Calcutta High Court (Appellete Side)
Ashutosh Das vs The State Of West Bengal on 4 March, 2009
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Girish Chandra Gupta
AND
The Hon'ble Justice Kishore Kumar Prasad
Criminal Appeal No. 188 of 1987
Ashutosh Das
-vs-
The State of West Bengal
Mr. Biplab Mitra,
Mr. Arindam Chatterjee,
Mr. A.De,
Mr. A. Sen,
Ms. Trina Mitra,
Mr. S. Bera ......... ..........For the Appellants
Mr. Subir Ganguly ......... ......... For the State
Heard on : 10.2.2009.
Judgement on : 04.03.2009.
Kishore Kumar Prasad, J : -
This appeal is directed against the judgment and orders of conviction
and sentence dated. 29.4.1987 passed by the learned Additional Sessions Judge,
First Court, Midnapore in Sessions Trial Case No. XXX! of May 1986 arising out
of G.R. Case No. 336 of 1982 convicting the appellant Asutosh Das for the offence
punishable under Section 302 of the Indian Penal Code.
The appellant was heard on the question of sentence on the same
day that is on 29.4.1987 and thereafter he was sentenced to suffer imprisonment
for life.
Madhuri Das @ Madhuri, the mother of the appellant was also tried
in this case but the learned Trial Judge found no tangible evidence against her to
his satisfaction had, however, acquitted her of the offences punishable under
sections 302/201/34 of the Indian Penal Code charged against her.
The State has not filed any appeal against the order of the learned
Trial Court acquitting the aforesaid co-accused for the aforesaid offences charged
against her.
Being aggrieved by the orders of conviction and sentence passed by
the learned Trial Judge, the appellant has preferred the present appeal.
The prosecution case as projected during trial in a nutshell is that
the deceased Renubala Das had romance with the appellant and that resulted in
the marital tie between them. The actual date of marriage is not mentioned on
the record. The deceased started living in her marital house. At the time of
marriage ornaments were not given by the father of the deceased and for which
the appellant and her mother started mental and physical torture upon the
deceased. Subsequently, the father of the deceased had fulfilled some parts of the
demand and in spite of that oppression had been continuing upon the deceased.
The deceased used to visit the house of her parents occasionally and during
these visits, she used to tell them about the torture meted out on her by the
appellant and his mother.
On 20.3.1982 ( 6th Chaitra ), Rati Kanta Pradhan, the father of the
deceased received information about the suicidal death of his daughter. He
having reached the house of the appellant found the dead body of his daughter
lying on the verandah of the room of the appellant.
A First Information Report was lodged at 10.45 hours on 20.3.1982
before officer-in-charge of Ramnagar P.S. by the father of the deceased (P.W.1)
alleging that his daughter committed suicide on 19.3.1982 being unable to bear
the torture meted out to her by the appellant and his mother.
On the basis of Ratikanta's complaint, a case under Sections
306/109 of the Indian Penal Code was registered and investigating agency took
up investigation. In course of investigation, the incident took turn under section
302 of Indian Penal Code on the medical opinion. The doctor who conducted post
mortem of the deceased gave opinion for the cause of death as asphyxia due to
Strangulation.
In the usual course after completion of investigation, charge sheet
under Sections 302/201/34 of the Indian Penal Code was submitted against the
appellant and his mother. The case was committed to the Court of Sessions.
In the Trial Court charges under Sections 302/201 read with Section
34 of the Indian Penal Code against the appellant and his mother were framed.
They pleaded not guilty to the charges framed against them and claimed to be
tried.
In the Trial Court, the prosecution examined as many as eighteen
witnesses, material amongst them were Ratikanta, the informant cum father of
the deceased (P.W.1), P.W. 11 Sandha Rani Pradhan, the aunt of the deceased
and P.W. 12, Nirmalabala Pradhan, the mother of the decesed to whom the
deceased expressed grief about the torture meted out to her by the appellant
prior to her death; P.W. 13 Dr. Haripada Halder, who had conducted post
mortem examination on the dead body of the deceased on 21.3.1982 at Contai
Hospital and the two Investigating Officers, namely, S.I. Biplab Kumar Bagchi
(P.W. 17) and S.I., Bijoy Kumar Goswami (P.W. 18). The remaining witnesses
namely, P.W. 2,3,4,5 and 6 were turned hostile and P.Ws. 7,8,9,10,14,15 and 16
were formal witnesses.
