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1999 DIGILAW 170 (PAT)

Ram Ballabh Mandal v. State Of Bihar

1999-03-11

NARAYAN ROY

body1999
Judgment 1. Heard learned counsel for the appellant and also learned counsel for the State. 2. The sole appellant has been convicted under Secs. 306 and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years under Sec. 306 and two years under Sec. 201 of the Indian Penal Code. However, both the sentences were directed to run concurrently. 3. It appears that the appellant along with Bindeshwar Mandal and Lakhan Mandal were put on trial for an offence under Secs. 302/34 and 201 of the Indian Penal Code and besides Secs. 302/34, 201 of the Indian Penal Code no charge was framed under other heads. The learned trial Court, however, has acquitted all the accused persons including the appellants under Secs. 302/34 as there was no evidence to prove the charge but convicted the appellant alone under Secs. 306 and 201 of the Indian Penal Code. 4. The prosecution case, as disclosed in the fardbayan (Exhibit-1), is that the sister of the informant, Chita Devi, who was married with the appellant, was burnt to death in the night of 27th and 28th of June, 1986 by the appellant and his brothers by sprinkling kerosene oil on her body. In the fardbayan the informant has alleged that on getting the said information he went to the residence of the appellant but he found his residence locked and nobody met him there. He enquired into the matter from Bhagwat Thakur, Indra Narain Jha, Hari Mohan Jha and others in the village and they informed him that the appellant and his two brothers had burnt his sister to death by sprinkling kerosene oil. He also learnt there from them that the accused persons had also taken away the dead body on the pretext of getting her treated and they did not return to their native village. It has also been stated in the fardbayan that the accused persons used to demand cattle and tape recorders etc. in dowry for which they used to torture his sister. On the basis of the fardbayan (Exhibit-1) a formal first information report was drawn up and a case under Secs. 302/201 of the Indian Penal Code was registered against the accused persons. After due investigation charge-sheet was submitted against the accused persons under Secs. in dowry for which they used to torture his sister. On the basis of the fardbayan (Exhibit-1) a formal first information report was drawn up and a case under Secs. 302/201 of the Indian Penal Code was registered against the accused persons. After due investigation charge-sheet was submitted against the accused persons under Secs. 302/201 of the Indian Penal Code and after taking cognizance of the offence the case was committed to the Court of session where the appellant and his two brothers were tried and they were acquitted for the charge under Sec. 302 of the Indian Penal Code. However, the appellant was convicted under Secs. 306 and 201 of the Indian Penal Code even without the specific charge under Sec. 306 of the Indian Penal Code. 5. The defence of the accused persons is total denial of the occurrence and a plea of innocence has been taken. 6. The prosecution, in all, has examined eight witnesses in support of its case. Out of them, P.W. 1, Ganesh Mandal, uncle of the informant, is a hearsay witness. P.W. 7, Pitamber Mandal, is the informant of the case and P.W. 8, Rajendra Sharma, is the Investigating Officer of the case, P.Ws. 2, 3, 4, 5, and 6, who are co-villagers of the appellant, have been declared hostile. 7. Learned counsel appearing on behalf of the appellant has assailed the impugned judgment from all the corners. Learned counsel submitted that there was only charge under Secs. 302 and 201 of the Indian Penal Code against the appellant and two other accused persons and when the learned trial Court acquitted the accused persons for the charges under Secs. 302 and 201 of the Indian Penal Code for want of evidence the learned trial Court wholly erred in convicting the appellant under Secs. 306 and 201 of the Indian Penal Code without altering the charge under Sec. 306 of the Indian Penal Code. Learned counsel further submitted that there is no evidence at all warranting the conviction of the appellant under Sec. 306 of the Indian Penal Code and the learned trial Court, merely on the basis of statement made in the bail petition/filed on behalf of the appellant that his wife had committed suicide, was not justified in convicting the appellant under Sec. 306 of the Indian Penal Code with the aid of Sec. 106 of the Indian Evidence Act. Learned counsel also submitted that even the bail petition, which is alleged to have been filed on behalf of the appellant, has not been exhibited and the learned trial Court could not have taken resort to the bail application without bringing the same on the record and specially in absence of the specific charge under Sec. 306 of the Indian Penal Code. The learned counsel, therefore, submitted that the impugned judgment of conviction and sentence passed against the appellant is not tenable in law. 8. I have perused the impugned judgment and have also scrutinised the evidence on record. It appears that the learned trial Court in paragraph No. 7 of the judgment held that there is no direct evidence so far as the commission of the offence under Secs. 302/34 and 201 of the Indian Penal Code is concerned. It further appear that the learned trial Court has also disbelieved the evidence of P.Ws. 1 and 7 with regard to demand of dowry. In view of the findings arrived at by the learned trial Court, the learned trial Court was justified in acquitting the accused persons of thecharges under Secs. 302 and 201 of the Indian Penal Code. At the same time it appears that the learned trial Court has held that though absolutely there is no evidence on the record on the basis of which it can safely he held that Chinta Devi (deceased) had been mudered, in view of the averment made in the bail application filed on behalf of the appellant that Chinta Devi committed suicide there would be no difficulty in holding that Chinta Devi committed suicide. The learned trial Court, therefore, held that it was the bounden duty of accused Ram Ballabh Mandal being the husband of the deceased to explain as to under what circumstances Chinta Devi had committed suicide and since it has not been done by accused Ram Ballabh Mandal it is a strong circumstance against the appellant for holding him guilty for the offence under Sec. 306 of the Indian Penal Code. 9. Be that as it may, there is nothing on the record to show that the aforesaid bail petition has been brought on record and has been marked as one of the exhibits. 9. Be that as it may, there is nothing on the record to show that the aforesaid bail petition has been brought on record and has been marked as one of the exhibits. In absence of the bail petition, the learned trial Court, in my opinion, was not justified in holding the appellant guilty for the offence under Sec. 306 of the Indian Penal Code specially when there was no specific charge under this head. 10. It is settled that Sec. 222 of the Code of Criminal Procedure entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried. In the given case the appellant has been convicted under Sec. 306 of the Indian Penal Code without framing of charge against him under this head and, therefore, Sec. 306 of the Indian Penal Code cannot be said to be a minor offence in relation to an offence under Sec. 302 of the Indian Penal Code within the meaning of Sec. 222 of the Code of Criminal Procedure as the two offences are of distinct and different categories. In this connection reference can be made to the case of Sangarabonia Sreenu V/s. State of Andhra Pradesh, AIR 1997 SC 3233 : (1997 Cri LJ 3955). 11. Having heard counsel for the parties and having appreciated the evidence on record it must be held that the learned trial Court has wholly erred in convicting the appellant under Secs. 306 and 201 of the Indian Penal Code. Noticing these aspects of the matter and also seeing the legal proposition, as referred above, I find much force in the submission of the learned counsel for the appellant and the impugned judgment and order of conviction passed against the appellant is not sustainable in law. I, therefore allow this appeal and set aside the impugned Judgment and order of conviction and sentence passed against the appellant and he is acquitted of the charges levelled against him. The appellant is on bail. He is discharged from the liabilities of the bail bonds.Appeal allowed.