1993 Supreme(Del) 723

High Court Of Delhi
PRAKASH CHANDER - Appellant
Versus
STATE OF DELHI - Respondent
Criminal 1 of 1993
Decided On : 12/16/1993

Headnote:(i) Indian Penal Code, 1860 - Section 302 - Conviction under - Appeal- Death by burning - Occurrence had taken place in the midnight at the house of accused person - Conviction based on medical evidence that blunt force had been used on the head of the deceased before she was burnt - No external injury suffered by the deceased – Extravasation of blood on scalp not mentioned as an injury in the post mortem report - Theory of use of blunt force introduced when second opinion given by the doctor - No definite medical opinion that ante mortem injury (extravasation of blood) was not a result of application of intense heat to the body - On medical evidence two views reasonably possible. Not permissible to adopt the one which favours the prosecution when no convincing corroborative evidence on record - Conviction based on such a medical evidence not sustainable - No other evidence to connect the accused with the offence of murder.

       Held: The learned Additional Sessions Judge says that "the opinion of the doctor that extravasation of blood in scalp tissues was not due to burning fire but due to blunt force, cannot be said to be unreasonable or unreliable and that the first omission cannot be said to be deliberate and was due to accidental omission on the part of the doctor." We are unable to sustain this approach of the learned Judge. The question is not whether the second opinion of the doctor on which almost the entire case for offence under Section 302 I.P.C. has been built up is "unreasonable or unreliable" but is whether the other opinion that extravasation of blood could also be caused by application of intense heat is reasonable or not. It is clear from the evidence on record that two reasonable views could be formed. One, the extravasation of blood may have been on account of application of heat. Second, it may have been on account of application of blunt force. There is nothing on record to suggest as to what was that accidental omission due to which it was not mentioned in the post mortem report that the extravasation of blood had been produced by application of blunt force and thus it is not permissible for the court to conclude or infer that there was any accidental omission on this aspect. Further, the learned Additional Sessions Judge has come to the conclusion that the second opinion is based not on any new material but on same material and circumstances which the doctor had noticed at the time of post mortem examination. It has not been explained that which material and circumstances mentioned in the post mortem report led the doctor to give the second opinion, there is no question of the defence rebutting the reasons given by the doctor by producing any other doctor since the prosecution has to stand on its own legs. Where two views are reasonably possible the view favourable to the accused is to be adopted. This principle has special reference to a case where the guilt is sought to be established by circumstantial evidence as in the present case. The circumstances or the circumstantial evidence must convincingly and unerringly establish the guilt of the accused. Where on medical evidence two views are reasonably possible it is not permissible to adopt the one which favours the prosecution by holding that the said view is not "unreasonable or unreliable. That would be against the well established principles of criminal jurisprudence.

       The accused Prakash Chander has been found guilty of offence under Section 302 I.P.C. and has been given death sentence. We have to adopt a careful, cautious and meticulous approach. It is unfonunate that a young girl has died within a span of less than one year of the marriage. Such a happening would certainly shock the conscience of any court. One is likely to suspect, under circumstances in which Swaran Kanta died, that her husband may have done her to death. The suspicion remains a suspicion, however, strong it may be, it cannot take the place of proof. It cannot be the basis for conviction of an accused. (Paras 15 & 16)

       Further held, the main evidence in the case is of Dr. Chaubey, P.W. 20. Almost the entire judgment of conviction for offence under section 302 I.P.C. is based on testimony of P.W. 20 and his second medical opinion Ex. P.W. 20/B. The said evidence and other evidence on record does not establish an absolute link to connect the accused with the offence of murder. Thus, in our view, it would not be safe to hold accused Prakash Chand guilty of offence punishable under Section 302, I.P.C. (Para 20)

       (ii) Criminal Jurisprudence - Indian Penal Code, 1860 - Sections 302 and 304-B. Conviction u/s. 302. Order cancelling charge u/s. 304 B. Not sustainable - Cancellation of charge after the evidence has been led is unknown to the criminal jurisprudence - Cancellation of charge on the facts and circumstances of the case, does not amount to an order of acquittal.

       Held: Cancellation of the charge after the evidence has been led is unknown to the Criminal jurisprudence. Before a charge is framed an accused may be discharged if the facts and circumstances so justify. After the charge is framed the accused has either to be found guilty or not guilty of the charge. Mr. Sud also did not dispute that the order cancelling the charge is not legal. The learned trial court committed manifest error by holding that the alternate charge does not survive and is cancelled. (Para 23)

       (iii) Practice and Procedure - Indian Penal Code, 1860 - Sections 302 and 304-B - Prosecution for offences under - Conviction u/s. 302 Cancellation of charge u/s. 304-B - State having not filed any appeal against the cancellation of charge - Whether this court has power or jurisdiction to convict the accused for offence u/s. 304B of the Code? - (Yes) - Kalawati's case: 1953 S.C.R. 546: Relied on:

