The Lease Agreement is not registered - there is clear understanding about rate of rent and terms and conditions of lease between the parties evidencing correspondences - suit for recover of rent is maintainable - pending case, Bank vacated some portion of building - Bank directed to hand over the possession with out any suit for recovery = GULAB CHAND BHORA & ORS. ... APPELLANT (S) VERSUS PUNJAB NATIONAL BANK & ANR. ... RESPONDENT (S) = Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40957

  The Lease Agreement is not registered - there is clear understanding about rate of rent and terms and conditions of lease between the parties evidencing correspondences - suit for recover of rent is maintainable - pending case, Bank vacated some portion of building - Bank directed to hand over the possession with out any suit for recovery =
The appellants-plaintiffs are the owners of the  premises  which  were
let out to the respondent-bank.  
The  aforesaid  tenancy  was  on  the  basis  of  an  unregistered
agreement between the parties effective from 01.06.1978 for a  period  of  6 years with the option of continuance of the tenancy for a further period  of 5 years.  
The monthly rent was agreed between the parties at Rs.2200/-.   
By
mutual agreement, the tenancy continued on expiry of  the  initial  5  years
thereof until 30.06.1989.   
 Thereafter,  the
regional building committee of the bank in its meeting  held  on  05.07.1993
also recommended renewal of the lease agreement  at  the  enhanced  rent  of
Rs.2/- per square feet for a period of 5 years with effect from the date  of
expiry of the earlier agreement i.e.  01.07.1989  and,  thereafter,  further
enhancement of rent at the rate of 45% for an additional period of 5  years.
  The aforesaid  recommendation  of  the  regional  building  committee  was
signed by the Manager (GAD), Senior Manager as well as the Regional  Manager
of the defendant-bank.

5.     It  appears  that  notwithstanding  the  above,  the   defendant-bank
continued to occupy the premises on payment of rent at the old  rate.   
This
led the appellants to institute Money Suit No.143 of 1994 claiming a  decree
of Rs.9,46,892.50/- being the balance of the arrears of rent  calculated  at
the rate of Rs.2/- per  square  feet  for  the  period  from  01.07.1989  to
30.06.1994 and, thereafter, for the period from 01.07.1994 upto the  end  of
the month of November, 1994 (suit was filed on 23.11.1994) at  the  rate  of
Rs.2.90/- per square feet.  
Along with the aforesaid amount, the appellants-
plaintiffs had also prayed for grant of interest at  the  rate  of  12%  per
annum. =
The demand raised by the appellants-plaintiffs for enhanced  rent  and acceptance thereof by the bank authorities as  evident  from  the  documents
dated 12.11.1990 and 05.07.1993, in our considered view,  reflects  a  clear understanding between the parties that the tenancy agreement would  continue at an  enhanced  rent  of  Rs.2/-  per  square  feet  for  the  period  from 01.07.1989 to 30.06.1994 and thereafter at further enhanced rent of 45%  for the next 5 years.  
Abundant materials had been  brought  on  record  by  the
appellants-plaintiffs to show that the  claim  for  enhanced  rent  for  the
premises and the understanding reached was in tune with or  even  less  than
the prevailing market rate of rent in respect of similar premises.  
If  the
above is the basis on which the Trial Court had thought  it  fit  to  decree the suit of the appellants-plaintiffs we do not see how the High  Court  can be found to be justified in reversing the  said  decree  and  requiring  the appellants-plaintiffs to move the Rent Controller for fixing the  fair  rent of the premises.  
The exercise directed by the High  Court  was,  therefore,
wholly unnecessary besides being inequitable and litigious.  It should  have
been best avoided. 
We, therefore,  consider  it  proper  to  set  aside  the
judgment dated 08.02.2008 and the decree  dated  28.01.2008  passed  by  the
High Court of Calcutta and  restore  the  decree  dated  11.02.1999  of  the
learned Trial Court. 
The appellants-plaintiffs would now be entitled to  the
amount decreed by the learned Trial Court and  also  rent  at  the  enhanced
rate of Rs.2.90/- with effect from 01.07.1999  till  the  present  date  and
until mutually altered.  
In so far as the claim of  interest  is  concerned,
in the peculiar facts of the case, we decline the same.

