- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 494 OF 2003 Shivajirao Dattu Bhosale, Adult) Occu.- Lecturer, Resident of ) Appellant Bhangewadi, Taluka Karad, ) (Original District Satara ) Accused) Vs. The State of Maharashtra ) Respondent Mr. Nitin Pradhan, Sr. Advocate with Ms. S.D. Khot & Ms. Ameeta Kuttikrishnan i/b Moheen Pradhan, Advocate for the appellant. Mrs. S.D. Shinde, APP for the respondent. CORAM : SRI R.M.S. KHANDEPARKAR,& SRI. A.A. SAYED, JJ. DATE : JANUARY 22, 2008. ORAL JUDGMENT [PER:SRI R.M.S. KHANDEPARKAR.J.] . This appeal asises from the judgment and order dated 8th April 2003 passed by the Addl. Sessions Judge Satara in Session Case No. 196 of 1995. By the impugned judgment and order the appellant has been held guilty under Section 302 and 498-A of Indian Penal Code, and the appellant has been sentenced to undergo imprisonment for life, in addition to - 2 - the fine to be paid and in default for further imprisonment as specified in the impugned judgment and order. The appellant has been acquitted of the offences punishable under Section 323, 504, 506 and 201 of I.P.Code. The accused was arrested on 27th of July 1995 and during pendency of the trial, the appellant was released on bail. However, consequent to the impugned judgment and order, he was re-arrested to undergo the sentence imposed under the impugned order. 2. The appellant was married to deceased Rani on 12th of December 1989. At the time of marriage and even thereafter for a period of two years, the appellant continued to be unemployed, while Rani, who was in first year of Arts faculty at the time of the marriage, continued her study and completed post-graduation after marriage. Two years after the marriage, the appellant was able to secure job as a lecturer at Satara. After one year of his service as lecturer, he was transferred to Umbraj, which is also in the district of Satara. While the appellant was employed as lecturer in a college at Umbraj, - 3 - it is the case of the prosecution that, he developed love affair with a girl student from the same college. For the sake of brevity, we would refer the concerned girl as the said girl. Meanwhile wife of the appellant delivered a male child in the year 1994. In June 1995 the appellant was transferred to Koregaon which is also situated in the district of Satara. The appellant on account of his transfer at Koregaon, hired a premises on lease from one Sunil Bharate at Koregaon and continued to reside therein since July 1995 along with his family. 3. It is the case of the prosecution that during the night between 24th and 25th July 1995, the appellant approached his landlord Bharate stating that his wife had suffered heart attack and consequently she was unconscious and she was required to be taken to Karad hospital where his brother was employed. Ignoring the advice of the landlord and others to get first aid and immediate treatment to his wife by a local doctor at Koregaon, the appellant took his wife to Karad, where his brother refused to help him - 4 - and sent them back to Koregaon. She was brought back to Koregaon at 6.30 a.m. and then she was examined by Dr. Hutkar, and on his advise further by another doctor namely Dr. Pandit, who on examination declared her dead the body of Rani thereafter was again shifted to Karad where it was subjected to post mortem examination on 26th July 1995 and thereafter the body was delivered to the brother of the deceased at about 4.00 p.m. and funeral rites were performed at Karad itself at about 8.30 p.m. On the next day, the FIR was lodged by the brother of the deceased, and it was followed by necessary investigation and consequently the appellant was arrested and charge sheeted for the said offences, as stated above. 4. The prosecution examined 11 witnesses in support of the accusations whereas the appellant examined one witness, while four other witnesses which were sought to be summoned by the appellant, allegedly refused to depose in the matter. The appellant placed on record an application being Exh.98 making grievance about the pressure tactics alleged - 5 - to have been adopted by the police authorities and that being the cause for reluctance on the part of the said four witnesses to depose in the matter. The trial Court by the impugned judgment convicted the appellant and sentenced him as stated above. 5. The impugned judgment is sought to be challenged firstly on the ground that the drastic alterations made in the charge framed against the appellant has resulted in great prejudice and denial of fair opportunity to the appellant to meet the case of the prosecution. Secondly, that there is absolutely no evidence in relation to the charge under Section 498-A of I.P.Code and in any case the allegation regarding the alleged illicit relations with the said girl cannot be construed as cruelty within the meaning of 498-A of I.P.C. Thirdly the prosecution has failed to establish any motive for the alleged guilt, and fourthly that there is no cogent evidence on record in the form of chain of events leading to the only hypothesis about the guilt of the appellant and the sole testimony of PW 2 does not find any - 6 - corroboration from the evidence on record. While canvassing these grounds, the learned senior counsel for the appellant also submitted that the trial Court failed to consider in proper perspective the evidence led by the appellant about the impossibility of the appellant’s involvement in the alleged offence. 