JOSHINDER YADAVversusSTATE OF BIHAR

                    [2014] 1 S.C.R. 567


                   JOSHINDER YADAV                            A
                             v.
                     STATE OF BIHAR
            (Criminal Appeal No. 259 of 2009)

                    JANUARY 20, 2014
                                                               B
           [RANJANA PRAKASH DESAI AND
               J. CHELAMESWAR, JJ.]

      Penal Code, 1860: s.302 rlw s.149, s.498A, s.201 -
Dowry death - A/legation that victim-deceased was harassed C
by accused-in-laws for dowry and one day they poisoned her
and threw her dead body in river- Conviction by courts below
- Appeal by accused-brother-in-law on the ground that he had
separated from his brothers and was not party to ill treatment
meted out to the deceased and to the murder - Held: The D
evidence of PW-9 and 10, the father and the brother of the
deceased, to effect that the deceased was subjected to cruelty
and harassment did not suffer any dent and, therefore was
reliable - Other attendant circumstances such as strong
motive, the fact that on the fateful day, accused no. 6 went to E
the house of PW-9 to inform that deceased was missing, but
did not lodge report of missing; that when PW-9 and PW-10
went along with accused no. 6 to the house of the accused,
accused no. 6 suddenly deserted them and the fact that all the
accused absconded from their house with their belongings led F
to an irresistible conclusion that the accused were responsible
for the death of the deceased - False explanation by accused
that the deceased had gone for bath and slipped and got
drowned further strengthened the prosecution case - The
prosecution having established that the accused treated the G
deceased with cruelty/ harassment for dowry, the accused
ought to have disclosed the facts which were in their personal
and special knowledge to disprove the prosecution case -
 They failed to discharge the burden which had shifted to them
                            567                                H
    568     SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A uls.106 of the Evidence Act, therefore, adverse inference has
    to be drawn against the accused - Conviction order not
    interfered with - Evidence Act, 1872 - s. 106.

         Administration of Criminal Justice: Scientific test -
B   Investigation - In case of poisoning - Held: Where poisoning
    is suspected, immediately after the post-mortem, the
    prosecuting agencies should ensure that the viscera is sent
    to the FSL for examination and the FSL should ensure that
    the viscera is examined immediately and report is sent to the
C   investigating agencies/courts post haste - If the viscera report
    is not received, the concerned court must ask for explanation
    and must summon the concerned officer of the FSL to give
    an explanation as to why the viscera report is not forwarded
    to the investigating agency/court - These scientific tests are
    of vital importance to a criminal case, particularly when the
0
    witnesses are increasingly showing a tendency to turn hostile
    - In the instant case, all those witnesses who spoke about
    poisoning of the victim turned hostile - Had the viscera report
    been on record and the case of poisoning was true, the
    prosecution would have been on still firmer grounds -
E   Directions passed to prosecuting agency/court.

       The prosecution case was that all the accused use
  to treat the deceased with cruelty and harassed her for
  not bringing more dowry. The appellant was brother of
F the husband of the deceased. On the fateful day, accused
  no.6 came to the house of PW9 who was the father of the
  deceased and informed him that the deceased has run
  away from the house. PW-9 then proceeded to the house
  of the accused along with his brother-in-law and son, PW-
G 10. Accused no.6 accompanied them for some distance
  and then left for some other place. They reached the
  house of the accused and found the house empty. All the
  accused had left the house with their belongings. On
  enquiry, the neighbours told him that because the
H deceased had refused to transfer her land in the name
      JOSHINDER YADAV v. STATE OF BIHAR              569


of the accused, they administered poison to her and         A
murdered her. PW-9 met Sub-Inspector by the river side
who recorded his statement. A search was conducted
and the dead body of the deceased was recovered from
the river bed.
                                                            B
    The trial court convicted the accused under Section
302, IPC rlw Section 149 IPC, Sections 498A and 201, IPC.
The High Court upheld conviction. The instant appeal
was filed challenging the order of the High Court.

    Dismissing the appeal, the Court                        c
     HELD: 1.1. The father of the deceased (PW-9) had
given a graphic account of the harassment and ill-
treatment meted out to the deceased by the accused. The
accused were not happy with a bullock, a cow and a 0
buffalo which were given to them as dowry. They had
asked for a watch and a cycle. That was also given. They
asked for more. PW-9 had transferred 2 kathas of land to
the deceased. The accused wanted to sell it or wanted it
to be transferred in their names and since the deceased
                                                            E
did not agree to that they continued to torture her. The
child of the deceased was sent to PW-9 so that he would
be brought up by him, but the deceased was kept in the
matrimonial house to work. PW-10, the brother of the
deceased had corroborated his father. All the other
witnesses, that is PW-2 to PW-7 had turned hostile. In the F
facts of this case, it was indeed a pointer to the guilt of
the accused. They won over the prosecution witnesses.
PW-9 in his cross-examination had stated "whenever my
daughter visited my house, she used to complain that she
is being tortured and assaulted there. Who else can be a G
witness to this fact?" The evidence of PWs-9 and 10
showed that the deceased was subjected to cruelty and
harassment for dowry by the accused. The evidence of
these witnesses was straightforward and honest and
there was no exaggeration. In the cross-examination, . H
    570    SUPREME COURT REPORTS              [2014] 1 S.C.R.


