The way the charge had been framed by the learned Trial Judge, as indicated above, it could not be said that the accused had been given due notice or intimation as to the nature of the accusation he is called upon to meet in course of the trial. Prejudice to him cannot thus be ruled out. That apart, Section 211 of the Code of Criminal Procedure, 1973, prescribes the contents of charge. Sub-Section (2) thereof requires "if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only". The Indian Penal Code has given the offence punishable under Section 304 a specific name : "culpable homicide not amounting to murder". While framing charge against the accused the offence should have been described by that name in terms of the aforesaid provision. Unhappily, however, the learned Trial Judge, while framing charge, had not described the offence by the aforesaid specific name given to it. Prejudice to the accused could neither be ruled out on the score as well. The accused could not clearly be convicted on the charge so framed by the learned Trial judge as such. Hence the necessity for sending back the case on remand for retrial.
1. This Appeal is directed by the accused Kenaram alias Kinuram Majhi (hereinafter referred to as accused) against the judgment and order of conviction and sentence dated 6th July, 1981 passed by the learned Additional Sessions Judge, 1st Court, Alipore, 24-Parganas (South), in Sessions Trial No. 1 of May, 1981/Case No. 39 of April, 1981 before him.
2. The accused stood charged for an offence punishable under Section 304, Part-I, Indian Penal Code, (hereinafter shortened into I.P.C.) for having allegedly intentionally caused death to his wife Kalbita Majhi '(Naskar) on 18th September, 1979 with the knowledge that his act was likely to cause her death on the allegations made in the F.I.R.
3. It is alleged by the prosecution that the deceased Kabita was given in marriage with the accused about two years before her death by her mother Saraswati Naskar. Since the marriage, she used to be continuously tortured by her husband for which a village "Salish" took place. But despite the "Salish", the accused continued to torture his wife. On the fateful day on 18th September, 1979 at about 10 a.m., the accused, after pouring some poison in a glass had abused his wife filthily, and had asked and forced her to consume the same, which she had to do. As a result, she had died. Before her death she had stated to her mother about the incident. Her mother having lodged the F.I.R., the relevant case was started against the accused under Section 306, I.P.C.; and charge-sheet was eventually filed against him thereunder after the completion of investigation. The learned Trial Judge while taking up the case for consideration of charge had, however, framed charge against the accused for having allegedly committed offence punishable under Section 304 Part-I, I.P.C., to which he pleaded not guilty and claimed to be tried. He, accordingly, had faced the trial on the said charge.
4. The prosecution had examined 8 witnesses in all, including the Investigating Officer, in support of the Prosecution Case. And, the learned Trial Judge, upon consideration the entire evidence on record and upon hearing the submissions of both sides, had found the accused guilty to the charge framed against him, convicted him thereunder, and had sentenced him to suffer rigorous imprisonment for 10 years, and also to pay a fine of Rs. 500/- only, in default, to suffer R.I. for two years more, for the reasons recorded in his impugned judgment and order.
5. Being aggrieved by the judgment and order of conviction and sentence so passed by the learned Trial Judge, the accused has preferred the instant Appeal. .
6. The point for decision here before us is how far the learned Trial Judge was justified in finding the accused guilty to the charge framed against him and convicting and sentencing him therefor, as he did.
7. We have perused the entire materials on record as also the judgment rendered by the court below. Upon perusal and consideration of the same, we find nothing to differ from the conclusion arrived at by the learned Trial Judge for the reasons discussed by him at length in his impugned judgment, which we do not propose to re-iterate. We have little to add thereto either. Even so, we are not in a position to uphold and sustain the judgment and order of convintion and sentence passed by him for the reasons we shall presently discuss.
8. The learned Trial Judge had framed charge against the accused for offence punishable under Section 304 -Part-I, I.P.C., as follows :-
"That you, on or about the 18th day of September, 1979 at Krishnatampur Somipara, P.S. Bishnupur, intentionally caused the death of your wife Kabita Majhi (Naskar) with the knowledge that your act was likely to cause death and thereby committed an offenne punishable under Section 304 -Part I, of the Indian Penal Code, and within my cognizance.
And, I hereby direct that you be tried by the said Court on the said charge."
9. The way the charge has been so framed would seem to indicate that the accused had been charged for the aforesaid offence for having caused the death of Kabita Majhi (Naskar) with the intention to cause death to her by the alleged act and with the knowledge that his act was likely to cause her death, thus committing the alleged offence punishable under Section 304 Part I and Part II both.
10. As held by the Supreme Court in V. C. Shukla v. C.B.I., 1980 SCC (Cri) 695, charge serves the purpose of notice or intimation to the accused, drawn up according to the specific language of law, giving clear and unambiguous or precise notice/intimation about the nature of the accusation the accused is called upon to meet in course of the trial. The importance of framing charge need not be over-emphasised. It should not be treated as a mere ritural. The substance and not the form is important while nonconsidering the provisions relating to the charge. It has been held by the Bombay High Court in Ramkrishna v. State of Maharashtra, 1980 Cr LJ 254 that in a criminal trial the charge is the foundation of the accusation, and every care must be taken to see that it is not only properly framed, but evidence is only tendered in respect of the matters put in the charge and not the other matters. Charge should be so framed that the accused shall not be prejudiced in the trial.
11. The way the charge had been framed by the learned Trial Judge, as indicated above, it could not be said that the accused had been given due notice or intimation as to the nature of the accusation he is called upon to meet in course of the trial. Prejudice to him cannot thus be ruled out. That apart, Section 211 of the Code of Criminal Procedure, 1973, prescribes the contents of charge. Sub-Section (2) thereof requires "if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only". The Indian Penal Code has given the offence punishable under Section 304 a specific name : "culpable homicide not amounting to murder". While framing charge against the accused the offence should have been described by that name in terms of the aforesaid provision. Unhappily, however, the learned Trial Judge, while framing charge, had not described the offence by the aforesaid specific name given to it. Prejudice to the accused could neither be ruled out on the score as well. The accused could not clearly be convicted on the charge so framed by the learned Trial judge as such. Hence the necessity for sending back the case on remand for retrial.
12. Upon consideration of the evidence on record we further find that the learned Trial Judge, while examining the accused under Section 313, Cr. P.C., had not explained to him all the cricumstance appearing in evidence against him; more particularly, the Medical evidence of the P.W. 4, Dr. Pulin Behari Das. The dying declarations stated to have been made by the deceased to the P.W.s 1, 2 and 3 had neither been put to the accused. We find from the record that the learned Trial Judge had put only two questions to the accused regarding the circumstances appearing in evidence against him. The third question put was whether he would examine any witness or not; which is clearly not a circumstance appearing in evidence. Upon consideration of the evidence on record and the manner the accused had been examined by the learned Trial Judge under Section 313, Cr. P.C., it appears to us that his (accused) attention had not been drawn to every inculpatory material so as to enable him to explain it. Prejudice to him could neither be ruled out on this score as well. Hence the necessity for remand.
13. The question in this case is whether the death of the deceased was caused by poison or not, in the cricumstances stated by the prosecution. The P.W. 4, Dr. Pulin Behari Das, had stated with more than usual clarity in his cross- examination that the opinion given by him is based hypothesis, and is not a conclusive opinion. He had further added that it is not possible to give a definite opinion without getting the Chemical Examiner's Report on the subject, which was never there. Inspite of the aforesaid evidence of the P.W. 4, the materials on record are strong to indicate that the death of the deceased was caused by poison. The P.W. 8, the Investigating Officer, S.I. Jayanta Mukherjee, had stated in his evidence that U.D. case No. 45 dated 18.9.79 over the death of Kabita Majhi was started on the information given by the accused '(Kenaram Majhi) on 18.9.79, which was recorded in the General Diary. In his cross-examination he had further stated that no extract of the G.D. Entry on the basis of which the U.D. case was started is in his relevant case diary. There is only a reference relating to the same which runs as follows :o-
"My name is Kenuram Majhi, son of late Sikhuram Majhi, P.S. Bishnupur, Vill. Krishnarampur. I am giving this information at the police station that my wife Kabita Majhi, aged about 17/18 years was married to me two years ago. Today on 18.9.79 at about 7 o'clock in the morning I went to my working place at Chanditala Main Road at Fibre Class Company. At about 12/12.30 P.M. I came back to my house and saw that my wife had committed suicide by taking poison. She used to quarrel with me often. She has a child of 1 or 1 1/2 year age. I hereby lodge this F.I.R. and sign it, on being satisfied that it has. been recorded as per my statement."
