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Tuesday, November 12, 2013

Whether the absence of a viscera report is fatal to the prosecution ? - No.; Whether the punishment can be given under sec. 304 B and sec.306 I.P.C. ? - Yes = Bhupendra .…..Appellant Versus State of Madhya Pradesh …..Respondent= Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40956

Whether the absence of a viscera report is fatal to the prosecution ? - No.;
Whether the punishment can be given under sec. 304 B and sec.306 I.P.C. ? - Yes =

Absence of a viscera report =
22.   Normally,  the  viscera  are  preserved  and  submitted  for  chemical
analysis under the  following  circumstances:  (1)  When  the  investigating
officer requests for such an  examination;  (2)  When  the  medical  officer
suspects the presence of poison  by  smell  or  some  other  evidence  while
conducting an  autopsy  on  injury  cases;  (3)  To  exclude  poisoning,  in
instances where the cause of death could not be arrived at  on  post  mortem
examination and there is no natural disease or injury  to  account  for  it,
and (4) In decomposed bodies.[2]
23.   In Taiyab Khan and Others v. State of Bihar  (Now  Jharkhand),  (2005)
13 SCC 455 
it was urged that
 the viscera report  would  have  shown  
whether
the dowry death of the appellant’s wife occurred on account  of  consumption
of poison.  
Since the chemical examination report of  the  viscera  was  not
received, it could not be said to be a case  of  death  by  poisoning.  
This
contention was rejected by holding that factually the case  was  one  of  an
unnatural death. 
Therefore, since Section 304-B of the IPC refers  to  death
which occurs otherwise than under normal circumstances,  the  absence  of  a
viscera report would not make any difference to the fate  of  the  case.  
In
other words, for the purposes of Section 304-B of the IPC the mere  fact  of
an unnatural death is sufficient to invite a presumption under Section  113-
B of the Evidence Act, 1872.
24.   The view expressed in Taiyab Khan was reiterated in Ananda  Mohan  Sen
and Another v. State of West Bengal, (2007) 10 SCC 774.  
In  that  case  the
exact cause of death could not be stated since the viscera preserved by  the
autopsy surgeon were to be sent to the chemical expert.
 In fact, one of  the
witnesses stated  that  the  unnatural  death  was  due  to  the  effect  of
poisoning but he would be able to conclusively state the cause of  death  by
poisoning only if he could detect poison in the viscera report.  
This  Court
noted that it was not in dispute that the death was an unnatural  death  and
held that the deposition of the witness indicated that the death was due  to
poisoning.  
It  is  only  the  nature  of  the  poison  that  could  not  be
identified.  
In view of this, the conviction of the appellant under  Section
306 of the IPC was upheld, there being no charge under Section 304-B of  the
IPC.
25.   In State of Karnataka v. K.  Yarappa  Reddy,  (1999)  8  SCC  715  
the
accused and the victim had coffee at a friend’s house. Soon thereafter,  the
accused launched a murderous assault on the victim with a  chopper.  It  was
pleaded by the accused that if they actually  had  coffee  at  the  friend’s
house, it would have shown up in the stomach contents. This Court  dismissed
the contention as “too puerile”. It was held that there was no need for  the
doctor to ascertain whether there was coffee in the stomach contents of  the
victim. This is  because  the  case  was  not  one  of  suspected  death  by
poisoning.
26.   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 of the IPC or under Section 306 of the IPC takes place; in a  case  of
an unnatural death  inviting  Section  304-B  of  the  IPC  (read  with  the presumption under Section 113-B of the Evidence Act, 1872)  or  Section  306 of the 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.

