TMI Blog2001 (1) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... ate attacks and abnormally high degree of violence are directed against married women in certain quarters and that the law is doing little to curb this type of utterly obnoxious and anti-social activities. Learned Judges after reaching a cul de sac, swerved over to a different offence i.e. dowry death and convicted one of them (the husband) under section 304B of the Indian penal Code and awarded the maximum sentence of life imprisonment prescribed thereunder on him besides Section 498A IPC. However, the High court found helpless to bring the other two accused to the dragnet of any offence. Thus, for the appellant (husband of the deceased) this appeal became one of right under Section 379 of the Code of Criminal Procedure (for short the Code) and under Section 2 of Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. During the course of arguments a question of law cropped up as the appellant was not charged under Section 304B, IPC. The question raised is this: Whether an accused who was charged under Section 302 IPC could be convicted alternatively under Section 304-B IPC, without the said offence being specifically put in the charge. The answer appeared, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied with the pelf given, took her back to his house. Within two months thereafter Tanima was killed. On hearing the news on 17.10.1992 PW1 along with some of his close relatives set out to the house of the appellant. On the way they met the appellant. When they tried to confront him with what they heard he skirted the subject and slipped away. When they reached the house of the appellant they saw the mangled dead body of Tanima. Dr. Tawaraj (PW7) conducted the autopsy on the dead body of Tanima. Though externally there were only a few abrasions and contusions the inside was found very badly mauled. The rib on the right side was fractured, both the lungs were collapsed, the thorasic cavity contained 200 ml. of blood. The peritoneum was soaked in blood, liver and spleen were massively lacerated and ruptured at three places. Though prosecution examined PW3 and PW4 who were neighbours to say that they saw the three accused inflicting incessant assaults on Tanima and PW6 was examined to say that appellant made an extra-judicial confession to him, they all turned hostile and did not speak as prosecution expected. The remaining evidence was not sufficient to establish that all or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was incorporated in the year 1986 by the legislature for the purpose of dealing with instances of dowry death. Counsel for both sides submitted that no charge was framed against the accused for the offence under Section 304-B IPC. We perused the original charge framed by the Sessions Court and noticed that there was no such count included in the charge at all. If so, we may say, euphemistically, that learned Judges committed a serious error in assuming that Section 304-B IPC was included in the charge framed against the appellant. Be that as it may. The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302 IPC, but on the facts the ingredients of section 304-B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge? A two Judge Bench of this Court (K. Jayachandra Reddy and G.N. Ray, JJ) has held in Lakhjit Singh and anr. vs. State of Punjab {1994 Supple. (1) SCC 173} that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the court to convict the accused of the latter offence. But without reference to the above decision, another two Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar, JJ) has held in Sangaraboina Sreenu vs. State of A.P. {1997 (5) SCC 348} that it is impermissible to do so. The rationale advanced by the Bench for the above position is this: It is true that Section 222 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice. We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304-B IPC without the same being included as a count in the charge framed. Section 304-B has been brought on the statute book on 9-11-1986 as a package along with Section 113-B of the Evidence Act. Section 304-B(1) IPC reads thus: 304-B. 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. In the Explanation to the Section it is said that the word dowry shall be understood as defined in the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the accused can persuade the court against drawing a presumption adverse to him. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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