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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 203 OF 2007

JOYDEB PATRA & ORS. ... APPELLANTS

VERSUS

STATE OF WEST BENGAL ... RESPONDENT

ORDER

A.K. PATNAIK, J.   

This  is  an  appeal  against  the  judgment  dated  

28.07.2006 of the Division Bench of the Calcutta High  

Court in Criminal Appeal No. 397 of 1988.

2. The facts very briefly are that Madhabi Patra @  

Khendi got married to Joydeb Patra, the Appellant No. 1  

herein. Through the marriage she got a daughter. She  

again became pregnant and when she was carrying the  

pregnancy for nine months, a ceremonial function called  

'Sadh'  was  arranged  on  18th Baisak,  1393  B.S.  After  

taking  food,  Madhabi  fell  ill  and  her  condition

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deteriorated quickly and she died late in the night.  

According to the prosecution, Madhabi (the deceased)  

had died because poison was administered to her with  

the  food  by  the  appellants.  Accordingly,  after  

investigation,  a  charge-sheet  was  filed  and  the  

Appellant  No.  1  and  his  father,  brother  (appellant  

No. 2), sister (appellant No. 3) and mother (appellant  

No. 4) were tried and convicted under Section 302/34,  

I.P.C.  The  accused  persons  filed  Criminal  Appeal  

No. 397 of 1988 before the High Court of Calcutta but  

by the impugned judgment, the High Court maintained the  

conviction of the appellants.

3. We are told that the father of the Appellant No. 1  

died when the appeal was pending before the High Court  

and appellant No. 3 died during the pendency of the  

appeal before this Court.

4. We have heard learned counsel for the appellants  

and learned counsel for the State at length and we find  

that the conviction of the appellants is solely based  

on the evidence of PW 12 who conducted the postmortem  

on the body of the deceased that the death was due to  

poisoning.  The  Trial  Court  and  the  High  Court  have  

taken a view that as the deceased died on account of

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poisoning, onus was on the appellants to show that the  

deceased  did  not  die  on  account  of  homicide  but  

suicide.  We  also  find  on  a  reading  of  the  lengthy  

judgments of the Trial Court as well as the High Court  

that  the  explanation  given  by  the  accused  persons  

before the Courts explaining their suspicious conduct  

has been rejected by the two Courts as not believable  

and it has been ultimately held that the appellants  

were guilty of the offence under Section 302 read with  

Section 34, IPC.

5. On a perusal of the evidence, however, we find  

that  in  the  Inquest  Report  (Ext.  B)  prepared  on  

03.05.1986 (the date on which the deceased died) it is  

stated that though the relatives of the deceased stated  

that she has taken poison, no froth was seen on the  

nostril  and  mouth  of  the  deceased.   The  postmortem  

report (Ext. P 2) prepared on 4.5.1986 by PW 12 does  

not state the cause of death of the deceased. PW 12 has  

stated in the postmortem report:  

“Opinion as to the cause of death is  kept reserved pending to receipt of  C.E.'s  report  on  the  preserved  viscera.”  

Thus PW 12 has not been able to reach a conclusion  

about  the  cause  of  death  of  the  deceased  when  he  

examined the dead body of the deceased one day after

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the death of the deceased and has instead preferred to  

await  the  report  of  the  Chemical  Examiner  of  the  

Forensic Science Laboratory, Government of West Bengal.  

The report of the Senior Chemical Examiner, Forensic  

Science  Laboratory,  Government  of  West  Bengal  finds  

place in the record of the Trial Court. This report  

states that the glass jar contained a stomach with its  

contents, portion of liver, gall bladder, kidneys and  

spleen said to be of Madhabi Patra and the test tube  

contained  some  salt  solution  said  to  be  a  sample  

preservative  used  in  the  above  viscera.  The  report  

states the following result of the examination:

“No poison could be detected in the viscera  said to be of Khendi @ Madhabi Patra.”

