Allowed

Bindeshwari Yadav And Ors. v. State

Jharkhand HC16 Jul 2025Cr.A(DB)/9900408/1997

Case brief

AI extract

What is this about?

This High Court allowed an appeal against a conviction for dowry death (IPC 304(B)) where no evidence of dowry demand was led by the prosecution. The court held the conviction unsustainable as the essential ingredient of dowry demand was missing.

What did the court decide?

Judgment of conviction and order of sentence dated 29.08.1997 and 30.08.1997 are quashed; appellants discharged from all criminal liabilities and bail bonds.

Bindeshwari Yadav And Ors. Vs State — Murder and Culpable Homicide | Jharkhand HC (2025)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 408 of 1997(R)

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[Against the Judgment of conviction dated 29.08.1997 and Order of sentence dated 30.08.1997 passed by learned 1^st Additional District and Sessions Judge, Godda, in Sessions Case No.138 of 1995/58 of 1995]

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Bindeshwari Yadav son of Arjun Yadav.

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Pachia Devi, wife of Arjun Yadav All are resident of Village-Baghakole, P.S. Pathargama (Basant Rai) District-Godda.

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… … Appellants Versus The State of Bihar (now Jharkhand) … … Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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For the Appellant : Mr. Anand Kumar Sinha, Advocate : Mr. Abhishek Sharan, Advocate For the Respondent : Mr. Vineet Kr. Vashistha, Spl. P.P.

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Order No.10/Dated 16^th July, 2025

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Per Sujit Narayan Prasad, J.

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1. The instant appeal is directed against the Judgment of conviction dated 29.08.1997 and Order of sentence dated 30.08.1997 passed by learned 1^st Additional District and Sessions Judge, Godda, in Sessions Case No.138 of 1995/58 of 1995 by which the appellants have been convicted under section 304(B) of the Indian Penal Code (IPC) read with 34 IPC and have been directed to undergo imprisonment for life for the offence under Section 304(B) IPC.

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2. At the outset, it needs to be mentioned that the instant appeal was filed by appellants, namely, Arjun Yadav, Bindeshwari Yadav and Pachia Devi.

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3. It was informed to this Court that the appellant, namely, Arjun Yadav has died and, therefore, vide order dated 04.12.2024, the appeal against Arjun Yadav has been abated and the instant appeal is confined only with respect to appellants, namely, Bindeshwari Yadav and Pachia Devi.

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Factual Matrix

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4. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case. The prosecution story in brief as per the allegation made in the First Information Report reads hereunder as :-

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5. The case of the prosecution is that the informant got his daughter Mina Devi married to Bindeshwari Yadav son of Arjun Yadav about three years prior to the occurrence about 15 to 20 days prior to the occurrence the son in-law of the informant named Bindeshwari Yadav came to his house. After staying some days, he wanted that he should be allowed to take his wife with him. At this the informant stated that the lady had an issue of only three months so he should allow the lady to reside with her parents, but the son in-law Bindeshwari Yadav did not agree and asked that he should be allowed to go away with his wife. It is stated that only about 10 days of prior to occurrence, the victim lady was allowed to accompany her husband. The informant stated

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that he purchased clothes for his daughter at Basant Rai and accompanied daughter to her sasural. By the time, the lady came to her sasural it was sun set. As soon as she came to her Sasural. Arjun Yadav and Pachiya Devi began to show their temper against the lady named Mira Devi and Bindeshwari Yadav. They even asked that they should Leave the house. After much persuasion they were allowed to the reside in the house.

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6. The written report was given on 19-8-94 on Friday. It is stated that prior to Friday he had gone to village Bagha Coal on Monday where his daughter was married. The informant had gone to meet his sister who was also married in village Bagha coal. Victim Mina Devi was married in Bagha coal. The informant stated that while he was going to meet his sister in village Bagha coal on Monday (that is on 15-8-94) he saw his daughter Mina Devi taking out water from well near her house. He enquired from his daughter on which his daughter stated that her father in-law Arjun Yadav and mother in-law (Pachiya Devi) always quarrelled with her. They also asked her that she should leave the house otherwise she would be killed. After stating this her daughter began to cry. The informant consoled her. He also asked his sister that she should keep watch on his daughter.

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7. It is stated that on 18.08.94 on Thursday in the night, the son of Arjun Yadav named Kamleshwari Yadav and Dhura Yadav went to his house and stated that his daughter

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died. At this the informant was taken aback and enquired how she died. Then they replied that her daughter was suffering from headache so she died. Thereafter the informant and brother named Shivpujan Yadav and his wife Lakho Devi came to the village where his daughter was married. They saw that the dead body of her daughter was kept on the cot. He enquired from his samdhi and Samdhin (Arjun Yadav and Pachiya Devi) that they had committed murder of the victim and had created he plea of ligature mark of rope on to neck because he was informed that the victim was suffering from illness and also suffering from loose motion. The informant was informed by his sister Uma Devi and others that Arjun Yadav and Pachiya Devi began to quarrel on Thursday on which his daughter husband Bindeshwari Yadav asked the victim to warm milk and offer to the little baby who was on the lap. Thereafter Bindeshwari Yadav sat for gathering grasses. It is stated that thereafter Arjun Yadav & Pachiya Devi strangulated the victim by thin rope round her neck. When the informant came to the sasural of his daughter, all the inmates fled from the house.

