DASHAMANI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The applicants Dashamani and Khilari alias Dinesh were convicted by the learned 3rd Additional Munsif Magistrate, Gyanpur, district Varanasi under Sections 323 and 325, I.P.C. Under Section 323, I.P.C. they were awarded three months' R.I. and a fine of Rs. 100.00 each and under Section 235, I.P.C. they were awarded one year's R.I. and a fine of Rs . 500/- each. The applicants filed Criminal Appeal No. 67 of 1991 in the Court of Sessions at Varanasi. The appeal came up for hearing before Special Judge (E.C. Act)/Additional Sessions Judge, Varanasi and it was discovered that in the memo of appeal there was no mention of the sentence awarded to the applicants under Section 325, I.P.C. Thereupon the applicants made an application 24-Kha dated 26- 2-1994 praying that they may be permitted to include Section 325, I. P.C. in the memo of appeal. The learned Additional Sessions Judge by his impugned order dated 11-11-1998 rejected the application on the ground that there was no provision in law for allowing such an amendment in the memo of appeal. The applicants have challenged this order by means of this application.

(2.) I have heard Sri N.K. Sharma, learned counsel for the applicant, Sri Jagdish Tiwari learned State Counsel and Sri Jagdish Singh Sengar, learned counsel for the complainant.

(3.) I have considered the points raised by the learned counsel on either side. Section 374(3), Cr.P.C. states :-