Judgment S.N.Aggarwal, J. 1. This criminal appeal was filed by the appellant against judgment dated 5.10.1991 vide which the accused was convicted and sentenced for having committed an offence punishable under Section 304 IPC. 2. The facts of the case are that Kashmira Singh-complainant was father of Swaran Kaur. Said Swaran Kaur was married to Paramjit Singh-appellant about 4-1/4 years prior to the occurrence. Kashmira Singh had given enough dowry according to his capacity to his daughter at the time of her marriage. However, some time after the marriage his son-in-law Paramjit Singh (appellant) started demanding scooter and started torturing and beating his wife Swaran Kaur on that account. She was sent back to her parental house at village Araianwala and said Swaran Kaur informed the complainant that she was harassed, tortured and beaten by her husband-Paramjit Singh, his mother Tej Kaur, his brothers wife Gurmit Kaur and his father Harsa Singh on dowry demand of scooter. There were also teasing her for not giving birth to a child. They had also told her that if she wanted to live as the wife of Paramjit Singh then she should bring scooter, otherwise she should not return to their house and they would marry Paramjit Singh somewhere else. About 5-6 days prior to the occurrence Kashmira Singh-complainant, his son Gurtej Singh, his nephew Darshan Singh and his another son-in-law Jagrup Singh went to the house of Paramjit Singh-appellant and asked all the accused to keep his daughter Swaran Kaur in their house peacefully but the accused repeated the same demand that if they wanted to keep Swaran Kaur in the house of Paramjit Singh, then they should give scooter to them. Kashmira Singh assured the accused party to comply with their demand and they went back to their village and Swaran Kaur was left in the house of her in-laws. 3. On 16.7.1989, Kashmira Singh, his son Gurtej Singh, his nephew Darshan Singh went to enquire about Swaran Kaur and when they reached the house of Paramjit Singh, they saw that Swaran Kaur was lying dead on a cot in the courtyard in the house of the accused. The complainant suspected that his daughter was murdered by the accused by administering some poisonous drug or Swaran Kaur was compelled to consume the same. The complainant suspected that his daughter was murdered by the accused by administering some poisonous drug or Swaran Kaur was compelled to consume the same. Kashmira Singh left his son Gurtej Singh and nephew Darshan Singh near the dead body of his daughter Swaran Kaur, while he himself in the company of Mukhtiar Singh Sarpanch went to the police station, where his statement was recorded and a case under Sections 304-B, 306 read with Section 34 IPC was registered. 4. The case was investigated and challan under Sections 302/304-B/306/148/149 IPC was presented against all the five accused. 5. The charge under Section 304-B IPC was framed against the accused but they pleaded not guilty and claimed trial. 6. To prove its case, the prosecution examined 11 witnesses. Out of them, the statements of Dr. K.K. Aggarwal, PW-1, Kashmira Singh-complainant, PW-2, Gurtej Singh (brother of deceased Swaran Kaur) PW-3, Jagroop Singh (another son-in-law of Kashmira Singh complainant) PW-4, Gurnam Singh PW-8 and Inspector Raj Pal Singh investigator PW-11 are very important. 7. The accused were examined under Section 313 Cr.P.C. Harsa Singh (father of Paramjit Singh) took the plea that he along with other family members was living in village Sube Kahan Chand separately from the deceased Swaran Kaur and Paramjit Singh. They had not demanded any dowry. Swaran Kaur was living in depression as she was unable to conceive a child. They were not present at the time of occurrence. The same plea was taken by Gurmit Kaur, Balbir Kaur and Tej Kaur. 8. However, Paramjit Singh (the present appellant) took the plea that he and his wife Swaran Kaur were living in village Mehmuana and the other family members were living separately in village Sube Kahan Chand. He was married to Swaran Kaur on 8.4.1981. She was unable to conceive a child. She was living in depression. For the said reason she consumed insecticide when he was away to the fields. On his return he had found her dead and he had sent message to his in-laws through Rajinder Singh and also to his own parents in village Sube Khan Chand. His in-laws had reached the spot but they have falsely involved him and his family members in this case for the reason that he had refused to give Rs. 20,000/- to his father-in-law Kashmira Singh for the purchase of tractor just little before the incident. His in-laws had reached the spot but they have falsely involved him and his family members in this case for the reason that he had refused to give Rs. 20,000/- to his father-in-law Kashmira Singh for the purchase of tractor just little before the incident. He, his father and his mother were produced before the police on 17.7.1989 and they were kept in illegal detention along with Veero and Gurmit Kaur, who were also produced before the police. They have been falsely implicated in this case. 9. In defence, the accused had examined Ashok Kumar, Secretary, National Cooperative Agriculture Service Society, Ltd., village Sube Kahan Chand Wala as DW-1, Balbir Singh, Sarpanch of village Sube Kahan Chand as DW-2, Rajinder Singh as DW-3, Paramjit Singh Brar, Advocate as DW-4 and Subhash Chander, Sub Inspector Food and Supplies, Ferozepur City as PW-5. The accused also tendered some documents in defence and closed the defence evidence. 