advocate with Insp.
Sandeep, PS-Delhi Cantt.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
J U D G M E N T
RAVINDER DUDEJA, J.
1. The present appeal is filed by the appellant against the judgment
th
of conviction dated 06 April, 2002 and the order on sentence dated
th
30 April, 2002 passed by the learned Additional Sessions Judge,
New Delhi [“ trial court ”], in Sessions Case No. 40/1997, arising out
of FIR No. 159/1997 registered under Sections 498-A/302/34 of the
Indian Penal Code, 1860 [“ IPC ”] at Police Station Delhi Cantt.
Brief Facts
rd
2. The prosecution case, in brief, is that on 23 April, 1997,
information was received from Military Police CMP through Havaldar
Ram Pal Singh about commission of a suicide at 140/2 Shekhawati
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 1 of 28

Line, Delhi Cantt.. The said information was recorded vide DD No.
22A, SI Dinesh Kumar (PW-19) alongwith Ct. Shamsher Singh (PW-
9) proceeded to the spot and found the dead body of Ganga- wife of
appellant on the first floor of the house. Crime team was called and
photographs were taken.
3. Since the death of Ganga [“ deceased ”] had occurred within
seven years of her marriage, the Sub-Divisional Magistrate [SDM],
Vasant Vihar was requested for conducting the inquest proceedings.
The parents of deceased were also informed and on instructions of the
learned SDM, the body of the deceased was ordered to be preserved
for 72 hours at Safdarjung Hospital Mortuary for awaiting the arrival
of parents of the deceased.
4. During investigation, SI Dinesh Kumar recovered one can of
kerosene oil, pieces of burnt clothes and one match box [Ex. PW 3/A].
The exhibits were sent to Forensic Science Laboratory [FSL] for
th
examination. On 26 April, 1997, the brother of deceased, namely, V.
Venugopalan Nair [PW-7], and the brother-in-law of the deceased,
namely, B. Sumaraj [PW-12], identified the dead body of the deceased
Ganga. Thereafter, the SDM ordered the post-mortem of the dead
body.
5. The SDM (PW-18) recorded the statement of PW-7 V.
th
Venugopalan Nair on 26 April, 1997, wherein he stated that his sister
(deceased Ganga) got married to appellant R. Santosh in December,
1992, and 200 grams of gold ornaments and a house built on 12 cents
of land was given to Ganga. He further stated that Ganga had told him
about dowry harassment and physical abuse she faced from her
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 2 of 28

husband/appellant and her mother-in-law. He stated that Ganga told
him that the appellant insisted her to ask her parents to give Rs. 500/-
monthly and also the desire of mother-in-law to sell Ganga’s land. He
suspected that his sister Ganga had not committed suicide, but was
rather murdered.
6. On the basis of the statement/complaint of PW-7 V.
Venugopalan Nair [Ex. PW 18/A], the SDM made his endorsement
and case was registered under Sections 498-A/304-B IPC at Police
Station Delhi Cantt.
7. During the course of investigation, the site plan of the place of
occurrence [Ex. PW19/A] was prepared and statements of several
witness including family members of the deceased, neighbours, police
officials, medical witnesses and other formal witnesses were recorded.
th
8. The post-mortem report [Ex. PW13/A] was received on 30
May, 1997, which opined that the death was not by burning and that
the burn injuries were post mortem in nature. Upon receipt of
chemical analysis report, doctor gave the subsequent opinion (Ex.
PW-13/B) that the cause of death in this case was “asphyxia caused by
smothering.”
nd
9. On 2 June, 1997, the SDM moved an application in the office
of the appellant for handing over the custody of the appellant [Ex. PW
19/C]. The custody of the appellant was given to SDM by Army
Authorities. The appellant was then formally arrested. Upon
interrogation, he made a disclosure statement [Ex. PW 1/A].
10. During investigation, SI N.R. Nair (PW-20) went to
th
Trivandrum at Ganga’s house on 18 August, 1997 where they met
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 3 of 28

the family of the deceased Ganga as well as her son, namely, Master
Unikuttan (also known by the name Siri Raj). SI N.R. Nair recorded
the statement of the child, who is the only alleged eye-witness of the
incident, in both Malayalam and Hindi. The child stated that his father
beat her mother and pressed her face and neck on the fateful day. He
also stated that his father then poured oil on her mother and lit the
stove. SI N.R. Nair then showed matches to the child which he
identified as stove. The statements of Sudha, her husband Rajinder,
and of Sumaraja were also recorded by PW-20.
11. Accused K. Amruthamma, mother in law of deceased, was
th
arrested on 27 August, 1997.
12. Upon completion of investigation, charge-sheet was filed on
th
27 August, 1997 under Sections 498-A/302/34 IPC against the
appellant and his mother, namely, Smt. K. Amruthamma.
th
13. The learned trial court vide order dated 27 May, 1998, framed
charges under Sections 498-A/302 IPC against the appellant but
discharged the accused K. Amruthamma.
14. In order to substantiate the charges, the prosecution examined
21 witnesses. Statement of accused R. Santosh was recorded under
Section 313 of the Code of Criminal Procedure [“ Cr.P.C. ”], wherein,
he pleaded innocence. He examined three witnesses in his defence.
15. Upon conclusion of trial and on appreciation of the evidence on
th
record, the learned trial court vide judgment dated 06 April, 2002
convicted the appellant for offences under Sections 302/498-A IPC
th
and vide order on sentence dated 30 April, 2002, appellant was
sentenced to undergo life imprisonment with fine of Rs. 2,000/-, in
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 4 of 28