Mutual exclusivity of Sections 304-B and 306 of the IPC =

“Section 306 IPC when read with Section 113-A  of  the  Evidence
           Act has only enabled the  court  to  punish  a  husband  or  his
           relative who subjected a  woman  to  cruelty  (as  envisaged  in
           Section 498-A IPC) if such  woman  committed  suicide  within  7
           years of her marriage. It is  immaterial  for  Section  306  IPC
           whether the cruelty or harassment was caused  “soon  before  her
           death” or earlier. If it was caused “soon before her death”  the
           special provision in  Section  304-B  IPC  would  be  invocable,
           otherwise resort can be made to Section 306 IPC.”


33.   It was held that Section 306 of the IPC is wide enough  to  take  care
of an offence under Section 304-B also
 However, an offence  under  Section
304-B of the IPC has been made a far more serious  offence  with  imposition
of a minimum period of seven years  imprisonment  with  the  sentence  going
upto imprisonment for life.  
Considering the gravity of the  offence  it  is
treated separately from an offence punishable under Section 306 of the  IPC.
In Shanti this Court was concerned with  a  death  that  had  occurred
“otherwise than under normal circumstances” as mentioned  in  Section  304-B of the IPC.  
It was held that an unnatural dowry  death,  whether  homicidal
or suicidal, would attract Section 304-B of the  IPC.  
This  expression  was
also considered in Kans Raj where it was held that it would mean death,  not
in the normal course, but apparently under suspicious circumstances, if  not
caused by burns or bodily injury. 
In Kans Raj the conviction of the  husband
of the deceased was upheld both for offences punishable under Section  304-B
of the IPC and Section 306 of the IPC also.

We are, therefore, of the opinion that 
Section 306 of the IPC is  much broader in its application and takes within its fold one aspect  of  Section 304-B of the IPC.  
These two sections are  not  mutually  exclusive.  
If  a
conviction for causing a suicide is based on Section 304-B of  the  IPC, 
 it
will necessarily attract Section 306 of the IPC.  
However, the  converse  is not true.
36.   Consequently, we reject the second contention  urged  by  the  learned
counsel for the appellant.

Conclusion
37.   We see no merit  in  the  appeal  and  it  is  accordingly  dismissed.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1774 OF 2008


Bhupendra                                              .…..Appellant

                             Versus

State of Madhya Pradesh                      …..Respondent



                               J U D G M E N T


Madan B. Lokur, J.

