The prosecution must prove the necessary ingredients for Section 304-B IPC, including evidence of cruelty or harassment related to dowry demand, before altering charges.

ORDER

Dated this the 26 th day of November, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 to quash Annexure-B order, whereby the learned I st Additional Assistant Sessions Judge, Thiruvananthapuram by invoking power under Section 216 of the (for short 'the Cr.P .C') altered the charge and incorporated charge for the offence under Section 304 (B) of the Indian Penal Code, 1860 (for short 'the IPC ') also against the petitioner/accused adverting to the evidence tendered by the prosecution witnesses who were examined as PWs 1 to 17.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the order and the relevant provisions.

3. The learned counsel for the petitioner argued that in order to fasten criminal culpability upon a person, the ingredients stated under Section 304-B of IPC read with Section 113B of the Indian Evidence Act, 1872 shall be established by the prosecution. When a court alters charge by exercising power under Section 216 of Cr.P .C., the evidence relied on, for exercising the said power, must be convincing to find the ingredients for the offence, to which charge to be altered.

4. The learned counsel for the petitioner placed depositions of PWs 1 to 6 and 13, the crucial witnesses who were given evidence in support of prosecution, while trying the petitioner for the offences punishable under Sections 498- A and 306 of IPC , on the basis of court charge already framed; to contend that none of the witnesses given evidence to the effect that the victim was subjected to cruelty or harassment by the accused in connection with any demand for dowry, one among the vital ingredients to attract offence under Section 304-B of . Therefore, Annexure-B order is unsustainable and the same sought to be quashed.

5. The learned Public Prosecutor also submitted that even though there is allegation of cruelty as borne out from the evidence adduced before the trial court, cruelty or harassment in connection with any demand for dowry could not be foreseeable from the evidence tendered.

6. The learned counsel for the petitioner placed a decision of this Court reported in Ajayakumar and Ors. V. State of Kerala [MANU/KE/2469/2022] , [2022 Crl.LJ 4258], [2022 (3) KLJ 747], [II (2022) DMC 695 Ker.] where this Court considered the ingredients to attract the offences punishable under Sections 304-B and 306 of IPC read with Section 113 B of the Indian Evidence Act, 1872 and in the said decision in paragraph No.18, this Court set out the ingredients to constitute the offence under Section 304-B as under;

“18. Thus the ingredients to constitute an offence under Section 304B are:

(a) There was an unnatural death of a woman;

(b) that woman had been married within 7 years preceding her aforesaid unnatural death, and (c) soon before her death she was subjected to cruelty or harassment.

Again (i) such cruelty or harassment had been caused to her by her husband or husband's other relative;

(ii) that such cruelty or harassment was for or in connection with any demand for dowry.

In all dowry death cases the standard of appreciation of evidence has to be in the light of the provisions contained in Section 113A of the Evidence Act.”

7. In paragraph Nos. 19 and 20, this Court considered the impact of Section 113 B of the Evidence Act and held as under;

“19. It is relevant to note that when an offence under Section 304B of I.P .C is alleged, the same has a proximate nexus with Section 113B of the Evidence Act, 1872 which reads as follows:

“Section 113B: Presumption as to dowry death;-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any dema