PARANAGOUDA AND ANOTHER (APPELLANTS) Vs. THE STATE OF KARNATAKA AND ANOTHER (RESPONDENTS)
SPECIAL LEAVE PETITION (CRL.) NO.12216 OF 2022
(2JB, S. Ravindra Bhat and Aravind Kumar JJ., delivered by Aravind Kumar J.)
Facts: The judgment dated 20.07.2022 passed by High Court of Karnataka, Dharwad Bench dismissing the Criminal Appeal No.2847 of 2012 by affirming the judgment and order of sentence convicting 2 the appellants passed by the Sessions Judge, Bagalkot in S.C. No.35 of 2011 dated 14.09.2012 for the offences punishable under Section 498A, 304B read with Section 34 of IPC and Section 3 and 4 of Dowry Prohibition Act (for short the ‘DP Act’) has been called in question.
Issue:
- Whether the conviction of the accused under Section 304B would be sustainable?
- Whether the accused can be convicted for the offence punishable under Section 306 IPC though not charged for said offence?
Arguments on behalf of counsel for appellants:
Learned advocate appearing for the appellants contends that dying declaration is neither true nor voluntary statement of deceased as she was not physically or mentally fit to make any declaration and undisputedly the parents of the deceased had not supported the case of the prosecution. He would also contend that doctor who had examined the deceased and treated her has clearly deposed that deceased was suffering from breathlessness when brought to the hospital and he had also certified that she had suffered 70 to 80% burn injuries and thereby making her physically and mentally incapacitated to give any declaration or make any statement.
Arguments on behalf of counsel for respondents: Shri V.N. Raghupathy
Learned Standing Counsel appearing for the State by supporting the judgment of both the courts would submit that there is no cogent material to displace the findings recorded by the courts below. He would also contend that dying declaration cannot be brushed aside merely because deceased had suffered 70% to 80% burn injuries and this cannot be a ground to set 7 aside the conviction. He would submit that Doctor PW-31 had deposed in clear terms that deceased was mentally fit to make statement and as such no doubt can be raised as regards the mental capacity of the deceased to make statement wherein she had assigned the reasons for her self-immolation. Hence, he prays for rejection of the appeal.
Held: The court allowed the present appeal and held that, “The judgment and order of conviction passed by the Sessions Court in SC No.35 of 2011 dated 14.09.2012 as affirmed in Criminal Appeal No.2847 of 2012 by judgment dated 20.07.2022 is hereby modified. The appellants are acquitted for the offences punishable under Section 304B IPC and Section 3 and 4 of Dowry Prohibition Act and convicted for the offence punishable under Section 306 and Section 498A read with Section 34 IPC and sentenced to imprisonment for the period already undergone with fine of Rs.5000/- each and in default to 38 pay the fine to undergo one month simple imprisonment for each of the offence.”
With respect to the first issue, it is held that, “Section 498A having a wider scope, it will have to be examined as to whether the accused is to be convicted for the offence punishable under Section 498A or in other words, the order of conviction passed by Sessions Court and affirmed by High Court deserves to be affirmed, notwithstanding the conviction under Section 304B having been set aside. Irrespective of the fact that accused have been acquitted for the offence punishable under Section 304B, Section 498A would cover the cases in which the wife is subjected to cruelty by husband or relatives of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical). In the light of dying declaration (Ex.P45) having been accepted to have been made by the deceased and the contents of the same disclosing that she was unable to withstand the torture meted out, which resulted in her committing suicide would suffice to convict the accused for the offence punishable under Section 498A.”
With respect to the second issue, it is held that, “Omission to frame charge does not disable the court from convicting the accused for the offence which is found to have been proved on the evidence on record. The code has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304B and in the alternative Section 306, it is clear that all the facts and ingredients for framing the charge for offence under Section 306 existed. The mere omission on the part of the trial judge to mention Section 306 IPC with 498A would not preclude this Court from convicting the accused for the said offence when found proved. In the charge framed under Section 304B of IPC, it has been clearly mentioned that the accused has subjected the deceased to such cruelty and harassment as to drive her to commit suicide by self-immolation and as such non-framing of the specific charge would not be fatal in the instant case as no injustice is being caused to the accused.”
