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.
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.
-----------------------
[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
-----------------------
24
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.
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.
-----------------------
[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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