HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Sanjay Kumar and T. Amarnath Goud, JJ.
Madasu Rambabu —Appellant
versus
State of A.P., rep. by Public Prosecutor —Respondent
Criminal Appeal No.315 of 2011
Decided on 26.10.2017

IMPORTANT POINT
When an accused has no notice of the charge under Section 304B IPC, as he was only defending against a charge under Section 302 IPC, it would lead to grave miscarriage of justice when he is alternatively convicted under Section 304B IPC, because he is deprived of the opportunity to disprove the burden cast on him by law.

Headnote:(i) Indian Penal Code, 1860—Sections 302 and 498A—Conviction of accused appellant for murder of his wife on circumstantial evidence—Dead body of victim was found in water tank in the house in morning and FIR lodged by parents of deceased stated that accused with deceased had gone to sleep in room in night and in morning body of deceased was found in water tank and accused was missing from house—Trial Court relied upon post-mortem report where in cause of death was shown as asphyxia due to strangulation and convicted accused for offences—Appeal—Evidence and report showed that homicidal death was not proved beyond doubt—However since death had taken place with four years of marriage of deceased with accused and charge under section 498A IPC was also tried against accused, accused was liable to be tried for charge of dowry death—Accidental death occurring otherwise than under normal circumstances would also come within ambit of dowry death if other ingredients of offence were proved—Conviction under Section 302 IPC was liable to be set aside and accused directed to be tried for charge of dowry death.

       Held: The evidence of P.W.9 and Exs.P8 and P.11 lab reports put it beyond the realm of doubt that the deceased did not die due to either poisoning or drowning. P.W.9 also asserted that he found no signs of death being caused by strangulation. He stated that there was no compression of the wind pipe and the hyoid bone was not fractured. He confirmed that if death is due to strangulation, invariably there would be compression of the wind pipe. He explained that the only reason that he gave the report to the effect that the cause of death was asphyxia due to strangulation was because of the opinion expressed by the forensic laboratory upon examining the skin sample from the neck of the deceased. However, as already pointed out, P.W.9 had confirmed that the ligature mark found on the neck of the deceased was faded. The pathology department, unfortunately, did not ascertain the age of the said ligature mark. Therefore, the possibility that this ligature was not of recent origin cannot be ruled out. The benefit of doubt in this regard would invariably go to the accused. In effect, there is no conclusive proof or evidence of the death of the deceased being homicidal. In the absence of clear proof as to homicide having been committed, the question of bringing the accused to book for it does not arise. The charge against the accused under Section 302 IPC is therefore not made out as there is no clear evidence of the death of the deceased being a homicidal death.

       That having been said, this Court is conscious of the fact that accused was also charged under Section 498-A IPC. In consequence, as the deceased died within seven years of her marriage and there was a charge under Section 498-A IPC, Section 304-B IPC would stand attracted. It may be noted that under Section 304B IPC, it is not necessary to establish a homicidal death for proving the offence of dowry death. It is sufficient if the death of the woman is otherwise than under normal circumstances. Any accidental death occurring otherwise than under normal circumstances would also come within its ambit. In Suresh Kumar v. State of Haryana, (2013) 16 SCC 353, the Supreme Court pointed out that any kind of death of a woman, whether homicidal or suicidal or accidental, would attract Section 304B IPC, if the other ingredients therein were proved and once such ingredients stand proved, the onus would shift upon the accused who must establish by cogent evidence that even such accidental death occurred under normal circumstances.

       As there was also a charge against the accused under Section 498-A IPC, a concomitant presumption would normally arise under Section 113B of the Indian Evidence Act, 1872 (for brevity, the Act of 1872), if the said charge is proved, that the death of the deceased was a dowry death caused by his cruelty and harassment in connection with his demands for dowry. However, as already noted supra, no separate charge was framed under Section 304-B IPC. It is therefore in the interest of justice that the accused be charged and tried under Section 304B IPC at least at this stage. (Paras 11 to 13)

       (ii) Indian Penal Code, 1860—Sections 302 and 304B—Whether an accused charged under section 302 IPC could be convicted under section 304B IPC if charge under section 302 IPC was not established, without affording him an opportunity to defend the charge and disprove presumption under section 113B of Evidence Act. ? No.

       Held: Significantly, in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577, a Bench of three Judges of the Supreme Court dealt with the issue as to whether an accused charged under Section 302 IPC could be convicted under Section 304B IPC if the charge under Section 302 IPC is not established, without affording him an opportunity to enter his defence and disprove the presumption raised thereunder, read with Section 113B of the Act of 1872. The Supreme Court observed that where the accused is called upon only to defend against a charge under Section 302 IPC, the burden of proof never shifts onto him and it remains with the prosecution, which has to prove the charge beyond all reasonable doubt. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the charge under Section 304B IPC, as he was only defending against a charge under Section 302 IPC, it would lead to grave miscarriage of justice when he is alternatively convicted under Section 304B IPC, because he is deprived of the opportunity to disprove the burden cast on him by law. The Supreme Court therefore held that if an accused is convicted under Section 304B IPC without an opportunity being granted to him to enter on his defence in respect of the said charge and an opportunity is not afforded to him to discharge his burden, the conviction under Section 304-B IPC cannot be sustained. (Para 18)

       Result: Appeal allowed accordingly.