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2012 DIGILAW 229 (CHH)

RAM SEWAK v. STATE OF M. P.

2012-09-06

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 9.4.1997 passed by Additional Sessions Judge, Janjgir, in Sessions Trial No. 155/1994 convicting the accused/appellants under Section 498-A IPC and sentencing each of them to undergo rigorous imprisonment for two years and pay fine of Rs. 500, in default of payment of fine to further undergo simple imprisonment for four months. 2. In the present case the deceased is Rupkala, wife of accused/appellant No.1 Ram Sewak and their marriage was solemnized in June 1986. On 12.10.1993, deceased died after suffering 90% bum injuries. Merg intimation Ex. P-7 was given by the brother-in-law of the deceased namely Bhuvneshwar Prasad and after merg inquiry, on 6.12.1993 FIR Ex. P-10 was registered against the accused/appellants and acquitted accused persons namely Bhuvneshwar Prasad and Ahiliya Bai for an offence under section 306/34 IPC. Post mortem on the body of deceased was conducted on 13.10.1993 vide Ex. P-6 by Dr. D.C. Sharma (PW-6) and cause of death opined by him was shock due to extensive burn injuries. After completion of investigation, charge sheet was filed against all the accused persons for an offence under Section 306/34 but the charge was framed against them by the Court below only under Section 306 IPC. 3. In support of its case, prosecution has examined 11 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below has acquitted accused Bhuvneshwar Prasad and Ahiliya Bai of the charge levelled against them. Present appellants have also been acquitted of the charge under Section 306 but they have been convicted and sentenced u/s 498-A IPC. 5. Counsel for the accused/appellants submits that as the charge framed against the accused/appellants was under Section 306 IPC, their conviction under Section 498-A IPC in absence of the charge thereunder is not permissible under the law. He further submits that even if the entire case of prosecution is taken as it is, ingredients of Section 498-A IPC are not attracted to the case in hand. He submits that on the basis of vague allegations, accused/appellants cannot be convicted under Section 498-A IPC as the basic ingredients thereof are completely missing in the case in-hand. He further submits that even if the entire case of prosecution is taken as it is, ingredients of Section 498-A IPC are not attracted to the case in hand. He submits that on the basis of vague allegations, accused/appellants cannot be convicted under Section 498-A IPC as the basic ingredients thereof are completely missing in the case in-hand. Lastly, he submits that accused/appellant Ram Sevak has already remained in jail for about 50 days and the accused/appellant No.2 is a lady. According to the counsel for the appellants if their conviction is not going to be set aside by this Court, sentence imposed on them may be reduced to the period already undergone by them. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that while framing the charge under Section 306 IPC, the accused persons were categorically charged for cruelty meted out by them to the deceased and they had enough opportunity to know the nature of the charge levelled against them. According to him, it is not a case where they have been taken by surprise by the Court below in convicting the accused/appellants for an offence under Section 498-A IPC. He submits that in a case where the charge has been levelled for a major offence, accused/appellants can always be convicted for the minor cognate offence and thus there is no illegality in the conviction of the accused/appellants under Section 498-A IPC. This apart, he submits that the witnesses examined by the prosecution particularly Rahi Bai (PW-1), Smt. Jasotri Kaushik (PW-2), Smt. Chandrakala Kaushik (PW-3), Nandkishore (PW-7) and Smt. Dankumari Kaushik (PW-9) have categorically deposed against the accused persons and therefore also the conviction of the accused/appellants under Section 498-A IPC is just and proper. 7. Heard counsel for the parties and perused the material available on record. 8. Rahi Bai (PW-1) - mother of the deceased has stated that marriage of the deceased was solemnized with accused/appellant No.1 herein namely Ram Sewak about seven years prior to the date of incident and during this period she gave birth to two children. On the occasion of festivals, when the accused persons used to send the deceased to her house, she disclosed that she was ill-treated in her matrimonial house and deprived of proper food and clothing and that she was not even permitted to cook food. On the occasion of festivals, when the accused persons used to send the deceased to her house, she disclosed that she was ill-treated in her matrimonial house and deprived of proper food and clothing and that she was not even permitted to cook food. This witness is stated to have made the deceased understand saying that gradually the things would become normal. At the time of marriage of her younger son and daughter, the deceased had visited her house with accused/appellant No.1 and at that time also he had picked up a quarrel and took the