Buddhadeb Saha vs The State Of West Bengal

REPORTABLE 2023 INSC 1084

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1692 OF 2022

BUDDHADEB SAHA & ORS. Appellant(s)

VERSUS

THE STATE OF WEST BENGAL Respondent(s)

O R D E R

1. This appeal is at the instance of four

convicts and is directed against the judgment and

order dated 23rd July, 2019 passed by the High

Court at Calcutta in Criminal Appeal No. 26 of

2018, by which the High Court dismissed the appeal

filed by the convicts (appellants herein) and

thereby affirmed the judgment and order of

conviction and sentence passed by the Additional Signature Not Verified Digitally signed by Deepak Singh Sessions Judge, 2nd Court, Katwa, Burdwan, West Date: 2023.12.20 10:30:47 IST Reason:

Bengal in the Sessions Trial No. 13 of 2014

holding the appellants guilty for the offence 2

punishable under Sections 498A, 304B read with 34

of the Indian Penal Code, 1860 (for short, “the

IPC”). The Trial Court sentenced them to suffer

rigorous imprisonment for three years with a fine

of Rs. 5,000/- each for the offence punishable

under Section 498A of the IPC and rigorous

imprisonment for a period of seven years for the

offence punishable under Section 304B of the

Indian Penal Code.

CASE OF THE PROSECUTION:-

2. The appellant No.1 (Buddhadeb Saha) is the

son of the appellants Nos. 2 and 3 resply. The

appellant No.4 is the younger brother of the

appellant No.1. The appellant No.1 was married to

the deceased, namely, Tuli Shah. The marriage was

solemnized on 24.02.2011.

3. On 19th September, 2011, the de facto

complainant-Uma Shankar Shah (PW-1) lodged an

First Information Report at the Ketugram Police

Station stating that his niece Tuli Shah was

married to the appellant No. 1 past couple of

months. He further stated that as the parents of 3

Tuli Shah passed away while she was of a very

young age, it is he who took care of Tuli Shah and

brought her up. At the time of marriage, cash and

gold ornaments were given to the family of the

husband of Tuli Shah. However, within a short

time, the appellants started harassing the

deceased for want of more dowry.

4. It is the case of the prosecution that on 16 th

September, 2011, the deceased committed suicide by

consuming poison on account of incessant

harassment by the appellants at her matrimonial

home.

5. Upon completion of investigation, chargesheet

was filed for the offences enumerated above. The

Trial Court framed charge for the offence

punishable under Sections 498A, 304B read with 34

of the Indian Penal Code. The accused persons

pleaded not guilty and claimed to be tried.

6. In the course of the trial, the prosecution

examined as many as 11 witnesses and also led

documentary evidence.

7. The Trial Court upon appreciation of the

evidence on record came to the conclusion that the 4

prosecution had successfully established its case

against the accused persons beyond reasonable

doubt and accordingly held them guilty.

8. The appellants herein being dissatisfied with

the judgment and order of conviction and sentence

passed by the Trial Court, went in appeal before

the High Court. The High Court thought fit to

affirm the judgment and order of conviction passed

by the Trial Court and dismissed the appeal

accordingly.

9. In such circumstances, the appellants are

here before this Court with the present appeal.

10. We take notice of the fact that the appellant

No.3 Pratima Saha (Mother-in-law) of the deceased

passed away during the pendency of this appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANTS:-

11. The learned counsel appearing for the

appellants vehemently submitted that the Trial

Court as well as the High Court committed a

serious error in holding the appellants guilty of

the offence they were charged with. According to

the learned counsel this is a case of no evidence. 5

He laid much emphasis on the fact that the

prosecution has not been able to establish the

exact cause of death. He would argue that if it is

the case of the prosecution that the deceased

committed suicide due to incessant harassment,

then prosecution has to establish on the basis of

evidence on record as to what was the exact cause

of death.

12. The learned counsel laid much emphasis on the

fact that the post-mortem report does not say

anything about the exact cause of death.

13. He further submitted that even the

histopathology report is silent about any traces

of poison in the viscera. In such circumstances,

according to the learned counsel, the prosecution

has not been able to establish that the case on

hand is one of unnatural death.

14. He further submitted that the appellants have

already undergone almost six years of sentence. He

would submits that assuming for the moment that

there was harassment for the purpose of dowry, at

best, they could have been convicted for the

offence punishable under Section 498A of the 6 Indian Penal Code, but, in any event, not under

Section 304B of the Indian Penal Code.

