"The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact, situation and the evidence in the case," said the apex court bench of Justice T.S. Thakur and Justice Ranjana Prakash Desai in a recent judgment.
"If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC, the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters," said Justice Thakur pronouncing the judgment.
If the main charge of murder was not proved against the accused at the trial, the court could look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B was established, the apex court said.
The ingredients constituting the two offences were different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients, the bench said.
The apex court by its interim order had directed all trial courts to ordinarily add Section 302 of the IPC to the charge under Section 304B "so that death sentences could be imposed in such heinous and barbaric crimes against women".
Setting aside a Delhi High Court order upholding the addition of murder charges by the trial court in pursuance to the apex court's Nov 22, 2010, interim order, Justice Thakur and Justice Desai said: "That was not, in our opinion, the true purport of the order passed by this court."
Clarifying the Nov 22, 2010, interim order, the apex court said: "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," the judgment said.
It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302.
The court said this while addressing the question whether the high court was justified in affirming the trial court decision to add murder charge against Jasvinder Saini and others who were under penal provisions for punishment for cruelty against woman by her husband and his relatives, dowry death and criminal breach of trust.
Saini and his relatives were named as accused in the case of his wife Chandni's death under unnatural circumstance.