Indian Penal Code, 1860 – Section 306, 302 – Code of Criminal Procedure, 1973 – Section 216, 217, 386 – Alteration in Charge – Non adherence of Procedure – Conviction for murder – Charge framed for abetment of suicide – The entire trial was conducted, keeping in view Section 306 IPC but at the fag end of the trial, Section 302 IPC was inserted among array of the Sections. Plea that the appellants were eventually convicted without adhering the mandatory provision under Sections 216 & 217 Cr.P.C. by the learned trial judge, causing grave miscarriage of justice to the appellants.
Held: If the charges were altered with alternative charge with the framing of charge under Section 302 IPC, this gives altogether different complexion and dimension to the prosecution case. Entire texture of the trial gets changed upside down. In a case like present, addition and/or substitution of such charge would bound to create a prejudice to the appellants. Such a charge has to be treated as original charge. In order to take care of the said prejudice, it was incumbent upon the prosecution to recall the witnesses, examined them in the context of the newly framed charge under Section 302 IPC and allow the accused persons to cross examine those witnesses. Nothing of that sort has ever happened.
By not adhering the mandatory procedure lay down in Sections 216 and 217 Cr.P.C. the accused appellants have suffered has caused a serious prejudice. Conviction and sentence quashed – Case remanded back to the court concerned for re-trial under the ‘proposed’ alternative charge. (Para 1, 28, 29, 44)
ALLAHABAD HIGH COURT
2023 STPL(Web) 105 Allahabad
[Neutral Citation No. – 2023:AHC:173776-DB]
Chhotai And 4 Others Vs. State Of U.P.
Criminal Appeal No. 234 of 2023-Decided on 23-8-2023
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