Punjab-Haryana High Court
Himanshu Parshad And Others vs State Of Punjab on 9 February, 2012
Bench: Hemant Gupta, A.N.Jindal
Criminal Appeal No.836-DB of 2002 :: 1 ::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: February 09, 2012
Himanshu Parshad and others
.....Appellants
VERSUS
State of Punjab
....Respondent
CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE A.N.JINDAL
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. M.S.Sidhu, Advocate, for the appellants
Mr.Pavit S.Mattewal, Additional Advocate General,
Punjab.
****
A.N.JINDAL, J.
The unfortunate death of Poonam Devi, aged about 24 years and her daughter Priyanka, aged about 3 years invited the prosecution of her husband Himanshu Parshad, father-in-law Mohan Parshad, mother-in-law Kailash Devi and sister-in-law Fulo Kumari for the offence punishable under Section 302/34 of the Indian Penal Code. Consequently, vide judgment dated 3.9.2002, all the four accused were convicted by the trial Court and sentenced to undergo Criminal Appeal No.836-DB of 2002 :: 2 ::
imprisonment for life and to pay a fine of Rs.20,000/- each.
Poonam Devi having married to Himanshu Parshad, accused, in the year 1997 had given birth to Priyanka. On 23.4.2001, the burnt bodies of Poonam and Priyanka, both residents of Baltana were taken away from her in-law's house to General Hospital, Sector 32, Chandigarh by the neighbours, the information in this regard was given to Police Station, Lohgarh. ASI Sucha Singh, PW-7 alongwith other police officials reached the hospital and recorded the statement, Ex.PG, of Balram Parshad, PW-4, brother of the deceased, wherein he deposed that he is an employee of Railway Coach Factory, Hussainpur, District Kapurthala. His sister, Poonam, was married to Himanshu Parshad in the year 1997 and the dowry articles to the tune of Rs.20,000/- were given. After sometime, the accused started harassing and beating her on account of bringing inadequate dowry and had also been turned out of the house many a times but on persuasions, Poonam was sent to her matrimonial home. The accused were demanding Fridge and Scooter. In the year 2000, on the occasion of his marriage, he had gone to take Poonam but she was not allowed to attend the marriage. After some days, her sister gave birth to a daughter but she was condemned for the reason that she had not given birth to the male child. She was also taunted by Fulo Kumari. Whenever they visited the house of his sister, they were misbehaved.
Ultimately, on 23.4.2001, Raju Parshad, a neighbour of the accused, informed them that Poonam and Priyanka were burnt to death in a Criminal Appeal No.836-DB of 2002 :: 3 ::
room by the accused and they had been admitted to Government Hospital, Sector 32, Chandigarh. On this statement dated 24.4.2001 of Balram Parshad, which was completed at 5.15 P.M., FIR, EX.PG/1 was recorded at 6.25 P.M., which was completed at 7.25 P.M. on the same day. The special report was sent to the Illaqa Magistrate. The law was set in motion.
The Investigating Officer conducted the inquest proceedings on the dead body of both the deceased; inspected the place of occurrence and collected the copies of post-mortem reports. The dead bodies were also got photographed. On 28.4.2001, the Investigating Officer visited the house in question and recovered one stove, one match box, one empty tin of kerosene oil, one burnt bed and mattress, which were taken into possession vide memo Ex.PO. He prepared the site plan, arrested the accused and on the completion of the investigation, challan against them was present in the Court under Section 302 and 304-B of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
In order to bring home the charges, the prosecution examined, Dr.Shubh Mohan Singh, PW-1, Satnam Singh Chauhan, PW-2, Karnail Singh, PW-3, Balram Parshad, PW-4, Chander Shekhar Parshad, PW-5, Manoj Kumar, Proprietor Rana Studio, PW- 6, ASI Sucha Singh, PW-7 and Dr.Harish Tuli, PW-8.