default, to undergo Simple Imprisonment [SI] for one month for
offence under Section 302 IPC. He was also sentenced to undergo
Rigorous imprisonment for one year alongwith fine of Rs. 1,500/-, in
default to undergo SI for one month for offence under Section 498-A
IPC.
16. Feeling aggrieved, the accused R. Santosh preferred the present
appeal.
17. The sentence of the appellant was suspended by this Court vide
th
order dated 28 January, 2003.
Submissions of counsel for Appellant
18. The learned counsel for the appellant has assailed the impugned
judgment of conviction, submitting that the learned Trial Court failed
to appreciate the evidence in its proper perspective and convicted the
appellant merely on conjectures and surmises. It was contended that
the prosecution case suffered from serious infirmities and
contradictions, which render the conviction unsustainable.
19. It was argued that there was an undue and unexplained delay in
lodging the First Information Report, which was registered after due
deliberations, consultations and confabulations.
20. It was argued that the entire prosecution story initially
proceeded on the footing that the deceased had committed suicide by
burning herself, and that is why, the FIR was initially registered under
Sections 498-A/304-B IPC. It was contended that the subsequent
conversion of the case to one under Section 302 IPC was founded
upon the disclosure statement of the accused, which is inadmissible in
evidence.
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 5 of 28

21. It was further submitted that prosecution has failed to establish
any direct or circumstantial evidence connecting the appellant with the
alleged homicidal death of the deceased. The learned counsel argued
that there was no eye witness to the occurrence. Having not found any
evidence against the accused, police planted the minor child of the
accused as a witness after four months of the incident while the child
was living with the grandparents and relatives who were inimical to
the accused and therefore, the child was susceptible to the tutoring and
influence by them. There is no explanation as to why the statement of
the child witness was not recorded immediately if he was an eye
witness to the occurrence. It was further argued that the statement of
the child witness was recorded before the court after about 19 months
of the incident, rendering his testimony unsafe for reliance. The
learned counsel also questioned the manner in which the statement of
the child witness was recorded, contending that there was no proper
translation from Malyalam to Hindi and no independent interpreter
was associated during the process. According to the learned counsel,
the prosecution failed to establish that the child witness retained an
independent recollection of events after such prolonged delay.
22. It was further submitted that the learned Trial Court did not
appreciate that there was no motive for the accused to commit the
crime as he was well employed with Indian Army and was drawing a
good salary. It was further submitted that the allegations of dowry
related harassment are general and vague in nature, without any
specific details, and the witnesses examined to prove the same are
related and interested witnesses, and therefore, their testimonies
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 6 of 28

cannot be relied upon to convict the accused.
23. It was further argued that at the time of the alleged commission
of offence, the accused was present at his duty and was not present
even at the spot. His presence at the spot has not been proved by any
of the prosecution witnesses except the child witness, whose
testimony is not reliable.
24. It was further argued that DW-1 has proved the recovery of
rd
suicide note dated 23 April, 1997, left by the deceased, which was
recovered from the place of occurrence. The handwriting on the
suicide note has been identified by the father of the deceased as that of
the deceased. It was argued that the Trial Court erred in arriving at the
conclusion by expecting the defence to prove its case beyond
reasonable doubt, whereas, the defence of the accused has to be tested
on the anvil of it being reasonable and probable.
25. The learned counsel for the appellant has also assailed the
medical evidence by arguing that homicidal death was not proved
beyond reasonable doubt. Reliance was placed on the testimony of
PW-13 Dr. Shambhuji and the delayed final medical opinion, which
was furnished nearly 11 months after the post-mortem. It was
submitted that despite the doctor’s experience, no conclusive opinion
was initially given even as there were no signs of poisoning in the
post-mortem examination. It was argued that the post-mortem
findings, including normal condition of heart and lungs, contradicted
the prosecution theory of smothering and that the final opinion
appeared influenced by the investigating agency. It was further
contended that prosecution has failed to conclusively establish the
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 7 of 28

