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Monday, May 16, 2016

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.=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. = 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 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 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.

                                                                  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.
      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 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 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 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 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 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 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 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  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 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.

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