Allahabad High Court
Gur Bachan Singh vs State on 11 January, 2017
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No.40 Court No. - 40 Case :- CRIMINAL APPEAL No. - 892 of 1991 Appellant :- Gur Bachan Singh Respondent :- State Counsel for Appellant :- Veer Singh,Vinod Kumar Shukla Counsel for Respondent :- A.G.A. Hon'ble Bala Krishna Narayana,J.
Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Bala Krisnha Narayana,J.)
1. Heard Sri Pankaj Kumar Tyagi, learned counsel for the appellant, Sri A.N. Mulla, Sri J.K. Upadhyay, Km. Meena, learned AGAs, Mrs. Manju Thakur and Sri Syed Hasan Abidi, brief holders for the State.
2. This criminal appeal is directed against the judgement and order dated 24.04.1991 passed by VIth Additional Sessions Judge, Bijnor in Sessions Trial No. 114 of 1990 ( State Vs. Gur Bachan Singh and another) arising out of case crime no. 259 of 1989 under Section 304B IPC, P.S. Noorpur, District Bijnor by which accused-appellant Gur Bachan Singh was convicted and sentenced to imprisonment for life under Section 302 IPC.
3. Briefly stated the facts of this case are that one Suman, d/o complainant Makhan Singh, r/o Mohalla Govind Nagar, Qasba and P.S. Noorpur was married to the accused appellant Guru Bachan Singh about three years before the incident, which had taken place on 13.08.1989 in which sufficient dowry was given by the complainant- Makhan Singh but the accused-appellant and his mother Smt. Sulochna were not satisfied and soon after Suman's marriage they started ill treating and torturing her on account of her having brought inadequate dowry and demanded two tolas of gold and one television set from her as additional dowry. When Suman communicated the aforesaid demand of additional dowry made from her by her mother in law and her husband to the complainant Makhan Singh on her visit to her paternal home in Bombay, the complainant Makhan Singh sent her back to her matrimonial home with the assurance that he would talk to the accused-appellants. When complainant Makhan Singh returned from Bombay and met his daughter Suman she told him that her mother in law Sulochna and her husband had beat her several times on account of her failure to fulfill their additional demands of dowry, complainant Makhan Singh went to her nuptial home in Noorpur along with Mangu singh, Naunihal Singh and Sea Singh Kashyap and remonstrated with Gur Bachan Singh, whereupon he assured him that henceforth there would be no further harassment of Suman in the matter. However despite the aforesaid assurance accused-appellant Gur Bachan Singh persisted with the maltreatment of Suman for non-fulfillment of additional demands of dowry and turned her out of her matrimonial house which forced her to take shelter in her parental home and live with her parents in Bombay where she gave birth to a male child. The accused-appellant Gur Bachan Singh despite being informed about the birth of his son did not care to come to Bombay to meet his wife and his newly born son. When the complainant returned from Bombay after about three years and three months, accused-appellant Gur Bachan Singh met him and pressurized him to send Suman back with him to her matrimonial home to which complainant Makhan Singh did not agree. However on the intervention of Albel Singh who was instrumental in getting the marriage between the accused-appellant and Suman settled and who had accompanied accused-appellant Gur Bachan Singh to the complainant's house, complainant-Makhan Singh after making it very clear to them that he would not pay even a single penny to the accused-appellant and his mother as dowry in the presence of Harpal Singh, Ganesh Singh, Ajit Singh and Jagdish Singh all residents of his locality, sent his daughter to her nuptial home with his son in law accused appellant Gur Bachan Singh. However accused-appellant Gur Bachan Singh did not mend his ways and about fifteen days before the date of occurrence, he met complainant Makhan Singh and told him that unless a television set and two tolas of gold was given to him, the harassment and maltreatment of his daughter in her nuptial home will continue. The aforesaid conversation between accused-appellant Gur Bachan Singh and the complainant Makhan Singh had taken place in the presence of complainant Makhan Singh's neighbour Sardar Singh and his relatives Fateh Singh, Ganesh Singh and Meharban Singh and thereafter the complainant went to the matrimonial home of Suman with the accused-appellant Gur Bachan Singh where he met accused-appellant's father Mangal Singh who assured him that henceforth will neither Gur Bachan Singh will demand any dowry nor Suman would be harassed or maltreated in connection with any demand of dowry.
