REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 590 OF 2005
Narwinder Singh ... Appellant
VERSUS
State of Punjab ...Respondent
JUDGMENT
SURINDER SINGH NIJJAR, J.
1. This appeal has been filed against the
judgment and order dated 6th October, 2004 of
the Punjab and Haryana High Court at
Chandigarh in Criminal Appeal No. 406-SB of
1992 wherein the appellant has been convicted
under Section 306 Indian Penal Code (`IPC' for
short) and sentenced to rigorous imprisonment
for two years and to pay a fine of Rs.1,000/-
and in default of payment thereof to undergo
further rigorous imprisonment for one month.
1
2. We may briefly notice the facts.
Sukhjit Kaur, alias Rani was married to Narwinder Singh
of Village Mehdipur on 30th September, 1984. A male
child had first been born to the couple and at the time of
the incident, the wife was pregnant a second time.
According to the in-laws of the appellant, they had given
sufficient dowry at the marriage of their daughter to the
appellant. It appears that the appellant and his parents
Daljit Singh and Joginder Kaur remained dissatisfied.
About two months after the marriage, Sukhjit Kaur
informed her mother Gursharan Kaur that her in-laws
were asking her to bring valuable articles such as a
scooter from her parents. It is also the case of the
prosecution that an additional demand of Rs.5,000/- was
made by Narwinder Singh, in the year 1986, which
amount too was paid by his mother-in-law Gursharan
Kaur. Unfortunately, on 25th May, 1987, Bhai Davinder
Singh, father of Sukhjit Kaur was murdered by
extremists. After the death of Bhai Davinder Singh, there
2
was sea-change in the attitude of the appellant and her
parents, and they started maltreating her. About six
months prior to the fatal incident, there had been a
quarrel between the husband and wife, which was settled
with the intervention of several relatives including Kulbir
Singh and Onkar Singh, PW-5. About ten days prior to
the incident, Sukhjit Kaur went to Onkar Singh's house
in Village Nabipur and informed him that the accused
were demanding Rs.50,000/-. They were saying that her
late father had left enough money for the family and that
she should get her share. Onkar Singh told her that he
would inform Gursharan Kaur, who was then living in
England about the demand and seek instructions from
her. Unfortunately, on 30th May, 1988, Onkar Singh
came to know about the death of his niece Sukhjit Kaur
(hereinafter referred to as `the deceased'). He alongwith
Gurjit Kaur, sister of the deceased, Hanwant Singh,
Darshan Singh and Mohan Singh went to village
Mehdipur and saw the dead body of Sukhjit Kaur alias
Rani lying in the house. Blood was oozing from her nose.
3
Onkar Singh, thereafter, lodged a FIR naming the
accused as having been responsible for her death.
Initially, a case under Section 306 IPC was registered
against the accused but, a charge under Section 304-B of
the IPC was ultimately framed by the Court.
3. In support of its case, the prosecution relied inter-
alia on the evidence of Kulbir Singh (PW-2) and Onkar
Singh (PW-5), both uncles of the deceased, Gursharan
Kaur (PW-6) the mother and Gurjit Kaur (PW-7). The
sister of Sukhjit Kaur stated that the demands made by
the accused had been satisfied off and on and that the
behaviour of the accused had compelled Sukhjit Kaur to
commit suicide. The prosecution also relied upon the
evidence of Dr. H.S. Bajwa (PW-3), who on the basis of
the report of the Forensic Science Laboratory opined that
she had died of Organo Phosphorus poisoning. A large
number of documents including some letters allegedly
written by the deceased to her family members and by
them to her were also produced in evidence.
4
4. The prosecution case was then put to the accused
and their statements recorded under Section 313 of
Cr.P.C. They denied the allegations levelled against them
and pleaded that as a matter of fact Sukhjit Kaur had
fallen ill as she was pregnant and depressed after the
murder of her father (to whom she had been deeply
attached) and that she had been taken to Oberoi Hospital
by her father-in-law on seeing her condition
deteriorating, and that despite all efforts on the part of
the accused to save her, she had died. The accused also
produced three witnesses in defence, namely Hardev
Singh (DW-1), Jarnail Singh (DW-2) and Pritam Singh
(DW-3), as also certain letters written inter-se the parties.
5. The trial court held that from the evidence of Kulbir
Singh, Onkar Singh, Gursharan Kaur and Gurjit Kaur
(PWs) and the letter Ex.P.1, it appeared that demands for
dowry had been made by the accused from Sukhjit Kaur
time and again and that she had been harassed and thus
5
compelled to commit suicide. It further held that the
ingredients of Section 304-B IPC were satisfied on the
presumptions raised under Section 113-B of the
Evidence Act with regard to dowry deaths and that the
letters Exs. PA, PB, PC, PD and PE did not in any way
show that the relation between the parties had been
cordial. The trial court accordingly convicted the
accused for an offence punishable under Section 304-B
IPC, and sentenced them to undergo rigorous
imprisonment for seven years and to fine and in
default of payment of fine to undergo further rigorous
imprisonment for a specified period.
