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2024 DIGILAW 82 (ALL)

Vijay Singh v. State of U. P.

2024-01-08

RAJ BEER SINGH

body2024
JUDGMENT : Raj Beer Singh, J. 1. Heard Sri I.K. Chaturvedi, learned Senior Advocate, assisted by Sri Saurabh Chaturvedi, learned counsel for the appellant and learned A.G.A. for the State. 2. This criminal appeal has been preferred against the judgment and order dated 30.05.2023, passed by the learned Special Judge (MP/MLA)/Additional Sessions Judge, Court No.03, Farrukhabad in Criminal Case No.02 of 2019 (State Vs. Vijay Singh), P.S. Kotwari Fatehgarh, District Farrukhabad, whereby, the appellant has been convicted under Section 406 IPC and sentenced to three years R.I. with fine of Rs.8,00,000/-. In default of payment of fine, the appellant has to undergo three months additional imprisonment. 3. According to prosecution version, the informant Rahul Tomar has lodged first information report of this case on 26.06.2024 under section 302 IPC by submitting tehrir exhibit Ka-1, alleging that on 26.06.2024 at 07.30 AM some unknown person has committed murder of his father Vijendra Singh Tomar, who was working as driver in police department. It was also alleged that two golden rings and a golden chain of his father were also robbed. It appears that during investigation, it was found that deceased has committed suicide and that the appellant has abetted the deceased to commit suicide and thus, charge-sheet was submitted under Section 306 IPC against appellant. 4. The trial court charged the appellant under Section 306 IPC, who pleaded not guilty and claimed trial. In order to prove its case, the prosecution has examined 13 witnesses. P.W.-1 Rahul Tomar is informant and P.W.-2 Shishu Pal Singh, P.W.-3 Surendra Singh, P.W.-4 Uday Raj Singh, P.W.-5 Saroj Tomar and P.W.7 Neetu Chauhan are witnesses of fact. P.W.-6 Rajesh Kumar has recorded the first information report and P.W.-8 Dr. Swayam Prakash Kushwaha has conducted postmortem of the deceased. P.W.-9 Shiv Shankar Shukla and P.W.10. Tribhuwan Singh have conducted part investigation. P.W.-11 Jay Prakash and P.W.-12 Nawab Ahmad are formal witnesses. P.W.13 Bhuvnesh Kumar Gautam has also conducted part investigation. 5. The appellant was examined under section 313 CrPC, wherein he denied the prosecution version. In defence evidence, one Sanjeev Kumar Singh, Gaurav Singh @ Amit Singh Tomar, Khalid Khan @ Rajju, Shamim Khan @ Jugunu and R.P. Yadav as D.W.-1 to D.W.-5. 6. After hearing and analysing the evidence, the trial court convicted the appellant under Section 406 IPC and sentenced as mentioned in para no.2. of this judgment. 7. In defence evidence, one Sanjeev Kumar Singh, Gaurav Singh @ Amit Singh Tomar, Khalid Khan @ Rajju, Shamim Khan @ Jugunu and R.P. Yadav as D.W.-1 to D.W.-5. 6. After hearing and analysing the evidence, the trial court convicted the appellant under Section 406 IPC and sentenced as mentioned in para no.2. of this judgment. 7. Being aggrieved, the appellant has preferred the present criminal appeal. 8. Learned Senior Advocate submits that impugned order is against facts and law and thus, liable to be set aside. The appellant was not named in the first information report. The charge-sheet was submitted under Section 306 IPC and the appellant was charged by the trial court for offence under Section 306 IPC and that no charge was framed under Section 406 IPC but despite that the trial court has convicted the appellant under Section 406 IPC, which is against facts and law. Referring to provisions of Section 222 CrPC and facts of the matter, it was submitted that the conviction of appellant is neither based on evidence nor the conviction of appellant under section 406 IPC is legally permissible. Learned Senior Advocate has placed reliance upon Shamnsaheb M.Multtani vs State of Karnataka (2021) 2 Supreme Court Cases 577. 9. Learned A.G.A has opposed the appeal and submitted that there is no illegality or perversity in the impugned order. Though the appellant was charged under section 306 IPC but on the basis of evidence, a case under section 406 IPC was made out. In comparison to section 306 IPC, the offence under section 406 IPC provides less punishment and thus, the conviction of appellant under section 406 IPC is justified. 10. I have considered rival submissions and perused the record. 11. Perusal of record shows that in evidence, the informant/P.W.1 Rahul Tomar has inter-alia stated that his father was physically and mentally fit person and he was got murdered by appellant-accused Vijay Singh. PW-1 stated that at the time of incident, he was in Mainpuri and he has received information regarding this incident by phone. At the time of incident, the appellant-accused was a member of Legislative Assembly from Farrukhabad Sadar constituency and the deceased was having good relations with him. PW-1 stated that at the time of incident, he was in Mainpuri and he has received information regarding this incident by phone. At the time of incident, the appellant-accused was a member of Legislative Assembly from Farrukhabad Sadar constituency and the deceased was having good relations with him. In the month of September, 2013 the appellant-accused has asked for Rs.5 lakhs from the deceased for providing job of Village Development Officer to the sister of informant and consequently, the deceased has given an amount of Rs.4,75,000/- to the appellant-accused but no job was provided to the sister of informant. P.W.1 further stated that when the deceased has demanded his amount back, the appellant-accused has threatened to kill him. In this connection, the father of informant has also made a complaint to S.P. and D.M., which has been proved as exhibit Ka-2 and Ka-3. 12. P.W.-2 Shishu Pal Singh has stated that deceased was residing in his neighbourhood and on the day of incident at 07.30 AM after hearing sound of firing, he reached at the residence of deceased, which was lying locked from inside. After breaking the door, P.W.2 and other persons entered into the room and found that the deceased was lying in injured condition and that his licenced revolver was also lying near him. Similar is the statement of P.W.-3 Surendra Singh and P.W.4.-Uday Raj Singh. 13. P.W.-5 Saroj Tomar is wife of deceased and she has stated that appellant has taken an amount of Rs.4,75,000/- from the deceased for providing job to her daughter on the post of village development officer but no job was provided and when the deceased has demanded his money back, the appellant has threatened to kill him. She has further submitted that due to that reason, the deceased was under depression and on 26.06.2014 at 8.00 AM the deceased was found in injured condition at his residence. She has stated that her husband has been got murdered by appellant Vijay Singh after hatching a conspiracy. 14. P.W.7 Neetu Chauhan, who is daughter of deceased, has stated that she is MA, B.Ed and in month of September 2013 she has applied for the post of Village Development Officer. The appellant has asked for Rs.5 lakhs for providing job on the said post and consequently, the deceased has given an amount of Rs. 4,75,000/- to the appellant but she was not provided any job. The appellant has asked for Rs.5 lakhs for providing job on the said post and consequently, the deceased has given an amount of Rs. 4,75,000/- to the appellant but she was not provided any job. When the deceased demanded his amount back, the appellant has threatened to kill him. 15. P.W.-6 H.C. Rajesh Kumar has recorded the first information report. P.W.-9 Shiv Shankar Shukla and P.W.-10 Tribhuwan Singh have conducted part investigation. P.W.-11 Jai Prakash has recorded general diary entry. P.W.-12 Nawab Ahmad and P.W.-13 Bhuvnesh Kumar Gautam have also conducted part investigation. 16. In defence evidence, D.W.-1 Sanjeev Kumar Singh has stated that on 26.06.2014 he received information that the deceased Vijendra Singh Tomar is lying in unconscious condition at his residence and when he reached there he found that deceased was unconscious and while he was being taken to hospital, he has told that he is perturbed by his children and that one of his daughter has performed love marriage with a washer-man and due to these reasons, he has committed suicide by firing bullet. Similar statements have been made by D.W.-2 Gaurav Singh @ Amit Tomar, D.W.-3 Khalid Khan @ Rajjo and D.W.-4 Shamim Shan @ Jugunu. D.W.5 R.P. Yadav has stated that he has conducted part investigation of this case and on verification, it was found that alleged complaint dated 24.01.2014 of Vijendra Singh Tomar was not received in the office of S.P. 17. One of the legal question that arises for consideration in this case is that if an accused has been charged under Section 306 IPC, whether such an accused can be convicted under Section 406 IPC without framing charge under that section under section 406 IPC.? In this connection, it would be apt to peruse the provisions of Section 221 and 222 CrPC, which read as under:- “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. 222. When offence proved included in offence charged.—(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.” 18. In case of Shamnsaheb M. Muttani Vs. State of Karnataka (supra), Hon’ble Apex Court in para 14 to 18 held as under:- “14. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence of which he is shown to have committed though he was not charged with it. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge. 15. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge. 15. Section 222(1) of the Code deals with a case when a person is charged with an offence consisting of several particulars. The Section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-section (2) deals with a similar, but slightly different, situation. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. 16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence. 17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 18. As the word cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 18. So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304- B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?” 19. In case of Chandrawati Vs. Ramji Tiwari and Another (2011) 2 Supreme Court Cases (Cri) 138, the Hon’ble Apex Court in para 15 to 17 held as under:- “15. In William Slaney’s case (supra), the two accused had been charged under Section 302/34 of the Indian Penal Code. There was no charge under Section 302 simplicitor against any of the two accused. One of the accused having been acquitted, the question arose as to whether the conviction of the other accused under Section 302 was legally tenable. The Constitution Bench of this Court observed that merely because a charge had not been framed would not mean that conviction could not be recorded unless prejudice could be shown by the accused and this was a factor which would depend on the facts of each case. It must be noted that in Williams Slaney’s case, a charge under Section 302/34 had been framed and that Section 34 of the Indian Penal Code does not constitute an offence. In the present matter, there was no charge for the offence under Section 109 of the Indian Penal Code. This principle was reiterated in Radha Mohan Singh’s and Dalbir Singh’s Cases (supra). 16. In the present matter, there was no charge for the offence under Section 109 of the Indian Penal Code. This principle was reiterated in Radha Mohan Singh’s and Dalbir Singh’s Cases (supra). 16. It must therefore be held that as two of the accused, Ramji Tiwari and Virendra Prasad Tiwari, had claimed the right of private defence and had also produced defence evidence in accordance with this plea, the non-framing of a charge under Section 109 of the Indian Penal Code against the four acquitted accused had clearly caused prejudice to them. 17. Mr. Das has made an alternative submission that if this court was of the opinion that a failure of justice had in fact been occasioned, the matter should be remitted to the trial court under Section 464 of the Criminal Procedure Code for fresh trial from the point of the framing of the charge in the light of the fact that the incident pertained to four murders. We are unable to accept this submission for the reason that the incident happened in the year 1997, the trial court rendered its Judgment in August, 2000 and the High Court two years later. It would, therefore, not be in the interest of justice to remand the case more particularly as it is the admitted position that the only role attributed to the four is exhorting Ramji Tiwari to kill the enemy.” 20. Thus, section 222 CrPC provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. It further provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. 21. At this stage it would also be pertinent to mention the provisions of section 464 CrPC, which read as under:- “464. It further provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. 21. At this stage it would also be pertinent to mention the provisions of section 464 CrPC, which read as under:- “464. Effect of omission to frame, or absence of, or error in, charge - (1) 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. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” 22. On careful perusal of the above said provision it appears that mere non framing of charge would not vitiate the judgment of conviction, if no prejudice has been caused to the accused and there is no failure of justice. To arrive at the conclusion whether there is failure of justice or not, the Court has to examine whether the accused was aware of the basic ingredients of the offence for which he has been convicted and whether the relevant facts have been explained to the accused to defend himself. To arrive at the conclusion whether there is failure of justice or not, the Court has to examine whether the accused was aware of the basic ingredients of the offence for which he has been convicted and whether the relevant facts have been explained to the accused to defend himself. Hon’ble Apex Court in the case of Dalbir Singh vs. State of Uttar Pradesh 2004 SC 1990 observed that there are a catena of decisions of the Court to the effect that 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. 23. Keeping in view the above mentioned ratio, in the instant case it may be seen that the first information report was lodged under section 302 IPC and after investigation, charge-sheet was submitted against the appellant under section 306 IPC. The trial court framed charge under section 306 IPC but after trial, appellant was convicted under section 406 IPC. No charge was framed under section 406 IPC. The trial court found that on 29.09.2013 the appellant took Rs 475,000/ from the deceased on pretext of providing job to the daughter of the deceased and when deceased demanded said amount back, the appellant refused to return the same. Section 406 IPC prescribes punishment for breach of trust which may extend to three years or with fine or with both. The nature of offence under section 406 IPC is altogether different from the offence under 306 IPC. Though the sentence provided for the offence under section 406 IPC is less then the offence punishable under section 306 IPC but as noted above the test of minor offence is not merely that the prescribed punishment is less than the major offence but the nature of offence. Though the sentence provided for the offence under section 406 IPC is less then the offence punishable under section 306 IPC but as noted above the test of minor offence is not merely that the prescribed punishment is less than the major offence but the nature of offence. Such offences must be cognate offences, wherein the main ingredients must be common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence. In the instant case the offence under section 306 and 406 IPC can not be said cognate to each other. The composition of the offence under Section 406 IPC is vastly different from the formation of the offence of abetement of suicide under Section 306 IPC and hence the former cannot be regarded as cognate and minor offence vis-a-vis the latter. Thus, appellant-accused could not be convicted under Section 406 IPC. Now the question arises whether the case must be remanded to the trial court to fame charge under section 406 IPC and to decide the case afresh. It was shown that the appellant-accused has already undergone the entire sentence of imprisonment awarded by the trial court, however, now he is stated in custody in some other case. Considering facts of the matter particularly considering the fact that the appellant-accused has already undergone the entire sentence of imprisonment awarded by the trial court, it is not desirable to remand the case for re-trial after framing of charge under section 406 IPC. 24. It would also be pertinent to mention that for conviction under section 406 IPC, the ingredients of Section 405 of the IPC must be satisfied and to attract the same the following factors have to be established: (a) the accused was entrusted with property, or entrusted with dominion over property. (b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. 25. 25. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. However, in the instant case, there is no cogent evidence to satisfy the ingredients of Section 405 of the IPC. Except the bald statements of the informant and his mother and sister, there is no other evidence to prove the above referred ingredients. Mere fact that deceased has given Rs. 475,000/ to the appellant-accused for job of his daughter but he did not return back said amount, would not satisfy the ingredients of offence defined under section 405 IPC. Even if any such amount was given to the deceased, the same was not for lawful purpose. As per prosecution said amount was given for securing a government job for the daughter of the deceased. Thus, the ingredients of offence under section 406 IPC are not established and therefore on this ground also, the appellant deserved to be acquitted. 26. In view of aforesaid, it is clear that the conviction of the appellant-accused under section 406 IPC is against facts and law and that the trial court committed error by convicting the appellant-accused under section 406 IPC. Accordingly, the impugned judgment of conviction and sentence passed by the trial court is set aside and the appellant is acquitted of the charge under section 406 IPC. If the appellant-accused is in jail in this case, he shall be released forthwith if not wanted in any other case. 27. In view of aforesaid, the appeal is allowed.