Holding

A conviction under Section 306 IPC is permissible even without a specific charge, relying on Sections 222(2) and 464 CrPC, and the prosecution’s case established the offence without recourse to Section 113A presumption.

Summary

Virendra Kumar was tried for the death of his wife, Pushpa, and was initially convicted under Section 302 IPC for murder. The Allahabad High Court set aside that conviction and convicted him under Section 306 IPC for abetment of suicide, relying on a presumption under Section 113A of the Evidence Act despite no specific charge under Section 306 being framed. The appellant challenged this on the ground that conviction under a different offence without a specific charge was impermissible and that Section 113A could not apply as it was not in force at the time of the incident. The Supreme Court held that under Sections 222(2) and 464 of the Criminal Procedure Code a court may convict an accused of a lesser offence even if it was not specifically charged, provided no failure of justice is shown, and that the prosecution had established the elements of Section 306 without needing the presumption. Consequently, the appeal was dismissed and the conviction under Section 306 upheld.

Issues considered

Whether an accused can be convicted under Section 306 IPC when the charge framed was only under Section 302 IPC.
Whether the presumption under Section 113A of the Evidence Act is applicable when the offence occurred before its insertion.
Whether Sections 222(2) and 464 of the Criminal Procedure Code permit conviction for an offence not specifically charged.
Whether the absence of a specific charge amounts to a failure of justice.

Legislation cited

Code of Criminal Procedure, 1973s. 222(2), s. 464
Indian Evidence Act, 1872s. 113-A
Indian Penal Code, 1860s. 302, s. 306

Subjects

abetment of suicideSection 306 IPCcharge framingSection 222 CrPCSection 464 CrPCpresumption under Section 113Adowry harassment

Judgment

A VIRENDRA KUMAR
v.
STATEOFU.P.

JANUARY 16, 2007

B [DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Penal Code, 1860-s. 306-Conviction under on presumption under
Section 113-A of Evidence Act-Jn absence of specific charge thereunder-
Propriety of-Held: Such conviction was permissible-Even in absence of
-
C presumption in terms of s. 113-A, the circumstances of the case were
relatable to s. 306-Evidence Act, 1872-s 113-A-Code of Criminal
Procedure, 1973-ss. 222(2) and 464.

Appellant-accused with another co-accused (his father) wa.s charged
fl of having caused death of his wife (deceased). Appellant, after his marriage
with the deceased used to humiliate the deceased and her family members
for bringing inadequate dowry and for being of dark complexion. They had
also publicly abused the informant-PW-1 and the same was witnessed by
many PWs. On the date of event PW 1 got an information that the deceased
had committed suicide. PW-1 seeing several injuries on the body of the
E deceased inferred she was done to death by the appellant in conspiracy with
his elder brother. Complaint was lodged by him. Prior to this report the co-
accused had given an information that the deceased had committed suicide
by hang~ng. Doctor noted major injuries on the body of the deceased.
During trial incriminating materials relating to torture, harassment and
F demand of dowry were brought to the notice of appellant during his
examination under Section 313 Cr. P.C. Neighbours of the appellant also
deposed th&t appellant used to beat his wife. Trial Court convicted both the
accused under Section 302 IPC. In appeal, High Court set aside the
conviction under Section 302 and convicted the accused under Section 306
G IPC on presumption in terms of s. 113-A of Evidence Act. Co-accused had
died during pendency of appeal before High Court.

In appeal to this Court, the question for determination was whether
the High Court was correct in convicting the accused under Section 306
IPC in absence of specific charge thereunder.
H
970
'/
I

VIRENDRA KUMAR v. STATE 971

Dismissing the appeal, the Court A
HELD: I. Even without reference to Section l 13A of the Evidence Act
the prosecution version has been established. So far as the question as to
the effect of no charge having been framed under Section 306 is concerned
the effect of Section 222(2) and Section 464 of Cr. P.C. cannot be lost sight
B
of. [Paras 17 & 12) [978-B, 975-E]

Dalbir Singh v. State of U.P, [2004) 5 SCC 334, relied on.

