Conviction confirm 304B/306/498A of IPC

Page 1
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.
Crl.Appeal No.1774 of 2008 Page 1 of 17Page 2
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
Crl.Appeal No.1774 of 2008 Page 2 of 17Page 3
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
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.
Crl.Appeal No.1774 of 2008 Page 3 of 17Page 4
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
Crl.Appeal No.1774 of 2008 Page 4 of 17Page 5
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
Crl.Appeal No.1774 of 2008 Page 5 of 17Page 6
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
Crl.Appeal No.1774 of 2008 Page 6 of 17Page 7
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
Crl.Appeal No.1774 of 2008 Page 7 of 17Page 8
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
Crl.Appeal No.1774 of 2008 Page 8 of 17Page 9
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,
Crl.Appeal No.1774 of 2008 Page 9 of 17Page 10
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
2
Parikhs’s Textbook of Medical Jurisprudence and Toxicology; Fourth edition, 1985 at
page 90.
Crl.Appeal No.1774 of 2008 Page 10 of 17Page 11
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
Crl.Appeal No.1774 of 2008 Page 11 of 17Page 12
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
Crl.Appeal No.1774 of 2008 Page 12 of 17Page 13
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
Crl.Appeal No.1774 of 2008 Page 13 of 17Page 14
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
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.
Crl.Appeal No.1774 of 2008 Page 14 of 17Page 15
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
Crl.Appeal No.1774 of 2008 Page 15 of 17Page 16
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
Crl.Appeal No.1774 of 2008 Page 16 of 17Page 17
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;

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