10. On the basis of this evidence, the learned trial Court acquitted Harsa Singh, father of Paramjit Singh, Tej Kaur, mother of Paramjit Singh, Gurmit Kaur, daughter-in-law of Harsa Singh and Balbir Kaur, daughter of Harsa Singh vide judgment dated 5.10.1991. It was also held by the learned trial Court that no offence under Section 304-B IPC was made out against Paramjit Singh but he was convicted for having committed an offence punishable under Section 304 IPC. Paramjit Singh was heard on the point of sentence. He was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 500/-. In default of payment of fine, he was to undergo further rigorous imprisonment for one month. 11. Hence the present appeal by Paramjit Singh-appellant. 12. I have gone through the record of the case with the assistance of learned counsel for the appellant and learned Assistant Advocate General, for the State of Punjab. I have also gone through the submissions made before me by learned counsel for the appellant and learned State counsel. 13. Swaran Kaur daughter of Kashmira Singh-complainant was admittedly married to Paramjit Singh-appellant. Although, according to the prosecution case, she was married to Paramjit Singh-appellant about 4-1/4 years prior to the occurrence but the appellant had taken a specific plea that she was married to him on 8.4.1981. 13. Swaran Kaur daughter of Kashmira Singh-complainant was admittedly married to Paramjit Singh-appellant. Although, according to the prosecution case, she was married to Paramjit Singh-appellant about 4-1/4 years prior to the occurrence but the appellant had taken a specific plea that she was married to him on 8.4.1981. The learned trial Court had also reached the conclusion after considering whole evidence that the marriage of Swaran Kaur with Paramjit Singh had taken place more than 7 years prior to the occurrence and, therefore, the necessary constituent of Section 304-B IPC was not made out. 14. The prosecution, however, has led the conclusive evidence to prove that Swaran Kaur had died the un-natural death in the house of her husband. Dr. K.K. Aggrawal who had conducted the post-mortem examination on the dead body of Swaran Kaur on 16.7.1989 at about 1.45 P.M., had found the following injuries on the dead body of Swaran Kaur :- 1. There was free rotation of neck in all directions like a drop. On dissection of neck, clotted blood was present in sub-cutaneous tissues on the back. On removal of haemotoma and further dissection of cervical vertebrae revealed fracture and dislocation of C2 vertebrae. Clotted blood was present over the fractured side, on left side. 2. A bluish contusion 5 cms. x 2 cms. was present on back of left side 7 cms. below gluteal fold on lateral aspect. 15. He also deposed that these injuries were ante mortem in nature and opined that the cause of death in this case was fracture and dislocation of cervical 2 vertebrae which was sufficient to cause death in the ordinary course of nature. 16. However, he had also taken viscera from the dead body of Swaran Kaur and it was parcelled and sealed. The sealed parcel was sent to the chemical examiner for chemical analysis, through the police. The report of the chemical examiner has been proved as Exhibit PF and as per this report a carbamate group of insecticide was detected in the sample pieces of stomach, portion of small intestine and portion of large intestine, in the sample pieces of liver, spleen and kidney and also in the blood. 17. Therefore, as per the report of Dr. K.K. Aggarwal, PW-1, Swaran Kaur had died because of injuries suffered by her on the beck. 17. Therefore, as per the report of Dr. K.K. Aggarwal, PW-1, Swaran Kaur had died because of injuries suffered by her on the beck. These injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature. The nature of injury can be seen from the fact that there was free rotation of neck in all the directions like a drop. 18. The submission of learned counsel for the appellant was that there is a contradiction between the prosecution case and medical evidence. As per the prosecution case Swaran Kaur was administered a poisonous substance and was murdered but as per the medical evidence, she had died because of the injuries found on her dead body, which were sufficient to cause death in ordinary course of nature. Hence, it was prayed that because of the contradiction of medical evidence and prosecution version, the accused be acquitted. 