Sri Mujahid Pasha v. State by Tilak Park, Police Station, Tumkur

7. Sri M.V. Devaraju, learned Senior Counsel appearing for the appellant/accused at the outset 6 submitted that the judgment of the Court below convicting the appellant for the offence punishable under Section 304B of the IPC, in the absence of a specific charge in that regard and putting the appellant on notice of the said charge and consequence of drawing presumption under Section 113B of the Indian Evidence Act, is bad in law and is opposed to the principles of law laid down by the Apex Court in the case of Shamnsaheb M. Multtani –vs- State of Karnataka reported in 2001 SCC (Cri) 358. He contended that as the Court below has proceeded to convict the appellant for the offence punishable under Section 304-B of IPC, without a specific charge in that regard, the judgment is vitiated and the matter requires to be remanded for framing of a specific charge and to dispose of the matter after giving due opportunity to the appellant since at any stage of the trial, charge could be framed or altered or modified.

8. Sri Rajesh Rai, learned High Court Government Pleader was heard on this aspect of the matter. 7

9. Having heard both sides and in the light of the principles laid down in the aforesaid decision, I am of the considered opinion, that without going into the merits of the case, the matter requires to be remanded for fresh disposal by setting aside the judgment of conviction for want of specific charge for the offence punishable under Section 304-B of IPC.

10. As noticed supra, the charge sheet was laid for the offences punishable under Sections 498-A, 302, 114 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. The charges were framed for the aforesaid offences by the learned Sessions Judge. In Shamnsaheb M. Multtani’s case referred to supra, the appellant therein who was charged for the offence of murder, was acquitted by the trial Court since all the material witnesses turned hostile to the prosecution. However, in the appeal filed by the State, this Court convicted him for the offences punishable under Sections 304-B and 498-A of IPC though no charges for those offences had been framed, as the accused had 8 been tried for the offence punishable under Section 302 of IPC. In the appeal before the Apex Court, the question which came up for consideration was whether an accused charged under Section 302 of IPC could be convicted alternatively under Section 304-B of IPC without the said offence being specifically put in the charge. Their Lordships of the Apex Court observed in paragraph-4 of the report that “ 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.” After referring to the divergent views expressed in the earlier decisions and also the provisions of Sections 221 and 222 of the Cr.P.C., ultimately their Lordships in paragraphs – 31 to 34 held thus: 9 “31. 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 onto 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 assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he alternatively convicted under Section 304-B IPC and sentenced serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years. 10

32. The serious consequence which may ensue to the accused in such a situation can be limned through 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 dacoit 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 304-B 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 11 charge of murder against him and claim an order of acquittal.

33. The above illustration would amplify the gravity of the consequence befalling an accused if he was only to defend a charge under Section 302 IPC and was alternatively convicted under Section 304-B IPC without any notice to him, because he is deprived of the opportunity disprove the burden cast on him by law.

34. 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 real and serious miscarriage of justice. Even if no such count was included in the charge, the court affords him an 12 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 304-B IPC, unless he succeeds in disproving the presumption, possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.”

11. In the light of the above, their Lordships deemed it necessary in the interest of justice to remand the matter to the trial Court for affording the accused an opportunity to rebut the presumption.

12. To the case on hand, the principles laid down as above will squarely apply facts and circumstances of this case. The learned Sessions Judge without considering the question as to whether the appellant/accused could be convicted for an offence punishable under Section 304-B of IPC in the absence of a specific charge and without referring to the decision of the Apex Court referred to supra, has proceeded to 13 convict the appellant/accused which has resulted in miscarriage of justice and has caused great prejudice to the accused. In this view of the matter, without going into the merits of the case, it is just and necessary in the interest of justice to remand the matter only in so far as it relates to the appellant/accused is concerned to the Trial Court with a direction to the Trial Court to frame an alternative specific charge for the offence punishable under Section 304-B of IPC against the appellant and to afford a reasonable opportunity to the appellant in accordance with law.

13. The appellant/accused shall appear before the Trial Court on 2.11.2012.

14. The Registry is directed to send back the records along with a copy of this judgment. Nsu/- Sd/- Judge