Mohd. Faiz Alam Khan., J
1. Heard learned counsel for the appellant and learned A.G.A. for the State and perused the record.
2. This criminal appeal has been filed by appellant- Phool Chandra under Section 374 (2) of the Code of Criminal Procedure against the judgment and order dated 09.11.2012 passed by Additional Session Judge, Court-8, Barabanki in Sessions Trial No.163 of 2011, "State Vs. Phool Chandra", arising out of Case Crime No.1634 of 2010, under Sections 498A, 306, 302 and 201 of I.P.C., Police Station Deva, District Barabanki, whereby the appellant has been convicted under Section 302, 201 and 498A of I.P.C. with fine stipulation.
Brief facts which are necessary for the disposal of this appeal are that a written application on 27.10.2010 was given at 4:30 P.M. at Police Station - Kotwali Deva, District - Barabanki by Smt. Pushpa Devi stating therein that her daughter Neelam was married about 11 years ago to one Phool Chandra, R/o Village - Raindua Garhi, Police Station - Deva, District - Barabanki. Her husband, mother-in-law and father-in-law used to beat her and treat her with cruelty for demand of dowry for which she had filed a criminal case, however, a compromise was filed therein and Phool Chandra took her daughter with him after three days of Holi. Since then her daughter Neelam was living in her matrimonial home. Accused persons used to beat her on the pretext that she had subjected them to the process of Court.
It was also stated that on 19.10.2010, Phool Chandra and others beat her daughter and also threatened her of dire consequences. The incident was seen by her relative Pyara Devi. On 24.10.2010 at about 11.30 A.M. Phool Chandra, Kalawati, Kandhai Lal, Sushil, Lallu and Shushma assaulted her daughter and threw her in Indira Canal and her dead body has been recovered from Police Station - Gosaiganj, Lucknow.
It was further stated in the written application by Smt. Pushpa Devi that at the time of "Maar-Peet" her sister Pyara Devi and his son Munnu tried to intervene but they were also assaulted by the accused persons. The three daughters of the deceased, namely, Prachi, Ruchi and Pooja had also seen the incident and they had also been beaten by Phool Chandra.
3. On the basis of this written information, an F.I.R. (Exhibit ka-4) was registered as Case Crime No.1634 of 2010, under Sections- 498A and 304B at Police Station- Deva, District- Barabanki against the accused persons and entry of the substance of the application was also made in the General Diary (Exhibit ka-5). Investigation of the case was entrusted to the Circle Officer City, namely, Sri Dipendra Chaudhary.
Prior to the above information made by Smt. Puspa Devi at Police Station- Deva, Barabanki, a Village Chowkidar of Charaiya Village, namely, Sardar Singh, when he was going to ease himself at Indira Canal, saw that the dead body of a woman had been trapped in the bushes and most of its part was in water. He informed the concerned police station, i.e., Gosaiganj on 27.10.2010 at about 3:10 P.M. and his information was registered in the General Diary of the police station.
4. On being informed, the dead body was identified by the mother of the deceased and inquest was done by Sub-Inspector R.P. Pandey of Police Station- Gosaiganj at about 3:50 P.M. on 27.10.2010. He also prepared Chitti C.M.O. (Exhibit ka-6), Photo laash (Exhibit ka-7), Chitti R.I. (Exhibit ka-8) and sample seal (Exhibit ka-9) for the purpose of post-morterm and also forwarded the dead body for post-morterm in the custody of Constables Paras Nath and Raj Bahadur.
5. Post-morterm on the dead body of the deceased Neelam was performed by P.W.2- Dr. Vinod Kumar Verma at District Mortuary Lucknow on 28.10.2010 at 11:10 A.M. The dead body of the deceased was found to be of average built, post-morterm staining could not be seen due to advance decomposition, skin was peeled at places, skull hair were easily detachable, maggots about 1cm. long were crawling all over face and following injuries were found on her person:
(I) Injury No.1: Contusion 6cm. 4cm. on right side of forehead 3cm. above right eyebrow.
(II) Injury No.2: Contusion 4cm. 3cm. on left side of occipital region.
On opening ecchymosis was found present underneath all above injuries. Linear fracture was also found present on right side of frontal bone, subdural haemetoma was present all over brain and brain was liquified. Greenish discoloration was also found present on iliac fossae.
On internal examination membranes, brain, lungs, spleen and kidneys were found congested. Left chamber of the heart was found empty while right was full. 125ml. fluid was found in stomach. In small intestine digested food and gases and in large intestine faecal matter and gases were found. Gall-bladder was found half full. Death of the deceased was stated to have occurred due to coma as a result of anti-morterm injury.
