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REPORTABLE  IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL  NO(S). 2375/2009 R.RACHAIAH                                         APPELLANT(S)                                

 VERSUS

HOME SECRETARY, BANGALORE                          RESPONDENT(S)

WITH CRIMINAL APPEAL NO. 2376/2009 & CRIMINAL APPEAL NO. 2377/2009

J U D G M E N T  A.K. SIKRI, J.

The  three  appellants  in  these  three  appeals  have  been convicted for offences punishable under Sections 302 and 364 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC') and all three of them have been directed to undergo sentence of life imprisonment for the charge under Section 302 IPC read with Section 34 IPC and ten years in respect of the charge under Section 364 IPC read with Section 34 IPC. Both the sentences are  directed  to  run  concurrently.  The  conviction  and  sentence recorded by the Trial Court has been affirmed by the High Court in the impugned judgment dated 22.04.2009 resulting into the dismissal of the joint appeal which was filed by these three appellants.

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Though the case history is quite lengthy, having regard to the aspect which we intend to focus on and the fact that on that aspect only  these  appeals  warrant  to  succeed,  it  is  not  necessary  to burden this judgment with unnecessary factual details.  We would, therefore, be eschewing those facts which are irrelevant for our purpose and would be taking record of such facts that would be relevant to the issue on which we intend to focus.  

The appellant/R. Rachaiah (hereinafter referred to as “A-1”) is the father of one Prabhavati.  Her marriage was solemnised with Dr. N. Shivakumar (since deceased) at Mysore on 28.05.2000. Within two days of the marriage, i.e. on 30.05.2000, Prabhavati consumed poison and as a result she fell unconscious and was taken to B.M. Hospital  at  Mysore  in  a  critical  condition.  In  the  night  when Prabhavati had consumed poison, Dr. Shivakumar left Mysore and had gone back to Bangalore. On 31.05.2000, he along with his elder brother Rudraiah (PW-5) and uncle Andanaih traveled to Mysore in a hired Tata Sumo to meet Prabhavati in the hospital. However, when they were about 30 Kms. away from Mysore, as per the prosecution, Dr. Shivakumar telephoned from one STD booth and enquired about the condition of Prabhavati when he was informed that she was dead.  On receiving  this  information,  Dr.  Shivakumar  attempted  to  commit suicide by slitting his throat by a blade at about 04.30 p.m. At that time he was in the car with his brother and uncle which was being driven to Mysore.  In an injured condition, he was shifted to the General Hospital at Bidadi for urgent medical care. The case was also registered against him for attempt to commit suicide under Section 309 IPC with the Police Station at Bidadi. Next day, he was

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shifted to Shekhar Hospital at Bangalore and admitted in ICU.  In that hospital, he tried to commit suicide again by consuming 30 Avil tablets when he was still in the hospital.  

As per the story put-forth by the prosecution, on 03.06.2000, an agreement was reached between A-1 on the one hand and the father and brother of Dr. Shivakumar on the other hand to end the marital tie/disputes and it was agreed that A-1 would be paid a sum of Rs. 8 lakhs to compensate for the marriage expenses which was incurred by  him  on  the  marriage  of  his  daughter  Prabhavati.  While  the condition  of  Prabhavati  was  still  critical  and  she  was  in  the hospital, on 07.06.2000, her statement was recorded wherein she allegedly said that in the night of 30.05.2000 i.e. about 10 p.m. while  she  was  in  the  bedroom  with  Dr.  Shivakumar,  he  had administered  poison  to  her  suspecting  that  she  had  illicit relationship with her maternal uncle. Based on this statement of Prabhavati,  a  case  i.e.  Crime  No.  82/2000  was  registered  under Section 498A and 307 IPC against Dr. Shivakumar at Mysore Police Station. At that time, as already pointed out above, Dr. Shivakumar was also in the Shekhar Hospital in Bangalore. On 08.06.2000, he went to the toilet attached to the ICU and cut his wrist vein, which was another attempt on his part to commit suicide.  

