Holding

The conviction under Sections 306 and 498-A is unsustainable and is set aside because the prosecution failed to establish the requisite elements and no Section 313 examination on dowry demand or abetment of suicide was made.

Summary

The appellants were convicted by the trial court for offences under Sections 306 (abetment of suicide) and 498-A (dowry harassment) of the Ranbir Penal Code, although the charge originally framed was only under Section 302 IPC (murder) read with Section 34. The High Court upheld the conviction, reducing the sentence for the Section 306 offence. On appeal, the Supreme Court observed that the prosecution failed to prove the essential ingredients of Sections 306 and 498-A, and no examination under Section 313 of the CrPC was conducted on dowry demand or abetment of suicide. The Court also held that a conviction for an offence not charged, or not a "minor offence" under Section 222 CrPC, cannot be substituted without a proper appeal. Consequently, the conviction was set aside and the bail bonds were discharged.

Issues considered

The trial court’s conviction under Sections 306 and 498-A despite the charge being framed only under Section 302 IPC.
Whether a court may convict of an offence not charged or not a minor offence under Section 222 CrPC.
Whether the prosecution proved the essential ingredients of Sections 306 and 498-A, including dowry demand and abetment of suicide.
Whether the absence of examination under Section 313 CrPC on dowry demand/abetment of suicide vitiates the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 222, s. 313, s. 401
Indian Evidence Act, 1872s. 113-A
Ranbir Penal Codes. 302, s. 306, s. 34, s. 498-A

Subjects

abetment of suicidedowry harassmentSection 306Section 498-ASection 313 CrPCcharge framingminor offenceSection 222 CrPCpresumptionEvidence Act 113-Acriminal appeal

Judgment

[2009] 7 S.C.R. 486

A SIMLA DEVI AND ANR.
v.
STATE OF JAMMU AND KASHMIR
Criminal Appeal No. 22 of 2002
MAY 5, 2009
B
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.) .,

Ranbir Penal Code:
..
•
c Sections 306 and 498-A - Conviction by the Trial Court
- Upheld by the High Court but sentence reduced -
Correctness of - Held: In the examination under s.313 no
question was asked relating to demand of dowry and abetment
of suicide - Hence conviction set aside.
D Sangaraboina Sreenu v. State of A.P 1997 (5) SCC 348;
Lokendra Singh v. State of M.P. 1999 SCC (Criminal) 371;
Shamnsaheb M. Multtani v. State of Karnataka 2001 (2) SCC
577 and Lakhjit Singh v. State of Punjab 1994 Supp (1) SCC
173 - referred to.
E
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 22 of 2002
·•
From the Judgement and Order dated 25.08.2000 of the "'
Hon'ble High Court of Jammu & Kashmir in Criminal First
F Appeal No. 7 of 1992
K.T.S. Tulsi, Sushi! Kumar Jain, Puneet Jain, for the
Appellant.
The Judgement of the Court was delivered by
G DR. ARIJIT PASAYAT, J.
..
1. Challenge in this appeal is to the judgment of a learned
Single Judge of the Jammu and Kashmir High Court upholding
t~e conviction of the appellant for offence punishable under

H 486
SIMLA DEVI AND ANR V. STATE OF JAMMU 487
AND KASHMIR [DR. ARIJIT PASAYAT, J]

,. Sections 306 and 498-A of the Ranbir Penal Code (in short the A
'RPC') while reducing the sentence so far as the offence
relatable to Section 306 is concerned. The custodial sentence
and fine of Rs.500/- was confirmed. Learned Sessions Judge,
Kathua had found the appellant guilty as afore-noted and had
sentenced the appellant to undergo RI for 71h years and 2 years B
respectively and-fine with default stipulation. Appellant No.1 is
the mother of appellant No.2. The present appellant and one
Jatinder Kumar, brother of appellant No.2 faced trial for alleged
r
commission of offence referred to above.

2. Prosecution version in a nutshell is as follows: c
On 29.5.1990 Suman Lata (hereinafter referred to as the
deceased) was brought to district Hospital Kathua. She had
sustained burn injuries. Police came to know about this
occurrence. An Assistant Sub-Inspector Amar Chand Padha
D
reached there. Statement of the deceased was recorded. On
the basis of the statement so given First Information Report came
" to be lodged. This was under Section 498-A of RPC. The victim
was taken to a Government Hospital at Jammu. Another
statement of the victim came to be recorded. This was recorded
at Jammu on 29.5.1990. This was also recorded by a Police E
Officer. Later, on sixth day, i.e. 3.6.1990 another statement came
to be recorded. This statement was recorded by Gulam Naib
Tehsildar Digiana. The victim died on 6.6.1990. This is thus a
.. case where one statement of the deceased came to be
recorded on 29.5.1990. This was recorded by a police officer F
in the District Hospital, Kathua. Another statement came to be
recorded after she was admitted in the SMGS Hospital. This
statement was again recorded on 29_5.1990. This was again
by a police officer. Another statement came to be recorded by
Gulam Nabi, Executive Magistrate on 3.6.1990. The trial Court G
on the basis of the first statement which was recorded in the
._ District Hospital, Kathua and after referring to oral as also
-<I documentary evidence convicted two of the accused persons.
·-
There were in fact several statements recorded of the
H
488 SUPREME COURT REPORTS [2009] 7 S.C.R.