P.W.2- Dr. Vinod Kumar Verma in his evidence recorded before the trial court has stated that injury no.2 was sufficient in the ordinary course of nature to cause death and the same might have been caused on 24.10.2010 at about 11:30 A.M. He was further of the view that, as the water has not been found in the lungs, the deceased did not die of drowning. He proved post-morterm report in his writing and signatures as (Exhibit ka-1). In his cross-examination, he stated that these injuries may also be caused by hitting the stone and the time of death, written as three days in the post-morterm report, may be one day less or more.
6. The investigation of the case was eventually transferred to P.W.7- Sub-Inspector Santosh Singh, who prepared the Site Plan (Exhibit ka-10) on the pointing of informant Pushpa Devi. He also recorded the statement of Monu Kumar s/o Amarnath, Omkar s/o Ram Lakhan and Manoj Kumar and after finding sufficient evidence against appellant submitted the charge-sheet (Exhibit ka-11) against him. On the case being committed to Session Court, charges under Section 306, 498A I.P.C. and an alternative charge under Section 302 and 201 I.P.C. was framed against appellant, who denied the charges and claimed trial.
7. The prosecution in order to bring home the charges against the appellant produced following documentary evidence:
(i) Post-morterm Report (Exhibit ka-1), (ii) Inquest Report (Exhibit ka-2), (iii) Written Application (Exhibit ka-3), (iv) Chik F.I.R. (Exhibit ka-4), (v) Copy of G.D. Qayami (Exhibit ka-5), (vi) Chitti C.M.O. (Exhibit ka-6), (vii) Photo laash (Exhibit ka-7), (viii) Chitti R.I. (Exhibit ka-8), (ix) Sample of seal (Exhibit ka-9), (x) Site Plan (Exhibit ka-10) and (xi) Charge-sheet (Exhibit ka-11).
8. Apart from the above documentary evidences, prosecution also testified following witnesses in its support:
(I) P.W.1- Smt. Pyara Devi (informant)
(ii) P.W.2- Dr. Vinod Kumar Verma (who conducted the post-morterm)
(iii) P.W.3- Pushpa Devi (eye-witness)
(iv) P.W.4- Constable Sri Ramayan (ascribe of the F.I.R. and G.D.)
(v) P.W.5- S.I. Javed Khan (First Investigating Officer)
(vi) P.W.6- Constable Paras Nath of P.S.- Gosaiganj
(vii) P.W.7- S.I. Santosh Kumar Singh (Second Investigating Officer)
(viii) P.W.8- Chowkidar Sardar Singh (Village Chowkidar, who informed about the dead body)
9. The trial court after appreciating the evidence available on record came to the conclusion that prosecution has been able to prove its case beyond reasonable doubt pertaining to the charges under Sections 302, 201 and 498A I.P.C. and, therefore, convicted the appellant- Phool Chandra for the same. However, the trial court was of the view that the prosecution has failed to prove the charge under Section 306 I.P.C. and, therefore, acquitted the appellant of the same.
10. The appellant being aggrieved by the judgment and order of the trial court has preferred this appeal challenging his conviction and sentence.
11. Learned counsel for the appellant submits that the trial court has committed manifest error in appreciating the evidence available on record and has convicted the appellant only on the basis of ''surmises' and ''conjunctures' as the prosecution has miserably failed to prove its case beyond reasonable doubt.
It is further submitted that in the facts and circumstances of the case, P.W.1- Pyara Devi does not appear to be an eye-witness of the alleged incident as she, in her statement, has stated that she went to the house of appellant on the fateful day for the first time. Highlighting the above statement of P.W.1- Pyara Devi , it is submitted that the testimony of this witness pertaining to the fact that she witnessed Phool Chandra beating the deceased on the fateful day could not be believed and, therefore, no burden by virtue of Section 106 of the Indian Evidence Act could be placed on the appellant to explain the specific facts within his knowledge.
It is also submitted that the investigating officer of the case after thorough investigation found the case of the appellant under Section 306 of the I.P.C. and the trial court, without any additional evidence placed before it, framed an alternative charge under Section 302 I.P.C. and has also convicted the appellant for the same.
It is also submitted that the case of the prosecution, as placed through its witnesses, will not travel beyond Section 306 of the I.P.C. and, therefore, the trial court has made an apparent error in convicting the appellant under Section 302 I.P.C.
It is also submitted that the settled law pertaining to the appreciation of evidence with regard to the cases based on circumstantial evidence is that all the circumstances should be proved separately, there must be a chain of circumstances and they should be so inter-connected that they will not leave any doubt in the mind of a prudent person that the offence has been committed by the accused and, in any case, the only hypothesis which may borne out of the facts, to be proved by the prosecution, should be that the crime has been committed by the accused and accused only. It has been argued that in the instant case the chain of events is broken. The principle under Section 106 of the Indian Evidence Act could not be invoked against the appellant by virtue of unreliable testimony of P.W.1- Pyara Devi and, therefore, the conviction of the appellant under Section 302 I.P.C. could not be sustained and the appellant is liable to be acquitted.
