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Noor Mohammad vs State Of U.P. on 20 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved on : 08.01.2020 Delivered on : 20.01.2020

CRIMINAL APPEAL No. 1445 of 2015

Noor Mohammad ——–Appellant

Vs

State of Uttar Pradesh ——-Respondent

_

For Appellant : Sri Syed Shahnawaz Shah

For Respondent/State : Sri Ashwani Prakash Tripathi, AGA _

Hon’ble Naheed Ara Moonis, J.

Hon’ble Raj Beer Singh, J.

Per: Raj Beer Singh, J.

1. This appeal has been preferred against judgment and order dated 03.03.2015 passed by the learned Additional Sessions Judgment, Court No.5, Ghaziabad in Session Trial No. 675 of 2013 (State vs. Noor Mohammad and three others) under Sections 304B, 498A, 302/34 IPC and 3/4 of Dowry Prohibition Act, Case Crime No. 318 of 2013, Police Station Loni, District Ghaziabad, whereby the accused-appellant Noor Mohammad has been convicted under Section 302 of IPC and sentenced to imprisonment for life along with fine of Rs. 20,000/-. In default of payment of fine he has to undergo one year simple imprisonment. However, he was acquitted of charge under Sections 304B, 498A IPC and 3/4 of Dowry Prohibition Act. Co-accused Akbar Ali, Sarvari and Imran were acquitted of charge under Sections 304B, 498-A, 302/ 34 IPC and 3/4 of Dowry Prohibition Act.

2. As per prosecution version, marriage of complainant’s sister Abida (deceased) was solemnized with accused-appellant Noor Mohammad, two years prior to incident but after marriage accused-appellant and his family members including father Akbar Ali, mother Sarvari and brother Imran used to demand motorcycle, golden chain and cash of Rs. 1 lakh as additional dowry and on that account they used to beat and harass the deceased. On 11.02.2013, complainant Mausam Ali (PW-1) got information that his sister has died and when he reached there he found that dead body of his sister was lying on bed and her husband and in-laws have already fled away from there.

3. Complainant Mausam Ali (PW-1) reported the matter to police by submitting written complaint Ex. Ka-1 and on that basis FIR was registered on 11.02.2013 at 19:20 hours vide FIR Ex. Ka-5, under Sections 498A, 304B IPC and 3/4 of Dowry Prohibition Act against accused-appellant Noor Mohammad and other accused persons, namely, Akbar Ali, Sarvari and Imran.

4. Police reached at the spot and inquest proceedings were conducted by PW-6 Yaduvir Singh (Naib Tehsildar) vide inquest report Ex. Ka- 2 and dead body of the deceased was sent for postmortem.

5. Postmortem on the dead body of deceased was conducted on 12.02.2013 by PW-8 Dr. Sunil Katiyar vide postmortem report Ex. Ka-6 and following injuries were found on the person of deceased:

(i) ligature mark 6 cm x 1 cm on anterior aspect of neck above thyroid cartilage and 3 cm below chin. On dissection white glistening membrane parchment like present under the ligature mark.

As per Autopsy Surgeon, cause of death of the deceased was due to asphyxia as a result of ante-mortem hanging.

6. Investigation of the case was conducted by PW-9 Circle Officer Arvind Kumar Yadav. One scarf (dupatta) of the deceased was seized from the spot vide seizure memo Ex. Ka- 3. Statements of witnesses were recorded and after investigation all the four accused persons were charge-sheeted for the offences under Sections 304B, 498A IPC and 3/4 of Dowry Prohibition Act.

7. Learned trial Court framed charges 304B, 498A IPC and 3/4 of Dowry Prohibition Act against all the four accused persons and alternative charge under Sections 302/34 IPC was also framed against all the four accused persons, namely, Noor Mohammad, Sarvari, Akbar Ali and Imran. Accused persons pleaded not guilty and claimed trial.

8. In order to bring home the guilt of accused-appellants, prosecution has examined nine witnesses. After prosecution evidence, accused persons were examined under Section 313 of Cr.P.C., wherein, they have denied the prosecution evidence and claimed false implication.

