R.Rachaiah vs Home Secretary, Bangalore

Though the case history is quite lengthy, having regard to the aspect which we intend to focus on and the fact that on that aspect only these appeals warrant to succeed, it is not necessary to burden this judgment with unnecessary factual details. We would, therefore, be eschewing those facts which are irrelevant for our purpose and would be taking record of such facts that would be relevant to the issue on which we intend to focus.

The appellant/R. Rachaiah (hereinafter referred to as “A-1”) is the father of one Prabhavati. Her marriage was solemnised with Dr. N. Shivakumar (since deceased) at Mysore on 28.05.2000. Within two days of the marriage, i.e. on 30.05.2000, Prabhavati consumed poison and as a result she fell unconscious and was taken to B.M. Hospital at Mysore in a critical condition. In the night when Prabhavati had consumed poison, Dr. Shivakumar left Mysore and had gone back to Bangalore. On 31.05.2000, he along with his elder brother Rudraiah (PW-5) and uncle Andanaih traveled to Mysore in a hired Tata Sumo to meet Prabhavati in the hospital. However, when they were about 30 Kms. away from Mysore, as per the prosecution, Dr. Shivakumar telephoned from one STD booth and enquired about the condition of Prabhavati when he was informed that she was dead. On receiving this information, Dr. Shivakumar attempted to commit suicide by slitting his throat by a blade at about 04.30 p.m. At that time he was in the car with his brother and uncle which was being driven to Mysore. In an injured condition, he was shifted to the General Hospital at Bidadi for urgent medical care. The case was also registered against him for attempt to commit suicide under Section 309 IPC with the Police Station at Bidadi. Next day, he was shifted to Shekhar Hospital at Bangalore and admitted in ICU. In that hospital, he tried to commit suicide again by consuming 30 Avil tablets when he was still in the hospital.

As per the story put-forth by the prosecution, on 03.06.2000, an agreement was reached between A-1 on the one hand and the father and brother of Dr. Shivakumar on the other hand to end the marital tie/disputes and it was agreed that A-1 would be paid a sum of Rs. 8 lakhs to compensate for the marriage expenses which was incurred by him on the marriage of his daughter Prabhavati. While the condition of Prabhavati was still critical and she was in the hospital, on 07.06.2000, her statement was recorded wherein she allegedly said that in the night of 30.05.2000 i.e. about 10 p.m. while she was in the bedroom with Dr. Shivakumar, he had administered poison to her suspecting that she had illicit relationship with her maternal uncle. Based on this statement of Prabhavati, a case i.e. Crime No. 82/2000 was registered under Section 498A and 307 IPC against Dr. Shivakumar at Mysore Police Station. At that time, as already pointed out above, Dr. Shivakumar was also in the Shekhar Hospital in Bangalore. On 08.06.2000, he went to the toilet attached to the ICU and cut his wrist vein, which was another attempt on his part to commit suicide.

On 09.06.2000, Dr. Shivakumar was got discharged from Shekhar Hospital at the instance of these appellants. The prosecution alleges that it was against medical advice that the accused persons got him discharged and took him away to the house of A-1. On 10.06.2000, the dead body of Dr. Shivakumar was found on the railway track near Naguvanahalli, which is 30 Kms. away Mysore. The body of Dr. Shivakumar was cut into two pieces due to the train running over him. The post-mortem of the dead body was conducted. However, no case against anybody was registered either for suicidal or homicidal death even after receiving the post-mortem report. The dead body of Dr. Shivakumar was taken and duly buried by performing all last rites. It appears that few days thereafter, i.e. on 28.06.2000, the father of the deceased submitted a written complaint to the Secretary, Home Department, Government of Karnataka. On the basis of this complaint, fresh investigation to find out the cause of death was started. The body of Dr. Shivakumar was exhumed and again medically examined. Even the said examination did not implicate anybody. However, the father of the deceased persisted with his complaint which led to constitution of a Committee of five expert doctors which gave its report (Exhibit P-36). Further investigation was carried out on that basis and, ultimately, on 23.01.2002, charge sheet was submitted in the Court. In this charge sheet filed by the police, after investigation, it was alleged that a prima facie case against all the three accused persons was made out under Section 306 and 365 read with Section 34 IPC. A-1 was arrested on 23.01.2002 itself and was released on bail on 06.03.2002. Thereafter, charges were framed by the Court of Sessions on 19.02.2004 under Sections 306 and 365 read with Section 34 IPC against all three accused. Trial proceeded on the basis of these charges. In all, 27 witnesses were examined which included seven Police Officers, four Doctors and two Narcotic Experts. When PW-26 was examined on 25.07.2006, thereafter, an application was filed by the prosecution under Section 216 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) for framing of additional charge under Section 302 IPC. This application was resisted by the accused persons. However, their objections were rejected and on 30.09.2006, the Trial Court framed “ALTERNATIVE CHARGE” under Section 302 IPC read with Section 34 IPC. As mentioned above, by that time, 26 witnesses had already been examined. Thereafter, only one more witness i.e. PW-27/Deva Reddi, Deputy Superintendent of Police was examined. The statement of accused persons under Section 313 of the Code was also recorded.

When we apply the aforesaid principles to the facts of this case, the outcome becomes obvious. The accused persons were initially charged for an offence under Section 306 of the IPC, i.e. abetting suicide which was allegedly committed by Dr. Shivakumar. It is manifest therefrom that the entire case of the prosecution, even after repeated investigations and medical examination of the dead body/skeleton of Dr. Shivakumar, was that the cause of the death was suicide. Thus, after the investigation, what the prosecution found was that Dr. Shivakumar had committed suicide 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.

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-

In the instant case, there is no cross-examination of these witnesses insofar as charge under Section 302 IPC is concerned. The trial, therefore, stands vitiated and there could not have been any conviction under Section 302 of the IPC.

The appeals are, accordingly, allowed.

MAY 05, 2016.