When examined under Section 313 of the Code of Criminal Procedure, all the incriminating circumstances appearing against the accused were denied by them. Himanshu Parshad, Criminal Appeal No.836-DB of 2002 :: 4 ::
accused further submitted that he was not present in the house at the time of occurrence and when at about 4/4.30 P.M., he reached the house, he was taken to the police station. The other accused pleaded only false implication.
The trial resulted into conviction under Section 302 of the Indian Penal Code.
Arguments heard. Record perused.
There is no denying a fact that the marriage of Himanshu Parshad had taken place with Poonam in the year 1997 and a daughter was born out of the wed lock. The occurrence had taken place on 23.4.2001 in which she and her daughter had died of burn injuries. The place of occurrence is also not in dispute being the house of the accused. All the accused, namely, Himanshu Parshad, Mohan Parshad, Kailash Devi and Fulo Kumari were occupants of the said house and they were not found present and they also did not accompany the dead bodies to the General Hospital, Sector 32, Chandigarh. Dr.Shubh Mohan Singh, PW-1, who alongwith Dr.Sandeep Kumar had conducted the post-mortem examination on the dead body of Poonam, observed as under:-
" Demo epidermal burns involving the whole of the body except for the axillae and a patch of skin measuring 4 cm. X 10 cm. On the left side of the lower anterior abdomen. Burns also involve the palms and soles, the hair on top of the head are maximally burnt. Red line is visible at the edge of the unburnt skin. Singeing of eye brows and hair Criminal Appeal No.836-DB of 2002 :: 5 ::
noted. Surgically produced cut down wound above right medial malleolus noted. Skin was peeled at most of the areas leaving a redding base. Approximate area of burns was 98 to 99% of total body surface area. Scalp, skull and vertebrae-scalp had already been described above, meninges NAD, brain congested. Larynx and trachea showed soot mixed with mucoid material. The walls and lungs were congested. The stomach contained around 50 cc of fluid material. Stomach contents were sent for chemical examination. Small intestines contained liquid and semi-solid matter. Part of it was sent for chemical examination. The large intestines contained foul smelling of gases and feacal matter at places. The liver was congested. The parts of gall bladder, kidneys (which were congested and the spleen were also sent for examination. The uterus contained a gestation sac of 4 x 3 cm. In size which contained an embryo of 1 cm. In size.
The uterus was enlarged upto 10 x 8 x 4 cms.
The cause of death was due to burns and shock; burns were about 98-99% of total body surface area. The burn injuries were ante-mortem and caused by flames. Scalp hair sample was sealed in our presence to confirm the presence of kerosene."
It is also not in dispute that there is no direct evidence to connect the accused with the crime except that all the accused were Criminal Appeal No.836-DB of 2002 :: 6 ::
occupants of the said house and they had absconded. No doubt, apparently, the Investigating Officer failed to perform his duties properly while conducting the investigation, collect sufficient evidence in order to connect each accused with the commission of murder of Poonam and her daughter, as such it would be difficult to segregate the case and to point out the complicity of the particular accused in the commission of crime under Section 302 of the Indian Penal Code but this Court does not find it helpless to sift the chaff from the grain and reach the truth by picking the threads of evidence as led by the prosecution to find out the actual offence that the accused had committed.
The occurrence in this case had taken place within 7 years of marriage wherein Poonam and Priyanka were burnt to death in the house of the accused and the accused, instead of explaining as to how and in what manner the occurrence had taken place and in what circumstances, the bodies of two live persons turned into corpse, fled away from the house, leaving the Investigating Agency to collect the evidence for making out as to what crime they had committed. This Court stands to reason not to convict the accused under Section 302 of the Indian Penal Code for want of specific evidence for concluding as to whether the death was suicidal or homicidal but we do not find ourselves helpless to reach the conclusion that it was a case of dowry death.
