MOOSA ABDUL RAHIMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE question referred to the Full Bench for decision concerns the interpretation of Section 217 of the Code of Criminal procedure, 1973 (Act No. 2 of 1974 ). This section broadly corresponds to Section 231 of the Criminal Procedure Code, 1898. Section 217 reads as follows: Recall of witnesses when charge altered: Whenever a charge is altered or added to by the Court after the commencement of I he trial, the prosecutor and the accused shall be allowed

(2.) THE skeletal facts necessary for the appreciation of the question raised are the following: The case was initially tried by the Court of Session, Allep-pey. Charges were framed against accused 1 to 3 on 30-10-1978 for offences punishable Under Sections 302, 326 and 324 read with Section 34 of the penal Code. The charges- were duly read over and explained to accused; they pleaded not guilty to the charges.

(3.) EXERCISING powers Under Section 216 of the Code, the Second Additional Sessions Judge, Ernakulam, to whose court the case stood transferred on the basis of an order of this Court, amended the charge before the.-judgment was pronounced. The facts which led to such amendment of the charges have been given by the Sessions Court in para 3 of the judgment under appeal. The Sessions Judge records; In the charge framed by the learned Sessions Judge. Alleppey, it is seen that there has been an omission to specify the overt acts attributed to the second accused with reference to Koyappu. Under Section 216 of the Code, the Court may alter or add to any charge at any time before judgment is pronounced. The materials on record even before the charge was framed by the court showed that on Koyappu falling to the ground, he was stabbed also by the second accused with a knife. Hence the second count of charge has to be amended by adding after the words "al Abdul Rahiman again stabbed him two or three times", and before the words "with a dangerous weapon like knife", the following words: "with the dagger on his back and that A2 Haneefs also stabbed Koyomon two or three times on his back. " The charge accordingly is so amended by me before judgment is pronounced. The amended charge was read over and explained to the accused upon which they again pleaded not guilty to the charge. The Sessions Judge found accused 1 and 2 guilty and sentenced them. The details of the offences in respect of which they have been held guilty and the sentences passed against them are not material for the purpose of (his reference and are not therefore given.