Apart from leading oral evidence, the prosecution also tendered and
proved large number of exhibits which were marked as exhibit 1 to 7, Mat exhibit
I and Mat exhibit II.
Though, the appellant and his mother were examined under section
313 of the Cr.P.C., yet there was no adduction of evidence by them.
The defence version as it appears from the trend of cross-
examination of P.Ws. and suggestions thrown to the witnesses as also from the
answer given by the appellant in reply to the questions put to him under sections
313 of the Cr.P.C. was that the victim was not tortured at her marital home and
the deceased committed suicide by hanging.
The learned Trial Judge disbelieved the defence version. The learned
Trial Judge after considering the oral and documentary evidence on record and
hearing the learned counsel for the parties passed the orders of conviction and
sentence against the appellant as indicated hereinabove.
Learned counsel appearing on behalf of the appellant submitted that
the case is purely based on circumstantial evidence. The cause of death is
suicidal and not homicidal. The learned Trial Judge did not correctly address
himself to the evidence on record more importantly the medical evidence which
would indicate that it was a case of suicide by hanging and not strangulation.
Even otherwise, the prosecution has not established the chain of circumstances
showing the guilt of the accused beyond reasonable doubt.
Learned counsel further contended that where two views of a story
appear to be probable, the one that was contended by the accused should be
accepted. He placed reliance on the decision in the case of VIKRAMJIT SINGH
ALIAS VICKY -VS- STATE OF PUNJAB reported in (2007) 1 Supreme Court
Cases (Cri) 732.
The further submission of the learned counsel was that the
circumstances which according to prosecution lead to proof of the guilt against
the accused must be put to him in his examination under Section 313 of the
Cr.P.C. and in the instant case it was not done by the learned Trial Court.
Per contra, the learned counsel appearing for the State-respondent
supported the impugned judgement. Learned counsel submitted that though it is a case of circumstantial evidence, the prosecution has been able to establish the chain of circumstances, which unequivocally points to the guilt of the appellant. It was further argued that the findings of the learned Trial Judge ought to be confirmed.
Before entering into a detailed discussion of the evidence, we may point out some uncontrovertible facts. There was no dispute before the learned Trial Court or before this Court that the deceased Renubala had romance with the appellant and that resulted in the marital tie between them about two years prior to the unnatural tragic death of the deceased which occurred some time in the night of 19.3.1982, that is within a period of seven years of marriage. There is no controversy that the deceased had a daughter aged one and a half years fathered by the appellant at the time of her death and P.W. 13, Doctor Haripada Halder at the time of conducting post mortem examination of the deceased on 21.3.1982 found a female foetus in the uterine cavity of the deceased.
It is manifest from the evidence on record as also from the judgement of the learned Trial Court that the dead body of the deceased was found hanging from the branch of a tamarind tree with a rope tied around her neck; that place was 23/24 cubits away from the doorstep of the appellant and P.W. 17, the I.O. found one bamboo ladder of having a length of 6 and ½ cubits near to the tamarind tree. P.Ws. 2,3,and 5 though turned hostile had seen the deceased Renubala in hanging condition from the tamarind tree. P.Ws. 2 and 3 had also seen the tongue of the victim coming out from her mouth and they also found saliva in the mouth of the victim. Simply because these witnesses were turned hostile with the leave of the learned Trial Court, their evidence cannot, as a matter of law, be treated as washed off the record altogether.
It is convenient to refer in this connection the observation made by the Hon'ble Supreme Court in the case of Sat Pal v. Delhi Administration reported in AIR 1976 SC 294 at page 308 to the following effect :
" It emerges clear that on a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record that part of his testimony which he finds to be creditworthy and act upon it."
Jiban Das, who according to the testimony of P.W. 2 and 3 brought down the body of the deceased on which she was hanging after cutting the rope has not been examined in this case for the reasons best known to the prosecution. No poison was detected in the viscera of the deceased as per Forensic Laboratory Report mark as exhibit 5.
In view of the above admitted position, the first issue in the matter under consideration is whether the death of Renubala can be ascribed to be a homicidal or a case of suicidal. Needless to record that the learned Trial Court negated the case of suicidal death and held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code.