In order to attract application of Section 304-B of the Indian Penal Code, the essential ingredients are as follows:-
Criminal Appeal No.836-DB of 2002 :: 7 ::
i) the death of a woman should be caused by burns or bodily injury or otherwise than in normal circumstances;
ii) Such a death should have occurred within seven years of her marriage;
iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
iv) Such cruelty or harassment should be for or in connection with demand of dowry;
v) Such cruelty or harassment is shown to have meted out to the women soon before her death.
Similar observations were made in Satya Narayan Tiwari @ Jolly Vs. State of U.P., 2010(4) RCR (Criminal) 939.
Now in order to find out whether the offence committed by the accused is covered under Section 304-B of the Indian Penal Code, the evidence as led by the prosecution has to be peeped into.
As regards, the first ingredient, it needs mention that the parties were married in the year 1997 and occurrence took place on 23.4.2001. Both the accused as well as the deceased were residing in same house and the dead bodies were shifted from the house of the accused, there is evidence of Karnail Singh, PW-1, a resident of Baltana, who deposed that he had given his quarter on rent to the accused where they were residing alongwith Poonam and her daughter. Thereafter due to insufficiency of the accommodation, they had shifted to another quarter nearby. Though this witness was Criminal Appeal No.836-DB of 2002 :: 8 ::
declared hostile, yet the fact remains that the accused were residing together with Poonam and her daughter in one house and she died in the house of her in-laws.
As regards the other ingredients,i.e., maltreatment on account of demand of dowry, these elements stand proved from the unchallenged testimony of Balram Parshad, PW-4 and Chander Shekher Parshad, PW-5 (both brothers of the deceased). They being the family members of the deceased would be the best persons to disclose as to what was going on within the four walls of the matrimonial house. While unfolding the woeful story, they had stated that though they had spent Rs.20,000/- on the marriage of their sister, yet the accused were not satisfied. After 8-9 months of marriage, Himanshu Parshad started demanding more dowry and the deceased used to inform that all the accused had been harassing and beating her. They were also condemning her for not giving birth to the male child. Once the accused had left her after giving beatings to her, whereupon both the witnesses had left her in her matrimonial house by paying Rs.10,000/- to Mohan Parshad but still the behaviour of the accused was not proper and they were demanding fridge and scooter. The deceased had informed them on telephone about such demands and she had further informed them that she was not being served proper meals. Balram Parshad has stated that on 23.4.2001, he came to know through Raju Parshad that both Poonam and Priyanka were burnt to death by putting kerosene oil on them and they were shifted to General Hospital, Criminal Appeal No.836-DB of 2002 :: 9 ::
Sector 32, Chandigarh. Both the witnesses were cross examined at length but nothing fruitful could be elicited, which could create a dent in the prosecution case. Barring certain immaterial improvements, which normally occur with the passage of time as the human memory is likely to fade, do not affect the fundamental stature and hard truth, which could also find support from the conduct of the accused.
From the testimonies of Dr.Shubh Mohan Singh, PW-1, Karnail Singh, PW-3, Balram Parshad, PW-4 and Chander Shekher Parshad, PW-5, an inference could be drawn that there used to be a dispute over the dowry as also regarding the birth of female child, which invited the annoyance of the accused. Though the complainant and his brother had spent the money as per their capacity on the marriage of their sister, yet the accused had been treating the deceased as an alien in the house, joined together to put her into harassment and made her a soft target for dragging money or dowry articles from her brothers, who had adequate income being employed at different places. The evidence reveals that she was turned out of the matrimonial house so many times but Balram Parshad and Chander Shekher Parshad, PW-4 and PW-5 respectively, with a view that the matrimonial ties of the couple may not be rendered as hell, used to persuade the accused and leave her at her matrimonial house. Although they could not satisfy the demands of the accused with regard to fridge and scooter, yet they paid a sum of Rs.10,000/- to the accused on the promise that the accused would take care of her well being, yet they did not mend Criminal Appeal No.836-DB of 2002 :: 10 ::
their ways. The allegations are not general in nature but specific one. Balram Parshad, PW-4, has stated that his sister had been informing him about the harassment being meted out to her and about the demand of fridge and scooter. He has also stated that she was turned out of her matrimonial house and he used to send her back and persuade the accused for not misbehaving with her. There is also a specific evidence that the accused did not like that the deceased had given birth to a female child. The facts as emanating from the evidence indicate that the accused had been harassing and maltreating her and they did not condone their acts throughout the period of marriage, as such it can be said that the demand of dowry was soon before the death.
