Allahabad High Court
Umesh Yadav vs State Of U.P. on 5 May, 2022
Bench: Ashwani Kumar Mishra, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.44 Case :- CRIMINAL APPEAL No. - 3054 of 2013 Appellant :- Umesh Yadav Respondent :- State of U.P. Counsel for Appellant :- Sudhir Kumar,Munesh Kumar Upadhyay,Sunil Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Rajnish Kumar,J.
(Delivered by Hon. Ashwani Kumar Mishra, J.)
1. This appeal is by the accused Umesh Yadav challenging his conviction in Sessions Trial No.198 of 2012 under Section 302 read with section 201 IPC arising out of Case Crime No.605 of 2011 under Sections 498-A, 304-B, 201 IPC & ¾ of Dowry Prohibition Act, Police Station Sikandrarau, District Hathras, sentencing him to rigorous imprisonment for life under section 302 IPC, together with fine of Rs.20,000/- and for failure to pay fine to undergo additional simple imprisonment for a term of one year. He has also been sentenced to seven years rigorous imprisonment under section 201 IPC alongwith fine of Rs.10,000/- and failure to pay fine would result in simple imprisonment of six months. The punishments are to run concurrently. Appellant, however, has been acquitted of the charges under section 498-A, 304-B IPC & ¾ of Dowry Prohibition Act.
2. Facts giving rise to the appellant's implication in the aforesaid is the lodgement of First Information Report in Case Crime No.605 of 2011 as per which the informant Malkhan Singh married his daughter Reena to the appellant nearly three years back after payment of adequate dowry. It is alleged that the appellant used to harass informant's daughter for demand of dowry of a plot and assaulted her too. Appellant is also alleged to be having an illicit relationship with the wife of his brother Munesh. On 12.11.2011 the informant's daughter was thrown out of the house for having not brought enough dowry and asked to get a plot at Sikandrarau. Upon receiving such information the informant and his cousin Rameshwar brought her back and she was staying at Nagla Babool since 13.11.2011. As per FIR allegation the appellant Umesh alongwith his brother Munesh came to Nagla Babool on a motorcycle at 04.00 PM on 28.11.2011 and took informant's daughter with them on a motorcycle on the pretext that she will not have any grievance in future. The informant, however, received information that his daughter Reena has been done to death by Umesh and Munesh and their family members and the dead body has been thrown in Nirdai Canal in Police Station Dholna, District Kanshi Ram Nagar. Upon receiving such information the informant alongwith his brother Jai Narayan, Yograj, Shyoraj etc. reached Nagla Gulabi i.e. in-laws place of the daughter. Upon inquiry it came to their knowledge that his daughter has been done to death and is not traceable since 28.11.2011. No satisfactory reply was received about the whereabouts of deceased. It is then alleged that the informant visited the middleman Ramdas who had arranged the marriage itself and stayed at his house in the night and upon return found that accused persons have left their home alongwith cattle etc. in the night of 2/3.12.2011. The informant with his relatives made efforts to trace out his daughter and her dead body was ultimately found floating in the canal and prompt information in that regard was given to Police Station Dholna. As per the inquest report the deceased appeared to have died due to strangulation. The body otherwise had no apparent injury marks etc. In the opinion of inquest witnesses the deceased was strangulated by tying saree around her neck by the appellant.
3. On the basis of information given, Chik of FIR in Case Crime No.605 of 2011 was lodged, which is mentioned in General Diary as paper no.38. Postmortem was performed by Dr. N.S. Tomar, who described the cause of death as asphyxia due to throttling. Inquest, site plan and postmortem etc. was duly prepared whereafter charge sheet was submitted against the appellant under sections 498-A, 304B, 201 IPC & ¾ of D.P. Act and the matter was committed to the court of sessions. The accused appellant was summoned in court and charge was read out to him. Appellant denied the charges and consequently trial proceeded in the matter. As many as 13 witnesses were examined by the prosecution.
4. The first witness produced on behalf of the prosecution is Malkhan Singh (the informant) as PW-1 on 12.09.2012, whereas the last witness PW-13 Jai Narayan was examined on 10.04.2013. It is thereafter that the accused appellant was examined under section 313 Cr.P.C. on 09.05.2013 and the judgment convicting the appellant and sentencing him to life and other punishments, noticed above, has been delivered on 29.05.2013.
