Mechanical Addition Of S. 302 IPC 'Unsustainable': Allahabad HC Explains When Trial Courts Can Add Murder Charge In Dowry Death Cases

A bench of Justice Rahul Chaturvedi and Justice Mohd. Azhar Husain Idrisi observed that the mechanical addition of a murder charge (Section 302 IPC) to the cases involving dowry death and dowry-related inhuman treatment was making the situation “more grim and serious”.

“Charges are framed relying upon the nature of evidence collected during investigation and not only in air or whimsical way. In fact, our lower courts are under the commands or in some mistake notion of law, they keep on adding Section 302 I.P.C. as an alternate charge without any cogent material to justify the same, which would bound to lead a disastrous result qua the accused-appellant,” the Court said.

The Court explained that the appropriate way for the Courts is to examine if the evidence collected during the investigation, direct or circumstantial, prima facie supports and justifies adding a charge u/s 302 IPC, and then only the Trial Judge should frame the murder charge.

The court added that in such a situation, the charge under Section 302 IPC would be the main charge and not the alternative one, as the trial courts in the State erroneously assumed while framing the charge of Dowry Death.

“If the main charge of murder is not proved against the accused at the trial, the court then only switch over to look into evidence to determine whether the alternative charge of Dowry Death u/s 304B I.P.C. is established or not,” the Court clarified.

The cases before the Court

The occasion to make these observations arose while the Court was dealing with 6 criminal appeals filed by the accused convicted under 6 different cases concerning dowry death/dowry-related inhuman treatment cases.

In fact, in one of the cases, the Trial Judge convicted the accused of both offences under sections 302 and 304B IPC and sentenced him to life imprisonment.

The Court noted a specific pattern in all 6 judgments, whereby almost all the FIRs were registered u/s 498A, 304B I.P.C. & 3/4 DP Act, but the trial courts invariably in all the aforesaid cases have inserted Section 302 IPC as an alternative charge without loking the evidence as to whether the offence of murder was made out.

The peculiarity of all the appeals was that almost in all cases, the Trial Judge exonerated the accused-appellants from the charges u/s 498A, 304B IPC & 3/4 DP Act, but taking recourse to Section 106 of Evidence Act, all the respective appellants were convicted for the alternate offence u/s 302 IPC simplicitor or with the aid and help of Section 34 IPC.

High Court's observations

At the outset, the Court noted that the trial judges were framing murder charges in all such cases based on the Supreme Court's judgment in the case of Rajbir @ Raju and another vs. State of Haryana (2010).

“Trial Courts are mechanically framing the charges, unmindful of the fact that there is no evidence even for namesake to justify the addition of Section 302 I.P.C. simply in faithful compliance of the judgment given in Rajbir's case (supra),” the HC observed.

In the 2010 case, the top Court had directed all the trial courts in India to ordinarily add Section 302 to the charge of Section 304-B IPC, so that death sentences can be imposed in such heinous and barbaric crimes against women.

However, this judgment and the direction issued in that case were later clarified by the Supreme Court in the 2013 case of Jasvinder Saini vs. State (Government of NCT of Delhi), wherein it was stated that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits.

The relevant direction of the Apex Court issued in the Jasvinder Saini case is reproduced below:

“…this Court had in Rajbir's case (supra) directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.”

Against this backdrop, the Allahabad HC said that trial courts ought to frame charges for the offence of murder against the accused only if the evidence collected during the investigation warrants so. If Section 302 IPC offence is added, it should be treated as the main offence and supplementary offence, the Court said.

The Court also stressed that Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC; hence, the former cannot be regarded as a minor offence vis-à-vis the latter.

The Court also clarified that if during the course of the trial, the court finds that there is no evidence, direct or circumstantial, to establish that the death was homicidal in nature, in such a situation, if the ingredients under Section 304B of IPC are available, the trial court should proceed under the said provision.

Word of caution for Investigating agency

In this regard, the Court also issued a word of caution for the investigating agency. The Court stated that the probe agency is supposed to examine the death of a lady from every possible angle, which includes her death on account of murder by her husband and in-laws punishable u/s 302 IPC, then also examine whether she has committed suicide on account of instigation or abetment by her husband or in-laws punishable u/s 306 IPC.

“Not only this, the investigating agency would also ascertain by collecting material that she was subjected to inhuman behaviour or cruel treatment on account of scanty dowry by her husband and inlaws punishable u/s 304B IPC,” the Court said.

Importantly, the Court underscored that in such cases, the investigating agency should not be guided by FIR. alone, but they should also examine the murder case of a lady from every possible angle of the case and submit their report u/s 173(2) CrPC.

Further, the Court observed thus:

“The trial Court then only after going through the material collected by the I.O. of the case, applying its own judicial mind should frame the charge against the offenders, and not guided by the so-called casual observations of Rajbir's case (supra) which was later on explained in Jasvinder Saini's case (supra).”

Applicability Of Section 106 Of Evidence Act

Noting that in all the Judgments, the accused persons were exonerated from the charge u/s 304-B IPC, but with the aid and help of Section 106 of the Evidence Act, they all were convicted in a u/ s 302 IPC, the Court observed thus:

“Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence.”

The Court further added that to establish a case u/s 302 IPC, the prosecution has to establish its case by conducting a full-dressed trial and producing various prosecution witnesses to establish the guilt of the accused u/s 302 IPC beyond the pale of any suspicion or doubt. In such cases, Section 106 of the Evidence Act cannot be used mechanically or as a tool in the prosecution's hand to convict the accused without discharging its duty.

The Court categorically held that fastening of the provisions of Section 106 of the Evidence Act indiscreetly to condemn and convict the husband and his relatives with the aid and help of aforesaid provisions of law is in stark contrast with the recent judgment of Hon'ble Apex Court in Balvir Singh vs. State of Uttarakhand 2023 LiveLaw (SC) 861

Given this, the Court set aside all the judgments by allowing the appeal and directed that all the cases should be re-tried.

The Court directed that all the cases be remitted back to the concerned Sessions Courts for re-trial after recasting the “charges” framed against the accused-appellants strictly following the ratio laid down in the cases of Jasvinder Saini case and Vijay Pal Singh and others vs. State of Uttarakhand (2014) case after holding a day to day trial and conclude the same by 31st December 2024 without granting any unreasonable adjournment to either of the parties.