Allahabad High Court
Anil Kumar vs State Of U.P. on 23 April, 2019
Bench: Anil Kumar, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (AFR)(Reserved) Court No. - 10 [Case :- CRIMINAL APPEAL No. - 810 of 2015] Appellant :- Anil Kumar Respondent :- State Of U.P. Counsel for Appellant :- Aniruddh Kumar Singh,Bajhul Quamar Siddiqui,Nusrat Jahan Counsel for Respondent :- Govt. Advocate Hon'ble Anil Kumar,J.
Hon'ble Vikas Kunvar Srivastav,J.
(As per Anil Kumar, J.) Heard Sri Bajhul Quamar Siddiqui, learned counsel for the accused-appellant, Smt. Smiti Sahai, learned Additional Government Advocate for the State and perused the material available on record.
By means of present appeal, the accused-appellant has challenged the judgment and order dated 30.06.2015 passed by Additional District & Sessions Judge, court no. 7, Sitapur in Sessions Trial No. 255 of 2009 (State Vs. Anil Kumar and Others), arising out of Case Crime No. 3314 of 2008, thereby convicting the appellant under Section 302 IPC for life imprisonment including Rs. 1000/- as file (failing which one year further imprisonment); under Section 498-A of IPC for 3 years rigorous imprisonment including Rs. 5,000/- as fine (failing which five months further imprisonment) and for the offence under Section 4 of the Dowry Prohibition Act, 2 years rigorous imprisonment including Rs. 10,000/- as fine (failing which 4 months further imprisonment).
Prosecution story in brief is that complainant Rajaram S/o Mathura Prasad, resident of village Saraiya Mirzapur, Police Station Biswan, District Sitapur has lodged a written complaint that marriage of his daughter Shanti Devi was solemnized as per Hindu rituals and rites three years ago with Anil Kumar S/o Nirmal Kumar, resident of Loharbagh, Police Station Kotwali, District Sitapur, given the dowry as per his capacity.
Inspite of the same, there was a continuous demand of motorcycle and other items from in-laws of his daughter. Since the same has not been fulfilled, Anil Kumar S/o Nirmal Kumar, Nirmal Kumar S/o Sri Ram, Shyam Kishore S/o Sri Ram, Sunil Kumar S/o Nirmal Kumar, Wife of Shyam Kishore and Bhanji of Nirmal Kumar etc. have killed her daughter Shanti Devi on 22.12.2008 at about 01:00 p.m. Accordingly, an FIR was lodged against the accused-appellants (at Case Crime No. 3314 of 2008, under Sections 498-A, 304-B Indian Penal Code and Section 3/4 of Dowry Prohibition Act). In this regard an endorsement has been made in GD no. 59 at 07:35 p.m. on 22.12.2008 and thereafter the matter was investigated by Sanjay Kumar, Investigating Officer and body of the deceased was sent for post-mortem.
After investigation, chargesheet has been filed against the accused persons under Sections 498-A, 304-B IPC read with Section 3/4 of Dowry Prohibition Act before the Magistrate who committed the matter for sessions trial. Accordingly, Sessions Trial No. 255 of 2009 has been registered in the court of Additional Sessions Judge, court no. 7, Sitapur. On 26.10.2009, charges under Sections 498-A, 304-B IPC read with Section 3/4 of Dowry Prohibition Act have been framed.
Prosecution, in order to prove its case, has placed reliance on the documentary evidence, namely, FIR (exhibit-Ka-1), recovered cloth (exhibit-Ka-2), post-mortem report (exhibit Ka-3), cite plan (exhibit-ka-4), Pradarsh (exhibit-Ka-5), chargesheet (Ka-6), Panchanama (exhibit-Ka-7), sample stamp (exhibit-Ka-8), photo naash (exhibit-Ka-9), pratisar inspector (exhibit-Ka-10), Letter CMO (exhibit-Ka-11), Chalan Naash pradarsh (exhibit-Ka-12), Chik FIR (exhibit-Ka-13), GD (exhibit-Ka-14), Saari article pradarsh and sarv mohar bandal as article exhibit numbers 1 and 2.
In order to prove its case, the prosecution has produced the witnesses, namely, Rajaram as PW-1, Jaidevi as PW-2, Gangaram Yadav as PW-3, Dr. Yashwant Singh, medical officer, Sitapur as PW-4, Sanjay Kumar as PW-5, Anil Kumar as PW-6, Head Constable Sunder Lal as PW-7 and Sub Inspector Anil Kumar Pandey as PW-8.