12. Learned A.G.A., however, submits that P.W.1- Pyara Devi, in the facts and circumstances of the case, is a reliable witness and she had seen the appellant beating the deceased on the fateful day at 11:00 A.M. She also stated to have gone to the house of appellant and also have seen a stick in his hand and was also pushed out of his house by appellant and thereafter could not see what had happened inside the house and, thereafter, neither the deceased was found alive nor the appellant or his family members were seen at their house, as the house was found locked from outside. Learned A.G.A. has argued that the circumstances proved by the prosecution are so inter-connected that they do not leave any room to suspect that the crime has not been committed by the appellant and, therefore, the trial court has rightly convicted the appellant under Section 302, 201 and 498A of the I.P.C. and the appeal of the appellant is liable to be rejected.
13. Having perused the record of the trial court in the background of the submissions made by learned counsel for the rival parties, it will be fruitful to scrutnize the prosecution evidence available on record.
14. P.W.1- Pyara Devi is the ''mausi' of the deceased- Neelam, who was living one house away from the house of Phool Chandra. She has stated that Phool Chandra and Neelam used to quarrel and fight with each other. A criminal case was also lodged by Neelam against Phool Chandra which ended in a compromise and thereafter Phool Chandra brought back Neelam and her three daughters to his house a few days after the festival of Holi. Even after that, they both were not carrying good relations and used to fight with each other. Phool Chandra had beaten Neelam on 19th of that month on which her sister (Pushpa) came to persuade Phool Chandra not to beat Neelam. However, on 24th of the same month at about 11:00 A.M. a quarrel started between them on which she went in the house of Phool Chandra and found that he was beating Neelam with fists and kicks and he also pushed her and her son out of his house and closed the door and, thereafter she informed her sister (Pushpa), who came in the night at about 8:00 P.M., but house was found locked from outside and on the next morning they came to know that Neelam has died in the canal and her dead body was found 3-4 days after the incident in Indira Canal at a place situated within the jurisdiction of Police Station- Gosaiganj, Lucknow.
15. P.W.3- Pushpa Devi is the mother of deceased- Neelam, who appears to have corroborated the evidence of P.W.1- Pyara Devi pertaining to the regular beating of her daughter by appellant- Phool Chandra and also that on 19th October, 2010 the deceased was beaten by Phool Chandra and she came to persuade him not to beat her daughter and also that on 24th October, 2010 at about 5-5:30 P.M. Pyara Devi informed her about the fact that Neelam was brutally beaten by Phool Chandra. On hearing it, she came to the village of her daughter at about 7:00 P.M. on the same day and found that there was no person present in the house of Phool Chandra, which was locked from outside. She searched her daughter everywhere and also at the bank of canal and it was after 3-4 days that she was informed that dead body of her daughter has been found at the place falling in the jurisdiction of Police Station- Gosaiganj, Lucknow and she identified the body as of Neelam.
16. P.W.2- Dr. Vinod Kumar Verma, who has conducted the post-morterm on the body of the deceased- Neelam has proved the post-morterm report (Exhibit ka-1) under his signatures and writing. The details of post-morterm report has been elaborately mentioned in para-5 of this judgment.
17. P.W.4- Constable, Sri Ramayan has proved to have written the Chik F.I.R. (Exhibit ka-4) and also to have made a corresponding entry in the General Diary of the police station as (Exhibit ka-5).
18. P.W.5- Sub-Inspector, Javed Khan was the Chowki In-charge of Police Station- Kursi, District- Barabanki, who stated to have recorded the statement of P.W.1- Pyara Devi and converted the investigation of the case under Section 306 I.P.C.
19. P.W.6- Constable, Paras Nath Yadav is the witness, who at relevant point of time was posted at Police Station- Gosaiganj and is stated to have received the information given by Village Chowkidar Sardar Singh pertaining to the discovery of the dead body of the deceased- Neelam. He proved the inquest report (Exhibit ka-2) in the handwriting of Sub-Inspector R.P. Pandey with whom he was posted and recognized his writing and signatures. This witness has also proved the necessary papers prepared by the above mentioned Sub-Inspector R.P. Pandey for the purpose of post-morterm (Exhibit ka-6 to 9).
20. P.W.7- Sub-Inspector, Santosh Kumar Singh is the second Investigating Officer of this case, who stated to have prepared the site plan (Exhibit ka-10) on the pointing of Pushpa Devi. He after recording the statement of the witnesses and collecting other materials submitted a charge-sheet (Exhibit ka-11) against appellant under Section 306 and 498A of the I.P.C. He also stated that initially the case was registered under Section 304B and 498A I.P.C., however, during the course of investigation the same was converted under Section 306 of the I.P.C.
