Kapil Evidence

8/12/2019 Kapil Evidence

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INTRODUCTION

A Presumption is an acceptance of a fact as true or existent based upon its strong probability

evident from the circumstances. For example, if a man has not been heard from for 7 years by his

closest relatives, the court may believe in that the man is dead. This is a presumption. Thus,

when the court presumes the existence of a fact because of its strong probability but without a

direct or conclusive proof, it is called as presumption. When a court presumes a fact, the party in

whose favor the fact is, is relieved of the initial burden of proof. For example, as per Negotiable

Instruments Acts, every holder of an instrument is presumed to be a holder for consideration. So

if a person A holds a cheque signed by another person B, it is presumed that A has given

consideration for the cheque and so A does not have to provide any proof of that consideration.

Of course, this presumption only applies at the beginning. The other party is free to provide

proof that disproves the presumption. For example, the opposite party can show letters by the

person or recent photograph of the person showing that he is still alive.

May Presume and Shall Presume

Provisions of Section 4 of Crpc, in a general sense, correspond to the above classification.

"May presume" - Whenever it is provided by this Act that the Court may presume a fact, it may

either regard such fact as proved, unless and until it is disproved, or may call for proof of it. It

gives the court a discretionary power to presume the existence of a fact. Which means that the

court may regard the fact as proved unless and until it is disproved. All the presumptions given in

Section 114 are of this kind, which says that the court may presume the existence of any fact

which it thinks likely to have happened regard being had to the common course of natural events,

human conduct, and public and private business, in their relation to the facts of the particular

case. For example, the court may presume that a man who is in possession of stolen goods soon

after theft, is either the thief of has received the goods knowing them to be stolen, unless he can

account for his possession.


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"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall

regard such fact as proved, unless and until it is disproved. It basically forces the court to

presume a fact that is specified by the law unless and until it is disproved. The court cannot ask

for any evidence to prove the existence of that fact but it may allow evidence to disprove it.

Section 107 of IPC provides for Abetment Of A Thing that means a person abets the doing of a

thing, who Instigates any person to do that thing or Engages with one or more other person or

persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in

pursuance of that conspiracy, and in order to the doing of that thing or Intentionally aides, by any

act or illegal omission, the doing of that thing.

The word Suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and

import is well known and requires no explanation. `Sui means `self and `cide means `killing,

thus implying an act of self-killing. In short a person committing suicide must commit it by

himself, irrespective of the means employed by him in achieving his object of killing himself.

Suicide by itself is not an offence under either English or Indian criminal law, though at one time

it was a felony in England. In our country, while suicide in itself is not an offence, considering

that the successful offender is beyond the reach of law, attempt to suicide is an offence under

section 309 of IPC.

RELEVANT SECTIONS

Punishment of abetment if the act abetted is committed in consequence, and where no express

provision is made for its punishment

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment,

and no express provision is made by this Code for the punishment of such abetment, be punished

with the punishment provided for the offence.


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Explanation- An act or offence is said to be committed in consequence of abetment, when it is

committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid

which constitutes the abetment.

Illustrations:

a) A offers a bribe to B, a public servant, as a reward for showing A some favor in the exercise

of B's official functions. B accepts the bribe. A has abetted the offence defined in section 161.

b) A instigates B to give false evidence. B, in consequence of the instigation, commits that

offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

c) A and B conspire to poison Z. A in pursuance of the conspiracy, procures the poison and

delivers it to B in order that he may administer it to Z B, in pursuance of the conspiracy,

administers the poison to Z in A 's absence and thereby causes Z's death. Here B is guilty of

murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for

murder.

Abetment of suicide of child or insane person

If any person under eighteen years of age, any insane person, any delirious person, any idiot, or

any person in a state of intoxication, commits suicide, whoever abets the commission of such

suicide, shall be punished with death or [imprisonment for life], or imprisonment for a term not

exceeding ten years, and shall also be liable to fine.

