1. The petitioners - accused Nos.1 to 5, are before this Court calling in question an order dated 31.12.2021, passed in S.C.No.63/2018, by the Sessions Court in Sessions Case No.63/2018, whereby, the concerned Court allows the application under Section 216 of the Cr.P.C. filed by the prosecution insofar as it relates to the petitioners.

2. Heard Sri Srinivas N., learned counsel appearing for the petitioners and Smt.K.P.Yashodha, learned High Court Government Pleader appearing for the respondent.

3. Brief facts of the case leading to filing of the subject petition as borne out of the pleadings are as follows:

The daughter of the de facto complainant is the wife of accused No.1 - one Govardhana. Accused No.1 and the daughter of the complainant get married on 18.06.2017. The daughter of the complainant on 28.11.2017, committed suicide close to 6 months after the marriage with accused No.1. On the incident of commission of suicide, a crime is registered based upon a complaint by the de facto complainant in crime No.250/2017, on 01.12.2017 for offences punishable under Sections 498A and 304B r/w. Section 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The allegation was with regard to death caused due to demand of dowry and therefore, both Sections 498A and 304B of the IPC were alleged against the petitioners. The police after investigation file a charge sheet for the very offences that were alleged in Crime No.250/2017 for the offences punishable under Sections 498A and 304B read with 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act.

4. The trial progressed and during the trial, 3 witnesses were examined, apart from others. The three witnesses are the doctor who conducted postmortem upon the body of the deceased, the brother and the mother of the deceased. The evidence so tendered by the brother and mother of the deceased, lead the prosecution to file an application under Section 216 of the Cr.P.C. seeking incorporation of the charge for the offence punishable under Section 302 of the IPC. The concerned Court by its order dated 31.12.2021, allowed the application and permitted to rope in the charge for offence punishable under Section 302 of the IPC into the proceedings. It is this order that is called in question in the subject petition.

5. Learned counsel appearing for the petitioners would submit that at the outset, when the complaint was registered, no allegation that would touch upon any ingredients of offences punishable under Section 302 of the IPC was made against the petitioners. After the evidence is tendered, as an afterthought, the prosecution files an application for the offence of murder of the daughter of the de facto complainant. Therefore, the learned counsel would seek quashment of the said order.

6. Learned High Court Government Pleader would refute the submissions to contend that there is enough evidence for the prosecution to file an application and the concerned Court has considered the same and allowed the application. It is a matter of trial, as in the teeth of evidence of the witnesses, ingredients of Section 302 of the IPC is met.

7. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and perused the material on record.

8. The afore-narrated facts are not in dispute. A complaint comes to be registered by the mother of the deceased on 29.11.2017, reads as follows:

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The police after investigation, file a charge sheet against the petitioners for the offences punishable under Sections 498A and 304B of the IPC. It is during the course of trial, during the evidence of witnesses, namely, the brother of the deceased and the doctor, who conducted the postmortem of the deceased, the prosecution files an application under Section 216 of the Cr.P.C. Therefore, it is necessary to notice the evidence both, the examination and cross-examination of all these three witnesses.

“EXAMINATION IN CHIEF BY PUBLIC PROSECUTOR

1. Since, from 01 year 04 months 1 am working as Orthopadician in General Hospital, Challakere.

2. That on 30.11.2017 I received requisition from Nayakana Hatti police to conduct post mortem on the dead body of Smt. Nagarathna W/o Goverdhana of Nayakanaharti village, I had conducted post mortem from 12.30 p.m. to 2.30 p.m. on the same day. The dead body was moderately built and nourished, height of measuring 155 cms, black hairs of 72 cms, regior mortis absent, froth present from left nostril, blood stained discharged present left lateral angle mouth, bilateral cloudy, cornea present. Subcongunctivel haemorrarrhage present on bilateral eyes/Both the side ear lobes are torn and fresh wound present. Reddish discoloration of skin over medial side of both thighs of 2 X 2 cms size. No fractures made out. Old multiple injuries filled with scad over fore head present.

3. I find identification mark as black mole present on darsum of left foot of size 3X3 mms.

4. I opened the body and found that the skull and spin were intact. The ribs, lungs, plural membranes, threat larynx, blood vessels, reight and left side were intact. That heart aorta were intact. That stomach, small and large intestine were intact. That liver and spleen were intact, that kidneys, urinary blader, reproductive organs were intact. Discriptions of ligature mark, skin over the mark, dry and hard. Width is 1.2 cms. Length of 17 c.ms, blackish in colour, circuraference of neck 32 cms, Distance from right mastoid 7 cms, left mastoid 5 cms, chin 7 cms. Ligature knot exactly not visualised. Ligature mark present above the thyroid, cartillage. Trachia and hyoid bone were sent for F.S.L

5. That have collected in bottle

01. Pieces of heart, kidney, liver, spleen, brain and lungs.

02. Uterus and its contents.

03. stomach with its contents.

