VIRENDRA KUMAR v. STATE OF U.P

Citation: [2007] 1 S.C.R. 970

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, S.H. KAPADIA

Case summary

VIRENDRA KUMAR v. STATE OF U.P.pdf

Judgment text

VIRENDRA KUMAR v. STATEOFU. P. JANUARY 16, 2007 [DR. ARIJIT PASAYAT AND S. H. KAPADIA, JJ. ] Penal Code, 1860-s. 306-Conviction under on presumption under - Section 113-A ofEvidence Act-Jn absence ofspecific charge thereunder- Propriety of-Held: Such conviction was permissible-Even in absence of presumption in terms of s. 113-A, the circumstances of the case were relatable to s. 306-Evidence Act, 1872-s 113-A-Code of Criminal Procedure, 1973-ss. 222(2) and 464. Appellant-accused with another co-accused (his father) wa. s charged fl of having caused death of his wife (deceased). Appellant, after his marriage with the deceased used to humiliate the deceased and her family members for bringing inadequate dowry and for being ofdark complexion. They had also publicly abused the informant-PW-1 and the same was witnessed by many PWs. On the date ofevent PW 1 got an information that the deceased had committed suicide.

PW-1 seeing several injuries on the body of the deceased inferred she was done to death by the appellant in conspiracy with his elder brother. Complaint was lodged by him. Prior to this report the coaccused had given an information that the deceased had committed suicide by hang~ng. Doctor noted major injuries on the body of the deceased. During trial incriminating materials relating to torture, harassment and demand of dowry were brought to the notice of appellant during his examination under Section 313 Cr. P. C. Neighbours of the appellant also deposed th&t appellant used to beat his wife. Trial Court convicted both the accused under Section 302 IPC. In appeal, High Court set aside the conviction under Section 302 and convicted the accused under Section 306 IPC on presumption in terms ofs. 113-A of Evidence Act. Co-accused had died during pendency ofappeal before High Court.

In appeal to this Court, the question for determination was whether the High Court was correct in convicting the accused under Section 306 IPC in absence of specific charge thereunder. '/ I VIRENDRA KUMARv. STATE 971 Dismissing the appeal, the Court HELD: I. Even without reference to Section l 13A of the Evidence Act the prosecution version has been established. So far as the question as to the effect of no charge having been framed under Section 306 is concerned the effect ofSection 222(2) and Section 464 ofCr. P. C. cannot be lost sight of. [Paras 17 & 12) [978-B, 975-E] Dalbir Singh v. State of U. P, [2004) 5 SCC 334, relied on. Shamnsaheb M Multtani v. State of Karnataka, [2001) 2 SCC 577, referred to. 2. The circumstances are relatable to Section 306 IPC which were clearly put to the appellant during his examination under Section 313 . Cr. P. C.

The incriminating materials relating to torture, harassment and demand of dowry were specifically brought to the notice of the appellant during such examination. [Paras 14 & 15] (977-C-E] 3. In support of his stand, the appellant pleaded that deceased had committed suicide and for this purpose one witness DWI 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 Evidence Act 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 neighbour of the accused-appellant clearly stated that the appellant used to beat his wife i. e.

deceased and on the night ofoccurrence, when he was sitting on his roof-top he had heard cries ofthe 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. 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. [Paras 16 & 17] [977-E-H, 978-A-B] ~ ' f CRIMINAL APPELLATE WRlSDICTION : Criminal Appeal No. 69 of . ;,.. 2007. From the Judgment and final Order dated 30. 9. 2005 of the High Court of Judicature at Allahabad in Crl. A. No. 493/1984. S. B. Maheshwari, R. K. Maheshwari, Rishi Maheshwari, Tarannum Ansari and Raj Kumar Kaushik for the Appellant. .. Ratnaker, Atiqwe Rahman, Javed M. Rao, Shahid Ali Rao and Musharrat Chaudhary, for the Respondent. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. : I.

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 (in short the 'IPC') and instead convicting him for offence punishable under Section 306 IPC. 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 IPC. 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: 4. The informant Sheo Karan (PW-l)'s niece Smt. Pushpa (hereinafter referred to as 'deceased') was married to the appellant Virendra Kumar, son ofJai Narain in village Chirli, Police Station Ghatampur.

Immediately after the m¥fiage 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 ev~n publicly abused the informant in village Chirli and threatened to end their relations with Smt. Pushpa, 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 tl'ie 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 ofcompetent 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 ofcharges, unless, in the opinion ofthe Court ofappeal, confirmation or revision, a failure ofjustice 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 Cr. P. C. has not been specifically referred to but the Court altered the conviction from section 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 .. occasio.

1ed, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being t 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 Se,ction 302 IPC, he cannot be convicted for the offence under Section 306 IPC. " 13. 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 ofA. P. , [1997] 5 SCC 348 and Lakhjit Singh and Another v. State ofPunjab, [1994] Supp I SCC 173 the matter was referred to a three Judge Bench in Dalbir Singh 's case (supra) 14.

There is no dispute that the circumstances are relatable to Section 306 IPC which were clearly put to the appellant during his examination under Section 313 ofCr. P. C. I 15. Particular reference may be made to question Nos. 4,7,8,9,16 and 22 in the examination under Section 313 of the Cr. P. C. 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. 16. In support of his stand, the appellant pleaded that deceased had committed suicide and for this purpose one witness DWI was examined. It was specifically stated by him that the appellant's father had asked him to infonn PW2 that the deceased had committed suicide and accordingly he had informed PW2.

Even in the absence ofa presumption in terms ofSection 113-A ofthe Evidence Act 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-I i. e. .. neighbour 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 PW4another neighbour. 17. 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 I 13A of the Evidence Act the prosecution version has been established. ''y, 18. Above being the position there is no merit in this appeal which is accordingly dismissed. K. K. T. Appeal dismissed. J'