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2017 DIGILAW 28 (GUJ)

State of Gujarat v. Bhupat Govind Solanki

2017-01-10

A.J.SHASTRI, S.R.BRAHMBHATT

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JUDGMENT : A.J. Shastri, J. 1. The present appeal is directed against the judgment and order dated 13th April, 2006 passed by the learned District and Sessions Judge, Junagadh in Sessions Case No.76 of 2000 whereby present respondents-original accused Nos.1 to 5 were acquitted of the charges levelled against them. However, original accused No.6-Dhiru Govind Solanki was convicted for the offence punishable under section 325 of IPC and sentenced to suffer rigorous imprisonment for a period of six months with fine of Rs.500/- and in default of payment of fine, to suffer further simple imprisonment for fifteen days. 2. The case of the prosecution in brief is that on 13th March, 2000 at about 8.30 to 9.30 hours, the deceased Kanjibhai was going on his motor cycle from Village Karmadi to Vallabhgadh and when he reached near the outskirts of Village Karmadi, the respondent accused intercepted him who came by formulating unlawful assembly armed with dangerous weapons like axe, sticks, scrape etc. and gave blows to the deceased. On account of inflicting several blows of axe, sticks and scrape on Kanjibhai, he was seriously injured and was taken to Mangrol Government Hospital for treatment and from there, he was shifted to Junagadh Government Dispensary. The complainant, who is the uncle of the deceased, lodged the complaint before Mangrol Police Station being C.R.No.I-33 of 2000 initially for the offence punishable under sections 147, 148, 149 and 325 of Indian Penal Code (hereinafter referred to as “IPC” for short) along with section 135 of Bombay Police Act. Subsequently, the injured Kanjibhai Rameshbhai succumbed to the injures. Resultantly, offence punishable under section 302 of IPC came to be added and investigation was carried out and upon completion of investigation, a detailed charge sheet came to be filed. 2.1 As the case was triable by the learned Sessions Judge, in exercise of power under section 209 of Cr.P.C., the case was committed to Court of Sessions where it was numbered as Sessions Case No.76 of 2000. The learned Sessions Judge framed charge against the accused for the alleged offences. The charge was read over and explained to the original accused to which, they pleaded not guilty and claimed to be tried. 2.2 To prove the guilt against the accused, prosecution examined following witnesses: P.W. No. Name of witness Exhibit No. 1 Dr. Yogitaben Ravibhai Dholiya, who initially treated the injured 20 2 Dr. The charge was read over and explained to the original accused to which, they pleaded not guilty and claimed to be tried. 2.2 To prove the guilt against the accused, prosecution examined following witnesses: P.W. No. Name of witness Exhibit No. 1 Dr. Yogitaben Ravibhai Dholiya, who initially treated the injured 20 2 Dr. Narendrakumar Naranbhai Vediya, who treated the injured at Junagadh Hospital 24 3 Dr. Dineshkumar Mohanlal Dadhaniya, who treated the injured as indoor patient 29 4 Dr. Mukeshbhai Revashankar Maheta, who performed post mortem 31 5 Mansingbhai Kanabhai, panch of inquest panchnama 38 6 Amrabhai Mandabhai, panch 39 7 Govindbhai Naranbhai, panch 41 8 Jethabhai Rajshibhai Parmar, panch 43 9 Jivabhai Rambhai, panch 45 10 Jentibhai Madhabhai, panch 46 11 Rajabhai Ramabhai, panch 48 12 Dilipbhai Rambhai, panch 49 13 Kishorbhai Karshanbhai, panch 51 14 Balubhai Shakrabhai, panch 53 15 Lakhmanbhai Ranabhai, complainant 81 16 Naranbhai Ukabhai 92 17 Varjandbhai Devabhai 109 18 Vijay Ukabhai Dodiya 113 19 Dineshbhai Vejabhai 129 20 Bharatbhai Chhaganbhai Barjod, PSO, Junagadh 130 21 Punjabhai Rajabhai Karmata, ASI , Mangrol 22 Samatbhai Sadurbhai 142 23 Pradipkumar Odhavjibhai 146 24 Lakhdhirsinh Navalsinh Jethva 150 25 Bhashkarrav Lakduji Vagh 162 2.3 The prosecution also relied on following documentary evidence: Description Exhibit No. Injury certificate issued by CHC, Mangrol 21 Case papers of CHC, Mangrol 22 Injury certificate issued by Junagadh Civil Hospital 26 MLC Case papers of Junagadh Civil Hospital 28 Police yadi dt. 13.3.2000 for P.M. of dead body 32 Inquest panchnama 33 Marnotar form 34 Post mortem report 35 Yadi for noting clothes found on the dead body 36 Panachnama dt. 14.3.2000 of seizure of articles from the scene of offence as per FSL authority 42 Panchnama of surname of accused 44 Panchnama dt. 16.3.2000 of seizure of blood sample of accused 47 Panchnama dt. 21.3.2000 taking over clothes found on the body and blood sample for post mortem by the police 50 Discovery panchnama dt. 18.3.2000 52 Original complaint dt. 14.3.2000 of seizure of articles from the scene of offence as per FSL authority 42 Panchnama of surname of accused 44 Panchnama dt. 16.3.2000 of seizure of blood sample of accused 47 Panchnama dt. 21.3.2000 taking over clothes found on the body and blood