REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1258     OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 5597 OF 2019)

SMT. CHINTAMBARAMMA & ANR. .....APPELLANT(S)

VERSUS

STATE OF KARNATAKA .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. Leave granted.

2. Chintambaramma,  Mother-in-law and  Saraswathi,  Sister-in-law of

the deceased Sahitya are in appeal against the judgment dated

November 20, 2017 maintaining conviction of the appellants for an

offence punishable under Section 302 read with Section 34 IPC.

The appellants were sentenced to imprisonment for life and a fine

of Rs.10,000/- each was imposed upon them.

3. The  marriage  of  deceased  Sahitya  was  solemnised  with  L.

Manjunatha on March 10, 2006.  An FIR was lodged on August 25,

2009 by CW 1- Smt. Anjanamma that Sahitya has been killed by

the appellants  along with  L.  Manjunatha,  Lakshmi,  Raghavendra

and  Arunakumari.   On  the  basis  of  FIR,  the  investigation  was

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conducted by the Investigating Officer Manjunath (PW-18). Dr. S.

Venkataraghava  (PW-21)  conducted  postmortem.   He  noticed

multiple nail scratches, abrasions over the face, around the mouth,

maxilla, over the right-side neck, nail scratch abrasions over the

lower part of the middle of neck and inner aspect of the right-side

lower lip.  Earlier, Dr. Bhakthavatsala (PW-22) initially examined the

deceased when called by the Ramesh (PW-19).  He reported that

she was dead.

4. Initially, the allegations against the appellants were of demand of

dowry and that the assailants were Adinarayana, accused No.  4

and Venkatesna, accused No. 5 who committed the act of murder

in  conspiracy  with  the  other  accused.   The  relatives  of  the

deceased were examined as Anjanamma (PW-1), Obalesh (PW-3),

Shankar (PW-4), Harikrishna (PW-6) and Vijayakumar (PW-7).  They

have not supported the prosecution case as they turned hostile.

There is no evidence of demand of dowry or cruelty on account of

demand of dowry.  The learned trial court recorded the following

findings:

“34.   So,  from  the  evidence  on  record,  there  is  no cogent and clinching evidence to believe in the case of the prosecution that the accused were ill-treating and harassing the deceased Sahitya demanding her to bring more dowry from her parents house and also A.I had an illicit relation with A.8 and due to this reason, they used to assault and abuse the deceased Sahitya.  Therefore, the  prosecution  has  miserably  failed  to  prove  the alleged guilt against the accused beyond all reasonable doubts that the accused were ill-treating and harassing the  deceased.   Hence,  I  answer  point  No.  2  in  the negative.”

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5. However, the learned Trial Court convicted the appellants and L.

Manjunatha, husband of the deceased having conspired the murder

of  Sahitya with  accused Nos.  4 and 5  but  there is  no evidence

against accused Nos. 6 to 8.  Consequently, accused Nos. 6 to 8

were acquitted by the Trial Court.  However, in appeal, the High

Court acquitted L. Manjunatha but maintained sentence upon the

appellants.   While  convicting  the  appellants,  the  High  Court

recorded the following findings:

“16.  …The conduct of accused Nos. 2 and 3 going to the house of PW-20 and staying there for two hours has remained  a  mystery.   According  to  PW.20,  accused Nos.2 and 3 returned to their house at about 6.00 p.m. Further, her evidence suggests that two strangers who had come to the house of the accused had gone away at  about  5.00  p.m.   Thereafter,  at  about  8.30  p.m., accused Nos. 2 and 3 are stated to have called PW-19 her husband stating that the deceased was not waking up.   PW-19  has  deposed  that  he  brought  PW-22  Dr. Bhakthavatsala  who  told  them  that  the  death  might have  taken  place  about  three  hours  earlier  to  his examination.  If this timing is accepted, the death might have taken place only after 5.00 p.m. or 6.00 p.m. that is, after accused Nos. 2 and 3 returned to their house. Thus, from the evidence of PW-19 and PW-20, it could safely  inferred that  when the deceased met with  her death, only accused Nos. 2 and 3 were in the house. Therefore,  the theory  put  forward by the prosecution that  accused  Nos.  4  and  5  murdered  the  deceased when  accused  Nos.  2  and  3  were  not  in  the  house, appears to be highly improbable and unbelievable.”   