A their evidence did not suffer any dent and, therefore,
  implicit reliance is placed on them. [Para 8] [579-G; 580-
  A-E]

         1.2. Though, PW-10 stated that Accused 1-husband
    had separated from his brothers after marriage, he has
8
    clarified that all the brothers have their houses in a
    common courtyard. PW-9 specifically named the
    appellant as a person who demanded cattle. He has
    stated that the accused were not satisfied with the cattle
    given by him. They demanded more dowry. They used
C   to harass and assault the deceased. He stated that when
    he went to the house of the accused after receiving
    information that she had left their house, he found the
    house to be empty. All the accused had absconded
    alongwith their belongings with them. This was
D   confirmed by PW-13 the Investigating Officer who stated
    that when he went to the house of the accused after
    receiving information about disappearance of the
    deceased he found the house completely empty. Even
    the household articles and food grains were missing. The
E   accused were not present. No member of their family was
    present. The deceased was also not present. These
    circumstances would reject the claim that the appellant
    did not join the other accused in treating the deceased
    with cruelty. The conviction and sentence of the appellant
F   under Section 498A of the IPC is therefore perfectly
    justified. [Para 9] [580-F-H; 581-A-C]

       Balaram Prasad Agrawal v. State of Bihar & Ors (1997)
  9 SCC 338 = 1996(9) Suppl SCR 752; Shambhu Nath
G Mehra v. State of Ajmer AIR 1956 SC 404 = 1956 SCR 199
  - relied on.

      2. PW-9 and PW-10 had stated that dead body of the
  deceased was recovered from the river bed. The
  Investigating Officer PW-13 had stated that after recording
H the FIR of PW-9, he inspected the house of Accused 1.
      JOSHINDER YADAV v. STATE OF BIHAR                571

The dead body of the deceased was found lying 600             A
yards away from the house of the accused. It was lying
in one foot deep water, close to the southern bank of the
river, near a ferry. The ferry was situated adjacent to the
maize field of Hazari Mandal. He took it out and prepared
inquest report He further stated that one 'V' stated that     B
on 29/1/1989, the accused had a meeting. On 30/1/1989,
they left for some other place and in the evening it was
revealed that they had killed the deceased by poisoning
her and had thrown her dead body at the ferry. The
Investigating Officer had further stated that the other       c
prosecution witnesses also confirmed this fact. However,
all these persons turned hostile in the court. [Para 10)
[581-D-F]

     3.1. PW-12, the doctor who did the post-mortem on
the dead body of the deceased had opined that the cause D
of death was asphaxia due to drowning. He had stated
that in cases of drowning, if immediate death is caused,
then, there will be negligible quantum of water in the
stomach. He further stated that death may be caused
even in one foot deep water if the victim is kept in water E
with her neck pressed in sleeping position. The report of
the viscera examination is, however, not on record. PW·
12 has admitted that he did not know the result of viscera
examination. He added that there were no injuries on the
person of the deceased. The evidence of the father and F
the brother of the deceased and other attendant
circumstances such as strong motive; the fact that the
accused did not lodge any complaint about missing of
the deceased; that Accused 6 went to the house of PW-
9 to enquire about the deceased and then suddenly G
deserted PWs 9 and 10 when they were going to the
house of the accused, that all the accused absconded
from their house with their belongings and that the house
was completely empty led to an irresistible conclusion
that the accused were responsible for the death of the H
    572   SUPREME COURT REPORTS              [2014] 1 S.C.R.


A deceased. The prosecution having established that the
  accused treated the deceased with cruelty and that they
  subjected her to harassment for dowry, the accused
  ought to have disclosed the facts which were in their
  personal and special knowledge to disprove the
s prosecution case that they murdered the deceased.
  Section 106 of the Evidence Act covers such a situation.
  The burden which had shifted to the accused was not
  discharged by them. [paras 11, 12, 14] (581-G; 582-F-H;
  583-A-C and E-F]
c      3.2. In the instant case, the deceased was admittedly
  in the custody of the accused. She disappeared from
  their house. As to how her dead body was found in the
  river was within their special and personal knowledge.
  They could have revealed the facts to disprove the
D prosecution case that they had killed the deceased. They
  failed to discharge the burden which had shifted to them
  under Section 106 of the Evidence Act. The prosecution
  is not expected to give the exact manner in which the
  deceased was killed. Adverse inference has to be drawn
E against the accused as they failed to explain how the
  deceased was found dead in the river in one foot deep
  water. [Para 16] [585-C-E]
       3.3. Pertinently, the post-mortem notes did not
F indicate presence of huge amount of water in the dead
  body. According to PW-12, in a case of drowning, if
  immediate death is caused, then, there will be negligible
  quantum of water in the stomach. The evidence of PW-
  12 showed that the death of the deceased occurred
  immediately after she was drowned in the water because
G there was not much water in her stomach. The deceased
  was pregnant. Her uterus contained full term dead male
  baby. She could not have, therefore, offered any
  resistance. Therefore, there were no injuries on the dead
  body. The whole operation appeared to have been done
H swiftly and skillfully. But in any case, it is not for the
      JOSHINDER YADAV v. STATE OF BIHAR               573


