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9. The trial court considering evidence of prosecution witnesses was when going to deliver the judgment, found it expedient to alter/amend the charge. Accordingly on 11.8.1992 additional charge was framed. Bijendra Yadav and Subedar Ram were charged for offence punishable under section 302 of the Indian Penal Code and all other accused were charged for offence punishable under section 302/149 of the Indian Penal Code, besides charge earlier framed under Section 396 of the Indian Penal Code All the accused persons claimed to be tried for the altered charge and also filed a petition under Section 217 Cr.P.C. for cross examination of ten witnesses on the point of newly added charge. The witnesses were noticed by the trial court but out of 10 witnesses only P.W.5 was produced by the prosecution for cross examination. P.W.5 was not a witness on the point of actual murder. The judgment was delivered on 14.2.1994 and the trial court recorded following finding " Thus, on careful scanning of oral evidence, as well as critical analysis of defence story, I am of the considered opinion that prosecution has been able to prove the prosecution story against at least 21 accused persons. However, there is some controversy with respect to application of exact sections. Originally all accused persons were charged under Section 396 of the Indian Penal Code. Later on, on 11th August 1992 , on the date of delivery of judgment my predecessor had adjourned the date of judgment and added further charge under Section 302 of the Indian Penal Code against Bijendra Yadav and Subedar Ram and charge under Section 302/149 of the Indian Penal Code against remaining."

12. The first point which has been raised by Mr. Akhileshwar Prasad counsel appearing for the appellants is that the conviction of appellants under Section 302 as well as under Section 302/149 of the Indian Penal Code is illegal and perverse considering the fact that initially the appellants were charged for offence under Section 396 of the Indian Penal Code by the trial court by order dated 15.11.1990. The witnesses were examined by prosecution and at the stage of delivering the judgment the charge was amended and Section 302, 302/149 of the Indian Penal Code was also added under the amended charge. At this stage petition was filed by the accused persons under Section 217 Cr.P.C. showing their intention to cross examine ten witnesses on the point of amended charge. On petition of the defence prosecution was directed to produce ten witnesses for cross examination but prosecution failed to produce the witnesses except P.W.5. So far P.W.5 is concerned he has not deposed on the point of actual murder as such the defence had no opportunity to cross examine the witnesses on the point of amended charge under Section 302 and 302/149 of the Indian Penal Code. Section 217 Cr.P.C. provides that whenever charge is altered or added to by the Court, the prosecutor and the accused shall be allowed to recall or re- summon witnesses already examined and re-examined with reference to such alteration or addition, unless the court, for reasons to be recorded in writing, considers that recalaling or re-examination of witness is vexatious or for the purpose of delaying or for defeating the ends of justice. This provision is to give appropriate opportunity to the accused to defend himself. The trial court in view of section 217 Cr.P.C. and having genuine doubt in this regard did not convict the accused persons under Section 302 or 302/149 of the Indian Penal Code. All accused were acquitted of the charge under Section 302, 302/149 of the Indian Penal Code. Admittedly no appeal was preferred by the State against the acquittal of the accused persons under Section 302/149 of the Indian Penal Code. In this circumstance when the matter was remanded back by the Apex Court to the trial court for re-trial starting from the stage of recording statement under Section 313 Cr.P.C. there was no fresh materiala or evidence before the trial court for convicting the appellants under Section 302 and 302/149 of the Indian Penal Code as the legal lacuna