04. Trachea with hyoid bone.

05. Common salt used as preservative

6. That I have collected brown color top, Green color salwar, black color petticoat, red color underwear and handed over the same to WPC 2441. That I have kept opinion for want of F.S.L. report.

7. That I have received F.S.L. report on 15.02.2018 and gave my opinion as below:-

8. In my opinion cause of death is due to asphyxia as a result of hanging.

9. I have issued post mortem report to that effect as per Ex.P. 07 and the signature marked with Ex.P. 07(a).

10. That again to 14.02.2018 received requisition from nayakanahatti police regarding opinion as to ligature material used. I have given my opinion to that effect as per Ex.P. 08, and the signature is marked as Ex.P. 08(a). I have verified the vale measuring 87 X 40 inch green in color and opined that if the said material is used for hanging then, there is every possibility of ligature mark on the neck.

11. Now I can see the vale which already marked as M.O. 01.

12. Now I can see other cloths which already marked as M.O. 02 to 05.

Cross Examination by Sri. N.P.K. advocate.

1. That before examination of the dead body when the death was occured for that witness says that it was about 48 hours back. It is false suggest that I have issued false report in ordered to help the police.

Re-Examination -Nil.

(Typed to my dictation in the open court).”

The mother of the deceased is examined as PW.7. The evidence in both chief-examination and cross-examination reads as follows:

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The brother of the deceased is examined as PW.8. The evidence in both chief-examination and cross-examination reads as follows:

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The sister of the deceased is examined as PW.10. The evidence in both chief-examination and cross-examination reads as follows:

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The father of the deceased is examined as PW.12. The evidence in both chief-examination and cross-examination reads as follows:

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A coalesce reading of the evidence so tendered by the family members of the deceased, who had ran at the spot after the death of the deceased, is in one voice that injuries were found on the forehead, eye was bleeding, ears were torn and wounds were found on different parts of the body of the deceased. The doctor who conducted the postmortem of the body of the deceased also tenders his evidence as aforeextracted, which also vindicates the evidence tendered by the family members of the deceased.

9. In the teeth of the afore-extracted evidence of the brother of the deceased, who gives graphic details of what he has seen at the spot, when they were called to the alleged scene of crime. Therefore, it is not a case where an application is filed under Section 216 of the Cr.P.C. without there being any evidence.

10. Section 216 of the Cr.P.C. permits alteration of the charge at any stage during trial, the stage could be even after the judgment is reserved for its delivery. The Apex Court following the judgment in the case of ANANT PRAKASH SINHA @ ANANT SINHA v. STATE OF HARYANA AND ANOTHER reported in (2016) 6 SCC 105, [LQ/SC/2016/387] in the case of DR. NALLAPAREDDY SRIDHAR REDDY v. STATE OF ANDHRA PRADESH AND OTHERS reported in (2020) 12 SCC 467, [LQ/SC/2020/88 ;] ">(2020) 12 SCC 467, [LQ/SC/2020/88 ;] [LQ/SC/2020/88 ;] has held as follows:

“16. Section 216 appears in Chapter XVII CrPC. Under the provisions of Section 216, the court is authorised to alter or add to the charge at any time before the judgment is pronounced. Whenever such an alteration or addition is made, it is to be read out and explained to the accused. The phrase “add to any charge” in sub-section (1) includes addition of a new charge. The provision enables the alteration or addition of a charge based on materials brought on record during the course of trial. Section 216 provides that the addition or alteration has to be done “at any time before judgment is pronounced”. Sub-section (3) provides that if the alteration or addition to a charge does not cause prejudice to the accused in his defence, or the prosecutor in the conduct of the case, the court may proceed with the trial as if the additional or alternative charge is the original charge. Sub-section (4) contemplates a situation where the addition or alteration of charge will prejudice the accused and empowers the court to either direct a new trial or adjourn the trial for such period as may be necessary to mitigate the prejudice likely to be caused to the accused. Section 217 CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial.

