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CASE NO.: Appeal (crl.) 907  of  1998

PETITIONER: SHAMNSAHEB M.MULTTANI

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       24/01/2001

BENCH: B.M.Agarwal, K.T.Thomas

JUDGMENT:

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     J  U D G M E N T THOMAS, J.  A bride in her  incipient twenties  was  whacked to death at her nuptial home.   After gagging  her mouth the assailants treated her for some  time as a football by kicking her incessantly and thereafter as a hockey puck by lambasting her with truncheons until she died of  bilateral  tension  haemothorax.  Her  husband  and  his brother  and father were indicted for her murder.  But  when all the material witnesses turned hostile to the prosecution the  trial  court,  being foreclosed  against  all  options, acquitted  them.  Undeterred by the said acquittal the State of  Karnataka made a venture by filing an appeal before  the High  Court  of  Karnataka.  A Division Bench  of  the  High Court,  looking at the factual matrix of the case,  lamented O  Tempora  O Mores as the learned judges said by  way  of prologue  that  it is virtually a matter of shame  that  in this  day  and date, indiscriminate attacks  and  abnormally high  degree of violence are directed against married  women in certain quarters and that the law is doing little to curb this  type of utterly obnoxious and anti-social activities. Learned  Judges after reaching a cul de sac, swerved over to a  different offence i.e.  dowry death and convicted one  of them  (the  husband) under section 304B of the Indian  penal Code  and awarded the maximum sentence of life  imprisonment prescribed  thereunder  on  him besides  Section  498A  IPC. However,  the  High court found helpless to bring the  other two accused to the dragnet of any offence.

     Thus, for the appellant (husband of the deceased) this appeal  became one of right under Section 379 of the Code of Criminal  Procedure (for short the Code) and under Section 2  of  Supreme  Court  (Enlargement  of  Criminal  Appellate Jurisdiction) Act, 1970.

     During  the  course  of arguments a  question  of  law cropped  up  as the appellant was not charged under  Section

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304B, IPC.  The question raised is this:  Whether an accused who  was  charged under Section 302 IPC could  be  convicted alternatively  under  Section  304-B IPC, without  the  said offence  being  specifically put in the charge.  The  answer appeared,  at the first blush, ingenuous particularly in the light  of  Section  221 of the Code.  But  as  we  proceeded further   we  noticed  that   the  question  has   intricate dimensions,  more so when this Court held divergent views on two  occasions though not on the identical point.  This case was,  however,  referred to be heard by a larger  Bench  and thus it came up before a bench of three judges.

     To  assist  us  in this matter we appointed  Sri  Uday Umesh  Lalit,  advocate  as  amicus  curiae.   He  with  his meritorious  efforts helped us considerably in the task.  We are beholden to him for the assistance rendered to us.

     Before  we  proceed  to  the question  of  law  it  is necessary  to delineate the synopsis of the case.  The bride was Tanima, whose marriage with the appellant was solemnized only  a few months prior to her tragic end.  It appears that Tanimas  father  had died much earlier.  A certain  amount, not  much,  was given to the bridegroom at the time  of  the marriage,  though the expenses of the wedding were borne  by the  brides  people.   After marriage Tanima lived  in  the house  of her husband for a couple of months.  But when  she paid  her first visit to her natal home she reported to  her mother  and  brothers  that  she   was  being  subjected  to pressures and harassment by her husband and by the other two accused  for  wangling  a further amount  of  Rupees  twenty thousand  from  her people.  She complained to  her  brother that  she was threatened that if the amount was not  brought she  would  be asked to leave the nuptial home once and  for all.

     On  completion  of her furlough at her parental  house the appellant went to take her back.  Then her brother (PW1- Mahaboobsab  Ammarngi) gave a sum of rupees five thousand to the  appellant and pleaded with him to be satisfied with it. Though  with  displeasure, as the amount  was  insufficient, appellant  collected it and allowed Tanima to escort him  to his  house.  A few days later Tanima conveyed to her  mother that  she  was again persecuted for not making up the  whole amount  demanded.  Once again appellant brought her back  to her parental home after subjecting her to physical assaults. PW1-Mahboobsab  Ammarngi,  on being told that  the  assaults were  meant  for meeting the demand for dowry, pleaded  with the  appellant  to desist from torturing his  young  sister. After  some haggling PW1 was able to pay a sum of rupees two thousand  more.   At  that time also appellant,  though  not fully  satisfied  with the pelf given, took her back to  his house.

     Within  two  months thereafter Tanima was killed.   On hearing  the  news on 17.10.1992 PW1 along with some of  his close  relatives set out to the house of the appellant.   On the way they met the appellant.  When they tried to confront him  with what they heard he skirted the subject and slipped away.  When they reached the house of the appellant they saw the mangled dead body of Tanima.

