SRIKRISHNA, J. - (1.) THIS appeal by special leave is directed against the judgment of the Punjab and Haryana High Court dismissing the appeals of the present appellants against convictions, under section 302 read with section 109 IPC in respect of appellant no. 1, and under section 302 IPC in respect of appellant nos. 2 and 3.
(2.) ON 1.4.1996 an F.I.R. was lodged at the Sadar police station on the basis of information given by one Bansi Ram (Taya i.e. Uncle) at 10.40 p.m. on that night with regard to the unnatural death, in suspicious circumstances, of one Kamlesh Rani. The gist of the F.I.R. was that Kamlesh Rani was being harassed by her husband-Sohan Lal @ Sohan Singh (first appellant), mother-in-law Harbans Kaur (second appellant) and sister-in-law Kanchan (third appellant), who ill treated her to extract dowry from her parents. The said Kamlesh Rani was also thrown out of the house of her in-laws and it was only after intervention of interested parties that she returned to the house of the in-laws on 31.3.1996. ON 1.4.1996, Bansi Ram received information that Kamlesh Rani had been admitted in G.N.D. Hospital, New Emergency, Amritsar with extensive burn injuries. He lodged a complaint that Kamlesh Rani had been set on fire by her husband, Sohan Lal, mother-in-law, Harbans Kaur, father-in- law, Sarwan Singh, and sister-in-law, Kanchan after pouring kerosene oil on her, after conniving with one another. The police started investigation in the matter, seized certain incriminating materials and also recorded statements of witnesses. As a result of the investigation, the police filed a Charge Sheet against the three appellants and Sarwan Singh. It was alleged against Harbans Kaur and Kanchan that at about 4.00 p.m. on 1.4.1996 they murdered Kamlesh Rani and committed an offence punishable under section 302 of the IPC. In the alternative, since Kamlesh Rani had died on account of burn injuries otherwise than under normal circumstances, within seven years of her marriage with Sohan Lai @ Sohan Singh, Sohan Lal (husband), Sarwan Singh (father-in-law), Harbans Kaur (mother-in-law) and Kanchan (sister-in- law) of Kamlesh Rani were charged with subjecting Kamlesh Rani to cruelty and harassment on account of demand of dowry and causing her dowry death, an offence punishable under section 304B of the IPC. The accused denied the charges and claimed to be tried. The prosecution examined Dr. Gurmanjit Rai, lecturer, Forensic Medicines, Medical College, Amritsar (PW 1), Bansi Ram (PW 2), Usha Rani (PW 3), Gopi Ram (PW 4), Rishi Ram (PW 5), Lakhbir Singh, Naib Tehsildar, Ratala (PW 6), Jit Singh (PW 7), Surinder Singh HC (PW 8), A.S.I. Joginder Singh, P.S. Civil Lines, Amritsar (PW 9), Dr. Sat Pal, Surgical Specialist, C.S.C. Saroya, Distt. Nawan Shehar (PW 10) and A.S.I. Satnam Singh (PW 11) and produced certain material objects and documents to prove the charges against the accused. The trial court held that Kamlesh Rani had died as she was murdered by second appellant Harbans Kaur and third appellant Kanchan abetted by first appellant Sohan Lal @ Sohan Singh. The trial court also recorded a finding that, as far as dowry death was concerned, there was no definite statement of any witness that any of the accused had ever demanded dowry at the time of the marriage or even thereafter. Upon appreciation of the evidence on record, the trial court held that the prosecution had failed to prove its case against accused Sarwan Singh beyond a shadow of doubt. Sarwan Singh was, therefore, acquitted of all charges against him, but Harbans Kaur and Kanchan were held guilty of burning Kamlesh Rani to death and Sohan Lal @ Sohan Singh was held guilty of abetting the same. Harbans Kaur and Kanchan were thus held guilty of an offence punishable under section 302 of the IPC, while Sohan Lal @ Sohan Singh was held guilty of an offence punishable under section 302 read with section 109 IPC. All three accused were sentenced to imprisonment for life and fine of Rs. 1,000/- each and, in default, a further imprisonment of two months. Being aggrieved by the convictions, the three appellants, Sohan Lal @ Sohan Singh, Harbans Kaur and Kanchan are in appeal. The case of the prosecution rests mostly on two declarations made by Kamlesh Rani, one on 2.4.1996 to the Naib Tehsildar-cum-Executive Magistrate, Lakhbir Singh (PW6) at 3.15 p.m. and the second statement made under section 161 of the Cr. P.C., recorded by Satnam Singh, A.S.I. (PW 11) at 7.10 p.m. on 7.4.1996. It also rests on the oral testimony of the witnesses for corroboration of the statements made in the said declarations.