1.    The question before  us  is
whether  Bhupendra  (the  appellant)  was
rightly convicted by the Additional Sessions Judge, Morena,  Madhya  Pradesh
of having committed an offence punishable under Section 498-A, Section  304-
B and Section 306 of the Indian Penal Code (IPC) and 
whether his  conviction
was rightly upheld by the High Court of Madhya Pradesh. 
 In our opinion  the
question must be answered in the affirmative and therefore we find no  merit
in this appeal.
The facts
2.    Geeta Bai married Bhupendra on 7th June, 1993 and  at  that  time  her
father PW-1 Bhika Ram gave dowry to Bhupendra and his  family  according  to
their means.
The case of the prosecution was that Geeta Bai was harassed  by
Bhupendra and members of his family who demanded dowry over and  above  what
was given to them at the time of marriage.
Initially, the demand was  for  a
she buffalo which was met by Bhika Ram. 
Then there was a further demand  for
Rs. 10,000/- in cash on 20th August, 1996. 
 However,  since  Bhika  Ram  was
unable to meet this demand, and apparently  fearing  the  worst, Geeta  Bai consumed  wheat  tablets  on  the  evening  of  20th August,  1996  at  her matrimonial home.
3.    Since Geeta Bai had taken unwell, Bhupendra took her to  the  District
Hospital at Morena for  treatment.
PW-8  Dr.  S.C.  Aggarwal  informed  the
Station Officer of Police Station City Kotwali at  about  10.30  p.m.  about
the incident.
Later on, Geeta Bai died at about 11.25  p.m.  and  intimation
of this was also sent by Dr. Aggarwal  to  the  Station  Officer  of  Police
Station City Kotwali.
On the basis of the information received, a  case  was
registered and investigations commenced by the police.
4.    Separately, Bhika Ram made a complaint on 21st  August,  1996  to  the
Superintendent of Police and to  the  District  Magistrate  at  Morena  that
Bhupendra, his father Vrindavan and his mother Sheela Devi  had  caused  the
dowry death of Geeta Bai.
5.    On the same day, a post mortem examination was conducted on  the  body
of Geeta Bai and  it  was  opined  by
PW-7  Dr.  Siyaram  Sharma  (who  had
conducted the post mortem examination) that
 she  had  two  injuries  on  her
body, one on the left forearm which was  caused  by  a  hard,  blunt  object
while the other injury was on the back of the right hand caused by  a  tooth
bite.  
Both these injuries were ante mortem.  
It was also  opined  that  the cause of death was suspected poisoning.[1]
6.    On these broad facts, a charge  sheet  was  filed  against  the  three
accused persons for offences punishable under Sections 498-A  and  304-B  of
the IPC and in the alternative for an offence punishable under  Section  306
of the IPC.
Decision of the Trial Court
7.    The Sessions Judge in  Sessions  Trial  No.  328  of  1996  pronounced
judgment on 6th June, 2001.  It was held, on an examination of the oral  and
documentary evidence, that there was nothing to doubt  the  correctness  and
veracity of the evidence given by Bhika Ram, his wife PW-2 Munni  Devi,  his
brother-in-law PW-3 Munna Lal, the aunt of the deceased  being  PW-4  Urmila
and Bhika Ram’s brother PW-5 Ram Narayan.
8.    It was held, on the basis of  their  evidence,  that  apart  from  the
dowry given to Bhupendra’s family at the time  of  marriage,  there  was  an
additional demand for dowry made by  Vrindavan  to  give  him  one  buffalo.
This demand was met by Bhika Ram but there was  a  further  demand  on  20th
August, 1996 for a sum of Rs. 10,000/- which could not be met by him.
9.    It  was  also  held  that  due  to  the  inability  of  Bhika  Ram  to
immediately meet the demand for additional dowry, Geeta  Bai  was  subjected
to harassment  and  cruelty  for  not  bringing  adequate  dowry.   She  was
subjected to beating and was not given proper clothes to  wear  about  which
she had even informed Bhika Ram.
10.   Finally, it was held that  Geeta  Bai  had  died  an  unnatural  death
within 7 years of her marriage thereby inviting an adverse presumption of  a
dowry death against all the accused persons.
11.   The Sessions Judge noted that according  to  the  accused,  Geeta  Bai died due to food poisoning.  
He noted that there  was  no  evidence  brought
forth in this regard and that no other member of the family  had  complained of any food poisoning.  
It was also noted that Dr. S.C. Aggarwal had  stated
