Paragraph numbers below are the court’s original numbering, recovered from the source text.
6. A reading of the plain language of Section 221 (1) and (2) shows that if a single act or series of acts constitute several offences and the prosecution is not certain about the particular offence then the accused can be charged with the allegation of r having committed all, some or any of the offences. In such a t: B case the accused can be convicted of the offence with which •…- he may not have been specifically charged but evidence pro- – duced by the prosecution proves that such an offence has, in fact, been committed. Section 222(1) lays down that when a l person is charged with an offence consisting of several par- ticulars and combination of only some of the particulars consti- ;i c tuting a minor offence is proved then he can be convicted of the minor offence with which he may not have been charged. Sec~ tion 222(2) lays down that when a person is charged with an offence but the facts proved constitute a minor offence then he D can be convicted of the minor offence despite the fact that he may not have been charged with that offence. Sub-section (3) of Section 222 lays down that a person charged with an of- fence, can be convicted of an attempt to commit such offence ..,. even though a separate charge may not have been framed on that account. Section 464 lays down that any error, omission or irregularity in the framing of charge including any misjoinder of charges, will not invalidate a finding, sentence or order by a court of competent jurisdiction unless the higher court comes to a conclusion that failure of justice has been occasioned. Sub- section (2) of Section 464 specifies the modes which can be ,._ adopted by the Court of appeal, confirmation or revision, if such }c , court is of the opinion that a failure of the justice has been occa- sioned on account of non framing of charge or any error, omis- sion or irregularity in the framing of charge.
7. The question whether omission to frame a charge or any error or irregularity in the charge, is by itself, sufficient for quashing the conviction of the accused was considered in Willie (William) Slaney vs. State of MP [AIR 1956 SC 116]. After examining the issue in detail, the Constitution Bench of this Court observed:- "Before we proceed to set out our answer and examine t the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well- understood lines that accord with our notions of natural justice. f If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair c opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the . ., basic principle on which the Code is based . Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions." ' "'
8. The Constitution Bench then referred to the provisions of Sections 225, 232, 535 and 537 of the Code of Criminal Procedure, 1898, which are analogous to Section 215, 464 and 465 of the Code and held: "Now, as we have said, Sections 225, 232, 535 and 537(a) 'f between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but yvith errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicaliti~s. Broad vision is required, a nice balancing r- c of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad princip:es of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is y l said and done what we are concerned to see is whether "':k the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be e$tablished against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one." ,.;ce
9. In Gurbachan Singh vs. State of Punjab [AIR 1957 SC 623], a three Judges' Bench considered the question of preju- dice and observed: l- "In judging a question of prejudice, as of guilt, coarts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought f•.1 r f(' _,,. to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
10. In Lakhjit Singh vs. State of Punjab [1994 Supp. (1) sec 173], the accused were charged and convicted of offence under Section 302 IPC. The High Court upheld their conviction. A t- two Judges' Bench of this Court held that charge under Section 302 IPC is not established but convicted the appellants under Section 306 IPC. While rejecting the argument that in the ab- sence of a specific charge under Section 306 IPC, the appel- !ants cannot be .convicted under that section, the Court observed:- c "The learned counsel, however, submits that since the charge was for the offence punishable under Section 302 Indian Penal Code, the accused were not put to notice to meet a charge also made against them under Section D 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 Indian Penal Code and; ;… therefore, presumption under Section 113-A of Indian Evidence Act cannot be drawn and consequently a conviction under Section 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under Section 313 CrPC and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross-examination of the witnesses, as well as the answers given under Section 313 CrPC would show that _…, they had enough of notice of the allegations which attract Section 306 Indian Penal Code also."