21. P.W.8- Chowkidar, Sardar Singh is the person, who informed the Police Station- Gosaiganj about the dead body of the deceased- Neelam found trapped in the bushes at the bank of Indira Canal. He proved the information given by him to the Police Station- Gosaiganj.
22. The law with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v.State of Madhya Pradesh MANU/SC/0037/1952: wherein Hon'ble Supreme Court has held as follows:
"12 ...It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused and it must be such as to show that within all human probability the act must have been done by the Accused"
23. Hon'ble Apex Court in the case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR, 1984 SC 1622 has laid down that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established;
"1. the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of a conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved, and
5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
24. In Jaharlal Das v. State of Orissa, MANU/SC/0586/1991: (1991) 3 SCC 27, it was held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of circumstances should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the Accused.
It has further been held in Para 8 of the said report that in order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
(iii) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
25. In Varkey Joseph v. State of Kerala, MANU/SC/0295/1993, it was held that suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
Therefore, keeping in view the above settled legal position the law pertaining to cases based on circumstantial evidence can be summarized in following terms:
1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt;
2. The circumstances should unerringly point towards the guilt of the accused;
3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused;
4. That there should be no probability of the crime having been committed by a person other than the Accused.
26. In Trimukh Maroti Kirkan Vs State of Maharashtra reported in MANU/SC/8543/2006, Hon'ble Supreme Court has observed as under:
"10. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
11. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh MANU/SC/0585/2003: 2003CriLJ3892 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
27. Perusal of evidence of prosecution witnesses in the light of above principles would reveal that P.W.1- Pyara Devi has categorically stated that she was living only one house away from the house of Phool Chandra and since their marriage Phool Chandra and Neelam were fighting with each other as a matter of routine. A litigation was also started by Neelam when she lodged a criminal case against Phool Chandra, which was ultimately settled in a compromise. She has stated that on 19th October, 2010 Phool Chandra had beaten Neelam. The quarrel between them again started on 24th October, 2010 at about 11:00 A.M. and she went there alongwith her son Munna and saw that Phool Chandra was beating Neelam with fists and kicks and, thereafter Phool Chandra pushed her and her son out of the house and, thereafter she could not see, as to what had happened inside the house. It has been categorically stated by this witness that though Phool Chandra was having a ''danda' in his hand but he was not beating Neelam with the same. She stated to have informed her sister P.W.3- Pushpa, who came in the evening and, thereafter she started searching her daughter and after 3-4 days, the dead body of Neelam was found at the bank of Indira Canal.
We have also gone through the cross-examination of this witness as she appears to be the star witness of this case and have found that in her cross-examination, she has maintained her statement of residing close to the house of Phool Chandra and also that on the fateful day after hearing noise, she went to the house of Phool Chandra and attempted to save Neelam, but after being pushed out of house she did not hear anything from the house. She has also admitted that the house of her sister P.W.3- Pushpa is 6 kos away from her village. Her sister arrived at 7:00 P.M. on the same day and after hearing some noise on next day at 8:00 A.M. she started searching her daughter. Surprisingly, this witness has stated in the end of her cross-examination that she never went to the house of Neelam for persuading her or her husband to enter into compromise or not to fight. The statement of P.W.3- Pushpa Devi would reveal that she has only stated about the maltreatment given to her daughter by appellant Phool Chandra and has stated about the incident having occurred on 19th October, 2010 when she went to the house of Phool Chandra to persuade him not to beat her daughter and, thereafter on 24th October, 2010 she stated to have received a phone call from her sister P.W.1- Pyara Devi at 5-5:30 P.M. about the incident and arrived at the village at about 7:00 P.M. and in the next morning, she started searching her daughter. Significantly, in her evidence, she has stated that Indira Canal is flowing about 100 mtr. away from the house of appellant- Phool Chandra. She also proved the recovery of the dead body of the deceased- Neelam on 27.10.2010 at about 1:30 P.M. Police Station- Gosaiganj.
28. From the statement of these two witnesses of fact, it emerges that Phool Chandra and Neelam were not carrying good relations. Earlier, a criminal case was lodged by Neelam which ended in compromise and little after Holi, Phool Chandra took Neelam and his three daughters with him. Thereafter also, there were regular fights and quarrels between them and Phool Chandra used to beat Neelam on regular basis. On 19th October, 2010, there was some quarrel between them and P.W.3- Pushpa Devi was informed about the same by P.W.1- Pyara Devi and, thereafter on 24th October, 2010 at 11:00 A.M. Phool Chandra again started beating Neelam with fists and kicks. The statement of P.W.1- Pyara Devi pertaining to the fact that she went to the house of Phool Chandra appears to be reliable in the facts and circumstances of the case and she appears to be a reliable and truthful witness.
