Allowed

Ravi Sha v. the Inspector of Police

Madras HC3 Feb 2023CRL A/449/2015

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal, acquitting the appellant of dowry death (304-B IPC). The court held the prosecution failed to prove dowry demand proximate to death and the conviction relied on unsustainably conflated remand remarks. Furthermore, the appellant was denied a fresh Section 313 Cr.P.C. examination after charge framing. Though the appellant had conceded the 498-A charge, the l

What did the court decide?

The appellant is acquitted of the charge under Section 304(B) IPC. The fine imposed is refunded. No punishment is imposed for Section 498(A) due to admitted concession and long delay.

Ravi Sha Vs the Inspector of Police — Dowry and Cruelty | Madras HC (2023)

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Crl.A.No.449 of 2015

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 03.02.2023

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CORAM :

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THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

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Crl.A.No.449 of 2015

Ravi Sha

...Appellant/Accused

Versus

State by

Inspector of Police/Assistant Commissioner of Police (Law and Order), Tripliance Range,

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F1 Chintadripet Police Station, Chennai – 600 002. ...Respondent

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Prayer: Criminal Appeal filed under Section 374 of Criminal Procedure Code, against the Judgment dated 10.07.2015 in S.C.No.164 of 1990 on the file of the V Additional Session Judge, Chennai.

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For Appellant : Mr.S.Xavier Felix For Respondent : Mr.R.Kishore Kumar, Government Advocate (Crl.Side)

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JUDGMENT

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This appeal is filed by the first accused in the case namely, Ravi sha , who

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is the husband of the victim in this case.

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Shanthi Bai

2.The gist of the allegations of the case of the prosecution is that one

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Shanthi Bai and the appellant herein got married on 04.09.1987. On 13.09.1989, the said Shanthi Bai died under abnormal circumstances and after the Post Mortem and Viscera Analysis, it was found that she died due to cyanide poisoning. Therefore, the case was registered in a Crime No.2030 of 1989 and P.W.17 took up the case for investigation and filed a final report holding that the appellant herein the husband and two other accused namely the parents of the accused and the in-laws of the victim one Narayansha and Gangabai as guilty for the offences under Sections 498-A and 302 r/w Section 34 of IPC.

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3.After committal, the case was taken on file as S.C.No.164 of 1990, since the accused denied the charges and stood trial, the prosecution examined P.W.1 to P.W.17 and marked Exs.P-1 to P-17 . Upon being questioned about the material evidence and incriminating circumstances on record, the accused denied the same as false and thereafter the trial Court proceeded to hear the learned Assistant Public Prosecutor and the counsel for the appellant/accused and by the Judgment dated 18.12.1991 while convicting all the three accused

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for the offense under Section 498 (A) IPC acquitted them for the offence under

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Section 302 of IPC.

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4.An appeal was filed in Crl.A.No.01 of 1992 by the accused and the Criminal Revision Case in Crl.R.C.No.485 of 1993 was also filed on the side of the victim with regard to the quantum of sentence as well as the aquittal of the accused in respect of the offence under Section 302 of IPC.

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5.By the Judgment dated 07.10.1998 in the above matters, this Court found that there were no materials to suggest the Commission of murder by the accused. However, it prima facie found that the victim committed suicide by consuming cyanide within two years from the date of marriage and prima facie the offence under Section 304 (B) being made out, set aside the Judgment of the Trial Court and remanded the matter back to try the accused for the offence under Section 304 (B) of IPC.

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6.Upon remand, the trial Court once again simply framed the charge under Section 304(B) and by a Judgment dated 31.08.2000 convicted the accused for both the offences 498 r/w 34 IPC and also for the offence under Section 304 (B) of IPC imposing a maximum sentence of seven years Rigorous https://www.mhc.tn.gov.in/judis 3/28

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Imprisonment. Aggrieved by the same, once again all the three accused filed Crl.A.No.785 of 2005 before this Court.