sample for post mortem by the police 50 Discovery panchnama dt. 18.3.2000 52 Original complaint dt. 13.3.2000 82 FIR of Shil Police Station C.R.No.I-11 of 2000 dated 7.3.2000 118 Copy of written complaint by the complainant to Shil Police Station 119 Panchnama of scene of offence dated 14.3.2000 120 Yadi by PI for investigation of PSO, Shil I.C.R.No.11/2000 121 Yadi written for taking note of offence by Dy.S.P. 122 Deposition of Naran Uka in Case No.409/2000 123 Deposition of Karshanbhai Velabhai 124 Deposition of Babubhai Valabhai 125 Deposition of Jiviben Naranbhai 126 Deposition of Bhaskarrav Laxmanji 127 Deposition of Osmanbhai Vallabhbhai 128 Information regarding FIR incident 132 and 151 Copy of police station diary 133 Copy of police station diary of Mangrol Police Station 143 and 152 Yadi by Mangrol Police to JMFC for adding offence under sec.302 of IPC 153 Forwarding note of muddamal to FSL 163 Receipt issued for receipt muddamal by FSL 164 Preliminary report of FSL 166 Forwarding note of FSL 167 Preliminary serological report of FSL 168 Forwarding form of FSL 169 Preliminary opinion of FSL 170 Yadi by police to Medical Officer for blood sample 171 Mobile Laboratory Report of FSL 172 Expenditure voucher 174 Copy of chapter case of police 175 Order dt.18.9.2001 of Case No.409/2000 of accused Dhiru Govind Solanki 191 Copy of Regular Civil Suit No.10/95 192 Copy of injunction order in Regular Civil Suit No.10/95 193 Copy of plaint in Special Civil Suit No.11/2003 194 2.4 On submission of closing pursis by the prosecution, learned Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure qua incriminating evidence where they have denied to have committed any offence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, the impugned judgment and order 13th April, 2006 was passed by the learned District and Sessions Judge, Junagadh in Sessions Case No.76 of 2000 whereby the present respondents-original accused Nos.1 to 5 were acquitted of the charges levelled against them. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, the impugned judgment and order 13th April, 2006 was passed by the learned District and Sessions Judge, Junagadh in Sessions Case No.76 of 2000 whereby the present respondents-original accused Nos.1 to 5 were acquitted of the charges levelled against them. However, original accused No.6-Dhiru Govind Solanki was convicted for the offence punishable under section 325 of IPC and sentenced to suffer rigorous imprisonment for a period of six months with fine of Rs.500/-, in default of payment of fine, to suffer further simple imprisonment for fifteen days. Original accused No.6-Dhiru Govind Solanki does not appear to have preferred any appeal against his conviction. It is this judgment and order of acquittal of original accused Nos.1 to 5 which is giving rise to prefer the present appeal by the State. The appeal came to be admitted vide order dated 2.5.2007 and it has come up for final hearing before this Court. 3. The fact emerging from the record is that original accused No.6-Dhiru Govind Solanki, who was held guilty for the offence punishable under section 325 of IPC, was acquitted for the main charge of section 302 of IPC. It appears that the State has not preferred any appeal against original accused No.6 as the present appeal is against the original accused Nos.1 to 5. In the background of these facts, the Court has taking up the matter finally. 4. Leaned Additional Public Prosecutor, Mr. Hardik Soni, appearing for the State, has vehemently contended that there is a serious error committed by the learned trial Judge in passing the judgment and order. By referring to several evidences appearing on record, he has contended that the witnesses have clearly attributed against the accused persons and the role played them. He has further supported his contention by asserting that the motive in question has also been proved by the prosecution beyond reasonable doubt and in addition thereto, the narration of occurrence of incident is established by the prosecution corroborated by cogent piece of evidence and therefore, he has contended that by not holding guilty the accused persons for the main charge of section 302 of IPC, a serious error is committed by the learned trial Judge. He has taken us through the deposition of Dr. He has taken us through the deposition of Dr. Yogitaben at Exh.20, who treated the deceased Kanji Rama and has asserted that the injuries, which are inflicted on the body of the deceased, are possible by sharp cutting instruments as well as by blunt portion of weapons. It has been pointed out that when the deceased was brought to the hospital, a specific history was also recorded in which there appears to be a clear involvement of the respondents accused persons. He has pointed out that even Dr. Dineshkumar, who was examined by the prosecution at Exh.29, a Medical Officer at Civil Hospital, has also specifically taken the history from the deceased and eye witness