Ramayan vs State Of U.P.
2022 Latest Caselaw 20187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							                 A.F.R.
 
Reserved
 
Court No. - 44
 

 
Case :- JAIL APPEAL No. - 6157 of 2016
 
Appellant :- Ramayan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- In Jail,Chetan Chatterjee
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per: Hon'ble Ajai Tyagi, J.)

1. The appeal has been preferred by the appellant-Ramayan against the judgment and order dated 29.09.2016, passed by learned Additional District and Sessions Judge/F.T.C.-II, Kushinagar in Session Trail No. 02 of 2011 (State of UP vs. Ramayan), arising out of Case Crime No. 445 of 2009, under Sections 498-A, 306 Indian Penal Code, 1860 (in short ''I.P.C.'), Police Station- Turkpatti, District Kushinagar whereby the appellant is convicted and sentenced for the offence under Section 302 I.P.C. for life imprisonment with a fine of Rs.50,000/- and in default of payment of fine, further imprisonment for two years.

2. Brief facts of the case giving rise to this appeal are that a written report was submitted by informant-Anil (brother of the deceased) at police station Turkpatti, District Kushinagar with the averments that marriage of his sister Sundarmati was solemnized with the accused-Ramayan before six years of the occurrence. Accused used to torture his sister regularly. On 07.06.2009 at about 3:00 PM, his sister died due to burn injuries and dead body of the deceased is lying in the room. On the basis of aforesaid written report, a case crime no.445 of 2009 was registered under Sections 306 and 498-A I.P.C. and the investigation had taken place. During the course of investigation, I.O. visisted the spot and prepared the site plan. Inquest proceedings were conducted and inquest report was prepared. After that, the dead body was sent for post-mortem where post-mortem was conducted by the concerned doctor and post-mortem report was prepared.

3. Investigating Officer has recorded the statement of witnesses under Section 161 Cr.P.C. and after completion of investigation, I.O. has submitted the charge sheet against the accused-appellant, Ramayan under Sections 306 and 498-A I.P.C. The matter being exclusively triable by the court of sessions, which was committed to the court of sessions where learned Trial Judge framed the charges against the accused-appellant under Sections 306 and 498-A I.P.C. Accused-appellant denied the charges and claimed to be tried.

4. To bring home the charges, the prosecution examined following witnesses:

1.

Anil Kumar

P.W.-1

2.

Ramawati

P.W.-2

3.

Dasai

P.W.-3

4.

Anirudh

P.W.-4

5.

Ramcharan Kanaujiya

P.W.-5

6.

Dr. Vijay Kumar Madheshiya

P.W.-6

5. In support of oral evidence, prosecution submitted following documentary evidence, which was proved by leading oral evidence:-

1.

FIR

Ex.ka-7

2.

Written report

Ex.ka-1

3.

Post-mortem report

Ex.ka-11

4.

Panchayatnama

Ex.ka-12

5.

Charge sheet

Ex.ka-10

6.

Site plan with index

Ex.ka-6

6. After completion of prosecution evidence, the statement of accused was recorded under Section 313 of Criminal Procedure Code (Cr.P.C.). After recording the statement of accused-appellant, fresh charge was framed by the learned trial court under Section 304-B and in alternative under Section 302 I.P.C. and opportunity of cross-examination was given only against the P.W.-1, Anil. No witness in defence was produced by the accused. After hearing the arguments of both the sides, learned trial court convicted the accused-appellant under Section 302 I.P.C. and sentenced him for life imprisonment with fine of Rs.50,000/-.

7. Heard Mr. Chetan Chatterjee, learned Amicus Curiae for the appellant and Mr. N.K. Srivastava, learned counsel for the State. Record has been perused.

8. Learned counsel for the accused-appellant has submitted that deceased died due to fire in the house but it is nowhere proved that fire was ignited by the accused-appellant. Prosecution has further failed to prove that at the time of occurrence, accused-appellant was inside the house because if it could have been the case then accused should also have suffered burn injuries nor he was arrested on the spot. Initially, the case was registered under Section 306 I.P.C. as a suicide case and after the investigation, charge sheet was also filed under Section 306 I.P.C.