Abetment of suicide

If any person commits suicide, whoever abets the commission of such suicide, shall be punished

with imprisonment of either description for a term which may extend to ten years, and shall also

be liable to fine.


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ABETMENT OF SUICIDE BY A MARRIED WOMAN

The Indian Evidence Act section 113A deals with the presumption as to the abetment of suicide

by a married woman. Section 113A states that:

When the question is whether the commission of suicide by a woman had been abetted by her

husband or any relative of her husband and it is shown that she had committed suicide within a

period of seven years from the date of her marriage and that her husband and such relative of her

husband had subjected her to cruelty, the curt may presume, having regard to all other

circumstances of the case, that such suicide had been abetted by her husband or by any such

relative of her husband.

For the purpose of this section, cruelty shall have same meaning as in section 498A of the Indian

Penal Code

The term cruelty shall mean the same as defined in 498A section of India Penal Code according

to this:

Cruelty means-

a) Any willful conduct which is of such a nature as is likely to drive the woman to commit

suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of

the woman; or

b) Harassment of the woman where such harassment is with a view to coercing her or any person

related to her to meet any unlawful demand for any property or valuable security or is on account

of failure by her or any such person related to her to meet such demand.

The section 113A was inserted by Criminal Law (second amendment) Act 46 of 1983. This was

introduced because there was increasing number of dowry death, which was in fact a matter of

serious concern. This evil was commented upon the Joint Committee of the House to examine


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the work of Dowry Prohibition Act, 1961. The cases of cruelty by the husband or relative of

husband which would result in suicide or murder only constituted a small fraction. In order to

move this difficulty it was proposed to amend Indian Penal Code, Indian Evidence Act and

Criminal Procedure Code that could efficiently deal with the cases of dowry death as well as

cruelty to married woman by her husband or his relatives.

The beauty of law is that if a person wants to get some remedy done through the court he has to

prove the existence of certain factual situation. In the same way in order to attract the provision

of s113A of the Indian Evidence Act the burden of proving the fact lies on the person who

affirms it. This principle of burden of proof is applicable to all matrimonial offences. For

attracting the provision of 113A the following things has to be proved.

1. Suicide must be committed by a married woman

2. Suicide must have been abetted by husband or any relative of her husband

3. Suicide must be committed with in seven years of the marriage

4. She must have been subjected to cruelty (as defined in 498A of Indian Penal Code) by her

husband.

Presumption under section l13A refers to one of the three ingredients of abetment as defined in

section 107 IPC i.e. instigation, conspiracy and intentional aiding of the act. Where conduct of

the accused indicated that he did not want her to die even though he might have treated her

cruelly earlier, it cannot be presumed that he abetted the suicide.

The presumption of abetment of suicide by a married woman is rebuttable. If the accused is able

to prove that the woman has committed suicide by other reason or she was not harassed in her

matrimonial house by her in-laws in the name of demanding more dowry. This presumption can

be rebutted. There is an interesting fact to note that the presumption of 113A is applicable only

against the husband not against woman. This was revealed with an interesting case that came

before the High Court in 2000.

PRESUMPTION AS TO DOWRY DEATH


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When the question is whether a person has committed the dowry death of a woman and it is

shown that soon before her death such woman has been subjected by such person to cruelty or

harassment for, or in connection with, any demand for dowry; the court shall presume that such

person had caused the dowry death.

Explanation- For the purposes of this section 'dowry death' shall have the same meaning as in

section 304-B of the Indian Penal Code (45 of 1860)

This section and the section 304B of Indian Penal Code have been added by the Dowry

Prohibition (Amendment) Act No.43 of 1986 which was with effect from 19th November 1986.

This was done in order to solve the increasing problem of dowry death. The word dowry death

has been defined in 304B Indian Penal Code and the term dowry has been defined in section 2 of

the Dowry Prohibition Act 1961

Section 304B of the Indian Penal Code states that-

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.