4. On 13.08.1989 complainant Makhan Singh received a message from his daughter that her mother in law Smt. Sulochna and her husband accused-appellant Gur Bachan Singh were harassing her. On the same day at about 5.00 p.m. while complainant Makhan Singh was making preparations to go to the matrimonial home of his daughter, his brother-in-law (sala) Mangu Singh came running to him and told him that Suman had been burnt by her husband Gur Bachan Singh and her mother-in-law Smt. Sulochna Singh. On getting the aforesaid information complainant Makhan Singh went running to the nuptial home of her daughter and on reaching there he found his daughter Suman lying in a burnt state and on seeing the complainant Makhan Singh, Smt. Sulochna and accused-appellant Gur Bachan Singh fled away from their house. Complainant Makhan Singh took Suman to the Govt. Hospital Noorpur along with his brother-in-law (sala) Mangu Singh where the doctor on duty after administering her necessary first aid recorded her statement Ext.Ka-2 and thereafter she was referred by him for further treatment to Bijnor Hospital. However Suman expired on way to Bijnor whereupon complainant- Makhan Singh returned with her dead body to her nuptial home where a huge crowd had gathered. On the basis of the written report Ext.Ka-1 given by Naunihal Singh r/o of Noorpur narrating the aforesaid facts at P.S. Noorpur on 13.08.1989, case crime no. 259 of 1989 was registered against the accused-appellant and his mother Smt. Sulochna under Section 304B IPC. Check FIR Ext.Ka-11 and necessary G.D.entry Ext.Ka.-12 were prepared. The post mortem of the dead body of the deceased Suman was conducted on 14.08.1989 at about 2.00 p.m. by PW-6 Dr. S.L.Verma who opined that the deceased had died due to shock and fluid loss due to ante mortem injuries.
5. The investigation of the aforesaid case was entrusted to PW-10 Satish Kumar Shukla, Circle Officer, who recorded the statement of the witnesses, Panchnama of deceased Suman Ext. ka-3 was prepared by Inspector Sri B.P.Tiwari whereafter her dead body was sent to the hospital for conducting the post mortem. He inspected the place of occurrence and prepared the site plan of the place of incident Ext. Ka-8. He also took custody of the burnt clothes of the deceased found at the place of incident along with the container containing kerosene oil and prepared its recovery memo Ext. Ka-8. The Investigating Officer of the case after completing the investigation submitted charge sheet against the accused-appellant Gur Bachan Singh and his mother Smt. Sulochna under Section 304B IPC before the CJM, Bijnor. Since the offence mentioned in the charge sheet was triable exclusively by the Court of Session, CJM, Bijnor committed the case for trial of the accused to the court of Session Judge, Bijnor where it was registered as S.T. No. 114 of 1990, State Vs. Gur Bachan Singh and another and made over for trial to the court of VIth Additional Sessions Judge, Bijnor.
6. After hearing the accused-appellants on the point of framing of charge, learned VIth Additional Sessions Judge, Bijnor on the basis of the material collected during investigation framed charge under Section 304B IPC against both the accused. Both the accused pleaded not guilty and claimed trial.
7. Prosecution in order to prove the charge framed against the accused-appellant examined as many as ten witnesses. PW-1 Makhan Singh (complainant), PW-2 Mangu Singh, PW-3 Albel Singh PW-5 Ashok Kumar, PW-7 Sardar Singh and PW-9 Ashgar as witnesses of fact while PW-6 Dr. S.L.Verma who had conducted the post mortem on the dead body of the deceased, PW-8 Ishwari Singh who had scribed the dying declaration of the deceased and PW-10 Investigating Officer of the case were examined as formal witnesses. All the witnesses of fact produced by the prosecution during the trial, including PW-1 complainant Makhan Singh failed to support the prosecution and were declared hostile on the request of the D.G.C., (Criminal). They were cross examined by DGC (Criminal) with the permission of the trial judge. When confronted with their statements recorded under Section 161 Cr.P.C., in which they had supported the prosecution case, all the seven witnesses of fact disowned their statements under Section 161 Cr.P.C. and denied that the investigating officer had recorded their statements during the investigation.
8. PW-8 Compounder Ishwari Singh, scribe of the dying declaration of the deceased was also declared hostile.
9. Learned VIth Additional Sessions Judge, Bijnor, however after considering the facts and circumstances of the case, the dying declaration of the deceased Ext. Ka-2 and other evidence on record acquitted the accused-appellant of the charge under Section 304B IPC but proceeded to convict him under Section 302 IPC and awarded life sentence to him while co-accused Smt. Sulochna, mother in law of the deceased was acquitted.
10. Hence this criminal appeal.
11. Learned counsel for the appellant has vehemently submitted that the accused-appellant was indicted for causing dowry death of his wife Suman and after all material witnesses turned hostile to prosecution and the offence under Section 304 B IPC was not found to be proved against accused appellant, the trial judge after reaching a cul-de-sac, illegally served over to a different offence i.e. culpable homicide amounting to murder and convicted him under Section 302 IPC without the said offence being put in charge and without calling upon the accused appellant to enter into his defense in respect of said offence. The conviction of the accused appellant under Section 302 IPC hence cannot be sustained and is liable to be set aside.
12. Per contra Sri A.N.Mulla learned AGA submitted that notwithstanding the fact that all the prosecution witnesses produced by the prosecution during the trial were declared hostile after they failed to support the prosecution case during the trial, the guilt of the accused-appellant stood fully established from the dying declaration of the deceased which was scribed by PW-8 Ishwari Singh before PW-6 Dr. S.L.Verma who had certified that the deceased was in a fit, mental and physical condition to make the statement. He further submitted that the learned trial judge rightly convicted the accused-appellant under Section 302 IPC after coming to the conclusion that although on the basis of the evidence on record offence under Section 304B IPC was not made out against the accused-appellant but the evidence on record clearly reflected the commission of offence by the accused-appellant under Section 302 IPC, by taking aid of Section 221(2) of the Cr.P.C.. Sri A.N.Mulla also submitted that in any view of the matter the conviction of the appellants under Section 302 IPC without framing of charge agianst him under the aforesaid offence is clearly maintainable in view of Section 222 of the Cr.P.C.. The finding of guilt recorded by the learned trial judge against accused-appellant is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations and hence the impugned judgment and order do not merit any interference by this Court.
13 We have learned counsel for the parties and perused the entire lower court record.
14. The question raised before us is whether in a case where prosecution failed to prove the charge under Section 304-B IPC, but on the facts the ingredients of Section 302 have winched to the fore, can the Court convict him of that offence in the absence of the said offence being included in the charge.
15. Record of this case reflects that in the instant case accused-appellant Gur Bachan Singh and his mother Smt. Sulochna Singh were charged for an offence under Section 304B IPC, however the trial judge after appreciating and scrutinizing the evidence on record found that the prosecution had failed to prove the charge under Section 304B IPC against accused appellant, however on the facts of the present case, he came to the conclusion that ingredients of Section 302 IPC were winched to the fore and he proceeded to convict the accused appellant under Section 302 IPC without the said offence being included in the charge by taking aid of Section 221(2) of the Cr.P.C. and sentenced him to imprisonment for life.
16. Section 221(2) of the Code of Criminal Procedure deals with the power of a criminal court to convict an accused for an offence which is not included in the charge. The primary condition for application of Section 221(20 of the Code of Criminal Procedure is that the Court should have felt doubt at the time of framing of charge as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case, the section permits "to convict the accused" of the offence of which he is shown to have committed though he was not charged with it.