After the closure of evidence of the prosecution witnesses on the charges which were framed against the accused-appellant and other accused persons under Sections 498-A, 304-B Indian Penal Code read with Section 3/4 of Dowry Prohibition Act, an additional charge under Section 302/34 IPC has also been framed on 20.04.2015.
And by judgment and order dated 30.06.2015, the trial court had acquitted the accused persons, namely Sunil Kumar Yadav and Nirmal Singh Yadav from the charges under Sections 498-A, 304-B I.P.C. and Section 3/4 of D.P. Act.
Accused-appellant-Anil Kumar has been convicted under Section 498-A IPC and sentenced for three years rigorous imprisonment alongwith fine of Rs. 5,000/- and in default of payment of fine, five months additional imprisonment; for the offence under Section 4 of Dowry Prohibition Act, accused-appellant was convicted and sentenced for two years imprisonment with fine of Rs. 10,000/- and in default of payment of fine, four months additional imprisonment and for the offence under Section 302 IPC, the accused-appellant was convicted and sentenced for life imprisonment with fine of Rs. 10,000/- and in default, one year's additional imprisonment.
Sri B. Q. Siddiqui, learned counsel for the accused-appellant while assailing the impugned judgment submits that initially, on the basis of investigation, the chargesheet has been filed by the Investigating Officer in the court of Magistrate against the accused-appellant alonwith other co-accused, namely, Sunil Kumar Yadav and Nirmal Singh Yadav under Sections 498-A, 304-B I.P.C. and Section 3/4 of D.P. Act.
On 26.10.2009, the trial court in Sessions Trial No. 255 of 2009 has passed the order by framing the following charges:
U;k;ky; vij l= U;k;k/kh'k] U;k;ky; la09] lhrkiqjA l= ijh{k.k la0&255@09 ljdkj cuke vfuy dqekj ;kno o vU;
vkjksi eSa ts0 ds0 frokjh vij l= U;k;k/kh'k] U;k;ky; la09] lhrkiqj ,rn~}kjk vki vfHk;qDrx.k vfuy dqekj ;kno] lquhy dqekj ;kno o fueZYk flag ;kno dks fuEuor vkjksfir djrk g¡wA 1- ;g fd fnukad 22-12-08 ls 3 o"kZ iwoZ LFkku yksgkjckx Fkkuk dksrokyh ftyk lhrkiqj esa vki esa ls vfHk;qDRk fueZy dqekj ds lkFk oknh eqdnek dh iq=h 'kkUrh nsoh dh 'kknh gqbZ Fkh vkSj 'kknh ds ckn ls gh vki yksxks us 'kkUrh nsoh ls ngst esa eksVjlkbfdy o vU; lkeku dh ekax dh vkSj mDr ngst u feyus ij mls 'kkjhfjd o ekufld :i ls izrkkfM+r djds mlds lkFk dzwjrkiw.kZ O;ogkj fd;kA bl izdkj vki yksxks us /kkjk 498 , Hkk0n0l0 ds vUrZxr n.Muh; vijk/k fd;k gS tks bl U;k;ky; ds izlaKku esa gSA 2- ;g fd mijksDr le; o LFkku ij vki esa ls vfHk;qDRk fueZy dqekj dh 'kknh oknh jktkjke dh iq=h 'kkUrh nsoh ds lkFk gqbZ vkSj 'kknh ds ckn ls gh vki yksxks us oknh dh iq=h ls ngst esa eksVjlkbfdy o vU; lkeku dh ekax fd;k djrs Fks vkSj mDr ekax dh iwfrZ u gksus ij vki yksxks us fnukad 22-12-08 dks ,d cts fnu esa feydj 'kkUrh nsch dks ekj MkykA bl izdkj 'kknh ds 7 lky ds vUnj vki yksxks us Jherh 'kkUrh nsch dh ngst gR;k dkfjr fd;k tks /kkjk 304 ch Hkk0 n0 la0 ds vUrZxr n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa gSA ;g fd mijksDr fnukad] le; o LFkku ij vki yksxks us oknh eqdnek o mlh iq=h 'kkUrh nsch ls ngst esa eksVj lkbfdy o vU; lkeku dh ekax fd;kA bl izdkj vki yksxks us /kkjk 3@4 Mh0ih0 ,sDV ds vUrZxr n.Muh; vijk/k fd;k gS tks bl U;k;ky; ds izlaKku eaas gSA ,rn~}kjk vki yksxks dks vknsf'kr fd;k tkrk gS fd vki yksxks ds mDRk vkjksiks dk fopkj.k bl U;k;ky; }kjk fd;k tkosA fnukad& 26-10-09 g0 viBuh;
ts0 ds0 frokjh vij l= U;k;k/kh'k] dksVZ ua09] lhrkiqjA vkjksi vfHk;qDrx.k dks i<+dj lquk;k o le>k;k x;k ftlls mUgksus bUdkj fd;k vkSj fopkj.k ekax fd;kA fnukad 26-10-09 g0 viBuh;
ts0 ds0 frokjh vij l= U;k;k/kh'k] dksVZ ua0 9] lhrkiqjA After close of the evidence of prosecution witnesses, the statement under Section 313 Cr.P.C. of the accused-applicant had been recorded. He denied his guilt and claimed trial, the matter proceeded for argument by parties and on the stage of argument.
