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Tuesday, January 21, 2014

Sec. 302 and Sec.498 A r/w 34 of I.P.C. - Sec. 101 -106 of Evidence Act - Burden of proof - Burden lies on Accused - wife was murdered and in order to cause disappearance of the dead body , the accused threw her body in a river - all escaped vacating house - when harassment for dowry was proved , when the death is unnatural - it is the duty of accused who are the husband and his relatives living jointly in one compound have to answer the same - the accused failed to discharge their party - Apex court confirmed the order of lower court and that of high court by dismissing the appeal = Joshinder Yadav …Appellant Versus State of Bihar …Respondent = 2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name =41162

 Sec. 302 and Sec.498 A r/w 34 of I.P.C. - Sec. 101 -106 of Evidence Act - Burden of proof - Burden lies on Accused -  wife was murdered and in order to cause disappearance of the dead body , the accused threw her body in a river - all escaped vacating house - when harassment for dowry was proved , when the death is unnatural - it is the duty of accused who are the husband and his relatives living jointly in one compound have to answer the same - the accused failed to discharge their party - Apex court confirmed the order of lower court and that of high court by dismissing the appeal =

We note  with  some  anguish  the
following sentences uttered by PW-9  Debu  Yadav  in  his  cross-examination probably  as  an  answer  to  the  usual  question  about  there  being   no independent witness  to  depose  about  cruelty.   
He  stated  
“whenever  my daughter visited my house, she used to complain that she is  being  tortured and assaulted there.  Who else can  be  a  witness  to  this  fact ?”  
Having
perused the evidence of PWs-9 and  10  we  have  no  manner  of  doubt  that
Bindula Devi was subjected to  cruelty  and  harassment  for  dowry  by  the
accused. Evidence of these witnesses is straightforward and  honest.   There
is no  exaggeration.   In  the  cross-examination  their  evidence  has  not
suffered any dent.  Implicit reliance can be placed on them.
Though, PW-10 Sachindra Yadav stated that Accused  1  Jaiprakash  Yadav  had
separated from his brothers after marriage, he has clarified  that  all  the
brothers have their houses in a  common  courtyard.  
 PW-9  Debu  Yadav  has
specifically named the appellant as a person who demanded  cattle.   
As  to  how  she  died  in  suspicious
circumstances was within the knowledge  of  the  accused.   The  burden  was shifted to the accused which they have not discharged.  
10. Uterus contained about full term dead male baby.”

In this connection, we may usefully refer to the judgment of  this
Court in Shambhu  Nath  Mehra   v.   State  of  Ajmer[3]  
where  this  Court
explained how Section 101 and Section  106  of  the  Evidence  Act  operate.
Relevant portion of the said judgment reads thus:


           “(10) Section 106 is an exception to Section 101.   Section  101
      lays down the general rule about the burden of proof.


           ‘Whoever desires any Court to give  judgment  as  to  any  legal
      right or liability dependent  on  the  existence  of  facts  which  he
      asserts, must prove that those facts exist’.


           Illustration (a) says –


           ‘A desires a Court to give judgment that B shall be punished for
      a crime which A says B has committed.


           A must prove that B has committed the crime’.


           (11)  This lays down the general rule that in a  criminal  case,
      the burden of proof is on the prosecution and Section 106 is certainly
      not intended to relieve it of that  duty.   On  the  contrary,  it  is
      designed to meet certain  exceptional  cases  in  which  it  would  be
      impossible, or at  any  rate  disproportionately  difficult,  for  the
      prosecution to establish  facts  which  are  ‘especially’  within  the
      knowledge of the accused and which he could prove  without  difficulty
      or inconvenience.”