While examining the constituents of dowry death the court held that:

(a) when the death of a woman is caused by any burns or bodily injury; or


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(b) occurs otherwise than under normal circumstances;

(c) and the aforesaid two facts spring within seven years of girl's marriage;

(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his

relative;

With the introduction of the above-mentioned section the court would to some extent stop the

violence and the atrocities committed to women. The presumptions has helped a lot in solving

the problem of dowry death because in such cases it difficult to get evidence. The presumption is

favourable to men at the same the courts could se that the women folk did not misuse this

presumptions because in order to attract these presumptions the existence of certain facts have to

be proved. The credit of trying to eradicate this evil should not be given to court alone; the

legislature has also done a considerable amount of work. While enacting this provision it did not

leave any loophole in order the convict to escape.


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BHUPINDER V.STATE OF MADHYA PRADESH

FACTS OF THE CASE IN BRIEF

Position Name Relation to the case

Geeta Bai Deceased

Accused 1 Bhupendra Husband of the deceased

Accused 2 Vrindavan Father of Accused 1

Accused 3 Sheela Devi Mother of Accused 1

PW 1 Bhika Ram Father of the deceased

PW 2 Munni Devi Mother of the deceased

PW 3 Munna Lal Brother of PW 2

PW 4 Urmila Aunt of the deceased

PW 5 Ram Narayan Brother of PW 1

PW 7 Dr. Siyaram Sharma Conducted post mortem

PW 8 Dr. S.C. Aggarwal Concerned Doctor

Geeta Bai was married to Bhupendra on 7

th

June, 1993 and at that time dowry was given byBhika Ram, Geeta Bais father, according to his means. Later Geeta Bais in laws demanded for

a she-buffalo which was fulfilled by Bhika Ram, then on 20th

August 1996 there was a further

demand for Rs. 10, 000 in cash but he was not able to meet this demand and hence fearing the

worst Geeta Bai consumed wheat tablets on the same evening at her matrimonial house.

Bhupendra took her to the District Hospital at Morena for treatment. Dr. S.C. Aggarwal informed

the Station Officer of Police Station City Kotwali at about 10.30 p.m. Later at 11.25 p.m. Geeta

Bai died, on the basis of this information a case was registered and investigations were

commenced. Separately, Bhika Ram made a complaint on 21st August, 1996 to the

Superintendent of police and District Magistrate at Morena that Bhupendra, his father Vrindavan

and his mother Sheela Devi had caused dowry death of Geeta Bai. On the same day post mortem

report showed that she had two injuries on her body, one on the left forearm which was caused


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by a hard, blunt object while the other injury was on the back of the right hand caused by a tooth

bite. Also, cause of death was suspected poisoning.

On these facts, a charge sheet was filed against the three accused persons for offences punishable

under Section 498A and 304B of the Indian Penal Code and in alternative for an offence

punishable under Section 306 of the Indian Penal Code.

ISSUES

1. Whether Bhupendra (the Appellant) was rightly convicted by the Additional SessionsJudge, Morena, Madhya Pradesh of having committed an offence punishable under

Section 498A, Section 304B and Section 306 of the Indian Penal Code?

2. Whether his conviction was rightly upheld by the High Court of Madhya Pradesh?APPLICATION OF LAW

Section 113B of Indian Evidence Act, 1872, reads as follows:

113B. Presumption as to dowry deathWhen the question is whether a person has committed

the dowry death of a woman and it is shown that soon before her death such woman had been

subjected by such person to cruelty or harassment for, or in connection with, any demand for

dowry, the Court shall presume that such person had caused the dowry death.

ExplanationFor the purposes of this section dowry death shall have the same meaning as in

Section 304B of the Indian Penal Code (45 of 1860).

Section 304B of Indian Penal Code, 1860, reads as follows:

304B. 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.


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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.

By reading of these Sections it is clear that to make a presumption as to a dowry death following

are the essentials to fulfill:

1. Death of the woman is caused within 7 years of her marriage.2. Death is caused due to unnatural circumstances.3. Soon before the death of the woman she was subjected to cruelty or harassment.4. This cruelty or harassment was done by such person against whom the question of

committing the dowry death has arisen.

