Patna High Court
Lalan Ram vs The State Of Bihar on 9 January, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.37 of 2015 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.37 of 2015
Arising Out of PS.Case No. -71 Year- 2012 Thana -BEGUSARAI TOWN District- BEGUSARAI
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Lalan Ram, son of Shri Shivji Ram Resident of Mirganj P.S- Begusarai Town,
District - Begusarai.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ansul- Advocate
For the Respondent/s : Mr. Syed Ashfaque Ahmad-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 9-01-2018
Appellant Lalan Ram has been found guilty for an
offence punishable under Section 366 of the I.P.C. and has been
sentenced to undergo R.I. for seven years as well as to pay fine
appertaining to Rs.10,000/- and in default thereof, to undergo S.I. for
three months, additionally vide judgment of conviction dated
04.12.2014and order of sentence dated 09.12.2014 passed by the Additional Sessions Judge-IV, Begusarai in Sessions Trial No.33 of 2013.
2. Prem Shankar Sharma (PW-4) filed written report on 19.02.2012 disclosing therein that today at about 1.00 p.m. his daughter Neha Kumari aged about 17 years, who has gone to market, has not returned as yet. He made hectic search, but in vein. It has Patna High Court CR. APP (SJ) No.37 of 2015 2 further been disclosed that Lalan Ram, son of Shivji Ram of Mohalla- Mirganj, P.S. Town, District-Begusarai was regularly teasing his daughter since before for which, he had informed the police. That boy even then was regularly threatening that he will kidnap his daughter and will sell her for prostitution. So, he shown suspicion against the aforesaid Lalan Ram to have kidnapped his daughter with ulterior motive.
3. After registration of Begusarai Town P.S. Case No.71 of 2012, investigation commenced during course of which, victim was recovered, her statement was recorded under Section 164 of the Cr.P.C., medically examined, other witnesses were also examined and then, after completing the investigation, chargesheet was submitted facilitating the trial which concluded in a manner, subject matter of instant appeal.
4. Defence case, as is evident from mode of cross- examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, it has also been pleaded that the alleged victim, who happens to be major was in deep love with the appellant, whereupon she was scolded by her family members. On account thereof, she left her place and married with the appellant, consummated the marriage. After falling prey at the end of Patna High Court CR. APP (SJ) No.37 of 2015 3 the prosecution party, who succeeded in brain washing the victim, whereupon she had put certain allegation against the appellant and that being so, no offence has been committed at the end of the appellant. Furthermore, oral as well as documentary evidence has also been adduced in support thereof.
5. In order to support its case, prosecution had examined altogether seven PWs, who are PW-1 Vivek Sharma, PW-2 Neha Sharma, PW-3 Rekha Devi, PW-4 Prem Shankar Sharma, PW-5 Bablu Kumar Pandit, PW-6 Bipin Bihari Rai and PW-7 Dr. Kamini Rai. Side by side, had also exhibited the documents viz. Exhibit-1 signature of PW-2 Neha Sharma over statement recorded under Section 164 of the Cr.P.C., Exhibit-2 written report, Exhibit-2/1 endorsement over the written report, Exhibit-3 formal F.I.R., Exhibit- 4 medical report. Side by side, defence had also examined altogether six DWs, who are DW-1 Vijay Ram, DW-2 Gopal Prasad Soni, DW-3 Mantun Mahto, DW-4 Arvind Singh, DW-5 Devesh Kumar and DW- 6 Mahanth Yogendra Das as well as had also exhibited, Exhibit-A signature of victim Neha Kumari over an affidavit, Exhibit-B, Haziri, Exhibit-C, affidavit, Exhibit-D, vakalatnama and Exhibit-E series, letters, Exhibit-X marks for identification receipt while Exhibit-Y, photo of the appellant, Exhibit-Y/1, photo of the victim over the Patna High Court CR. APP (SJ) No.37 of 2015 4 affidavit.
6. While assailing the judgment of the conviction and sentence, it has been submitted on behalf of appellant that as the learned lower Court had acted in mechanical manner on account thereof, the same is fit to be set aside. In order to buttress such plea, it has been submitted that from the evidence of the victim, it is apparent that at the time of occurrence, she was major. From her conduct, it is evident that during course of enjoying company of the appellant for more than two months at different places, apart from availing different modes of transportation including the train, bus, taxi, she stayed at a rented house and during course thereof, she had not raised any kind of grievances against the appellant. That being so, her conduct is indicative of the fact that she was a consenting party and that being so, there happens to be no question of kidnapping/ abduction. Even during course of evidence, though in her examination-in-chief, she had cast an allegation against the appellant, but from the cross- examination, her conduct is found duly exposed suggesting contrary to the allegation, whereupon no offence under Section 366 of the I.P.C. is made out. That being so, the conviction and sentence recorded by the learned lower Court to that extent happens to be bad, illegal and is fit to be set aside.
Patna High Court CR. APP (SJ) No.37 of 2015 5
7. The learned Additional Public Prosecutor raised the legality of the trial conducted by the learned lower Court has been challenged in the background of the fact that the victim (PW-2) during course of her evidence had deposed that she was raped against her consent while being captive at the end of the appellant and that being so, the learned lower Court should have amended the charge attracting Section 216 of the Cr.P.C. Furthermore, the prosecution had also suggested that during course of statement recorded under Section 313 of the Cr.P.C., appellant was confronted with the aforesaid incriminating material and so, no prejudice would be to the appellant even if at the present moment, he is found and held guilty for an offence punishable under Section 376 of the I.P.C. as is found legally maintainable in accordance of Section 221 of the Cr.P.C. and on that very score, the learned counsel for the appellant has been requested to assist the Court and further, to meet out the submission having made on behalf of prosecution.
8. The learned counsel for the appellant on this very score, has submitted that true it is that victim has alleged against the appellant during course of her evidence that she was raped at the end of the appellant. It is also true that aforesaid incriminating material has been confronted during course of statement under Section 313 of the Cr.P.C., but the learned lower Court neither on its own nor having Patna High Court CR. APP (SJ) No.37 of 2015 6 prayed at the end of the prosecution amended the charge invoking its jurisdiction under Section 216 of the Cr.P.C. Consequent thereupon, the prosecution is forbidden to raise such plea. Apart from this, it has also been submitted that at the appellate stage, there happens to be no such provision available in terms of Section 386 of the Cr.P.C., whereupon the appellate Court would not be competent enough to appreciate the submission having made on behalf of prosecution. Apart from this, it has also been submitted that ingredients of Section 366 of the I.P.C. as well as Section 376 of the I.P.C. are distinct to each other, whereupon there would not be applicability of Section 222 of the Cr.P.C. and that being so, the submission having made on behalf of prosecution has got no legal identity, as such is fit to be rejected.
9. Furthermore, it has also been submitted that even if considering Section 221(2) of the Cr.P.C., no conviction would be under Section 376 of the I.P.C., because of the fact that Section 376 of the I.P.C. is not the minor of Section 366 of the I.P.C. rather it has got independent identity and that being so, even attracting Section 221(2) of the Cr.P.C., the punishment cannot be enhanced under the different penal Section.
10. It has further been submitted that in worst case if the Patna High Court CR. APP (SJ) No.37 of 2015 7 Court comes to a conclusion that in terms of Section 221(2) of the Cr.P.C., the appellate Court is competent enough to entertain the submission made on behalf of prosecution, then in that circumstance, the evidence of the victim is to be taken note of, whereupon it is apparent that she voluntarily, out of free-will, without any coercion, threat, duress indulged/ developed physical intimacy with the appellant and being major, no offence under Section 376 of the I.P.C. is made out. Furthermore, it has also been submitted that in the aforesaid facts and circumstances of the case, de novo trial is not at all warranted and so, it is a fit case wherein the judgment impugned is to be set aside, appeal is to be allowed without remitting the matter to the learned lower Court to amend the charge in terms of Section 216 of the Cr.P.C. relating to Section 376 of the I.P.C. and to proceed against the appellant. Furthermore, it has also been submitted that in terms of Section 300 of the Cr.P.C. along with Article 20(2) of the Constitution of India for the same offence, the accused could not be prosecuted. That being so, once having ample material before the prosecution being ignored at the end of the prosecution intentionally, knowingly, purposely, then in that circumstance, on the same score accused could not be prosecuted and that being so, the submission having made on behalf of prosecution has got no dearth at all. Accordingly, judgment impugned is fit to be set aside and appeal be Patna High Court CR. APP (SJ) No.37 of 2015 8 allowed.
11. On the other hand, the learned Additional Public Prosecutor while refuting the submission made on behalf of appellant has submitted that learned lower Court had committed gross-error, illegality during course of conduction of trial in the background of the fact that in spite of positive, concrete evidence at the end of the prosecution that while victim was captive under the appellant, she was raped and on account thereof, the learned lower Court should have amended the charge and would have prosecuted the appellant for an offence punishable under Section 366 of the I.P.C. as well as Section 376 of the I.P.C. That being so, it is a fit case wherein the judgment impugned be set aside and matter be remitted back to the learned lower Court to proceed afresh after amending the charge as provided under Section 216 of the Cr.P.C. Giving additional support, it has been submitted that once victim, during course of evidence, divulges that she was not a consenting party, then in that circumstance, Court will presume the same, irrespective of material whatever may be contrary to the same as being captive, she would not have any scope than to surrender.
12. From the evidence of PW-2, victim, it is evident that she had put allegation against the appellant to have raped after having Patna High Court CR. APP (SJ) No.37 of 2015 9 been kidnapped by the appellant. It is further evident that during course of statement recorded under Section 313 of the Cr.P.C., aforesaid incriminating material has been confronted to the appellant that means to say, appellant was aware with the allegation whatsoever been coupled with the incriminating material having adduced by the prosecution against him during course of trial.
13. So far power of appellate Court is concerned, from plain reading of the Section 386 of the Cr.P.C., it is apparent that in case, appellate Court finds that it is a fit case wherein, there should be enhancement of sentence, happens to be quite competent to inflict, save and except, having show-caused on that very score against the appellant as provided under Section 386 Cr.P.C.
14. The purpose for framing of charge against the accused is to have proper acquaintance of the allegation for which prosecution is going to be taken up, which is found prima facie exposed on the basis of the material having collected during course of investigation and has been placed before the Court in accordance with Section 173 of the Cr.P.C. However, right from Section 211 of the Cr.P.C., there happens to be some sort of obligation on the part of the Court during course of framing charge to incorporate the relevant requirements, but as per Section 215 of the Cr.P.C., some sort of error Patna High Court CR. APP (SJ) No.37 of 2015 10 visualizing in the format of charge would not make the trial redundant. While steping forward, two Sections are relevant, the first one, Section 222 of the Cr.P.C. wherein the conviction under the minor offence than that whereunder accused has been charged, is found permissible while in terms of Section 221 of the Cr.P.C. even if there happens to be absence of charge against the accused, even then, he is to be convicted and the aforesaid theme is found duly cared under Section 464 of the Cr.P.C.
15. The aforesaid theme happens to be much more debated at the end of the Hon'ble Apex Court. The Constitution Bench in Willie (William) Slaney vs. State of Madhya Pradesh reported in A.I.R. 1956 SC 116, has held:-
"44. Now, as we have said, sections 225, 232, 535 and 537(a) between them, cover every conceivable typo, 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 Patna High Court CR. APP (SJ) No.37 of 2015 11 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 infavour 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 bad a fair trial, whether he knew what be 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.
If 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. In Darbara Singh vs. State of Punjab reported in (2012)10 SCC 476, it has been held:-
"20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Patna High Court CR. APP (SJ) No.37 of 2015 12 Cr.P.C., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).
21. The "failure of justice" is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be „failure of justice‟; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has Patna High Court CR. APP (SJ) No.37 of 2015 13 to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. „Prejudice‟, is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. (Vide: Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114; Rattiram & Ors. v. State of M.P. through Inspector of Police, AIR 2012 SC 1485; and Criminal Appeal No.46 of 2005 (Bhimanna v. State of Karnataka) decided on 4th September, 2012)."
