GOVIND MATHUR, ATUL KUMAR JAIN, JJ. - (1.) IN this case, Section 113B of the Indian Evidence Act 1872 is much relevant before discussing the facts of the case. It will be better if we reproduce this section here. ''113B. Presumption as to dowry death. - When 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 had 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. Explanation. - For the purposes of this section," dowry death" shall have the same meaning as in section 304B of the Indian Penal Code(45 of 1860). ''
(2.) THEN comes Section 498A and 304B of Indian Penal Code which may also be reproduced here for ready reference: - ''498A. Husband or relative of husband of a woman subjecting her to cruelty -Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose of this section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. '' ''304B. Dowry death -(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this sub -section, ''dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. '' Thenafter Section 114 of the Indian Evidence Act, 1872 may also be quoted here along with illustration given under this Section: - ''114. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration The Court may presume - - (a) ... ... (b) ... ... (c) ... ... (d) ... ... (e) ... ... (f) ... ... (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) ... .... '' In the case in hand, the accused -appellant was charged under Section 498A and Section 302 of Indian Penal Code for causing cruelty on his wife and thenafter committing murder of his wife. It is not disputed that in such type of cases, if a case under Section 302 of Indian Penal Code is not made out then the conviction can be made if the evidence permits, under Section 304B of Indian Penal Code, though no charge of Section 304B of Indian Penal Code was framed against the accused at the beginning of the trial.
(3.) HON 'ble the Supreme Court in Rajveer@Raju and anr. v. State of Haryana, 2011 AIR SC 568 has mandated as follows: - ''We further direct all the trial courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to Registrar Generals/Registrars of all High Courts, which will circulate it to all trial courts. '' ;