12.   Before parting, we would like to observe that  during  the  course  of
hearing of the appeals it became known that the bank has no further need  to
retain the second  floor  of  the  tenanted  premises  in  view  of  certain
subsequent facts and events  that  have  occurred  during  the  pendency  of
present appeals.  
In the above situation we do not consider it necessary  to
require the appellants-plaintiffs to approach  the  court,  once  again,  to
recover possession of the second floor of the tenanted  premises  which  the
bank admittedly is ready and willing to surrender.   
We,  therefore,  direct
the respondent-bank to act accordingly in so far as the second floor of  the
tenanted premises is concerned within a period  of  three  months  from  the
date of receipt of this order.

13.   With the above observations, both the appeals shall stand disposed  of
in the manner indicated above.

                                                           NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOS. 9677-9678 OF 2011


GULAB CHAND BHORA & ORS.          ...   APPELLANT (S)

                                   VERSUS

PUNJAB NATIONAL BANK & ANR.  ...  RESPONDENT (S)



                               J U D G M E N T

RANJAN GOGOI, J.

1.    Delay in filing the application for substitution is condoned.

2.    Application for substitution is allowed.

3.    Aggrieved by the reversal of the decree passed in their favour by  the
learned Trial Court and the dismissal of  the  cross  objection  filed,  the
plaintiffs have filed the present appeals.

4.    The appellants-plaintiffs are the owners of the  premises  which  were
let out to the respondent-bank.  
The area of the tenanted premises  measures
7565 square feet located  on  the  ground,  first  and  second  floor  of  a
building situated in Ward No.13 of Kharagpur  Town  in  the  State  of  West
Bengal.  
The  aforesaid  tenancy  was  on  the  basis  of  an  unregistered
agreement between the parties effective from 01.06.1978 for a  period  of  6 years with the option of continuance of the tenancy for a further period  of 5 years.
The monthly rent was agreed between the parties at Rs.2200/-.  
By
mutual agreement, the tenancy continued on expiry of  the  initial  5  years
thereof until 30.06.1989.   
Thereafter,  the  appellants-plaintiffs  claimed
enhanced rent at the rate of Rs.3/- per square feet.  It  appears  that  the
Senior Manager of the defendant Bank and the plaintiffs arrived at a  mutual
settlement for enhancement of the rent to Rs.2/- per square feet.  This  was
on 12.11.1990.
However, the higher  authority  in  the  Bank  disowned  the
authority of the Senior Manager to take such a  decision.  
Thereafter,  the
regional building committee of the bank in its meeting  held  on  05.07.1993
also recommended renewal of the lease agreement  at  the  enhanced  rent  of
Rs.2/- per square feet for a period of 5 years with effect from the date  of
expiry of the earlier agreement i.e.  01.07.1989  and,  thereafter,  further
enhancement of rent at the rate of 45% for an additional period of 5  years.
  The aforesaid  recommendation  of  the  regional  building  committee  was
signed by the Manager (GAD), Senior Manager as well as the Regional  Manager
of the defendant-bank.

5.     It  appears  that  notwithstanding  the  above,  the   defendant-bank
continued to occupy the premises on payment of rent at the old  rate.   
This
led the appellants to institute Money Suit No.143 of 1994 claiming a  decree
of Rs.9,46,892.50/- being the balance of the arrears of rent  calculated  at
the rate of Rs.2/- per  square  feet  for  the  period  from  01.07.1989  to
30.06.1994 and, thereafter, for the period from 01.07.1994 upto the  end  of
the month of November, 1994 (suit was filed on 23.11.1994) at  the  rate  of
Rs.2.90/- per square feet.  
Along with the aforesaid amount, the appellants-
plaintiffs had also prayed for grant of interest at  the  rate  of  12%  per
annum.

6.    The claim in the suit was resisted by  the  defendant-bank  contending
that there was no fresh agreement between  the  parties  on  expiry  of  the
earlier tenancy on 30.06.1989.
According to the defendants, the demand  for
enhanced rate  raised  by  the  appellants-plaintiffs;  the  decision  dated 12.11.1990 and the recommendations of the regional building committee  dated 05.07.1993 did not give rise to any concluded agreement between the  parties in order to entitle the appellants-plaintiffs to the reliefs claimed in  the
suit.

