Munna Choudhary Vs. State of Bihar - Court Judgment

Excerpt:
indian penal code, 1860 - sections 306, 304-b and 201--offence thereunder--conviction and sentence--legality of--no material record available to show that accused had committed murder of deceased--accused was not examined for the said offence--since no question relating to offence under section 306 was put the appellant in examination--held, conviction and sentence of the accused under section 306 of the code would not be maintainable. - prabhat kumar sinha, j.1. this appeal is directed against the judgment recorded in sessions trial no. 244 of 1997/08 of 1997 where under the iind additional sessions judge at aurangabad had found the appellant guilty under section 306 of the indian penal code ('the code', in short) and had sentenced him to undergo rigorous imprisonment for 10 years while acquitting other accused-persons.2. the short argument of the earned counsel for the appellant is that the appellant with two others was charged under sections 304b and 201 of the code but in the judgment the learned trial court did not find the charges to have been proved but came to the conclusion that the offence was proved under section 306 of the code so much so that the appellant, the husband of deceased, could be said to have abetted commission of suicide by his wife for demanding rs. 2,000/- which, as allegation goes, the brother of the deceased had taken from the husband side for depositing in a peerless policy but had not so deposited.3. on discussion of the evidence that was brought on the record, the learned lower court came to the conclusion that there was no material on record to find that the accused-persons had committed murder of the deceased and so far as charge under section 304b of the code was concerned, the ingredients for establishing that charge were not proved so much so that demand of dowry also was not proved. holding that, the learned lower court, in the concluding part of the judgment, observed that even then the demand for rs. 2,000/- was the cause of committing suicide by the wife, hence the husband had abetted that suicide. holding this much learned lower court ordered as follows:as such charge under section 304b, i.p.c. is amended to the charge under section 306 of indian penal code since the defence is not prejudiced because there is ample evidence on the record so i find and hold that the accused munna choudhary is guilty for the offence committed under section 306, i.p.c....4. no doubt at any stage of the trial before the judgment is pronounced, the trial court may alter or add to any charge under the provision of section 216 of the code of criminal procedure ('cr.p.c.', in short). but, under this provision every such alteration or addition has to be read over and explained to the accused and, under section 217 of the cr.p.c., in such a situation, either side to a criminal proceeding has to be allowed to recall or re-summon, and examine any witness who has been examined, with reference to such alteration or addition. obviously while ordering amendment of the charge in the last paragraphs of the judgment, the learned lower court did not follow this provision.5. in such circumstance, the only provision that is available to a court to convict an accused for an offence for which charge has not been framed, is under section 222 of the cr.p.c. however, offence under section 306 of the code cannot be said to be a minor offence in relation to the charge under section 304b, and is definitely not a minor offence in relation to section 201 of the code. offence under section 306 is quite distinct one and the ingredients for proving this are quite different from that of offence under section 304b or section 201 of the code. this being so, the accused in that manner could not have been convicted under section 306 of the code. this finds support from a decision of the supreme court in the case of sangreboyan sreenu v. state of andhra pradesh : 1997crilj3955 , which has been relied upon by the earned counsel for the appellant.6. besides aforesaid, i find from the lower court record that though the appellant has been convicted under section 306 of the code, no question in relation to that offence was put to the appellant in his examination under section 313 of the cr.p.c. the first question asked was that on 3.5.1997 in the morning at village khaira firoz he was torturing the deceased rita devi arid had killed her for not providing him with dowry. the second question asked related to the concealing of the evidence. the third question asked the accused as to what he had to say in defence. therefore, obviously no question was asked to the appellant relating to his abetment to the deceased for her committing suicide. under such circumstance, when the question relating to the offence under section 306 of the code was not put to the appellant in his examination under section 313 of the cr.p.c., the evidence in that regard could not have been considered for proving him guilty, if reference is required in this regard, that could be seen in a decision of the apex court in the case of sarad birdhichand sarad v. the state of maharastra : 1984crilj1738 , and in a decision of this court in the case of fateh mian v. the state of bihar 1988(2) p.l.j.r. 421.7. in either view of the matter, i don't find that the conviction and sentence of the accused under section 306 of the code is maintainable.8. in the result, this appeal succeeds and is allowed and the impugned judgment including orders of conviction and sentence of the appellant is hereby set-aside. the appellant is acquitted and ordered to be set at liberty, if not required in any other case.

