Crl.A. 128/2007 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE A.C. UPADHYAY (Ranjan Gogoi, J.) This appeal is directed against the judgment and order dated 6.6 .2007 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 53 of 2 006 whereby the accused appellant Shri Priya Ram Das has been convicted under Se ction 304-B of the Indian Penal Code. He has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/-, in default, to undergo r igorous imprisonment for three years more. 2. The short case of the prosecution is that on 16.8.2001 at about 5.30 p.m. P.W. 1, Madhab Das, lodged a FIR in the Ananda Bazar Police Outpost (B arpeta District) stating that the accused appellant, who had abducted his daught er Thunubala Das and, thereafter, had married her, had been committing mental an d physical atrocities on his daughter on account of dowry. In the FIR filed it i s stated that in the early hours of the same day i.e. 16.8.2001, the accused had assaulted and killed the daughter of the first informant and had kept her body hanging inside the house with a rope. On receipt of the aforesaid FIR, a General Diary Entry of the Ananda Bazar Police Outpost (G.D. Entry No.216) was made and the FIR was forwarded to the Barpeta Road Police Station for registration of a case. P.W. 11, Giyasuddin Ahmed, who was then working as the In-charge of the An anda Bazar Police Outpost, took up the investigation of the case in the course o f which inquest was held on the dead body and the same was sent for postmortem e xamination. Simultaneously, on receipt of the FIR in the Barpeta Road Police Sta tion, Barpeta Road Police Station Case No.213/2001 under Section 304-B IPC was r egistered. Thereafter, at the conclusion of the investigation, charge-sheet unde r Section 304-B was submitted against the accused appellant. The said offence be ing exclusively triable by the Court of Sessions, the learned Sub-Divisional Jud icial Magistrate (S), Barpeta by order dated 17.5.2006 committed the case for tr ial to the Court of Sessions at Barpeta. In the Trial Court, Charge under Sectio n 304-B IPC was framed against the accused appellant to which he pleaded not gui lty and wanted to be tried. In the trial held, 11(eleven) witnesses were examine d by the prosecution and none by the defence. However, the accused appellant was examined and his statement was recorded under Section 313 Cr.P.C. Thereafter, a t the conclusion of the trial, the accused appellant has been convicted and sent enced as aforesaid. Aggrieved, this appeal has been filed. 3. We have heard Mr. JM Choudhury, learned senior counsel appearing for the accused appellant and Shri Z. Kamar, learned Public Prosecutor, Assam. 4. Shri Choudhury, learned counsel for the accused appellant has ta ken the Court through the entire of the prosecution evidence on record and has s ubmitted that the necessary ingredients to establish commission of the offence u nder Section 304-B IPC have not been proved and established by the prosecution i n the present case. While Shri Choudhury has agreed that in the instant case dea th of the wife of the accused appellant took place in unnatural circumstances i. e. by hanging, and such death had occurred within seven years of the marriage be tween the accused appellant and the deceased, it has been pointed out by the lea rned counsel for the accused appellant that the prosecution has miserably failed to establish that there was any demand for dowry by the accused appellant and f urther that the accused appellant had treated the deceased with cruelty on accou nt of such demand for dowry. Two of the essential ingredients to attract the pro vision of Section 304-B IPC being absent in the present case, it is the submissi on of the learned counsel for the accused appellant that the conviction of the a ccused under the aforesaid section of the Indian Penal Code is wholly untenable. 5. Controverting the submissions advanced on behalf of the accused appellant, Shri Z. Kamar, learned Public Prosecutor has vehemently contended tha t the evidence of P.W.1, who is the father of the deceased, and the evidence of P.Ws. 4 and 5 amply prove that there had been demands for dowry by the accused-a ppellant. Furthermore, according to the learned Public Prosecutor, from the evid ence of P.W.4 and P.W.10, it clearly transpires that the accused appellant had b een treating his wife with cruelty. Therefore, according to the learned Public P rosecutor, the necessary ingredients to attract commission of the offence under Section 304-B IPC are present in the instant case and there is no infirmity in t he conviction ordered by the learned Trial Court. Learned Public Prosecutor has alternately submitted that if the charge under Section 304-B is to fail, the mat erials on record would establish commission of the offence under Section 306 IPC by the accused appellant. In this regard, the learned Public Prosecutor has sub mitted that the omission to frame any separate charge under Section 306 IPC woul d not stand in the way of alteration of the conviction of the accused under the aforesaid provision of the Indian Penal Code. In this regard, reliance has been placed on a judgment of the Apex Court in the case of K. Prema Rao -Vs. Yadla S rinivas Rao reported in 2003 (1) SCC 217. Lastly, it has been submitted by the l earned Public Prosecutor that if both the aforesaid contentions are not to find favour of the Court, the present would be a fit case for retrial of the accused appellant for the charge under Section 306 IPC. In this regard, the provisions o f Section 464 of the Code of Criminal Procedure has been relied upon by the lear ned Public Prosecutor. 