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7.Pending of the said appeal, the second and third accused(in-laws) died and the same was recorded and the appeal in as much as it relates to the second and third accused was closed as having abated. As far as the appellant/1^st accused is concerned by the Judgment dated 04.04.2002, this Court found that the matter has been remanded prima facie finding that there are materials to try the accused for the offence under Section 304 (B), the same does mean simply framing charge and convicting the accused but as per the Provisions under Sections 216 and 217 of Code of Criminal Procedure further opportunity should be given to the prosecution as well as the accused to substantiate/defend the charge therefore once again set aside the Judgment of the trial Court and remanded the matter back.

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8.Upon remand, the prosecution did not choose to examine any further witnesses. On behalf of the accused, applications were filed to further cross examine P.W.1 P.W.4, P.W.10, P.W.13 and P.W.15 out of said witnesses P.W.3, P.W.4 P.W.10 and P.W.13 were permitted to be recalled and were further cross examined. After the said cross examination straight away the matter was posted https://www.mhc.tn.gov.in/judis 4/28

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for the defence evidence. Thereafter, on behalf of the defence D.W.1 to D.W.7 were examined and Ex.D-1 was marked. Thereafter, the trial Court proceeded to hear the learned Government Advocate (Crl.Side) and the learned counsel for the accused and by a Judgment dated 10.07.2015 convicted the appellant herein only for the offence under Section 304 (B) of IPC and sentenced him to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.1000/and in default of payment of fine to undergo Rigorous Imprisonment for Six months. In as much as the offence under Section 498 (A) is concerned, the trial Court simply recorded the argument of the learned counsel appearing on behalf of the appellant before High Court that he is conceding and he did not argue on merits. But however after recording the same, did not give any finding as to the conviction or acquittal or sentence in that regard and left the matter as such. Aggrieved by the conviction for the offence under Section 304 (B) IPC this appeal is laid before this Court.

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9.Heard Mr.S.Xavier Felix , learned counsel for the appellant and Mr.R.Kishore Kumar , learned Government Advocate (Crl.Side) appearing on behalf of the prosecution.

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10.The learned counsel for the appellant submitted that the conviction of

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the appellant is based on the remand order alone and not on appreciation of evidence. The learned counsel would take this Court through paragraph 45 of the Judgment where under the trial Court has held that already the High Court has concluded about the ingredients of Section 304(B) of IPC and as if the opportunity was only to disprove the presumption under Section 113 (B) of Indian Evidence Act and held that the accused did not disprove the presumption and therefore convicted the appellant. The trial Court has effectively not given any finding as to the evidence on record, whether there was any dowry demand which was the proximate reason which lead the victim to commit suicide. Therefore, he would submit that the conviction is without any finding whatsoever and is liable to be interfered with. He would further submit that after the first remand order of this Court or after the second remand where three witnesses were recalled and examined, no questioning under Section 313 Cr.P.C took place. Therefore the valuable right of the accused to communicate his stand on the available material evidence on record or his defence in respect of the charge is totally taken away and absolutely the instant case would amount to no opportunity at all therefore, the accused is entitled for acquittal.

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Mr.S.Xavier Felix, would further submit that in this case, that a reading of the evidence of P.W.1 and other relatives of the victim girl and the RDO Enquiry Report, would not in any manner fortify or prove the dowry demand and that the girl was driven to commit suicide on account of the demand of any dowry. Therefore, he would submit that on merits also the offence under Section 304 (B) is not proved. The learned counsel would further submit that the appellant herein had suffered more than enough as the occurrence was of the year 1989 and he is continuously facing the trial and the proceedings before this Court for the past 33 years. As a matter of fact, a child born to the victim himself is now aged about 30 years and at the age of about 24 years, he deposed before the trial Court as one of the defence witnesses. He would also further submit that at the first instance, when the Judgment was pronounced on 18.12.1991, this court enlarged him on bail by suspending the sentence by order 06.01.1992 and he suffered incarceration for a period of 23 days. When he was again convicted by the Judgment 31.08.2000 this time, the sentence was not suspended and he was in prison until the appeal was allowed and once again the matter was remanded back by Judgment dated 04.04.2002. By the time he got out on bail, he was in jail for 2 years and 3 months. Again for the third time, when he was a convicted by the Judgment impunged in this appeal on 10.07.2015, the suspension of sentence was granted by an order https://www.mhc.tn.gov.in/judis 7/28

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dated 24.07.2015 and by time, he again suffered incarceration for a period of 17 days. Therefore, he would submit that even in respect of the offence under Section 498 (A), even this Court considered that it was a omission or a mistake in not considering about the punishment, he would submit that remanding the matter back again would cause real injustice to the appellant and he would pray that this Court should allow the appeal taking into consideration of the overall facts and circumstances of this case.

