REPORTABLE

 IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO. 590 OF 2005

Narwinder Singh                        … Appellant

VERSUS

State of Punjab                                …Respondent

  J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This  appeal  has  been  filed  against  the  

judgment and order dated 6th October, 2004 of  

the  Punjab  and  Haryana  High  Court  at  

Chandigarh in Criminal Appeal No. 406-SB of  

1992 wherein the appellant has been convicted  

under Section 306 Indian Penal Code (‘IPC’ for  

short) and sentenced to rigorous imprisonment  

for two years and to pay a fine of Rs.1,000/-  

and in default of payment thereof to undergo  

further rigorous imprisonment for one month.  

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2. We may briefly notice the facts.    

Sukhjit Kaur, alias Rani was married to Narwinder Singh  

of Village Mehdipur on 30th September, 1984.   A male  

child had first been born to the couple and at the time of  

the  incident,  the  wife  was  pregnant  a  second  time.  

According to the in-laws of the appellant, they had given  

sufficient dowry at the marriage of their daughter to the  

appellant.  It appears that the appellant and his parents  

Daljit  Singh  and  Joginder  Kaur  remained  dissatisfied.  

About  two  months  after  the  marriage,  Sukhjit  Kaur  

informed her mother Gursharan Kaur that her in-laws  

were  asking  her  to  bring  valuable  articles  such  as  a  

scooter  from  her  parents.   It  is  also  the  case  of  the  

prosecution that an additional demand of Rs.5,000/- was  

made  by  Narwinder  Singh,  in  the  year  1986,  which  

amount too  was paid by his  mother-in-law Gursharan  

Kaur.  Unfortunately, on 25th May, 1987, Bhai Davinder  

Singh,  father  of  Sukhjit  Kaur  was  murdered  by  

extremists.  After the death of Bhai Davinder Singh, there  

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was sea-change in the attitude of the appellant and her  

parents,  and  they  started  maltreating  her.   About  six  

months  prior  to  the  fatal  incident,  there  had  been  a  

quarrel between the husband and wife, which was settled  

with the intervention of several relatives including Kulbir  

Singh and Onkar Singh, PW-5.  About ten days prior to  

the incident, Sukhjit Kaur went to Onkar Singh’s house  

in Village Nabipur and informed him that the accused  

were demanding Rs.50,000/-.  They were saying that her  

late father had left enough money for the family and that  

she should get her share.  Onkar Singh told her that he  

would inform Gursharan Kaur,  who was then living in  

England about the demand and seek instructions from  

her.   Unfortunately,  on  30th May,  1988,  Onkar  Singh  

came to know about the death of his niece Sukhjit Kaur  

(hereinafter referred to as ‘the deceased’).  He alongwith  

Gurjit  Kaur,  sister  of  the  deceased,  Hanwant  Singh,  

Darshan  Singh  and  Mohan  Singh  went  to  village  

Mehdipur and saw the dead body of Sukhjit Kaur alias  

Rani lying in the house.  Blood was oozing from her nose.  

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Onkar  Singh,  thereafter,  lodged  a  FIR  naming  the  

accused  as  having  been  responsible  for  her  death.  

Initially,  a  case  under  Section  306  IPC was  registered  

against the accused but, a charge under Section 304-B of  

the IPC was ultimately framed by the Court.   

3. In support of its case, the prosecution relied inter-

alia on the evidence of Kulbir Singh (PW-2) and Onkar  

Singh (PW-5),  both uncles  of  the  deceased,  Gursharan  

Kaur (PW-6)  the mother  and Gurjit  Kaur (PW-7).   The  

sister of Sukhjit Kaur stated that the demands made by  

the accused had been satisfied off and on and that the  

behaviour of the accused had compelled Sukhjit Kaur to  

commit  suicide.   The  prosecution also  relied upon the  

evidence of Dr. H.S. Bajwa (PW-3), who on the basis of  

the report of the Forensic Science Laboratory opined that  

she had died of Organo Phosphorus poisoning.  A large  

number  of  documents  including  some  letters  allegedly  

written by the deceased to her family members and by  

them to her were also produced in evidence.

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4. The prosecution case was then put to the accused  

and  their  statements  recorded  under  Section  313  of  

Cr.P.C.  They denied the allegations levelled against them  

and pleaded that as a matter of fact Sukhjit Kaur had  

fallen ill  as she was pregnant and depressed after  the  

murder  of  her  father  (to  whom  she  had  been  deeply  

attached) and that she had been taken to Oberoi Hospital  

by  her  father-in-law  on  seeing  her  condition  

deteriorating, and that despite all efforts on the part of  

the accused to save her, she had died.  The accused also  

produced  three  witnesses  in  defence,  namely  Hardev  

Singh (DW-1),  Jarnail  Singh (DW-2)  and Pritam Singh  

(DW-3), as also certain letters written inter-se the parties.  

