JUDGMENT Thomas; J. -A bride in her, incipient twenties was whacked to death at her nuptial home. After gagging her mouth the assailants treated her for some time as a football by kicking her incessantly and thereafter as a hockey puck by lambasting her with truncheons until she died of bilateral tension haemothorax. Her husband and his brother and father were indicted for her murder. But when all the material witnesses turned hostile to the prosecution the trial court, being foreclosed against all options, acquitted them. 2. Undeterred by the said acquittal the State of Karnataka made a venture by filing an appeal before the High Court of Karnataka. A Division Bench of the High Court, looking at the factual matrix of the case, lamented "O Tempora O Mores" as the learned judges said by way of prologue that "it is virtually a matter of shame that in this day and date, indiscriminate attacks and abnormally high degree of violence are directed against married women in certain quarters and that the law is doing little to curb this type of utterly obnoxious and anti-social activities." Learned Judges after reaching a cui de sac, swerved over to a different offence i.e. dowry death and convicted one of them (the husband) under Section 304B of the Indian Penal, Code and awarded the maximum sentence of life imprisonment prescribed thereunder on him besides Section 498A IPC. However, the High Court found helpless to bring the other two accused to the dragnet of any offence. 3. Thus, for the appellant (husband of the deceased) this appeal became one of right under Section 379 of the Code of Criminal Procedure (for short the "Code") and under Section 2 of Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. 4. During the course of arguments a question of law cropped up as the appellant was not charged under Section 304B, IPC. The question raised is this: Whether an accused who was charged under Section 302 IPC could be convicted alternatively under Section 304 B IPC, without the said offence being specifically put in the charge. The answer appeared, at the first blush, ingenuous particularly in the light of Section 221 of the Code. But as we proceeded further we noticed that the question has intricate dimensions, more so when this Court held divergent views on two occasions though not on the identical point. The answer appeared, at the first blush, ingenuous particularly in the light of Section 221 of the Code. But as we proceeded further we noticed that the question has intricate dimensions, more so when this Court held divergent views on two occasions though not on the identical point. This case was, however, referred to be heard by a larger Bench and thus it came up bench of three judges. 5. To assist us in this matter we appointed Shri Uday Umesh Lalit, advocate as curiae. He with his meritorious effect us considerably in the task. We are be to him for the assistance rendered to us. 6. Before we proceed to the question of law it is necessary to delineate the synopsis the case. The bride was Tanima, whose marriage with the appellant was solemnized only a few months prior to her tragic end. It a that Tanima s father had died much ear certain amount, not much, was given bridegroom at the time of the marriage, though the expenses of the wedding were borne the bride s people. After marriage Tanim, in the house of her husband for a couple months. But when she paid her first visit her natal home she reported to her mother and brothers that she was being subjected to pressures and harassment by her husband by the other two accused for wangling a further amount of Rupees twenty thousand her people. She complained to her brother she was threatened that if the amount was brought she would be asked to leave the nuptial home once and for all. 7. On completion of her furlough at I parental house the appellant went to take I back. Then her brother (PW1-Mahaboobsab Ammarngi) gave a sum of rupees five the was sand to the appellant and pleaded with him to be satisfied with it. Though with displeasures as the amount was insufficient, appellant collected it and allowed Tanima to escort him to his house. A few days later Tanima conveyed to her mother that she was again persecuted for not making up the whole amount de he manded. Once again appellant brought her back to her parental, home after subjecting her to physical assaults. PW1-Mahboobsab Ammarngi, on being told that the assaults were meant for meeting the demand for dowry, pleaded with the appellant to desist from torturing his young sister. Once again appellant brought her back to her parental, home after subjecting her to physical assaults. PW1-Mahboobsab Ammarngi, on being told that the assaults were meant for meeting the demand for dowry, pleaded with the appellant to desist from torturing his young sister. After some haggling PW1 was able to pay a sum of rupees two thousand more. At that time also appellant, though not fully satisfied with the pelf given, took her back to his house. 