5. At the outset it would be worth noticing that charge was read out to the accused appellant by the Sessions Judge, Hathras on 14.08.2012 under sections 498-A, 304-B, 201 IPC & ¾ D. P. Act and all the witnesses were examined to prove the aforesaid charge between 12.09.2012 to 10.04.2013. It is thereafter that alternative charge got framed by the concerned court under section 302 IPC. Admittedly, none of the witnesses were adduced after 24.04.2013 nor any of the witnesses previously adduced were recalled and the sessions court after examining the accused appellant under section 313 Cr.P.C. has proceeded to convict him for the alternative charge framed on 24.04.2013 under section 302 IPC, relying upon the evidence led earlier on the charges previously framed under section 498-A, 304-B, 201 IPC & ¾ D. P. Act. While examining the accused under section 313 Cr.P.C. the statements of witnesses were referred to the accused appellant and he has not been specifically confronted with the charge of murder. The principal contention advanced on behalf of the appellant, therefore, is that the entire trial stands vitiated for non compliance of the mandatory requirement contained in section 216 Cr.P.C.
6. It is worth noticing that there is no eye witness to the commissioning of alleged offence and the prosecution case rests upon circumstantial evidence.
7. In order to bring home the charge initially framed against the appellant the prosecution produced the FIR; written report; recovery memo of motorcycle; postmortem; inquest report; and charge sheet. Site plan with index has also been produced. The postmortem was conducted on 04.12.2011 at 12.55 PM in which death allegedly occurred 2-3 days back and the cause of death is asphyxia as a result of strangulation. In the inquest report prepared on 03.12.2011 at 05.20 PM also death is reported to homicidal on account of throttling and no signs of injury was seen. In the opinion of the inquest witnesses the deceased has been done to death by her husband Umesh by strangulation.
8. Malkhan Singh, father of deceased Reena, has been adduced as PW-1, who has been declared hostile in view of his statement that neither any demand of dowry was made from his daughter nor she was ever harassed. He has also retracted from the statement under section 161 Cr.P.C. and has denied suggestion that on account of a subsequent compromise he is giving false statement. It has also been stated that he was mentally stressed on account of death of his daughter and persons from opposite party were present as such he has lodged the FIR. PW-2 Shyoraj Singh, brother in law of the informant, has also turned hostile. He has stated that deceased stayed for about 15 days at his house in Sikanderpur and left for village Katka alone and it is incorrect to state that she was taken to her in-laws place by her husband and brother-in-law Munesh. He has also disowned his statement allegedly given under section 161 Cr.P.C. PW-3 Kamla is the wife of PW-2 and sister of PW-1, who too has denied the prosecution version that the appellant and his brother had taken the deceased on motorcycle from her house. She has also disowned her statement under section 161 Cr.P.C. and declared hostile. PW-4 Yogendra is the inquest witness, who has feigned ignorance about the cause of death. PW-5 Manoj Kumar has also been declared hostile. PW-6 Ramdas is a retired teacher, who had arranged marriage of accused appellant with the deceased and has stated that there was no demand of dowry and he has also retracted from the statement under section 161 Cr.P.C. and has been declared hostile. PW-7 Ramvir Singh has also been declared hostile. PW-8 Baniram similarly has been declared hostile. PW-9 Omveer is the uncle of deceased and is inquest witness, who too has been declared hostile. Similarly, PW-10 Bishamwar Singh has also been declared hostile after he stated that police obtained his signatures on blank paper which apparently was used to prepare recovery memo in respect of motorcycle seized from the accused appellant. PW-11 Deepak Kumar is also declared hostile. PW-12 Dalvir Singh is the inquest witness and has not supported the prosecution case. PW-13 is the uncle of deceased, who has stated that accused Umesh had taken the deceased from Sikanderpur and her dead body was found three days, later.
9. The accused appellant in his statement under section 313 Cr.P.C. has denied having received any dowry for marriage or that he had illicit relations with sister in law. During the course of trial a plea was setup on behalf of the accused appellant that possibly the deceased had committed suicide as she was not able to conceive any child even after 3-4 years of marriage and she used to remain unhappy.
