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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  259 OF 2009

Joshinder Yadav …Appellant  

Versus

State of Bihar …Respondent

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1.  The appellant 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  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  

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they  caused  disappearance  of  her  dead  body  with  an  

intention to screen themselves from legal punishment.  

2. Bindula Devi was married to Accused 1 Jaipraksh Yadav.  

The appellant and Accused 3 Shakun Devo 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.

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 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  

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house and sent the child to 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 name.  

She  then  went  to  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 whether  Bindula Devi had come there and told him  

that 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-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  

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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 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.

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 when Bindula Devi went to take bath, she slipped in the  

water, got drowned and died.  

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5. The trial court convicted the accused under Section 302  

read with Section 149 of the IPC and sentenced each of them  

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  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.   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 demand or to any ill-treatment meted out  

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to  Bindula  Devi.   Counsel  submitted  that  in  cases  where  

apart from husband other members of his family are charged  

with offences under Sections 304B, 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 Vithal  

Tukaram  More  &  Ors.  v.  State  of  Maharashtra1.  

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 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-9 Debu Yadav and PW-10 Sachindra Yadav  

1 (2002) 7 SCC 20

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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 &  

Ors2.   Counsel  submitted  that  appeal  be,  therefore,  

dismissed.  

8. We have already referred to the evidence of father of  

Bindula  Devi  PW-9  Debu Yadav.   He  has  given  a  graphic  

account of the harassment and ill-treatment meted out to  

the deceased by the accused.  They were not happy with a  

bullock,  a  cow and a  buffalo  which were  given as  dowry.  

They asked for a watch and a cycle. That was also given.  

2 (1997) 9 SCC 338

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They asked for 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 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  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  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 we have no manner of doubt that  

Bindula Devi  was subjected to cruelty and harassment for  

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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.  

9. It is submitted that the appellant had separated from  

Accused  1  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,  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  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 information that  she  

had left their house, he found the house to be empty.  All the  

accused had absconded.  They had taken their belongings  

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with them.   This is confirmed by PW-13 Surendra Rai the  

Investigating Officer.  He stated that when he went to the  

house  of  the  accused  after  receiving  information  about  

disappearance  of  Bindula  Devi  he  found  the  house  

completely  empty.  Even  the  household  articles  and  food  

grains were missing.   The accused were not  present.   No  

member of their family was present.  Bindula Devi was also  

not present.  These circumstances 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 Section 498A of the IPC is  

therefore perfectly justified.  

10. We now come to the death of Bindula Devi. PW-9 Debu  

Yadav and PW-10 Schindra Yadav stated that dead body of  

Bindula  Devi  was  recovered  from  the  river  bed.   The  

Investigating Officer  PW-13 Surendra Rai  stated that  after  

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  

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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 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,  

Parmeshvari  Yadav,  Brij  Bihari  Yadav  also  confirmed  this  

fact.  All these persons turned hostile in the court.   

11. PW-12 Dr. Arun Kumar Mandal did the post-mortem on  

the  dead  body  of  Bindula  Devi.   Following  are  his  

observations:  

“1. (1) Epistaxis from both nostrils. (2) Blood mixed with froth from mouth. (3) Both eye balls congested, cornea hazy. (4) Face congested and cyanosed. (5) Skin  of  both  hands  and  feet  were  

corrugated.  

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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, 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 with blood mixed.

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

7. In the large intestine-gas and solid facees.

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 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 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  

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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 there were no injuries  

on the person of the deceased.

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  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 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  

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with  her  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  

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, 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.  Relevant portion of the said judgment  

reads thus:

3 AIR 1956 SC 404

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“(10) Section  106  is  an  exception  to  Section 101.  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’.   

Illustration (a) says –

‘A desires a Court  to  give judgment that  B   shall be punished for a crime which A says B has   committed.

A  must  prove  that  B  has  committed  the  crime’.  

(11) This lays down the general rule that in a   criminal  case,  the  burden  of  proof  is  on  the   prosecution  and  Section  106  is  certainly  not   intended  to  relieve  it  of  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  or   inconvenience.”

15. In Balram Prasad Agrawal  v.  State of Bihar4, the  

prosecution  had  established  the  cruel  conduct  of  the  

accused i.e. her husband and members of his family and the  4 (1997) 9 SCC 338

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sufferings undergone by the deceased at their hands.  The  

unbearable 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  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 cruelty qua  

the  deceased  spread  over  years  as  was  well  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  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.  

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16. 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.

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  is  caused,  then,  there  will  be  negligible  

quantum of water in the stomach.  From the evidence of PW-

12 Dr.  Mandal,  it  appears  that  the death  of  Bindula  Devi  

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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  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  the  prosecution  case  as  it  becomes  an  

additional link in the chain of circumstances.  

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18. It is true that in Vithal Tukaram More this Court has  

held that in a case where other members of the husband’s  

family are charged with offences under Sections 304B, 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  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  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 by the accused.  PW-10 Sachindra Yadav, brother  

of Bindula Devi has also stated so.  PW-13 Surendra Rai, the  

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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 river and had run 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  Science  

Laboratory (“the FSL”).

20. The  trial  court  has  observed  that  the  Investigating  

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.  

Mandal.   Dr.  Mandal  has,  however,  added that he did not  

know the result of 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  

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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 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 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  

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  

5 2013 (13) SCALE 52

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was  enough  evidence  of  poisoning.   The  accused  was  

charged under Sections 304-B and 306 of the IPC.  Drawing  

support  from  the  presumptions  under  Sections  113B  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  poisoning.   The  relevant  

observation of this Court could be quoted.  

“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.”

22. In Chhotan Sao & Another  v.  State of Bihar,6 this  

Court was dealing with a case involving Sections 304-B and  

498A of the IPC.  The allegations were that the deceased was  6 2013 (15) SCALE 338

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murdered by poisoning her.  The viscera report was not on  

record.  There was no other evidence on record to establish  

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-B of  

the IPC made the following pertinent observations:

“17. Before parting with the appeal,  we wish to   place  on  record  our  anguish  regarding  the   inadequacy  of  investigation,  the  failure  to   discharge  the  responsibility  on  the  part  of  the   public  prosecutor  and  the  Magistrate  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.  Having regard to   the nature of the crime, it is 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 failed in his responsibility to guide the   investigating officer in that regard.  Coming to the   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 lapse on their  part   such as the one which occurred in the instant case   is  bound  to  jeopardize  the  prosecution  case  resulting in avoidable acquittals.  Inefficiency and   

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callousness  on their  part  is  bound to  shake the  faith of the society in the system of administration   of  criminal  justice  in  this  country  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.  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,  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  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  

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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  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  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 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.   

24. Having noticed that, in several cases where poisoning is  

suspected, the prosecuting agencies are not taking steps to  

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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 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.  

25. We have examined the merits of the case and held that  

the appeal deserves to be dismissed.  In the circumstances,  

the appeal is dismissed.   

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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,  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.

.…………………………..J.     (Ranjana Prakash Desai)

.…………………………..J. (J. Chelameswar)

New Delhi; January 20, 2014.

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