Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 587 (GUJ)

Koli Dhirubhai Jadubhai v. State of Gujarat

2015-06-08

N.V.ANJARIA

body2015
JUDGMENT : The present Appeal is directed against judgment and order dated 04.07.2000 passed by learned Additional Sessions Judge, Dhrangadhra, in Sessions Case No. 5 of 1999 whereby the appellants-accused were acquitted from the offences under Sections 302, 498A and 114 of the Indian Penal Code, 1860, but came to be convicted for the offence under Section 201, IPC read with Section 34, IPC. For the said conviction, they were sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.1,000/- and in default of payment of fine, to undergo further period of nine months as rigorous imprisonment. 2. In all, three accused were tried in the Sessions Case for the offences under Sections 302, 498A and 114, IPC. Accused No.1 happened to be the husband of the deceased, accused No.2 was the elder brother of accused No.1 whereas accused No.3 was the mother. Out of the three accused, accused Nos.1 and 3 came to be convicted and sentenced as per the impugned judgment, who are the two appellants in this Appeal. 3. The complaint was filed by the father of the deceased. Revealing the prosecution case, it was stated therein that the deceased daughter had married with accused No.1 before about 16 months and they were staying at Village Chuli. The brother of accused Nos.1 and 2 eve-teased and molested one shepherd girl, upon which several such women had come to the house of accused and picked up a quarrel for the incident, resultantly the said brother of the accused consumed poison. This happened about 25 days before date of incident. For the incident, the deceased had scolded the brother not to indulge into committing such acts. It was the case of the prosecution that thereafter, all the accused used to harass the deceased. The deceased had six months pregnancy. On 28.08.1998, one Bhavanbhai Kanjibhai went to the house of the complainant and informed the wife of the complainant-mother of the deceased-that their daughter was admitted in the hospital at Dhrangadhra. When they went to Dhrangadhra, they knew that the daughter was taken to a Surendranagar Hospital, and from there she was taken to V. S. Hospital, Ahmedabad for treatment. The complainant inquired about the incident and was told by the accused persons that the deceased had got slipped and received injuries in the head. She died in hospital while under treatment. The complainant inquired about the incident and was told by the accused persons that the deceased had got slipped and received injuries in the head. She died in hospital while under treatment. 3.1 The FIR was registered. The case was investigated and the investigating agency filed charge-sheet before the Court of Judicial Magistrate (First Class), Dhrangadhra, who subsequently committed the case to the Court of Session under Section 209 of the Code of Criminal Procedure, 1973. The charge was framed against the accused at Exh.2. The trial culminated into the impugned judgment and order as above. 3.2 The court below upon appreciation of the evidence found that the offences alleged against the appellants-accused under Sections 302, 498A and 114, IPC were not proved. For the said offences, the accused persons were acquitted. The court viewed, however, that there were circumstantial evidence, on the basis of which it convicted the appellants for the offence under Section 201 read with Section 34, IPC. 4. Heard learned advocate Mr. P. S. Champaneri for the appellants and learned Additional Public Prosecutor Mr. K. P. Raval for the respondent-State. 5. Now looking to the charge framed and on the basis of which the accused were tried, the commission of offence under Section 302 read with Section 34, IPC as well as offence under Section 498A formed the charge. It was stated in the charge (Exh.2) that the accused persons had common intention to commit murder of the deceased and accused No.1 caused death by hitting Sansi on the head of the deceased. Alternatively, it was stated that either of the accused had caused murder and committed offence under Section 302, IPC. As regards Section 498A, it was stated in the charge that the accused Nos.1, 2 and 3 harassed the deceased on 28.08.1998 and also during the period prior to the said date. 5.1 When the charge framed against the appellants was in respect of offences under Section 302 read with Section 34, IPC and under Section 498A, IPC, whether the appellants could have been convicted for the offence punishable under Section 201, IPC read with Section 34, IPC while acquitting them from the offences under Sections 302, 498A, IPC, is the principal question required to be considered in the present Appeal. 5.2 Section 302, IPC and Section 498A, IPC in respect of which the charge was framed related to punishment for the offence of murder and offence of subjecting to woman to cruelty by husband or relatives of the husband respectively. Section 114, IPC is about presence of abettor at the time of commission of offence. Section 34 speaks about the acts done by several persons in furtherance of common intention and provides that each of such person is liable for that act in the same manner as if it were done by him alone. 5.3 The conviction recorded by the lower court as per the impugned judgment and order was for offence under Section 201, IPC read with Section 34, IPC. Section 201, IPC, is offence relating to causing disappearance of evidence. Section 201 reads as under. ' 201. Causing disappearance of evidence of offence, or giving false information to screen offender: — Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, If a capital offence: — shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; If punishable with imprisonment for life: — and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; If punishable with less than ten years imprisonment: — And if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.' 