Judgment : Per S. ASHOK KUMAR, J. 1. Challenging the judgment of the learned Additional District Sessions Judge-Cum-Chief Judicial Magistrate Karur, dated 6.8.2001, made in S.C.No.42 of 2000 convicting and sentencing A-1 to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for six months, for the offence under Section 498(A) I.P.C. and further convicting and sentencing to undergo Rigorous Imprisonment for seven years for the offence under Section 304-B I.P.C.; and convicting and sentencing A.2 to undergo Rigorous Imprisonment for two years each and to pay a fine of Rs.1000/- each, in default, to undergo simple Imprisonment for six months, for the offence under Section 498 (A) I.P.C., the accused have preferred this Criminal Appeal as against the respective conviction and sentence imposed upon them by the learned Additional District Sessions Judge-cum-Chief Judicial Magistrate, Karur. 2. The brief facts of the prosecution case are as follows: (a)The first accused Thulasiraman is the husband of the deceased wife. The second and third accused are the parents of the first accused. The marriage between the deceased Meenakshi and the first accused took place nine years prior to the occurrence. According to the complainant, P.W.1 who is the father of the deceased Meenakshi, two years prior to the date of occurrence, he provided 91/2 sovereigns of gold jewels and cash of Rs.9,000/- and house hold articles to his daughter on the event of her marriage. Soon after the marriage, the accused did not allow her to enter their house as P.W.1 did not offer 15 sovereigns as demanded by them and only after a Panchayat and after persuasion, the deceased was allowed to enter the matrimonial home. Ten days thereafter the accused have told the deceased and P.Ws. 1, 4 and 7 that if they engaged someone other than the deceased they would have got at least 20 sovereign as dowry and demanded to give a sum of Rs.50,000/- for opening and running a medical shop. (b)On 10.2.1999, P.W.1 received an information that his daughter has committed suicide by pouring kerosene and set fire on herself and after receiving the information, he went to his daughters house and gave a complaint (Ex.P.1) to the Pasupathipalayam Police Station. (b)On 10.2.1999, P.W.1 received an information that his daughter has committed suicide by pouring kerosene and set fire on herself and after receiving the information, he went to his daughters house and gave a complaint (Ex.P.1) to the Pasupathipalayam Police Station. (c)P.W.9 Meera Mohideen, then Head Constable received the complaint from P.W.1 and prepared a First Information Report Ex.P.5 and sent the copy of the First Information Report to the Revenue Divisional Officer for further enquiry. (d) P.W.10 Jayavel, then Revenue Divisional Officer received the Ex.P.1 and Ex.P5 and visited the scene of occurrence and enquired the witnesses and recorded their statements and gave a certificate Ex.P.6 and Inquest Report Ex.P.7. (e)P.W.12 Muthusamy, then Head Constable received the dead body of the deceased from the Revenue Divisional Officer after inquest and handed over the same to her relatives. His report is Ex.P.13 and also recovered the Nose Screw (M.O.1) Gold Stud one pair (Ex.P.2 series) Gold side stud one pair (Ex.P.3 series) Gold Chain weighing 41½2 grams (M.O.4) Gold Thali weighing 4 grams (M.O.5), Thali Gundugal-2 weighing 2 grams (M.O.6) series), Silver Ring-1 (M.O.7) Silver Kolusu one pair (M.O.8) Silver Metti two pairs (M.O.9 series) and fired cloth (M.O.10) After that, he changed the case one under Sections 498 (A) and 304 (B) I.P.C. and sent the same to the higher officials. (f)P.W.13 Somasundaram, Deputy Superintended of Police, on 11.2.99 at 7.00 a.m. visited the place of occurrence and prepared the Rough Sketch (Ex.P.20) and Observation Mahazar (M.O.11) Plain cement floor (M.O.12) and Match Box (M.O.13) Kerosene Can (M.O.14) and pieces of cloth (M.O.15) under the cover of Mahazar (Ex.P.22). P.W.14 C. Ramasubbu, then D.S.P. taken up the case for further investigation and enquired P.W.1 P.W.2 and P.W.4 and recorded their statements. He arrested all the three accused on 13.2.99 at Karur Bus Stand. He altered the case one under Sections 498 (A), 304 (B) read with 34 I.P.C. and despatched the Express Report (Ex.P.23). (g)P.W.15 R. Pandarakannan, then D.S.P. taken up the case for further investigation and enquired P.W.3 Dr. B. Ramanathan, Dr. Manimegalai and P.W.5 Dr. Ganeshram and recorded their statements. (h) P.W.3 Dr. He altered the case one under Sections 498 (A), 304 (B) read with 34 I.P.C. and despatched the Express Report (Ex.P.23). (g)P.W.15 R. Pandarakannan, then D.S.P. taken up the case for further investigation and enquired P.W.3 Dr. B. Ramanathan, Dr. Manimegalai and P.W.5 Dr. Ganeshram and recorded their statements. (h) P.W.3 Dr. B. Ramanathan, who was then working at Government Hospital, Karur received a requisition letter dated 10.2.1999 from the RDO Karur for the postmortem on the deceased body, he conducted an autopsy over the deceased body to the deceased on 10.2.1999 at 7.30 p.m. and issued Ex.P.3 Postmortem Certificate, P.W.3 opined that the deceased would appear to have died of asphyxia due to compression of throat. (i) P.W.11 Angamuthu, then typist of Judicial Magistrate Court NO. received the case properties under Form 95 and also received the requisition of the Inspector for sending the Hyoid bone to chemical examination (Ex.P.8) and the letter of the Court is marked as Ex.P.9. Requisition for viscera (Ex.P.10) was sent through Ex.P.11. Requisition for chemical Analysis is Ex.P.12 sent through Ex.P.13. Report of Hyoid Bone Ex.P.14, Viscera Report Ex.P.15, Chemical Report Ex.P.16 Chemical Analysis Report Ex.P.17 and Serology Report Ex.P.18. (j) P.W.15 continuing his investigation, enquired other prosecution witnesses and obtained statements from them and on 31.8.1999 filed charge sheet against the accused under Sections 498 (A) I.P.C. and Sections 3 and 4 of Dowry Prohibition Act and Section 302, and Section 302 r/w. 109 I.P.C. 3. Before the learned Sessions Judge, the prosecution examined P.Ws. 1 to 15 and marked Ex. P.1. to P.23, besides M.Os.1 to 15. On the defence side no one was examined and no document was marked. 