6. To appreciate the contentions advanced before us on behalf of th e contesting parties, it will be necessary to briefly notice the core of the evi dence tendered by the prosecution witnesses. 7. P.W. 1, Madhav Das, is the father of the deceased. In his deposi tion P.W.1 has stated about the elopement of his daughter with the accused appel lant and the subsequent marriage between the two. P.W. 1, in his deposition, ha d stated that after marriage he had delivered some articles to the accused which , however, was not found acceptable by the accused. P.W.1 had also deposed that on the demand for dowry the accused had been committing atrocities on his daught er. It had been specifically stated by P.W.1 that on the day of occurrence, in t he afternoon, he was informed of the incident by a village boy whereafter he wen t to the police outpost and lodged the ejahar. According to P.W.1, the police ca me to the house and on opening the door the dead body of his daughter was found in a hanging position though the legs were on the ground. P.W.1 had further depo sed that two days before the death of his daughter, he alongwith some other vill agers had gone to the accused to advice him to live peacefully with the deceased and not to torture her. According to P.W.1, the accused appellant had replied t hat he would kill his wife and, if needed, he would go to jail. In cross-examination, however, P.W.1 had stated that the accused belongs to a rich family and that he had no want for money. 8. P.W.2, Shri Joydeb Das, is the brother of the accused who was in formed of the incident at about 4 P.M. of the day of occurrence. Thereafter, he came home and found the deceased hanging with a chadar . According to P.W.2, he informed the Gaon Burah and other villagers who in turn advised them to inform the police. In cross-examination this witness had stated that on the day of occu rrence, the accused was working in the field with him and there was no quarrel b etween the accused and the deceased. 9. P.W.3, Shri Ramesh Das, is an uncle of the accused who came to k now of the incident at about 4.00 P.M. Thereafter, he went to the house of the a ccused appellant and found the deceased hanging with a chadar . According to P. W.3, he was not aware of any quarrel between the accused and the deceased. 10. P.W. 4, Shri Praneswar Das, had deposed that the deceased had el oped with the accused appellant 4/6 months prior to the occurrence. In his depos ition P.W. 4 had stated that initially the accused and the deceased lived peacef ully. Thereafter, the accused started atrocities on his wife demanding dowry. Ac cording to this witness, the father of the deceased had called him (P.W.4) and s ome other persons to advise the accused to live peacefully. However, according t o this witness, the accused did not agree and had in-fact stated that he would k ill his wife. In cross-examination, this witness admitted that he had not stat ed before the police that the accused and the deceased initially lived peacefull y and, thereafter, the accused had demanded dowry and had been committing atroci ties on his wife for the said reason. 11. P.W. 5, Shri Bhupen Das, who is a neighbour, had deposed that af ter marriage the accused and the deceased had lived peacefully for about two mon ths whereafter some differences had occurred as a result of which deceased had c ome to the house and reported the incident to her mother. To resolve the dispute , the father of the deceased (P.W.1) took this witness and others to the house o f the accused appellant in order to counsel him. However, according to witness, the accused appellant was adamant and stated before all present that he would go to jail but would kill the deceased. Two days thereafter, the occurrence took p lace. In cross-examination, this witness had stated that he heard from the father of the deceased (P.W.1) that the accused had made a demand for dowry . 12. The evidence of P.W.s 6 and 7 will not be very relevant. Both th e witnesses had admitted that they were not conversant with the circumstances su rrounding the death of the deceased. 13. P.W. 8, Dr. Dijesh Chandra Sarmah, who was working as the Sub-Di visional Medical and Health Officer in the Barpeta Civil Hospital had conducted the autopsy on the dead body of Thunubala Das on 17.8.2001. The findings of the postmortem including the opinion of the doctor as to the cause of death may be u sefully extracted below :- External Appearance :- An average built female body not decomposed, rigor mortis present, bluis h colouration of lips, nail bids etc. seen. Eyes closed, tip of tounge seen betw een teeth. No faecal discharge present. Wounds bruise etc. absent. An oblique noncontinous ligature mark seen high up in the neck, knot is behind the left ear. Skin over the mark is hard like parchmentise. No brusing in deeper tissues, cut section shows a band of white fibres tissue at the base. Carnium and Spinal Canal - Healthy. Thorax : Right side of heart is filled with dark fluid blood. Left side empty. Other organs - Healthy. Stomach contains partially digested food material. Liver, Spleen, Kidney are congested. The ligature mark around the neck is ante-mortem in nature. No injury detected i n her person. OPINION :- In my opinion, death was due to asphyxia as a result of hanging. Ext. 3 is post mortem report. Xerox copy done in one and same