# wih other cases Rammilan Bunkar v. State of U.P

- **Citation:** (2024) 5 ILRA 199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Criminal Appeal No. 1667 of 2021
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wih-other-cases-rammilan-bunkar-v-state-of-u-p-51916
- **Pages:** 29

## Headnote

Criminal Law-Indian Penal Code-1860Section-302 r/w 34, 304-B, A98-A -
Indian Evidence Act, 1872-Section 106The
Dowry
Prohibition
Act,
1961Sections 3/4- The trial courts invariably in
all the cases have exonerated the accused
persons from the charge u/s 304-B I.P.C. but
with the aid of Section 106 of Evidence Act
convicted the accused persons in a most
casual and cursory fashion u/ s 302 I.P.CSection 106 of the Evidence Act cannot be
invoked to make up the inability of the
prosecution
to
produce
evidence
of
circumstances pointing to the guilt of the
accused.

Making a reference in one paragraph is not
going to help the prosecution. To establish a
case u/s 302 I.P.C., the prosecution has to
establish its case by making a full-dressed
trial producing various prosecution witnesses
to establish the guilt of accused u/s 302 I.P.C.
beyond the pale of any suspicion or doubt-
Section 106 of Evidence Act cannot be used
mechanically or as a tool in the hand of
prosecution to convict the accused without
discharging duty on its part.

Matter remitted back for retrial. (E-15)

List of Cases referred-;

## Text

_Characters 0–39,682 of 101,808. This is a partial read: ask again with offset=39682 for what follows._

5 All. Rammilan Bunkar Vs. State of U.P.
199
Ors. vs. The State reported in AIR 1970
Allahabad 51 (FB) is being reproduced
here as under:-

"177. In accordance with the
majority opinion, our answer to the question
referred to this Full Bench is as follows:-

The majority decision in 1941 All
LJ 619 = AIR All 402 (FB) is still good law.
The accused person is entitled to be
acquitted if upon a consideration of the
evidence as a whole (including the evidence
given in support of the plea of the general
exception) a reasonable doubt is created in
the mind of the Court about the guilt of the
accused."

41. Ultimately, we are of the view that
the prosecution has definitely failed to prove
the case which was taken by it beyond
reasonable doubt.

42. Under such circumstances, the
instant criminal appeal is allowed. The
judgement and order dated 30.6.1982 passed
by the IIIrd Additional Sessions Judge,
Muzaffarnagar is quashed and set aside. The
appellants are acquitted of the charges on the
basis of which the trial had proceeded. Since
the appellants are on bail, the bail bonds and
sureties are discharged.
----------
(2024) 5 ILRA 199
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 1667 of 2021
And
Jail Appeal No. 338 of 2018
wih other cases
Rammilan Bunkar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Shiv
Babu
Dubey,
S.P.S.
Chauhan,
Sukhendra Singh

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Section-302 r/w 34, 304-B, A98-A -
Indian Evidence Act, 1872-Section 106The
Dowry
Prohibition
Act,
1961Sections 3/4- The trial courts invariably in
all the cases have exonerated the accused
persons from the charge u/s 304-B I.P.C. but
with the aid of Section 106 of Evidence Act
convicted the accused persons in a most
casual and cursory fashion u/ s 302 I.P.CSection 106 of the Evidence Act cannot be
invoked to make up the inability of the
prosecution
to
produce
evidence
of
circumstances pointing to the guilt of the
accused.

Making a reference in one paragraph is not
going to help the prosecution. To establish a
case u/s 302 I.P.C., the prosecution has to
establish its case by making a full-dressed
trial producing various prosecution witnesses
to establish the guilt of accused u/s 302 I.P.C.
beyond the pale of any suspicion or doubt-
Section 106 of Evidence Act cannot be used
mechanically or as a tool in the hand of
prosecution to convict the accused without
discharging duty on its part.

Matter remitted back for retrial. (E-15)

List of Cases referred-;

1. Rajbir @ Raju & anr. Vs St. of Har. (2010) 15
SCC 116

2. Jasvinder Saini Vs St. (Government of NCT of
Delhi), (2013) 7 SCC 256.

3. Vijay Pal Singh & ors. Vs St. of Uttarakhand,
(2014) 15 SCC 163
200 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Shamnsaheb M. Multtani Vs St. of Karn.
(2001) 2 SCC 577

5. Kamil Vs St. of U.P., AIR 2019 SC 45.

6. Dr. (Smt.) Nupur Talwar Vs St. of U.P. & anr.,
2017 10 ADJ 586

7. St. of Rajasthan Vs Kashi Ram, JT
2006(12)SCC 254

8. Trimukh Maroti Kirkan Vs St. of Mah., (2006)
10 SCC 681

9. Balvir Singh Vs St. of Uttarakhand in Ciminal
Appeal No.301 of 2015 with Criminal Appeal
No.2430 of 2014 decided on 06.10.2023,

10. Mohd. Hussain @ Julfikar Ali Vs St. of (Govt.
of NCT of Delhi), (2012) 9 SCC 408

11. Ajay Kumar Ghoshal & ors. Vs St. of Bihar &
ors., (2017) 12 SCC 699

(Delivered by Hon'ble Rahul Chaturvedi, J.)