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12.Per contra , Mr.R.Kishore Kumar, learned Government Advocate (Crl.Side) would submit that in this case, the prosecution has clearly proved the unnatural death of the victim. Marriage was in the Year 1987, and the death of the victim was in the Year 1989. The evidence of P.W.4 , about the condition of the vicitm, when he her, clearly demonstrates the amount of cruelty committed on her. Even the father in law was making the daughter in law to give him a bath. She was extremely tortured. Whenever P.W.4 tried to visit or when the daughter wanted to come her maternal home, permission was refused. As a matter of fact, all that was done demanding further dowry amount of Rs.10,000/- and only because the victim's family was not able to pay the said amount, the relationship between the victim and her family was cut off, leading

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to the incident. Therefore, he would submit the evidence on record clearly proves that there was a dowry demand and that death had a close and proximate connection only towards the demand of dowry. Therefore, the trial Court has rightly convicted the appellant. P.W.4's evidence also corroborates and lends credence of the case of the prosecution. The prosecution therefore has categorically proved the offence under Section 304 (B) IPC.

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Mr.R.Kishore Kumar, learned Government Advocate (Crl. Side) woud submit that in this case, the presumption under Section 113 (B) of Indian Evidence Act comes into an operation and therefore, it is for the accused to disprove the commission of the offense. None of the evidence let in by the accused is relevant to disprove the factum of demand of dowry and therefore, the offence against the appellant stands proved. He would further submit that as far as Section 313 of Cr.P.C., questioning is concerned, originally in the trial 313 questioning was done on all the available incriminating materials and evidence on record. Detailed questions were posted to the accused and their answers were elicited. The remand was only for the specific purpose of altering the charge under Section 302 to 304(B) of IPC and after that remand, the only exercise undertaken was to recall three witnesses and to further examine them. Since in the said cross examination no new material circumstances or evidence https://www.mhc.tn.gov.in/judis 9/28

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on record came to light, 313 questioning was not necessary after the remand.

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The requirement of questioning under Section 313 of Cr.P.C having already stood complied with by the Trial which was conducted originally in this case. Therefore, according to him, the procedure adopted by the trial Court does not suffer from any infirmity.

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Mr.R.Kishore Kumar , learned Government Advocate (Crl. Side) would further submit that the appellant was all along convicted for the offence under Section 498 (A) of IPC. As a matter of fact, when the matter was remanded for the second time in Criminal Appeal No.785 of 2000, this Court had categorically recorded that the appellant itself did not argue against his conviction under Section 498(A). In that view of the matter, when the trial Court records that concerned paragraph, in paragraph 50 of order, it is only a over sight that it did not specifically record a conviction under Section 498 (A) and impose a sentence, which can be done even by the Appellate Court by putting the respondent/ appellant on notice even in the absence of a specific appeal on behalf of the prosecution in view of the Section 386 of Code of Criminal Procedure. He would therefore submit that the appeal is without any merits and the sentence to be confirmed.

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15.Upon hearing the learned counsel on either side and perusing the material records, the following points arise for considerations in the instance case:

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(i) Whether the prosecution has proved ingredients for the offence under Section 304 (B) of IPC and whether the findings of the trial Court in this regard are sustainable?

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(ii) Whether the appellant is liable to be acquitted since he was not subjected to questioning under Section 313 of Code of Criminal Procedure after the framing of charges under Section 304(B) of Indian Penal Code ?

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(iii) Whether the action of the trial Court in not recording any decision in respect of the evidence under Section 498(A) of Indian Penal Code is in order and if so what is the course open to the Appellate Court of this stage especially in the facts and circumstances of this case?

