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2014 (12) TMI 1375 - SC - Indian LawsMurder - dowry demands - death within four months of marriage - offences punishable Under Section 302 read with Section 34 of the Indian Penal Code, Section 304B read with Section 34 of Indian Penal Code, Section 498A of Indian Penal Code and Section 201 of Indian Penal Code - HELD THAT:- Since, the victim in the case is a married woman and the death being within seven years of marriage, apparently, the court has gone only on one tangent, to treat the same as a dowry death. No doubt, the death is in unnatural circumstances but if there are definite indications of the death being homicide, the first approach of the prosecution and the court should be to find out as to who caused that murder. Section 304B of Indian Penal Code is not a substitute for Section 302 of Indian Penal Code. The genesis of Section 304B of Indian Penal Code introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates back to the 91st Report of the Law Commission of India - However, it is generally seen that in cases where a married woman dies within seven years of marriage, otherwise than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as to whether the offence falls Under Section 302 of Indian Penal Code. Sometimes, Section 302 of Indian Penal Code is put as an alternate charge. In cases where there is evidence, direct or circumstantial, to show that the offence falls Under Section 302 of Indian Penal Code, the trial court should frame the charge Under Section 302 of Indian Penal Code even if the police has not expressed any opinion in that regard in the report Under Section 173(2) of the Code of Criminal Procedure Section 304B of Indian Penal Code can be put as an alternate charge if the trial court so feels. In the instant case, the prosecution has not made any attempt to explain the ante-mortem injuries which conclusively point to the cause of death as asphyxia caused by strangulation. Yet, no serious attempt, it is disturbing to note, was done to connect the murder to its author(s). Now, the question as to why the High Court, having entered a conclusion that it is a case of murder at the hands of the Appellants, yet chose to convict them only Under Section 304B of Indian Penal Code. As we have already indicated, it could have been a case for the High Court or for that matter this Court for issuing notice for enhancement of punishment to those against whom there is evidence to connect them with the murder. The incident being of 1991, the prosecution having not chosen to link all the circumstances in a chain with no missing links to reach the irresistible and conclusive finding on involvement of the accused, the High Court would have thought it more prudent to convict the accused only Under Section 304B of Indian Penal Code. No doubt, in such a case, the High Court should not have entered a categoric finding on murder since once the court enters such a finding, the punishment can only be Under Section 302 of Indian Penal Code. Having regard to the circumstances which we have referred to above, we are of the view that though this case could have been dealt with Under Section 302 of Indian Penal Code, at this distance of time and in view of the lack of evidence on the chain of circumstances, it will not be proper for this Court to proceed Under Section 302 of Indian Penal Code for enhancement of punishment. Now, the last question as to whether the case should be remitted back to the High Court for the purpose of Section 235 of Code of Criminal Procedure, we are of the view that in the present case, it is not necessary. The conviction is Under Section 304B Indian Penal Code. The mandatory minimum punishment is seven years. of course, there is no such minimum punishment Under Section 498A of Indian Penal Code or Section 201 of Indian Penal Code. Since the sentence in respect of offence Under Section 498A of Indian Penal Code for two years rigorous imprisonment and one year Under Section 201 of Indian Penal Code are to run concurrently, no prejudice whatsoever is caused to the two Appellants. Therefore, this is not a fit case for following the procedure Under Section 235 of Code of Criminal Procedure by this Court or for remand in that regard to the High Court. The conviction and sentence against the third and fourth accused/Appellants, Rakesh Singh and Gyan Chandra, respectively, are set aside. The conviction and sentence as against first and second Appellants, Vijay Pal Singh and Narendra Singh, respectively, Under Section 304B of Indian Penal Code read with Section 34 of Indian Penal Code, Section 498A of Indian Penal Code and Section 201 of Indian Penal Code are upheld - Appeal allowed in part.
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