5. The trial court held that from the evidence of Kulbir  

Singh,  Onkar Singh,  Gursharan Kaur and Gurjit  Kaur  

(PWs) and the letter Ex.P.1, it appeared that demands for  

dowry had been made by the accused from Sukhjit Kaur  

time and again and that she had been harassed and thus  

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compelled to  commit  suicide.   It  further  held  that  the  

ingredients of  Section  304-B IPC were satisfied on the  

presumptions  raised  under  Section  113-B  of  the  

Evidence Act with regard to dowry deaths and that the  

letters Exs. PA, PB, PC, PD and PE did not in any way  

show  that  the  relation  between  the  parties  had  been  

cordial.   The  trial  court  accordingly  convicted  the  

accused for an offence punishable under Section 304-B  

IPC,  and  sentenced  them  to  undergo  rigorous  

imprisonment       for seven years and to fine and in  

default  of  payment  of  fine  to  undergo further  rigorous  

imprisonment for a specified period.

6. Aggrieved,  against  the  aforesaid  conviction  and  

sentence, the appellant and his parents filed an appeal  

before  the  Punjab  and  Haryana  High  Court.   Upon  

reconsideration  of  the  entire  evidence,  the  High  Court  

concluded that the deceased had not committed suicide  

on account of demands for dowry but due to harassment  

caused by the husband, in particular.  The appeal was,  

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therefore, partly allowed.  The High Court acquitted the  

parents of the appellant.  However, the conviction of the  

appellant was converted from one under Section 304-B  

IPC to Section 306 IPC.  He was sentenced to undergo  

rigorous imprisonment for two years and to pay a fine of  

Rs.1,000/- and in default of payment, he has to undergo  

further  rigorous  imprisonment  for  one  month.   The  

aforesaid judgment is challenged in the present appeal.  

7. Mr.  Vikram  Mahajan,  learned  senior  counsel  

appearing for  the appellant  submitted that there is  no  

distinction between the case of the appellant and that of  

his parents, who have been acquitted.  The High Court  

having acquitted  the  parents,  the  appellant  also  could  

not have been convicted.  He further submitted that this  

was a plain and simple case of suicide due to the mental  

state of the deceased.  He submits that since the murder  

of her father by extremists, the deceased had been under  

acute  depression  and  she,  therefore,  had  suicidal  

tendencies.   Learned  senior  counsel  further  submitted  

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that there is no evidence on the record to show that the  

victim  had  died  an  unnatural  death.   Lastly,  it  is  

submitted that the High Court committed a grave error in  

convicting  the  appellant  under  Section 306 IPC.   It  is  

submitted  by  Mr.  Mahajan  that  the  nature  of  offence  

under Section 304-B IPC is distinct and different from  

the offence under Section 306 IPC.  The basic constituent  

of an offence under Section 304-B IPC is homicidal death  

(dowry death) and those of Section 306 IPC is suicidal  

death and abetment thereof.  Furthermore, according to  

the  learned  senior  counsel,  the  nature  of  evidence  

required under both the categories of offences are totally  

different.   The  appellant  was  never  charged  under  

Section 306 IPC, nor is there any evidence on the record  

to sustain the conviction under Section 306 IPC.   

8. Mr.  Kuldip  Singh,  learned  counsel,  appearing  for  

the State of Punjab submits that the appellant is in fact  

fortunate  being  convicted  only  under  Section 306 IPC.  

There  is  overwhelming  evidence  to  prove  that  the  

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appellant  and  his  parents  had  been  harassing  the  

deceased to bring more dowry. He submits that there is  

evidence that the wife had been subjected to harassment  

on account of dowry immediately after the marriage.  The  

death occurred within seven years of marriage, therefore,  

by virtue of Section 113-B of the Evidence Act, the trial  

court had rightly presumed that the appellant and his  

parents  had  committed  the  offence  under  

Section 304-B IPC.   