6. While elaborating the first ground of challenge, the learned senior counsel drew our attention to the charge which was framed on 6th of May 2000 and the one modified on 31st May 2003. It was his contention that under the guise of alteration of the charge, there was drastic changes brought about in the charge framed against the appellant and after conclusion of the trial, thereby giving no opportunity to the appellant to put forth his defence with reference to the charge framed on 31st of May 2003 and that has resulted in great prejudice to the appellant. Had there been an opportunity to the appellant to defend the case with reference to the charge framed on 31st March 2003, the result of the entire proceedings would have been different. He - 7 - further submitted that on account of evidence having been already closed, there was no fair opportunity to the appellant to cross examine the witnesses with reference to the allegations, as are found in the altered charge dated 31st of March 2003. The learned APP on the other hand submitted that the so called alterations merely refer to correction of the date and timing of the offence and in substance the charge has remained the same. Besides, it was also submitted in writing by the appellant that pursuant to the alteration in the charge, he did not want to recall any witness nor he wanted to adduce any further oral evidence and in that regard our attention was drawn to Exh.103 and therefore there is no substance in the contention about denial of fair opportunity to defend the same. 7. Perusal of charge dated 6th of May 2000 which is at Exh. 10 and modified charge dated 31st of March 2003 which is at Exh. 100, discloses that there has been some alteration in relation to the first para of the charge. While the first para of charge dated 6th of May 2000 reads thus- "That you - 8 - accused on 27/5/1995 at about 9.30 hours at Subhashnagar, Koregaon, Dist. Satara did commit murder by intentionally causing death of your wife viz. Sou. Rani Shivajirao Bhosale and thereby committed an offence punishable undedr section 302 of I.P.Code and within my cognizance" whereas the first para of altered charge dated 31st March 2003 reads thus- "That you accused in the night of 24-7-95 and 25-7-95 at about 1.30 hrs. in your rented premises at Subhashnagar, Koregaon Dist. Satara did commit murder by intentionally causing death of your wife Sou. Rani by throttling and thereby committed an offence punishable U/Sc. 302 of the I.P.C. and within my cognizance." Plain reading of the above quoted paragraphs would reveal that there has been alteration in the date and timing of the offence and about description of the act which is said to have led to the commission of murder. In the earlier charge the date of the offence was 27-5-1995 and the time was 9.30 hours while in the altered charge the same referred to "24-7-1995 and 25-7-1995 at about 1.30 hours". In the altered charge the act of the accused was - 9 - described by expression "by throttling" which is said to have led to the murder of Rani. 8. Section 216 of the Criminal Procedure Code deals with the subject of alteration of charge by the Court. Sub-section (1) thereof provides that, "any Court may alter or add to any charge at any time before judgment is pronounced". The sub-section (2) thereof provides that, "every such alteration or addition shall be read and explained to the accused". The sub-section (3) provides that, "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 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". Sub-section (4) provides that,"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 prosecutor as aforesaid, the Court may - 10 - either direct a new trial or adjourn the trial for such period as may be necessary". Sub-section (5) provides that, "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 had been already obtained for a prosecution on the same facts as those on which the altered or added charge is found." 9. Section 217 of Criminal Procedure deals with the recall of witnesses when charge is altered and which provides that, "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 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, and also call any further witness - 11 - whom the Court may think to be material". 10. Section 464 of the Criminal Procedure Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub-section (1) thereof provides that, "no finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby". Sub-section (2) provides that, "if the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may - in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge, and in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks - 12 - fit; provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction". 