17. In Kamalanantha and others vs. State of Tamil Nadu reported in (2005)5 SCC 194, it has been held:-
"50. It is clear from the aforesaid decisions that misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section465 Cr.P.C. provided no failure of justice had occasioned thereby. Whether or not the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to Patna High Court CR. APP (SJ) No.37 of 2015 14 be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
18. In Annareddy Sambasiva Reddy and others vs. State of Andhra Pradesh reported in (2009) 12 SCC 546, it has been held:-
"55. In unmistakable terms, Section 464 specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not f ramed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned."
19. In K. Prema S. Rao and another vs. Yadla Srinivasa Rao and others with State of A.P. vs. Yadla Ranga Rao and another reported in (2003)1 SCC 217, it has been held:-
"22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A, IPC (as quoted above) it Patna High Court CR. APP (SJ) No.37 of 2015 15 is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 of Cr. P.C. needs reproduction:-
"221. Where it is doubtful what offence has been committed -
(l) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged.
In the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (12), he may be convicted of the offence which he is shown to have committed, although he Patna High Court CR. APP (SJ) No.37 of 2015 16 was not charged with it.
23. The provision of sub-section (2) of Section 221 read with sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC.
24. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr. P.C. which reads:-
"215. Effect of errors - No error in stating, either the offence or the particulars required to be stated in the charge, and no commission to state the offence or those particulars, shall be regarded any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
25. As provided in Section 215 of Cr.P.C. commission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel Patna High Court CR. APP (SJ) No.37 of 2015 17 treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498A, IPC."
20. In Dinesh Seth vs. State of N.C.T. of Delhi reported in (2008)14 SCC 94, it has been held:-
"11. A reading of the plain language of Section 221(1) and (2) shows that if a single act or series of acts constitute several offences and the prosecution is not certain about the particular offence then the accused can be charged with the allegation of having committed all, some or any of the offences. In such a case the accused can be convicted of the offence with which he may not have been specifically charged but evidence produced by the prosecution proves that such an offence has, in fact, been committed.
12. Section 222(1) lays down that when a person is charged with an offence consisting of several particulars and combination of only some of the particulars constituting a minor offence is proved then he can be convicted of the minor Patna High Court CR. APP (SJ) No.37 of 2015 18 offence with which he may not have been charged. Section 222(2) lays down that when a person is charged with an offence but the facts proved constitute a minor offence then he can be convicted of the minor offence despite the fact that he may not have been charged with that offence. Sub-section (3) of Section 222 lays down that a person charged with an offence, can be convicted of an attempt to commit such offence even though a separate charge may not have been framed on that account.
13. Section 464(1) lays down that any error, omission or irregularity in the framing of charge including any misjoinder of charges, will not invalidate a finding, sentence or order by a court of competent jurisdiction unless the higher court comes to a conclusion that failure of justice has been occasioned. Sub-section (2) of Section 464 specifies the modes which can be adopted by the Court of appeal, confirmation or revision, if such court is of the opinion that a failure of the justice has been occasioned on account of non framing of charge or any error, omission or irregularity in the framing of charge.
14. The question whether omission to frame a charge or any error or irregularity in the charge, is by itself, sufficient for quashing the conviction of the accused was considered in Willie (William) Slaney vs. State of M.P. [AIR 1956 SC 116].
After examining the issue in detail, the Constitution Bench of this Court observed:-
"6. Before we proceed to set out our answer and examine the Patna High Court CR. APP (SJ) No.37 of 2015 19 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 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.
7. 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."
15. The Constitution Bench then referred to the provisions of Patna High Court CR. APP (SJ) No.37 of 2015 20 Sections 225, 232, 535 and 537 of the Code of Criminal Procedure, 1898, which are analogous to Section 215, 464 and 465 of the Code and held (AIR 1956 SC 116.:
"44. "Now, as we have said, Sections 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. 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 Patna High Court CR. APP (SJ) No.37 of 2015 21 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.