9. We have considered the submissions made by the  

learned counsel.  The High Court, upon close scrutiny of  

the  evidence,  concluded  that  there  was  evidence  of  a  

quarrel between the husband and wife about six months  

prior to the occurrence, which had been settled with the  

intervention of the eldest.   There were complaints that  

the  deceased  did  not  know how to  do  any  household  

work.  The in-laws had also complained that she was not  

well mannered.  Their ill-treatment of the wife escalated  

after the murder of her father by extremists.  It was at  

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that stage the husband had started demanding that the  

deceased should claim one of the two houses left behind  

by her father in Village Nabipur.  About ten months prior  

to her death, she was actually sent by the appellants to  

demand possession of the house.  The appellant and his  

parents were suspecting that the sister of the deceased,  

Gurjit Kaur had taken everything after the death of the  

father of the deceased.  The appellant and his parents  

were insisting that the house be legally conveyed in the  

name of the deceased.  However, mother of the deceased  

left for England after the first death anniversary of her  

husband in May, 1988.  The High Court, on examination  

of the entire evidence, concluded that the deceased had  

not committed suicide on account of demands for dowry  

but  due  to  harassment  caused  by  her  husband,  in  

particular.   The  deceased  had  committed  suicide  by  

drinking  Organo  Phosphorus  poison.   In  view  of  the  

findings  recorded,  the  High  Court  converted  the  

conviction of the appellant from one under Section 304-B  

IPC to one under Section 306 IPC.   

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10. We do not find much substance in the submission  

of  Mr.  Mahajan  that  the  High  Court  could  not  have  

convicted  the  appellant  under  Section  306  IPC as  the  

charge had been framed under Section 304-B IPC.  On  

scrutiny of the entire evidence, the High Court has come  

to the conclusion that the deceased had not committed  

suicide  on  account  of  demands  for  dowry  but  due  to  

harassment caused by her husband, in particular.  The  

harassment by the appellant had compounded the acute  

depression from which the deceased was suffering after  

the murder of her father.  There was no evidence of any  

demand for dowry soon before the death, and there was  

no demand whatsoever that the house in question should  

be  transferred  to  either  of  the  accused.   Under  

Section  304-B  IPC,  the  cruelty  or  harassment  by  her  

husband  or  any  relative  of  her  husband  “for,  or  in  

connection with, any demand for dowry” is a prelude to  

the suicidal death of the wife.   Such suicidal death is  

defined as ‘dowry death’.  The High Court has recorded a  

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firm  finding  that  the  harassment  was  not  for  or  in  

connection  with  any  demands for  dowry.   But,  at  the  

same time, the High Court has concluded that the wife  

committed  suicide  due  to  the  harassment  of  the  

appellant, in particular.  In such circumstances, the High  

Court  was,  therefore,  fully  justified  in  convicting  the  

appellant under Section 306 IPC.   

11. We  also  do  not  find  any  substance  in  the  

submission of Mr. Mahajan that the appellant could not  

have  been  convicted  under  Section  306  IPC  in  the  

absence of a charge being framed against him under the  

aforesaid section. The learned counsel  had relied upon  

the judgments of this court in the case of Sangaraboina  

Sreenu Vs. State of A.P.  1   and Shamnsaheb M. Multtani  

Vs. State of Karnataka  2  .  We are of the opinion that the  

aforesaid  judgments  are  of  no  assistance  to  the  

appellant, in the facts and circumstances of the present  

case.   We may, however, notice the observations made  1 (1997) 5 SCC 348 2 (2001) 2 SCC 577

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therein. In the case of  Sangaraboina Sreenu (supra),  it  

was observed as follows:  

“This  appeal  must  succeed  for  the  simple  reason  that  having  acquitted the appellant  of  the charge under Section 302 IPC —  which was the only charge framed against him — the High Court  could not have convicted him of the offence under Section 306 IPC.  It is true that Section 222 CrPC entitles a court to convict a person  of an offence which is minor in comparison to the one for which he  is tried but Section 306 IPC cannot be said to be a minor offence in  relation to an offence under Section 302 IPC within the meaning of  Section 222 CrPC for the two offences are of distinct and different  categories. While the basic constituent of an offence under Section  302 IPC is homicidal death, those of Section 306 IPC are suicidal  death and abetment thereof.”

In the present case, both the trial  court  and the High  

Court  have  held  that  the  deceased  had  committed  

suicide.   Therefore,  the  nature  of  the  offence  under  

Sections 304-B and 306 IPC are not distinct and different  

categories.  

Again in the case of  Shamnsaheb M. Multtani (supra),   

this court observed:  

“18. So when a person is charged with an offence under Sections  302 and 498-A IPC on the allegation that he caused the death of a  bride after subjecting her to harassment with a demand for dowry,  within a period of 7 years of marriage, a situation may arise, as in  this case, that the offence of murder is not established as against  the accused. Nonetheless, all other ingredients necessary for the  offence under Section 304-B IPC would stand established. Can the  accused be convicted in such a case for the offence under Section  304-B IPC without the said offence forming part of the charge?

