Mahadeo Krishna Kolekar vs The State Of Maharashtra
2023 Latest Caselaw 7550 Bom

2023:BHC-AS:21158

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL WRIT PETITION NO. 3554 OF 2018

                    1. Shalan Nagnath Pandhare
                       Age 48 Years, Occ. Agri.
                    2. Akash Nagnath Pandhare
                       Age 28 Years, Occ. Agri.
                    3. Vikas Nagnath Pandhare
                       Age 25 Years, Occ. Agri.
                       All R/at. Adobawasti, Tannu
                       Tal. Indapur, Dist. Dist. Pune.                      ...Petitioners
                              Versus
                    The State Of Maharashtra                                ...Respondent
                                                    WITH
                                  CRIMINAL APPLICATION (APPW) NO.338 OF 2018
                                                      IN
                                   CRIMINAL WRIT PETITION NO. 3554 OF 2018

                    Mahadeo Krishna Kolekar                                 ...Applicant

                    IN THE MATTER BETWEEN :-

                    Shalan Nagnath Pandhare And Ors.                   ...Petitioners
                           Versus
                    The State Of Maharashtra                           ...Respondent
                                                     ...
                    Mr. Kuldeep Patil i/by Mr. Prashant S. Hagare, Advocate for the
                    Petitioners.
                    Mr. B. A. Lawate, Advocate for the applicant in Criminal
                    Application No.338 of 2018.
                    Mr. S. R. Agarkar, APP for the Respondent - State.

                                    CORAM                      :   PRAKASH D. NAIK, J.
                    DATE OF RESERVING JUDGMENT                 :   30th SEPTEMBER, 2022
                    DATE OF LISTING FOR
                    CLARIFICATION/HEARING                      :   7th JUNE, 2023 &
                                                                   14th JUNE 2023
                    DATE OF PRONOUNCING JUDGMENT :                 28th JULY, 2023


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 JUDGMENT :

1. The petitioners are accused in C.R. No.130 of 2011

registered with Indapur Police Station, District: Pune, for offences

under Sections 302, 498-A, 120-B, read with Section 34 of Indian

Penal Code (for short "IPC"). On completing investigation, charge-

sheet was filed and the case was committed to the Court of

Sessions and the proceedings are pending before the Sessions Court

at Baramati in Sessions Case No.21 of 2012.

2. The case of the prosecution is as under :-

The first informant is the maternal uncle of the victim

Ashwini Pandhare. The marriage of victim and the accused No.2

Akash was solemnized on 24.06.2010. Akash was working in

army. After marriage, the victim was ill treated by the accused.

The accused No.1 is mother-in-law and the accused No.3 is

brother-in-law of the victim. On 02.05.2011, the husband of

victim gave a call to the complainant and informed him that, he

wants divorce from his wife. On 03.05.2011, information was

received that, the victim Ashwini has died. The complainant

and others visited the matrimonial home of the victim. She was

found in supine position. It was also noticed that the rope was

hanging to the angle of the room. The victim was dead. There

was injury near her chin. Police visited the house. Body was

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sent for the post-mortem. The doctor had opined that, on

account of compression of neck, the victim has died. Body was

cremated. Complaint was lodged with the police and First

Information Report (for short 'FIR') was registered on

04.05.2011 under Sections 302, 498-A, 120-B read with Section

34 of IPC. On completing investigation, charge-sheet was filed.

3. Charge was framed by order dated 01.08.2013 for offences

under Section 498-A r/w Section 34 of IPC, Section 302 r/w

Section 34 of IPC, Section 109 r/w Section 302 of IPC, Section

201 r/w Section 34 of IPC and Section 120-B of IPC.

4. PW-1 Dattatray Hanumant Mohite is the neighbour of

victim and his examination-in-chief and cross examination was

recorded on 06.07.2017. PW-2 Jitendra Tanaji Jadhav is also the

neighbour of the victim. His examination-in-chief and cross

examination was recorded on 17.07.2017. PW-3 Mahadeo Krishna

Kolekar is the maternal uncle of the victim and the first informant.

His evidence was recorded on 19.08.2017. PW-4 Dr. Abhijit

Raghunathrao Phadnis is the Medical Officer, who conducted the

post-mortem of the deceased. He was examined on 13.09.2017.