If 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. In Gurbachan Singh vs. State of Punjab [AIR 1957 SC 623], a three Judges' Bench considered the question of prejudice and observed:
"7. 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. In Lakhjit Singh vs. State of Punjab [1994 Supp. (1) SCC 173], the accused were charged and convicted of offence under Section 302 IPC. The High Court upheld their conviction. A two Judges' Bench of this Court held that charge under Section 302 IPC is not established but convicted the appellants under Section 306 IPC. While rejecting the argument that in the absence of a specific charge under Section 306 IPC, the appellants cannot be convicted under that section, the Court observed:-
"9. The learned counsel, however, submits that since the Patna High Court CR. APP (SJ) No.37 of 2015 22 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 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 CrPC would show that they had enough of notice of the allegations which attract Section 306 Indian Penal Code also."
18. In Sangaraboina Sreenu vs. State of A.P. [1997 (5) SCC 348], another Bench of two Judges' expressed a contrary view. The facts of that case were that the accused was convicted by the trial court under Section 302 IPC. The High Court converted the conviction to one under Section 306 IPC. While reversing the judgment of the High Court, this Court held:
"2. 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 CrPC Patna High Court CR. APP (SJ) No.37 of 2015 23 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 CrPC 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."
19. In view of the apparently conflicting judgments of the coordinate Benches, the issue was referred to a larger Bench. In Dalbir Singh vs. State of U.P. [2004 (5) SCC 334], a three Judges' Bench considered the provisions of Section 222 and 464 of the Code and observed:-
"14.....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 CrPC is in the nature of a general provision which empowers the court to convict for a mino r offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said section also make Patna High Court CR. APP (SJ) No.37 of 2015 24 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. 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." (emphasis in original)
20. The three Judges' Bench then referred to the earlier judgments in Willie (William) Slaney vs. State of M.P. (A.I.R. 1956 SC 116), Gurbachan Singh vs. State of Punjab (supra) and observed:-
"17. There is 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 Patna High Court CR. APP (SJ) No.37 of 2015 25 Section 464 CrPC, 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 Sangaraboina Sreenu was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC."
21. The ratio of the above noted judgments is that in certain situations an accused can be convicted of an offence with which he may not have been specifically charged and that an error, omission or irregularity in the framing of charge is, by itself not sufficient for upsetting the conviction. The appellate, confirming or revisional Court can interfere in such matters only if it is shown that error, omission or irregularity in the framing of charge has caused prejudice to the accused and failure of justice has been occasioned."
21. In Sanichar Sahni vs. State of Bihar reported in (2009)7 SCC 198, it has been held:-
"21. It is also not the case where the appellant can take the Patna High Court CR. APP (SJ) No.37 of 2015 26 plea that he was not aware as what was the charge against him and what defence he could lead. There had been evidence of hatching the conspiracy of impeccable character. On the point of conspiracy the courts below have recorded the finding against the appellant.
22. In State of A.P. v. Thakkidiram Reddy, (1998) 6 SCC 554, this Court considered the issue of not framing the proper charges. In that case averment had been raised that charges have not been framed against the accused persons in accordance with Section 211 Cr.P.C.. In that case the charge had been framed under Section 148 IPC, though it was alleged that they were the members of an unlawful assembly, it was not mentioned what its common object was. Besides, it was contended, a charge under Section 302 IPC simpliciter was framed against all the accused persons and not with the aid of Section 149 IPC for which they were convicted by the trial court.
23. This Court repealed the contention observing as under:
(1998) 6 SCC 554).
"10. Sub-section (1) of Section 464 of the Code of Criminal Procedure 1973 ("Code" for short) expressly 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 Patna High Court CR. APP (SJ) No.37 of 2015 27 fact (emphasis supplied) been occasioned thereby. Sub - section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
(emphasis in original)
24. The Court in Thakkidiram case 1998) 6 SCC 554 further held that in judging a question of prejudice, as of guilt, court must act with a broad vision and look to the substance and not to technicalities, and its 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 cha nce to defend himself. In the said case this Court ultimately came to the conclusion that in spite of defect in framing of charge, as Patna High Court CR. APP (SJ) No.37 of 2015 28 no prejudice had been caused to the convicts, no interference was required.
