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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.;

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

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.

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