The court emphasized that an offence under Section 306 Indian Penal Code is not a minor offence in relation to Section 302, and the acquittal under Section 306 could not be converted into a conviction without a state appeal.

ORDER :

M.K. MUKHERJEE, J.

1. Lokendra Singh, the appellant herein, along with his mother, brother and sister was tried by an Additional Sessions Judge, Indore to answer the charge of committing the murder of Lalita, wife of the appellant on 13-12-1985. An alternative charge under Section 306 Indian Penal Code was also framed against them for abetting the commission of suicide by Lalita. The trial Judge convicted all of them under Section 302 Indian Penal Code but did not record any finding in respect of the charge under Section 306 Indian Penal Code. In the appeal preferred by the above four convicts, the High Court acquitted all of them of the charge under Section 302 Indian Penal Code but convicted the appellant under Section 306 Indian Penal Code, with a finding that the latter was a minor offence in relation to the former. Assailing the judgment of the High Court, the appellant filed this appeal after obtaining special leave.

2. While granting leave, this Court issued a suo motu notice calling upon the appellant to show cause why his acquittal under Section 302 Indian Penal Code should not be set aside and appropriate order passed.

3. Law is well settled that in respect of a charge once framed, there can only be an order of conviction or acquittal. Therefore, notwithstanding the fact that the trial court did not record a formal finding in respect of the charge under Section 306 Indian Penal Code, the appellant stood acquitted thereof. This apart, the trial court having convicted the appellant of the charge under Section 302 Indian Penal Code could not have convicted him of the alternative charge (under Section 306 Indian Penal Code). Such acquittal could be converted into conviction by the High Court only in an appeal preferred by the State. Admittedly, no such appeal was filed. Of course, by exercising its suo motu revisional power under Section 401 Criminal Procedure Code, the High Court could also have set aside the acquittal under Section 306 Indian Penal Code but this question is now purely academic for the High Court did not exercise such power and, even if it had, it could not have converted the finding of acquittal recorded in favour of the appellant to one of conviction in view of the express bar of sub-section (3) of Section 401 Criminal Procedure Code. We reach the same conclusion through a different route.

4. In Sangaraboina Sreenu v. State of A.P., (1997) 5 SCC 348 : 1997 Cri LJ 3955, this Court has held that an offence under Section 306 Indian Penal Code is not a minor offence in relation to Section 302 Indian Penal Code within the meaning of Section 222 Criminal Procedure Code for the two offences are of distinct and different categories. The High Court was not, therefore, justified in convicting the appellant under Section 306 Indian Penal Code after having acquitted him of the charge under Section 302 Indian Penal Code.

5. That brings us to the suo motu notice issued by this Court. From the impugned judgment, we find that on appreciation of the evidence adduced during trial, particularly, that of the doctor, the High Court held that the deceased committed suicide; and indeed, on that basis, the High Court acquitted the appellant and the other accused persons of the charge under Section 302 Indian Penal Code. Since the above finding of the High Court is a proper one, the appellant cannot be saddled with the liability of the offence under Section 302 Indian Penal Code also.

6. We, therefore, allow this appeal, set aside the conviction and sentence recorded against the appellant under Section 306 Indian Penal Code. The appellant, who is on bail, is discharged from his bail bonds. The suo motu proceeding is also dropped.

7. Before we part with this record, we would like to mention that we have been compelled to exonerate the appellants from the accusations levelled against them relating to the death of Lalita on the above grounds as Section 304B Indian Penal Code, which squarely applies to the facts of the instant ca