17. The decision of a two-Judge Bench of this Court in P. Kartikalakshmi v. Sri Ganesh [P. Kartikalakshmi v. Sri Ganesh, (2017) 3 SCC 347 [LQ/SC/2014/817 ;] ">(2017) 3 SCC 347 [LQ/SC/2014/817 ;] [LQ/SC/2014/817 ;] : (2017) 2 SCC (Cri) 84] [LQ/SC/2014/817 ;] ">(2017) 2 SCC (Cri) 84] [LQ/SC/2014/817 ;] [LQ/SC/2014/817 ;] , dealt with a case where during the course of a trial for an offence under Section 376 IPC, an application under Section 216 was filed to frame an additional charge for an offence under Section 417 IPC. F.M. Ibrahim Kalifulla, J. while dealing with the power of the court to alter or add any charge, held: (SCC p. 350, para 6)

“6. … Section 216 CrPC empowers the court to alter or add any charge at any time before the judgment is pronounced. It is now well settled that the power vested in the court is exclusive to the court and there is no right in any party to seek for such addition or alteration by filing any application as a matter of right. It may be that if there was an omission in the framing of the charge and if it comes to the knowledge of the court trying the offence, the power is always vested in the court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the court at any time before the judgment is pronounced. It is an enabling provision for the court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of the court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.”

18. In Anant Prakash Sinha v. State of Haryana [Anant Prakash Sinha v. State of Haryana, (2016) 6 SCC 105 [LQ/SC/2016/387] : (2016) 2 SCC (Cri) 525] [LQ/SC/2016/387] , a two-Judge Bench of this Court dealt with a situation where for commission of offences under Sections 498- A and 323 IPC, an application was filed for framing an additional charge under Section 406 IPC against the husband and the mother-in-law. After referring to various decisions of this Court that dealt with the power of the court to alter a charge, Dipak Misra, J. (as the learned Chief Justice then was), held: (SCC p. 116, paras 18-19)

“18. … the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.

19. In addition to what we have stated hereinabove, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial.”

19. In CBI v. Karimulla Osan Khan [CBI v. Karimullah Osan Khan, (2014) 11 SCC 538 [LQ/SC/2014/255] : (2014) 3 SCC (Cri) 437] [LQ/SC/2014/255] , this Court dealt with a case where an application was filed under Section 216 CrPC during the course of trial for addition of charges against the appellant under various provisions of IPC, the Explosives Act, 1884 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. K.S.P. Radhakrishnan, J. speaking for the Court, held thus: (SCC p. 546, paras 17-18)

“17. Section 216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. The expressions “at any time” and before the “judgment is pronounced” would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the courts should also see that its orders would not cause any prejudice to the accused.

18. Section 216 CrPC confers jurisdiction on all courts, including the Designated Courts, to alter or add to any charge framed earlier, at any time before the judgment is pronounced and sub-sections (2) to (5) prescribe the procedure which has to be followed after that addition or alteration. Needless to say, the courts can exercise the power of addition or modification of charges under Section 216 CrPC, only when there exists some material before the court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court.”

20. In Jasvinder Saini v. State (NCT of Delhi) [Jasvinder Saini v. State (NCT of Delhi), (2013) 7 SCC 256 [LQ/SC/2013/673] : (2013) 3 SCC (Cri) 295], this Court dealt with the question whether the trial court was justified in adding a charge under Section 302 IPC against the accused persons who were charged under Section 304-B IPC. T.S. Thakur, J. (as he then was) speaking for the Court, held thus : (SCC pp. 260-61, para 11)

“11. A plain reading of the above would show that the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.”

21. From the above line of precedents, it is clear that Section 216 provides the court an exclusive and wide-ranging power to change or alter any charge. The use of the words “at any time before judgment is pronounced” in sub-section (1) empowers the court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of the court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. The test to be adopted by the court while deciding upon an addition or alteration of a charge is that the material brought on record needs to have a direct link or nexus with the ingredients of the alleged offence. Addition of a charge merely commences the trial for the additional charges, whereupon, based on the evidence, it is to be determined whether the accused may be convicted for the additional charges. The court must exercise its powers under Section 216 judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial. The only constraint on the court's power is the prejudice likely to be caused to the accused by the addition or alteration of charges. Subsection (4) accordingly prescribes the approach to be adopted by the courts where prejudice may be caused.”

The case at hand is not the one, where the offence punishable under Section 302 of the IPC is added without there being any evidence of substance. The statements given by the witnesses in the examination and cross-examination would make out evidence against the petitioners.

11. In the light of what is quoted hereinabove, no fault could be found in the order passed by the learned Sessions Judge permitting alteration of the charge allowing the application under Section 216 of the Cr.P.C. It is a matter of trial for the petitioners to come out clean in the charge. This Court has no reason to disbelieve that the trial Court would conduct proceedings after alteration of charge in terms of law.

12. Finding no merit in the petition, the petition stands dismissed.