8. Within two months thereafter Tanima was killed. On hearing the news on 17.10 .1992 PW1 along with some of his close relatives set out to the house of the appellant. On the way they met the appellant. When they tried to confront him with what they heard he skirted the subject and slipped away. When they reached the house of the appellant they saw the mangled dead body of Tanima. 9. Dr. Tawaraj (PW.7) conducted the autopsy on the dead body of Tanima. Though, externally there were only a few abrasions and contusions the Inside was found very badly mauled. The rib on the right side was fractured, both the lungs were collapsed, the thorasic cavity contained 200 ml. of blood. The peritoneum was soaked in blood, liver and spleen were massively lacerated and ruptured at three places. 10. Though prosecution examined PW3 and PW4 who were neighbours to say that they saw the three accused inflicting Incessant assaults, on Tanima and PW6 was examined to say that appellant made an extra judicial confession to him, they all turned hostile and did not speak as prosecution expected. The remaining evidence was not sufficient to establish that all or any of the accused had inflicted the Injuries on Tanima. Consequently, prosecution failed to prove that the accused caused the death of the deceased. The trial Court did not make any other endeavour and hence found the accused not guilty and acquitted them. 11. Learned Judges of the High Court found that there is no evidence, against A-2 Meerasaheb Karim Saheband A-3 Mahaboom Meerasaheb. However, in the case of A-1 (appellant) the Division Bench was in confusion as it found that prosecution proved beyond all reasonable doubt that it was appellant who killed Tanima. 11. Learned Judges of the High Court found that there is no evidence, against A-2 Meerasaheb Karim Saheband A-3 Mahaboom Meerasaheb. However, in the case of A-1 (appellant) the Division Bench was in confusion as it found that prosecution proved beyond all reasonable doubt that it was appellant who killed Tanima. The relevant portion of paragraph 14 of the judgment of the Division Bench delivered by Saldana, J. Is extracted below: "We hold that there Is sufficient direct and circumstantial evidence in this case to prove beyond all reasonable, doubt that A-1 was responsible for tying deceased Tanima and assaulting her with the metal rod as also brutally and mercilessly kicking her In the course of this assault all of which resulted in her death. The nature of the Incident and the, fact that she succumbed to the cruelty would clearly bring this case within the ambit of Section 304 IPC." But the operative portion of the judgment reads thus: "The appeal partially succeeds. The order of acquittal passed In favour of original accused Nos.2 and 3 stands confirmed. As far as the original accused No.1 is concerned, the order of acquittal passed in his favour by the Trial Court Is set aside, A-1 stands convicted of the offence punishable under Section 498A IPC and is sentenced to RI for 3 years. He is also-convicted of the offence punishable under Section 304-B IPC and is sentenced to RI for life, substantive sentence to run concurrently. " 12. Initially we thought that there might have been some typographical or other errors in the above first extracted portion of the judgment produced before us but we found the said portion remaining the same even in the judgment sent up by the High Court along with the records. We may take it that learned Judges did not intend to speak what is seen recorded In the paragraph 14 of the judgment (extracted above) and that the High Court only proposed to convict the appellant under Sections 304-B and 498-A IPC. But even on that aspect Saldana, J. made an observation, which is, unfortunately, not true to facts. That observation is this: "Coming to the charge under Section 304-B IPC, this section was incorporated in the year 1986 by the legislature for the purpose of dealing with instances of dowry death." Jayachandra Reddy and G.N. Ray, JJ) has held in Lakhjit Singh and Anr. That observation is this: "Coming to the charge under Section 304-B IPC, this section was incorporated in the year 1986 by the legislature for the purpose of dealing with instances of dowry death." Jayachandra Reddy and G.N. Ray, JJ) has held in Lakhjit Singh and Anr. 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. 15. 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 AP.2 that it is impermissible to do so. The rationale advanced by the Bench for the above position is this: