MANUBHAI HARIDAS RATHOD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeals filed under Sec. 374 of the Criminal Procedure Code, 1973 (for short, 'the Cr.PC'), emanate from the judgment and order of conviction and sentenced dtd. 30/10/2021, passed by Sessions Judge, Bhavnagar, in Sessions Case No.127 of 2019, wherein and whereby the trial court has convicted the accused for the offences punishable under Sec. 302 read with Sec. 114 of the Indian Penal Code, 1860 (for short, 'the IPC'), though they were charged for the offence punishable under Ss. 306 and 114 of the IPC.

(2.) At the outset, learned advocate Mr.Tolia for the appellants ' original accused Nos.1 to 3 has submitted that the trial Court has committed grave error by ignoring the provisions of Ss. 216 and 217 of the Cr.PC and the accused are held to be guilty of graver offence of murder, which carries capital punishment, without altering the charge or framing the charge and without giving opportunity of hearing to the accused to meet such charge.

(3.) In support of his submissions, learned advocate Mr.Tolia placed reliance on the judgment of the Supreme Court rendered in the cases of ' (1) Wakil Yadav and Another vs. State of Bihar, (2000) 10 S.C.C. 500, (2) Babu @ Balasubramaniam and Another vs. State of Tamil Nadu, (2013) 8 S.C.C. 60; and (3) Shamnsaheb M. Multani vs. State of Karnataka, (2001) 2 S.C.C. 577. Hence, he has urged that the matter may be remanded back to the trial Court for framing of appropriate charge by setting aside the judgment and order of conviction.