Joshinder Yadav vs State Of Bihar

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 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 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 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.

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.

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.

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 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 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.

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.

January 20, 2014.