5. This cruelty or harassment was done for, or in connection with, any demand for dowry.In the present situation it is clear that Geeta Bai and Bhupendra got married on 7

thJune, 1993

and Geeta Bai died on 20th

August, 1996, which is within 3 years of their marriage and hence the

first essential is fulfilled. Geeta Bai died due to poisoning which is not natural circumstance

because normal food poisoning does not cause a person to die within an hour. Hence, it must be a

strong poison since death is an ill effect of strong poison only. These set of facts fulfill the

second essential.

It is also shown by the post mortem report that Geeta Bai was subjected to cruelty or harassment

of which she had marks on her body. This fulfills the third essential. Also, apart from the dowry

given to Bhupendra's family at the time of marriage, there was an additional demand for dowry

made by Vrindavan to give him one buffalo. This demand was met by Bhika Ram but there was

a further demand on 20th August, 1996 for a sum of Rs. 10,000/- which could not be met by him.

This fulfills the last essential.

Fulfillments of all the essentials lead to a presumption as to dowry death against the accused.

FINDINGS OF TRIAL AND HIGH COURT


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Since all the essentials abovementioned are fulfilled, Trial Court decided that there is a

presumption to be made against Bhupendra and his father Vrindavan according to Section 113B

of the Indian Evidence Act, 1872. However, it also decided that there is not enough evidence

against Sheela Devi. High Court of Madhya Pradesh held that Bhupendra was rightly convicted

by the Additional Sessions Judge, Morena, Madhya Pradesh of having committed an offence

punishable Under Section 498A, Section 304B and Section 306 of the Indian Penal Code. But

Vrindavan was acquitted by the High Court due to insufficiency of evidence against him.

FINDINGS OF SUPREME COURT

Counsel for the appellant urged two contentions before the Honble Supreme Court. The first one

was that since there was no chemical examination report of the viscera, it could not be said that

Geeta Bai died because of consuming poisonous wheat tablets. The second contention was that a

conviction could not be sustained both under Section 304B of the Indian Penal Code as well as

Under Section 306 of the Indian Penal Code as both these sections were mutually exclusive and a

conviction can be found on either of these sections but not both.

Dealing with the first contention the Supreme Court, relying upon Taiyab Khan and Ors. v.

State of Bihar (2005) 13 SCC 455, held that chemical examination of the viscera is not

mandatory in every case of a dowry death; even when a viscera report is sought for, its absence

is not necessarily fatal to the case of the prosecution when an unnatural death punishable under

Section 304B of the Indian Penal Code or under Section 306 of the Indian Penal Code takes

place; in a case of an unnatural death inviting Section 304B of the Indian Penal Code (read with

the presumption Under Section 113B of the Evidence Act, 1872) or Section 306 of the Indian

Penal Code (read with the presumption Under Section 113A of the Evidence Act, 1872) as long

as there is evidence of poisoning, identification of the poison may not be absolutely necessary.

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. And hence theSupreme Court rejected this contention.

Now, with respect to the second contention, the Honble court held that Section 306 of the Indian

Penal Code is wide enough to take care of an offence under Section 304B also. However, an

offence Under Section 304B of the Indian Penal Code has been made a far more serious offence


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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 Indian Penal Code. On this basis, the Court rejected

the contention that if a dowry related death is a case of suicide it would not fall within the

purview of Section 304B of the Indian Penal Code at all. Reliance was placed upon Shant i and

Anr. v. State of H aryana (1991) 1 SCC 371 andKans Raj v. State of Punjab and Ors. (2000) 5

SCC 207.

JUDGMENT

Geeta Bai had died within 7 years of her marriage under unnatural circumstances. She was

subjected to cruelty by her husband and his family members for demand of dowry soon before

her death. This created a presumption in favor of the complainant that a dowry death has been

committed by the accused.