9. In defence one Islam was examined as DW-1.

10. After hearing and analyzing the evidence on record, trial Court acquitted accused persons, namely, Akbar Ali, Sarvari, Imran of charges under Sections 304B, 498A, 302/34 IPC and 3/4 of Dowry Prohibition Act whereas accused-appellant Noor Mohammad was convicted under Section 302 IPC and was sentenced as stated in paragraph no.1 of this judgment.

11. Being aggrieved by the impugned judgment, accused-appellant has preferred the present appeal.

12. Heard Sri Syed Shahnawaz Shah, learned counsel for the appellant and Sri Ashwani Prakash Tripathi, learned A.G.A for the State and perused the record.

13. Learned counsel for the appellant has submitted:

(i) that there is no evidence that accused-appellant has committed murder of his own wife. It was submitted that there is consistent evidence that deceased has committed suicide. As per postmortem report, cause of death was shown asphyxia as a result of anti-mortem hanging and in view of statement of PW-8 Dr. Sunil Katyal, who has conducted postmortem of the deceased, it is clear that deceased has committed suicide and thus, no case under Section 302 IPC is made out. It was stated that for conviction under Section 302 IPC some positive evidence is required against accused whereas in instant case there was no such evidence and in matrimonial home of accused-appellant, other inmates of house were also residing

(ii) that there is no evidence that deceased was harassed by accused-appellant on account of dowry or that she was subjected to cruelty soon before her death. It was pointed out that as per prosecution version, deceased has come at her matrimonial home only one week before the incident and before that she has resided at her parental home for about seven months and thus, during that period of seven months, there is no question of any harassment or dowry demand by the accused-appellant. It was stated that only within period of one week it is not possible that accused persons might have harassed the deceased to this extent that she would commit suicide.

(iii) that as there is no evidence of dowry demand and cruelty soon before death and thus, no offence under Section 304-B IPC is made out.

(iv) that as the deceased has resided for seven months at her parental home and she has come at her matrimonial home only one week before the incident and thus, it cannot be believed that during such period of one week deceased was abated to commit suicide. It was further submitted that at the most offence under Section 306 IPC may be made out against appellant, whereas accused-appellant has already undergone sentence of about seven years.

14. Per contra, it has been submitted by learned State counsel that there is clear and cogent evidence that the deceased was harassed for dowry as demand of motorcycle, golden chain and cash of Rs.1 lakhs was made from her as well as from the complainant. It was due to harassment meted out by accused-appellant that deceased has to resided at her parental home for seven months and after intervention of some persons she was brought back to her matrimonial home by accused-appellant by promising that he would not harass her. Deceased has suffered unnatural death within two years of her marriage at her matrimonial home. It was further submitted that as alleged incident took place inside the matrimonial home, burden shifts to accused-appellant to explain under what circumstances deceased has suffered death, but the accused-appellant has not offered any such explanation and even in his statement recorded under Section 313 Cr.P.C. he has simply denied prosecution evidence. It was further pointed out that conduct of accused-appellant is highly inculpatory as after incident, he neither informed the police nor the family members of deceased were informed, rather he as well as his other family members have fled away from their home leaving dead body of the deceased there. It was argued that all the facts and circumstances of case and evidence on record clearly indicate that it was accused-appellant who has caused death of deceased.

15. We have considered the rival submissions and perused the record.

16. In evidence, PW-1 Mausam Ali, who is complainant and brother of deceased, stated that marriage of his younger sister Abida was solemnized with accused-appellant on 17.04.2011. At that time accused and his family members were residing at Shiv Vihar in Delhi but later on they have shifted to Loni, Ghaziabad and all family members were residing jointly. Accused persons were not satisfied with the dowry given in marriage and they used to demand golden chain, motorcycle and cash of Rs. 1 lakh and on that account, they used to beat and harass the deceased. Whenever deceased used to visit at her parental home, she used to tell about these things. PW-1 and his other family members have tried to make the appellant and his family members understand and requested them not to harass the deceased but they still persisted for demand of Rs. one lakh cash, motorcycle and golden chain and as complainant could not fulfill their demand, deceased remained at her parental home for about seven months. After that on intervention of some persons of society, accused-appellant and his family members have promised that they would not harass the deceased and would not make any demand and they have taken deceased to her matrimonial home only nine days before incident. But they again harassed her there. PW-1 further stated that on 11.02.2013 his cousin, who was residing at Loni, informed him that husband and in-laws of Abida have killed her by hanging. PW-1 and his family members went there and found that deceased was lying dead on bed and thereafter complainant has reported the matter to police by submitting written complaint Ex. Ka-1. He has also stated that during investigation one stole was seized by police vide memo Ex. Ka- 2.