Keeping in view her statement discussed herein above, what transpires is that P.W.1- Pyara Devi on 19th and 24th October, 2010, went to the house of Phool Chandra and has witnessed the incident of quarrel and ''Maar-Peet' and thereafter she informed Pushpa Devi by telephone. Therefore, the evidence of P.W.1- Pyara Devi is also reliable with regard to the fact that there was quarrel and fight in the house of Phool Chandra on 19th and 24th October, 2010 at about 11:00 A.M. and she was pushed out by appellant and thereafter she informed P.W.3- Pushpa Devi, who came at the matrimonial house of her daughter in the evening of the same day and found that neither Neelam nor Phool Chandra or any of his housemate was available and the house was locked from outside. It is also proved on record that since the occurrence of the incident at 11:00 A.M., the appellant and his relatives were not found at their home and appellant even did not try to search the deceased.
29. At this juncture, it is also pertinent to mention that P.W.2- Dr. Vinod Kumar Verma, during the course of post-morterm, has found two contusions, one on the forehead and on the back of head (occipital region) of the deceased. Beneath both these injuries, ecchymosis was present and haemetoma was also found. According to the doctor, the death of the deceased was due to coma as a result of anti-morterm injuries. Injuries were found about three days old from before the post-morterm. According to him injury no.2 found on occipital region of the deceased was sufficient in the ordinary course of nature to cause death and also that the death of the deceased might have occurred on 24th October, 2010 at about 11:30 A.M. Significantly, he did not find any water in the lungs of the deceased and, therefore, he was of the view that deceased had not died due to drowning. It was also stated by him that this injury may be caused by hitting her head on the rocks or stone.
30. From the scanning of the prosecution evidence following circumstances appear to have been proved by the prosecution:
(i) Deceased- Neelam was married to Phool Chandra and three daughters were born out of their wedlock.
(ii) They were not carrying good relations and deceased- Neelam had also lodged a criminal case against Phool Chandra, which ended in compromise.
(iii) Six months prior to the incident, a little after Holi, Phool Chandra brought back Neelam and his three daughters to his house.
(iv) Since the return of Neelam, Phool Chandra and Neelam again started quarreling and fighting as a matter of routine and Phool Chandra used to beat Neelam on regular basis.
(v) On 19th October, 2010, there was quarrel between Neelam and Phool Chandra and P.W.3- Pushpa Devi after being informed by P.W.1- Pyara Devi came to persuade Phool Chandra not to beat her daughter again.
(vi) On 24th October, 2010 at about 11:00 A.M., there was again a quarrel and fight between Phool Chandra and Neelam and deceased- Neelam was brutally beaten by appellant and after hearing the noise, P.W.1- Pyara Devi, who resided at a very short distance, came to the house of appellant and saw the occurrence. She was pushed out of the house by appellant. Thereafter, she informed P.W.3- Pushpa Devi, who came to village in the same evening.
(vii) Since incident, neither Neelam nor appellant was found at their house and the house was locked from outside.
(viii) The dead body of the deceased- Neelam was recovered from Indira Canal on 27.10.2010 from a place falling within the jurisdiction of Police Station- Gosaiganj.
(ix) Indira Canal flows just 100 mtr. away from the house of Phool Chandra.
(x) As per P.W.2- Dr. Vinod Kumar Verma, the death of the deceased had happened on account of injury found on her occipital region and not from drowning and also this fatal injury may also come from jumping on some rock.
31. In normal course, all these circumstances may point towards the hypothesis that the deceased- Neelam was done to death by Phool Chandra, but keeping in view the fact that only two injuries have been found on the head of the deceased and the injury which has been found on the occipital region has been found to be fatal and was sufficient in the natural course to cause death of deceased and P.W.2- Dr. Vinod Kumar Verma has specifically stated that the injury on the occipital region of the deceased may also be caused by jumping on some rock and in that case if the deceased might have jumped in the canal and might have hit any rock, there are chances that she might have died instantly and, therefore, no water could have been found in her lungs.
32. We are conscious of the fact that we are dealing with a case based on circumstantial evidence and the peculiar facts and circumstances of the case which have been found proved are to the effect that on that fateful day when appellant was beating the deceased with fists and kicks, P.W.1- Pyara Devi went inside the house of appellant to save the deceased. However, she was pushed out of the house by appellant and, thereafter the door of the house was closed and what happened thereafter could only be in the knowledge of deceased or the appellant and there is only circumstantial evidence available beyond this point of time. But a glaring defect which has occurred during the course of trial due to the approach of trial court is that all incriminating circumstances have not been put by the trial court before the appellant at the time of recording of his statement under Section 313 of the Cr.P.C. So much so that the trial court was so negligent that even the prosecution story pertaining to the charge under Section 302 I.P.C. causing of death of deceased by the appellant has also not been put to the appellant and only evidence pertaining to the abatement of suicide by the deceased has been put by the trial court before the appellant.