in his cross examination that the ill effects of food poisoning are  not  so intense as to cause the death of a person within an hour.
12.   On the basis of the  evidence  on  record  the  Sessions  Judge  found
Bhupendra and Vrindavan guilty of offences punishable under  Section  498-A,
Section 304-B and Section 306 of  the  IPC.   
However,  he  found  that  the
prosecution had failed to prove that Sheela Devi had  humiliated  Geeta  Bai
or treated her with cruelty which resulted in her death within  7  years  of
her marriage under unnatural circumstances.
Decision of the High Court
13.   Feeling aggrieved, by their conviction and the sentence  imposed  upon
them, Vrindavan and Bhupendra filed Criminal Appeal No. 344 of 2001  in  the
High Court of Madhya Pradesh. By judgment  and  order  dated  26th  October,
2007 the High Court upheld the conviction of Bhupendra but held  that  there
was no clinching evidence against Vrindavan and therefore  he  was  entitled
to the benefit of doubt and consequent acquittal.
14.   The High Court noted the contentions made on behalf  of  the  convicts
on the merits of the case,  namely,  that  the  statements  of  Geeta  Bai’s
parents were not reliable and  that  she  had  died  as  a  result  of  food
poisoning. It was also contended that some material witnesses had  not  been
examined by the prosecution.
15.   The  High  Court  concluded  that  virtually  from  the  date  of  her
marriage,  Geeta  Bai  had  been  treated  with  cruelty  and  subjected  to
harassment for  not  bringing  sufficient  dowry.   In  fact  Vrindavan  had
clearly informed Bhika Ram that Geeta  Bai  would  be  killed  in  case  the
demand for additional dowry was not fulfilled.  Even on  20th  August,  1996
Bhupendra had come to Bhika Ram’s house and had demanded Rs.  10,000/-  cash
as additional dowry.  On that occasion, when Geeta  Bai  was  going  to  her
matrimonial home along with Bhupendra, she  told  Bhika  Ram  that  she  was
being harassed and requested him to fulfill the demand for additional  dowry
otherwise she would be killed.
16.   The High Court found no reason to disbelieve the  testimony  of  Bhika
Ram nor did it  find  any  reason  to  disbelieve  the  testimony  of  other
witnesses even though they belonged to  Bhika  Ram’s  extended  family.  The
High Court also concluded that  Geeta  Bai  was  subjected  to  cruelty  and
harassment as a result of which she  consumed  wheat  tablets  and  died  an
unnatural death. It was also noted that there were ante mortem  injuries  on
the body of Geeta Bai.
17.   As regards the failure of the prosecution to record the  testimony  of
some material witnesses, the  High  Court  held  that  the  prosecution  had
examined witnesses who gave evidence in detail about the cruelty  and  death
of Geeta  Bai  and  no  adverse  inference  could  be  drawn  if  additional
witnesses were not examined.
18.   The High Court found that in so far as the conviction of Bhupendra  is concerned, there was adequate evidence to uphold  it  but  the  evidence  to hold Vrindavan guilty was insufficient and accordingly he was acquitted.
19.   Feeling aggrieved by the judgment and order dated 26th  October,  2007
passed by the High Court, Bhupendra is in appeal.
Discussion
20.   Learned counsel urged two contentions before us, none  of  which  were raised before the Sessions Judge or  before  the  High  Court.  
Frankly,  we
ought not to entertain these contentions. But, according to learned  counsel there is some lack of clarity on the issues raised and it  is  only  because of this that we have entertained his submissions.
21.   The first contention was that
since there was no chemical  examination
report of the viscera, it could not be said that Geeta Bai died  because  of consuming poisonous  wheat  tablets.   
The  second  contention  was  that
 a conviction could not be sustained both under Section 304-B  of  the  IPC  as well as under Section 306 of the IPC. 
In this context  it  was  urged  that
both these sections were mutually exclusive and a conviction can be  founded on either of these sections but not both.
      Section 304-B of the IPC reads as follows:
      “304-B. Dowry death.—(1) Where the death of a woman is caused  by  any
      burns  or  bodily  injury  or  occurs  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 for, or 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.