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8. On the basis of written report of the informant, Pathargama (Basant Rai) P.S. Case No.111 of 1994 was registered against the accused persons under Section 302/34 of the I.P.C.

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9. After investigation, the police submitted charge sheet against the appellants.

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10. After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 304B/34 1.P.C. and Section 3 and 4 of Dowry Prohibition Act 1961, was framed to which the accused pleaded not guilty and claimed to be tried.

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11. The prosecution has altogether examined 08 witnesses. None of these witnesses are eye witness to the alleged occurrence.

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12. The Defence has not examined any witness in support of his case.

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13. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused person, found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had been found guilty and convicted for the offence punishable under Section 304(B) of the Indian Penal Code.

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14. The aforesaid order of conviction and sentence is subject matter of instant appeal.

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Submission of the learned counsel for the appellant:

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15. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the trial court cannot be sustained in the eyes of law.

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16. The following grounds have been taken by the learned counsel for the appellants in assailing the impugned judgment of conviction: -

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(i) It is a case where the appellants have been convicted under Section 304(B) of the Indian Penal Code even though there is no ingredient of Section 304(B) of the Indian Penal Code, particularly, there is no evidence of demand of dowry.

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(ii) It has been contended that the condition as stipulated under Section 304(B) of the Indian Penal Code is only said to be attracted if all the four ingredients have been found available on the evidence, if led to that effect by the prosecution.

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(iii) The contention has been raised that if the testimony of all the witnesses will be taken into consideration, then it would be evident that no evidence has come with respect to any demand of dowry. But, even then, in absence of one of the ingredients of Section 304(B) of the Indian Penal Code, i.e., demand of dowry, the appellants have been convicted under Section 304(B) of the Indian Penal Code.

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(iv) The contention has also been raised that the question under Section 313 Cr.P.C. has been put of demand of dowry but the said question of demand of dowry is foreign to the evidence, since,

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no such evidence has been led by the witnesses on the issue of demand of dowry.

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17. The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that, therefore, it is a case where the judgment of conviction is fit to be interfered with.

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Submission of the learned counsel/Spl.P.P for the state:

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18. Per contra, Mr. Vineet Kumar Vashistha, learned Spl.P.P. appearing for the State, has submitted by taking the following grounds in defending the impugned judgment:

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(i) Learned State counsel while admitting the fact that there is no evidence led with respect to the issue of demand of dowry but there is evidence to attract the ingredients of Section 302 of the Indian Penal Code, hence, if the appellants have been convicted under Section 304(B) of the Indian Penal Code, that can be converted to that of the offence said to be committed under Section 302 of the Indian Penal Code.

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(ii) It has been contended that for the aforesaid purpose, the matter is fit to be remanded for de novo trial by directing the learned trial court to frame the charge under Section 302 of the Indian Penal Code.

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(iii) He has relied upon the judgment rendered by Hon’ble Apex Court in the case of Dalbir Singh v.

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State of U.P. [(2004) 5 SCC 334] in order to buttress his argument that under the provision of Section 221 of the Cr.P.C., the charge can be altered at any stage and under the provision of Section 464 Cr.P.C., even the same can be done by the appellate court at the appellate stage.

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(iv) The reliance has also been placed upon the judgment rendered in the case of Rajbir alias Raju and Another v. State of Haryana [(2010) 15 SCC 116] wherein the Hon’ble Apex Court has been pleased to pass a general direction on framing charge also under Section 302 of the Indian Penal Code in a case of 304(B) of the Indian Penal Code.

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(v) Learned State counsel, basing his argument upon the judgment rendered in the case of Rajbir alias Raju and Another v. State of Haryana (Supra), has submitted that since the charge under Section 302 of the Indian Penal Code ought to have been framed in view of the judgment passed by Hon’ble Apex Court in the case of Rajbir alias Raju and Another v. State of Haryana (Supra), hence, the said judgment having not been complied with, therefore, the matter can well be remanded for framing the charge.

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19. Learned counsel appearing for the appellant, in response, has submitted that what is being submitted by learned State counsel that will only lead to miscarriage of justice since the same could have been done by framing charge also under Section 302 of the Indian Penal Code but if there is evidence to that effect having been led on behalf of the prosecution.

