JUDGMENT
B. Panigrahi, J.
1. The order dated March 25,1995 passed by the learned Addl. Sessions Judge, Puri in Sessions Trial No. 51/280 of 1992 convicting the appellants under Section 302, I.P.C. and sentencing them to undergo R.I. for life has been assailed in these appeals.
2. The prosecution case succinctly stated is as follows :
The deceased Harsamani Pradhan, sister of the informant Arakhita Pradhan had married to the appellant Jambeswar Pradhan, son of the other appellant Jagannath Pradhan of village Hata Sahi four months preceding the date of occurrence. At the time of marriage, the informant is said to have paid Rs. 4,000/-towards dowry which was stipulated at Rs. 5,000/-. Due to nonpayment of the balance amount of dowry to the appellants, there was consistent quarrel.
3. After the marriage, the relationship between the deceased Harsamani and the appellants had deteriorated from bad to worse. Her mother-in-law also used to torture her on many occasions. She was not allowed to go to her father’s house, although the informant made attempts to take her on 3 to 4 occasions. On 11.8.1990, appellant Jagannath Pradhan came to the house of the informant at about 8 A.M. and told him that the deceased had left her matrimonial home in the previous night without informing anyone and asked him if at all she was in his house. The informant and other family members were awestruck after hearing the news about missing of the deceased. They went hither and thither to trace out the deceased, but to no avail. In course of search, the informant found Harsamani Pradhan floating dead in the tank of one Bula Sahu of Hata Sahi. Therefore, he lodged a written report at about 10 A.M. on 12.8.1990 at Pipili Police Station suspecting foul play in the death of his sister and requested the local police to take action against the culprits. Immediately after receipt of the information, the Inspector-in-charge of Pipili Police Station registered P. S. Case No 154 of 1990 under Sections 4 of the Dowry Prohibition Act and Section 306, I.P.C. and directed one of the A.S.Is. of Police (P.W. 13) to take up investigation.
4. P.W. 13 in course of investigation, visited the spot, held inquest over the dead body of Harsamani, sent the dead body for post-mortem examination, effected seizure of the wearing apparels and ornaments of the deceased besides other articles, prepared a
sketch map, examined witnesses, and arrested the accused persons and forwarded them to Court. He then handed over the case to the Inspector-in-charge. Subsequently, P.W. 12, Niranjan Acharya took over charge of the case. After completion of investigation, charge-sheet was placed against both the appellants under Section 302/34, I.P.C. read with Section 4 of the Dowry Prohibition Act.
5. The prosecution in order to sustain conviction against both the appellants had examined 13 witnesses, of whom 5 were officials, 2 were relations of the deceased and others were seizure witnesses.
6. In this particular case, the marriage between Harsamani and the appellant Jambeswar Pradhan is not in dispute. Such marriage had taken place about 4 months preceding the incident. P.W. 3 has stated that on the 5th day of marriage, his sister complained of ill-treatment due to non-payment of balance dowry. Even on his second visit the deceased told him that there was serious quarrel on account of non-payment of the amount which was agreed to be paid by him. It further emerges that the total demand was of Rs. 5,000/- out of which Rs. 4,000/- was paid 8 days prior to the marriage. Thus, the trial court on the basis of the evidence of the prosecution held that the appellants were guilty for demanding dowry under Section 4 of the D.P. Act. The finding has been firmly established on the basis of the evidence and there has been no ground to come to a contrary view.
7. On resume of evidence placed before us we find that the ground for conviction under Section 302 J.P.C. appears to be quite inadequate. The learned Addl. Sessions Judge did not at all discuss the true import of the evidence of the relations of the deceased. In order to fasten the guilt with the appellants under Section 302/34, I.P.C. it is to be considered as to whether the deceased Harsamani met a suicidal or homicidal death. Learned counsel appearing for the appellants has strenuously urged that since P.W. 3 has alleged that Harsamani committed suicide, there was no occasion for the court below to render a finding that she met a homicidal death. It be noted here that at the time of lodging the F.I.R. the dead body of Harsamani had not been sent for post-mortem examination, nor was any inquest report prepared. No sooner did P.W. 3 find that his sister’s dead body was floating, then he went to the police station to lodge the report. It can clearly be accepted that he could not have been sure at that time whether the deceased met a homicidal or suicidal death. Such F.I.R. was lodged only on the basis of guess or conjecture. In order to determine the nature of the death, we will have to refer to the medical evidence. In this case, P.W. 10
who was the Medical Officer of the Capital Hospital who had conducted autopsy on the dead body of Harsamani, found the following injuries.
