Kamaladass vs State

M. Karpagavinayagam, J.—This appeal by the appellant is directed against the judgment convicting the appellant u/s 304-B, I.P.C. and

sentencing him to undergo R.I. for 7 years.

The short point which arises for consideration by this Court is this. The charge u/s 302, I.P.C. was framed against the appellant for having

caused the death of the deceased, wife of the appellant, by pouring acid into her mouth. After trial, on taking into consideration of the materials,

particularly the evidence of PW-2, who speaks about the dowry demand, the trial Court concluded that the appellant was liable to be convicted

for the offence u/s 304-B, I.P.C. and not u/s 302, I.P.C.

Mr. Gove Ganesan, the counsel for the appellant, would submit that when the charge u/s 304-B, I.P.C. was not framed against the appellant,

the conviction under the said section cannot be sustained and therefore, the matter could be remitted back to the trial Court for framing the charge

u/s 304-B, I.P.C. and to give opportunity to the appellant to rebut the presumption enshrined in Section 304-B, I.P.C.

It is provided u/s 222, Cr. P.C. that when a person is charged with major offence, he may be convicted of the minor offence, though he was not

charged with it. Therefore, the question may arise as to whether, the offence u/s 304-B, I.P.C. is a minor offence for the major offence, namely, u/s

302, I.P.C. The reading of both the sections would show that the causing of death of the deceased is that main ingredient. Therefore, it cannot be

stated that the ingredients of both the offences are entirely different.

The learned Government Advocate would cite the following decisions:-

1) Vemuri Venkateswara Rao v. State of AP 1992 Cri LJ 563;

2) Venugopal Vs. State of Karnataka, ; and

3) Bhoora Singh v. State (1993) Cri LJ 2636 : 1993 All LJ 920.

In, Venugopal v. State of Karnataka (supra), the accused was originally charged u/s 302, I.P.C. The High Court in the appeal acquitted the

accused for the offence u/s 302, I.P.C. and instead, convicted him u/s 304-B I.P.C. even without the said charge framed. While dealing with the

said question, the Apex Court would hold in the above decision that even in the absence of the said charge, the accused could be convicted for the

said offence. By observing that, the Apex Court would confirm the conviction imposed by the Karnataka High Court u/s 304-B, I.P.C.

In the instant case also, against the appellant, the charge was framed u/s 302, I.P.C. Ultimately, the trial Court though acquitted the accused in

respect of the offence u/s 302, I.P.C, convicted him u/s 304-B, I.P.C. According to the prosecution, there was harassment for the payment of

dowry. The unnatural death occurred admittedly within 7 years of her marriage. Therefore, the presumption of dowry death is inherent u/s 113-B

of the Evidence Act.

The following are the three ingredients which are essential for establishing the offence punishable u/s 304-B, I.P.C. : (1) There is a demand for

dowry and harassment by the accused; (2) the deceased died within 7 years of her marriage; (3) the death is under unnatural circumstances.

Once these three things are proved, the offence u/s 304-B, I.P.C. is established. Once there is a demand for dowry and harassment against the

deceased and the death occurred within 7 years of her marriage, the other things automatically follow due to the statutory presumption

contemplated u/s 113-B of the Evidence Act.

Therefore, I am unable to agree with the contention of the learned counsel appearing for the appellant that in the absence of the charge framed

u/s 304-B, I.P.C. the appellant cannot be convicted thereunder. The offence u/s 300, I.P.C, which is punishable u/s 302, I.P.C is major when

compared to the offence u/s 304-B, I.P.C.

Section 221(2), Cr. P.C. provides that if in a case, the accused was 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.

So, in the light of the above provisions and the rulings of the High Courts as well as the Apex Court, I am of the view that the conviction

imposed upon the appellant for the offence u/s 304-B, I.P.C. is perfectly valid and unassailable.

Therefore, I do not find any infirmity in the judgment of the trial Court and so, this appeal fails.

In the result, the appeal is dismissed.