SMT. CHINTAMBARAMMA & ANR.versusSTATE OF KARNATAKA

946                     [2019] REPORTS
               SUPREME COURT   12 S.C.R. 946               [2019] 12 S.C.R.


A                   SMT. CHINTAMBARAMMA & ANR.
                                        v.
                           STATE OF KARNATAKA
                       (Criminal Appeal No.1258 of 2019)
B                              AUGUST 22, 2019
            [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
             Penal Code, 1860 – s.302 r/w s.34 – Case based on
      circumstantial evidence – Marriage of ‘S’ was solemnised with one
      ‘LM’ in 2006 – FIR was lodged in 2009 by CW-1 that ‘S’ has been
C
      killed by the appellants (mother-in-law and sister-in-law of ‘S’) along
      with ‘LM’ and others – Trial Court convicted the appellants and
      ‘LM’ for having conspired the murder of ‘S’ with accused nos.4 and
      5, however accused nos.6 to 8 were acquitted – High Court acquitted
      ‘LM’ but maintained sentence of the appellants – On appeal, held:
D     Entire prosecution proceeded on the basis that accused nos.4 and
      5 were the actual assailants – Accused nos.4 and 5 were never
      apprehended – Charge of conspiracy against the appellants with
      accused nos.4 and 5 has not found favour either with the Trial
      Court or with the High Court – Conviction of the appellants is
      probably on the basis of the lack of explanation of the injuries
E
      suffered on the person of the deceased – However, from the statement
      of PW-20, tenant living on the ground floor of the house in which
      the appellants and the deceased were residing, it is found that there
      were five persons who were performing Puja and two of them were
      Swamis – Chain of circumstances has not been completed so as to
F     lead to only one conclusion that the appellants and the appellants
      alone were responsible for committing the crime – Since the
      prosecution story proceeded on the basis that the role of the
      appellants is that of conspirators but having failed to prove the
      charge of conspiracy, the appellants could not be convicted for the
      offence u/s.302 – Such conviction has caused not only prejudice
G
      but also failure of justice, therefore, conviction cannot be sustained
      – Appellants are acquitted of the charges levelled against them.
           Code of Criminal Procedure, 1973 – Omission to frame
      charges and consequent prejudice to the accused – Discussed.
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                                       946
   CHINTAMBARAMMA & ANR. v. STATE OF KARNATAKA                         947


      Allowing the appeal, the Court                                   A
      HELD: 1.1 The prosecution case is based upon testimony
of PW-19 and PW-20 who are the tenants and living on the ground
floor of the house in which the appellants and the deceased were
residing. PW-19 in his examination-in-chief deposed that accused
No. 2 sprinkled water on the face of deceased when he along            B
with his wife went to their house on the asking of the appellants.
In cross-examination, the question asked is about enmity with
the husband of the deceased in respect of payment of rent.
[Para 11] [952-F]
       1.2 The statement of PW-20, in fact, proves the presence        C
of two other persons on the date of occurrence and that there
were Swamis performing the Puja. Therefore, the findings
recorded by the High Court that Investigating Officer botched
up the investigation against the appellants are based upon
surmises even when the prosecution witness has deposed to this
effect. The entire prosecution proceeded on the basis that accused     D
Nos. 4 and 5 were the actual assailants. Accused Nos. 4 and 5
were never apprehended. The charge of conspiracy against the
appellants with accused Nos. 4 and 5 has not found favour either
with the Trial Court or with the High Court. [Paras 13-14]
[953-C-D]                                                              E
      1.3 The conviction of the appellants is probably on the basis
of the lack of explanation of the injuries suffered on the person of
the deceased. However, it is found from the statement of PW-20
that there were five persons who were performing Puja and two
of them were Swamis. Thus, the appellants cannot be held guilty        F
for the offence punishable under Section 302 read with Section
34 IPC. The chain of circumstances has not been completed so
as to lead only one conclusion that the appellants and the
appellants alone were responsible for committing the crime. The
charge No. 3 against the appellants was that accused Nos. 4 and
5 have conspired with the appellants by receiving money.               G
However, both the Courts have found the charge of conspiracy
as not proved. [Paras 15, 17] [953-E-F; 954-D]
      1.4 The question as to whether omission to frame an
alternative charge under Section 302 IPC is an illegality that cuts
                                                                       H
948            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A     at the root of the conviction and makes not invalid or whether it
      is a curable irregularity, has been examined by Supreme Court
      from time to time. Since the prosecution story proceeded on the
      basis that the role of the appellants is that of conspirators but
      having failed to prove the charge of conspiracy, the appellants
      could not be convicted for the offence under Section 302 IPC.
B
      Such conviction has caused not only prejudice but also failure of
      justice, therefore, conviction cannot be sustained. The appellants
      are acquitted of the charges levelled against them. They shall be
      released forthwith, if not required in any other case. [Paras 18,
      20, 21] [954-E; 955-C]
C           Willie (William) Slaney v. The State of Madhya Pradesh
            AIR 1956 SC 116 : [1955] SCR 1140 – followed.
            Mulakh Raj v. Satish Kumar (1992) 3 SCC 43 :
            [1992] 2 SCR 484; Main Pal v. State of Haryana
            (2010) 10 SCC 130 : [ 2010] 11 SCR 336 – relied on.
D
                                Case Law Reference
            [1992] 2 SCR 484               relied on            Para 16
            [1955] SCR 1140                followed             Para 18
            [2010] 11 SCR 336              relied on            Para 19
E
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 1258 of 2019
           From the Judgment and Order dated 20.11.2017 of the High Court
      of Karnataka at Bengaluru in Criminal Appeal No. 193 of 2012
F           Nikhil Goel, Ashwin V.Kotemath, Mrs. S. Usha Reddy, Advs. for
      the Appellants.
            V. N. Raghupathy, Manendra Pal, Advs. for the Respondent.
            The Judgment of the Court was delivered by
G           HEMANT GUPTA, J.
            1. Leave granted.
            2. Chintambaramma, Mother-in-law and Saraswathi, Sister-in-law
      of the deceased Sahitya are in appeal against the judgment dated
      November 20, 2017 maintaining conviction of the appellants for an offence
H     punishable under Section 302 read with Section 34 IPC. The appellants
   CHINTAMBARAMMA & ANR. v. STATE OF KARNATAKA                                 949
               [HEMANT GUPTA, J.]

