A.K. Parichha, J.
1. The above noted Death Reference and Jail Criminal Appeal arise out of the judgment dated 1.2.2005 passed by learned Sessions Judge, Keonjhar in S.T. Case No. 4 of 2003 and so both are disposed of by this common order.
2. Prosecution was launched against the accused-appellant with the allegation that in spite of having a wife named Kuni Behera and three children, the accused had an evil eye on the wife of Puria Perei and for that reason he was neglecting his wife and children and so Kuni and her children were living in the house of the parents of Kuni Behera for some time, When the matter stood thus, the accused came to the house of his in-laws on 13.6.2002 on the pretext of taking back his wife and children, but early in the next morning he left that place without taking his family. So, the brother of Kuni took Kuni and her children to Pani Koil Chhak and left them in the custody of the accused. Thereafter on 17.6.2002 the dead body of Kuni was found in a Nala near Suanpoda weekly market. On the next day i.e. on 18.6.2002 the dead bodies of two of the children were found from a deserted well and the dead body of the 3rd child was found from a Nala. The recovery of dead bodies was reported to the police authorities, who investigated into the matter and found out that the accused killed his wife and children in order to continue his extra marital relation with another lady. The accused was accordingly charge-sheeted for offence under Sections 302 and 201, I.P.C. He was tried and found guilty for those offences by learned Sessions Jude, Keonjhar in the above noted session case. Learned Sessions Judge after imposed death penalty referred the matter to this Court for confirmation of the death sentence vide DSREF No. 2 of 2005. The accused also filed the Jail Criminal Appeal No. 21 of 2005 challenging the conviction and sentence passed against him.
3. Learned Counsel for the accused-appellant submitted that the prosecution evidence is highly insufficient to establish the charges levelled against the accused beyond reasonable doubt and therefore, the conviction and sentence are unsustainable. He also submitted that the charge framed against the accused is defective and has resulted in utter prejudice to the accused-appellant. Learned Standing Counsel, on the other hand, supported the impugned judgment of the trial Court and argued that though there is no eye witness to the alleged occurrence, yet circumstantial evidence coupled with the last seen theory put forth by the prosecution are sufficient to establish the charges under Sections 302 and 201, I.P.C. He also submitted that the defect in the charge as alleged, is at best an irregularity and has not caused any prejudice to the accused-appellant, as the entire facts, circumstances and evidence were placed before him at the time of recording the accused statement.
4. Since the appellant has claimed that conviction and sentence passed against him are unsustainable in view of the defect in the charge, it will be proper to examine that aspect carefully. Learned Counsel for the accused-appellant pointed out that though the conviction and sentence have been passed against the accused for killing his wife-Kuni and the three children; the charge had been framed for the murder of Kuni Behera only. According to him, there being no charge regarding murder of the three children, prejudice has been caused to the accused-appellant and on that ground the conviction and sentence needs to be set aside. In support of such contention, learned Counsel relied on the cases of W. Slaney v. State of M.P. (S) ;
5. In reply to the said submission, learned Standing Counsel submitted that the prosecution evidence put forth was about the murder of wife and three children and such fact and evidence were put to the accused at the time of examination under Section 313, Cr.P.C. and therefore, the accused-appellant was never prejudiced in any way and the trial was also not vitiated. According to him, such infirmity in the charge is curable and is not sufficient to set aside the conviction and sentence. In support of his argument, learned Standing Counsel relied on the cases of Andhra Pradesh v. Thakkidiram Reddy AIR 1988 SC 2702; Shri Tarachand v. Superintendent of Central Excise, Bangalore ; Kamalanantha and Ors. v. State of Tamil Nadu 2005 (3) Crimes 24(SC) and Dalbir Singh v. State of U.P. 2004(3) Supreme
In the case of Andhra Pradesh v. Thakkidiram Reddy, (supra) objection was not raised in the trial Court about the infirmity in charge. Material prosecution witnesses were cross-examined at length from all angles. Accused persons were specifically told at the time of examination under Section 313, Cr.P.C. of their committing offences under relevant sections of the Penal Code. Considering the circumstances, the apex Court held that accused was not prejudiced by the error in charges and the trial is not invalid on that ground.
In Tarachand v. Superintendent of Central Excise (supra) the relevant salient facts alleged by the prosecution were admitted by the accused, for which the apex Court observed that there can be no question of prejudice having been caused to the accused by the general language in the complaint and charge.
In the case of Kamalanantha and Ors. v. State of Tamil Nadu (supra), there was some misjoinder of charges. Since the accused was represented by very senior and able criminal lawyers and he was afforded an opportunity of hearing to explain all the circumstances against him, their lordships held that failure of justice has not occasioned by the alleged misjoinder of charges.
In Dalbir Singh v. State of U.P. (supra), it was observed that Court can convict for a minor offence, even though charge has been framed for major offence.
6. The ratios laid down in the above noted cases are not directly applicable to the present case as the facts and circumstances of those cases were different than the present case. In the case of W. Slaney v. State of M.P. (supra), the apex Court while discussing about the effect of defective charge made the following remark:
(97). The framing of a charge in trial of cases in which a charge is required to be framed, is one of the important elements in the mode of a trial. On the charge framed, after it has been explained to the accused, the plea of guilty or not guilty is recorded. If the accused pleads guilty, certain consequences follow. If he pleads not guilty, the trial must proceed according to law. When a charge is not framed, obviously no plea of the accused with reference to it is taken and the trial has proceeded without such a plea.
Is the framing of a charge and the recording of the plea of the accused merely a ritual or a fundamental provision of the Code concerning procedure in a criminal trial ? I think it is the latter. Are the express provisions of the Code as to the manner in which a trial is to proceed to be ignored, or considered as satisfied, merely because the Court explained to the accused as to what he was being tried for ? I apprehend not. For to do so is to replace the provisions of the Code by a procedure unwarranted by the statute itself.
In my opinion, a total absence of a charge from start to finish in a case where the law requires a charge to be framed, is a contravention of the provisions of the Code as to the mode of trial and a conviction of the accused of an offence in such a case is invalid and the question of prejudice does not arise.
Above noted observation makes it clear that where charge for a particular offence or allegation is absent from start to finish, then the conviction and sentence of the accused for such offence becomes invalid. Similarly, where the omissions/infirmities in the charge results
in prejudice to the accused, the order of conviction and sentence become unsustainable. Only when the omissions or infirmities in the charge are curable in nature and do not cause prejudice to the accused, there the conviction and sentence would not be invalidated.
7. In the present case, charge has been simply framed for murder of Kuni Behera. Although, no charge is there regarding the death or murder of the children, yet the impugned conviction and sentence is for murder of Kuni as well a three children. When there was absolutely no charge about the killing of the children and when no such direct question was placed before the accused in the statement under Section 313, Cr.P.C., the accused-appellant had no scope of refuting the allegation of murder of the children and so the omission amounts to total absence of charge and causes prejudice to the accused. Such defect in the charge not being curable, the impugned conviction and sentence against the accused-appellant automatically becomes invalid. When conviction and sentence are rendered invalid in view of the defective charge, it will be fruitless to analyze the evidence on record to find out whether they are sufficient to establish the allegations of the prosecution. In such a situation, there is no other alternative than to set aside the order of conviction and sentence and to remit the matter to the trial Court for framing the charges afresh and for conducting a de novo trial of the accused-appellant.
8. In the result, therefore, the Death Reference is discharged and the Jail Criminal Appeal is allowed. The case is remitted back to the learned trial Court for framing the charge afresh and for conducting a de novo trial and thereafter to dispose of the case on its own merit according to law.
P.K. Tripathy, J.
9. I agree.