        Explanation.—For the purpose of  this  sub-section,  “dowry”  shall
      have the same meaning as in Section 2 of the  Dowry  Prohibition  Act,
      1961 (28 of 1961).


      (2) Whoever commits dowry death shall be  punished  with  imprisonment
      for a term which shall not be less than  seven  years  but  which  may
      extend to imprisonment for life.”


      Section 306 of the IPC reads as follows:
      “306. Abetment of suicide.—If  any  person  commits  suicide,  whoever
      abets  the  commission  of  such  suicide,  shall  be  punished   with
      imprisonment of either description for a term which may extend to  ten
      years, and shall also be liable to fine.”


Absence of a viscera report
22.   Normally,  the  viscera  are  preserved  and  submitted  for  chemical
analysis under the  following  circumstances:  (1)  When  the  investigating
officer requests for such an  examination;  (2)  When  the  medical  officer
suspects the presence of poison  by  smell  or  some  other  evidence  while
conducting an  autopsy  on  injury  cases;  (3)  To  exclude  poisoning,  in
instances where the cause of death could not be arrived at  on  post  mortem
examination and there is no natural disease or injury  to  account  for  it,
and (4) In decomposed bodies.[2]
23.   In Taiyab Khan and Others v. State of Bihar  (Now  Jharkhand),  (2005)
13 SCC 455 
it was urged that
 the viscera report  would  have  shown  
whether
the dowry death of the appellant’s wife occurred on account  of  consumption
of poison.  
Since the chemical examination report of  the  viscera  was  not
received, it could not be said to be a case  of  death  by  poisoning.  
This
contention was rejected by holding that factually the case  was  one  of  an
unnatural death. 
Therefore, since Section 304-B of the IPC refers  to  death
which occurs otherwise than under normal circumstances,  the  absence  of  a
viscera report would not make any difference to the fate  of  the  case.  
In
other words, for the purposes of Section 304-B of the IPC the mere  fact  of
an unnatural death is sufficient to invite a presumption under Section  113-
B of the Evidence Act, 1872.
24.   The view expressed in Taiyab Khan was reiterated in Ananda  Mohan  Sen
and Another v. State of West Bengal, (2007) 10 SCC 774.
In  that  case  the
exact cause of death could not be stated since the viscera preserved by  the
autopsy surgeon were to be sent to the chemical expert.
 In fact, one of  the
witnesses stated  that  the  unnatural  death  was  due  to  the  effect  of
poisoning but he would be able to conclusively state the cause of  death  by
poisoning only if he could detect poison in the viscera report.  
This  Court
noted that it was not in dispute that the death was an unnatural  death  and
held that the deposition of the witness indicated that the death was due  to
poisoning.  
It  is  only  the  nature  of  the  poison  that  could  not  be
identified.  
In view of this, the conviction of the appellant under  Section
306 of the IPC was upheld, there being no charge under Section 304-B of  the
IPC.
25.   In State of Karnataka v. K.  Yarappa  Reddy,  (1999)  8  SCC  715  
the
accused and the victim had coffee at a friend’s house. Soon thereafter,  the
accused launched a murderous assault on the victim with a  chopper.  It  was
pleaded by the accused that if they actually  had  coffee  at  the  friend’s
house, it would have shown up in the stomach contents. This Court  dismissed
the contention as “too puerile”. It was held that there was no need for  the
doctor to ascertain whether there was coffee in the stomach contents of  the
victim. This is  because  the  case  was  not  one  of  suspected  death  by
poisoning.
26.   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 of the IPC or under Section 306 of the IPC takes place; in a  case  of
an unnatural death  inviting  Section  304-B  of  the  IPC  (read  with  the presumption under Section 113-B of the Evidence Act, 1872)  or  Section  306 of the 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.
27.   That apart, we find on facts from the evidence adduced  in  this  case
that the cause of death of Geeta Bai was clearly a result of consumption  of
poison.  Dr. Siyaram Sharma had stated in his testimony that  the  death  of
the deceased  was  caused  due  to  suspected  poisoning.   This  particular
statement was not challenged by Bhupendra.
28.   Similarly, Dr. Aggarwal  had  mentioned  in  his  intimation  on  20th
August, 1996 at 10.30 p.m. to  Police  Station  City  Kotwali,  Morena  that
Geeta Bai had been brought to the hospital because she had consumed a  wheat
tablet.[3]
29.   Even DW-1 Ram Naresh Sharma, in his statement before the Court  stated
that the brother-in-law of Bhupendra told him that Geeta  Bai  had  consumed
some poisonous pills in the house of the appellant and was admitted  in  the
hospital.
30.   All this evidence clearly suggests that there was no doubt that  Geeta
Bai had died an unnatural death and that her death was  due  to  consumption
of some poisonous substance.  What exactly is the poison she consumed  pales
into insignificance even on the facts  of  the  case  and  the  evidence  on
record.
31.   We therefore reject the first contention advanced by  learned  counsel
both in law as well as on merits.