In the present case, the deceased was admittedly  in  the  custody  of
the accused.  She disappeared from their house.  As to  how  her  dead  body
was found in the river was within  their  special  and  personal  knowledge.
They could have revealed the facts to disprove  the  prosecution  case  that
they had killed Bindula Devi.  They failed to  discharge  the  burden  which
had shifted to them under Section 106 of the Evidence Act.  The  prosecution
is not expected to give the exact manner in which the deceased  was  killed.
Adverse inference needs to be drawn against the accused as  they  failed  to
explain how the deceased was found dead  in  the  river  in  one  foot  deep
water.
We have examined the merits of the  case  and  held  that  the  appeal
deserves to be dismissed.  In the circumstances, the appeal is dismissed.

2014 ( January - Vol - 1-D.B.) Judis.nic.in/ S.C./ file name  =41162
            

                                                    REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO.  259 OF 2009

Joshinder Yadav                              …Appellant

                                   Versus

State of Bihar                                     …Respondent


                               J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1.     The appellant who was arraigned as Accused 2  was  tried  along  with
five other accused for offences punishable under Sections 498A and 302  read
with Sections 149 and 201 of the IPC by the 1st Additional  Sessions  Judge,
Madhepura.
The allegations against the accused, inter alia, were that  they
subjected one Bindula  Devi  to  cruelty  and  harassment  with  a  view  to
coercing her and her other  relatives  to  meet  their  unlawful  demand  of
property and that on her  failure  to  fulfill  their  unlawful  demand,  in
furtherance of their common object, they committed her murder and that  they
caused  disappearance  of  her  dead  body  with  an  intention  to   screen
themselves from legal punishment.

2.    Bindula Devi was married to Accused 1 Jaipraksh Yadav.  The  appellant
and Accused 3 Shakun Devo Yadav are the brothers  of  Accused  1  Jaiprakash
Yadav.  Accused 4 Dani Dutta Yadav is  their  father  and  Accused  5  Satya
Bhama Devi is their mother.  Accused 6  Fudai  Yadav  is  brother-in-law  of
Accused 1 Jaiprakash Yadav.

3.    The prosecution story is reflected in the evidence of Complainant  PW-
9 Debu Yadav, the father of Bindula  Devi.   He  stated  that  his  daughter
Bindula Devi was married to Accused 1 Jaiprakash Yadav.  He  further  stated
that in the marriage one buffalo, one cow and  one  bullock  were  given  as
dowry to the accused as per their demand.  However,  the  accused  were  not
satisfied with that.  They demanded a wrist watch and  a  cycle  which  were
given to them. Even then they continued to harass and assault Bindula  Devi.
 She gave birth to a male child.  The accused kept  Bindula  Devi  in  their
house and sent the child to his house so that he would rear the child.   PW-
9 Debu Yadav further stated that when in Ashwin  month  he  brought  Bindula
Devi to his house she told him about the ill-treatment meted out to  her  at
her matrimonial home.  She did not want to go  back.   He  tried  to  pacify
her.  He transferred two kathas of land in her name.  She then went  to  her
matrimonial home.  The accused insisted that she should sell the  land.   As
she did not agree to selling of the land,  they  subjected  her  to  further
torture.  PW-9 Debu Yadav further stated that
on  a  Monday  at  about  4.00 p.m. Accused 6 Fudai Yadav came to his house and enquired  whether   Bindula Devi had come there and told him that she had run away from the  house. 
He told Accused 6 Fudai Yadav that Bindula Devi would not  run  away  from  her
house.
He then proceeded to the house of the accused  situated  in  village
Kolhua along with his son Sachindra Yadav and his  brother-in-law.  
Accused
6 Fudai Yadav accompanied them for some distance  and  then  left  for  some
other place.
They reached  Kolhua  village  and  found  the  house  of  the
accused to be empty.   
All  the  accused  had  left  the  house  with  their
belongings.
Bindula Devi was also not present.  
On enquiry the  neighbours
told him that because Bindula Devi had refused to transfer the land  in  the accused’s name they had administered poison to her  and  murdered  her.  
He met Sub-Inspector of Police by the river side who  recorded  his  statement.
A search was conducted.
The dead body of Bindula Devi  was  recovered  from
the river bed.
Formal FIR of PW-9 Debu Yadav was  registered  on  31/1/1989
and the investigation was  started.
The  appellant,  Accused  1  Jaiprakash
Yadav and Accused 3 Shakun  Devo  Yadav  surrendered  before  the  court  on
6/3/1989.  
Accused 4 Dani Dutta   Yadav  surrendered  before  the  court  on
26/8/1989.