On 09.06.2000, Dr. Shivakumar was got discharged from Shekhar Hospital  at  the  instance  of  these  appellants.  The  prosecution alleges that it was against medical advice that the accused persons got  him  discharged  and  took  him  away  to  the  house  of  A-1.  On 10.06.2000,  the  dead  body  of  Dr.  Shivakumar  was  found  on  the railway track near Naguvanahalli, which is 30 Kms. away Mysore. The

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body of Dr. Shivakumar was cut into two pieces due to the train running over him. The post-mortem of the dead body was conducted. However, no case against anybody was registered either for suicidal or homicidal death even after receiving the post-mortem report. The dead body of Dr. Shivakumar was taken and duly buried by performing all  last  rites.  It  appears  that  few  days  thereafter,  i.e.  on 28.06.2000,  the  father  of  the  deceased  submitted  a  written complaint  to  the  Secretary,  Home  Department,  Government  of Karnataka. On the basis of this complaint, fresh investigation to find out the cause of death was started. The body of Dr. Shivakumar was exhumed and again medically examined. Even the said examination did  not  implicate  anybody.  However,  the  father  of  the  deceased persisted  with  his  complaint  which  led  to  constitution  of  a Committee of five expert doctors which gave its report (Exhibit P-36).  Further investigation was carried out on that basis and, ultimately, on 23.01.2002, charge sheet was submitted in the Court. In this charge sheet filed by the police, after investigation, it was alleged that a prima facie case against all the three accused persons was made out under Section 306 and 365 read with Section 34 IPC. A-1 was arrested on 23.01.2002 itself and was released on bail on  06.03.2002.  Thereafter,  charges  were  framed  by  the  Court  of Sessions on 19.02.2004 under Sections 306 and 365 read with Section 34 IPC against all three accused. Trial proceeded on the basis of these charges. In all, 27 witnesses were examined which included seven Police Officers, four Doctors and two Narcotic Experts. When PW-26 was examined on 25.07.2006, thereafter, an application was filed by the prosecution under Section 216 of the Code of Criminal

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Procedure, 1973 (hereinafter referred to as “the Code”) for framing of additional charge under Section 302 IPC. This application was resisted by the accused persons. However, their objections were rejected and on 30.09.2006, the Trial Court framed “ALTERNATIVE CHARGE”  under  Section  302  IPC  read  with  Section  34  IPC.  As mentioned  above,  by  that  time,  26  witnesses  had  already  been examined. Thereafter, only one more witness i.e. PW-27/Deva Reddi, Deputy  Superintendent  of  Police  was  examined.  The  statement  of accused persons under Section 313 of the Code was also recorded.

The Trial Court convicted all the three accused persons under Section 302 IPC read with Section 34 IPC and also under Section 364 IPC read with Section 34 IPC. What follows from the above is that the appellants were not convicted of the original charge framed either under Section 306 or Section 365 IPC. Instead of Section 306 IPC,  the  appellants  were  convicted  in  respect  of  'alternative charge' under Section 302 IPC. The other offence for which they were  charged  was  under  Section  365  IPC  but  the  conviction  was recorded under Section 364 IPC on the ground that even when the charge framed was under Section 365 IPC, the evidence produced by the prosecution shows existence of all ingredients under Section 364 IPC.  

The  appellants  filed  a  common  appeal  against  the  said conviction taking a specific plea to the effect that there could not have been any conviction under Section 302 IPC. In this regard, it was also pleaded that, the 'alternative charge' under Section 302 IPC was wrongly framed without following the procedure under Sections 216 and 217 of the Code and, therefore, the entire trial

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insofar  as  conviction  under  Section  302  IPC  is  concerned  stood vitiated. It was further argued that there could not have been any conviction under Section 364 IPC as well in the absence of any specific charge under this section.  The appellants also challenged the conviction on merits.  

The High Court, in detail, discussed the merits of the case and did not find favour with the arguments of the appellants.  It is not necessary for us to go into this aspect as we find that the trial which is conducted and on the basis of which conviction is recorded under Section 302 IPC is clearly vitiated as the same is in violation of the mandatory procedure prescribed under Sections 216 and 217 of the Code. These two sections are reproduced below:  

“216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not  likely,  in  the  opinion  of  the  Court,  to prejudice  the  accused  in  his  defence  or  the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if  the  altered  or  added  charge  had  been  the original charge. (4)  If  the  alteration  or  addition  is  such  that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or  the  prosecutor  as  aforesaid,  the  Court  may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction  is  necessary,  the  case  shall  not  be proceeded  with  until  such  sanction  is  obtained, unless sanction has been already obtained for a

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prosecution on the same facts as those on which the altered or added charge is founded.