precise cause of death.
26. The learned counsel further submitted that prosecution failed to
establish the ingredients of Sections 498-A IPC. It was submitted that
the allegations regarding the dowry demands and cruelty were vague
and without specific details. No complaint had ever been lodged by
the deceased and no independent neighbour or witness was examined
to corroborate the allegations made by the family members of the
deceased. It was further argued that once the mother of the appellant
had been discharged for the lack of sufficient evidence, the same
evidence could not selectively be relied upon against the appellant
alone.
27. It was further argued that the prosecution failed to establish
motive for the alleged offence. It was argued that the alleged dispute
relating to land and property standing in the name of the deceased,
was false and unsupported by evidence and the appellant had never
sought transfer of the property in his name. It was thus argued that
prosecution has failed to establish the guilt of accused beyond
reasonable doubt, and therefore, he is liable to be acquitted.
Submissions on behalf of State
28. Per contra , the learned Additional Public Prosecutor [ APP ] for
the State submitted that learned Trial Court has given detailed and
well-reasoned findings and convicted the appellant after a fair trial and
upon proper appreciation of evidence.
29. It was submitted that the evidence on record proves that the
deceased was subjected to continuous cruelty and harassment on
account of dowry demands soon before her death. The learned APP
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 8 of 28

argued that the testimonies of PW-7 V. Venugopalan Nair and PW-12
B. Sumaraj Kumar consistently establish that the appellant had been
demanding money and exerting pressure upon the deceased in relation
to financial and property matters. It is argued that the minor
discrepancies in the statements of witnesses are natural and did not
depart from the core prosecution case.
30. The learned APP further submitted that the conduct of the
appellant and the surrounding circumstances clearly established that
the death of the deceased was neither accidental nor suicidal in nature.
It was argued that the post-mortem report and the testimony of PW-13
Dr. Shambhuji demonstrate that the burn injuries were post-mortem
and that the deceased had died prior to when she was burnt. It was
contended that the medical evidence substantially corroborated the
prosecution narrative that the appellant had caused the homicidal
death of the deceased and attempted to destroy evidence by burning
the body.
31. The learned APP submitted that merely because the final
medical opinion was furnished after receipt of viscera examination
report, no adverse inference could be drawn against the prosecution. It
was argued that keeping the final opinion pending till the receipt of
viscera report is a normal course adopted by medical experts to rule
out any other cause of death including poisoning.
32. With regard to the testimony of the child witness Master
Unikuttan (PW-4), it was contended that his testimony is natural,
trustworthy and fully reliable. The learned APP submitted that the
child witness had no reason to falsely implicate his own father and his
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 9 of 28

statement inspired confidence on material particulars. It was argued
that the delay in recording his statement stood sufficiently explained
in the facts and circumstances of the case, particularly having regard
to the trauma suffered by the child after witnessing the incident. The
learned APP thus submitted that mere delay in recording the statement
of a child witness would not by itself render his testimony unreliable.
33. The learned APP further argued that the objections regarding
translation or interpretation at the time of recording of a child’s
testimony are wholly inconsequential as the substance of the statement
remained consistent throughout. It was argued that the testimony of
the child witness was corroborated by surrounding circumstances and
medical evidence, thereby, lending assurance to the prosecution case.
34. The learned APP further contended that the delay in registration
of FIR or conduct of post-mortem examination have been adequately
explained and did not cast any doubt upon the prosecution case. It was
submitted that in cases involving unnatural death of a married woman,
some delay in initiating proceedings or collecting evidence is not
uncommon, particularly when the family members are the residents
outside Delhi and are in a state of shock and grief. It was argued that
no material contradiction or embellishment attributable to such delay
had been demonstrated by the defence.
35. It was also submitted that the prosecution has sufficiently
established the motive for commission of offence. It was argued that
the evidence on record clearly proved strained matrimonial relations
arising out of persistent demands for money and property.
Notwithstanding the same, the absence of motive cannot outweigh
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 10 of 28

direct and reliable evidence, otherwise establishing guilt.
36. It was further submitted that the alleged suicide note has not
been proved in accordance with law and no material was placed on
record to substantiate the defence allegation regarding suppression of
evidence. It was argued that bald assertions made by the defence
without any supporting material could not discredit an otherwise
cogent prosecution case.
37. The learned APP lastly submitted that the defence taken by the
appellant under Section 313 Cr. PC was vague, evasive and
unsupported by any evidence. It was argued that the appellant failed to
furnish any plausible explanation regarding the circumstances in
which the deceased suffered homicidal death within matrimonial
home. It was thus argued that the evidence led by the prosecution
clearly established the guilt of the appellant beyond reasonable doubt,
and therefore, no interference with the judgment of conviction and
order on sentence was warranted.
Reasoning and Analysis
38. We have considered the rival submissions. There is no dispute
that deceased had died an unnatural death. On receipt of DD No. 22-A
(Ex. PW-19/A), SI Dinesh Kumar (PW-19) along with Constable
Shamsher Singh (PW-9) went at the spot at 140/2, Shekhawat Lane,
Delhi Cantt., where they found wife of the accused lying dead in a
burnt condition. Her mouth was lying open with tongue protruding
upto the teeth. The hands of the deceased were on the upper side of the
body and in front of the chest. There was blood under the head of the
deceased. Some kerosene oil was also lying there.
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 11 of 28

