2023 INSC 933 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023

(@ SPECIAL LEAVE PETITION (CRL.) NO.12216 OF 2022)

PARANAGOUDA AND

ANOTHER ...APPELLANTS

VERSUS

THE STATE OF KARNATAKA

AND ANOTHER ….RESPONDENTS

J U D G M E N T

Aravind Kumar, J.

1. Leave granted.

2. The judgment dated 20.07.2022 passed by High Court of

Karnataka, Dharwad Bench dismissing the Criminal Appeal No.2847

of 2012 by affirming the judgment and order of sentence convicting

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the appellants passed by the Sessions Judge, Bagalkot in S.C. No.35

of 2011 dated 14.09.2012 for the offences punishable under Section

498A, 304B read with Section 34 of IPC and Section 3 and 4 of

Dowry Prohibition Act (for short the ‘DP Act’) has been called in

question.

FACTUAL BACKGROUND

3. The third daughter of the complainant (Shri Chandappa Gooli)

named Akkamahadevi was married to second respondent/accused

No.1 herein on 16.05.2010. A complaint came to be lodged by Sri

Chandappa Gooli, father of the deceased on 20.12.2010 alleging

thereunder that a dowry of Rs. 31,000 and 1.5 tolas of gold was given

at the time of marriage and additional dowry of Rs. 50,000 and gold

was demanded after two months of marriage. It was alleged that

accused No.1 and his parents (appellants) gave physical and mental

torture to his daughter and unable to bear the same she committed

suicide by self-immolating namely by pouring kerosene and lighting

fire. A dying declaration came to be recorded on 20.12.2010 and she

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died on 24.12.2010 due to burn injuries. Initially FIR came to be

registered in Crime No.143 of 2010 for the offences punishable under

Section 323, 498A read with Section 34 of IPC and 504 of IPC and

Sections 3 and 4 of the DP Act and on her death on 24.12.2010,

Section 304B of IPC was added. On completion of investigation

charge-sheet came to be filed and the jurisdictional sessions judge

took cognizance of the offence alleged against the accused persons

namely husband-accused No.1 (R-2 herein), appellant No’s 1 and 2

herein (accused No.2 and 3) and Smt. Ningamma accused No.4. On

behalf of the prosecution, 32 witnesses were examined as PW-1 to

PW-32 and they got marked 50 documents as Ex.P-1 to P-50 and three

material objects as MO 1 to MO 3. On closure of prosecution side, the

accused were examined and their statements also came to be recorded

under section 313 of Cr.P.C. Accused No.4 (mother of accused No.3)

had expired on 28.02.2012 and as such the proceedings against her

stood abated. After hearing the learned Public Prosecutor and the

learned advocates appearing for accused No. 1 to 3, they came to be

convicted for the offences alleged against them. The learned Trial

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Judge had convicted the accused by relying upon the dying declaration

(Ex.P.45) and sentenced them to undergo 7 years of simple

imprisonment for the offence under Section 304B, five years of simple

imprisonment for the offence under Section 3 of Dowry Prohibition

Act, one year of simple imprisonment for the offence under Section

498A r/w Section 34 of IPC and one year of simple imprisonment for

the offence under Section 4 of Dowry Prohibition Act with fine of Rs.

1000 for each of the offences under Section 498A, 304B and Section 4

of DP Act for each of the accused and in default to undergo further

simple imprisonment for a period of 3 months, and fine of Rs. 31,000

each for the offence under Section 3 of DP Act with default sentence

of three months. All sentences were ordered to run concurrently.

4. Being aggrieved by said judgment, appeal came to be preferred

on various grounds and primarily on the ground that deceased had

suffered burn injuries to the extent of 70-80% and she was not in a

position to speak. It was also contended that Doctor PW-32 who had

certified that deceased was able to speak had not even recorded the

blood pressure and pulse rate of the deceased in the case-sheet and the

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treated doctor PW-31 has also admitted that general condition of the

deceased was poor at the time of admission to the hospital itself. It

was also urged that evidence which was available before the trial court

was not appreciated in proper perspective and mere dying declaration

cannot be the sole basis of conviction unless it was corroborated. It

was also contended that none of the prosecution witnesses supported

the story of prosecution and they had turned hostile and as such

learned Session Judge ought not to have convicted the accused

persons.

5. The High Court by the impugned judgement having formulated

points for its consideration vide paragraph 18 of the impugned

judgment, has answered the points formulated, in favour of the

prosecution and against the accused by holding that dying declaration

was recorded properly and same is proved by taking into consideration

the contents of the same and the evidence of Tehsildar who recorded

the same as well as the evidence of Doctor PW-31 who treated the

deceased and had issued Ex.P-46 (case sheet of deceased Mahadevi).

Hence, this appeal.

