CRIMINAL APPEAL No.146 OF 1996 (DB) With CRIMINAL APPEAL NO. 218 OF 1996(DB) ------- Against the judgment and order of conviction and sentence dated 29th March, 1996 passed in Sessions Trial No. 154 of 1987 by Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 154 of 1987. ----------- Cr. Appeal No. 146 of 1996 (DB) 1. Brajnandan Choudhary, son of Ram Naumi Chaudhary, 2. Ram Naumi Chaudhary, (dead), son of Rumal Chaudhary 3. Arvind Kumar Chaudhary, 4. Smt. Mithilesh Devi, wife of Brajnandan Chaudhary, all residents of village – Pirapur, P.S. Jandaha, District – Vaushali ………Appellants Cr. Appeal No. 218 of 1996 (DB) Sudhir Kumar Choudhary, son of Brajnandan Choudhary, resident of village – Pirapur, P.S. – Jandaha, District – Vaishali ……….Appellant Versus The State of Bihar ……..Respondent in both the cases. ---------- For the Appellants : S/s Ajay Kumar Thakur, Ritesh Kumar, Advocates For the State : Sushri Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE BIRENDRA PRASAD VERMA -------- Dharnidhar Jha & B.P. Verma, JJ. Heard learned counsel for the parties. 2. After having heard Shri Ajay Kumar Thakur, learned counsel for the appellants, one of whom, namely, Ram Naumi Chaudhary being dead and also after having heard Sushri Shashi Bala Verma, 2 Additional Public Prosecutor and after considering the citations placed before us by Shri Thakur, we propose to pass the following order. Before we do that, we think it appropriate that the facts of the case should be stated briefly. 3. A written report was filed by P.W. 9, Ashok Kumar Choudhary, who happened to be the brother of late Janaknandani Kumari, the deceased in the present case, stating therein that his sister was married to the appellant Sudhir Kumar Choudhary according to Hindu rites and rituals on 16.4.1984. Janaknandani went to her matrimonial house and according to prevailing customs, one of the servants of the informant Chanarik Paswan, P.W. 3, went with some customary presents to the house of the appellant. The deceased requested P.W. 3 to convey the informant that on account of not getting the tape recorder which was demanded by the accused persons, they were ill treating her in various ways, besides assaulting her off and on. 4. P.W. 3, it is said, came back and narrated the above message to P.W. 9 upon which P.W. 9 came to the house of the appellants at village Pirapur and requested them not to ill treat his sister as their demand would be met as soon as he had the money. The informant promised to fulfill the demand at the time of second marriage and thereafter he came back to his house. It is on 22.10.1984, P.W. 3 again came to the house of the appellants and met the deceased Janaknandani who stated to him that the accused persons were bent upon killing her and were ill treating her in various ways. She sent a written letter (Ext. 3) through P.W. 3 to P.W. 9 to send a tape recorder 3 as soon as could be possible for him, else she feared being killed by the accused persons. The informant stated that on 1.11.1984, when he was in Jandaha market, he felt an urge to meet his sister Janaknandani and, accordingly, set out for village Pirapur with Prem Shankar Choudhary, P.W. 6, Ram Naresh Choudhary, P.W. 8 and Upendra Choudhary, P.W. 1. On their arrival the informant found his sister not present in the house and, on enquiry, was told by her mother-in-law, father-in-law and other family members of the deceased that she had strayed away out of their house in the night of 27th October, 1984. The informant stated that he moved around the village and made enquiries from the villagers also and came to know that on account of not getting the tape recorder as demanded by the accused persons, they had killed Janaknandani and had caused the disappearance of her dead body and had taken a false plea that she had run away from their house. 5. On the basis of Ext. 5, the written report of P.W. 9, FIR was drawn up and the case was investigated into by P.W. 12, S.I. Satyadeo Rai who submitted charge sheet sending up the appellant for trial and, accordingly, the trial ended up in the conviction of the appellants who have preferred the two connected appeals. 6. During the course of the trial, a total number of 12 witnesses were examined who spoke on various circumstances and facts of the case. We are not discussing the evidence of those witnesses simply to avoid being misunderstood to have formed any particular opinion on the facts of the case on account of raising any inference, only because 4 if we do that, the order which we are proposing to pass, may prejudice the mind of the trial court. We are simply noticing the submissions of Shri Thakur which were advanced before us and on a prima facie manner we are proposing to dispose of those submissions by mere perusal of the evidence contextually. 