2007 Supreme(SC) 1079

2007(5) Supreme 926
Supreme Court of india
(From Bombay High Court)
C.K. Thakker & D.K. Jain, JJ.
Sukhram — Petitioner
versus
State of Maharashtra — Respondent
Appeal (crl.) 1203 of 2006
Decided on : 17-08-2007

important point
In case High Court is convinced that a failure of justice had, in fact, been occasioned, it is required to follow the procedure laid down in the Section 464(2)(a) Cr. P.C.

Headnote:(a)Code of Criminal Procedure, 1973 – Section 222 – Section 222 clothes the Court with the power to convict a person of an offence which is minor in comparison to the one for which he is charged and tried – Instantly A-2 was charged u/s 201 r/w 34, IPC but convicted u/s 304-B and 498-A – By no stretch of imagination, offences under Sections 304-B and 498-A IPC, under which appellant A-2 was convicted by the Trial Court, could be said to be minor offences in relation to that under Section 201 IPC – Therefore, Section 222 Cr.P.C. had no application on facts in hand. (Para 11)

       (b)Indian Penal Code, 1860 – Section 302 – Conviction of A-2 u/s 302 by High Court vitiated by non-compliance with provisions of section 464(2) (a) – Even on proven facts no case for conviction u/s 302 made out – High Court’s order not sustainable. (Para 12)

       Smt. Kalawati v. The State of Himachal Pradesh – Relied upon.

       (c)Indian Penal Code, 1860 – Section 201 – Well settled that notwithstanding acquittal of the offence under Section 302 IPC, conviction u/s 201 IPC is still permissible – For conviction u/s 201, the intent to screen the offender committing an offence must be the primary and sole aim of the accused – Court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Para 13, 15 and 16)

       Palvinder Kaur v. The State of Punjab; Suleman Rehiman Mulani v. State of Maharashtra; Nathu v. State of Uttar Pradesh; V.L. Tresa v. State of Kerala – Relied upon.

       (d)Indian Penal Code, 1860 – Section 201 – Merely because A-2 happened to be father of appellant A-1, it could not be presumed as a matter of legal proof that he must be deemed to have the knowledge of the offence committed by his son – Further, mere presence of A-2 in the house was not sufficient to draw a presumption that he had the knowledge of commission of offence by his son, appellant, A-1 – Since prosecution failed to establish that conduct of appellant A-2, both at the time of the occurrence and immediately thereafter, was consistent with the hypothesis of his guilt – Hence held that High Court erred in convicting appellant A-2 u/s 201 IPC. (Para 19)

       Dhananjoy Chatterjee Alias Dhana v. State of W.B. – Relied upon.

       Facts of the case :

       Marriage between appellant A-1 and the deceased was solemnized on 21st April, 1986. At the time of marriage some amount in cash, a gold ring and other articles were stated to have been given by way of dowry. It is alleged that not being satisfied with the same, the appellants started ill treating her, and further appellant A-2 had an evil eye on the deceased and he insisted that she should have illicit relations with him which, she resisted. She is stated to have complained to her parents, brother and other relatives about the ill treatment.

       On 18th February, 1987, the deceased was reported to be missing. The appellants searched for her and found her body in a nearby well. Appellant A-2 registered a report at the police station. Bisan (PW-6), father of the deceased lodged a complaint at the police station, suspecting that his daughter had been killed by the appellants and then thrown in the well. Post mortem report was received on 19th February, 1987, in which the cause of death was mentioned as Asphyxia due to throttling and smothering and not due to drowning. On receipt of the report and after collecting evidence, an FIR was registered against the accused under Sections 498-A, 302, 201 read with Section 34 IPC and both the accused were arrested.

       Trial Court found that there was no eye-witness to the incident and, therefore, the case of the prosecution rested only on circumstantial evidence. Nevertheless, the Trial Court observed that there were two circumstances against appellant A-1, namely, (i) motive and (ii) last seen together. The Trial Court held that the prosecution was able to establish that deceased was ill treated and harassed on account of demand of dowry and she died within a very short span of ten months of the marriage. Therefore, the appellants had committed offences, punishable under Sections 304-B and 498-A read with Section 34 IPC. The Trial Court also held offence under Section 201 IPC was not proved.

       Both the appellants were convicted by High Court for having committed offences punishable under Sections 302 and 201 read with Sections 34 IPC and were sentenced to undergo imprisonment for five years and to pay a fine of Rs.500/-, with default stipulations.

       Findings of the Court:

       High Court erred in convicting A-2 u/ss 302 and 201 IPC.

       Result : Appeal pertaining to A-2 allowed.