17. PW-2 Rozudeen, who is father of the deceased, deposed that marriage of his daughter Abida was solemnized with accused-appellant Noor Mohammad on 17.4.2011 but the accused persons were not satisfied with dowry given at the time of marriage and they used to demand golden chain, motorcycle and cash of Rs. one lakh. Abida has told these things to him and due to this reason, deceased has resided at his home for about 8-10 months. Keeping in view the future of deceased, they have not made any complaint. However, thereafter accused persons have admitted their fault and promised that they would not give rise any occasion of making complaint and deceased was again sent with accused-appellant Noor Mohammad. After one week, on 11.02.2013 at around 6:00 p.m., his nephew Nawab Ali has informed that in-laws of Abida have killed her by hanging. PW-2 stated that he and his family members went there and found that dead body of deceased was lying on bed and all the accused-persons have fled away from there.

18. PW-3 Mohammad Yunus stated that marriage of daughter of Rozudeen, namely Abida was solemnized with Noor Mohammad on 17.11.2014 but after 5-6 months of marriage, Abida stayed at her parental home for many days as her in-laws used to demand motorcycle, golden chain and cash of Rs. 5 lakh. However, after sometime Noor Mohammad and his father were called and by intervention of some public person, accused persons have sought pardon and thereafter deceased was sent with accused-appellant but on 11.02.2013 they received information that accused have killed deceased by hanging on account of non-fulfillment of demand of dowry.

19. PW-4 Nawab Ali is cousin of deceased and he was residing at Loni and he has stated that marriage of Abida was solemnized with Noor Mohammad on 17.11.2014. After some days of marriage she was harassed by her husband and his family members for dowry and they used to demand motorcycle, cash of Rs. one lakh and golden chain. Abida has told him about these things. PW-4 further stated that after 2-3 months of marriage, when he has gone to meet Abida at her matrimonial home, she was quite sad and she has told that her husband and her in-laws were demanding motorcycle, golden chain and cash of Rs. one lakhs and on that account, they used to harass her. Efforts were made to make them understand but they did not agree. Abida came back to her father’s home and after sometime due to intervention of some persons of society, on promise of accused-appellant and his family members that they would not make any demand and would not harass her, deceased was sent with accused-appellant Noor Mohammad to her matrimonial home. After one week, when he was passing through near house of Noor Mohammad, he came to know that deceased has died and all family members of Noor Mohammad have fled away from there and thereafter he has informed family members of deceased.

20. PW-5 Qaiyum is also brother of deceased and he stated that marriage of Abida was solemnized with Noor Mohammad on 17.04.2011 but her husband and his family members were not satisfied with given dowry and they used to demand motorcycle, golden chain and cash of Rs. one lakh in dowry and on that account they used to beat her. Abida has told about these things to him and his father and brother. They have tried to make her husband and his family members understand about their inability to fulfill demand, but in vain and resultantly for about seven months, deceased has resided at her parental house. Later on due to intervention of some relatives, accused-appellant Noor Mohammad and his father have admitted their mistake and assured that now they would not harass the deceased and on such assurance, deceased was sent with Noor Mohammad. But after about one week of the same, on 11.02.2013 his cousin Nawab Ali informed that accused persons have killed Abida by hanging, due to non fulfillment of demand of dowry.

21. PW-6 Yaduvir Singh Naib Tehsildar has conducted inquest proceedings marked as Ex. Ka.2.

22. PW-7 constable Manoj Kumar has recorded FIR who proved the chick FIR exhibited as Ex. Ka.4.

23. PW-8 Dr. Sunil Katyal has conducted postmortem on dead body of deceased and proved the postmortem report exhibited as Ex. Ka.6.