4.    At the trial, though, the  prosecution  examined  13  witnesses,  it’s
case rested on the evidence of PW-9 Debu Yadav, father of the  deceased  and
PW-10 Sachindra Yadav, brother of the deceased.  PWs-2 to 7 turned  hostile.
 The accused pleaded not guilty to the charge.  
They  contended  that  when Bindula Devi went to take bath, she slipped in the water,  got  drowned  and died.

5.    The trial court convicted the accused  under  Section  302  read  with
Section  149  of  the  IPC  and  sentenced  each  of  them  to  suffer  life
imprisonment.  
They were also convicted under Section 498A of  the  IPC  and
sentenced to undergo rigorous imprisonment for three years each.  
They  were
further convicted and sentenced to undergo rigorous imprisonment  for  seven
years each under Section 201 of the  IPC.   All  the  substantive  sentences
were ordered to run concurrently.  
The High Court  dismissed  their  appeal.
Hence, this appeal, by special leave, by Accused 2.

6.    Mr. Gaurav Agrawal, learned counsel for the appellant  submitted  that
the instant case rests on  circumstantial  evidence.  
Counsel  pointed  out
that  the appellant is  the  brother  of  Accused  1  Jaiprakash  Yadav,  the
husband of Bindula Devi.  
PW-10 Sachindra Yadav stated in his evidence  that
Accused 1 had separated from his other brothers.  
There is  no  evidence  on
record to establish that the appellant was party to any dowry demand  or  to
any ill-treatment meted out to Bindula  Devi.  
Counsel  submitted  that  in
cases where apart from husband other members of his family are charged  with
offences under Sections 304B, 302 and 498A of the IPC and the case rests  on
circumstantial evidence, unless the circumstantial evidence is  of  required
standard conviction cannot be based on it.  
In this connection he relied  on
Vithal Tukaram More & Ors. v. State of  Maharashtra[1].  
Counsel  submitted
that allegations about motive are vague.
Medical evidence is  inconclusive.
The prosecution has, therefore, failed to establish its case.
In any  case,
since  the  appellant  was  residing  separately,  in  the  absence  of  any
clinching evidence establishing his complicity he cannot be convicted.

7.    Mr. Gopal Singh, learned counsel for the State of Bihar on  the  other
hand submitted that the evidence on record establishes that all the  accused
were staying in houses situated in the same  courtyard.  
Counsel  submitted
that evidence of PW-9 Debu Yadav and PW-10 Sachindra Yadav  establishes  the
prosecution case.
Pertinently, the accused did not lodge any  complaint  to
the police.  
The fact that they left the house  with  all  their  belongings
suggests their complicity.
Counsel submitted that Bindula Devi  disappeared
from  the  house  of  the  accused.  
As  to  how  she  died  in  suspicious
circumstances was within the knowledge  of  the  accused.   The  burden  was shifted to the accused which they have not discharged.   
Adverse  inference
must be drawn against the accused.  In this connection,  counsel  relied  on
Balaram Prasad Agrawal v. State of Bihar & Ors[2].
Counsel  submitted  that
appeal be, therefore, dismissed.