A deceased. They gave entirely different scenario. The trial Court
noticed that at the stage of framing.charge the question was as
to which of the different versions was to be preferred. The Court
was required to appreciate whether it was a case of murder or
abetment to suicide. The trial Court by order dated 1.11.1998
B framed charge under Section 302 read with Section 34 RPC.
As the trial Court itself noted in its judgment, in case the earlier
statement of the deceased was believed the other two
statements cannot be ignored because their evidentiary value
could be appreciated and, therefore, the proper charge was "
c under Section 302 read with Section 34 RPC.
Sixteen witnesses were examined to further the
prosecution version. As the accused pleaded innocence they
also examined 11 witnesses. The trial Court proceeded on the
premises that from the beginning two versions of the deceased
D were there; one relating to suicide and the other relating to
murder. Even though the charge was framed under Section 302
read with Section 34 RPC the trial Court felt that the appropriate
conviction would be under Sections 306 and 498-A of RPC.
The conclusions were questioned before the High Court. By the
E impugned judgment the High Court held that whatever be the
charge framed the question is appreciation of evidence and
accordingly upheld the conviction.
3. In support of the appeal, learned counsel for the appellant
~
submitted that the ingredients of Sections 306 498-A are absent
F and in any event no question was put under Section 313 of the
Code of Criminal Procedure, 1973 (in short the 'Code') relating
to these offences.
4. The respondent-State on the other hand supported the
judgment. So far as the ingredients are concerned, in
G
Sangaraboina Sreenu v. State of A.P (1997 (5) SCC 348) it
was noted as follows:
~

"2. This appeal must succeed for the simple reason that
'
having acquitted the appellant of the charge under Section
H 302 IPC -which was the only charge framed against him
""
BIMLA DEVI AND ANR. V. STATE OF JAMMU 489
AND KASHMIR [DR. ARIJIT PASAYAT, J.]
.. - the High Court could not have convicted him of the A
.' 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 B
within the meaning of Section 222 CrPC for the two
offences are of distinct and different categories. While the
·r basic constituent of an offence under Section 302 !PC is
homicidal death, those of Section 306 IPC are suicidal
death and abetment thereof." c
5. Similarly, in Lakendra Singh v. State of M.P (1999 SCC
. (Criminal) 371) it was observed as follows:
"3. Law is well settled that in respect of a charge once
framed, there can only be an order of conviction or
D
acquittal. Therefore, notwithstanding the fact that the trial
court did not record a formal finding in respect of the charge
under Section 306 IPC, the appellant stood acquitted
thereof. This apart, the trial court having convicted the
appellant of the charge under Section 302 IPC could not
have convicted him of the alternative charge (under Section E
306 IPC). Such acquittal could be converted into conviction
' by the High Court only in an appeal preferred by the State.
}( Admittedly, no such appeal was filed. Of course, by
exercising its suo motu revisional power under Section
~01 CrPC, the High Court could also have set aside the F
acquittal under Section 306 IPC but this question is now
purely academic for the High Court did not exercise such
.,
power and, even if it had, it could not have converted the
finding of acquittal recorded in favour of the appellant to
one of conviction in view of the express bar of sub-section G
(3) of Section 401 CrPC. We reach the same conclusion

-.
~
" through a different route.
6. In Shamnsaheb M. Multtani v. State of Karnataka (2001
(2) sec 577) in paras 16 to 19 it was noted as follows:
H
490 SUPREME COURT REPORTS [2009] 7 S.C.R.

A "16. What is meant by "a minor offence" for the purpose
of Section 222 of the Code? Although the said expression
is not defined in the Code it can be discerned from the
context that the test of minor offence is not merely that the
prescribed punishment is less than the major offence. The
B two illustrations provided in the section would bring the
above point home well. Only if the two offences are cognate
offences, wherein the main ingredients are common, the
one punishable among them with a lesser sentence can
be regarded as minor offence vis-a-vis the other offence.
C 17. The composition of the offence under Section 304-B
IPC is vastly different from the formation of the offence of
murder under Section 302 IPC and hence the former
cannot be regarded as minor offence vis-a-vis the latter.
However, the position would be different when the charge
D also contains the offence under Section 498-A IPC
(husband or relative of husband of a women subjecting
her to cruelty). As the word "cruelty" is explained as
including, inter alia,
"harassment of the woman where such harassment is with
E 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".