25. A Constitution Bench of this Court in Willie (William) Slaney, v. State of M.P., AIR 1956 SC 116, considered the issue of non- framing of charges properly and conviction of an accused for the offences for which he has not been charged and reached the conclusion as under:-
"86. ...In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. .... ..... 87 .... If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established".
26. This Court in Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615 referred to and relied upon its earlier judgments in Willie (William) Slaney, (AIR 1956 SC 116) and State of A.P. v. Thakkidiram Reddy, (1998) 6 SCC 554) and held that unless there is failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused persons were in any way prejudiced due to the errors and omissions in framing the Patna High Court CR. APP (SJ) No.37 of 2015 29 charges against him. A similar view has been reiterated by this Court in Ramji Singh v. State of Bihar (2001) 9 SCC 528.
29. On this very issue of conspiracy, the prosecution led evidence of impeccable character of two witnesses, namely, Ashok Paswan PW.2 and Ashok Kumar Verma PW.5. The appellant was given full opportunity to defend himself only on this very point of conspiracy as there was no other allegation against him. He was asked specific question by the trial court on the point of conspiracy while recording his statement under Section 313 Cr.P.C. Therefore, it cannot be held even by any stretch of imagination that any prejudice has been caused to the appellant on this very issue."
22. In Gurnaib Singh vs. State of Punjab reported in 2013 (7) SCC 108, it has been held:-
"20. There is no dispute that no charge was framed under Section 306 IPC. Though the charge has not been framed under Section 306 yet on a question that has been put under Section 313, it is clear as crystal that they were aware that they are facing a charge under Section 304B IPC which related not to administration of poison but to consumption of poison by the deceased because of demand of dowry and harassment. It is major evidence in comparison to Section 306 IPC which deals with abetment to suicide by a bride in the context of clause (a) of Section 498A IPC. The test is whether there has Patna High Court CR. APP (SJ) No.37 of 2015 30 been failure of justice or prejudice has been caused to the accused.
21. In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623], this Court examined the question of prejudice and held as under: -
"7. ...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."
22. In Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577, a three-Judge Bench, while dealing with the concept of "failure of justice", has opined thus:-
"23. 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. Patna High Court CR. APP (SJ) No.37 of 2015 31 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.
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."
23. In Ramesh Vithal Patil vs. State of Karnataka and others reported in 2014 (11) SCC 516, it has been held:-
"18. It is true that the appellant was not charged under Section 306 of the IPC. The charge was under Section 304-B of the IPC. It was, however, perfectly legal for the High Court to convict him for offence punishable under Section 306 of the IPC. In Patna High Court CR. APP (SJ) No.37 of 2015 32 this connection, we may usefully refer to Narwinder Singh (2011) 2 SCC 47. In that case the accused was charged under Section 304-B of the IPC. The death had occurred within seven years of the marriage. The trial court convicted the accused for an offence punishable under Section 304-B of the IPC. Upon reconsideration of the entire evidence, the High Court came to the conclusion that the deceased had not committed suicide on account of demand for dowry, but, due to harassment caused by the husband in particular. The High Court acquitted the parents of the accused and converted the conviction of the accused from one under Section 304-B of the IPC to Section 306 of the IPC. This Court dismissed the appeal filed by the accused. It was observed that it is a settled proposition of law that mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Sections 221(1) and (2) of the Code of Criminal Procedure, 1973."
24. In Bhimanna vs. State of Karnataka reported in(2012) 9 SCC 650, it has been held:-
Patna High Court CR. APP (SJ) No.37 of 2015 33
"19. It is a matter of great regret that the trial court did not proceed with the case in the correct manner. If the trial Court was of the view that there was sufficient evidence on record against Yenkappa (A-
1) and Suganna (A-3), which would make them liable for conviction and punishment for offences, other than those under Sections 447 and 504/34 IPC, the court was certainly not helpless to alter/add the requisite charges, at any stage prior to the conclusion of the trial. Section 216 of the Code of Criminal Procedure, 1973 (hereinafter called „Cr.P.C.‟) empowers the trial Court to alter/add charge(s), at any stage before the conclusion of the trial. However, law requires that, in case such alteration/addition of charges causes any prejudice, in any way to the accused, there must be a fresh trial on the said altered/new charges, and for this purpose, the prosecution may also be given an opportunity to recall witnesses as required under Section 217 Cr.P.C.
