Shamnsaheb
M.Multtani Vs. State of Karnataka [2001] Insc 39 (24 January 2001)
B.M.Agarwal,
K.T.Thomas Thomas, J.
L.J
J U D
G M E N T
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 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 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.
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-à-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-à-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.
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 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 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 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.
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