24. PW-9 Circle Officer, Arvind Kumar Yadav has investigated the case. He has prepared site plan of spot vide Ex. Ka-7 and after completion of investigation charge-sheet was filed.

25. DW-1 Islam has stated that accused persons were known to him since 15-20 years. Akabar was residing at Shiv Vihar in Delhi and Akbar and Noor Mohammad used to run a shop from 6:00 AM to 9:00 PM. wife of Noor Mohammad has died in February 2013 and on the day of incident Noor Mohammad and Akbar were at their shop. He stated that Noor Mohammad and Akbar were residing with him since last 3-4 months prior to incident as Akbar has sold his house and he has purchased a house at Loni, Mustafabad but Akbar has not shifted there.

26. In this case, it is not in dispute that deceased has suffered unnatural death at her matrimonial home within two years of her marriage and accused-appellant has been convicted under Section 302 IPC. The first question that arises for consideration is that whether the death of deceased was homicidal or suicidal in nature. As per postmortem report, deceased has died due to asphyxia as a result of anti-mortem hanging. In the case of Javed Abdul Rajjaq Shaikh vs. State of Maharashtra, Criminal Appeal No.1181 of 2011, Hon’ble Apex Court has dealt with the issue of determination whether death is caused by hanging or strangulation and held as under:

”The differences between hanging and strangulation have been highlighted by Modi on Medical Jurisprudence and Toxicology, 25th Edition, as follows:

Hanging

Strangulation

1. Most suicidal

1. Mostly homicidal

2. Face-Usual pale and petechiae rare.

2. Face-Congested, livid and marked with petechiae

3. Saliva-Dribbling out of mouth down on the chin and chest.

3. Saliva-No such dribbling

4. Neck-Stretched and elongated in fresh bodies.

4. Neck-Not so.

5. External signs of asphyxia usually not well marked.

5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect.

6. Ligature mark-Oblique, Non-continuous placed high Up in the neck between the Chin and the larynx, the Base of the groove or furrow Being hard, yellow and Parachment-like.

6. Ligature mark-Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of groove or furrow being soft and raddish.

7. Abrasions and ecchymoses round about the edges of the ligature Mark, rare.

7. Abrasions and ecchymoses round about the edges of the ligature mark, common.

8. Subcutaneous tissues Under the mark-White, Hard and glistening.

8. Subcutaneous tissues under the mark-Ecchymosed.

9. Injury to the muscles of Neck-Rare.

9. Injury to the muscles of the neck-Common.

10. Carotid arteries, Internal coats ruptured in

10. Carotid arteries, internal coats

ordinarily ruptured.

11. Fracture of the larynx and trachea-Very rare and may be found that too in judicial hanging.

11. Fracture of the larynx, trachea and hyoid bone.

12. Fracture-dislocation of the cervical vertebrae-Common in judicial hanging.

12. Fracture-dislocation of the cervical vertebrae-Rare.

13. Scratches, abrasions and bruises on the face, neck and other parts of the body-Usually not present.

13. Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body Usually present.

14. No evidence of sexual assault.

14. No evidence of sexual assault.

15. Emphysematous bullae on Surface of the lungs-Not present.

15. Emphysematous bullae on the surface of the lungs- May be

As to what is the distinction between strangulation and throttling is also dealt within the self-same work:

“Definition-Strangulation is defined as the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation.

Ligature strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body.

When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold).

A form of strangulation, known as Bansdola, is sometimes practised in northern India. In the form, a strong bamboo or lathi (wooden club) is placed across the throat and another across the back of the neck. These are strongly fastened t one end. A rope is passed round the other end, which is bound together, and the unfortunate victim is squeezed to death. The throat is also pressed by placing a lathi or bamboo across the front of the neck and standing with a foot on each of lathi or bamboo.

Garrotting is another method that was used by thugs around 1862 in India. A rope or a loincloth is suddenly thrown over the head and quickly tightened around neck. Due to sudden loss of consciousness, there is no struggle. The assailant is then able to tie the ligature.”

