Dinesh Seth vs State Of N.C.T. Of Delhi

2. The facts

(i) The appellant was married to Rama on 2.12.1984. She died on 22.11.1986. On receipt of an anonymous call/information that son of Kuldeep Seth (the appellant herein) has murdered his wife in his house situated at Gali No.8, Multani Dhanda, Paharganj. Shri C.L. Jatav, Sub-Inspector of Police visited the spot and found the dead 2 body of Rama in a room on the second floor of the house. He also found one piece of printed cloth (chunni) near the dead body and another piece which was tied with the ceiling fan. Shri Naresh Tandon, brother-in-law of the deceased who was present at the site told Shri Jatav that the deceased had been subjected to harassment and torture by her husband and in-laws. The Sub-Divisional Magistrate recorded the statement of Smt. Raj Rani Mehra (mother of the deceased), who had also reached the house of the appellant and on that basis a case was registered under Sections 304B/306/498A read with Section 34 IPC. On the next day, Dr. Bharat Singh (PW-21) conducted post mortem. He found the following injuries on the body of the deceased:-

(ii) The police submitted challan under Sections 304B/306/498A read with Section 34 IPC against the appellant, his brothers Suresh Seth and Naresh Seth and mother Janak Seth. The learned Additional Sessions Judge framed charge under Section 304B read with Section 34 IPC. The prosecution examined as many as 26 witnesses including the mother of the deceased, Smt. Raj Rani Mehra (PW-7), her sisters and brother, Smt. Radha Mehra (PW-1), Ms. Chitra Mehra (PW-6) and Chaman Mehra (PW-26), two neighbours, namely Rajesh (PW-19) and Amit Grover (PW-24), Investigating Officer C.L. Jatav (PW-20) and Dr. Bharat Singh (PW-21). In their statements under Section 313 Code of Criminal Procedure (for short `the Code'), all the accused denied their involvement in the death of Rama. They also denied the allegation of having subjected the deceased to harassment and torture for dowry.

(iii) The trial court convicted all the accused under Section 304B read with Section 34 IPC and sentenced them to seven years' rigorous imprisonment. On appeal, the High Court held that charge under Section 304B IPC is not made out and acquitted all the accused. However, the appellant was found guilty under Section 498A IPC and sentenced to three years' rigorous imprisonment. 4

(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.

464. Effect of omission to frame, or absence of, or error in, charge. (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge.

24. In the result, the appeal is dismissed. The appellant who is on bail, shall be arrested for serving out the remaining sentence.

(Altamas Kabir) .........................J. (G.S. Singhvi) New Delhi August 18, 2008