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Thursday, December 19, 2013

Sec.304 B - Reason of Death not established - Non- examination of the Doctor - Non- production of Vicesar report - Police , Magistrate - Prosecution all committed grave mistake - resulted in Acquittal under sec. 304 B I.P.C. = Chhotan Sao & Another …Appellants Versus State of Bihar …Respondent = Published in judis.nic.in/supremecourt/filename=41114

 Sec.304 B - Reason of Death not established - Non- examination of the Doctor - Non- production of Vicesar report  - Police , Magistrate - Prosecution all committed grave mistake - resulted in Acquittal under sec. 304 B I.P.C. =   
We are of the  opinion  that  the  conviction  of  the  accused  under
section 498A calls for no interference as there  is  concurrent  finding  by
both the courts below based on evidence that the  accused  husband  and  his
relatives subjected Babita Devi to cruelty as explained under  section  498A
IPC.[4]

13.   The only question is  –  whether  the  prosecution  has  succeeded  in
establishing the commission of offence under  section  304B.    =

   No doubt the prosecution has adduced sufficient evidence to  establish
all other facts necessary to  prove  the  offence  under  section  304B  IPC
except the cause of death.  As seen from the trial court judgment there  are
no injuries on the body  of  the  deceased.  Even  according  to  the  First
Information Report the death was caused due to poisoning which the  deceased
was compelled to consume.   In such circumstances,  the  non-examination  of
the doctor who  conducted  the  post-mortem  coupled  with  the  failure  to
produce the Forensic Laboratory Report regarding the examination of  viscera
of the deceased leaves  a  gaping  hole  in  the  case  of  the  prosecution
regarding the nature of the death of Babita Devi. 
  In the circumstances,  we  are  of  the  opinion  that  the  surviving
appellant must be acquitted of the offence under Section 304B.    Appeal  is
allowed to that extent.

17.   Before parting with the  appeal,  we  wish  to  place  on  record  our
anguish regarding the inadequacy of investigation, the failure to  discharge
the responsibility on the part of the public prosecutor and  the  Magistrate
who took cognizance of the offence under  Section  304B.  
The  Investigating
Officer who submitted the charge sheet ought not to  have  done  it  without
securing the viscera report from the forensic lab and placing it before  the
Court.   
Having regard to the nature of  the  crime,  it  is  a  very  vital
document more particularly in the absence of any direct  evidence  regarding
the consumption of poison by the deceased Babita Devi.  
Equally  the  public
prosecutor failed in his responsibility to guide the  investigating  officer
in that regard.   
Coming to the magistrate who committed the matter  to  the
Sessions Court, he failed to apply his mind and mechanically  committed  the
matter for trial.   
Public prosecutors and judicial officers owe a greater  responsibility  to  ensure
compliance with law in a criminal case.   
Any lapse on their  part  such  as
the one which occurred in the  instant  case  is  bound  to  jeopardise  the
prosecution  case  resulting  in  avoidable  acquittals.   
Inefficiency  and
callousness on their part is bound to shake the faith of the society in  the
system of administration of criminal justice in this country which,  in  our
opinion, has reached considerably lower level than desirable.                         

                             REPORTABLE




                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO.1613 OF 2008


Chhotan Sao & Another                        …Appellants
            Versus
State of Bihar                                     …Respondent




                               J U D G M E N T


Chelameswar, J.

1.    The two appellants  herein  were  convicted  for  the  offences  under
sections 304B and 498A IPC by the Additional Sessions  Judge  VI,  Gaya  and
the same was continued in appeal by the High Court of Patna.

2.    Initially three accused were charged for the offences  under  sections
328, 304B and 498A  Indian  Penal  Code  and  sections  3  and  5  of  Dowry
Prohibition Act on the allegation that they harassed  and  were  responsible
for the unnatural death of one Babita Devi, the daughter  of  PW1  and  PW6,
mother and father respectively.  
All three accused were found guilty of  the
offences they were charged with by the trial court.  
 Each  of  the  accused
was awarded punishment for seven years for the offence  under  section  304B
IPC and two years for the offence under  section  498A  IPC.  
 However,  the
trial court did not  award  any  separate  sentence  insofar  as  the  other
offence of which the accused were charged of.

3.    Aggrieved by the judgment of the trial court dated 5th  May  2003  all
the  three  accused  carried  appeals   to   the   High   Court   of   Patna
unsuccessfully.

4.    The instant appeal is carried by only  two  accused  Chottan  Sao  and
Kamla Devi who happened to be the deceased Babita Devi’s  father-in-law  and
sister-in-law (husband’s brother’s wife).
We are informed  that  the  third
accused Suhas Sao, husband of the deceased Babita Devi served  the  sentence
and did not choose to challenge the correctness of the judgment of the  High
Court. From the proceedings of this Court dated 24.10.2013, it appears  that
the 1st appellant died during the pendency of this appeal.