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On Point No.(i):

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16.To answer this question, the law on the point has now been categorically laid down by the Honourable Supreme Court of India in its Judgment in Parvati Devi Vs. State of Bihar now State of Jharkhand and Ors.¹ and it is relevant to quote paragraph Nos.14 to 18 which read as follows:-

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1 2021 SCC OnLine SC 1285

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14. Coming next to Section 113B of the Evidence Act, 1872, the same refers to a presumption relating to a dowry death and is phrased as below:—

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“ 113B. Presumption as to dowry death - When

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the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

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Explanation - For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Penal Code, 1860.”

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15. The explanation appended to Section 304B IPC states that the word “dowry” shall have the same meaning as provided in Section 2 of the Dowry Prohibition Act, 1961 which reads as follows:

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“ 2. Definition of ‘dowry ’ - In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly -

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(a) by one party to a marriage to the other party to the marriage; or

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(b) by the parents of either party to a marriage by any other person, to either party to the marriage or to any other person;

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at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal law (Shariat) applies.”

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16. The import of the aforesaid provisions has been explained in several decisions of this Court. In Bansi Lal v. State of Haryana (2011) 11 SCC 359 , it has been held that:

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“17. While considering the case under Section 498-A (Sic. Section 304-B), cruelty has to be proved during the close proximity of time of death and it should be continuous and such continuous harassment, physical or mental, by the accused should make life of the deceased miserable which may force her to commit suicide.”

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17. In Maya Devi v. State of Haryana , (2015) 17 SCC 405 , it was held that:

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“23. To attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be established is that “soon before

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her death” she was subjected to cruelty or harassment “for, or in connection with the demand for dowry”. The expression “soon before her death” used in Section 304-IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. In fact, the learned Senior Counsel appearing for the appellants submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to while considering the evidence led in by the prosecution. Though the language used is “soon before her death”, no definite period has been enacted and the expression “soon before her death” has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term “soon before her death” is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is

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remote in time and has become stale enough not to disturb the mental equilibrium of the women concerned, it would be of no consequence.” [Also refer to G.V. Siddaramesh v. State of Karnataka (2010) 3 SCC 152 and Ashok Kumar v. State of Haryana (2010) 12 SCC 350]

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18. Section 304B IPC read in conjunction with Section 113B of the Evidence Act leaves no manner of doubt that once the prosecution has been able to demonstrate that a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, soon before her death, the Court shall proceed on a presumption that the persons who have subjected her to cruelty or harassment in connection with the demand for dowry, have caused a dowry death within the meaning of Section 304B IPC. The said presumption is, however, rebuttable and can be dispelled on the accused being able to demonstrate through cogent evidence that all the ingredients of Section 304B IPC have not been satisfied. ”

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Thus, it can be seen that it is for the prosecution to discharge its initial

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onus to prove that the death of the victim was within 7 years of marriage and was in connection with the demand of dowry. Once the prosecution discharges

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its initial burden then the presumption under Section 113 (B) of Indian Evidence Act comes into play and thereafter, it will be the burden on the part of

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the accused to prove that the abnormal death was on account of any other

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cause.

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17.In this regard, in discharge of its initial burden, the prosecution

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heavily relies on the evidence of P.W.4 ; father of the victim. He has also deposed as follows:

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“20/11/99 md;W vd; kfSf;F rPke;jk; itf;fyhk; vd 2k; vjpupia re;jpj;J nfl;nld;/ U:/10.000-= bfhLj;jhy; jhd; rPke;jk; bra;a vd; kfis mDg;g[tjhf 2k; vjpup brhd;dhh;/ vd;dhy; gzk; bfhLf;f KoahJ vd;w brhy;yptpl;nld;/ vd;id 2k; vjpup mrp';fkhf ngrpdhh; ehd; te;Jtpl;nld;/ ”