At the stage of argument, on 20.04.2015, the additional charge under Section 302 IPC read with Section 34 IPC was framed as under:
U;k;ky; vij l= U;k;k/kh'k] dksVZ ua0&7] lhrkiqj l= ijh{k.k la[;k&255@2009 mRRkj izns'k jkT; izfr vfuy dqekj ;kno vkfnA vijk/k la[;k&3314@08 /kkjk& 302 Hkk0na0la0 Fkkuk & dksrokyh tuin] lhrkiqjA vuqdfYir vkjksi eSa] lS;~;n ekÅt fcu vkfle vij l= U;k;k/kh'k dksVZ ua0&7 lhrkiqj vki vfHk;qDRkx.k vfuy dqekj ;kno] lquhy dqekj ;kno ,oa fueZy flag ;kno ij fUkEufyf[kr vkjksi yxkrk g¡w& 1& ;g fd fnukad 22-12-2008 le; djhc 1%00 cts cgn LFkku eksgYYkk yksgkjckx Fkkuk dksrokyh tuin lhrkiqj esa vki yksxksa us lkekU; vk'k; ds vxzlj.k esa oknh eqdnek dh iq=h 'kkUrh nsoh dh xyk nckdj gR;k dkfjr dhA bl izdkj vki yksxksa us ,d ,slk vijk/k fd;k tks /kkjk 302 lifBRk /kkjk 34 Hkk0 na0 la0 ds vUrxZr n.Muh; gS rFkk tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk eSa ;g funsZ'k nsrk gw¡ fd mDr vkjksiksa esa vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;A fnukad&20-04-2015 g0 viBuh;
20-4-15 ¼lS;~;n ekÅt fcu vkfle½ vij l= U;k;k/kh'k] dksVZ ua0&7] lhrkiqjA On 30.04.2015, an order was passed, reads as under:
...Œ-Œ+-,,Œf++ okn iqdkjk x;k vfHk;qDr vfuy ;kno tsjs fgjklr mifLFkr 'ks"k vfHk;qDrx.k tsjs tekur mifLFkr ijUrq lk{kh mifLFkr ughA vr% i=koyh fnukad ŒŠ-Œ++-Œf++ dks okLrs lk{; is'k gksA Thereafter on 08.05.2015 and 14.05.2015, following orders have been passed:
ŒŠ-Œ++-,,Œf++ ,0Mh0th0lh0 us crk;k fd mUgsa vfrfjDr lk{; ugha nsuk gS vr% fMQsUl dh vksj ls Hkh vfrfjDr lk{; u nsus dh ckr dgh tk jgh gSA vr% f+-Œ++-,,Œf++ dks cgl gsrq is'k gksA f+-Œ++-,,Œf++ okn iqdkjk x;k A vfHk;qDr vfuy dqekj ;kno tsjs fgjklr mifLFkrA 'ks"k vfHk;qDRkx.k tsjs tekur mifLFkr A ijUrq vf/koDrkx.k U;kf;d dk;Z ls fojr gSA vr% i=koyh fnukad ,,Œ-Œ++-,,Œf++ dks cgl gsrq is'k gksA Learned counsel for the accused-appellant submits that after framing of additional charge on 20.04.2015, the court vide order dated 30.04.2015 has directed the parties to adduced their evidence, however as the prosecution has not decided to lead any evidence after framing of the additional charge under Section 302 IPC read with Section 34 IPC and defence has also not led any evidence in this regard and order dated 08.05.2015 has been passed. However, inspite of said fact, a mandatory duty has been casted upon the trial court as per Section 216 Sub Section 4 Cr.P.C. read with Section 217 Cr.P.C. to record the statement of the accused-appellant under Section 313 Cr.P.C. and also it is incumbent upon the trial court to follow the procedure as provided under Sub Section 4 of Section 216 Cr.P.C. read with Section 217 Cr.P.C. to call upon the prosecution witnesses to be examined in the light of additional charge framed under Section 302/34 IPC.