P.Ws. 2,3 and 5 deposed that they saw the deceased Renubala in hanging position from the branch of the tamarind tree. P.Ws. 2 and 3 further deposed that they found the tongue of the deceased coming out from the mouth and they also found saliva in her mouth. There is evidence from P.Ws. 2 and 3 that one Jiban Das cut the rope on which the deceased was hanging and the dead body of the deceased fell down on the ground from hanging position. P.W. 17, S.I. Bagchi, who had conducted inquest upon the dead body of the deceased on 20.3.1982 no-where stated in his evidence about any sort of injury noticed by him in course of conducting the inquest upon the dead body of the deceased.
For the reasons best known to the prosecution, the inquest report prepared by this witness was not tendered and proved in this case.
Let us now consider the medical evidence which is on record. Prosecution examined Dr. Haripada Halder as P.W. 13 who conducted the post mortem of the deceased on 21.3.1982. He deposed as follows :
" In March, 1982 I was at Contai. On 21.3.82 I held P.M. examination over the dead body of Renubala Das, aged about 22 years, Hindu Female, in connection with this case. The dead body was brought and identified by constable 475-Gobardhan Giri.
The subject was of average built. I found R.M. on the dead body. I noticed mark of ligature encircling on the right side of the neck. I also found blood clot under the mark. Save and except this part of finding I did not find any other external injury. On dissection of the dead body I found the followings :-
1. trachea was distorted and fracture of both sides of hyoid bone I found female foetus in the uterus.
Death in my opinion was due to asphyxia caused by a strangulation which was homicidal in nature. By my subsequent report, I opined that the fracture of the hyoid bone was ante-mortem in nature and homicidal.
This was in reply the queries made by the police as to whether the death of the victim was due to the injuries which were ante mortem and homicidal."
There is nothing in the testimony of this witness that he found imprints of thumb or fingers which are noticed in case of throttling. He admitted in his evidence during the course of cross-examination that in a case of suicidal hanging, the ligature mark would be non-continuous and higher up in the neck and he found ligature mark on the right side of the neck of the deceased which was non-continuous. He further admitted in his cross-examination as follows :-
" Findings on viscera by chemical examination might throw light regarding the cause of death."
His evidence if read as a whole would clearly go to show that he could not give definite opinion in regard to the cause of death.
We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self contradictory.
This is one such case where we find that there is a reasonable doubt in regard to the cause of death of the deceased and we find it not safe to rely upon the evidence of the doctor solely for the purpose of coming to the conclusion that Renubala's death is proved by the prosecution to be homicidal. From the totality of the evidence of P.W. 13, it cannot be said with any degree of certainty that the death of deceased was homicidal. Considering the evidence of P.Ws. 2,3 and keeping in mind the surrounding facts and circumstances which we have already discussed earlier, the possibility of the defence version that it was a case of suicide by hanging cannot be ruled out. It is now beyond any cavil that where two views of a story appear to be probable, the one that was contended by the accused should be accepted. (K. Gopal Reddy -vs.- State of A.P. (1979) 1 SCC 355; State of Orissa -vs.- Babagi Charan Mohanty (2003) 10 SCC 57 and Hem Raj -vs.- State of Haryana (2005) 10 SCC 614.) We have, in the aforesaid situation, no other option but express our disagreement with the views of the learned Trial Judge that the prosecution has been able to establish that the death of the deceased was homicidal and the appellant was responsible for causing the homicidal death of the deceased and thus guilty of offence punishable under section 302 of the Indian Penal Code.
We, however, find that that there are reliable evidence on record coupled with the surrounding facts and circumstances appearing in this case for the offence of 'cruelty' to make out a case for offence of abetting suicide under section 306 of the Indian Penal Code with the aid of section 113A of the Evidence Act.
Section 113A of the Evidence Act provides for the prosecution of suicide and lays down that where there is suicide committed by woman and when the question arises whether the husband or any other relatives of her husband 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 abated the suicide.