20. In Hasanbhai Valibhai Qureshi v. State of Gujarat, AIR 2004 SC 2078, this Court held:
"10. Therefore, if during trial the Trial Court, on a consideration of broad probabilities of the case, based upon total effect of the evidence and Patna High Court CR. APP (SJ) No.37 of 2015 34 documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate."
21. Such power empowering alteration/addition of charge(s), can also be exercised by the appellate court, in exercise of its powers under Sections 385(2) and 386 Cr.P.C.
22. In Kantilal Chandulal Mehta v. State of Maharashtra & Anr., AIR 1970 SC 359, this Court while dealing with the power of the appellate Court under the earlier Code held:
"4. ..The power of the Appellate Court is set out in Section 423 of the Cr.P.C and invests it with very wide powers. A particular reference may be made to Clause(d) of sub- section (1), as empowering it even to make any amendment or any consequential or incidental Order that may be just or proper. Apart from this power of the Appellate Court to alter or amend the charge, Section 535 Cr.P.C, further provides that, no finding or sentence, pronounced or passed shall be deemed to be invalid merely on the ground that no charge has been framed unless the Court of Appeal or revision Patna High Court CR. APP (SJ) No.37 of 2015 35 thinks that the omission to do so, has occasioned failure of justice, and if in the opinion of any of these courts a failure of justice has been occasioned by an omission to frame a charge, it shall order a charge to be framed and direct that the trial be recommenced from the point immediately after the framing of the charge."
23. Thus, we are of the considered opinion that the trial court committed a grave error in acquitting Yenkappa (A-1) and Suganna (A-3) for the offence of causing injuries to the deceased, in spite of there being sufficient evidence on record against them in this respect, simply for the reason that the police did not file a charge-sheet in relation to such offences committed by them. Thus, the trial court should have altered/added the requisite charge(s) and proceeded with the case in accordance with law.
24. In such a fact-situation, a question also arises as to whether a conviction under any other provision, for which a charge has not been framed, is sustainable in law. The issue is no longer res integra and has been considered by the Court time and again. The accused must always be made aware of the case against them so as to enable them Patna High Court CR. APP (SJ) No.37 of 2015 36 to understand the defence that they can lead. An accused can be convicted for an offence which is minor than the one, he has been charged with, unless the accused satisfies the Court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. (Vide : Amar Singh v. State of Haryana, AIR 1973 SC 2221).
25. Further the defect must be so serious that it cannot be covered under Sections 464/465 Cr.P.C., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges, has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being Patna High Court CR. APP (SJ) No.37 of 2015 37 tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).
26. This Court in Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, while considering the issue placed reliance upon various judgments of this Court particularly in Topandas v. State of Bombay, AIR 1956 SC 33; Willie (William) Slaney v. State of M.P., AIR 1956 SC 116; Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326; State of A.P. v. Thakkidiram Reddy, AIR 1998 SC 2702; Ramji Singh & Anr. v. State of Bihar, AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab, AIR 2006 SC 191, and came to the following conclusion : "27. Therefore,.................. unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory."
A similar view has been reiterated in Abdul Sayeed Patna High Court CR. APP (SJ) No.37 of 2015 38 v. State of Madhya Pradesh, (2010) 10 SCC 259.
27. In Shamnsaheb M. Multtani v. State of Karnataka, AIR 2001 SC 921, this Court explained the meaning of the phrase „failure of justice‟ observing that the superior court must examine whether the issue raised regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court must further examine whether the said aspect is of such a nature, that non- explanation of it has contributed to penalising an individual, and if the same is true then the court may say, that since he was not given an opportunity to explain such aspect, there was „failure of justice‟ on account of non compliance with the principles of natural justice. The expression „failure of justice‟ is an extremely pliable or facile an expression which can be made to fit into any situation of a case.
28. The court must endeavour to find the truth. There would be „failure of justice‟ not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has to be shown Patna High Court CR. APP (SJ) No.37 of 2015 39 that the accused has suffered some disability or detriment in the protections available to him under Indian Criminal Jurisprudence. „Prejudice‟, is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. (Vide: Nageshwar Sh. Krishna Ghobe v. State of Maharashtra, AIR 1973 SC 165; State by Police Inspector v. T. Venkatesh Murthy, AIR 2004 SC 5117; Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114; and Rattiram & Ors. v. State of M.P. through Inspector of Police, AIR 2012 SC 1485)."
25. In Narwindar Singh vs. State of Punjab reported in 2011 (2) SCC 47, it has been held:-
"22. It is a settled proposition of law that mere omission or defect in framing charge would not disable the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. Patna High Court CR. APP (SJ) No.37 of 2015 40 In such circumstances, the matter would fall within the purview of Section 221 (1) and (2) of the Cr.P.C.
23. In the facts of the present case, the High Court very appropriately converted the conviction under Section 304- B to one under Section 306 IPC. In our opinion, there has been no failure of justice in the conviction of the appellant under Section 306 IPC by the High Court, even though the specific charge had not been framed. Therefore, we see no reason to interfere with the judgment of the High Court."
26. In Vinod Kumar vs. State of Punjab reported in (2015) 3 SCC 220, it has been held:-
"3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question, is it justified for any conscientious trial Judge to ignore the statutory command, not recognize "the felt necessities of time"
and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracizing the concept that a civilized and orderly society thrives on rule of law which includes "fair trial" for the accused as well as the prosecution.;
27. In Rattiram and others vs. State of Madhya Pradesh with Satyanarayan and others vs. State of Madhya Pradesh reported in (2012) 4 SCC 516, it has been held:-
Patna High Court CR. APP (SJ) No.37 of 2015 41
"39. The question posed by us fundamentally relates to the non-compliance of such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond any redemption or, for that matter it is such an omission or it is such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism."
28. In Shamnsaheb M. Multtani vs. State of Karnataka reported in (2001) 2 SCC 577, it has been held:-
"24. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (Audi alterum 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.
32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration:- If a Patna High Court CR. APP (SJ) No.37 of 2015 42 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 IPC 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 be convicted under Section 304B, IPC. But if the husband is charged only under Section 302 IPC 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.
33. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.
34. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304-B IPC 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 Patna High Court CR. APP (SJ) No.37 of 2015 43 an opportunity to the accused, a conviction under Section 304-B IPC 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 304B IPC, 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.
35. As the appellant was convicted by the High Court under Section 304-B IPC, without such 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 IPC."
29. After having chronological study of the principle propagated by the Hon'ble Apex Court as discussed herein above, it is abundantly clear that even having framing of charge under particular Section when the materials available on the record justify a conviction otherwise than the Section whereunder charge has been framed, the Court is competent to record sentence and the aforesaid situation is Patna High Court CR. APP (SJ) No.37 of 2015 44 being cared by the Section 221 as well as Section 222 of the Cr.P.C. as the circumstances so necessitates and is further nourished in terms of Section 464 of the Cr.P.C., but considering the pronouncement as in the case of Maltani (Supra), an opportunity has to be given to the appellant to defend as the offences so made out happens to be distinct to the same while as per principle laid down in Bhimanna's Case (Supra) whereunder at Para-21, it has been held that appellate Court is quite competent to alter/ add the charges and that being so, as the offence coming within the purview of Section 376 of the I.P.C. prescribes punishment extending the imprisonment for life. Whereupon, it goes out of roster of Single Bench in terms of Patna High Court Rules. That being so, in depth scrutiny, more particularly, in terms of Section 114A of the Evidence Act is forbidden, as it will be futile exercise in the present situation. That being so, the office is directed to list before the Division Bench after taking permission from Hon'ble the Chief Justice.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE 06.12.2017 Uploading Date 09.01.2018 Transmission 09.01.2018 Date