As the said procedure has not been followed in the present case and straightaway on the basis of evidence which has been led by the prosecution in respect to the charge framed against the accused-appellant under Sections 498-A, 304-B IPC read with Section 3/4 of D.P. Act, the judgment of conviction has been passed and has been awarded. The said action on the part of the trial court does not amount to fair trial as produced the case of the accused-appellant because by not recording his statement under Section 313 Cr.P.C. has prejudice the accused-appellant, so on the said ground during trial vitiates under law and the same is violation of principles of natural justice, liable to be set aside.
Smt. Smiti Sahai, learned Additional Government Advocate while opposing the said contention submits that no doubt, in the present case, initially the charge against the accused-appellant and another accused persons under Sections 498-A, 304-B IPC read with Section 3/4 of D.P. Act has been framed by the trial court on 26.10.2009 and their statements under Section 313 Cr.P.C. were recorded, thereafter, the prosecution has led their evidence in this regard, however during the course of argument, an additional charge under Section 302/34 IPC has been framed and once the prosecution as well as the defence has stated that they do not want to lead any evidence after framing of additional charge, taking into consideration the said facts as well as the fact that initially when the statement of accused-appellant was recorded under Section 313 Cr.P.C., specific question has been put in regard to the murder of deceased, so there is no necessity/requirement on the part of the trial court to record the statement of the accused-applicant under Section 313 Cr.P.C. and re-examine the prosecution witnesses after framing of additional the charge under Section 302/34 IPC. As such, there is no illegality or infirmity in the judgment passed by the trial court. In support of her arguments, learned AGA has placed reliance on para 23 of the judgment of Hon'be Supreme Court in the case of Ranbir Yadav Vs. State of Bihar reported in [(1995) 4 SCC 392] which reads as under:
"23. The matter can be viewed from another angle also. Section 216 of the Code empowers the Court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration or addition of the charge the Court is required to read and explain the same to the accused in accordance with sub-section (2) thereof It is further laid down under sub-section (3) that if in the opinion of the Court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addition is such that the proceeding immediately with the trial is likely to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Section 217 of the Code provides that 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 to recall or to summon and examine with reference to such alteration or addition any witness who has already been examined unless the Court for reasons to be recorded in writing considers that the desire to recall or reexamine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Besides, it permits the prosecutor and the accused to call any further witness whom the Court may think it to be material. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, therefore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been read over and explained to the accused has been made. Indeed the order dated April 30, 1987 shows that while directing the prosecution to examine the 4 witnesses afresh the 5th Court adjourned the case for further trial and did not direct fresh trial. This apart, any such direction given by the Court has to be judged on the touchstone of prejudice to the accused or the prosecution. In the instant case, as has already been noticed after the addition of charges the prosecution expressly stated that they did not want to further examine the four witnesses already examined but they were willing to produce them if the accused so wanted. The accused, however, did not avail of this opportunity in accordance with Section 217 of the Code and, therefore, it is too late in the day for them to raise a grievance on that score. We hasten to add that even if we had found that there was any irregularity in the continuation of the trial against the appellants after the additional charges were framed, we would not have been justified in setting aside the impugned judgment on that ground alone for there is not an iota of material on record wherefrom it can be said that a failure of justice has occasioned thereby. To put it differently, in our view in such a case Section 465 of the Code would have squarely applied."
And learned AGA has further relied on the judgment by Hon'ble Apex Court in the case of Rafiq Ahmad Alias Rafi Vs. State of U.P. reported in [(2011) 8 SCC 300], relevant portion reads as under:
"35. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial :
(a) The accused has the freedom to maintain silence during investigation as well as before the Court. The accused may choose to maintain silence or make complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the Court would be entitled to draw inference, including adverse inference, as may be permissible to it in accordance with law;
(b) Right to fair trial
(c) Presumption of innocence (not guilty)
(d) Prosecution must prove its case beyond reasonable doubt.
36. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. ''Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the Court.
37. Right to fair trial, presumption of innocence until pronouncement of guilt and the standards of proof, i.e., the prosecution must prove its case beyond reasonable doubt are the basic and crucial tenets of our criminal jurisprudence. The Courts are required to examine both the contents of the allegation of prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always depend on the facts and circumstances of a given case. Therefore, the Court has to ensure that the ends of justice are met as that alone is the goal of criminal adjudication.