Ratio decidendiof this case:

1. Section 304B and 306 are not mutually exclusive. Section 306 is wide enough to coverambit of Section 304B under it.

2. Chemical examination of the viscera is not mandatory in every case of a dowry death.Even when a viscera report is sought for, its absence is not necessarily fatal to the case of

the prosecution when an unnatural death punishable under Section 304B of the Indian

Penal Code or under Section 306 of the Indian Penal Code takes place.

Appeal was accordingly dismissed.


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JOSHINDER YADAV V.STATE OF BIHAR

FACTS OF THE CASE IN BRIEF

Position Name Relation to the case

Bindula Devi Deceased

Accused 1 Jaiprakash Yadav Husband of the deceased

Accused 2 Joshinder Yadav (Appellant) Brother of Accused 1

Accused 3 Shakun Devo Yadav Brother of Accused 1

Accused 4 Dani Dutta Yadav Father of Accused 1

Accused 5 Satya Bhama Devi Mother of Accused 1

Accused 6 Fudai Yadav Brother in law of Accused 1

PW 9 Debu Yadav Father of the deceased

PW 10 Sachindra Yadav Brother of the deceased

PW 12 Dr. Arun Kumar Mandal Conducted post mortem

PW 13 Surendra Rai Investigating Officer

The prosecution story is reflected in the evidence of Complainant Debu Yadav, the father ofBindula Devi. Bindula Devi was married to Jaiprakash Yadav. In this marriage, one buffalo, one

cow and one bullock were given as dowry to the 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 child to Debu Yadavs house so

that he would rear the child. Debu Yadav further stated that when he brought Bindula Devi to his

house she told him about the ill-treatment meted out to her. She did not want to go back. He

transferred two kathas of land in her name. She then went to her matrimonial home. The accused

insisted that she should sell the land. As she did not agree to sell the land, they subjected her to

further torture. Debu Yadav further stated that one day Fudai Yadav came to his house and

enquired whether Bindula Devi had come there and told him that she had run away from the

house. He told Fudai Yadav that Bindula Devi would not run away from her house. He then


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proceeded to the house of the accused situated in village Kolhua along with his son Sachindra

Yadav and his brother-in-law. 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 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. Formal FIR of Debu Yadav

was registered on 31/1/1989 and the investigation was started. The Appellant, Jaiprakash Yadav

and Shakun Devo Yadav surrendered before the Court on 6/3/1989. Dani Dutta Yadav

surrendered before the Court on 26/8/1989. At the trial, though, the prosecution examined 13

witnesses, its case rested on the evidence of Debu Yadav, father of the deceased and Sachindra

Yadav, brother of the deceased. PWs-2 to 7 turned hostile. The accused pleaded not guilty to the

charge. They contended that when Bindula Devi went to take bath, she slipped in the water, got

drowned and died.

ISSUE

1. Whether the Appellant was a party to the cruelty or not?2. Whether the cause of death was asphyxia due to drowning or she slipped in the water, got

drowned and died?

APPLICATION OF LAW

Accused were tried under Sections 498A and 302 read with Sections 149 and 201 of the Indian

Penal Code.

FINDINGS OF THE TRIAL AND HIGH COURT

The trial Court convicted the accused under Section 302 read with Section 149 of the Indian

Penal Code and sentenced each of them to suffer life imprisonment. They were also convicted

under Section 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment

for three years each. They were further convicted and sentenced to undergo rigorous


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imprisonment for seven years each under Section 201 of the Indian Penal Code. All the

substantive sentences were ordered to run concurrently. The High Court dismissed their appeal.

FINDINGS OF THE SUPREME COURT

Counsel for the Appellant submitted that the instant case rests on circumstantial evidence.

Counsel pointed out that the Appellant is the brother of Jaiprakash Yadav, the husband of

Bindula Devi. 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 demand or to any ill-treatment meted out to Bindula Devi.

Counsel submitted that evidence of PW-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. 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 Balaram Prasad Agrawal v. State of Bihar and Ors. (1997) 9

SCC 338.