Naranbhai Ukabhai, P.W.No.16 has also narrated the entire incident which ought not to have been ignored by the learned trial Judge while passing the impugned judgment and order. Even the recovery of panchnama of weapon is also executed which clearly establish the commission of crime by the respondents accused on account of which, the deceased has passed away. By referring to these, he has further contended that the injuries are explained by the prosecution and in addition thereto, such injuries are corroborated by medical evidence and therefore, when such evidences are reflecting clearly the commission of crime, there is no reason why the accused persons are not to be held guilty of the main charge and by contending this, learned APP has contended that there is a serious error committed by the learned trial Judge in passing the impugned judgment and order. 4.1 It has also been contended by Mr. Soni that when the deceased was brought to the hospital, the history was specifically recorded. He has further contended that the weapons have also been recovered at the instance of respondents-accused and in addition thereto, major injuries are very much explained which are supported by medical evidence. Further, the presence of the accused persons have also been established beyond reasonable doubt and therefore, by raising mere inference and surmises, no order of this nature could have been passed to frustrate the case of the prosecution. Mr. Soni has then contended that no cogent reasons have been assigned for convicting the accused persons for the mere charge of section 325 of IPC and the entire narration is based upon wrong reading of evidence and therefore, such error of jurisdiction is required to be corrected. Mr. Soni has then contended that no cogent reasons have been assigned for convicting the accused persons for the mere charge of section 325 of IPC and the entire narration is based upon wrong reading of evidence and therefore, such error of jurisdiction is required to be corrected. It has also been contended that though all accused have taken active part in the commission of crime, which is visible from the record of the case, still, however, erroneously the impugned order of acquittal came to be passed in favour of present respondents-accused and therefore, the State was constrained to challenge the same by way of present appeal. It is in the background of these facts that Mr. Soni has requested the Court to allow the appeal. 5. To oppose the stand of the State, learned advocate, Mr. Param R. Buch, appearing for the respondentsaccused Nos.1 to 5, has vehemently contended that the appeal is meritless and there are no justifiable reason or contention which would warrant interference in the order passed by the learned trial Judge. 5.1 Mr. Buch has further contended that Dr. Yogitaben Dholiya examined at Exh. 20 as prosecution witness No.1 has categorically opined that if immediate treatment could have been given, then death might not have occurred and therefore, the injuries were not much serious which may attract the offence of section 302 of IPC. 5.2 He has further drawn the attention of the Court to yet another prosecution witness No.3, who has deposed at Exh.29, in which an assertion is made that no question was put to Dr.Vediya about the history which has been narrated. In that deposition, it is also coming out and the witness has admitted that in police yadi at Exh.30, there is no reference made about the history and in the case papers, there is no reference coming out of the use of the axe, scrape etc. and therefore, the history which has been narrated is also not that much cogent which would attract the main offence which has been alleged. By referring to these evidences, Mr.Buch has contended that there is no enough material led by the prosecution to prove the case beyond reasonable doubt. and therefore, the history which has been narrated is also not that much cogent which would attract the main offence which has been alleged. By referring to these evidences, Mr.Buch has contended that there is no enough material led by the prosecution to prove the case beyond reasonable doubt. It has also been contended that the injuries were not on the vital part of the body and the case is put up and the accused are arraigned on account of earlier vengeance with respect to theft of cement. He has further contended that the recovery of weapons has also not been proved and the bloodstains have not been found in the FSL report over the weapons. The injuries which were alleged to have been caused have not been explained and therefore, when the main witness has conducted himself unnaturally, there are all possibilities of roping the accused in the commission of crime. He has further contended that the discovery panchnama has not been proved as the panchas have not supported and the eye witness which is tried to be pressed into service to prove the case is not believable in view of his unnatural conduct and therefore, it