[1]. Heard learned counsels named
above appearing for respective appellants as
well as learned Additional Government
Advocate for the State of U.P. Perused the
record.

[2]. Since all the appeals suffer from
same legal vice and flaw, therefore, all the
appeals after being clubbed together and for
the sake of brevity and convenience, are being
decided by a common judgment.

[3]. The moot legal questions to be
adjudicated, in these appeals are; (i) as to
whether the trial courts are justified in framing
the charge u/s 498A, 304B I.P.C. & Section
3/4 of Dowry Prohibition Act with alternative
charge u/s 302 I.P.C. simplicitor or 302/34
I.P.C.; (ii) as to whether the trial courts are
justified while exonerating the accusedappellants from the primary charges of
Sections 498A, 304B I.P.C. & Section 3/4 of
Dowry Prohibition Act, but convicting them
u/s 302/34 I.P.C. taking recourse of Section
106 of the Evidence Act?

As above is a pure legal issue,
which deserves strict judicial scrutiny by this
Court about the alleged addition of Section
302 I.P.C., in addition to pre-existing sections
about dowry death and dowry related inhuman
treatment. This exercise is being carried out by
the learned Trial Judges as a mater of routine
and in a most mechanical fashion, making the
entire episode more grim and serious, without
having
any
supporting
documents
or
allegations. Adjudicating of instant legal
proposition
would
have
far-reaching
implications upon all the pending trials before
concerned Sessions Courts of the State, as we
are now inclined to decide the aforesaid moot
point at this threshold stage.

At this juncture, we may like to
clarify that while deciding this bunch of
Appeals, we are focussing our attention to
above legal theorem only without touching the
factual merit of the case. It is open for the trial
court to decide entire spectrum of the cases
after having proper evaluation of the evidence
on its own.

[4]. Before entering into the legal arena,
we find it necessary to give a bare skeleton
facts of each case for better appreciation of
every appeal at hand and the controversy
involved in it, viz :

FACTUAL
MATRIX
OF
RESPECTIVE APPEALS :

[5]. CRIMINAL APPEAL NO.1667 of
2021

(Rammilan Bunkar vs. State of
U.P.)

(i) Appellant Rammilan Bunkar is
facing
incarceration
since
09.02.2021
5 All. Rammilan Bunkar Vs. State of U.P.
201
pursuant to judgment and order passed by
the learned Additional Session Judge
(F.T.C.), Lalitpur while deciding S.T. No.37
of 2017 (State vs. Rammilan Bunkar and 2
others), arising out of Case Crime No.113 of
2016,
Police
Station-Narahat,
District
Lalitpur. The appellant Rammilan Bunkar
and 2 others were put to trial u/s 498A, 304B
I.P.C. and Section 3⁄4 D.P. Act with
alternative charge u/s 302/34 I.P.C., but the
learned Trial Judge have exonerated the
accused-appellant from the charge u/s 304B
I.P.C., but have convicted u/s 302 I.P.C. for
life imprisonment with fine of Rs.10,000/-;
u/s 498A I.P.C. for two years simple
imprisonment with fine of Rs.3000/- and u/s
4 of D.P. Act for one year rigorous
imprisonment and a fine of Rs.3000/- with
default clause. In addition to this, remaining
co-accused persons Lal Singh and Har
Govind were also exonerated and acquitted
from the charges u/s 498A, 304B, 302 I.P.C.
& Section 4 D.P. Act.

(ii). As per prosecution case the
informant Aunda s/o Pathola has given a
written tehrir on 18.3.2016 that her daughter
Anita @ Poonam (aged about 22 years) got
married with Rammilan Bunkar about three
years back. The marriage was solemnized as
per their standards, but her in-laws were
dissatisfied with the dowry given and they
were demanding a motorcycle and sofa-set
by way of additional dowry and on this score
she was subjected to constant torture and illtreatment. On 17.3.2016 around 03.00 in the
day, they have taken away the deceased and
Rammilan Bunkar, Lal Singh and Har
Govind poured kerosene oil upon her and set
her ablaze. On this, F.I.R. was registered u/s
498A, 304B I.P.C. & 3/4 of D.P. Act on
18.03.2016. Postmortem of the deceased
was conducted on 18.3.2016, which reveals
that she died on account of asphyxia and
shock as a result of ante mortem burn
injuries.

(iii) Being cognizable offence, the
matter was remitted to the court of session
and on 20.04.2017 charges were framed
against the appellant u/s 498A, 304B I.P.C.
and Section 3/4 of D.P. Act and alternative
charge u/s 302/34 I.P.C. The prosecution has
produced as many as five prosecution
witnesses to prove its case along with certain
documents.