14. The accused Kenalam Majhi clearly, therefore, appears to have admitted therein that the death of the deceased was due to taking posion. The information so given by him is also stated to have been signed by him. But unhappily for the Prosecution, the aforesaid relevant G.D. Entry had not been brought into evidence. Now that the case is proposed to be remanded back to the Trial Court, it shall give the prosecution an opportunity to bring the aforesaid G.D. Entry into evidence, if they can, for the aforesaid purpose.
15. In view of the discussions above we are unable to uphold the order of conviction and sentence passed by the Learned Trial Judge against the accused. We would, accordingly, feel inclined to send back the case on remand to the court below for retrial so as to enable it to alter the charge and examine the accused properly and correctly under Section 313, Cr. P.C., in the light of the discussions above.
16. In the above premises, we set aside the impugned judgment and order of conviction and sentence passed by the Learned Trial Judge against the accused. The case be sent back to the court below for retrial in terms of the directions hereinbelow given. The court below shall alter the charge against the accused in the light of the discussions above, which shall be read out and explained to him (latter). It shall allow the prosecution an opportunity to bring the aforesaid relevant G.D. Entry into evidence, and allow the accused to cross-examine the witnesses, already examined, with reference, to the alteration of the charge in terms of this order, and with reference to the further evidence which may be produced by the prosecution for admitting the aforesaid relevant G.D. Entry into evidence in terms of this order, if they can. It shall thereafter examine the accused properly and correctly under Section 313, Cr. P.C., in the light of the discussions above, and conclude, the retrial according to law, and record a fresh judgment. The court below shall dispose of the case in terms of the above directions, as early as possible, preferably within a period of 8 months from the date of communication of this order and receipt the Lower Court records.
Let the Lower Court records go down to the court below forthwith, along with a copy of this order. The accused-Appellant shall surrender before the court below as soon as the Lower Court records and the copy of this Order reach the court below, which may commit him to prison, or admit him to bail in due exercise of its judicial discretion in the background that he had been on bail all throughout.
S.N. Chakrabarty, J.
17. I agree.
Print Page
Calcutta High Court
Kenaram Alias Kinuram Majhi vs The State on 28 April, 1995
Equivalent citations: (1995) 2 CALLT 296 HC
Bench: A K Dutta, S N Chakrabarty
1. This Appeal is directed by the accused Kenaram alias Kinuram Majhi (hereinafter referred to as accused) against the judgment and order of conviction and sentence dated 6th July, 1981 passed by the learned Additional Sessions Judge, 1st Court, Alipore, 24-Parganas (South), in Sessions Trial No. 1 of May, 1981/Case No. 39 of April, 1981 before him.
2. The accused stood charged for an offence punishable under Section 304, Part-I, Indian Penal Code, (hereinafter shortened into I.P.C.) for having allegedly intentionally caused death to his wife Kalbita Majhi '(Naskar) on 18th September, 1979 with the knowledge that his act was likely to cause her death on the allegations made in the F.I.R.
3. It is alleged by the prosecution that the deceased Kabita was given in marriage with the accused about two years before her death by her mother Saraswati Naskar. Since the marriage, she used to be continuously tortured by her husband for which a village "Salish" took place. But despite the "Salish", the accused continued to torture his wife. On the fateful day on 18th September, 1979 at about 10 a.m., the accused, after pouring some poison in a glass had abused his wife filthily, and had asked and forced her to consume the same, which she had to do. As a result, she had died. Before her death she had stated to her mother about the incident. Her mother having lodged the F.I.R., the relevant case was started against the accused under Section 306, I.P.C.; and charge-sheet was eventually filed against him thereunder after the completion of investigation. The learned Trial Judge while taking up the case for consideration of charge had, however, framed charge against the accused for having allegedly committed offence punishable under Section 304 Part-I, I.P.C., to which he pleaded not guilty and claimed to be tried. He, accordingly, had faced the trial on the said charge.
4. The prosecution had examined 8 witnesses in all, including the Investigating Officer, in support of the Prosecution Case. And, the learned Trial Judge, upon consideration the entire evidence on record and upon hearing the submissions of both sides, had found the accused guilty to the charge framed against him, convicted him thereunder, and had sentenced him to suffer rigorous imprisonment for 10 years, and also to pay a fine of Rs. 500/- only, in default, to suffer R.I. for two years more, for the reasons recorded in his impugned judgment and order.
5. Being aggrieved by the judgment and order of conviction and sentence so passed by the learned Trial Judge, the accused has preferred the instant Appeal. .
6. The point for decision here before us is how far the learned Trial Judge was justified in finding the accused guilty to the charge framed against him and convicting and sentencing him therefor, as he did.
7. We have perused the entire materials on record as also the judgment rendered by the court below. Upon perusal and consideration of the same, we find nothing to differ from the conclusion arrived at by the learned Trial Judge for the reasons discussed by him at length in his impugned judgment, which we do not propose to re-iterate. We have little to add thereto either. Even so, we are not in a position to uphold and sustain the judgment and order of convintion and sentence passed by him for the reasons we shall presently discuss.
8. The learned Trial Judge had framed charge against the accused for offence punishable under Section 304 -Part-I, I.P.C., as follows :-
"That you, on or about the 18th day of September, 1979 at Krishnatampur Somipara, P.S. Bishnupur, intentionally caused the death of your wife Kabita Majhi (Naskar) with the knowledge that your act was likely to cause death and thereby committed an offenne punishable under Section 304 -Part I, of the Indian Penal Code, and within my cognizance.
And, I hereby direct that you be tried by the said Court on the said charge."
9. The way the charge has been so framed would seem to indicate that the accused had been charged for the aforesaid offence for having caused the death of Kabita Majhi (Naskar) with the intention to cause death to her by the alleged act and with the knowledge that his act was likely to cause her death, thus committing the alleged offence punishable under Section 304 Part I and Part II both.
10. As held by the Supreme Court in V. C. Shukla v. C.B.I., 1980 SCC (Cri) 695, charge serves the purpose of notice or intimation to the accused, drawn up according to the specific language of law, giving clear and unambiguous or precise notice/intimation about the nature of the accusation the accused is called upon to meet in course of the trial. The importance of framing charge need not be over-emphasised. It should not be treated as a mere ritural. The substance and not the form is important while nonconsidering the provisions relating to the charge. It has been held by the Bombay High Court in Ramkrishna v. State of Maharashtra, 1980 Cr LJ 254 that in a criminal trial the charge is the foundation of the accusation, and every care must be taken to see that it is not only properly framed, but evidence is only tendered in respect of the matters put in the charge and not the other matters. Charge should be so framed that the accused shall not be prejudiced in the trial.
11. The way the charge had been framed by the learned Trial Judge, as indicated above, it could not be said that the accused had been given due notice or intimation as to the nature of the accusation he is called upon to meet in course of the trial. Prejudice to him cannot thus be ruled out. That apart, Section 211 of the Code of Criminal Procedure, 1973, prescribes the contents of charge. Sub-Section (2) thereof requires "if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only". The Indian Penal Code has given the offence punishable under Section 304 a specific name : "culpable homicide not amounting to murder". While framing charge against the accused the offence should have been described by that name in terms of the aforesaid provision. Unhappily, however, the learned Trial Judge, while framing charge, had not described the offence by the aforesaid specific name given to it. Prejudice to the accused could neither be ruled out on the score as well. The accused could not clearly be convicted on the charge so framed by the learned Trial judge as such. Hence the necessity for sending back the case on remand for retrial.