6. The  High  Court  further  held  that  the  conduct  of  the  appellants

pretending that  the deceased was sleeping when they informed

Ramesh  (PW-19)  and  Saroja  (PW-20),  throws  serious  doubts  on

their conduct and that the subsequent conduct of the appellants

also belies the theory of murder having been committed by any

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outsider or by accused Nos. 4 and 5 as sought to be made out by

the prosecution.  The Court observed as under:

“19.  We are conscious of the fact that the conclusion arrived  at  by  us  holding  only  accused  Nos.  2  and  3 guilty of the above offence is substantially at variance with the case set up by the prosecution.  As already stated  above,  the  specific  case  of  the  prosecution  is that the actual murder was committed by accused Nos. 4  and 5  pursuant  to  the  criminal  conspiracy  entered into  by  all  the  accused.   As  a  matter  of  fact,  an argument is also advanced by the learned counsel for the  accused  contending  that  when  the  evidence adduced by the prosecution is contrary to its own case, the benefit thereof has to be given to the accused.  As a principle,  it  cannot  be  disputed  that  failure  of  the prosecution to prove the case set up by it, may entail acquittal  of  the  accused,  but  in  the  instant  case,  on careful examination of the entire material on record, we are  of  the  considered  opinion  that  right  from  the inception  a  deliberate  attempt  has  been  made  to introduce a false story by distorting the true facts.  On considering  the  material  on  record,  we  find  that  the theory  of  criminal  conspiracy and the involvement of accused Nos. 4 and 5 is engineered in connivance with the  Investigating  Officer  only  to  bail  out  the  real offenders  namely  accused Nos.  2  and 3.   On careful consideration of  the  facts  and circumstances  brought out in the evidence, we are of the view that the story as projected  by  the  prosecution  has  taken  shape  three days  after  the incident  by making use of  one of  the tenants namely PW.20.”

7. Learned counsel for the appellants argued that the High Court has

committed patent illegality in convicting the appellants even when

there was no allegation of demand of dowry or harassment proved

against the appellants or even in the absence of the conspiracy of

conspiring  with  accused  Nos.  4  and  5  to  cause  death  of  the

deceased.  In the absence of any evidence of conspiracy and in the

absence of any charge against the appellants to have taken life of

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the deceased, the appellants could not be convicted on the basis of

probabilities.   The  prosecution  has  to  prove  charge  beyond

reasonable doubt by complete chain of circumstances leading to a

firm  finding  that  the  appellants  and  the  appellants  alone  have

taken life of  the deceased.  In the absence of  such finding, the

conviction of the appellants is not tenable.

8. Learned counsel for the appellants refers to the charges framed

against accused Nos. 1 to 6, which read as under:

“That  you  A.1  on  10.3.2006 at  the  time of  marriage received  Rs.4  lakhs  cash  and  100  grams  of  gold  as dowry  and  thereby  committed  an  offence  punishable under Section 3 of Dowry Prohibition Act;

Secondly,  that  you  A.1  being  the  husband  of  the deceased  Sahitya,  you  A.2,  3  and  6  to  8  being  the relatives of A.1, with common intention subjected the deceased  Sahitya  to  cruelty  by  abusing  her  and demanding to bring money from her parents house and used to force against her by this conduct which is of such  nature  as  is  likely  to  drive  Sahitya  to  cause grievous injury to meet your demand to bring cash and thereby  committed  an  offence  punishable  under Sections 498-A read with 34 of IPC;

Thirdly, that you A.4 and 5 on 24.8.2009 agreed to murder Sahitya and made conspiracy with A.1 to 3 and A.6  to 8  by receiving money from them and thereby committed an offence punishable under Section 120-B IPC;  

Fourthly, that you A.1 to 8 with common intention on 24.8.2009  at  4.30  p.m.,  at  No.  27,  2nd Cross,  New Byappanahalli  committed  the  murder  intentionally  by pressing the neck of Sahitya and caused her death and thereby  committed  an  offence  punishable  under Sections 302 read with 34 IPC.”

9. The Trial Court has returned findings that Charge Nos. 1, 2 and 4

are not proved.  However, the High Court has returned a finding of

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lack of conspiracy but on the inference, convicted the appellants.  

10. The High Court found that the Investigating Officer has played a

dubious role in introducing a theory of criminal conspiracy and this

act  is  calculated  to  help  and  save  the  real  offenders.   The

Investigating  Officer  botched  up the  investigation  and instituted

false  charges  and  convicted  the  appellants  although  the

prosecution was launched only against accused Nos. 4 and 5 as the

assailants with conspiracy against role of the appellants being as of

conspirators.

11. The prosecution case is based upon testimony of Ramesh (PW-19)

and Saroja (PW-20) who are the tenants and living on the ground

floor of the house in which the appellants and the deceased were

residing.  Ramesh (PW-19) in his examination-in-chief deposed that

accused No. 2 Saraswathi sprinkled water on the face of deceased

Sahitya when he along with her wife went to their house on the

asking of the appellants.  In cross-examination, the question asked

is about enmity with the husband of the deceased in respect of

payment of rent.   

12. On the other hand, Saroja (PW-20) deposed that the husband of the

deceased came to her house and asked her husband that Sahitya

is sleeping and not waking up in spite of her attempts.  They went

to the house and tried to wake her up.  Since she did not respond,

her husband called the Doctor.  She deposed that Raghavendra,

accused No. 6 had quarrel with Sahitya 2-3 times in her presence.