were sentenced to imprisonment for life and a fine of Rs.10,000/- each         A
was imposed upon them.
       3. The marriage of deceased Sahitya was solemnised with L.
Manjunatha on March 10, 2006. An FIR was lodged on August 25, 2009
by CW 1- Smt. Anjanamma that Sahitya has been killed by the appellants
along with L. Manjunatha, Lakshmi, Raghavendra and Arunakumari.                B
On the basis of FIR, the investigation was conducted by the Investigating
Officer Manjunath (PW-18). Dr. S. Venkataraghava (PW-21) conducted
postmortem. He noticed multiple nail scratches, abrasions over the face,
around the mouth, maxilla, over the right-side neck, nail scratch abrasions
over the lower part of the middle of neck and inner aspect of the right-
side lower lip. Earlier, Dr. Bhakthavatsala (PW-22) initially examined         C
the deceased when called by the Ramesh (PW-19). He reported that
she was dead.
        4. Initially, the allegations against the appellants were of demand
of dowry and that the assailants were Adinarayana, accused No. 4 and
Venkatesna, accused No. 5 who committed the act of murder in                   D
conspiracy with the other accused. The relatives of the deceased were
examined as Anjanamma (PW-1), Obalesh (PW-3), Shankar (PW-4),
Harikrishna (PW-6) and Vijayakumar (PW-7). They have not supported
the prosecution case as they turned hostile. There is no evidence of
demand of dowry or cruelty on account of demand of dowry. The learned          E
trial court recorded the following findings:
      “34. So, from the evidence on record, there is no cogent and
      clinching evidence to believe in the case of the prosecution that
      the accused were ill-treating and harassing the deceased Sahitya
      demanding her to bring more dowry from her parents house and             F
      also A.I had an illicit relation with A.8 and due to this reason, they
      used to assault and abuse the deceased Sahitya. Therefore, the
      prosecution has miserably failed to prove the alleged guilt against
      the accused beyond all reasonable doubts that the accused were
      ill-treating and harassing the deceased. Hence, I answer point
      No. 2 in the negative.”                                                  G
      5. However, the learned Trial Court convicted the appellants and
L. Manjunatha, husband of the deceased having conspired the murder
of Sahitya with accused Nos. 4 and 5 but there is no evidence against
accused Nos. 6 to 8. Consequently, accused Nos. 6 to 8 were acquitted
                                                                               H
950            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     by the Trial Court. However, in appeal, the High Court acquitted L.
      Manjunatha but maintained sentence upon the appellants. While
      convicting the appellants, the High Court recorded the following findings:
            “16. …The conduct of accused Nos. 2 and 3 going to the house
            of PW-20 and staying there for two hours has remained a mystery.
B           According to PW.20, accused Nos.2 and 3 returned to their house
            at about 6.00 p.m. Further, her evidence suggests that two
            strangers who had come to the house of the accused had gone
            away at about 5.00 p.m. Thereafter, at about 8.30 p.m., accused
            Nos. 2 and 3 are stated to have called PW-19 her husband stating
            that the deceased was not waking up. PW-19 has deposed that
C           he brought PW-22 Dr. Bhakthavatsala who told them that the
            death might have taken place about three hours earlier to his
            examination. If this timing is accepted, the death might have taken
            place only after 5.00 p.m. or 6.00 p.m. that is, after accused Nos.
            2 and 3 returned to their house. Thus, from the evidence of PW-
D           19 and PW-20, it could safely inferred that when the deceased
            met with her death, only accused Nos. 2 and 3 were in the house.
            Therefore, the theory put forward by the prosecution that accused
            Nos. 4 and 5 murdered the deceased when accused Nos. 2 and 3
            were not in the house, appears to be highly improbable and
            unbelievable.”
E
            6. The High Court further held that the conduct of the appellants
      pretending that the deceased was sleeping when they informed Ramesh
      (PW-19) and Saroja (PW-20), throws serious doubts on their conduct
      and that the subsequent conduct of the appellants also belies the theory
      of murder having been committed by any outsider or by accused Nos. 4
F     and 5 as sought to be made out by the prosecution. The Court observed
      as under:
            “19. We are conscious of the fact that the conclusion arrived at
            by us holding only accused Nos. 2 and 3 guilty of the above offence
            is substantially at variance with the case set up by the prosecution.
G           As already stated above, the specific case of the prosecution is
            that the actual murder was committed by accused Nos. 4 and 5
            pursuant to the criminal conspiracy entered into by all the accused.
            As a matter of fact, an argument is also advanced by the learned
            counsel for the accused contending that when the evidence
H           adduced by the prosecution is contrary to its own case, the benefit
   CHINTAMBARAMMA & ANR. v. STATE OF KARNATAKA                               951
               [HEMANT GUPTA, J.]

      thereof has to be given to the accused. As a principle, it cannot      A
      be disputed that failure of the prosecution to prove the case set up
      by it, may entail acquittal of the accused, but in the instant case,
      on careful examination of the entire material on record, we are of
      the considered opinion that right from the inception a deliberate
      attempt has been made to introduce a false story by distorting the
                                                                             B
      true facts. On considering the material on record, we find that
      the theory of criminal conspiracy and the involvement of accused
      Nos. 4 and 5 is engineered in connivance with the Investigating
      Officer only to bail out the real offenders namely accused Nos. 2
      and 3. On careful consideration of the facts and circumstances
      brought out in the evidence, we are of the view that the story as      C
      projected by the prosecution has taken shape three days after the
      incident by making use of one of the tenants namely PW.20.”
       7. Learned counsel for the appellants argued that the High Court
has committed patent illegality in convicting the appellants even when
there was no allegation of demand of dowry or harassment proved against      D
the appellants or even in the absence of the conspiracy of conspiring
with accused Nos. 4 and 5 to cause death of the deceased. In the
absence of any evidence of conspiracy and in the absence of any charge
against the appellants to have taken life of the deceased, the appellants
could not be convicted on the basis of probabilities. The prosecution has
to prove charge beyond reasonable doubt by complete chain of                 E
circumstances leading to a firm finding that the appellants and the
appellants alone have taken life of the deceased. In the absence of such
finding, the conviction of the appellants is not tenable.
      8. Learned counsel for the appellants refers to the charges framed
against accused Nos. 1 to 6, which read as under:                            F

