Himachal Pradesh High Court
Reserved On: 28.08.2024 vs State Of H.P on 16 October, 2024
2024:HHC:9805 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 13 of 2009 Reserved on: 28.08.2024 Date of Decision: 16.10.2024.
Mohammad Javed ...Appellant
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. N.S. Chandel, Sr. Advocate, with Mr. Kshitij Thakur, Advocate.
For the Respondent : Mr. Jitender K. Sharma, Additional Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and order dated 22.12.2008 passed by learned Sessions Judge, Bilaspur (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 304-A of IPC and was sentenced to undergo rigorous imprisonment for one year, pay a fine of ₹5000/- and in default of payment of fine to further undergo imprisonment for two months. (The parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2024:HHC:9805 hereinafter be referred to in the same manner as they were arrayed before the learned trial Court).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 498A and 306 of IPC. It was asserted that Babar Khan (PW1) visited the Police Station on 08.06.1996 and stated that his sister Farida Bano was married to the accused-Javed Khan. One daughter was born to her. Javed Khan started beating his wife after the birth of his daughter. She left her matrimonial home and went to the house of her brother-Babar Khan and told him about the beatings. She also said that the accused had an illicit relationship with his sister-in-law. When she inquired about it, the accused gave her beatings. Babbar Khan counselled both parties and sent Farida Bano to her matrimonial home. The situation remained normal between them but the accused started beating and harassing his wife. She complained about her husband in February 2006 to the informant. The informant went to the house of the accused on 24.04.2006 and found that Farida Bano was lying on the bed. When he inquired, she revealed that she was fed up with the behaviour of her husband and had attempted to 3 2024:HHC:9805 commit suicide by burning herself. The informant said that he would inform the police but Farida Bano stopped him from doing so. She was taken to the hospital where she succumbed to her injuries on 06.06.2006. The Police registered the FIR (Ext. PW1/A). ASI-Deep Ram (PW16) conducted the investigation. He visited the spot and prepared the site plan (PW16/A). He filed an application (Ext. PW7/A) to obtain the treatment record of Farida Bano. Dr. Sanjay Chandel (PW7) issued the reports (Ext. PW7/B and Ext. PW7/D). ASI Deep Ram filed an application (Ext. PW4/A) for conducting the post-mortem examination of Farida Bano. Dr Mrs. Sangeeta Dhillon (PW4) conducted her post-mortem examination and found that she had died as a result of Septicemia caused by antemortem burns. She issued the report (Ext. PW4/B). The statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared by the police and presented in the Court of learned Chief Judicial Magistrate, Bilaspur, who committed it for trial to the Court of learned Sessions Judge.
3. Learned Sessions Judge charged the accused with the commission of offences punishable under Sections 498-A and 4 2024:HHC:9805 306 of IPC. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 16 witnesses to prove its case. Babar Khan (PW1) is the informant. Haroon Mohammad (PW2) was told about the beatings by the deceased. Nazma (PW3) met the deceased, who told her about the beatings and the illicit relationship between the accused and his sister-in-law. Dr. Sangeeta Dhillon (PW4) conducted the post-mortem examination of the deceased. Dr. Dhruv Sharma (PW5) issued the case summary of the treatment of the deceased at IGMC, Shimla. Dr Poojan Jaswal (PW6) furnished the case summary of the treatment of Farida Bano in Zonal Hospital, Bilaspur. Dr. Sanjay Chandel (PW7) issued the treatment summary from PHC, Gherwin. HC-Krishan Chand (PW8) prepared the inquest report of the deceased. Bhagat Ram (PW9) was told about the burn injuries suffered by the deceased. Surinder Kumar (PW10) saw that the deceased was burnt and made inquiries from her. Anil Kumar (PW11) is the ward member of the area where the accused and the deceased were residing together. Inspector Manoj Kumar (PW12) signed the FIR. SI-Mool Raj (Pw13) prepared the challan. SI-Meenakashi (PW14) recorded the statements of witnesses. Dr. 5 2024:HHC:9805 Vikram Lakhanpal (PW15) provided first aid to deceased Farida Bano. ASI-Deep Ram (PW16) conducted the investigation.
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety except the relationship between him and the deceased. He stated that he and others tried to take Farida Bano to the hospital but she refused to visit the hospital. He had not done anything and he was falsely implicated by the police in connivance with the witnesses. The deceased got burn injuries by accidental fire. He asked the deceased to go to the hospital but she did not agree. He also called Panchayat Pradhan and other Members but the deceased was adamant and she refused to go to the hospital. Dr. Bhagat Ram was called to give her treatment and he gave them a tube, which he applied to the burn injuries. He called the relatives of the deceased, who came on 24.04.2006 and asked her to visit the hospital but she refused. Her condition deteriorated. She was taken to the doctor against her wishes. She was habitual of taking khaini (tobacco) and she used to say that she would not be provided khaini (tobacco) in the hospital. She used to beat him. He had not demanded any dowry and had not harassed her. False allegations were made against him.