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20. Learned counsel has relied upon a judgment passed by Hon’ble Apex Court in the case of Jasvinder Saini and Others v. State (Government of NCT of Delhi) [(2013) 7 SCC 256] wherein the judgment rendered in the case of Rajbir alias Raju and Another v. State of Haryana (Supra), has been considered by holding that the judgment passed in Rajbir alias Raju and Another v. State of Haryana (Supra), does not mean to understand that in each and every case by way of a rule, Section 302 of the Indian Penal Code is also to be inserted at the time of framing of charge under Section 304(B) of the Indian Penal Code, rather, it is to be looked into case by case depending upon the evidence led on behalf of the prosecution on the issue of framing of charge under Section 302 of the Indian Penal Code.

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21. Learned counsel, therefore, has submitted that if there is any laches committed on the part of the prosecution, no benefit can be allowed to be given to the prosecution to rectify its laches at the appellate stage.

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Analysis

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22. We have heard learned counsel for the parties and appreciated their arguments.

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23. The issues which require consideration based upon the argument advanced on behalf of the parties are –

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(i) Whether the prosecution can be allowed to insert charge under Section 302 of the Indian Penal Code in a specific case of 304(B) of the Indian Penal Code in absence of any evidence led attracting the ingredients of Section 302 of the Indian Penal Code.

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(ii) Whether the contention of the prosecution can be said to be just and proper to relegate the matter before the learned trial court for de novo trial in order to rectify the lapses committed by the prosecution causing detriment to the accused.

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24. Both the issues are interlinked and, as such, both are being taken up together for its consideration. But, before considering the same, background of the initiation of the case right from the day of institution of F.I.R. and evidence led on behalf of the prosecution and the statement recorded under Section 313 Cr.P.C. need to be referred herein :-

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On 18.08.94 in the night, the son of Arjun Yadav named Kamleshwari Yadav and Dhura Yadav went to the house of the informant and stated that his daughter died. On enquiring that how she died, they replied that her daughter was suffering from headache so she died. Thereafter the informant

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and brother named Shivpujan Yadav and his wife Lakho Devi came to the village where his daughter was married. They saw that the dead body of her daughter was kept on the cot. He enquired from his samdhi and Samdhin (Arjun Yadav and Pachiya Devi) that they had committed murder of the victim and had created he plea of ligature mark of rope on to neck because he was informed that the victim was suffering from illness and also suffering from loose motion. The informant was informed by his sister Uma Devi and others that Arjun Yadav and Pachiya Devi began to quarrel on the Thursday on which the husband Bindeshwari Yadav asked the victim to warm milk and offer to the little baby who was on the lap. Thereafter Bindeshwari Yadav sat for gathering grasses it is stated that thereafter Arjun Yadav & Pachiya Devi strangulated the victim by thin rope round her neck. When the informant came to the sasural of his daughter, all the inmates fled from the house.

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25. On the basis of fardbeyan of the informant, Godda P.S. Case No.111 of 1994 was registered against the accused persons under Section 302/34 of the I.P.C. 26. After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 304B/34 1.P.C. and Section 3 and 4 of Dowry Prohibition Act was framed.

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27. In course of trial, the prosecution has examined altogether 08 witnesses. Their depositions are being referred herein :-

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P.W.-1 Md. Zaheer Alam is the persons of the village to which the victim girl was married. He stated that he was called in by A.S.I. of police of P.S. Basant Rai (Pathargama). He came there he saw the dead body and he found the legature mark around the neck of the victim girl. The lady was the Daughter in-law of Arjun Yadav. He has stated that the inquest report was prepared in his presence he signed the same which was prepared in carbon process. In para-3 in cross-examination he stated that the inquest report was prepared at the place of occurrence itself. He remained there at the place of occurrence till the dead body sent for postmortem. Nether He had been surpanch for last 19 years as per his statement in para 3.

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P.W-2 Vijay Yadav was declared hostile.

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P.W-3 Uma Devi is the sister of the informant she has stated that Mina Devi had informed her that her mother in-law and sister in-law quarrelled much with her. The victim Mina Devi Also stated that when her father would come she would go away. She stated that younger brother of husband of Mina Devi(Victim) came to her house. He was named Kamleshwari Yadav. Kamleshwari Yadav informed her that the victim was dead. Then she went to see the victim. She found Mina Devi dead. She also found powder smeared round the neck of the victim. She washed the powder and could see that there was a

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ligature mark of three ropes round the neck of the victim. She further stated that her brother also came and found the victim dead body. In cross-examination in para-3 she stated that the victim Mina Devi was married only 4 years ago. She also stated that Rs.6000/-on cash, some amount of gold, Thali, lota and of mosquito net were given in the marriage. The witness also stated to that Mina Devi had also stated to her there was quarrel with her. She had complained twice. In para-5 she stated that when she went, she saw that Mina devi was placed on a cot on a varandha.

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P.W.-4 Ajay Sah stated that he also signed the inquest report which was also signed by the Sarpanch P.W.-1.

