Sunday, 14 May 2017

Whether accused can be punished for major offence after being charged with minor offence?


Section 215 Cr.P.C. provides that omission to frame charge will not be treated as material unless it has resulted in any failure of justice by accused being misled by such error or omission. Such failure of justice includes violation of legal rights of accused. In judging a question of prejudice, the court must act with broad vision and look to the substance of the case and main concern should be to ensure as to whether the accused knew what he was being tried for and whether the facts established were explained to him fairly and whether the accused had been given full and fair opportunity to defend him. Provisions of Section 222(1) CrPC provides that when accused is charged with one offence, he may be convicted for other minor offence of similar nature. The question remains to be considered is as to whether accused can be punished for major offence after being charged with minor offence, if there is no prejudice and quantum of punishment is not more than that of minor offence. 



18. In this matter, the accused-appellant was charged for offence under Section 304-B I.P.C., in which maximum punishment was imprisonment for life, but he was punished for the charge under Section 302 I.P.C., which was a major offence, in which maximum punishment is death sentence. Apart from it, the nature of both the offences are different and law of evidence relating to both the offences are entirely different. Therefore, it is immaterial that in present case, this finding of learned Sessions Judge may be correct that having knowledge of facts of the charge, nature of evidences adduced. In spite of the understanding of accused to defend the charge of murder, the questions put to him under Section 313 Cr.P.C. regarding offence of murder and opportunity to adduce evidence apparently for the murder charge, there is always a possibility that accused-appellant was not heard and afforded opportunity to defend his case for major offence of Section 302 I.P.C. Because of not being charged for the same. Therefore, considering the verdict of Apex Court in Shamnsaheb M. Multtani's case (supra), as above, this appeal deserves to be allowed for him only. 

ALLAHAAD HIGH COURT

 JAIL APPEAL No. - 4846 of 2011 

Tejveer @ Pappi V  State 

Hon'ble Arvind Kumar Tripathi, J. 
Hon'ble Pramod Kumar Srivastava, J. 
Citation: 2017 CRLJ(NOC) 144 ALL

1. Heard again Mr. R.P. Singh, learned Advocate appearing on behalf of appellant, Mr. Mahendra Singh Yadav and Mr. A.N. Mulla, learned Addl. Govt. Advocates who appeared on behalf of State. 
2. This appeal has been preferred against the judgment of conviction and punishment dated 13.7.2011 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Ghaziabad in S.T. No. 776/2008, State Vs. Tejveer @ Pappi and Others, sections 498-A, 304-B I.P.C. and section 3/4 Dowry Prohibition Act, crime no. 391/2008, p.s. Loni, Ghaziabad, by which two accused Kartar Singh and Smt. Dropa were acquitted of the charges, but accused Tejveer @ Pappi was convicted for the charge under section 302 I.P.C. and was punished with imprisonment for life and fine of Rs. 10,000 (in default of payment of fine, three months simple imprisonment). 
3. Prosecution case in brief was that Kavita daughter of informant Bhole was married to Tejveer @ Pappi (son of accused Kartar Singh and Smt. Dropa) on 6.7.2006. At the time of this marriage no dowry was demanded but later on husband Tejveer, father-in-law Kartar Singh, mother-in-law Dropa and Nanad (sister-in-law) Priti had started harassing Kavita for demand of dowry. Due to this wedlock, one son of born which was about one month old at the time of incident. On 10.3.2008 these accused persons had pored kerosene oil on informant's daughter Kavita and burnt her due to which she was badly injured. When she raised alarm, then accused Tejveer had taken Kavita to G.T.B. Hospital. After getting the informant informant reached G.T.B. Hospital and found his daughter Kavita in burnt state, then she had given written report (Ex. Ka-1) in police station Loni on 19.3.2008. On the basis of which case crime no. 391/2008 was registered against four accused namely, Tejveer, Kartar Singh, Smt. Dropa and Priti. But after investigation police had submitted charge sheet for offences under sections 498-A, 304-B I.P.C. and section 3/4 Dowry Prohibition Act against three accused persons namely, Tejveer @ Pappi, Kartar Singh and Smt. Dropa. On the basis of this charge sheet S.T. No. 776/2008 was registered. 
4. In said sessions trial the accused persons were charged for offences punishable under sections 498-A, 304-B I.P.C. and section 3/4 of Dowry Prohibition Act. Accused persons pleaded not guilty of the charges and claimed to be tried. Then in support of charges prosecution side had examined PW-1 Bhole, informant (father of victim Kavita), PW-2 Smt. Kamlesh (mother of victim Kavita), PW-3 Dr. Medhali (who performed post-mortem of victim Kavita), PW-4 H.C. Dinesh Kumar (formal, for proving chik F.I.R. and G.D.), PW-5 Yogesh Pal Singh, Executive Magistrate (who recorded dying declaration of victim Kavita), PW-6 C.O. Satya Pal Singh (Investigating Officer), PW-7 Dr. Sanju Kohali (for proving medico legal injury report dated 10.3.2008 of victim Kavita) and PW-8 S.I. Pramod Kumar (Investigating Officer). These witnesses have also proved documentary evidences of prosecution side. 
5. After closure of prosecution evidence statement of accused under section 313 Cr.P.C. were recorded, in which they had denied the charges and stated that they had never demanded or harassed the victim. Accused Tejveer had stated that at the time of incident he was not present on spot and he came to know about the incident later on, then he had taken Kavita to hospital and informed the complainant. Accused Kartar Singh and Dropa @ Dorpadi (father-in-law and mother-in-law of deceased) had also denied the allegations and stated that they have never demanded dowry or treated the victim with cruelty and they are innocent. Kavita had burnt herself. They live separately from Tejveer and they have no concern with the charged incident. Defence side had examined DW-1 Mahtab Singh for proving that Tejveer live separately from his parents and for proving the alibi of Tejveer at the time of incident of burning of Kavita. 
6. After affording opportunity of hearing, the trial court had passed judgment dated 13.7.2011 by which the accused Kartar Singh and Dropa were acquitted of the charges under sections 498-A and 304-B I.P.C. and section 3/4 Dowry Prohibition Act. But trial court had found that this was not a case of dowry death but it was a case of murder of Kavita by her husband Tejveer (present applicant-accused). Thereafter, considering the facts, circumstances and provisions of section 221(2) Cr.P.C. and finding that due to conviction for charge u/s 302 I.P.C. no prejudice would be caused to rights of accused Tejveer, the trial court had convicted him for offence under section 302 I.P.C. Thereafter affording him opportunity on point of quantum of sentence, the trial court had passed sentence of life imprisonment and fine against him as above. 
7. Aggrieved by this judgment of conviction and punishment accused Tejveer had preferred present appeal. 
8. Learned counsel for the appellant contended that in this matter, appellant was charged for minor offences punishable u/ss 498-A, 304-B I.P.C., and Section 3/4 of Dowry Prohibition Act, in which maximum punishment prescribed is imprisonment for life, but appellant was convicted and punished for major offence punishable u/s 302 I.P.C., in which minimum punishment is imprisonment for life and maximum punishment is that of death. He contended that legally an accused cannot be convicted for major offence after being charged for minor offence. Therefore, judgment of conviction is legally erroneous. He contended that charge framed against accused-appellant was not proved and he was convicted for offence for which he was never charged. This had caused prejudice to the legal rights of accused-appellant and judgment of Sessions Court is erroneous in law and should be set aside. 
9. Learned A.G.A. refuted the contentions of appellant's side. He relied on judgments of Apex Court in Sanichar Sahni V. State of Bihar, SCC-2009-7-198 and (2005) 12 SCC, 612, and contended that unless there is failure of justice and thereby the cause of the accused has been prejudiced, no interference is required in the conviction that can be upheld on the evidences available against accused. He contended that in present case although charges for offences u/ss 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act were framed, but its contents clearly showed the commission of offence of murder punishable u/s 302 I.P.C. by the accused. He further contended that accused-appellant had no misunderstanding or confusion in the charge of murder levelled against him and not only defence side had gave suggestions to prosecution witnesses for that purposes, but during statement u/s 313 Cr.P.C., the accused were specifically put question regarding charge of murder of Kavita and even the defence side had led evidence of DW-1 in defence of the allegation of murder mentioned in the charges framed. Learned A.G.A. contended that there was no prejudice caused to accused-appellant during the trial, so mere error or omission in framing charge cannot be made basis of his exoneration. He contended that since the facts of the allegations of murder mentioned in charge were proved, therefore, this appeal should be dismissed without going into technicalities. 
10. Considered the submissions of counsels for the parties and perused the records. A perusal of record reveals that had the Section 304-B not been there, the facts of the charge would have made the allegation of murder punishable under Section 302 I.P.C. There has been evidence of prosecution witnesses as well as dying declaration of the victim, which was relied by learned Sessions Judge for proving the charge. A perusal of evidences of the parties reveal that finding of facts given by learned Sessions Judge regarding appellant Tejveer may be correct. But this fact requires consideration as to whether defect in framing of the charge in such matter may cause prejudice to the legal right of the appellant or not. 
11. Sections 215, 221 and 222 read with Section 464 of Cr.P.C. are relevant for determining these points, which are as under:- 
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. 

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. 

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 recommended 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. 

