IMPORTANT POINTS
Altered or added charge if causing prejudice to accused, trial has to proceed by terming the altered or added charge as original charge. If altered or added charge is altogether new one, new trial is insisted.
If charge is altered by a new charge prejudicing the accused and the a de novo trial is not conducted denying opportunity of cross-examination to the accused, the entire proceeding including conviction will be vitiated.
Charges under section 306 and 302 cannot stand together.

JUDGMENT :

A.K. Sikri, J.

The three appellants in these three appeals have been convicted for offences punishable under Sections 302 and 364 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC') and all three of them have been directed to undergo sentence of life imprisonment for the charge under Section 302 IPC read with Section 34 IPC and ten years in respect of the charge under Section 364 IPC read with Section 34 IPC. Both the sentences are directed to run concurrently. The conviction and sentence recorded by the Trial Court has been affirmed by the High Court in the impugned judgment dated 22.04.2009 resulting into the dismissal of the joint appeal which was filed by these three appellants.

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 d