Mutual exclusivity of Sections 304-B and 306 of the IPC

32.   The second contention is also without any substance.
 In Satvir  Singh
and Others v. State of Punjab and Another, (2001) 8 SCC 633
this Court  drew
a distinction between Section 306 of the IPC and Section 304-B  of  the  IPC
in the following words:-
           “Section 306 IPC when read with Section 113-A  of  the  Evidence
           Act has only enabled the  court  to  punish  a  husband  or  his
           relative who subjected a  woman  to  cruelty  (as  envisaged  in
           Section 498-A IPC) if such  woman  committed  suicide  within  7
           years of her marriage. It is  immaterial  for  Section  306  IPC
           whether the cruelty or harassment was caused  “soon  before  her
           death” or earlier. If it was caused “soon before her death”  the
           special provision in  Section  304-B  IPC  would  be  invocable,
           otherwise resort can be made to Section 306 IPC.”


33.   It was held that Section 306 of the IPC is wide enough  to  take  care
of an offence under Section 304-B also.
 However, an offence  under  Section
304-B of the IPC has been made a far more serious  offence  with  imposition
of a minimum period of seven years  imprisonment  with  the  sentence  going
upto imprisonment for life.  
Considering the gravity of the  offence  it  is
treated separately from an offence punishable under Section 306 of the  IPC.
On this basis, this Court rejected the contention that if  a  dowry  related
death is a case of suicide it would not fall within the purview  of  Section
304-B of the IPC at all.
Reliance in this regard was placed on  Shanti  and
Another v. State of Haryana, (1991) 1 SCC 371  and  Kans  Raj  v.  State  of
Punjab and Others, (2000) 5 SCC 207
wherein this Court held that  a  suicide
is one of the modes of death falling within the ambit of  Section  304-B  of
the IPC.
34.   In Shanti this Court was concerned with  a  death  that  had  occurred
“otherwise than under normal circumstances” as mentioned  in  Section  304-B of the IPC.  
It was held that an unnatural dowry  death,  whether  homicidal
or suicidal, would attract Section 304-B of the  IPC.
This  expression  was
also considered in Kans Raj where it was held that it would mean death,  not
in the normal course, but apparently under suspicious circumstances, if  not
caused by burns or bodily injury. 
In Kans Raj the conviction of the  husband
of the deceased was upheld both for offences punishable under Section  304-B
of the IPC and Section 306 of the IPC also.
35.   We are, therefore, of the opinion that 
Section 306 of the IPC is  much broader in its application and takes within its fold one aspect  of  Section 304-B of the IPC.  
These two sections are  not  mutually  exclusive.  
If  a
conviction for causing a suicide is based on Section 304-B of  the  IPC, 
 it will necessarily attract Section 306 of the IPC.  
However, the  converse  is not true.
36.   Consequently, we reject the second contention  urged  by  the  learned
counsel for the appellant.

Conclusion
37.   We see no merit  in  the  appeal  and  it  is  accordingly  dismissed.


38.   The bail bond of Bhupendra is cancelled and it  is  directed  that  he
should be taken into custody to serve out the remainder of his sentence.

                                                      ….…….……………………..J.
                                        (Ranjana Prakash Desai)


                                                           ….…….……………………..J.
                                        (Madan B. Lokur)
New Delhi;
November 11, 2013
-----------------------
[1] Though the viscera of the deceased were sent for  chemical  examination,
the examination report had not been received when the witness  was  examined
on 13th August, 1999.
[2] Parikhs’s Textbook of Medical Jurisprudence and Toxicology; Fourth
edition, 1985 at page 90.
[3] A wheat tablet is used by farmers for killing insects in the wheat  crop
and is said to be commonly found in a village house.


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