ALLAHABAD HIGH COURT
Rahul Chaturvedi and Mohd. Azhar Husain Idrisi, JJ.
Rammilan Bunkar and Ors. – Appellants
versus
State of U.P. – Respondent
Criminal Appeal No.1667 of 2021, Jail Appeal No.338 of 2018, Criminal Appeal No.5193 of 2023, Criminal Appeal No.5671 of 2023, Criminal Appeal No.5071 of 2018 and Criminal Appeal No.5069 of 2018
Decided on 30.5.2024

IMPORTANT POINTS
(1) Dowry death – Section 302 of I.P.C. cannot be added as an alternative charge
(2) In every case of Dowry related deaths, I.O. of case shall hold wide spectrum of investigation to examine and collecting material during investigation so as to justify his report u/s 173(2) Cr.P.C. as to whether such unnatural death of lady falls within ambit of Section 302 I.P.C. or it is a plain and simple Dowry Death punishable u/s 304B I.P.C. or it is a case of suicide punishable u/s 306 I.P.C. where the woman died on account of any abetment by her husband or in-laws.
(3) Re-trial – In order to obtain larger good, rule of law must prevail at any cost.
(4) Test of minor offence is not merely that prescribed punishment is less than major offence – Only if two offences are cognate offences, wherein main ingredients are common, one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis other offence.

Headnote:

(A) Indian Penal Code, 1860 – Sections 498A and 304B [Sections 85 and 80 of Bharatiya Nyaya Sanhita, 2023] read with Sections 3/4 of Dowry Prohibition Act, 1961 – Cruelty and dowry death – Addition of Section 302, IPC by taking aid of Evidence Act, 1872 – Where there is prima facie allegation of dowry related harassment and unnatural demise of bride within seven years of her marriage and charges were accordingly framed, then addition of Section 302 I.P.C. mechanically without any supporting material is held to be unsustainable – Charges are framed relying upon nature of evidence collected during investigation and not only in air or whimsical way – In case of murder and case of dowry deaths, death of a person is involved – Offender would be prosecuted for offence u/s 302 I.P.C. or 304B I.P.C., depends upon fact, situation, circumstances and material collected by I.O. of that individual case – If evidence collected during investigation, direct or circumstantial, prima facie supports and justifies addition of a charge u/s 302 I.P.C., then Trial Judge can and indeed ought to have framed charge of murder punishable u/s 302 I.P.C., then only it would be main charge and not the alternative charge – If main charge of murder is not proved against the accused at trial, court then only switch over to look into evidence to determine whether alternative charge of Dowry Death u/s 304B I.P.C. is established or not – Basic ingredients of both offences operates in two difference spheres, demanding appreciation of evidence from perspective relevant to such an individual offence.(Paras 14, 15 and 16)

(B) Indian Penal Code, 1860 – Sections 498A and 304B [Sections 85 and 80 of Bharatiya Nyaya Sanhita, 2023] read with Sections 3/4 of Dowry Prohibition Act, 1961 – Cruelty and dowry death – Addition of Section 302, IPC by taking aid of Evidence Act, 1872 – When a married woman dies within 7 years of marriage, otherwise than normal circumstances, F.I.Rs. are being lodged u/s 498A, 304B and other allied sections of I.P.C. – There is no investigation or inquiry made by police to see whether there is any evidence, direct or circumstantial, so as to justify whether offence was within realm of Section 302 I.P.C. – Investigating Officer blindly and in the most mechanical fashion proceeded to investigate into the matter and filed his report u/s 173(2) Cr.P.C. only u/s 304B and other allied Sections of I.P.C. – It is duty of I.O. of case to investigate the matter from every angle of murder u/s 302 or 306 I.P.C. also and prosecution to proceed in that regard and court to approach the case in that perspective – Merely because victim was a married woman, who has suffered unnatural death within seven years of her marriage and there is evidence that prior to her death she was subjected to cruelty and harassment on account of scanty dowry, prosecution or court, cannot shut their eyes to examine attending circumstances from angle of culpable homicide or suicide – During investigation I.O. should be cautious enough to hold in-depth investigation in larger spectrum and collect material as to whether case falls within ambit of Section 302 I.P.C. or secondarily it is a case of dowry death u/s 304B I.P.C. (Paras 19 and 20)

