Report No. 202

3.8 Different offences arising from the same facts:

3.8.1 Offences under different Sections of the Indian Penal Code,1860 are distinct offences. A person can be convicted under more than one Section if the conditions of the charged Sections are satisfied in a given case. Thus, in Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148, a case of dowry death, the accused husband was charged and convicted by trial court under Section 302 read with Section 120B, IPC for committing murder of his wife Vijaya.

He was also found guilty under Sections 201/34, Sections 498A/34 and Sections 304B/34 IPC. He was awarded the sentence of death for the offence under Section 302 read with Section 304B; to R1 for seven years for the offence under Sections 201/34; to R1 for three years and a fine of Rs.500/- in default R1 for three months for Sections 498A/34; and R1 for seven years for Sections 304B/34 offence, the same being the minimum sentence prescribed under the law.

On appeal to High Court, conviction under Sections 304B/34 IPC was set aside. But conviction under other Sections were confirmed when the matter came up before the Supreme Court, the following observations were made which have material bearing on the issue under consideration. The Supreme Court thus observed:

"9.The present was thus a undermost foul, as pointed out by us in the opening paragraph. The motive was to get another girl for the appellant who could get dowry to satisfy the greed oft the father. Dowry deaths are blood-boiling, as human blood is spilled to satisfy raw greed, naked greed; a greed which has no limit. Nonetheless, the question is whether the extreme penalty was merited in the present case?

10. We have given considered thought to the question and we have not been able to place the case in that category which could be regarded as the "rarest of the rare" type. This is so because dowry death has ceased to belong to that species of killing. The increasing number of dowry deaths would bear this. To halt the rising graph, we, at one point, thought to maintain the sentence; but we entertain doubt about the deterrent effect of a death penalty. We, therefore, resist ourselves from upholding the death sentence, much though we would have desired annihilation of a despicable character like the appellant before us. We, therefore, commute the sentence of death to one of R1 for life imprisonment."

3.8.2 The conviction under Sections 201/34 was sustained but the sentence was directed to run consecutively and not concurrently to show Court's strong disapproval of the loathsome, revolting and dreaded device adopted to cause disappearance of the dead body. Convictions under other Sections namely, Sections 316, 498A/34 were set aside.

3.8.3 On the other hand, merely because accused has been acquitted under Section 302, IPC, presumption as to dowry death does not stand automatically rebutted (See Alamgir Sani v. State of Assam, AIR 2003 SC 2108). Furthermore, even if accusation under Section 304 B fails, a person can be convicted under Section 498A notwithstanding that cruelty is common essential to both the Sections. A person can also be convicted under Section 306 though accusation under Section 304B fails. (See Hira Lal and others v. State (Govt. of NCT), Delhi, AIR 2003 SC 2865, see also Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828.

3.8.4 Thus, it may be seen that the offence of murder is not the same thing as the offence of dowry death under Section 304B though death of bride may be a common element in both the offences. The absence of direct connection between the husband and the death of wife distinguished offence of dowry death from the offence of murder.

This is a strong mitigating factor as has been held by the Supreme Court in the case of Hem Chand v. State of Haryana, (1994) 6 SCC 727. It may be relevant to note that in this case, the Supreme Court has gone to the extent that even life imprisonment under Section 304B should not be awarded as a matter of routine in all cases of dowry deaths but only in rare cases. After quoting Section 304B, the Supreme Court observed:

"The point for consideration is whether the extreme punishment of life imprisonment for life is warranted in the present case. A reading of Section 304B, IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of marriage, the deceased has been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry.

If that is shown, the Court shall presume that such person has caused the dowry death. It can, therefore, be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise, there is a presumption under Section 113B of the Evidence Act as to the dowry death.

It lays down that the Court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically, this is the presumption that has been incorporated in Section 304B IPC also. It can, therefore, be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied.

In the instant case, no doubt, the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 IPC. Therefore, at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304B would be attracted.

But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As mentioned above, Section 304B, IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore, awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."

3.8.5 From the aforesaid analysis, the following proposition emerges:

1. The offence of dowry death in Section 304B, IPC does not fall into the categories of the offences for which death penalty has been provided in the Penal Code.

2. Dowry death is different from the offence of murder. Death of a bride may fall under both the categories of offences, namely, murder and dowry death, in which case, death sentence may be awarded for committing the offence of murder in appropriate cases depending upon the facts and circumstances of each case.

3. Dowry death per se does not involve the direct connection between the accused and the offence because of its presumptive character. Where the evidence in a given case clearly shows that the accused willfully put human life to peril, the case will attract the provisions of Sections 300 r/w 302 and it will no longer be a case of dowry death simpliciter. In view of the aforesaid, there is no justification for amending Section 304B to provide for death penalty. Such penalty will also not be in conformity with the principle of proportionality.

3.8.6 During the course of deliberations in the Commission, suggestions were received that if the Section was not being amended to provide for death sentence, then at least the minimum imprisonment of seven years under the section should be raised to ten years. This has been also one of the recommendations of the National Commission for Women, and has been referred to earlier in this chapter. The reason ascribed for this is that a victim of dowry death is generally forced to undergo long and persistent torture before being killed. There seems to be much substance in this recommendation and we concur in it. The recommendations of the National Commission for Women are already before the Government. It is for the Government to take an appropriate view on the above recommendation.