JUDGMENT: The first accused before the trial Court, who was found guilty, convicted and sentenced to undergo for seven years rigorous imprisonment for offence under Sec.304-B, I.P.C. in S.C.No.161 of 1993, has come forward with the instant criminal appeal. Originally he along with his mother and sisters stood charged for alleged commission of offence punishable under Sec.302, I.P.C. The learned First Additional Sessions Judge, Salem, acquitted the other accused, but held the appellant guilty of inflicting dowry death upon his wife and therefore, the conviction. 2. The criminal appeal has arisen in this way: P.W.1 Manickam is the husband of P.W.2 Panchali. They had a daughter by name Madheswari. The first accused is the son of Panchali’s first cousin Venkatachalam, whose father died while Venkatachalam was a boy of tender age. He was brought up by Panchali’s father. P.Ws.1 and 2 gave their daughter Madheswari in marriage to the first accused Periyasamy on 25.5.1988. The second accused Rajammal is the mother of the first accused. Accused Nos.3 and 4 Sundarambal and Suseela are the sisters of the first accused. At the time of the marriage, P.Ws.1 and 2 have gifted 10 sovereigns worth gold jewels to Madheswari. They had spent for her marriage also. But there was a dowry demand from the first accused, his mother and sisters. They were demanding that Madheswari should bring another 20 sovereign jewels. The demand could not be met out, resulting in infliction of cruelty upon Madheswari and torturing her. During one such occasion, Madheswari was even assaulted with a spade on her head by the first accused, as a result of which she had to take treatment with Dr.Prema Kumari, a private Practitioner at Salem. On 10.3.1999 at about 6.00 p.m., the first accused, namely, the appellant herein beat Madheswari with a stick on both her arms. His mother and sisters, namely accused Nos.2 and 3 caught Madheswari by her heir and made her to gyrak. At that time, the fourth accused pulled the hand of Madheswari, as a result of which, Madheswari fell down. The first accused, her husband kicked Madheswari several times on her thighs and other parts. The fourth accused sat on the thighs of Madheswari and fisted on her chest. The first accused gagged Madheswari’s mouth with her saree. P.W.3, a neighbour, witnessed the occurence. But, when he scolded the accused, they threatened him with dire consequences. The first accused, her husband kicked Madheswari several times on her thighs and other parts. The fourth accused sat on the thighs of Madheswari and fisted on her chest. The first accused gagged Madheswari’s mouth with her saree. P.W.3, a neighbour, witnessed the occurence. But, when he scolded the accused, they threatened him with dire consequences. Later, information was sent to Madheswari’s parents stating that Madheswari had suffered with a snake bite. P.Ws.1 and 2 and their relatives came to the house of the first accused and they found Madheswari lying unconscious. They took her to a native Doctor and later an Allopathy Doctor was brought. He pronounced Madheswari dead. Then, the usual procedure of preferring the complaint and consequential investigation held Madheswari’s body was subjected to post-mortem and eight injuries were found on her person. She had suffered with fracture of base of skull. It was the fatal injury. After post-mortem, the clothes worn by Madheswari at the time of incident and also the jewels were seized. The prosecution examined seventeen witnesses as P. Ws. and marked thirteen documents. They have also marked M.Os. 1 to 4. The accused had not let in any evidence. After closure of prosecution evidence, the accused were questioned. When questioned, they merely denied the evidence. The learned Sessions Judge came to the conclusion that the prosecution has not brought home the guilt to accused Nos.2, 3 and 4, namely, the mother and sisters of the first accused, but found that there is ample evidence to hold that the first accused had inflicted dowry harassment and consequential dowry death upon Madheswari and accordingly, the learned Sessions Judge acquitted the first accused of offence under Sec.302, I.P.C. and convicted and sentenced to undergo rigorous imprisonment for seven years, which has culminated in the criminal appeal. 3. Heard both the sides. The learned Advocate appearing on behalf of me Public Prosecutor conceded that Sec.304-B, I.P.C. is not a minor offence to Sec.302, I.P.C. for the Court to convict the accused without framing a separate charge for offence under Sec.304-B, I.P.C. In a recent decision reported in Shamnsaheb M.Multani v. State of Karnataka, 2001 SOL Case No.049, pronounced on 24.1.2001, a Full Bench of the Apex Court consisting of their Lordships, K.T.Thomas, R.P.Sethi and B.N.Agrawal, JJ. had to consider an identical situation. That was a pathetic case as the one on hand. had to consider an identical situation. That was a pathetic case as the one on hand. The facts of that case succinctly has been referred to by His Lordships in the most flourish may which I take pleasure in repeating verbatim: “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 indicated for her murder. But when all the material witnesses turned hostile to the prosecution the trial Court, being foreclosed against all options, acquitted them.” The facts of the case are almost identical to the facts of the case on hand. Their Lordships of the Supreme