9. It is also submitted by learned counsel for the appellant that charge was framed by learned trial court under Sections 306 and 498-A I.P.C. but after completion of entire prosecution evidence, charge was suddenly altered under Sections 304-B and 302 I.P.C. No opportunity was given to the accused-appellant to defend himself against the altered charges.

10. Per contra, learned A.G.A. has submitted that it is not disputed that deceased died in her matrimonial home by burning and it is also proved that she was living with accused-appellant in the same house since last six years, therefore, learned trial court has rightly taken the recourse of Section 106 of Indian Evidence Act where the burden of proof was on the shoulders of the accused-appellant to prove the fact that he has not committed the offence but he failed to do so.

11. It is further submitted by learned A.G.A. that all the witnesses of fact have supported the prosecution case and post-mortem report also confirms that the death of the deceased had taken place due to burn injuries, therefore, there is no illegality or impropriety in the impugned judgment and order, which calls for any interference by this Court.

12. In reply, it is submitted by learned counsel for the appellant that deceased was not the legally wedded wife of the accused-appellant and the learned trial court has also given finding that she was not legally wedded wife, therefore, no offence regarding the dowry death is made out against the accused-appellant and offence under Section 302 I.P.C. is not proved due to lack of evidence, in this regard also.

13. This is clear in this case that learned trial court framed the charges against the accused-appellant on 25.02.2011 under Sections 306 and 498-A I.P.C. On the basis of those charges, the prosecution led its evidence and produced six witnesses. Statement of accused-appellant was recorded under Section 313 Cr.P.C. on 04.07.2015 and after that learned trial court all of sudden altered the charge and framed the charges on 29.07.2015 under Sections 304-B and 302 I.P.C.

14. It is pertinent to note that only P.W.-1 Anil was given opportunity to defend himself with regard to altered charges and no other witness namely P.W.-2 to P.W.-6 was given any opportunity for cross-examination with regard to altered charges, therefore, the accused-appellant could not get any opportunity to defend himself. As far as testimony of P.W.-2 to P.W.-6 is concerned, while writing the judgment, learned trial court did not hold accused-appellant guilty for the offence under Section 498-A, 306 and 304-B I.P.C. but convicted and sentenced him for the offence under Section 302 I.P.C. Hence, in this way, the accused-appellant was convicted and sentenced for the offence, for which he was not given proper opportunity to defend himself.

15. It appears that the learned judge who had subsequently taken charge of the matter had made up his mind that despite there being no evidence which proved the guilt against the accused-husband. The learned judge convicted the accused-appellant on the basis of what is known as morale conviction. This is the submission made by learned counsel for the appellant.

16. Learned counsel for the appellant has contended that the charge could not have been altered in the fashion and in the manner in which it has been done which has acted prejudicial to the appellant herein and learned counsel has relied on the decision in R. Rachaiah Vs. Home Secretary, 2016 0 Supreme (SC) 383 and decision of this Court in Criminal Appeal No.234 of 2017 (Dharmendra Rajbhar Vs. State of U.P.), decided on 19.1.2021 so as to contend that accused requires to be given benefit of doubt as the prosecution has failed to prove the circumstances connecting accused to death of deceased.

17. Learned counsel for the State has vehemently submitted that the burden of proof has been shifted on the accused as per Section 106 of the Evidence Act, 1872 as the death was unnatural and at the dwelling place of husband.

18. Investigation of the case had taken place and the charge-sheet was laid under Section 498A, 306 of IPC but as we can see, convicted the accused under Section 302 of IPC after altering the charge.

19. It is further submitted by learned counsel for the appellant that once Trial Court came to the conclusion that no offence was committed under Section 498A of IPC, the presumption under Section 113-B of Evidence Act, 1872 could not be raised.

20. It would be pertinent to reproduce Section 216 of Cr.P.C. regarding alteration of charge which reads as follows:

"216. Court may alter charge.