8.    We have already referred to the evidence of father of Bindula Devi PW-
9 Debu Yadav.  He has given a graphic account of  the  harassment  and  ill-
treatment meted out to the deceased by the accused.   They  were  not  happy
with a bullock, a cow and a buffalo which were given as dowry.   They  asked
for a watch and a cycle. That was also given.  They asked  for  more.   PW-9
Debu Yadav transferred 2 kathas  of  land  to  Bindula  Devi.   The  accused
wanted to sell it or wanted it to be transferred in their  names  and  since
Bindula Devi did not agree to that they continued to torture her.   Her  son
was sent to her father so that he would be brought up by him,  but  she  was
kept in the matrimonial house obviously to work.  PW-10 Sachindra Yadav  the
brother of Bindula Devi has corroborated his father.
It is  distressing  to
note that all the other witnesses, that is PW-2 to PW-7 turned hostile.  
In the facts of this case, it is indeed a pointer to the guilt of the  accused.
 They won over the prosecution witnesses.  
We note  with  some  anguish  the
following sentences uttered by PW-9  Debu  Yadav  in  his  cross-examination probably  as  an  answer  to  the  usual  question  about  there  being   no independent witness  to  depose  about  cruelty.   
He  stated
“whenever  my daughter visited my house, she used to complain that she is  being  tortured and assaulted there.  Who else can  be  a  witness  to  this  fact ?”
Having
perused the evidence of PWs-9 and  10  we  have  no  manner  of  doubt  that
Bindula Devi was subjected to  cruelty  and  harassment  for  dowry  by  the
accused. Evidence of these witnesses is straightforward and  honest.   There
is no  exaggeration.   In  the  cross-examination  their  evidence  has  not
suffered any dent.  Implicit reliance can be placed on them.

9.    It is submitted that  the  appellant  had  separated  from  Accused  1
Jaiprakash Yadav and, hence, he cannot be a party to  the  alleged  acts  of
cruelty of the other accused.  We find  no  substance  in  this  submission.
Though, PW-10 Sachindra Yadav stated that Accused  1  Jaiprakash  Yadav  had
separated from his brothers after marriage, he has clarified  that  all  the
brothers have their houses in a  common  courtyard.
 PW-9  Debu  Yadav  has
specifically named the appellant as a person who demanded  cattle.  
He  has
stated that the accused were not satisfied with the  cattle  given  by  him.
They demanded more dowry.  They used to harass  and  assault  Bindula  Devi.
He stated that when he went to the house  of  the  accused  after  receiving
information that she had left their house, he found the house to  be  empty.
All the accused had absconded.  They had taken their belongings  with  them.
 This is confirmed by PW-13 Surendra  Rai  the  Investigating  Officer.   He
stated that when he went  to  the  house  of  the  accused  after  receiving
information  about  disappearance  of  Bindula  Devi  he  found  the   house
completely empty. Even the household articles and food grains were  missing.
 The accused were not present.  No  member  of  their  family  was  present.
Bindula Devi was also not  present.   These  circumstances  persuade  us  to
reject the submission that the appellant did not join the other  accused  in
treating Bindula Devi with cruelty.  The  conviction  and  sentence  of  the
appellant under Section 498A of the IPC is therefore perfectly justified.

10.   We now come to the death of Bindula Devi. PW-9 Debu  Yadav  and  PW-10
Schindra Yadav stated that dead body of Bindula Devi was recovered from  the
river bed.
The Investigating Officer PW-13 Surendra Rai stated  that  after
recording the FIR of  PW-9 Debu Yadav, he inspected the house of  Accused  1
Jaiprakash Yadav.  
The dead body of Bindula Devi was found lying  600  yards
away from the house of the accused.  It was lying in one  foot  deep  water,
close to the southern bank of the  river,  near  a  ferry.   The  ferry  was
situated adjacent to the maize field of Hazari Mandal.  He took it  out  and
prepared inquest report.  He further stated that one Vinod  stated  that  on
29/1/1989, the accused had a meeting.  On  30/1/1989,  they  left  for  some
other place and in the evening it was revealed that they had killed  Bindula
Devi by poisoning her and had thrown her  dead  body   at  the  ferry.   The
Investigating Officer further stated that  Vinod,  Parmeshvari  Yadav,  Brij
Bihari Yadav also confirmed this fact.  All these persons turned hostile  in
the court.