We are, however, convinced with the argument that Fulo Kumari was minor at that time and she had nothing to do with the articles of dowry as demanded by other accused and she was not beneficiary to such articles as demanded but since the remaining accused had a meeting of minds and were inviting complaints from the deceased which were conveyed to Balram Parshad, PW-4 and Chander Shekhar Parshad, PW-5, also indicate that the occurrence was due to complicity of the other three accused in the commission of crime.
The argument that the delay in lodging the FIR is fatal to the prosecution case does not hold water. The occurrence had taken place at the house of the accused. They did not take pains to shift her to the hospital or to inform the police or her brothers. But they, Criminal Appeal No.836-DB of 2002 :: 11 ::
after she died, fled away from the house. It was only on the receipt of information about the incident through a neighbour, Balram Parshad, PW-4, who was residing at Kapurthala, a place situated at about 150 kms. reached there and Chander Shekher Parshad, PW-5, who is a resident of Partap Bihar, Ghaziabad also reached thereafter. Since they were not knowing about the death of their sister earlier then that, therefore, there could be said to be no delay on their part. Balram Parshad was informed by Raju Parshad residing in the neighbourhood of the accused whereas Chander Shekhar Parshad was informed by his brother Balram Parshad.
The question now is whether she died of burn injuries as a result of use of kerosene.
We have evidence of Dr.Shubh Mohan Singh, PW-1, who proved post mortem examination report, Ex.PB, of Poonam, and has opined that the cause of death was as a result of burns. We have also the evidence of Dr.Harish Tuli, PW-8, who proved the post mortem examination report, Ex.PQ, of Priyanka and has opined that the cause of death was shock due to burns, which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature.
No doubt, the Indian Citizen is entitled to the protection of Article 20 of the Constitution, which provides a presumption of innocence in favour of the accused till he is held guilty but the concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has Criminal Appeal No.836-DB of 2002 :: 12 ::
applied the concept of deeming fiction to the provisions of Section 304-B IPC. Where other ingredients of Section 304-B IPC are satisfied, in that event, the husband or all his relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained, of, had caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code. The said observations were made by the Supreme Court in Ashok Kumar Vs. State of Haryana, 2010(3) RCR (Criminal) 900.
While applying the guidelines as set out in the said judgment to the facts of the present case, we observe that the prosecution has been successful in proving all the ingredients to make out a case against the accused under Section 304-B of the Indian Penal Code except Fulo Kumari. The facts which emanate from the evidence are reproduced as under:-
i) The accused alongwith Fulo Kumari were residing in the same house and except them, none else was the occupant.
ii) The marriage of Himanshu Parshad took place with the deceased in 1997 whereas the occurrence took place within seven years of marriage,i.e., on 23.4.2001.
iii) A lot of evidence has come forth in order to establish that the Criminal Appeal No.836-DB of 2002 :: 13 ::
deceased was harassed and maltreated on account of bringing insufficient dowry and for not giving birth to male child.
iv)Such cruelty was in connection with the demand of dowry and it continued to persist as indicated from the evidence that the deceased had been informing her brother on telephone regarding harassment and cruelty, till her death. Therefore, the harassment and cruelty was soon before her death;
v) the accused instead of shifting her to the hospital or providing her first aid ran away from the house. Consequently, the dead bodies were shifted to the hospital by the neighbours. They also did not inform about the occurrence to the brothers of the deceased or to any of her near relatives.
vi)They have failed to explain as to how the two live persons turned into corpse except blatant refusal to accept anything. However, accused Himanshu Parshad has stated that when he came to house, only then he came to know about the incident and consequently he was taken to the police station. This fact also stands falsified as he was arrested only on 13.5.2006.