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6. We have heard the arguments of the learned advocates

appearing for the parties. Learned advocate appearing for the

appellants contends that dying declaration is neither true nor voluntary

statement of deceased as she was not physically or mentally fit to

make any declaration and undisputedly the parents of the deceased

had not supported the case of the prosecution. He would also contend

that doctor who had examined the deceased and treated her has clearly

deposed that deceased was suffering from breathlessness when

brought to the hospital and he had also certified that she had suffered

70 to 80% burn injuries and thereby making her physically and

mentally incapacitated to give any declaration or make any statement.

7. Per contra Shri V.N. Raghupathy, learned Standing Counsel

appearing for the State by supporting the judgment of both the courts

would submit that there is no cogent material to displace the findings

recorded by the courts below. He would also contend that dying

declaration cannot be brushed aside merely because deceased had

suffered 70% to 80% burn injuries and this cannot be a ground to set

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aside the conviction. He would submit that Doctor PW-31 had

deposed in clear terms that deceased was mentally fit to make

statement and as such no doubt can be raised as regards the mental

capacity of the deceased to make statement wherein she had assigned

the reasons for her self-immolation. Hence, he prays for rejection of

the appeal.

DISCUSSION, FINDINGS AND CONCLUSION

8. The facts narrated hereinabove would suffice for examining as

to whether the orders of the courts below requires to be sustained or

modified or set aside. Elaborate narration of factual aspects would

only burden this judgment and as such we desist from doing so, except

to the extent required.

9. The solemnisation of marriage between second respondent and

Mrs. Akkamahadevi on 16.05.2010 is not in dispute. She having died

on 24.12.2010 due to burn injuries sustained on 20.12.2010 is also not

in dispute.

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9.1 The gist of the prosecution case is that there was consistent

demand for dowry and deceased was tortured for additional dowry and

unable to sustain the physical and mental torture meted out to her, she

had committed suicide by self-immolation viz, by pouring kerosene

and lighting herself.

9.2 The complainant, PW-24 who is the father of the deceased has

not supported the case of the prosecution and he has deposed that

accused had looked after the deceased well. Long and short of the

deposition of PW-24 (father of deceased) is that he did not support the

case of the prosecution. PW-1 witness to the inquest panchanama too

has turned hostile. The neighbours of the house where the deceased

was residing namely PW-3 and PW-4 have turned hostile. PW-5 and

PW-21 whom the prosecution claimed of having known the fact of ill-

treatment given by the accused to the deceased have turned hostile.

The persons who are said to have advised the accused not to ill-treat

the deceased have also turned hostile. The persons who were present

during the marriage talks of the deceased and accused No.1 namely

PW-7 to PW-9 have also not supported the case of the prosecution.

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Other witnesses namely PW-10, 11, 12, 19, 18, 30 as well as the

mother of the deceased PW-22 have not supported the case of the

prosecution. Dr. Suresh Basarkod (PW.26) who tendered the case

sheet attested by casualty medical officer of Kumareshwar Hospital,

Bagalkot, where deceased was admitted, has deposed that Dr. Pramod

Mirji (PW-31) and Dr. Vishwanath are competent to speak about

medical treatment extended to Mahadevi (deceased). However, Dr.

Vishwanath was not examined.

9.3 Dr. Pramod Mirji has been examined as PW-31 and he has

stated that deceased was conscious and she was complaining of pain.

He has further deposed to the following effect:

“The patient was conscious and she was complaining of

pain. There were burn injuries over entire body excepted

face. The injured has burn injuries of 70% -80%. The

patient was in a position to speak. She was under my

treatment till she died on 24.12.2010 at about 5.15 a.m.

Now I see Ex.P-46 and it is Xerox copy of case sheet of the

said injured. In case sheet Ex.P-46 I have mentioned that

the patient was under agony due to pain and pulse not filed

and B.P. was not recordable and therefore I have opined

that general condition of patient was poor.”

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Perusal of his cross-examination would indicate that he had treated the

deceased for four days and the pulse rate and blood pressure was not

recorded on the day of admission and it is kept blank in the case sheet

Ex.P-46. He also admits that entries in the case sheet would reflect

that the general condition of the deceased was poor. He further admits

that blood pressure of the deceased was not recordable and pulse was

feeble. He further admits that deceased was suffering from

breathlessness as per the entries found in Ex.P-46 (case sheet). He has

also admitted that even though patient was conscious at times the

patient had not been in a position to talk.

9.4 Dr. Mahalingappa Kori (PW32) who was CMO at

Kumareshwar Hospital, Bagalkot during the relevant period when the

dying declaration (Ex.P-45) was recorded has deposed that he was

working as casualty medical officer at the hospital on 20.12.2010 from

2:00 PM to 8:00 PM. He has further deposed that Tahasildar (PW25)

had expressed his intention to record the dying declaration of injured

Mahadevi and he had requested him to be present at the time of

recording of the statement. He states that he examined Mahadevi at

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that time and she was conscious and in a condition to speak. He also

states that the statement of Mahadevi was recorded between 4:20 PM

to 5:15 PM. He has identified his endorsement and signature at Ex-

P45(b) on the dying declaration.

