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2013 DIGILAW 181 (CAL)

Mamtaz Bibi v. State of West Bengal

2013-04-02

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT Kanwaljit Singh Ahluwalia, J.:- Jannati Bibi was married with petitioner no. 2 Motiur Rahaman @ Md. Matiar Rahman on 25th of June, 2008 as per Muslim Law and Customs. She died on 23rd of September, 2011. She was found lying dead outside the Emergency Department of Rampurhat Hospital by her father Md. Asad Ali Opposite Party no. 2. He lodged a complaint against mother-in-law Mamtaz Bibi @ Mamtaz Begum petitioner no. 1, husband Motiur Rahaman @ Md. Matiar Rahaman petitioiner no. 2, Jahangir Seikh @ Md. Jahangir Hossain petitioner no. 3, and Rahul Amin @ Rahul Amin Mondal petitioner no. 4. It was further stated that she was subjected to mental and physical cruelty. 2. On the basis of the complaint made by the father of the deceased, a formal FIR being no. 170 of 2011 dated 27th September, 2011 under Sections 498-A/304B was registered at Rampurhat police station. The above-said FIR was investigated, charge-sheet was submitted and the case was committed to the Court of Sessions and was entrusted for trial to the Court of Additional District & Sessions Judge, Fast Track, 1st Court, Rampurhat. The Court, on 18th of December, 2012, charged petitioners firstly for offence under Sections 498-A/34 IPC. Second charge was framed for offence under Section 306 IPC, in alternative third charge was framed for offence under Section 304-B read with 34 IPC, and alternative fourth charge was framed for offence under Section 302/34 IPC, and lastly and fifthly an additional charge was framed under Sections 3 and 4 of the Dowry Prohibition Act. 3. In the present petition filed under Section 401 read with Section 482 Cr.P.C., order dated 18th December, 2012 passed by Additional District & Sessions Judge, Fast Track, 1st Court, Rampurhat, has been assailed on the ground that prosecution has failed to state definite case as to what offence has been committed by the accused. Therefore, grave error has been committed, so far alternative charges for offence under Sections 306/304-B and 302 I.P.C. had been drawn. A grievance has also been made that prosecution is groping in dark and is chasing a wild goose. It has been stated by the counsel that prosecution must state definite case so that accused is able to formulate a strategy and tenor of cross-examination and must be provided an adequate opportunity to take meaningful defence. 4. A grievance has also been made that prosecution is groping in dark and is chasing a wild goose. It has been stated by the counsel that prosecution must state definite case so that accused is able to formulate a strategy and tenor of cross-examination and must be provided an adequate opportunity to take meaningful defence. 4. From the arguments raised above and comprehended, following question arises for consideration of this Court:- Whether accused can be tried alternatively for offence of murder or abetment to suicide or dowry death? Before this question is answered, this Court need to emphasize following facts from the prosecution case:- (a) That death of the deceased was unnatural. (b) That she died within seven years of her marriage in her matrimonial home. (c) That deceased was subjected to physical and mental cruelty on account of demand of dowry. (d) That prosecution has further highlighted strained relations between the deceased and the accused. 5. The controversy raised in the petition is not new. After introduction of Sections 113-A and 113-B in the Indian Evidence Act, a presumption is to be drawn against the accused who are facing trial for offence under Sections 306 or 304-B respectively. 6. Within seven years of marriage, if a married woman is subjected to cruelty and she commits suicide, Section 113-A of the Indian Evidence Act is to be invoked qua an offence of abetment to suicide punishable under Section 306 I.P.C. However, if within seven years of marriage, death of a married woman is due to unnatural circumstances and soon before her death she was subjected to cruelty on account of demand of dowry, Section 113-B of the Indian Evidence Act is to be invoked for offence of dowry death punishable under Section 304-B of the I.P.C. A question was raised that offence of abetment to suicide and culpable homicide amounting to murder being distinct are mutually exclusive. If the prosecution propound theory of murder it will overrule suicide or vice versa. 7. In Lakhjit Singh Vs. State of Punjab, 1994 (Sup 1) SCC 173, this question was considered by two Judges Bench of Hon’ble Apex Court. In the said case Lakhjit Singh was tried for murder of his wife. If the prosecution propound theory of murder it will overrule suicide or vice versa. 7. In Lakhjit Singh Vs. State of Punjab, 1994 (Sup 1) SCC 173, this question was considered by two Judges Bench of Hon’ble Apex Court. In the said case Lakhjit Singh was tried for murder of his wife. The Hon’ble Apex Court considered the question whether an accused, who has been tried for offence of murder under Section 302, can be convicted and sentenced for abetment to suicide punishable under Section 306 I.P.C. or not and it was answered as under :- “7. The next question is whether an offence under Section 304-B or 306 is made out. It is true that the accused was tried only under Section 302 Indian Penal Code and it is submitted that question of drawing a presumption attracted under Section 113-A or 113-B does not arise. Section 113-B deals with the presumption of dowry death. In the instant case, taking the medical evidence as such, it can only be held that at the most the prosecution has proved that the death could be suicide and Section 304-B or the presumption under Section 113-B Evidence Act cannot be invoked because Section 304-B came into effect only on November 19, 1986 i.e. much later than when this offence took place. Therefore, we are left with the other offences punishable under Section 306 Indian Penal Code. 8. Section 