      “That you A.1 on 10.3.2006 at the time of marriage received Rs.4
      lakhs cash and 100 grams of gold as dowry and thereby committed
      an offence punishable under Section 3 of Dowry Prohibition Act;
      Secondly, that you A.1 being the husband of the deceased Sahitya,      G
      you A.2, 3 and 6 to 8 being the relatives of A.1, with common
      intention subjected the deceased Sahitya to cruelty by abusing
      her and demanding to bring money from her parents house and
      used to force against her by this conduct which is of such nature
      as is likely to drive Sahitya to cause grievous injury to meet your
                                                                             H
952            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A           demand to bring cash and thereby committed an offence punishable
            under Sections 498-A read with 34 of IPC;
            Thirdly, that you A.4 and 5 on 24.8.2009 agreed to murder Sahitya
            and made conspiracy with A.1 to 3 and A.6 to 8 by receiving
            money from them and thereby committed an offence punishable
B           under Section 120-B IPC;
            Fourthly, that you A.1 to 8 with common intention on 24.8.2009 at
            4.30 p.m., at No. 27, 2nd Cross, New Byappanahalli committed
            the murder intentionally by pressing the neck of Sahitya and caused
            her death and thereby committed an offence punishable under
C           Sections 302 read with 34 IPC.”
            9. The Trial Court has returned findings that Charge Nos. 1, 2 and
      4 are not proved. However, the High Court has returned a finding of
      lack of conspiracy but on the inference, convicted the appellants.
             10. The High Court found that the Investigating Officer has played
D     a dubious role in introducing a theory of criminal conspiracy and this act
      is calculated to help and save the real offenders. The Investigating
      Officer botched up the investigation and instituted false charges and
      convicted the appellants although the prosecution was launched only
      against accused Nos. 4 and 5 as the assailants with conspiracy against
E     role of the appellants being as of conspirators.
             11. The prosecution case is based upon testimony of Ramesh
      (PW-19) and Saroja (PW-20) who are the tenants and living on the
      ground floor of the house in which the appellants and the deceased were
      residing. Ramesh (PW-19) in his examination-in-chief deposed that
F     accused No. 2 Saraswathi sprinkled water on the face of deceased
      Sahitya when he along with her wife went to their house on the asking
      of the appellants. In cross-examination, the question asked is about
      enmity with the husband of the deceased in respect of payment of rent.
             12. On the other hand, Saroja (PW-20) deposed that the husband
      of the deceased came to her house and asked her husband that Sahitya
G
      is sleeping and not waking up in spite of her attempts. They went to the
      house and tried to wake her up. Since she did not respond, her husband
      called the Doctor. She deposed that Raghavendra, accused No. 6 had
      quarrel with Sahitya 2-3 times in her presence. On the date of incident,

H
      CHINTAMBARAMMA & ANR. v. STATE OF KARNATAKA                             953
                  [HEMANT GUPTA, J.]

she had seen the deceased at 3 p.m. when she was drying the clothes.          A
She deposed that two unknown persons came and killed Sahitya by
smothering. In cross-examination, she deposed that accused has tortured
Sahitya for ten times but she had not seen the parents of the deceased
coming to the house. She also reiterated that on August 24, 2009, two
unknown persons, who came to the house of the deceased, had earlier
                                                                              B
visited the house twice. She further deposed that when Puja was
performed in the house of Sahitya, there were five persons. Puja was
held for two hours. Sahitya and two Swamis were doing Puja. She did
not notice the time when two Swamis came out from Sahitya’s house.
       13. The statement of Saroja (PW-20), in fact, proves the presence
of two other persons on the date of occurrence and that there were            C
Swamis performing the Puja. Therefore, the findings recorded by the
High Court that Investigating Officer botched up the investigation against
the appellants are based upon surmises even when the prosecution witness
has deposed to this effect.
      14. The entire prosecution proceeded on the basis that accused          D
Nos. 4 and 5 were the actual assailants. Accused Nos. 4 and 5 were
never apprehended. The charge of conspiracy against the appellants
with accused Nos. 4 and 5 has not found favour either with the Trial
Court or with the High Court.
       15. The conviction of the appellants is probably on the basis of the   E
lack of explanation of the injuries suffered on the person of the deceased.
However, we find from the statement of Saroja (PW-20) that there were
five persons who were performing Puja and two of them were Swamis.
Thus, the appellants cannot be held guilty for the offence punishable
under Section 302 read with Section 34 IPC. The chain of circumstances        F
has not been completed so as to lead only one conclusion that the
appellants and the appellants alone were responsible for committing the
crime.
       16. In Mulakh Raj v. Satish Kumar1, the Court succinctly restated
the legal position in paragraph 4 as under:                                   G
         “4. ……Undoubtedly this case hinges upon circumstantial
         evidence. It is trite to reiterate that in a case founded on
         circumstantial evidence, the prosecution must prove all the