prosecution to explain in what manner the deceased was A
done to death by the accused because the deceased was
staying in the house of the accused prior to the
occurrence and she disappeared from that house. All the
circumstances leading to her unnatural death were within
the special and personal knowledge of the accused B
which they ch6se not to disclose. Instead, they gave a
totally false explanation that when the deceased had
gone for bath, she slipped, got drowned in the water and
died. This story is palpably false. The false explanation
offered by the accused further strengthened the c
prosecution case as it becomes an additional link in the
chain of circumstances. It is true that in *Vithal Tukaram
More case, this Court has held that in a case where other
members of the husband's family are charged with
offences under Sections 3048, 302 and 498A of the IPC 0
and the case rests on circumstantial evidence, the
circumstantial evidence must be of required standard if
conviction has to be based on it. The evidence adduced
by the prosecution in this case is of required standard.
No other inference, except that of the guilt of the accused,
                                                             E
is possible on the basis of the evidence on record. The
established facts are consistent only with the hypothesis
of their guilt and inconsistent with their innocence. [Paras
17, 18) [585-E-H; 586-A-E]

    *Vitha/ Tukaram More & Ors. v. State of Maharashtra      F
                 =
(2002) 7 SCC 20 2002 AIR 2715 - relied on.
     4.1. PW-9, the father of the deceased stated that the
neighbours told him that the deceased was poisoned by
the accused. PW-10, brother of the deceased has also         G
stated so. PW-13, the Investigating Officer went a step
further~ He stated that five of prosecution witnesses told
him that the accused had killed the deceased by
poisoning her; that they had concealed the dead body
in the river and had run away. Unfortunately, these
                                                             H
   574     SUPREME COURT REPORTS              [2014] 1 S.C.R.

A witnesses turned hostile. But the fact remains that the
  prosecution had come out with a case of poisoning. It
  was, therefore, necessary for the prosecution to get the
  viscera examined from Forensic Science Laboratory ("the
  FSL"). The trial court has observed that the Investigating
8 Officer had filed a petition on 19/4/1988 requesting the
  doctor to send the viscera for chemical analysis to the
  FSL, Patna. Post-mortem notes mention that viscera was
  protected for future needs. This was also stated by PW-
  12. PW-12 had, however, added that he did not know the
C result of viscera examination. The evidence of the
  Investigating Officer, PW-13 showed that the doctor did
  not send the viscera to the FSL. When he was questioned
  about the viscera report, the Investigating Officer stated
  in the cross-examination that a letter had been sent to the
  doctor about viscera examination. He further stated that
D he did not make any complaint against the doctor to the
  senior officers, but, informed his officer through diary.
  The doctor ought to have sent the viscera to the FSL
  when he was requested to do so. On his failure to do so,
  the Investigating Officer should have informed his
E superior officer and taken steps to ensure that viscera is
  sent to the FSL rather than just making a diary entry.
  Such a supine indifference has a disastrous effect on the
  criminal justice administration system. (Paras 19, 20) (586-
  f-H; 587-A-D]
F
       4.2. This was the third case which this Court noticed
  in a short span of two months where, in a case of
  suspected poisoning, viscera report was not brought on
  record and expressed extreme displeasure about the way
G in which such serious cases are dealt with. Whether
  these lapses are the result of inadvertence or they are a
  calculated move to frustrate the prosecution is not
  :mown. Though the FSL report is not mandatory in all
  cases, in cases where poisoning is suspected, it would
H ::e advisable and in the interest of justice to ensure that
        JOSHINDER YADAV v. STATE OF BIHAR                   575


  the viscera is sent to the FSL and the FSL report is             A
  obtained. This is because not in al,I cases there is
  adequate strong other evidence on record to prove that
  the deceased was administered poison by the accused.
  In a criminal trial, the Investigating Officer, the Prosecutor
  and the Court play a very important role. The court's            B
  prime duty is to find out the truth. The Investigating
  Officer, the Prosecutor and the Courts must work in sync
  and ensure that the guilty are punished by bringing on
  record adequate credible legal evidence. If the
  Investigating Officer stumbles, the Prosecutor must pull         c
  him up and take necessary steps to rectify the lacunae.
  The Criminal Court must be alert, it must oversee their
  actions and, in case, it suspects foul play, it must use its
  vast powers and frustrate any attempt to set at naught a
  genuine prosecution. Perhaps, the instant case would
                                                                   0
  have been further strengthened had the viscera been
  sent to the FSL and the FSL report was on record. These
  scientific tests are of vital importance to a criminal case,
  particularly when the witnesses are increasingly
  showing a tendency to turn hostile. In the instant case          E
  all those witnesses who spoke about poisoning turned
  hostile. Had the viscera report been on record and the
  case of poisoning was true, the prosecution would have
  been on still firmer grounds. Therefore, where poisoning
  is suspected, the prosecuting agencies should ensure
  that the viscera is, in fact, sent to the FSL for examination    F
  and the FSL should ensure that the .viscera is examined
! immediately and report is sent to the investigating
  agencies/courts post haste. If the viscera report is not
  received, the concerned court must ask for explanation
  and must summon the concerned officer of the FSL to              G
  give an explanation as to why the viscera report is not
  forwarded to the investigating agency/court. The criminal
  court must ensure that it is brought on record. [paras 23,
  24] [589-0-H; 590-A-E]
                                                                   H
    576      SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A      Bhupendra v. State of Madhya Pradesh 2013 (13)
    SCALE 52; Chhotan Sao & Anr. v. State of Bihar 2013 (15)
    SCALE 338 - relied on.