11.   PW-12 Dr. Arun Kumar Mandal did the post-mortem on the  dead  body  of
Bindula Devi.  Following are his observations:




      “1.   (1)   Epistaxis from both nostrils.
              2) Blood mixed with froth from mouth.
              3) Both eye balls congested, cornea hazy.
              4) Face congested and cyanosed.
              5) Skin of both hands and feet were corrugated.


      2.    On opening of skull all the blood vessels were congested in  the
           maninges and brain matter.


      3.    In the chest both the lungs were  found  congested,  frothy  and
           spongy and on cutting blood stains froth found in segments.


     4. In the heart both chambers were found full.


      5.    In the stomach semi-digested food  about  4  ounces  with  blood
           mixed.


      6.    In the small intestine-gas and solid facees.


      7.    In the large intestine-gas and solid facees.


      8.    In the case of kidneys both were found congested.


      9.    Liver an spleen were also found congested.


     10. Uterus contained about full term dead male baby.”


      PW-12 Dr. Arun Kumar  Mandal  opined  that  the  cause  of  death  was
asphaxia due  to  drowning.   He  stated  that  in  cases  of  drowning,  if
immediate death is caused, then, there will be negligible quantum  of  water
in the stomach.  He further stated that death may  be  caused  even  in  one
foot deep water if the victim is kept in water  with  his  neck  pressed  in
sleeping position.   It may be  stated  here  that  report  of  the  viscera
examination is not on record.   Dr. Mandal has  admitted  that  he  did  not
know the result of viscera  examination.    He  added  that  there  were  no
injuries on the person of the deceased.

12.   In our opinion, the evidence of the father and the brother of  Bindula
Devi and other attendant circumstances such as strong motive; the fact  that
the accused did not lodge any complaint about missing of Bindula Devi;  that
Accused 6 Fudai Yadav  went to the house  of  PW-9  Debu  Yadav  to  enquire
about Bindula Devi and then suddenly deserted PWs 9 and 10  when  they  were
going to the house of the accused,  that  all  the  accused  absconded  from
their house with their belongings and that the house was  completely  empty,
lead to an irresistible conclusion that the  accused  were  responsible  for
the death of Bindula Devi.

13.   It is submitted that since there were no injuries on the dead body  of
Bindula Devi, it would be wrong to conclude that Bindula Devi  was  kept  in
water in a sleeping position with her  neck  pressed  as  suggested  by  the
doctor.  The prosecution story  that  the  accused  caused  her  death  must
therefore be rejected.  Medical evidence, it is  argued,  does  not  support
the prosecution case.

14.   In our opinion, the prosecution having established  that  the  accused
treated the deceased with cruelty and that they subjected her to  harassment
for dowry, the accused ought to have  disclosed  the  facts  which  were  in
their personal and special knowledge to disprove the prosecution  case  that
they murdered Bindula Devi.
Section 106 of the Evidence Act covers  such  a
situation.
The burden which had shifted to the accused was  not  discharged
by them.
In this connection, we may usefully refer to the judgment of  this
Court in Shambhu  Nath  Mehra   v.   State  of  Ajmer[3]
where  this  Court
explained how Section 101 and Section  106  of  the  Evidence  Act  operate.
Relevant portion of the said judgment reads thus:


           “(10) Section 106 is an exception to Section 101.   Section  101
      lays down the general rule about the burden of proof.


           ‘Whoever desires any Court to give  judgment  as  to  any  legal
      right or liability dependent  on  the  existence  of  facts  which  he
      asserts, must prove that those facts exist’.


           Illustration (a) says –


           ‘A desires a Court to give judgment that B shall be punished for
      a crime which A says B has committed.