10. The trial court has relied upon the statement of PW-13 Jai Narayan, according to whom, Umesh had taken the deceased Reena three days back from Sikanderpur and her dead body was found later. The trial court has essentially relied upon the theory of last seen, relying upon the statement of PW-13 and the fact that the deceased had ligature mark all around her neck i.e. 25cm x 1.5cm just below thyroid cartilage and dissection of ligature mark subcutaneous tissue ecchymosed and her thyroid bone was also found fractured, to come to the conclusion that it was the accused appellant who had throttled his wife. Trial court has also observed that onus was upon the husband to prove the cause of death inasmuch as he himself was involved in the crime and that is why he neither reported the death nor had given any information to the family of the deceased. Since allegation of dowry was not substantiated the trial court acquitted the appellant of offence under sections 498-A, 304-B IPC and ¾ D. P. Act. However, relying upon the theory of last seen, as also the fact that death of deceased was homicidal, the trial court convicted the appellant under section 302 read with 201 IPC. Thus aggrieved, the appellant is before this Court.
11. Learned counsel for the appellant submits that there exists no evidence in the eyes of law to connect the appellant with the commissioning of offence inasmuch as the plea of last seen is not substantiated in view of the fact that there was considerable gap between the time when the deceased was allegedly taken by appellant and her death. Possibility of another hypothesis, as being cause of death, cannot be ruled out. It is also argued that the trial itself stood vitiated inasmuch as the charge originally read out to the accused did not include section 302 IPC nor was it an alternative charge and it is only after conclusion of evidence adduced by prosecution that the charge was amended so as to include section 302 IPC and the judgment of conviction/sentence delivered without complying with requirement of section 216 Cr.P.C. is bad in law. Submission also is that even if alternative charge was to be framed, the prosecution was under an obligation to adduce evidence in support of the charge under section 302 IPC with a corresponding right with the accused to cross examine such witnesses or to produce his defence witnesses and failure to do so has vitiated the trial itself.
12. Learned AGA, on the other hand, submits that a fair trial is conducted in the matter and no prejudice is caused to the appellant on account of non following of procedure under section 216 Cr.P.C. It is further urged that the fact that prosecution witnesses turned hostile clearly indicates some sort of compromise between the parties, which cannot be encouraged, and the trial court has rightly convicted the accused appellant under section 302 IPC.
13. We have heard Sri Sunil Kumar, learned counsel for the appellant and Sri Ali Murtaza, learned AGA for the State and have perused the materials brought on record.
14. So far as the facts of the case are concerned, the factum of lodging FIR on the basis of a report of informant is proved. The allegation in the FIR is with regard to demand of dowry, particularly the demand of a plot at Sikandrarau. It is then alleged that on 28.11.2011 the accused appellant came with his brother and took the deceased on a motorcycle by assuring that the wife would face no further difficulty and thereafter killed her and threw the body in the canal. The postmortem report has also been proved, according to which, the death had occurred 2-3 days prior to 04.12.2011 when the postmortem itself was conducted at 12.55 PM. The dead body had ligature mark all around her neck i.e. 25cm x 1.5cm just below thyroid cartilage and dissection of ligature mark subcutaneous tissue ecchymosed and her thyroid bone was also found fractured. As per the inquest also the death was occasioned by throttling. The evidence thus placed on record leaves no room of doubt that deceased Reena suffered homicidal death on account of throttling. There is absolutely no issue, so far, regarding cause of death of the deceased.
15. As per the FIR the death had occurred about 2-3 days back and tentative date of death as per the FIR and postmortem report appears to be 1st December, 2011.
16. According to prosecution version the deceased was taken by the accused appellant on 28.11.2011 to his village on a motorcycle from Nagla Babool and her body was found in the canal on 03.12.2011. There is a gap of about 3-4 days between the time accused appellant took the deceased and her dead body was found.
17. So far as the evidence of last seen is concerned there are apparently two witnesses i.e. PW-2 and PW3, who had supported such plea in their statement under section 161 Cr.P.C. but both of them have later turned hostile. In their deposition before the court PW-2 & PW-3 have clearly stated that the deceased left their home on her own for going to her parental village Katka, Aligarh. The prosecution version that the accused appellant had taken the deceased on motorcycle alongwith his brother Munesh on 28.11.2011 has been specifically denied. PW-2 & PW-3 are husband and wife and are closely related to the deceased. The only other statement to support the case of last seen is the statement of PW-13 Jai Narayan, who has stated that the deceased was taken by accused appellant whereafter her dead body was found three days, later. He, however, has not seen the accused appellant taking the deceased himself nor has disclosed the identity of the person from whom he gathered such information. Such person has otherwise not been adduced in evidence. The evidence of PW-13 is thus not reliable inasmuch as he has neither seen the deceased being taken by appellant himself nor has disclosed the identity of the person from whom such information was received. His statement cannot even be a hearsay evidence. No other evidence has been placed on record before the court on the basis of which it could be said that the accused appellant had taken the deceased on his motorcycle. The basis of last seen theory, in such circumstances, is clearly demolished on facts.
