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2017 DIGILAW 1017 (ORI)

Karpana Bijaya Ku. Patra v. State of Orissa

2017-09-11

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. This is an application under section 482 of Cr.P.C. filed by the petitioners challenging the impugned order dated 21.04.2003 passed by the learned Addl. Sessions Judge, Paralakhemundi in S.C. Case No. 9 of 2000 in allowing the petition filed by the learned Public Prosecutor to add the offence under section 306 of the Indian Penal Code, in addition to the existing charges under sections 498-A/304-B/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act. 2. On perusal of the impugned order, it appears that the learned Trial Court has taken into account the fact that the deceased committed suicide in her matrimonial home within three months of her marriage and available materials on record indicate that the deceased was subjected to cruelty soon before her death and the prosecution has brought on record a suicidal note of the deceased where from it is inferred by the learned trial Court that the deceased wanted to put an end to her life because she was unable to bear the persisting humiliation of her parents by her in-laws. The prosecution has also brought on record one letter which has been written by the deceased few days prior to her committing suicide. The learned Trial Court has also taken into consideration that there are materials available on record to indicate that when the deceased was burning inside the bath room, instead of taking immediate steps to break open the door of the bath room and extinguish the fire, the in-laws family members intimated the fire officer and police to come to the spot. The learned Trial Court further found that there are ample materials on record to make out an offence under section 306 of the Indian Penal Code and therefore, invoking its power under section 216 of Cr.P.C., the petition filed by the prosecution to add the charge under section 306 of the Indian Penal Code was allowed. The petitioners were then given an option to recall any of the prosecution witnesses already examined and accordingly, the petitioners filed a petition to recall P.W.s 26, 28 and 29 only who were the father, mother and brother of the deceased and accordingly, those witnesses were summoned by the learned Trial Court for further cross examination. 3. Mr. The petitioners were then given an option to recall any of the prosecution witnesses already examined and accordingly, the petitioners filed a petition to recall P.W.s 26, 28 and 29 only who were the father, mother and brother of the deceased and accordingly, those witnesses were summoned by the learned Trial Court for further cross examination. 3. Mr. Sangram Das, learned counsel appearing for the petitioners while challenging the impugned order contended that since no charge sheet was submitted under section 306 of the Indian Penal Code and there was no clinching material to constitute such offence, the learned Trial Court should not have added the charge under section 306 of the Indian Penal Code. It is further contended that when twenty nine prosecution witnesses have already been examined and after closure of the prosecution evidence, accused statement was recorded by the learned Trial Court and after the argument was heard from both the sides, at this juncture, the learned trial Court should not have allowed the prayer which has been made by the prosecution to add the charge under section 306 of the Indian Penal Code. It is further stated that the learned Trial Court has committed serious illegality in allowing such petition prior to the pronouncement of the judgment and therefore, the impugned order of addition of the charge under section 306 of the Indian Penal Code should be quashed. 4. Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate supported the impugned order and contended that there was no dearth of power with the learned trial Court to pass such order. 5. Section 216 of Cr.P.C. deals with the power of the Court to alter the charge. If during trial, the Trial Court on consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal bar to appropriately act as the exigencies of the case warrant or necessitate. The object of section 216 of Cr.P.C. is to ensure a fair trial and the Court is to see whether alteration or addition to any charge at any time before the pronouncement of judgment is called for or not and if it is called for, such alteration or addition of any charge, must be on the basis of some evidence on record. Therefore, section 216 of Cr.P.C. empowers the trial Court to alter/add the charges at any stage before the conclusion of the trial. However, law requires that in case such alteration/ addition of charges causes any prejudice in any way to the accused, there must be a fresh trial on the said altered/new charges and for this purpose, the prosecution may also be given an opportunity to recall witnesses as provided under section 217 Cr.P.C. Addition or alteration of the charge should not cause prejudice to the accused. The legislature in its wisdom has not prescribed any time limit either for alteration or addition of charge. The legislative intent is clear and unambiguous that the Court cannot refuse to alter or add any charge on the ground of delay. After an alteration or addition of the charge, the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine and cross examine the witnesses already examined as the case may be and also by affording them opportunity to call other witnesses. 