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P.W.-5 Bechan Yadav is the informant. He has stated that Bindeshwar Yadav his son-in-law had taken away his daughter. He had taken her to village badha coal. Не purchased clothes for his daughter. He accompanied them to village bagha coal. He returned from thereon the following day. After four days he again went to that Village. He has also stated that his sister was also married in that village, He found his daughter taking water from the well. Seeing her father she began to cry. She also informed him that Arjun Yadav and Bindeshwarı Yadav and wife of Arjun Yadav (Pachiya Devi) gave threat to her, they questioned why she did come to sasural. They asked her to remain in Nahiar, and take support from there. The informant informed his daughter that he would go to his house on that day and when he would

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return he would come to her house. The witness stated that he came to his house. After two days the occurrence took place, Mina Devi was killed on Thursday (18-8-94). When he found the dead body of his daughter he found legature mark on the neck of his daughter. The neck was smeared with powder. The written report has his signature is Ext-1. In para-7 the witness stated that Mina Devi was married six to seven years. Thus, there is no contradiction. Thus, the death comes within seven years of marriage. The Informant P.W.-5 in para-7 stat a that he had offered four thousand for marriage and clothes. In para-8 he stated that his son-in-law Bindeshwari Yadav had come to take away the victim. He stayed for four days and took away the lady victim with him. In para-8 he stated that he accompanied his son-in-law and his daughter to the village Badha coal. In para-9 he stated that when he began to return on the following day he met his daughter. The daughter inform-her that all were unhappy with her. In para-12 the witness stated that after four the days he went to village Badha coal to see whether there was quarrel going on between his daughter and accused persons. He saw his daughter taking water from well, he went there. then his daughter stated that the accused persons were asking them to leave the house and go to her Nahiar and reside there. This witness was given suggestion that his daughter herself committed suicide by hanging.

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P.W-6 Dr. Ajay Kumar Jha is the doctor who held postmortem examination on the dead body of Mina Devi. He found frothy secretion slightly blood tinged from mouth and nostrils. The doctor found the antemortem injury of a ligature mark black patchment like involving whole of the circumference of upper part of the neck above thyroid prominence knot mark exaggerated at the right side of the neck. The doctor also found small abrasions and bruises 1/2” x ½” six in numbers present below ligature on front of neck. The doctor on dissection found bruising of neck vessels and muscles in the time of ligature mark. The doctor also found bruising of muscles below ligature mark as well. The doctor also found second and third tracheal regions broken. The doctor pointed that the death was due asphyxia as a result of strangulation by ligature. The doctor also stated that the injury on the neck was not that can be caused in hanging from above. Thus, as per the doctor the death was due to strangulation. The prosecution Case also stated death was due to strangulation.

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P.W.-7 Lakho Devi is the wife of the informant. She stated that while her daughter returned from Sasural she complained that she was abused by mother-in-law. She came to know that her daughter died on one evening on Thursday two years ago. Then she herself went to the marriage place of her daughter that is village bagha coal. She found ligature mark of rope on the neck of her daughter. Samdhi, samdhin and son-in-law

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had fled from the house. Only the dead body of her daughter was in the house.

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P.W.-8 Vinaychandra Chaudhary is the I.O. He had identified written report to as Ext.-3. He has further submitted that the inquest report showed that there was a ligature mark of rope on the neck of the dead body. The I.O. also stated that the ligature mark of rope was found around the neck.

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The statement of the accused persons were recorded under Section 313 Cr.P.C. The statement of accused Bindeshwari Yadav is being referred herein :-

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“FORM OF RECORDING EXAMINATION OF ACCUSED EXAMINATION OF ACCUSED PERSON (Section 313 of the Criminal Procedure Code)

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The Examination ब िंदेश्वरी यादव aged about 25 years

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Taken before me श्री स्वरुप लाल Spl. Judge Godda At on the 18^th day of June 1997 in the ब िंदी Language interpreted by me. My name is ब िंदेश्वरी यादव my father’s name is अर्जुन यादव my age is 25 years, I am by religion ब न्दू My nationality is भारतीय and I belong to Scheduled Caste/Scheduled Tribe I am by occupation खेती My home is at Mauza ाघा कोल Police Station सिंत राय पथरगामा District गोड्डा I reside at व ीिं

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प्रश्न : आपके बवरुद्ध साक्ष्य आया ै बक आपने बदनािंक 18.8.94 को एकराय ोकर द ेज़ के खाबतर ग्राम ाघा कोल थाना पथरगामा बर्ला गोड्डा में मीना देवी की त्या कर दी।

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उत्तर :- र्ी न ीिं गलत ात ै।

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प्रश्न आपके बवरुद्ध य भी साक्ष्य आया ै बक आपने मीना देवी के माता बपता से द ेज़ मााँगा।

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उत्तर :- र्ी न ीिं गलत ात ै।

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प्रश्न :- आपके बवरुद्ध य भी साक्ष्य आया ै बक आपने मीना देवी के माता बपता को द ेज़ देने ाध्य बकया।

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उत्तर :- र्ी न ीिं गलत ात ै।

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प्रश्न :- और कजछ क ना ै।

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उत्तर :- र्ी न ीिं।“

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28. Same and similar questions were put to other two accused persons, namely, Arjun Yadav and Pachiya Devi and same answers were given by them that is the reason the same are not being quoted.

