VERY IMPORTANT POINT
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.

Headnote:(i) Indian Penal Code, 1860 - Section 304 B-Dowry Death - Original charge under Section 302 - Conviction under Section 304B - Permissible provided accused is offered an opportunity to discharge his burden by putting .him notice regarding prima facie view of Court that he is liable to be convicted under Section 304B - Appellant accused not put to notice of offence under Section 304B - Conviction under Section 3048 not proper-Case remanded to be proceeded against from stage of defence evidence.
       (ii) Indian Penal Code, 1860 - Section 304B - Evidence Act, 1870 - Sections 113B and 4-Dowry death - Presumption as to guilt of accused Statutory compulsion as to-Burden to disprove presumption-on the accused-Court is bound to act on such presumption on failure of accused to disprove presumption.
       Under Section 464(1) of the Code of Criminal Procedure a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice. (Para 17)
       One of the cardinal principles of natural justice is that no man should be condemned without being heard, ("Audialterum partem"). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect However, if the aspect is of such 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 noncompliance with the principle of natural justice. (Para 19)
       The postulate needed to establish the offence under Section 304B IPC are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113B of the Evidence Act, as a part of the said offence, the position is this. If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused dowry death" (Para 21)
       Under Section 4 of the Evidence Act of "whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is id disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both. (Para 22)
       At this stage, we may note the difference in the legal position between the said - offence and Section 306 IPC which was merely an offence of abetment of suicide earlier. The section remained in the statute book without any practical use till 1983. But by the introduction of Section 113A - in the Evidence Act the said offence under Section 306 IPC has acquired wider dimensions and has become a serious marriage related offence. Section 113 A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse a him. But the peculiar situation in respect of an offence under Section 304B IPC, as s 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. (Paras 23 and 24)
       If the trial Court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304-B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption. (Para 28)
       In the instant case as the appellant was convicted by the High Court under Section 304-B IPC, without such opportunity being granted to him, we deem if necessary in the interest of justice to afford him that opportunity. The case in the trial Court should proceed against the appellant (not against to other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Section 304-B IPC. (Para 29)

JUDGMENT

Thomas; J. -A bride in her, incipient twenties was whacked to death at her nuptial home. After gagging her mouth the assailants treated her for some time as a football by kicking her incessantly and thereafter as a hockey puck by lambasting her with truncheons until she died of bilateral tension haemothorax. Her husband and his brother and father were indicted for her murder. But when all the material witnesses turned hostile to the prosecution the trial court, being foreclosed against all options, acquitted them.

2. Undeterred by the said acquittal the State of Karnataka made a venture by filing an appeal before the High Court of Karnataka. A Division Bench of the High Court, looking at the factual matrix of the case, lamented "O Tempora O Mores" as the learned judges said by way of prologue that "it is virtually a matter of shame that in this day and date, indiscriminate 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 cui 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.

3. 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.

4. 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, at the first blush, ingenuous particularly in the light of Section 221 of the Code. But as we proceeded further we noticed that the question has intricate dimensions, more so when this Court held divergent views on two occasions though not on the identical point. This case was, however, referred to be heard by a larger Bench and thus it came up bench of three judges.

5. To assist us in this matter we appointed Shri Uday Umesh Lalit, advocate as curiae. He with his meritorious effect us considerably in the task. We are be to him for the assistance rendered to us.

6. Before we proceed to the question of law it is necessary to delineate the synopsis the case. The bride was Tanima, whose marriage with the appellant was solemnized only a few months prior to her tragic end. It a that Tanima s father had died much ear certain amount, not much, was given bridegroom at the time of the marriage, though the expenses of the wedding were borne the bride s people. After marriage Tanim, in the house of her husband for a couple months. But when she paid her first visit her natal home she reported to her mother and brothers that she was being subjected to pressures and harassment by her husband by the other two accused for wangling a further amount of Rupees twenty thousand her people. She complained to her brother she was threatened that if the amount was brought she would be asked to leave the nuptial home once and for all.

7. On completion of her furlough at I parental house the appellant went to take I back. Then her brother (PW1-Mahaboobsab Ammarngi) gave a sum of rupees five the was sand to the appellant and pleaded with him to be satisfied with it. Though with displeasures as the amount was insufficient, appellant collected it and allowed Tanima to escort him to his house. A few days later Tanima conveyed to her mother that she was again persecuted for not making up the whole amount de h

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2001 Supreme(SC) 141

VERY IMPORTANT POINTAn 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.

Cases Referred (2)

VERY IMPORTANT POINT
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.