6. Aggrieved, against the aforesaid conviction and
sentence, the appellant and his parents filed an appeal
before the Punjab and Haryana High Court. Upon
reconsideration of the entire evidence, the High Court
concluded that the deceased had not committed suicide
on account of demands for dowry but due to harassment
caused by the husband, in particular. The appeal was,
6
therefore, partly allowed. The High Court acquitted the
parents of the appellant. However, the conviction of the
appellant was converted from one under Section 304-B
IPC to Section 306 IPC. He was sentenced to undergo
rigorous imprisonment for two years and to pay a fine of
Rs.1,000/- and in default of payment, he has to undergo
further rigorous imprisonment for one month. The
aforesaid judgment is challenged in the present appeal.
7. Mr. Vikram Mahajan, learned senior counsel
appearing for the appellant submitted that there is no
distinction between the case of the appellant and that of
his parents, who have been acquitted. The High Court
having acquitted the parents, the appellant also could
not have been convicted. He further submitted that this
was a plain and simple case of suicide due to the mental
state of the deceased. He submits that since the murder
of her father by extremists, the deceased had been under
acute depression and she, therefore, had suicidal
tendencies. Learned senior counsel further submitted
7
that there is no evidence on the record to show that the
victim had died an unnatural death. Lastly, it is
submitted that the High Court committed a grave error in
convicting the appellant under Section 306 IPC. It is
submitted by Mr. Mahajan that the nature of offence
under Section 304-B IPC is distinct and different from
the offence under Section 306 IPC. The basic constituent
of an offence under Section 304-B IPC is homicidal death
(dowry death) and those of Section 306 IPC is suicidal
death and abetment thereof. Furthermore, according to
the learned senior counsel, the nature of evidence
required under both the categories of offences are totally
different. The appellant was never charged under
Section 306 IPC, nor is there any evidence on the record
to sustain the conviction under Section 306 IPC.
8. Mr. Kuldip Singh, learned counsel, appearing for
the State of Punjab submits that the appellant is in fact
fortunate being convicted only under Section 306 IPC.
There is overwhelming evidence to prove that the
8
appellant and his parents had been harassing the
deceased to bring more dowry. He submits that there is
evidence that the wife had been subjected to harassment
on account of dowry immediately after the marriage. The
death occurred within seven years of marriage, therefore,
by virtue of Section 113-B of the Evidence Act, the trial
court had rightly presumed that the appellant and his
parents had committed the offence under
Section 304-B IPC.
9. We have considered the submissions made by the
learned counsel. The High Court, upon close scrutiny of
the evidence, concluded that there was evidence of a
quarrel between the husband and wife about six months
prior to the occurrence, which had been settled with the
intervention of the eldest. There were complaints that
the deceased did not know how to do any household
work. The in-laws had also complained that she was not
well mannered. Their ill-treatment of the wife escalated
after the murder of her father by extremists. It was at
9
that stage the husband had started demanding that the
deceased should claim one of the two houses left behind
by her father in Village Nabipur. About ten months prior
to her death, she was actually sent by the appellants to
demand possession of the house. The appellant and his
parents were suspecting that the sister of the deceased,
Gurjit Kaur had taken everything after the death of the
father of the deceased. The appellant and his parents
were insisting that the house be legally conveyed in the
name of the deceased. However, mother of the deceased
left for England after the first death anniversary of her
husband in May, 1988. The High Court, on examination
of the entire evidence, concluded that the deceased had
not committed suicide on account of demands for dowry
but due to harassment caused by her husband, in
particular. The deceased had committed suicide by
drinking Organo Phosphorus poison. In view of the
findings recorded, the High Court converted the
conviction of the appellant from one under Section 304-B
IPC to one under Section 306 IPC.
10
10. We do not find much substance in the submission
of Mr. Mahajan that the High Court could not have
convicted the appellant under Section 306 IPC as the
charge had been framed under Section 304-B IPC. On
scrutiny of the entire evidence, the High Court has come
to the conclusion that the deceased had not committed
suicide on account of demands for dowry but due to
harassment caused by her husband, in particular. The
harassment by the appellant had compounded the acute
depression from which the deceased was suffering after
the murder of her father. There was no evidence of any
demand for dowry soon before the death, and there was
no demand whatsoever that the house in question should
be transferred to either of the accused. Under
Section 304-B IPC, the cruelty or harassment by her
husband or any relative of her husband "for, or in
connection with, any demand for dowry" is a prelude to
the suicidal death of the wife. Such suicidal death is
defined as `dowry death'. The High Court has recorded a
11
firm finding that the harassment was not for or in
connection with any demands for dowry. But, at the
same time, the High Court has concluded that the wife
committed suicide due to the harassment of the
appellant, in particular. In such circumstances, the High
Court was, therefore, fully justified in convicting the
appellant under Section 306 IPC.