As such, in the absence of any plausible explanation, the inference would be drawn against the accused.
Now coming to the other question, whether the accused could be held guilty for the offence punishable under Section 304-B of the Indian Penal Code, in the absence of charge framed against them under the said Section. Admittedly, the challan was presented against the accused under Section 302 and 304-B of the Indian Criminal Appeal No.836-DB of 2002 :: 14 ::
Penal Code and there are allegations in the FIR with regard to the harassment and demand of dowry by the accused. The case was committed under Section 302, 304-B IPC. The accused was particularly questioned with regard to maltreatment of the deceased on account of demand of dowry.
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 by the Constitution Bench of the Apex Court and their Lordships' observed as under:-
"Before we proceed to set out our answer and examine the 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 the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with 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 Criminal Appeal No.836-DB of 2002 :: 15 ::
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. 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."
The Constitution Bench after discussing the provisions of Section 225, 232, 535 and 537 of the Code of Criminal Procedure, which are analogous to Section 215, 464 and 465 of the Code observed as under:-
" 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 Criminal Appeal No.836-DB of 2002 :: 16 ::
irregularity it is not to be regarded as fatal unless there is prejudice."
As a matter of fact, the Courts are not to find out technical and hyper-technical faults and adjudicate the case mechanically by taking some directive provisions as mandatory or vice-versa. The goal of the Court is to administer justice by scratching the truth out of the material before it and justice includes the punishment of guilt as well as the protection of innocence. Justice can neither 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.
An issue with regard to error in framing the charge was discussed in Lakhjiot Singh Vs. State of Punjab, 1994 Supp. (1) SCC 173. In this case also, the accused was charged under Section 302 of the Indian Penal Code. However, the High Court while holding that charge under Section 302 IPC was not established, convicted the appellants under Section 306 IPC. But a different view was taken by the Apex Court in Sangaraboina Sreenu Vs. State of A.P. 1997(5) SCC 348 while reversing the judgment of the High Court converting the conviction to one under Section 306 IPC, their Lordships' also took a view that in the absence of charge under Section 306, the accused could not be convicted as both the offences i.e. Under Section 302 IPC and 306 IPC are of quite distinct Criminal Appeal No.836-DB of 2002 :: 17 ::
and different categories.
In view of apparently conflicting judgments, the issue was referred to a larger Bench in Dalbir Singh Vs. State of U.P. 2004(2) Apex Criminal 633, wherein three Judges Bench of the Apex Court observed as under:-
" 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 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 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.
Criminal Appeal No.836-DB of 2002 :: 18 ::
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." The Apex Court in Dinesh Seth Vs. State of N.C.T. 2008(4) RCR (Criminal) 81 while discussing the aforesaid judgments laid down the following guidelines:-
"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, Criminal Appeal No.836-DB of 2002 :: 19 ::
omission or irregularity in the framing of charge has caused prejudice to the accused and failure of justice has been occasioned."
It is cardinal principle of law that when the accused is convicted of a major offence but the major offence is not proved, then he could be convicted for a minor offence despite the fact that he may not have been charged with that offence but if the evidence on record as proved by the prosecution so warrants. In other words, where two offences are cognate offences, wherein, the main ingredients are common, the one punishable among them with a lesser sentence and the other with a higher sentence and graver in nature, then certainly, the former could be said to be minor one. No doubt, on a comparative study of both the offences, the same could not be said to be distinct and of different nature. In that situation, the accused charged under Section 302 IPC cannot be charged under Section 304-B IPC. Thus in the ordinary course, the conviction cannot be recorded for a different and distinct offence. But in cases, where there is semblance of allegations leading to the commission of the crime to prove such offence; the accused was also confronted with the said evidence and he was directed to explain those circumstances then in that situation, the accused cannot be said to have been caught by surprise and he had no opportunity to explain such evidence and in that situation, he cannot be said to have been prejudiced in any manner by irregularity in the charge.