6. After reading the postmortem Report (Ext. P 2) and  

the report of the Senior Chemical Examiner, Forensic  

Science Laboratory, Government of West Bengal, we are  

of the considered opinion that there was no evidence  

to show that the death of the deceased was caused by  

administering poison. Nonetheless, an effort was made  

by the prosecution at the time of examination of PW 12  

in Court almost after two years i.e. on 9th June, 1988  

to establish that the death of the deceased was caused  

on  account  of  administering  poison  to  her.  In  our  

view, the Trial Court and the High Court should not

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have relied on the evidence of PW 12 given in Court  

more than two years after the deceased died to hold  

that  poison  was  administered  to  the  deceased  when  

there was nothing in evidence either in the postmortem  

report  or  in  the  report  of  the  Senior  Chemical  

Examiner, Forensic Science Laboratory, Government of  

West Bengal to show that poison had been administered  

to the deceased.  Since the prosecution has failed to  

establish  beyond  reasonable  doubt  that  poison  was  

administered to the deceased, the very foundation of  

the case of the prosecution stood demolished.

7. Learned counsel for the State, Mr. Bijan Ghosh,  

vehemently submitted that since the death took place  

in  the  house  of  the  appellants,  burden  was  on  the  

appellants  to  prove  as  to  how  the  death  of  the  

deceased actually took place. He submitted that the  

death of the deceased obviously took place under very  

mysterious  circumstances  and  when  the  medical  

facilities were very near to the place of occurrence,  

the  appellants  should  have  availed  the  medical  

facilities but have not done so and this conduct of  

the appellants has given scope to the prosecution to  

believe  that  they  were  guilty  of  the  offence  under  

Section 302/34, I.P.C.

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8. We are afraid, we cannot accept this submission of  

Mr.  Ghosh.  This  Court  has  repeatedly  held  that  the  

burden  to  prove  the  guilt  of  the  accused  beyond  

reasonable doubt is on the prosecution and it is only  

when this burden is discharged that the accused could  

prove  any  fact  within  his  special  knowledge  under  

Section 106 of the Indian Evidence Act to establish  

that he was not guilty. In  Sucha Singh Vs.  State of  

Punjab (2001) 4 SCC 375, this Court held:

“We pointed  out  that  Section  106  of  the  Evidence Act  is not  intended  to relieve  the prosecution of its  burden  to prove  the  guilt of the accused beyond reasonable doubt,  but  the   section   would   apply  to  cases  where  prosecution  has  succeeded   in  proving  facts  for  which  a  reasonable  inference  can  be  drawn  regarding  the  existence of certain other facts, unless the  accused  by  virtue  of  special  knowledge  regarding  such  facts  failed  to  offer  any  explanation which might drive the court to  draw a different inference.”

Similarly,  in  Vikramjit  Singh Vs.  State  of  Punjab  

(2006) 12 SCC 306, this Court reiterated:

“Section 106 of the Indian Evidence Act does  not relieve the prosecution to prove its case  beyond all reasonable doubt.  Only when the  prosecution case has been proved the burden  in regard to such facts which was within the  special  knowledge  of  the  accused  may  be  shifted  to  the  accused  for  explaining  the  same.   Of  course,  there  are  certain  exceptions  to  the  said  rule,  e.g.,  where  burden  of  proof  may  be  imposed  upon  the  accused by reason of a statute.”

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9. As the prosecution has not been able to discharge  

its  burden  of  establishing  beyond  reasonable  doubt  

that the deceased died due to poisoning, in our view,  

the trial court and the High Court could not have held  

the appellants guilty just because the appellants have  

not been able to explain under what circumstances the  

deceased died.  

10. We accordingly allow this appeal and set aside the  

impugned judgment of the High Court as well as the  

judgment of the Trial Court and direct that the bail  

bonds of the appellants will stand discharged.

............................J. (A.K. PATNAIK)                 

............................J. (SUDHANSU JYOTI MUKHOPADHAYA)  

NEW DELHI, MARCH 06, 2013