IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1239 OF 2003

Dinesh Seth ……..Appellant  

Versus

State of N.C.T. of Delhi ……..Respondent

J U D G M E N T

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 ¾” 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.

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(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.   

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3. Shri K.T.S. Tulsi, senior counsel appearing for the appellant, assailed

the  impugned  judgment  on  two  counts.   He  argued  that  the  appellant’s

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 arguments, Shri Tulsi referred to the judgments of this

Court in  State of West Bengal vs. Orilal Jaiswal & Another [1994 (1)

SCC 73],Himachal Pradesh Admn. vs. Shri Om Prakash [1972 (2) SCR

765],   Ramakant Rai vs.  Madan Rai  & Others [JT 2003 (Supp.2)  SC

344],  Gokaraju  Venkatanarasa  Raju vs.  State  of  A.P. [1993  Supp.(4)

SCC 191] and  Shivanand Mallappa Koti vs. State of Karnataka [2007

(8) Scale 408].  Learned senior counsel then submitted that the judgments of

this Court in   Pyare Lal vs. State of Haryana [1997 (11) SCC 552] and

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Satpal vs. State of Haryana [1998 (5) SCC 687] on which reliance has

been placed by the High Court for convicting the appellant under Section

498A  IPC  are  clearly  distinguishable  because  in  neither  of  those  cases

question similar to the one arising in this appeal was considered.

4. Shri P.P. Malhotra, senior counsel representing the State relied upon

the provisions of Sections 221, 222 and 464 of the Code and argued that

omission to frame specific charge under Section 498A IPC cannot be made

a ground for acquittal of the appellant because absence of charge under that

section  did  not  prejudice  his  defence  and  no  failure  of  justice  was

occasioned.  Shri  Malhotra  submitted  that  the  evidence  produced  by  the

prosecution  was  sufficient  to  prove  that  the  appellant  had  subjected  the

deceased  to  cruelty  and  the  High  Court  did  not  commit  any  error  by

convicting him under Section 498A IPC.   

5. We have considered the respective submissions. For deciding whether

the High Court committed an illegality by convicting the appellant under

Section 498A IPC, it will be useful to notice the provisions of Sections 221,

222 and 464 of the Code. The same read as under:-

221.  Where it is doubtful what offence has been committed.

(1) If a single act or series of acts is of such a nature that

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it is doubtful which of several offences the facts which

can  be  proved  will  constitute,  the  accused  may  be

charged  with  having  committed  all  or  any  of  such

offences, and any number of such charges may be tried at

once; or he may be charged in the alternative with having

committed some one of the said offences.  

(2)     If in such a case the accused is charged with one

offence, and it appears in evidence that he committed a

different offence for which he might have been charged

under  the  provisions  of  sub-section  (1),  he  may  be

convicted  of  the  offence  which  he  is  shown  to  have

committed, although he was not charged with it.  

Illustrations (a)  A  is  accused  of  an  act  which  may

amount to theft, or receiving stolen property, or criminal

breach  of  trust  or  cheating.  He  may  be  charged  with

theft, receiving stolen property, criminal breach of trust

and  cheating,  or  he  may  be  charged  with  having

committed theft, or receiving stolen property, or criminal

breach of trust or cheating.  

(b) In the case mentioned, A is only charged with theft. It

appears that he committed the offence of criminal breach

of  trust,  or  that  of  receiving  stolen  goods.  He may be

convicted  of  criminal  breach  of  trust  or  of  receiving

stolen  goods (as  the  case may be),  though he was not

charged with such offence.  

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(c)  A states on oath before the Magistrate that he saw B

hit C with a club. Before the Sessions Court A states on

oath  that  B  never  hit  C.  A  may  be  charged  in  the

alternative  and  convicted  of  intentionally  giving  false

evidence, although it cannot to be proved which of these

contradictory statements was false.

222.  When offence proved included in offence charged.  

(1) When a person is charged with an offence consisting

of  several  particulars,  a  combination  of  some  only  of

which  constitutes  a  complete  minor  offence,  and  such

combination is proved, but the remaining particulars are

not  proved,  he may be convicted  of the  minor offence

though he was not charged with it.   