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29. Learned trial court, based upon the evidence led on behalf of the prosecution wherein the prosecution has made out specific case of death due to demand of dowry and while doing so, the prosecution has tried to make out a case of availability of all the ingredients as available under Section 304(B) of the Indian Penal Code.

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30. The learned trial court has accepted the version of the prosecution and convicted the appellants under Section 304B of the Indian Penal Code and directed them to undergo imprisonment for life, which is the subject matter of the present appeal.

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31. At this juncture, it is pertinent to analyses the law on dowry death. Section 304-B IPC, which defines, and provides the punishment for dowry demand, reads as under:

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“ 304-B. Dowry death .—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

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Explanation .—For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

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(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

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32. From perusal of the aforesaid provision, it is evident that Section 304-B (1) defines “dowry death” of a woman. It provides that “dowry death” is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry. Sub-clause (2) provides for punishment for those who cause dowry death. 33. Thus, it is evident that there are three conditions in the aforesaid statute and if those three conditions are fulfilled then the case will come under the purview of Section 304-B. Three conditions which culled out from section 304-B are as follows:

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i. The death caused by burn or bodily injury or occurs

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otherwise within under normal circumstance.

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ii. Death was occurred within seven years of her marriage.

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iii. It has been shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry.

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34. It needs to refer herein that in order to sustain the conviction under Section 304B of the IPC, it is mandatory to establish that soon before death, the victim was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry and death caused by burn or bodily injury or occurs otherwise within under normal circumstance within seven years of victim’s marriage.

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35. In the case of Major Singh v. State of Punjab, (2015) 5 SCC 201 a three-Judge Bench of the Hon’ble Apex Court has laid down the guideline wherein it has been specifically observed that in order to sustain the conviction under Section 304-B IPC, cruelty or harassment is shown to have been meted out to the woman soon before her death. For ready reference the relevant paragraph of the aforesaid judgment is

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being quoted as under :

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“10. To sustain the conviction under Section 304-B IPC, the following essential ingredients are to be established:

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(i) the death of a woman should be caused by burns or bodily injury or otherwise than under a “normal circumstance”;

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(ii) such a death should have occurred within seven years of her marriage;

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(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;

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(iv) such cruelty or harassment should be for or in connection with demand of dowry; and

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(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.”

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36. It needs to refer herein that the cruelty or harassment differs from case to case. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be depriving her of economic resources or essential amenities of life. The list is illustrative and not exhaustive.

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37. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain, etched in her memory for a long time. 38. The phrase “soon before” as appearing in Section 304-B IPC cannot be construed to mean “immediately before”. It is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution.

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39. The aforesaid position was emphasized by the Hon’ble Apex Court in the case of Satbir Singh v. State of Haryana , (2021) 6 SCC 1 wherein it has been held which reads as under:

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“15. Considering the significance of such a legislation, a strict interpretation would defeat the very object for which it was enacted. Therefore, it is safe to deduce that when the legislature used the words, “soon before” they did not mean “immediately before”. Rather, they left its determination in the hands of the courts. The factum of cruelty or harassment differs from case to case. Even the spectrum of cruelty is quite varied, as it can range from physical, verbal or even emotional. This list is certainly not exhaustive. No straitjacket formulae can therefore be laid down by this Court to define what exactly the phrase “soon before” entails.

¶147

Therefore, courts should use their discretion to determine if the period between the cruelty or harassment and the death of the victim would come within the term “soon before”. What is pivotal to the above determination, is the establishment of a “proximate and live link” between the cruelty and the consequential death of the victim.”

¶148

40. In the backdrop of the aforesaid settled position of law regarding the application of Section 304 B this Court is now adverting to the contention of the learned counsel for state wherein issue of alteration of charge has been raised. 41. The question of alteration of charge as has been raised on behalf of the State is not in dispute since there is express provision to that effect if Section 221 of the Cr.P.C. will be taken into consideration then the said provision itself provides

¶149

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that the charge can be altered at any time of the trial even before pronouncement of judgment.

¶152

42. The alteration of charge depends upon the situation and circumstances and if the new imputation has come in course of evidence, then certainly the charge can be altered but the appropriate course available to the learned trial court would be to relegate the matter from the stage of framing the charge so as to provide an opportunity to lead evidence on the issue of framing of new charge. But, if the evidence has been led and the charge, due to advertence, has not been framed, then the charge can be altered by making addition and in such circumstances, since evidence has been led on the said issue, there will be no requirement to relegate the case at the stage of framing of charge for leading fresh evidence.