           A must prove that B has committed the crime’.


           (11)  This lays down the general rule that in a  criminal  case,
      the burden of proof is on the prosecution and Section 106 is certainly
      not intended to relieve it of that  duty.   On  the  contrary,  it  is
      designed to meet certain  exceptional  cases  in  which  it  would  be
      impossible, or at  any  rate  disproportionately  difficult,  for  the
      prosecution to establish  facts  which  are  ‘especially’  within  the
      knowledge of the accused and which he could prove  without  difficulty
      or inconvenience.”




15.   In Balram Prasad Agrawal  v.  State of Bihar[4], the  prosecution  had
established the cruel conduct of the accused i.e. her  husband  and  members
of his family and the sufferings undergone by the deceased at  their  hands.
The unbearable conduct of the accused ultimately resulted in  her  death  by
drowning in the well in the courtyard of the accused’s  house.   This  Court
observed that what happened on  the  fateful  night  and  what  led  to  the
deceased’s falling in the well was wholly within the  personal  and  special
knowledge of the accused.  But they kept mum on  this  aspect.   This  Court
observed that it is true that the burden is on the prosecution to prove  the
case beyond reasonable doubt.  But once the prosecution  is  found  to  have
shown that the accused were guilty of persistent conduct of cruelty qua  the
deceased spread over  years  as  was  well  established  from  the  unshaken
testimony of father of the deceased, the facts which were  in  the  personal
knowledge of the accused who were present  in  the  house  on  that  fateful
night could have been revealed by them to  disprove  the  prosecution  case.
This Court observed that the accused had not  discharged  the  burden  which
had shifted to them under Section 106 of the Evidence Act.  While coming  to
this conclusion, this Court relied on Shambhu Nath Mehra.


16.   In the present case, the deceased was admittedly  in  the  custody  of
the accused.  She disappeared from their house.  As to  how  her  dead  body
was found in the river was within  their  special  and  personal  knowledge.
They could have revealed the facts to disprove  the  prosecution  case  that
they had killed Bindula Devi.  They failed to  discharge  the  burden  which
had shifted to them under Section 106 of the Evidence Act.  The  prosecution
is not expected to give the exact manner in which the deceased  was  killed.
Adverse inference needs to be drawn against the accused as  they  failed  to
explain how the deceased was found dead  in  the  river  in  one  foot  deep
water.


17.   Pertinently, the post-mortem notes do not indicate  presence  of  huge
amount of water in the dead body.
According to PW-12 Dr. Mandal, in a  case
of drowning, if immediate death is caused, then, there  will  be  negligible
quantum of water in the stomach.
From the evidence of PW-12 Dr. Mandal,  it
appears that the death of Bindula Devi occurred immediately  after  she  was
drowned in the water because there was not much water in her  stomach.    It
is also pertinent to note  that  Bindula  Devi  was  pregnant.   Her  uterus
contained full term dead male baby.  She could not have, therefore,  offered
any resistance.  It appears that, therefore, there were no injuries  on  the
dead body.
The whole operation  appears  to  have  been  done  swiftly  and
skillfully.  But in any case, as stated  hereinabove,  it  is  not  for  the
prosecution to explain in what manner Bindula Devi was done to death by  the
accused because Bindula Devi was staying in the house of the  accused  prior
to  the  occurrence  and  she  disappeared  from  that   house.    All   the
circumstances leading to her unnatural death were  within  the  special  and
personal knowledge  of  the  accused  which  they  chose  not  to  disclose.
Instead, they gave a totally false explanation that when  Bindula  Devi  had
gone for bath, she slipped, got drowned in the water and died.   This  story
is palpably false.  The false explanation offered  by  the  accused  further
strengthens the prosecution case as it becomes an  additional  link  in  the
chain of circumstances.