(2)    When a person is charged with an offence and facts

are proved which reduce it to a minor offence, he may be

convicted  of  the  minor  offence,  although  he  is  not

charged with it.  

(3)   When a person is charged with an offence, he may

be  convicted  of  an  attempt  to  commit  such  offence

although the attempt is not separately charged.  

(4)   Nothing in this section shall be deemed to authorise

a conviction of any minor offence where the conditions

requisite  for  the  initiation of proceedings in respect  of

that minor offence have not been satisfied.  

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Illustrations (a) A is charged, under section 407 of the

Indian Penal Code (45 of 1860) with criminal breach of

trust in respect of property entrusted to him as a carrier.

It appears,  that  he did  commit criminal  breach of trust

under section 406 of that Code in respect of the property,

but that it was not entrusted to him as a carrier. He may

be convicted of criminal breach of trust under the said

section 406.  

(b) A is charged under section 325 of the Indian Penal

Code  (45  of  1860),  with  causing  grievous  hurt.  He

proves that he acted on grave and sudden provocation.

He may be convicted under section 335 of that Code.

464.  Effect of omission to frame, or absence of, or error in,

charge. (1) No finding, sentence or order by a Court of

competent jurisdiction shall be deemed invalid merely on

the ground that no charge was framed or on the ground

of  any  error,  omission  or  irregularity  in  the  charge

including  any  misjoinder  of  charges,  unless,  in  the

opinion of the Court of appeal, confirmation or revision,

a failure of justice has in fact been occasioned thereby.  

(2)   If the Court of appeal, confirmation or revision is of

opinion  that  a  failure  of  justice  has  in  fact  been

occasioned,  it  may-  (a)  in  the  case  of  an  omission  to

frame a charge, order that a charge be framed and that

the  trial  be  recommended  from the  point  immediately

after the framing of the charge.  

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(b)  in the case of an error, omission or irregularity in the

charge, direct a new trial to be had upon a charge framed

in whatever manner it thinks fit:  

Provided that  if  the Court  is  of  opinion  that  the

facts of the case are such that no valid charge could be

preferred  against  the  accused  in  respect  of  the  facts

proved, it shall quash the conviction.

6. A reading of the plain language of Section 221(1) and (2) shows that

if  a  single  act  or  series  of  acts  constitute  several  offences  and  the

prosecution is not certain about the particular offence then the accused can

be charged with the allegation of having committed all, some or any of the

offences.  In such a case the accused can be convicted of the offence with

which he may not have been specifically charged but evidence produced by

the prosecution proves that such an offence has, in fact,  been committed.

Section 222(1) lays down that when a person is  charged with an offence

consisting  of  several  particulars  and  combination  of  only  some  of  the

particulars constituting a minor offence is proved then he can be convicted

of the minor offence with which he may not have been charged.  Section

222(2) lays down that  when a person is  charged with an offence but  the

facts  proved  constitute  a  minor  offence then  he  can  be  convicted  of  the

minor offence despite the fact that he may not have been charged with that

offence.  Sub-section (3) of Section 222 lays down that a person charged

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with an offence,  can be convicted of  an attempt to commit such offence

even though a separate charge may not have been framed on that account.

Section 464 lays down that any error, omission or irregularity in the framing

of charge including any misjoinder of charges, will not invalidate a finding,

sentence  or  order  by a  court  of  competent  jurisdiction  unless  the higher

court  comes  to  a  conclusion  that  failure  of  justice  has  been  occasioned.

Sub-section (2) of Section 464 specifies the modes which can be adopted by

the Court of appeal, confirmation or revision, if such court is of the opinion

that a failure of the justice has been occasioned on account of non framing

of charge or any error, omission or irregularity in the framing of charge.

7. The  question  whether  omission  to  frame a  charge  or  any error  or

irregularity in the charge, is by itself, sufficient for quashing the conviction

of the accused was considered in Willie (William) Slaney vs. State of M.P.

[AIR 1956 SC 116].  After examining the issue in detail, the Constitution

Bench of this Court observed:-

“Before  we proceed  to  set  out  our  answer  and  examine  the

provisions of the Code, we will pause to observe that the Code

is a code of procedure and, like all procedural laws, is designed

to further the ends of justice and not to frustrate them by the

introduction of endless technicalities. The object of the Code is

to ensure that an accused person gets a full and fair trial along

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certain well-established and well-understood lines that accord

with our notions of natural justice.