has been contended that the learned trial Judge has rightly not believed the version of eye witness. He has further contended that motive has not been established in the case and to prove the motive also, no efforts have been made by leading evidence through independent witnesses. He has further contended that Chhakhdavala, who can throw some independent light on the case, has not been examined and looking to the overall material on record, the case is not getting substantiated enough to convict the accused persons. Even while lodging the complaint, the name which was given was that of Mr. Dhiru Govind and no one else and therefore, even assuming without admitting, then also, for rest of the accused, no animosity was born out from the evidence which would connect them to the incident in question. He has further contended that it is also not coming out from the record that which accused has caused injury from which weapon or substance and in the absence of such specific attribution, there is no other connecting material led by the prosecution which would arraign all the respondentsaccused. He has further contended that it is also not coming out from the record that which accused has caused injury from which weapon or substance and in the absence of such specific attribution, there is no other connecting material led by the prosecution which would arraign all the respondentsaccused. From the over-all material on record and looking to the injuries which are supported by medical evidence as well, it is emerging that at the best, the intention was to cause injury to the victim and not beyond that and therefore, in no other circumstance, it can be said that any error is committed by the learned trial Judge. It has also been contended that even the prosecution agency is not satisfied with the conclusion arrived at by the learned trial Judge on this issue since against Dhiru Govind, no appeal for enhancement is filed by the State and therefore, since that conclusion is accepted by the State machinery, there is no reason to deal with the respondents-accused for the main charge. It has also been contended that from the over-all material on record, while coming to the conclusion that eye witness is not believable, a justification is properly given with adequate material that there was definitely a land dispute going on between the parties for which a civil suit also came to be lodged with respect to land bearing Survey No.20 and in addition thereto, there was also a confrontation with respect to filling up form in election and therefore, though the witnesses have tried to prove the case, other corroborative material is not supporting and therefore, the prosecution has miserably failed to prove the case beyond reasonable doubt and in that view of the matter, what has been decided by the learned trial Judge is in consonance with the law and the conclusion which has been arrived at is not required to be interfered with and therefore, ultimately by referring to these materials prevailing on record, a request is made to dismiss the appeal filed by the State. 6. Having heard the learned advocates appearing for the parties and having perused the material on record and having gone through the detailed analysis of evidence, following circumstances are emerging from the record which cannot be given a go-by or ignored. 6.1 Prosecution witness No.1, Dr. 6. Having heard the learned advocates appearing for the parties and having perused the material on record and having gone through the detailed analysis of evidence, following circumstances are emerging from the record which cannot be given a go-by or ignored. 6.1 Prosecution witness No.1, Dr. Yogitaben Ravibhai Dholiya, who has been examined at Exh.20, has specifically deposed that in the morning hours on 13th March, 2000, while she was serving as a Medical Officer, a history was given to her and in the context, she had examined the victim. In her deposition, she has enlisted all the six injuries which are caused. She has also deposed that when she has examined the patient i.e. the victim, he was not in consciousness. This witness has further deposed that if immediate treatment is not made available, the injuries were such serious which could cause immediate death as well. This Medical Officer has asserted in her deposition that no doubt, the injuries were on non-vital part of the body but at the same time, the injuries were such serious which can cause the death if no immediate treatment is made available. 6.2 Prosecution witness No.2, Dr. Narendrakumar Naranbhai Vediya, who has been examined at Exh.24, has also opined that the injuries were such which can be possible on account of sharp cutting weapons. However, this Medical Officer has stated that at the time when he had examined the patient, he was in conscious state of affairs. The witness has further deposed that the injuries may not be possible through muddamal article No.13 i.e. axe. 6.3 Another doctor namely, Dr. Dineshkumar Mohanlal Dadhaniya, who has been examined as prosecution witness No.3 at Exh.29, has also asserted that when the victim was brought as indoor patient in Orthopedic Section, he informed the names of Bhupat Govind, Bhagvan Govind etc. and conveyed that prior to 3-4 hours, he was beaten up. He has further deposed that he has not given this history to police at the relevant point of time and therefore, from this evidence, the injuries have been reflected on the body of the victim which is substantiated by the versions of aforesaid Medical Officers. 6.4 Another prosecution witness named as Lakhmanbhai Ranabhai, who has been examined as P.W.No.15, has deposed that when he was passing around 8.30 a.m., he saw the accused persons armed with weapons. 6.4 Another prosecution witness named as Lakhmanbhai Ranabhai, who has been examined as P.W.No.15, has deposed that when he was passing around 8.30 a.m., he saw the accused persons armed with weapons. But it seems that actually he has not seen the occurrence of beating the victim and it is thereafter that he appeared to have gone for assistance. 6.5 Similarly, another prosecution witness, Naranbhai Ukabhai was examined as eye witness but, when he intercepted and upon shouting, the accused persons have ran away towards their field. This witness has attributed that it is on account of the past theft case of cement that this incident in question has occurred. This witness has, however, made an attempt that he was also threatened of dire consequences for giving deposition in the Court. 6.6 From the evidence on record, it further appears that Chhakhdabhai i.e. Dineshbhai Vejabhai has also been examined as prosecution witness No.19 at Exh.129. But this witness has not thrown much light to sufficiently establish the case of the prosecution and therefore, from the over-all material on record, it appears that the conclusion arrived at by the learned trial Judge is not possible to be accepted in toto. 6.7 Further analysis of these papers contained in the paper book reveals that discovery of weapon has taken place at the instance of the accused persons and the discovery panchnama is also signed by two witnesses, who did not dispute the signatures of Balubhai Shakrabhai and Kishore Karsanbhai. If this discovery panchnama is scene, it would appear that on the handle of the weapons, no bloodstains have been found nor visible. 6.8 Further perusal of the record indicates that FSL report, which is from pages 578 onwards of the paper book, clearly indicates that except on muddamal article Nos.1,9 and 15, no other muddamal articles were found with bloodstains. It is further reflecting that muddamal article No.15, which is a weapon attributed to Dhiru Govind, is found with blood stains and therefore, it appears that in that connecting material, Dhola Govind has been convicted by the court for the offence punishable under section 325 of IPC. 7. From the aforesaid materials on record, it appears that an error is committed by the learned trial Judge in not convicting original accused Nos.2,3 and 5 for the offence punishable under section 325 of IPC. 7. From the aforesaid materials on record, it appears that an error is committed by the learned trial Judge in not convicting original accused Nos.2,3 and 5 for the offence punishable under section 325 of IPC. There appears to be cogent material sufficient enough to convict those accused on the line on which accused Dhiru Govind came to be convicted and therefore, qua that part of the order, it appears that the error deserves to be corrected. 8. Conjoint reading of the evidences on record suggests that the accused Nos.2,3 and 5 have acted in commission of crime as alleged and therefore, not for the offence punishable under section 302, at least for the offence punishable under section 325 of IPC, the case is made out against them and accordingly, conclusion arrived at by the learned trial Judge deserves to be corrected. Section 325 of IPC is prescribing punishment for voluntarily causing grievous hurt which may extend to seven years. Now if one look at the definition of voluntarily causing hurt by dangerous weapons, the definition contained in section 322 reads as under:- “322. Voluntarily causing grievous hurt:- Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". 