SUPREME COURT OF INDIA
Virendra Kumar
Vs
State of Utar Pradesh
Crl.A.No.69 of 2007
(Arijit Pasayat and S. H. Kapadia, JJ)
16.01.2007
JUDGMENT
Dr.Arijit Pasayat, J.
S.L.P.(Crl.)No.435 of 2006
1. Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Allahabad High Court allowing the appeal filed by the appellant in part by setting aside his conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 and instead convicting him for offence punishable under Section 306 Indian Penal Code, 1860. He was sentenced to undergo imprisonment for ten years. Appellant and another accused, namely, Jai Narain faced trial for alleged commission of offence punishable under Section 302 Indian Penal Code, 1860. During pendency of the appeal before the High Court aforesaid Jai Narain died and, therefore, the appeal stood abated so far as he is concerned.
3. Background facts in a nutshell are as follows:
“The informant Sheo Karan (PW-1)'s niece Smt. Pushpa (hereinafter referred to as 'deceased') was married to the appellant Virendra Kumar, son of Jai Narain in village Chirli, Police Station Ghatampur. Immediately after the marriage Virendra Kumar, , his brother Suresh Kumar used to humiliate Smt. Pushpa and her other family members for bringing inadequate dowry and for being of a dark complexion. They even publicly abused the informant in village Chirli and threatened to end their relations with Smt. Pushpa, the deceased. This public humiliation was witnessed by Sahdev Singh (PW-3) and Prahlad Singh (PW-5), residents of Rajepur and Suresh, Bhanu Pratap Dixit (PW-4) and many others of village Chirli, About one and a half month prior to the fateful event Anil Kumar brought Smt. Pushpa to her Sasural in village Chirli. On 7.10.1982 at about 7 A.M. on information being sent by Bhanu Pratap Dixit (PW-4), the informant Sheo Karan (PW-2) reached village Chirli where he found the dead body of Smt. Pushpa. Four fingers of her right hand were burnt and on her hands and legs there were some marks of injuries. There was also a deep mark of hanging on the neck which showed that Smt. Pushpa had been beaten and thereafter done to death. Although the appellant Virendra Kumar was present in the village, from the morning of the fateful day (7.10.1982) he was absent. Hence it was inferred by the informant that appellant in conspiracy with his elder brother Suresh had murdered Smt. Pushpa after taking help of some accomplices. The report to this effect was lodged by Sheo Karan Shukla on 7.10.1982 at police out post Sarh, police station Ghatampur, District Kanpur.
4. However, prior to this report, on 7.10.1982 at about 10 A.M., the co-accused
Jai Narain gave an information at the police chauki Sarh of police station
Ghatampur that in the night intervening 6-7 October, 1982, the deceased Smt.
Pushpa placed her dhoti in an iron ring on the roof and thereafter she tied her
own neck with the same and committed suicide and her body was still hanging
from the ring on that roof with the Sari. On getting this information, the
first investigating officer SI Ajab Singh (P.W.-8) reached the house of Jai
Narain. He found the dead body hanging from a ring in the 'Dhanni' in the
western Verandah by means of a Dhoti, which was tied on the neck. The body was
taken down and inquest was performed on it by SI Ajab Singh. The opinion of the
inquest witnesses was taken and also the body was sent along with the concerned
papers for post mortem through Constables Kailash Chandra and Radhey Shyam. The
injuries on the dead body were indicated in the inquest. The place where the
body was found hanging was inspected by SI Ajab Singh (P.W.-8) who also
prepared site plan. He recorded the statement of Jai Singh and his wife. As it
had become late, the investigating officer returned to the police station.
Thereafter the investigation was conducted by SSI Jogendra Singh (P.W.- 9). As
Smt. Pushpa had tied the knot with the Dhoti that she was wearing, hence it was
not taken into possession, but it was sent along with the body of the deceased
for post mortem.
5. Dr. R.K. Gupta (PW-6), Medical Officer, ESI Dispensary Kanpur conducted post
mortem on the body of Smt. Pushpa on 8.10.1992 at 12.45 p.m. at the E.S.I.
Dispensary in Kanpur.
6. SI Jogendra Singh (P.W.9) was handed over the investigation of this case by
order of the Superintendent of Police, Kanpur Dehat dated 11.10.1982 on an
application by Sheo Karan of the same date, and he commenced the investigation
on 15.10.1982. After that effort was made to trace the accused persons, but
they could not be arrested. As some of the witnesses were absent on that date,
their statements could not be recorded and the police of Chauki Sarh was
directed to produce the witnesses at the police station. On 3.11.1982 SI
Jogendra Singh recorded the statements of Sheo Karan, Sahdeo, Deshraj Singh and
Bhagwan Deen at the police station under Section 161 of the Code of
Criminal Procedure, 1973. On 24.11.1982 he recorded the statement of Prahlad
and others. As he could not find the accused in spite of search, hence he
obtained order under Sections 82 and 83 Code Of Criminal Procedure, 1973.
for attachment of their property on 27.11.1982. On 17.12.1982 appellant
Virendra Kumar surrendered in Court. After completion of investigation. S. I.