113-A of the Evidence Act provides for the prosecution of suicide and lays down that where there is a suicide committed by woman and when the question arises whether the husband or any other relative had abetted the same and if this suicide is within seven years from the date of marriage and if she had been subjected to cruelty then it will be assumed that they abetted the suicide. In this case, in their evidence, PW 4 and PW 5 have deposed that there had been a demand of dowry by the mother-in-law, husband as well as by the father-in-law. The mother of the deceased PW 3, however, in her deposition, has stated that the deceased complained to her that the mother-in-law was demanding dowry and harassing her for the same and that the other two were silent about it. Therefore, the inference is that connivance of the other two also was there when the deceased was being treated accordingly. The mother of the deceased PW 3, however, in her deposition, has stated that the deceased complained to her that the mother-in-law was demanding dowry and harassing her for the same and that the other two were silent about it. Therefore, the inference is that connivance of the other two also was there when the deceased was being treated accordingly. Therefore, the cruelty part of it meted out to the deceased is proved. 9. The learned counsel, however, submits that since the charge was for the offence punishable under Section 302 Indian Penal Code, the accused were not put to notice to meet a charge also made against them under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 Indian Penal Code and; therefore, presumption under Section 113-A of Indian Evidence Act cannot be drawn and consequently a conviction under Section 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under Section 313 CrPC and when there was a demand of dowry it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given under Section 313 of the CrPC would show that they had enough of notice of the allegations which attract Section 306 Indian Penal Code also. That apart, what all Section 113-A of Evidence Act says is that the court, having regard to the other circumstances of the case can presume. Therefore, the circumstances in this case would show that the accused have been demanding dowry even within a short period after the marriage and the deceased also had to live in her parent’s house and it is the husband who went and brought her back. The deceased followed him and unfortunately, the incident has taken place. Since there is no direct evidence regarding administration of poison to the deceased as such, the only course left is to hold that the prosecution has proved only suicide. In these circumstances, Section 306 is attracted. For these reasons, the conviction of the appellants under Section 302 and sentence of imprisonment for life are set aside. Since there is no direct evidence regarding administration of poison to the deceased as such, the only course left is to hold that the prosecution has proved only suicide. In these circumstances, Section 306 is attracted. For these reasons, the conviction of the appellants under Section 302 and sentence of imprisonment for life are set aside. Instead, they are convicted under Section 306 Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for 5 years and sentence of fine of Rupees 2000 with default clause are confirmed. Subject to this modification the appeal is disposed of. If the appellants have already served out the sentence of 5 years, they need not be sent to jail again.” 8. However, a contrary view was formulated and recorded by another two Judges Bench of Hon’ble Supreme Court in Sangaraboina Sreenu Vs. State of Andhra Pradesh, AIR (1997) SC 3233. Their Lordships held as under:- “2. This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302, I.P.C. which was the only charge framed against him – the High Court could not have convicted him of the offence under Section 306, I.P.C. 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 minor offence in relation to an offence under Section 302, I.P.C. within the meaning of Section 222, Cr.P.C. for the two offences are of distinct and different categories. While the basis constituent of an offence under Section 302, I.P.C. is homicidal death those of Section 306, I.P.C. are suicidal death and abetment thereof.” 9. Later, in view of the differences between the two different Benches, in another case the question was considered by the larger Bench of three Judges titled Shamnsaheb M. Multtani Vs. State of Karnataka, AIR (2001) SC 921. Their Lordships considered provisions regarding joinder of charges as enumerated in Section 221, Section 222 of the Code of Criminal Procedure along with Section 464 Cr.P.C. and held as under:- “24. One of the cardinal principles of natural justice is that no man should be condemned without being heard. (‘Audi alteram partem’). State of Karnataka, AIR (2001) SC 921. Their Lordships considered provisions regarding joinder of charges as enumerated in Section 221, Section 222 of the Code of Criminal Procedure along with Section 464 Cr.P.C. and held as under:- “24. 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. 25. 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-B 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.” 26. In the Explanation to the Section it is said that the word “dowry” shall be understood as defined in the Dowry Prohibition Act, 1961. 27. 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. 27. 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 than under normal circumstances “the Court shall presume that such person had caused dowry death.” 28. Under Section 4 of the Evidence Act “whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved.” So that 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. 29. 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. 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.” When the law says that the Court may presume the fact, it is discretionary on the pat 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. 