Full Judgment Text
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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
Signature Not Verified
recorded by the Trial Court has been affirmed by the High Court in
Digitally signed by
ASHWANI KUMAR
Date: 2016.05.09
17:28:41 IST
Reason:
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.
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ITEM NO.102 COURT NO.12 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 2375/2009
R.RACHAIAH Appellant(s)
VERSUS
HOME SECRETARY, BANGALORE Respondent(s)
(with office report)
WITH
Crl.A. No. 2376/2009
(With appln.(s) for early hearing and Office Report)
Crl.A. No. 2377/2009
Office Report)
Date : 05/05/2016 These appeals were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE R.K. AGRAWAL
For Appellant(s) Mr. B.H. Marlapalle, Sr.Adv.
Mr. Shantha Kumar Mahale, Adv.
Mr. Amith J. Sharma, Adv.
Mr. Apoorv Shukla, Adv.
Mr. Ajit Wagh, Adv.
Ms. Aditya Gaggar, Adv.
Mr. Rajesh Mahale,Adv.
Mr. Manoj K. Mishra,Adv.
Mr. Umesh Dubey, Adv.
Ms. Meghna Kalra, Adv.
Mr. Balaji Srinivasan,Adv.
For Respondent(s) Ms. Anitha Shenoy,Adv.
Ms. Maitreyee Mishra, Adv.
UPON hearing the counsel the Court made the following
O R D E R
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The Criminal Appeals are allowed in terms of the signed
Judgment.
Interlocutory application(s) pending, if any, shall stand
disposed of accordingly.
(ASHWANI THAKUR) (Tapan Kr. Chakraborty
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)