38. Thus, wherever a plea of prejudice is raised by the accused, it must be examined with reference to the above rights and safeguards, as it is the violation of these rights alone that may result in weakening of the case of the prosecution and benefit to the accused in accordance with law.
63. In light of the principles afore-stated, now we may revert to the facts and circumstances of the case in hand. It is admittedly a case of circumstantial evidence and, thus, the evidence has to be examined in that context. There is no dispute to the fact that the charge under Sections 396 and 201 IPC had been framed against the accused. The Trial Court had acquitted the four accused but convicted the present appellant for an offence under Sections 302 and 201 while convicting another accused, namely Ahsan, for an offence punishable under Section 411 IPC. The judgment of the trial court was upheld by the High Court in so far as the acquittal of the four accused for the offences under Section 396 was concerned as well as the conviction of the present appellant under Section 396 IPC. However, the High Court acquitted Ahsan for the offence under Section 201 IPC which does not concern us in the present appeal.
66. The above circumstances have to be examined along with the statements of Ved Prakash (PW2) and Gyan Chand (PW4), the witnesses who had last seen the deceased with the appellant. The statements of the Investigating Officer (PW11) and the witnesses including Pyare Lal (PW3), in whose presence the dead body was recovered at the behest of the appellant, by means of recovery memo Ex.PW Ex-Ka 3 are the other material pieces of evidence which would complete the chain of events and point undoubtedly towards the guilt of the accused. The accused, for the reasons best known to him, had taken up a stand of complete denial in his statement dated 20th February, 1981 recorded under Section 313 Cr.P.C. and opted not to explain his whereabouts at the relevant time. Furthermore, he was a regular taxi driver at the stand of Agency Chauraha.
67. It is true that the statement under Section 313 Cr.P.C. cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events. It is clearly established from the evidence on record that the deceased was a regular trader and used to come to Nehtaur from where he was picked up by the appellant on the fateful day. These were certain definite circumstances clearly indicating towards the involvement of the appellant in the commission of the crime. The prosecution has been able to establish its case beyond reasonable doubt on the basis of the circumstantial evidence. There is no significant link which is missing in the case put forward by the prosecution.
68. At this stage, we may refer to a Constitution Bench judgment of this Court in the case of Shyam Behari v. State of Uttar Pradesh [AIR 1957 S.C. 320] wherein the accused after being charged for an offence under Section 396 IPC was finally convicted under Section 302 IPC. The Court in the said judgment held as under:
"15. It is, however, unnecessary to do so because in the facts and circumstances of the present case the appellant is liable to be convicted of the offence under Section 302 of the Indian Penal Code without anything more. The charge under Section 396, Indian Penal Code comprised of two ingredients:- (1) the commission of the dacoity, and (2) the commission of the murder in so committing the dacoity. The first ingredient was proved without any doubt and was not challenged by the learned counsel for the appellant. The second ingredient also was proved in any event as regards the commission of the murder because the attention of the accused was focused not only on the commission of the offence while committing the dacoity but also on the individual part which he took in the commission of that murder. So far as he was concerned, he knew from the charge which was framed against him that he was sought to be made responsible not only for the commission of the dacoity but also for the commission of the murder in committing such dacoity. The evidence which was led on behalf of the prosecution specifically implicated him and he was named by the prosecution witnesses as the person who shot at Mendai while crossing the ditch of the Pipra Farm. His examination under section 342 of the Criminal Procedure Code also brought out that point specifically against him and he was questioned in that behalf. Both the Courts below recorded their concurrent findings of fact in regard to the part taken by the appellant in the commission of the murder of Mendai. Under these circumstances it could not be urged that the appellant could not be convicted of the offence under Section 302, Indian Penal Code if such a charge could be made out against him (Vide our decision in Willie (William) Slaney v. State of Madhya Pradesh, Crl App No. 6 of 1955 D/- 31-10-1955 ( (S) AIR 1956 SC 116)
70. For the reasons afore-recorded, we are of the considered view that no prejudice has been caused to the appellant by his conviction for an offence under Section 302 IPC though he was initially charged with an offence punishable under Section 396 IPC read with Section 201 IPC. Further, the nature of injuries namely three incised wounds, three abrasions and severing of the trachea, caused by a sharp-edged weapon as noticed by the High Court in para 34 of its judgment, indicate that the accused knew that the injury inflicted would be sufficient in the ordinary course of nature to cause death.