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He further deposed that,

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“11/2/88k; njjp ehd;. jk;gp Rfkhu;c&h. ehuhazc&h. uh$p. kPdhl;rp vd; bgz;fs; rhe;jpghapd; FHe;ijiag; ghh;f;f eu;rp'; ncwhkpw;F nghndhk;/ ehDk; vd; jk;gpa[k; rhe;jpghiaa[k; FHe;ijiaa[k; ghu;f;f cs;ns nghdnghJ ehuhazc&h 2k; vjpup fz;lgo jpl;odhu;/ mof;fo U:/10.000-? bfhL vd;W 2k; vjpupa[k;. Kjy; vjpupa[k; vd;dplk; nfl;L te;jhu;fs;/ ehd; gzk; bfhLf;fhjjhy; mtu;fSf;F kdf; fc&;lk;/ vd; kw;w bgz;fs; Tl FHe;ijia ghhf;f Koatpy;iy/ ; ”

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18.Even though the defence would try to let in contra evidence in respect

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of the above facts, the best evidence would be the two letters written by the victim herself to P.W.4 and it is necessary to extract the contents of Exs.P-5

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and P-6 which read as follows:

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“ md;g[s;s mg;ghtpw;F. vdJ tzf;f';fs; /// ehd; cd;id tuntz;lhk; vd;W TwpaJ vjdhy; vd;gJ c';fSf;nf bjupa[k;/ ehd; bra;j ghtk;. vd;id bgw;wjhy; jhnd eP';fs; tUe;JfpwPu;fs;/ vdf;F xU tHpa[k; bjupatpy;iy/ vij bra;tJ vij bra;af;TlhJ vd;W g[upatpy;iy. Mdhy; c';fis neupy; ghu;f;f ntz;Lk;. ngr ntz;Lbkd;W njhd;WfpwJ/ Mdhy; mjw;Fk; ,';F tHpapy;iy/ mjdhy; jhd; ahUf;Fk; bjupahky; ,e;jf;fojk; vGJfpnwd;/ ,ij ahUf;Fk; bjupahky; ghJfhg;gJ c';fs; ifapy; jhd; ,Uf;fpwJ/ mg;gh ehd; filrpahf c';fSf;F Tw tpUk;g[tJ vd;dbtd;why; ,jw;F vy;yhk; fhuzk; eiffs; jhd;/ vy;nyhUila eiffSk; vf;nkhu; brhirl;oapy; itj;Jtpl;lhu;fs;/ mJ jhd; ,e;j Jd;g';fs; vy;yhtw;wpw;Fk; bghJ fhuzk;/ vdnt eP';fs; nahrpj;J ghu;j;J Kot[ vLf;ft[k; ,f;fojk; vGjpa tpc&ak; ahUf;Fk; ve;j ,ila{W fhyj;jpYk; bjupag;gLj;jhuPu;fs; ,J vd; nky; Miz/ ”

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Also Ex.P-6 dated 11.4.1989 reads as follows:-

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“ md;g[s;s mk;kh mg;ghtpw;F vdJ md;g[ tzf;f';fs;/ Kd;g[ vGjpa fojj;jpnyna ek; gpuptpw;F fhuzk; vd;dbtd;W vGjptpl;nld;/ vdf;F c';fis vy;yhk; ghu;f;fZk; nghy; ,Uf;F/ me;j Mj;jpuj;jpy;

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xU ehs; khkdhiu vjpu;j;J ngrpndd;/ mjd; tpisthf tPl;oy; tPz; Tr;rYk; FHg;gKk; jhd; vGe;jJ/ vd;dhy; Koe;jtiu ,';F cs;stu;fis vjpu;f;fpnwd;/ Mdhy; vd; Kaw;rp tPzhfptpLfpwJ/ uh$pa[k;. kPdht[k; FHe;ijia ghu;f;ftpy;iyna mt;thW mtu;fSf;F FHe;ijia fhl;l Koahj Jujpc&;l rnfhjupaha; ehd; ,Ug;gij epidf;Fk;nghJ vd; cs;sj;jpy; ehnd FKWfpnwd;/ ”

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19.Thus on a cumulative reading of the evidence of P.W.4 and the other

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prosecution witnesses and the letters written by the victim herself would go to show that the victim was in a depressed state of mind. She was very much affected because of her, her parents and her family is suffering. This apart, on account of the ignominy suffered in the hands of the in-laws the family was also stopped visiting and she also in Ex.P-5 and Ex.P-6 indicates that there was no response from her parents also for the first letter which is clear from the following passage;

