BHUPENDRAversusSTATE OF MADHYA PRADESH

                   [2013] 12 S.C.R. 269


                       BHUPENDRA                                   A
                              v.
             STATE OF MADHYA PRADESH
           (Criminal Appeal No. 1774 of 2008)

                   NOVEMBER 11, 2013
                                                                   B
           [RANJANA PRAKASH DESAI AND
               MADAN B. LOKUR, JJ.]

    PENAL CODE 1860:
                                                                   c
    ss.498, 304-B and 306 - Demand for dowry by bride's
husband and his parents - Death of bride by consuming
poisonous substance - Conviction of husband by courts below
- Upheld.

     ss.304-B and s.306 - Dowry death - Chemical D
examination of viscera - Held: 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 u/s 304-B
or u/s 306 takes place -- In a case of unnatural death inviting E
s.304-B /PC (read with the presumption uls 113-8 of Evidence
Act) or s.306 /PC (read with the presumption u/s 113-A of
Evidence Act) as long as there is evidence of poisoning,
identification of the poison may not be absolutely necessary.
                                                                   F
     ss.304-B and 306 - Dowry death and suicide - Held:
ss.306 and 304-B not mutually exclusive -- If a conviction for
causing suicide is based on s.304-B, it will necessarily attract
s. 306 -- However, the converse is not true.

     MEDICAL JURISPRUDENCE:                                        G

     Chemical analysis of viscera - Object of, and
circumstances under which it is done - Explained.

                              269                                  H
    270      SUPREME COURT REPORTS           [2013) 12 S.C.R.


A     The appellant was married on 7.6.1993 . On 20.8.1996,
  his wife committed suicide. The prosecution case was
  that the appellant and his family membt!rs demanded
  dowry at the time of marriage and thereafter, which was
  given to them. On 20.8.1996, they demanded Rs.10,000/-
B and as bride's father was unable to fulfill the demand, she
  consumed wheat tablets and died in the hospital on the
  same date at 11.30 p.m. A charge-sheet was filed against
  the appellant and his parents for offences punishable u/
  ss 498-A, 304-8 and 306, IPC. The trial court convicted the
c appellant and his father of the offences charged and
  acquitted his mother. The High Court upheld the
  conviction of the appellant, and acquitted his father on
  benefit of doubt.

       In the instant appeal, it was contended for the
D appellant that since there was no chemical examination
  report of the viscera, it could not be said that the
  deceased died because of consuming poisonous wheat
  tablets; and that a conviction could not be sustained both
  u/s 304-B IPC as well as u/s 306 of the IPC. It was urged
E that both these sections were mutually exclusive and a
  conviction can be founded on either of these sections but
  not both. However, these points were not raised before
  the courts below.

F         Dismissing the appeal, the Court

       HELD: 1.1 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
G 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 dis;ease or injury to
H
   BHUPENDRA v. STATE OF MADHYA PRADESH                  271


account for it, and (4) In decomposed bodies. [para 22]          A
[278-C-E]

    Taiyab Khan and Others v. State of Bihar (Now
Jharkhand), (2005) 13 SCC 455; Ananda Mohan Sen and
                                                     =
Another v. State of West Bengal, 2007 (6) SCR 1088 (2007)
                                                                 8
10 SCC 774; State of Karnataka v. K. Yarappa Reddy, 1999
(3) Suppl. SCR 359   =(1999) 8 sec 715 - relied on.
       1.2 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   C
  fatal to the case of the prosecution when an unnatural
· death punishable u/s 304-B or u/s 306, IPC takes place;
  in a case of an unnatural death inviting s.304-B, IPC (read
  with the presumption u/s 113-B of the Evidence Act) or
  s.306, IPC (read with the presumption u/s 113-A of the         D
  Evidence Act) as long as there is evidence of poisoning,
  identification of the poison may not be absolutely
   necessary. [para 26] [279-G-H; 280-A-B]

      1.3 Besides, on facts from the evidence adduced in E
 the instant case, it has been established that the cause
 of death of the deceased was clearly a result of
 consumption of poison. The post mortem doctor had
 stated in his testimony that the death of the deceased was
 caused due to suspected poisoning. This particular
 statement was not challenged. Similarly, the doctor who F
 examined the deceased had mentioned in his intimation
 to the Police Station that the patient had been brought
 to the hospital because she had consumed a wheat
 tablet. Even DW-1, in his statement before the court,
 stated that the brother-in-law of the appellant told him G
 that the deceased had consumed some poisonous pills
  in the house of the appellant and was admitted in the
  hospital. All this evidence clearly suggests that there was
  no doubt that the deceased had died an unnatural death
  and that her death was due to consumption of some H
    272      SUPREME COURT REPORTS             [2013] 12 S.C.R.