4. The accused were questioned with regard to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, for which they denied the complicity of the offence. On a consideration of the material evidence, the learned Sessions Judge though found that the offences charged under Section 302I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act have not been proved as against A.1 and offences charged under Sections 302 read with 109 I.P.C. 498 (A) I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act as against A.2. and A.1 have not been proved, however convicted A.1 under Sections 304-B and 498 (A) I.P.C. and convicted A.2 and A.3 under Sections 498 (A) I.P.C. and imposed sentences on the accused as stated earlier. Aggrieved of the same the present appeal has been preferred by the accused 1 to 3. 5. Learned counsel appearing for the appellants submitted that the Court below after acquitting the accused for the charges framed under Sections 3 and 4 of the Dowry Prohibition Act, has erred in convicting A.1 under Section 304-B and 498 (A) I.P.C. and A.2 and A.3 under Section 498 (A) I.P.C. It is also submitted that when the evidence of P.Ws.1, 4 and 7 would not show that A.1 to A.3 have committed any cruelty against the deceased, drawing inference from the words uttered by A.1 in the presence of third parties and the conduct of A.2 and A.3 in not condemning A.1 in that regard would amount to guilty of offence under Section 498 (A) I.P.C. is not proper. Learned counsel also submitted that demand of Rs.50,000/- for carrying on a new business and that too when such demand has not been made soon before the death of the deceased and therefore, it is urged that Section 304 (B) I.P.C. is not attracted. 6. Learned counsel for the appellants also, submitted that there is no direct evidence let in by the prosecution to prove the offence under Section 498-A I.P.C., particularly, when PW.4, sister of the deceased herself admitted that the deceased was properly looked after by her husband and her in-laws. Learned counsel also highlighted that in a case which entirely rests on the circumstances from which the inference of guilty is sought to be drawn, must be cogently and firmly established and those circumstances should be of a definite tendency and unerringly pointing towards the guilt of the accused and that such circumstances must be a complete chain. 7. Learned counsel for the appellant relied on the decision of the Apex Court in Shamnsahed M. Multtani v. State of Karnataka, (2001) SCC (Cri) 358: (2001) 1 MLJ (Crl) 422, for the proposition of law that conviction under Section 304-B I.P.C. without affording opportunity to accused to enter on his defence and disprove the presumption raised there under read with Section 113-B of the Evidence Act would result in failure of justice, and in the said context. Their Lordships of the Apex Court have held as follows in (2001) 1 MLJ (Crl) 422 at pp. 425429: “12… The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302I.P.C., but on the facts the ingredients of Section 304-B have winched to the fore, can the Court convict him of that offence in the absence of the said offence in the absence of the said offence being included in the charge. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal Court to convict the accused of an offence which is not included in the charge. The primary condition for application of Section 221 of the code is that the Court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence which he is shown to have committed though he was not charged with it. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence Under Section 302I.P.C., at least at the time of framing of the charge. Section 222(1) of the Code deals with a case “when a person is charged with an offence consisting of several particulars”. The section permits the Court to convict the accused “of the minor offence, though he was not charged with it”. Sub Section (2) deals with a similar, but slightly different situation. “222(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it”. What is meant by “a minor offence” for the purpose of Section 222 of the Code” Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the Section would bring the above point home well. The two illustrations provided in the Section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. The composition of the offence under Section 304-B I.P.C. is vastly different from the formation of the offence of murder under Section 302I.P.C. and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A I.P.C. (husband or relative of husband of a women subjecting her to cruelty). As the word “cruelty” is explained as including, inter alia, “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”. 13. So when a person is charged with an offence under Sections 302 and 498-A I.P.C. on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B I.P.C. would stand established. Can the accused be convicted in such a case for the offence under Section 304-B I.P.C. without the said offence forming part of the charge. 14. A two-Judge Bench of this Court (K. JAYACHANDRA REDDY and G.N.RAY, JJ) has held in Lakhjit Singh v. State of Punjab (1994) SCC (Cri) 235 that if a Prosecution failed to establish the offence under Section 302I.P.C., which alone was included in the charge, but if the offence under Section 306 I.P.C. 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 A. P (1997) SCC (Cri) 690 that it is impermissible to do so. 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 A. P (1997) SCC (Cri) 690 that it is impermissible to do so. The rationale advanced by the Bench for the above position is this: (SCC p. 348, para 2)- “It is true that Section 222 Cr. 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 Section 306 I.P.C. cannot be said to be a minor offence in relation to an offence under Section 302I.P.C. within the meaning of Section 222 CrPC for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302I.P.C. is homicidal death, those of Section 306 I.P.C. are suicidal death and abetment thereof.” 16. The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304-B I.P.C. when all the ingredients necessary of the said offence have come out in evidence, although he was not charged with the said offence. In this context a reference to Section 464 (1) of the Code is apposite: “464 (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby”.(emphasis supplied) 17. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice. 18. We often hear about “failure of justice”; and quite often the submission in a criminal Court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord DIPLOCK in Town Investments Ltd. v. Deptt. of the Environment 1978 AC 359. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord DIPLOCK in Town Investments Ltd. v. Deptt. of the Environment 1978 AC 359. The criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. 19. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of Courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the Court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice. 20. We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304-B I.P.C. without the same being included as a count in the charge framed. Section 304-B has been brought on the statute-book on 9-11-1986 as a package along with Section 113 of the Evidence Act. Section 304-B(1) I.P.C. reads thus: “304-B. 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”. In the explanation to the section it is said that the word “dowry” shall be understood as defined in the Dowry Prohibition Act, 1961. 21. In the explanation to the section it is said that the word “dowry” shall be understood as defined in the Dowry Prohibition Act, 1961. 21. The postulates needed to establish the said offence are: (1) death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113-B of the Evidence Act, as a part of the said offence, the position is this: 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 that under normal circumstances “the Court shall presume that such person had caused the dowry death”. 22. Under Section 4 of the Evidence Act “Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved”. So the Court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the Court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both. 23. At this stage, we may note the difference in the legal position between the said offence and Section 306 I.P.C. which was merely an offence of abetment of suicide earlier. The section remained in the statute-book without any practical use till 1983. But by the introduction of Section 113-A in the Evidence Act the said offence under Section 306 I.P.C. has acquired wider dimensions and has become a serious marriage-related offence. Section 113-A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the Court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. Section 113-A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the Court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. When the law says that the Court may presume the fact, it is discretionary on the part of the Court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the Court to act on the presumption the accused can persuade the Court against drawing a presumption adverse to him. 24. But the peculiar situation in respect of an offence Under Section 304-B I.P.C., as discernible from the distinction pointed out above in respect of the offence under Section 306 I.P.C. is this: Under the former the Court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. if any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption, the Court is bound to act on it. 25. Now take the case of an accused who was called upon to defend only a charge under Section 302I.P.C. The burden of proof never shifts on to him. It ever 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. If that be so, when an accused has no notice of the offence Under Section 304-B I.P.C., as he was defending a charge Under Section 302I.P.C. alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted Under Section 304-B I.P.C. and sentenced to the serious punishment prescribed there under, which mandates a minimum sentence or imprisonment for seven years. 26. 26. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration : 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 Section 304-B I.P.C. read with Section 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 the convicted under Section 304-B I.P.C. But if the husband is charged only under Section 302I.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. 27. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge Under Section 302I.P.C. and was alternatively convicted Under Section 304-B I.P.C. without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law. 28. In such a situation, if the trial Court finds that the prosecution has failed to make out the case Under Section 302I.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. 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. 29. As the appellant was convicted by the High Court under Section 304-B I.P.C., without such an 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 Section 304-B I.P.C. 30. To facilitate the trial Court to dispose of the case afresh against the appellant in the manner indicated above, we set aside the conviction and sentence passed on him by the High Court and remand the case to the trial Court.” 8. The above decision of the Apex Court squarely applies to the facts of the present case also. As rightly held by Their Lordships, if the trial Court finds that the prosecution has failed to make out the case under Section 302I.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 in 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. As the first accused was convicted by the trial Court under Section 304-B I.P.C., without such an opportunity being granted to him, this Court 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 conviction of the other two accused and its challenge would be taken up after remand) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Section 304-B I.P.C. To facilitate the trial Court to dispose of the case afresh against the first appellant in the manner indicated above, I set aside the conviction and sentence passed on him for the alleged offence under Section 304-B I.P.C. by the trial Court and remand the case to the trial Court. 9. It is made clear again that challenge made as against the conviction of all the accused under Section 498-A I.P.C. would be considered after remand and decision arrived at by the trial Court which would be appropriate in view of the submissions made by the learned counsel for the appellants. 10. In the result, while setting aside the conviction and sentence of the first accused under Section 304-B I.P.C., the appeal is remanded to the trial Court for fresh disposal with the above directions.