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“ md;g[s;s mk;kh mg;ghtpw;F vdJ md;g[ tzf;f';fs;/ j';if uh$p. kD. ujp kw;Wk; jk;gp fz;zd; MfpnahUf;F vdJ P Mir Kj;j';fs;/ ehd; ,';F eyk; mJnghy; j';fs; eyk; mwpa

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Mty;/ ehd; Kjypy; vGjpa fojj;jpw;F ve;j xU reaction Dk; mwptpf;ftpy;iy/ vdnt kPz;Lk; ,e;j fojj;ij vGJfpnwd; Kd;g[ vGjpa fojj;jpnyna ek; gphptpw;F fhuzk; vd;dbtd;W vGjptpl;nld;/ ”

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20.Thus, the evidence on record indicates that there was harassment from the in-laws, there was in sensivity on the part of her husband and some more additional support which she had expected from her parents was also lacking. When the letters written by the victim herself indicates multiple factors for her extreme decision, I am afraid that the suicide can be attributed to the demand of dowry.

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As a matter of fact, the trial Court simply went by the observations of this Court while passing the order of remand. It is useful to extract paragraphs 45 and 48 of the order of trial Court, which have been extracted hereunder:

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“45.The Hon'ble High Court has clearly concluded already about all the ingredients of Section 304(B) taking into consideration all evidences and documents available on record. The Hon'ble High Court has categorically decided in C.A.No.1 of 1992 that it is true that there are various incidents which would show that the victim was subjected to cruelty for the reasons other than the demand of money. P.W.1 has clearly stated in his evidence that the father of the present accused had demanded 16 sovereigns of gold, out of which 12 sovereigns were given and a cash of Rs.4000/- and also Rs.1200/- for purchasing a cot. He also deposed that the father of the present

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accused did not allow the couple to attend the ceremonies in his house and after the troubles came out he gave a complaint to P.W.13 and also when he went to the house of the accused he insulted him and also not allowed his daughter to speak with him.

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48.These are the available evidences on the side of prosecution to prove the charge u/s 304 (B) against the accused which were accepted by the Hon'ble High Court in C.A.No.1/1992 also. After remanding back of the case as per the Judgment delivered by the Hon'ble High Court in C.A.No.785/2000 the accused was not able to disprove the evidences of prosecution side available against him. The witnesses produced by him also not able to substantiate the defence of the accused. The evidences produced by the accused also have no value at all. Therefore it can be safely concluded that the accused has not disproved the presumption under section 113 (B) of Indian Evidence Act even after he was given proper opportunity as per the direction of the Hon'ble High Court.”

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22.Therefore, the trial Court committed an error as if this Court had conclusively found that the appellant is guilty of an offence under Section 304(B) of IPC which is not a correct approach. Whenever, this Court finds that

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there are materials amounting to a particular offence and remands the matter since such a charge is not framed, it is only for the sake of passing an order of remand, the findings are recorded and that cannot be taken as conclusive finding in respect of the offense as there can be no finding even before the framing of the charge. Therefore, the findings of the Trial Court are totally unsustainable.

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As already stated above, this case also has a chequered history and the matter is in the Court for the past 33 years, in spite of repeated remands, one error or the other crept in the prosecution or the ultimate finding and any further remand of the matter would also cause injustice to the accused. I have also found on merits that the evidence of the prosecution does not establish that the dowry demand was the proximate cause which drove the victim to commit suicide. Therefore, I hold that the findings of the trial Court as unsustainable and in the overall circumstances of the case, benefit of doubt needs to be granted to the appellant as far as the offence under Section 304 (B) is concerned. Accordingly the point no.1 is answered.

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On Point No. (ii):

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Even though I have considered the case on merits, the further legal

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question in this case is that whether or not the accused should have been questioned under Section 313 of IPC, after framing of the charge under Section 304 (B) IPC. In this regard, this Court in its judgment in Ramachandran and Ors. Vs. Suganthi and Ors.² had an opportunity to consider the scope and nature of the powers and the concomitant rights arising under Section 313 of Cr.P.C., and it is essential to quote the relevant notes which read as follows:

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“ A valuable statutory and Constitutional right

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Section 313 Cr.P.C., confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fairtrial under Article 21,2.