(iv) Learned counsel for appellant
has drawn attention of the Court to the
testimony of P.W.-2 Manbai @ Manbhu
(mother of the deceased) in which she stated
that since her daughter was not carrying
pregnancy despite of the treatment provided
by her husband, she became introvert,
sombre and hopeless. For this reason and on
this account she has committed suicide by
pouring kerosene oil upon her.

(v) The trial court in so many
words has clearly indicated that the relevant
postulates of Section 304B I.P.C. are
completely missing in the present case and
the prosecution has miserably failed to
establish them, thus, no case u/s 304B I.P.C.
or Section 4 of D.P. Act is made out, BUT
in a most casual way the trial court has
convicted
the
accused-appellant
with
alternative charge u/s 302 I.P.C. While
adjudicating upon Issue No.5, the learned
Trial Judge have taken the help and recourse
of Section 106 of Evidence Act mentioning
that her in-laws were not present over the
site and the burden is upon the husband to
explain the circumstances in which she died
unnaturally. Since accused-appellant was
unable to discharge his burden, as such, it
would be presumed that the offence is
committed by him and accordingly he was
convicted for the offence u/s 302, 498A
I.P.C.

(vi) As mentioned above, in the
last paragraph of the judgment, in a most
casual and capricious way without taking
into account that the provisions of Section
202 INDIAN LAW REPORTS ALLAHABAD SERIES
302 I.P.C. are totally different and distinct
and conviction cannot be recorded in a
superficial way but the same has been done
by the impugned order. This is the moot
question to be adjudicated upon by this
Court.

[6]. CRIMINAL APPEAL NO.5193
OF 2023 (Meena Srivastava vs. State of
U.P.) & CRIMINAL APPEAL No.5671 OF
2023 (Amit Srivastava @ Ashu vs. State
of U.P.)

(i) Appellants Meena Srivastava
and Amit Srivastava @ Ashu are under
incarceration
pursuant
to
impugned
judgment and order of conviction dated
24.9.2023 passed by the learned Additional
Session Judge, Court No.9, Varanasi. Both
the appellants have filed their separate
appeals challenging a common judgment
and order dated 24.9.2023, whereby the
learned Trial Judge has convicted the
appellants in S.T. No.410 of 2018 (State vs.
Amit Srivastava and another), arising out of
Case Crime No.621 of 2018, u/s 498A, 316,
302 I.P.C., Police Station Shivpur, District
Varanasi and awarded sentence u/s 302
I.P.C. for life imprisonment along with fine
of Rs.10,000/- each; u/s 316 I.P.C. for seven
years rigorous imprisonment along with fine
of Rs.5,000/- each; u/s 498A I.P.C. for one
year rigorous imprisonment along with fine
of Rs.1000/- to each of the appellants.

(ii). As per the version of F.I.R.,
the informant Ramendra Kumar Srivastava
has lodged the F.I.R. No.621 of 2018 on
20.9.2018 at Police Station Shivpur, District
Varanasi,
that
his
daughter
Sakshi
Srivastava was married to one Amit
Srivastava @ Ashu, a year back, with a lot
of fanfare and after giving sufficient amount
of dowry and gifts. From the day one of
marriage, the husband Amit Srivastava and
mother-in-law Meena Srivastava used to
taunt Sakshi for bringing scanty dowry.
During her lifetime, Sakshi stated that her
husband
and
mother-in-law
were
demanding Rs.3 lacs as additional dowry.
The informant has shown his inability to
meet out the demand of additional dowry.
Her daughter was carrying pregnancy of
seven months. On 19.10.2018 the informant
got a call from his son-in-law, that the
condition of her daughter Sakshi is not up to
the mark and slowly deteriorating. She was
got admitted in Ansh Neuro Hospital at
I.C.U. and in the morning she was declared
dead. Her body as well as head was having
number of visible injuries.

(iii) In this case initially the F.I.R.
was registered u/s 498A, 304B I.P.C. &
Section 3/4 of D.P. Act at Police Station
Shivpur, District Varanasi and after the
investigation the police have submitted
charge sheet under same sections. Being
cognizable offence, the case was committed
to the court of session and the learned
Session Judge on 4.6.2019 has framed
charge u/s 498A, 304B I.P.C. with
alternative charge u/s 302 I.P.C. and Section
4 of D.P. Act, which were denied by the
accused-appellants and insisted to be tried.

(iv) Perusal of the impugned
judgment indicates that eventually the
appellants were convicted for the offence u/s
498A, 316, 302 I.P.C. The interesting
feature of the case is that the learned
Sessions
Judge
have
exonerated
the
accused-appellants u/s 304B I.P.C. and
Section 4 of D.P. Act, but convicted u/s
498A, 316, 302 I.P.C. From the paragraphs
46, 47 and 48 of the judgment it is evident
that the learned Sessions Judge has taken the
help of Section 106 of the Evidence Act and
arrived to the convenient conclusion, that
this was under the special knowledge which
is in possession of the accused-appellants as
the deceased died at her marital place. How
and under what circumstances the injuries
5 All. Rammilan Bunkar Vs. State of U.P.
203
were inflicted upon the deceased, its burden
lies upon the accused-appellants and since
they have not discharged their burden,
therefore, taking the recourse of Section 106
of the Evidence Act, they have been
convicted u/s 302 I.P.C. and awarded
sentence for life.