Admittedly, in this case, the deceased had romance with the appellant and that resulted in marital tie between them about two years prior to the date of incident and out of said wedlock, the deceased gave birth of one female child who was aged about one and a half years at the time of death of the deceased that is some time in the night on 19.3.1982. It is also manifest from the evidence of Dr. Halder (P.W. 13) that the deceased had female foetus in the uterine cavity on the date of her post mortem examination that is 21.3.1982. We have already stated earlier that besides the admission of the appellant that the deceased committed suicide by hanging sometime in the night of 19.3.1982, there is evidence of P.W 2 and 3 who found the deceased hanging from the branch of a tamarind tree with a rope and that place was 23/24 cubits away from the door step of the appellant. The parents of the deceased namely, P.W. 1 and P.W. 12 in specific words deposed that the deceased complained against her husband that she had been subjected to mental and physical torture on the ground that her father had failed to give sufficient dowry after marriage. P.W. 12 also deposed, as follows :-
" Last visit of Renu to our house on 5th Chaitra, about 5 years back. It was in the evening. She complained that she was assaulted mercilessly and it had come to the breaking point and she requested me to send her father to the house of her husband. I saw marks of injuries on the check. I assured her that she would be brought our house by her father who would be going tomorrow for that purpose. She did not stay as she left behind her daughter in the house of her husband. Before leaving she handed over a letter to me. She disclosed that everything had been written in detail in that letter and assured us that we would be able to get better information from it."
Although the said letter was seized by P.W. 17 (I.O.) under seizure list (Exhibit 3/3) with the contents of the letter incorporated therein, but it was not tendered and proved in course of trial before the learned Trial Court.
Naturally, a married girl would confide with a close friend or mother. A mother, on the other hand, may not bring everything to the notice of her husband on the belief that the things will improve.
Similarly, P.W. 11, the aunt of the deceased in her evidence clearly deposed that the deceased complained to her that she was ill-treated by her husband. The deceased would be the last person to complain against her husband at the earlier days of her marriage if there would not have been torture or cruelty of severe nature.
Learned counsel submitted that these witnesses have only made general allegations against the appellant and there is no specification as to what kind of ill treatment was meted out to the deceased which led her to commit suicide.
In Sahebrao & Anr. -vs.- State of Maharashtra reported in 2006 Cri.L.J. 2881, the Hon'ble Apex Court observed, " 12. In Pawan Kumar and others v. State of Haryana, (1998) 3 SCC 309, this Court observed:
"........cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304-B and 498-A, of IPC. Explanation (a) to Section 498-A itself refers to both mental and physical cruelty......Again wilful conduct means , conduct wilfully done; this may be inferred by direct or indirect evidence which could be construed to be such. A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for bride."
In Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, the Apex Court specifically mentioned :
"The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behavior may amount to cruelty and harassment in a given case."
In Mohd. Hoshan and another v. State of A.P. (2002) 7 SCC 414, it was pointed out that:
"The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty......"
Besides, some minor wear and tear in the evidence of P.Ws. 1, 11 and 12, nothing could be elicited from them in cross-examination which may render their evidence unreliable to the material part of the prosecution case. Discrepancies are likely to occur for variety of reasons namely the social status of the parties, education and the time when the deposition of the witness is recorded.
In the First Information Report lodged by P.W. 1 on the next morning of the date of incident, there is specific averment about the constant torture meted out to the deceased by the appellant for non-fulfillment of sufficient dowry.
The deceased Renubala, a girl of 22 years of age within a short period of her marriage being prone to commit suicide during her pregnancy leaving behind one female child aged one and a half years itself indicates that the torture both mental and physical was of such a nature not only to make her life miserable but it was unbearable. A pregnant woman ordinarily would not commit suicide unless relationship with her husband comes to such a pass that she would be compelled to do so.
An attempt has been made in course of argument to show that there was cordial relationship between the appellant and the deceased but the evidence of the parents of the deceased if read as a whole clearly show that the deceased was subjected to cruelty by the appellant. On the last occasion, that is some time in the evening on the date of incident when she came to her parents house, she disclosed about the cruel treatment meted out to her but on the assurance of her mother and hoping good sense will prevail upon her husband, she had gone to her marital home and sometime in the night of the same day she committed suicide by hanging from the branch of a tamarind tree with a rope which was about 23/24 cubits away from the door step of her husband. It is not the case of the appellant that the deceased was a lady of emotional nature irritating on the minor and petty reasons. Neither any evidence was led by the defence nor from the evidence placed on record by the prosecution, we can draw a plausible and reasonable explanation to rebut the presumption under Section 113A of the Evidence Act.