PW-5 Sangram Shrimant Mane-Deshmukh is the middleman for

arranging the marriage. The evidence of this witness was recorded

on 05.10.2017. PW-6 Pandurang Kisan Pise is the relative of

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deceased. His examination-in-chief was recorded on 09.11.2017

and cross examination was recorded on 30.11.2017. PW-7 Tanaji

Chandrakant Jagdale is the panch witness for spot panchanama.

PW-8 Vilas Babasaheb Dhaigude was posted at Indapur Police

Station as P.S.I. He conducted investigation. His evidence was

recorded on 06.01.2018. Evidence close pursis was filed by the

prosecution on 11.01.2018. Case was adjourned for recording

statement of accused under Section 313 of Cr.P.C.

5. On 20.03.2018, the trial Court framed purported additional

charge as follows :-

" ADDITIONAL CHARGE I A.S. Avate, Additional Sessions Jude, Baramati, do hereby charge you accused.

1] Sau.Shalan Nagnath Pandhare Age 52 Years, Occ. Agriculture.

2] Akash Nagnath Pandhare Age 32 Years, Occ. Agriculture.

3] Vikas Nagnath Pandhare Age 30 Years, Occ. Agriculture.

All R/at. Adobawasti, Tannu Tal. Indapur, Dist. Dist. Pune.

as follows.

That the wife of accused No.2 Ashwini committed suicide in the night of 02/05/2011 at your house at village Adoba Vasti, Tannu Tal:Indapur and you all the accused have abated the commission of such suicide and thereby committed an offence punishable under Section 306 of the Indian Penal Code and within my cognizance.

AND I hereby direct that you be tried on the aforesaid charge by me."

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6. The learned Additional Sessions Judge passed separate order

dated 20.03.2018 which is as follows :-

" Today this Court has framed additional charge below Ex.17. Both the sides are at liberty to adduce evidence on the additional charge."

7. The additional charge was framed under Section 306 of

IPC. The trial Court can suo-moto frame the additional charge.

8. PW-1 Dattatray Hanumant Mohite is the neighbour of the

accused. He heard shouts from the house of the accused on

03.05.2011 and when he visited the house, he saw that the body of

victim was lying on a bed. In the cross examination he stated that,

he heard from the villagers that the victim had committed suicide.

9. PW-2 Jitendra Tanaji Jadhav has deposed that, he went to

the house of the accused. The body of victim was hanged to the

roof of the house by nylon rope. When he went to the house of the

victim for second time, her body was lying on Diwan in supine

position. In the cross examination he stated that, when he went to

the house of the accused for the first time, the room in which the

body of victim was hanging, was closed from the inside. He saw

the body of victim was hanging from the window of the house.

Villagers were gathered and they were saying that the victim had

committed suicide.

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10. PW-3 Mahadeo Krishna Kolekar stated that, he saw the

dead body of the victim in supine. The neck of the dead body had

marks of strangulation. Injuries were seen behind the ear and

below the chin. Post-mortem was conducted. Doctor told him that,

death was caused due to strangulation. When he reached there,

the accused were not present. In the cross examination he stated

that, when they went to the house of the accused, that time 10 to

15 persons were present. He inquired about the cause of death of

the victim. He denied that, those persons informed him that the

victim has committed suicide by hanging. He also denied that, he

received message that the victim has committed suicide by hanging.

He denied the suggestion that the victim has committed suicide due

to loneliness.

11. PW-4 Dr. Abhijit Ragunathrao Phadnis has deposed that, he

conducted post-mortem examination of the victim. He found

ligature marks at the neck situated at the level of thyroid cartilage.

It was horizontal and encircled the neck completely. Ligature

marks were huge in size. Thyroid cartilage was fractured.

According him, death of victim was homicidal. In the cross

examination he stated that, in Column No.17 of the post-mortem

report he has stated that, ligature marks were present on the body.

Strangulation was by ligature. There is similarity in cause of death

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by hanging and by strangulation. He denied that, if the victim has

committed suicide, then ligature marks as shown in Para No.17 of

the post-mortem report may occur.

12. PW-5 Sangram Shrimant Mane-Deshmukh has stated that

on 03.05.2011, he went to the house of the accused. The body of

the victim was kept on bed. He denied the suggestion that, due to

suicide by the victim, the area was under tension.

