ABDUL MASJID SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners, original accused persons, have approached this court under section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code") to challenge the order dated 26.6.1995 of the learned Sessions Judge, Valsad whereby charges were framed against the petitioners for the offences punishable under sections 323, 342 and 306 read with section 114 and, in the alternative under section 302 read with section 114 of the Indian Penal Code, 1860 (for short, "the IPC"), besides the offences under section 3 of the Schedules Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Atrocities Act"). After the petition being admitted in July 1995 and grant of ad-interim relief, the ad-interim relief of stay of further proceeding of Sessions Case No.18 of 1992 pending against the petitioners in the court of the learned Sessions Judge, Valsad was directed to continue till further orders. And, the matter has come up for final hearing after eleven years without any addition to the record which consists of only the petition, without any affidavit, and the impugned order.

(2.) According to the petition, chargesheet had come to be filed in the court of the learned Additional Sessions Judge and it was registered as Atrocity Case No.18 of 1992. Thereafter, the court framed charges for the offences punishable under sections 3(1)(vi), 3(1)(x), 3(1)(xv) of the Atrocities Act and sections 323, 342, 306 and 506 (1) read with section 114 of the IPC. The prosecution examined 5 witnesses and produced documentary evidence. The medical officer had, on post mortem examination, found that the deceased had died due to cardio-respiratory failure due to asphyxia due to hanging. It was not the case of the prosecution that during the examination of the medical officer it was found to be a homicidal death. After the evidence of the prosecution witnesses, statement of the accused was recorded, arguments were heard, written submissions on behalf of the accused were presented and the matter was fixed for judgment. It was thereafter that the learned Sessions Judge framed fresh charges at Ex.50 and added alternative charge of the offence under section 302 of the IPC.

(3.) Learned counsel Mr.A.D.Shah relied upon the judgment of the Supreme Court in State of West Bengal v Laisal Haque [ AIR 1989 SC 129] in support of the submission that section 218 of the Code embodied the general rule as to the trial of accused persons which provided for separate trial of each accused person for every distinct offence and was based on the fundamental principal of criminal law that accused person must have notice of the charge which he has to meet. Section 221 which is an exception to section 218 was to be applied only when, from the evidence led by the prosecution, it was doubtful which of several offences was committed by the accused person. But there must not be any doubt as to a single act or series of acts which constituted the transaction. The doubt must be as to the inference to be deduced from these facts, but there must not be any doubt as to the facts. He also relied upon the observations of the Supreme Court in Lokendra Singh v. State of M.P. [1999 SCC (Cri.) 371 and in Sangaraboina Sreenu v. State of A.P. [1997 SCC (Cri.) 690] for the proposition that an offence under section 306 of the IPC was not a minor offence in relation to section 302 of the IPC within the meaning of section 222 of the Code as the two offences were of distinct and different categories.