¶153

43. The reason is that prejudice will not be said to be caused to the defence since evidence has been led on the aforesaid issue, therefore, the defence is acquainted with the accusation which has been inserted by way of framing of charge.

¶154

44. Therefore, what has been argued on behalf of learned State counsel that the charge can be altered and in the present case also, since the death occurred inside the house, then there may be alteration in charge by adding Section 302 of the Indian Penal Code.

¶155

45. In support of his contention, learned counsel has relied upon paragraph 7 of the judgment rendered in the case of

¶156

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Rajbir alias Raju and Another v. State of Haryana (Supra).

¶159

46. Learned State counsel has also relied upon the judgment rendered by Hon’ble Apex Court in the case of Paranagouda and Another v. The State of Karnataka and Another [Special Leave Petition (Crl.) No.12216 of 2022 ], for ready reference, paragraph 28 and 29 of the aforesaid judgment are being quoted hereunder as :-

¶160

“ 28. This court in K. Prema S. Rao & anr v. Yadla Srinivasa Rao and others (2003) 1 SCC 217 has held that mere omission or defect in framing of charge would not be fatal if from the statement of charge under Section 304B and in the alternative Section 498A, it is clear that all facts and ingredients for framing of charge under Section 306 existed in the case, same would suffice. It was further held that:

¶161

“22. Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304-B and in the alternative Section 498-A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498-A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498-A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 CrPC take care of such a situation and safeguard the powers of the criminal court to convict an accused for

¶162

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an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 CrPC needs reproduction:

¶165

“221. Where it is doubtful what offence has been committed.—(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

¶166

(2) If in such a case the accused is 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.” 23. The provision of sub-section (2) of Section 221 read with sub-section (1) of the said section can be taken aid of in convicting and sentencing Accused 1 of offence of abetment of suicide under Section 306 IPC along with or instead of Section 498-A IPC.

¶167

24. Section 215 allows the criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 CrPC which reads:

¶168

“215. Effect of errors.—No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.”

¶169

25. As provided in Section 215 CrPC omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit

¶170

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the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306 IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing “dowry death” under Section 304-B which is punishable with minimum sentence of seven years' rigorous imprisonment and maximum for life. Presumption under Section 113-A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498-A IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498-A IPC.”

¶173

In the aforesaid background and the evidence on record as already noticed by us hereinabove, it can be safely noted that High Court ought to have examined as to whether accused could have been convicted for an offence for which no charge was framed and not undertaking of such an exercise would result in failure of justice? Thus, it will have to be seen from the facts unfolded in the present case as to whether the accused was aware of the basic ingredients of the offence for which they are being tried and whether the main facts sought to be established against them were explained to them clearly and whether they got a fair chance to defend themselves. If the answer is in the affirmative, then necessarily this Court will have to proceed further and examine as to whether accused can be convicted for the offence not charged and if the answer is in the negative it would result in acquittal of the accused for said offence. In the instant case the dying declaration of the deceased would clearly indicate that deceased was mentally traumatized and she was unable to tolerate the torture and harassment meted out by the accused person on account of which she committed suicide. It is this

¶174

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taunting or mental torture which she could not withstand and forced her to commit suicide by selfimmolation. In that view of the matter, we are of the considered opinion that accused persons are liable to be convicted for the offence punishable under Section 306 IPC though charge was not framed. The accused (appellant Nos.1 and 2) are now aged about 66 and 61 years respectively. They have already spent one year, one month and 27 days in prison. They do not have any past history of criminal record. Hence, a lenient view has to be taken while imposing the sentence.”

¶177

47. We have gone through the said judgments.

¶178

48. So far as the judgment rendered in the case of Rajbir

¶179

alias Raju and Another v. State of Haryana (Supra) is concerned, it would be evident, particularly, from paragraph 7 thereof that the Hon’ble Apex Court has passed a general direction of framing charge under Section 302 of the Indian Penal Code in a case of Section 304B of the Indian Penal Code ordinarily, for ready reference, paragraph 7 thereof is being quoted hereunder as :-

¶180

“7. We further direct all the trial courts in India to ordinarily add Section 302 to the charge of Section 304-B, so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to the Registrars General/Registrars of all High Courts, which will circulate it to all trial courts.”

¶181

49. At this juncture, it needs to refer the judgment rendered

¶182

in the case of Jasvinder Saini and Others v. State (Government of NCT of Delhi) (Supra) upon which reliance has been placed by learned counsel appearing for the appellant wherein the judgment rendered in the case of Rajbir alias Raju and Another v. State of Haryana (Supra) has

¶183

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been taken into consideration and while interpreting the said judgment, it has been held that the word “ordinarily” does not mean that even in absence of any evidence the charge is to be framed under Section 302 of the Indian Penal Code as a rule in a case of Section 304B of the Indian Penal Code.