7.    The learned Trial Court, 
after noticing the respective  stand  of  the
parties;
 the evidence brought on record and after specifically  taking  note
of the stand taken before it on behalf of the defendant-bank that  the  bank
was ready to pay the rent as per the  recommendations  dated  05.07.1993  of
the regional building committee, by its judgment  dated  11.02.1999  thought
it fit to decree the suit for enhanced  rent  at  the  rate  of  Rs.2/-  per
square feet for the period from 01.07.1989 to 30.06.1994 and further at  the
rate of Rs.2.90/- from 01.07.1994 to 30.06.1999. 
 However, for  the  reasons
assigned by the learned Trial Court, the claim  of  interest  was  declined.
It may be specifically noticed that the learned Trial Court while  decreeing
the suit as aforesaid took into account the recommendation of  the  regional
building committee which document was duly exhibited in the suit (Exbt.20).

8.    Aggrieved by the decree of the learned Trial  Court  dated  11.02.1999
the Bank filed an appeal before the High Court.   
In  the  said  appeal  the
appellants filed their cross-objections as against the refusal of  interest.
 The High Court by its impugned judgment and  decree  dated  08.02.2008  and 28.01.2008 respectively set aside the decree passed  by  the  learned  Trial Court leaving  it  open  to  the  appellants-plaintiffs  to  move  the  Rent Controller  for  fixation  of  fair  rent  for  the  premises  in  question.
Consequently, the cross-objection filed by  the  appellants  was  dismissed.
In doing so, the High Court came to the conclusion  that  
as  there  was  no concluded contract between the parties  with  regard  to  enhanced  rent  on expiry of the period of the lease, it is only the Rent Controller under  the Tenancy Act who could have determined the fair rent of  the  premises.  
The
High Court, therefore, left it open to the appellants-plaintiffs to move  to the Rent Controller.  
Aggrieved by the  aforesaid  reversal  of  the  decree
passed in their  favour  and  the  dismissal  of  the  cross-objection,  the
present appeals have been filed.

9.    We have heard learned counsel for both the parties.

10.    From the several documents exhibited in the suit by  the  appellants-
plaintiffs, it  is  clear  that  prior  to  the  expiry  of  the  lease  the
appellants-plaintiffs had given notice(s) for continuance of the tenancy  at
the enhanced rate(s) claimed therein.  
The rent,  as  claimed,  was  on  the
basis of the  rent  prevailing  in  the  locality  where  the  premises  was
located.  
Of particular significance would be the  minutes  of  the  meeting
held between the Senior Manager of the bank  and  the  appellants-plaintiffs
on 12.11.1990 wherein the rent of premises was agreed at the rate of  Rs.2/-
per square feet with effect from 01.07.1989.  
Though  the  Bank  appears  to
have denied the authority of the Senior Manager to sign  the  said  minutes,
as already noticed, the regional building  committee  of  the  Bank  in  its
meeting held on 05.07.1993 had, once again, favoured renewal of the  tenancy
at the rate of Rs.2/- per square feet for the initial period of 5 years  and
thereafter at an enhanced rate of 45% for an additional period of  5  years.

The aforesaid admitted documents proved in the course of trial of suit  were
relied upon by the learned Trial Court to  come  to  the  finding  that  the
appellants-plaintiffs were  entitled  to  enhanced  rent  in  terms  of  the
recommendation  of  the  regional  building  committee   dated   05.07.1993.
Accordingly, the suit was decreed, however, without any interest.