27. In the instant case perusal of postmortem report of deceased Abida shows that there was ligature mark 6 cm x 1 cm on anterior aspect of neck above thyroid cartilage and 3 cm below chin. In view of treatise of Modi as stated above, ligature mark-oblique Non-continuous placed high up in the neck between the Chin and the larynx is a characteristic of hanging. There is nothing to indicate that there was any fracture of larynx or trachea and hyoid bone and thus, it also supports the view that death of deceased was due to hanging. Further, as per postmortem report, on dissection at ligature mark, white glistening membrane parchment like were present, which is also a characteristic of hanging. Further postmortem report of deceased does not show any other characteristic of strangulation like congestion of face non dribbling of saliva, abrasions or ecchymoses round about the edges of the ligature mark subcutaneous tissues under the mark- Ecchymosed or ruptured carotid arteries, internal coats or scratches, abrasions fingernail marks and bruises on the face neck or another part of body. Absence of these traits further support the view that death of deceased was suicidal in nature. Here it would be pertinent to mention that PW-8 Dr. Sunil Katyal, who has conducted postmortem on the dead body of deceased, categorically stated that deceased has died due to asphyxia as a result of ante-mortem hanging and that postmortem of deceased was conducted by a panel of doctors. He has also stated that weight of body might have lied on neck, which resulted into death of deceased but there was no fracture in backbone or any bone of neck. He has also ruled out the possibility that deceased might have hanged after causing her death. Considering medical evidence in its entirety, it is apparent that it was a case of hanging and thus the possibility that deceased committed suicide can not be ruled out. Here it may also be mentioned that complainant as well as other witnesses have also deposed that death of deceased has taken place due to hanging. In view of evidence on record, it can not be held that deceased suffered death due to strangulation or that the death of the deceased was homicidal in nature. It is one of the fundamental principle that to hold a person guilty under Section 302 of IPC, the death of such deceased person has to be homicidal in nature. If medical evidence suggests that death of deceased took place due to suicide, the accused can not be held guilty for murder punishable under section 302 IPC. Learned trial Court has not made any discussion as to on what basis death of deceased has been found homicidal in nature and without making any such discussion and without rendering any such conclusion, learned trial Court committed error by convicting the accused-appellant under Section 302 IPC. Thus, conviction of accused-appellant under Section 302 IPC is not in accordance with law, hence unsustainable.

28. Evidence on record reveals that deceased has committed suicide by hanging at her matrimonial home within a period of two years of her marriage. It is well as settled that death due to suicide also falls within the category of death ”otherwise than under normal circumstances” as mentioned in Section 304-B IPC. All the witnesses of fact have categorically deposed that deceased was continuously harassed for dowry and she was brought to he matrimonial only one week before of incident. There is also cogent and categorical evidence that accused and his family members used to demand golden chain, motorcycle and cash of Rs. one lakh from deceased and on that account she was harassed by the accused persons but learned trial Court has acquitted accused-appellant as well as co-accused persons of charge under Sections 498A, 304B IPC and 3/4 of Dowry Prohibition Act. As no appeal has been preferred against acquittal of accused-appellant under Sections 498A, 304B IPC and 3/4 of Dowry Prohibition Act and thus, this Court can not alter conviction from under section 302 IPC to under Section 304-B, 498A and 3/4 of D.P. Act. Here it would be relevant to mention that in case reported as (2001)2 SCC 577 Shamnsaheb M. Multtani Vs. State of Karnataka, a three judge bench noted that where main ingredients of two cognate offences are common, the one punishable with lesser sentence can be said to be minor offence. Noting that the ingredients of Section 304-B IPC were different from those of section 302 IPC, the former could not be regarded as minor offence of the latter and it was held as under:

”In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304-B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304-B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption”.

In view of above discussed position of law, it is not possible to convert conviction of accused-appellant from section 302 IPC to section 304-B , 498-A IPC and section 3/4 DP Act, particularly when no appeal has been filed against acquittal of accused-appellant under section 304-B , 498-A IPC and section 3/4 DP Act. The case of Girish Singh V State of Uttrakhand 2019 AIR (SC) 4529 and Hira Lal V State AIR 2003 Supreme Court 2865, referred by learned counsel for appellant pertains about applicability of section 304-B IPC, however, in the instant case as it has been found that due acquittal of accused-appellant under section 304-B IPC by trial court, it is not permissible to convert conviction of accused-appellant from section 302 to 304-B IPC, and thus no detail examination of said case laws is required.