33. In such a situation, if the trial Court finds that the prosecution has failed to make out the case under Section 302, I.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 304B, 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.” 10. Later, in Satvir Singh & Ors. Vs. State of Punjab & Anr., AIR (2001) SC 2828, two Judges Bench without noticing Shamnsaheb M. Multtani (Supra) held as under : “16. At the first blush we thought that there was force in the said contention but on a deeper analysis we found that the contention is unacceptable. Later, in Satvir Singh & Ors. Vs. State of Punjab & Anr., AIR (2001) SC 2828, two Judges Bench without noticing Shamnsaheb M. Multtani (Supra) held as under : “16. At the first blush we thought that there was force in the said contention but on a deeper analysis we found that the contention is unacceptable. Section 306, IPC when read with Section113-A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498-A, IPC), if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306, IPC whether the cruelty or harassment was caused “soon before her death” or earlier. If it was caused “soon before her death” the special provision in Section 304-B, IPC would be invokable, otherwise resort can be made to Section 306, IPC. 17. No doubt Section 306, IPC read with Section 113-A of the Evidence Act is wide enough to take care of an offence under Section 304-B also. But the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage as a sequel to the cruelty or harassment inflicted on a woman with demand of dowry, soon before her death, Parliament intended such a case to be treated as a very serious offence punishable even upto imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under Section 306, IPC (read with Section 113-A of the Evidence Act) and made a separate offence. 18. We are, therefore, unable to concur with the contention that if the dowry related death is a case of suicide it would not fall within the purview of Section 304-B, IPC at all. In Smt. Shanti V. State of Haryana, (1991) 1 SCC 371 : ( AIR 1991 SC 1226 : 1991 Cri LJ 1713) and in Kans Raj v. State of Punjab, (2000) 5 SCC 207 : (2000 AIR SCW 2093 : AIR 2000 SC 2324 ; 2000 Cri LJ 2993) this Court has held that suicide is one of the modes of death falling within the ambit of Section 304-B, IPC. ” 11. Thus, it has been held that depending upon the facts and circumstances of the case even if a charge for offence under Section 304-B is drawn against the accused, they can be convicted for offence under Section 306 I.P.C. This was reiterated in K. Prema S. Rao & Anr. Vs. Yadla Srinivasa Rao & Ors., AIR (2003) SC 11, where Their Lordships observed that if the cruelty is caused to the wife not in relation to the demand of dowry, accused can be convicted for offence under Section 306 I.P.C. Thus, it was held that even if accused have been charged for offence under Section 304-B of the Indian Penal Code, they can be convicted for offence under Section 306 I.P.C. In Dalbir Singh Vs. State of U.P., AIR (2004) SC 1990, Court considering the conflict of opinion in the judgment and in the Lakhjit Singh’s case (Supra) on the touchstone of Gurbachan Singh Vs. State of Punjab, AIR (1957) SC 623 and Willie (William) Slaney Vs. State of Madhya Pradesh, AIR (1956) SC 116 it was opined as under :- “12. The main question which requires consideration is whether in a given case is it 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 and Another v. State of Punjab (supra) 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. 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, C.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. 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, C.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. The relevant para of the observation made in para 9 of the report reads as under : “The learned counsel, however, submits that since the charge was for the offence punishable under Section 302, Indian Penal Code, the accused were not put to notice to meet a charge also made against them under Section 306, IPC and, therefore, they are prejudiced by not framing a charge under Section 306, Indian Penal Code and; therefore, presumption under Section 113-A of Indian Evidence Act cannot be drawn and consequently a conviction under Section 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under Section 313, Cr.P.C. and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given under Section 313 of the Cr.P.C. would show that they had enough of notice of the allegations which attracted Section 306, Indian Penal Code also.” 13. In Sangaraboina Sreenu v. State of A.P. (supra) the judgment is a very short one of just two paragraphs. In the first paragraph it is mentioned that the trial Court convicted the accused under Section 302, IPC on the charge that he poured kerosene on the body of his wife and set her on fire but the High Court set aside the said conviction and convicted the accused under Section 306, IPC. Paragraph 2 of the judgment which contains the whole reasoning for allowing the appeal reads as under : “This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302, IPC which was the only charge framed against him – the High Court could not have convicted him of the offence under Section 306, IPC. 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, IPC cannot be said to be a minor offence in relation to an offence under Section 302, IPC within the meaning of Section 222, Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302, IPC is homicidal death, those of Section 306, IPC are suicidal death and abetment thereof.” 14. Here the Court proceeded to examine the question that if the accused has been charged under Section 302, IPC and the said charge is not established by evidence, would it be possible to convict him under Section 306, IPC having regard to Section 222, Cr.P.C. Sub-section (1) of Section 222 lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it, Sub-section (2) of the same Section lays down that 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. Section 222, Cr.P.C. is in the nature of a general provision which empowers the Court to convict for a minor offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said Section also make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely Chapter XXXV which deals with Irregular Proceedings and their effect. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub-section (1) of this Section provides that 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. This clearly shows that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. In Lakhjit Singh (supra) though Section 464, Cr.P.C. has not been specifically referred to but the Court altered the conviction from 302 to 306, IPC having regard to the principles underlying in the said Section. In Sangaraboina Sreenu (supra) the Court completely ignored to consider the provisions of Section 464, Cr.P.C. and keeping in view Section 222, Cr.P.C. alone, the conviction of the appellant therein under Section 306, IPC was set aside. 15. In Willie Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 , a Constitution Bench examined the question of absence of charge in considerable detail. The observations made in paras 6 and 7, which are of general application, are being reproduced below : “6. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well understood lines that accord with our notions of natural justice. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is ‘substantial’ compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions.” After analysing the provisions of Ss. 225, 232, 535 and 537 of the Code of Criminal Procedure, 1908 which correspond to Ss.215, 464(2), 464 and 465 of 1973 Code, the Court held as under in para 44 of the report : “Now, as we have said, Ss. 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that ‘whatever’ the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. The Code is emphatic that ‘whatever’ the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.” 16. This question was again examined by a three-Judge Bench in Gurbachan Singh v. State of Punjab, AIR 1957 SC 623 , in which it was held as under : “In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.” 17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of S. 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 basis 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 Sangaraboina Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under S.302, I.P.C., he cannot be convicted for the offence under S. 306, I.P.C.” 12. In the Dinesh Seth Vs. State of NCT of Delhi, 2008 (14) SCC 94 reliance was placed in Dalbir Singh’s case (Supra) to hold that for offence under Section 498-A of the Indian Penal Code accused can be convicted even no substantive charge was framed for said offence and accused was tried for an offence under Section 304-B I.P.C. 13. From the above-cited judgments, it is apparent that if accused is charged for an offence under Section 302 for murder of his wife, and if also there is allegation of demand of dowry, accused can be alternatively charged for offence under Section 304-B of the Indian Penal Code. Hon’ble Apex Court in Rajbir @ Raju Vs. State of Haryna, AIR (2011) SC 568 had issued a direction to all subordinate Courts, that ordinarily Court in case of offence under Section 304-B should draw a charge in alternate for offence under Section 302 I.P.C. 14. Hon’ble Apex Court in Rajbir @ Raju Vs. State of Haryna, AIR (2011) SC 568 had issued a direction to all subordinate Courts, that ordinarily Court in case of offence under Section 304-B should draw a charge in alternate for offence under Section 302 I.P.C. 14. In view of the judgments which have been noted above, it is also crystal clear that an accused who has been charged for offence under Section 304-B can also be convicted for offence under Section 306 I.P.C. if the Court, after appreciating the evidence, hold that there was no demand of dowry soon before the death or deceased was not subjected to cruelty on account of demand of dowry. Furthermore, Section 221 of the Code of Criminal Procedure specifically state that if a single act or series of acts are such a nature that it is doubtful as to which of the several offences are made out from the facts to be proved, accused may be charged for alternative offences. 15. In the facts and circumstances of the present case trying of accused for charge of murder and alternative charge for offence under Section 304-B is fully justified, 16. To sum up, (i) as per direction of Hon’ble Apex Court in Rajbir @ Raju’s case (supra) in case of death of women, in matrimonial home on account of demand of dowry, the Trial Court ordinarily has to draw an alternative charge for offence under Section 302 I.P.C., (ii) if accused is charged for offence of dowry death punishable under Section 304-B, he can be convicted and sentenced for offence under Section 306 I.P.C., even though no separate charge under Section 306 I.P.C. was drawn. 17. In the present case under scrutiny it is evident that deceased, within seven years of her marriage, was subjected to cruelty due to alleged demand of dowry. Therefore, framing of the alternative charges suffer from no vice, rather the Trial Court has adopted correct and cautious approach to ward off any complications in future, so that accused put to trial in no way are subjected to any prejudice. 18. Consequently, no ground is made to cause interference as the impugned order is perfectly valid and is in consonance with the settled legal position in view of catena of judicial pronouncement to which reference has been made above. 19. 18. Consequently, no ground is made to cause interference as the impugned order is perfectly valid and is in consonance with the settled legal position in view of catena of judicial pronouncement to which reference has been made above. 19. Hence, the present petition is dismissed without any order as to costs. Copies of this order be sent to the Trial Court forthwith by the Department.