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19. A two-Judge Bench of this Court (K. Jayachandra Reddy and  G.N. Ray, JJ.) has held in Lakhjit Singh v. State of Punjab1 that if a  prosecution failed to establish the offence under Section 302 IPC,  which alone was included in the charge, but if the offence under  Section 306 IPC was made out in the evidence it is permissible for  the court to convict the accused of the latter offence.  

20. But  without  reference  to  the  above  decision,  another  two- Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar,  JJ.)  has held in  Sangaraboina  Sreenu v.  State  of  A.P. that  it  is  impermissible to do so. The rationale advanced by the Bench for  the above position is this:(SCC p.348, para 2) “It  is  true  that  Section  222  CrPC  entitles  a  court  to  convict  a  person of an offence which is minor in comparison to the one for  which he is tried but Section 306 IPC cannot be said to be a minor  offence in relation to an offence under Section 302 IPC within the  meaning of Section 222 CrPC for the two offences are of distinct  and different categories. While the basic constituent of an offence  under Section 302 IPC is homicidal death, those of Section 306  IPC are suicidal death and abetment thereof.”

21. The crux of the matter is this: Would there be occasion for a  failure  of  justice  by  adopting  such  a  course  as  to  convict  an  accused  of  the  offence  under  Section  304-B  IPC  when  all  the  ingredients  necessary  for  the  said  offence  have  come  out  in  evidence, although he was not charged with the said offence? In  this context a reference to Section 464(1) of the Code is apposite:  “464. (1)  No finding,  sentence or order by a court of competent  jurisdiction shall be deemed invalid merely on the ground that no  charge  was  framed or  on the  ground of  any error,  omission or  irregularity  in  the  charge  including  any  misjoinder  of  charges,  unless, in  the  opinion  of  the  court  of  appeal,  confirmation  or  revision,  a failure of justice has in fact been occasioned thereby”.  (emphasis supplied)

22. In other words, a conviction would be valid even if there is any  omission or irregularity in the charge, provided it did not occasion  a failure of justice.  

23. We often hear  about “failure of  justice”  and quite  often the  submission  in  a  criminal  court  is  accentuated  with  the  said  expression. Perhaps it is too pliable or facile an expression which  could be fitted in any situation of a case. The expression “failure of  justice” would appear, sometimes, as an etymological chameleon  

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(the simile is borrowed from Lord Diplock in Town Investments Ltd.  v.  Deptt.  of the Environment). The criminal court, particularly the  superior  court  should  make  a  close  examination  to  ascertain  whether there was really a failure of justice or whether it is only a  camouflage.”

We  are  of  the  considered  opinion  that  the  aforesaid  

observations do not apply to the facts of the present case.  

The High Court upon meticulous scrutiny of the entire  

evidence on record rightly concluded that there was no  

evidence  to  indicate  the  commission  of  offence  under  

Section  304-B  IPC.  It  was  also  observed  that  the  

deceased  had  committed  suicide  due  to  harassment  

meted  out  to  her  by  the  appellant  but  there  was  no  

evidence on record to suggest that such harassment or  

cruelty was made in connection to any dowry demands.  

Thus, cruelty or harassment sans any dowry demands  

which  drives  the  wife  to  commit  suicide  attracts  the  

offence of  ‘abetment  of  suicide’  under  Section 306 IPC  

and not Section 304-B IPC which defines the offence and  

punishment for ‘dowry death’.

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12. It is a settled proposition of law that mere omission  

or defect in framing charge would not disable the Court  

from convicting the  accused for  the  offence which has  

been found to be proved on the basis of the evidence on  

record.  In  such circumstances,  the  matter  would  fall  

within  the  purview  of  Section  221  (1)  and  (2)  of  the  

Cr.P.C.  In the facts of the present case, the High Court  

very  appropriately  converted  the  conviction  under  

Section 304-B to one under Section 306 IPC.  

13. In our opinion, there has been no failure of justice  

in the conviction of the appellant under Section 306 IPC  

by the High Court, even though the specific charge had  

not been framed.  

14. Therefore,  we  see  no reason to  interfere  with the  

judgment of the High Court.  The appeal is accordingly  

dismissed.          

……………………….……J. [B.SUDERSHAN REDDY]

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                                                    .……………………… ………J. [SURINDER SINGH NIJJAR]

NEW DELHI; JANUARY 05, 2011.

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