MANTU BHANDARI ALIAS PARESH BHANDARI SON OF SARJU BHANDARI, RESIDENTS OF VILLAGE BHALGARHA, PO,PS AND DISTRICT Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) In all there are three appeals on hand viz Cr. Appeal (DB) No. 441 of 2015 filed by Mantu Bhandari @ Paresh Bhandari, Cr. Appeal (DB) No. 446 of 2015 filed by Sarju Bhandari and his wife Chandni Devi @ Chando Devi and Cr.Appeal (DB) No. 456 of 2015 filed by Manoj Bhandari. All the four appellants have been convicted for the offence under Sec. 304(B) Penal Code for which they have been sentenced to undergo rigorous imprisonment for ten years, two years under Sec. 201 Penal Code and another two years under Sec. 498-A IPC. All the sentences, however have been ordered to run concurrently.

(2.) It is stated at the Bar by learned counsel for appellants that except Manoj Bhandari-husband of deceased, remaining three co-accused (appellants herein) were on bail, during trial, and are now in custody after suffering conviction vide impugned judgment of learned Additional Sessions Judge, Jamtara dated 12th May, 2015. All the appellants are now praying for suspension of sentence.

(3.) At the very outset, counsel for appellants submitted that appellant-Manoj Bhandari by now has undergone five years of his substantive sentence out of sentence of ten years slapped upon him for the main charge of Sec. 304-B IPC. On merits, learned counsel submitted that a grave irregularity has been committed by learned trial court which has caused prejudice to the appellants in this case. He submitted that initially charge against all the appellants was framed under Sec. 302 Penal Code but subsequently during trial, an application was moved by the State under Sec. 216 of the Code of Criminal Procedure for amending the charge from 302 Penal Code to 304(B) IPC, which prayer was declined by the court and that the State did not assail the said order till the culmination of trial. Learned counsel submitted that despite there being no charge framed against the appellants for offence punishable under Sec. 304(B) IPC, they have been convicted for the said charge whereas no finding has been returned vis-a-vis charge of 302 IPC. Learned counsel submitted that this has caused prejudice to the appellants, inasmuch as they were not put to any notice or granted an opportunity to disprove the prosecution, which is available to the prosecution under Sec. 113(B) of the Indian evidence Act and that the complete trial faced by appellants was for the charge of 302 Penal Code .