17. Section 222 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." Subsection (2) deals with a similar, but slightly different situation. "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".
18. The expression "a minor offence" came to be interpreted by the Apex Court in Shamsaheb M Multani Vs. State of Karnataka reported in 2001 Law Suit(SC) 143. In paragraph 16 of the aforesaid judgment the Apex Court has held as hereunder :-
" 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 proved in the section would bring the above point home well. Only if the two offences are cognate offences, wherein themain ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis dthe other offence".
19. The composition of the offence under Section 304B IPC is vastly different from the formation of the offence under Section 304B IPC and hence of course by no stretch of imagination, former can be treated as a minor offences vis-a-vis later. The basic constituent of an offence under Section 302 IPC is homicidal death, while postulates needed to establish an offence under Section 304B IPC are :-
"(1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances the court shall presume that such person had caused dowry death."
20. Under section 304B IPC, the Court has a statutory compulsion merely on the establishment of two factual positions enumerated above to presume that the accused had committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption, the court is bound to act on it.
21. However, in the case where the accused is charged under Section 302 IPC, the burden of proof is and always remains on the prosecution which has to prove the charge beyond all reasonable doubt, In such a case, the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him.
22. In the present case the accused-appellant had no notice of the offence under Section 302 IPC as he was defending a charge under Section 304B IPC alone, which the prosecution had miserably failed to prove by any cogent evidence. The sentences prescribed on conviction under Section 302 IPC are imprisonment for life and capital punishment, whereas the conviction under Section 304B IPC entails a sentence of minimum imprisonment of seven years and maximum sentence of imprisonment for life. For the aforesaid reason the offence under Section 302 IPC cannot be said to be a minor offence vis a vis an offence under Section 304B IPC. Thus the alternative conviction of the accused-appellant recorded by the trial court under Section 302 IPC by invoking the provisions of Section 221 (2) of the code of criminal procedure cannot be sustained. Record of this case reflects that in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 304B IPC at the time of framing of charge. In view of the above the recorded conviction of the accused-appellant by the trial court under Section 302 IPC without framing any charge under the aforesaid offence by taking aid of Section 221 (1) of the Cr.P.C. is not legally sustainable. Similarly, conviction of the appellant under the aforesaid section cannot be justified by taking recourse to Section 222 of the Cr.P.C.. Thus in our opinion the trial court committed a grave error of law in convicting the accused-appellant under Section 302 IPC without framing charge under the aforesaid offence against the appellant and without affording him any opportunity to defend the said charge and hence the recorded conviction of the appellant under Section 302 IPC cannot be sustained and is liable to be set aside.
23. We accordingly, allow this appeal and set aside the judgment and order dated 24.04.1991 passed by VIth Additional Sessions Judge, Bijnor in Sessions Trial No. 114 of 1990 ( State Vs. Gur Bachan Singh and another) arising out of case crime no. 259 of 1989 under Section 304B IPC, P.S. Noorpur, District Bijnor by which accused-appellant Gur Bachan Singh has been convicted under Section 302 IPC and sentenced to life imprisonment. The case is remanded to the court of first instance with a direction to the court concerned to proceed against the accused-appellant (not against Smt. Sulochna whose acquittal remains unchallenged) from the stage of defense evidence, giving opportunity to him to show that the prosecution has failed to make out the offence under Section 302 IPC against him. It goes without saying that considering the fact that this case is of the year 1989, the trial court shall make every possible endeavour to conclude the accused-appellant's trial as expeditiously as possible without granting any unnecessary adjournment to either side, if possible within a period of three months from the date of receipt of this judgment.
24. The office shall remit the entire lower court record to the concerned court within a week from today.
25. There shall however be no order as to costs.
Order Date : 11/01/2017 Abhishek Sri/-