15. In such circumstances referred to above, the

learned counsel prayed that there being merit in

his appeal, the same be allowed and the

appellants be acquitted of all the charges.

SUBMISSIONS ON BEHALF OF THE STATE:-

16. On the other hand, this appeal has been

vehemently opposed by Mr. Avishkar Singhvi, the

learned counsel appearing for the State of West

Bengal. He would submit that no error not to

speak of any error of law could be said to have

been committed by the Courts below in holding the

appellants guilty of the offence with which they

were charged.

17. The learned counsel laid much emphasis on

the fact that within couple of months from the

date of marriage, the deceased died at her

matrimonial home under suspicious circumstances.

According to him, there is thumping evidence on

record to indicate that there was incessant

harassment to the deceased by all the appellants 7

for want of dowry.

18. The learned counsel invited the attention of

this Court to Section 113B of the Indian Evidence

Act, 1872 (for short, “the Evidence Act”) which

raises a presumption against the accused. Section

113B of the Evidence Act reads thus:-

“Section 113B. Presumption as to dowry death. -- 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 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.”

19. The learned counsel drew a fine distinction

between Sections 113A and 113B resply of the

Evidence Act. In Section 113A, the Legislature has

thought fit to use the word “may”. Therefore, in a

given set of facts, the Court may presume whereas

under Section 113B of the Indian Evidence Act the

word used is “shall”. In view of the word “shall”,

the Court is left with no other option but to draw

the presumption.

20. He would submit that there is intrinsic

evidence on record to indicate that the deceased 8

died on account of consumption of poison. He would

submit that there was long delay in forwarding the

sample of viscera collected during the course of

post-mortem to the Forensic Science Laboratory and

perhaps on account of delay, the histopathology

report is silent in so far as any traces of poison

being found in the viscera.

21. In such circumstances referred to above, Mr.

Avishkar Singhvi, the learned counsel prayed that

there being no merit in this appeal the same may

be dismissed.

22. Having heard the learned counsel appearing

for the parties and having gone through the

materials on record, the only question that falls

for our consideration is whether the High Court

committed any error in passing the impugned

judgment.

ANALYSIS

23. Indisputably, the post mortem report is

silent in so far as the exact cause of death is

concerned. There is no escape from the fact that

the viscera report is also silent in so far as any 9

traces of poison being found therein.

24. However, the Trial Court in its judgment has

discussed the aforesaid aspect of the matter in a

quite satisfactory manner, which reads as under:-

“It is the opinion of Modi that in some cases, which had definite signs of death from poisoning, the Chemical Examiner failed to detect any poison and in that case the duty of the Judge is to weigh the evidences, the symptoms, post-mortem appearances etc., to reach to the just conclusion. It was also the opinion of Modi that unsuitable samples, incorrect sampling sites, delayed storage, delay in examination of the viscera, use of wrong analytical technique may frustrate or distort proper analysis and the final outcome may be wrong. I have gone through the observations made by Modi & HWV Cox in this regard. I have gone through the observations made by them in respect various poisons and the symptoms. As per the inquest report (Ext-2), the police officer had noticed that froth was coming out from the right nostril. The skin color noted by the police officer was whitish. During post mortem it was noticed that Rigor Mortis was not present, the eyes were half closed, froth was coming out from the nose and mouth. On opening of the body the Oesophagus, lungs, trachea and bronchial trees were found congested. In the stomach the doctor found food particles and fluid with pungent smell. On analysis of various cases Modi & Cox had framed a guideline of detection of poison from the symptoms. According to them, white froth may come out from mouth and nose in case of Opium or its alkaloids. It was also their opinion that 10

in that case all the internal organs like stomach or lungs may be congested. They have also opined that if on opening of stomach detectable smell may found, that may be the effects of the poison like organophosphorus compounds, opium, formaldehyde etc.

