High Court allowed the appeal, setting aside the lower court's conviction for Section 304-A IPC. The court held the conviction illegal as no charge was framed, the offences were not cognate, and evidence showed the deceased refused hospital treatment.
Appel1ant acquitted of Section 304-A IPC; fine refunded. Directed to furnish bond and sent to Surety Court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2024:HHC:9805
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 13 of 2009 Reserved on: 28.08.2024 Date of Decision: 16.10.2024.
Mohammad Javed ...Appellant Versus State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?1 Yes
For the Petitioner : Mr. N.S. Chandel, Sr. Advocate, with Mr. Kshitij Thakur, Advocate. For the Respondent : Mr. Jitender K. Sharma, Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and order dated 22.12.2008 passed by learned Sessions Judge, Bilaspur (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 304-A of IPC and was sentenced to undergo rigorous imprisonment for one year, pay a fine of ₹5000/- and in default of payment of fine to further undergo imprisonment for two months. (The parties shall
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
2024:HHC:9805
hereinafter be referred to in the same manner as they were arrayed before the learned trial Court).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 498A and 306 of IPC. It was asserted that Babar Khan (PW1) visited the Police Station on 08.06.1996 and stated that his sister Farida Bano was married to the accused-Javed Khan. One daughter was born to her. Javed Khan started beating his wife after the birth of his daughter. She left her matrimonial home and went to the house of her brother-Babar Khan and told him about the beatings. She also said that the accused had an illicit relationship with his sister-in-law. When she inquired about it, the accused gave her beatings. Babbar Khan counselled both parties and sent Farida Bano to her matrimonial home. The situation remained normal between them but the accused started beating and harassing his wife. She complained about her husband in February 2006 to the informant. The informant went to the house of the accused on 24.04.2006 and found that Farida Bano was lying on the bed. When he inquired, she revealed that she was fed up with the behaviour of her husband and had attempted to
3
2024:HHC:9805
commit suicide by burning herself. The informant said that he would inform the police but Farida Bano stopped him from doing so. She was taken to the hospital where she succumbed to her injuries on 06.06.2006. The Police registered the FIR (Ext. PW1/A). ASI-Deep Ram (PW16) conducted the investigation. He visited the spot and prepared the site plan (PW16/A). He filed an application (Ext. PW7/A) to obtain the treatment record of Farida Bano. Dr. Sanjay Chandel (PW7) issued the reports (Ext. PW7/B and Ext. PW7/D). ASI Deep Ram filed an application (Ext. PW4/A) for conducting the post-mortem examination of Farida Bano. Dr Mrs. Sangeeta Dhillon (PW4) conducted her post-mortem examination and found that she had died as a result of Septicemia caused by antemortem burns. She issued the report (Ext. PW4/B). The statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared by the police and presented in the Court of learned Chief Judicial Magistrate, Bilaspur, who committed it for trial to the Court of learned Sessions Judge.
4
2024:HHC:9805
306 of IPC. The accused pleaded not guilty and claimed to be tried.
5
2024:HHC:9805
Vikram Lakhanpal (PW15) provided first aid to deceased Farida Bano. ASI-Deep Ram (PW16) conducted the investigation.
6
2024:HHC:9805
7
2024:HHC:9805
led by the prosecution. Learned Trial Court convicted the accused of the commission of an offence punishable under Section 304A of IPC without any charge. This caused serious prejudice to the accused. The evidence on record also showed that the accused had taken steps for the treatment of the deceased. It was proved that the deceased had refused to go to the hospital and she was provided treatment in her residence. This evidence was overlooked by the learned Trial Court. There is no evidence that the accused had caused the death of the deceased by his rash or negligent act. The prosecution had come with the case that the accused had abetted the deceased to commit suicide. The accused was never told that he would be tried for causing the death of the deceased by rash and negligent act. Learned Trial Court failed to appreciate this fact. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
8
2024:HHC:9805
9
2024:HHC:9805
death of the deceased. There was no surprise to the accused; hence, he prayed that the appeal be dismissed.
10
2024:HHC:9805
“11. Illegality or irregularity resulting in prejudice and failure of justice is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules but could be said to be offending natural justice and not curable. A man must know what offence he is being tried for and he must be told in clear and unambiguous terms and it must all be explained to him so that he really understands the accusations. Only in such cases, the question of curing the omission, irregularity or error will arise ( Willie Slaney v. State of Madhya Pradesh1956 S.C. 119 ). If in substance, though not in form, the accused was made to understand the real charge and no prejudice resulted, then no error, omission or irregularity on the charge will be material. If he is tried for one offence and convicted for an entirely different offence brought out during trial; for which he had no opportunity to defend himself, prejudice and failure of justice is patent. The prosecution case is only that pursuant to a demand made by the appellant on 20.3.1985 to PW 1 for ₹ 200/- as motive or reward for passing indent in her favour, he received ₹ 150/- from her on 27.3.1985 as illegal gratification. That case is not only not proved, but also stands disproved. There is no evidence of such a demand or receipt of an amount pursuant to such a demand for that purpose. Demand and receipt for that purpose stand disproved by the mere fact that PW 1 was asked to produce the records and the children for physical verification and she failed and that is the reason why the indent was not passed. That fact acts as a motive for false implication as suggested by the defence and practically admitted by the Special Judge. Payment of ₹ 150/- on 27-3-1985 and its receipt by the appellant are admitted and proved. But the evidence is that it is a voluntary payment as a donation to the Association, of which the appellant is an ofÏce-bearer entrusted with the charge of collection. He may or may not have demanded such a donation. There is no evidence for that. Neither the prosecution nor PW 1 has a case in which the appellant demanded ₹ 150/- and PW 1 paid the same by way of motive or reward for passing indent. The appellant was never asked to answer the charge that he demanded
11
2024:HHC:9805
and received a donation for the Association as a motive or reward for passing indent and it is penal. Practically he is convicted solely on his admission for an act, for which there is no charge. His action may or may not be penal. The matter does not fall under Sections 221 or 222 of the Code. In order to convict him for having received a donation for the Association, there must be a charge that he demanded and received an amount for that purpose by way of motive or reward. When there is no such case, conviction is illegal. What is involved is not an error, omission or irregularity which is curable or an instance coming under Sections 221 or 222 of the Code. The accused was, in fact, misled and failure of justice resulted by the conviction.”
the offence proved is included in the offence charged. Section 222(2) provides that when a person is charged with an offence, and facts are proved, which reduced it to a minor offence, he may be convicted of the minor offence although he is not charged with it. The illustration provides that a person charged with the commission of an offence punishable under Section 407 of IPC can be convicted of the commission of an offence punishable under Section 406 of IPC if it was not proved that the articles were not entrusted to him as a carrier. A person charged with Section 325 of the IPC can be convicted of the commission of an offence punishable under Section 335 of the IPC if he proves that he acted on grave and sudden provocation.
12
2024:HHC:9805
“15. Section 222(1) of the Code deals with a case “when a person is charged with an offence consisting of several particulars”. The section permits the court to convict the accused “of the minor offence, though he was not charged with it”. Sub-section (2) deals with a similar, but slightly different situation.
13
2024:HHC:9805
“222. (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.”
16. What is meant by “a minor offence” for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as a minor offence vis-à-vis the other offence.
U.P., (2011) 8 SCC 300: (2011) 3 SCC (Cri) 498: 2011 SCC OnLine SC
1040 wherein it was observed at page 313:
“25. So far, the judicial pronouncements show a consistent trend that wherever an accused is charged with a grave offence, he can be punished for a less grave offence finally, if the grave offence is not proved. For example, a person charged with an offence under Section 302 IPC may finally be convicted only for an offence under Section 304 Part II where the prescribed punishment is lesser and the consequences of conviction are less serious in comparison to a conviction under Section 302. But even in those cases, the court has to be cautious while examining whether the ingredients of the offences are independently satisfied. If the ingredients even of a lesser offence are not satisfied then it may be difÏcult in a given case for the court to convict the person for an offence of a less grave nature.