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6. Initially, the accused wanted to lead the defence evidence but subsequently, no defence evidence was led.
7. Learned Trial Court held that the prosecution version regarding the harassment by the accused was not proved. It was also not proved that the deceased had committed suicide due to the instigation of the accused. However, the accused had failed to take the deceased to the hospital and provide her prompt treatment, therefore, he was guilty of committing an offence punishable under Section 304A of IPC. The accused was not charged with the commission of an offence punishable under Section 304A of IPC but he had cross-examined the witnesses and there was no surprise to him; hence, the accused was acquitted of the commission of an offence punishable under Section 498A and 306 of IPC but he was convicted of the commission of an offence punishable under Section 304A of IPC and sentenced as aforesaid.
8. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. No charge under Section 304A of IPC was framed against the accused and no evidence to this effect was 7 2024:HHC:9805 led by the prosecution. Learned Trial Court convicted the accused of the commission of an offence punishable under Section 304A of IPC without any charge. This caused serious prejudice to the accused. The evidence on record also showed that the accused had taken steps for the treatment of the deceased. It was proved that the deceased had refused to go to the hospital and she was provided treatment in her residence. This evidence was overlooked by the learned Trial Court. There is no evidence that the accused had caused the death of the deceased by his rash or negligent act. The prosecution had come with the case that the accused had abetted the deceased to commit suicide. The accused was never told that he would be tried for causing the death of the deceased by rash and negligent act. Learned Trial Court failed to appreciate this fact. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
9. I have heard Mr. N.S. Chandel learned Senior Counsel assisted by Mr Kshitij Thakur, learned counsel for the petitioner/accused and Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent/State. 8
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10. Mr. N.S. Chandel, learned Senior Counsel for the appellant/accused submitted that the learned Trial Court erred in convicting the accused of committing an offence punishable under Section 304A of IPC. No charge for the commission of an offence punishable under Section 304A of IPC was framed by the learned Trial Court. The learned Trial Court had framed the charges for the commission of offences punishable under Sections 306 and 498A of the IPC, which are quite distinct from an offence punishable under Section 304A of the IPC. The accused could not have been convicted of the commission of an entirely different offence from the one with which he was charged. There was no evidence of any rash or negligent act. The accused had taken steps to get the deceased treated. The witnesses admitted that the deceased had herself refused to go to the hospital and the accused cannot be held liable in these circumstances. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
11. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State submitted that the prosecution evidence proved on record that the accused had not provided proper treatment to the deceased. The lack of treatment led to the 9 2024:HHC:9805 death of the deceased. There was no surprise to the accused; hence, he prayed that the appeal be dismissed.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
13. The record shows that the accused was not charged with the commission of an offence punishable under Section 304A of IPC. He was charged with the commission of the offences punishable under Sections 306 and 498A of IPC. Learned Trial Court was aware of the fact that the accused was not charged with the commission of an offence punishable under Section 304A of IPC and held that evidence of the prosecution witnesses proved the ingredients of the commission of the offence punishable under Section 304A of IPC, the witnesses were subjected to cross- examination, the accused was not taken by surprise and it was permissible for the Court to record the conviction of the accused for the commission of an offence punishable under Section 304A of IPC. This reasoning cannot be accepted. It was laid down by Kerala High Court in K.V. Sugathan v. State of Kerala, 1991 SCC OnLine Ker 195: (1991) 1 KLJ 673: 1991 Cri LJ 2211 that the accused cannot be convicted in the absence of the charge as it amounts to a violation of natural justice. It was observed at page 679: 10
2024:HHC:9805 "11. Illegality or irregularity resulting in prejudice and failure of justice is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules but could be said to be offending natural justice and not curable. A man must know what offence he is being tried for and he must be told in clear and unambiguous terms and it must all be explained to him so that he really understands the accusations. Only in such cases, the question of curing the omission, irregularity or error will arise (Willie Slaney v. State of Madhya Pradesh1956 S.C.