                          Case Law Reference:

B         1996(9) Suppl SCR 752       relied on       Paras 7, 15

          1956 SCR 199                relied on       Paras 14, 15

          2013 (13) SCALE 52          relied on        Paras 21, 22

          2013 (15) SCALE 338         relied on        Para 22
c
          2002 AIR 2715               relied on        Paras 6, 18

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 259 of 2009.

        From the Judgment and Order dated 24.11.1999 of the
    High Court of Judicature at Patna in Criminal Appeal No. 154
    of 1992.

          Gaurav Agrawal, Shankar Narayanan for the Appellant.
E
          Gopal Singh, Prerna Singh for the Respondent.

          The Judgment of the Court was delivered by

       (SMT.) RANJANA PRAKASH DESAI, J. 1. The appellant
F who was arraigned as Accused 2 was tried along with five other
  accused for offences punishable under Sections 498A and 302
  read with Sections 149 and 201 of the IPC by the 1st Additional
  Sessions Judge, Madhepura. The allegations against the
  accused, inter alia, were that they subjected one Bindula Devi
G to cruelty and harassment with a view to coercing her and .her
  other relatives to meet their unlawful demand of property and
  that on her failure to fulfill their unlawful demand, in furtherance
  of their common object, they committed her murder and that they
  caused disappearance of her dead body with an intention to
H screen themselves from legal punishment.
      JOSHINDER YADAV v. STATE OF BIHAR                  577
         [RANJANA PRAKASH DESAI, J.]
     2. Bindula Devi was married to Accused 1 Jaipraksh         A
Yadav. The appellant and Accused 3 Shakun Deva Yadav are
the brothers of Accused 1 Jaiprakash Yadav. Accused 4 Dani
Dutta Yadav is their father and Accused 5 Satya Bhama Devi
is their mother. Accused 6 Fudai Yadav is brother-in-law of
Accused 1 Jaiprakash Yadav.                                     B

      3. The prosecution story is reflected in the evidence of
Complainant PW-9 Debu Yadav, the father of Bindula Devi. He
stated that his daughter Bindula Devi was married to Accused
1 Jaiprakash Yadav. He further stated that in the marriage one
buffalo, one cow and one bullock were given as dowry to the C
accused as per their demand. However, the accused were not
satisfied with that. They demanded a wrist watch and a cycle
which were given to them. Even then they continued to harass
and assault Bindula Devi. She gave birth to a male child. The
accused kept Bindula Devi in their house and sent the chilg to D
his house so that he would rear the child. PW-9 Debu Yadav
further stated that when in Ashwin month he brought Bindula
Devi to his house she told him about the ill-treatment meted out
to her at her matrimonial home. She did not want to go back.
He tried to pacify her. He transferred two kathas of land in her E
name. She then wentto her matrimonial home. The accused
insisted that she should sell the land. As she did not agree to
selling of the land, they subjected her to further torture. PW-9
Debu Yadav further stated that on a Monday at about 4.00 p.m.
Accused 6 Fudai Yadav came to his house and enquired F
whether Bindula Devi had come there and told him tllat she had
run away from the house. He told Accused 6 Fudai Yadav that
Bindula Devi would not run away from her house. He then
proceeded to the house of the accused situated in village
Kolhua along with his son Sachindra Yadav and his brother-in- G
law. Accused 6 Fudai Yadav accompanied them for some
distance and then left for some other place. They reached
Kolhua village and found the house of the accused to be empty.
All the accused had left the house with their belongings. Bindula
Devi was also not present. On enquiry the neighbours told him H
    578    SUPREME COURT REPORTS                 [2014) 1 S.C.R.


A that because Bindula Devi had refused to transfer the land in
  the accused's name they had administered poison to her and
  murdered her. He met Sub-Inspector of Police by the river side
  who recorded his statement. A search was conducted. The
  dead body of Bindula Devi was recovered from the river bed.
B Formal FIR of PW-9 Debu Yadav was registered on 31/1/1989
  and the investigation was started. The appellant, Accused 1
  Jaiprakash Yadav and Accused 3 Shakun Devo Yadav
  surrendered before the court on 6/3/1989. Accused 4 Dani
  Dutta Yadav surrendered before the court on 26/8/1989.
c     4. At the trial, though, the prosecution examined 13
  witnesses, it's case rested on the evidence of PW-9 Debu
  Yadav, father of the deceased and PW-10 Sachindra Yadav,
  brother of the deceased. PWs-2 to 7 turned hostile. The
  accused pleaded not guilty to the charge. They contended that
D when Bindula Devi went to take bath, she slipped in the water,
  got drowned and died.

       5. The trial court convicted the accused under Section 302
  read with Section 149 of the IPC and sentenced each of them
E to suffer life imprisonment. They were also convicted under
  Section 498A of the IPC and sentenced to undergo rigorous
  imprisonment for three years each. They were further convicted
  and sentenced to undergo rigorous imprisonment for seven
  years each under Section 201 of the IPC. All the substantive
F sentences were ordered to run concurrently. The High Court
  dismissed their appeal. Hence, this appeal, by special leave,
  by Accused 2.