Supreme Court, on this, observed that it was distressing to note that all the other witnesses that

were PW-2 to PW-7 turned hostile. In the facts of this case, this is a pointer to the guilt of the

accused. They won over the prosecution witnesses. Court noted with some anguish the following

sentences uttered by 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 to complain that she is being tortured and assaulted

there. Who else can be a witness to this fact?" Having perused the evidence of PWs-9 and 10, thecourt held 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 cross-

examination their evidence has not suffered any dent. Implicit reliance can be placed on them.


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It is also submitted that the Appellant had separated from Jaiprakash Yadav and, hence, he

cannot be a party to the alleged acts of cruelty of the other accused. We find no substance in this

submission. Though, Sachindra Yadav stated that Jaiprakash Yadav had separated from his

brothers after marriage, he has clarified that all the brothers have their houses in a common

courtyard. Debu Yadav has specifically named the Appellant as a person who demanded cattle.

These circumstances persuaded the Court 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 Section 498A of the Indian Penal Code was therefore held to be perfectly

justified.

Now with respect to the question of Bindula Devis death, Debu Yadav and Sachindra Yadav

stated that dead body of Bindula Devi was recovered from the river bed. The Investigating

Officer stated that after recording the FIR of Debu Yadav, he inspected the house of Jaiprakash

Yadav. The dead body of Bindula Devi was found lying in one foot deep water, close to the

southern bank of the river. 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 thrown her dead body at the ferry. The Investigating Officer further stated that Vinod,

Parmeshwar Yadav, Brij Bihari Yadav also confirmed this fact. All these persons turned hostile

in the Court.

Dr. Arun Kumar Mandal opined that the cause of death was asphyxia 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 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.

Supreme Court opined that, 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 Fudai Yadav went to the house of Debu Yadav to

enquire about 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


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and that the house was completely empty, lead to an irresistible conclusion that the accused were

responsible for the death of Bindula Devi.

Counsel for Appellant submitted that, medical evidence does not support the prosecution case.

On this, Supreme Court stated that, 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

prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such

a situation. The burden which had shifted to the accused was not discharged by them. In this

connection, reliance was placed on Shambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404.

In the present 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 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 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. 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 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 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 bath; she slipped, got drowned in the water and died. This story

is palpably false. The false explanation offered by the accused further strengthens theprosecution case as it becomes an additional link in the chain of circumstances.

With this reasoning, the appeal was rejected by the Supreme Court and the conviction of the

appellant was upheld.


19/21

However, it is to notice that the prosecution based the case on the fact that Bindula Devi was

poisoned but the viscera report was not presented. Supreme Court, on this, observed that in

several cases where poisoning is suspected, the prosecuting agencies are not taking steps to

obtain viscera report; they feel it necessary to issue certain directions in that behalf. We direct

that in cases where poisoning is suspected, immediately after the postmortem, the viscera should

be sent to the FSL. The prosecuting agencies should ensure that the viscera is, in fact, sent to the

FSL for 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 why the viscera report is not forwarded to the investigating

agency/Court. The criminal Court must ensure that it is brought on record.

JUDGMENT

Bindula Devi died under unnatural circumstances. Soon before this death there was a demand of

dowry. At the time of her death, Bindula Devi was carrying a child and hence may be she could

not resist the attempts of the accused for killing her and hence there were no signs of cruelty on

her body. Supreme Court observed that it is not for Prosecution to prove the circumstances of

Bindula Devis death but it is for the accused to provide the Court with the actual facts under

Section 106, as these facts come under their special knowledge. But, instead, accused presented

wrong sets of facts and tried to screen their offence.

Ratio Decidendi of this case:-

1. It is not for the prosecution to prove the actual facts but it is for the accused to prove thespecial knowledge that he/she bears in their mind.

2. The prosecuting agencies should ensure that the viscera is, in fact, sent to the FSL forexamination and the FSL should ensure that the viscera is examined immediately and

report is sent to the investigating agencies/Courts post haste.