[7]. JAIL APPEAL NO.338 OF 2018

 (Prem Chand vs. State of U.P.)

(i) In this appeal the appellant
Prem Chandra is in jail pursuant to
impugned judgment and order dated
29.3.2017 passed by the Additional Session
Judge, Court No.5, Banda in S.T. No.173 of
2012 (Prem Chandra and 2 others vs. State
of U.P.), arsing out of Case Crime no.499 of
2012, Police Station Kotwali Nagar, District
Banda. Though the accused have faced the
trial u/s 498A, 304B I.P.C. & Section 4 of
D.P. Act with alternative charge u/s 302
I.P.C., BUT the learned Trial Judge while
deciding aforesaid session trial have
convicted the appellant Prem Chandra with
alternative charge u/s 302 I.P.C. only,
awarding sentence for life with a fine of
Rs.10,000/-, exonerating him from the
charges u/s 498A I.P.C. and 3⁄4 of D.P. Act.

(ii) As per prosecution case,
Shyam Babu has given a written tehrir (Ext.
Ka-1) that his handicapped daughter Sangita
got married with accused-appellant Prem
Chandra on 5.11.2011, though she was
educated girl, completed her Masters. This
marriage was solemnized with a lot of
fanfare and sufficient dowry/gifts were
given by the informant to her daughter. It is
further alleged that after the marriage, the
girl was constant target of taunts and
innuendoes from her husband and motherin-law for being handicapped and scanty
dowry. They demanded Rs.50,000/- more as
additional dowry. On 23.8.2012 around 8.00
in the morning the informant received an
information that his daughter died. After
making
inquiry,
an
information
was
gathered by them that the husband Prem
Chandra by the small gas cylinder and some
sharp edged weapon assaulted upon the her
and thereafter fled away. In a precarious
condition she was got admitted in the
hospital where at 8.00 in the morning she
died.

(iii)
In
paragraph-7
of
the
judgment it is mentioned that after hearing
the parties the charges against Raj Bahadur,
Prem Chandra and Surajkali were framed
u/s 498A, 304B I.P.C. & 3/4 D.P. Act and
also alternative charge u/s 302 I.P.C.
However, the husband Prem Chandra too
was acquitted from the charge u/s 498A
I.P.C. & 3/4 D.P. Act and he was convicted
u/s 302 I.P.C. and was awarded life sentence
by the learned Additional Session Judge,
Court No.5, Banda. The appellant is in jail
since 29.3.2017 (date of judgment).

(iv) The Court has occasion to
examine the impugned judgment. No doubt,
the
deceased
died
under
unnatural
circumstances at the residence of her
husband. In paragraph 35 and 36 of the
judgment, it is clearly mentioned that
prosecution has miserably failed to establish
the guilt of Section 498A, 304B I.P.C. & 3/4
D.P. Act against co-accused Raj Bahadur
and Surajkali, but without attributing any
cogent reason abruptly and whimsically the
learned Trial Judge have convicted the
appellant Prem Chandra u/s 302 I.P.C. Since
all accused persons were exonerated from
the charge u/s 498A, 304B I.P.C. & 3/4 D.P.
Act, therefore, presumption contained u/s
113 of the Evidence Act would not come to
help of prosecution. If accused is being tried
for the offence u/s 302 I.P.C., entire burden
is upon the prosecution to establish the guilt
of accused beyond reasonable doubt. In the
entire judgment, there is no whisper that
appellant Prem Chandra was an author of
204 INDIAN LAW REPORTS ALLAHABAD SERIES
this unfortunate incident. However, Section
106 of the Evidence Act would come into
play only after the prosecution establishes
the case against the accused beyond the pale
of reasonable doubt, then only the operation
of Section 106 of Evidence Act starts
operating against the accused.

[8]. CRIMINAL APPEAL NO.5071
OF 2018 (Shiv Kumar vs. State of U.P.) &
CRIMINAL APPEAL NO.5069 OF 2018
(Jamuna Devi and another vs. State of
U.P.)

