Krishnan Vs. State by Inspector of Police - Court Judgment

SooperKanoon Citationsooperkanoon.com/827359
SubjectCriminal
CourtChennai High Court
Decided OnFeb-16-2001
Case NumberCriminal Appeal No. 505 of 1993
JudgeB. Akbar Basha Khadiri, J.
Reported in2002(1)ALT(Cri)41; II(2002)DMC196
ActsIndian Penal Code (IPC), 1860 - Sections 302, 304B and 306; Evidence Act - Sections 113A
AppellantKrishnan
RespondentState by Inspector of Police
Appellant AdvocateA.D. Jagadish Chandra, Adv.
Respondent AdvocateR. Karthikeyan, Govt. Adv.
DispositionAppeal allowed
Cases ReferredLarger Bench Shamnsaheeb M. Multtani v. State of Karnataka (supra
Excerpt:
- b. akbar basha khadiri, j.1. this appeal coming on for hearing on this day upon perusing the petition of appeal, the record of the evidence and proceedings before the said court of sessions and upon hearing the arguments of mr. a.d. jagadish chandra, advocate for the appellate/accused and of mr. r. karthikeyan, government advocate (crl. side) for the public prosecutor on behalf of the state, the court delivered the following judgment :the accused in s.c. no. 70 of 1999 before the learned ii additional sessions judge, madras, who was convicted and sentenced to undergo rigorous imprisonment for a period of seven years for the offence under section 306, i.p.c. has come forward with the instant appeal.2. the facts of the case briefly stated are as follows :one baby lizie was living with her parents at perambalur. during the month of april, 1972, she was found missing from the house, and subsequently she was traced in royapettah hospital on 9.7.1972 in the emergency ward undergoing treatment for the alleged consumption of hydro chloric acid. the parents who were searching for the girl were informed by the police. the parents went to the hospital on 10.7.1992. baby lizie told her mother that after leaving the house, while she was loitering near the central station, the accused and another two women picked her up and the accused lured her to make her a filmstar and took her to various places. then, he forced her to prostitution. later on, he informed her that he had sold her to a person at bombay for rs. 50,000/- and she should go to bombay. baby lizie refused to go to bombay so she was kept confined in a room. because of her refusal, the second accused usha, caught of her legs and the first accused forcibly administered hydro chloric acid into her mouth, which was kept in the house to clean the toilet. she was brought to the hospital by usha's brother gopal.3. the concerned police initially registered a case in crime no. 998 of under section 326, i.p.c. baby lizie was taking treatment at royapettah hospital from 20.5.1992, but on 20.8/1992 at about 3.00 p.m. she died. then the charges were altered to sections 329 and 302 read with 34, i.p.c. the trial court examined twenty witnesses, marked 26 documents and the bottle which contained the hydro chloric acid was marked as m.o.i. after the trial, the learned sessions judge, came to the conclusion that the case under section 302, i.p.c. was not made out, but it was a case under section 306, i.p.c. accordingly, the learned sessions judge, convicted the accused and sentenced him to undergo 7 years' rigorous imprisonment for the offence under section 306, i.p.c. questioning the correctness of the judgment, the accused preferred this appeal.4. heard both sides.5. the learned counsel appearing for the appellant submitted that section 306, i.p.c. is not a minor or an ancillary offence to section 302, i.p.c. the learned sessions judge, having not framed charges under section 306, i.p.c. ought to have not convicted the appellant for the offence under section 306, i.p.c, in the absence of a charge against him under section 306, i.p.c.6. that question that arises is whether a person charged under section 302, i.p.c. could be convicted for the offence under section 306, i.p.c. without a charge under section 306, i.p.c.7. the learned government advocate (criminal side) drew my attention to the decision reported in lakhjit singh v. state of punjab , wherein their lordships of the apex court have held that the facts and circumstances put forward against the accused in that case and the case put forth by the accused when questioned section 313, cr.p.c. established that there was demand for dowry. their lordships held that it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given by him under section 313, cr.p.c. would show that they had enough of notice of the allegations which attract section 306, lp.c. also. their lordships have also referred to section 113-a of evidence act having regard to the other circumstances of the case that could be presumed under that provision. their lordships also held that the circumstances of that case would show that the accused have been demanding dowry even within a short period after the marriage and the deceased also had to live in her parents house and it is the husband who went and brought her back. the deceased followed him and unfortunately, the incident had taken place. the facts of the case would show that was the case of dowry death. that case has arisen out of a matrimonial dispute between the husband and wife. the death was