Kerala High Court
Suresh vs State Of Kerala on 1 November, 2024
2024:KER:80744
Crl.Appeal No.850 of 2007 1
C.R
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
CRL.A NO. 850 OF 2007
AGAINST THE JUDGMENT DATED 07.05.2007 IN SC NO.136 OF
2006 OF ADDL.SESSIONS JUDGE/SPECIAL JUDGE FOR NDPS ACT CASES,
THODUPUZHA
APPELLANT/ACCUSED No.1:
SURESH, S/O.GOPALAN,
POOKKULAM ESTATE, ANAVILASAM VILLAGE, CHAPPATHU KARA.
BY ADVS.
SRI.RENJITH B.MARAR
SRI.PRABHU VIJAYAKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY SRI.M.C ASHI, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.10.2024, THE COURT ON 01.11.2024 DELIVERED THE FOLLOWING:
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Crl.Appeal No.850 of 2007 2
C.R
JUDGMENT
This appeal is at the instance of the accused in SC No.136 of
2006 on the file of Additional Sessions Judge/Special Judge for
NDPS Act cases, Thodupuzha, challenging his conviction and
sentence under Section 498A of IPC, as per judgment dated
07.05.2007.
2. The appellant/accused was originally charge sheeted by SI
of Police, Upputhara for an offence punishable under Section 306 of
IPC. The prosecution allegation was that, the accused, who was in
a live-in relationship with the deceased Smt.Jancy, abetted her
suicide on 10.03.2005 at 3 p.m.
3. On committal, and on appearance of the accused before
the trial court, charge was framed against him under Section 306
of IPC. He pleaded not guilty to the charge and claimed to be
tried.
4. PWs 1 to 8 were examined, Exts.P1 to P6 were marked
and MO1 was identified from the side of the prosecution.
5. On closure of prosecution evidence, accused was
questioned under Section 313 of Cr.P.C. He denied all the
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incriminating circumstances brought on record and submitted that,
himself and Smt.Jancy fell in love and they were living together
harmoniously, and two children were born to them. Since she had
made some derogatory remarks against a neighbour lady named
Rajakumari, he had scolded her. On 10.03.2005, he went out for
work and when he returned from his workplace, he came to know,
that his wife committed suicide by consuming poison. DWs 1 and 2
were examined from defence side.
6. On analysing the facts and evidence and on hearing the
rival contentions from either side, the trial court found that, there
was no sufficient evidence to find that the accused abetted suicide
of Smt.Jancy and so he was acquitted of the offence alleged under
Section 306 of IPC. But, from the testimony of prosecution
witnesses, the trial court found that the accused had subjected his
wife to cruelty both mentally and physically, which will attract an
offence punishable under Section 498A of IPC. So, he was
convicted under Section 498A of IPC and was sentenced to
undergo simple imprisonment for two years and to pay fine of
Rs.15,000/-, with a default sentence of simple imprisonment for
three months, and to pay Rs.10,000/- to PW2-the mother of the
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deceased as compensation under Section 357(1) of Cr.P.C, out of
the fine amount, if realised. Aggrieved by the conviction and
sentence under Section 498A of IPC, the accused has come up with
this appeal.
7. Heard learned counsel for the appellant/accused and
learned Public Prosecutor for the respondent/State.
8. The appellant was originally charged under Section 306 of
IPC, but the trial court found that, prosecution could not prove
that, he had abetted suicide of Smt.Jancy, and so he was acquitted
of that offence. But no appeal has been preferred by the
prosecution against his acquittal, under Section 306 of IPC, and so
it has become final.
9. The appellant was convicted and sentenced for an offence
punishable under Section 498A of IPC, without framing a charge
against him under that section. Learned counsel for the appellant
would contend that Section 306 and 498A of IPC are distinct
offences, for which separate charges are necessary, and great
prejudice has been caused to the appellant, as he was not called
upon to answer a charge under Section 498A of IPC, whereby he
was denied of an opportunity to defend his case.
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10. Learned counsel for the appellant would contend that,
there was no marriage at all between the appellant and deceased
Jancy, and they were in a live-in relationship though two children
were born out of their cohabitation. PW2-the mother of the
deceased was not in good terms with the appellant, but learned
trial court relied on the improvised and exaggerated testimony of
PW2, to find that the appellant subjected the deceased to physical
and mental cruelties. So, he would argue that, the conviction and
sentence of the appellant under Section 498A of IPC are not
maintainable either in law or on facts.