18.   It is true that in Vithal Tukaram More this Court has held that  in  a
case where other members of the husband’s family are charged  with  offences
under Sections 304B, 302  and  498A  of  the  IPC  and  the  case  rests  on
circumstantial evidence, the circumstantial evidence  must  be  of  required
standard if conviction has to be based on it.   We  are  of  the  considered
opinion that the evidence adduced by the prosecution  in  this  case  is  of
required standard.  No other inference, except that  of  the  guilt  of  the
accused, is  possible  on  the  basis  of  the  evidence  on  record.    The
established facts are consistent only with the  hypothesis  of  their  guilt
and inconsistent with their innocence.   The appeal, therefore, deserves  to
be dismissed.

19.   Before we part, we must refer to a very vital  aspect  of  this  case.
PW-9 Debu Yadav, the father of Bindula Devi stated that the neighbours  told
him that Bindula Devi was poisoned by the accused.  PW-10  Sachindra  Yadav,
brother of Bindula Devi  has  also  stated  so.   PW-13  Surendra  Rai,  the
Investigating Officer went a step further.   He  stated  that  Vinod  Yadav,
Shiv Pujan Ram, Vinod Kumar Mehta, Parmeshwar Yadav and  Braj  Bihari  Yadav
told him that the accused had killed Bindula Devi  by  poisoning  her;  that
they  had  concealed  the  dead  body  in  the  river  and  had  run   away.
Unfortunately, these witnesses turned hostile.  But the  fact  remains  that
the prosecution had come out with a case of poisoning.  It  was,  therefore,
necessary for the prosecution to get  the  viscera  examined  from  Forensic
Science Laboratory (“the FSL”).

20.   The trial court has observed that the Investigating Officer had  filed
a petition on 19/4/1988 requesting  the  doctor  to  send  the  viscera  for
chemical analysis  to  the  FSL,  Patna.   Post-mortem  notes  mention  that
viscera was protected for future needs.  This is also stated  by  PW-12  Dr.
Mandal.  Dr. Mandal has, however, added that he did not know the  result  of
viscera examination.  From the evidence of the Investigating Officer,  PW-13
Surendra Rai, it appears that the doctor did not send  the  viscera  to  the
FSL.  When he was questioned about the  viscera  report,  the  Investigating
Officer stated in the cross-examination that a letter had been sent  to  the
doctor about viscera examination.  He further stated that he  did  not  make
any complaint against the doctor to the senior officers, but,  informed  his
officer through diary.  We are of the opinion that the doctor ought to  have
sent the viscera to the FSL when he was requested to do so.  On his  failure
to do so, the  Investigating  Officer  should  have  informed  his  superior
officer and taken steps to ensure that viscera is sent  to  the  FSL  rather
than  just  making  a  diary  entry.   Such  a  supine  indifference  has  a
disastrous effect on the criminal justice administration system.

21.   We are aware that  in  some  cases  where  there  is  other  clinching
evidence on record to establish  the  case  of  poisoning,  this  Court  has
proceeded to convict the accused even in the absence of viscera report.   In
Bhupendra  v.  State of Madhya Pradesh,[5] this Court was concerned  with  a
case where the viscera report was not  on  record,  but,  there  was  enough
evidence of poisoning.  The accused was charged  under  Sections  304-B  and
306 of the IPC.  Drawing support from the presumptions under  Sections  113B
and 113A of  the  Evidence  Act,  1872  and,  after  referring  to  relevant
judgments on the point, this Court held  that  death  of  the  deceased  was
caused by poisoning.  The  relevant  observation  of  this  Court  could  be
quoted.

      “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.”

22.   In Chhotan Sao & Another   v.   State  of  Bihar,[6]  this  Court  was
dealing with a case involving Sections 304-B  and  498A  of  the  IPC.   The
allegations were that the deceased  was  murdered  by  poisoning  her.   The
viscera report was not on record.  There was no other evidence on record  to
establish that the deceased was  poisoned.   This  Court  distinguished  the
case before it from the facts of Bhupendra and while acquitting the  accused
of the charge under Section 304-B of the IPC made  the  following  pertinent
observations:

      “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 304-B.
       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 jeopardize 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.”