119). If in substance, though not in form, the accused was made to understand the real charge and no prejudice resulted, then no error, omission or irregularity on the charge will be material. If he is tried for one offence and convicted for an entirely different offence brought out during trial; for which he had no opportunity to defend himself, prejudice and failure of justice is patent. The prosecution case is only that pursuant to a demand made by the appellant on 20.3.1985 to PW 1 for ₹ 200/- as motive or reward for passing indent in her favour, he received ₹ 150/- from her on 27.3.1985 as illegal gratification. That case is not only not proved, but also stands disproved.
There is no evidence of such a demand or receipt of an amount pursuant to such a demand for that purpose. Demand and receipt for that purpose stand disproved by the mere fact that PW 1 was asked to produce the records and the children for physical verification and she failed and that is the reason why the indent was not passed. That fact acts as a motive for false implication as suggested by the defence and practically admitted by the Special Judge. Payment of ₹ 150/- on 27-3-1985 and its receipt by the appellant are admitted and proved. But the evidence is that it is a voluntary payment as a donation to the Association, of which the appellant is an office-bearer entrusted with the charge of collection. He may or may not have demanded such a donation. There is no evidence for that. Neither the prosecution nor PW 1 has a case in which the appellant demanded ₹ 150/- and PW 1 paid the same by way of motive or reward for passing indent. The appellant was never asked to answer the charge that he demanded 11 2024:HHC:9805 and received a donation for the Association as a motive or reward for passing indent and it is penal. Practically he is convicted solely on his admission for an act, for which there is no charge. His action may or may not be penal. The matter does not fall under Sections 221 or 222 of the Code. In order to convict him for having received a donation for the Association, there must be a charge that he demanded and received an amount for that purpose by way of motive or reward. When there is no such case, conviction is illegal. What is involved is not an error, omission or irregularity which is curable or an instance coming under Sections 221 or 222 of the Code. The accused was, in fact, misled and failure of justice resulted by the conviction."
14. Section 222 of the Cr.P.C. deals with the cases, where the offence proved is included in the offence charged. Section 222(2) provides that when a person is charged with an offence, and facts are proved, which reduced it to a minor offence, he may be convicted of the minor offence although he is not charged with it. The illustration provides that a person charged with the commission of an offence punishable under Section 407 of IPC can be convicted of the commission of an offence punishable under Section 406 of IPC if it was not proved that the articles were not entrusted to him as a carrier. A person charged with Section 325 of the IPC can be convicted of the commission of an offence punishable under Section 335 of the IPC if he proves that he acted on grave and sudden provocation.
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15. Therefore, it is apparent from the perusal of this Section that a person charged with a major offence can be convicted of a minor offence.
16. A minor offence under Section 222(2) means an offence, which has common ingredients with the main offence. It cannot include two offences having entirely different ingredients. When the ingredients are the same, there is no prejudice against the accused because the accused has defended himself against the common ingredients. However, when the ingredients are different, there is a surprise to the accused because he never knew that he would be called upon to defend himself against an offence whose ingredients are entirely different from the offence charged. It was laid down in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577: 2001 SCC (Cri) 358: 2001 SCC OnLine SC 299 that only the cognate offences having common ingredients are included in Section 222 of CrPC. It was observed at page 584: -
"15. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The section permits the court to convict the accused "of the minor offence, though he was not charged with it". Sub-section (2) deals with a similar, but slightly different situation.13
2024:HHC:9805 "222. (2) 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."
16. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as a minor offence vis-à-vis the other offence.
17. This position was reiterated in Rafiq Ahmad v. State of U.P., (2011) 8 SCC 300: (2011) 3 SCC (Cri) 498: 2011 SCC OnLine SC 1040 wherein it was observed at page 313:
"25. So far, the judicial pronouncements show a consistent trend that wherever an accused is charged with a grave offence, he can be punished for a less grave offence finally, if the grave offence is not proved. For example, a person charged with an offence under Section 302 IPC may finally be convicted only for an offence under Section 304 Part II where the prescribed punishment is lesser and the consequences of conviction are less serious in comparison to a conviction under Section 302. But even in those cases, the court has to be cautious while examining whether the ingredients of the offences are independently satisfied. If the ingredients even of a lesser offence are not satisfied then it may be difficult in a given case for the court to convict the person for an offence of a less grave nature.
26. There can be cases where it may not be possible at all to punish a person for a less grave offence if its ingredients are completely different and distinct from the grave offence. To deal with this aspect illustratively, one could 14 2024:HHC:9805 say that a person who is charged with an offence under Section 326 may not be liable to be convicted for an offence under Section 406 IPC because their ingredients are entirely distinct, different and have to be established by the prosecution on its own strength. In other words, the accused has to be charged with a grave offence which would take within its ambit and scope the ingredients of a less grave offence. The evidence led by the prosecution for a grave offence, thus, would cover an offence of a less grave nature. But it is essential that the offence for which the court proposes to punish the accused is established beyond reasonable doubt by the prosecution.