(i) The appellants Shiv Kumar,
Jamuna Devi and Shankar Lal are under
incarceration
pursuant
to
impugned
judgment and order of conviction dated
09.08.2018 passed by the learned Additional
District
&
Sessions
Judge,
Court
No.3/Special Judge (DAA), Pilibhit. The
appellants have filed two separate appeals
challenging a common judgment and order
dated 09.08.2018, whereby the learned Trial
Judge has convicted the appellants in S.T.
No.219 of 2017 (State of U.P. vs. Shiv
Kumar and others) and S.T. No.272 of 2017
(State of U.P. vs. Shankar Lal), arising out
of Case Crime No.277 of 2017, u/s 498A,
304B, I.P.C. and 3/4 of D.P. Act, Police
Station Gajraula, District Pilibhit awarding
sentence
u/s
304B
I.P.C.
for
life
imprisonment; u/s 302 I.P.C. for life
imprisonment along with fine of Rs.10,000/-
each and u/s 498A I.P.C. for three years
rigorous imprisonment along with fine of
Rs.3000/- to each of the appellants. Thus it
is shocking that the learned Trial Judge have
recorded conviction only to accused
Shankar Lal (Husband) u/s 304B as well as
302 I.P.C. both and awarded u/s 304B I.P.C.
for life sentence and u/s 302 I.P.C. for life
sentence and fine of Rs.10,000/-, unmindful
of the fact that both the sections operates in
two different spheres, having two different
sets of essential ingredients.

(ii). In this case too, initially the
F.I.R. was registered u/s 498A, 304B I.P.C.
& 3/4 D.P. Act against Shiv Kumar, Jamuna
Devi and Rumla @ Urmila. Being
cognizable
offence
the
matter
was
committed to the court of session and the
learned Trial Judge have framed the charge
against the appellants u/s 498A, 304B I.P.C.
& 4 D.P. Act with an alternative charge u/s
302 I.P.C.

(iii). As per prosecution case, the
informant's daughter Vimla (22 years) got
married with Shankar Lal in April, 2016
whereby the informant has given dowry and
gifts as per his capacity, but the in-laws were
not satisfied and on account of scanty dowry
there was a bad breath between them. The
deceased's sister-in-law (nanad) Rumla @
Urmila got married with the maternal
brother of Vimla and this was the sole
reason for further animosity. In the
intervening night of 15.6.2017 all the
persons of in-laws throttled the neck of
Vimla and wiped her off. Vimla was
carrying the pregnancy of three months.
Initially the F.I.R. was registered u/s 498A,
304B I.P.C. & 3/4 D.P. Act and the charge
sheet was also submitted in same sections,
but after committal of the case to the court
of session, the learned Trial Judge have
framed the charge against the appellants u/s
498A, 304B I.P.C. & 4 D.P. Act with an
alternative charge u/s 302 I.P.C. on
26.10.2017, which were denied by the
accused-appellants and insisted for trial.

(iv). To establish the case of
prosecution, the prosecution has produced
as many as six prosecution witnesses along
with certain documents. After the trial,
sister-in-law of the deceased Rumla @
Urmila was acquitted from the charge u/s
498A, 304B I.P.C. & 4 D.P. Act with an
5 All. Rammilan Bunkar Vs. State of U.P.
205
alternative charge u/s 302 I.P.C. BUT
interesting feature of the case is that the
learned Sessions Judge after thrashing the
evidence have recorded the conviction of
accused-appellants Shiv Kumar, Jamuna
Devi and Shankar Lal u/s 498A, 304B I.P.C.
& 4 D.P. Act with an alternative charge u/s
302 I.P.C. In this judgment learned Trial
Judge has given per se absurd finding and
conviction, so much so, on the same set of
facts the Trial Judge have recorded
conviction u/s 304B and 302 I.P.C.
simultaneously against Shankar Lal, the
husband and accordingly convicted the
husband for life in both the offences.

This indeed a strange judgment
whereby the learned Trial Judge who is a
senior judicial officer of Sessions Judge
rank, has failed to appreciate that the sphere
of operation of both the sections of 302
I.P.C. and 304B I.P.C. are entirely different
and distinct. Except that there is loss of life
in both the cases, there is nothing common
or overlapping with each other.

This Court feels pity about the
legal understanding of the concerned Trial
Judge who convicted the Husband Shankar
Lal for both the offences u/s 302 as well as
304B I.P.C.

[9]. Thus, from the aforesaid it is
clear that there is specific pattern in all the
impugned judgments whereby almost all
the F.I.Rs. have been registered u/s 498A,
304B I.P.C. & 3/4 D.P. Act, but the trial
courts invariably in all the aforesaid cases
have inserted Section 302 I.P.C. as an
alternative charge. The peculiarity of all
the appeals is that almost in all cases the
learned Trial Judge has exonerated the
accused-appellants from the charges u/s
498A, 304B I.P.C. & 3/4 D.P. Act, but
taking recourse to Section 106 of Evidence
Act all the respective appellants have been
convicted for the alternate offence u/s 302
I.P.C. simplicitor or with the aid and help
of Section 34 I.P.C.

[10]. It is argued by learned counsel
for appellants that aforesaid legal fallacy
is dehors of the settled principles of law in
this regard that there is absolute big Zero
to justify the addition of Section 302 I.P.C.
for framing of the charge of "murder". It
seems the learned Trial Judge have framed
those charges in the faithful compliance of
the Hon'ble Supreme Court's judgment in
Rajbir @ Raju and another vs. State of
Haryana, decided in the year 2010,
which was later on explained in the year
2013 in yet another judgment of Hon'ble
Apex Court in the case of Jasvinder Saini
vs. State (Government of NCT of Delhi),
(2013) 7 SCC 256.