33. Hon'ble Supreme Court in Raj Kumar Singh Vs. State of Rajasthan reported in MANU/SC/0468/2013 has held as under:
"25. In a criminal trial, the purpose of examining the accused person under Section 313 Code of Criminal Procedure, is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the Court must take note of such explanation.
In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the Court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Code of Criminal Procedure, cannot be used against him and have to be excluded from consideration."
"31. In Dharnidhar v. State of U.P. and Ors. MANU/SC/0480/2010: (2010) 7 SCC 759, this Court held:
The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 Code of Criminal Procedure is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 Code of Criminal Procedure."
"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Code of Criminal Procedure is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Code of Criminal Procedure cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Code of Criminal Procedure is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Code of Criminal Procedure.
An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."
34. Hon'ble Supreme Court in Shivaji Sahabrao Bobade and Ors. Vs. State of Maharashtra reported in MANU /SC /0167 /1973 has held as under:
"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction.
In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C. the omission has not been shown to have caused prejudice to the accused.
In the present case, however, the High Court, though not the trial court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was 'I do not know'. Counsel for the appellants could not make out any intelligent explanation and the 'blood' testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertence of the trial court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out."
35. In the aforesaid view of the matter, we are of the considered view that those circumstances which have not been placed before the appellant and regarding which no opportunity has been provided to him to explain could not be used against him. Thus, keeping in view the fact that even the question and evidence pertaining to the fact that death of the deceased has been caused by appellant has not been placed before the appellant, he could not have been convicted for the offence under Section 302 I.P.C.
36. Now we have to consider as to what offence has been proved to have been committed by the appellant in view of the proved circumstances. The appellant was also charged under section 306 of the IPC but has been acquitted of the same as he has been convicted for alternate charge under section 302 I.P.C. by the learned trial court.
It would be appropriate, at this stage to consider the provisions of Sections 107 and 306 of I.P.C.
Sections 306 and 107 of I.P.C. reads as under:
"S.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 which may extend to ten years, and shall also be liable to fine.
S.107 - Abetment of a thing: A person abets the doing of a thing, who---
First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission lakes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
From a reading of the Clause Firstly of Section 107 of I.P.C., it is clear that a person who instigates another to do a thing, abets him to do that thing. A person is said to instigate another when he goads, provokes, incites, urges forward or encourage another to commit a crime.
37. A serious question that has arisen in this case is whether there is any material suggesting that the appellant had incited the deceased to commit suicide?
The Supreme Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605 while dealing with the term "instigation" has held as under:
"16. ... instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of 'instigation', though it is not necessary that actual words must be used to that effect or what constitutes 'instigation' must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an 'instigation' may have to be inferred. A word uttered in a fit of anger or emotion without Motilal vs. State of M.P. intending the consequences to actually follow, cannot be said to be instigation. 17. Thus, to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'goading' or 'urging forward'. The dictionary meaning of the word 'goad' is 'a thing that stimulates someone into action; provoke to action or reaction' ... to keep irritating or annoying somebody until he reacts....".
38. The Supreme Court in the case of Praveen Pradhan Vs. State of Uttaranchal reported in (2012) 9 SCC 734 has held as under:
"17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh ((1991) 3 SCC 1), Surender v. State of Haryana ((2006) 12 SCC 375, Kishori Lal v. State of M.P.( (2007) 10 SCC 797) and Sonti Rama Krishna v. Sonti Shanti Sree ((2009) 1 SCC 554)
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 CrPC."
39. The Supreme Court in the case of Sanju @ Sanjay Singh Sengar Vs. State of M.P. reported in (2002) 5 SCC 371 has held as under:
"6. Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing." Further, in para 12 of the judgment, it is held as under: "The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation." The Supreme Court in the case of Gangula Mohan Reddy Vs. State of A.P. reported in (2010) I SCC 750 needs mentioned here. In which Hon'ble Apex Court has held that: "abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing - Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained - In order to convict a person under section 306 IPC, there has to be a clear mens rea to commit offence - It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide - Also, reiterated, if it appears to Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, conscience of Court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty- Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under Section 306 made out - Hence, appellant's conviction, held unsustainable".
40. In the case of State of W.B. Vs. Ori lal Jaiswal, reported in 1994 (1) SCC 73, the Supreme Court has held as under:
"This Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that that accused charged of abetting the offence of suicide should be found guilty".