6. Section 306 of the Indian Penal Code read with section 113-A of the Evidence Act enables the Court to punish a husband or his relative who subjected a woman to cruelty as envisaged in section 498-A of the Indian Penal Code, if such woman committed suicide within seven years of her marriage. It is immaterial for section 306 of the Indian Penal Code whether the cruelty or harassment was caused "soon before her death" or earlier. If it was caused "soon before her death" that to for, or in connection with, any demand for dowry, the special provision in section 304-B of the Indian Penal Code would be applicable otherwise resort can be made to section 306 of the Indian Penal Code. If it was caused "soon before her death" that to for, or in connection with, any demand for dowry, the special provision in section 304-B of the Indian Penal Code would be applicable otherwise resort can be made to section 306 of the Indian Penal Code. No doubt section 306 of the Indian Penal Code read with section 113-A of the Evidence Act is wide enough to take care of an offence under section 304-B of the Indian Penal Code also but the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within seven years of the marriage as a sequel to the cruelty or harassment inflicted on a woman for, or in connection with demand of dowry, soon before her death, Parliament intended such a case to be treated as a very serious offence punishable even upto imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under section 306 of the Indian Penal Code and made a separate offence. If it appears to be case of suicide, the trial Court while framing charge under section 304-B of the Indian Penal Code, should also frame charge under section 306 of the Indian Penal Code in as much as even if for the lack of evidence of cruelty or harassment for, or in connection with, any demand of dowry soon before the death of the deceased, the Court acquits the accused of the charge under section 304-B of the Indian Penal Code, it can convict the accused under section 306 of the Indian Penal Code provided that from the available materials on record, the ingredients of the offence are satisfied. However, absence of specific charge under section 306 of the Indian Penal Code cannot be a ground not to convict the accused even after acquitting him of the offence under section 304-B of the Indian Penal Code if a charge under section 498-A of the Indian Penal Code is established and the materials are found in evidence for the offence under section 306 of the Indian Penal Code. In case of K. Prema S. Rao Vrs. In case of K. Prema S. Rao Vrs. Yadla Srinivasa Rao reported in A.I.R. 2003 S.C. 11, where a question was raised as to whether in the absence of a charge framed against the accused under section 306 of the Indian Penal Code, the accused can be convicted under the said section, the Hon’ble Court held as follows:- “22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304-B and in the alternative Section 498-A, IPC (as quoted above), it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498-A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498-A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal Court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. * * * * * * 25. As provided in Section 215 of Cr.P.C. omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial Court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306, IPC of having abetted commission of suicide by the wife. The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306, IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304-B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113-A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498-A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to me the charge under Section 498A, IPC.” 7. In case of Narwinder Singh Vrs. State of Punjab reported in (2011) 2 Supreme Court Cases 47, it is held as follows:- “21. The High Court upon meticulous scrutiny of the entire evidence on record rightly concluded that there was no evidence to indicate the commission of offence under Section 304-B IPC. It was also observed that the deceased had committed suicide due to harassment meted out to her by the appellant but there was no evidence on record to suggest that such harassment or cruelty was made in connection to any dowry demands. Thus, cruelty or harassment sans any dowry demands which drives the wife to commit suicide attracts the offence of 'abetment of suicide' under Section 306 IPC and not Section 304-B IPC which defines the offence and punishment for 'dowry death'. 22. It is a settled proposition of law that mere omission or defect in framing charge would not disable the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Sections 221(1) and (2) of the Code of Criminal Procedure. 23. In the facts of the present case, the High Court very appropriately converted the conviction under Section 304-B to one under Section 306 IPC. In our opinion, there has been no failure of justice in the conviction of the appellant under Section 306 IPC by the High Court, even though the specific charge had not been framed. Therefore, we see no reason to interfere with the judgment of the High Court.” 8. In our opinion, there has been no failure of justice in the conviction of the appellant under Section 306 IPC by the High Court, even though the specific charge had not been framed. Therefore, we see no reason to interfere with the judgment of the High Court.” 8. In the present case, the learned Trial Court after going through the evidence on record, the suicidal note, the letter written by the deceased few days prior to committing suicide and other surrounding circumstances thought it proper to allow the petition which was filed by the Public Prosecutor to add the charge under section 306 of the Indian Penal Code and thereafter, when the Public Prosecutor declined to adduce any further evidence, the petitioners were given opportunity to recall and cross examine any of the witnesses and accordingly a petition was filed on behalf of the defence to recall only P.Ws. 26, 28 and 29 i.e. the father, mother and brother of the deceased which was allowed and the date was fixed for further cross examination of the aforesaid three witnesses. 9. In view of the order passed by the learned Trial Court, it cannot be said that any prejudice was caused to the petitioners in any manner. The order seems to be passed in the interest of the justice and there is no illegality or infirmity in the said order so as to invoke the power under section 482 Cr.P.C. to interfere with the same. 10. Accordingly, the CRLMC application being devoid on merit stands dismissed. 11. The order of interim stay of further proceeding stands vacated. 12. Let a copy of this judgment be immediately sent down to the learned trial Court who shall summon P.W. 26, 28 and 29 for their further cross examination. Since it is a case of the year 2001, the learned trial Court is directed to proceed with the case with utmost expedition. 13. It is made clear that this Court has not expressed any opinion on the merits of the case. The learned Trial Court is free to decide the case on the basis of evidence adduced during trial.