¶186

50. It is, thus, evident from going through these two judgments that framing of charge under Section 302 of the Indian Penal Code also in a case where the charge has been framed under Section 304B of the Indian Penal Code depends upon the evidence bringing the material to attract the ingredients of Section 302 of the Indian Penal Code.

¶187

51. We, therefore, thought it proper to go through the evidence in order to assess as to whether evidence has been led to attract the ingredients of the alleged offence under Section 304 B of the IPC. 52. For the aforesaid purpose, again at the risk of repetition, which is required at this stage, the testimony of the witnesses are again being discussed.

¶188

P.W.-1 Md. Zaheer Alam is an independent witness. He has stated that saw the dead body and he found the ligature mark around the neck of the victim girl. He has stated that the inquest report was prepared in his presence he signed the same which was prepared in carbon process. In para-3 in cross-examination he stated that the inquest report was prepared at the place of occurrence itself. He remained there

¶189

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at the place of occurrence till the dead body was sent for postmortem.

¶192

P.W-2 Vijay Yadav was declared hostile.

¶193

P.W-3 Uma Devi, who is the sister of the informant, has stated that Mina Devi had informed her that her mother in-law and sister in-law quarreled much with her. The victim Mina Devi Also stated that when her father would come, she would go away. She had gone to see the victim. She found Mina Devi dead. She also found powder smeared round the neck of the victim. She washed the powder and could see that there was a ligature mark of three ropes round the neck of the victim. In cross-examination she has stated that Rs.6000/- cash, some amount of gold, Thali, lota and of mosquito net were given in the marriage. The witness also stated to that Mina Devi had also stated to her there was quarrel with her. She had complained twice.

¶194

P.W.-4 Ajay Sah stated that he also signed the inquest report which was also signed by the Sarpanch P.W.-1.

¶195

P.W.-5 Bechan Yadav is the informant. He has stated that his

¶196

daughter informed him that Arjun Yadav and Bindeshwarı Yadav and wife of Arjun Yadav (Pachiya Devi) gave threat to her, they questioned why she did come to sasural. They asked her to remain in Nahiar, and take support from there. He has stated that after two days the occurrence took place. When he found the dead body of his daughter he found ligature mark on the neck of his daughter. The neck was smeared with

¶197

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powder. He has further stated that Mina Devi was married six to seven years ago. Thus, there is no contradiction. He has also deposed that his daughter informed that all were unhappy with her. In para-12 the witness stated that after four the days he went to village Badha coal to see whether there was quarrel going on between his daughter and accused persons. He saw his daughter taking water from well, he went there. then his daughter stated that the accused persons were asking them to leave the house and go to her Nahiar and reside there.

¶200

P.W.-7 Lakho Devi is the wife of the informant and mother of the deceased. From her testimony its s evident that no any demand of dowry has been made.

¶201

53. It is also evident from the testimony of the witnesses that no reference of any demand of dowry has been uttered by any of the witnesses even the parents of the deceased. 54. The charge has been framed under Section 304B of the Indian Penal Code which was perused and under all three heads of the charges, charge has been framed for commission of murder due to want of dowry and 3/4 of the Dowry Prohibition Act, for ready reference, framing of charge is being referred herein :-

¶202

“I, Swaroop Lal, Addl. Sessions Judge, hereby charge you (1) Arjun Yadav (2) Pachia Devi (3) Bindeshwari Yadav, as follows –

¶203

FIRST – That you, on or about the 18^th day of August 1994 at Vill Baghakol, P.S. Pathargama (Basant Ray), Distt-Godda, in furtherance of common intention of you all did commit dowry

¶204

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death by intentionally causing the death of Mina Devi and thereby committed an offence punishable under Section 304B/34 of the Indian Penal Code , and within my cognizance. SECONDLY – That you, on or about the same day of same at same abetted the giving of dowry from parents of Mina Devi and there by committed an offence punishable under Section 3 of the Dowry Prohibition Act, 1961 .

¶207

THIRDLY – That you on or about the same day of same at same demanded dowry indirectly from the parents of Mina Devi and thereby committed an offence punishable under Section 4 of the Dowry Prohibition Act, 1961 and I hereby direct that you be tried by me on the said charge .”

¶208

55. In the entire evidence of the witnesses, no witness has uttered a word on the issue of demand of dowry though on the accusation of demand of dowry the case has been instituted also under Section 3 / 4 of the Dowry Prohibition Act and the consequence is Section 304B of the Indian Penal Code, as per the prosecution version.

¶209

56. We have also considered the statement recorded under Section 313 Cr.P.C. which is the vital right of the accused person to put his defence on the question being put by the learned trial court based upon the evidences led by the prosecution.