Shamnsaheb M Multtani v. State of Karnataka, [2001) 2 SCC 577,
referred to. c
2. The circumstances are relatable to Section 306 IPC which were
clearly put to the appellant during his examination under Section 313
. Cr.P.C. The incriminating materials relating to torture, harassment and
demand of dowry were specifically brought to the notice of the appellant D
during such examination. [Paras 14 & 15] (977-C-E]

3. In support of his stand, the appellant pleaded that deceased had
committed suicide and for this purpose one witness DWI was examined. It
was specifically stated by him that the appellant's father had asked him to
inform PW2 that the deceased had committed suicide and accordingly he
E
had informed PW2. Even in the absence of a presumption in terms of
Section 113-A of the Evidence Act it is to be noted that the prosecution
version was specific to the extent that the deceased was being taunted by
the appellant for not bringing adequate dowry and/or being of dark
complexion. The humiliation and harassment meted out was described by F
the deceased when she had gone to her maternal uncle's house. The
evidence of neighbour of the accused-appellant clearly stated that the
appellant used to beat his wife i.e. deceased and on the night of occurrence,
when he was sitting on his roof-top he had heard cries of the deceased being
beaten, went to the house of the appellant and he was turned away by the G
appellant who said that it was their internal affair and he should mind his
own work. To similar effect was the evidence of PW4- another neighbour.
The doctor who conducted the autopsy i.e. PW6, had noted many major
injuries in different parts of body including one mark on the neck.
[Paras 16 & 17] [977-E-H, 978-A-B] H
~
'

CJ72 SUPREME COURT REPORTS [2007] 1 S.C.R.
f
A CRIMINAL APPELLATE WRlSDICTION : Criminal Appeal No. 69 of ,..
.;

2007.

From the Judgment and final Order dated 30.9.2005 of the High Court
of Judicature at Allahabad in Crl. A. No. 493/1984.

B S.B. Maheshwari, R.K. Maheshwari, Rishi Maheshwari, Tarannum
Ansari and Raj Kumar Kaushik for the Appellant. ..
Ratnaker, Atiqwe Rahman, Javed M. Rao, Shahid Ali Rao and Musharrat
Chaudhary, for the Respondent.
c
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J.: I. Leave granted.

2. Challenge in this appeal is to the judgment rendered by a Division
D Bench of the Allahabad High Court allowing the appeal filed by the '-..,
appellant in part by setting aside his conviction for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and
instead convicting him for offence punishable under Section 306 IPC. He
was sentenced to undergo imprisonment for ten ,years. ·Appellant and
E another accused, namely, Jai Narain faced trial for alleged commission of
offence punishable under Section 302 IPC. During pendency of the appeal
before the High Court aforesaid Jai Narain died and, therefore, the appeal
stood abated so far as he is concerned.

3. Background facts in a nutshell are as follows:
F
4. The informant Sheo Karan (PW-l)'s niece Smt. Pushpa (hereinafter
referred to as 'deceased') was married to the appellant Virendra Kumar, son
of Jai Narain in village Chirli, Police Station Ghatampur. Immediately after the
m¥fiage Virendra Kumar, his brother Suresh Kumar used to humiliate Smt.
G Pushpa and her other family members for bringing inadequate dowry and for
being of a dark complexion. They ev~n publicly abused the informant in
village Chirli and threatened to end their relations with Smt. Pushpa, the <.- -
deceased. This public humiliation was witnessed by Sahdev Singh (PW-3)
and Prahlad Singh (PW-5), residents of Rajepur and Suresh, Bhanu Pratap
H Dixit (PW-4) and many others of village Chirli, About one and a half month
y
,