      If he does, if he is tried by a competent court, if he is told

and clearly understands the nature of the offence for which he

is  being  tried,  if  the  case  against  him  is  fully  and  fairly

explained to him and he is afforded a full and fair opportunity

of  defending  himself,  then,  provided  there  is  ‘substantial’

compliance with the outward forms of the law, mere mistakes

in procedure, mere inconsequential errors and omissions in the

trial  are  regarded  as  venal  by  the  Code  and  the  trial  is  not

vitiated  unless  the  accused  can  show  substantial  prejudice.

That,  broadly  speaking,  is  the  basic  principle  on  which  the

Code is based.

Now here,  as in all  procedural  laws, certain things are

regarded as vital. Disregard of a provision of that nature is fatal

to the trial  and at once invalidates the conviction. Others are

not vital and whatever the irregularity they can be cured; and in

that  event  the  conviction  must  stand  unless  the  Court  is

satisfied that  there  was prejudice.  Some of these matters  are

dealt with by the Code and wherever that is the case full effect

must be given to its provisions.”

8. The Constitution Bench then referred to the provisions of Sections

225, 232, 535 and 537 of the Code of Criminal Procedure, 1898, which are

analogous to Section 215, 464 and 465 of the Code and held:

“Now,  as  we  have  said,  Sections  225,  232,  535  and  537(a)

between  them,  cover  every  conceivable  type  of  error  and

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irregularity  referable  to  a  charge  that  can  possibly  arise,

ranging  from cases  in  which  there  is  a  conviction  with  no

charge at all from start to finish down to cases in which there is

a charge but with errors, irregularities and omissions in it. The

Code is emphatic that ‘whatever’ the irregularity it is not to be

regarded as fatal unless there is prejudice.

  It  is  the  substance  that  we must  seek.  Courts  have  to

administer justice and justice includes the punishment of guilt

just  as  much as  the  protection  of  innocence.  Neither  can  be

done if the shadow is mistaken for the substance and the goal is

lost in a labyrinth of unsubstantial technicalities. Broad vision

is required, a nice balancing of the rights of the State and the

protection  of  society  in  general  against  protection  from

harassment to the individual and the risks of unjust conviction.

  Every reasonable presumption must be made in favour of

an  accused  person;  he  must  be  given  the  benefit  of  every

reasonable doubt. The same broad principles of justice and fair

play must  be  brought  to  bear  when  determining  a  matter  of

prejudice as in adjudging guilt. But when all is said and done

what we are concerned to see is whether the accused had a fair

trial, whether he knew what he was being tried for, whether the

main facts sought to be established against him were explained

to him fairly and clearly and whether he was given a full and

fair chance to defend himself.

If all these elements are there and no prejudice is shown

the conviction must stand whatever the irregularities whether

traceable to the charge or to a want of one.”

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9. In  Gurbachan Singh vs.  State  of  Punjab [AIR 1957  SC 623],  a

three Judges’ Bench considered the question of prejudice and observed:

“In judging a question of prejudice, as of guilt, courts must act

with  a  broad  vision  and  look  to  the  substance  and  not  to

technicalities, and their main concern should be to see whether

the accused had a fair trial, whether he knew what he was being

tried  for,  whether  the  main  facts  sought  to  be  established

against  him  were  explained  to  him  fairly  and  clearly  and

whether he was given a full and fair chance to defend himself.”

10. In Lakhjit Singh vs. State of Punjab [1994 Supp. (1) SCC 173], the

accused were charged and convicted of offence under Section 302 IPC.  The

High Court  upheld their conviction.  A two Judges’ Bench of this Court

held that charge under Section 302 IPC is not established but convicted the

appellants under Section 306 IPC.  While rejecting the argument that in the

absence of a specific charge under Section 306 IPC, the appellants cannot

be  convicted under that section, the Court observed:-

“The learned counsel, however, submits that since the charge

was for the offence punishable under Section 302 Indian Penal

Code, the accused were not put to notice to meet a charge also

made against them under Section 306 IPC and, therefore, they

are  prejudiced  by  not  framing  a  charge  under  Section  306

Indian Penal Code and; therefore, presumption under Section

113-A  of  Indian  Evidence  Act  cannot  be  drawn  and

consequently  a  conviction  under  Section  306  cannot  be

awarded. We are unable to agree. The facts and circumstances

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of the case have been put forward against  the accused under

Section 313 CrPC and when there was a demand for dowry it

cannot  be  said  that  the  accused  are  prejudiced  because  the

cross-examination  of  the  witnesses,  as  well  as  the  answers

given  under  Section  313  CrPC  would  show  that  they  had

enough of notice of the allegations which attract Section 306

Indian Penal Code also.”