39. Dr. Shambhuji (PW-13), who conducted the post-mortem of the
deceased, also confirmed that the mouth of the victim was lying open
and the tongue was protruding. There was bleeding from the nose.
There were superficial deep burns over the face, neck, chest,
abdomen, both upper limbs and lower limbs in front and upper part of
left thigh, posteriorly back and gluteal region. According to him, there
were areas of blackening of skin. The skin was burnt out at most
places. There was absence of line of redness. No Erythema, no areas
blister formation, charring present at places and all the hairs were
signed. There was heat laceration on the left shoulder due to burn. On
internal examination, the neck structure was found intact. The scalp,
skull and brain were found normal. The liver and spleen were also
found normal. Both the kidneys were however found congested. As
per the opinion of the doctor, the death was not by burning, which was
post-mortem in nature. However, the viscera was preserved for the
ascertaining the presence of poison. Upon receipt of FSL result (Ex.
th
PX), PW-13 gave the final opinion (Ex. PW-13/B) on 19 March,
1998, confirming that the cause of death was asphyxia caused by
smothering and that the burn injuries were post-mortem burns.
40. PW-13 was extensively cross examined by the defence. In such
cross examination, the doctor admitted that he found the lungs to be
normal. However, he clarified that it is not necessary that in case of
smothering, the lungs are always congested. The same also finds
corroboration from the medical text. As per Modi’s Textbook of
Medical Jurisprudence & Toxicology, in case of death by asphyxia,
the lungs are usually markedly congested, showing haemorrhagic
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 12 of 28

patches and petechiae and exuding dark fluid blood on section. But
further clarifies that the lungs may be found quite normal if the death
occurs rapidly. The learned counsel for the appellant has failed to
point out anything from the extensive cross examination which may
lead to inference other than the one as opined by the doctor.
41. The prosecution case initially proceeded on the premise that the
deceased had committed suicide, as is evident from DD No. 22A.
Thereafter, on the basis of the statement of PW-7 V. Venugopalan
Nair, the FIR came to be registered under Sections 498-A/304-B IPC.
It was only subsequently during the course of investigation that the
case was converted into one under Section 302 IPC. This transition in
the prosecution case assumes significance while evaluating the
evidence on record and the degree of certainty with which the
prosecution has sought to establish a charge of murder.
42. The entire case of the prosecution hinges on the evidence of the
child witness. PW-4 Siri Raj, son of the deceased and the appellant R.
Santosh Kumar. He was aged about three years at the time of incident.
Before we proceed to undertake the analysis of the testimony of PW-
4, it is necessary to understand how the testimony of the child witness
should be looked into and applicable.
43. The Indian Evidence Act, 1872 (in short, the “ Evidence Act ”)
does not prescribe any particular age as a determinative factor to treat
a witness to be a competent one. On the contrary, Section 118 of the
Evidence Act envisages that all persons shall be competent to testify,
unless the court considers that they are prevented from understanding
the questions put to them or from giving rational answers to these
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 13 of 28

questions, because of tender years, extreme old age, disease- whether
of mind, or any other cause of the same kind. A child of tender age
can be allowed to testify if he has intellectual capacity to understand
questions and give rational answers thereto.
44. In Dattu Ramrao Sakhare v. State of Maharashtra reported in
(1997) 5 SCC 341 , the Hon’ble Supreme Court held that as long as a
child witness is found to be competent to depose i.e., capable of
understanding the questions put to it and able to give rational answers,
the testimony of such witness can be considered as evidence in terms
of Section 118 of the Evidence Act, irrespective of their tender age or
absence of any oath. The only additional factor to be considered is that
the witness must be found to be reliable, exhibiting the demeanour of
any other competent witness, with no likelihood of having been
tutored. It further clarified that there is no requirement or condition
that the evidence of a child witness must be corroborated before it can
be considered, and rather the insistence of any corroboration is only a
rule of prudence that would depend upon the peculiar facts and
circumstances of each case.
45. Similarly in Pradeep v. State of Haryana reported in 2023 SCC
OnLine SC 777 , the Hon’ble Supreme Court emphasized on the
importance of preliminary examination of a child witness. It held that
although oath cannot be administered to a child witness under 12-
years of age yet, as per Section 118 of the Evidence Act it is the duty
of a Trial Judge to conduct a preliminary examination before
recording the evidence of the child witness to ascertain if the child is
able to understand the questions put to him and that he is able to give
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 14 of 28