11. Learned Public Prosecutor would argue that, the marital
relationship between the appellant and deceased Jancy was
admitted by the appellant even in his 313 questioning as he was
addressing the deceased as his wife. Moreover, the testimony of
PWs 2 to 4 also would show that, the appellant was the husband of
deceased Jancy. All of them deposed that the appellant used to
ill-treat her mentally and physically. So, sufficient materials were
there to bring home, an offence punishable under Section 498A of
IPC against the appellant, and hence he was liable to be punished
for that offence, irrespective of the fact, that no separate charge
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was framed for that offence.
12. In criminal jurisprudence, the general rule is that, for
every distinct offence, there shall be a separate charge. Section
218 of Cr.P.C says that for every distinct offence, there shall be
separate charge and every such charge shall be tried separately,
subject to the exceptions in Sections 219, 220, 221 and 223 of
Cr.P.C.
13. Section 218 of Cr.P.C reads thus:
"218. Separate charges for distinct
offences.-(1) For every distinct offence of which any
person is accused there shall be a separate charge, and
every such charge shall be tried separately :
Provided that where the accused person, by an
application in writing, so desires and the Magistrate is
of opinion that such person is not likely to be prejudiced
thereby, the Magistrate may try together all or any
number of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the
operation of the provisions of Sections 219, 220, 221
and 223".
14. Relying on Section 218 of Cr.P.C, learned counsel for
the appellant would argue that, the trial court went wrong in
convicting the appellant under Section 498A of IPC, when he was
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called upon to answer a charge, only under Section 306 of IPC.
15. Learned Public Prosecutor would rely on Section 222 of
Cr.P.C to say that, when an offence proved, included in offence
charged, the accused can be convicted for the offence proved, even
if there was no separate charge for that offence.
16. It is worth quoting Section 222 of Cr.P.C which reads
thus:
"222. When offence proved included in offence
charged.- (1) 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.
(2) When a person is charged with an offence and
facts are proved which reduce it to minor offence, he
may be convicted of the minor offence, although he is
not charged with it.
(3) When a person is charged with an offence, he
may be convicted of an attempt to commit such
offence although the attempt is not separately
charged.
(4) Nothing in this section shall be deemed to
authorise a conviction of any minor offence where the
conditions requisite for the initiation of proceedings in
respect of that minor offence have not been satisfied".
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17. Learned Public Prosecutor would argue that, punishment
for an offence under Section 306 of IPC is imprisonment of either
description for a term which may extend to ten years and fine,
whereas an offence under Section 498A of IPC is punishable with
imprisonment for a term which may extend to three years and fine.
According to him, an offence under Section 498A of IPC is included,
in an offence under Section 306 of IPC, and moreover an offence
under Section 498A of IPC is a minor offence when compared to an
offence under Section 306 of IPC. So, going by Section 222(2) of
Cr.P.C, there was no illegality or impropriety in convicting the
appellant for a minor offence under Section 498A of IPC, on proof
of commission of such offence, though no separate charge was
framed against him, for that offence.
18. Now let us see whether the offences under Sections 306
and 498A of IPC are distinct offences, for which separate charges
are necessary or whether Section 498A of IPC is a minor offence to
Section 306 of IPC, so that conviction was possible under Section
498A of IPC, even without a charge, on proof of commission of
such offence, in spite of his acquittal under Section 306 of IPC.
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19. Sections 306 and 498A of IPC are extracted below for
ready reference.
"306. Abetment of Suicide.- If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either
description for a term not exceeding ten years, and
shall also be liable to fine."
"498A. Husband or relative of husband of a
woman subjecting her to cruelty.--Whoever, being
the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable to fine.
Explanation.-- For the purpose of this section,
"cruelty" means--
(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for
any property or valuable security or is on account of
failure by her or any person related to her to meet
such demand".
20. Going by Section 498A of IPC, we get the key elements
as follows:
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(1) Cruelty (physical, mental or emotional)
(2) By husband or his relatives
(3) Towards a married woman
(4) Likely to drive the woman to commit suicide or
to cause grave injury to life, limb or health.
(5) Harassment to meet any unlawful demand for
property or valuable security.
Whereas the key elements under Section 306 of IPC are as follows:
(1) Abetment
(2) Of suicide
(3) Intentional act or omission
21. When a woman is subjected to cruelty by her husband
or his relative, which is likely to drive that woman to commit
suicide, it is an offence punishable under Section 498A of IPC, and
Section 306 of IPC is about suicidal death and abetment thereof.