11.   The demand raised by the appellants-plaintiffs for enhanced  rent  and acceptance thereof by the bank authorities as  evident  from  the  documents
dated 12.11.1990 and 05.07.1993, in our considered view,  reflects  a  clear understanding between the parties that the tenancy agreement would  continue at an  enhanced  rent  of  Rs.2/-  per  square  feet  for  the  period  from 01.07.1989 to 30.06.1994 and thereafter at further enhanced rent of 45%  for the next 5 years.  
Abundant materials had been  brought  on  record  by  the
appellants-plaintiffs to show that the  claim  for  enhanced  rent  for  the
premises and the understanding reached was in tune with or  even  less  than
the prevailing market rate of rent in respect of similar premises.
 If  the
above is the basis on which the Trial Court had thought  it  fit  to  decree the suit of the appellants-plaintiffs we do not see how the High  Court  can be found to be justified in reversing the  said  decree  and  requiring  the appellants-plaintiffs to move the Rent Controller for fixing the  fair  rent of the premises.  
The exercise directed by the High  Court  was,  therefore,
wholly unnecessary besides being inequitable and litigious.  It should  have
been best avoided. 
We, therefore,  consider  it  proper  to  set  aside  the
judgment dated 08.02.2008 and the decree  dated  28.01.2008  passed  by  the
High Court of Calcutta and  restore  the  decree  dated  11.02.1999  of  the
learned Trial Court. 
The appellants-plaintiffs would now be entitled to  the
amount decreed by the learned Trial Court and  also  rent  at  the  enhanced
rate of Rs.2.90/- with effect from 01.07.1999  till  the  present  date  and
until mutually altered.  
In so far as the claim of  interest  is  concerned,
in the peculiar facts of the case, we decline the same.

12.   Before parting, we would like to observe that  during  the  course  of
hearing of the appeals it became known that the bank has no further need  to
retain the second  floor  of  the  tenanted  premises  in  view  of  certain
subsequent facts and events  that  have  occurred  during  the  pendency  of
present appeals.  
In the above situation we do not consider it necessary  to
require the appellants-plaintiffs to approach  the  court,  once  again,  to
recover possession of the second floor of the tenanted  premises  which  the
bank admittedly is ready and willing to surrender.   
We,  therefore,  direct
the respondent-bank to act accordingly in so far as the second floor of  the
tenanted premises is concerned within a period  of  three  months  from  the
date of receipt of this order.

13.   With the above observations, both the appeals shall stand disposed  of
in the manner indicated above.


                                                           …………..………………………J.
                                                  [H.L. GOKHALE]




                                                           …………..………………………J.
                                                  [RANJAN GOGOI]

NEW DELHI
NOVEMBER 11, 2013.

-----------------------
8

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

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

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

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

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


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

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

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

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1774 OF 2008


Bhupendra                                              .…..Appellant

                             Versus

State of Madhya Pradesh                      …..Respondent



                               J U D G M E N T


Madan B. Lokur, J.

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


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


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


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


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

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

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


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

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


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

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


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

Acquitted under sec. 302 and 306 IPC - convicted under sec.304 B on interpolated letter , without prove of demand of dowry soon before the death - Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased = = ASHA & ANR. ... APPELLANTS VERSUS STATE OF UTTARAKHAND ... RESPONDENT = http://judis.nic.in/supremecourt/imgst.aspx?filename=40955

Acquitted under sec. 302 and 306 IPC - convicted under sec.304 B on interpolated letter , without prove of demand of dowry soon before the death - Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased = 

The  High  Court,  after  careful
examination of the letter dated 28.06.1993,  has  found  that  it  has  been
interpolated and that some changes have been made in  the  letter  and  some
words were added to it. The courts below have erred  in  law  in  convicting
the appellants herein by erroneously placing  reliance  upon  the  above  so
called letter, wherein certain words were added with a view to  make  out  a
fabricated charge against them to  secure  the  conviction  of  the  accused
persons.

 On perusal of the evidence on  record,  we  are  of  the
view that the charge is not proved by the prosecution, particularly  as  the
courts below have failed to notice that the prosecution has failed to  prove
that the dowry demand was  made  by  the  accused  either  at  the  time  of
marriage or subsequently as  it  has  not  produced  convincing  and  cogent
evidence in this regard.

  whether the demand for [pic]30,000/- as alleged to have been  made  by
the accused is a demand for dowry with  the  deceased  that  can  constitute
cruelty or  harassment  by  the  accused.