(C) Criminal Procedure Code, 1973 – Sections 221 and 222 [Sections 244 and 245 of Bharatiya Nagarik Suraksha Sanhita, 2023] – Indian Penal Code, 1860 – Sections 304B and 302 [Sections 80 and 103(1) of Bharatiya Nyaya Sanhita, 2023] – Alteration/addition of charge – When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of minor offence, although he is not charged with it – Test of minor offence is not merely that prescribed punishment is less than major offence – Only if two offences are cognate offences, wherein main ingredients are common, one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis other offence – Composition of offence under Section 304-B IPC is vastly different from formation of offence of murder under Section 302 IPC and former cannot be regarded as minor offence vis-à-vis latter – However, position would be different when charge also contains offence under Section 498-A IPC. (Paras 25, 26 and 27)

(D) Indian Penal Code, 1860 – Sections 304B and 302 [Sections 80 and 103(1) of Bharatiya Nyaya Sanhita, 2023] – Indian Evidence Act, 1872 – Section 113-B [Section 118 of Bharatiya Sakshya Adhiniyam, 2023] – Dowry death – Law authorises presumption that husband or any other relative of husband has caused death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry – Husband or relative, as the case may be, need not be actual or direct participant in commission of offence of death – Provisions contained in Section 304-B IPC and Section 113-B of Evidence Act were incorporated on anvil of Dowry Prohibition (Amendment) Act, 1984, main object of which is to curb evil of dowry in society and to make it severely punitive in nature and not to extricate husbands or their relatives from clutches of Section 302 IPC if they directly cause death – This conceptual difference was not kept in view by courts below – But that cannot bring any relief if conviction is altered to Section 304 Part II – No prejudice is caused to accused- appellants as they were originally charged for offence punishable under Section 302 IPC along with Section 304-B IPC. (Para 34)

(E) Indian Evidence Act, 1872 – Section 106 [Section 109 of Bharatiya Sakshya Adhiniyam, 2023] – Burden of proof – Section 106 of Evidence Act should be confined to those cases where a fact is especially within knowledge of any person – When matter is within knowledge of defendant, he has to prove the same – Ordinary rule that applies to criminal trials that onus lies on prosecution to prove guilt of accused is not in any way modified by rule of facts embodied in Section 106 of Evidence Act – Section 106 of Evidence Act is an exception to Section 101 of Evidence Act – Court should apply Section 106 of Evidence Act in any criminal trial with utmost care and caution – Section 106 of Evidence Act cannot be invoked to make up inability of prosecution to produce evidence of circumstances pointing to guilt of accused – To infer guilt of accused from absence of reasonable explanation in a case where other circumstances are not by themselves enough to call for his explanation is to relieve prosecution of its legitimate burden – Until a prima facie case is established by such evidence, onus does not shift to accused – To establish a case u/s 302 I.P.C., prosecution has to establish its case by making a full-dressed trial – Section 106 of Evidence Act cannot be used mechanically or as a tool in hand of prosecution to convict accused without discharging duty on its part – In case in hand, this finding with regard to conviction u/s 302 I.P.C. is palpably and prima facie erroneous and devoid of merit and cannot be sustained – Impugned Judgments set aside. (Paras 36, 37, 42, 44 and 46)

(F) Criminal Procedure Code, 1973 – Section 386(b)(i) [Section 427(b)(i) of Bharatiya Nagarik Suraksha Sanhita, 2023] – Dowry death – This is a serious matter where respective married ladies died within 7 years of their marriage under suspicious and unnatural circumstances and truth must come out on surface and guilty person must be punished and penalized – In order to obtain larger good, rule of law must prevail at any cost – All sessions trials should be re-tried – These are apt cases where retrial could be ordered as same has occurred after serious legal flaw and irregularity on account of misconception of nature of proceedings. (Paras 46, 50 and 54)

Result: Appeals partly allowed.