Rajnandgaon, Chhattisgarh v. Rajnandgaon, District Rajnandgaon, Chhattisgarh

FIR was registered vide Ex.P/13. Nazari naksha and crime details form were prepared vide Exs.P/5 & P/15, respectively. Inquest proceedings (Ex.P/11) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/9) proved by Dr. Narendra Golan (PW-12), cause of death was asphyxia due to drowning. In the chemical analysis the articles i.e. bone and water are found positive for diatom test vide Ex.P/21 (FSL report). Wheels of investigation started running and the appellant was arrested.

5. After due investigation, appellant herein was charge- sheeted for offence under Section 306 of the IPC and the trial Court has also framed the charge on 15.07.2016 for offence under Section 306 of the IPC. However, on application under Section 216 of the CrPC being filed by the prosecution on 08.08.2017, the alternative charge for offence under Section 302 of the IPC was also framed on

06.09.2017 against the present appellant and ultimately 5 {CRA No. 830 of 2018} the trial Court has convicted him for offence under Section 302 of the IPC.

6. In consequence of the alternative charge framed under Section 302 of the IPC, in exercise of power under Section 217 of the CrPC, all the witnesses except PW-9 Jaisingh Kosa, village Kotwar, & PW-11 Bhupendra Kumar Choubey, Constable, were recalled and thereafter, in order to bring home the offence, prosecution has examined as many as 13 witnesses; exhibited 21 documents and 2 articles, whereas, defence, in support of its case, has not examined any witness, but exhibited 3 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

7. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the 6 {CRA No. 830 of 2018} appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:-

8. Mr. Akash Pandey and Mr. Tanmay Thomas, learned counsels for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. They would also submit that the trial Court has committed grave legal error in framing the alternative charge for offence under Section 302 of the IPC against the appellant as the earlier charge for offence under Section 306 of the IPC has already been framed against the appellant, which is totally impermissible as the offences under Sections 302 and 306 of the IPC are diametrically opposite to each other and the ingredients of two Sections are different by which the appellant has 7 {CRA No. 830 of 2018} suffered great prejudice and, therefore, the appellant is entitled for the acquittal. They would further submit that the death of deceased Kumari Roshani Lahre could not be proved to be homicidal in nature which is sine qua non for framing the charge under Section 302 of the IPC and even otherwise, the theory of last seen together has not been established and also there is no corroborative piece of evidence brought on record by the prosecution in support of the theory of last seen together of the appellant and the deceased. Hence, the conviction of the appellant for offence in question is liable to be set aside and he is entitled to be acquitted.

9. Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC as after framing of charge under Section 302 of the IPC on 06.09.2017 all the witnesses except the 8 {CRA No. 830 of 2018} formal witnesses PW-9 Jaisingh Kosa & PW-11 Bhupendra Kumar Choubey were re-examined, therefore, in framing the alternative charge, the appellant has not suffered prejudice and accordingly, the appellant is not entitled for acquittal.

10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records meticulously. Discussion & Analysis:-

11. The trial Court has framed the charge for offence under Section 306 of the IPC against the appellant on

15.07.2016 and in alternative the charge for offence under Section 302 of the IPC was also framed on 06.09.2017 against the appellant and finally the appellant has been convicted for offence under Section 302 of the IPC.

12. Now, the first question for consideration would be whether the trial Court has rightly framed the alternative 9 {CRA No. 830 of 2018} charge and convicted the appellant herein for offence under Section 302 of the IPC in addition to charge framed under Section 306 of the IPC ?

13. Admittedly and undisputedly, the State has filed the charge-sheet against the appellant only for offence under Section 306 of the IPC on the allegation that the appellant had abetted deceased Kumari Roshani Lahre to commit suicide by refusing her to marry and thereby she committed suicide and the appellant is guilty for offence under Section 306 of the IPC, on which, the trial Court has proceeded to frame the charge only for offence under Section 306 of the IPC on 15.07.2016. Thereafter, on application being filed by the prosecution on 08.08.2017 under Section 216 of the CrPC, for addition to frame charge under Section 306 of the IPC, charge under Section 302 of the IPC is also liable to be framed as the same is legally permissible and it would not cause prejudice to the appellant, which the trial Court by its order dated

06.09.2017 granted the application leading to the framing 10 {CRA No. 830 of 2018} of the charge under Section 302 of the IPC in alternative. Furthermore, since the charges were amended, in exercise of power under Section 217 of the CrPC all the witnesses except the formal witnesses PW-9 Jaisingh Kosa & PW-11 Bhupendra Kumar Choubey, were recalled and re- examined.