Marriage is sine qua non, to attract an offence punishable under
Section 498A of IPC. But, for an offence under Section 306 of IPC,
there need not be any relationship between the accused and the
victim. Where the cruelty or harassment as envisaged under
Section 498A of IPC is proved to have contributed to the suicide,
and the intention of the accused to abet that suicide can be
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inferred, from his cruel or harassing behaviour, then the accused
can be charged both under Section 498A and 306 of IPC. The
basic ingredients of an offence under Section 498A of IPC can be
said to be there, in a charge under Section 306 of IPC, where the
cruelties meted out to the wife, by her husband or his relatives
were of such a nature, to drive her to commit suicide. Section
498A has a wider spectrum, and it covers all cases, in which the
wife is subjected to cruelty by her husband or relative of the
husband, which may result in death by way of suicide or cause
grave injury or danger to life, limb or health (whether mental or
physical), or even harassment caused with a view to coerce the
woman or any person related to her, to meet the unlawful demand
for property or valuable security. The first thing to prove an
offence under Section 306 of IPC is the fact of suicide. Abetment
is a separate and distinct offence, provided the thing abetted is an
offence.
22. In Ramesh Kumar v. State of Chattisgarh [2002 KHC
346], Hon'ble Apex Court held that, "S.498A and 306 IPC are
independent and constitute different offences. Though, depending
on the facts and circumstances of an individual case, subjecting a
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woman to cruelty may amount to an offence under S.498A and
may also, if a course of conduct amounting to cruelty is
established, leaving no other option for the woman except to
commit suicide, amount to abetment to commit suicide. However,
merely because an accused has been held liable to be punished
under S.498A IPC, it does not follow that, on the same evidence
he must also and necessarily be held guilty of having abetted the
commission of suicide by the woman concerned". So, obviously
even if a man is acquitted under Section 306 of IPC, he need not
be necessarily acquitted for an offence punishable under Section
498A of IPC or vice versa. Since an offence under Section 306 of
IPC and 498A of IPC are distinct and different, there has to be a
charge under both sections, and conviction and sentence also can
be imposed under both the sections separately.
23. In Paranagouda v. State of Karnataka [2023 KHC
6941], Hon'ble Apex Court held that omission to frame charge
does not disable the court from convicting the accused for the
offence which is found to have been proved on the evidence on
record.
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24. In K. Prema S. Rao & anr v. Yadla Srinivasa Rao
and others [(2003) 1 SCC 217], Hon'ble Apex Court held that,
mere omission or defect in framing of charge would not be fatal if
from the statement of charge under S.304B and in the alternative
S.498A, it is clear that all facts and ingredients, for framing of
charge under S.306 existed in the case, same would suffice. It
was further held that, mere omission or defect in framing charge
does not disable the criminal court, from convicting the accused
for the offence which is found to have been proved, on the
evidence on record. The Code of Criminal Procedure has ample
provisions to meet a situation like the one before us. From the
statement of charge framed under Section 304-B and in the
alternative Section 498-A IPC, it is clear that all facts and
ingredients for framing charge for offence under Section 306 IPC
existed in the case. The mere omission on the part of the trial
Judge to mention Section 306 IPC with Section 498-A IPC does not
preclude the court from convicting the accused for the said
offence, when found proved. In the alternate charge framed under
Section 498-A IPC, it has been clearly mentioned that the accused
subjected the deceased to such cruelty and harassment, as to
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drive her to commit suicide. The provisions of Section 221 CrPC
take care of such a situation and safeguard the powers of the
criminal court, to convict an accused for an offence with which he
is not charged, although on facts found in evidence, he could have
been charged for such offence".
25. Now let us see whether Section 498A can be treated as a
minor offence to Section 306. In Dalbir Singh v. State of U.P
[2004 KHC 1028], Hon'ble Apex Court observed that, "sub-section
(1) of S.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. S.222 CrPC 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".
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26. In Shamnsaheb M. Multtani v. State of Karnataka
[(2001) 2 SCC 577], Hon'ble Apex Court explained what is meant
by 'a minor offence' for the purpose of Section 222 of the Code. It
was observed that although the said expression is not defined in
the Code, it can be discerned from the context that the test of
minor offence is not merely that, the prescribed punishment is less
than the major offence. Only if the two offences are cognate
offences, wherein the main ingredients are common, the one
punishable among them with a lesser sentence can be regarded as
minor offence vis-a-vis the other offence. In paragraph 17 of that
judgment, we read thus:
"17. The composition of the offence under Section
304B IPC is vastly different from the formation of the
offence of murder under Section 302 IPC and hence the
former cannot be regarded as minor offence vis-a-vis
the latter. However, the position would be different
when the charge also contains the offence under
Section 498-A IPC (husband or relative husband of a
woman subjecting her to cruelty). As the word "cruelty"
is explained as including, inter alia,
"harassment of the woman where such
harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any
property or valuable security or is on account of failure
by her or any person related to her to meet such
demand".