11. In  Sangaraboina  Sreenu  vs.  State  of  A.P.  [1997  (5)  SCC  348],

another Bench of two Judges’ expressed a contrary view.  The facts of that

case were that the accused was convicted by the trial court under Section

302 IPC.  The High Court converted the conviction to one under Section

306 IPC.  While reversing the judgment of the High Court, this Court held:

“This  appeal  must succeed for the simple reason that  having

acquitted the appellant of the charge under Section 302 IPC —

which  was  the  only charge  framed against  him — the  High

Court  could  not  have  convicted  him  of  the  offence  under

Section  306 IPC. It  is  true  that  Section  222 CrPC entitles  a

court  to  convict  a  person  of  an  offence  which  is  minor  in

comparison to the one for which he is tried but Section 306 IPC

cannot be said to be a minor offence in relation to an offence

under  Section  302  IPC  within  the  meaning  of  Section  222

CrPC  for  the  two  offences  are  of  distinct  and  different

categories.  While  the  basic  constituent  of  an  offence  under

Section 302 IPC is homicidal death, those of Section 306 IPC

are suicidal death and abetment thereof.”

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12. In  view of  the  apparently  conflicting  judgments  of  the  coordinate

Benches,  the  issue was  referred to  a larger  Bench.   In  Dalbir Singh vs.

State of U.P. [2004 (5) SCC 334], a three Judges’ Bench considered the

provisions of Section 222 and 464 of the Code and observed:-

“Sub-section (1) of Section 222 lays down that when a person

is charged with an offence consisting of several particulars, a

combination  of  some  only  of  which  constitutes  a  complete

minor  offence,  and  such  combination  is  proved,  but  the

remaining particulars are not proved, he may be convicted of

the  minor  offence,  though  he  was  not  charged  with  it.  Sub-

section (2) of the same section lays down that when a person is

charged with an offence and facts are proved which reduce it to

a  minor  offence,  he may be  convicted  of  the  minor  offence,

although he is not charged with it. Section 222 CrPC is in the

nature  of  a  general  provision  which  empowers  the  court  to

convict  for  a  minor  offence  even  though  charge  has  been

framed for a major offence. Illustrations (a) and (b) to the said

section  also  make  the  position  clear.  However,  there  is  a

separate  chapter  in the Code of  Criminal  Procedure,  namely,

Chapter  XXXV which  deals  with  irregular  proceedings and

their  effect.  This  chapter  enumerates  various  kinds  of

irregularities  which have  the effect  of  either  vitiating  or  not

vitiating the proceedings. Section 464 of the Code deals with

the  effect  of  omission  to  frame,  or  absence  of,  or  error  in,

charge. Sub-section (1) of this section provides that no finding,

sentence or order by a court of competent jurisdiction shall be

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deemed  invalid  merely  on  the  ground  that  no  charge  was

framed or on the ground of any error, omission or irregularity

in  the charge including any misjoinder of charges,  unless,  in

the opinion of the court of appeal, confirmation or revision, a

failure  of  justice  has  in  fact  been  occasioned  thereby.  This

clearly  shows  that  any  error,  omission  or  irregularity  in  the

charge including any misjoinder of charges shall not result in

invalidating the conviction or order of a competent court unless

the appellate or revisional court comes to the conclusion that a

failure of justice has in fact been occasioned thereby.”

13. The  three  Judges’  Bench  then  referred  to  the  earlier  judgments  in

Willie (William) Slaney vs. State of M.P.  (supra),  Gurbachan Singh vs.