13. PW-6 Pandurang Kisan Pise has stated that, he came to

know that the victim was murdered by strangulation. It was

pointed out to him that, in the statement before the police he

stated that, from the conversation of relatives present at the place

of incident he learnt that the victim has committed suicide.

14. Learned Advocate appearing for Petitioner submitted that,

the charge under Sections 302 and 306 of IPC are distinct. Both

the charges cannot be framed as alternative or additional charge.

The trial proceeded for offence under Section 302 of IPC and 498-A

IPC. After recording the entire evidence and closure pursis filed by

the prosecution, the learned Sessions Judge ought not to have

framed the charge under Section 306 of IPC. In the facts of this

case, the Court cannot be exercised powers under Section 226 of

Cr.P.C.. The accused had killed the deceased. Now the different

complexion cannot be given to the case by framing charge under

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Section 306 of IPC. Framing of additional charge would amount to

failure of justice by prejudicing the defence of the accused. The

Court has to ensure that the alteration or addition of charge has

not caused prejudice to the accused and though the power is wide

and extensive it must be exercised judiciously.

15. Learned Advocate for the Petitioner has relied upon

following decisions :-

i) Sabirabano Yusuf Sayyad and Anr. Vs. The State of Maharashtra passed by this Court in Criminal Application (APL) No.125 of 2020 vide Judgment dated 24.11.2021.

ii) Jasvinder Sanini and Others Vs. State (Government of NCT of Delhi)1.

iii) Shamnsaheb M. Multtani Vs. State of Karnataka2.

iv) Virendra Kumar Vs. State of U.P.3.

v) Bimla Devi and Another Vs. State of Jammu and Kashmir4.

vi) Prasoon Gupta & Ors. Vs. State of U.P5..

vii) Harjit Singh Vs. State of Punjab6.

16. Learned A.P.P. submitted that, there is no infirmity in the

order framing additional charge by the trial Court. No prejudice

will be caused to the accused. By framing the additional charge,

the Court has cautioned the accused that they can meet the said

charge and both the sides are given liberty to adduce evidence on 1 (2013) 7 SCC 256 2 (2001) 2 SCC 577 3 (2007) SCC 211 4 (2009) 6 SCC 629.

5 2010 SCC OnLine All 1887.

6 (2006) 1 SCC 463.

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 the additional charge.          Even if the charge is not framed under

Section 306 of IPC, the trial Court is empowered to convict the

accused for offence under Section 306 of IPC, even if he is charged

under Section 302 of IPC. In the present case, the trial Court has

realized that, a fair opportunity should be given to the prosecution

as well as the defence and framed the charge under Section 306 of

IPC. Although the charges under Sections 302 & 306 are distinct in

the present case, the charge for both the offences can be framed.

The accused were also charged for offence under Section 498-A of

IPC, the ingredients which to constitute offence of abetment to

commit suicide are brought on record through evidence of

witnesses while charging them for cruelty under Section 498-A of

IPC. In fact in the present case the defence of the accused is that

the victim has committed suicide. Thus, the trial Court is also

empowered to convict the accused under Section 306 of IPC in

exercise of powers under Section 222 of Cr.P.C. The Court is also

empowered to frame the charge in the event it is not clear as to

which offence is committed by the accused for all the offences.

17. Learned A.P.P. has relied upon the following decisions :-

              i)    Kisan & Ors. Vs. State of Maharashtra7.

              ii)   Dalbir Singh Vs. State of U.P.8.

 7 2007 CRI. L.J. 130
 8 (2004) 5 SCC 334


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              iii) Rekha Vs. State of U.P.9.

iv) Rafiq Ahmad alias Rafi Vs. State of Uttar Pradesh10.

18. Undisputedly, the charge was framed vide order dated

01.08.2013 under Sections 498A r/w Section 34 of IPC; Section

302 r/w 34 of IPC; Section 109 r/w Section 302 of IPC; Section

201 r/w Section 34 of IPC and Section 120-B IPC. The prosecution

case is that the victim was found hanging to a rope in the room of

the residence. Some injuries were noticed on her person. Some of

the witnesses have stated that, when they visited the house of the

accused, the victim was lying on the bed in supine condition.