     Dr.   Tawaraj (PW7) conducted the autopsy on the  dead body  of  Tanima.  Though externally there were only  a  few abrasions  and  contusions the inside was found  very  badly mauled.   The rib on the right side was fractured, both  the

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lungs  were collapsed, the thorasic cavity contained 200 ml. of  blood.   The peritoneum was soaked in blood,  liver  and spleen  were  massively  lacerated  and  ruptured  at  three places.   Though  prosecution examined PW3 and PW4 who  were neighbours to say that they saw the three accused inflicting incessant  assaults  on Tanima and PW6 was examined  to  say that  appellant  made an extra-judicial confession  to  him, they  all  turned hostile and did not speak  as  prosecution expected.   The  remaining  evidence was not  sufficient  to establish  that all or any of the accused had inflicted  the injuries  on  Tanima.  Consequently, prosecution  failed  to prove  that  the accused caused the death of  the  deceased. The  trial court did not make any other endeavour and  hence found the accused not guilty and acquitted them.

     Learned  Judges of the High Court found that there  is no  evidence  against  A-2 Meerasaheb Karim  Saheb  and  A-3 Mahaboom   Meerasaheb.    However,  in   the  case  of   A-1 (appellant)  the Division Bench was in confusion as it found that  prosecution proved beyond all reasonable doubt that it was  appellant  who killed Tanima.  The relevant portion  of paragraph 14 of the judgment of the Division Bench delivered by  Saldana, J, is extracted below:  We hold that there  is sufficient  direct and circumstantial evidence in this  case to   prove  beyond  all  reasonable   doubt  that  A-1   was responsible  for  tying deceased Tanima and  assaulting  her with  the metal rod as also brutally and mercilessly kicking her  in the course of this assault all of which resulted  in her death.  The nature of the incident and the fact that she succumbed  to  the  cruelty would clearly  bring  this  case within the ambit of Section 304 IPC.

     But  the operative portion of the judgment reads thus: The  appeal  partially  succeeds.  The order  of  acquittal passed  in  favour  of original accused Nos.2 and  3  stands confirmed.   As  far  as  the   original  accused  No.1   is concerned,  the  order of acquittal passed in his favour  by the  Trial Court is set aside.  A-1 stands convicted of  the offence  punishable under Section 498-A IPC and is sentenced to  RI  for  3 years.  He is also convicted of  the  offence punishable  under  Section 304-B IPC and is sentenced to  RI for life, substantive sentence to run concurrently.

     Initially  we thought that there might have been  some typographical  or other errors in the above first  extracted portion  of the judgment produced before us but we found the said portion remaining the same even in the judgment sent up by  the  High Court along with the records.  We may take  it that  learned  Judges did not intend to speak what  is  seen recorded  in  the  paragraph 14 of the  judgment  (extracted above)  and that the High Court only proposed to convict the appellant  under Sections 304-B and 498-A IPC.  But even  on that  aspect  Saldana,  J,  made an  observation  which  is, unfortunately, not true to facts.  That observation is this: Coming  to the charge under Section 304-B IPC, this section was incorporated in the year 1986 by the legislature for the purpose  of dealing with instances of dowry death.  Counsel for  both sides submitted that no charge was framed  against the  accused  for the offence under Section 304-B  IPC.   We perused the original charge framed by the Sessions Court and noticed  that there was no such count included in the charge at  all.   If so, we may say, euphemistically, that  learned Judges  committed  a serious error in assuming that  Section 304-B  IPC  was  included in the charge framed  against  the appellant.

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     Be  that as it may.  The question raised before us  is whether  in  a  case where prosecution failed to  prove  the charge  under  Section  302  IPC,   but  on  the  facts  the ingredients  of section 304-B have winched to the fore,  can the  court convict him of that offence in the absence of the said offence being included in the charge.

     Sections  221  and  222  of   the  Code  are  the  two provisions  dealing  with the power of a criminal  court  to convict  the accused of an offence which is not included  in the  charge.   The  primary  condition  for  application  of section  221 of the Code is that the court should have  felt doubt, at the time of framing the charge, as to which of the several  acts  (which  may be proved)  will  constitute  the offence  on  account of the nature of the acts or series  of acts  alleged  against  the  accused.  In such  a  case  the section  permits to convict the accused of the offence  of which  he  is  shown  to have committed though  he  was  not charged  with it. But in the nature of the acts alleged  by the  prosecution in this case there was absolutely no  scope for  any doubt regarding the offence under Section 302  IPC, at least at the time of framing the charge.

     Section  222(1) of the Code deals with a case when  a person  is  charged  with an offence consisting  of  several particulars.   The Section permits the court to convict the accused  of  the minor offence, though he was  not  charged with it. Sub-section (2) deals with a similar, but slightly different,  situation.   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.