(i) There were two ligature marks situated below thyroid cartilage and encircling the neck transversely. There were also two knot marks present in the left side, the base which was reddish and ecchymosis was present on the margin. On dissection it was found that there was extravagation of blood into subcutaneous tissue under the ligature mark. There was laceration of the carotid sheath and effusion of blood into their walls. There was no fracture of the thyroid cartilage, hyoid bone or cervical spine. The ligature marks were ante mortem in nature.
(ii) The lyrinx and treachea were congested and contained blood stained forth. The rings of the trachea were fractured. The lungs were marked by congested showing haemorrhage patches and on cut section dark fluid blood excuding out. Bronchial tubes contained blood stained froth. Right side of the heart was full of dark fluid blood and left side was empty. Liver, spleen and kidneys were congested. Brain was congested. The small and large intestines were distended with gas.
8. On noticing the injuries, no other inference could be drawn than the one that the deceased’s nature of death was homicidal. Another striking feature which cannot be lost sight of is that had she committed suicide by drowning herself, there would have been no occasion to tie a stone weighing about 3 kgs, with a rope to her neck. Therefore, these factors unequivocally suggest that it was a case of homicidal death.
9. Learned counsel appearing for the appellants has strenuously contended that there has been no legal evidence to connect the appellants with the death of the deceased. The deceased Harsamani was found missing in the night of 9/10.8.1990. The appellant Jagannath Pradhan claims to have gone to the house of P.W. 3 to ascertain whether the deceased Harsamani was in their house, but to his utter dismay, she was not there. The death has undoubtedly occasioned within four months from the date of the marriage. In such event appropriate charge against the accused should have been framed under Section 304-B, I.P.C. A contention has been raised by the learned counsel appearing for the appellants that since there is no charge under Section 304-B, I.P.C. the appellate Court in such a situation should not record a finding that the appellant would be guilty under that section without amending the charges. In this
background, it would be appropriate for us to refer to a decision of the Apex Court reported in Shamnsahed M. Multtani v. State of Karnatak, (2001) 20 OCR (SC) 363. The facts of the above case are similar to those of the present case. The Supreme Court in that case held in the following manner:
“In such a situation, if the trial Court finds that the prosecution has failed to make out the case under Section 302, I.P.C., but the offence under Section 304-B,
I.P.C. has been made out, the Court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B, I.P.C. would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the Court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the Court that he is liable to be convicted under Section 304-B, I.P.C. unless he succeeds in disproving the presumption, it is possible for the Court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.”
10 Since the legal evidence for convicting the appellants under Section 302/34, I.P.C. is not adequate and the learned trial Judge should have framed the charge under Section 304-B, I.P.C. and proceeded accordingly, we are unable to sustain the conviction of the appellants under Section 302, I.P.C. Accordingly, we hereby acquit the appellants of the offence under Section 302/34, I.P.C. and direct the learned trial Judge to alter the charge from Section 302/34, I.P.C. to 304-B/34, I.P.C. The accused appellants shall be given opportunity of entering into the defence in support of the said offence. Be it noted that the prosecution shall not be directed to lead any further evidence. After framing of charge, if the defence so likes it can adduce evidence in its support.
11. In the result, the appeal is allowed in part. The order of conviction and sentence passed against the appellants under Section 4 of the Dowry Prohibition Act is confirmed. However, such conviction and sentence under Section 302/34, I.P.C. are set aside and the matter is remitted back to the learned trial Judge to dispose it of in the light of the observation made above.
Ch. P.K. Mishra J.
12. I agree.