19. This submission has been considered. There is no merit in it. It is a case of circumstantial evidence. The prosecution witnesses had only assessed that Swaran Kaur might have been murdered by administering poisonous substance to her as they had found her lying dead on a cot in the courtyard of the house of the appellant. They were not eye-witness to the occurrence nor there is any evidence if the prosecution witnesses had minutely examined the dead body of Swaran Kaur. They merely saw her lying dead. They had only guessed that poisoning may be the cause of death of Swaran Kaur. Otherwise also, the report of chemical examiner has been proved on the file, according to which, even the poisonous substance was found in the stomach and other concerned parts of the body of Swaran Kaur. Therefore, neither there is any contradiction in the medical evidence and prosecution case, nor it is material as the prosecution case is based on circumstantial evidence. 20. The version of the appellant was that Swaran Kaur was not able to bear a child and therefore, she was suffering from depression which led her to consume poisonous substance. This version of the appellant appears to be concocted one. He has not led any documentary evidence to prove if Swaran Kaur was suffering from depression or if she was taking medicines from any doctor. This version of the appellant appears to be concocted one. He has not led any documentary evidence to prove if Swaran Kaur was suffering from depression or if she was taking medicines from any doctor. Nor he had taken the plea if he had been taking her to medical practitioner for her medical treatment for the alleged depression. Therefore, the defence version has been invented by him to save himself from the legal consequences flowing from the murder of his wife Swaran Kaur. 21. Swaran Kaur, wife of the appellant was living in his house and she has died an un-natural death, therefore, it was for the appellant to explain the circumstances in which his wife Swaran Kaur came to die. Therefore, the presumption under Section 106 of the Indian Evidence Act, shall become applicable which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The appellant has not explained as to how Swaran Kaur suffered the injury on neck, so grave, that it broke all the bones of the neck so as to make it free to revolve like a nut. The failure of the appellant to do so takes the needle of suspicion towards him so also the presumption under Section 106 of the Evidence Act. 22. The plea of the accused that she suffered the injuries by a fall, is neither probable nor believable. Reference was made to the cross-examination of Dr. K.K. Aggarwal PW-1, who deposed in the cross-examination that if a person falls from a height on a hard projected surface then injury No. 1 is possible. He also deposed that injury is possible even by a fall from height on an arm of a cot and injury No. 2 is also possible in a similar manner with same fall. These propositions were all hypothetical. It is not a case where Swaran Kaur suffered the injuries on this part of the body or that part of the body. Such a severe jerk or blow was given on her neck that it was made free to rotate in all directions like a drop. Such an injury (injury No. 1) was not possible unless it was specifically caused. It was for Paramjit Singh- appellant to explain how Swaran Kaur came to suffer these injuries which he has miserably failed. 23. Such a severe jerk or blow was given on her neck that it was made free to rotate in all directions like a drop. Such an injury (injury No. 1) was not possible unless it was specifically caused. It was for Paramjit Singh- appellant to explain how Swaran Kaur came to suffer these injuries which he has miserably failed. 23. As per the defence version, the appellant was in the fields and when he came back home, he found his wife Swaran Kaur lying dead. According to him he merely sent messages to the parents of Swaran Kaur and to his own parents as if that was all required of him. After all his wife had died an unnatural death. He neither attempted to take the body of Swaran Kaur to the hospital nor he cared to inform the police. His conduct in not resorting to these two remedies also speaks volumes against his conduct and for his own involvement in the murder of his wife Swaran Kaur. 24. Both Kashmira Singh PW-2 and his son Gurtej Singh PW-3 had specifically that Paramjit Singh husband of Swaran Kaur used to harass her for dowry demand and even used to beat her. Therefore, it was proved to be a dowry death. However, the offence could not fall within the mischief of Section 304-B IPC, because the trial Court had come to the conclusion that the marriage of Swaran Kaur with Paramjit Singh had taken place more than 7 years prior to the occurrence. The marriage should have taken place within 7 years to bring it in the provisions of Section 304-B IPC and since the marriage had taken place more than 7 years earlier, therefore, trial Court came to the conclusion that offence under