VIRENDRAKUMARv. STATE [PASAYAT,J.] 973

prior to the fateful event Anil Kumar brought Smt. Pushpa to her Sasural in A
'I
village Chirli. On 7.10.1982 at about 7 A.M. on infonnation being sent by
Bhanu Pratap Dixit (PW-4), the infonnant Sheo Karan (PW-2) reached village
Chirli where he found the dead body of Smt. Pushpa. Four fingers of her
right hand were burnt and on her hands and legs there were some marks of
injuries. There was also a deep mark of hanging on the neck which showed
that Smt. Pushpa had been beaten and thereafter done to death. Although
B
the appellant Virendra Kumar was present in the village, from the morning
J·
.. of the fateful day (7.10.1982) he was absent. Hence it was inferred by the
infonnant that appellant in conspiracy with his elder brother Suresh had
murdered Smt. Pushpa after taking help of some accomplices. The report to
this effect was lodged by Sheo Karan Shukla on 7.10.1982 at police out post c
Sarh, police station Ghatampur, District Kanpur.

5. However, prior to this report, on 7.10.1982 at about 10 A.M., the co-
accused Jai Narain gave an information at the police chauki Sarh of police
station Ghatampur that in the night intervening 6-7 October, 1982, the
D
deceased Smt. Pushpa placed her dhoti in an iron ring on the roof and
thereafter she tied her own neck with the same and committed suicide and
her body was still hanging from the ring on that roof with the Sari. On
getting this information, the first investigating officer SI Ajab Singh
(P.W.-8) reached the house of Jai Narain. He found the dead body hanging
from a ring in the 'Dhanni' in the western Verandah by means of a Dhoti, E
which was tied on the neck. The body was taken down and inquest was
performed on it by SI Ajab Singh. The opinion of the inquest witnesses was
taken and also the body was sent along with the concerned papers for post
mortem through Constables Kailash Chandra and Radhey Shyam. The
injuries on the dead body were indicated in the inquest. The place where F
the body was found hanging was inspected by SI Ajab Singh (P.W.-8) who
'"\"
also prepared site plan. He recorded the statement of Jai Singh and his wife.
As it had become late, the investigating officer returned to the police station.
Thereafter the investigation was conducted by SSI Jogendra Singh (P.W.-
9). As Smt. Pushpa had tied the knot with the Dhoti that she was wearing,
hence it was not taken into possession, but it was sent along with the body G
of the deceased for post mortem.

6. Dr. R.K. Gupta (PW-6), Medical Officer, ESI Dispensary Kanpur
...
conducted post mortem on the body of Smt. Pushpa on 8.10.1992 at 12.45
p.m. at the E.S.I. Dispensary in Kanpur. H
974 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 7. SI Jogendra Singh (P.W.9) was handed over the investigation of this r
case by order of the Superintendent of Police, Kanpur Dehat dated 11.10.1982
on an application by Sheo Karan of the same date, and he commenced the
investigation on 15.10.1982. After that effort was made to trace the accused
persons, but they could not be arrested. As some of the witnesses were
absent on that date, their statements could not be recorded and the police
B of Chauki Sarh was directed to produce the witnesses at the police station.
On 3 .11.1982 SI Jogendra Singh recorded the statements of Sheo Karan,
Sahdeo, Deshraj Singh and Bhagwan Deen at the police station under
Section 161 of the Code of Criminal Procedure, 1973 (in short the 'Cr. P.C').
On 24.11.1982 he recorded the statement of Prahlad and others. As he could
c not find the accused in spite of search, hence he obtained order under
Sections 82 and 83 Cr.P.C. for attachment of their property on27.l l.1982. On
17 .12.1982 appellant Virendra Kumar surrendered in Court. After completion
of investigation. S. I. Jogendra Singh submitted the charge sheet.

