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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.
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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/