Section 304-B IPC was not made out. 25. The submission of learned counsel for the appellant was that since the constituents of Section 304-B IPC and 304 IPC are different, therefore, the appellant could not have been convicted under Section 304 IPC without there being a charge under that section. The offence punishable under Section 304 IPC is not of minor nature than Section 304-B IPC. Since charge under Section 304 IPC was not framed against the accused, therefore, conviction under the said section is not legal and valid. The offence punishable under Section 304 IPC is not of minor nature than Section 304-B IPC. Since charge under Section 304 IPC was not framed against the accused, therefore, conviction under the said section is not legal and valid. In support of his submissions, learned counsel for the appellant made reference to the judgment reported as Avvaru Ramachandra Rao v. State of Andhra Pradesh, 2004(4) RCR(Criminal) 134. 26. It may be noticed that Swaran Kaur was wife of Paramjit Singh. She has died an un-natural death and the prosecution has also succeeded to prove that dowry demands were made from her and she was treated with cruelty on that account. If the marriage of Swaran Kaur with Paramjit Singh had taken place within the period of seven years from the date of occurrence, then the offence under Section 304-B IPC was clearly made out. It was certainly a grave offence, to which even the presumption under Section 113-B IPC was applicable. Therefore, offence under Section 304 IPC is the lesser offence than an offence punishable under Section 304-B IPC. 27. Such a legal proposition had also come up before the Honble supreme Court and their Lordships in the judgment reported as Dalbir Singh v. State of U.P., 2004(2) RCR(Crl.) 497 (SC) : 2004(5) SCC 334, were pleased to discuss this matter exhaustively. It was a three-Judge Bench constituted to resolve the conflict between two judgments of Honble Supreme Court delivered by the Honble Benches of equal strength on the same legal proposition. The question before their Lordships in their own words was :- "The main question which requires consideration is whether in a given case it is possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him. In Lakhjit Singh v. State of Punjab the accused were charged under Section 302 IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non-framing of charge for the said offence. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non-framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr.P.C., it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306 IPC." 28 After considering the various judgments their Lordships reached the conclusion as under :- "Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC." 29. In the facts of the reported case, their Lordships were pleased to hold that it was a case of suicide and therefore, the husband was convicted under Section 306 IPC, although no charge was framed for the said offence. 30. The present case, however, is a clear cut case of culpable homicide, where the injury given to the wife on her was so severe that the neck was made free to rotate in all directions. Such severe injury could not be self- suffered nor it could be suffered accidentally. It was, therefore, caused by Paramjit Singh-husband of Swaran Kaur and by him alone. Such severe injury could not be self- suffered nor it could be suffered accidentally. It was, therefore, caused by Paramjit Singh-husband of Swaran Kaur and by him alone. Therefore, in view of the law laid down by the Honble Supreme Court in Dalbir Singhs case (supra) and by invoking the provisions of Section 464 Cr.P.C. the appellant can be convicted under Section 304 Part I IPC even if the charge was not framed for the said section. 31. It was clearly put to the appellant that he was being tried for the murder of his wife Swaran Kaur. The medical evidence and the observations of the post-mortem examination on the dead body of Swaran Kaur was clearly put to him when his statement was being recorded under Section 313 Cr.P.C. Even the report of chemical examiner was put to him. Therefore, he was given full opportunity to contest the case and he was not kept in dark about the case, which he was facing and which he was to meet out. The appellant was, therefore, aware of the basic ingredients of the offence for which he had been convicted by the learned trial Court and the main facts, therefore, against him were clearly explained to him in his statement recorded under Section 313 Cr.P.C., while he was given a fair chance to defend himself. Therefore, neither it has caused any prejudice to the appellant nor he has been taken unaware while recording conviction against him. 32. There is no illegality in the impugned judgment dated 5.10.1991 and the same is upheld. There is no merit in the present appeal and the same is hereby dismissed. 33. The appellant is stated to be on bail. Steps be taken for his re-arrest immediately for undergoing the remaining part of his sentence.