A   poisonous substance. [para 27-30] [280-B-F]

          Mutual exclusivity of ss.304-B and 306 IPC

       2. Section 306 IPC is much broader in its application
  and takes within its fold one aspect of s.304-8. These two
B sections are not mutually exclusive. If a conviction for
  causing a suicide is based on s.304-8, it will necessarily
  attract s.306. However, the converse is not true. [para 35]
  [282-8-C]

C       Satvir Singh and Others v. State of Punjab and Another,
    2001 (3) Suppl. SCR 353    =(2001) 8 sec 633; Shanti and
    Another v. State of Haryana, 1990 (2) Suppl. SCR 675        =
    (1991) 1 SCC 371 and Kans Raj v. State of Punjab and
                               =
    Others, 2000 (3) SCR 662 (2000) 5 SCC 207 - relied on.
D                        Case Law Reference:
     (2005) 13 sec 455            relied on           para 23
     2007 (6) SCR 1088            relied on           para 24

E    1999 (3) Suppl. SCR 359 relied on                para 25
     2001 (3) Suppl. SCR 353 relied on                para 32

     1990 (2) Suppl. SCR 675 relied on                para 33

     2000 (3) SCR 662             relied on           para 33
F
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1774 of 2008.

      From the Judgment and Order dated 26.10.2007 of the
G High Court of Madhya Pradesh, Jabalpur, Bench at Gwalior in
  Criminal Appeal No. 344 of 2001.

        J.~. Gupta, Rajesh, Yogesh Tiwari, Dharam Singh for the
    Appellant.

H         C.D. Singh, Sakshi Kakkar for the Respondent.
   BHUPENDRA v. STATE OF MADHYA PRADESH                    273


    The Judgment of the Court was delivered by                     A

     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-          B
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.
                                                                   c
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        D
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/         E
- in cash on 2oth 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 · F
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 G
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   H
    274        SUPREME COURT REPORTS                      [2013] 12 S.C.R.


A 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
B 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
C 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
D 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
E 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.
F
        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
G Bhika Ram but there was a further demand on 20th August,
 • 1995 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
    1.   Though the viscera of the deceased were sent for chemical examination,
         the examination report had not been received wlien the witness was
H        examined on 13th August, 1999.
  BHUPENDRA v. STATE OF MADHYA PRADESH                      275
           [MADAN B. LOKUR, J.]

immediately meet the demand for additional dowry, Geeta Bai         A
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.
                                                                    B
    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        C
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      D
 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         E
 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                                             F

     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           G
 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           H
    276     SUPREME COURT REPORTS                [2013] 12 S.C.R.


A 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
B 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
C 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
D 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
E Bhika Ram's extended family. The High Court also concluded
  that Geeta Bai was su~jected 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.

F      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
G 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
H insufficient and accordingly he was acquitted.
   BHUPENDRA v. STATE OF MADHYA PRADESH                       277
            [MADAN B. LOKUR, J.]

     19. Feeling aggrieved by the judgment and order dated            A
26th October, 2007 passed by the High Court, Bhupendra is
in appeal.

Discussion

     20. Learned counsel urged two contentions before us,             B
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.                             C

     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        D
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:                       E

     "304-8. 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          F
     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.                                           G
          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          H
    278        SUPREME COURT REPORTS                    [2013] 12 S.C.R.

A         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.-lf any person commits
B         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."

C 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
D 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 njury to account
  for it, and (4) In decomposed bodies. 2
E
        23. In Taiyab Khan and Others v. State of Bihar (Now
  Jharkhand), (2005) 13 sec 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.
F 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
G 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

    2.   Parikhs's Textbooks of Medical Jurisprudence and Toxicology: Fourth
H        edition, 1985 at page 90.
  BHUPENDRA v. STATE OF MADHYA PRADESH                       279
           [MADAN B. LOKUR, J.]
presumption under Section 113-B of the Evidence Act, 1872.           A

     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
                                                                     8
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              C
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.                                      D

     25. In State of Kamataka v. K. Yarappa Reddy, (1999) 8
sec   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          E
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        F
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      G
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,
                                                                     H
    280         SUPREME COURT REPORTS                          [2013) 12 S.C.R.


A 1872) or Section 306 of the IPC (read witr 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.

B       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 tile deceased was
  caused due to suspected poisoning. This particular statement
C 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
D
         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.

E      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
F 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
G
          32. The second contention is also without any substance.
    In Satvir Singh and Others v. State of Punjab and Another,

    3.   A wheat tablet is used by farmers for killin.!l i[l_sects in the wheat crop and
H        is said to be commonly found in a village house.
  BHUPENDRA v. STATE OF MADHYA PRADESH                     281
           [MADAN B. LOKUR, J.]

(2001) 8 SCC 633 this Court drew a distinction between              A
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             8
    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.      C
     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,. D
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 E
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 F
 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        G
 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       H
    282      SUPREME COURT REPORTS               [2013] 12 S.C.R.


A   circumstances, if not caused by burns or bodily injury. In Kans
    Raj the conviction of the husband of the dec;eased was upheld
    both for offences punishable under Section 304-B of the IPC
    and Section 306 of the IPC also.

8      35. We are, therefore, of the opinion that Section 306 of
  the !PC 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
C 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.

o 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
E   directed that he should be taken into custody to serve out the
    remainder of his sentence.

    R.P.                                       Appeal dismissed.