41. The Supreme Court in the case of Kishori Lal vs. State of M.P. reported in (2007) 10 SCC 797 has held in para 6 as under:
"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 Motilal vs. State of M.P. means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
42. In the case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in (2010) 1 SCC 707, the Supreme Court has held as under: "12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. 14. The expression 'abetment' has been defined under Section 107 IPC which we have already extracted above. A person is Motilal vs. State of M.P. said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause 'thirdly' of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.
15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows: "Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." 16. Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC."
43. The Supreme Court in the case of Amit Kapur Vs. Ramesh Chander reported in (2012) 9 SCC 460 has held as under:
"35. The learned counsel appearing for the appellant has relied upon the judgment of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) ((2009) 16 SCC 605 to contend that the offence under Section 306 read with Section 107 IPC is completely made out against the accused. It is not the stage for us to consider or evaluate or marshal the records for the purposes of determining whether the offence under these provisions has been committed or not. It is a tentative view that the Court forms on the basis of record and documents annexed therewith. No doubt that the word "instigate" used in Section 107 IPC has been explained by this Court in Ramesh Kumar v. State of Chhattisgarh ((2001) 9 SCC 618) to say that where the accused had, by his acts or omissions or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, an instigation may have to be inferred. In other words, instigation has to be gathered from the circumstances of the case. All cases may not be of direct evidence in regard to instigation having a direct nexus to the suicide. There could be cases where the circumstances created by the accused are such that a person feels totally frustrated and finds it difficult to continue existence."
44. In the case of Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, reported in (2015) 11 SCC 753, the Supreme Court has held as under:
"21. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the Motilal vs. State of M.P. deceased had told her sister that there was severance of status and she would be going to her parental home after the "Holi" festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra- marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (2013) 10 SCC 48 ,but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted."
45. Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to urge forward or to provoke, incite or encourage to do an act. If the facts of the instant case are considered in the light of the law laid down by the Hon'ble Supreme Court in the above mentioned cases, then it would appear that PW-1 Pyara Devi has stated in her evidence that Phool Chandra and Neelam used to quarrel and appellant used to beat her on regular basis . A criminal case was also lodged by Neelam against Phool Chandra which had ended in compromise and thereafter Phool Chandra brought back Neelam and her three daughters to his house a few days after Holi. Even after that they both were not carrying good relations and they used to fight with each other. Phool Chandra was in a habit of beating Neelam on regular basis and had also beaten her on 19th of that month, on which her sister (Pushpa) came to persuade Phool Chandra not to beat Neelam again. However, on 24th of the same month at about 11:00 A.M. a quarrel started between them and on hearing the noise, she went in the house of Phool Chandra and found that he was brutally beating Neelam with fists and kicks. When she attempted to save Neelam she along with her son was pushed out of his house by appellant and he closed the door of the house and, thereafter she informed her sister (Pushpa), who came in the night at about 8:00 P.M., but the house of Phool Chandra was found locked from outside and on the next morning they came to know that Neelam had died in the canal and her dead body was found 3-4 days after the incident in Indira Canal at a place situated within the jurisdiction of Police Station- Gosaiganj, Lucknow.
46. We have already held that keeping in view the fact that vital incrimating circumstances pertaining to commission of murder of Neelam has not been put to appellant by the trial Court and otherwise also having carefully perused the evidence adduced by the prosecution and other circumstances of the case, we are of the considered view that the prosecution has not succeeded in establishing the charge under Section 302 IPC against the appellant. But this is not the case pertaining to the charge for the offence under Section 306 I.P.C. as it was amply clear to the appellant that he is being tried for this offence and questions pertaining to committing this offence has also been put to him at the time of recording his statement under section 313 of Cr.P.C. and therefore he could not claim any prejudice or failure of justice if he is convicted for committing the offence under section 306 I.P.C. The facts and circumstances available on record particularly the evidence of P.W.1- Pyara Devi when she stated in her cross-examination that **vfHk;qDr ds ?kj rkyk iM+k FkkA ge yksx jkr Hkj ijs'kku jgs FksA losjs yXkHkx vkB cts [kcj yxh fd uhye [kRe gks x;h] uhye ugj es pyh x;hA** and also the statement appearing in her cross-examination that **lqcg vkB cts gYYks ij esjh cgu fudyh Fkh vkSj fQj mlh ugj ds fdukjs& fdukjs ryk'k fd;k FkkA** suggests that the deceased had committed suicide as she might have jumped into the canal, which flows adjacent to her matrimonial House.