 In our considered  view,  after  careful  analysis  of  the  aforesaid
aspects of the case and on careful perusal of the evidence  on  record,  the
finding of fact recorded by the High Court in  convicting  the  accused  for
the charge of Section 304B of the IPC is not  only  erroneous  in  fact  but
also suffers from error in law  and  therefore,  the  present  appeals  must
succeed.


                IN THE SUPREME COURT OF INDIA                                                                   CRIMINAL APPELLATE JURISDICTION




                      CRIMINAL APPEAL NO. 1893 OF 2013
                (Arising Out of SLP (Crl.) No. 2098 of 2011)



ASHA & ANR.                            ... APPELLANTS

                VERSUS

STATE OF UTTARAKHAND                       ... RESPONDENT

                                    WITH

                      CRIMINAL APPEAL NO. 1894 OF 2013
                (Arising Out of SLP (Crl.) No. 2924 of 2011)




                               J U D G M E N T

V. Gopala Gowda, J.



      These appeals have been filed by the  appellants  against  the  common
impugned  judgment  and  order  dated  07.01.2011  of  the  High  Court   of
Uttarakhand at Nainital in Criminal Appeal No. 1931 of 2001(Old no. 1060  of
1998), whereby the High Court dismissed the appeal  of  the  appellants  and
upheld their conviction and sentence of 10 years R.I. under Section 304B  of
the Indian Penal Code (in short “the IPC”) awarded by the  trial  court.
 In
Criminal Appeal No. 1893 of 2013 the appellants are  the  sisters-in-law  of
the deceased and in Criminal Appeal No. 1894 of 2013 the  appellant  is  the
father-in-law of the deceased.
During pendency  of  the  appeal  before  the
High Court, the co-accused, Lilawati, the mother-in-law of the deceased  had
died, therefore, the case abated against her.

2. The brief facts of the  case  are  stated  hereunder  to  appreciate  the
   correctness of the findings recorded by both the trial court and the High
   Court on the charges framed against the accused  persons  under  Sections
   302/34, 304B and 306 of the IPC and also to find out as  to  whether  the
   appellants are entitled for the relief as prayed by them.

3. The deceased, Bhagwati Devi was married to Satish  Chandra  (the  brother
   of the appellants in Criminal Appeal No. 1893 of 2013) on 13.06.1991.
The
   deceased  died  due  to  burn  injuries  in  her  matrimonial  house   on
   18.07.1993, around two years after marriage. 
The co-accused, the  father-
   in-law of the deceased, Nitya Nand (the appellant in Criminal Appeal  No.
   1894 of 2013) lodged a report (Ex.Ka.1) on 18.07.1993  with  the  patwari
   stating that his daughter-in-law committed suicide by burning herself  at
   about 10.00 a.m. 
He alleged in the aforesaid  report  that  the  deceased
   burnt herself to death while he had gone to the market and his  wife  and
   their daughters were away in the jungle for cutting grass. 
On 19.07.1993,
   the complainant, Mahesh Chandra (P.W. 5), the  brother  of  the  deceased
   lodged another report to  the  patwari  making  allegations  against  the
   appellants herein and the mother-in-law of the deceased, upon  which  FIR
   No.1/93 dated 19.07.1993 was registered against them. 
The accused persons
   were arrested and sent to judicial custody on 22.07.1993. On  16.10.1993,
   the police, after investigation, submitted the charge  sheet  before  the
   Chief Judicial Magistrate, Almora.
The case was committed to the Court of
   the Sessions Judge on 23.03.1994  and  the  accused  were  charged  under
   Sections 302/34 and 304B of the IPC and in the alternative,  Section  306
   of the IPC. 
Both the prosecution and the defence witnesses were  examined
   to prove the charges against the accused persons and to  show  that  they
   are not guilty of the offences alleged against them. 
The trial court,  on
   appreciation of evidence on record, vide its  judgment  and  order  dated
   01.06.1998, found the appellants  guilty of offence under Section 304B of
   the IPC and they were sentenced to 10  years  R.I.  
The  appellants  were
   acquitted for offences under  Sections  302  and  306  of  the  IPC.
The
   appellants filed Criminal Appeal No. 1931/2001 (Old no.1060/1998)  before
   the High Court.
The High  Court  dismissed  the  appeal  and  upheld  the
   judgment and order of the Sessions Court vide  its  common  judgment  and
   order dated 07.01.2011.  
Aggrieved  by  the  same  they  preferred  these
   appeals, urging certain grounds and legal contentions.