      6. Mr. Gaurav Agrawal, learned counsel for the appellant
  submitted that the instant case rests on circumstantial evidence.
G Counsel pointed out that the appellant is the brother of Accused
  1 Jaiprakash Yadav, the husband of Bindula Devi. PW-10
  Sachindra Yadav stated in his evidence that Accused 1 had
  separated from his other brothers. There is no evidence on
  record to establish that the appellant was party to any dowry
H demand or to any ill-treatment meted out to Bindula Devi.
        JOSHINDER YADAV v. STATE OF BIHAR                 579
           [RANJANA PRAKASH DESAI, J.]
Counsel submitted that in cases where apart from husband A
0th.er members of his family are charged with offences under
Sections 3048, 302 and 498A of the IPC and the case rests
on circumstantial evidence, unless the circumstantial evidence
is of required standard conviction cannot be based on it. In this
connection he relied on Vithaf Tukaram More & Ors. v. State B
of Maharashtra. 1 Counsel submitted that allegations about
motive are vague. Medical evidence is inconclusive. The
prosecution has, therefore, failed to establish its case. In any
case, since the appellant was residing separately, in the
absence of any clinching evidence establishing his complicity    c
he cannot be convicted.

     7. Mr. Gopal Singh, learned counsel for the State of Bihar
on the other hand submitted that the evidence on record
establishes that all the accused were staying in houses situated
in the same courtyard. Counsel submitted that evidence of PW- D
9 Debu Yadav and PW-10 Sachindra Yadav establishes the
prosecution case. Pertinently, the accused did not lodge any
complaint to the police. The fact that they left the house with all
their belongings suggests their complicity. Counsel submitted
that Bindula Devi disappeared from the house of the accused. E
As to how she died in suspicious circumstances was within the
knowledge of the accused. The burden was shifted to the
accused which they have not discharged. Adverse inference
must be drawn against the accused. In this connection, counsel
relied on Bafaram Prasad Agrawal v. State of Bihar & Ors2. F
Counsel submitted that appeal be, therefore, dismissed.

     8. We have already referred to the evidence of father of
Bindula D~vi PW-9 Debu Yadav. He has given a graphic
account oi the harassment and ill-treatment meted out to the G
deceased by the accused. They were not happy with a bullock,
a cow an_(! a buffalo which were given as dowry. They asked
for a watch and a cycle. That was also given. They asked for
1.   (2002) 1 sec 20.
2.   (1997) 9 sec 338.                                           H
    580     SUPREME COURT REPORTS                  [2014] 1 S.C.R


A more. PW-9 Debu Yadav transferred 2 kathas of land to Bindula
  Devi. The accused wanted to sell it or wanted it to be
  transferred in their names and since Bindula Devi did not agree
  to that they continued to torture her. Her son was sent to her
  father so that he would be brought up by him, but she was kept
B in the matrimonial house obviously to work. PW-10 Sachindra
  Yadav the brother of Bindula Devi has corroborated his father.
  It is distressing to note that all the other witnesses, that is PW-
  2 to PW-7 turned hostile. In the facts of this case, it is indeed
  a pointer to the guilt of the accused. They won over the
c prosecution witnesses. We note with some anguish the
  following sentences uttered by PW-9 Debu Yadav in his cross-
  examination probably as an answer to the usual question about
  there being no independent witness to depose about cruelty.
   He stated "whenever my daughter visited my house, she used
D to complain that she is being tortured and assaulted there.
   Who else can be a witness to this facr?" Having perused the
   evidence of PWs-9 and 10 we have no manner of doubt that
   Bindula Devi was subjected to cruelty and harassment for
   dowry by the accused. Evidence of these witnesses is
   straightforward and honest. There is no exaggeration. In the
E cross-examination their evidence has not suffered any dent.
   Implicit reliance can be placed on them.

       9. It is submitted that the appellant had separated from
  Accused 1 Jaiprakash Yadav and, hence, he cannot be a party
F to the alleged acts of cruelty of the other accused. We find no
  substance in this submission. Though, PW-10 Sachindra Yadav
  stated that Accused 1 Jaiprakash Yadav had separated from
  his brothers after marriage, he has clarified that all the brothers
  have their houses in a common courtyard. PW-9 Debu Yadav
G has specifically named the appellant as a person who
  demanded cattle. He has stated that the accused were not
  satisfied with the cattle given by him. They demanded more
  dowry. They used to harass and assault Bindula Devi. He stated
  that when he went to the house of the accused after receiving
H information that she had left their house, he found the house to
       JOSHINDER YADAV v. STATE OF BIHAR                    581
          [RANJANA PRAKASH DESAI, J.]
be empty. All the accused had absconded. They had taken their       A
belongings with them. This is confirmed by PW-13 Surendra
Rai the Investigating Officer. He stated that when he went to
the house ol the accused after receiving information about
disappearance of Bindula Devi he found the house completely
empty. Even the household articles and food grains were             8
missing. The accused were not present. No member of their
family was ·present. Bindula Devi was also not present. These
circumstarices persuade us to reject the submission that the
appellant did not join the other accused in treating Bindula Devi
with cruelty. The conviction and sentence of the appellant under    C
Section 498A of the IPC is therefore perfectly justified.