29. However, close scrutiny of evidence reveals that deceased was being harassed for dowry continuously since after her marriage till date of incident. PW-1 Mausam Ali, who is complainant of the case has consistently deposed that accused-appellant and his family members used to demand golden chain, motorcycle and cash of Rs. 1 lakh in dowry and when this demand could not be fulfilled, deceased has to remain for about seven months at her parental home. After intervention of some persons, deceased was taken to her matrimonial home by accused-appellant only about 8-9 days prior to incident by promising that they would not make any such demand and would not harass the deceased, but due to non-fulfillment of demand of dowry, accused-appellant and his family members caused her death by way of hanging. PW-1 has been subjected to cross-examination but no such fact could emerge so as to affect his testimony adversely. Version of PW-1 has been amply corroborated by PW-2 Rozudeen, PW-3 Mohd. Yunus, PW-4 Nawab Ali and PW-5 Qaiyum. All these witnesses have consistently and cogently stated that deceased committed suicide due to persistent demand of dowry and harassment by accused-appellant. In this regard no major contradiction or inconsistency could be shown. The fact that due to demand of dowry and harassment meted out by accused-appellant and his family members, deceased to stay for about seven months at her parental home, further supports prosecution case. The cumulative effect of entire evidence clearly indicate that deceased was continuously harassed and ill-treated on account of non-fulfillment of demand of dowry and due to intervention of some persons, she was brought back to her matrimonial home by accused-appellant by promising that he would not make any demand and would not harass the deceased but it appears that demand of dowry and harassment of deceased remained continued and due to which deceased committed suicide. The substance of evidence conclusively establishes that accused-appellant was persistently harassing and ill-treating the deceased as he was dissatisfied with the dowry given and the demand of golden chain, motorcycle and cash of Rs. one lakh was not fulfilled.

30. At this stage, question which requires consideration is whether in view of such facts and evidence, is it possible to convict accused-appellant under Section 306 of IPC in the absence of any charge under Section 306 IPC. Dealing with similar issue in the case of Dalbir Singh vs State Of U.P 2004 (5) SCC 334, Hon’ble Apex Court has held as under:

”Here 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 Code 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.

After examining several provisions and earlier decisions, it was further held as under:.

”There are 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”.

In K. Prema S. Rao and another vs. Yadla Srinivasa Rao and others reported in (2003)1 SCC 217, it has been held:-

“Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence.

Discussing provisions of section 221 CrPC, it was further held as under;

”As provided in Section 215 of Cr.P.C. ommission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing “dowry death” under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498A, IPC.”

In Lakhjit Singh vs. State of Punjab [1994 Supp. (1) SCC 173], the accused were charged and convicted of offence under Section 302 IPC. The High Court upheld their conviction. The Apex Court held that charge under Section 302 IPC is not established but convicted the appellants under Section 306 IPC. While rejecting the argument that in the absence of a specific charge under Section 306 IPC, the appellants cannot be convicted under that section, the Court observed:-

“9. The learned counsel, however, submits that since the charge was for the offence punishable under Section 302 Indian Penal Code, the accused were not put to notice to meet a charge also made against them under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 Indian Penal Code and; therefore, presumption under Section 113-A of Indian Evidence Act cannot be drawn and consequently a conviction under Section 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under Section 313 CrPC and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given under Section 313 CrPC would show that they had enough of notice of the allegations which attract Section 306 Indian Penal Code also.”

In Ramesh Vithal Patil vs. State of Karnataka and others reported in 2014 (11) SCC 516, it has been held:-

“18. It is true that the appellant was not charged under Section 306 of the IPC. The charge was under Section 304-B of the IPC. It was, however, perfectly legal for the High Court to convict him for offence punishable under Section 306 of the IPC. In this connection, we may usefully refer to Narwinder Singh (2011) 2 SCC 47. In that case the accused was charged under Section 304-B of the IPC. The death had occurred within seven years of the marriage. The trial court convicted the accused for an offence punishable under Section 304-B of the IPC. Upon reconsideration of the entire evidence, the High Court came to the conclusion that the deceased had not committed suicide on account of demand for dowry, but, due to harassment caused by the husband in particular. The High Court acquitted the parents of the accused and converted the conviction of the accused from one under Section 304-B of the IPC to Section 306 of the IPC. This Court dismissed the appeal filed by the accused. It was observed that it is a settled proposition of law that mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Sections 221(1) and (2) of the Code of Criminal Procedure, 1973.”