4. The learned Sessions Judge relied upon the evidence  of  the  prosecution
   witnesses to convict the appellants.
The prosecution examined 9 witnesses
   in support of the case.
P.W 3, Bhuvan Chandra and P.W 5,  Mahesh  Chandra
   are the brothers of the deceased.
 According to P.W. 3, his brother Deepak
   Chandra-the P.W.7 had gone to the matrimonial house of the deceased, when
   the four accused persons demanded        [pic]30,000/- stating  that  the
   deceased had brought less dowry and threatened to send her back to  their
   house if they did not pay the amount demanded. 
P.W.3 had written a letter
   (Ex. Ka.3) on 28.6.1993 to his parents informing them about the demand of
   the in-laws of the deceased for [pic]30,000/- and that  due  to  this  he
   withdrew [pic]4,000/- and sent it to his father  through  a  villager  to
   give it to his sister, the deceased  herein.  
He  also  stated  that  the
   deceased-Bhagwati had told his wife and his father  that  she  was  being
   harassed at her in-laws house because she had brought less dowry.
P.W.4,
   Nanda Devi, the mother of the deceased also alleged that the deceased was
   harassed by the accused persons for bringing less dowry. She deposed that
   the accused persons gave her less food and did not allow her to wear  the
   clothes which were given to her at the time of the marriage.
 P.W.5,  the
   brother of the deceased deposed that his sister had told him that her in-
   laws taunted her about being from a poor family and  for  having  brought
   less dowry.
P.Ws.3, 4 and 5 alleged that the accused  burnt  Bhagwati  to
   death.
P.W.6, Dr. Naval Kishore Pandey, the doctor who conducted the post
   mortem of the deceased deposed before the trial court that she  had  died
   due to 90% of burn injuries.
P.W.7, Deepak Chandra,  another  brother  of
   the deceased deposed before the court that he had gone  to  his  sister’s
   matrimonial  house  in  May,  1993  when  the  accused  persons  demanded
   [pic]30,000/- and said that dowry was not fulfilled by the parents of the
   deceased and they had simply given a sewing machine.
 He also stated  that
   the accused persons had  misbehaved  with  his  sister  Bhagwati  in  his
   presence.

5. The trial court examined the evidence on record and held that the  charge
   under Sections 302/34 of the IPC against the accused persons is not  made
   out, but instead the accused created the circumstances and compelled  the
   deceased to commit suicide. Further, it has held that the prosecution has
   been able to prove the case i.e. the charge under Section 304B of the IPC
   beyond reasonable doubt that the demand for dowry that was  made  by  the
   accused persons subsequent to the marriage and soon before the  death  of
   the deceased amounts to ‘dowry death’. As regards Section 306 of the IPC,
   the trial court held that there is no direct evidence regarding  abetment
   to suicide by the  deceased  and  instead  reiterated  that  the  accused
   created the circumstances for committing suicide and since  evidence  was
   not led under Section 306, the trial court held  that  the  accused  were
   liable to be acquitted for offence under  Section  306.   Therefore,  the
   trial court convicted and  sentenced  the  accused  persons  for  offence
   punishable under Section 304B of the IPC and also  cancelled  their  bail
   bonds, pursuant to this conviction.

6. The High Court, in the impugned judgment has stated that in  dowry  death
   cases, direct evidence is hardly available and  such  cases  are  usually
   proved by circumstantial evidence.
Further, the  High  Court  has  stated
   that the death of  the  deceased  cannot  be  said  to  be  under  normal
   circumstances for  the  reason  that  at  the  place  of  occurrence  the
   investigating officer found  a  matchbox,  a  plastic  jeri-can  of  five
   litres, half filled with kerosene oil and there was cot and  bed  towards
   the feet of the deceased but these articles were intact. 
It was  felt  by
   the High Court that it is surprising that the deceased was burnt  to  90%
   and she might have moved around writhing in pain and during this  process
   the articles kept inside the  room  might  have  caught  fire  but  these
   circumstances were not found.
Further, it has  come  in  the  prosecution
   evidence that the deceased was making complaints about the torture  meted
   out to her by her in-laws at her  matrimonial  house  in  lieu  of  dowry
   demands and it has further held that the appellants-accused persons  also
   could not explain the reason for the deceased having committed suicide at
   her matrimonial house.
Thus, the High Court came to the  conclusion  that
   the death of the deceased cannot be said to be in  normal  circumstances.
 