     10. We now come to the death of Bindula Devi. PW-9
Debu Ya<lav and PW-10 Schindra Yadav stated that dead
body of.Bindula Devi was recovered from the river bed. The
lnvesti~ting Officer PW-13 Surendra Rai stated that after           D
recording the FIR of PW-9 Debu Yadav, he inspected the house
of Accused 1 Jaiprakash Yadav. The dead body of Bindula
Devi was found lying 600 yards away from the house of the
accused, It was lying in one foot deep water, close to the
southern bank of the river, near a ferry. The ferry was situated    E
adjacent to the maize field of Hazari Manda!. He took it out and
prepared inquest report. He further stated that one Vinod stated
that on 29/1/1989, the accused had a meeting. On 30/1/1989,
they left for some other place and in the evening it was revealed
that they had killed Bindula Devi by poisoning her and had          F
thrown her dead body at the ferry. The Investigating Officer
further stated that Vinod, Parmeshvari Yadav, Brij Bihari Yadav
also confirmed this fact. All these persons turned hostile in the
court.

    11. PW-12 Dr. Arun Kumar Manda! did the post-mortem             G
on the dead body of Bindula Devi. Following are his
observations:

      "1.   (1)   Epistaxis from both nostrils.
                                                                    H
    582        SUPREME COURT REPORTS               [2014] 1 S.C.R.


A         (2)    Blood mixed with froth from mouth.

          (3)    Both eye balls congested, cornea hazy.

          (4)    Face congested and cyanosed.

B         (5)    Skin of both hands and feet were corrugated.

          2.     On opening of skull all the blood vessels were
                 congested in the maninges and brain matter.

          3.     In the chest both the lungs were found congested,
C                frothy and spongy and on cutting blood stains froth
                 found in segments.

          4.     In the heart both chambers were found full.

          5.     In the stomach semi-digested food about 4 ounces
D                with blood mixed.

          6.     In the small intestine-gas and solid facees.

          7.     In the large intestine-gas and solid facees.
E         8.     In the case of kidneys both were found congested.

          9.     Liver an spleen were also found congested.

          10.    Uterus contained about full term dead male
F                baby."

       PW-12 Dr. Arun Kumar Mandal opined that the cause of
  death was asphaxia due to drowning. He stated that in cases
  of drowning, if immediate death is caused, then, there will be
  negligible quantum of water in the stomach. He further stated
G that death may be caused even in one foot deep water if the
  victim is kept in water with his neck pressed in sleeping
  position. It may be stated here that report of the viscera
  examination is not on record. Dr. Mandal has admitted that he
  did not know the result of viscera examination. He added that
H
        JOSHINDER YADAV v. STATE OF BIHAR                     583
           [RANJANA PRAKASH DESAI, J.]
there were no injuries on the person of the deceased.                 A

     12. In our opinion, the evidence of the father and the brother
of Bindula Devi and other attendant circumstances such as
strong motive; the fact that the accused did not lodge any
complaint about missing of Bindula Devi; that Accused 6 Fudai
Yadav went to the house of PW-9 Debu Yadav to enquire about
                                                                      8
Bindula Devi and then suddenly deserted PWs 9 and 10 when
they were going to the house of the accused, that all the
accused absconded from their house with their belongings and
that the house was completely empty, lead to an irresistible
conclusion that the accused were responsible for the death of         C
Bindula Devi.                                                -

     13. It is submitted that since there were no injuries on the
dead body of Bindula Devi, it would be wrong to conclude that
Bindula Devi was kept in water in a sleeping position with her        o
neck pressed as suggested by the doctor. The prosecution
story that the accused caused her death must therefore be
rejected. Medical evidence, it is argued, does not support the
prosecution case.

     14. In our opinion, the prosecution having established that      E
the accused treated the deceased with cruelty and that they
subjected her to harassment for dowry, the accused ought to
have disclosed the facts which were in their personal and
special knowledge to disprove the prosecution case that they
murdered Bindula Devi. Section 106 of the Evidence Act                F
covers such a situation. The burden which had shifted to the
accused was not discharged by them. In this connection, we
may usefully refer to the judgment of this Court in Shambhu
Nath Mehra v. State of Ajmer3 where this Court explained how
Section 101 and Section 106 of the Evidence Act operate.              G
Relevant portion of the said judgment reads thus:

             "(10) Section 106 is an exception to Section 101.

3.   AIR 1956 SC 404.                                                 H
    584       SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A         Section 101 lays down the general rule about the burden
          of proof

                'Whoever desires any Court to give judgment as to
          any legal right or liability dependent on the existence of
          facts which he asserts, must prove that those facts exist'.
B
                Illustration (a) says -

               'A desires a Court to give judgment that B shall be
          punished for a crime which A says B has committed.
c         A must prove· that B has committed the crime'.

                (11) This lays down the general rule that in a
          criminai case, the burden of proof is on the prosecution
          and Section 106 is certainly not intended to relieve it of
D         that duty. On the contrary, it is designed to meet certain
          exceptional cases in which it would be impossible, or at
          any rate disproportionately difficult, for the prosecution to
          establish facts which are 'especially' within the knowledge
          of the accused and which he could prove without difficulty
E         or inconvenience."