6. Since the question involved is neat question of law, adverting straightway to the decisions dealing with the aspect, in Pandharinath v. State of Maharashtra [ (2009) 14 SCC 537 ] : ( AIR 2010 SC 1453 ), it was held that the court is not prevented from taking recourse to and punishing the accused for commission of a lesser offence than one for which he was charged. The Supreme Court explained that where a person is charged for an offence, he may be convicted for an offence to commit such offence, although attempt is not separately charged. In that case, it was found that offence under Section 376, IPC was not proved, but lesser offence under Section 376 read with Section 511, IPC, was proved. 6.1 In K. Krishna Iyer v. State of Kerala and Anr. [ (1993) 3 SCC 226 ] : (1993 AIR SCW 1975), the appellant was charged for an offence under Section 16 (1-A) of the Prevention of Food Adulteration Act, 1954, but found liable to be convicted under Section 16(1)(a)(i) of the Act which was held permissible as the conviction would be recorded for the lesser offence though the charge was for higher offence. Similarly in Suman Sood Alias Kamal Jeet Kaur v. State of Rajasthan [ (2007) 5 SCC 634 ] : ( AIR 2007 SC 2774 ), the court while stating that the accused could be convicted for a lesser offence even though charged for higher offence, it was explained thus, ' Thus, if A is charged with an offence of committing murder of B, and the court finds that A has not committed murder as defined in Section 300, IPC but is convicted that A has committed an offence of culpable homicide not amounting to murder (as defined in Section 299, IPC), there is no bar on the court in convicting A for the said offence and no grievance can be made by B against such conviction.' 6.2 In Anil Alias Raju Namdev Patil v. Administration of Daman & Diu, Daman and Anr. [(2006) 13 SCC 36], the Apex Court stated the principle about conviction for an offence in respect of which no charge is framed, though framed for similar but higher offence. [(2006) 13 SCC 36], the Apex Court stated the principle about conviction for an offence in respect of which no charge is framed, though framed for similar but higher offence. It was observed that as regards the cases where the accused is convicted for the offence in respect of which no charge is framed, the propositions of law are— (i) The accused should not suffer any prejudice by reason of misjoinder of charges, (ii) A conviction for lesser offence is permissible, (iii) It should not result in failure of justice, (iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges. 6.3 The aforesaid decisions brings out a proposition of law that if the accused is charged of for a higher offence, but is not found guilty for that offence on the basis of evidence, he can be convicted for minor or lesser offence, if facts established indicate that such minor or lesser offence was committed. 6.4 In Rafiq Ahmad Alias Rafi v. State of Uttar Pradesh [ (2011) 8 SCC 300 ] : ( AIR 2011 SC 3114 ), the Supreme Court with reference to Sections 215, 216 and 211 of the Code of Criminal Procedure, 1973, held that every omission to frame charge would not vitiate the trial. When charge for a major offence is not made out, conviction for a minor cognate offence even in absence of a charge, can be sustained, observed the Supreme Court. It held that if accused is charge with a grave offence, but the same is not established on merits or for a default of technical nature, he can still be convicted and punished for commission of a less grave offence without altering a charge, provided lesser offence is of cognate nature and its ingredients are independently proved. 6.5 The punchline of the position of law is that in order that a court may convict the accused for an offence other than for which he is charged, such offence must be in the category of lesser offence and must be of cognate nature and that, in addition that such offence is independently proved. Such lesser offence has to be of the same kind and category and has to be one which should be termed as alike or similar offence. Such lesser offence has to be of the same kind and category and has to be one which should be termed as alike or similar offence. 6.6 The precise principle in this regard was stated in Rafiq Ahmad Alias Rafi ( AIR 2011 SC 3114 ) (supra), wherein the Supreme Court observed and held that the accused can be convicted for the lesser offence would hold proof provided the lesser offence is of cognate nature and its ingredients are independently proved beyond reasonable doubt. The Court explained as under, 'Alike or similar offence can be termed as 'cognate offences'. The word 'cognate' is a term primarily used in civil jurisprudence particularly with reference to the provisions of the Hindu Succession Act, 1956 where Section 3(c) has used this expression in relation to the descendants of a class of heirs and normally the term is used with reference to blood relations. This expression has also been recognized and applied to the criminal jurisprudence as well as not only in the Indian system but even in other parts of the world. Such offences indicate the similarly, common essential features between the offences and they primarily being based on difference of degree have been understood to be ' cognate offences'. There are classes of offences like offences against the human body, offences against the property and offences to cheating, misappropriation, forgery etc. (Paras 44, 45 and 31)' 6.7 The Court further stated, ' 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 the 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. 