(3.) APPELLANT no. 1, accused Sohan Lai husband of Kamlesh Rani, according to the charge sheet, had been charged only with the offence of dowry death, punishable under section 304B of the IPC. There was no charge under section 302 or for abetment of murder under section 109 of the IPC. Counsel for the appellants contended that section 109 of the IPC, which deals with abetment of a substantive offence, is itself a substantive offence for which punishment is prescribed under the section. Learned counsel contended that unless an accused has been charged for an offence under section 109 IPC and tried, it was not open to the trial court to sustain the charge under section 302 with the help of section 109 IPC for which the accused was never tried. Learned counsel relied on the judgments of this Court in Joseph Kurian Philip Jose v. State of Kerala and Wakil Yadav and Anr. v. State of Bihar to buttress his contention. 5.1 Joseph Kurian (supra) holds thus: "Section 109 IPC is by itself an offence though punishable in the context of other offences. A-4 suffered a trial for substantive offences under the Indian Penal Code and Abkari Act. When his direct involvement in these crimes could not be established, it is difficult to uphold the view of the High Court that he could lopsidedly be taken to have answered the charge of abetment and convicted on that basis. There would, as is plain, be serious miscarriage of justice to the accused in causing great prejudice to his defence. The roles of the perpetrator and abettor of the crime are distinct, standing apart from each other." 5.2 This view was reiterated in the subsequent judgment in Wakil Yadav (supra). In Wakil Yadav (supra) the appellant was originally charged with several other accused under section 302 with the aid of section 109 IPC. The court of sessions convicted all the 7 accused for the offences charged. The High Court in appeal acquitted 5 persons, convicting one Guru Charan Yadav substantively for the offence under section 302 IPC and the appellant, Wakil Yadav, for the offence under section 302 read with section 109 IPC. There was no dispute that no charge had been framed against the appellant, Wakil Yadav, under section 109 IPC. This Court reiterated the law laid down in Joseph Kurian (supra) and held that it was not open to the High Court to convict the accused, Wakil Yadav, for an offence under section 302 with the aid of section 109 IPC, as no charge had been framed against him under section 109 IPC, which is itself a substantive offence. Section 211 of the Code of Criminal Procedure requires that the charge against the accused be precisely stated. Sub-section(4) of section 211 of the Code of Criminal Procedure specifically requires that the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. The learned counsel for the respondent State, relying on section 464 of the Code of Criminal Procedure, urged that failure to specify section 109 in charge sheet against Sohan Lal was a mere irregularity which would not vitiate the trial without proof of prejudice to the accused. We cannot agree. The learned counsel for the accused is fully justified in his submission that failure to frame a charge with regard to the substantive offence of section 109 IPC has certainly prejudiced the accused in the trial court. The accused Sohan Lal @ Sohan Singh was called upon to face trial only for the charge under section 304B IPC. Neither a charge under section 302 IPC nor under section 109 IPC, was levelled against him in the charge sheet. In the absence of a charge being framed against the accused Sohan Lal under section 302 or 109 IPC, it would certainly cause prejudice to him, if he is convicted under either for these offences at the end of the trial. In our view, it was not permissible for the trial court to convict the first accused Sohan Lal for the offence under section 302 read with section 109 IPC. His conviction under section 302 read with section 109 IPC is, therefore, illegal and is liable to be set aside. The High Court erred in upholding the conviction of Sohan Lal @ Sohan Singh under section 302 read with section 109 of the IPC and dismissing his appeal.;