State of Punjab (supra) and observed:-

“There is a catena of decisions of this Court on the same lines

and  it  is  not  necessary  to  burden  this  judgment  by  making

reference to each one of them. Therefore, in view of Section

464 CrPC, it is possible for the appellate or revisional court to

convict  an  accused  for  an  offence  for  which  no  charge  was

framed unless the court is of the opinion that a failure of justice

would in fact occasion. In order to judge whether a failure of

justice  has  been  occasioned,  it  will  be  relevant  to  examine

whether the accused was aware of the basic ingredients of the

offence for which he is being convicted and whether the main

facts  sought  to be established against  him were explained to

him clearly and whether he got a fair chance to defend himself.

We are,  therefore,  of  the  opinion  that  Sangaraboina  Sreenu

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was  not  correctly  decided  as  it  purports  to  lay  down  as  a

principle  of  law  that  where  the  accused  is  charged  under

Section 302 IPC, he cannot be convicted for the offence under

Section 306 IPC.”

14. The ratio of the above noted judgments is that in certain situations an

accused can be convicted of an offence with which he may not have been

specifically  charged  and  that  an  error,  omission  or  irregularity  in  the

framing of charge is,  by itself  not  sufficient  for upsetting the conviction.

The appellate, confirming or revisional Court can interfere in such matters

only  if  it  is  shown that  error,  omission  or  irregularity  in  the  framing of

charge has caused prejudice to the accused and failure of justice has been

occasioned.  

15. Reverting to the facts of this case, we find that the appellant and his

co-accused were charged under Section 304B IPC.  The specific allegation

levelled against them was that they had subjected the deceased to cruelty for

or in connection with demand for dowry and she had died unnatural death

within seven years of her marriage.  Thus, the appellant knew that he was to

defend himself against the allegation of cruelty.  The cross-examination of

prosecution  witnesses  unmistakably  shows  that  the  defense  had  made

concerted effort to discredit the testimony of mother, sisters and brother of

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the deceased in the context of allegation of cruelty.  Not only this in his

statement under Section 313 of the Code, the appellant denied the allegation

that he had subjected his wife to cruelty.  It is thus evident that the appellant

was  not  only  aware  of  the charge  of  cruelty  but  he  got  and  availed  the

opportunity to defend himself with reference to that charge.  Therefore, it is

not possible to accept the submission of Shri Tulsi that omission of the trial

court to frame specific charge under Section 498A IPC had prejudiced the

cause of  his  client  or that  failure  of  justice  had been occasioned on that

count.

16. The  next  point  which  requires  consideration  is  whether  after

discarding  the  testimony  of  PW-1,  PW-6  and  PW-7  and  acquitting  the

appellant  of  the  charge  under  Section  304B IPC,  the  High  Court  could

convict him under Section 498A IPC.

17. Section 498A was added to the IPC by amending Act No.46 of 1983

in the backdrop of  growing menace of dowry related cases  in which the

women were subjected to cruelty and harassment and were forced to commit

suicide. This section lays down that if the husband or his relative subjects a

woman to cruelty, then he/she is liable to be punished with imprisonment

for a term which may extend to three years and shall also be liable to fine.

Explanation appended to this section defines the term ‘cruelty’ to mean any

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willful conduct which is of such a nature as is likely to drive the woman to

commit suicide or to cause grave injury or danger to life,  limb or health

(whether mental or physical) of the woman; or harassment of the woman

where such harassment is with a view to coercing her or any person related

to her to meet any unlawful demand for any property or valuable security or

is on account of failure by her or any person related to her to meet such

demand.

18. After three years, Section 304B was inserted by amending Act No.43

of 1986 to deal with cases involving dowry deaths occurring within seven

years  of  marriage.  Sub-section  (1)  of  Section  304B  IPC lays  down  that

where  the death  of  a woman is  caused by any burns  or bodily injury or

occurs otherwise than under normal circumstances within seven years of her

marriage and it  is shown that soon before her death she was subjected to

cruelty or harassment by her husband or any relative of her husband for, or

in  connection  with,  any  demand  for  dowry,  such  death  shall  be  called

‘dowry death’, and such husband or relative shall be deemed to have caused

her  death.  By virtue of  explanation  appearing  below sub-section  (1),  the

word  ‘dowry’  used  therein  carries  the  same  meaning  as  is  contained  in

Section 2 of The Dowry Prohibition Act, 1961.