Under the circumstances, it is crystal clear that unless and until her life became unbearable because of constant mental and physical torture at the hand of the appellant, the deceased would not have dared to end her life during the course of her pregnancy and also leaving behind one female child aged one and a half years.
Giving conscious thought to the facts and circumstance of the case including the evidence discussed earlier, it is fully established that there was such cruel treatment to the deceased at the hand of the appellant which resulting abetting her to commit suicide by hanging from the branch of a tamarind tree with a rope. There is direct and reasonable nexus with the commission of suicide by the deceased with the act of cruelty to which the deceased was subjected to by the appellant.
Therefore, having given anxious consideration to the entire matter in issue, we are firmly of the view that the prosecution has proved by its own evidence referred to above that the appellant has committed the offence punishable under Section 306 of the Indian Penal Code and he is to be held guilty for the offence punishable under Section 306 of the Indian Penal Code.
It is true that the appellant was tried for the offences punishable under Sections 302/201/34 of the Indian Penal code. Placing reliance on the decision of the Apex court in Shamm Saheb M. Multani v. State of Karnataka reported in 2001(2) SCC 577, learned counsel appearing on behalf of the appellant argued that in the absence of specific charge under Section 306 of the Indian Penal Code, the appellant could not have been convicted in terms of that provision. He contended further that Section 113A of the Evidence Act was inserted in the Statute Book by Act 46 of 1983 whereas the offence of suicide was committed on 19.3.1982, that is prior to the insertion of the said provision in the Evidence Act and as such that provisions of Section 113A of the Evidence Act cannot be taken recourse to while coming to a finding regarding the presumption as to abatement of suicide committed by the deceased, against the appellant.
Learned counsel appearing on behalf of the respondent submitted that 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 offence by the appellant even without resort to Section 113 of the Evidence Act.
We find no substance in the sweeping conditions advanced by the learned counsel appearing for the appellant.
The provisions of section 113A of the Evidence Act do not create any new offence and as such it does not create any substantial rule but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case.
It is profitable to refer in this connection to Halsbury's Law of England, (Fourth Edition), Volume 44 page 570, wherein it has been stated that :
" The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature......"
It has also been stated in the said volume of Halsbury's Law of England at page 574 that :
"The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament."
In Blyth v. Blyth, 1966 AC 643 the wife left the husband in 1954 and lived with the co-respondent until August, 1955, when she broke off the association. In 1958 the husband and wife met by chance and sexual intercourse took place. In December, 1962, the husband sought a divorce on the ground of his wife's adultery. During the pendency of the application S.1 of the Matrimonial Causes Act, 1963 came into force on July 31, 1963 which provided that any presumption of condonation which arises from the continuance or resumption of marital intercourse may be rebutted on the part of a husband, as well as on the part of a wife, by evidence sufficient to negative the necessary intent. The question arose whether this provision which came into force on July 31, 1963 can be applied in the instant case. It was held that the husband's evidence was admissible in that S.1 of the Act of 1963 only altered the law as to the admissibility of evidence and the effect which the courts are to give to evidence, so that the rule against giving retrospective effect to Acts of Parliament did not apply.
In Herridge v. Herridge, (1966) 1 All ER 93 similar question arose. It was held that S.2 (1) of the Act of 1963 was a procedural provision, for it dealt with the adducing of evidence in relation to an allegation of condonation in any trial after July 31, 1963; accordingly the sub-section was applicable, even though the evidence related to events before that date, and the resumption of cohabitation in the present case did not amount, by reason of S.2(1), to condonation.
On a conspectus of these decisions, this argument on behalf of the appellant fails and as such the presumption arising under Section 113A of Evidence Act can also be taken into consideration in this case.
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 the Cr.P.C. cannot be lost sight of.
In Dalbir Singh -vs- State of U.P. reported in 2004 (5) SCC 334 corresponding to 2004 AIR SCW 219 presided by a Three-Judge Bench of the Hon'ble Apex Court, the controversy now raised is settled.
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 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 for 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.
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 Section 464 Cr.P.C., it is possible for the appellant 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 Sangarabonia Sreenu (supra) 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."
It is to be noted that in view of apparent conflict in the views expressed by two Judge Bench decision in Sangaraboina Sreene 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).