5.    PW8 Surendra Prasad one of the brothers of the  deceased  Babita  Devi
reported on 17.11.1991 to the police station Sherghatty that in the  morning
of the same day the deceased was beaten up  by  a  lathi  and  compelled  to
consume poison which resulted in her death.[1]  It is  also  stated  in  the
report that whenever the deceased Babita Devi came  to  her  parental  home,
she used to complain that the accused were harassing her with  a  demand  to
get more money from her parents coupled with a threat of killing her in  the
event of  her  not  complying  with  the  demand.   On  the  basis  of  this
complaint, the Sherghatty police registered a case No.166/91. On  completion
of the investigation, a charge-sheet was filed on 2.11.1994.

6.    To establish the guilt of the accused,  the  prosecution  examined  in
all 13 witnesses including the parents of the deceased (PWs 1 and  6).   PW2
and PW3 are sisters-in-law i.e.  the  wives  of  two  brothers  of  deceased
Babita Devi; PW5 and PW8 are the brothers of  the  deceased  and  PW7  is  a
sister of the deceased.  All of them were examined to prove  two  facts  (1)
that the marriage of Babita Devi took place some 5 to 6 years prior  to  her
death and (2) that Babita Devi  used  to  complain  that  the  accused  were
harassing her with a demand of dowry. The  said  evidence  was  believed  by
both the courts.  PW4 and PW9 were declared hostile.  PW12 and PW13 are  the
police officers who investigated the case.  While  PW13  filed  charge-sheet
against the husband of the deceased and PW12 filed charge-sheet against  the
other two accused.

7.    One disturbing feature of the case is that the  doctor  who  conducted
the post-mortem of the body of Babita Devi was not examined  at  the  trial.
The post-mortem report (Ex.3) came to be marked at the  trial  through  PW11
Dr. Arbind Prasad, a Professor  in  Forensic  Science  Department,  M.M.C.H.
Gaya, who claimed that he worked with the author (one Dr.  Kapildeo  Prasad)
of the post-mortem report.  Dr. Arbind Prasad further deposed that he  could
and did recognise the handwriting and signature on Ex.3 to be  that  of  Dr.
Kapildeo Prasad.

8.    The content of the  post-mortem  is  not  discussed  anywhere  in  the
judgment of the trial court or in the judgment of the  High  Court.  On  the
other hand, at para 20 of  the  trial  court  judgment  it  is  recorded  as
follows:
      “One thing is that from Ext.3, post mortem report it would appear that
      viscera was sent for post mortem but that report has not been received
      and no apparent injury external or internal has been  found  on  post-
      mortem examination of the dead body.”



9.    It is on the basis of such scanty  medical  evidence  both  the  trial
court and the High Court rushed to the conclusion that the death  of  Babita
Devi occurred “otherwise than under normal circumstances”.

10.   It is argued by the  learned  counsel  for  the  appellants  that  the
judgment of the High  Court[2]  confirming  the  judgment  of  the  Sessions
Court[3] insofar  as  it  recorded  a  finding  that  Babita  Devi  died  an
unnatural death is based on no evidence.  Therefore, even if it  is  assumed
for the sake of arguments that both  the  courts  below  rightly  reached  a
concurrent finding that there were demands of dowry by the accused prior  to
the death of Babita Devi and  that  Babita  Devi  was  subjected  to  either
cruelty or harassment for such a demand, the offence under section  304B  is
not established as one important element of section 304B i.e. the  death  of
Babita Devi occurred otherwise  than  under  normal  circumstances,  is  not
established by any legally admissible evidence on record.

11.   On the other hand, the learned counsel for the State  argued  that  in
view of the consistent versions of PWs 1, 2, 3, 5, 6, 7 and  8  that  Babita
Devi consistently used to complain of harassment for dowry by  the  accused,
both the courts below rightly convicted the accused.

12.   We are of the  opinion  that  the  conviction  of  the  accused  under
section 498A calls for no interference as there  is  concurrent  finding  by
both the courts below based on evidence that the  accused  husband  and  his
relatives subjected Babita Devi to cruelty as explained under  section  498A
IPC.[4]

13.   The only question is  –  whether  the  prosecution  has  succeeded  in
establishing the commission of offence under  section  304B.
 Section  304B
reads as follows:
      “304B. 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.


It can be seen from the section that  in  order  to  constitute  an  offence
under section 304B, the following factors must be established:
        1. That there is a death of a  woman  within  seven  years  of  her
           marriage;


        2. That the death is a result of  any  burn  or  bodily  injury  or
           occurs otherwise than under normal circumstances; or

        3. That the woman was subjected to cruelty  or  harassment  by  her
           husband or his relative is by  way  of  any  demand  for  or  in
           connection with dowry.