due to consumption of poison. the prosecution case was that the husband and mother-in-law had forcibly administered poison into the mouth of the deceased. that was a case where the husband and mother-in-law were charged under section 302, i.p.c. their lordships referred to the presumptions that would arise under section 113-a of evidence act and also under section 304-b. further in that case, there was evidence to the effect that the case under section 306, i.p.c. was brought to the knowledge of the accused and, therefore, even without a charge under section 306, i.p.c. the accused could be convicted under section 306, i.p.c. therefore, the conviction of the appellant under section 304 and sentence of the imprisonment for life are set aside. instead, they were convicted under section 306, i.p.c. and each of them is sentenced to undergo r.i. for 5 years.8. in a later decision in sangaraboina sreenu v. state of andhra pradesh, , wherein the accusation against the husband was that he poured kerosene on his wife and set fire to her. the learned sessions judge, convicted the accused for offence under section 302, i.p.c. on an appeal the high court held that, only an offence under section 306, i.p.c. was made out and convicted the accused for the offence under section 306, i.p.c. in that case their lordships of the apex court held that section 306, i.p.c. was not a minor or ancillary offence to section 302, i.p.c. but it is a distinct and different offence and, therefore, without a separate charge framed under section 306, i.p.c. and calling for the accused to answer the charge, the accused could not be convicted for the offence under section 306, i.p.c. therefore, the conviction was set aside and the appellant was set at liberty in that case.9. the learned govt. advocate (criminal side) drew my attention to two another decisions rendered by the apex court reported in shamnsaheeb m. multtani v. state of karnataka, 2000 scc 738, wherein their lordships referred to the earlier two decisions cited supra and in view of the conflicting decisions their lordships directed the matter to be posted before the large bench. accordingly the case came up before larger bench and the larger bench shamnsaheeb m. multtani v. state of karnataka (supra) 2001 sol 049 reported in supreme court on line. on date 24.1.2001 their lordships of the apex court considered both the cases and pointed out that in case of the offence under section 302, i.p.c. the burden squarely lies upon the prosecution to prove the guilt of the accused beyond all reasonable doubt, but, in case of the offence under section 304-b, as per the provisions of section 113-a of evidence act there was a presumption that the death was due to dowry harassment giving an area for the accused to let in rebuttal evidence. their lordships finally opined that an accused who stood charged of offence under section 302, i.p.c. on the basis that he has committed dowry death, then initially the presumption would arise under section 304-a, i.p.c. and, therefore, the accused has an area of jurisdiction to let in rebuttal evidence to show that the death was not due to dowry harassment. in other words in case of death of the wife within 7 years of marriage that would amount to a matrimonial cause and offence and would attract presumption under section 304-b of i.p.c and also presumption under section 113-a of the evidence act, that the death should be due to dowry harassment and if it is a case of suicide there is a presumption that there was abetment by the husband for the wife to commit suicide.10. the facts of the case on hand are distinct and different from the facts of the decisions cited supra. this is a case where it is simply stated that three persons are alleged to have caused death of a young girl. the accused was charged for the offence under section 302, i.p.c. no presumption under section 304-b of evidence act or presumption under section 113-a of evidence act could be drawn in this case. the burden is squarely upon the prosecution to prove that the accused caused the death of the deceased within the intention to cause her death and satisfy that the ingredients necessary to attract offence under section 302, i.p. c. have been established. if the prosecution fails to do so, then it has to be held that the prosecution has not proved the guilt of the accused and ultimately the course that is open is to acquit the accused. once the prosecution fails to prove section 302, i.p.c. it cannot be said that without any evidence and without charge the accused can be convicted for the offence under section 306, i.p.c. since under section 306, i.p.c. is not a minor offence which could be covered by a charge under section 302, i.p.c. section 306 is a distinct and different offence, the accused having been tried for offence under section 302, i.p.c. he cannot be convicted for the offence under section 306, i.p.c. in that view of the matter, i am inclined to allow this appeal. the judgment passed by the learned sessions judge in s.c. no. 70 of 1993 is set aside. the conviction and sentence are, therefore, set aside. the accused shall be set at liberty for with, if he is not required in any other case.
Judgment:

B. Akbar Basha Khadiri, J.

1. This appeal coming on for hearing on this day upon perusing the petition of appeal, the record of the evidence and proceedings before the said Court of Sessions and upon hearing the arguments of Mr. A.D. Jagadish Chandra, Advocate for the appellate/accused and of Mr. R. Karthikeyan, Government Advocate (Crl. Side) for the Public Prosecutor on behalf of the State, the Court delivered the following judgment :

The accused in S.C. No. 70 of 1999 before the learned II Additional Sessions Judge, Madras, who was convicted and sentenced to undergo rigorous imprisonment for a period of seven years for the offence under Section 306, I.P.C. has come forward with the instant appeal.

2. The facts of the case briefly stated are as follows :

One Baby Lizie was living with her parents at Perambalur. During the month of April, 1972, she was found missing from the house, and subsequently she was traced in Royapettah Hospital on 9.7.1972 in the emergency ward undergoing treatment for the alleged consumption of Hydro Chloric Acid. The parents who were searching for the girl were informed by the police. The parents went to the hospital on 10.7.1992. Baby Lizie told her mother that after leaving the house, while she was loitering near the Central Station, the accused and another two women picked her up and the accused lured her to make her a filmstar and took her to various places. Then, he forced her to prostitution. Later on, he informed her that he had sold her to a person at Bombay for Rs. 50,000/- and she should go to Bombay. Baby Lizie refused to go to Bombay so she was kept confined in a room. Because of her refusal, the second accused Usha, caught of her legs and the first accused forcibly administered Hydro Chloric Acid into her mouth, which was kept in the house to clean the toilet. She was brought to the hospital by Usha's brother Gopal.

3. The concerned police initially registered a case in Crime No. 998 of under Section 326, I.P.C. Baby Lizie was taking treatment at Royapettah Hospital from 20.5.1992, but on 20.8/1992 at about 3.00 p.m. she died. Then the charges were altered to Sections 329 and 302 read with 34, I.P.C. The Trial Court examined twenty witnesses, marked 26 documents and the bottle which contained the Hydro Chloric Acid was marked as M.O.I. After the trial, the learned Sessions judge, came to the conclusion that the case under Section 302, I.P.C. was not made out, but it was a case under Section 306, I.P.C. Accordingly, the learned Sessions judge, convicted the accused and sentenced him to undergo 7 years' rigorous imprisonment for the offence under Section 306, I.P.C. Questioning the correctness of the judgment, the accused preferred this appeal.

4. Heard both sides.

5. The learned Counsel appearing for the appellant submitted that Section 306, I.P.C. is not a minor or an ancillary offence to Section 302, I.P.C. The learned Sessions Judge, having not framed charges under Section 306, I.P.C. ought to have not convicted the appellant for the offence under Section 306, I.P.C, in the absence of a charge against him under Section 306, I.P.C.

6. That question that arises is whether a person charged under Section 302, I.P.C. could be convicted for the offence under Section 306, I.P.C. without a charge under Section 306, I.P.C.

7. The learned Government Advocate (Criminal Side) drew my attention to the decision reported in Lakhjit Singh v. State of Punjab , wherein their Lordships of the Apex Court have held that the facts and circumstances put forward against the accused in that case and the case put forth by the accused when questioned Section 313, Cr.P.C. established that there was demand for dowry. Their Lordships held that it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given by him under Section 313, Cr.P.C. would show that they had enough of notice of the allegations which attract Section 306, LP.C. also. Their Lordships have also referred to Section 113-A of Evidence Act having regard to the other circumstances of the case that could be presumed under that provision. Their Lordships also held that the circumstances of that case would show that the accused have been demanding dowry even within a short period after the marriage and the deceased also had to live in her parents house and it is the husband who went and brought her back. The deceased followed him and unfortunately, the incident had taken place. The facts of the case would show that was the case of dowry death. That case has arisen out of a matrimonial dispute between the husband and wife. The death was due to consumption of poison. The prosecution case was that the husband and mother-in-law had forcibly administered poison into the mouth of the deceased. That was a case where the husband and mother-in-law were charged under Section 302, I.P.C. Their Lordships referred to the presumptions that would arise under Section 113-A of Evidence Act and also under Section 304-B. Further in that case, there was evidence to the effect that the case under Section 306, I.P.C. was brought to the knowledge of the accused and, therefore, even without a charge under Section 306, I.P.C. the accused could be convicted under Section 306, I.P.C. Therefore, the conviction of the appellant under Section 304 and sentence of the imprisonment for life are set aside. Instead, they were convicted under Section 306, I.P.C. and each of them is sentenced to undergo R.I. for 5 years.