In the instant case, from the very inception, the Criminal Appeal No.836-DB of 2002 :: 20 ::
prosecution case was that Poonam was married to the accused in the year 1997, the occurrence was the result of harassment to her on account of demand of dowry. The evidence also established that the accused were demanding dowry. The challan against the accused was presented under Sections 302 /304-B of the Indian Penal Code. The case was also committed under the aforesaid sections. There are direct allegations against the accused that he committed the murder of his wife within seven years of the marriage. As such, the error in charge is not such as to convert the offence under Section 302 IPC to Section 304-B IPC. It would also be pertinent to mention here that the motive for the commission of crime was harassment on account of demand of dowry and the prosecution, if for certain technical reasons, fails to prove the commission of crime for want of direct evidence, the offence certainly can be converted to one under Section 304-B of the Indian Penal Code.
Earlier while sitting singly, I had taken a different view in Gulzar Singh Vs. State of Punjab, 2007(4) R.C.R.(Criminal) 601 while basing the judgment Shamnsahed M.Multtani Vs. State of Karnataka, 2001 (1) RCR (Criminal) 617 but that was on different set of facts. In this case there are direct allegations of harassment and cruelty at the hands of his husband and other family members. In somewhat similar circumstances, the Apex Court in Vanga Sriniwas Vs. Public Prosecutor, High Court of A.P. 2007 (4) RCR (Criminal) 216, while converting the offence from Section 302 IPC to Section 304-B IPC held as under:-
Criminal Appeal No.836-DB of 2002 :: 21 ::
" Mr.I.Venkatnarayana, learned senior counsel, submitted that even if this Court accepts the prosecution case in view of alteration of the charge, namely, from Sections 302 to 304-B and 201 IPC, the conviction and sentence for an offence under Section 302 IPC by the High Court cannot be sustained. In the earlier part of the judgment, we have referred to Annexures A1 and A2 which clearly show that based on the materials collected, the Investigating agency altered the offence from Sections 302 IPC to 304-B and 201 IPC. The altered charged has not been taken note of by the High Court while arriving at a conclusion against the accused. In the earlier part of our judgment, we have referred to the relevant materials with regard to demand of dowry, suspicion, harassment and torture by the accused and the medical evidence as to the cause of death. In view of the same and in the light of the altered charge memo as one of Section 304-B instead of 302 IPC, it is but proper to convict the accused only under Section 304-B IPC and not under Section 302 IPC as ordered by the High Court. As per sub-section (2) of Section 304-B IPC, the minimum sentence prescribed is 7 years and may extend to imprisonment for life. "
In Vemuri Venkateswara Rao Vs. State of Andhra Pradesh, 1992 Criminal Law Journal, 563, a Division Bench of the Andhra Pradesh High Court dealt with a similar situation. In that case, the Criminal Appeal No.836-DB of 2002 :: 22 ::
husband of the deceased and another were convicted under Sections 302,201 and 498-A IPC. On appreciation of evidence, the Court found that the offence against the husband punishable under Section 302 IPC had not been made out. This Court, however, found that there was harassment and demand of dowry and unnatural death had taken place within a period of seven years of marriage. The presumption against the husband under Section 113-B of the Evidence Act was drawn for the offence punishable under Section 304-B IPC. There was no charge against the husband under Section 304-B IPC but the Court came to the conclusion that in the charge framed it has been clearly mentioned that there was demand for dowry prior to the death of the deceased and it was also mentioned in the charge that the deceased was harassed. This Court further held that once there is harassment for the demand of dowry and unnatural death occurs within seven years of the marriage, the presumption of dowry death has to be drawn. It was also held that merely because there was no separate charge under Section 304-B IPC, it cannot be said that any prejudice is caused to the accused since the facts noticed in the charge put together satisfy the ingredients of Section 304-B IPC."