¶210

57. We have found from the statement recorded under Section 313 Cr.P.C. that the question has also been put that due to want of dowry the murder of the deceased has been committed.

¶211

58. This Court has failed to understand that from where the question has been put under Section 313 Cr.P.C. if no such utterances are there by the witnesses surfacing the issue of

¶212

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demand of dowry, therefore, the question which has been put under Section 313 Cr.P.C. is foreign to the evidences.

¶215

59. The bearing of the statement recorded under Section 313 Cr.P.C. cannot be given a go bye otherwise the same will lead to violation of principle of natural justice since in the criminal jurisprudence, the accused has been given the right to put his defence for the first time at the time of recording statement under Section 313 Cr.P.C. by putting a question by the learned trial court personally to the accused and prior to that, the occasion is not available to the accused.

¶216

60. It is settled connotation of law that the purpose of empowering the court to examine the accused under section 313, Cr.P.C is to meet the requirement of the principle of natural justice audi alteram partem (that no one should be condemned unheard). This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated against him and the court must take note of such explanation. In a case of circumstantial evidence, the same is necessary to decide whether or not the chain of circumstances is complete. Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Raj Kumar Singh @

¶217

Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150.

¶218

61. There is no dispute that the question which is to be put by the learned trial court at the stage of Section 313 Cr.P.C. statement is to be derived from the evidence led by the

¶219

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prosecution so that the same be put in his defence. But, if the question is foreign to the deposition, then for what the question has been put that will be a big question and thereby putting question under Section 313 Cr.P.C. will be nothing but a mere formality which is not the purport and object of Section 313 Cr.P.C.

¶222

62. In the case of Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507 the Hon’ble Apex Court has categorically observed that the examination of the accused is not a mere formality, the questions put to the accused and answers given by him, have great use. The scope of section 313 of the Cr.P.C. is wide and is not a mere formality. The object of recording the statement of the accused under section 313, Cr.P.C. is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution.

¶223

63. The Hon’ble Apex Court in the case of Naval Kishore v. State of Bihar; (2004) 7 SCC 502 has categorically observed that this opportunity of examination under section 313 given to the accused, is part of a fair trial and if it is done in a slipshod manner,

¶224

64. The question now would be that if the contention of the State counsel will be accepted, then the same will be nothing but allowing the prosecution to rectify the lacunae which has been committed in course of trial.

¶225

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65. The competent court of criminal jurisdiction (trial court or appellate court) cannot be said to be the extension counter of the prosecution to rectify the laches committed in course of trial or even the laches committed in course of investigation.

¶228

66. The charge has been framed under Section 304B of the Indian Penal Code and without leading any evidence in this regard which would be evidence from the testimony of the prosecution witness, the question has also been put under Section 313 Cr.P.C. related to the ingredients of Section 304B of the Indian Penal Code and in that view of the matter, if the contention of the learned State counsel will be accepted, the same will amount to rectifying the lacunae committed by the prosecution in course of trial which is not permissible.

¶229

67. Adverting to the finding recorded by the learned trial court, as available in the impugned judgment, we have found that the learned trial court has convicted the appellants under Section 304B of the Indian Penal Code by considering one aspect of the matter only that the death is there, said to be unnatural and the death occurred inside the matrimonial house.

¶230

68. The learned trial court, while doing so, has not considered the requirement of availability of one of the ingredients of Section 304B of the Indian Penal Code, i.e., the demand of dowry.

¶231

69. Since we have gone through the testimony in entirety of all the witnesses, particularly, the parents, who are the best

¶232

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witness to prove the prosecution version of demand of dowry, if made by the in-laws or the husband, but even the parents who have been examined as PW-5 and PW-7 have not deposed about any demand of dowry. But, even then the learned trial court has convicted the appellants under Section 304B of the Indian Penal Code, which according to our considered view, based upon the reasons referred hereinabove in entirety, cannot be said to be sustainable in the eye of law.

¶235

70. Accordingly, the impugned judgment needs interference. 71. In the result, the Judgment of conviction dated 29.08.1997 and Order of sentence dated 30.08.1997 passed by learned 1^st Additional District and Sessions Judge, Godda, in Sessions Case No.138 of 1995, is hereby quashed and set aside.

¶236

72. Consequently, the appellants are hereby discharged from all criminal liabilities. Since the aforesaid appellants are on bail, they are discharged from the liability of the bail bonds

¶237

73. Accordingly, the instant appeal stands allowed.

¶238

74. Let the Lower Court Records be sent back to the Court

¶239

concerned forthwith, along with the copy of this Judgment.

¶240

(Sujit Narayan Prasad, J.)

¶241

(Rajesh Kumar, J.)

¶242

Birendra / A.F.R.

¶243

Bindeshwari Yadav And Ors. v. State

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Bindeshwari Yadav And Ors. v. State

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