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19. The ingredient of cruelty is common to Sections 304B and 498A IPC,

but the width and scope of two sections is different, inasmuch as Section

304B deals with cases of death as a result of cruelty or harassment within

seven years of marriage, Section 498A has a wider spectrum and it covers

all cases in which the wife is subjected to cruelty by her husband or relative

of the husband which may result in death by way of suicide or cause grave

injury or danger to life, limb or health (whether mental or physical) or even

harassment caused with a view to coerce the woman or any person related to

her to meet unlawful demand for property or valuable security.

20. In  order  to  bring  home  charge  under  Section  304B  IPC,  the

prosecution is required to establish that the death of the woman has been

caused  by  burns  or  bodily  injury  or  otherwise  than  under  normal

circumstances within seven years of her marriage and soon before her death,

the  woman is  subjected  to  cruelty  or  harassment  by  her  husband  or  his

relative.  However, for the purpose of conviction under Section 498A IPC, it

is sufficient to prove that the woman was subjected to cruelty, as elucidated

in the explanation appearing below substantive part of the section, by her

husband or his relative.   

21. A reading of  the  impugned judgment  shows that  after  recording a

finding that there was no evidence to prove that the deceased was treated

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with cruelty or harassment in connection with demand of dowry soon before

her death, the High Court referred to the judgments of this Court in Pyare

Lal vs. State of Haryana (supra) and Satpal vs. State of Haryana (supra)

and held that evidence on record clearly makes out an offence under Section

498A IPC against the appellant.   

22. Although the judgment under challenge does not contain an elaborate

discussion with reference to the ingredients of Section 498A IPC, having

carefully gone through the statements of  PW-1,  PW-6,  PW-7,  PW-14 and

PW-26, we are convinced that the prosecution succeeded in proving that the

appellant had subjected the deceased to cruelty within the meaning of clause

(a) of explanation appearing below Section 498A IPC and the mere fact that

the statements  of  three  of  them were not  found convincing  by the High

Court for sustaining the conviction of the appellant and his other co-accused

on the premise that all the ingredients of Section 304B IPC have not been

established is not sufficient to discard the prosecution case as a whole. PW-

1,  PW-6  (both  sisters),  PW-7  (mother)  and  PW-26  (brother)  have

categorically  deposed  that  immediately  after  marriage  the  deceased  was

given beating by the appellant, his brothers and was subjected to harassment

and  taunting  by  mother-in-law  and  sister-in-law  for  being  dark

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complexioned  and  illiterate/not  fluent  in  English.   Their  statements  also

show that the appellant had hit the deceased with a brick resulting in wound

on  her  head  which  had  to  be  stitched.   On  the  date  of  death  also,  the

deceased was subjected to physical torture and harassment.  Both the sisters

narrated that when they met the deceased, she was weeping and her eyes

were swollen.  Their testimony has been substantially supported by PW-14

Rakesh Malhotra.  He too stated that the deceased was subjected to beating

by her husband and she had suffered injury on her head. This part of the

prosecution case has not been disbelieved by the High Court which found

discrepancy only on the issue of demand of dowry.  The beating given to the

deceased and harassment to which she was subjected had direct bearing on

her committing suicide. Therefore, we are convinced that the High Court

did not commit any error in convicting the appellant under Section 498A

IPC.   

23. The judgments on which Shri Tulsi has placed reliance do not support

the cause of the appellant.  Rather, the judgment in  State of West Bengal

vs.  Orilal  Jaiswal  &  Another  (supra)  supports  the  conclusion  that  an

offence under Section 498A IPC is made out if the woman is subjected to

physical assault, humiliation, harassment and mental torture.   In Satpal vs.

State of Haryana (supra), this Court held that even though the prosecution

evidence was not sufficient to establish charge under Section 304 or 306

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IPC,  conviction  under  Section  498A  IPC  can  be  upheld  because  the

deceased was treated with cruelty by the appellant.  

24. In the result, the appeal is dismissed.  The appellant who is on bail,

shall be arrested for serving out the remaining sentence.   

……………………. J. (Altamas Kabir)

…………………….J. (G.S. Singhvi)

New Delhi August 18, 2008

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