71. The ''prejudice' has to be examined with reference to the rights and/or protections available to the accused. The incriminating evidence had been clearly put to the accused in his statement under Section 313 Cr.P.C. The circumstances which constitute an offence under Section 302 were literally put to him, as Section 302 IPC itself is an integral part of an offence punishable under Section 396 IPC. The learned counsel appearing for the appellant has not been able to demonstrate any prejudice which the appellant has suffered in his right to defence, fair trial and in relation to the case of the prosecution.
72. Once the appellant has not suffered any prejudice, much less a serious prejudice, then the conviction of the appellant under Section 302 IPC cannot be set aside merely for want of framing of a specific/alternate charge for an offence punishable under Section 302 IPC. It is more so because the dimensions and facets of an offence under Section 302 are incorporated by specific language and are inbuilt in the offence punishable under Section 396 IPC. Thus, on the application of principle of ''cognate offences', there is no prejudice caused to the rights of the appellant."
And learned AGA has also relied in the case of Darbara Singh Vs. State of Punjab reported in [(2012) 10 SCC 476], relevant portion is quoted hereunder:
"20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Code of Criminal Procedure., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).
21. The 'failure of justice' is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be 'failure of justice'; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. 'Prejudice', is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. (Vide: Rafiq Ahmed @ Rafi v. State of U.P. [(2011) 8 SCC 300] p. 320, para 36; Rattiram and Ors. v. State of M.P. [(2012) 4 SCC 516] and Bhimanna v. State of Karnataka [(2012) 9 SCC 650]".
Learned AGA has also placed reliance on para nos. 25 to 28 of the judgment of Hon'ble Apex Court given in the case of Bhimanna Vs. State of Karnataka reported in [(2012) 9 SCC 650] which are as under:
"25. Further the defect must be so serious that it cannot be covered Under Sections 464/465 Code of Criminal Procedure., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges, has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge (s).
26. This Court in Sanichar Sahni v. State of Bihar [(2009) 7 SCC 198] while considering the issue placed reliance upon various judgments of this Court particularly in Topandas v. State of Bombay [AIR 1956 SC 33]; Willie (William) Slaney v. State of M.P. [AIR 1956 SC 116]; Fakhruddin v. State of Madhya Pradesh [AIR 1967 SC 1326]; State of A.P. v. Thakkidiram Reddy [(1998) 6 SCC 554]; R amji Singh and Anr. v. State of Bihar [(2001) 9 SCC 528]; and Gurpreet Singh v. State of Punjab [(2005) 12 SCC 615] and came to the following conclusion:
27. Therefore,.... unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.
A similar view has been reiterated in Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259].
27. In Shamnsaheb M. Multtani v. State of Karnataka [AIR 2001 SC 921], this Court explained the meaning of the phrase 'failure of justice' observing that the superior court must examine whether the issue raised regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court must further examine whether the said aspect is of such a nature, that non-explanation of it has contributed to penalising an individual, and if the same is true then the court may say, that since he was not given an opportunity to explain such aspect, there was 'failure of justice' on account of non compliance with the principles of natural justice. The expression 'failure of justice' is an extremely pliable or facile an expression which can be made to fit into any situation of a case.
28. The court must endeavour to find the truth. There would be 'failure of justice' not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. of course, the rights of the accused have to be kept in mind and safeguarded but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under Indian Criminal Jurisprudence. 'Prejudice', is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. (Vide: Nageshwar Sh. Krishna Ghobe v. State of Maharashtra [(1973) 4 SCC 23]; State by Police Inspector v. T. Venkatesh Murthy [AIR 2004 SC 5117]; R afiq Ahmed @ Rafi v. State of U.P. [(2011) 8 SCC 300]; and Rattiram and Ors. v. State of M.P. through Inspector of Police [AIR 2012 SC 1485]".
After hearing learned counsel for the parties and going through the record, the core question which is to be decided in the instant matter is that whether after framing of the additional charge under Section 302 read with Section 34 IPC at the time of argument, keeping in view the order dated 30.04.2015 by which the trial court has directed the parties to lead evidence, even if the prosecution does not want to lead any additional evidence and the defence also then in that circumstances, it is incumbent upon the trial court to record the statement of accused-appellant under Section 313 Cr.P.C. again and to give further opportunity for cross-examining the prosecution witnesses in respect to the additional charge framed against him under Section 302/34 IPC.
In order to decide the said controversy, we feel appropriate to go through the following provisions:
Section 216 Code of Criminal Procedure:-
"216. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."
From the bare perusal of Section 216 Cr.P.C. the position which emerges out to the effect that the wide power has been given by the legislature to the court for alter or add, any charge at any stage, however, the same is subject to certain the limitations which are as under:
"(i) The alteration or addition must not operate to the prejudice of the accused. (See Kantilal Chandulal Mehta vs. State of Maharashtra, AIR 1970 SC 359).