31. In view of aforesaid legal position, it is clear that if an accused is tried by competent Court and he clearly understands nature of offence and case is clearly explained to him and he has been afforded fair opportunity of defending himself, ensuring substantial compliance of provisions of law, in such facts and circumstances in view of Section 464 Cr.P.C. it is possible for appellate Court to convict the accused for offence for which no charge was framed unless the Court is of the opinion that failure of justice would in fact occasion. In order to judge whether 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 main facts sought to be established against him were explained to him clearly and he has got a fair change to defend himself. When from statement of charge framed under Section 304B IPC and Section 498A, IPC it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case, the mere omission on the part of the trial Judge to mention of Section 306 IPC does not preclude the Court from convicting the accused for the said offence when found proved.

32. In the instant case, the accused was charged under Section 498A IPC with allegation that he has physically and mentally harassed the deceased on account of dowry and he was also charged under Section 304B IPC alleging that he caused death of deceased by hanging and he was further charged under Section 3/4 Dowry Prohibition Act with the allegation that he has made demand of Rs. one lakh cash from deceased in dowry. Alternatively, he was charged under Section 302/34 IPC that he along with co-accused persons committed murder of deceased by hanging. It is apparent from record that cause of death as per postmortem report, was asphyxia as a result of ante-mortem hanging and copy of postmortem report along with other documents was supplied by committal Court to the accused. All these facts clearly indicate that accused-appellant was told and he has clearly understood the nature of offence for which he was tried and he was afforded full and fair opportunity of defending himself. There is nothing to indicate that substantial compliance of any provisions of law was not made. It is also clear that his conviction under section 302 IPC is being set aside mainly on the ground that death of deceased was not found homicidal in nature. Considering the nature of allegations and charge framed against accused-appellant, it cannot be said that conviction of accused-appellant under Section 306 IPC would occasion any failure of justice as accused was fully aware of basic ingredients of offence of Section 306 IPC. As indicated above, evidence on record clearly reveals that deceased was continuously and persistently harassed and ill-treated for dowry and for that reason even she has to stay at her parental home for about seven months, but due to intervention of some public persons, she was brought back by accused-appellant to her matrimonial home and after one week of the same, deceased suffered death due to ante-mortem hanging. As stated above, all the witnesses have consistently deposed that deceased suffered death by hanging due to continuous harassment meted out to her on account of demand of dowry. The evidence on record clearly indicate that by making continuous demand of dowry and causing harassment to deceased, accused-appellant driven the deceased to commit suicide. It appears that her life was made so miserable that she was driven to commit suicide. At this stage we also take notice of section 113-A of Evidence Act. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide within a period of seven years from the date of her marriage and (ii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Though presumption is not mandatory as the employment of expression “may presume” suggests. Secondly, the existence and availability of the above said circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression “the other circumstances of the case” used in Section 113-A Evidence Act suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in Section 113-A is defined in Section 4 of the Evidence Act, which says “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. The proof of cruel treatment or harassment of wife by husband or his relative to force her to fulfill demand of dowry is a necessary condition to invoke the presumption under section 113-A of the Evidence Act. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632, it has been held in the context of section 304- B of IPC that meaning of the words “any relative of her husband” occurring in Section 304-B IPC meaning of the words “relative of the husband” occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. Presumption under Sec. 113-A and 113B is not similar in nature and burden to prove innocence is more on accused under sec. 113-B than under S. 113-A which placed a far lighter burden on the accused. In Pinakin Mahipatray Rawal Vs State of Gujarat, 2014 (84) ACC 348 (SC), it has been held that a presumption u/s 113-A Evidence Act as to offence of abetment of suicide u/s 306 IPC can be drawn when it is established that the person has committed suicide and the suicide was abetted by the accused. Where woman committed suicide within 7 years of her marriage and her husband or his near relative subjected her to cruelty in term of Section 498-A of IPC, the Court may presume that such suicide was abetted by the husband or such person.