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

21. The question which arises before us is that when no cogent evidence to convict the accused despite that the learned Judge has relied on what can be said to be his own conjectures which are not borne out even on interpretation of Section 106 of the Evidence Act, 1872 (hereinafter referred to as 'Act, 1872') which reads as follows:

"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

21. Section 113B and 114 of the Act, 1872 reads as follows:

".1[113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]."

114. Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

22. Provisions of Section 106 and 114 of Act, 1872 were raised by the learned Judge below but oral and other reliable evidence would not permit this Court to raise such presumption as the said presumption is rebuttable. The fact that the deceased died in the matrimonial home is not in dispute but whether it was accused who authored the act which would fulfill the ingredients of Section 300 of IPC and whether it would fall within its purview, such presumption cannot take place of proof. The learned judge with utmost respect could not have convicted the accused under Section 302 of I.P.C. on evidence which was not laid or rather the evidence which was led, was never put to him under Section 313 of Cr.P.C statement and, therefore, he was taken off guard. The presumption under Section 106 of Act, 1872 will not also come to the aid of the prosecution as it was not proved beyond reasonable doubt that the charge which was added did not even mention the satisfaction of the learned Judge below and the conviction was not from major to minor but was from minor to major offence.

23. The submission of learned A.G.A. is that no objection was raised at the time of alteration of charge.

24. We may hasten to mention here that the charge was added at the fag end of the trial. The accused could not have thought that the said alteration of charge would be acted upon within seven days and the trial would culminate into returning the finding of punishment to him under Section 302 of IPC though the evidence was not completing the right of 1872, Act.

25. In our case, we can safely hold that the alteration of charge was bad and reliance is placed on the decision in R. Rachaiah (Supra) which will apply in full force.

26. In judging the question of prejudice as of guilt, the Trial Court was supposed to act with a broad vision and look to the substance and not to the technicalities. The main concern should be to see whether accused has/had a fair trial though he may know or not of what he was being tried for, once the evidence is over, he would not have a fair chance of cross-examination of the witnesses for the new charge added which is under Section 302 of I.P.C. and no evidence was recorded so as to bring home charge of Section 302 of IPC. No doubt the stage of framing new charge under Section 216 of the Cr.P.C. can be at any stage, but the charge for alteration or addition has to be so that the accused is put to circumstance which are against him. The basic feature for framing and/or altering charge in criminal trial is based on principle of fair play.

27. The charges which were levelled and in absence of any evidence, being proved and when there was no charge of murder, the Trial Court could not have altered the charge at the fag end of the Trial and raised presumption as to commission of offence under Section 302 of IPC.

28. The object and scope of altering the charge and the principles therein have been summarized by the Apex Court in Nallapareddi Sridhar Reddy Vs. State of A.P., (2020) 12 SCC 467, which are applicable in our case.

29. In this case, the learned Trial Judge perused the charges and suddenly after most of the witnesses were examined and when it appeared that he could not base the conviction, on the basis of presumption under Section 106 and 114 of the Evidence Act, 1872, he altered the charge to Section 302 of I.P.C.

30. The Apex Court in R. Rachaiah Vs. Home Secretary, 2016 0 Supreme (SC) 383 has held that alteration of charge in violation of mandate as per Sections 216 and 217 of Cr.P.C., and conviction recorded under altered charges seriously causes prejudice to the accused. Thereafter, this impropriety of the Trial Court stands vitiated and there could have been no conviction under altered charge namely under Section 302 of IPC.

31. We can safely conclude that accused-appellant was not given opportunity to defend himself against the charge for which he was convicted. It is sorry state of affair that learned trial judge altered the charge even after recording the statement of accused-appellant under Section 313 Cr.P.C., therefore, the charge was fitted according to the prosecution evidence. There is no doubt that charge can be altered at any stage of the trial but in such a case, the learned trial court should give proper and fair opportunity to the accused to defend himself against the altered charge so that his interest may not be prejudiced. He must get the opportunity of fair trial.

