SMT. CHINTAMBARAMMA & ANR. versus STATE OF KARNATAKA on 22 August 2019

1. Leave granted.

2. Chintambaramma, Mother-in-law and Saraswathi, Sister-in-lawof the deceased Sahitya are in appeal against the judgment datedNovember 20, 2017 maintaining conviction of the appellants for an offenceHpunishable under Section 302 read with Section 34 IPC. The appellants were sentenced to imprisonment for life and a fine of Rs.10,000/- eachwas 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, 2009by CW 1- Smt. Anjanamma that Sahitya has been killed by the appellantsalong with L. Manjunatha, Lakshmi, Raghavendra and Arunakumari.On the basis of FIR, the investigation was conducted by the InvestigatingOfficer Manjunath (PW-18). Dr. S. Venkataraghava (PW-21) conductedpostmortem. He noticed multiple nail scratches, abrasions over the face,around the mouth, maxilla, over the right-side neck, nail scratch abrasionsover the lower part of the middle of neck and inner aspect of the right-side lower lip. Earlier, Dr. Bhakthavatsala (PW-22) initially examinedthe deceased when called by the Ramesh (PW-19). He reported thatshe was dead.

4. Initially, the allegations against the appellants were of demandof dowry and that the assailants were Adinarayana, accused No. 4 andVenkatesna, accused No. 5 who committed the act of murder inconspiracy with the other accused. The relatives of the deceased wereexamined as Anjanamma (PW-1), Obalesh (PW-3), Shankar (PW-4),Harikrishna (PW-6) and Vijayakumar (PW-7). They have not supportedthe prosecution case as they turned hostile. There is no evidence ofdemand of dowry or cruelty on account of demand of dowry. The learnedtrial court recorded the following findings:

“34. So, from the evidence on record, there is no cogent andclinching evidence to believe in the case of the prosecution thatthe accused were ill-treating and harassing the deceased Sahityademanding her to bring more dowry from her parents house andalso A.I had an illicit relation with A.8 and due to this reason, theyused to assault and abuse the deceased Sahitya. Therefore, theprosecution has miserably failed to prove the alleged guilt againstthe accused beyond all reasonable doubts that the accused wereill-treating and harassing the deceased. Hence, I answer pointNo. 2 in the negative.”

5. However, the learned Trial Court convicted the appellants andL. Manjunatha, husband of the deceased having conspired the murderof Sahitya with accused Nos. 4 and 5 but there is no evidence againstaccused Nos. 6 to 8. Consequently, accused Nos. 6 to 8 were acquitted AB

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Aby the Trial Court. However, in appeal, the High Court acquitted L.Manjunatha but maintained sentence upon the appellants. Whileconvicting the appellants, the High Court recorded the following findings:

“16. …The conduct of accused Nos. 2 and 3 going to the houseof PW-20 and staying there for two hours has remained a mystery.According to PW.20, accused Nos.2 and 3 returned to their houseat about 6.00 p.m. Further, her evidence suggests that twostrangers who had come to the house of the accused had goneaway at about 5.00 p.m. Thereafter, at about 8.30 p.m., accusedNos. 2 and 3 are stated to have called PW-19 her husband statingthat the deceased was not waking up. PW-19 has deposed thathe brought PW-22 Dr. Bhakthavatsala who told them that thedeath might have taken place about three hours earlier to hisexamination. If this timing is accepted, the death might have takenplace 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- B

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19 and PW-20, it could safely inferred that when the deceasedmet with her death, only accused Nos. 2 and 3 were in the house.Therefore, the theory put forward by the prosecution that accusedNos. 4 and 5 murdered the deceased when accused Nos. 2 and 3were not in the house, appears to be highly improbable andunbelievable.”

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6. The High Court further held that the conduct of the appellantspretending that the deceased was sleeping when they informed Ramesh(PW-19) and Saroja (PW-20), throws serious doubts on their conductand that the subsequent conduct of the appellants also belies the theoryof murder having been committed by any outsider or by accused Nos. 4Fand 5 as sought to be made out by the prosecution. The Court observedas under:

“19. We are conscious of the fact that the conclusion arrived atby us holding only accused Nos. 2 and 3 guilty of the above offenceis substantially at variance with the case set up by the prosecution.As already stated above, the specific case of the prosecution isthat the actual murder was committed by accused Nos. 4 and 5pursuant to the criminal conspiracy entered into by all the accused.As a matter of fact, an argument is also advanced by the learnedcounsel for the accused contending that when the evidenceadduced by the prosecution is contrary to its own case, the benefit G

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thereof has to be given to the accused. As a principle, it cannotbe disputed that failure of the prosecution to prove the case set upby it, may entail acquittal of the accused, but in the instant case,on careful examination of the entire material on record, we are ofthe considered opinion that right from the inception a deliberateattempt has been made to introduce a false story by distorting thetrue facts. On considering the material on record, we find thatthe theory of criminal conspiracy and the involvement of accusedNos. 4 and 5 is engineered in connivance with the InvestigatingOfficer only to bail out the real offenders namely accused Nos. 2and 3. On careful consideration of the facts and circumstancesbrought out in the evidence, we are of the view that the story asprojected by the prosecution has taken shape three days after theincident by making use of one of the tenants namely PW.20.”

