SHARMA, J. - (1.) APPELLANT Ramanand was the accused on the fie of learned Additional Sessions Judge Neem Ka Thana District Sikar in Sessions case No. 62/2000. Learned Judge vide judgment dated December 19, 2001 convicted and sentenced the appellant as under:- U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 22,000/-, in default to further suffer two years simple imprisonment. U/s. 201 IPC: To suffer simple imprisonment for three years and fine of Rs. 3,000/-, in default to further suffer three months simple imprisonment. Substantive sentences were directed to run concurrently. Five co-accused persons, who were family members of the appellant, were however acquitted.
(2.) IT is the prosecution case that in the afternoon of September 21, 2000 Anita, who got married with the appellant some 10 years back, along with her daughter Ekta aged one and a half year were burnt to death in the residential house of the appellant. A written report (Ex. P. 2) was submitted at Police Station Patan by Rakesh Agrawal (PW. 2), brother of Anita, on September 22, 2000 at 6. 15 AM. Case under Section 302 IPC was registered and investigation commenced. After usual investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge Neem Ka Thana, District Sikar. Charges under Sections 498-A, 302/34 and 201 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. In defence no ocular evidence was produced but report Ex. D-1, lodged by appellant on September 21, 2000 at 9. 11 PM was placed on record. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. Death of deceased Anita was indisputably homicidal in nature. As per postmortem report (Ex. P. 13) she received following ante mortem burn injuries:- Fairly built & nourished PM liquidity present all over the body. Partially burnt clothes are present on body. No smell like kerosene like substance. The whole body has burns (post mortem in nature) except back of truck and hips. Burns limited upto skin only. Hair and head & public area are partially burnt and axillary hair are totally burnt face is swollen. Tongues is protuded swollen. Eyes are partially open conjunctive having patechial haemorrhage both hands are clinched. Bloody froth is coming out of both nostrils and mouth. In the opinion of Dr. Surendra Kumar Meena (PW. 10) the cause of death was asphyxia due to strangulation (throttling ). Death of deceased Ekta was indisputably homicidal in nature. As per postmortem report (Ex. P. 12) she received following ante mortem burn injuries:- Fairly built & nourished PM liquidity present on back of body, RM present all over body. Partially burnt clothes are present on body. No smell like kerosene, like substance. The whole body has burnt (PM in nature) except back of trunk and hips. Burns limited upto skin only. Hair of head burnt partially. Face is swollen. Tongue is protruded swollen. Eyes are partially open conjunctive having petechial haemorrhage. Both hands are claimed Bloody froth is coming out of both nostrils and mouth. In the opinion of Dr. Surendra Kumar Meena (PW. 10) the cause of death was asphyxia due to strangulation (throttling ). Strangely all the star witnesses of the prosecution did not support the prosecution case and they were declared hostile. Radhey Shyam (PW. 1), father of the Anita, deposed that his daughter never made any complaint to him about the cruel treatment or demand of dowry by the appellant or other members of his family. Anita gave birth to a female child, who also died but he did not know as to in what manner she died. Informant Rakesh Agrawal (PW. 2) though admitted that he submitted written report (Ex. P. 2) at Police Station Patan and put his signatures on the report, did not support the prosecution case. He did not know as to in what manner Anita and her daughter died. He also stated that he used to visit the house of his sister but she never made any complaint in regard to cruel behaviour or demand of dowry by the appellant. Smt. Geeta (PW. 3) mother and Gopal (PW. 4) cousin of Anita disowned their previous statements. Bajrang (PW. 5), Ramji Lal (PW. 6) and Nand Lal (PW. 7) also did not support the prosecution case. All these witnesses were declared hostile. Strenuous attempt was made in the grounds of the appeal and also vehemently contended by Mr. A. K. Gupta, the learned counsel that the judgment of trial Court is vitiated on the ground that it is a moral conviction, based on no evidence. According to learned counsel, the room where Anita and Ekta were found burnt was bolted from inside and the appellant at the relevant time was not present in his house. Marriage of appellant with Anita had taken place some ten years back from the date of incident and there is no evidence on record that the appellant had ever treated Anita cruelly or demanded dowry, therefore, charge under Section 302 IPC is not made out.
(3.) ON scanning the evidence we find that following salient features of the case need be noticed:- (i) Report (Ex. D-1) lodged by the appellant on September 21, 2000 at 9. 11 PM which reads as under:- *** (ii) It is established from the evidence of Nand Lal (PW. 1) that at the time of incident Anita and her daughter Ekta were alone in the house, the door of the room was bolted from inside and the neighbours broke open the door and found Anita and Ekta lying burnt. (iii) Although informant Rakesh Agrawal (PW. 2) disowned his statement under Section 161 Cr. P. C. and was declared hostile, yet he admitted that he lodged report (Ex. P. 2) at Police Station Patan and pout his signatures over the report. The written report handed over by Rakesh Agrawal reads as under:- *** (iv) The report appears to have been handed over to Sub Divisional Magistrate who directed the SHO to make enquiry and proceed against the culprits. (v) Another hostile witness Gopal (PW. 4) in his cross examination admitted that till Anita gave birth to female child, there was tension in her house. The crucial question in the case is whether Anita herself poured kerosene on her and her daughter Ekta and committed suicide or it is a homicide. The site is the first floor of the house of the appellant. The occurrence took place at 3 PM. There was nobody in the house and door of the room, where the incident occurred, was bolted from the inside and it was broken open by the neighbours. During investigation, the near relatives of Anita made allegations that cause of death of Anita and Ekta was greed of dowry. But at the trial all the relatives of appellant did not support the prosecution case. The appellant raised plea of alibi. In such a situation charger under Section 302 IPC is not established against the appellant. From the evidence it however appears that the appellant abetted suicide and committed crime punishable under Section 306 IPC. As already noticed the appellant was charged under Section 498a, 302 and 201 IPC. Charge under Section 306 IPC was not framed against him. We have therefore to adjudge whether the appellant can be convicted of the offence which he is shown to have committed although he was not charged with it. Relevant case law on the point is required to be noticed. In K. Prema S. Rao vs. Yadla Sriniwas Rao (2003 (1) SCC 217 = RLW 2003 (2) SC 200, their Lordships of Supreme Court propounded thus:- ``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 Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498a IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternative charge framed under Section 498a IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to driver her to commit suicide. The provisions of Section 221 Cr. P. C. take care of such 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 Crpc needs reproduction: 221. Where it is doubtful what offence has been committed- (1) If single act or series of acts is of such a nature that it is doubtful which if 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. '' 25. As provided in Section 215 Crpc 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 498a 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. Presumption under Section 113 A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498a 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. '' ;