JUDGMENT

G.S. Singhvi, J.

1. This appeal is directed against the judgment of Delhi High Court whereby the appellant was acquitted of the charge under Section 304B Indian Penal Code (for short `IPC) but was convicted under Section 498A IPC and sentenced to three years rigorous imprisonment.

2. The facts

(i) The appellant was married to Rama on 2.12.1984. She died on 22.11.1986. On receipt of an anonymous call/information that son of Kuldeep Seth (the appellant herein) has murdered his wife in his house situated at Gali No.8, Multani Dhanda, Paharganj. Shri C.L. Jatav, Sub-Inspector of Police visited the spot and found the dead body of Rama in a room on the second floor of the house. He also found one piece of printed cloth (chunni) near the dead body and another piece which was tied with the ceiling fan. Shri Naresh Tandon, brother-in-law of the deceased who was present at the site told Shri Jatav that the deceased had been subjected to harassment and torture by her husband and in-laws. The Sub-Divisional Magistrate recorded the statement of Smt. Raj Rani Mehra (mother of the deceased), who had also reached the house of the appellant and on that basis a case was registered under Sections 304B/306/498A read with Section 34 IPC. On the next day, Dr. Bharat Singh (PW-21) conducted post mortem. He found the following injuries on the body of the deceased:-

1. One ligature mark around the neck placed above the thyroid cartilage which was present all around the neck. The width of the ligature was >" all along except near the right side of the ear where it was irregular and was wider upto 1". Base was depressed. Skin was abraded. Colour was light brown.

2. One lenier abrasion was present on the right knee joint size two and half inches x two and ten inches.

Dr. Bharat Singh opined that the cause of death was asphyxia caused due to hanging.

(ii) The police submitted challan under Sections 304B/306/498A read with Section 34 IPC against the appellant, his brothers Suresh Seth and Naresh Seth and mother Janak Seth. The learned Additional Sessions Judge framed charge under Section 304B read with Section 34 IPC. The prosecution examined as many as 26 witnesses including the mother of the deceased, Smt. Raj Rani Mehra (PW-7), her sisters and brother, Smt. Radha Mehra (PW-1), Ms. Chitra Mehra (PW-6) and Chaman Mehra (PW-26), two neighbours, namely Rajesh (PW-19) and Amit Grover (PW-24), Investigating Officer C.L. Jatav (PW-20) and Dr. Bharat Singh (PW-21). In their statements under Section 313 Code of Criminal Procedure (for short `the Code), all the accused denied their involvement in the death of Rama. They also denied the allegation of having subjected the deceased to harassment and torture for dowry.

(iii) The trial court convicted all the accused under Section 304B read with Section 34 IPC and sentenced them to seven years rigorous imprisonment. On appeal, the High Court held that charge under Section 304B IPC is not made out and acquitted all the accused. However, the appellant was found guilty under Section 498A IPC and sentenced to three years rigorous imprisonment.

3. Shri K.T.S. Tulsi, senior counsel appearing for the appellant, assailed the impugned judgment on two counts. He argued that the appellants conviction under Section 498A IPC is liable to be set aside because he was tried for an offence under Section 304B read with 34 IPC and not under Section 498A IPC. Learned senior counsel submitted that in the absence of a specific charge under Section 498A IPC, the High Court could not have convicted the appellant under that section because he did not get opportunity to defend himself. Shri Tulsi further argued that after having discarded the testimony of PW-1, PW-6 and PW-7 on the issue of harassment, cruelty and demand of dowry and acquitted the appellant of the charge under Section 304B IPC, the High Court could not have relied upon the same evidence for the purpose of convicting him under Section 498A IPC. In support of his argumen