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CASE NO.: Appeal (crl.)  69 of 2007

PETITIONER: Virendra Kumar

RESPONDENT: State of U.P

DATE OF JUDGMENT: 16/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.435 OF 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

Challenge in this appeal is to the judgment rendered by a  Division Bench of the Allahabad High Court allowing the  appeal filed by the appellant in part by setting aside his  conviction for offence punishable under Section 302 of the  Indian Penal Code, 1860 (in short the ’IPC’) and instead  convicting him for offence punishable under Section 306 IPC.   He was sentenced to undergo imprisonment for ten years.   Appellant and another accused, namely, Jai Narain faced trial  for alleged commission of offence punishable under Section  302 IPC.  During pendency of the appeal before the High Court  aforesaid Jai Narain died and, therefore, the appeal stood  abated so far as he is concerned.    

Background facts in a nutshell are as follows:

The informant Sheo Karan (PW-1)’s niece Smt. Pushpa  (hereinafter referred to as ’deceased’) was married to the  appellant Virendra Kumar, son of Jai Narain in village Chirli,  Police Station Ghatampur.  Immediately after the marriage  Virendra Kumar,, his brother Suresh Kumar used to humiliate  Smt. Pushpa and her other family members for bringing  inadequate dowry and for being of a dark complexion. They  even publicly abused the informant in village Chirli and  threatened to end their relations with Smt. Pushpa, the  deceased. This public humiliation was witnessed by Sahdev  Singh (PW-3) and Prahlad Singh (PW-5), residents of Rajepur  and Suresh, Bhanu Pratap Dixit (PW-4) and many others of  village Chirli, About one and a half month prior to the fateful  event Anil Kumar brought Smt. Pushpa to her Sasural in  village Chirli. On 7.10.1982 at about 7 A.M. on information  being sent by Bhanu Pratap Dixit (PW-4), the informant Sheo  Karan (PW-2) reached village Chirli where he found the dead  body of Smt. Pushpa. Four fingers of her right hand were  burnt and on her hands and legs there were some marks of  injuries. There was also a deep mark of hanging on the neck  which showed that Smt. Pushpa had been beaten and  thereafter done to death. Although the appellant Virendra  Kumar was present in the village,  from the morning of the

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fateful day (7.10.1982) he was absent. Hence it was inferred by  the informant that appellant in conspiracy with his elder  brother Suresh had murdered Smt. Pushpa after taking help  of some accomplices. The report to this effect was lodged by  Sheo Karan Shukla on 7.10.1982 at police out post Sarh,  police station Ghatampur, District Kanpur.  However, prior to this report, on 7.10.1982 at about 10  A.M., the co-accused Jai Narain gave an information at the  police chauki Sarh of police station Ghatampur that in the  night intervening 6-7 October, 1982, the deceased Smt.  Pushpa placed her dhoti in an iron ring on the roof and  thereafter she tied her own neck with the same and committed   suicide and her body was still hanging from the ring on that  roof with the Sari. On getting this information, the first  investigating officer SI Ajab Singh (P.W.-8) reached the house  of Jai Narain. He found the dead body hanging from a ring in  the ’Dhanni’ in the western Verandah by means of a Dhoti,  which was tied on the neck. The body was taken down and  inquest was performed on it by SI Ajab Singh. The opinion of  the inquest witnesses was taken and also the body was sent  along with the concerned papers for post mortem through  Constables Kailash Chandra and Radhey Shyam. The injuries  on the dead body were indicated in the inquest. The place  where the body was found hanging was inspected by SI Ajab  Singh (P.W.-8) who also prepared site plan.  He recorded the  statement of Jai Singh and his wife. As it had become late, the  investigating officer returned to the police station. Thereafter  the investigation was conducted by SSI Jogendra Singh (P.W.-  9).  As Smt. Pushpa had tied the knot with the Dhoti that she  was wearing, hence it was not taken into possession, but it  was sent along with the body of the deceased for post mortem.

Dr. R.K. Gupta (PW-6),  Medical Officer, ESI Dispensary  Kanpur conducted post mortem on the body of Smt. Pushpa  on 8.10.1992 at 12.45 p.m. at the E.S.I. Dispensary in  Kanpur.  

SI Jogendra Singh (P.W.9) was handed over the  investigation of this case by order of the Superintendent of  Police, Kanpur Dehat dated 11.10.1982 on an application by  Sheo Karan of the same date, and he commenced the  investigation on 15.10.1982. After that effort was made to  trace the accused persons,  but they could not be arrested. As  some of the witnesses were absent on that date, their  statements could not be recorded and the police of Chauki  Sarh was directed to produce the witnesses at the police  station. On 3.11.1982 SI Jogendra Singh recorded the  statements of Sheo Karan, Sahdeo, Deshraj Singh and  Bhagwan Deen at the police station under Section 161 of the  Code of Criminal Procedure, 1973 (in short the ’Cr. P.C’).  On  24.11.1982 he recorded the statement of Prahlad and others.  As he could not find the accused in spite of search, hence he  obtained order under Sections 82 and 83 Cr.P.C. for  attachment of their property on 27.11.1982. On 17.12.1982  appellant Virendra Kumar surrendered in Court. After  completion of investigation. S. I. Jogendra Singh submitted the  charge sheet.   The trial court found that on the basis of circumstances  highlighted,  the prosecution has established the accusations   and therefore held the accused persons guilty and sentenced  each to undergo imprisonment for life.  As noted above the two  accused persons preferred appeal before the Allahabad High  Court which partially allowed the appeal.  The High Court  noted that though there was no specific charge in terms of  Section 306 IPC, the ingredients of the said provision were

