Charges under Section 302 and 306 IPC are distinct; a conviction for one cannot coexist with an alternative charge for the other without breaching legal standards.

Sanjay K. Agrawal, J

1. Assail in the present criminal appeal filed under Section 374 (2) of the CrPC preferred by the appellant herein is to the legality, validity and correctness of the judgment dated 30.01.2018 passed by the Additional Judge, Dongargarh, to the Court of 1^st Additional Sessions Judge, Rajnandgaon, District Rajnandgaon, Chhattisgarh, in Sessions Trial No. 18/2016, by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer rigorous ₹ imprisonment for life with fine of 5,000/-; in default of payment of fine amount the appellant has to undergo additional rigorous imprisonment for 1 year.

2. In the instant case, earlier the charge against the appellant was framed on 15.07.2016 for offence under Section 306 and thereafter, in alternative the charge for offence under Section 302 of the IPC was framed on 06.09.2017.

Prosecution story:-

3. Factual matrix of the case, in brief, is that between 14.03.2016 and till the morning of 16.03.2016 at about 7:30 am, near the dam situated Village Kumhada tola, Police Station Dongargarh, District Rajnandgaon, Chhattisgarh, the appellant herein by refusing to marry Kumari Roshani Lahre instigated her to commit suicide and thereby she committed suicide and died by drowning.

4. It is the further case of the prosecution that the appellant had love affair with deceased Kumari Roshani Lahre and he had promised to marry her, but on 14.03.2016 the appellant refused to marry her and thereby the appellant abetted the victim to commit suicide which is an offence under Section 306 of the IPC. However, in alternative the appellant has been charged for offence under Section 302 of the IPC and ultimately convicted for offence of murder under Section 302 of the IPC. Jaisingh Kosa (PW-9), village Kotwar, informed the police on 16.03.2016 about the dead body of the deceased pursuant to which merg intimation was registered vide Ex.P/6. The dead body of the deceased was identified by Rajaram Lahre (PW-12), father of the deceased, vide Ex.P/1. On the basis of merg, FIR was registered vide Ex.P/13. Nazari naksha and crime details form were prepared vide Exs.P/5 & P/15, respectively. Inquest proceedings (Ex.P/11) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/9) proved by Dr. Narendra Golan (PW-12), cause of death was asphyxia due to drowning. In the chemical analysis the articles i.e. bone and water are found positive for diatom test vide Ex.P/21 (FSL report). Wheels of investigation started running and the appellant was arrested.

5. After due investigation, appellant herein was charge-sheeted for offence under Section 306 of the IPC and the trial Court has also framed the charge on 15.07.2016 for offence under Section 306 of the IPC. However, on application under Section 216 of the CrPC being filed by the prosecution on 08.08.2017, the alternative charge for offence under Section 302 of the IPC was also framed on 06.09.2017 against the present appellant and ultimately the trial Court has convicted him for offence under Section 302 of the IPC.

6. In consequence of the alternative charge framed under Section 302 of the IPC, in exercise of power under Section 217 of the CrPC, all the witnesses except PW-9 Jaisingh Kosa, village Kotwar, & PW-11 Bhupendra Kumar Choubey, Constable, were recalled and thereafter, in order to bring home the offence, prosecution has examined as many as 13 witnesses; exhibited 21 documents and 2 articles, whereas, defence, in support of its case, has not examined any witness, but exhibit