11. We also do not find any substance in the
submission of Mr. Mahajan that the appellant could not
have been convicted under Section 306 IPC in the
absence of a charge being framed against him under the
aforesaid section. The learned counsel had relied upon
the judgments of this court in the case of Sangaraboina
Sreenu Vs. State of A.P.1 and Shamnsaheb M. Multtani
Vs. State of Karnataka2. We are of the opinion that the
aforesaid judgments are of no assistance to the
appellant, in the facts and circumstances of the present
case. We may, however, notice the observations made
1
(1997) 5 SCC 348
2
(2001) 2 SCC 577
12
therein. In the case of Sangaraboina Sreenu (supra), it
was observed as follows:
"This appeal must succeed for the simple reason that having
acquitted the appellant of the charge under Section 302 IPC --
which was the only charge framed against him -- the High Court
could not have convicted him of the offence under Section 306 IPC.
It is true that Section 222 CrPC entitles a court to convict a person
of an offence which is minor in comparison to the one for which he
is tried but Section 306 IPC cannot be said to be a minor offence in
relation to an offence under Section 302 IPC within the meaning of
Section 222 CrPC for the two offences are of distinct and different
categories. While the basic constituent of an offence under Section
302 IPC is homicidal death, those of Section 306 IPC are suicidal
death and abetment thereof."
In the present case, both the trial court and the High
Court have held that the deceased had committed
suicide. Therefore, the nature of the offence under
Sections 304-B and 306 IPC are not distinct and different
categories.
Again in the case of Shamnsaheb M. Multtani (supra),
this court observed:
"18. 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?
13
19. A two-Judge Bench of this Court (K. Jayachandra Reddy and
G.N. Ray, JJ.) has held in Lakhjit Singh v. State of Punjab1 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.
20. 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 v. State of A.P. that it is
impermissible to do so. The rationale advanced by the Bench for
the above position is this:(SCC p.348, para 2)
"It is true that Section 222 CrPC entitles a court to convict a
person of an offence which is minor in comparison to the one for
which he is tried but Section 306 IPC cannot be said to be a minor
offence in relation to an offence under Section 302 IPC within the
meaning of Section 222 CrPC for the two offences are of distinct
and different categories. While the basic constituent of an offence
under Section 302 IPC is homicidal death, those of Section 306
IPC are suicidal death and abetment thereof."
21. 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 304-B 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:
"464. (1) No finding, sentence or order by a court of competent
jurisdiction shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned thereby".
(emphasis supplied)
22. 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.
23. 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
14
(the simile is borrowed from Lord Diplock in Town Investments Ltd.
v. Deptt. of the Environment). 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."
We are of the considered opinion that the aforesaid
observations do not apply to the facts of the present case.
The High Court upon meticulous scrutiny of the entire
evidence on record rightly concluded that there was no
evidence to indicate the commission of offence under
Section 304-B IPC. It was also observed that the
deceased had committed suicide due to harassment
meted out to her by the appellant but there was no
evidence on record to suggest that such harassment or
cruelty was made in connection to any dowry demands.
Thus, cruelty or harassment sans any dowry demands
which drives the wife to commit suicide attracts the
offence of `abetment of suicide' under Section 306 IPC
and not Section 304-B IPC which defines the offence and
punishment for `dowry death'.
15
12. It is a settled proposition of law that mere omission
or defect in framing charge would not disable the Court
from convicting the accused for the offence which has
been found to be proved on the basis of the evidence on
record. In such circumstances, the matter would fall
within the purview of Section 221 (1) and (2) of the
Cr.P.C. In the facts of the present case, the High Court
very appropriately converted the conviction under
Section 304-B to one under Section 306 IPC.
13. In our opinion, there has been no failure of justice
in the conviction of the appellant under Section 306 IPC
by the High Court, even though the specific charge had
not been framed.
14. Therefore, we see no reason to interfere with the
judgment of the High Court. The appeal is accordingly
dismissed.
..................................J.
[B.SUDERSHAN REDDY]
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............................
.........J. [SURINDER SINGH NIJJAR]
NEW DELHI;
JANUARY 05, 2011.
17
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