217.  Recall  of  witnesses  when  charge  altered. Whenever a charge is altered or added to by the Court  after  the  commencement  of  the  trial,  the prosecutor and the accused shall be allowed- (a)  to  recall  or  re-summon,  and  examine  with reference  to  such  alteration  or  addition,  any witness  who  may  have  been  examined,  unless  the Court,  for  reasons  to  be  recorded  in  writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice; (b)  also  to  call  any  further  witness  whom  the Court  may  think  to  be  material.  B.-  Joinder  of charges

The bare reading of Section 216 reveals that though it is permissible  for any Court to alter or add to any charge at any time  before  judgment  is  pronounced,  certain  safeguards,  looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are  also  provided  specifically  under  sub-sections  (3)  and  4  of Section  216  of  the  Code.  Sub-section(3),  in  no  uncertain  term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position  becomes  further  clear  from  the  bare  reading  of

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sub-section(4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.   

Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with  reference  to  such  alteration  or  addition.  In  such circumstances, the Court is to even allow any further witness which the  Court  thinks  to  be  material  in  regard  to  the  altered  or additional charge.  

When we apply the aforesaid principles to the facts of this case,  the  outcome  becomes  obvious.  The  accused  persons  were initially charged for an offence under Section 306 of the IPC, i.e. abetting suicide which was allegedly committed by Dr. Shivakumar. It is manifest therefrom that the entire case of the prosecution, even after repeated investigations and medical examination of the dead body/skeleton of Dr. Shivakumar, was that the cause of the death  was  suicide.  Thus,  after  the  investigation,  what  the prosecution found was that Dr. Shivakumar had committed suicide

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and, as per the prosecution, the three appellants had aided and abetted the said suicide which was committed by Dr. Shivakumar. On this specific charge, 26 witnesses were examined and cross-examined by the appellants. Obviously, when the appellants are charged with an offence under Section 306 i.e. abetting the suicide, the focus as well as stress in the cross-examination shall be on that charge alone. At the  fag end  of the trial, the charge is altered with “Alternative Charge” with the framing of the charge under Section 302 IPC. This gives altogether a different complexion and dimension to the prosecution case.  

Now,  the  charge  against  the  appellants  was  that  they  have committed murder of Dr. Shivakumar. In a case like this, addition and/or substitution of such a charge was bound to create prejudice to the appellants. Such a charge has to be treated as original charge.   In  order  to  take  care  of  the  said  prejudice,  it  was incumbent upon the prosecution to re-call the witnesses, examine them in the context of the charge under Section 302 of IPC and allow the accused persons to cross-examine those witnesses. Nothing of that sort has happened.  As mentioned above, only one witness i.e. official witness, namely, Deva Reddi, Deputy Superintendent of Police, was examined and even he was examined on the same date i.e. 30.09.2006 when the alternative charge was framed. The case was not even adjourned as mandatorily required under sub-Section (4) of Section 216 of the Code.  

In a case like this, with the framing of alternative charge on 30.09.2006, testimony of those witnesses recorded prior to that

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date could even be taken into consideration. It hardly needs to be demonstrated  that  the  provisions  of  Sections  216  and  217  are mandatory in nature as they not only sub-serve the requirement of principles  of  natural  justice  but  guarantee  an  important  right which  is  given  to  the  accused  persons  to  defend  themselves appropriately by giving them full opportunity. Cross-examination of the witnesses, in the process, is an important facet of this right. Credibility of any witness can be established only after the said witness is put to cross-examination by the accused person.  

In the instant case, there is no cross-examination of these witnesses insofar as charge under Section 302 IPC is concerned. The trial, therefore, stands vitiated and there could not have been any conviction under Section 302 of the IPC.

Though, in the given case, it would be doubtful as to whether the appellants can now be convicted under Section 306 IPC as we, prima  facie,  find  that  the  charge  under  Section  302  was  in substitution of the earlier charge under Section 306 as both the charges cannot stand together. (See: Sangaraboina Sreenu Vs State of A.P. (1997)5 SCC 348).

In  any  case,  it  is  not  necessary  to  go  into  this  aspect because  of  the  reason  that  even  if  it  is  permissible  for  the prosecution to press the charge under Section 306 and even if it is presumed that such a charge is established, all the appellants have already suffered incarceration for more than eight years. For the same reason, we do not intend to go into the issue of conviction of

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these  appellants  under  Section  364,  when  the  charge  was  framed under Section 365 IPC. We, thus, reduce the sentence to the period already undergone and direct that the appellants shall be released forthwith, if not required in any other case.

The appeals are, accordingly, allowed.             

......................J. [A.K. SIKRI]

......................J.    [R.K.AGRAWAL]

NEW DELHI; MAY 05, 2016.