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Object of Sec. 313

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The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused.

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Purpose of Sec. 313

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The purpose of Sec. 313 Cr.P.C. is to meet the requirements of principles of natural justice i.e. the audi alteram partem,4. The accused is to be given a reasonable opportunity to explain

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the adverse circumstances which have emerged against him during the course of trial

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What is Reasonable Opportunity under S. 313?

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A reasonable opportunity entails putting all the adverse evidence in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation. An empty formality of bundling all circumstances together and giving a single opportunity to the accused to explain himself, would deprive him of fair or reasonable opportunity as he may not be able to put forth a rational and intelligible explanation.

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Circumstances not put to the accused:

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The circumstances which are not put to the accused in his examination under Sec. 313 Cr.P.C. cannot be used against him and cannot be treated as evidence within the meaning of Sec. 3 of the Evidence act, as the accused cannot be crossexamined with reference to such statement.

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Non-explanation of charge to Accused

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The Charge has to be properly explained to the accused, so the accused can defend themselves from the charge. If the charges are not properly explained then it would amount to grave prejudice, which would vitiate the trial.”

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Even though, evidence was originally recorded in the trial and after remand only a few witnesses were recalled and cross examined, considering the objective of S.313 Cr.P.C., it was mandatory for the trial Court to put the incriminating circumstances/materials that point out towards the proof of the charge under Section 304 (B) IPC to the accused and to have elicited the response of the accused in respect of those circumstances and therefore, the trial Court is not right in holding that since the evidences were already on record and the 313 questioning was done during the the Trial before the remand, it was not necessary question again. The charge under Section 304 (B) is framed only after the remand and therfore, once the further cross examination of the witnesses are over, the Trial Court ought to have questioned him under Section 313 Cr.P.C., and therefore on this score also the accused is entitled for acquittal. Accordingly, the point no.2 is answered.

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On Point No. (iii):

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26.At the outset, I am in agreement with the learned Government Advocate (Crl.Side) that the trial Court simply quoted the submissions made by the Learned Counsel for the Appellant/Accused No.1 before the High Court that they are conceding in as much as the Offense u/s.498-A but however did

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not record conviction and impose punishment in respect thereof. It is necessary

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to extract Paragraph 50 of the trial Court order, which reads thus:

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“50.The accused has conceded with the charge which was framed against him even before the Hon'ble High Court. In this regard, the Hon'ble High Court. In this regard, the Hon'ble High Court has recorded the fact that,

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“In so far as offence under Sec.498-A is concerned, the learned counsel appearing for the appellant conceded and he did not argue on merits”

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Hence the accused is liable to be convicted.”

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27.Even though there is no specific appeal on behalf of the prosecution, in the normal course, by putting the accused on notice this Court could have proceeded to convict the accused for the offence under Section 498 (A) of IPC. But however, there are two factors which this Court takes into consideration. First, from the arguments of the learned counsel for the appellant, it can be seen that the accused undergone incarceration for about 2 Years and 5 Months(as against the maximum sentence of 3 years for the offense u/s. 498A IPC). Second, the matter is pending in Courts for more than 33 years and the accused has been facing the proceedings and the child born to the victim and the accused, is also been brought up by the accused and the son was

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of examination), who spoke about the fact that his father has been brining him

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up with all due care. Thus, even though, I find that it was only an inadvertent omission on behalf of the trial Court in not having recorded its finding of conviction and consequently imposition of sentence regarding the offence under Section 494 (A) of IPC, only due to the aforesaid facts, I refrain from exercising further powers under Section 386 of Code of Criminal Procedure by once again putting the appellant on notice and returning any finding of convict or imposing any sentence in respect of Section 498 (A) of IPC. Accordingly, question no.3 is answered.

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28.In the result,

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(i) This Crl.A.No.449 of 2015 stands allowed.

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(ii) The accused is acquitted from the offence under Section 304 (B)

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of IPC.

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(iii) Fine amount if any paid by the appellant shall be refunded.

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03.02.2023