8. The trial court found that on the basis of circumstances highlighted,
D
the prosecution has established the accusations and therefore held the
accused persons guilty and sentenced each to undergo imprisonment for
life. As noted above the two accused persons preferred appeal before the
Allahabad High Court which partially allowed the appeal. The High Court
noted that though there was no specific charge in terms of Section 306 IPC,
E the ingredients of the said provision were clearly made out and the appellant
had abetted commission of suicide by the deceased. Though a stand was
taken by the appellant before the High Court that since he had only been
charged under Section 302 IPC, he could not be convicted under Section 306
IPC, the High Court did not find any substance in view of several decisions
F of this Court. We shall deal with the decisions referred to, by the High Court,
infra.

9: In support of the appeal learned counsel for the appellant submitted
that the High Court acted in terms of presumption available in law under
Section l 13A of the Indian Evidence Act, 1872 (in short the 'Evidence Act').
G In the instant case, the offence was committed on 7.10.1982 when the
provision i.e. Section 113A was not in the statute book. In fact, the
statement under Section 313 Cr.P.C. was recorded on 2.11.1983. Reference is
also made to a decision of this Court in Shamnsaheb M Multtani v. State
of Karnataka, [2001] 2 SCC 577 to contend that in the absence of specific
H charge under Section 306 IPC, the appellant could not have been convicted
i
VIRENDRAKUMARv. STATE [PASAYAT,J.] 975

' in terms of that provision. Learned counsel for the respondent-State on the
other hand submitted that in the instant case the prosecution did not rely
A
on the presumption available under Section l 13A of the Evidence Act and
the materials on record clearly established commission of the offence by the
appellant, even without resort to Section l 13A of the Evidence Act. It is
further submitted that the controversy now raised is settled by a three-judge
B

- Ii
Bench of this Court in Dalbir Singh v. State of UP., [2004] 5 SCC 334.

10. Though learned counsel for the appellant submitted that the
evidence was even otherwise insufficient to fasten the guilt on the appellant
•') and on a bare perusal of the judgment of the trial court and the High Court,
' it is clear that the materials brought on record clearly formed a complete c
chain of circumstances which unerringly pointed out at the accused-
appellant being the author of the crime. Therefore there is no infirmity in the
analysis done by the trial court and the High Court in analyzing the
evidence.
D
, 11. The residual question relates to the applicability of Section l 13A
of the Evidence Act and the question as to whether in the absence of the
specific charge under Section 306 IPC, the appellant could be convicted
though he was only charged in terms of Section 302 IPC.

12. So far as the question as to the effect of no charge having been E
framed under Section 306 is concerned the effect of Section 222(2) and
Section 464 of Cr. P.C. cannot be lost sight of. In Dalbir Singh 's case (supra)
it was inter alia noted as follows:

"Here the Court proceeded to examine the question that if the
>"'
F
accused has been charged under Section 302 IPC and the said
charge is not established by evidence, would it be possible to
convict him under Section 306 IPC having regard to Section 222
Cr.P.C. Sub-section (1) of Section 222 lays down that when a
person is charged with an offence consisting of several particulars,
a combination of some only of which constitutes a complete minor G
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. Sub-section (2) of the
same Section lays down that when a person is charged with an
offence and facts are proved which reduce it to a minor offence he
' H
~
'
'-
976 SUPREME COURT REPORTS (2007] l S.C.R.

A may be convicted of the minor offence, although he is not charged
with it. Section 222 Cr.P.C. is in the nature of a general provision
which empowers tl'ie Court to convict for a minor offence even
though charge has been framed for a major offence. Illustrations (a)
and (b) to the said Section also make the position clear. However,
there is a separate chapter in the Code of Criminal Procedure,
B namely Chapter XXXV which deals with Irregular Proceedings and .
their effect. This chapter enumerates various kinds of irregularities
which have the effect of either 'vitiating or not vitiating the
proceedings. Section 464 of the Cr.P.C. deals with the effect of
omission to frame, or absence of, or error in, charge. Sub-section
c (1) of this Section provides that 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.
D
This clearly shows that any error, omission or irregularity in the
charge including any misjoinder of charges shall not result in
,,
invalidating the conviction or order of a competent Court unless
the appellate or revisional Court comes to the conclusion that a
failure of justice has in fact been occasioned thereby. In Lakhjit
E Singh (supra) though Section 464 Cr.P.C. has not been specifically
referred to but the Court altered the conviction from section 302 to
306 IPC having regard to the principles underlying in the said
Section. In Sangaraboina Sreenu (supra) the Court completely
ignored to consider the provisions of Section 464 Cr.P.C. and
F keeping in view Section 222 Cr.P.C. alone, the conviction of the
appellant therein under Section 306 IPC was set aside.