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31. 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 to. Usually, an offence of a 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 expected of the prosecution to collect all evidence in accordance with the 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 a technical nature, it may still proceed to punish the accused for an offence of a less grave nature and content.
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43. Having stated the above, let us now examine what kind of offences may fall in the same category except to the extent of "grave or less grave". We have already noticed 15 2024:HHC:9805 that a person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentials are satisfied with the evidence on record. Examples of this kind have already been noticed by us like a charge being framed under Section 302 IPC and the accused being punished under Section 304 Part I or II, as the circumstances and facts of the case may demand. Furthermore, a person who is charged with an offence under Section 326 IPC can be finally convicted for an offence of lesser gravity under Section 325 or 323 IPC, if the facts of the case so establish.
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44. Alike or similar offences can be termed as "cognate offences". The word "cognate" is a term primarily used in civil jurisprudence, particularly with reference to the provisions of the Hindu Succession Act, 1956 where Section 3(c) has used this expression in relation to the descendants of a class of heirs and normally the term is used with reference to blood relations. Section 3(c) of the Hindu Succession Act defines "cognate" as follows:
"3. (c) 'cognate'. --one person is said to be a 'cognate' of another if the two are related by blood or adoption but not wholly through males;"
45. The encyclopaedia The Law Lexicon, explains the word "cognate" in relation to civil law as follows:
"Cognate. --According to Hindu Law it is a class of heirs, descended or borrowed from the same earlier form.
It means blood relation including female relation. Word 'cognate' literally means 'akin in nature', Ram Briksh v. State [1978 All Cri C 253] ."
This expression has also been recognised and applied to criminal jurisprudence as well not only in the Indian system but even in other parts of the world. Such offences indicate the similarity, and common essential features between the offences and they primarily being based on 16 2024:HHC:9805 differences of degree have been understood to be "cognate offences".
46. Black's Law Dictionary (8th Edn., p. 1111) defines the expression "cognate offence" as follows:
"Cognate offence. --A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category. For example, shoplifting is a cognate offence of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property."
47. Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the courts can always exercise their power to punish the accused for one or the other offence provided the accused does not suffer any prejudice as aforeindicated."
18. Hence, the test is to determine whether the ingredients of the two offences are common or not.
19. Section 306 of IPC reads as under:
306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.
20. It is apparent from the perusal of this Section that it deals with the abetment of a suicide. Therefore, it has to be proved by the prosecution that the deceased had committed suicide and that the accused had abetted the commission of the suicide. Section 304A of IPC reads as under:
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2024:HHC:9805 304-A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
21. It is apparent from the perusal of this Section that a person should have caused the death of any person by doing any rash or negligent act not amounting to culpable homicide. Therefore, the prosecution needs to prove that the accused had caused the death of the deceased. Since the causing of the death and the commission of the suicide are entirely different from each other, therefore, it cannot be said that the main ingredients of these two offences are the same. Further, the mens rea of the two offences is also different, while for the commission of an offence punishable under Section 306, an instigation on the part of the accused is required, for committing an offence punishable under Section 304A, the rashness or negligence of the accused is required. Therefore, by no stretch of the imagination, the offences punishable under Section 306 and 304A of IPC can be called major and minor offences having the common ingredients.
22. Section 498A deals with the cruelty by the husband or relatives of the husband. It reads as under:
498-A. Husband or relative of the husband of a woman subjecting her to cruelty. --Whoever, being the husband 18 2024:HHC:9805 or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.
Explanation. --For the purposes of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]
23. It is apparent from the perusal of the Section that the accused has to subject his wife to cruelty, which means a conduct, that is likely to cause the woman to commit suicide or harass her to coerce her or any person related to her to meet any unlawful demand for any property or valuable security. This Section does not deal with the causing of the death or doing any act rashly or negligently but it deals with doing an act voluntarily; hence, the ingredients of Section 304A and Section 498 of IPC are also not common and a person charged with the commission of an offence punishable under Section 498A cannot be convicted of the commission of an offence punishable under Section 304A of IPC. Thus, the learned Trial Court erred in convicting the accused 19 2024:HHC:9805 of the commission of an offence punishable under Section 304A of IPC without there being any charge for the commission of the aforesaid offence.
