Appeal
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 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 respectively. 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.
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.
Conclusion of trial court and high court
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.
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.
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.
Trial court placed reliance on Modi text book
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 colour 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 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)
Post-mortem doctor deposes about pungent smell was found in the stomach
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.
Viscera was received by FSL after five months
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.
Detailed research on viscera and its report
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;
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.
Absence of detection of poison in viscera report is not conclusive proof
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.
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.
Preserved materials should be sent to the concerned FSL through the concerned police station as soon as possible
34. According to Modi’s Medical Jurisprudence and Toxicology, 23rd Edition, Editors : K. Mathoharan 17 and Amrit K Patnaik, the preserved materials should be sent to the concerned Forensic Science Laboratory, through the concerned police station as quickly as possible. Otherwise, the poison may not be detected during the analysis of the viscera, 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 vs. The 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 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.
BUDDHADEB SAHA & ORS. Appellant(s) VERSUS THE STATE OF WEST BENGAL Respondent(s) – CRIMINAL APPEAL NO. 1692 OF 2022 – September 13, 2023- 2023 INSC 1084
https://main.sci.gov.in/supremecourt/2019/45398/45398_2019_16_114_46813_Judgement_13-Sep-2023.pdf
45398_2019_16_114_46813_Judgement_13-Sep-2023
Further study
Dowry death – presumption explained
Section 304-B IPC – In dowry death cases prosecution has to prove the initial burden
Section 304B IPC – Appreciation of cross-examination explained
Cruelty or harassment not proved by the prosecution
Section 498A IPC – conduct of the accused shows he has done cruelty to the deceased