14. By virtue of Section 216 of the CrPC, it is permissible for any Court to alter or add to any charge at any time before the judgment is pronounced. However, certain safeguards, looking into the interest of the accused person who is charged with additional charge or with alteration of the additional charge, are also provided specifically under sub-sections (3) and (4) of Section 216 of the CrPC which states as under:- “216. Court may alter charge. – (1) xxx xxx xxx xxx (2) (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 11 {CRA No. 830 of 2018} 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 has 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) xxx xxx”

15. The sub-sections (3) & (4) of Section 216 of CrPC has been considered by the Supreme Court in the matter of R. Rachaiah v. Home Secretary, Bangalore 1 which states as under:- “10. …...…… 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 1 (2016) 12 SCC 172 12 {CRA No. 830 of 2018} 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.

16. Section 217 of the Cr.P.C. further provides that whenever a charge is altered or added by the Court after the commencement of 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 witness which the Court thinks to be material in regard to the altered or additional charge. The facts in the matter of R. Rachaiah (supra) are identical to the facts of the present case. In that case the accused persons therein were initially charged for offence under Section 306 of the IPC for abetment to suicide of one Dr. Shivkumar and at the fag- end of the trial therein, the charge for offence under Section 302 of the IPC was framed against the appellants therein, to which their Lordships of the Supreme Court 13 {CRA No. 830 of 2018} have held that the framing of the charge at the fag-end of the trial gives altogether a different complexion and dimension to the prosecution case and further held that the charges for offence under Sections 302 and 306 of the IPC cannot stand together and observed as under:- “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 14 {CRA No. 830 of 2018} 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.

16. 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 v. State of A.P. (1997) 5 SCC 348)]”

17. In the matter of Sangaraboina Sreenu v. State of A.P 2 ., the trial Court convicted the appellant therein for offence under Section 302 of the IPC, which was set aside by the High Court in the appeal preferred by the appellant therein and the High Court convicted the appellant for offence under Section 306 of the IPC, thereafter, in the appeal preferred by the appellant therein, their Lordships 2 (1997) 5 SCC 348 15 {CRA No. 830 of 2018} of the Supreme Court have held that offence under Section 306 of the IPC cannot be said to be a minor offence in realtion to an offence under Section 302 of the IPC within the meaning of Section 222 of CrPC for the two offences are of distinct and different categories and held as under:-

2. This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302 IPC — which was the only charge framed against him — the High Court could not have convicted him of the offence under Section 306 IPC. It is true that Section 222 CrPC entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 CrPC for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof.

18. At this stage, it would be appropriate to notice Section 221 of the CrPC which provides when the alternative 16 {CRA No. 830 of 2018} charge can be framed. Section 221 of the Cr.P.C. states as under:-

221. Where it is doubtful what offence has been committed. – (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub- section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

19. A careful reading of the provisions contained in Section 221 of the CrPC would show that the doubt has to be as to the nature of the offence and not about the facts. If in a given case, on the facts which can be proved by the prosecution, it is doubtful which of the offence the said facts will constitute the framing of charge in the alternative is permissible. Section 221 of the CrPC is not 17 {CRA No. 830 of 2018} intended to be applied to a case where the facts are in doubt. Ordinarily, an alternative charge cannot be framed in respect of distinct offences. The offence under Section 302 of the IPC and the offence under Section 306 are distinct. The ingredients of the two provisions are altogether different. The prosecution has to take a stand whether it is a case of murder or suicide. The prosecution cannot say that the accused has murdered the deceased and if the deceased has committed suicide, the accused has abetted the commission of suicide. The framing of such charge is not permissible under Section 221 of the CrPC as there is a doubt about the facts which can be proved and in that eventuality Section 221 of the CrPC has no application. [See :- Jitendra Kumar and others v. State (Delhi Admn.) Delhi 3 & Prasoon Guta and others v. State of Uttar Pradesh 4 ]. 3 1990 SCC OnLine Del 468 4 2010 SCC OnLine All 1887 18 {CRA No. 830 of 2018}

20. Accordingly, in light of principles of law laid down in the aforesaid judgments as well as the provisions contained in Section 221 of the CrPC, the question of framing of charge in alternative can arise when there is no doubt about facts which can be proved, but doubt is as to what offence will be constituted on those facts. It is not permissible, in law, to frame a charge for accused having abetted the suicide and a charge in alternative of murder, as it shows doubt as to facts. The offences under Sections 306 & 302 of the IPC are diametrically opposite to each other. The ingredients of two Sections are different and framing of charge in alternative, is likely to prejudice the accused person which is not permissible. In view of the aforesaid discussion and analysis, we are of the considered opinion that the trial Court is absolutely unjustified in framing the charge for offence under Section 302 of the IPC, in alternate charge of Section 306 of the IPC and that has caused serious prejudice to the appellant 19 {CRA No. 830 of 2018} herein, vitiating his conviction for offence under Section 302 of the IPC.

21. In addition to above finding, we will also consider the merits of the case, whether the trial Court has rightly convicted the appellant for offence under Section 302 of the IPC ?