In Ghulam Mustafa vs State of Uttarakhand, AIR 2015 SC 3101, the Court held that a casual remark or something said in a routine way or in usual conversation should not be construed or misunderstood to mean ‘abetment.’ A conviction on mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of accused that led a person to commit suicide is not sustainable under section 306 IPC. Again, in Gurucharan vs State of Punjab, AIR 2017 SC 74, it has been held that to constitute the offence under section 306 IPC, there should be a live link between abetment and suicide and the intention and involvement of the accused to aid or instigate the commission of suicide.

33. In the instant case it is not disputed that deceased committed suicide within 7 years of her marriage and there is consistent and cogent evidence that she was continuously harassed for dowry. In this regard evidence of PW 1, PW 2, PW 3, PW 4 and PW 5 is quite consistent. No such fact could emerge in their cross-examination, so as to affect credibility of these witnesses. As stated above, due to dowry demand and harassment by accused-appellant, deceased had to stay for about seven months at her parental home and she was brought back by the appellant only one week prior of incident, all the above stated witnesses have stated that deceased died as the accused-appellant continued his demand of dowry. The evidence on record clearly reveals that cruelty meted out to deceased was of such a nature so as to drive her to commit suicide. Learned counsel has referred case of Gurjit Singh V State of Punjab 2019 Supreme (SC) 1298. In that case, it was found by the Apex Court that cruelty was not of such nature, which left no choice to deceased than commit suicide and there was no material to show that a cause and effect relationship between the cruelty and the suicide for purpose of raising presumption. In the instant case, as discussed above, deceased has suffered continuous cruelty on account of dowry demand and due to that reason she has to stay for about seven months at her parent’s house and that she was brought back by accused-appellant to matrimonial home only one week before the incident by assuring that he would not harass her but despite that he continued to make dowry demand of chain, motorcycle and cash of Rs 1 lakh and subjected her to cruelty. Thus, the only logical conclusion is that due to continuous cruelty suffered by deceased, she was left with no choice but to commit suicide. There appears direct nexus between the cruelty and the suicide of deceased. The conduct of accused-appellant is quite inculpatory as after incident he neither informed the police nor family members of deceased, rather he has fled from his house leaving dead body of deceased there. In view of specific facts and evidence on record, the presumption under section 113-A Evidence Act can be raised against appellant. The accused-appellant has failed to rebut the same. In view of evidence on record and raising presumption under section 113-A Evidence Act, a case under section 306 IPC is made out against the accused-appellant. Mere wrongful acquittal by trial court under section 498A IPC or Section 304-B IPC would not come in way of convicting the accused-appellant under section 306 IPC. Taking cumulative effect of entire evidence on record, the above discussed position of law, the accused-appellant Noor Mohammed can safely be convicted under Section 306 IPC.

34. In view of aforesaid, conviction and sentence of accused-appellant under section 302 IPC is set aside and the accused-appellant is convicted under Section 306 IPC. So far as question of sentence is concerned, it is apparent that deceased has committed suicide within short span of two years of her marriage, due to persistent demand of dowry and harassment meted out by accused-appellant. Of late such offences and crime against women are on rise. It is well settled that sentence has to commensurate with gravity of offence and all attending facts and circumstances of the case. Considering all aspects of the matter, it would be appropriate that accused-appellant be sentenced to maximum punishment ie 10 years rigorous imprisonment along with fine of Rs. 10,000/ under 306 IPC.

35. In view of aforesaid, conviction and sentence of accused-appellant Noor Mohammed under Section 302 IPC is set aside and he is convicted under Section 306 IPC and sentenced to 10 (ten) years rigorous imprisonment along with fine of Rs 10,000/. In default of payment of fine, accused-appellant has to undergo three months additional imprisonment. Accused-appellant Noor Mohammed is stated in jail, he shall serve out remaining sentence.

36. Appeal is partly allowed in above terms.

37. Copy of this judgment be transmitted to the court concerned for information and necessary compliance.

Date: 20.01.2020

A. Tripathi

(Raj Beer Singh, J) (Naheed Ara Moonis, J)

 

 

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