(ii) The accused should be made fully aware of the change made in the charge (Sub-section-2).
(iii) The accused should not be made to face a charge for a new offence. (See Kantilal Chandulal Mehta vs. State of Maharashtra, AIR 1970 SC 359).
(iv) The accused should be given full opportunity of meeting the change finally preferred against him (Sub-section-4).
(v) There must be evidence on the record to support the addition or alteration of the charge. (See Rajendra vs. State, (1989) Crl. J. 255 (para 6) Cal (DB).
(vi) A superior Court may exercise the power of alteration where the trial Court could have done it, that is to say, on the material on record. (See Harihar Chakravarty v. State of W.B., AIR 1954 SC 266).
(vii) An application under Section 216 will not lie after the accused has already been discharged of all existing charges. (See Sohan Lal v. State of Rajasthan, AIR 1990 SC 2158)."
Hon'ble the Apex Court in the case of C.B.I. vs. Karimulla, 2014 (3) SCALE 335, has observed that Section 216 Cr.P.C. gives considerable powers to the Trial Court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add 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 interest of justice, but at the same time, the Courts should also see that its orders would not cause any prejudice to the accused.
Further, on a reading of Sub-Section 4 of Section 216, the position which emerges out is that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguard by permitting them to further examine or cross-examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, therefore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been read over the explained to the accused has been made. (See Ranbir Yadav v. State of Bihar, (1995) CrL.J. 2665 (para 23).) After framing of the additional charge under Section 302/34 IPC, the court has to follow the procedure as provided under Section 217 Cr.P.C., the same reads as under:
Section 217 Cr.P.C.-
A charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed -
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material."
The intention of legislature in framing of Section 217 Cr.P.C. is to the effect that an amendment of the charge after witnesses have been examined may prejudice either party unless it is allowed to call fresh witnesses or to re-examine or cross-examine further the witnesses who have been already examined, an opportunity is offered in that behalf by the present section.
The light to re-summon or further examination is, however, subject to the following limitations :-
(a) It should be confined to points introduced by the amendment of the charge and not to points already covered by the previous examination. This is clear from words, "with reference to such alteration or addition" in Cl. (a).
(b) It is not to be offered by the Court unless the prosecution or the defence applies for it.
(c) It may be refused by the Court where it finds that the application has been made for the purpose of vexation or delay, e.g., where the amendment is merely formal and does not necessitate any further evidence of cross-examination on facts.
Now the next Section is 313 Cr.P.C. which reads as under:
Section 313 in The Code Of Criminal Procedure, 1973 "313. Power to examine the accused.
In every inquiry or trial, for the purpose of enabling the accused personally to explain (1) any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."
As per the settled proposition of law, the purpose of examining the accused under Section 313 Cr.P.C. is to meet the requirement of principles of natural justice i.e. audi alterem partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him and the Court must take note of such explanation.
No matter how weak the evidence of the prosecution may be, it is the duty of the Court to examine the accused and to seek his explanation as regards incriminating material that has been placed against him. Circumstances which were not put to the accused under Section 313 Cr.P.C. cannot be used against him and must be excluded from consideration.
Statement recorded under Section 313 Cr.P.C. cannot be taken as an evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement. (See Sujit Biswas vs. State of Assam, (2013) 12 SCC 406).
The aims and object of Section 313 Cr.P.C. in nutshell can be commenced as under :-
(a) The object of this section is to establish a direct dialogue between the Court and the accused, brushing aside all third parties, such as counsel, witnesses and the like. But its object is not inquisitorial. Its only object, as explained in sub-section (1), is to give an opportunity to the accused to ''personally explain any circumstances appearing in the evidence against him. (See Mir. Mohd. Omar v. State of W.B., (1989) 4 SCC 436).
(b) If a point in the evidence is important against the accused and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires.
(c) The failure of the accused to explain a particular circumstance would not relieve the prosecution of its burden to establish its case, except when the burden is thrown upon the accused by statute.
