2003 Supreme(SC) 1016

2003(7) Supreme 386
SUPREME COURT OF INDIA
(From Punjab and Harayana High Court)
K.G. Balakrishnan and B.N. Srikrishna, JJ.
Sohan Lal @ Sohan Singh & Ors. -Appellants
versus
State of Punjab -Respondent
Criminal Appeal No. 280 of 2003
Decided on 14-10-2003
Counsel for the Parties :
For the Appellants : Dr. J.N. Dubey, Sr. Advocate, Anurag Dubey, Mrs. Upasana Dubey, Ms. K.B. Upadhyay, Ms. Sneh Mishra and S.R. Setia, Advocates.
For the Respondent : Y.P. Dhingra, Bimal Roy Jad and Ms. Sunita Pandit, Advocates.

IMPORTANT POINT
In the absence of a charge being framed against the accused under Section 302 or 109 IPC, it would cause prejudice to him, if he is convicted under either for these offences at the end of the trial.

Headnote:(i) Indian Penal Code, 1860-Section 302/109, 304B-Criminal Procedure Code, 1973-Section 211-Abetment-Failure to frame charge with regard to offence u/s 109 IPC or Section 302 IPC-Conviction of accused u/s 302/109 IPC held illegal-Absence of charge being framed for substantive offence u/s 109 IPC would cause prejudice to accused.

       Held : Section 211 of the Code of Criminal Procedure requires that the charge against the accused be precisely stated. Sub-section (4) of Section 211 of the Code of Criminal Procedure specifically requires that the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. The learned counsel for the respondent State, relying on Section 464 of the Code of Criminal Procedure, urged that failure to specify Section 109 in Charge Sheet against Sohan Lal was a mere irregularity which would not vitiate the trial without proof of prejudice to the accused. We cannot agree. The learned counsel for the accused is fully justified in his submission that failure to frame a charge with regard to the substantive offence of Section 109 IPC has certainly prejudiced the accused in the trial court. The accused Sohan Lal @ Sohan Singh was called upon to face trial only for the charge under Section 304B IPC. Neither a charge under Section 302 IPC nor under Section 109 IPC, was levelled against him in the Charge Sheet. In the absence of a charge being framed against the accused Sohan Lal under Section 302 or 109 IPC, it would certainly cause prejudice to him, if he is convicted under either for these offences at the end of the trial. In our view, it was not permissible for the trial court to convict the first accused Sohan Lal for the offence under Section 302 read with Section 109 IPC. His conviction under Section 302 read with Section 109 IPC is, therefore, illegal and is liable to be set aside. The High Court erred in upholding the conviction of Sohan Lal @ Sohan Singh under Section 302 read with Section 109 of the IPC and dismissing his appeal. (Para 6)

       (ii) Indian Penal Code, 1860-Section 302-Evidence Act, 1812-Section 32-Death by burning-Dying declaration recorded by Naik Tehsildar PW 6-No circumstance brought on record to suspect his bonafides-Absence of medical endorsement as to fitness of state of mind of victim-Statement of PW 6 that victim was in a fit mental condition when she made dying declaration and she was fully conscious of what she was saying-No reason to discard dying declaration-Merely because informant gave exaggerated version in FIR, is no reason to reject dying declaration-Dying declaration recorded by PW 6 and statement of victim recorded u/s 161 Cr.P.C. tally in material particulars-Dying declaration fully corroborated by other circumstances and not contradicted by any tutoring or coaching-Conviction of mother-in-law and sister-in-law based on dying declaration held sustainable.

       Held : Upon careful consideration of the facts and circumstances of the case, we are satisfied that we can safely accept the veracity of the dying declaration (Ex. PN) made by Kamlesh Rani deceased which is also fully corroborated by the other circumstances and not contradicted by her statement recorded under Section 161 of the Cr. P.C.. No material has been placed before us to show that the dying declarations were the result of any tutoring or coaching. Hence, we are not satisfied that there exist any circumstances which compel us to suspect the trustworthiness of the dying declaration. Once we come to the conclusion that the dying declaration is credit worthy, there is no doubt that the accusations against the appellants accused Harbans Kaur and accused Kanchan are fully proved. In the circumstances, we are of the view that both the courts below were justified in relying upon the dying declaration and convicting the two accused, Harbans Kaur and Kanchan. We see no reason to take a different view in the matter. (Paras 25 and 26)

       (iii) Indian Penal Code, 1860-Sections 302, 302/109, 304B-Killing by burning-Husband, father-in-law, mother-in-law and sister-in-law charged with subjecting deceased to cruelty and harassment on account of demand of dowry and causing her dowry death-Trial Court held that deceased had died as she was murdered by mother-in-law and sister-in-law abetted by husband-Finding recorded that there was no evidence of accused having demanded dowry at time of marriage or even thereafter-Acquittal of father-in-law of all charges-Mother-in-law and sister-in-law held guilty of offence u/s 302 IPC-Husband acquitted of all charges as he was not charged either u/s 302 or for abetment of murder u/s 109 IPC. (Paras 5, 6 & 27)