24. Even otherwise, the failure of the accused to take the deceased to the hospital was not established. Anil Kumar (PW11) was the Ward Member. He stated that the accused called him on 30.04.2006 to see his ailing wife. He and Pardhan visited the house of the accused and found the burn injuries on the person of the deceased. She revealed that she had sustained injuries on account of accidental bursting of the stove. He advised her to go to a hospital and lodge a report but she refused. He stated in his cross-examination that Panchayat Members tried to take her to the hospital for treatment but she refused. Her husband had also tried to take her to the hospital but she refused. She was taking medicines from the local shop. Her family members were also called but she refused to go to the hospital.
25. He has been put forward as a witness of truth by the prosecution and his statement clearly shows that the accused, family members of the deceased and Panchayat Members tried to take the deceased to the hospital but she refused to go to the 20 2024:HHC:9805 hospital. Hence, his testimony does not establish that the accused had not tried to take the deceased to the hospital.
26. Surinder Kumar (PW10) stated that he had inducted the accused as a tenant. He found the wife of the accused lying in the bed. The Panchayat Members were also present in the house. She disclosed on inquiry that she had accidentally caught fire from the bursting of the stove. He stated in his cross- examination that the deceased refused to go to the hospital despite the suggestion of the Members of the Panchayat. She stated that she was obtaining the medicines from Bhagat Ram.
27. Again, this witness has not been declared hostile and his testimony has to be accepted as correct. His testimony shows that an attempt was made to take the deceased to the hospital but she refused and she was not taken to the hospital; hence, his testimony does not show that the accused had failed to provide treatment to the deceased.
28. Bhagat Ram (PW9) stated that he was running a medical store at Gherwin. The accused came to him and told him that his wife had sustained burn injuries. He accompanied the accused to his residence and found the burn injuries on the feet of the accused's wife. He told the accused to take her to the hospital. 21
2024:HHC:9805 He stated in his cross-examination that he was not aware that the accused was making efforts to take her to the hospital but she had refused to do so. Again his testimony does not show that the accused had refused to provide her treatment. The accused had called this witness for the treatment of his wife.
29. Babar Khan (PW1) did not state that the accused had not provided any treatment to his sister. He stated that he went to the matrimonial home of the deceased and found a stench emanating from her body and she was unable to speak. He asked her what had happened to her. She replied that she had attempted to commit suicide. He reported the matter to the police subsequently. He has nowhere stated that the deceased had made any complaint that she was not being provided treatment by the accused.
30. Haroon Mohammad (PW2) stated that Babar Khan told him about the critical condition of the deceased and he visited the deceased in the hospital on 29.04.2006. The accused had not tried to treat the injuries of the deceased before 29.04.2006. He stated in the cross-examination that he met the deceased on 29.04.2006 and she was communicating. He denied that the deceased had sustained injuries on 21.04.2006. 22
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31. As per his version, he had talked to Babar Khan on 29.04.2006 and met the deceased on 29.04.2006. Therefore, he cannot have any personal knowledge regarding the fact whether the deceased was being treated by the accused or not and his testimony that the accused was not getting his wife treated cannot be accepted.
32. The other witnesses are the medical officers who had deposed about the condition of the deceased and do not show whether the accused had got the deceased treated or not. Only Dr Dhruv Sharma (PW5) stated in his examination-in-chief that probably if the patient had been brought to the hospital in time and proper treatment had been given in time, the outcome of the case would have been different.
33. This was the only evidence against the accused but keeping in view the statement of the Ward Member and other independent persons, the accused cannot be held responsible for not providing treatment when the deceased herself refused to go to the hospital.
34. Therefore, even on merits, there was insufficient evidence to show that the accused had failed to provide proper 23 2024:HHC:9805 treatment to the deceased and he could not have been convicted based on the evidence led by the prosecution.
35. Thus, the learned Trial Court erred in convicting the accused of the commission of an offence punishable under Section 304A of IPC without there being any charge under the aforesaid Section and in view of the evidence that the deceased had herself refused to go to the hospital; hence, the judgment passed by learned Trial Court is not sustainable.
36. In view of the above, the present appeal is allowed and the judgment and order passed by the learned Trial Court dated 22.12.2008 are ordered to be set aside and the accused is acquitted of the commission of an offence punishable under Section 304A of IPC. The fine amount be refunded to the accused after the period of limitation.
37. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner is directed to furnish his personal bonds within four weeks in the sum of ₹25,000/- with one surety each in the like amount to the satisfaction of the learned Trial Court, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this 24 2024:HHC:9805 judgment, or on grant of the leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
38. Records be sent back forthwith. Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 16th October, 2024 (saurav pathania) Digitally signed by KARAN SINGH GULERIA Date: 2024.10.16 16:19:42 IST