VIKAS Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) In this revision preferred under S. 401 of the Code of Criminal Procedure,1973 (hereinafter referred to as 'the Code') the petitioners have called in question the legal validity of the order dated 11-5-2001 passed by the Second Additional Sessions Judge, Burhanptr, District, Khandwa In Sessions Trial No. 145/2000.

(2.) The facts as have been unfurled are that Sunita, sister of the applicants Nos. 1, 3, 4 and 5 and daughter of the applicant No. 2, was married to one Pramod son of Shambha Ji. After solemnisation of the marriage, Sunita went to her matrimonial home where she was ill-treated by her husband, father-in-law and other relations as a consequence of which she committed suicided on 1-8-2000. The investigating agency registered offences punishable under Ss. 498-A/ 34 and 304-B of the Indian Penal Code (in short 'the IPC') against the husband, Pramod, in-laws of the deceased and some other relations. It has been putforth in the petition that the applicants after receiving information relating to the death of Sunita, reached her in laws' house on 2-8-2000 at 9-30 a.m. As alleged by the prosecution the applicants made enquiry about the death of Sunita and on not getting satisfactory reply they started beating her husband, Pramod, and mother-in-law, Ranjanabai, as a result of which she sustained certain injuries. The report of this incident was lodged by the husband, Pramod, which gave rise to a crime for offences under Ss. 307 and 147 of the IPC. Later on, Ranjanabai succumbed to the injuries in the hospital while availing treatment and offence under S. 302 of the IPC was added, Eventually a charge-sheet was filed in respect of the aforesaid offences against the applicants, who faced trial before the learned Second Additional Sessions Judge, Burhanpur, Distt, Khandwa. The trial Court framed charges against the applicants for the offences punishable under Ss. 147, 294, 302 and 307 of the IPC. It is averred, in course of the trial the prosecution witnesses were examined. At this stage the file relating to Sessions Trial No. 145/2000 was sent to the District Judge (Vigilance) for inspection and the District Judge (Vigilance) gave a note that an additional charge under S. 149 of the IPC should be framed against the applicants. On the basis of the aforesaid the learned trial Judge framed an additional charge under Ss. 302/149 and 307/149 of the IPC. On 11-5-2000, it has been averred that this charge was framed as an alternative charge to what had been framed earlier. The petitioners had denied the charge and submitted an application under S. 217 of the Code for recall of the eye-witnesses who had been examined for the purpose of cross-examination in the light of framing of an additional charge under S.149 of the IPC. The trial Judge rejected the said application on the ground that S. 149 of the IPC is not independently punishable and eye-witness have already been cross-examined. It has also been observed by the learned trial Judge that the prosecution was not examining any other witnesses and, therefore, there was no justification to allow the application.

(3.) Assailing the aforesaid order it is submitted by Mr. S. L. Kochar, learned counsel for the petitioners that the learned trial Judge has committed gross illegality in appreciating the changed factual scenario in as much as he has failed to consider the real import and impact of S. 149 of the IPC. The learned counsel has submitted that by addition of the charge under S. 149 of the IPC there has been a metamorphosis of the factual backdrop in entirety inasmuch every accused will be held responsible under S. 302/149 of the IPC or for that matter under S. 307/149. The learned counsel has further canvassed that as at the time of cross-examination the charge under S. 149 of the IPC was not framed, there was no cross-examination on that score and hence, it has become essential to recall the witnesses for the purpose of cross-examination.