11. The conjoint reading of above referred provisions of law in Criminal Procedure Code would at once reveal that there is no restriction imposed upon the power of Court to alter or add any charge at any stage. Undoubtedly, the discretion in that regard has to be exercised judiciously and not arbitrarily. It will all depend on the facts of each case wherein the alteration or change or addition to charge may be required. Even in cases of omission to frame the charge, the discretion is given to the Court to frame the charge and recommence the trial whereas in case of an error or irregularity in framing the charge the Court is vested with the discretion to pass an appropriate order in relation to the error or irregularity found in the charge and to take further steps as may be required in the facts and circumstances of the case. It would certainly depend upon facts of - 13 - each case. Being so, merely because the charge is altered after conclusion of the trial, that itself will not lead to a conclusion that it has resulted in prejudice to the accused. Whether it has actually resulted in prejudice to the accused or not will have to be determined on the basis of the facts of each case. 12. As already observed above, the alteration of charge in the case in hand was primarily in relation to the date and timing of the offence and secondly in relation to the description of the act on the part of the accused which has led to alleged commission of murder. While in the previous charge, the said description was missing and which has been added in the charge framed on 31st of March 2003. The date has been changed from 27th May 1995 to 24th and 25 May 1995 and the timing has been changed from 9.30 hours to 1.30 hours. Prima-facie such a charge may appear to have resulted in prejudice to the accused person as the alteration has resulted in alleging that the alleged offence having been committed by the accused on a day totally - 14 - different from one which was made known to the accused at the time of framing of charge at the commencement of the trial. Considering the same, the appellant would be perhaps, justified in contending about the alleged prejudice to him on account of the said alteration in charge. However, if one peruses the entire evidence on record, right from the testimony of PW 1 onwards, it is pertinent to note that all the witnesses have referred to an incident which had occurred on the night between 24th and 25th July 1995 and none of the witnesses have referred the date 27th May 1995 to be the date of incident. Likewise all the witnesses have referred to the timing after 1.30 hours of 25th of July 1995 and none of them have referred to the timing of 9.30 hours of 27th May 1995. The matter does not end there. In spite of the fact that original charge referred to 27th May 1995 and the witnesses having referred to 24th and 25th July 1995, the advocate on behalf of the appelant had cross-examined the witnesses at length on the basis that the witnesses were referring to the incident of 24th and 25th July 1995 and not of any incident dated 27th - 15 - May 1995. This obviously discloses that though the initial charge referred to 27th May 1995, the appellant was fully aware that the accusation which he was required to meet in the trial was with reference to incident which had occurred in the night in between 24th and 25th July 1995. This is further clear from the statement made on behalf of the appellant under pursis dated 31st of March 2003 at Exh.103 wherein the appellant and his advocate confirmed that they did not desire to recall any witness, nor to lead any further evidence consequent to the alteration in charge. In fact the pursis Exh.103 is a complete answer to the contention which are now sought to be raised about the prejudice which is alleged to have been caused to the appellant on account of alteration in charge. 13. Even as regards the description of the act on the part of the accused person which is stated to be the cause for the death of Rani, the medical evidence on record in the form of testimony of PW 10 clearly discloses that the injuries which were found on the body of Rani were possibly caused in the process of - 16 - resistance by the deceased while she was subjected to throttling and smoothering by the accused and in that regard there was specific cross examination which read thus- "it is not true to say that nail marks are possible while resisting the person who is attempted to snatch a baby from that person. I was not present at the time of throtlling". This cross examination clearly discloses that accused was fully aware of the case which he was required to face and the charges which were levelled against him related to the act of smothering the deceased by him which had led to the murder of Rani though the same was not stated with the necessary precision in the charge dated 6th May 2000, and which was supplied during the alteration in charge on 31st of March 2003. Besides, as already stated above Exh.103 rules out any possibility of any prejudice to the appellant on account of alteration in charge. Hence, the challenge on the ground of alleged prejudice on account of alteration in charge is to be rejected being totally devoid of any substance. 