Gopal Dey And Ors vs State Of Tripura

Heard Mr. HK Bhowmik, learned counsel appearing for the appellants, as well as Mr. S Ghosh, learned Addl. PP appearing for the State.

The appellants were charged under Sections No. 341/34, 307/34, 323/34, 354B/34 of the IPC and upon a regular trial were convicted under Sections 325/34 and 341/34 of the IPC by the Sessions Judge, Unakoti Judicial District, Kailashahar.

It appears from the judgment dated 17.10.2013 delivered in S.T. 20(NT/K)/2014, questioning which this appeal has been filed by the appellants, the Sessions Judge proceeded with the assumption that offence punishable under Section 325/34 of the IPC is minor and cognate offence to Section 307/34 of the IPC. It may be noted that the charge was framed under Section 323/34 of the IPC which cannot by any consideration be treated as minor to the offence punishable under Section 325/34 of the IPC.

Mr. Bhowmik, learned counsel has at the outset raised a question whether the jurisdiction exercised by the Sessions Judge, under Section 222 of the Cr.P.C. could be invoked at all or not?

For this purpose, a reference has to be made to the provisions of Section 222 of the Cr.P.C which provides as under:

"222. When offence proved included in offence charged. -

(1) Where 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 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 a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(3) When the 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 conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."

Mr. Bhowmik, learned counsel has further submitted that the notice of the accused persons was not drawn that he will be convicted Section 325/34 of the IPC. Without framing charge on the basis of the materials against the accused persons, the Sessions Judge ought not have passed the judgment of conviction under Section 325/34 of the IPC.

In support of his contention, he has placed reliance on the celebrated decision of the apex court in Shamnsaheb M. Multtani vs State of Karnataka reported in (2001) 2 SCC 577 where the distinction between minor and major offence qua Section 222 sub-section (2) of the Cr.P.C has been dilated upon. The passages therefrom, which have relevance to the context, are extracted hereunder:

Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars." The Section permits the Court to convict the accused "of the minor offence, though he was not charged with it." Sub-section (2) deals with a similar, but slightly different situation.

"222.(2)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."

What is meant by "a minor offence" for the purpose of Section 222 of the Code? 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. The two illustrations provided in the section would bring the above point home well. 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.

The composition of the offence under Section 304-B, I.P.C. is vastly different from the formation of the offence of murder under Section 302, I.P.C. and hence the former cannot be regarded as minor offence vis-a-vis latter. However, the position would be different when the charge also contains the offence under Section 498-A, I.P.C. (Husband or relative of husband of a women 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."

So when a person is charged with an offence under Sections 302 and 498-A, I.P.C. on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304-B, I.P.C. stand established. Can the accused be convicted in such a case for the offence under Section 304-B, I.P.C. without the said offence forming part of the charge?

A two Judge Bench of this Court (K. Jayachandra Reddy and G.N. Ray, JJ) has held in Lakhjit Singh v. State of Punjab, 1994 Supple (1) SCC 173 : (1993 AIR SCW 2938) that if a prosecution failed to establish the offence under Section 302, I.P.C. which alone was included in the charge, but if the offence under Section 306, I.P.C. was made out in the evidence it is permissible for the Court to convict the accused of the latter offence.

But without reference to the above decision, another two Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar, JJ) had held in Sangaraboina Sreenu v. State of A.P. (1997) 5 SCC 348 : (1997 AIR SCW 3290 : AIR 1997 SC 3233 : 1997 Cri LJ 3955) that it is impermissible to do so. The rationale, advanced by the Bench for the above position is this (Para 2):

"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, I.P.C. cannot be said to be a minor offence in relation to an offence under Section 302, I.P.C. 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, I.P.C. is homicidal death, those of Section 306, I.P.C. are suicidal death and abetment thereof."

The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304-B, I.P.C. when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite:

"464.(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." (Emphasis supplied)

In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

We often hear about "failure of justice" and quite often the submission in a criminal Court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (The simile is borrowed from Lord Diplock in Town Investments Ltd. v. Department of the Environment, (1977) 1 All ER 813. The criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

One of the cardinal principles of natural justice is that no man should be condemned without being heard. ("Audi alteram partem"). But the law reports are replete with instances of Courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the Court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.

Mr. Bhowmik, learned counsel has also placed reference in Sangaraboina Sreenu vs. State of A.P. reported in (1997) 5 SCC 348. Since this report has been taken care of in Shamnsaheb M. Multtani (supra) there is no necessity of again referring the said judgment separately.

Mr. S Ghosh, learned Addl. PP has fairly submitted that the accused persons' right to defend against the charge under Section 325/34 has been taken away by the process that has been adopted by the Sessions Judge and as such, the conviction under Section 325/34 of the IPC qua Section 222 of the Cr.P.C should not be sustained.

In view of the submission made by the learned counsel for the parties, this court is of the view that the opinion expressed by the learned counsel is consistent to the provisions of Section 222 of Cr.P.C as a whole. The illustrations below Section 222 of the Cr.P.C shed light to understand the distinction and relation between the major and the minor offence.

The illustration (a) & (b) provide as follows:

"(a) A is charged under Section 407 of the Indian Penal Code with criminal breach of trust in respect of property en trusted to whom as a carrier. It appears, that he did commit the criminal breach of trust under Section 406 of that Code in respect of the property, but it was not interested to him is a carrier. He may be convicted of criminal breach of trust under Section 406.

(b) A is charged under Section 325 of the Indian Penal Code with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under Section 335 of that Code."

This illustration has been taken care of in Shamnsaheb M. Multtani (supra) and the reasons provided in that report if applied in the present circumstances, it would surface that Section 325/34 of the IPC cannot be treated as the minor offence in relation to the offence punishable under section 307 of the IPC.

Section 307 of the IPC clearly provides that there should be an attempt to kill someone. Attempt does not mean that there should be hurt. Hurt being the only ingredient or hurt may be done in combination of some other offences. The main ingredient of 'hurt' may or may not be available while perpetrating an offence punishable under Section 307 of the IPC. But that alone is not the determining factor to hold that an offence has been committed with 'hurt' or 'grievous hurt'.

In such circumstances, the safe recourse would be to allow the accused persons the opportunity to defend them against the charge. The right to defence against the specific charge cannot be taken away, unless the materials surfaced in the evidence do make out cognate and minor offence vis-à-vis the offence charged with.

In view of this, the impugned judgment and order of conviction and sentence are set aside and the case is remanded for trial to the court of the Sessions Judge or any other court, where the Sessions Judge may send the matter for trial considering that the trial might be simply on the charge under Section 325 of the IPC.

Since the trial was once completed, after framing of the charge, the Sessions court may take the further recourse so far the trial in respect of the offence punishable under Section 325 of the IPC is completed within a reasonable time, so much so that neither the victim nor the accused is prejudiced.

Accordingly the appeal stands allowed.

Send down the records, as expeditiously as possible.