     What  is meant by a minor offence for the purpose of Section  222  of the Code?  Although the said expression  is not defined in the Code it can be discerned from the context that  the  test  of  minor offence is not  merely  that  the prescribed  punishment is less than the major offence.   The two  illustrations  provided in the section would bring  the above point home well.  Only if the two offences are cognate offences,  wherein the main ingredients are common, the  one punishable among them with a lesser sentence can be regarded as minor offence vis-Ã -vis the other offence.

     The composition of the offence under Section 304-B IPC is  vastly  different from the formation of the  offence  of murder  under Section 302 IPC and hence the former cannot be regarded  as  minor offence vis-Ã -vis the latter.   However, the  position  would  be  different  when  the  charge  also contains  the  offence under Section 498-A IPC  (Husband  or relative  of husband of a women subjecting her to  cruelty). As the word cruelty is explained as including, inter alia, 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.

     So  when  a  person is charged with an  offence  under Sections  302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a  demand for dowry, within a period of 7 years of marriage, a  situation may arise, as in this case, that the offence of murder   is   not  established  as  against   the   accused.

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Nonetheless  all other ingredients necessary for the offence under  Section  304-B IPC would stand established.  Can  the accused  be  convicted in such a case for the offence  under Section  304-B IPC without the said offence forming part  of the charge?

     A two Judge Bench of this Court (K.  Jayachandra Reddy and  G.N.  Ray, JJ) has held in Lakhjit Singh and anr.   vs. State  of  Punjab  {1994  Supple.  (1) SCC 173}  that  if  a prosecution  failed  to establish the offence under  Section 302  IPC, which alone was included in the charge, but if the offence  under Section 306 IPC was made out in the  evidence it  is  permissible for the court to convict the accused  of the latter offence.

     But  without reference to the above decision,  another two  Judge  Bench  of this Court (M.K.  Mukherjee  and  S.P. Kurdukar,  JJ) has held in Sangaraboina Sreenu vs.  State of A.P.   {1997 (5) SCC 348} that it is impermissible to do so. The  rationale advanced by the Bench for the above  position is  this:   It is true that Section 222 CrP.C.  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  Cr.P.C.   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.

     The  crux  of  the  matter is this:   Would  there  be occasion  for a failure of justice by adopting such a course as  to convict an accused of the offence under Section  304B IPC  when all the ingredients necessary for the said offence have  come out in evidence, although he was not charged with the  said  offence?  In this context a reference to  Section 464(1)  of  the Code is apposite:  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. (emphasis supplied)

     In  other  words, a conviction would be valid even  if there  is  any  omission  or  irregularity  in  the  charge, provided it did not occasion a failure of justice.

     We  often  hear about failure of justice  and  quite often the submission in a criminal court is accentuated with the said expression.  Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as  an  etymological chameleon (The simile is borrowed  from Lord  Diplock  in Town Investments Ltd.  vs.  Department  of the  Environment  {1977(1)  All England  Report  813}.   The criminal  court, particularly the superior court should make a  close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

     One  of the cardinal principles of natural justice  is that  no man should be condemned without being heard, (Audi alterum  partem).   But  the law reports are  replete  with

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instances  of  courts hesitating to approve  the  contention that  failure  of  justice had occasioned merely  because  a person  was  not heard on a particular aspect.  However,  if the  aspect  is of such a nature that non-explanation of  it has  contributed  to  penalising an  individual,  the  court should  say  that since he was not given the opportunity  to explain  that aspect there was failure of justice on account of non-compliance with the principle of natural justice.

     We have now to examine whether, on the evidence now on record  the  appellant can be convicted under Section  304-B IPC without the same being included as a count in the charge framed.   Section 304-B has been brought on the statute book on  9-11-1986  as a package along with Section 113-B of  the Evidence  Act.   Section 304-B(1) IPC reads  thus:   304-B. Dowry  death.-  (1) 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.

     In  the Explanation to the Section it is said that the word  dowry  shall be understood as defined in  the  Dowry Prohibition Act, 1961.

     The  postulates  needed to establish the said  offence are:   (1)  Death of a wife should have  occurred  otherwise than  under  normal circumstances within seven years of  her marriage;   (2)  soon before her death she should have  been subjected  to  cruelty  or  harassment  by  the  accused  in connection  with any demand for dowry.  Now reading  section 113B of the Evidence Act, as a part of the said offence, the position  is  this:  If the prosecution succeeds in  showing that  soon  before  her death she was subjected  by  him  to cruelty  or harassment for or in connection with any  demand for  dowry  and  that her death had occurred  (within  seven years   of  her  marriage)   otherwise  than  under   normal circumstances  the court shall presume that such person had caused dowry death.