Judgment:

Prabhat Kumar Sinha, J.

1. This appeal is directed against the judgment recorded in Sessions Trial No. 244 of 1997/08 of 1997 where under the IInd Additional Sessions Judge at Aurangabad had found the appellant guilty under Section 306 of the Indian Penal Code ('the Code', in short) and had sentenced him to undergo rigorous imprisonment for 10 years while acquitting other accused-persons.

2. The short argument of the earned Counsel for the appellant is that the appellant with two others was charged under Sections 304B and 201 of the Code but in the judgment the learned trial Court did not find the charges to have been proved but came to the conclusion that the offence was proved under Section 306 of the Code so much so that the appellant, the husband of deceased, could be said to have abetted commission of suicide by his wife for demanding Rs. 2,000/- which, as allegation goes, the brother of the deceased had taken from the husband side for depositing in a Peerless policy but had not so deposited.

3. On discussion of the evidence that was brought on the record, the learned lower Court came to the conclusion that there was no material on record to find that the accused-persons had committed murder of the deceased and so far as charge under Section 304B of the Code was concerned, the ingredients for establishing that charge were not proved so much so that demand of dowry also was not proved. Holding that, the learned lower Court, in the concluding part of the judgment, observed that even then the demand for Rs. 2,000/- was the cause of committing suicide by the wife, hence the husband had abetted that suicide. Holding this much learned lower Court ordered as follows:

As such charge under Section 304B, I.P.C. is amended to the charge under Section 306 of Indian Penal Code since the defence is not prejudiced because there is ample evidence on the record so I find and hold that the accused Munna Choudhary is guilty for the offence committed under Section 306, I.P.C....

4. No doubt at any stage of the trial before the judgment is pronounced, the trial Court may alter or add to any charge under the provision of Section 216 of the Code of Criminal Procedure ('Cr.P.C.', in short). But, under this provision every such alteration or addition has to be read over and explained to the accused and, under Section 217 of the Cr.P.C., in such a situation, either side to a criminal proceeding has to be allowed to recall or re-summon, and examine any witness who has been examined, with reference to such alteration or addition. Obviously while ordering amendment of the charge in the last paragraphs of the judgment, the learned lower Court did not follow this provision.

5. In such circumstance, the only provision that is available to a Court to convict an accused for an offence for which charge has not been framed, is under Section 222 of the Cr.P.C. However, offence under Section 306 of the Code cannot be said to be a minor offence in relation to the charge under Section 304B, and is definitely not a minor offence in relation to Section 201 of the Code. Offence under Section 306 is quite distinct one and the ingredients for proving this are quite different from that of offence under Section 304B or Section 201 of the Code. This being so, the accused in that manner could not have been convicted under Section 306 of the Code. This finds support from a decision of the Supreme Court in the case of Sangreboyan Sreenu v. State of Andhra Pradesh : 1997CriLJ3955 , which has been relied upon by the earned Counsel for the appellant.

6. Besides aforesaid, I find from the lower Court record that though the appellant has been convicted under Section 306 of the Code, no question in relation to that offence was put to the appellant in his examination under Section 313 of the Cr.P.C. The first question asked was that on 3.5.1997 in the morning at village Khaira Firoz he was torturing the deceased Rita Devi arid had killed her for not providing him with dowry. The second question asked related to the concealing of the evidence. The third question asked the accused as to what he had to say in defence. Therefore, obviously no question was asked to the appellant relating to his abetment to the deceased for her committing suicide. Under such circumstance, when the question relating to the offence under Section 306 of the Code was not put to the appellant in his examination under Section 313 of the Cr.P.C., the evidence in that regard could not have been considered for proving him guilty, if reference is required in this regard, that could be seen in a decision of the apex Court in the case of Sarad Birdhichand Sarad v. The State of Maharastra : 1984CriLJ1738 , and in a decision of this Court in the case of Fateh Mian v. The State of Bihar 1988(2) P.L.J.R. 421.

7. In either view of the matter, I don't find that the conviction and sentence of the accused under Section 306 of the Code is maintainable.

8. In the result, this appeal succeeds and is allowed and the impugned judgment including orders of conviction and sentence of the appellant is hereby set-aside. The appellant is acquitted and ordered to be set at liberty, if not required in any other case.