(2016) 3 MLJ (Crl) 116 (SC)
R. Rachaiah vs. Home Secretary, Bangalore
Date of Judgment : 05.05.2016
Charge – Alteration of Charge – Recall of Witnesses – Code of Criminal Procedure, 1973 (Code 1973), Sections 216 and 217 – Indian Penal Code, 1860 (Code 1860), Sections 302, 306, 364, 365 and 34 – Appellants/accused charged under Sections 306 and 365 read with Section 34 of Code 1860 – Trial Court convicted accused under Sections 302 and 364 read with Section 34 of Code 1860 – Accused filed appeal alleging that since alternative charge under Section 302 of Code 1860 wrongly framed without following procedure under Sections 216 and 217 of Code 1973, trial in relation to conviction under Section 302 of Code 1860 vitiated – Accused alleged that there could not be conviction under Section 364 of Code 1860 as well in absence of specific charge under said Section – High Court dismissed appeal – Present appeals – Whether trial against accused vitiated, as alternative charge under Section 302 of Code 1860 wrongly framed without following procedure under Sections 216 and 217 of Code 1973 – Held, when Appellants charged with offence under Section 306 of Code 1860, focus and stress in cross-examination shall be on that charge alone – At fag end of trial, charge altered with “Alternative Charge” with framing of charge under Section 302 of Code 1860, same gives altogether different complexion and dimension to prosecution case – In order to take care of said prejudice, it was incumbent upon prosecution to re-call witnesses, but nothing of that sort happened – Only one official witness/Deputy Superintendent of Police examined on same date when alternative charge framed – Case was not even adjourned as mandatorily required under Sub-Section (4) of Section 216 of Code 1973 – Provisions of Sections 216 and 217 are mandatory in nature as they not only sub-serve requirement of principles of natural justice but guarantee right which is given to accused to defend themselves – Cross-examination of witnesses is important facet, but there is no cross-examination of these witnesses with regard to charge under Section 302 of Code 1860 – Trial stands vitiated and no conviction under Section 302 of Code 1860 – Charge under Section 302 of Code 1860 was in substitution of earlier charge under Section 306 of Code 1860 as both charges cannot stand together – Appeals allowed.