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On the date of incident, she had seen the deceased at 3 p.m. when

she  was  drying  the  clothes.   She  deposed  that  two  unknown

persons  came  and  killed  Sahitya  by  smothering.   In  cross-

examination,  she deposed that accused has tortured Sahitya for

ten  times  but  she  had  not  seen  the  parents  of  the  deceased

coming to the house.  She also reiterated that on August 24, 2009,

two unknown persons, who came to the house of the deceased,

had earlier visited the house twice.  She further deposed that when

Puja  was  performed  in  the  house  of  Sahitya,  there  were  five

persons.  Puja  was held for two hours.  Sahitya and two  Swamis

were doing  Puja.  She did not notice the time when two  Swamis

came out from Sahitya’s house.   

13. The statement of Saroja (PW-20), in fact, proves the presence of

two other persons on the date of occurrence and that there were

Swamis  performing the  Puja.  Therefore, the findings recorded by

the  High  Court  that  Investigating  Officer  botched  up  the

investigation against the appellants are based upon surmises even

when the prosecution witness has deposed to this effect.

14. The entire prosecution proceeded on the basis that accused Nos. 4

and 5 were the actual assailants.  Accused Nos. 4 and 5 were never

apprehended.   The  charge  of  conspiracy  against  the  appellants

with accused Nos. 4 and 5 has not found favour either with the Trial

Court or with the High Court.

15. The conviction of the appellants is probably on the basis of the lack

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of  explanation  of  the  injuries  suffered  on  the  person  of  the

deceased.  However, we find from the statement of Saroja (PW-20)

that there were five persons who were performing Puja and two of

them were Swamis.  Thus, the appellants cannot be held guilty for

the offence punishable under Section 302 read with Section 34 IPC.

The chain of circumstances has not been completed so as to lead

only one conclusion that the appellants and the appellants alone

were responsible for committing the crime.  

16. In Mulakh Raj v. Satish Kumar1, the Court succinctly restated the

legal position in paragraph 4 as under:

“4.  ……Undoubtedly  this  case  hinges  upon circumstantial evidence. It is trite to reiterate that in a case  founded  on  circumstantial  evidence,  the prosecution  must  prove  all  the  circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other  reasonable  hypothesis  of  the  innocence  of  the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and  probable  circumstances  to  complete  the  chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts.  Therefore,  the  absence  of  ordinary  course  of conduct of the accused and human probabilities of the case also would be relevant. The court must weigh the evidence of the cumulative effect of the circumstances and  if  it  reaches  the  conclusion  that  the  accused committed the crime, the charge must be held proved and the conviction and sentence would follow.”

17. We find that Charge No. 3 against the appellants was that accused

Nos.  4  and  5  have  conspired  with  the  appellants  by  receiving

money.   However,  both  the  Courts  have  found  the  charge  of

1   (1992) 3 SCC 43

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conspiracy as not proved.  Whether, in these circumstances, the

appellants could be convicted for an offence under Section 302 IPC

even without there being charge to this effect?

18. The  question  as  to  whether  omission  to  frame  an  alternative

charge under Section 302 IPC is an illegality that cuts at the root of

the conviction and makes not  invalid  or  whether it  is  a curable

irregularity, has been examined by this Court from time to time.

One  of  the  first  judgments  is  Willie  (William)  Slaney  v.  The

State  of  Madhya  Pradesh2 where  the  Constitution  Bench

explained  the  concept  of  prejudice  caused  to  the  accused  and

failure of justice to vitiate trial in terms of present Section 464 of

the Code.  It was held as under:

“5.   Before  we  proceed  to  set  out  our  answer  and examine 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.  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  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.”

19. Later,  in  Main Pal  v.  State of Haryana3,  this  Court  found the 2  AIR 1956 SC 116 3  (2010) 10 SCC 130

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following  principles  relevant  consequent  to  omission  of  framing

charges.  The Court held as under:

“17.  The following principles relating to Sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations:

(i)  The  object  of  framing  a  charge  is  to  enable  an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place  and  person  against  whom  the  offence  was committed,  as  are  reasonably  sufficient  to  give  the accused notice of the matter with which he is charged.

(ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed  offence  against  one  person  but  on  the evidence  led,  he  is  convicted  for  committing  offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and  the  accused  was  aware  of  the  error.  Such knowledge can be inferred from the defence, that is, if the  defence  of  the  accused  showed  that  he  was defending himself  against  the real  and actual  charge and not the erroneous charge.

(iii) In judging a question of prejudice, as of guilt, the courts  must  act  with  a  broad  vision  and look  to  the substance and not to the 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 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.”

20. In  view  of  the  aforesaid  judgments,  we  find  that  since  the

prosecution  story  proceeded  on  the  basis  that  the  role  of  the

appellants is  that of  conspirators but having failed to prove the

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charge of conspiracy, the appellants could not be convicted for the

offence under Section 302 IPC.  Such conviction has caused not

only  prejudice  but  also  failure  of  justice,  therefore,  conviction

cannot be sustained.   

21. Consequently, the appeal is allowed.  The appellants are acquitted

of  the  charges  levelled  against  them.   They  shall  be  released

forthwith, if not required in any other case.   

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; AUGUST 22, 2019.

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