rational answers to the questions put to him. It held that the Trial
Judge must record its opinion and satisfaction that the child witness
understands the duty of speaking the truth and state why he is of the
opinion that the child understands the duty of speaking the truth. It
further held that the questions put to the child in the preliminary
examination must also be recorded so that the appellate court can go
into the correctness of the opinion of the Trial Court. The Hon’ble
Court further held that corroboration of the testimony of a child
witness is not a rule but a measure of caution and prudence. A child
witness of tender age is easily susceptible to tutoring. However, that
by itself is no ground to reject the evidence of the child witness. The
Court must make a careful scrutiny of the evidence of the child
witness and apply its mind to the question whether there is possibility
of a child witness being tutored.
46. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat reported
in (2004) 1 SCC 64 , the Hon’ble Supreme Court explained that
although child witnesses are considered as dangerous witnesses as
they are pliable and liable to be influenced easily, shaped and
moulded, yet it is an accepted norm that if after careful scrutiny their
testimony is found to inspire confidence and truthful, then there is no
obstacle in accepting the evidence of such child witness.
47. In Panchhi v. State of U.P. reported in (1998) 7 SCC 177 , the
Hon’ble Supreme Court held that the evidence of a child witness
should not be outrightly rejected but the evidence must be evaluated
carefully and with greater circumspection because a child is
susceptible to be swayed by what others tell him and an easy prey to
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 15 of 28

tutoring.
48. In Arbind Singh v. State of Bihar reported in (1995) Supp (4)
SCC 416 , the Hon’ble Supreme Court found the testimony of the
child witness therein to be tutored due to the various inconsistencies
and contradiction in her statements as regards the cause of death of the
deceased therein, and due to the fact that the child witness was
residing with her maternal uncle immediately after the incident
occurred. This Court further held that implicit faith and reliance
cannot be placed on a testimony that betrays traces of tutoring and the
court must look for corroboration before relying on the same.
49. Based on the above exposition of law, it is evident that the
evidence of a child witness stands on the same footing as any other
witness as long as the child is found to be competent to testify.
However, while assessing the testimony of the child witness, the Court
has to find out as to whether such witness is reliable due to
susceptibility of the children by falling prey to tutoring. While
appreciating the testimony of the child witness, the Court has to assess
whether the evidence of such witness is voluntary expression and not
borne out of the influence of others and whether the testimony inspires
confidence. The insistence of corroboration is only a measure of
caution and prudence that the Court may exercise if feel necessary in
the particular facts and circumstances of the case.
50. Coming back to the present case, the most crucial piece of
evidence relied upon is the testimony of PW-4 Master Siri Raj.
According to the prosecution, he was the sole eye witness of the
occurrence who stated that on the fateful day, his father had beaten his
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 16 of 28

mother, pressed her mouth and neck and thereafter poured kerosene
oil on her and set her ablaze.
51. In his statement recorded by the police under Section 161 Cr.
PC, PW-4 stated that his father beat his mother, pressed her mouth and
neck and then poured kerosene oil and set her ablaze, while in his
testimony before the Court, he only stated that his father kicked and
beat his mother and poured kerosene oil and burnt her. He does not
depose about pressing her mouth and neck. As already discussed, the
cause of death as per the post-mortem report is asphyxia due to
smothering, but if the testimony of the child witness is accepted, the
cause of death was burn injuries after pouring kerosene oil. The
testimony of PW-4 is not only at variance from his previous statement
under Section 161 Cr. PC but also not in consonance with medical
opinion.
rd
52. The incident had taken place on 23 April, 1997. However, the
th
statement of PW-4 was recorded by the Investigating Officer on 18
August, 1997 i.e. nearly after four months, while the child was
residing with his paternal grand parents in Kerala. His statement was
recorded in Court after more than 1 ½ years. No explanation has been
furnished as to why the only alleged witness was not examined at the
earliest opportunity. Although, the police was well aware that he was
the vital witness to the entire case and could guide the investigation
into the right direction. We are also conscious that the testimony of
PW-4 cannot be discarded solely on the ground of delay alone,
inasmuch as, in Ranbir & Ors. v. State of Punjab, reported as (1973)
2 SCC 444 , the Hon’ble Supreme Court observed that the factum of
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 17 of 28