23.   We must note that this is the third case which this Court has  noticed
in a short span of two months where,  in  a  case  of  suspected  poisoning,
viscera  report  is  not  brought  on  record.   We  express   our   extreme
displeasure about the way in which such serious cases are  dealt  with.   We
wonder whether these lapses are the result of inadvertence  or  they  are  a
calculated move to frustrate the prosecution.   Though  the  FSL  report  is
not mandatory in all cases, in cases where poisoning is suspected, it  would
be advisable and in the interest of justice to ensure that  the  viscera  is
sent to the FSL and the FSL report is obtained.  This is because not in  all
cases there is adequate strong other evidence on record to  prove  that  the
deceased was administered poison by the accused.  In a  criminal  trial  the
Investigating Officer, the Prosecutor and the Court play  a  very  important
role.  The court’s prime duty is to find out the truth.   The  Investigating
Officer, the Prosecutor and the Courts must work in  sync  and  ensure  that
the guilty are punished  by  bringing  on  record  adequate  credible  legal
evidence.  If the Investigating Officer stumbles, the Prosecutor  must  pull
him up and take necessary steps to rectify the lacunae.  The Criminal  Court
must be alert, it must oversee their actions and, in case, it suspects  foul
play, it must use its vast powers  and  frustrate  any  attempt  to  set  at
naught a genuine prosecution.    Perhaps, the instant case would  have  been
further strengthened had the viscera been  sent  to  the  FSL  and  the  FSL
report was on record.  These scientific tests are of vital importance  to  a
criminal case, particularly when the witnesses are  increasingly  showing  a
tendency to turn hostile.  In the  instant  case  all  those  witnesses  who
spoke about poisoning turned  hostile.   Had  the  viscera  report  been  on
record and the case of poisoning was true, the prosecution would  have  been
on still firmer grounds.


24.   Having noticed that, in several cases where  poisoning  is  suspected,
the prosecuting agencies are not taking steps to obtain viscera  report,  we
feel it necessary to issue certain directions in  that  behalf.   We  direct
that in cases where poisoning is  suspected,  immediately  after  the  post-
mortem, the viscera should be sent to the  FSL.   The  prosecuting  agencies
should ensure that the viscera is, in fact, sent to the FSL for  examination
and the FSL should ensure that  the  viscera  is  examined  immediately  and
report is sent to the investigating  agencies/courts  post  haste.   If  the
viscera  report  is  not  received,  the  concerned  court  must   ask   for
explanation and must summon the concerned officer of  the  FSL  to  give  an
explanation  as  to  why  the  viscera  report  is  not  forwarded  to   the
investigating agency/court.  The criminal  court  must  ensure  that  it  is
brought on record.

25.   We have examined the merits of the  case  and  held  that  the  appeal
deserves to be dismissed.  In the circumstances, the appeal is dismissed.


26.   A copy of this order be sent to the  Registrar  Generals  of  all  the
High Courts with a direction  to  circulate  the  same  to  all  subordinate
Criminal Courts; to the Director of Prosecution, to the Secretary,  Ministry
of Home Affairs, to the Secretary, Home  Department  and  to  the  Director,
Forensic Science Laboratory within the jurisdiction of the  respective  High
Courts.
                               .…………………………..J.
                             (Ranjana Prakash Desai)


                               .…………………………..J.
                              (J. Chelameswar)
New Delhi;
January 20, 2014.
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[1]    (2002) 7 SCC 20
[2]    (1997) 9 SCC 338
[3]    AIR 1956 SC 404
[4]    (1997) 9 SCC 338
[5]    2013 (13) SCALE 52
[6]    2013 (15) SCALE 338

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