12. Upon consideration of the evidence on record we further find that the learned Trial Judge, while examining the accused under Section 313, Cr. P.C., had not explained to him all the cricumstance appearing in evidence against him; more particularly, the Medical evidence of the P.W. 4, Dr. Pulin Behari Das. The dying declarations stated to have been made by the deceased to the P.W.s 1, 2 and 3 had neither been put to the accused. We find from the record that the learned Trial Judge had put only two questions to the accused regarding the circumstances appearing in evidence against him. The third question put was whether he would examine any witness or not; which is clearly not a circumstance appearing in evidence. Upon consideration of the evidence on record and the manner the accused had been examined by the learned Trial Judge under Section 313, Cr. P.C., it appears to us that his (accused) attention had not been drawn to every inculpatory material so as to enable him to explain it. Prejudice to him could neither be ruled out on this score as well. Hence the necessity for remand.
13. The question in this case is whether the death of the deceased was caused by poison or not, in the cricumstances stated by the prosecution. The P.W. 4, Dr. Pulin Behari Das, had stated with more than usual clarity in his cross- examination that the opinion given by him is based hypothesis, and is not a conclusive opinion. He had further added that it is not possible to give a definite opinion without getting the Chemical Examiner's Report on the subject, which was never there. Inspite of the aforesaid evidence of the P.W. 4, the materials on record are strong to indicate that the death of the deceased was caused by poison. The P.W. 8, the Investigating Officer, S.I. Jayanta Mukherjee, had stated in his evidence that U.D. case No. 45 dated 18.9.79 over the death of Kabita Majhi was started on the information given by the accused '(Kenaram Majhi) on 18.9.79, which was recorded in the General Diary. In his cross-examination he had further stated that no extract of the G.D. Entry on the basis of which the U.D. case was started is in his relevant case diary. There is only a reference relating to the same which runs as follows :o-
"My name is Kenuram Majhi, son of late Sikhuram Majhi, P.S. Bishnupur, Vill. Krishnarampur. I am giving this information at the police station that my wife Kabita Majhi, aged about 17/18 years was married to me two years ago. Today on 18.9.79 at about 7 o'clock in the morning I went to my working place at Chanditala Main Road at Fibre Class Company. At about 12/12.30 P.M. I came back to my house and saw that my wife had committed suicide by taking poison. She used to quarrel with me often. She has a child of 1 or 1 1/2 year age. I hereby lodge this F.I.R. and sign it, on being satisfied that it has. been recorded as per my statement."
14. The accused Kenalam Majhi clearly, therefore, appears to have admitted therein that the death of the deceased was due to taking posion. The information so given by him is also stated to have been signed by him. But unhappily for the Prosecution, the aforesaid relevant G.D. Entry had not been brought into evidence. Now that the case is proposed to be remanded back to the Trial Court, it shall give the prosecution an opportunity to bring the aforesaid G.D. Entry into evidence, if they can, for the aforesaid purpose.
15. In view of the discussions above we are unable to uphold the order of conviction and sentence passed by the Learned Trial Judge against the accused. We would, accordingly, feel inclined to send back the case on remand to the court below for retrial so as to enable it to alter the charge and examine the accused properly and correctly under Section 313, Cr. P.C., in the light of the discussions above.
16. In the above premises, we set aside the impugned judgment and order of conviction and sentence passed by the Learned Trial Judge against the accused. The case be sent back to the court below for retrial in terms of the directions hereinbelow given. The court below shall alter the charge against the accused in the light of the discussions above, which shall be read out and explained to him (latter). It shall allow the prosecution an opportunity to bring the aforesaid relevant G.D. Entry into evidence, and allow the accused to cross-examine the witnesses, already examined, with reference, to the alteration of the charge in terms of this order, and with reference to the further evidence which may be produced by the prosecution for admitting the aforesaid relevant G.D. Entry into evidence in terms of this order, if they can. It shall thereafter examine the accused properly and correctly under Section 313, Cr. P.C., in the light of the discussions above, and conclude, the retrial according to law, and record a fresh judgment. The court below shall dispose of the case in terms of the above directions, as early as possible, preferably within a period of 8 months from the date of communication of this order and receipt the Lower Court records.
Let the Lower Court records go down to the court below forthwith, along with a copy of this order. The accused-Appellant shall surrender before the court below as soon as the Lower Court records and the copy of this Order reach the court below, which may commit him to prison, or admit him to bail in due exercise of its judicial discretion in the background that he had been on bail all throughout.
S.N. Chakrabarty, J.
17. I agree.
No comments:
Post a Comment