11. In Sangaraboina Sreenu vs. State of A.P [1997 (5) SCC 348], another Bench of two Judges' expressed a contrary G view. The facts of that case were that the accused was con- victed by the trial court under Section 302 IPC. The High Court converted the conviction to one under Section 306 IPC. While reversing the judgment of the High Court, this Court held: "This appeal must succeed for the simple reason that iii<. having acquitted the appellant of the charge under Section 302 I PC-which was the only charge framed against him the High Court could not have convicted him of the offence under Section 306 IPC. It is true that Section 222 CrPC entitles a court to convict a person of an offence t- which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor :l offence in relation to an offence under Section 302 IPC within the meaning of Section 222 CrPC for the two )..- offences are of distinct and different categories. While the c basic constituent of an offence under Section 302 IPC is "\.- homicidal death, those of Section 306 IPC are suicidal death and abetment thereof."
12. In view of the apparently conflicting judgments of the coordinate Benches, the issue was referred to a larger Bench. D In Dalbir Singh vs. State of UP (2004 (5) SCC 334], a three Judges' Bench considered the provisions of Section 222 and 'f 464 of the Code and observed:- "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 CrPC 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 .J:.. make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely, . Chapter XXXV which deals with irregular proceedings and their effect. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not A vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub-section (1) of this section provides that 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. This clearly shows that any error, omission or irregularity in the charge including c any misjoinder of charges shall not result in invalidating the conviction or order of a competent court unless the appellate or revisional court comes to the conclusion that a failure of justice has in fact been occasioned thereby." D
13. The three Judges' Bench then referred to the earlier judgments in Willie (William) Slaney vs. State of M.P (supra}, ·y Gurbachan Singh vs. State of Punjab (supra) and observed:- "There is a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by E making reference to each one of them. Therefore, in view of Section 464 CrPC, it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu was not corr~ctly decided as it purport$ 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."
14. The ratio of the above noted judgments is that in cer- tain situations an accused can be convicted of an offence with which he may not have been specifically charged and that an error, omission or irregularity in the framing of charge is, by it- self not sufficient for upsetting the conviction. The appellate', confirming or revisional Court can interfere in such matters only if it is shown that error, omission or irregularity in the framing of charge has caused prejudice to the accused and failure of jus- tice has been occasioned. c
15. Reverting to. the facts of this case, we find that the ap- pellant and his co-accused were charged under Section 3048 IPC. The specific allegation.levelled against them was that they had subjected the deceased to cruelty for or in connection with D demand for dowry and she had died unnatural death within seven years of her marriage. Thus, the appellant knew that he was to defend himself against the allegation of cruelty. The cross-ex- 'I amination of prosecution witnesses unmistakably shows that the defense had made concerted effort to discredit the testimony of mother, sisters and brother of the deceased in the context of alle- gation of cruelty. Not only this in his statement under Section 313 of the Code, the appellant denied the allegation that he had sub- jected his wife to cruelty. It is thus evident that the appellant was not only aware of the charge of cruelty but he got and availed the opportunity to defend himself with reference to that charge. There- fore, it is not possible to accept the submission of Shri Tulsi that omission of the trial court to frame specific charge under Section 498A IPC had prejudiced the cause of his client or that failure of justice ,had been occasioned on that count.
16. The next point which requires consideration is whether after discarding the testimony of PW-1, PW-6 and PW-7 and acquitting the appellant of the charge under Section 3048 IPC, the High Court could convict him under Section 498A IPC.
17. Section 498A was added to the IPC by amending Act No.46 of 1983 in the backdrop of growing menace of dowry related cases in which the women were subjected to cruelty and harassment and were forced to commit suicide. This sec- tion lays down that if the husban,d or his relative subjects a woman to cruelty, then he/she is liable to be punished with im- prisonment for a term which may extend to three years and shall also be liable to fine. Explanation appended to this section de- f. fines the term 'cruelty' to mean any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any c person related to her to meet any unlawful demand for any prop- erty or valuable security or is on account of failure by her or any person related to her to meet such demand.