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 grave 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.' (Paras 31, 24, 25 and 47) 7. What definitely follows from the above principle is that the accused can be convicted only in respect of offence for which charge is framed against him. The qualification to this is that if the accused is charged for higher offence, and on evidence that higher offence is not made out, but lesser offence is made out, he may be convicted for such lesser offence established on evidence. Again the further rider is that while convicting the accused for the offence for which no charge is framed, such offence should be 'cognate offence'. The ingredients of such lesser offence has to be common. If the offence/s for which the charge is framed, is one and other offence for which the conviction is recorded is different in its ingredients or it is different in its nature, for such offence, the conviction would not sustain as no charge was framed. An offence for which conviction can be recorded though charge for that is not framed, has to be cognate. The offence containing the very ingredients of the offence for which charge is framed, it is one of lesser degree in its nature. An offence for which conviction can be recorded though charge for that is not framed, has to be cognate. The offence containing the very ingredients of the offence for which charge is framed, it is one of lesser degree in its nature. 7.1 In the present case, as already noted, the charge framed was under Sections 302 and 498A, IPC but from the said offences, the trial court held that the same were not proved and the appellants were acquitted in respect of those offences. The conviction and sentence was ordered under Section 201, IPC. For the offence under Section 201, IPC any charge was not framed. When the charge was framed for Section 302, IPC and 498A, IPC, it could hardly be said that the charge included commission of offence under Section 201, IPC. No charge under Section 201 could have been said to have been framed by any stretch of logic. The principle that the accused can be convicted for the offence even if charge is not framed in that regard, is true in respect of lesser offence. Where a charge is framed for a major offence which is not proved, but the offence which is of the same nature, but is a minor or lesser offence, if proved, may become basis for conviction for such minor offence. 7.2 The tests in Rafik ( AIR 2011 SC 3114 ) (supra) as to what should be said to be the cognate offence for which an accused may be convicted notwithstanding framing of the charge, are three fold. The offence must indicate similarity. Secondly, the two offences must primarily be based on difference of degree and thirdly that the offences must have common essential features and ingredients which could be proved from the evidence led in the context of charge framed. In other words, a cognate offence is one which could be established from the evidence led though it was not framed as a charge but because of which difference only in degree, because of its similarity and because of the ingredients being common as essential features vis-a-vis the offence for which the charge is framed. An offence under Section 201, IPC, when juxtapose with the offences under Section 302, IPC and 498A, IPC cannot be said to be satisfying the necessary test to be a cognate offence. An offence under Section 201, IPC, when juxtapose with the offences under Section 302, IPC and 498A, IPC cannot be said to be satisfying the necessary test to be a cognate offence. The court below committed a serious error in convicting the appellants under Section 201, IPC read with Section 34, IPC. 8. The additional and alternative submission of learned advocate for the appellants was that even on evidence the offence under Section 201, IPC read with Section 34, IPC was not made out. This Court having gone through the evidence on record in that regard also, the submission on behalf of the appellants could be well countenanced. The evidence on record and in particular the evidence of prosecution witnesses, when cumulatively and cohesively read, was indicative of the possibility that the accused had slipped and fell down and died. In any view, there was no evidence which could give a way to establish the offence under Section 201, IPC. 9. It has to be held, for the foregoing reasons, that the conviction under Section 201, IPC read with Section 34, IPC could not have been recorded by the learned Sessions Judge when the charge was not framed for that offence but the charge was framed for offence under Sections 302, IPC and 498A, IPC, the offences being distinct in its kind, separate in nature and non-cognate in terms of their ingredients. 10. As a result, judgment and order dated 04.07.2000 passed by learned Additional Sessions Judge, Dhrangadhra, in Sessions Case No. 5 of 1999 insofar as it recorded conviction of appellants under Section 201 read with Section 34 of the Indian Penal Code, 1860 and sentenced them for the said offence, is hereby set aside. The bail bond of the appellants shall stand discharged. The Appeal is allowed. Record and proceedings shall be sent back immediately to the court concerned. Appeal allowed.