(d) If the accused has not been given an opportunity to explain an adverse circumstance, it cannot be used as evidence against him. (See Sharad Biridhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622)
(e) Section 313 Cr.P.C. is to afford the accused personally an opportunity of explaining any incriminating circumstances appearing in evidence against him. The accused may or may not avail himself of the opportunity for offering explanation. (See Subhas Chand v. State of Rajasthan, (2002) 1 SCC 702)
(f) Section 313 (1) (b) is mainly introduced to benefit the accused and it is corollary to benefit the Court in making a final decision. The provision is not to nail the accused to any position but to comply with the most solitary principle of natural justice enshrined in the maxim audi alterm partem. (See Basavraj R. Patil v. State of Karnataka, (2000) 8 SCC 740)
(g) If no such opportunity is afforded, the incriminating piece of evidence available on the prosecution evidence cannot be relied upon for the purpose of recording conviction against the accused. (See Lallu Majhi v. State, (2003) 2 SCC 401) In addition to the above Sections of Code of Criminal Procedure which are to be considered for deciding the controversy which is involved in the present case are Section 137, 138 and 145 of the Evidence Act are also taken into note.
Section 137 of the Evidence Act defines what cross- examination means and Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect.
Section 145 of the Indian Evidence Act speaks of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
Because the questions to be addressed in the course of cross- examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character. (See Kartar Singh vs. State of Punjab, (1994) 3 SCC 659).
Further, Hon'ble Supreme Court in Jayendra Vishnu Thakur vs State Of Maharashtra reported in 2009 7 SCC 104, in this regard held as under:
"A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination- in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be curved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence viz-aviz opinion..."
On the point in issue Hon'ble the Supreme Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and another, report in (2013) 14 SCC 461 has held as under:-
"17.1 Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?
17.2 The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3 If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.
17.4 The exercise of power under Section 311CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
17.5 The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
17.6 The wide discretionary power should be exercised judiciously and not arbitrarily.
17.7 The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
17.8 The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.
17.9 The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
17.10 Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.
17.11 The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
17.12 The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13 The power must be exercised keeping in mind that the evidence that is likely to tbe tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
17.14 The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
Now the next question which is to be considered is that what is the meaning of fair trial. Answer to the said question finds place in the judgment of Hon'ble the Apex Court in the case of Mohd. Hussain @ Julfikar Ali vs The State (Govt. of NCT) Delhi reported in (2012) 2 SCC 584, wherein it has been held as under:
"11. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case....."
And in the case of Zahira Habibullah Sheikh Vs. State of Gujarat reported in (2006) 3 SCC 374, has explained fair trial in the following words:
"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice--often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny."
Rebutting the facts of the present case, the admitted position as borne out from the record is to the effect that after initially a charge against the accused-appellant as framed under Sections 498-A, 304-B Indian Penal Code and Section 3/4 of Dowry Prohibition Act and after the closure of the prosecution witnesses, his statement under Section 313 Cr.P.C. has been recorded. Thereafter during the course of argument, an additional charge under Section 302/34 IPC has been framed on 20.04.2015, thereafter on 30.04.2015 trial court directed to produce the evidence, even if the prosecution has stated not to lead any evidence after framing of additional charge in pursuance to the order dated 30.04.2015 and thereafter an order was passed on 08.05.2015. It is mandatory on the part of trial court, looking into the facts and circumstances of the present case, to record the statement of accused-appellant under Section 313 Cr.P.C., keeping in view the additional charge which has been framed against him under Section 302/34 IPC and to give opportunity to further cross-examine the prosecution witnesses. As the same has not been done by trial court, so, the trial which has been conducted, does not come within the ambit and scope of the 'fair trial' and the same prejudice the case of the accused-appellant which is in violation of principles of natural justice. As such, the trial, which has been done by the trial court after framing of the additional charge under Section 302/34 IPC vitiates under the law.
For the foregoing reasons, the appeal is allowed. Impugned judgment and order dated 30.06.2015 passed by Additional District & Sessions Judge, court no. 7, Sitapur in Sessions Trial No. 255 of 2009 (State Vs. Anil Kumar and Others), arising out of Case Crime No. 3314 of 2008, is set aside with the following directions :
(a) The matter is remanded back to the trial Court to start afresh trial from the stage of framing of additional charge under Section 302 read with Section 34 IPC in view of the observations made hereinabove.
(b) The accused-appellant is in jail for more than nine years, so if he so advised, can move an application for grant of bail, the same shall be considered on merit.
(c) The trial Court is directed to make all endeavour to decide the Sessions Trial No. 255 of 2009 (State Vs. Anil Kumar and Others) expeditiously, say, within a period of one year from the date of receiving a certified copy of this order.
Office is directed to send a certified copy of this order alongwith lower court record to the court concerned forthwith to ensure compliance.
Order Date :- 23/4/2019
kkv/
[Vikas Kunvar Srivastav,J.] ]Anil Kumar,J.]