        15. In Bairam Prasad Agrawal v State of Bihar, 4 the
  prosecution had established the cruel conduct of the accused
  i.e. her husband and members of his family and the sufferings
  undergone by the deceased at their hands. The unbearable
F conduct of the accused ultimately resulted in her death by
  drowning in the well in the courtyard of the accused's house.
  This Court observed that what happened on the fateful night and
  what led to the deceased's falling in the well was wholly within
  the personal and special knowledge of the accused. But they
G kept mum on this aspect. This Court observed that it is true that
  the burden is on the prosecution to prove the case beyond
  reasonable doubt. But once the prosecution is found to have
  shown that the accused were guilty of persistent conduct of

H 4. (1997> s sec 338.
       JOSHINDER YADAV v. STATE OF BIHAR                      585
          [RANJANA PRAKASH DESAI, J.]
cruelty qua the deceased spread over years as was well                A
established from the unshaken testimony' of father of the
deceased, the facts which were in the personal knowledge of
the accused who were present in the house on that fateful night
could have been revealed by them to disprove the prosecution
case. This Court observed that the accused had not discharged         8
the burden which had shifted to them under Section 106 of the
Evidence Act. While coming to this conclusion, this Court relied
on Shambhu Nath Mehra.

     16. In the present case, the deceased was admittedly in
the custody of the accused. She disappeared from their house.         C
As to how her dead body was found in the river was within their
special and personal knowledge. They could have revealed the
facts to disprove the prosecution case that they had killed
 Bindula Devi. They failed to discharge the burden which had
shifted to them under Section 106 of the Evidence Act. The            D
prosecution is not expected to give the exact manner in which
the deceased was killed. Adverse inference needs to be drawn
against the accused as they failed to explain how the deceased
was found dead in the river in one foot deep water.
                                                                      E
     17. Pertinently, the post-mortem notes do not indicate
presence of huge amount of water in the dead body. According
to PW-12 Dr. Mandal, in a case of drowning, if immediate death
ls caused, then, there will be negligible quantum of water in the
stomach. From the evidence of PW-12 Dr. Manda!, it appears
                                                                      F
that the death of Bindula Devi occurred immediately after she
was drowned in the water because there was not much water
in her stomach. It is also pertinent to note that Bindula Devi was
pregnant. Her uterus contained full term dead male baby. She
could not have, therefore, offered any resistance. It appears that,
therefore, there were no injuries on the dead body. The whole         G
operation appears to have been done swiftly and skillfully. But
in any case, as stated hereinabove, it is not for the prosecution
to explain in what manner Bindula Devi was done to death by
 the accused because Bindula Devi was staying in the house
                                                                      H
    586    SUPREME COURT REPORTS                  [2014] 1 S.C.R.

A of the accused prior to the occurrence and she disappeared
  from that house. All the circumstances leading to her unnatural
  death were within the special and personal knowledge of the
  accused which they chose not to disclose. Instead, they gave
  a totally false explanation that when Bindula Devi had gone for
8 hath, she slipped, got drowned in the water and died. This story
  is palpably false. The false explanation offered by the accused
  further strengthens the prosecution case as it becomes an
  additional link in the chain of circumstances.

       18. It is true that in Vithal Tukaram More this Court has
C held that in a case where other members of the husband's
  family are charged with offences under Sections 3048, 302 and
  498A of the IPC and the case rests on circumstantial evidence,
  the circumstantial evidence must be of required standard if
  conviction has to be based on it. We are of the considered
D opinion that the evidence adduced by the prosecution in this
  case is of required standard. No other inference. except that
  of the guilt of the accused, is possible on the basis of the
  evidence on record. The established facts are consistent only
  with the hypothesis of their guilt and inconsistent with their
E innocence. The appeal, therefore, deserves to be dismissed.

        19. Before we part, we must refer to a very vital aspect of
  this case. PW-9 Debu Yadav, the father of Bindula Devi stated
  that the neighbours told him that Bindula Devi was poisoned
F by the accused. PW-10 Sachindra Yadav, brother of Bindula
  Devi has also stated so. PW-13 Surendra Rai, the Investigating
  Officer went a step further. He stated that Vinod Yadav, Shiv
  Pujan Ram, Vinod Kumar Mehta, Parmeshwar Yadav and Braj
  Bihari Yadav told him that the accused had killed Bindula Devi
  by poisoning her; that they had concealed the dead body in the
G river and had nm away. Unfortunately, these witnesses turned
  hostile. But the fact remains that the prosecution had come out
  with a case of poisoning. It was, therefore, necessary for the
  prosecution to get the viscera examined from Forensic Scien~
  Laboratory ("the FSL").
H
        JOSHINDER YADAV v. STATE OF BIHAR                    587
           "[RANJANA PRAKASH DESAI, J.]
     20. The trial court has observed that the Investigating         A
Officer had filed a petition on 19/4/1988 requesting the doctor
to send the viscera for chemical analysis to the FSL, Patna.
Post-mortem notes mention that viscera was protected for
future needs. This is also stated by PW-12 Dr. Manda!. Dr.
Manda! has, however, added that he did not know the result of        s
viscera examination. From the evidence of the Investigating
Officer, PW-13 Surendra Rai, it appears that the doctor did not
send the viscera to the FSL. When he was questioned about
the viscera report, the Investigating Officer stated in the cross-
examination that a letter had been sent to the doctor about          C
viscera examination. He further stated that he did not make any
complaint against the doctor to the senior officers, but, informed
his officer through diary. We are of the opinion that the doctor
ought to have sent the viscera to the FSL when he was
requested to do so. On his failure to do so, the Investigating       D
Officer should have informed his superior officer and taken
steps to ensure that viscera is sent to the FSL rather than just
 making a diary entry. Such a supine indifference has a
disastrous effect on the criminal justice administration system.