mechanical process which are my own hand writing. Ext.3(1) is Xerox signature done in the same man ner. 14. P.W.9, Shri Hiranya Das, in his evidence had stated that hearing about the incident he came to the house of the accused and found the deceased h anging inside the house. On the other hand, P.W.10, Shri Jayanta Das, in his dep osition had stated that the accused had been assaulting the deceased physically. P.W.10 has deposed that three days before the occurrence he along with others h ad gone to counsel the accused appellant, but the accused told him and others th at he would kill his wife and marry another girl. In cross-examination, P.W.10 had, however, admitted that they ha d not accepted the marriage between the accused and the deceased as the accused had taken away the deceased against their will. He had, however, admitted that h e cannot say the date or dates on which deceased was assaulted by the accused. 15. P.W. 11, Giyasuddin Ahmed, was working as the In-charge of the A nanda Bazar Police Outpost at the relevant point of time. He had deposed that on receipt of the ejahar (Ext.1) he made an entry in the General Diary of the Poli ce Outpost and had sent the ejahar to the Barpeta Road Police Station for regist ering a case. P.W.11 had deposed that he had reached the place of occurrence at about 6 P.M. and found the deceased hanging. Thereafter, he took necessary steps to bring down the body, hold inquest and send the same for postmortem examinati on. In cross-examination, P.W.11 had stated that P.W. 1 (Madhav Das) did not state before him that he had delivered some articles in a thela to his daughter’s home and further that two days prior to the occurrence he had gone to the house of the accused along with some villagers to advise the accused to liv e peacefully with his wife. In cross-examination P.W.11 had also deposed that P. W. 4, Shri Praneswar Das, did not state before him that the accused and the dece ased had lived peacefully for about two months after marriage and further that w hen P.W.4 had gone to counsel the accused he had stated that he would kill his w ife. Similarly, P.W.11 had deposed that P.W.5 (Shri Bhupen Das) did not state be fore him that when he had gone to counsel/advise the accused, he had stated in t he presence of the villagers, that he would kill his wife and would go to jail. 16. To bring home an offence under Section 304-B of the Indian Penal Code, the prosecution must prove and establish the following circumstances :- (i) that the death of the woman has been caused by any burns or bodily injur ies or had occurred otherwise than under the normal circumstances; (ii) that the death had occurred within seven years of the marriage of the wo man; and (iii) that soon before her death the woman was subjected to cruelty or harassm ent by her husband or any relative of her husband for and in connection with any demand for dowry. If all the aforesaid ingredients of the offence under Section 30 4-B IPC are proved and established by the prosecution, the husband or the relati ve, as may be, can be deemed to have caused the death of the woman. Section 304- B IPC was inserted by the Dowry Prohibition Act, 1986 i.e. Act No.43 of 1986. Th e said Act also introduced a new section in the Indian Evidence Act i.e. Section 113-B which is to the following effect :- 113-B. Presumption as to dowry death. - When the question is whether a person h as committed the dowry death of a woman and it is shown that soon before her dea th such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such per son had caused the dowry death. 17. A conjoint reading of Section 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act make it clear that once all the necess ary ingredients of the offence under Section 304-B of the Indian Penal Code are proved and established by the prosecution, there is a legal presumption that the person who had subjected the deceased woman to cruelty and harassment for or in connection with any demand for dowry had caused the death of the woman. The pre sumption that arises by virtue of the provisions of Section 113-B of the Evidenc e Act, of-course, can be rebutted by the accused by adducing contrary evidence. 18. In the present case that the death of the wife of the accused ha d occurred in circumstances other than normal and within seven years of marriage undoubtedly stands proved by the evidence on record including the evidence of P .W.8 Dr. Dr. Dijesh Chandra Sarmah who had deposed that the death of Thunubala D as was caused by asphyxia as a result of hanging. The Court, therefore, has to s ee whether the next ingredient of the offence under Section 304-B, namely, that before her death the deceased was treated cruelly by the accused appellant for o r in connection with any demand for dowry has been proved beyond all reasonable doubt. 