47. Keeping in view the above placed statement of P.W.1- Pyara Devi, who is the star witness of this case and in view of the proved circumstances placed here in before and also keeping an eye on the fact that the trial court has committed manifest error in not placing the evidence/circumstances pertaining to causing of death of deceased before the appellant, we are of the considered view that the circumstances proved by the prosecution unerringly prove the factum that the appellant was regularly beating the deceased and on 19th October, 2010, he assaulted her where on P.W.1- Pyara Devi went to the house of appellant and persuaded him not to beat her again, however, on 24th October, 2010 appellant again assaulted the deceased with fists and kicks and which therefore, left no room for the deceased except to take the extreme step of suicide. The time of death of the deceased as ascertained by the Doctor also corroborates the fact that there is close nexus between the beating given to the deceas
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ed and time of her death and, therefore, it is proved that the appellant had abated the commission of suicide by deceased- Neelam. The proved circumstances are of such a nature that there can not be any other hypothesis except that either the deceased has been done to death by the appellant or she has committed suicide on the instigation of appellant. Keeping in view the fact that the injury found on the occipital region of the deceased may also be caused by hitting stone or rock and the Indira Canal was flowing adjacent to the matrimonial house of the deceased i.e. about 100 mtr. away and also the admission of P.W.1- Pyara Devi in her cross-examination that there was a common talk in the village that deceased had gone into the canal and also the fact that it is a case based on circumstantial evidence, we are of the considered view that the circumstances proved by the prosecution is capable of only one inference that the appellant had abated the suicide committed by the deceased. 48. Now the next question which arises for our consideration is, as to whether the appellant having been acquitted for the charge under Section 302 IPC could still be convicted under section 306 IPC. In Dalbir Singh vs. State of U.P., MANU/SC/0320/2004, the facts narrated are that the accused was charged under Section 302 IPC for having committed the murder of his wife Vimla and two daughters and was further charged under Section 304-B IPC for causing dowry death and also under Section 498-A IPC, the trial Court by his judgment and order dated 20.3.1997 convicted him under Section 302 IPC and sentenced him to death. He was also convicted under Section 498A I.P.C. and was sentenced to 3 years R.I. but was acquitted of the charge under Section 304B IPC. In appeal the High Court came to the conclusion that the charge under Section 302 IPC was not established and accordingly acquitted him for the said offence. The High Court also came to the conclusion that the accused was guilty under Section 306 IPC for having abetted commission of suicide by Vimla of setting herself on fire wherein her two daughters also died. But in view of the fact that no charge under Section 306 IPC was framed against the accused, the High Court, relying upon Sangarabonia Sreenu v. State of A.P. MANU/SC/0816/1997, held that the accused could not be convicted for the said offence. The High Court also noticed that a contrary view had been taken in an earlier decision in Lakhjit Singh v. State of Punjab MANU/SC/0905/1994 but choose to rely upon the later decision as the settled view of the said High Court was that if there was conflict of opinion in two decisions of Hon'ble Supreme Court rendered by benches of equal strength, it is the later decision which has to prevail. In view of conflict of opinion in two decisions of Supreme Court rendered in Lakhjit Singh and Anr. v. State of Punjab MANU/SC/0905/1994 and Sangarabonia Sreenu v. State of A.P. MANU/SC/0816/1997 the case was placed for hearing before three-Judges Bench. The Three Judges Bench of Hon'ble Supreme Court held as under: " 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 the position clear. " "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. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC." 49. Hon,ble Supreme Court thus convicted the accused under Section 306 I.P.C. instead of 302 I.P.C. 50. In view of above, the appeal filed by the appellant is partly allowed. The conviction of the appellant under Section 302 and 201 of the I.P.C. is set-aside and he is acquitted of the charges under Section 302 and 201 I.P.C. Appellant is however now convicted for committing the offence under Section 306 I.P.C. The Judgment of trial Court with regard to the conviction and sentencing of appellant under Section 498A I.P.C. would remain unaltered and is hereby confirmed. 51. Having regard to the fact that the appellant has been exonerated of the charge under Section 302 and 201 I.P.C. for the reasons that certain circumstances have not been put by the trial court before the appellant at the time of recording of his statement under Section 313 of the Cr.P.C. and the remaining circumstances prove the offence under Section 306 I.P.C., we sentence the appellant to undergo rigorous imprisonment for 10 years with a fine of Rs.30,000/-. In default of payment of this fine, the appellant would undergo further imprisonment of simple nature for one year. The fine so deposited by the appellant would be distributed in equal shares amongst the children of deceased- Neelam. 52. Appellant is in jail, if he has already undergone the sentence as modified by this Court and on deposit of the fine as directed by this Court, he will immediately be released from prison if his further detention is not required in any other case. 53. Appellant would also file a personal bond with two sureties of the like amount to the satisfaction of the Chief Judicial Magistrate concerned under Section 437A of the Cr.P.C., within 15 days of his release from prison. 54. A copy of his judgment be immediately sent to the trial court for compliance.