26. There can be cases where it may not be possible at all to punish a person for a less grave offence if its ingredients are completely different and distinct from the grave offence. To deal with this aspect illustratively, one could
14
2024:HHC:9805
say that a person who is charged with an offence under Section 326 may not be liable to be convicted for an offence under Section 406 IPC because their ingredients are entirely distinct, different and have to be established by the prosecution on its own strength. In other words, the accused has to be charged with a grave offence which would take within its ambit and scope the ingredients of a less grave offence. The evidence led by the prosecution for a grave offence, thus, would cover an offence of a less grave nature. But it is essential that the offence for which the court proposes to punish the accused is established beyond reasonable doubt by the prosecution.
31. With the passage of time more and more such cases came up for consideration of this Court as well as the High Courts. The development of law has not changed the basic principles which have been stated in the judgments afore referred to. Usually, an offence of a grave nature includes in itself the essentials of a lesser but cognate offence. In other words, there are classes of offences like offences against the human body, offences against property and offences relating to cheating, misappropriation, forgery, etc. In the normal course of events, the question of grave and less grave offences would arise in relation to the offences falling in the same class and normally may not be inter se the classes. It is expected of the prosecution to collect all evidence in accordance with the law to ensure that the prosecution is able to establish the charge with which the accused is charged, beyond reasonable doubt. It is only in those cases, keeping in view the facts and circumstances of a given case and if the court is of the view that the grave offence has not been established on merits or for a default of a technical nature, it may still proceed to punish the accused for an offence of a less grave nature and content.
43. Having stated the above, let us now examine what kind of offences may fall in the same category except to the extent of “grave or less grave”. We have already noticed
15
2024:HHC:9805
that a person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentials are satisfied with the evidence on record. Examples of this kind have already been noticed by us like a charge being framed under Section 302 IPC and the accused being punished under Section 304 Part I or II, as the circumstances and facts of the case may demand. Furthermore, a person who is charged with an offence under Section 326 IPC can be finally convicted for an offence of lesser gravity under Section 325 or 323 IPC, if the facts of the case so establish.
44. Alike or similar offences can be termed as “cognate offences”. The word “cognate” is a term primarily used in civil jurisprudence, particularly with reference to the provisions of the Hindu Succession Act, 1956 where Section 3( c ) has used this expression in relation to the descendants of a class of heirs and normally the term is used with reference to blood relations. Section 3( c ) of the Hindu Succession Act defines “cognate” as follows:
“3. ( c ) ‘ cognate ’. —one person is said to be a ‘cognate’ of another if the two are related by blood or adoption but not wholly through males;”
45. The encyclopaedia The Law Lexicon , explains the word “cognate” in relation to civil law as follows:
“ Cognate . —According to Hindu Law it is a class of heirs, descended or borrowed from the same earlier form.
It means blood relation including female relation.
Word ‘cognate’ literally means ‘akin in nature’, Ram Briksh v. State [ 1978 All Cri C 253 ] .”
This expression has also been recognised and applied to criminal jurisprudence as well not only in the Indian system but even in other parts of the world. Such offences indicate the similarity, and common essential features between the offences and they primarily being based on
16
2024:HHC:9805
differences of degree have been understood to be “cognate offences”.
46. Black's Law Dictionary (8th Edn., p. 1111) defines the expression “cognate offence” as follows:
“ Cognate offence . —A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category. For example, shoplifting is a cognate offence of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property.”
47. Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the courts can always exercise their power to punish the accused for one or the other offence provided the accused does not suffer any prejudice as aforeindicated.”