In the instant case, in support of his stand the appellant during his examination under section 313 of the Cr.P.C. to the question No. 4 pleaded that the deceased had committed suicide. The fact that the deceased complained to her parents that she had been subjected to torture coupled with beating had been put to the appellant to the question No. 8 in the examination under section 313 of the Cr.P.C. and in reply to the said question he stated as follows :
" It is a lie."
The omissions as pointed out by the learned counsel for the appellant with regard to the examination of the appellant under section 313 of the Cr.P.C., in our opinion, could only amount to an irregularity and are curable under section 465 of Cr.P.C. particularly when the learned Trial Judge put question to the appellant as to whether he wanted to adduce defence witness in support of his defence and in reply thereto, he stated as follows :
"No."
That apart, it is seen that the appellant was represented by a lawyer before the learned Trial Court and cross-examination of the material witnesses show that every effort was made to demolish the aforesaid aspect namely the deceased was constantly subjected to cruelty by the appellant.
From the trend of lengthy cross-examination of the material witnesses it can be said that the appellant had enough notice of the allegations which attract Section 306 of the Indian Penal Code. In such circumstances, we are, therefore, of the opinion that on the face of the materials on record, the conviction under section 306 of Indian Penal Code can safely recorded and the same would not result in failure of justice nor it has caused any prejudice to the appellant.
In this connection, reference may be made in the case of Ram Sankar Singh -vs- State of West Bengal reported in AIR 1962 S.C. 1239 where the Hon'ble Apex Court held that there may be error or omission in complying Section 342 of Cr.P.C. (corresponding to Section 313 of Cr.P.C.) correctly but that does not by itself vitiate the trial unless prejudice is shown to have resulted. To same effect is the decision in the State of Delhi Administration -vs- Dharampal reported in AIR 2001 SC 2524.
For the reasons aforesaid, the conviction of the appellant under Section 302 of Indian Penal Code and sentence of imprisonment for life as awarded by the learned Trial Court are set aside. Instead, the appellant is convicted under Section 306 of the Indian Penal Code.
Having come to the conclusion that the appellant is guilty of the offence punishable under Section 306 of the Indian Penal Code, with a view to comply with the requirement of section 235(2) of Cr.P.C. we listed the matter for further argument and directed S.P., Purba Midnapore for production of the daughter and father of the deceased before us to make ourselves satisfy to the submission of the learned counsel appearing for the appellant as also in regard to the sentence to be awarded to the convicted appellant. Pursuant to our direction, the daughter and father of the deceased appeared before us. On interrogation, the daughter of the deceased sated before us that his father, the appellant herein took all steps to bring her up by keeping her at his residence till her attaining majority and she is now residing at her marital home along with her baby pursuant to negotiation of marriage by his father.
The father of the deceased namely, Ratikanta Pradhan (P.W.1) also conceded the statement as made by the daughter of the deceased. Learned counsel for the appellant contended that the appellant comes from economically backward community; that he has not been accused or convicted of any other offence either prior or after to this tragic incident and he is now aged 50 years and as such leniency should be shown to this appellant in regard to the sentence to be awarded against him.
Learned counsel for the State-respondent left the question of sentence to be imposed on the appellant to the discretion of this Court.
Considering all these facts and keeping in mind the pendency of this appeal before this Court since 1987, we are of the view that ends of justice would sufficiently met if the appellant is sentenced to suffer Rigorous Imprisonment for six years as also to pay fine of Rs. 4,000/-, in default to suffer further Rigorous Imprisonment for six moths for the offence punishable under Section 306 of the Indian Penal Code.
The amount of fine, if realised, shall be paid to Ratikanta Pradhan (P.W. 1), the father of the deceased towards compensation.
The appellant shall get the benefit of set off in terms of Section 428 of the Cr.P.C. out of the period of imprisonment already undergone.
The appellant is now in jail. He is directed to serve out the remainder part of his sentence subject to alteration of conviction and sentence as indicated above.
With this modification towards punishment and sentence, the appeal is partly allowed.
The learned Trial Court is directed to issue revised jail warrant as required by the Rules.
Lower Court records with a copy of this judgment to go down forthwith to the concerned Trial Court for information and necessary action.
Urgent xerox certified copy of this judgement, if applied for, be supplied to the learned counsel for the parties upon compliance of all formalities.
I agree. (Girish Chandra Gupta, J) (Kishore Kumar Prasad, J)