deceased back throwing away the clothes given to him while leaving her house. On receiving the information regarding the death of her daughter (deceased) after sustaining burn injuries, her son and daughter-in-law went to Janjgir where on seeing the body of the deceased a suspicion grew in their mind that she (deceased) was strangulated and after being killed she was burnt. One day prior to the date of incident her grand-son Rajesh had gone to take the deceased to her house but the accused persons did not send her with him saying that they would go to Kartala. The accused persons had also not given the information regarding the death of the deceased. According to this witness, the accused/appellant No.1 while working as teacher was posted at Barpali and Kartala and used to take her daughter with him at the place of his posting and then dropped her at his house. According to her, even while keeping the deceased with him at the place where he remained posted, he used to ill-treat her. At the time of festivals whenever he brought the deceased to her house, he used to pick up quarrel and then take her back with him. According to her, just one year after marriage, the deceased had started making complaint against the accused persons. The deceased also used to make complaint against the accused persons to her aunt who used to reside in village Kapan. In subsequent paragraphs also this witness has given the detailed account as to the manner in which the deceased was subjected to cruelty by the accused persons. Smt. Jamotri Kaushik (PW-2) the sister-in-law (Bhabhi) of the deceased has stated that after marriage whenever the deceased met her, she used to inform that she was subjected to cruelty and deprived of food and clothing by the accused/appellants. Smt. Jamotri Kaushik (PW-2) the sister-in-law (Bhabhi) of the deceased has stated that after marriage whenever the deceased met her, she used to inform that she was subjected to cruelty and deprived of food and clothing by the accused/appellants. According to her, the deceased used to tell her that on small matters, the accused/appellant No.1 herein subjected her to beating. At the time of marriage of her another sister-in-law (Nanad) when the deceased had come to her house, she asked a sari from her as she was not having the same. At that time also the accused/appellant No.1 is stated to have picked up a quarrel with the deceased and forcibly taken her away. In cross-examination she has reiterated as to the manner in which the deceased was harassed and subjected to cruelty by the accused persons. Smt. Chandrakala Kaushik (PW-3) - sister of the deceased has made the statement similar to what is stated by Rahi Bai (PW-1) and Smt. Jamotri Kaushik (PW-2). She has stated that her sister (deceased) used to inform her that she was subjected to cruelty and harassment by the accused persons. Nand Kishore (PW-7) - elder brother of the deceased has also made specific allegations against the accused persons stating that his sister (deceased) used to inform him that she was subjected to cruelty and harassment by the accused persons. He has given several instances of ill-treatment meted out to his sister (deceased) by the accused persons. Smt. Dankumari Kaushik (PW-9) - sister-in-law (Bhabhi) of the deceased has stated like Rahi Bai (PW-1) Smt. Jamotri Kaushik (PW-2), Smt. Chandrakala Kaushik (PW-3) and Nand Kishore (PW-7). Vinay Singh (PW-4) is the witness to notice of inquest Ex. P-1 and inquest Ex. P-2. Nandram (PW-5) is the Patwari who prepared spot map Ex. P-4. Dr. U.C. Sharma (PW-6) is the witness who conducted post mortem examination on the body of the deceased vide Ex. P-6 and opined that cause of death was shock on account of burn injury. M.L. Shandilya (PW-8) is the investigating officer who has duly supported the case of the prosecution. N.R. Rathore (PW-10) and Rameshwar Dwivedi (PW-11) are the witnesses who assisted in the investigation. 9. P-6 and opined that cause of death was shock on account of burn injury. M.L. Shandilya (PW-8) is the investigating officer who has duly supported the case of the prosecution. N.R. Rathore (PW-10) and Rameshwar Dwivedi (PW-11) are the witnesses who assisted in the investigation. 9. Minute examination of the evidence of the witnesses particularly that of Rahi Bai (PW-1), Smt. Jamotri Kaushik (PW-2), Smt. Chandrakala Kaushik (PW-3) and Nand Kishore (PW-7) makes it clear that deceased was subjected to cruelty by the accused/appellants and thus the Court below was fully justified in convicting the accused/appellants under Section 498-A IPC and there is no infirmity in the same. 10. This Court finds no force in the argument of the counsel for the accused/appellants that as no specific charge was framed under Section 498-A IPC and the charge framed was only U/s 306 IPC, accused/appellants cannot be convicted under Section 498-A IPC. In the case in hand, on 17.4.1995 the charge was framed by the Court below against the accused persons in the following manner:- jkelsod & rk % 12-10-93 xzke dkaiu esa rqe jke lsod dh iRuh] rqe fceykckbZ dh lkl rFkk rqe vfgY;kckbZ ,oa Hkqus’oj dh HkkStkbZ :i dyk xkSre dks rqeus ‘kkjhfjd ,oa ekufld :i ls izrkfM+r djrs gq, vkRegR;k