10. Taluka executive Magistrate Basappa Laxmappa Gothe PW-25

is said to have recorded the dying declaration of the deceased as per

Ex.P-45, based on which the accused has been convicted by the trial

court and affirmed by the High Court. PW25 who was the Tahasildar

at Bagalkot during the relevant period has deposed that he was

working as Tahasildar in Bagalkot from 08/07/2009 to 27/04/2011. He

has deposed that Dr. Mahalingappa Kori (PW32) was present when he

recorded the statement of Mahadevi from 4:20 PM to 5:15 PM. He

further deposes that Dr. MC Kori had talked to the deceased and

found that she was in a fit condition to give statement. He further

deposes that he was also convinced that Mahadevi was fit to give

statement. He has identified the statement recorded by him as Ex-P45

and also the LTM of the deceased found in Ex-P45. He has deposed

that doctor was present throughout the time of recording of statement

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and the signature & endorsement of the doctor marked as Ex-P45(b)

has been identified. PW25 had also conducted inquest panchnama

(Ex.P-1) & recorded the statement of Renavva Chandappa Guli

(PW22) and he has identified his signature found on the statement of

PW22 (Ex.P40) as Ex.P-40(a). He has denied the suggestion that

deceased Mahadevi had not given any statement.

11. The learned Sessions judge has referred to the judgment of this

Court in the case of Salim Gulab Pathan vs. State of Maharashtra

(2012) 6 SCC 606 whereunder it has been held that dying declaration

can be the sole basis of conviction if it inspires full confidence of the

court. Yet another judgment of this Court in the case of Atbir vs.

Government (2010) 9 SCC 1 which is to the same effect has also been

relied upon by the Sessions Judge to convict the accused, whereunder

it has been held that dying declaration can be the sole basis for

conviction.

“(a) If it satisfies the conscience of the court that deceased

was in a fit state of mind at the time of making the

statement and that it was not a case of prompting or

imagination;

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(b) It is true and voluntary and no further corroboration is

required;

(c) It is not suspicious.”

It has also been observed therein that rule requiring

corroboration is merely a rule of prudence. If the dying declaration

discloses that deceased was unconscious or could never have made

any statement, the conviction cannot be sustained. Even non-

mentioning of minute details cannot be a ground to reject the said

declaration and brief statement would suffice. If the evidence on

record would suggest that the deceased was not in a fit condition to

make statement or declaration, the medical opinion cannot prevail.

12. In the instant case, we notice from the facts that the deceased

had self-immolated. A plain reading of the dying declaration Ex.P-45

recorded by PW-25 would indicate that reason for self-immolation by

the deceased was on account of her inability to tolerate the torture

meted out by the accused persons and she was not able to withstand

the same and as such she self-immolated in the agricultural land. The

physical disability suffered by her on account of the burn injuries

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sustained would not disentitle her to make statement, if said statement

had been made consciously knowing the consequences thereof and

such statement or declaration cannot be brushed aside only on the

ground of burn injuries (in the instant case 70% to 80%) having been

sustained by her. As such, the contention raised by the learned

advocates appearing for the appellants cannot be accepted or in other

words the dying declaration cannot be brushed aside. The acceptance

of the dying declaration by the court below is just a proper and under

similar circumstances, this Court, in the case of Kamlavva And Anr

Vs. State of Karnataka (2009) 13 SCC 614 has held that even in

circumstances where the burn injuries was to the extent of 70% to

80% the dying declaration can be accepted and it has been further held

to the following effect.

“20. The next and the most vital issue which was raised is

regarding the admissibility of the dying declaration stated

to have been made by the deceased before her death.

Before dealing with the factual aspect of the dying

declaration, it would be necessary to know the exact legal

position which has been laid down and reiterated by this

Court time and again.

21. The question as to admissibility of a dying declaration

came up before this Court in several cases. In Laxman v.

State of Maharashtra, wherein also a question regarding the

admissibility of the dying declaration was raised, the

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Constitution Bench held that the Court must decide that the

declarant was in a fit state of mind to make the declaration,

but where the eyewitnesses' evidence including the

evidence of a Magistrate who had recorded the dying

declaration to that effect was available, mere absence of

doctor's certification as to the fitness of the declarant's state

of mind, would not ipso facto render the dying declaration

unacceptable. It was further held that the evidentiary value

of such dying declaration would depend upon the facts and

circumstances of each particular case.

22. In para 3 of the said judgment in Laxman case, this

Court discussed the juristic theory regarding acceptability

of a dying declaration in the following manner: (SCC p.