Therefore, the High Court held that it can be safely presumed  that  this
   is a case of dowry death against the accused persons in whose  house  the
   deceased had died due to burn injuries.
The  High  Court  further  stated
   that another circumstance which goes against the accused persons is  that
   they did not inform the parents/brothers of the  deceased  on  coming  to
   know of her death. 
The High Court has held in its judgment, on the  basis
   of the evidence of the witnesses,  that  the  prosecution  case  of  ill-
   treatment of the deceased at the hands of the accused  was  found  to  be
   fully established. Therefore, the High Court has  upheld  the  conviction
   and sentence awarded by the trial court in its judgment and dismissed the
   appeal of the appellants.

7. The learned counsel for the appellants have contended that
there  was  no
evidence on record to show that the deceased had been  subjected  to  any cruelty or harassment by the appellants  in  connection  with  demand  of dowry soon before her death and the conditions set forth  for  conviction under Section 304B of the IPC were not satisfied by the  prosecution.  
It
   was further contended by the learned counsel that
there were  no  demands
   for dowry either at the time of marriage or subsequently and  the  courts
   below have erred in law in convicting and sentencing  the  appellants  by
   relying upon the letter of P.W.3 marked as Ex.Ka.3, even though the trial
   court had come to the conclusion that the letter has  been  interpolated.
 
The trial court has observed  that  in  the  letter,   the  word  ‘Sasur’
   (father-in-law) has been added after the  word  ‘Sas’  (mother-in-law)and
   many other words have been added or struck off  here  and  there  in  the
   letter. 
Thus, the reliance placed by the trial court upon  such  evidence
   to convict the appellants of the charge was erroneous in law. 
Further, it
   is contended by the learned counsel that the courts below have picked one
   line from one place and another from another place from the  evidence  of the prosecution witnesses to arrive at the conclusion and held that there
   was demand for dowry by the appellants.

8. The learned counsel for  the  respondent-the  State  of  Uttarakhand  has
   contended  that
 the  evidence  on  record  adduced  by  the  prosecution
   witnesses would clearly show that the deceased was regularly subjected to
   cruelty and harassment by the appellants as she was poor and brought less
   dowry to the family of the appellants.
 The  letter,  Ex.Ka.3  written  by
   P.W.3, one of the brothers of the deceased to his parents informing  them
   about the demand of the  accused  persons  for  [pic]30,000/-   with  the
   brother of the deceased would clearly show that the demand for  dowry  is
   proved and the same is accepted by the trial court and  the  trial  court
   rightly convicted and sentenced the accused persons for the offence under
   Section 304B of the IPC.
It is further contended by the  learned  counsel
   for the respondent-State that the conviction of the accused persons under
   Section 304B of the IPC on the  basis  of  the  evidence  on  record  was
   legally correct and the same need not be interfered with  by  this  Court
   and must be upheld.

9.  We have heard the rival factual and legal contentions  urged  on  behalf
   of both the parties and very carefully perused the evidence on record  to
   examine the correctness of  the  finding  recorded  against  the  accused
   persons in the impugned judgment. The following points  would  arise  for
   our consideration:

        i) Whether the trial court and the appellate court were correct  in
           recording the finding that the accused  are  guilty  of  offence
           under S.304B of the IPC and in convicting  and  sentencing  them
           under this Section?

       ii) What order to be passed?