18. After three years, Section 3048 was inserted by amending Act No.43of1986 to deal with cases involving dowry D y" deaths occurring within seven years of marriage. Sub-section -…. (1) of Section 3048 IPC lays down that where the death of a woman is caused by any burns or bodily injury or occurs.other- wise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. By virtue of explanation appearing below sub-section (1 ), the …… word 'dowry' used therein carries the same meaning as is con- tained in Section 2 of The Dowry Prohibition Act, 1961.
19. The ingredient of cruelty is common to Sections 3048 and 498A IPC, but the width and scope of two sections is differ- ent, inasmuch as Section 3048 deals with cases of death as a result of cruelty or harassment within seven years of marriage, . -\ Section 498A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether [2008) 12 S.C.R. mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.
20. In order to bring home charge under Section 3048 IPC, the prosecution is required to establish that the death of the woman has been caused by burns or bodily injury or other- wise than under normal circumstances within seven years of her marriage and soon before her death, the woman is sub- jected to cruelty or harassment by her husband or his relative. However, for the purpose of conviction under Section 498A IPC, c it is sufficient to prove that the woman was subjected to cruelty, as elucidated in the explanation appearing. below substantive part of the section, by her husband or his relative.
21. A reading of the impugned judgment shows that after D recording a finding that there was no evidence to prove that the deceased was treated with cruelty or harassment in connec- tion with demand of dowry soon before her death, the High Court referred to the judgments of this Court in Pyare Lal vs. State of Haryana (supra) and Satpal vs. State of Haryana (supra) and E held that evidence on record clearly makes out an offence un- der Section 498A IPC against the appellant.
22. Although the judgment under challenge does not con- tain an elaborate discussion with reference to the ingredients of Section 498A IPC, having carefully gone through the state- ments of PW-1, PW-6, PW-7, PW-14 and PW-26, we are con- vinced that the prosecution succeeded in proving that the ap- pellant had subjected the deceased to cruelty within the mean- ing of clause (a) of explanation appearing below Section 498A I PC and the mere fact that the statements of three of them were G not found convincing by the High Court for sustaining the con- viction of the appellant and his other co-accused on the premise i!"' that all the ingredients of Section 3048 IPC have not been es- _.:(. tablished is not sufficient to discard the prosecution case as a whole. PW-1, PW-6 (both sisters), PW-7 (mother) and PW-26 (brother) have categorically deposed that immediately after / .. marriage the deceased was given beating by the appellant, his brothers and was subjected to harassment and taunting by mother-in-law and sister-in-law for being dark complexioned and illiterate/not fluent in English. Their statements also show that the appellant had hit the deceased with a brick resulting in wound on her head which had to be stitched. On the date of death also, the deceased was subjected to physical torture and ha- rassment. Both the sisters narrated that when they met the de- ceased, she was weeping and her eyes were swollen. Their testimony has been substantially ?Upported by PW-14 Rakesh Malhotra. He too stated that the deceased was subjected to· c beating by her husband and she had suffered injury on her head. This part of the prosecution case has not been disbelieved by the High Court which found discrepancy only on the issue of demand of dowry. The beating given to the deceased and ha- rassment to which she was subjected had direct bearing on her D committing suicide. Therefore, we are convinced that the High Court did not commit any error in convicting the appellant under v Section 498A IPC.
23. The judgments on which Shri Tulsi has placed reliance do not support the cause of the appellant. Rather, the judgment in State of West Bengal vs. Ori/al Jaiswal & Another (supra) supports the conclusion that an offence under Section 498A IPC is made out if the woman is subjected to physical assault, humiliation, harassment and mental torture. In Satpal vs. State of Haryana (supra}, this Court held that even though the pros- ……, ecution evidence was not sufficient to establish charge under Section 304 or 306 IPC, conviction under Section 498A IPC can be upheld because the deceased was treated with cruelty by the appellant.
24. In the result, the appeal is dismissed. The appellant who is on bail, shall be arrested for serving out the remaining sentence. R.P. Appeal dismissed.