Here, in this case the post mortem observations shows that it was definitely a case of death due to poisoning. It is fact that the nature of poison could not be ascertained but all the symptoms proves that the death of Tuli was due to consumption of poison and there is no other probable cause of her death. Obviously the death was caused otherwise than under the normal circumstances.” (Emphasis supplied)

25. The aforesaid findings recorded by the trial

court were looked into by the High Court in

paragraph 13 of its impugned judgment discussed as

under:-

“The accused persons in vain sought to set up a futile plea by way of suggestion to the prosecution witnesses that Tuli died under normal circumstances due to illness and not by consuming poison. This plea could not be substantiated by any iota of evidence. Section 106 of the Indian Evidence Act provides that when any fact is specially within the knowledge of any person, the burden of providing that fact is upon him. It is not in dispute that Tuli was married to the appellant No.1 on 24 th February, 2011. The fact that Tuli died in her matrimonial house within seven months of her marriage has not been denied. From 11

the evidence of PW-9 Dr. N. Ghatak it transpires that no poison was found in the viscera sample of deceased which was nd received on 22 February, 2012. PW-10 is the medical officer who held post-mortem examination over the dead body of Tuli on 17th September, 2011. This witness testified in his evidence that on visceral examination “odour material with pungent smell was found in the stomach”. PW-10 opined that if anyone takes poison, such kind of pungent smell may be found. PW-10 did not give any conclusive opinion as to the cause of death since the viscera was sent for chemical examination. Being quizzed in course of evidence, PW-10 admitted that if delay is caused in sending viscera sample for chemical examination, the poison might not be found. In the present case, the viscera was received for chemical examination on 22nd February, 2012 that is, after five months. There is nothing on record to show that the viscera sample was preserved properly during the aforesaid period. Though no poison could be detected in the viscera sample of the deceased, the factual position of the case in hand substantiated by the evidence of the witnesses and the inquest report go to show that death of Tuli had occurred “otherwise than under normal circumstances”. The inquest report lends credence to the prosecution case as it appears therefrom that death of Tuli was caused by consuming poison. At the time of inquest it was noted that froth was coming out from the mouth and nose of the deceased. The expression “normal circumstances” apparently means natural death. In other words, the expression “otherwise than under normal circumstances” means death not being in the usual course but apparently under suspicious circumstances. In the case of Bhupendra Versus State of Madhya Pradesh reported in 12

2013(4) Crimes 480(Supreme Court) it was held that chemical examination of viscera is not mandatory in every case of dowry death. For the purpose of Section 304 B IPC mere fact of an unnatural death is sufficient to invite a presumption under Section 113B of the Evidence Act. The relevant paragraph 26 of the judgment in Bhupendra’s case (supra) is quoted hereinbelow:

“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 when an unnatural death punishable under Section 304-B of the IPC or under Section 306 of the IPC takes place; in a case of an unnatural death inviting Section 304-B of the IPC (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 of the IPC(read with the presumption under Section 113-

A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary.

Reverting to the case in hand, from the evidence on record it is clear that death of Tuli had occurred otherwise than under normal circumstances.” (Emphasis supplied)

26. There is intrinsic evidence on record to

indicate that the case on hand is one of suicide by

poison. The PW-10 (Medical Officer) who performed 13

the post mortem has deposed that “odour material

with pungent smell was found in the stomach”. The

expert opined that in cases of consumption of

poison, such kind of pungent smell would be found.

The PW-10 admitted that if there is any delay in

forwarding the viscera sample for chemical

examination, the poison may not be detected.

27. Unfortunately, in the case on hand, the

viscera was received by the FSL for chemical

analysis on 22nd February, 2012 that is after a

period of almost five months.

28. In a research article titled, “Negative

viscera report and its medico-legal aspects”, it

has been mentioned that in many cases, the viscera

report is negative on three major basis, namely it

can be procedure based, sample based or lab based.

The said research paper reveals that there are

circumstances in which viscera test may not reveal

the presence of compounds from the following

circumstances:—

1. Sample quantities received by FSL much less

than those prescribed for optimal analysis;

2. Required quantity and quality of preservative 14

not used during sampling;

3. Appropriate temperature, time and container

not maintained for preservation of sample;

4. Difficulty in detection of poison due to

vomiting, purging or elimination from the system

by the kidneys or due to prolonged stay in the

hospital immediately prior to the death;

5. Not sending stomach wash (gastric lavage) and

vomit along with viscera for examination;

6. Some organic poison decompose due to improper

preservation or temperature control;

7. Site of sample collection on the body also

play an important role;

8. In postmortem decomposition, many poisons

present in the tissue undergo chemical changes

which cannot be detected in routine toxicological

analysis;

29. This Court in Mahabir Mandal v. State of

Bihar, (1972) 1 SCC 748, looked into the

observations found at page 477 of the Modi’s

Medical Jurisprudence and Toxicology (Seventeenth

edition) and held that under some circumstances, if

the whole of the poison has disappeared from the 15

lungs by evaporation, or has been removed from the

stomach and intestines by vomiting and purging, and

after absorption has been detoxified, conjugated

and eliminated from the system by the kidneys and

other channels, it is possible that there may not

be traces of poison.