delayed examination of a witness ought to be specifically put to the IO
so as to enable him to explain the reasons thereof. It further held that
delay in examining a witness during investigation would be material
only if it is indicative and suggestive of some unfair practice by the
investigating agency for the purpose of introducing a got-up witness to
falsely support the prosecution case. Similarly, in the case of State of
U.P. v. Satish reported in (2005) 3 SCC 114 , the Hon’ble Supreme
Court held that before the delay in examination of any particular
witness can be taken into consideration to impeach their credibility,
the IO must be first asked by the accused to explain the delay by
putting a question in this regard. The relevant observation reads as
under:-
“ 20. It is to be noted that the explanation when
offered by the IO on being questioned on the
aspect of delayed examination by the accused
has to be tested by the court on the touchstone
of credibility. If the explanation is plausible
then no adverse inference can be drawn. On
the other hand, if the explanation is found to
be implausible, certainly the court can
consider it to be one of the factors to affect
credibility of the witnesses who were examined
belatedly. It may not have any effect on the
credibility of the prosecution's evidence
tendered by the other witnesses.”
53. In his examination in chief, PW-19 tried to give explanation for
not recording the statement of the child witness, inasmuch as, he
rd
stated that he had made effort on 23 April, 1997 to make enquiries
about the occurrence from the son of the deceased, but he was in a
state of shock and was continuously weeping. According to him, the
child was not able to understand what he said and the persons present
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 18 of 28

there told him not to make enquiry from the child because of his
condition and therefore feeling that it would not be proper to do so, he
rd
did not make any further enquiry from the child on 23 April, 1997.
One may understand that the child was in a state of shock and
rd
therefore his statement could not be recorded on 23 April, 1997. In
his cross examination, PW-4 stated that he left Delhi so many days
after the death of his mother. In cross examination, PW-10,
Vishwanathan Nair, father of the deceased, also stated that after the
death of Ganga, her son came to stay with them. PW-7 Venugopalan
Nair, brother of the deceased, clarified in his cross examination that he
th
returned from Delhi on 27 April, 1997. It is thus evident from the
testimonies of the witnesses that PW-4 continued to be in Delhi from
rd th
the date of incident, that is, from 23 April, 1997 till 27 April, 1997.
PW-19 did not furnish any explanation as to why the statement of
rd
PW-4 was not recorded during the four days after 23 , April, 1997. In
further cross examination, PW-19 stated that he had not moved any
application before the Magistrate or the SDM for recording of the
statement of child and also made no effort to record the statement of
th rd
the child after 26 April, 1997 till 03 June, 1997. No explanation
was rendered by him for not recording the statement of the child
witness for so long. Admittedly, the statement of PW-4 Siri Raj was
th
recorded under Section 161 Cr. PC as late as on 19 August, 1997.
Thus, there was a gap of about four month between the date of
incident and the date on which the statement of child was recorded.
54. Admittedly, by the time, the statement of PW-4 was recorded
by the police under Section 161 Cr. PC, he had been residing with his
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 19 of 28

maternal family for the last about four months and continued to reside
with them for about one and a half year before recording of his
statement before the Court. The prolonged delay in recording the
statement of PW-4 assumes greater significance because the child had
admittedly been residing with his maternal relatives, who had from the
very beginning, suspected the appellant to be responsible for the death
of the deceased. In such circumstances, the possibility of tutoring or
influencing cannot be completely ruled out. While the Court does not
presume tutoring merely on the ground of delay, the surrounding
circumstances certainly require the evidence of the child witness to be
appreciated with caution.
55. There is another glaring contradiction in the prosecution case,
inasmuch as, contrary to the prosecution version, PW-9 Constable
Shamsher Singh stated in cross examination that SI Dinesh Kumar had
interrogated the child of the deceased and whatever the child told, was
recorded by SI Dinesh Kumar. If PW-9 is to be believed, the
Investigating Officer is guilty of holding back such a statement and an
adverse inference can be drawn that such statement was against the
interest of prosecution.
56. Another reason for doubt is the manner in which the statement
of the child witness came to be recorded. The child was a Malayalam
speaking witness. The record does not disclose the association of any
independent interpreter or translator. The prosecution has not
satisfactorily explained the process through which his statement was
translated and recorded in different languages. In a case where the
testimony of such witness forms the backbone of the prosecution case,
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 20 of 28

these deficiencies assume importance.
57. The testimony of PW-4 does not find any corroboration from
any independent source. There is no scientific evidence, forensic
material, recovery or independent witness, which corroborates the
averments made by the child witness against the appellant, and
therefore, it would be unsafe to sustain conviction for the offence of
murder solely on the basis of such testimony.
58. It is the case of the prosecution that accused left his unit at 1.30
pm for taking lunch and returned back at 3.00 pm, and thus, at the
relevant time, he was present at his house. In order to prove the same,
prosecution examined PW-11 Shivaji Biradar. As per prosecution
rd
narrative, on 23 April, 1997, at about 1.30 pm, PW-11 left from his
regiment at 1.30 pm on the scooter driven by accused R. Santosh and
when reached the house of accused, he saw that his wife was standing
in the balcony. However, when examined in Court, he turned hostile.
He was cross examined by the learned APP. In such cross
rd
examination, he flatly denied having told the police that on 23 April,
1997 at about 1.30 pm, he came to his house for lunch on the scooter,
driven by the accused or that his wife Ganga was waiting for him in
the balcony and on seeing Santosh, she went inside.
59. Similarly, PW-15 Havaldar K. Chander Shekharan was
examined with a view to prove that he had seen the accused going
towards the unit from his house, but this witness also turned hostile
and did not support the prosecution version, inasmuch as, in cross
examination conducted by the learned APP, he denied having told the
police in his statement that when he returned from his unit at 2.45 pm
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 21 of 28

