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(b) also to call any further witness whom the Court may think to be material."

It is pertinent to mention that the provisions of sections 216 (1) and (2) of new Cr.P.C. were contained there as section 227 in old Cr.P.C. of 1898, provisions of section 216 (3) were contained in section 228 of old Cr.P.C., provisions of section 216 (4) were contained in section 229 of old Cr.P.C., and provisions of 216 (5) were contained in section 230 of old Cr.P.C. As far as the provisions of section 217 of Cr.P.C. are concerned similar provisions were there under section 231 of old Cr.P.C.

The provisions of section 231 of old Cr.P.C. are being reproduced as under:-

"231. 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 re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material."

A comparative reading of provisions of sections 217 and 231 Cr.P.C. makes it clear that, considerable changes were made there in the provisions of section 217 of new Cr.P.C. at the time of substitution of provisions of section 231 of old Cr.P.C. wherein the words that unless the Court for the reasons recorded in writing, considers that 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, have been added which were not there in the provisions of section 231 of old Cr.P.C.

In the case of Moosa Abdul Rahiman Vs. State of Kerala 1982 Crl. L. J. 1384, the matter came for consideration before the Full Bench of Kerala High Court, which held that "under the provisions of sections 216 and 217 Cr.P.C., upon addition or alteration of charge after the commencement of trial, right to recall or re-summon witness for examination in respect of that charge, the request must come from the accused or prosecution and no obligation is cast on Court in that regard."

In view of the new provisions introduced under section 217 Cr.P.C., it is not mandatory for the Court to re-examine all the witnesses and de novo proceed with the trial rather the discretion to re-examine any or all of its witnesses, who were examined before framing of such additional or alternative charge lies with the prosecution. If the prosecution finds that any witness is to be re-examined, it may do so. Similarly the accused has every and absolute right to seek recall of any of the earlier prosecution witnesses for further cross-examination in view of the alternative or additional charge, irrespective of the fact that the above witness was re-examined or not, by the prosecution. The right of accused to summon any witness of prosecution for further cross examination is not adversely affected by any action or inaction of prosecution or by non-production of any witness for re-examination by it. The legislative change has been introduced to save the wastage of time in again recording the statement of all the witnesses, who were already examined, just for the sake of repetition, even if no new evidence had to be given by them. By this legislative change, the accused has not been deprived from his right to cross examine any of the prosecution witnesses on the alternative or additional charge.

It is also pertinent to mention that in this case there was sufficient evidence on record in the form of dying declaration duly proved by D.W. 1 & D.W. 2 because of which the public prosecutor A.D.G.C. (Criminal) noted on the margin of order sheet that he does not want to produce any more witness upon which the hearing of the case was adjourned and, thus, did not cause any prejudice to the accused-appellant. It is also not disputed that after framing of alternative charge, several dates were fixed on which dates additional statements of accused-persons were recorded under section 313 Cr.P.C. and opportunity of additional defence evidence was also given to them and they opted not to seek recall of any prosecution witness for further cross-examination and produced Dinesh, the husband of deceased as D.W.3 and Umesh a neighbour as D.W.4, apart from producing D.W.1 and D.W.2 before alteration of charge. It is also pertinent to mention that after framing of alternative/additional charge, hearing of case was adjourned fixing several dates, giving sufficient opportunity to the accused persons who participated in the proceedings, produced additional defence evidence and arguments were also advanced on their behalf, but not even a single application was ever moved by them seeking recall of any one of the 8 prosecution witnesses for further cross-examination and no such application of accused-appellant was ever rejected by the trial court. In view of the fact on the record, we find that neither the trial court has committed any mistake or error in not recalling the prosecution witnesses suo motu or in not recalling any of the prosecution witness or further cross-examination in absence of any application of accused-appellant, and for alleged non-compliance of the provisions of sections 216 and 217 Cr.P.C., no prejudice has been caused to the accused-appellant and for alleged non compliance of provisions of sections 216 and 217 Cr.P.C., the trial is not vitiated.