Virendra Kumar Vs. State of
U.P  Insc 43 (16
Arijit Pasayat & S.H. Kapadia (Arising out of Slp (Crl.) No.435 Of 2006) Dr.
Arijit Pasayat, J.
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.
sentenced to undergo imprisonment for ten years.
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.
facts in a nutshell are as follows:
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.
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.
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
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
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 (in short the
'Cr. P.C'). On 24.11.1982 he recorded the statement of Prahlad and others.
could not find the accused in spite of search, hence he obtained order under
Sections 82 and 83 Cr.P.C. 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.
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 IPC, 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 IPC, he could
not be convicted under Section 306 IPC, 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.
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 short the 'Evidence Act'). In the instant case,
the offence was committed on 7.10.1982 when the provision i.e.
113A was not in the statute book. In fact, the statement under Section 313 Cr.P.C.
was recorded on 2.11.1983. Reference is also made to a decision of this Court
in Shamnsaheb M. Multtani v. State of Karnataka (2001(2) SCC 577) to contend
that in the absence of specific charge under Section 306 IPC, 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
Evidence Act and the materials on record clearly established commission of the
offence by the appellant, even without resort to Section 113A of the Evidence
Act. 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.P. [2004(5) SCC
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.
residual question relates to the applicability of Section 113A of the Evidence
Act and the question as to whether in the absence of the specific charge under
Section 306 IPC, the appellant could be convicted though he was only charged in
terms of Section 302 IPC.
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
the Court proceeded to examine the question that if 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 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 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 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 Cr.P.C. has not been specifically referred to but the Court altered
the conviction from 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.
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 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 IPC, he cannot be convicted for the offence under Section 306
IPC." 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.P.
(1997(5) SCC 348) and Lakhjit Singh and Another v. State of Punjab (1994
Supp(1) SCC 173) the matter was referred to a three Judge Bench in Dalbir
Singh's case (supra) 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 of Cr.P.C.
reference may be made to question Nos.
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.
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 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.
evidence of PW-1 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 PW4- another
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 Evidence Act the prosecution version has been
being the position there is no merit in this appeal which is accordingly