18. The trial court has merely referred to the statement of PW-13 to rely upon the theory of last seen. The statement of PW-13 has not been carefully examined by the trial court nor it has been seen that PW-13 was neither present at such time nor even claims to have seen the deceased going with the accused appellant. His statement cannot thus be relied upon to support the prosecution version that the deceased was lastly seen with the accused appellant.
19. The trial court has also failed to consider the fact that even if the plea of last seen was to be accepted, yet the delay of 3-4 days was material and an alternative hypothesis as being the cause of death during this period could not have been ruled out in the facts of the case. This being a case of circumstantial evidence the chain of events must be proved to be complete so as to rule out any alternative hypothesis as being the cause of death.
20. Law with regard to the principles to be followed for conviction in a case of circumstantial evidence has been summed up by the Supreme Court in Sharad Birdichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, which has acquired the status of a locus classicus on the issue. The judgment has been followed recently by the Supreme Court in Nagendra Shah vs. State of Bihar, (2021) 10 SCC 725 for applying the five golden principles to observe as under in paragraph 17 to 19 of the judgment:-
"17. As the entire case is based on circumstantial evidence, we may make a useful reference to a leading decision of this Court on the subject. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , in para 153, this Court has laid down five golden principles (Panchsheel) which govern a case based only on circumstantial evidence. Para 153 reads thus : (SCC p. 185) "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court inShivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] wherein the following observations were made : (SCC p. 807, para 19) ''19. ... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(emphasis supplied)
18. Paras 158 to 160 of the said decision are also relevant which read thus : (Sharad Birdhichand Sarda case [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , SCC pp. 186-87) "158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar [Deonandan Mishra v. State of Bihar, AIR 1955 SC 801 : (1955) 2 SCR 570, 582 : 1955 Cri LJ 1647] , to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus : (AIR pp. 806-07, para 9) ''9. ... But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, ... such absence of explanation or false explanation would itself be an additional link which completes the chain.'
159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been [Ed. : The matter between two asterisks has been emphasised in original.] satisfactorily proved [Ed. : The matter between two asterisks has been emphasised in original.] , (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal case [Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCC 35, 39 : 1981 SCC (Cri) 315, 318-19] wherein this Court observed thus : (SCC p. 43, para 30) ''30. ... Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.'"
(emphasis supplied)
19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant."
21. After referring to the provisions contained under section 106 of the Evidence Act the Court has observed that a case of circumstantial evidence can succeed only if the chain of circumstances is established and failure of prosecution to do so cannot be made good by any failure on part of the accused to discharge the burden under section 106 of the Evidence Act. The observations of the Court in paragraph 22 to 24 of the judgement in Nagendra Shah's case (supra) are also relevant and are reproduced hereinafter:-
"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.
24. As we have already held in this case, the circumstances established by the prosecution do not lead to only one possible inference regarding the guilt of the appellant-accused."
22. The provisions of section 106 of the Evidence Act will have no applicability in the facts of the case as the dead body of the deceased has been found not from the house of the appellant, rather, it has been found from the canal of which sketch plan is at page 68 of the paper book. The canal is about 70 meter wide and is at a distance from village Nadrai. The place is otherwise a open place and, therefore, presumption under section 106 of the Evidence Act would not arise in the facts of the case.
