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 17

Page 2 The facts

2.Geeta Bai married Bhupendra on 7

th

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 20

th

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 20

th

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 17

Page 3 received, a case was registered and investigations

commenced by the police.

4.Separately, Bhika Ram made a complaint on 21

st

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 13

th

August, 1999.

Crl.Appeal No.1774 of 2008 Page 3 of 17

Page 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 6

th

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 20

th

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 17

Page 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 17

Page 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 26

th

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 17

Page 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 20

th

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 17

Page 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 26

th

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 17

Page 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 17

Page 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 17

Page 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 17

Page 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 17

Page 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 20

th

August, 1996 at 10.30 p.m. to Police Station City

Crl.Appeal No.1774 of 2008 Page 13 of 17

Page 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 17

Page 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 17

Page 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 17

Page 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;

November 11, 2013

Crl.Appeal No.1774 of 2008 Page 17 of 17