An accused charged under one section cannot be convicted under another without proper framing of charges unless no prejudice is shown.

Headnote:(A) Indian Penal Code, 1860 - Section 406 - Criminal Procedure Code, 1973 - Sections 221, 222, and 464 - Conviction under Section 406 IPC for breach of trust - Appellant convicted without charge framed under Section 406 IPC - Court found that ingredients of Section 405 IPC not satisfied - Conviction set aside as against facts and law. (Paras 2, 17, 25, and 26)

(B) Criminal Procedure - Framing of Charges - An accused charged under one section cannot be convicted under another without proper framing of charges unless no prejudice is shown. (Paras 17, 22)

Facts of the case:
The appellant was convicted under Section 406 IPC for allegedly misappropriating funds given by the deceased for securing a job for his daughter. The trial court found the appellant guilty despite no charge being framed under Section 406 IPC.

Findings of Court:
The court held that the conviction under Section 406 IPC was erroneous as the essential ingredients of the offence were not established.

Issues: Whether an accused charged under Section 306 IPC can be convicted under Section 406 IPC without a charge being framed under that section?

Ratio Decidendi: The court ruled that the conviction under Section 406 IPC was not permissible as the nature of the offences under Sections 306 and 406 IPC are not cognate, and the essential ingredients of the offence were not satisfied.

Result: Appeal allowed; conviction set aside.

JUDGMENT :

Raj Beer Singh, J.

1. Heard Sri I.K. Chaturvedi, learned Senior Advocate, assisted by Sri Saurabh Chaturvedi, learned counsel for the appellant and learned A.G.A. for the State.

2. This criminal appeal has been preferred against the judgment and order dated 30.05.2023, passed by the learned Special Judge (MP/MLA)/Additional Sessions Judge, Court No.03, Farrukhabad in Criminal Case No.02 of 2019 (State Vs. Vijay Singh), P.S. Kotwari Fatehgarh, District Farrukhabad, whereby, the appellant has been convicted under Section 406 IPC and sentenced to three years R.I. with fine of Rs.8,00,000/-. In default of payment of fine, the appellant has to undergo three months additional imprisonment.

3. According to prosecution version, the informant Rahul Tomar has lodged first information report of this case on 26.06.2024 under section 302 IPC by submitting tehrir exhibit Ka-1, alleging that on 26.06.2024 at 07.30 AM some unknown person has committed murder of his father Vijendra Singh Tomar, who was working as driver in police department. It was also alleged that two golden rings and a golden chain of his father were also robbed. It appears that during investigation, it was found that deceased has committed suicide and that the appellant has abetted the deceased to commit suicide and thus, charge-sheet was submitted under Section 306 IPC against appellant.

4. The trial court charged the appellant under Section 306 IPC, who pleaded not guilty and claimed trial. In order to prove its case, the prosecution has examined 13 witnesses. P.W.-1 Rahul Tomar is informant and P.W.-2 Shishu Pal Singh, P.W.-3 Surendra Singh, P.W.-4 Uday Raj Singh, P.W.-5 Saroj Tomar and P.W.7 Neetu Chauhan are witnesses of fact. P.W.-6 Rajesh Kumar has recorded the first information report and P.W.-8 Dr. Swayam Prakash Kushwaha has conducted postmortem of the deceased. P.W.-9 Shiv Shankar Shukla and P.W.10. Tribhuwan Singh have conducted part investigation. P.W.-11 Jay Prakash and P.W.-12 Nawab Ahmad are formal witnesses. P.W.13 Bhuvnesh Kumar Gautam has also conducted part investigation.

5. The appellant was examined under section 313 CrPC, wherein he denied the prosecution version. In defence evidence, one Sanjeev Kumar Singh, Gaurav Singh @ Amit Singh Tomar, Khalid Khan @ Rajju, Shamim Khan @ Jugunu and R.P. Yadav as D.W.-1 to D.W.-5.

6. After hearing and analysing the evidence, the trial court convicted the appellant under Section 406 IPC and sentenced as mentioned in para no.2. of this judgment.

7. Being aggrieved, the appellant has preferred the present criminal appeal.

8. Learned Senior Advocate submits that impugned order is against facts and law and thus, liable to be set aside. The appellant was not named in the first information report. The charge-sheet was submitted under Section 306 IPC and the appellant was charged by the trial court for offence under Section 306 IPC and that no charge was framed under Section 406 IPC but despite that the trial court has convicted the appellant under Section 406 IPC, which is against facts and law. Referring to provisions of Section 222 CrPC and facts of the matter, it was submitted that the conviction of appellant is neither based on evidence nor the conviction of appellant under section 406 IPC is legally permissible. Learned Senior Advocate has placed reliance upon Shamnsaheb M.Multtani vs State of Karnataka (2021) 2 Supreme Court Cases 577.

9. Learned A.G.A has opposed the appeal and submitted that there is no illegality or perversity in the impugned order. Though the appellant was charged under section 306 IPC but on the basis of evidence, a case under section 406 IPC was made out. In comparison to section 306 IPC, the offence under section 406 IPC provides less punishment and thus, the conviction of appellant under section 406 IPC is justified.

10. I have considered rival submissions and perused the record.

11. Perusal of record shows that in evidence, the informant/P.W.1 Rahul Tomar has inter-alia stated that his fat