19. Proof of demand of dowry has to be culled out from the evidence of P.Ws.1, 4 and 5. P.Ws.4 and 5 have both stated that it is P.W. 1 who had info rmed them that the accused appellant had been demanding dowry and that he had be en ill-treating his wife for which reason P.W.1 had asked P.W.s 4 and 5 along wi th others to go and counsel/advise the accused appellant. The evidence of P.W. 1 , therefore, will be crucial in determining the question of demand for dowry by the accused appellant. The said witness (P.W.1) had stated that he used to work as a day labourer in the house of the accused appellant and in cross-examination he had stated that the accused belongs to a rich family and he did not have any need for money. The evidence of P.W.1 that he had gone to deliver articles to t he house of the accused in a thela is a statement made for the first time in the Court inasmuch as P.W.11, the Investigating Officer, had clearly stated that P. W.1 did not make any such statement before him while the witness was examined un der Section 161 Cr.P.C. P.W.5 in his evidence had stated that after two months of the marriage some differences/dispute took place between the accused and the deceased as a result of which the deceased had come and reported the incident to her mother. Thereafter, P.W.1 (Madhav Das) requested P.W.5 and other villagers to come to the house of the accused appellant to counsel him. Strangely, the mot her in whom the deceased girl had confided her marital problems had not been exa mined in order to prove that the dispute and the differences between the accused and the appellant, as deposed to by P.W.5, was on account of any demand for dow ry. In the aforesaid circumstances, the Court is of the view that it would be re asonable to hold that the prosecution has not succeeded in proving beyond all re asonable doubt that there was demand for dowry by the accused. In the above situ ation, the prosecution evidence with regard to atrocities committed by the accus ed on the deceased, even if accepted by the Court, will have to be understood to be unconnected with any demand for dowry in which event the offence, if any, co mmitted by the accused would not fall within the four corners of the provisions of Section 304-B of the Indian Penal Code. 20. The above discussions, in our considered view, should inevitably lead to the conclusion that in the present case the prosecution has failed to e stablish that before her death the deceased was treated cruelly by the accused f or or in connection with demands for dowry so as to held the accused liable for commission of the offence under Section 304-B of the Indian Penal Code. 21. This will bring the Court to the consideration of the question a s to whether on the materials on record the accused appellant would be liable fo r the offence under Section 306 IPC, as urged by the learned Public Prosecutor. Section 306 of the Indian Penal Code is in the following terms :- 306. Abetment of suicide. - If any person commits suicide, whoever abets the co mmission of such suicide, shall be punished with imprisonment of either descript ion for a term which may extend to ten years, and shall also be liable to fine. 22. Section 113-A of the Evidence Act permits a presumption to be dr awn with regard to abetment of suicide by a married woman in the following circu mstances :- 113 A. Presumption as to abatement of suicide by a married woman - When the que stion is whether the commission of suicide by a woman had been abetted by her hu sband or any relative of her husband and it is shown that she had committed suic ide within a period of seven years from the date of her marriage and that her hu sband or such relative of her husband had subjected her to cruelty, the court ma y presume, having regard to all the other circumstances of the case, that such s uicide had been abetted by her husband or by such relative of her husband. 23. To bring home the offence under Section 306 of the Indian Penal Code, the prosecution must establish such cruelty and harassment on the part of the accused which had forced/driven the woman to commit suicide. While it is cor rect that mere omission or defect in framing of a charge will not disable the Co urt from convicting the accused for any offence which is found to have been prov ed by the evidence on record, the Court would desist from recording a conviction for any such offence, if the failure to frame an appropriate charge or omission in the charge framed has caused prejudice to the accused in defending himself a gainst the offence for which he is to be convicted by the Court. 24. In the present case, the charge framed against the accused is in the following terms :- That you on or about 16.8.2010 at Samua Gan under Barpeta Road P.S. are a you killed your wife Thunu bala Das at your house demanding some unlawful dowe r from your wife and after killing your wife you hanged the body of your wife de signed to have committed suicide. And thereby committed an offence punishable under Section 304(B) of the Indian Penal Code and within cognizance of this court. 25. Irrespective of the palpable misunderstanding of the offence und er Section 304-B of the Indian Penal Code on the part of the learned Trial Court which is revealed by the charge framed, the Court is of the view that at no sta ge of the trial the accused appellant had the occasion to defend himself against the charge of abetment of suicide under Section 306 IPC. The reliance placed by the learned Public Prosecutor on the judgment of the Apex Court in the case of K. Prema Rao (supra) has to be understood by the Court to be totally misplaced i nasmuch as in the said case in the charge framed against the accused under Secti on 304-B IPC as well as Section 498-A IPC, it was clearly mentioned that the dec eased woman had committed suicide by consuming poison and that the accused had s ubjected the deceased woman to such cruelty and harassment so as to drive her to commit suicide. It is in the aforesaid facts that conviction of the accused was made under Section 306 IPC, notwithstanding absence of any specific charge unde r the aforesaid section of the Indian Penal Code. 26. Section 464