IMPORTANT POINT
Separate charges are necessary for distinct offences under Sections 306 and 498A IPC; failure to provide a charge results in a failure of justice.

JUDGMENT :

(Sophy Thomas, J.)

This appeal is at the instance of the accused in SC No.136 of 2006 on the file of Additional Sessions Judge/Special Judge for NDPS Act cases, Thodupuzha, challenging his conviction and sentence under Section 498A of IPC, as per judgment dated 07.05.2007.

2. The appellant/accused was originally charge sheeted by SI of Police, Upputhara for an offence punishable under Section 306 of IPC. The prosecution allegation was that, the accused, who was in a live-in relationship with the deceased Smt.Jancy, abetted her suicide on 10.03.2005 at 3 p.m.

3. On committal, and on appearance of the accused before the trial court, charge was framed against him under Section 306 of IPC. He pleaded not guilty to the charge and claimed to be tried.

4. PWs 1 to 8 were examined, Exts.P1 to P6 were marked and MO1 was identified from the side of the prosecution.

5. On closure of prosecution evidence, accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and submitted that, himself and Smt.Jancy fell in love and they were living together harmoniously, and two children were born to them. Since she had made some derogatory remarks against a neighbour lady named Rajakumari, he had scolded her. On 10.03.2005, he went out for work and when he returned from his workplace, he came to know, that his wife committed suicide by consuming poison. DWs 1 and 2 were examined from defence side.

6. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found that, there was no sufficient evidence to find that the accused abetted suicide of Smt.Jancy and so he was acquitted of the offence alleged under Section 306 of IPC. But, from the testimony of prosecution witnesses, the trial court found that the accused had subjected his wife to cruelty both mentally and physically, which will attract an offence punishable under Section 498A of IPC. So, he was convicted under Section 498A of IPC and was sentenced to undergo simple imprisonment for two years and to pay fine of Rs.15,000/-, with a default sentence of simple imprisonment for three months, and to pay Rs.10,000/- to PW2-the mother of the deceased as compensation under Section 357(1) of Cr.P.C, out of the fine amount, if realised. Aggrieved by the conviction and sentence under Section 498A of IPC, the accused has come up with this appeal.

7. Heard learned counsel for the appellant/accused and learned Public Prosecutor for the respondent/State.

8. The appellant was originally charged under Section 306 of IPC, but the trial court found that, prosecution could not prove that, he had abetted suicide of Smt.Jancy, and so he was acquitted of that offence. But no appeal has been preferred by the prosecution against his acquittal, under Section 306 of IPC, and so it has become final.

9. The appellant was convicted and sentenced for an offence punishable under Section 498A of IPC, without framing a charge against him under that section. Learned counsel for the appellant would contend that Section 306 and 498A of IPC are distinct offences, for which separate charges are necessary, and great prejudice has been caused to the appellant, as he was not called upon to answer a charge under Section 498A of IPC, whereby he was denied of an opportunity to defend his case.

10. Learned counsel for the appellant would contend that, there was no marriage at all between the appellant and deceased Jancy, and they were in a live-in relationship though two children were born out of their cohabitation. PW2-the mother of the deceased was not in good terms with the appellant, but learned trial court relied on the improvised and exaggerated testimony of PW2, to find that the appellant subjected the deceased to physical and mental cruelties. So, he would argue that, the conviction and sentence of the appellant under Section 498A of IPC are not maintainable either in law or on facts.

11. Learned Public Prosecuto