306. Abetment of suicide .—If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.
20. It is apparent from the perusal of this Section that it
deals with the abetment of a suicide. Therefore, it has to be
proved by the prosecution that the deceased had committed suicide and that the accused had abetted the commission of the
suicide. Section 304A of IPC reads as under:
17
2024:HHC:9805
304-A. Causing death by negligence .—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
person should have caused the death of any person by doing any rash or negligent act not amounting to culpable homicide. Therefore, the prosecution needs to prove that the accused had caused the death of the deceased. Since the causing of the death and the commission of the suicide are entirely different from each other, therefore, it cannot be said that the main ingredients of these two offences are the same. Further, the mens rea of the two offences is also different, while for the commission of an offence punishable under Section 306, an instigation on the part of the accused is required, for committing an offence punishable under Section 304A, the rashness or negligence of the accused is required. Therefore, by no stretch of the imagination, the offences punishable under Section 306 and 304A of IPC can be called major and minor offences having the common ingredients.
498-A. Husband or relative of the husband of a woman subjecting her to cruelty . —Whoever, being the husband
18
2024:HHC:9805
or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.
Explanation . —For the purposes of this section, “cruelty” means—
( a ) any wilful 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
( b ) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]
accused has to subject his wife to cruelty, which means a conduct, that is likely to cause the woman to commit suicide or harass her to coerce her or any person related to her to meet any unlawful demand for any property or valuable security. This Section does not deal with the causing of the death or doing any act rashly or negligently but it deals with doing an act voluntarily; hence, the ingredients of Section 304A and Section 498 of IPC are also not common and a person charged with the commission of an offence punishable under Section 498A cannot be convicted of the commission of an offence punishable under Section 304A of IPC. Thus, the learned Trial Court erred in convicting the accused
19
2024:HHC:9805
of the commission of an offence punishable under Section 304A of IPC without there being any charge for the commission of the aforesaid offence.
20
2024:HHC:9805
hospital. Hence, his testimony does not establish that the accused had not tried to take the deceased to the hospital.
21
2024:HHC:9805
He stated in his cross-examination that he was not aware that the accused was making efforts to take her to the hospital but she had refused to do so. Again his testimony does not show that the accused had refused to provide her treatment. The accused had called this witness for the treatment of his wife.
22
2024:HHC:9805
23
2024:HHC:9805
treatment to the deceased and he could not have been convicted based on the evidence led by the prosecution.
24
2024:HHC:9805
judgment, or on grant of the leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.
( Rakesh Kainthla)
Judge
16th October, 2024
(saurav pathania)
Digitally signed by KARAN SINGH GULERIA Date: 2024.10.16 16:19:42 IST
3 issues framed by the court
Whether the accused can be convicted under Section 304-A IPC when charged only under Sections 306 and 498A IPC.
Whether the ingredients of Section 304-A and Section 306 IPC are common enough under Section 222 CrPC.
Whether the prosecution proved that the accused failed to take the deceased to the hospital.
Colour shows how this judgement treated each authority
K.V. Sugathan v. State of KeralaRelied on¶44
K.V. Sugathan v. State of Kerala, 1991 SCC OnLine Ker 195: (1991) 1 KLJ 673: 1991 Cri LJ 2211 · Who else cites this
Willie Slaney v. State of Madhya PradeshRelied on¶44
Willie Slaney v. State of Madhya Pradesh 1956 S.C. 119
Shamnsaheb M. Multtani v. State of KarnatakaRelied on¶56
Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 · Who else cites this
Rafiq Ahmad v. State of U.P.Relied on¶62
Rafiq Ahmad v. State of U.P., (2011) 8 SCC 300 · Who else cites this
Ram Briksh v. StateExplained¶83
Ram Briksh v. State [1978 All Cri C 253]
4 provisions across 2 enactments
Mohammad Javed
State of H.P.
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