and came out in the balcony after lunch, he saw the accused going
towards his unit. He further denied the suggestion that when accused
met him in the unit, on enquiry, he told that he had gone to his house
at 1.30 pm and came back o the unit on his scooter at 3.00 pm. Thus,
the testimonies of PW-11 and PW-15 are of no help to the prosecution
in establishing the presence of accused at his house at the time of
incident. PW-2 Subedar K. Babu, who was posted as Company
Subedar, was also declared hostile. Even though, in cross
examination, he stated that accused had left the unit at 1.30 pm for
taking lunch and returned back between 2.50 – 3.00 pm, but had not
deposed about the same in his examination in chief. Moreover, he also
does not prove the presence of the accused at the place of incident.
Thus, none of the witnesses examined by the prosecution had seen the
accused at the spot, and hence, the presence of accused at the spot is
not proved.
60. Furthermore, the defence sought to contend that since the room
was found locked from inside, prosecution version become inherently
improbable. PW-11 Shivaji Biradar deposed that on being informed
by the mother in law of the deceased, he rushed to the spot and found
the child (PW-4) standing in the balcony and crying and smoke
erupting from the house. PW-11 then tried to open the door but it was
closed. So he climbed through the balcony in order to rescue the child
and then passed down child to the public gathered below and then
opened the door from inside. The learned counsel for the appellant
emphasised that the appellant had a plaster cast on his hand on the day
of occurrence and therefore was physically incapable of committing
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 22 of 28

the act alleged by the prosecution. Such fact is also corroborated by
the testimony of PW-4, PW-11 and PW-15, who confirmed that
appellant had a plaster cast on one of his hands. Since the hand of the
appellant was plastered, it is almost difficult if not impossible that he
could have smothered the deceased and then escaped from the
balcony. Moreover, no one had seen the appellant enter and exit his
house on the fateful day.
61. We are conscious that if the death of a woman is caused by any
burns or bodily injury or otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her
death, she was subjected to cruelty or harassment by her husband or
any relative of her husband, in connection with any demand for
dowry, such death shall be called “dowry death” and such husband or
relative shall be deemed to have caused her death. Admittedly, the
deceased had died within seven years of her marriage with the
appellant. It is also an admitted fact that the death occurred otherwise
than under normal circumstances. In order to prove that she was
subjected to harassment and cruelty on account of dowry demand,
prosecution has placed reliance upon the testimony of PW-7 V.
Venugopalan Nair, PW-10 Vishwanathan Nair and PW-12 R. Sumaraj
Kumar. The testimonies of PW-7 and PW-12 essentially contain
averments that the appellant demanded money from the parental
family of the deceased and exerted pressure upon her to sell off the
property standing in her name.
62. However, upon careful examination of such testimonies, we
find that the allegations are largely general in nature. No specific
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 23 of 28

incident of cruelty, demand or harassment has been proved through
independent evidence. No complaint was lodged by the deceased
during her lifetime regarding the harassment faced by her. No
neighbour, friend, colleague or other independent witness has been
examined to corroborate the allegations of persistent cruelty.
63. In cross-examination, PW-7 stated that the appellant never
asked him or his father for sending money/dowry. He also stated that
even though Ganga used to write letters to her sister, she never told
him about any complaints regarding the appellant. In fact, in his
statement, PW-10 Vishwanathan Nair, father of the deceased, stated
that there were no real problems between Ganga and her husband, but
sometimes, small problems were there. According to him, Ganga was
upset from the accused, when he sold the second instalment of gold.
Even though, he stated that accused asked him to pay Rs.1000/- every
month because of meagre salary and shortage of funds, such demand
of money can at best be regarded as “financial help” and not a
“demand for dowry”. The testimony of PW-10 proves that there were
fights and quarrels between the accused and Ganga and accused had
beaten Ganga, but such allegation per se do not prove that the
harassment was on account of demand of any dowry.
64. According to V. Venugopalan Nair (PW-7), when his brother in
law R. Sumaraj Kumar (PW-12) went to Bangalore, Ganga had told
them that accused had beaten her with his service belt and demanded
Rs. 500/- every month from Ganga’s house. Such part of his testimony
is based on hearsay evidence and is therefore inadmissible in
evidence. PW-7 further deposed that when his elder sister and brother
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 24 of 28

