THANVI, J. - (1.) THIS is an appeal against the judgment dated 2. 8. 2003 of the learned Additional Sessions Judge (Fast Track), Hanumangarh, whereby he has convicted accused appellants Pala Ram and Mst. Kalawati wife of Manphul Ram under Section 302 IPC and sentenced them to undergo life imprisonment and a fine of Rs. 500/- and in default, to further undergo one month's R. I. Both the accused were also convicted under Section 498a IPC and sentenced to undergo three years' R. I. and a fine of Rs. 500/- and in default, to further undergo one month's R. I. Both these substantive sentences were ordered to run concurrently.
(2.) FACTS leading to this appeal are that complainant Het Ram of Chak 6 MJD Ghadsana filed a typed report before the S. H. O. , Police Station Sangaria on 30. 4. 2001 at 7 P. M. that her daughter Mst. Sharda was married with accused appellant Pala Ram, his another daughter Geeta was married with Prithvi Ram and third daughter Banto was married with Mahendra. All were sons of Manphul Ram, by caste Jat, resident of Chak 20 MJD Rohi Dholipal. The marriage took place 12 to 13 years back. His daughter Banto and son-in-law Mahendra are residing separately. He spent about one lakh rupees in dowry but accused Pala Ram, Prithvi Ram, sons of Manphul Ram and Mst. Kalawati wife of Manphul Ram were not happy with the dowry and they used to harass his daughter. After this harassment, they entered into a compromise and her in-laws took his daughter with them. Today on 30. 4. 2001 at 11 A. M. Pappu Ram son of Bhadar Ram and his daughter Banto came to him and told that his daughter Sharda has been killed by accused Pala Ram, Prithvi Ram, Mst. Kalawati and his daughter Geeta by administering poison. When his wife Rameshwari went on the spot, she saw Mst. Sharda lying in the chowk and blood was oozing out from her nose and mouth. Upon this report, a case under Sections 302 and 498a IPC was registered and investigation was commenced. After investigation, accused appellants were challaned under Sections 302 and 498a IPC before the ACJM, Sangaria, who committed the case to the Court of Sessions, where the accused were charged under Section 302 or in alternative under Section 302 read with Section 34 and 498a IPC, to which they pleaded not guilty. The prosecution examined 19 witnesses. The statements of the accused were recorded under section 313 Crpc. They produced 5 witnesses in their defence. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellants as above. While assailing the judgment of the learned trial Court, it has been contended by Mr. R. S. Gill, learned counsel for the accused appellants that both the accused have not committed any offence with regard to demand of dowry or killing Mst. Sharda by administering poison. According to him, all the material witnesses namely Pappu (PW-1), who informed about the incident, Devi Lal (PW-2), Balram (PW-3) and Mahendra (PW-4) have turned hostile. The only evidence connecting the accused with the commission of crime is of Banto Devi (PW-5) and of Manju (PW-6) but the statements of both the witnesses are uncorroborative and inconsistent. According to Banto Devi (PW-5) who also informed his father about killing of Mst. Sharda, has told that Manju (PW-6) came to her and told that on account of demand of dowry, Sharda has taken spray and committed suicide, whereas, Manju (PW-6) has told in the examination in chief that Sharda was killed by four persons namely Kalawati, Pala Ram, Geeta and Prithvi by administering poison. The poison was administered by Pala Ram, husband of deceased, Kalawati caught hold of her, Prithvi caught hold of her legs and Geeta caught hold of her hands. She narrated this story to her mother Banto Devi i. e. PW-5. According to the learned counsel, the police has left Prithvi and Geeta scotfree but chargesheeted only Pala Ram and Mst. Kalawati but there is no specific role of Mst. Kalawati in administering poison or harassing Mst. Sharda for dowry. According to the learned counsel, the incident is reported to have happened in the mid night of 29th and 30th April, 2001 but Manju (PW-6) has stated in the examination in chief as well as in the cross examination that the incident took place on 31. 05. 2001 and not of 29. 4. 01. Rest of the three witnesses namely Daya Ram (PW-18), brother of deceased, Het Ram (PW-8), father of deceased and Rameshwari (PW-9), mother of deceased, are the witnesses of hearsay evidence and their testimony is based on the version of Banto Devi (PW-5), their daughter and sister of deceased. According to the learned counsel, at the most, this can be a case of consuming poison by Mst. Sharda herself, which is punishable under Section 306 IPC but there was no charge against the accused for that offence and therefore they cannot be now convicted under Section 306 IPC in a charge under Section 302 IPC. In support of his contention, he has placed reliance on a decision of the Hon'ble Supreme Court in Sangaraboina Sreenu vs. State of A. P. , reported in (1997) 5 SCC 348. Per contra, the learned Public Prosecutor has supported the judgment of the trial Court and argued that the case under Section 302 IPC is made out against the accused from the statement of Manju (PW- 6), supported by the statements of both the parents and brother of deceased Sharda. While countering the arguments of the learned counsel for the appellants, learned Public Prosecutor has placed reliance on a decision of the Hon'ble Supreme Court in Lakhjit Singh vs. State of Punjab, reported in 1994 SCC (Cri) 235, wherein, it has been held that even if the charge is under Section 302 IPC and if it is proved that suicide was committed on account of ill treatment or on demand of dowry, accused can be convicted under Section 306 IPC. Having bestowed our consideration on the rival contentions put forth by the learned counsel for the appellants and the learned Public