Madhya Pradesh High Court
Arvind Choube vs The State Of Madhya Pradesh on 17 May, 2019
1
CR.R.No.664/2019
HIGH COURT OF MADHYA PRADESH
CR.R.No.664/2019
(Arvind Choube and others Vs. State of M.P.)
Gwalior, dated: 17-05-2019
Shri S.K.Tiwari, learned counsel for the applicants.
Shri J.P.Sharma, learned Public Prosecutor for the
respondent/State.
This Criminal Revision has been filed under the provisions of Section 397 and 401 of Cr.P.C. being aggrieved by the order dt.19.01.2019 passed by learned Additional Sessions Judge Lahar, District Bhind in S.T.No.9/2018, whereby additional charge has been framed under Section 302 of IPC.
2. It is the contention of the learned counsel for the applicants that admittedly deceased Smt. Aradhna was married to Arvind for about 9 years and they were having a daughter from said marriage. On 1.12.2017 Aradhna was brought for post mortem, wherein doctor found that her death was due to cardio respiratory failure and further mentioned that it is to be co-related with the circumstantial evidence as may be desirable. Viscera was preserved and sent to forensic lab. It is submitted that earlier charges were framed on case being committed to learned Additional Sessions Judge under the provisions of Section 306 of IPC but later on prosecution had filed an application under Section 216 of Cr.P.C. on 07.09.2018 to frame charges under Section 302 of IPC. Such charges were framed by the 2 CR.R.No.664/2019 impugned order on the ground that the doctor, who conducted post mortem, has clearly opined that death is to be co-related with the circumstantial evidence and Aradhna had died in her matrimonial home and further in the FSL report aluminum phosphate was found in the viscera.
3. On the basis of such FSL report, charges have been altered and in the alternative charge under Section 302 of IPC has also been framed.
4. It is submitted that charge, as has been framed under Section 302 of IPC, is not sustainable in the light of the law laid down in the case of Jasvinder Saini and others Vs. State (Government of NCT of Delhi) as reported in (2013) 3 SCC (Cri) 295, wherein in para 15 it has been held that the ingredients constituting the offence under Section 304-B and Section 302 of IPC are different thereby demanding appreciation of evidence from the prospective relevant to such ingredients. It has also distinguished the directions given in the case of Rajbir Vs. Stsate of Haryana as reported in (2010) 15 SCC 116 and therefore it is submitted that since charge under Section 302 of IPC is not made out, it deserves to be quashed.
5. Reliance has also been placed on the judgment of Hon'ble High Court in the case of Vijay Awasthi & Another Vs. State of M.P. and another as reported in 2017 (1) Cr.L.R. (M.P.) 67, wherein in para 14, the coordinate Bench of this court has held that 3 CR.R.No.664/2019 there is nothing in the post-mortem report or any ballistic expert report which would negated the possibility of the suicide. Learned trial court seems to have framed a charge under Section 302 of the I.P.C. by way of abundant caution; however, in the facts of the case, that appears unwarranted. It has been held that framing of charge under Section 302 of I.P.C., in the alternative, would only serve to confuse the issues during the trial.
6. Learned Public Prosecutor on the other hand opposes the revision and prays for its dismissal.
7. Mother of the deceased Smt. Guddibai has clearly alleged that poison was administered to her daughter by the accused persons. When this statement of Guddibai recorded under Section 161 of Cr.P.C. is read with post mortem report, wherein death has been sought to be co-related with the circumstantial evidence, then it can not be said at this stage that whether deceased had consumed poison on her own volition with a view to committ suicide or was administered poison with a view to kill her. This being distinguishable in facts needs to be examined during trial as to whether deceased was administered poison or she consumed poison on her own.
8. Hon'ble Supreme Court in the case of Virendra Kumar Vs. State of U.P. as reported in 2007 Cri.L.J.1435 in para 11 has held as under :-
4CR.R.No.664/2019
"11. So far as the question as to the effect of no charge having been framed under Section 306 is concerned the effect of Section 222 (2) and Section 464 of Cr.P.C. cannot be lost sight of. In Dalbir Singh's case (supra) it was inter alia noted as follows:
"Here the Court proceeded to examine the question that if the accused has been charged under Section 302 IPC and the said charge is not established by evidence, would it be possible to convict him under Section 306 IPC having regard to Section 222 Cr.P.C. Sub-section (1) of Section 222 lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub-section (2) of the same Section lays down that when a 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 5 CR.R.No.664/2019 any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. In Lakhjit Singh (supra) though Section 464 Cr.P.C. has not been specifically referred to but the Court altered the conviction from 302 to 306 IPC having regard to the principles underlying in the said Section. In Sangaraboina Sreenu (supra) the Court completely ignored to consider the provisions of Section 464 Cr.P.C. and keeping in view Section 222 Cr.P.C. alone, the conviction of the appellant therein under Section 306 IPC was set aside.
17. There arc a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC."
9. Therefore, at the out set, it can not be said that the learned Additional Sessions Judge erred in framing charge under Section 302 of IPC specially looking to the fact that it is a case of an abnormal death of a young lady and if death is other than in normal circumstances, then it can not be said that charge under Section 302 6 CR.R.No.664/2019 or Section 306 of IPC, as the circumstances of the case call for, could not be framed.
10. In view of such facts, since there is prima facie material in the form of statement of Guddibai coupled with FSL report showing injection of poison, its source is yet to be determined and therefore at this stage framing of charge under Section 302 of IPC can not be faulted with. Therefore, revision fails and is dismissed.
(Vivek Agarwal)
SP Judge
SANJEEV
KUMAR PHANSE
2019.05.25
10:43:17 +05'30'