F 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
G
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?
-
H
BIMLA DEVI AND ANR. V. STATE,QF JAMMU 491
AND KASHMR[DR ARIJIT'-PASAYAT, J.] ··

19. A two-Judge Bench of this Court (K. Jayachandra A
Reddy and G.N. Ray, JJ.) has held i_n Lakhjit. Singh v. ··
. State of Punjab that if a prosecutionJailed 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 B
court to convict the accused of the latter offence." •

r 7. The earliest judgment_ on the point .is Lakhjit Singh v.
State of Punjab (1994: Supp (1) SCC 173) which was not
ref~rred to in Sangaraboina's case (supra) and Lakendra C
Singh's case (supra) .......

8. The position has been explained in Shamnsaheb M.
Multtani's case (supra).

9. It was noted that in Jammu and Kashmir there is no
0
provision similar to Section 304-B IPC.
10. In Shamnsaheb M Multtani'scase_(supra) it was noted ..
as foilows:
..
"29. At. this stage, we may note the.difference in the legal . E
position between the said offence and Section 306 IPC
which was merely an offence of abetment of suicide earlier.
The section remained in the .statute-book without any
practical use tiil 1983. But by the introduction of Section
.113~A in the Evidence Act the said offence under Section
F
306 IPC has acquired wider dimensions and has become
a serious marriage-related offence. Section 113-A of the
Evidence Act says that under certain conditions, almost
similar to the conditions for dowry death the court may
presume having regard to the circumstances of the case, G
that such suicide has been abetted by her husband etc ..
When the law says that the court may presume the fact, it ·
is discretionary on the part of the court either to regard
·such fact as proved or not fo do so, which depends upon
all the other circumstances of the case. As ·there is .no H
492 SUPREME COURT REPORTS [2009] 7 S.C.R.

A compulsion on the court to act on the presumption the ~

accused can persuade the court against drawing a ...
presumption adverse to him.

30. But the peculiar situation in respect of an offence under
Section 304-B IPC, as discernible from the distinction
B
pointed out above in respect of the offence under Section
306 IPC is this: Under the former the court has a statutory
compulsion, merely on the establishment of two factual
T
positions enumerated above, to presume that the accused
has committed dowry death. If any accused wants to
c escape from the said catch the burden is on him to
disprove it. If he fails to rebut the presumption the court is
bound to act on it.

31. Now take the case of an accused who was called
D 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
E 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
go to the assistance of the prosecution in such a situation.
~
If that be so, when an accused h'as no notice of the offence
F 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 is alternatively convicted
under $ection 304-B IPC and sentenced to the serious
punishment prescribed thereunder, which mandates a
G minimum sentence of imprisonment for seven years.

·. 32. The serious consequence which may ensue to the
accused in such a situation can be limned through an
illustration: If a bride was murdered within seven years of
her marriage and there was evidence to show that either
H
BIMLA DEVI AND ANR. V STATE OF JAMMU 493
AND KASHMIR [DR. ARIJIT PASAYAT, J.]

on the previous day or a couple of days earlier she was A
subjected to harassment by her husband with demand for
. dowry, such husband'would be guilty of the offence ori the
language of Section 304-B !PC read with Section 113-B ,.
of the Evidence Act But if the murder of his wife was
a
actually committed either by a dacoif or by militant in a B·
terrorist act the husb.and 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
corwicted under Section 304-8 IPC. s·ut if the husband is
charged only under Section 302 IPC hefhas no b'urden to c
prove that his wife was murdered like that as he can have
his traditional defence that the prosecution h.a§ failed to
prove the charge of murder against him 'and ·claim an
order of acquittal.

33. The above illustration would amplify the gravity of the D
consequence befalling an accused if he was only asked
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
to disprove the burden cast on him by law. E
34. In such a situation,· if the trial court finds that the
prosecution has failed to make out the case under Section C.

302 IPC, but the offence under Section 304-8 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 F
affording such an opportunity to the accused, a conyiction
under Section 304-8 IPC wo.uld lead to real and serlOds
miscarriage of justice. Even if no such count was included·
in the charge, when the court affords him an opportunity to
discharge his burden by putting him to notice regarding G
the prima facie view of the court that he js liable to be
it-
convicted under Section 304-8 . IPC, unless he succeeds
.
in disproving the presumption, it is possible for the court
to enter upon a conviction of the said ·offence in the event
of his failure to disprove the presumption." H

'
494 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 11. In the said case the matter was Femanded. But in the
present case no useful purpose would be served in reh1andin,g
matter since it is more than 20 years old and the appellant has
?erved part of the custodial sentence. Apart from that in the
present case, in the examination under Section 313 of the Code
B no question was put up relating to demand of dowry and
'abetment of suicide. That being so, 'the appeal deserves to be
allowed which we direct. The conviction stands set aside. The
bail bonds executed to give effect to the order of bail dated
. 9.1.2001 shall stand discharged.
C 12. Appeal is allowed.

G.N. Appeal allowed.