LEGAL DISCUSSION :

[11]. From the aforesaid bunch of
appeals, it is evident that there is common
thread that in all the appeals the case was
registered u/s 498A, 404B I.P.C. & 3/4
Dowry Prohibition Act, BUT the learned
Sessions Judge while framing the charge
have invariably added Section 302 I.P.C.
simplicitor or 302 read with Section 34
I.P.C. in all the appeals. Interesting feature
of all the appeals is that the learned
Sessions Judge have exonerated the
appellants
from
the
charges
u/s
498A/304B I.P.C. & 3/4 D.P. Act, but at
the tale of their respective judgments the
learned Sessions Judges cursorily but in
oddish way taking the aid of Section 106
of Evidence Act have convicted all the
appellants for the offence u/s 302 I.P.C.
This is the LCM of all the appeals.

[12]. After doing slight research work,
it has come to our knowledge that this
practice has started with a judgment
206 INDIAN LAW REPORTS ALLAHABAD SERIES
pronounced by the Hon'ble Apex Court in
the case of Rajbir alias Raju and another vs.
State of Haryana, (2010) 15 SCC 116,
whereby the Hon'ble Apex Court, while
relying upon its own judgments in the cases
of Satya Narayan Tiwari vs. State of U.P.,
2010 (13) SCC 689 and Sukhdev Singh vs.
State of Punjab, 2010 (13) SCC 656, pleased
to pass the following directions to all the
trial courts :

"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, who will circulate it to all trial
courts."

[13]. We have an occasion to peruse
the judgment of Rajbir @ Raju (supra)
running into only seven paragraphs. No
doubt that now-a-days the crime against
women is quite rampant and the Hon'ble
Judges of the Supreme Court have shown
their concern about increasing graph of
crime against women, but it seems that, it
was a more of an emotional cry by the Apex
Court to frame alternatively charge an
accused u/s 302 I.P.C. so that the offender
may be hanged or death sentence could be
imposed upon such an offender, unconcern
by the fact that there is no evidence even for
the namesake to attract the essential
ingredients of Section 302 I.P.C. which
would justify the learned Trial Judge to
frame an alternative charge u/s 302 I.P.C.
Ignoring this vital legal fallacy, in order to
obey the commands of the Hon'ble Supreme
Court, a circular was issued pursuant to the
aforesaid
judgment,
which
is
being
scrupulously followed by the different trial
courts in India since 2010 itself.

However, this proposition of law
was later on explained by the Hon'ble Apex
Court while pronouncing yet another
judgment in Jasvinder Saini and others vs.
State (Government of NCT of Delhi),
(2013) 7 SCC 256. In this judgment while
assessing the scope and ambit of Section 216
of Cr.P.C., it was held that, the courts have
an unrestricted power to add or alter any
charge
whenever
courts
find
that
erroneous/defective charges have been
framed which lately requires an addition or
its dropping. Under Section 216 Cr.P.C. the
scope and ambit of existing charges become
necessary after commencement of the trial,
but such change or alteration should be
made before the pronouncement of the
judgment.

In addition to this, if any alteration
or addition is being made by the learned
Trial Judge, it must primarily satisfy that
there are sufficient material on record to
justify the said addition or alteration of
charge.

[14]. In the instant cases where there is
prima facie allegation of dowry related
harassment and unnatural demise of the
bride within seven years of her marriage and
the charges were accordingly framed, then
addition of Section 302 I.P.C. mechanically
without any supporting material is held to be
unsustainable. In paragraphs 13, 14, 15 of
Jasvinder Saini's case Hon'ble Apex Court
have clarified the aforesaid paragraph-7 of
Rajbir's judgment, which read thus :

"13. A reading of the order which
the trial Court subsequently passed on 23rd
February 2011 directing addition of a
charge under Section 302 IPC makes it
abundantly clear that the addition was not
based on any error or omission whether
inadvertent or otherwise in the matter of
framing charges against the accused. Even
5 All. Rammilan Bunkar Vs. State of U.P.
207
the respondents did not plead that the
omission of a charge under Section 302 IPC
was on account of any inadvertent or other
error or omission on the part of the trial
Court. The order passed by the trial Court,
on the contrary directed addition of the
charge under Section 302 IPC entirely in
obedience to the direction issued by this
Court in Rajbir's case (supra). Such being
the position when the order passed by the
trial Court was challenged before the High
Court the only question that fell for
determination was whether the addition of a
charge under Section 302 IPC was justified
on the basis of the direction issued by this
Court in Rajbir's case (supra). The High
Court has no doubt adverted to that aspect
and found itself to be duty bound to comply
with the direction in the same measure as
the trial Court. Having said so, it has gone
a step further to suggest that the autopsy
surgeon's report was prima facie evidence
to show that the offence was homicidal in
nature. The High Court has by doing so
provided an additional reason to justify the
framing of a charge under Section 302 IPC.