9. The aforesaid definition postulates that two elements are necessary to bring home the offence under this section that accused or the offender caused grievous hurt and therefore, on the basis of this, if the prosecution evidence is to be looked into, the learned trial Judge has rightly held Dhiru Govind as the ultimate responsible person and thereby rightly convicted him for the offence punishable under section 325 of IPC and sentenced him to six years of rigorous imprisonment. Against this, no appeal is filed by the State and therefore, if these circumstances are to be looked into and from the evidence with respect to other accused persons also, it appears that simply because Dhiru Govind had some possible animosity with the deceased Kanji, the other accused who have played and participated in commission of crime cannot be given a go-by because those accused persons were very much armed with weapons and atleast were aware about the fact that the weapons which they held for utilisation may cause grievous hurt and qua this aspect, for pinpointing Dhiru Govind only, the learned trial Judge has given a reason that on account of previous animosity in the form of complaint of theft of cement, there is possible rift qua Dhiru Govind only. Now this reasoning assigned by the learned trial Judge is not sufficient enough to scot-free the other accused persons as their identity and presence are established along with their participation in commission which is reflecting from the evidence on record. Therefore, at the best, some case is made out qua other accused persons for which the Court is of the considered opinion that the State has rightly taken up a stand to challenge the order of the learned trial Judge by way of present criminal appeal. 10. From the over-all view of the matter, it appears that out of other accused persons, role of respondentaccused No.1-Bhupat Govind Solanki is not sufficient to bring home the offence qua him. Similarly is the case with accused No.4-Bachu Govind Solanki, who was attributed scrape which is not established on record and therefore, on account of their alleged role being not satisfactorily proved beyond reasonable doubt before the court below, it appears that these respondents accused i.e. accused Nos.1 and 4 were on bail all-throughout and on account of lack of material, these respondents came to be acquitted from the charges levelled against them. 11. The aforesaid materials on record coupled with the offences which are reflecting from the record indicate that it is not possible to digest the complete acquittal of accused persons. 11. The aforesaid materials on record coupled with the offences which are reflecting from the record indicate that it is not possible to digest the complete acquittal of accused persons. The over-all analysis would indicate that at least the offence punishable under section 325 of IPC can be said to have been made out and, therefore, simply because the learned trial Judge has not referred to and mentioned this offence, the same does not preclude the Court from convicting the accused persons for the offence which is reflecting from the record. Section 221 of Cr.P.C. takes care of such a situation and safeguards the powers of Criminal Court to convict an accused for an offence with which he is not charged although the facts found in the evidence could have charged him for such offence. The mere omission to frame the charge of section 325 of IPC in the present case cannot be said to preclude the Court from passing an order of conviction. A bare perusal of the said provision deserves to be reproduced hereinafter: “221. Where it is doubtful what offence has been committed (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.” Therefore, it appears that mere omission of charge of section 325 of IPC has not resulted in any failure of justice as per section 215 of Cr.P.C. Looking to the conjoint reading of these statutory provisions, we are of the considered opinion that evidence on record is sufficient enough to attract this offence and, therefore, there would be no necessity to remand the matter back to the trial court by framing the charge and again directing retrial of that charge. The Hon'ble Apex Court is couched with sufficient power to mould the order of acquittal and convert the same into conviction. This principle has been enunciated by a decision of the Hon'ble Apex Court reported in AIR 2003 SC 11 in the case of K. Prema S. Rao and another Vs. Yadla Srinivasa Rao and others in which some observations as made in paragraph Nos.22, 23, 24 and 25 are very relevant to the issue governing the present judgment and, therefore, are reproduced hereinafter:- “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 S. 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of S. 305, 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 S. 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. Section 221 of Cr. P.C. needs reproduction: "221. Where it is doubtful what offence has been committed- (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. 23. The provision of sub-section (2) of Section 221 read with sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498-A of IPC. 24. Section 215 allows criminal Court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr. P.C. which reads :- “215. Effect of errors No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.” 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 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. 