17. There arc .a catena of decisions of this Court on the same lines
and it is not necessary to burden this judgment by making reference
to each one of them. Therefore, in view of Section 464 Cr .P .C., it
G is possible for the appellate or revisional Court to convict an
accused for an offence for which no charge was framed unless the
Court is of the opinion that a failure of justice would in fact
occasion. In order to judge whether a failure of justice has been
occasio.1ed, it will be relevant to examine whether the accused was
..
H aware of the basic ingredients of the offence for which he is being
t
- VIRENDRAKUMARv. STATE[PASAYAT,J.] 977

convicted and whether the main facts sought to be established A
against him were explained to him clearly and whether he got a fair
chance to defend himself. We are, therefore, of the opinion that
Sangarabonia Sreenu (supra) was not correctly decided as it
purports to lay down as a principle of law that where the accused
is charged under Se,ction 302 IPC, he cannot be convicted for the
offence under Section 306 IPC."
B

13. It is to be noted that in view of apparent conflict in the views
expressed by two Judge Bench decisions in Sangaraboina Sreenu v. State
ofA.P., [1997] 5 SCC 348 and Lakhjit Singh and Another v. State ofPunjab,
[ 1994] Supp I SCC 173 the matter was referred to a three Judge Bench in C
Dalbir Singh 's case (supra)

14. There is no dispute that the circumstances are relatable to Section
306 IPC which were clearly put to the appellant during his examination under
Section 313 ofCr.P.C.
D
I 15. Particular reference may be made to question Nos. 4, 7,8,9,16 and 22
in the examination under Section 313 of the Cr.P.C. and the answers given
- by the appellant. The incriminating materials relating to torture, harassment
and demand of dowry were specifically brought to the notice of the
appellant during such examination. E

16. In support of his stand, the appellant pleaded that deceased had
committed suicide and for this purpose one witness DWI was examined. It
was specifically stated by him that the appellant's father had asked him to
infonn PW2 that the deceased had committed suicide and accordingly he F
had informed PW2. Even in the absence ofa presumption in terms of Section
113-A of the Evidence Act it is to be noted that the prosecution version was
specific to the extent that the deceased was being taunted by the appellant
for not bringing adequate dowry and/or being of dark complexion. The
humiliation and harassment meted out was described by the deceased when

.. she had gone to her maternal uncle's house. The evidence of PW-I i.e.
neighbour of the accused-appellant is also significant. It is clearly stated
that the appellant used to beat his wife i.e. deceased and on the night of
G

occurrence, when he was sitting on his roof-top he had heard cries of the
deceased being beaten, went to the house of the appellant and he was
turned away by the appellant who said that it was their internal affair and H
978 SUPREME COURT REPORTS [2007] I S.C.R.
---
A he should mind his own work. To similar effect was the evidence of PW4-
another neighbour.

17. The doctor who conducted the autopsy i.e. PW6, had noted many
major injuries in different parts of body including one mark on the neck.
Therefore, as rightly contended by learned counsel for the respondent-State,
B even without reference to Section I 13A of the Evidence Act the prosecution
version has been established.
''y,

18. Above being the position there is no merit in this appeal which is
accordingly dismissed.
c
K.K.T. Appeal dismissed.

J '