14. Be that as it may the common
thread running through both the orders is
that this Court had in Rajbir's case (supra)
directed the addition of a charge under
Section 302 IPC to every case in which the
accused are charged with Section 304-B.
That was not, in our opinion, the true
purport of the order passed by this Court.
The direction was not meant to be followed
mechanically and without due regard to the
nature of the evidence available in the case.
All that this Court meant to say was that in
a case where a charge alleging dowry death
is framed, a charge under Section 302 can
also be framed if the evidence otherwise
permits. No other meaning could be
deduced from the order of this Court.

15. It is common ground that a
charge under Section 304B IPC is not a
substitute
for
a
charge of
murder
punishable under Section 302. As in the
case of murder in every case under Section
304B also there is a death involved. The
question whether it is murder punishable
under Section 302 IPC or a dowry death
punishable
under
Section
304B IPC
depends upon the fact situation and the
evidence in the case. If there is evidence
whether direct or circumstantial to prima
facie support a charge under Section
302 IPC the trial Court can and indeed
ought to frame a charge of murder
punishable under Section 302 IPC, which
would then be the main charge and not an
alternative charge as is erroneously
assumed in some quarters. If the main
charge of murder is not proved against the
accused at the trial, the Court can look into
the evidence to determine whether the
alternative
charge
of
dowry
death
punishable
under
Section
304B
is
established. The ingredients constituting
the two offences are different, thereby
demanding appreciation of evidence from
the
perspective
relevant
to
such
ingredients. The trial Court in that view of
the matter acted mechanically for it framed
an additional charge under Section
302 IPC without adverting to the evidence
adduced in the case and simply on the basis
of the direction issued in Rajbir's case
(supra). The High Court no doubt made a
half hearted attempt to justify the framing
of the charge independent of the directions
in Rajbir's case (supra), but it would have
been more appropriate to remit the matter
back to the trial Court for fresh orders
rather than lending support to it in the
manner done by the High Court."
(Emphasised)

[15]. After reading the above relevant
paragraph of the judgment in Jasvinder
Saini's case (supra), the Hon'ble Apex
208 INDIAN LAW REPORTS ALLAHABAD SERIES
Court clarified the legal proposition and the
true import of Rajbir's case, that though in
the cases of Dowry Death, is untimely and
unnatural demise of the bride within seven
years of her marriage. In such case, direction
to add Section 302 I.P.C. against the accused
who is already facing the charge u/s 304B
I.P.C. is not a true import of the order passed
in Rajbir's case (supra). Charges are framed
relying upon the nature of evidence
collected during investigation and not only
in air or whimsical way. In fact, our lower
courts are under the commands or in some
mistake notion of law, they keep on adding
Section 302 I.P.C. as an alternate charge
without any cogent material to justify the
same, which would bound to lead a
disastrous result qua the accused-appellant.
All that court wants to say that in a case
where a charge alleging dowry death u/s
304B I.P.C. is framed, additional charge u/s
302 I.P.C. can also be framed, if the
evidence
otherwise
permits;
meaning
thereby, during investigation if the angle of
murder is also surfaced, then the learned
Trial Judge would be well within his right to
frame the charge u/s 302 I.P.C. as main
charge. Charge u/s 304B I.P.C. cannot be
substantiated for the charge of murder
punishable u/s 302 I.P.C. It is true that in the
case of murder and case of dowry deaths,
death of a person is involved. The offender
would be prosecuted for the offence u/s 302
I.P.C. or 304B I.P.C., depends upon the fact,
situation, circumstances and the material
collected by the I.O. of that individual case.

[16]. If the evidence collected during
investigation, direct or circumstantial, prima
facie supports and justifies the addition of a
charge u/s 302 I.P.C., then the learned Trial
Judge can and indeed ought to have framed
the charge of murder punishable u/s 302
I.P.C., then only it would be the main charge
and
not
the
alternative
charge,
as
erroneously being assumed by the trial
courts in State of Uttar Pradesh while
framing the charge of Dowry Death. If the
main charge of murder is not proved against
the accused at the trial, the court then only
switch over to look into evidence to
determine whether the alternative charge of
Dowry Death u/s 304B I.P.C. is established
or not.

As mentioned above, the basic
ingredients of both the offences operates in
two
difference
spheres,
demanding
appreciation
of
evidence
from
the
perspective relevant to such an individual
offence. But as mentioned above, to frame
the charge erroneously u/s 302 I.P.C. as
alternative charge by the Trial Courts in St
ate of U.P. is rampant and the learned Trial
Courts are mechanically framing the
charges, unmindful of the fact that there is
no evidence even for namesake to justify the
addition of Section 302 I.P.C. simply in
faithful compliance of the judgment given in
Rajbir's case (supra). Though this erroneous
interpretation of Section 216 Cr.P.C. has
already been rectified and duly explained in
yet another judgment of Jasvinder Saini's
case (supra), but no Sessions Judge has paid
any heed to the clarification/explanation.

