BUDDHADEB SAHA & ORS.versusTHE STATE OF WEST BENGAL

                 [2023] 15 S.C.R. 332 : 2023 INSC 1084



                             CASE DETAILS
                     BUDDHADEB SAHA & ORS.
                                      v.
                    THE STATE OF WEST BENGAL
                   (Criminal Appeal No. 1692 of 2022)
                          SEPTEMBER 13, 2023
 [J. B. PARDIWALA AND PRASHANT KUMAR MISHRA, JJ.]
                              HEADNOTES
      Issue for consideration: Whether the High Court committed any error
in passing the impugned judgment holding the husband and in-laws guilty
for the offence punishable u/ss. 498A, 304B read with 34 IPC.
     Evidence – Circumstantial evidence – Dowry demand by husband
and in-laws – Commission of suicide by victim-wife on account of
consumption of poison – However, post mortem report silent as to the
exact cause of death and the viscera report silent as to traces of poison
being found therein – Effect of, on prosecution case:
      Held: Considering the overall evidence on record, in the absence of
any positive viscera report, it could not be said that the prosecution failed
to establish its case – 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 – Intrinsic evidence on record to indicate that the case is
one of suicide by poison – Deposition of Medical Officer who performed the
post mortem that odour material with pungent smell found in the stomach –
Expert opined that in cases of consumption of poison, such kind of pungent
smell would be found – Furthermore, viscera was received by the FSL for
chemical analysis after five months – Medical Officer admitted that if there
is any delay in forwarding the viscera sample for chemical examination, the
poison may not be detected – In view thereof, the concurrent findings by
the courts below holding the husband and the in-laws guilty for the offence
punishable u/ss. 498A, 304B read with 34 IPC not interfered with. [Paras
23, 26, 27, 30, 38, 39]


                                     332
    BUDDHADEB SAHA & ORS. v. THE STATE OF WEST                             333
                   BENGAL


       LIST OF CITATIONS AND OTHER REFERENCES

     Mahabir Mandal v. State of Bihar [1972] 3 SCR 639 : (1972) 1 SCC
748; Raghav Prapanna Tripathi v. State of U.P. [1963] SCR 239 : AIR 1963
SC 74 – referred to.
     Modi’s Medical Jurisprudence and Toxicology, 23rd Edition, Editors
: K. Mathoharan and Amrit K Patnaik; Ken Kulig MD, in Critical Care
Secrets (Fourth Edition) 2007 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1692 of 2022.
     From the Judgment and Order dated 23.07.2019 of the High Court at
Calcutta in CRA No. 26 of 2018.
     Appearances:
     Md. Apzal Ansari, V. N. Raghupathy, Advs. for the Appellants.
    Avishkar Singhvi, Ms. Astha Sharma, Shreyas Awasthi, Vivek Kumar,
Advs. for the Respondent.

       JUDGMENT / ORDER OF THE SUPREME COURT

                                   ORDER
      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 sessions Judge, 2nd Court, Katwa, Burdwan, West Bengal
in the Sessions Trial No. 13 of 2014 holding the appellants guilty for the
offence 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
334           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


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 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 16th 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 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.
    BUDDHADEB SAHA & ORS. v. THE STATE OF WEST                           335
                   BENGAL

      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.
      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 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.
336          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


      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 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 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.
    BUDDHADEB SAHA & ORS. v. THE STATE OF WEST                            337
                   BENGAL

      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 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 in that
338          SUPREME COURT REPORTS                        [2023] 15 S.C.R.


      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 24th February, 2011. The fact that Tuli died in her matrimonial
      house within seven months of her marriage has not been denied. From
      the evidence of PW-9 Dr. N. Ghatak it transpires that no poison was
      found in the viscera sample of deceased which was received on 22nd
      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
BUDDHADEB SAHA & ORS. v. THE STATE OF WEST                        339
               BENGAL

 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 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.
340          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


           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 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 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;
    BUDDHADEB SAHA & ORS. v. THE STATE OF WEST                            341
                   BENGAL

     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 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 examination.”
                                                        (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
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
342           SUPREME COURT REPORTS                          [2023] 15 S.C.R.


      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 glucosides, may be oxidation during life or by putrefaction after
      death, be split up into other substances which have no characteristic
      reactions sufficient for their identification.”
                                                          (Emphasis supplied)
      33. As pointed out by this Court in a number of cases, where the
deceased dies as a result of poisoning, it is difficult to successfully isolate the
poison and recognise it. Lack of positive evidence in this respect would not
result in throwing out the entire prosecution case, if the other circumstances
clearly point out the guilt of the accused.
     34. According to Modi’s Medical Jurisprudence and Toxicology,
23rd Edition, Editors : K. Mathoharan 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 connected whole; and the more ingenious
    BUDDHADEB SAHA & ORS. v. THE STATE OF WEST                             343
                   BENGAL

      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
      theories and necessary to render them complete.”
      37. Thus, the Court should not unwittingly fall into the same dangerous
trap which the Constitution 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
prosecution 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.
      41. Pending applications, if any, stand disposed of.


Headnotes prepared by:                                         Appeal dismissed.
Nidhi Jain