In Sanjay Kumar Kesharwani Vs. State of Chhattisgarh, 2010(7) R.C.R. (Criminal) 1078, a Division Bench of the Chhattisgarh High Court while taking the similar view has held as under:-
" The appellant was originally charged for the offence punishable under Section 304-B read with Section 34 of Criminal Appeal No.836-DB of 2002 :: 23 ::
the IPC also. In the present case, offence under Section 304-B of the IPC is included in offence under Section 302 of the IPC and the appellant may be convicted under Section 304-B of the IPC in accordance with Section 222 of the Cr.P.C. Learned Additional Sessions Judge has convicted and sentenced the appellant under Section 302 of the IPC but has not considered the most material aspect of the case that there is no evidence relating to presence of the accused/appellant at the time of commission of such offence in the house or near the place of incident but the mere intimation reveals that the appellant was not present at the time of incident in his house where the offence took place and thereby the Additional Sessions Judge has committed illegality. On close scrutiny of the evidence adduced on behalf of the prosecution and the defence taken by the appellant and other accused persons, we are of the considered view that the evidence adduced on behalf of the prosecution is not sufficient for conviction of appellant Sanjay Kumar for commission of homicidal death of his wife Kanti Bai amounting to murder punishable under Section 302 of the IPC but is sufficient for drawing inference that the appellant has committed the offence punishable under Section 304-B of the IPC."
The law continued changing dimensions with regard to Criminal Appeal No.836-DB of 2002 :: 24 ::
the error, omission or irregularity in fra ming of charge. Thumb rule of prejudice to the accused remains the same. The Apex Court had gone to the extent that if the Court is of the view that if the grave offence has not been established on merits or for a defect of technical nature, it may still proceed to punish the accused for an offence of a less grave nature and content and if there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges. Recently, the Apex Court in Rafiq Ahmed @ Rafi Vs. State of U.P., 2011 (8) SCC 300 while taking into consideration the aforesaid judgment, discussed the meaning of words `prejudice', 'Legal prejudice' and undue prejudice and observed as under:-
"With the passage of time more and more such cases came up for consideration of this Court as well as the High Courts. The development of law has not changed the basic principles which have been stated in the judgments afore referred. Usually an offence of grave nature includes in itself the essentials of a lesser but cognate offence. In other words, there are classes of offences like offences against the human body, offences against property and offences relating to cheating, misappropriation, forgery etc. In the normal course of events, the question of grave and less grave offences would arise in relation to the offences falling in the same class and normally may not be inter se the classes. It is Criminal Appeal No.836-DB of 2002 :: 25 ::
expected of the prosecution to collect all evidence in accordance with law to ensure that the prosecution is able to establish the charge with which the accused is charged, beyond reasonable doubt. It is only in those cases, keeping in view the facts and circumstances of a given case and if the court is of the view that the grave offence has not been established on merits or for a default of technical nature, it may still proceed to punish the accused for an offence of a less grave nature and content.
In the case of Anil @ Raju Namdev Patil v.
Administration of Daman & Diu and Anr., 2007(1) R.C.R.(Criminal) 911 : 2007(1) Recent Apex Judgments (R.A.J.) 570 : (2006 Suppl. (9) SCR
466), the Court had to deal with a situation where the accused, a car driver had kidnapped a child of five years for the purpose of demanding ransom and later killed the child. The accused had been charged for an offence punishable under Sections 364, 302 and 201 IPC, but was finally convicted for an offence punishable under Section 364-A and was awarded sentence of death. This Court held that there was prejudice caused to the appellant and the sentence was modified from death to rigorous imprisonment for life with conviction under Section 364 IPC. The Criminal Appeal No.836-DB of 2002 :: 26 ::
Court, besides recording the above findings on the merits of the case noticed the precedents in relation to non-framing of charge. The Bench referred to various judgments of this Court in K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao, and Ors. 2002(4) R.C.R.(Criminal) 697 : (2003) 1 SCC 217), Kammari Brahmaiah and Ors. v. Public Prosecutor, High Court of A.P., 1999(1) R.C.R. (Criminal) 839 : (1999) 2 SCC 522), Dalbir Singh v. State of U.P., 2004(2) R.C.R.(Criminal) 497 : 2004 (2) Apex Criminal 633 : (2004 5 SCC 334), Kamalanantha and Ors. v. State of T.N., 2005(2) R.C.R.(Criminal) 596 : 2005(2) Apex Criminal 19 :
(2005 5 SCC 194), Harjit Singh v. State of Punjab, 2006(1) R.C.R.(Criminal) 133 : 2006(1) Apex Criminal 17 : ((2006 1 SCC 463) and recapitulated the principles of law stated in these judgments and stated the following precepts of law which would govern such cases :
"The propositions of law which can be culled out from the aforementioned judgments are:
(i) The appellant should not suffer any prejudice by reason of misjoinder of charges.