7. Learned counsel for the appellants argued that the High Courthas committed patent illegality in convicting the appellants even whenthere was no allegation of demand of dowry or harassment proved againstthe appellants or even in the absence of the conspiracy of conspiringwith accused Nos. 4 and 5 to cause death of the deceased. In theabsence of any evidence of conspiracy and in the absence of any chargeagainst the appellants to have taken life of the deceased, the appellantscould not be convicted on the basis of probabilities. The prosecution hasto prove charge beyond reasonable doubt by complete chain ofcircumstances leading to a firm finding that the appellants and theappellants alone have taken life of the deceased. In the absence of suchfinding, the conviction of the appellants is not tenable.

8. Learned counsel for the appellants refers to the charges framedagainst accused Nos. 1 to 6, which read as under:

“That you A.1 on 10.3.2006 at the time of marriage received Rs.4lakhs cash and 100 grams of gold as dowry and thereby committedan 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 commonintention subjected the deceased Sahitya to cruelty by abusingher and demanding to bring money from her parents house andused to force against her by this conduct which is of such natureas is likely to drive Sahitya to cause grievous injury to meet your A

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Ademand to bring cash and thereby committed an offence punishableunder Sections 498-A read with 34 of IPC; Thirdly, that you A.4 and 5 on 24.8.2009 agreed to murder Sahityaand made conspiracy with A.1 to 3 and A.6 to 8 by receivingmoney from them and thereby committed an offence punishableBunder Section 120-B IPC; Fourthly, that you A.1 to 8 with common intention on 24.8.2009 at4.30 p.m., at No. 27, 2[nd] Cross, New Byappanahalli committedthe murder intentionally by pressing the neck of Sahitya and causedher death and thereby committed an offence punishable underCSections 302 read with 34 IPC.”

9. The Trial Court has returned findings that Charge Nos. 1, 2 and4 are not proved. However, the High Court has returned a finding oflack of conspiracy but on the inference, convicted the appellants.

10. The High Court found that the Investigating Officer has playedDa dubious role in introducing a theory of criminal conspiracy and this actis calculated to help and save the real offenders. The InvestigatingOfficer botched up the investigation and instituted false charges andconvicted the appellants although the prosecution was launched onlyagainst accused Nos. 4 and 5 as the assailants with conspiracy againstErole 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 theground floor of the house in which the appellants and the deceased wereresiding. Ramesh (PW-19) in his examination-in-chief deposed thatFaccused No. 2 Saraswathi sprinkled water on the face of deceasedSahitya when he along with her wife went to their house on the askingof the appellants. In cross-examination, the question asked is aboutenmity with the husband of the deceased in respect of payment of rent.

12. On the other hand, Saroja (PW-20) deposed that the husbandof the deceased came to her house and asked her husband that SahityaGis sleeping and not waking up in spite of her attempts. They went to thehouse and tried to wake her up. Since she did not respond, her husbandcalled the Doctor. She deposed that Raghavendra, accused No. 6 hadquarrel with Sahitya 2-3 times in her presence. On the date of incident, H

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 bysmothering. In cross-examination, she deposed that accused has torturedSahitya for ten times but she had not seen the parents of the deceasedcoming to the house. She also reiterated that on August 24, 2009, twounknown persons, who came to the house of the deceased, had earliervisited the house twice. She further deposed that when Puja wasperformed in the house of Sahitya, there were five persons. Puja washeld for two hours. Sahitya and two Swamis were doing Puja. She didnot notice the time when two Swamis came out from Sahitya’s house.

13. The statement of Saroja (PW-20), in fact, proves the presenceof two other persons on the date of occurrence and that there wereSwamis performing the Puja. Therefore, the findings recorded by theHigh Court that Investigating Officer botched up the investigation againstthe appellants are based upon surmises even when the prosecution witnesshas deposed to this effect.

14. The entire prosecution proceeded on the basis that accusedNos. 4 and 5 were the actual assailants. Accused Nos. 4 and 5 werenever apprehended. The charge of conspiracy against the appellantswith accused Nos. 4 and 5 has not found favour either with the TrialCourt or with the High Court.