3. The criminal Court must ensure that it is brought on record.Appeal was accordingly dismissed.


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CONCLUSION

The legislature has by amending the Penal Code and Evidence Act made Penal Law more

strident for dealing with and punishing offences against abetment to suicide. Such strident laws

would have a deterrent effect on the offenders only if they are so stridently implemented by the

law courts to achieve the legislative intent. On the facts found and the offence proved to have

been committed leading to suicidal death. For offence under Section 306 IPC the sentence may

extend to ten years. In case the husband is found to have harassed his wife to such an extent as to

drive her to commit suicide, sentence of five years would be proper sentence for the crime with

the amount of fine of Rs. 20000 to be paid to the parents of the deceased.


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BIBLIOGRAPHY

Text Books:

The Indian Penal Code - K.D. Gaur Criminal Procedure CodeTakwani S.R.Myneni, The law of Evidence, (Hyderabad: Asia Law House) 2007 Vijender Kumar, law of Evidence, (Hyderabad: Asia law House) 6th edition. Dr. V. Krishnamachari, Law of Evidence, (Hyderabad: S.Gogia &Co.), 2010 Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law Publications),

2007

Dhiraj Lal & Ratanlal, TheLaw of Evidence,(Nagpur : Wadhwa & Company), 2008 Tandon M.P., Indian Evidence Act, 1872, (Faridabad : Sri Sai Law Publication), 2006 Sarathi P. Vepa, Law of Evidence,(Lucknow : Eastern Book Company), 2006

Websites:

http://bharatchugh.wordpress.com/tag/abetment-of-suicide/ http://indiankanoon.org/search/?formInput=abetment%20of%20suicide

%20sortby:%20mostrecent+doctypes:bombay

http://lawcommissionofindia.nic.in/reports/185thReport-PartIIIB.pdf http://www.advocatekhoj.com/library/bareacts/indianpenalcode/108a.php?Title=Indian%

20Penal%20Code,%201860&STitle=Abetment%20in
http://bharatchugh.wordpress.com/tag/abetment-of-suicide/http://indiankanoon.org/search/?formInput=abetment%20of%20suicide%20sortby:%20mostrecent+doctypes:bombayhttp://indiankanoon.org/search/?formInput=abetment%20of%20suicide%20sortby:%20mostrecent+doctypes:bombayhttp://lawcommissionofindia.nic.in/reports/185thReport-PartIIIB.pdfhttp://www.advocatekhoj.com/library/bareacts/indianpenalcode/108a.php?Title=Indian%20Penal%20Code,%201860&STitle=Abetment%20inhttp://www.advocatekhoj.com/library/bareacts/indianpenalcode/108a.php?Title=Indian%20Penal%20Code,%201860&STitle=Abetment%20inhttp://www.advocatekhoj.com/library/bareacts/indianpenalcode/108a.php?Title=Indian%20Penal%20Code,%201860&STitle=Abetment%20inhttp://www.advocatekhoj.com/library/bareacts/indianpenalcode/108a.php?Title=Indian%20Penal%20Code,%201860&STitle=Abetment%20inhttp://www.advocatekhoj.com/library/bareacts/indianpenalcode/108a.php?Title=Indian%20Penal%20Code,%201860&STitle=Abetment%20inhttp://www.advocatekhoj.com/library/bareacts/indianpenalcode/108a.php?Title=Indian%20Penal%20Code,%201860&STitle=Abetment%20inhttp://lawcommissionofindia.nic.in/reports/185thReport-PartIIIB.pdfhttp://indiankanoon.org/search/?formInput=abetment%20of%20suicide%20sortby:%20mostrecent+doctypes:bombayhttp://indiankanoon.org/search/?formInput=abetment%20of%20suicide%20sortby:%20mostrecent+doctypes:bombayhttp://bharatchugh.wordpress.com/tag/abetment-of-suicide/

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Kapil Evidence