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

 Sec.304 B – Reason of Death not established – Non- examination of the Doctor – Non- production of Vicesar report – filed charge sheet – Police , Magistrate – Prosecution all committed grave mistake – resulted in Acquittal under sec. 304 B I.P.C. =   

We are of the  opinion  that  the  conviction  of  the  accused  under

section 498A calls for no interference as there  is  concurrent  finding  by

both the courts below based on evidence that the  accused  husband  and  his

relatives subjected Babita Devi to cruelty as explained under  section  498A

IPC.[4]

 

13.   The only question is  –  whether  the  prosecution  has  succeeded  in

establishing the commission of offence under  section  304B.    =

 

 No doubt the prosecution has adduced sufficient evidence to  establish

all other facts necessary to  prove  the  offence  under  section  304B  IPC

except the cause of death.  As seen from the trial court judgment there  are

no injuries on the body  of  the  deceased.  Even  according  to  the  First

Information Report the death was caused due to poisoning which the  deceased

was compelled to consume.   In such circumstances,  the  non-examination  of

the doctor who  conducted  the  post-mortem  coupled  with  the  failure  to

produce the Forensic Laboratory Report regarding the examination of  viscera

of the deceased leaves  a  gaping  hole  in  the  case  of  the  prosecution

regarding the nature of the death of Babita Devi. 

  In the circumstances,  we  are  of  the  opinion  that  the  surviving

appellant must be acquitted of the offence under Section 304B.    Appeal  is

allowed to that extent.

 

17.   Before parting with the  appeal,  we  wish  to  place  on  record  our

anguish regarding the inadequacy of investigation, the failure to  discharge

the responsibility on the part of the public prosecutor and  the  Magistrate

who took cognizance of the offence under  Section  304B.  

The  Investigating

Officer who submitted the charge sheet ought not to  have  done  it  without

securing the viscera report from the forensic lab and placing it before  the

Court.   

Having regard to the nature of  the  crime,  it  is  a  very  vital

document more particularly in the absence of any direct  evidence  regarding

the consumption of poison by the deceased Babita Devi.  

Equally  the  public

prosecutor failed in his responsibility to guide the  investigating  officer

in that regard.   

Coming to the magistrate who committed the matter  to  the

Sessions Court, he failed to apply his mind and mechanically  committed  the

matter for trial.   

Public prosecutors and judicial officers owe a greater  responsibility  to  ensure

compliance with law in a criminal case.   

Any lapse on their  part  such  as

the one which occurred in the  instant  case  is  bound  to  jeopardise  the

prosecution  case  resulting  in  avoidable  acquittals.   

Inefficiency  and

callousness on their part is bound to shake the faith of the society in  the

system of administration of criminal justice in this country which,  in  our

opinion, has reached considerably lower level than desirable.             

REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1613 OF 2008
Chhotan Sao & Another …Appellants
Versus
State of Bihar …Respondent

 
J U D G M E N T
Chelameswar, J.

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

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

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

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

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

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

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

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

 

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

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

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

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

13. The only question is – whether the prosecution has succeeded in
establishing the commission of offence under section 304B. Section 304B
reads as follows:
“304B. Dowry death.— (1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by
her husband or any relative of her husband for, or in connection with,
any demand for dowry, such death shall be called “dowry death”, and
such husband or relative shall be deemed to have caused her death.
Explanation.—For the purpose of this sub-section, “dowry” shall
have the same meaning as in section 2 of the Dowry Prohibition Act,
1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years but
which may extend to imprisonment for life.
It can be seen from the section that in order to constitute an offence
under section 304B, the following factors must be established:
1. That there is a death of a woman within seven years of her
marriage;
2. That the death is a result of any burn or bodily injury or
occurs otherwise than under normal circumstances; or

3. That the woman was subjected to cruelty or harassment by her
husband or his relative is by way of any demand for or in
connection with dowry.
14. No doubt the prosecution has adduced sufficient evidence to establish
all other facts necessary to prove the offence under section 304B IPC
except the cause of death. As seen from the trial court judgment there are
no injuries on the body of the deceased. Even according to the First
Information Report the death was caused due to poisoning which the deceased
was compelled to consume. In such circumstances, the non-examination of
the doctor who conducted the post-mortem coupled with the failure to
produce the Forensic Laboratory Report regarding the examination of viscera
of the deceased leaves a gaping hole in the case of the prosecution
regarding the nature of the death of Babita Devi. Learned counsel for the
State placed reliance on the decision of this Court in Bhupendra v. State
of Madhya Pradesh, 2013 (3) SCALE 552, to which one of us, Ranjana Prakash
Desai, J., was a party. In the said case, no doubt this Court held that
the production of chemical examination report is not mandatory. The Court
held as follows:
“26. These decisions clearly bring out that a chemical examination of
the viscera is not mandatory in every case of a dowry death; even when
a viscera report is sought for, its absence is not necessarily fatal
to the case of the prosecution when an unnatural death punishable
under Section304-B of the IPC or under Section 306 of the IPC takes
place; in a case of an unnatural death inviting Section 304-B of the
IPC (read with the presumption under Section 113-B of the Evidence
Act, 1872) or Section 306 of the IPC (read with the presumption under
Section 113-A of the Evidence Act, 1872) as long as there is evidence
of poisoning, identification of the poison may not be absolutely
necessary.”
On the facts of that case, this Court reached to the conclusion that there
was sufficient evidence on record to come to the conclusion that the death
was due to poisoning.

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

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

17. Before parting with the appeal, we wish to place on record our
anguish regarding the inadequacy of investigation, the failure to discharge
the responsibility on the part of the public prosecutor and the Magistrate
who took cognizance of the offence under Section 304B. The Investigating
Officer who submitted the charge sheet ought not to have done it without
securing the viscera report from the forensic lab and placing it before the
Court. Having regard to the nature of the crime, it is a very vital
document more particularly in the absence of any direct evidence regarding
the consumption of poison by the deceased Babita Devi. Equally the public
prosecutor failed in his responsibility to guide the investigating officer
in that regard. Coming to the magistrate who committed the matter to the
Sessions Court, he failed to apply his mind and mechanically committed the
matter for trial. Public
prosecutors and judicial officers owe a greater responsibility to ensure
compliance with law in a criminal case. Any lapse on their part such as
the one which occurred in the instant case is bound to jeopardise the
prosecution case resulting in avoidable acquittals. Inefficiency and
callousness on their part is bound to shake the faith of the society in the
system of administration of criminal justice in this country which, in our
opinion, has reached considerably lower level than desirable.
..………………………………….J.
(RANJANA PRAKASH DESAI)
…………………………………….J.
(J. CHELAMESWAR )
New Delhi;
December 17, 2013.

 

 

 

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

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

[4] 498A. x x x
Explanation.— For the purpose of this section, “cruelty” means—
(a) any willful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of
the woman; or
(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand.

 

 

 

 

———————–
11

 

 

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