32. In our case, accused is highly prejudiced for not getting the fair and proper opportunity to defend himself against the altered charge and the impugned judgment and order is liable to be set aside and is hereby quashed on this score.

33. Further, if we go by the evidence on record, then also the case of prosecution is not proved even for the offence under Section 302 I.P.C. There is no eye witness of this case and after alteration of charge, opportunity of cross-examination of P.W.-1 is given. P.W.-1 has specifically stated that he has not seen the occurrence as to how his sister caught fire and he also did not see who set her sister ablezed. Even before cross-examination, he has stated in his testimony that he was not present at the place of occurrence and he was told by the villagers that her sister had set her ablezed.

34. The learned trial court has brushed aside the story of prosecution with regard to the demand of additional dowry and dowry death because it is held by learned trial court that deceased was not legally wedded wife of the accused and the factum of additional demand of dowry was not proved, therefore, learned trial court did not hold guilty to the accused-appellant under Section 304-B & 498-A I.P.C. hence, there remains only the charge of murder under Section 302 I.P.C. against the accused-appellant for which there is no evidence on record. Accused-appellant could not be convicted on the basis of presumption for the offence under Section 302 I.P.C.

35. The prosecution was bound to prove the guilt of the accused under Section 302 I.P.C. beyond reasonable doubt but we find no such evidence on record. Although, the learned trial court has opined that on the basis of circumstantial evidence, the case was proved against the accused-appellant but there are no circumstances in this case, which lead to the conclusion that accused-appellant had committed the offence.

36. The Hon'ble Supreme Court in the case of Satish Nirankari Vs. State of Rajasthan, (2017) 8 SCC 497, in paragraphs 29, 30 and 31 has held as under:-

"29. It is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established:

(i) Circumstances should be fully proved.

(ii) Circumstances should be conclusive in nature.

(iii) All the facts established should be consistent only with the hypothesis of guilt.

(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal [State of U.P. v. Ravindra Prakash Mittal, (1992) 3 SCC 300 : 1992 SCC (Cri) 642]; Chandrakant Chimanlal Desai v. State of Gujarat [Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473 : 1992 SCC (Cri) 157] ). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.

30. The following tests laid down in Padala Veera Reddy v. State of A.P. [Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 : 1991 SCC (Cri) 407] also need to be kept in mind : (SCC pp. 710-11, para 10) "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

31. Sir Alfred Wills in his book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;

(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits;

(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."

37. In our case, there is no motive alleged by the prosecution and whatever motive is alleged i.e. with regard to dowry for which the accused-appellant has not been found guilty. No other any circumstantial evidence is available in this case, which could reach to the conclusion that the offence could have been committed by the accused-appellant himself and none else. The chain of circumstances is not complete. It is the duty of the court to evaluate the chain of circumstances to ensure that the chain of events clearly established and complete, in such a way, as to rule out the reasonable likelihood of innocences of the accused-appellant.

38. On the basis of above discussion, we have no other option but to acquit the accused-appellant under Section 302 I.P.C. as this is the case of no evidence. In the aforesaid view, we are of the considered opinion that there is neither the evidence against the acused-appellant with regard to offence under Section 302 I.P.C. nor he was given fair opportunity to defend himself against the altered charges, therefore, we are of the considered view that learned trial court could not have convicted the accused-appellant without any evidence and fair opportunity to defend himself, hence, upturn the findings of learned trial court and the appeal is laible to be allowed.

39. Therefore, in the considered opinion of this Court, the impugned judgment and order dated 29.09.2016 passed by the trial court deserves to be set aside and is accordingly, set aside.

40. Resultantly, the appeal stands allowed.

41. The accused-appellant is acquitted of the offences for which he was charged. The accused-appellant shall be released forthwith, if not wanted in any other case. Fine if deposited be refunded.

42. Let a copy of this judgment along with the trial court record be sent to the court below and jail authorities concerned for compliance.

(Ajai Tyagi,J.)       (Dr. Kaushal Jayendra Thaker,J.)
 
Order Date :- 7.12.2022
 
P.S. Parihar