10.  On considering the evidence of the prosecution witnesses as deposed  by
   them which is on record,
we are of the view that the charges  of  cruelty
   or harassment against the accused are not supported by legal evidence  on
   record. The courts below have erroneously placed reliance on  the  letter
   (Ex. Ka.3) written by  P.W.3  to  his  parents  which  is  on  record  to
   establish the charge u/s 304B of the IPC, wherein he has  stated  in  his
   letter that P.W.7 had gone to the matrimonial house of the  deceased  and
   was met with demand for [pic]30,000/-. 
There is no evidence of demand for
   dowry by the accused persons prior to the alleged demand of [pic]30,000/-
   . To satisfy the ingredients of the provision of Section 304B of the IPC,
   the death of a woman must be caused due to burns or bodily injuries,  and
   must be within 7 years of her marriage. Further, it must be  proved  that
   soon before her death, she was subjected to cruelty or harassment by  her
   husband or her relatives “in connection with the demand for dowry”.

11.   The said charge has not been proved by  the  prosecution  by  adducing
evidence to attract the ingredients of the offence  under  Section  304B  of
the IPC.
 The trial court and the appellate court have not taken great  care
in analysing and appreciating the evidence on record, keeping  in  view  the
gravity of the offence of dowry death and the punishment prescribed  for  it
u/s 304B of the IPC.
 They were required  to  scrutinise  the  evidence  very
cautiously and carefully in order to arrive at the conclusion as to  whether
all the  ingredients  of  the  offence  with  reference  to  the  conditions
enumerated u/s 304B of the IPC to convict the accused  have  been  satisfied
by the prosecution.
 On perusal of the evidence on  record,  we  are  of  the
view that the charge is not proved by the prosecution, particularly  as  the
courts below have failed to notice that the prosecution has failed to  prove
that the dowry demand was  made  by  the  accused  either  at  the  time  of
marriage or subsequently as  it  has  not  produced  convincing  and  cogent
evidence in this regard.
In this case, the evidence on record is  not  clear
as to
  whether the demand for [pic]30,000/- as alleged to have been  made  by
the accused is a demand for dowry with  the  deceased  that  can  constitute
cruelty or  harassment  by  the  accused.  The  High  Court,  after  careful
examination of the letter dated 28.06.1993,  has  found  that  it  has  been
interpolated and that some changes have been made in  the  letter  and  some
words were added to it. The courts below have erred  in  law  in  convicting
the appellants herein by erroneously placing  reliance  upon  the  above  so
called letter, wherein certain words were added with a view to  make  out  a
fabricated charge against them to  secure  the  conviction  of  the  accused
persons. We are of the view that the document Ex.Ka.3 was  created  for  the
purpose of falsely implicating the accused to secure  their  conviction  for
the charge under  Section  304B  of  the  IPC.  The  said  letter  has  been
erroneously relied upon by the courts  below  to  establish  the  allegation
that there was cruelty or harassment by the accused persons on the  deceased
which has resulted in setting up of the circumstances  for  her  death.  The
courts below have not noticed the important  aspect  of  the  case,  namely,
that the charge of dowry death,  that  there  was  demand  on  the  deceased
either before the marriage or soon before the death  of  the  deceased  made
against the accused persons,  should  have  been  proved  beyond  reasonable
doubt. The courts below have also  failed  to  consider  the  relevant  fact
namely, the appellants herein were not in the  house  at  the  time  of  the
incident.

12.   In our considered  view,  after  careful  analysis  of  the  aforesaid
aspects of the case and on careful perusal of the evidence  on  record,  the
finding of fact recorded by the High Court in  convicting  the  accused  for
the charge of Section 304B of the IPC is not  only  erroneous  in  fact  but
also suffers from error in law  and  therefore,  the  present  appeals  must
succeed.

13. In view of the aforesaid reasons, i.e. the lack of compelling  evidence,
we have to reverse the judgment and order  of  the  High  Court  by  setting
aside the conviction of the accused persons under Section 304B of  the  IPC.
The impugned judgment of the High Court cannot be sustained and the same  is
accordingly set aside. The appellants are acquitted of all the charges.  The
appellants are on bail, their bail bonds stand discharged.

14. The appeals are allowed accordingly.




                        ………………………………………………………………………J.
                        [SUDHANSU JYOTI MUKHOPADHAYA]


                                   ………………………………………………………………………J.
                                   [V. GOPALA GOWDA]
New Delhi,

November 1, 2013


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