14. As regards the second ground of - 17 - challenge about the absence of evidence in support of charge under section 498-A of I.P.C. and alleged illicit relationship with the girl at Umbraj would not constitute the cruelty within the meaning of the said expression under section 498-A of I.P.C.,while elaborating the said ground of challenge, the learned senior counsel for the appellant referring to the testimony of PW 1 submitted that the evidence led before the trial Court nowhere finds any corroboration of the testimony of PW 1. He has further submitted that none of the letters which are produced on record ever disclosed any apprehension on the part of the deceased about her own safety. He further submitted that taking into consideration the provisions of law comprised under section 32 of the Evidence Act, the testimony of PW 1, PW 3, PW 5 was totally irrelevant, with reference to charge under section 498-A read with section 302 of I.P.C. and in that regard, reliance is placed in the decision of the Apex Court in the matter of- Gananath Pattnaik Vs. State of Orissa reported in (2002)2 Supreme Court Cases 619. - 18 - 15. PW 1 Sunil Khedkar is the brother of the deceased and he has deposed about the conduct of the accused, his relationship illtreatment to his sister, complaints by her sister regarding the conduct of the appellant while he was residing with her as well as his conduct after her death and has also produced the letters which were stated to have been written by the deceased during her life time. In his testimony, he has stated that during the life time of his sister, the accused used to ask his sister to bring money from her parents with the promise that the accused would repay the same after he was able to get himself employed. He has also stated in his testimony about insistence of appellant for male child in the family and warning that he would not cohibit with the deceased in case she was to fail to deliver a male child, about his failure to take back his sister after the delivery, his affairs with the said girl at Umbraj, his failure to be at the hospital after her body of the deceased was sent to Krishna hospital as well as thereafter at the time of her funeral, etc. - 19 - 16. In Gananath Pattanaik’s case while dealing with the scope of section 498-A of I.P.C. and in particular definition of the term "cruelty" as found in Clause (A) to the Explanation, the Apex Court has held that there was no legal evidence tendered in the case which could be made the basis for returning a finding with respect to the alleged cruelty of the accused with the deceased and that in the absence of any legal evidence produced in the case, the prosecution had failed to have established the case under section 498-A of the Indian Penal Code. The Apex Court before arriving at the said finding on the basis of evidence in that particular case while dealing with the scope of section 498-A of Indian Penal Code ruled thus- "the concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case". It is pertinent to note that the Apex Court was - 20 - dealing with a matter wherein the wife of the accused had died by hanging herself in the bath-room. During investigation it had transpired that the deceased had committed suicide on account of dowry demands, allegedly made by accused and his family members and that she was subjected to illtreatment, harassment and cruelty. 17. In the case in hand it is not a case of suicide, but it is a case of murder, coupled with harassment, not only by way of demand for money but also in the nature of causing grave injury to the health (mental) of the woman, as specified in terms of Clause (a) of Explanation to section 498-A. The testimony of the witness discloses demand of money having been communicated through the deceased herself and secondly involvement of the appellant in the affair with the said girl at Umbraj. Obviously in terms of the ruling in Gananath’s case itself, the concept of cruelty would include mental torture and it is needless to say that involvement of affair with a girl by a married person would certainly amount to mental torture to the - 21 - legally wedded wife of such person. Viewed from this angle, if we analyse the testimony of PW 1 along with the documentary evidence in the form of letters written by the deceased, certainly applying clause (1) of section 32 of the Evidence Act itself, by no stretch of imagination it can be said that such testimony and the letters would be irrelevant evidence or inadmissible evidence. 18. Section 32 of the Evidence Act provides that, "statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without any amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts - when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in