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2019 DIGILAW 1002 (GAU)

Srikanta Paul v. State of Assam

2019-09-05

AJIT BORTHAKUR

body2019
JUDGMENT : AJIT BORTHAKUR, J. 1. Heard Mr. A.M. Bora, learned senior counsel appearing for the petitioner, Mr. N.K. Kalita, learned Addl. Public Prosecutor, Assam for State respondent No. 1 and Mr. G.Z. Ahmed, learned counsel for the respondent No. 2/informant. 2. By this petition under Section 482 Cr.P.C., the petitioner has prayed to quash the impugned order, dated 09.11.2017, passed by the learned Sessions Judge, Darrang at Mangaldai in Sessions case No. 151 (DM) 17 and the charge-sheet No. 257/17, dated 15.10.2017, under Section 306 of the IPC against the petitioner in connection with Kharupetia P.S. case No. 303/17, dated 17.7.2017. 3. Mr. A.M. Bora, learned Sr. Counsel for the petitioner, submits that the learned Sessions Judge by the impugned order framed charges by clubbing Section 302 and Section 306 of the IPC which is inherently bad in law, inasmuch as, offences under these two Sections cannot go hand in hand as offence under Section 302 of the IPC is in respect of commission of murder, whereas Section 306 of the IPC pertains to abatement of suicide, which cannot be vice versa. Mr. Bora, therefore, vehemently submits that the matter should be remanded back to the learned trial Court to reconsider the charges afresh. 4. Mr. N.K. Kalita, learned Addl. Public Prosecutor, Assam, submits that in view of different ingredients of both the offences, the same cannot be coincided with and as such, agreed to the submission made by Mr. Bora, the learned Sr. Counsel for the petitioner. 5. Per Contra, Mr. G.Z. Ahmed, learned counsel for the respondent No. 2/informant, submits that due to the learned trial Court framing charges under Sections 302 and 306 of the IPC, in fact, no failure of justice would occasion to the petitioner/accused, inasmuch as, if charge under Section 306 of the IPC is proved, a conviction under the said Section of the IPC is permissible when even a charge under Section 302 of the IPC is framed in a case. In support of his argument Mr. Ahmed, relied on the judgment of the Supreme Court rendered in Dalbir Singh Vs. State of U.P., reported in (2014) 5 SCC 334. 6. I have considered the above arguments made by the learned counsel of both sides and perused records. The impugned order, dated 09.11.2017, reads as hereinbelow extracted (Relevant portion): "09.11.2017 Accused Habibar Rahman is produced from jail hajot. State of U.P., reported in (2014) 5 SCC 334. 6. I have considered the above arguments made by the learned counsel of both sides and perused records. The impugned order, dated 09.11.2017, reads as hereinbelow extracted (Relevant portion): "09.11.2017 Accused Habibar Rahman is produced from jail hajot. On consideration of framing charge I have carefully perused the entire materials on record including the Police papers supplied under Section 173 Cr.P.C. also heard learned Public Prosecutor for the State as well as learned counsel appearing for the accused at length. It appears that a prima-facie case is made out against the accused person and there are sufficient grounds for presuming that the accused had committed the offence under Section 302/306 IPC. That being so, the formal charges under Section 302/306 IPC are accordingly framed against the accused. The same on being read over and explained to the accused to which he has pleaded not guilty and claimed to be tried. Issue summons to materials PWs at first P.P. will take step accordingly." 7. It may be mentioned, in brief, that under the scheme of the Indian Penal Code 'culpable homicide' defined in Section 299 of the IPC, is genus and murder is species, whereas all murders are culpable homicide, defined in Section 300 of the IPC, but Exceptions 1 to 5 to the said Section indicate the circumstances, when culpable homicide may not be a murder. The crux of the offence of murder lies in the intention of the offender. On the other hand, a person is punishable under Section 306 of the IPC, if he abets the commission of suicide by any person. The essence of the aforesaid offence lies in abetment of such suicide. 8. In Dalbir Singh (Supra), the Supreme Court held that Section 464 Cr.P.C. deals with the effect of omission to frame, or absence of, or error in, charge. Sub-section (1) of this Section provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This clearly shows that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that a failure of justice has in fact been occasioned thereby. The Supreme Court further held that Section 222 Cr.P.C. is in the nature of a general provision, which empowers the Court to convict for a minor offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said section also make the position clear. 9. The backdrop of facts in which the above ratio of the judgment was rendered in Dalbir Singh (Supra) appears to be different to the fact of the case in hand, inasmuch as the question that fell for consideration in the said case was whether the accused could be convicted under Section 306 of the IPC if a charge of the said offence had not been framed, but here is the contention where the issue is flaming of charges under Sections 302 and 306 of the IPC, being diagonally opposite charges that has given rise to confusion in the mind of the petitioner/accused and entailing thereby an adverse effect on his defence plea although a conviction under Section 306 is permissible when there is sufficient material on record. A charge under Section 302 of the IPC can even be framed, provided the accused is aware of the basic ingredients of the offence and has got a fair chance to defend himself so as to prevent failure of justice in any manner. 10. Therefore, having regard to the legal position that offences under Sections 302 and 306 of the IPC are diametrically opposite being distinct offences, this Court is of the view that in order to prevent a failure of justice to both the prosecution and the defence in due course of trial of the case, it is necessary that the charges impugned herein to be altered/amended against the petitioner/accused suitably resorting to section 216 Cr.P.C. and accordingly it is ordered. 11. The petition stands partly allowed and the matter is remanded back to the learned trial court. 12. The petition is disposed of accordingly.