     21. We are aware that in some cases where there is other        E
clinching evidence on record to establish the case of poisoning,
this Court has proceeded to convict the accused even in the
absence of viscera report. In Bhupendra v. State of Madhya
Pradesh, 5 this Court was concerned with a case where the
viscera report was not on record, but, there was enough              F
evidence of poisoning. The accused was charged under
Sections 304-8 and 306 of the IPC. Drawing support from the
presumptions under Sections 1138 and 113A of the Evidence
Act, 1872 and, after referring to relevant judgments on the point,
this Court held that death of the deceased was caused by             G
poisoning. The relevant observation of this Court could be
quoted.

      "26. These decisions clearly bring out that a chemical
5.   2013 (13) SCALE 52.                                             H
    588       SUPREME COURT REPORTS                  [2014] 1 S.C.R.

A         examination of the viscera is not mandatory in every case
          of a dowry death; even when a VJscera report is sought
          for, its absence ts not necessarily fatal to the case of the
          prosecution when an unnatural death punishable under
          Section 304-B of the /PC or under Section 306 of the /PC
B         takes place; in a case of an unnatural death inviting
          Section 304-B of the /PC (read with the presumption
          under Section 113-B of the Evidence Act, 1872) or
          Section 306 of the !PC (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
c         may not be absolutely necessary "

          22 In Chhotan Sao & Another v. State of Bihar, 6 this Court
    was dealing with a case involving Sections 304-8 and 498A
    of the IPC. The allegations were that the deceased was
D murdered by poisoning her. The viscera report was not on
    rei:ord. There was ro other evidence on record to estab1lsh that
    the deceased was poisoned. This Court distinguished the case
    before it from the facts of Bhupendra and while acquitting the
    accused of the charge under Section 304-8 of the IPC made
i:: the following pertinent observations:

          ·11. Before parting with the appeal, we wish to place on
          record our anguish regarding the inadequacy of
          mvestigation, the failure to discharge the responsib1/ity
          on the part of the public prosecutor and the Magistrate
F
          who took cognizance of the offence under Section 304-
          B. 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. Havmg regard to the nature of the crime, it is
G         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 fa1 1ed in his responsibility to guide the
H 6.   2013 (15) SCALE 338
      JOSHINDER YADAV v. STATE OF BIHAR                    589
         [RANJANA PRAKASH DESAI, J.]
    investigating officer in that regard. Coming to the A
    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 .,apse on their B
    part such as ttie one which occurred in the instant case
     is bound to jeopardize 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 C
     which, in our opinion, has reached considerably lower
     level than desirable."

     23. We must note that this is the third case which this Court
has noticed in a short span of two months where, in a case of
suspected poisoning, viscera report is not brought on record. D
We express our extreme displeasure about the way in which
such serious cases are dealt with. We wonder whether these
lapses are the result of inadvertence or they are a calculated
move to frustrate the prosecution. Though the FSL report is not
mandatory in all cases, in cases where poisoning is suspected, E
it would be advisable and in the interest of justice to ensure that
the viscera is sent to the FSL and the FSL report is obtained.
This is because not in all cases there is adequate strong other
evidence on record to prove that the deceased was
administered poison by the accused. In a criminal trial the F
Investigating Officer, the Prosecutor and the Court play a very
important role. The court's prime duty is to find out the truth. The
Investigating Officer, the Prosecutor and the Courts must work
in sync and ensure that the guilty are punished by bringing on
record adequate credible legal evidence. If the Investigating G
Officer stumbles, the Prosecutor must pull him up and take
necessary steps to rectify the lacunae. The Criminal Court must
be alert, it must oversee their actions and,' in case, it suspects
foul play, it must use its vast powers and frustrate any attempt
to set at naught a genuine prosecution. Perhaps, the instant H
    590      SUPREME COURT REPORTS                [2014] 1 S.C.R.

A case would have been further strengthened had the viscera
  been sent to the FSL and the FSL report was on record. These
  scientific tests are of vital importance to a criminal case,
  particularly when the witnesses are increasingly showing a
  tendency to turn hostile. In the instant case all those witnesses
8 who spoke about poisoning turned hostile. Had the viscera
  report been on record and the case of poispning was true, the
  prosecution would have been on still firmer grounds.

          24. Having noticed that, in several cases where poisoning
  is suspected, the prosecuting agencies are not taking steps to
C obtain viscera report, we feel it necessary to issue certain
  directions in that behalf. We direct that in cases where
  poisoning is suspected, immediately after the post-mortem, the
  viscera should be sent to the FSL. The prosecuting agencies
  should ensure that the viscera is, in fact, sent to the FSL for
D examination and the FSL should ensure that the viscera is
  examined immediately and report is sent to the investigating
  agencies/courts post haste. If the viscera report is not received,
  the concerned court must ask for explanation and must summon
  the concerned officer of the FSL to give an explanation as to
E why the viscera report is not forwarded to the investigating
  agency/court. The criminal court must ensure that it is brought
  on record.

       25. We have examined the merits of the case and held that
F the appeal deserves to be dismissed. In the circumstances, the
  appeal is dismissed.

        26. A copy of this order be sent to the Registrar Generals
  of all the High Courts with a direction to circulate the same to
  all subordinate Criminal Courts; to the Director of Prosecution,
G to the Secretary, Ministry of Home Affairs, to the Secretary,
  Home Department and to the Director, Forensic Science
  Laboratory within the jurisdiction of the respective High Courts.

    D.G.                                        Appeal dismissed.
H