7. Shri Thakur submitted that section 304B of the IPC was brought on the statute book by Amending Act 43 of 1986 which was in the form of Dowry Prohibition (Amendment) Act, 1986 which was effective from 19.10.1986. It was contended that the date of occurrence was 27th October, 1984, i.e., some two years prior to the coming into force of the statute in question and, as such, in the light of the decision of the Supreme Court in the case of Lokendra Singh Vs. State of M.P. 1999 Supreme Court Cases (Cri.) 371 as also in other decisions of the Apex Court which have been reported in 1991(4) SCC 298, 1994 Suppl. (1) SCC 173 and 1993 Cr. LJ 2636, the conviction of the appellants under section 304B of the IPC was utterly unsustainable as the very trial was vitiated on account of lack of jurisdiction in absence of the appropriate provision on that particular date. It was contended further that this court had no jurisdiction to convert the conviction of the appellants from section 304B to 302 of the IPC, because they were not offences akin to each other in the light of the provision of sections 221 or 222 of the Code of Criminal Procedure and the principle of major or minor offences may not be applicable to the facts of the present case. In support of the contention, the learned counsel drew our attention towards the case of Venu 5 Gopal Vs. State of Karnataka AIR 1999 SC 146. It was further contended that the dead body of the deceased was not duly identified nor there was convincing evidence on record that the dead body in two pieces and packed in the gunny bag were the parts of the same dead body and, ultimately, whole of it was that of Janaknandani. Attempt was also made by the learned counsel for the appellants to impress upon the court that it may not be proper for this court to act under section 464(2) of the Code of Criminal Procedure because there was no charge framed by the trial court under section 302 of the IPC. 8. Sushri Shashi Bala Verma, the learned APP has drawn our attention to the provision of section 464 of the Code of Criminal Procedure and has submitted that it is a gross case of omitting to frame a proper charge and the court must act under sub-section (2) of section 464 of the Code of Criminal Procedure and direct the re-trial of the case from the stage of framing of the charges. 9. We must note that we were taken through the evidence of witnesses by the learned counsel for the appellants so as to impressing upon us that the appellants deserved to be acquitted on account of decisions of the Supreme Court that the provision of section 304B IPC not being on the statute book on 27th October, 1984 or prior to that, the very conviction of the appellants was not sustainable. The learned counsel, though readily agreed that the offence under section 498A of the IPC was already on the statute book and it was included in the charge under section 304B of the IPC and as such, there may not be any difficulty for this court in converting the conviction of the 6 appellants from section 304B to section 498A of the Code and other offences defined and made punishable under the Dowry Prohibition Act, 1961. 10. When we look at the facts of the case and circumstances attending thereto, we find the present case is an outstanding example of complete omission to frame the charges and an act of framing of a completely wrong charge as regards offence under section 304B of the IPC. As may appear from the evidence of P.W. 12, S.I. Satyadeo Rai, after closing the investigation, he filed charge sheet in the case. The charge sheet of the case is available to us on the magisterial record of the case and it appears from the perusal of the same that the same was under sections 302, 201 read with section 34 of the IPC. The opinion of the Investigating Officer indicated that the accused persons appear having committed the offence under sections 302, 201 read with 34 of the IPC and, accordingly, they were required to be tried for those offences. The committal order also appears passed as it appeared to the magistrate that the offences under sections 302, 201 read with section 34 of the IPC were exclusively triable by the court of Sessions. FIR had been drawn up under section 302 etc. IPC. The circumstances appearing from the materials which appear produced in the form of evidence of the lower court, justify framing of charge under section 302 or 302/34of the IPC. Instead the learned trial judge framed the charge under section 304B and 201 of the IPC against the appellants. 7 11. In our considered view, the charge under section 304B of the IPC could never have been framed in view of the fact that the provision came on the statute book on 19.10.1986, the date which was notified to be the date of coming into force of that particular provision. This appears the reason that the Supreme court in the above cited decisions, like, Lokendra Singh, have taken a view that no conviction can be sustained under section 304B of the IPC. We find that it was an outstanding and gross case of omitting to frame a proper charge and instead framing a wrong charge which was never available to the learned trial judge for being framed. 11. Section 464 of the Code of Criminal Procedure reads as under: “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 charge, 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.” 12. The above provision indicates that the court of appeal, revision may uphold the findings recorded and the sentence passed by any 8 court of competent jurisdiction instead of the fact that there might be some omission to frame a charge or there could be an absence of or error in framing of the charges. But, as may appear from the language of section 464(1) of the Code of Criminal Procedure that jurisdiction of the court of appeal, confirmation or revision is available to it only when there is a finding recorded or sentence passed in absence of a charge on account of omission to frame such charge or in absence or on account of error in framing of charge. 13. The present case does not appear being covered by section 464(1) of the Code of Criminal Procedure. When we come to consider the provision of 464(2) of the Code of Criminal Procedure, a separate jurisdiction is created in the court of appeal, confirmation or revision if it comes to a conclusion that a failure of justice has in fact been occasioned on account of omission to frame a charge that the appellate court may direct a charge to be framed and the trial to be re- commenced from the point immediately after the framing of the charges. 14. We, after having heard the sides, are very clear from the very beginning of the present hearing, that it is a class case of omitting to frame a proper charge ignoring some of the events which had already occurred in the court below, like, the court of commitment. The learned Sessions Judge, who was trying the case, appears completely ignoring the records of the Chief Judicial Magistrate and the view of the Investigating Officer as regards the constitution of the offence and appears taking a course which was at all not available to him. There 9 was no reason, least to talk of an occasion, to frame a charge under section 304B of the IPC on the reasons we have just considered. The facts and circumstances of the case, specifically the facts of placing a wrong explanation, not informing the family members for approaching the police agency in case of the alleged disappearance of the lady, when considered in the light of the recovery of the dead body which was cut in two pieces and which was packed in a gunny bags, clearly made out a case giving sufficient ground to frame a charge under section 302, 302/34, 201 of the IPC. The learned trial judge appears completely missing these primary facts and thereby, not framing a proper charge. 15. We, as such, find that the judgment in question is not sustainable, it is hereby set aside in its entirety and the case is sent back to the learned Sessions Judge for re-trial after framing of the charge under section 302, 302/34, 201 or any other sections of the IPC. It appears necessary to do in the interest of justice as also to thwart any failure of justice on account of the omissions as indicated by us just now. We are alive to the fact that appellant Sudhir Kumar Choudhary is in custody after being found guilty and being convicted under section 304B of the IPC and being awarded a sentence of rigorous imprisonment for life. It may be harsh for the said appellant to remain in custody, especially when he was on bail during the course of the trial. The learned Sessions Judge, Vaishali at Hajipur shall admit him to bail on execution of a bond of Rs.10000/(ten thousand) with two sureties of the like amount each to his satisfaction. 10 The learned trial judge shall never be prejudiced by any of the observations made by us in the present order. We expect that the trial of the case is concluded at any rate or by all means in a period of six months from the date of receipt/production of a copy of the present judgment with the records. It may not be out of place to mention that appellant Sudhir Kumar Choudhary has taken a plea of being a juvenile on the date of occurrence. The learned trial judge shall be free to hold an enquiry in accordance with the provisions of section 7 A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and pass an order without being prejudiced towards the appellant or without being prejudiced by the present judgment. 16. With the above observations/directions, we allow the present two appeals in the terms as indicated above by sending down the records back to the trial court. 17. The other appellants are all along on bail, they shall keep enjoying such liberties during the trial. (Dharnidhar Jha, J) (Birendra Prasad Verma, J.) Patna High Court, The 8th March, 2010 NAFR/Anil/