in law had gone to the place of accused for inviting him to marriage, at
that time, the mother of accused said that since there were lot of
expenses, the house given to Ganga by them, was to be sold, as no one
was living there. It is evident that PW-7 was not present at that time.
Moreover, such demand of selling the property standing in the name
of Ganga, is not attributed to the accused. Nowhere, in his testimony,
PW-7 deposed that Ganga had complained him about harassment at
the hands of accused on account of dowry demand.
65. PW-12 R. Sumaraj Kumar, brother in law of deceased, deposed
that soon after the marriage, Ganga complained that accused Santosh
used to physically abuse her and demanded dowry. According to him,
accused used to say that they cannot live with his salary alone and
should get Rs. 500/- per month from Ganga’s parents, but Ganga did
not agree for the same. He further deposed that many times, Santosh
and his mother told Ganga that land and building be sold, but Ganga
was against the same. However, his testimony is silent about the date,
month or year of such demand and physical abuse. PW-12 further
deposed that sometime in January 1995, when he visited Ganga and
the accused in Bangalore, Ganga had told him that accused Santosh
used to beat her often and also told that once she was beaten, which
caused bleeding from her nose and mouth. He further deposed that she
had also told that once she was beaten with service belt and she said
that she could not tolerate this and that if anything happened to her, it
should not be treated as a suicide and asked him tell this to his parents.
So far as this part of his testimony is concerned, although there are
allegations of physical abuse, there is no averment that such physical
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 25 of 28

abuse was on account of any dowry demand. Moreover, we are of the
view that any discussion regarding the acquisition or sale of any
property are normal matters discussed between the family members
and cannot be given the colour of dowry demand and cannot operate
as a motive for commission of murder.
66. Thus, it is evident from the testimonies of the related witnesses
of the deceased that evidence regarding cruelty and harassment on
account of dowry demand is not of sterling quality to hold the accused
guilty under Section 498-A IPC. Once we hold that prosecution has
failed to prove that the deceased was harassed on account of demand
of dowry, presumption of dowry death under Section 304-B IPC is
also not available.
67. It is further noteworthy that substantially similar allegations had
also been levelled against the mother of the appellant. However, the
learned Trial Court found the evidence insufficient even for framing a
charge and discharged her from the proceedings. Though the
discharge of the co-accused may not by itself exonerate the appellant,
it nevertheless demonstrates the inherently weak nature of allegations
concerning dowry harassment.
68. In Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC
2773 , the Supreme Court observed that if two views are reasonably
possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, then the view which is
favourable to the accused should be adopted. Similarly, in Sujit
Biswas Vs. State of Assam, (2013) 12 SCC 406 , the Supreme Court
held that suspicion, however strong, cannot take the place of proof and
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 26 of 28

the prosecution must establish its case beyond reasonable doubt.
69. Having considered the facts and circumstances of the case, in
the light of evidence adduced on record and upon applying the
aforesaid principles, we are of the considered view that prosecution
has failed to establish beyond reasonable doubt that it was the
appellant who committed the alleged offence. The testimony of the
sole eye witness suffers from substantial infirmities arising from delay
and lack of corroboration. The allegations of cruelty on account of
dowry demand are vague and unsubstantiated. No independent
scientific or forensic evidence directly connects the appellant with the
crime.
70. Viewed cumulatively, the circumstances relied upon by the
prosecution create suspicion regarding the involvement of the
appellant. However, it is a cardinal principle of criminal jurisprudence
that suspicion, howsoever strong, cannot take the place of proof. The
distance between "may be true" and "must be true" has not been
traversed by the prosecution in the present case.
71. Consequently, we are of the considered opinion that the
prosecution has failed to prove beyond reasonable doubt that the
appellant R. Santosh committed the murder of the deceased or
subjected her to cruelty punishable under Section 498-A IPC. The
appellant is, therefore, entitled to the benefit of doubt.
72. Accordingly, the appeal deserves to be allowed. The judgment
of conviction dated 06.04.2002 and the order on sentence dated
30.04.2002 are hereby set aside. The appellant R. Santosh is acquitted
of all the charges framed against him. His bail bonds shall stand
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 27 of 28

discharged in accordance with law.
73. A copy of this judgment be sent to the concerned Jail
Superintendent and the learned Trial Court for information and
compliance.
RAVINDER DUDEJA, J
NAVIN CHAWLA
JUNE 18, 2026/AK
Signature Not Verified
Signed By:VAISHALI
PRUTHI
Signing Date:18.06.2026
16:17
Crl. A. 473/2002 Page 28 of 28