14.   No doubt the prosecution has adduced sufficient evidence to  establish
all other facts necessary to  prove  the  offence  under  section  304B  IPC
except the cause of death.  As seen from the trial court judgment there  are
no injuries on the body  of  the  deceased.  Even  according  to  the  First
Information Report the death was caused due to poisoning which the  deceased
was compelled to consume.   In such circumstances,  the  non-examination  of
the doctor who  conducted  the  post-mortem  coupled  with  the  failure  to
produce the Forensic Laboratory Report regarding the examination of  viscera
of the deceased leaves  a  gaping  hole  in  the  case  of  the  prosecution
regarding the nature of the death of Babita Devi.   Learned counsel for  the
State placed reliance on the decision of this Court in  Bhupendra  v.  State
of Madhya Pradesh, 2013 (3) SCALE 552, to which one of us,  Ranjana  Prakash
Desai, J., was a party.  In the said case, no doubt  this  Court  held  that
the production of chemical examination report is not mandatory.   The  Court
held as follows:
      “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 Section304-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.”


On the facts of that case, this Court reached to the conclusion  that  there
was sufficient evidence on record to come to the conclusion that  the  death
was due to poisoning.

15.   Coming to the case on  hand,  the  conclusion  recorded  by  both  the
Courts below that Babita Devi died an unnatural death is not  based  on  any
legal material on record.    None of the witnesses spoke to  the  factum  of
their witnessing Babita Devi consuming poison  either  under  compulsion  or
otherwise.   The statement in the FIR by PW8 is based on  hearsay  evidence.
Yaddu Sah of Gopalpur, on whose information PW8 learnt about  the  death  of
Babita Devi, and who reported to the Police, is not examined at the trial.

16.   In the circumstances,  we  are  of  the  opinion  that  the  surviving
appellant must be acquitted of the offence under Section 304B.    Appeal  is
allowed to that extent.

17.   Before parting with the  appeal,  we  wish  to  place  on  record  our
anguish regarding the inadequacy of investigation, the failure to  discharge
the responsibility on the part of the public prosecutor and  the  Magistrate
who took cognizance of the offence under  Section  304B.  
The  Investigating
Officer who submitted the charge sheet ought not to  have  done  it  without
securing the viscera report from the forensic lab and placing it before  the
Court.   
Having regard to the nature of  the  crime,  it  is  a  very  vital
document more particularly in the absence of any direct  evidence  regarding
the consumption of poison by the deceased Babita Devi.  
Equally  the  public
prosecutor failed in his responsibility to guide the  investigating  officer
in that regard.   
Coming to the magistrate who committed the matter  to  the
Sessions Court, he failed to apply his mind and mechanically  committed  the
matter for trial.   
Public prosecutors and judicial officers owe a greater  responsibility  to  ensure
compliance with law in a criminal case.   
Any lapse on their  part  such  as
the one which occurred in the  instant  case  is  bound  to  jeopardise  the
prosecution  case  resulting  in  avoidable  acquittals.   
Inefficiency  and
callousness on their part is bound to shake the faith of the society in  the
system of administration of criminal justice in this country which,  in  our
opinion, has reached considerably lower level than desirable.


                                                          ..………………………………….J.
                                              (RANJANA PRAKASH DESAI)


                                                         ...………………………………….J.
                                              (J. CHELAMESWAR )
New Delhi;
December 17, 2013.







-----------------------
[1]     “It is respectfully submitted that I had married  my  sister  Babita
Devi 5/6 years above to Son of Chotan Sao  namely  Subhash  Sao  of  Village
Gopalpur. After marriage the husband of my sister Subhash  Sao,  her  father
in law Chotan Sao and sister/s  elder  Gotani  used  to  always  trouble  my
sister because whenever my sister used to come to her  father’s  house  then
she used to always  complain about these people and used to say  that  these
people threaten her to kill her and her in laws used to tell  my  sister  to
bring money.  Some days ago only Rs.3000.00  was  given  and  one  week  ago
Rs.7000.00 was demanded and upon not giving the said money these  people  on
17.11.91, day Sunday, in the morning beat  her  with  Lathi  and  forcefully
told her to eat poison and she ate poison helplessly. Suddenly  today  dated
17.11.91, Yaddu Sah of Gopal Pur went to Gaya and informed that your  sister
had died.  Then we people came to Gopalpur and came to  know  that  she  had
eaten poison on account of forcing by these people whose dead body is  lying
in Gopalpur.

      Hence it is requested that  necessary  action  be  taken  against  the
accused persons.”
[2]    …. As mentioned above it is also clear from the  evidence  on  record
that Babita died unnatural death in the house of her husband.
[3]      Para 22.  So what I find that even if the necessary report has  not
been received the death of deceased  Babita  Devi  has  become  in  such  an
unnatural and in a mysterious circumstances which would persuade  the  court
to come to the conclusion that death was caused otherwise  than  in  natural
circumstances.

[4]    498A.     x   x   x
            Explanation.— For the purpose of this section, “cruelty” means—


            (a)   any willful conduct which is of such a nature as is likely
           to drive the woman to commit suicide or to cause grave injury or
           danger to life, limb or health (whether mental or  physical)  of
           the woman; or


            (b)   harassment of the woman where such harassment  is  with  a
           view to coercing her or any person related to her  to  meet  any
           unlawful demand for any property or valuable security or  is  on
           account of failure by her or any person related to her  to  meet
           such demand.









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