ds fy, nq”izsfjr fd;k ftldh otg ls :idyk xkSre }kjk vius ‘kjhj ij ?kklysV Mkydj vkx yxkdj vkRegR;k dh xbZA bl izdkj rqeus Hkk-na-fo- dh /kkjk 306 ds varxZr naMuh; vijk/k fd;k gSA foeyk ckbZ & rk % 12-10-93 xzke dkaiu esa rqe jke lsod dh iRuh] rqe fceykckbZ dh lkl rFkk rqe vfgY;k ckbZ ,oa Hkqus’oj dh HkkStkbZ :idyk xkSre dks rqeus ‘kkjhfjd ,oa ekufld :i ls izrkfM+r djrs gq, vkRegR;k ds fy, nq”izsfjr fd;k ftldh otg ls :idyk xkSre }kjk vius ‘kjhj ij ?kklysV Mkydj vkx yxkdj vkRegR;k dh xbZA bl izdkj rqeus Hkk-na-fo- dh /kkjk 306 ds varxZr naMuh; vijk/k fd;k gSA Section 498-A IPC reads as under: "498A - Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine." Language of Section 498-A IPC if compared to that of the charge framed against the accused/appellants goes to show that accused persons were aware that the allegation against them was of cruelty by them towards the deceased. It is a settled legal position that accused persons can always be convicted for a less grave offence in case the charge against them was framed for a grave offence. In the normal course of events, the question of grave and less grave offences would arise in relation to the offences falling in the same class and normally may not be inter se the classes. It is expected of the prosecution to collect all evidence in accordance with law to ensure that the prosecution is able to establish the charge with which the accused is charged, beyond reasonable doubt. It is only in those cases, keeping in view the facts and circumstances of a given case and if the court is of the view that the grave offence has not been established on merits or for a default of technical nature, it may still proceed to punish the accused for an offence of a less grave nature and content. The court has to keep in mind the ingredients which shall constitute a criminal offence within the meaning of the penal section. This is not only essential in the case of the offence charged with but even where there is comparative study of different penal provisions as the accused may have committed more than one offence or even offences of a graver nature. He may finally be punished for a lesser offence or vice versa, if the law so permits and the requisite ingredients are satisfied. If the ingredients even of a lesser offence are not satisfied then it may be difficult in a given case for the court to convict the person for an offence of a less grave nature. Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the court can always exercise its power to punish the accused for one or the other offence provided the. accused does not suffer any prejudice. Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the court can always exercise its power to punish the accused for one or the other offence provided the. accused does not suffer any prejudice. In the matter of Dalbir Singh Vs. State of U.P. (2004) 5 SCC 334 , it has been held by the Apex Court as under: "17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreem was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC." 11. In the case in hand language of the charge framed against the accused/appellants is very clear and the accused/appellants were required to offer an explanation about the allegations made against them for committing physical and mental cruelty to the deceased. Thus, it can safely be held that the accused/appellants were aware of the basic ingredients of the offence for which they were being charged. Language of section 498A IPC and the charge framed against the accused/appellants makes it clear that they had sufficient opportunity to explain their conduct and take defence on the basis of the charge levelled against them. Thus, it can safely be held that the accused/appellants were aware of the basic ingredients of the offence for which they were being charged. Language of section 498A IPC and the charge framed against the accused/appellants makes it clear that they had sufficient opportunity to explain their conduct and take defence on the basis of the charge levelled against them. Thus, in view of the aforesaid factual and legal position this Court is of the considered opinion that the Court below has not committed any illegality in convicting the accused/appellants under Section 498-A IPC though the charge was not framed under that section and it was framed under Section 306 IPC. 12. Accordingly, the conviction of the accused/appellant under section 498A IPC being just and proper is maintained. However, keeping in view the fact that the incident had taken place in the year 1993 and that accused/appellant No.1 has already remained in jail for about 50 days whereas accused/appellant No.2 is a lady, this Court is of the considered opinion that the sentence imposed on them by the Court below is reduced to rigorous imprisonment for six months from that of two years. 13. Order accordingly. 14. In the result, the appeal is partly allowed. Conviction of the accused/appellants under section 498A IPC remains undisturbed and the sentence is reduced to the period indicated above. As the appellants are on bail, they be arrested forthwith and sent to jail to serve out the remaining part of the modified sentence. Appeal Partly Allowed.