[17]. It would not be a patch work, that
if the court imbibing the same reasoning of
Jasvinder
Saini's
case,
directing
the
investigating to hold a wide spectrum of
investigation in allegedly Dowry Death's
cases. They are supposed to examine the
death of a lady from every possible angle
which includes her death on account of
murdering her by her husband and in-laws
punishable u/s 302 I.P.C., then also
examine, as to whether she has committed
suicide on account of instigation or
abetment by her husband or in-laws
punishable u/s 306 I.P.C. Not only this, the
5 All. Rammilan Bunkar Vs. State of U.P.
209
investigating agency would also ascertain by
collecting material that she was subjected to
inhuman behaviour or cruel treatment on
account of scanty dowry by her husband and
in-laws punishable u/s 304B I.P.C.

In
such
a
substance,
the
investigating agency is not guided by F.I.R.
alone, but they should also examine the
murder case of a lady from every possible
angle of the case and submit its report u/s
173(2) Cr.P.C. The trial Court then only
after going through the material collected by
the I.O. of the case, applying its own judicial
mind should frame the charge against the
offenders, and not guided by the so-called
casual observations of Rajbir's case (supra)
which was later on explained in Jasvinder
Saini's case (supra).

[18]. In yet another judgment of Vijay
Pal Singh and others vs. State of
Uttarakhand, (2014) 15 SCC 163, the
charges of offences punishable under
Section 304B read with Section 34 of IPC,
Section 302 read with Section 34 of IPC,
Section 498A of IPC and Section 201 of IPC
were framed against the appellants. The
charges were read over and explained to the
appellants, who pleaded not guilty and
claimed to be tried. The relevant extract of
the judgment is being spelled out hereunder
:

"16. Since, the victim in the case
is a married woman and the death being
within seven years of marriage, apparently,
the court has gone only on one tangent, to
treat the same as a dowry death. No doubt,
the death is in unnatural circumstances but
if there are definite indications of the death
being homicide, the first approach of the
prosecution and the court should be to find
out as to who caused that murder. Section
304B of IPC is not a substitute for Section
302 of IPC. The genesis of Section 304B of
IPC introduced w.e.f. 19.11.1986 as per Act
43 of 1986 relates back to the 91st Report of
the Law Commission of India. It is
significant to note that the subject was taken
up by the Law Commission suo motu.

18. However, it is generally seen
that in cases where a married woman dies
within seven years of marriage, otherwise
than under normal circumstances, no
inquiry is usually conducted to see whether
there is evidence, direct or circumstantial,
as to whether the offence falls under
Section 302 of IPC. Sometimes, Section
302 of IPC is put as an alternate charge. In
cases where there is evidence, direct or
circumstantial, to show that the offence
falls under Section 302 of IPC, the trial
court should frame the charge under
Section 302 of IPC even if the police has
not expressed any opinion in that regard in
the report under Section 173(2) of the
Cr.PC. Section 304B of IPC can be put as
an alternate charge if the trial court so
feels. In the course of trial, if the court
finds that there is no evidence, direct or
circumstantial,
and
proof
beyond
reasonable doubt is not available to
establish that the same is not homicide, in
such a situation, if the ingredients under
Section 304B of IPC are available, the trial
court should proceed under the said
provision."

In the case of Jasvinder Saini's case
the Hon'ble Apex Court has further clarified
in paragraph-20, which reads thus :

"20. Though in the instant case
the accused were charged by the Sessions
Court under Section 302 IPC as alternate
charge, it is seen that the trial court has not
made any serious attempt to make an
inquiry in that regard. If there is evidence
available on homicide in a case of dowry
210 INDIAN LAW REPORTS ALLAHABAD SERIES
death, it is the duty of the investigating
officer to investigate the case under Section
302 I.P.C. and the prosecution to proceed
in that regard and the court to approach
the case in the perspective. Merely because
the victim is a married woman suffering an
unnatural death within seven years of
marriage and there is evidence that she was
subjected to cruelty or harassment on
account of demand for dowry, the
prosecution and the court cannot close its
eyes on the culpable homicide and refrain
from punishing its author, if there is
evidence
in
that
regard,
direct
or
circumstantial."

[19]. From plain reading of aforesaid
judgment, it clearly indicates that when a
married woman dies within 7 years of
marriage,
otherwise
than
normal
circumstances, the F.I.Rs. are being lodged
u/s 498A, 304B and other allied sections of
I.P.C. There is no investigation or inquiry
made by the police to see whether there is
any evidence, direct or circumstantial, so as
to justify whether the offence was within the
realm
of
Section
302
I.P.C.?
The
Investigating Officer blindly and in the most
mechanical fashion proceeded to investigate
into the matter and filed his report u/s 173(2)
Cr.P.C. only u/s 304B and other allied
sections of I.P.C. It is the duty of I.O. of the
case to investigate the matter from every
angle of murder u/s 302 or 306 I.P.C. also
and the prosecution to proceed in that regard
and the court to approach the case in that
perspective.