30. Thus, the absence of detection of poison in

the viscera report alone need not be treated as a

conclusive proof of the fact that the victim has

not died of poison.

31. In Mahabir Mandal (supra), this Court has ob-

served as under:-

“Empty reference has been made by Mr.Chari to report dated December 23, 1963 of the Chemical Examiner, according to whom no poison could be detected in the viscera of Indira deceased. This circumstance would not, in our opinion, militate against the conclusion that the death of the deceased was due to poisoning. There are several poisons particularly of the synthetic hyp- notics and vegetable alkaloids groups, which do not leave any characteristic signs as can be noticed on post mortem examina- tion."

(Emphasis supplied)

32. The above observation of this Court was

based on the reference made in the Modi's Medical

Jurisprudence and Toxicology. Those references 16

were also referred to by this Court, which are as

follows:-

“It is quite possible that a person may die from the effects of a poison, and yet none may be found in the body after death, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and elimi- nated from the system by the kidneys and other channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloids and glu- cosides, may be oxidation during life or by putrefaction after death, be split up into other substances which have no characteris- tic reactions sufficient for their identi- fication.” (Emphasis supplied)

33. As pointed out by this Court in a number of

cases, where the deceased dies as a result of poi-

soning, it is difficult to successfully isolate

the poison and recognise it. Lack of positive evi-

dence in this respect would not result in throwing

out the entire prosecution case, if the other cir-

cumstances clearly point out the guilt of the ac-

cused.

34. According to Modi's Medical Jurisprudence and

Toxicology, 23rd Edition, Editors : K. Mathoharan 17

and Amrit K Patnaik, the preserved materials

should be sent to the concerned Forensic Science

Laboratory, through the concerned police station

as quickly as possible. Otherwise, the poison may

not be detected during the analysis of the vis-

cera, even though they may contain some poison.

35. Ken Kulig MD, in Critical Care Secrets

(Fourth Edition), 2007 states that the gastric

lavage must be performed soon after ingestion to

be at all effective in removing the drugs from the

stomach. For this reason, many clinicians do not

lavage patients who have overdosed if more than 1

hour has elapsed since ingestion.

36. We are conscious of the legal proposition

that while dealing with a case of circumstantial

evidence, the Court has to be circumspect. A note

of caution was sounded by a Constitution Bench of

this Court in Raghav Prapanna Tripathi v. State of

U.P. [AIR 1963 SC 74] quoting (AIR p. 89 para 60)

from R. vs. Hodge [(1838) 2 Law CC 227].

“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one con- 18

nected whole; and the more ingenious the mind of the individual the more likely was it, considering such matter, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous the- ories and necessary to render them com- plete.”

37. Thus, the Court should not unwittingly fall

into the same dangerous trap which the Constitu-

tion Bench has cautioned to be guarded against.

38. Considering the overall evidence on record,

we find it difficult to take the view that in the

absence of any positive viscera report, the prose-

cution could be said to have failed to establish

its case.

39. For the foregoing reasons, we have reached to

the conclusion that we should not interfere with

the concurrent findings recorded by the two Courts

below.

40. In the result, this appeal fails and is

hereby dismissed.

19

41. Pending applications, if any, stand disposed

of.

….........................J (J.B. PARDIWALA)

...........................J (PRASHANT KUMAR MISHRA)

New Delhi September 13, 2023 20

ITEM NO.114 COURT NO.16 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1692/2022

BUDDHADEB SAHA & ORS. Appellant(s)

VERSUS

THE STATE OF WEST BENGAL Respondent(s)

(IA No. 19003/2021 - EXEMPTION FROM FILING O.T.)

Date : 13-09-2023 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE J.B. PARDIWALA HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA

For Appellant(s)

Mr. Md. Apzal Ansari, Adv.

Mr. V. N. Raghupathy, AOR

For Respondent(s)

Mr. Avishkar Singhvi, Adv.

Ms. Astha Sharma, AOR Mr. Shreyas Awasthi, Adv.

Mr. Vivek Kumar, Adv.

UPON hearing the counsel the Court made the following O R D E R

1. The appeal is dismissed in terms of the signed order.

2. Pending applications, if any, stand disposed of.

(DEEPAK SINGH) (RAM SUBHAG SINGH) COURT MASTER (SH) COURT MASTER (NSH) [Signed order is placed on the file]