Prosecutor and upon re-appreciating the evidence brought on record as well as the law cited, it reveals that there is a substantial inconsistency or un-corroboration in the statement of Banto Devi (PW-5) and Manju (PW-6), who are the only material witnesses of the case. As per the FIR Ex. P. 6, which has been lodged by Het Ram (PW-8), incident was narrated to him by Pappu Ram and Banto. Pappu Ram has been examined as PW-1 but he has not supported the case of the prosecution and has turned hostile, whereas Banto (PW-5) has stated that she was told by her daughter Manju that Mst. Sharda had consumed poison herself and committed suicide. When she asked Mst. Sharda, then she replied in positive that she had taken spray and she also told that the accused were harassing her by beating and, therefore, she had taken the spray. In the cross examination, she has also stated that the accused were harassing her and they used to beat her, in addition to the demand of dowry. Manju (PW-6) has stated that the incident is of 31. 5. 2001 i. e. one month after the reported date of 30. 4. 2001, which she confirmed in the cross examination also and denied the date of incident as 29. 4. 2001. Leaving aside this minor discrepancy about the date from the mouth of village lady, she has stated categorically in her examination in chief that four persons caught hold of Mst. Sharda and accused Pala Ram administered spray to her but when she was cross examined, then she gave different statements, including saying specifically that her grand mother Kalawati did not administer poison to Mst. Sharda. She has also denied the police statement. Upon pointedly asking about the accused, she stated that on hearing the cry when she entered into the room, she saw the face of only Pala Ram and the back side of rest of three accused. Even about Kalawati, she has stated that she did not hear anything from Kalwati with regard to Mst. Sharda and she reported the matter to her mother.
(3.) THUS, the statements of both the material witnesses are inconsistent and un-corroborated and it cannot be gathered as to whether the poison was either administered by accused Pala Ram or Kalawati or by someone else. In criminal trial, a person charged with the offence of murder, it is the duty of the prosecution to establish beyond reasonable doubt that the intention of the accused was to kill the deceased. As revealed from the evidence gathered in this case, apart from there being inconsistent statements of the above two witnesses, there is a positive evidence of Banto Devi (PW-5) that Mst. Sharda took poison herself. This incident was reported to her by her daughter Manju (PW-6) but Manju's statement is self contradictory and does not inspire confidence with regard to the fact that the poison was administered by four accused persons. Had it been so, the police could have challaned rest of the two, but to the best reasons known to the Investigating Agency, Geeta and Prithvi have not been chargesheeted in this case. The totality of the evidence and examination in chief and cross examination of Manju reveals that her statement is improved and only inference which can be gathered from her statement is that on account of harassment for dowry and beating by her husband Pala Ram, deceased Sharda took poison and committed suicide. This act of the accused by harassing her amounts to cruelty within the definition of Sec. 498a IPC for which accused Pala Ram can be held liable only u/ss. 306 & 498a IPC, whereas Mst. Kalawati's act is confined to Section 498a IPC. Now the question remains for consideration is that whether the Court can convict a person u/s. 306 IPC in a charge u/s. 302 IPC? Both these offences are affecting human life defined under sections 299 to 311 contained in Chapter XVI of the Indian Penal Code. In this regard, it is ofcourse true that the Hon'ble Supreme Court in Sangaraboina Sreenu's case (supra) observed that the basic constituent of an offence u/s. 302 IPC is homicidal death, whereas an offence u/s. 306 IPC is suicidal death and abetment thereof. This was a case in which accused was convicted u/s. 302 IPC by the learned Sessions Judge, Warangal and in appeal, the High Court converted the offence from Sec. 302 to Sec. 306 IPC and the Hon'ble Supreme Court purely on the above ground, allowed the appeal and set aside the conviction of the appellant u/s. 306 IPC by referring the provisions of Sec. 222 Crpc. Whereas in the earlier decision of the Hon'ble Supreme Court in Lakhjit Singh's case (supra), it has been held that when there is no direct evidence regarding administration of poison to the deceased, the only course left is to hold that the prosecution has only proved suicide and the provisions of Sec. 306 IPC are attracted. The conviction of the accused u/s. 302 IPC was set aside and they were convicted u/s. 306 IPC. This was a full reasoned judgment while discussing the scope of Sections 306, 302, 304b vis a vis Sec. 113a of the Indian Evidence Act. In the absence of facts assigned in the judgment of Sangaraboina Sreenu's case (supra), we are left with no other alternative except to base our decision on the decision of the Hon'ble Supreme Court in Lakhjit Singh's case (supra), as the facts of the present case are almost similar to the said case, cited by the learned Public Prosecutor. That apart, both the judgments have been referred by the Hon'ble Supreme Court in Shamnsaheb M. Multtani vs. State of Kalrnataka reported in (2001) 2 SCC 577. In this case, the Supreme Court in para 19 of the said judgment, referred the case of Lakhjit Singh and in para 20, it was observed that the Hon'ble Supreme Court in Sangaraboina Sreenu's case (supra), has not referred the earlier decision of two-judge Bench but later on from para 21 onwards, the scope of Section 464 Crpc was discussed, which reads as under: 464. (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. ;