       Held: The accused has not been acquitted of offence under section 304 B, I.P.C. but only charge has been cancelled which is not permissible in law. That does not, on the facts and circumstances of the case as already noticed above, amount to acquittal. Assuming, however, that tantamounts to an implied acquittal, it would only show that the said acquittal was for the reason that he was held guilty of the main offence of murder and not independently. Our conclusion that in view of two reasonable views it would not be safe to hold Prakash Chander guilty of offence under Section 302 I.P.C., is not an impediment for his conviction under Section 304-B, I.P.C. (Para 32)

       Further held: The High Court cannot be a silent spectator when it finds that the trial court has committed a manifest error and has a duty to correct the said error. That manifest error is the order for cancellation of a charge under Section 304B, I.P.C. The interest of the accused is, of course, paramount but at the same time the court has also to keep in view the compelling public interest to see that because of a manifest error the administration of criminal jurisprudence is not reduced to total ineffectiveness which will breed dissatisfaction amongst the public Like all procedural laws Code of Criminal Procedure is also designed to sub-serve the ends of justice and not to frustrate them by mere technicalities. Viewed from this angle too it would be our duty to find out whether the accused is guilty of the charge under Section 304B, I.P.C: or not. (Para 34)

       Consequently held, that Section 302 and 304B, I.P.C. are not mutually exclusive. If in a case material on record suggest commission of offence under Section 302 I.P.C. and also commission of offence under Section 304B, I.P.C., the proper course would be to frame charges under both these sections and if the case is established then accused can be convicted under both the sections but no separate sentence need be awarded under section 304B, in view of substantive sentence being awarded for the higher offence under Section 302, I.P.C. In the present case though court rightly framed charge also under section 304B, I.P.C. and also in the course of judgment came to the conclusion that cruelty, demand of dowry and death within seven years of marriage had been established but ultimately proceeded to cancel the chander on the wrong assumption that the two offences are mutually exclusive. In the facts and circumstances of the case we do not think that any prejudice would be caused to the accused by examination of the case from the point of view of offence under Section 304-B, I.P.C. In our view the learned Additional Sessions Judge, for the conclusion reached by him, after holding Prakash Chander guilty of offence under Section 304B need not have awarded any separate sentence in respect of the said offence.

       In view of aforesaid discussion our answer to the second question is that cancellation of charge for offence under Section 304-B, I.P.C. does not amount to an order of acquittal and the setting aside of the order of conviction for the offence under Section 302, I.P.C. is not an impediment in this court examining whether commission of offence under Section 304-B, I.P.C. stands established or not. The State not having field any appeal against the order cancelling charge is of no effect. (paras 36 & 37)

       (iv) Indian Penal Code, 1860 - Section 304-B - Death within 7 years of her marriage Death caused by burns at midnight in her husband's house - Not a natural death - Incidents of cruelty, harassment, demand of dowry soon before death of deceased, disclosed by her father, mother and sister - All the four ingredients for offence u/s. 304B established - Presumption drawn against her husband - Nothing on record to show the rebuttal of the presumption drawn - Husband held guilty u/s. 304B of the Code. (Evidence Act, 1872 - Section 113-A)

       Held, that the accused Prakash Chander was a habitual drunkard and used to beat Swaran Kanta and maltreat her. The testimony of P.W. 5 Usha who used to visit her elder sister and through whom mostly the parents used to learn about the cruelty and harassment to Swaran Kanta also seems to be natural and convincing. There is ring of truth in the depositions of P.W. 1, P.W. 2 and P.W. 5. Their evidence is convincing and trustworthy. The fact that the father within two and a half hours of the incident gave the statement as aforesaid would show that though in a highly disturbed mental condition yet he gave the incidents of cruelty, harassment, demand of dowry soon before death of his daughter with sufficient clarity and detail and that statement cannot be rejected on the ground that the further details given in court were not given when on the day of occurrence his statement was recorded. We see no reason to disbelieve P.W 1, P.W. 2 and P.W. 5 on the question of cruelty and harassment as also on the question of demand of dowry soon before the death. The said witnesses have not been discredited. The variations in their statements are insignificant and natural. It is inconceivable that father would have fabricated false stories about cruelty, harassment and demand of money within a short span of two and a half hours when he was in a great mental agony and shock. In our view, the ingredients No.3 and 4 also stand fully established. (para 49)

       (V) Evidence - Circumstantial Evidence The Nature, character and essential proof required in a case based on; - Judicial decisions. (Para 11)

       (vi) Evidence - Dowry death cases - Evidence of father, mother and sister of the deceased not to be rejected when; (Para 45)

       (vii) Indian Penal Code, 1860 - Sections 302 act 304-B - Provisions not mutually exclusive If the case is established then accused can be convicted under both the sections - No separate sentence need be awarded u/s. 304B, in view of substantive sentence being awarded u/s. 302 of the Code. (Para 36)

       Result: Ordered accordingly. Conviction u/s. 302 I.P.C. set aside. Husband held guilty for offence u/s. 304-B, I.P.C. Conviction of mother-in-law for offence u/s. 498 I.P.C. maintained.