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27. Paragraphs 29 to 31 of Shamnsaheb's decision cited
supra, is worth quoting which read thus:
"29. At this stage, we may note, the difference in
the legal position between the said offence and S.306
IPC which was merely an offence of abetment of suicide
earlier. The section remained in the statute-book
without any practical use till 1983. But by the
introduction of S.113A in the Evidence Act the said
offence under S.306 IPC has acquired wider dimensions
and has become a serious marriage-related offence.
S.113A of the Evidence Act says that under certain
conditions, almost similar to the conditions for dowry
death the court may presume having regard to the
circumstances of the case, that such suicide has been
abetted by her husband etc. When the law says that the
court may presume the fact, it is discretionary on the
part of the court either to regard such fact as proved or
not to do so, which depends upon all the other
circumstances of the case. As there is no compulsion
on the court to act on the presumption, the accused can
persuade the court, against drawing a presumption
adverse to him.
30. But the peculiar situation in respect of an
offence under S.304B IPC, as discernible from the
distinction pointed out above in respect of the offence
under S.306 IPC is this : Under the former the court
has a statutory compulsion, merely on the
establishment of two factual positions enumerated
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above, to presume that the accused has committed
dowry death. If any accused wants to escape from the
said catch, the burden is on him to disprove it. If he
fails to rebut the presumption the court is bound to act
on it.
31. Now take the case of an accused who was
called upon to defend only a charge under S.302 IPC.
The burden of proof never shifts onto him. It ever
remains on the prosecution which has to prove the
charge beyond all reasonable doubt. The said traditional
legal concept remains unchanged even now. In such a
case the accused can wait till the prosecution evidence
is over and then to show that the prosecution has failed
to make out the said offence against him. No
compulsory presumption would go to the assistance of
the prosecution in such a situation. If that be so, when
an accused has no notice of the offence under S.304B
IPC, as he was defending a charge under S.302 IPC
alone, would it not lead to a grave miscarriage of
justice, when he is alternatively convicted under S.304B
IPC and sentenced to the serious punishment
prescribed thereunder, which mandates a minimum
sentence of imprisonment for seven years".
28. Going by Section 498A of IPC, marriage is a condition
precedent for attracting that offence; whereas there is no such
condition in an offence under Section 306 of IPC. In Shivcharan
Lal Verma and another v. State of Madhya Pradesh [2002 (2)
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Crimes 177 (SC): (2007) 15 SCC 369], a three Judge Bench of
the Apex Court held that, the mental or physical harassment of a
lady who had not been legally married by the accused, will not
attract a prosecution under Section 498A of IPC. There must be a
valid marital relationship between the accused and the victim in
order to attract that offence.
29. In Narayanan v. State of Kerala [2023 (6) KHC 427],
this Court held that, only a legally wedded wife can claim the
protection under Section 498A of IPC, and in the absence of such a
legal relationship as husband and wife, there cannot be a
conviction under Section 498A. But, for a conviction under Section
306 of IPC, no such condition is there. Whoever abets the
commission of suicide by any person, is liable to be punished for
that offence.
30. Learned counsel for the appellant would argue that,
Section 498A of IPC cannot be treated as a minor offence to
Section 306 of IPC, simply because the punishment is less under
Section 498A. Marriage is sine qua non to attract the penal
provision under Section 498A of IPC. In the case on hand, the
appellant was asked to defend a charge under Section 306 of IPC
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alone, and he was acquitted for that offence, but convicted under
Section 498A of IPC. Learned counsel for the appellant would
submit that, the appellant had no notice of an offence under
Section 498A of IPC against him, and if he had notice of such an
offence also, in the charge framed against him under Section 306
of IPC, he could have taken a defence, that there was no marriage
at all between himself and the deceased. The prosecution
witnesses stated before court that, the appellant and deceased
Jancy were in a live in relationship, though two children were born
to them. In the 313 questioning of the appellant, not even a single
question was put to him regarding the marital relationship between
himself and the deceased. So, according to the appellant, great
prejudice has been caused to him by convicting him under Section
498A of IPC.
31. Learned Public Prosecutor would argue that, if at all the
court omitted to frame a charge under Section 498A of IPC also
against the appellant, it will not invalidate the conviction and
sentence, as there was no failure of justice occasioned thereby.
