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Penal Code, 1860; Ss. 201, 302, 304-B, 498-A r/w Section 34/Code of Criminal Procedure, 1973; Ss. 222, 313 and 464:Dowry death - Accused-husband in collusion with his father allegedly harassed his wife for demand of dowry, committed her murder and thrown her dead body in a well - FIR - Investigation - Charge-sheet - Trial Court found both the accused guilty of committing offences punishable u/s. 304-B and 498-A r!w Section 34 JPC-Setting aside the conviction of both the accused u/s. 304-B, 498-A r/w Section 34 IPC, High Court found both the accused guilty of committing offences punishable u/Ss. 302 and 201 r/w Section 34 IPC and sentenced them accordingly - On appeal, Held: Though charge for committing offence punishable u/s. 302 framed against accused, A-1 but no such charge framed against accused A-2 - Only charge proved against A-2 was for offence punishable u/s. 201 IPC - Though the Courts are empowered u/s. 222 Cr.P.C. to convict a person for committing an offence which is minor in comparison to the one for which he is charged and tried - By no stretch of imagination, offences u/Ss. 304B and 498-A IPC for which A-2 was convicted by trial Court could be said to be minor offences in comparison to the offence punishable u!s.201 IPC for which A-1 was charged - Hence, Section 222 Cr.P.C. not attracted - Besides, conviction of A-2 u/s. 302 IPC by High Court cannot held to be correct when tested in the touchstone of the provisions contained u/s.464(2)(a) Cr.P.C. - And also on proven facts on record, conviction u/s.302 not made out - Hence conviction and sentencing of appellant A-2 u/s. 302 IPC cannot be sustained and thus set aside.Section 201 IPC - Disappearance of evidence - Involvement of accused A-2, father in the offence committed by his son, accused A-1 - Held: Mere suspicion is not sufficient, there must be cogent evidence to prove that the accused know/had information sufficient to lead him to believe that offence committed and he had caused the evidence to disappear in order to screen the offender - Since there was no eyewitness in the present case, conclusion had to be drawn from circumstantial evidence - The circumstances from which the conclusion of guilt has to be drawn not only requires to be fully established but should also be conclusive in nature and consistent with the hypothesis of the guilt of the accused - Thus, evidence has to be carefully scrutinized - Merely because A-2 is the father of A-1, it cannot be presumed as a matter of legal proof that he deemed to have knowledge of the offence committed. by his son A-1 - Even believing the evidence of PW2, though the said witness declared hostile, mere presence of A-2 in the house is not sufficient to draw a presumption of having knowledge of commission of offence by his son A-1 - Prosecution has failed to establish charges against A-2 for committing the offence u/s. 201 IPC - Hence, conviction and sentence of A-2 for committing the offences punishable u/s. 201 cannot be sustained and, thus, set aside.Marriage between accused-appellant A-1 and the deceased was solemnized on 21st April, 1986. Allegedly, her husband had been harassing her for demand of more and more dowry and A-2, father-in-law of the deceased desired to have illicit relationship with her, which she resisted. She had been complaining to her parents, brother and other relatives about the ill treatment made out to her by her in-laws. On 18th February, 1987, the deceased was reported to be missing. Later, her dead body was found in a well A-2 registered a report at the police station. The Police started investigation and sent the dead body for post mortem. In the meantime, PW-6, father of the deceased also lodged a complaint at the police station, suspecting that his daughter had been killed by her husband, A-1 in collusion with his father, A-2 and her dead body thrown by them in the well. Post mortem report revealed that death was caused by asphyxia due to throttling and smothering and not due to drowning. On the basis of the post mortem report and after collecting evidence, an FIR was registered by the Police against the accused persons under Sections 498-A, 302, 201 read with Section 34 IPC and both the accused were arrested. On completion of the investigation, charge-sheet was filed against the accused persons and the case was committed to the Sessions Court.The Trial Court found that there was no eye-witness to the incident and, therefore, the case of the prosecution rested only on circumstantial evidence; that the Trial Court observed that there were two circumstances against accused A-1, namely, (i) motive and (ii) A1 was last seen together with his wife, the deceased; and that the circumstances put forth by the prosecution may lead to inference that death of the deceased might have been caused by accused A-1 but they are not sufficient for convicting him for the offence of murder. The Trial Court held that the prosecution was able to establish that deceased was ill treated and harassed on account of demand of dowry and she died within a very short span of ten months of the marriage. Therefore, the appellants had committed offences, punishable under Sections 304-B and 498-A read with Section 34 IPC. The Trial Court also held that there was no evidence to show that the body of the deceased was thrown in the well either by appellant A-1 or A-2 or both of them and, therefore, offence under Section 201 IPC was not proved. Aggrieved by the judgment of trial Court, both the appellants preferred an appeal and the State preferred cross appeal before the High Court. By the impugned judgment, while allowing both the appeals, the High Court has set aside the conviction of both the appellants under Sections 304-B, 498-A read with Section 34 IPC but found both of them guilty for committing offences punishable under Sections 302 and 201 read with Section 34 IPC. Accordingly, each of the appellant has been sentenced under Section 302 read with 34 IPC to suffer imprisonment for life and to pay fine of Rs.1000/- each and under Section 201 read with 34 IPC, each of them has been sentenced to undergo imprisonment for five years and to pay a fine of Rs.500/-, with default stipulations. Hence the present appeal. However, despite opportunities, appellant A-1 failed to surrender and consequently his appeal was dismissed.The counsel appearing on behalf of the accused-appellant contended that the High Court committed serious error in holding appellant, A-2 guilty of commission of offences under Sections 302 and 201 IPC, particularly when there was no specific charge framed against him under Section 302 of IPC; that the High Court again erred in holding that the offence u/s 201 IPC stood established by the evidence of PW-12, mother of A1, even if a part of the testimony of PW-12 is held to be reliable, at best it gives rise to a suspicion about the presence of A-2 in the house and no more; that except for the aforenoted statement of PW-12, which has otherwise been discarded by the Trial Court and the High Court, there is not even an iota of evidence to show that appellant A-2 knew or had reason to believe that accused A-1 had committed the offence; and that the High Court has neither recorded any reason nor analysed the evidence adduced by the prosecution and thus, grievously erred in reversing the finding recorded by the Trial Court to the effect that ingredients of Section 201 of IPC had not been proved against appellant, A2. |