12. Section 215 Cr.P.C. provides that omission to frame charge will not be treated as material unless it has resulted in any failure of justice by accused being misled by such error or omission. Such failure of justice includes violation of legal rights of accused. In judging a question of prejudice, the court must act with broad vision and look to the substance of the case and main concern should be to ensure as to whether the accused knew what he was being tried for and whether the facts established were explained to him fairly and whether the accused had been given full and fair opportunity to defend him. Provisions of Section 222(1) CrPC provides that when accused is charged with one offence, he may be convicted for other minor offence of similar nature. The question remains to be considered is as to whether accused can be punished for major offence after being charged with minor offence, if there is no prejudice and quantum of punishment is not more than that of minor offence. In this regard, learned counsel for the appellant had relied on Dinesh Seth V. State (NCT of Delhi), (2008) 14 SCC 94, in which Apex Court had relied on AIR 1956 SC 116 and held as under:- 
"It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. 
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself." 
13. In this judgment, Hon'ble Apex Court had held that every reasonable presumption must be made in favour of an accused person and he must be given benefit of every possible reasonable doubt before determining the establishment of guilt. 
14. In present matter, accused-appellant was charged for main offence punishable u/s 304-B I.P.C., in which there are different grounds for determination of evidences and assessment for the punishment. For offence of culpable homicide amounting to murder punishable u/s 302 are based on different criterion. Laws relating to evidences for both the offences are entirely different. Therefore there may be possibility of prejudice to accused-appellant in such case when the defence side had gone with the trial of the case with assurance in its mind that appellant would not be punished for offence u/s 304-B I.P.C., as charged in spite of any other offence being proved. Then this possibility cannot be ruled out that the punishment for other such offences based on available evidences might cause him prejudice in assessing the evidences for his trial for the and producing his defence. 
15. In Shamnsaheb M. Multtani V. State of Karnataka, (2001) 2 SCC 577, Hon'ble Apex Court had held as under:- 
"24. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice." 
"32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. 
33. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304-B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law. 
34. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304-B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304-B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption. 
35. As the appellant was convicted by the High Court under Section 304-B IPC, without such an opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Section 304-B IPC. 
36. To facilitate the trial court to dispose of the case afresh against the appellant in the manner indicated above, we set aside the conviction and sentence passed on him by the High Court and remand the case to the trial court." 
16. In this judgment, Supreme Court had relied on the principles of natural justice, which is audi alteram partem, which means no person should be condemned without being heard. This judgment of case of Shamnsaheb M. Multtani (supra) explains the question involved in this appeal. 
17. Admitted legal position is that if an accused is tried by a competent court, wherein he is told and explained clearly the nature of offence, for which he is being tried, and he is afforded the full and proper opportunity of hearing and defending himself, then there is substantial compliance of law. In such a case, mere mistake in procedure or error or omission in framing of charge would not vitiate the trial unless accused can show that he has been substantially prejudiced. A person charged with major offence may be punished for minor offence of same nature, even if charge for minor offence has not been specifically framed. But where the nature of offences are entirely different, then it is immaterial as to whether any actual prejudice was caused or not, but if there was the possibility of prejudice being cause to accused on such an irregularity or error, then he cannot be punished even for the offence in which punishment is lessor than that for which he had been originally charged. 
18. In this matter, the accused-appellant was charged for offence under Section 304-B I.P.C., in which maximum punishment was imprisonment for life, but he was punished for the charge under Section 302 I.P.C., which was a major offence, in which maximum punishment is death sentence. Apart from it, the nature of both the offences are different and law of evidence relating to both the offences are entirely different. Therefore, it is immaterial that in present case, this finding of learned Sessions Judge may be correct that having knowledge of facts of the charge, nature of evidences adduced. In spite of the understanding of accused to defend the charge of murder, the questions put to him under Section 313 Cr.P.C. regarding offence of murder and opportunity to adduce evidence apparently for the murder charge, there is always a possibility that accused-appellant was not heard and afforded opportunity to defend his case for major offence of Section 302 I.P.C. Because of not being charged for the same. Therefore, considering the verdict of Apex Court in Shamnsaheb M. Multtani's case (supra), as above, this appeal deserves to be allowed for him only. 
19. Neither the other co-accused persons namely, Kartar and Dropa @ Dropadicomplainant had preferred appeal against the impugned judgment, by which they were acquitted nor the prosecution side had challenged their acquittal; therefore the impugned judgment should not be set aside for the acquitted accuseds. But the appellant deserves and full fledged opportunity to defend his case for charge under Section 302 I.P.C., which was held proved by the trial court on the basis of available evidences, as held. 
20. For the reasons discussed above, this appeal is allowed. The impugned judgment dated 13.7.2011 is set aside so far it relates to accused-appellant Tejveer @ Pappi, and is remanded back to trial court. The trial court shall frame additional/ alternative charge for offence under Section 302 I.P.C. against accused-appellant and may adduce prosecution witnesses again or may rely the already adduced evidences for said charge. If prosecution side, after framing of the charge under Section 302 I.P.C. chooses to not adduce evidence, in that case also, the accused shall have opportunity to cross-examine the prosecution witnesses, if he so chooses; and then court shall afford opportunity to accused to led defence evidence, and thereafter pass the judgment in accordance with law. It is again made clear that this judgment shall not have any effect on the judgment in respect of other two accused whose acquittal remains unchallenged. 
21. During trial, accused-appellant shall remain in judicial custody unless otherwise specifically ordered by the competent court. 
22. The record of the case be remitted back to the trial court immediately for ensuring compliance and concluding the trial at the earliest. 
Order Date :- 09.02.2016 
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