     Under  Section  4 of the Evidence Act whenever it  is directed  by this Act that the Court shall presume the  fact it  shall regard such fact as proved unless and until it  is disproved.  So the court has no option but to presume  that the  accused  had  caused  dowry death  unless  the  accused disproves  it.   It is a statutory compulsion on the  court. However  it  is open to the accused to adduce such  evidence for  disproving  the  said compulsory  presumption,  as  the burden  is  unmistakably on him to do so.  He can  discharge such  burden  either  by eliciting  answers  through  cross- examination  of  the  witnesses  of the  prosecution  or  by adducing evidence on the defence side or by both.

     At this stage, we may note the difference in the legal position  between the said offence and section 306 IPC which was  merely an offence of abetment of suicide earlier.   The section  remained in the statute book without any  practical use  till 1983.  But by the introduction of Section 113A  in the  Evidence Act the said offence under Section 306 IPC has acquired wider dimensions and has become a serious marriage- related offence.  Section 113A of the Evidence Act says that under  certain conditions, almost similar to the  conditions

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for  dowry death the court may presume having regard to the circumstances  of  the  case,  that such  suicide  has  been abetted  by  her  husband etc. When the law says  that  the court  may presume the fact, it is discretionary on the part of  the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case.   As there is no compulsion on the court to act on the presumption  the  accused  can persuade  the  court  against drawing a presumption adverse to him.

     But  the  peculiar situation in respect of an  offence under  Section 304B IPC, as discernible from the distinction pointed  out  above in respect of the offence under  Section 306 IPC is this:  Under the former the court has a statutory compulsion,  merely  on  the establishment  of  two  factual positions  enumerated above, to presume that the accused has committed  dowry death.  If any accused wants to escape from the  said catch the burden is on him to disprove it.  If  he fails  to rebut the presumption the court is bound to act on it.

     Now take the case of an accused who was called upon to defend  only a charge under Section 302 IPC.  The burden  of proof  never  shifts  on  to him.  It ever  remains  on  the prosecution  which  has  to  prove  the  charge  beyond  all reasonable  doubt.   The  said   traditional  legal  concept remains  unchanged even now.  In such a case the accused can wait  till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against  him.   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 offence  under Section 304B IPC, as he was defending a charge under Section 302  IPC alone, would it not lead to a grave miscarriage  of justice  when  he is alternatively convicted  under  Section 304B  IPC and sentenced to the serious punishment prescribed thereunder,   which   mandates   a   minimum   sentence   of imprisonment for seven years.

     The serious consequence which may ensue to the accused in  such a situation can be limned through an illustration:- If  a bride was murdered within seven years of her  marriage and  there was evidence to show that either on the  previous day  or  a  couple  of days earlier  she  was  subjected  to harassment  by  her  husband  with demand  for  dowry,  such husband  would  be guilty of the offence on the language  of Section  304-B  IPC read with Section 113-B of the  Evidence Act.   But if the murder of his wife was actually  committed either  by a decoit or by a militant in a terrorist act  the husband can lead evidence to show that he had no hand in her death  at all.  If he succeeds in discharging the burden  of proof  he is not liable to be convicted under Section  304B, IPC.   But if the husband is charged only under Section  302 IPC  he  has no burden to prove that his wife  was  murdered like  that  as he can have his traditional defence that  the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.  The above illustration would  amplify  the gravity of the consequence befalling  an accused  if  he  was  only asked to defend  a  charge  under Section  302  IPC  and  was  alternatively  convicted  under Section  304B  IPC without any notice to him, because he  is deprived  of the opportunity to disprove the burden cast  on him by law.

     In such a situation, if the trial court finds that the

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prosecution  has  failed to make out the case under  Section 302  IPC,  but the offence under Section 304-B IPC has  been made out, the court has to call upon the accused to enter on his  defence  in  respect  of  the  said  offence.   Without affording  such an opportunity to the accused, a  conviction under  Section  304-B  IPC would lead to  real  and  serious miscarriage  of justice.  Even if no such count was included in  the charge, when the court affords him an opportunity to discharge  his burden by putting him to notice regarding the prima  facie  view  of  the court that he is  liable  to  be convicted  under  Section  304B IPC, unless he  succeeds  in disproving  the presumption, it is possible for the court to enter  upon a conviction of the said offence in the event of his failure to disprove the presumption.

     As the appellant was convicted by the High Court under Section 304-B IPC, without such opportunity being granted to him,  we  deem  it necessary in the interest of  justice  to afford  him  that opportunity.  The case in the trial  court should  proceed against the appellant (not against the other two  accused whose acquittal remains unchallenged now)  from the  stage  of defence evidence.  He is put to  notice  that unless  he  disproves  the presumption, he is liable  to  be convicted  under section 304-B IPC.  To facilitate the trial court to dispose of the case afresh against the appellant in the  manner indicated above, we set aside the conviction and sentence passed on him by the High Court and remand the case to the trial court.