2004 Supreme(SC) 446

2004(3) Supreme 506
SUPREME COURT OF INDIA
(From Allahabad High Court)
S. Rajendra Babu, Dr. AR. Lakshmanan, and G.P. Mathur, JJ.
Dalbir Singh -Appellant
versus
State of U.P. -Respondent
Criminal Appeal No. 479 of 1999
With
Crl. Appeal No. 480 of 1999
Decided on 8-4-2004
Counsel for the Parties :
For the Appellant : In-person.
For the Respondent in Crl.A.No. 479/99 and Appellant in Crl.A.No. 480/99 : Pramod Swarup, J.K. Bhatia, Advocates.

IMPORTANT POINT
Accused tried on a charge u/s 302 IPC could be convicted u/s 306 IPC if offence u/s 306 IPC was established from evidence though no specific charge had been framed and that accused was not prejudiced in trial for convicted offence.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 304B, 498A and 306-Appellant convicted for murder of his wife and two daughters aged 7 years 1-1/2 years by trial Court besides offence u/s 498A IPC-High Court in appeal set aside conviction u/s 302 IPC and maintained conviction u/s 498A IPC and found that accused was guilty u/s 306 IPC but since no charge had been framed no conviction for that offence be recorded-Appeal by accused as well State appeal-Letter in handwriting of deceased wife of appellant recovered from house, place of incident, showing that how constantly deceased was being harassed and taunted by accused on account of inferior quality and less amount of dowry-Murder charge was rightly set aside as the room in which incident occurred was found bolted from inside and thus it appeared to be a suicide-Dead bodies were recovered in burnt condition-Since marriage had taken place more than 7 years before incident, charge of dowry death could not be sustained-Whether conviction could be recorded of offence u/s 306 IPC in absence of charged framed for offence? Yes-Evidence and circumstances established that accused abetted commission of suicide by creating compelling circumstances and had not been prejudiced during trial by non-framing of charge for that offence-Sentence of six years imprisonment which appellant had undergone to meet ends of justice.

       Held : 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. The facts and circumstances of the present case may now be examined in the light of the principle discussed above. The trial Court and also the High Court have recorded a clear finding and with which we are in complete agreement, that the accused had started making a demand of dowry soon after marriage. Even after his father-in-law had given him a colour T.V., a scooter and money for purchasing the flat, he did not feel satisfied and continued to harass his wife. He used to frequently taunt her that some of the items given by way of gift at the time of marriage were of poor quality and were not of his standard. He had also assaulted his wife and even his seven year old daughter on several occasions. It was in such circumstances that Vimla took the extreme step of not only setting herself on fire, but also her two daughters, one of whom was only one year old. The letter written by Vimla just before taking such an extreme step speaks volume about the treatment meted out to her by the accused. Therefore, the basic ingredients of the offence under Section 306 IPC have been established by the prosecution. These features of the prosecution case were sought to be established by the prosecution in order to substantiate the charge under Section 498-A IPC and also for showing that the accused had a motive to commit the crime of murder for which he was actually charged. The cross-examination of the witnesses show that every effort was made to demolish the aforesaid aspect of the prosecution case, namely, that neither any demand of dowry was made nor any gifts or presents or money was received by the accused at a subsequent stage and that Vimla had not been subjected to any kind of harassment or ill-treatment. The next question to be seen is whether the accused was confronted with the aforesaid features of the prosecution case in his statement under Section 313 Cr. P.C. His statement runs into six pages where every aspect of the prosecution case referred to above was put to him. He also gave a long written statement in accordance with Section 233 (2) Cr.P.C. wherein he admitted that Vimla committed suicide. He also admitted that the scooter and colour T.V. were subsequently given to him by his in-laws but came out with a plea that he had paid money and purchased the same from his in-laws. There is no aspect of the prosecution which may not have been put to him. We are, therefore, of the opinion that in view of the material on record, the conviction under Section 306 IPC can safely be recorded and the same would not result in failure of justice in any manner. The record shows that the accused was taken into custody on 29.3.1991 and was released from jail after the decision of the High Court on 20.3.1997 and thus he has undergone nearly six years of imprisonment. In our opinion, the period already undergone (as under-trial and after conviction) would meet the ends of justice. (Paras 17 and 18)

       (ii) Criminal Procedure Code, 1973-Sections 222 and 464-Court can convict for a minor offence even though charge had been framed for major offence-Even in appeal or revision, any error, omission or irregularity in the charge including misjoinder of charges shall not result in invalidating conviction unless the appellate or revisional Court comes to conclusion that failure of justice had infact occasioned thereby.

       Held : 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. (Para 14)