(ii) A conviction for lesser offence is permissible.
(iii) It should not result in failure of justice.
(iv) If there is a substantial compliance, misjoinder of Criminal Appeal No.836-DB of 2002 :: 27 ::
charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges. The ingredients for commission of offence of Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfied the requirements of Section 364 of the Indian Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any other person to do or abstain from doing any act or to pay a ransom.
It was, thus, obligatory on the part of the learned Sessions Judge, Daman, to frame a charge which would answer the description of the offence envisaged under Section 364-A of the Indian Penal Code. It may be true that the kidnapping was done with a view to get ransom but the same should have been put to the appellant while framing a charge. The prejudice to the appellant is apparent as the ingredients of a higher offence had not been put to him while framing any charge.
It is not a case unlike Kammari Brahmaiah (supra) where the offence was of a lesser gravity, as has been observed by Shah, J."
On critical analysis of the aforesaid law laid down by the Apex Court and the different High Courts as well as the provisions of Criminal Appeal No.836-DB of 2002 :: 28 ::
the Code, we sum up as under:-
i) Thumb rule to hold irregularity of charge is illegality resulting into serious prejudice to the accused inasmuch as he was taken by surprise; he was not provided opportunity to cross examine qua the accusations and was not confronted with the evidence;
ii) Semblance of the basic ingredients of the offence permits the Court to punish for a lesser offence though he was charged for a graver offence;
iii) Section 222 (2) of the Code also does not place any embargo upon the Court to punish the accused for a lesser offence though he was charged for a graver offence, unless it has resulted into failure of justice and conviction for lesser offence is punishable;
iv) In case of charge under Section 302 IPC, the accused could be convicted under Section 304-B IPC if the facts and evidence so permit ( Kamaladas Vs. State, 1999 Cri.L.J. 1395).
v) If the charge was omitted to be framed but it caused no prejudice.
Conviction should not be disturbed. (Kammari Brahmaiah and others Vs. Public Prosecutor, High Court of A.P., 1999(2) SCC
522).
vi) The absence of charges of conspiracy or common intention are not material. (Ghulam Din Buch Vs. State of J & K, 1996 SCC (Criminal) 986).
In the case in hand, since the challan was presented with the allegations constituting an offence under Section 304-B IPC. Sufficient evidence was led with regard to harassment and cruelty in Criminal Appeal No.836-DB of 2002 :: 29 ::
connection with the demand of dowry. No argument has been raised to the effect that the accused was prejudiced in any manner for omitting to frame the said charge though charge for graver offence was framed. As such, there could not be any difficulty in convicting the accused except Fulo Kumari, under Section 304-B of the Indian Penal Code.
Accordingly, we partly accept the appeal and while acquitting Fulo Kumari of the charges, framed against her, alter the conviction of remaining accused from Section 302 of the Indian Penal Code to that of Section 304-B of the Indian Penal Code and impose a sentence of seven years rigorous imprisonment against each of the accused.
With the above modification, the appeal stands disposed of.
( HEMANT GUPTA ) (A.N.JINDAL ) JUDGE JUDGE February 09, 2012 Kalra