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clearly made out and the appellant had abetted commission of  suicide by the deceased.  Though a stand was taken by the  appellant before the High Court that since he had only been  charged under Section 302 IPC, he could not be convicted  under Section 306 IPC, the High Court did not find any  substance in view of several decisions of this Court.  We shall  deal with the decisions referred to, by the High Court, infra.

In support of the appeal learned counsel for the appellant  submitted that the High Court acted in terms of presumption  available in law under Section 113A of the Indian Evidence  Act, 1872 (in short the ’Evidence Act’). In the instant case,  the  offence was committed on 7.10.1982 when the provision i.e.  Section 113A was not in the statute book.  In fact, the  statement under Section 313 Cr.P.C. was recorded on  2.11.1983.  Reference is also made to a decision of this Court  in Shamnsaheb M. Multtani  v. State of Karnataka (2001(2)  SCC 577) to contend that in the absence of specific charge  under Section 306 IPC, the appellant could not have been  convicted in terms of that provision.  Learned counsel for the  respondent-State on the other hand submitted that in the  instant case the prosecution did not rely on the presumption  available under Section 113A of the Evidence Act and the  materials on record clearly established commission of the  offence by the appellant, even without resort to Section 113A  of the Evidence Act. It is further submitted that the  controversy now raised is settled by a three-judge Bench of  this Court in  Dalbir Singh v. State of U.P. [2004(5) SCC 334].

Though learned counsel for the appellant submitted that  the evidence was even otherwise insufficient to fasten the guilt  on the appellant and on a bare perusal of the judgment of the  trial court and the High Court, it  is clear that the materials  brought on record clearly formed a complete chain of  circumstances which unerringly pointed out at the accused- appellant being the author of the crime.  Therefore there is no  infirmity in the analysis done by the trial court and the High  Court in analyzing the evidence.   

The residual question relates to the applicability of  Section 113A of the Evidence Act and the question as to  whether in the absence of the specific charge under Section  306 IPC, the appellant could be convicted though he was only  charged in terms of Section 302 IPC.   

So far as the question as to the effect of no charge having  been framed under Section 306 is concerned the effect of  Section 222(2) and Section 464 of Cr. P.C.  cannot be lost  sight of.  In Dalbir Singh’s case (supra) it was inter alia noted  as follows: "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

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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  Cr.P.C. 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.  17. There arc 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  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 (supra) was  not correctly decided as it purports to lay down  as a principle of law that where the accused is

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charged under Section 302 IPC, he cannot be  convicted for the offence under Section 306  IPC."

It is to be noted that in view of apparent conflict in the  views expressed by two Judge Bench decisions in  Sangaraboina Sreenu v. State of A.P. (1997(5) SCC 348) and  Lakhjit Singh and Another v. State of Punjab (1994 Supp(1)  SCC 173)  the matter was referred to a three Judge Bench in  Dalbir Singh’s case (supra)

There is no dispute that the circumstances are relatable  to Section 306 IPC which were clearly put to the appellant  during his examination under Section 313 of Cr.P.C.    

Particular reference may be made to question Nos.  4,7,8,9,16 and 22 in the examination under Section 313 of the  Cr.P.C. and the answers given by the appellant. The  incriminating materials relating to torture, harassment and  demand of dowry were specifically brought to the notice of the  appellant during such examination.   

In support of his stand, the appellant pleaded that  deceased had committed suicide and for this purpose one  witness DW1 was examined.  It was specifically stated by him  that the appellant’s father had asked him to inform PW2 that  the deceased had committed suicide and accordingly he had  informed PW2.  Even in the absence of a presumption in terms  of Section 113- A of the Evidence Act it is to be noted that the  prosecution version was specific to the extent that the  deceased was being taunted by the appellant for not bringing  adequate dowry and/or being of dark complexion.  The  humiliation and harassment meted out was described by the  deceased when she had gone to her maternal uncle’s house.   The evidence of PW-1 i.e. neighbour of the accused-appellant  is also significant. It is clearly stated that the appellant used to  beat his wife i.e. deceased and on the night of occurrence,  when he was sitting on his roof-top he had heard cries of the  deceased being beaten, went to the house of the appellant and  he was turned away by the appellant who said that it was their  internal affair and he should mind his own work.  To similar  effect was the evidence of PW4- another neighbour.

The doctor who conducted the autopsy i.e. PW6, had  noted many major injuries in different parts of body including  one mark on the neck.  Therefore, as rightly contended by  learned counsel for the respondent-State, even without  reference to Section 113A of the Evidence Act the prosecution  version has been established.   

Above being the position there is no merit in this appeal  which is accordingly dismissed.