22. Dr. Narendra Golan (PW-12), who has conducted the postmortem of the deceased Kumari Roshani Lahre, in the postmortem report (Ex.P/9) has only opined that the cause of death was asphyxia due to drowning and has not opined whether the nature of death was homicidal, suicidal or accidental. However, the trial Court in paragraph No. 14 of its judgment has held that the nature of the death of the deceased would be suicidal or homicidal, but ultimately, recorded the finding in paragraph 42 of its judgment that the death of the deceased Kumari Roshni Lahre was homicidal in nature only on the basis of the fact that there was love affair 20 {CRA No. 830 of 2018} between the appellant and the deceased and the appellant and the deceased were lastly seen together on 14.03.2016 and the dead body of the deceased was found on

16.03.2016. Further, the trial Court has relied upon the motive to base the conviction of the appellant as the appelland did not want to marry the deceased. Theory of last seen together:-

23. The trial Court has found the theory of last seen together proved on the basis of statements of Hemin Lahre (PW-4), Uttara Bai (PW-6), Mukesh (PW-7) and Dharmendra Kumar (PW-10). However, the appellant and the deceased Kumari Roshani Lahre were seen together on 14.03.2016 at about 11:30 am, and the dead body of the deceased was found on 16.03.2016 at about 7:30 am, as such, there is a considerable time gap of about 44 hours when the appellant and the deceased were last seen together and the dead body of the deceased was found. 21 {CRA No. 830 of 2018}

24. At this stage, it would be appropriate to notice the relevant judgments of the Supreme Court in this regard.

25. In the matter of State of Goa v. Sanjay Thakran and another5, their Lordships of the Supreme Court found that there was considerable time gap of approximately 8½ hours when the deceased was last seen alive with the accused persons and their Lordships held that there being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.

26. In the matter of Navaneethakrishnan v. State by Inspector of Police6, the Supreme Court has held that though the evidence of last seen together could point to the guilt of the accused, but this evidence alone cannot discharge the burden of establishing the guilt of the 5 6 (2007) 3 SCC 755 (2018) 16 SCC 161 22 {CRA No. 830 of 2018} accused beyond reasonable doubt and requires corroboration, and observed in paragraph 22 as under:- “22. PW 11 was able to identify all the three accused in the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration.” 23 {CRA No. 830 of 2018}

27. Coming to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid from the statements of Hemin Lahre (PW-4), Uttara Bai (PW-6), Mukesh (PW-7) and Dharmendra Kumar (PW- 10), that on 14.03.2016 between 11:30 am and 12:30 noon the appellant and the deceased were last seen together, whereas, the dead body of the deceased was recovered on 16.03.2016 at about 7:30 am vide Ex.P/6 (merg intimation) with a time gap of about 40-43 hours and, therefore, there is considerable time gap between the appellant and the deceased were seen together and the proximate time of crime and, as such, in light of the decision of Supreme Court in the matter of State of Goa (supra) theory of last seen together is of no use to the prosecution and even otherwise, only on the basis of evidence of theory of last seen together appellant could not be convicted that too for offence under Section 302 of the IPC as in light of the decision of the Supreme Court 24 {CRA No. 830 of 2018} in the matter of Navaneethakrishnan (supra) it requires corroboration to base the conviction of the appellant. Motive:-

28. So far as the motive of the offence is concerned, it is well settled that motive of the offence in case of circumstantial evidence is relevant fact under Section 8 of the Evidence Act. In the instant case, the motive of the offence the prosecution has projected and the trial Court has found established that the appellant and the deceased both had love affair, however the appellant refused to marry with the deceased which constituted the motive to commit the offence in question, but the motive has not been established at all buy the proseccution. However, even if the said fact is found to be proved as motive of the offence, even then it would not attract Section 302 of the IPC as that motive alone can hardly be a ground for conviction in absence of any other circumstantial evidence as we have already held that the theory of last seen together is of no use to the prosecution as there is 25 {CRA No. 830 of 2018} considerable time gap between the appellant and the deceased were last seen together and when the dead body of the deceased was found.

29. In serious offences like murder, the Court always searches for the motive and the motive always plays an important role. Motive is of great importance in cases based on circumstantial evidence, and if there is absence of such motive, it is always a circumstance in favour of the accused and against the prosecution. Motive, however adequate, cannot sustain a criminal charge in absence of clear and cogent evidence pointing to the guilt of the accused and motive alone can hardly be a ground for conviction in absence of any other circumstantial evidence. [See: Sampath Kumar v. Inspector of Police, Krishnagiri7]. As such, the appellant is entitled for acquittal on the basis of benefit of doubt as both the charges for offences under Sections 302 and 306 of the IPC cannot dwell together and even the prosecution has 7 (2012) 4 SCC 124 26 {CRA No. 830 of 2018} not proved the death of the deceased to be homicidal in nature and also failed to prove its case beyond reasonable doubt. Conclusion:-

30. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 30.01.2018 passed by the trial Court, is hereby set aside and the appellant is entitled for acquittal on the basis of benefit of dobut. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC.

31. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/ Sd/- (Sanjay K. Agrawal) Judge Sd/- (Deepak Kumar Tiwari) Judge Ankit