32. Section 464 of Cr.P.C is relevant in this context which can
be quoted below:
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"464. Effect of omission to frame, or absence
of, or error in, charge.- 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.
(2) If the court of appeal, confirmation or revision
is of opinion that a failure of justice has in fact been
occasioned, it may-
(a) in the case of an omission to frame a charge,
order that a charge be framed and that the trial be
recommenced from the point immediately after the
framing of the charge.
(b) in the case of an error, omission or irregularity
in the charge, direct a new trial to be had upon a
charge framed in whatever manner it thinks fit:
Provided that if the court is of opinion that the
facts of the case are such that no valid charge could be
preferred against the accused in respect of the facts
proved, it shall quash the conviction".
33. Learned Public Prosecutor would submit that, Section
306 of IPC is with respect to suicidal death and abetment thereof,
and Section 498A of IPC also is about wilful conduct of a husband
or relative of the husband of a woman, which is of such a nature as
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is likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical)
of the woman, or harassment of a woman with a view to coercing
her or any person related to her to meet any unlawful demand for
any property or valuable security etc. etc. So, while answering the
charge under Section 306 of IPC, he had sufficient notice of an
offence under Section 498A of IPC also, and hence no prejudice
has been caused to him.
34. In Rafiq Ahmed @ Rafi v. State of U.P [2011 KHC
4683], Hon'ble Apex Court examined the nature and scope of plea
of prejudice to the accused and held that, only when the accused is
able to show that there is serious prejudice, and that the same has
defeated the rights available to him under the criminal
jurisprudence, then only he can seek benefit under the orders of
the court.
35. One of the cardinal principles of natural justice is that no
man should be condemned without being heard (audi alteram
partem). Here the appellant was not heard regarding an offence
committed under Section 498A of IPC and he was not given an
opportunity to defend his case under that section, which resulted in
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penalising him. So, obviously, there occurred failure of justice.
36. In the light of the above discussion and also from the
decisions cited supra, we could say with clarity, that offences under
Sections 306 and 498A of IPC are distinct offences, for which
separate charges are necessary. There can be a charge under
Section 306 and 498A of IPC together, and conviction and sentence
also can be imposed under both sections separately. Acquittal
under Section 306 IPC will not necessarily lead to an acquittal
under Section 498A of IPC or vice-versa. Even if the accused was
charged only under Section 306 of IPC, and he was found not
guilty of that offence, there is nothing improper in convicting him
for an offence under Section 498A of IPC, on proof of commission
of such offence, if from the statement of charge under Section 306,
it was clear that all the ingredients for framing a charge under
Section 498A existed in the case. If so, that was sufficient to
convict the accused under Section 498A of IPC, on proof of
commission of such offence, though no specific charge was framed
for that offence.
37. From the evidence on record, it could be seen that there
was no specific allegations of matrimonial cruelties, which
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prompted the deceased to commit suicide, except some general
statement of harassment against the appellant. Though PW2
stated that, the accused used to assault the deceased, no
complaints were ever preferred by her, alleging that she was
subjected to cruelty by the appellant. PW3, her paternal uncle, is
having only hearsay information about the cruelties meted out to
the deceased by the appellant. PW4-a neighbour has never seen
any assault, though he stated that the appellant and the deceased
used to quarrel. DW1-the mother of the appellant would say that,
the quarrel between the appellant and the deceased were only
normal, as the quarrel in any other house. So, prosecution could
not prove that Smt.Jancy was subjected to cruelties or harassment
by the appellant.
38. There is clear admission from the part of prosecution
witnesses that, there was no marriage at all between the appellant
and the deceased and they were in a live-in relationship. So, the
penal provision under Section 498A of IPC cannot be extended
towards the appellant. If the appellant had an opportunity to meet
the ingredients of a charge under Section 498A of IPC also, in the
charge framed against him under Section 306 of IPC, no injustice
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could have been caused to him, even if he was convicted under
Section 498A of IPC, without a separate charge for that offence.
But the facts of the case would reveal that there occurred failure of
justice in convicting the appellant under Section 498A of IPC, as he
had no notice of that offence, and he did not get an opportunity to
defend the same.
In the result, the conviction and sentence of the appellant
under Section 498A of IPC is set aside and he is acquitted
thereunder. His bail bond is cancelled and he is set at liberty
forthwith.
Accordingly, the appeal stands allowed.
Sd/-
SOPHY THOMAS
JUDGE
smp