8. In a later decision in Sangaraboina Sreenu v. State of Andhra Pradesh, , wherein the accusation against the husband was that he poured kerosene on his wife and set fire to her. The learned Sessions Judge, convicted the accused for offence under Section 302, I.P.C. On an appeal the High Court held that, only an offence under Section 306, I.P.C. was made out and convicted the accused for the offence under Section 306, I.P.C. In that case their Lordships of the Apex Court held that Section 306, I.P.C. was not a minor or ancillary offence to Section 302, I.P.C. but it is a distinct and different offence and, therefore, without a separate charge framed under Section 306, I.P.C. and calling for the accused to answer the charge, the accused could not be convicted for the offence under Section 306, I.P.C. Therefore, the conviction was set aside and the appellant was set at liberty in that case.

9. The learned Govt. Advocate (Criminal Side) drew my attention to two another decisions rendered by the Apex Court reported in Shamnsaheeb M. Multtani v. State of Karnataka, 2000 SCC 738, wherein their Lordships referred to the earlier two decisions cited supra and in view of the conflicting decisions their Lordships directed the matter to be posted before the Large Bench. Accordingly the case came up before Larger Bench and the Larger Bench Shamnsaheeb M. Multtani v. State of Karnataka (supra) 2001 SOL 049 reported in Supreme Court on line. On date 24.1.2001 their Lordships of the Apex Court considered both the cases and pointed out that in case of the offence under Section 302, I.P.C. the burden squarely lies upon the prosecution to prove the guilt of the accused beyond all reasonable doubt, but, in case of the offence under Section 304-B, as per the provisions of Section 113-A of Evidence Act there was a presumption that the death was due to dowry harassment giving an area for the accused to let in rebuttal evidence. Their Lordships finally opined that an accused who stood charged of offence under Section 302, I.P.C. on the basis that he has committed dowry death, then initially the presumption would arise under Section 304-A, I.P.C. and, therefore, the accused has an area of jurisdiction to let in rebuttal evidence to show that the death was not due to dowry harassment. In other words in case of death of the wife within 7 years of marriage that would amount to a matrimonial cause and offence and would attract presumption under Section 304-B of I.P.C and also presumption under Section 113-A of the Evidence Act, that the death should be due to dowry harassment and if it is a case of suicide there is a presumption that there was abetment by the husband for the wife to commit suicide.

10. The facts of the case on hand are distinct and different from the facts of the decisions cited supra. This is a case where it is simply stated that three persons are alleged to have caused death of a young girl. The accused was charged for the offence under Section 302, I.P.C. No presumption under Section 304-B of Evidence Act or presumption under Section 113-A of Evidence Act could be drawn in this case. The burden is squarely upon the prosecution to prove that the accused caused the death of the deceased within the intention to cause her death and satisfy that the ingredients necessary to attract offence under Section 302, I.P. C. have been established. If the prosecution fails to do so, then it has to be held that the prosecution has not proved the guilt of the accused and ultimately the course that is open is to acquit the accused. Once the prosecution fails to prove Section 302, I.P.C. it cannot be said that without any evidence and without charge the accused can be convicted for the offence under Section 306, I.P.C. since under Section 306, I.P.C. is not a minor offence which could be covered by a charge under Section 302, I.P.C. Section 306 is a distinct and different offence, the accused having been tried for offence under Section 302, I.P.C. he cannot be convicted for the offence under Section 306, I.P.C. In that view of the matter, I am inclined to allow this appeal. The judgment passed by the learned Sessions Judge in S.C. No. 70 of 1993 is set aside. The conviction and sentence are, therefore, set aside. The accused shall be set at liberty for with, if he is not required in any other case.