Jogendra Singh submitted the charge sheet. The trial court found that on the
basis of circumstances highlighted, the prosecution has established the
accusations and therefore held the accused persons guilty and sentenced each to
undergo imprisonment for life. As noted above the two accused persons preferred
appeal before the Allahabad High Court which partially allowed the appeal. The
High Court noted that though there was no specific charge in terms of Section
306 Indian Penal Code, 1860, the ingredients of the said provision were
clearly made out and the appellant had abetted commission of suicide by the
deceased. Though a stand was taken by the appellant before the High Court that
since he had only been charged under Section 302 Indian Penal Code, 1860,
he could not be convicted under Section 306 Indian Penal Code, 1860, the
High Court did not find any substance in view of several decisions of this
Court. We shall deal with the decisions referred to, by the High Court, infra.
7. In support of the appeal learned counsel for the appellant submitted that
the High Court acted in terms of presumption available in law under Section
113A of the Indian Evidence Act, 1872. In the instant case, the offence
was committed on 7.10.1982 when the provision i.e. Section 113A was not in the
statute book. In fact, the statement under Section 313 Code Of Criminal
Procedure, 1973. was recorded on 2.11.1983. Reference is also made to a
decision of this Court in Shamnsaheb M. Multtani v. State of Karnataka1 to
contend that in the absence of specific charge under Section 306 Indian
Penal Code, 1860, the appellant could not have been convicted in terms of that
provision. Learned counsel for the respondent-State on the other hand submitted
that in the instant case the prosecution did not rely on the presumption
available under Section 113A of the Indian Evidence Act, 1872 and the
materials on record clearly established commission of the offence by the
appellant, even without resort to Section 113A of the Indian Evidence Act,
1872. It is further submitted that the controversy now raised is settled by a
three-judge Bench of this Court in Dalbir Singh v. State of U.P2 .
8. Though learned counsel for the appellant submitted that the evidence was
even otherwise insufficient to fasten the guilt on the appellant and on a bare
perusal of the judgment of the trial court and the High Court, it is clear that
the materials brought on record clearly formed a complete chain of
circumstances which unerringly pointed out at the accused- appellant being the
author of the crime. Therefore there is no infirmity in the analysis done by
the trial court and the High Court in analyzing the evidence.
9. The residual question relates to the applicability of Section 113A of the Indian
Evidence Act, 1872 and the question as to whether in the absence of the
specific charge under Section 306 Indian Penal Code, 1860, the appellant
could be convicted though he was only charged in terms of Section 302 Indian
Penal Code, 1860.
10. 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 Indian Penal Code, 1860 and
the said charge is not established by evidence, would it be possible to convict
him under Section 306 Indian Penal Code, 1860 having regard to
Section 222 Code Of Criminal Procedure, 1973. 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 Code Of Criminal Procedure, 1973. 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 Code Of Criminal
Procedure, 1973. 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. In Lakhjit Singh
(supra) though Section 464 Code Of Criminal Procedure, 1973 has not
been specifically referred to but the Court altered the conviction from 302 to
306 Indian Penal Code, 1860 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 Code Of
Criminal Procedure, 1973 and keeping in view Section 222 Code Of
Criminal Procedure, 1973. alone, the conviction of the appellant therein under
Section 306 Indian Penal Code, 1860 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 Code Of Criminal Procedure, 1973., 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 Indian Penal Code, 1860, he
cannot be convicted for the offence under Section 306 Indian Penal Code,
1860."
11. It is to be noted that in view of apparent conflict in the views expressed
by two Judge Bench decisions in Sangaraboina Sreenu v. State of A.P3. and Lakhjit
Singh and Another v. State of Punjab4 the
matter was referred to a three Judge Bench in Dalbir Singh's case (supra)
12. There is no dispute that the circumstances are relatable to Section 306 Indian
Penal Code, 1860 which were clearly put to the appellant during his
examination under Section 313 of Code Of Criminal Procedure, 1973.
13. Particular reference may be made to question Nos. 4, 7, 8, 9, 16 and 22 in the examination under Section 313 of the Code Of Criminal Procedure, 1973. and the answers given by the appellant. The incriminating materials relating to torture, harassment and demand of dowry were specifically brought to the notice of the appellant during such examination.
14. In support of his stand, the appellant pleaded that deceased had committed
suicide and for this purpose one witness DW1 was examined. It was specifically
stated by him that the appellant's father had asked him to inform PW2 that the
deceased had committed suicide and accordingly he had informed PW2. Even in the
absence of a presumption in terms of Section 113- A of the Indian Evidence
Act, 1872 it is to be noted that the prosecution version was specific to
the extent that the deceased was being taunted by the appellant for not
bringing adequate dowry and/or being of dark complexion. The humiliation and
harassment meted out was described by the deceased when she had gone to her
maternal uncle's house. The evidence of PW-1 i.e. neighbor of the
accused-appellant is also significant. It is clearly stated that the appellant
used to beat his wife i.e. deceased and on the night of occurrence, when he was
sitting on his roof-top he had heard cries of the deceased being beaten, went
to the house of the appellant and he was turned away by the appellant who said
that it was their internal affair and he should mind his own work. To similar
effect was the evidence of PW4- another neighbour.
15. The doctor who conducted the autopsy i.e. PW6, had noted many major
injuries in different parts of body including one mark on the neck. Therefore,
as rightly contended by learned counsel for the respondent-State, even without
reference to Section 113A of the Indian Evidence Act, 1872 the
prosecution version has been established.
16. Above being the position there is no merit in this appeal which is
accordingly dismissed.
1(2001) 2 SCC 0577
2(2004) 5 SCC 0334
3(1997) 5 SCC 0348
4(1994) Supp.1 SCC 0173