1
    (1992) 3 SCC 43
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954               SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A              circumstances connecting unbroken chain of links leading to only
               one inference that the accused committed the crime. If any other
               reasonable hypothesis of the innocence of the accused can be
               inferred from the proved circumstances, the accused would be
               entitled to the benefit. What is required is not the quantitative but
               qualitative, reliable and probable circumstances to complete the
B
               chain connecting the accused with the crime. If the conduct of
               the accused in relation to the crime comes into question the previous
               and subsequent conduct are also relevant facts. Therefore, the
               absence of ordinary course of conduct of the accused and human
               probabilities of the case also would be relevant. The court must
C              weigh the evidence of the cumulative effect of the circumstances
               and if it reaches the conclusion that the accused committed the
               crime, the charge must be held proved and the conviction and
               sentence would follow.”
             17. We find that Charge No. 3 against the appellants was that
D     accused Nos. 4 and 5 have conspired with the appellants by receiving
      money. However, both the Courts have found the charge of conspiracy
      as not proved. Whether, in these circumstances, the appellants could be
      convicted for an offence under Section 302 IPC even without there
      being charge to this effect?
E            18. The question as to whether omission to frame an alternative
      charge under Section 302 IPC is an illegality that cuts at the root of the
      conviction and makes not invalid or whether it is a curable irregularity,
      has been examined by this Court from time to time. One of the first
      judgments is Willie (William) Slaney v. The State of Madhya Pradesh2
      where the Constitution Bench explained the concept of prejudice caused
F     to the accused and failure of justice to vitiate trial in terms of present
      Section 464 of the Code. It was held as under:
               “5. Before we proceed to set out our answer and examine the
               provisions of the Code, we will pause to observe that the Code is
               a code of procedure and, like all procedural laws, is designed to
G              further the ends of justice and not to frustrate them by the
               introduction of endless technicalities. The object of the Code is to
               ensure that an accused person gets a full and fair trial along certain
               well-established and well-understood lines that accord with our
      2
          AIR 1956 SC 116
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      CHINTAMBARAMMA & ANR. v. STATE OF KARNATAKA                                  955
                  [HEMANT GUPTA, J.]

          notions of natural justice. If he does, if he is tried by a competent    A
          court, if he is told and clearly understands the nature of the offence
          for which he is being tried, if the case against him is fully and
          fairly explained to him and he is afforded a full and fair opportunity
          of defending himself, then, provided there is substantial
          compliance with the outward forms of the law, mere mistakes in
                                                                                   B
          procedure, mere inconsequential errors and omissions in the trial
          are regarded as venal by the Code and the trial is not vitiated
          unless the accused can show substantial prejudice. That, broadly
          speaking, is the basic principle on which the Code is based.”
      19. Later, in Main Pal v. State of Haryana3, this Court found the
following principles relevant consequent to omission of framing charges.           C
The Court held as under:
          “17. The following principles relating to Sections 212, 215 and
          464 of the Code, relevant to this case, become evident from the
          said enunciations:
                                                                                   D
          (i) The object of framing a charge is to enable an accused to have
          a clear idea of what he is being tried for and of the essential facts
          that he has to meet. The charge must also contain the particulars
          of date, time, place and person against whom the offence was
          committed, as are reasonably sufficient to give the accused notice
          of the matter with which he is charged.                                  E

          (ii) The accused is entitled to know with certainty and accuracy,
          the exact nature of the charge against him, and unless he has
          such knowledge, his defence will be prejudiced. Where an accused
          is charged with having committed offence against one person but
          on the evidence led, he is convicted for committing offence against      F
          another person, without a charge being framed in respect of it,
          the accused will be prejudiced, resulting in a failure of justice. But
          there will be no prejudice or failure of justice where there was an
          error in the charge and the accused was aware of the error. Such
          knowledge can be inferred from the defence, that is, if the defence      G
          of the accused showed that he was defending himself against the
          real and actual charge and not the erroneous charge.

3
    (2010) 10 SCC 130

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956             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A           (iii) In judging a question of prejudice, as of guilt, the courts must
            act with a broad vision and look to the substance and not to the
            technicalities, and their main concern should be to see whether
            the accused had a fair trial, whether he knew what he was being
            tried for, whether the main facts sought to be established against
            him were explained to him fairly and clearly, and whether he was
B
            given a full and fair chance to defend himself.”
              20. In view of the aforesaid judgments, we find that since the
      prosecution story proceeded on the basis that the role of the appellants
      is that of conspirators but having failed to prove the charge of conspiracy,
      the appellants could not be convicted for the offence under Section 302
C     IPC. Such conviction has caused not only prejudice but also failure of
      justice, therefore, conviction cannot be sustained.
            21. Consequently, the appeal is allowed. The appellants are
      acquitted of the charges levelled against them. They shall be released
      forthwith, if not required in any other case.
D

       Divya Pandey                                                 Appeal allowed.




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G




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