Court considered the question whether an accused who was charged under Sec.302, I.P.C. could be convicted alternatively under Sec.304-B, I.P.C. without the said offence being specifically put in charge. Their Lordships have referred to two earlier decisions of the Apex Court in (i) Lakhjit Singh and another v. State of Punjab, (1994)1 S.C.C. (Supp.) 173, where a view was expressed that if a prosecution failed to establish the offence under Sec.302, I.P.C. which alone was included in the charge, but if the offence under Sec.306, I.P.C. was made out in the evidence it is permissible for the Court to convict the accused of the latter offence. But a contrary view was expressed in another decision reported in Sangaraboina Sreenu v. State of A.P., (1997)5 S.C.C. 348 , which is as follows: It is true that Sec.222, Crl.P.C. entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Sec.306, I.P.C. cannot be said to be a minor offence in relation to an offence under Sec.302, I.P.C. Within the meaning of Sec.222, Crl.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Sec.302, I.P.C. is homicidal death, those of Sec.306, I.P.C. are suicidal death and abetment thereof. While the basic constituent of an offence under Sec.302, I.P.C. is homicidal death, those of Sec.306, I.P.C. are suicidal death and abetment thereof. Having considered the matter in extenso in the case in Shamnsaheb M.Multani’s case, reported in 2001 SOL Case No.049, their Lordships pointed out that the cordial principle of natural justice is that no man should be condemned without being heard, (audi alteram partem). Their Lordships pointed out the distinction between an offence under Sec.302, I.P.C. and 304-B, I.P.C. So far as offence under Sec.304(b) the prosecution concerned has to establish (i) death of a wife occurred otherwise than under normal circumstances within seven years of her marriage; (ii) soon before her death, she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. This provision, when read in harmony with Sec.113-B of the Evidence Act, the position postulated is that if the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances, the Court shall presume that such person had caused dowry death. Their Lordships have pointed out that the distinction regarding proof of offence under Sec.302, I.P.C. and Sec.304-B, I.P.C. is as under: 30. Now take the case of an accused who was called upon to defend only charge under Sec.302, I.P.C. The burden of proof never shifts on to him. It remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. It that be so, when an accused has no notice of the offence under Sec.304-B, I.P.C., as he was defending a charge under Sec.302, I.P.C. alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Sec.304-B, I.P.C. and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years. Their Lordships have drawn an illustration in paragraph No.31 of the judgment, which is as under: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Sec.304-B, I.P.C. read with Sec.113-B of the Evidence Act. But if the murder of his wife was actually committed either by a decoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Sec.304-B, I.P.C. But if the husband is charged only under Sec.302, I.P.C. he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. In paragraph 32 of the judgment, their Lordships have pointed out that so far as a charge under Sec.340, I.P.C. is concerned, the accused only has to be defend the charge, but under Sec.304-B, I.P.C., a presumption is drawn and a liberty is to be given to the accused to enter his defence and establish that the death was not dowry death. Their Lordships have held in paragraph No.33 4s under: 33. In such a situation, if the trial Court finds that the prosecution has failed to make out the case under Sec.302, I.P.C., but the offence under Sec.304-B, I.P.C. has been made out, the Court has to call upon the accused to enter his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Sec.304-B, I.P.C. would lead to real and serious miscarriage of justice. Without affording such an opportunity to the accused, a conviction under Sec.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 Sec.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. In paragraph 34 of the judgment, their Lordships of the Apex Court held as under: 34. As the appellant was convicted by the High Court under Sec.304-B, I.P.C. without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial Court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Sec.304-B, I.P.C. 4. In the light of the law laid down by the Apex Court in this regard that when no charge is framed against the accused for offence under Sec.304-B, I.P.C., he should be given an opportunity to rebut the presumption by letting in sufficient evidence. In that view of the matter, I am inclined to dispose of the case on hand on the lines pointed out by their Lordships in the above decision cited supra. The conviction and sentence imposed on the appellant/ first accused by the learned First Additional Sessions Judge, Salem in S.C.No.161 of 1993 are set aside. The learned Sessions Court should proceed against the appellant herein (not against the other accused whose acquittal remains unchallenged now) from the stage of the defence evidence. The appellant is put to notice that unless he disproves the presumption, he is liable to be convicted under Sec.304-B, I.P.C. Accordingly, this criminal appeal is disposed of.