713)

"3. The juristic theory regarding acceptability of a dying

declaration is that such declaration is made in extremity,

when the party is at the point of death and when every hope

of this world is gone, when every motive to falsehood is

silenced, and the man is induced by the most powerful

consideration to speak only the truth. Notwithstanding the

same, great caution must be exercised in considering the

weight to be given to this species of evidence on account of

the existence of many circumstances which may affect their

truth. The situation in which a man is on the deathbed is so

solemn and serene, is the reason in law to accept the

veracity of his statement."

23. The Constitution Bench in Laxman case also referred to

an earlier decision of this Court in Koll Chunilal Savjl v.

State of Gujarat wherein it was held that the ultimate test

with regard to the admissibility of a dying declaration is

whether the dying declaration can be held to be a truthful

one and voluntarily given. In the said decision it was also

held that before recording the declaration, the officer

concerned must find that the declarant was in a fit

condition to make the statement. The aforesaid ratio of Koli

Chunilal Savji case was affirmed by the Constitution Bench

in Laxman case¹.

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24. In Vikas v. State of Maharashtra this Court elaborately

discussed the previous relevant decisions governing the

legality of dying declaration and observed in para 45 as

follows: (SCC pp. 529-30) 45. The Court, referring to

earlier case law, summed up principles governing dying

declaration as under: (Paniben case, SCC pp. 480-81, para

18)

(i) There is neither rule of law nor of prudence that dying

declaration cannot be acted upon without corroboration.

(ii) If the court is satisfied that the dying declaration is true

and voluntary it can base conviction on it, without

corroboration.

(iii) This Court has to scrutinise the dying declaration

carefully and must ensure that the declaration is not the

result of tutoring, prompting or imagination. The deceased

had opportunity to observe and identify the assailants and

was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be

acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never

make any dying declaration the evidence with regard to it is

to be rejected.

(vi) A dying declaration which suffers from infirmity

cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain

the details as to the occurrence, it is not to be rejected.

(vii) Equally, merely because it is a brief statement, it is not

to be discarded.

On the contrary, the shortness of the statement itself

guarantees truth. (ix) Normally the court in order to satisfy

itself whether the deceased was in a fit mental condition to

make the dying declaration look up to the medical opinion.

But where the eyewitness has said that the deceased was in

a fit and conscious state to make this dying declaration, the

medical opinion cannot prevail.

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(x) Where the prosecution version differs from the version

as given in the dying declaration, the said declaration

cannot be acted upon.

25. After referring to the decision of this Court in Khushal

Rao v. State of Bombay, this Court in Vikas reiterated the

legal position that where a dying declaration is recorded by

a competent Magistrate, it would stand on a much higher

footing inasmuch as a competent Magistrate has no axe to

grind against the person named in the dying declaration of

the victim and in absence of circumstances showing

anything to the contrary, he should not be disbelieved by

the court.”

13. In the light of above discussion, we are of the considered view that

the dying declaration Ex.P-45 in the instant case which came to be

accepted by the courts below cannot be found fault with, particularly,

in the backdrop of the evidence tendered by the person who recorded

the same as per Ex.P-45 and he having stood to his ground in the

cross-examination and having spoken about her mental capability to

make such statement and that too consciously. Dr. M.C. Kori PW-32

in whose presence the dying declaration Ex.P-45 came to be recorded

by PW-25 has categorically stated that deceased Mahadevi was

conscious and she was in a condition to speak. There is no prescribed

format for recording the dying declaration. The perusal of the dying

declaration in the instant case clearly suggests the same to be genuine

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and the maker has stated the true story. On going through the same, it

appears to our mind as it appeared to the trial court and the High Court

to be genuine, true and not tainted with doubt or shrouded with

mystery. The contents of the dying declaration Ex.P-45 suggests the

possible explanation of the occurrence of the incident and it also

appears to be the truthful version of the maker.

14. The incidental question that would also arise for our

consideration is: whether the conviction of the accused under Section

304B would be sustainable? The ingredients to be satisfied for

convicting an accused for the offence punishable under Section 304B

are:

“(i) The death of a woman should be caused by burns or

bodily injury or otherwise than under a normal

circumstance.

(ii) Such a death should have occurred within seven years

of her marriage.

(iii) She must have been subjected to cruelty or harassment

by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in

connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been

meted out to the woman soon before her death.”

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15. This Court in the case of Bansilal vs. State of Haryana (2011)

11 SCC 359 has held that, to attract the provision of Section 304B of

the IPC, one of the main ingredients of the offence which is required

to be established is that “soon before her death”, she was subjected to

cruelty and harassment “in connection with the demand of dowry”. It

has been further held:

“20. Therefore, in case the essential ingredients of such

death have been established by the prosecution, it is the

duty of the court to raise a presumption that the accused has

caused the dowry death. It may also be pertinent to mention

herein that the expression “soon before her death” has not

been defined in either of the statutes. Therefore, in each

case, the Court has to analyse the facts and circumstances

leading to the death of the victim and decide if there is any

proximate connection between the demand of dowry and

act of cruelty or harassment and the death. (Vide T.

Aruntperunjothi v. State ; Devi Lal v. State of

Rajasthan ; State of Rajasthan v. Jaggu Ram ; Anand

Kumar v. State of M.P. and Undavalli Narayana

Rao v. State of A.P.”

16. In Sher Singh Alias Partapa vs State of Haryana (2015) 1

SCR 29 it has been held:

“16. As is already noted above, Section 113-B of the

Evidence Act and Section 304-B IPC were introduced into

their respective statutes simultaneously and, therefore, it

must ordinarily be assumed that Parliament intentionally

used the word “deemed” in Section 304-B to distinguish

this provision from the others. In actuality, however, it is

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well-nigh impossible to give a sensible and legally

acceptable meaning to these provisions, unless the word

“shown” is used as synonymous to “prove” and the word

“presume” as freely interchangeable with the word

“deemed”. In the realm of civil and fiscal law, it is not

difficult to import the ordinary meaning of the word

“deem” to denote a set of circumstances which call to be

construed contrary to what they actually are. In criminal

legislation, however, it is unpalatable to adopt this

approach by rote. We have the high authority of the

Constitution Bench of this Court both in State of

Travancore-Cochin v. Shanmugha Vilas Cashewnut

Factory [AIR 1953 SC 333] and State of T.N. v. Arooran

Sugars Ltd. [(1997) 1 SCC 326] , requiring the Court to

ascertain the purpose behind the statutory fiction brought

about by the use of the word “deemed” so as to give full

effect to the legislation and carry it to its logical

conclusion. We may add that it is generally posited that

there are rebuttable as well as irrebuttable presumptions,

the latter oftentimes assuming an artificiality as actuality by

means of a deeming provision. It is abhorrent to criminal

jurisprudence to adjudicate a person guilty of an offence

even though he had neither intention to commit it nor

active participation in its commission. It is after deep

cogitation that we consider it imperative to construe the

word “shown” in Section 304-B IPC as to, in fact, connote

“prove”. In other words, it is for the prosecution to prove

that a “dowry death” has occurred, namely,

(i) that the death of a woman has been caused in abnormal

circumstances by her having been burned or having been

bodily injured,

(ii) within seven years of her marriage,

(iii) and that she was subjected to cruelty or harassment by

her husband or any relative of her husband,

(iv) in connection with any demand for dowry, and

(v) that the cruelty or harassment meted out to her

continued to have a causal connection or a live link with

the demand of dowry.

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We are aware that the word “soon” finds place in Section

304-B; but we would prefer to interpret its use not in terms

of days or months or years, but as necessarily indicating

that the demand for dowry should not be stale or an

aberration of the past, but should be the continuing cause

for the death under Section 304-B or the suicide under

Section 306 IPC. Once the presence of these concomitants

is established or shown or proved by the prosecution, even

by preponderance of possibility, the initial presumption of

innocence is replaced by an assumption of guilt of the

accused, thereupon transferring the heavy burden of proof

upon him and requiring him to produce evidence

dislodging his guilt, beyond reasonable doubt. It seems to

us that what Parliament intended by using the word

“deemed” was that only preponderance of evidence would

be insufficient to discharge the husband or his family

members of their guilt. This interpretation provides the

accused a chance of proving their innocence. This is also

the postulation of Section 101 of the Evidence Act. The

purpose of Section 113-B of the Evidence Act and Section

304-B IPC, in our opinion, is to counter what is commonly

encountered—the lack or the absence of evidence in the

case of suicide or death of a woman within seven years of

marriage. If the word “shown” has to be given its ordinary

meaning then it would only require the prosecution to

merely present its evidence in court, not necessarily

through oral deposition, and thereupon make the accused

lead detailed evidence to be followed by that of the

prosecution. This procedure is unknown to common law

systems, and beyond the contemplation of CrPC.”

17. In the instant case as noticed hereinabove, the parents of the

deceased and other witnesses who had recorded their statement before

the I.O. with regard to alleged demand of dowry have retraced their

steps or in other words have turned hostile and have not supported the

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prosecution and have denied of having made any such statement

before police. Be that as it may. This Court having arrived at a

conclusion that the dying declaration made by the deceased as per

Ex.P-45 being genuine and when said declaration is perused it would

not suggest that there was any proximate nexus to the act of

committing suicide on account of preceding demand for dowry or in

other words the demand of dowry on any particular date having

triggered the deceased to commit the suicide or forced her to self-

immolate. This proximate link not being available in the facts

obtained in the present case, we are of the considered view that

conviction of the accused under Section 304B cannot be sustained.

18. In the aforesaid analysis of law, when we turn our attention to

the facts on hand it would emerge from the records that appellants-

accused persons have been convicted for the offences punishable

under Sections 498A, 304B of IPC and Section 3 and 4 of Dowry

Prohibition Act. Section 498A of IPC prescribes imprisonment which

may extend to 3 years and the Explanation thereunder has two parts.

The first part would relate to subjecting a married woman to cruelty

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for any willful conduct which is of such a nature as is likely to drive

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

or health (whether mental or physical). Second Part i.e. Clause (b) of

Section 498A would indicate that cruelty would encompass

harassment of a married woman where such harassment is with a view

to pressurize her or any person related to her to meet any unlawful

demand for any property or valuable security on account of failure by

her or any person related to her to meet such demand.

19. In Dinesh Seth v State of NCT of Delhi (2008) 14 SCC 94,

this Court has examined the width and scope of two Sections i.e.,

304B & 498A and was held to be different. Section 304B deals with

cases of death as a result of cruelty or harassment within 7 years of

marriage. Whereas 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 any unlawful demand of property

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or valuable security. We have already discussed hereinabove as to

there being no nexus for the deceased to self-immolate herself on

account of such demand having preceded immediately before her

death. As such we have opined that convicting the accused/appellants

under Section 304B was improper or the prosecution had failed to

establish that the death had occurred and soon before her death she

was subjected to cruelty or harassment by the appellants.

20. It has been held in Dinesh Seth’s (Supra) Case

“24. Section 498-A was added to IPC by amending Act 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 wilful 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.

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25. After three years, Section 304-B was inserted by

amending Act 43 of 1986 to deal with cases involving

dowry deaths occurring within seven years of marriage.

Sub-section (1) of Section 304-B 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.

26. The ingredient of cruelty is common to Sections 304-B

and 498-A IPC, but the width and scope of the two sections

is different, inasmuch as Section 304-B deals with cases of

death as a result of cruelty or harassment within seven

years of marriage, Section 498-A 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.”

21. Section 498A having a wider scope, it will have to be

examined as to whether the accused is to be convicted for the offence

punishable under Section 498A or in other words, the order of

26

conviction passed by Sessions Court and affirmed by High Court

deserves to be affirmed, notwithstanding the conviction under Section

304B having been set aside. Irrespective of the fact that accused have

been acquitted for the offence punishable under Section 304B, Section

498A would cover the cases in which the wife is subjected to cruelty

by husband or relatives 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). In the light of dying declaration (Ex.P-

45) having been accepted to have been made by the deceased and the

contents of the same disclosing that she was unable to withstand the

torture meted out, which resulted in her committing suicide would

suffice to convict the accused for the offence punishable under Section

498A.

22. This takes us to the next question as to whether the accused can

be convicted for the offence punishable under Section 306 IPC though

not charged for said offence. Similar situation arose before this Court

in Dalbir Singh vs State of U.P. (2004) 5 SCC 334 where a charge for

the offence under Section 306 had not been framed against the

27

accused though accused had faced trial in respect of the charges under

Section 302, 498A and 304B IPC as has happened in the instant case

where the accused have been tried for the offences punishable under

Section 498A, 304B IPC and Section 3 and 4 of DP Act and this Court

had answered in the affirmative in Dalbir Singh’s case by arriving at

the following conclusion:

“17. 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 [(1997) 5 SCC 348 : 1997 SCC (Cri) 690] 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.

18. The facts and circumstances of the present case may

now be examined in the light of the principle discussed

above. The trial court and also the High Court have

recorded a clear finding and with which we are in complete

agreement, that the accused had started making a demand

of dowry soon after marriage. Even after his father-in-law

had given him a colour TV, a scooter and money for

purchasing the flat, he did not feel satisfied and continued

28

to harass his wife. He used to frequently taunt her that

some of the items given by way of gift at the time of

marriage were of poor quality and were not of his standard.

He had also assaulted his wife and even his seven-year-old

daughter on several occasions. It was in such circumstances

that Vimla took the extreme step of not only setting herself

on fire, but also her two daughters, one of whom was only

one-year old. The letter written by Vimla just before taking

such an extreme step speaks volumes about the treatment

meted out to her by the accused. Therefore, the basic

ingredients of the offence under Section 306 IPC have been

established by the prosecution. These features of the

prosecution case were sought to be established by the

prosecution in order to substantiate the charge under

Section 498-A IPC and also for showing that the accused

had a motive to commit the crime of murder for which he

was actually charged. The cross-examination of the

witnesses shows that every effort was made to demolish the

aforesaid aspect of the prosecution case, namely, that

neither was any demand of dowry made nor were any gifts

or presents or money received by the accused at a

subsequent stage and that Vimla had not been subjected to

any kind of harassment or ill-treatment. The next question

to be seen is whether the accused was confronted with the

aforesaid features of the prosecution case in his statement

under Section 313 CrPC. His statement runs into six pages

where every aspect of the prosecution case referred to

above was put to him. He also gave a long written

statement in accordance with Section 233(2) CrPC wherein

he admitted that Vimla committed suicide. He also

admitted that the scooter and colour TV were subsequently

given to him by his in-laws but came out with a plea that he

had paid money and purchased the same from his in-laws.

There is no aspect of the prosecution which may not have

been put to him. We are, therefore, of the opinion that in

view of the material on record, the conviction under

Section 306 IPC can safely be recorded and the same

would not result in failure of justice in any manner. The

record shows that the accused was taken into custody on

29-3-1991 and was released from jail after the decision of

the High Court on 20-3-1997 and thus he has undergone

nearly six years of imprisonment. In our opinion, the period

29

already undergone (as undertrial and after conviction)

would meet the ends of justice.”

22. In Dinesh Seth’s case (supra) it has been held that in certain

situations, an accused can be convicted for an offence with which he

may not have been specifically charged and an error, omission or

irregularity in framing of charge is, by itself not sufficient for

upsetting the conviction. The only exception to this general rule as can

be noticed from Section 464 of Cr.P.C. is, unless the accused is able to

demonstrate a failure of justice has in fact been occasioned thereby. It

has been held thereunder as:

“21. The ratio of the abovenoted judgments is that in

certain situations an accused can be convicted for 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.”

23. After noticing the meaning to be attached to the plain language

of Section 221 and Section 464 of Cr.P.C. this Court in Dinesh Seth-

supra has opined:

30

“11. A reading of the plain language of Sections 221(1) and

(2) shows that if a single act or a 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.

12. 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 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.

13. Section 464(1) 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 justice has been occasioned on

account of non-framing of charge or any error, omission or

irregularity in the framing of charge.”

24. In the light of aforesaid analysis, the question that would arise

is: whether the accused in the instant case can be convicted for the

31

offence punishable under Section 306 IPC? Section 306 reads as

under:

“306. Abetment of suicide. —If any person commits

suicide, whoever abets the commission of such suicide,

shall be punished with imprisonment of either description

for a term which may extend to ten years, and shall also be

liable to fine.”

The basic ingredients of an offence under Section 306 is suicidal death

and its abetment thereof. To attract the ingredients of abetment, the

intention of the accused to aid or instigate or abet the deceased to

commit suicide would be necessary.

25. It would be necessary at this juncture itself to note the

statement made by the deceased in her dying declaration Ex.P-45

which is to the following effect:

“I have been given in marriage xxx for the dowry all of

them were harassing me by saying my father had given less

dowry and customary gifts to the groom. As I couldn’t

tolerate the torture, I have set fire to myself by pouring

on me at the shade situated in our land on 20.12.2010 in

early morning at about 6:30 to 7:00. My husband xxx

Bagalkot city.”

(Emphasis supplied by us)

26. The court below had formulated point No.1 for its adjudication

which is to the effect: whether the deceased Akkamahadevi died

32

suicidal death? and, answered the same in the affirmative by opining

that deceased died due to burn injuries which she had suffered on

account of self-immolation. The act of cruelty has been spelt out by

none else than the victim herself in her dying declaration Ex.P-45. She

has in clear words stated all the accused were harassing her by stating

that her father had given less dowry and customary gifts to her

husband and being unable to tolerate this mental torture, she had set

fire to herself on the fateful day. The accused being the husband,

father-in-law & mother-in-law are said to have harassed the deceased,

subjected her to cruelty and the deceased has in clear terms stated in

her dying declaration that she could not tolerate the same. Thus, the

torture which has taken place within the four walls is supported by the

statement of the victim and stands proved by virtue of dying

declaration having been accepted by us. It is this act of torture which

led the deceased to commit suicide and these acts have forced the

deceased to commit suicide.

27. Omission to frame charge does not disable the court from

convicting the accused for the offence which is found to have been

33

proved on the evidence on record. The code has ample provisions to

meet a situation like the one before us. From the statement of charge

framed under Section 304B and in the alternative Section 306, it is

clear that all the facts and ingredients for framing the charge for

offence under Section 306 existed. The mere omission on the part of

the trial judge to mention Section 306 IPC with 498A would not

preclude this Court from convicting the accused for the said offence

when found proved. In the charge framed under Section 304B of IPC,

it has been clearly mentioned that the accused has subjected the

deceased to such cruelty and harassment as to drive her to commit

suicide by self-immolation and as such non-framing of the specific

charge would not be fatal in the instant case as no injustice is being

caused to the accused.

28. This court in K. Prema S. Rao & anr v. Yadla Srinivasa Rao

and others (2003) 1 SCC 217 has held that mere omission or defect

in framing of charge would not be fatal if from the statement of charge

under Section 304B and in the alternative Section 498A, it is clear that

34

all facts and ingredients for framing of charge under Section 306

existed in the case, same would suffice. It was further held that:

“22. Mere omission or defect in framing charge does not

disable the criminal court from convicting the accused for

the offence which is found to have been proved on the

evidence on record. The Code of Criminal Procedure has

ample provisions to meet a situation like the one before us.

From the statement of charge framed under Section 304-B

and in the alternative Section 498-A IPC (as quoted above)

it is clear that all facts and ingredients for framing charge

for offence under Section 306 IPC existed in the case. The

mere omission on the part of the trial Judge to mention

Section 306 IPC with Section 498-A IPC does not preclude

the court from convicting the accused for the said offence

when found proved. In the alternate charge framed under

Section 498-A IPC, it has been clearly mentioned that the

accused subjected the deceased to such cruelty and

harassment as to drive her to commit suicide. The

provisions of Section 221 CrPC take care of such a

situation and safeguard the powers of the criminal court to

convict an accused for an offence with which he is not

charged although on facts found in evidence, he could have

been charged for such offence. Section 221 CrPC needs

reproduction:

“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 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.”

35

23. The provision of sub-section (2) of Section 221 read

with sub-section (1) of the said section can be taken aid of

in convicting and sentencing Accused 1 of offence of

abetment of suicide under Section 306 IPC along with or

instead of Section 498-A IPC.

24. Section 215 allows the criminal court to ignore any

error in stating either the offence or the particulars required

to be stated in the charge, if the accused was not, in fact,

misled by such error or omission in framing the charge and

it has not occasioned a failure of justice. See Section 215

CrPC which reads:

“215. Effect of errors.—No error in stating either the

offence or the particulars required to be stated in the

charge, and no omission to state the offence or those

particulars, shall be regarded at any stage of the case as

material, unless the accused was in fact misled by such

error or omission, and it has occasioned a failure of

justice.”

25. As provided in Section 215 CrPC omission to frame

charge under Section 306 IPC has not resulted in any

failure of justice. We find no necessity to remit the matter

to the trial court for framing charge under Section 306 IPC

and direct a retrial for that charge. The accused cannot

legitimately complain of any want of opportunity to defend

the charge under Section 306 IPC and a consequent failure

of justice. The same facts found in evidence, which justify

conviction of the appellant under Section 498-A for cruel

treatment of his wife, make out a case against him under

Section 306 IPC of having abetted commission of suicide

by the wife. The appellant was charged for an offence of

higher degree causing “dowry death” under Section 304-B

which is punishable with minimum sentence of seven years'

rigorous imprisonment and maximum for life. Presumption

under Section 113-A of the Evidence Act could also be

raised against him on same facts constituting offence of

cruelty under Section 498-A IPC. No further opportunity of

defence is required to be granted to the appellant when he

had ample opportunity to meet the charge under Section

498-A IPC.”

36

29. In the aforesaid background and the evidence on record as

already noticed by us hereinabove, it can be safely noted that High

Court ought to have examined as to whether accused could have been

convicted for an offence for which no charge was framed and not

undertaking of such an exercise would result in failure of justice?

Thus, it will have to be seen from the facts unfolded in the present

case as to whether the accused was aware of the basic ingredients of

the offence for which they are being tried and whether the main facts

sought to be established against them were explained to them clearly

and whether they got a fair chance to defend themselves. If the answer

is in the affirmative, then necessarily this Court will have to proceed

further and examine as to whether accused can be convicted for the

offence not charged and if the answer is in the negative it would result

in acquittal of the accused for said offence. In the instant case the

dying declaration of the deceased would clearly indicate that deceased

was mentally traumatized and she was unable to tolerate the torture

and harassment meted out by the accused person on account of which

she committed suicide. It is this taunting or mental torture which she

37

could not withstand and forced her to commit suicide by self-

immolation. In that view of the matter, we are of the considered

opinion that accused persons are liable to be convicted for the offence

punishable under Section 306 IPC though charge was not framed. The

accused (appellant Nos.1 and 2) are now aged about 66 and 61 years

respectively. They have already spent one year, one month and 27

days in prison. They do not have any past history of criminal record.

Hence, a lenient view has to be taken while imposing the sentence.

30. For the reasons afore-stated the appeal is allowed in part. The

judgment and order of conviction passed by the Sessions Court in SC

No.35 of 2011 dated 14.09.2012 as affirmed in Criminal Appeal

No.2847 of 2012 by judgment dated 20.07.2022 is hereby modified.

The appellants are acquitted for the offences punishable under Section

304B IPC and Section 3 and 4 of Dowry Prohibition Act and

convicted for the offence punishable under Section 306 and Section

498A read with Section 34 IPC and sentenced to imprisonment for the

period already undergone with fine of Rs.5000/- each and in default to

38

pay the fine to undergo one month simple imprisonment for each of

the offence.

.……………………….J.

(S. Ravindra Bhat)

…………………..……J.

(Aravind Kumar)

New Delhi,

October 19, 2023