23. In light of the principles laid down in Sharad Birdichand Sarda (supra), as followed in Nagendra Shah (supra), it is clearly discernable that for a conviction to stand on the basis of circumstantial evidence, the facts so established should be consistent only with the hypothesis of guilt of the accused and must exclude other possible hypothesis. In the facts of the case except to allege that the appellant had taken the deceased on motorcycle, there is no evidence either of last seen or to connect the missing dots so as to rule out any alternative hypothesis. An alternative hypothesis for the cause of death cannot be ruled out, particularly when there is a gap of nearly 3-4 days between the allegation of last seen and the time of death of the deceased. In such circumstances, the trial court was not justified in coming to the conclusion that the murder of deceased was done by the accused appellant. The finding, in that regard, by the trial court is found to be based on no evidence. In the facts of the case the chain of events referred to in Sharad Birdichand Sarda (supra) is otherwise not complete, since alternative hypothesis cannot be rule out. From the considerations of materials produced on record we find that the prosecution has miserably failed to prove the alleged offence on part of the appellant beyond reasonable doubt.
24. We now proceed to deal with the other argument advanced on behalf of the appellant, in support of the appeal i.e. non adherence to the procedure stipulated in section 216 Cr.P.C.
25. We have noted that originally the charges against the appellant were framed by sessions judge under section 498-A, 304-B, 201 IPC & ¾ D. P. Act and the entire evidence was adduced by the prosecution in respect of such charges. The witnesses were also cross-examined in that context. It is after the entire oral and documentary evidence was concluded by the trial court, by 10.04.2013, that the alternative charge under section 302 IPC was framed on 24.04.2013. None of the witnesses were produced to prove the charge under section 302 IPC. No finding otherwise is contained in the judgment of the trial court to even suggest that no prejudice would be caused to accused on account of non holding of a new trial in the matter. Sections 216 and 217 Cr.P.C. have been considered by the Supreme Court in R Rachaiah vs. Home Secretary, Bangalore, (2016) 12 SCC 172 to hold the provision to be mandatory in following words in paragraphs 8 to 15 of the judgment:-
"8. 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.
9. 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 resummon, 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."
10. 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.
11. 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 resummon 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.
12. 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 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.
13. 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 recall the witnesses, examine them in the context of the charge under Section 302 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. 30-9-2006 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.
14. In a case like this, with the framing of alternative charge on 30-9-2006, 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 subserve 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.
15. 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 IPC."
26. Necessary ingredients to bring home a charge under section 302 IPC is clearly distinct from the evidence required to be adduced to prove a charge under section 304-B IPC read with section 498-A IPC. Statutory presumption would be available in such cases where the death is within seven years of marriage but for a charge under section 302 IPC the prosecution, by producing cogent evidence, must prove the charge and the presumptions would not be available in such case.
27. The prosecution in support of charge framed under section 302 IPC will have to independently adduce evidence so as to establish the guilt of accused. It is thereafter that the accused gets right to cross examine the prosecution witnesses or to put forth its defence witnesses. Unless such a procedure is followed the right of the accused to prove his innocence would be compromised. Section 216 and 217 Cr.P.C. contains a wholesome procedure encompassing principles of natural justice with the intent that accused is given reasonable opportunity to prove his innocence in a fair criminal trial.
28. In the facts of the case no such procedure consistent with the requirement of section 217 and 218 Cr.P.C. has been followed by the trial court. There is absolutely no whisper in the judgment about compliance of provisions contained in section 216 Cr.P.C. It may be reiterated that the trial court also has not independently formed an opinion that no prejudice would be caused to the appellant in the process. The trial, therefore, is clearly vitiated for non compliance of section 216 Cr.P.C.
29. The plea taken by learned AGA that the matter be remanded to trial court also cannot be accepted for the following reasons:-
(i) No evidence exists against the appellant to bring home the charge under section 302 IPC as all witnesses of fact have turned hostile.
(ii) The appellant has remained in jail for more than 11 years without remission and we cannot allow him to remain in custody any further, as such a course would be wholly unjust in the facts of the case.
30. In view of the aforesaid deliberations and discussions, this appeal succeeds and is allowed. The judgment and order dated 29.05.2013, passed by the Additional Sessions Judge, Court No.1, Hathras, convicting and sentencing the appellant in Session Trial No.198 of 2012 (State vs. Umesh Yadav) arising out of Case Crime No.498-A, 304-B, 201, 302 IPC & ¾ of Dowry Prohibition Act, Police Station Sikandrarau, District Hathras is hereby set aside. The appellant is acquitted from the charges of offence under section 302 read with 201 IPC and he shall be set at liberty forthwith, if he is not wanted in any other case.
Order Date:- 05.05.2022 Ashok Kr.