SHANKAR GAGRAI Vs. STATE OF BIHAR (NOW JHARKHAND)

JUDGEMENT

(1.) THIS appeal is directed at the instance of the appellants against the impugned judgment and order dated 2.8.2000 and 4.8.2000 respectively passed in Sessions Trial No. 142 of 1986 by 3rd Additional Sessions Judge, Chaibasa, whereby and whereunder, all the appellants were found guilty for the offence punishable under Sections 364/34 read with Section 148 and 149 of the Indian Penal Code and they were each sentenced to undergo rigorous imprisonment for ten years and three years respectively and also to pay a fine of Rs. 2000/ - each and in default thereof to undergo further rigorous imprisonment for one year. However, both the sentences were ordered to run concurrently.

(2.) BRIEF facts leading to their conviction are that the informant Pangila Kui stated before the Officer -in -Charge of Toklo Police Station, District -Singhbhum at 11.00 hours on 14.11.1985 at Village - Laujora Kala Tola Damadiri Sai that about 14 days back, she was informed by Kachha Gagrai that many people were searching her husband and son to kill them. She has further stated that they left for Village - Sargidih to save their life. She further stated that in the night at about 7.00 -8.00 P.M., 30 to 40 people arrived at the house of the informant then she got herself hiding in the hedge. But the assailants took away household articles. Thereafter the informant and her daughter -in -law left for Village - Sargidih where her husband and son were hiding in the house of Hindu Gagrai. 3. After five days, when she was hiding in the house of Hindu Gagrai, Bagan Gagrai of her village came there in early morning before sunrise and searched the husband and the son of the informant. She further asserted that she saw a large number of people armed variously outside the house, on which she started weeping. She was forced to disclose where her husband and son were hiding, thereafter 30 to 35 persons named in the fardbeyan armed variously with sharp cutting weapon etc. were seen going with her husband Vikram Gagrai and her son Chokro Gagrai, their hands tied. 4. Further case of the prosecution is that on the next day, she could find the dead body of her husband and son buried in the riverbed. According to her version, the villagers named above, have killed those two persons because they suspected that the daughter of Manki Gagrai remained ill due to witchcraft played by her husband and son. 5. The police investigated the case and finally submitted charge sheet against 29 persons under Sections 147, 148, 149, 364, 302, 201 and various other offences of the Indian Penal Code. The case was committed to the Court of Sessions for trial where 27 accused persons were charged to face trial under Sections 148, 302 and 201 of the Indian Penal Code while one Manki Gagrai was charged under Section 411 of the Indian Penal Code. The said Manki Gagrai died during trial. 6. Later on, trial of some of the accused persons was separated, as they were found juvenile. All these appellants faced trial and the trial court after examining them under Section 313 of the Code of Criminal Procedure (at the fag end of trial) vide order dated 2.8.2000 added charge under Section 364 of the Indian Penal Code as provided under Section 216(3) of the Code of Criminal Procedure. The trial court further explained the added charge to the appellants same day and pronounced the judgment holding them not guilty under Sections 302/201 of the Indian Penal Code but convicting them under Sections 148, 364/34 read with Section 149 of the Indian Penal Code. 7. This appeal has been preferred mainly on the grounds that the trial court has erred on records by believing the solitary evidence of P.W.3, a partisan witness who could not support her own statement made before the police. The other point raised by the learned Counsel for the appellants is that the trial court has committed a mistake on record by passing the order of conviction under Section 364 without giving chance to the appellants to controvert the charges added on just one day before the judgment. The memo of appeal vide ground Nos. 9 to 14 from page - 22 to 23 specifically asserted that the appellants were prejudiced by not being provided fair chance and opportunity to cross -examine the witnesses after addition of charge under Section 364 of the Indian Penal Code. Apart from this, the appellants counsel argued on I he merit of the case. 8. Learned A.P.P. opposed the contention on the grounds that the conviction of the appellants was based on facts on records. However, he fairly conceded that the learned lower court by adding charge under Section 364 of the Indian Penal Code just one day prior to the judgment has failed to provide reasonably opportunity to the appellants to defend themselves adequately. 9. On careful perusal of the facts on records, it is apparent that the appellants were charged to face trial under Section 302 of the Indian Penal Code along with other sections of the Indian Penal Code. It further appears that on 2nd August 2000, the trial court added charge under Sections 364/34 read with Section 149 and 148 of the Indian Penal Code against the appellants but no formal charge has been framed on the record. Neither they were examined under Section 313 of the Code of Criminal Procedure after the addition of the charge. It further appears that the prayer for cross -examination of witnesses of added charge was not allowed by the trial court and the judgment was delivered. 10. In the above mentioned facts and circumstances where nineteen accused persons have been sentenced to serve rigorous imprisonment for added charge under Section 364 of the Indian Penal Code only, the learned trial court has apparently erred by not providing the defence an opportunity to cross -examine the witnesses after addition of charge and also by not putting the facts leading to addition of charge for proper explanation as required under the provisions of law under Section 313 of the Code of Criminal Procedure. In such view of the facts, I find that the conviction dated 2.8.2000 cannot be sustained. Accordingly, this submission of the learned Counsel for the appellants has got merit and is allowed. 11. But the fuels remains that two persons were done to death and charge under Section 364 of the Indian Penal Code has been added which deserves to be decided on merit. I, therefore, remand this record for proper appreciation of facts in accordance with law by the trial court after framing the charge under Section 364 of the Indian Penal Code and allowing opportunity to cross -examine the witnesses and decide the case on merit. Since the occurrence is said to be twenty years back, the trial court shall complete the hearing of the trial within four months from the date of receipt/production of a copy of this order along with original records. With the aforesaid observation, this appeal stands disposed of.