19. The case proceeded for the aforesaid offences. From the

cross examination conducted by the accused it is apparent that

their defence is that the victim has committed suicide. Apparently

the victim was found dead in the house and death was due to

strangulation. The accused are also tried for offence under Section

498-A of IPC right from inception. The prosecution has laid

evidence in that regard. It is the case of the prosecution that the

victim was ill treated by the accused. The ingredients to support

the charge under Section 306 of IPC are already apparent from the

evidence of the witnesses. Thus, the question is whether the

accused had abetted suicide. It is a settled law that, if the evidence

9 AIRONLINE 2021 ALL 369 10 (2001) 8 SCC 300

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on record support the charge under Section 306 of IPC irrespective

of the fact that the accused were not charged for the said offences,

they can be convicted for the same even in a situation where the

charge under Section 302 of IPC was framed.

20. Learned Advocate for Intervenor supported the impugned

order. He submitted that, there is no legal infirmity in the said

order.

21. In the case of Dalbir Singh Vs. State of U.P. (supra) the

accused was charged for offence under Section 302 of IPC for

having committed the murder of his wife and two daughters. He

was also charged under Section 304-B of IPC and Section 498-A of

IPC for subjecting his wife to cruelty. The accused was convicted

for offence under Section 302 of IPC and Section 498-A of IPC. He

was acquitted for offence under Section 304-B of IPC. In the

appeal, the High Court came to the conclusion that the charge

under Section 302 was not made out and acquitted him for the said

offence. However the accused was held guilty under Section 306 of

IPC for having abetted commission of suicide by victim. However,

in view of fact that no charge under Section 306 of IPC was framed

against the accused, the High Court relying upon the decision of

the Supreme Court in the case of Sangaraboina Sreenu Vs. State of

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A.P.11 held that the accused could not be convicted for the said

offence. The High Court noticed that a contrary view had been

taken in an earlier decision in the case of Lakhjit Singh Vs. State of

Punjab12 but choose to rely upon the latter decision. The Supreme

Court took note of both the said decisions and on analysing the

evidence, dealt with the question whether in a given case it is

possible to convict the accused under Section 306 of IPC if the

charge for the said offence has not been framed against him. In

Paragraph Nos. 12, 13 & 14 of the said decision it is observed as

follows :

" 12. The main question which requires consideration is whether in a given case is it possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him. In Lakhjit Singh & Anr. v. State of Punjab (supra) the accused were charged under Section 302 IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The Court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non- framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr.P.C. it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306 IPC. The relevant para of the observation made in para 9 of the report reads as under:

" The learned counsel, however, submits that since the charge was for the offence punishable under Section 302 Indian Penal Code, the accused were not put to notice to meet a charge also made against them under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 Indian Penal Code and;

therefore, presumption under Section 113-A of Indian Evidence Act cannot be drawn and consequently a

11 1997 (5) SCC 348 12 1994 SCC (Cri.)235

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conviction under Section 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under Section 313 Cr. P.C. and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given under Section 313 of the Cr. P.C. would show that they had enough of notice of the allegations which attract Section 306 Indian Penal Code also."

13. In Sangaraboina Sreenu v. State of A.P. (supra) the judgment is a very short one of just two paragraphs. In the first paragraph it is mentioned that the trial Court convicted the accused under Section 302 IPC on the charge that he poured kerosene on the body of his wife and set her on fire but the High Court set aside the said conviction and convicted the accused under Section 306 IPC. Paragraph 2 of the judgment which contains the whole reasoning for allowing the appeal reads as under :

"This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302 IPC which was the only charge framed against him the High Court could not have convicted him of the offence under Section 306 IPC. It is true that Section 222 Cr.P.C. entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr. P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof."

14. Here the Court proceeded to examine the question that if the 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 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 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 the 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

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the position clear. However, there is a separate chapter in the Code of Criminal Procedure, 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 Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub- section (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. 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 Singh (supra) though Section 464 Cr.P.C. has not been specifically referred to but the Court altered the conviction from 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 keeping in view Section 222 Cr.P.C. alone, the conviction of the appellant therein under Section 306 IPC was set aside."