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 495-A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498-A, IPC.” 12. So far as the powers of appellate court are concerned, we are mindful of the fact that such powers are not so circumscribed whereby if the Court feels that the offence of a particular nature is established by the prosecution, simply because the main charge is not proved, the Court cannot do anything and, therefore, looking to this well defined scope of powers of appellate court, we are of the considered opinion that a case is made out from the record to convict the accused at least for the offence punishable under section 325 of IPC. 13. In the recent pronouncement of the Hon'ble Apex Court in the case of Nayankumar Shivappa Waghmare v. State of Maharashtra reported in (2015)11 SCC 213 , the Hon'ble Apex Court has propounded that the normal rule that where two views are possible, the finding of the trial court should not be disturbed. However, the Court observed that that does not mean that in every case where the trial court acquitted the accused by giving benefit of reasonable doubt, the High Court in appeal cannot convict him. The relevant observations made in paragraph Nos.11 and 12, which are worth to be taken note of, are reproduced hereunder:- “11. Learned counsel for the appellant argued before us that since the trial court has acquitted the appellant giving him benefit of reasonable doubt, the High Court erred in law in convicting him as it is settled principle of law that where two views are possible, the finding of the trial court should not be disturbed. 12. The above argument advanced on behalf of the appellant, in the present case, is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial court can be corrected. 12. The above argument advanced on behalf of the appellant, in the present case, is misconceived for the reason that if the same is accepted, there cannot be any case where appeal against acquittal can be allowed, and the error committed by the trial court can be corrected. The perusal of the impugned judgment shows that after discussing the evidence on record, the High Court has come to a definite conclusion that the trial court has erred in law in coming to the conclusion that the charge in respect of offence punishable under Sections 7 and 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is established. The High Court has clearly held that the trial court erred in law in giving benefit of reasonable doubt to the accused in the present case. After going through the evidence on record we are also of the opinion that it is not a case where two views are possible. As such, we do not find any illegality in the impugned order reversing the order of acquittal recorded by the trial court.” 14. Yet in another decision of the Hon'ble Apex Court in the case of Jage Ram and Ors. Vs. State of Haryana reported in (2015)11 SCC 366 on the issue of principle of sentencing, the observations made by the Hon'ble Apex Court are necessitating us to take an assistance and, therefore, the relevant observations contained paragraph No.16 are reproduced hereunder:- “16. For the conviction under Section 307, IPC, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. Question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. What sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances. Vide State of M.P. v. Bablu Natt, 2009 (2) SCC 272 ; Alister Anthony Pareira v. State of Maharashtra, 2012 (2) SCC 648 and Soman v. State of Kerala, 2013 (11) SCC 382 .” The Hon'ble Apex Court, on the contrary, has observed that while imposing punishment, the Courts have an obligation to award appropriate punishment. 15. Vide State of M.P. v. Bablu Natt, 2009 (2) SCC 272 ; Alister Anthony Pareira v. State of Maharashtra, 2012 (2) SCC 648 and Soman v. State of Kerala, 2013 (11) SCC 382 .” The Hon'ble Apex Court, on the contrary, has observed that while imposing punishment, the Courts have an obligation to award appropriate punishment. 15. In another decision on the issue of penology, the Hon'ble Apex Court has also considered the role of Courts of law and has opined that appropriate reasonable punishment is required to be inflicted upon and, therefore, following observations made in paragraph Nos.2, 7, 12 to 19 of the case reported in (2015) 6 SCC 185 in the case of Shanti Lal Meena Vs. State of NCT of Delhi, C.B.I are required to be referred to which are reproduced hereinafter:- “2. According to W. Friedmann, "The purpose of the penal law is to express a formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it. Implicit in this formulation are three questions, to which different societies give very different answers: First, what kind of conduct is 'forbidden'? Second, what kind of 'formal social condemnation' is considered appropriate to prevent such conduct? Third, what kind of sanctions are considered as best calculate to prevent officially outlawed conduct?" xxx xxx xxx 7. In determining the quantum of sentence, the kind of forbidden conduct, the kind of social condemnation, the sanction prescribed in law, the object of punishment, the nature of crime, the status of the criminal, etc., are some of the relevant factors to be considered by the courts. xxx xxx xxx 12. In Dhananjoy Chatterjee alias Dhana v. State of W.B.3, this Court held at paragraph-15 that- "15. ….. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime." 13. In Ahmed Hussein Vali Mohammed Saiyed and another v. State of Gujarat, 2009 (7) SCC 254 at paragraph-99, this Court reiterated the position in the following words :- "99. ….. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. ….. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system." 14. In a recent decision in State of Madhya Pradesh v. Bablu, 2009 (2) SCC 272 it was held as follows:- "10. It is well-settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. One should keep in mind the social interest and consciousness of the society while considering the determinative factor of sentence commensurate with the gravity and nature of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers." 15. After extensively referring to the objects of punishment in State of Punjab v. Bawa Singh, 2015 (3) SCC 441 at paragraph-17, this Court held that:- "undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence...". 16. Mahesh s/o Ram Narain and others v. State of Madhya Pradesh, 1987 (3) SCC 80 while referring to the cruel acts of the convicted accused, this Court observed that :- "to give the lesser punishment for the appellants would be to render the justice system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon". 17. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon". 17. In Ravi alias Ram Chandra v. State of Rajasthan, 1996 (2) SCC 175 this Court held that the sentence should reflect the social conscience of society and that the sentencing process has to be stern, where it should be. 18. In Shailesh Jasvantbhai and another v. State of Gujarat, 2006 (9) SCC 516 and others, at paragraph-7, it was held that :- "protection of society and stamping out criminal proclivity must be the object which must be achieved by imposing appropriate sentence". 19. In Hazara Singh v. Raj Kumar and others, 2013 (9) SCC 516 this Court took the view that: "11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence."” 16. Keeping in mind the aforesaid principles propounded by the Hon'ble Apex Court from the over-all materials on record, we are of the considered opinion that maintaining the order of acquittal would not meet the ends of justice. 17. Now so far as accused Nos. 2, 3 and 5 are concerned, as we have stated that there appears to be material very much reflecting from the record which would connect them with the crime in question and we find that there is no justifiable reason assigned by the learned trial Judge to give a clean chit to these accused persons, who are very much figured on the record to have played part in commission of crime. It is nonetheless appearing from the record that after the incident in question, in the complaint which has been lodged, the main attribution was towards Dhiru Govind and no other respondents-accused persons and in addition thereto, the motive is also established qua Dhiru Govind as well but then looking to the injuries caused, the medical evidence emerging from the record and also the discovery of weapons coupled with FSL report, it appears that these respondents accused i.e. accused Nos.2,3 and 5 have also committed the offence and therefore, they may not be put at par with the main accused Dhiru Govind but atleast it is not a case in which the Court can ignore the role played by them and therefore, after considering over-all view of the matter and after considering the chronology of events, we are of the considered opinion that if the respondents-accused Nos.2,3 and 5 are held guilty of offence punishable under section 325 of IPC, but looking to their position on record, if the sentence undergone by them is ordered to be maintained as a part of conviction, the interest of justice would be met and accordingly, we deem it fit to hold the respondents-accused Nos.2,3 and 5 as guilty for the offence punishable under section 325 of IPC and sentence them to the period which they have already undergone during the course of trial. With this modification, we deem it proper to partly allow the Criminal Appeal filed by the State and accordingly, following order would meet the ends of justice. 18. The present appeal is partly allowed. The judgment and order of acquittal dated 13.4.2006 passed by the learned Sessions Judge, Junagadh, in Sessions Case No.76 of 2000 is hereby quashed and set aside qua original accused Nos.2, 3 and 5 and they are convicted for the offence punishable under Section 325 of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by them as under-trial prisoners. Rest of the judgment and order of acquittal dated 13.4.2006 shall remain unaltered. The bail bonds shall stand discharged. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. Appeal partly allowed.