15. The conviction of the appellants is probably on the basis of thelack of explanation of the injuries suffered on the person of the deceased.However, we find from the statement of Saroja (PW-20) that there werefive persons who were performing Puja and two of them were Swamis.Thus, the appellants cannot be held guilty for the offence punishableunder Section 302 read with Section 34 IPC. The chain of circumstanceshas not been completed so as to lead only one conclusion that theappellants and the appellants alone were responsible for committing thecrime.

16. In Mulakh Raj v. Satish Kumar[1], the Court succinctly restatedthe legal position in paragraph 4 as under:

“4. ……Undoubtedly this case hinges upon circumstantialevidence. It is trite to reiterate that in a case founded oncircumstantial evidence, the prosecution must prove all the A

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Acircumstances connecting unbroken chain of links leading to onlyone inference that the accused committed the crime. If any otherreasonable hypothesis of the innocence of the accused can beinferred from the proved circumstances, the accused would beentitled to the benefit. What is required is not the quantitative butqualitative, reliable and probable circumstances to complete theBchain connecting the accused with the crime. If the conduct ofthe accused in relation to the crime comes into question the previousand subsequent conduct are also relevant facts. Therefore, theabsence of ordinary course of conduct of the accused and humanprobabilities of the case also would be relevant. The court mustCweigh the evidence of the cumulative effect of the circumstancesand if it reaches the conclusion that the accused committed thecrime, the charge must be held proved and the conviction andsentence would follow.”

17. We find that Charge No. 3 against the appellants was thatDaccused Nos. 4 and 5 have conspired with the appellants by receivingmoney. However, both the Courts have found the charge of conspiracyas not proved. Whether, in these circumstances, the appellants could beconvicted for an offence under Section 302 IPC even without therebeing charge to this effect?

E18. The question as to whether omission to frame an alternativecharge under Section 302 IPC is an illegality that cuts at the root of theconviction and makes not invalid or whether it is a curable irregularity,has been examined by this Court from time to time. One of the firstjudgments is Willie (William) Slaney v. The State of Madhya Pradesh[2]where the Constitution Bench explained the concept of prejudice causedFto the accused and failure of justice to vitiate trial in terms of presentSection 464 of the Code. It was held as under:

“5. Before we proceed to set out our answer and examine theprovisions of the Code, we will pause to observe that the Code isa code of procedure and, like all procedural laws, is designed toGfurther the ends of justice and not to frustrate them by theintroduction of endless technicalities. The object of the Code is toensure that an accused person gets a full and fair trial along certainwell-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competentcourt, if he is told and clearly understands the nature of the offencefor which he is being tried, if the case against him is fully andfairly explained to him and he is afforded a full and fair opportunityof defending himself, then, provided there is substantialcompliance with the outward forms of the law, mere mistakes inprocedure, mere inconsequential errors and omissions in the trialare regarded as venal by the Code and the trial is not vitiatedunless the accused can show substantial prejudice. That, broadlyspeaking, is the basic principle on which the Code is based.”

19. Later, in Main Pal v. State of Haryana[3], this Court found thefollowing principles relevant consequent to omission of framing charges.The Court held as under:

“17. The following principles relating to Sections 212, 215 and464 of the Code, relevant to this case, become evident from thesaid enunciations:

(i) The object of framing a charge is to enable an accused to havea clear idea of what he is being tried for and of the essential factsthat he has to meet. The charge must also contain the particularsof date, time, place and person against whom the offence wascommitted, as are reasonably sufficient to give the accused noticeof 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 hassuch knowledge, his defence will be prejudiced. Where an accusedis charged with having committed offence against one person buton the evidence led, he is convicted for committing offence againstanother person, without a charge being framed in respect of it,the accused will be prejudiced, resulting in a failure of justice. Butthere will be no prejudice or failure of justice where there was anerror in the charge and the accused was aware of the error. Suchknowledge can be inferred from the defence, that is, if the defenceof the accused showed that he was defending himself against thereal and actual charge and not the erroneous charge.

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A(iii) In judging a question of prejudice, as of guilt, the courts mustact with a broad vision and look to the substance and not to thetechnicalities, and their main concern should be to see whetherthe accused had a fair trial, whether he knew what he was beingtried for, whether the main facts sought to be established againsthim were explained to him fairly and clearly, and whether he wasBgiven a full and fair chance to defend himself.”

20. In view of the aforesaid judgments, we find that since theprosecution story proceeded on the basis that the role of the appellantsis that of conspirators but having failed to prove the charge of conspiracy,the appellants could not be convicted for the offence under Section 302

CIPC. Such conviction has caused not only prejudice but also failure ofjustice, therefore, conviction cannot be sustained.

21. Consequently, the appeal is allowed. The appellants areacquitted of the charges levelled against them. They shall be releasedforthwith, if not required in any other case.

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Divya Pandey

Appeal allowed.

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