22. The Court summarized the conclusion by observing that in

view of Section 464 of Cr.P.C. it is possible for the appellate or

revisional Court to convict the accused for the offence for which no

charge was framed unless the Court is of the opinion that the

failure of justice would in fact occasion. In order to judge whether

the failure has been occasioned, it will be relevant to examine

whether the accused was aware of the basic ingredients of the

offence for which he is being convicted and whether the main facts

sought to be established against him were explained to him clearly

and whether he got fair chance to defend himself. It was also held

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that the decision in the case of Sangaraboina Sreenu Vs. State of

A.P. (supra) was not correctly decided as it purports to lay down as

a principle of law that where the accused is charged under Section

302 of IPC, he cannot be convicted for the offence under Section

306 of IPC.

23. In the case of Kisan & Ors. Vs. State of Maharashtra (supra)

this Court has referred the decision in the case of Dalbir Singh Vs.

State of U.P. (supra) and observed that, whether the accused is

charged under Sections 498-A and 302 of IPC framing of

alternative charge for abetment of suicide is permissible, basic

ingredients of offence under Section 306 of IPC are hidden in

charge under Section 498-A. Conviction under Section 306 of IPC

would not result in failure of justice even if the accused was tried

only under Section 302 and 498-A of IPC.

24. Thus, the aforesaid decision makes it clear that, assuming

that the accused were charged under Sections 498-A and 302 of

IPC and not under Section 306 IPC, they could be convicted for

offence under Section 306 of IPC. In the present case the charge

has been added under Section 306 of IPC. Section 216 of Cr.P.C.

empowers alteration of charge at any stage before the trial is

concluded by judgment. In the case of Kisan & Ors. Vs. State of

Maharashtra (supra) it is held that, the charge under Section 306

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of IPC could be framed as an alternative charge to Sections 498-A

and 302 of IPC.

25. In the case of Jasvinder Sanini and Others Vs. State

(Government of NCT of Delhi) (supra) relied upon by the learned

counsel for the Petitioner it was held that, there is unrestricted

power to add or alter any charge whenever Court finds that

defective charge has been made or addition of new charge becomes

necessary after commencement of trial, but such addition or

alteration has to be made before pronouncement of judgment.

26. In the case of Shamnsaheb M. Multtani Vs. State of

Karnataka (supra) it is held that, conviction under Section 304-B of

IPC without affording an opportunity to accused to enter on his

defence and disprove the presumption under Section 113-B of

Evidence Act would result in failure of justice. Hence, conviction

under Section 304-B cannot be recorded in absence of charge

thereunder. The accused to be put on notice and to be allowed to

enter his defence against the charge under Section 304-B of IPC. It

is also observed that, Sections 221 and 222 of the Code are the two

provisions dealing with the power of criminal court to convict the

accused of an offence which is not included in the charge. This

issue would not arise in the present case since the accused are now

charged for an additional charge under Section 306 of IPC.

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27. In the case of Virendra Kumar Vs. State of U.P . (supra) it

was observed that the material relating to torture, harassment and

demand of dowry were specifically brought to the notice of the

accused in the trial. Even in the absence of presumption under

Section 113-A of the Evidence Act, prosecution version was specific

to the extent that the victim was being taunted by the accused for

not bringing adequate dowry. Hence, even in the absence of

specific charge under Section 306 of IPC, the accused could not be

convicted for the said offence.

28. In the case of Bimla Devi and Another Vs. State of Jammu

and Kashmir (supra) the apex Court has referred to the decisions in

the case of Sangaraboina Sreenu Vs. State of A.P (supra), Lakhjit

Singh Vs. State of Punjab (supra), Shamnsaheb M. Multtani Vs.

State of Karnataka (supra). It is pertinent to note that the decision

of the Supreme Court in the case of Dalbir Singh Vs. State of U.P.

(supra) was not considered. It was held that, in a situation if the

trial Court finds that the prosecution has failed to make out the

case under Section 302 of IPC but the offence under Section 304-B

has been made out, the Court can call upon the accused to enter on

his defence in respect of the said offence without affording such

opportunity to the accused. Conviction under Section 304-B of IPC

would lead to miscarriage of justice. In fact applying the said

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principle it has to be noted that, in the present case the trial Court

has took precautionary measure before the judgment is delivered

by framing the additional charge under Section 306 of IPC. Thus,

no infirmity can be traced in the additional charge framed by the

trial Court.

ORDER

i) Criminal Writ Petition No.3554 of 2018 is rejected.

ii) Criminal Application No.338 of 2018 is disposed off.

                                             (PRAKASH D. NAIK, J.)




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