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Pralhad Ramji Surjuse And Ors.-vs-State Of Maharashtra on 6 January, 2004

Bombay High Court Pralhad Ramji Surjuse And Ors.-vs-State Of Maharashtra on 6 January, 2004
Equivalent citations:II (2004) DMC 763
Author: D Deshpande
Bench: D Deshpande, P Brahme

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. M.R. Daga, Advocate for the appellants and Mr. Mira, A.P.P. for the respondent-State.

2. All the three accused-appellants have been convicted by the IInd Additional Sessions Judge and Special Judge, Amravati for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and they have been sentenced to suffer life imprisonment and to pay a fine of Rs. 100/- each and in default of payment of fine, they shall suffer rigorous imprisonment for one month more. Further by the said judgment, all the accused were acquitted for the offence punishable under Sections 498A, 304-B read with Section 34 of the Indian Penal Code.

3. Mr. Daga, the learned Counsel for the accused-appellants made only one submission that originally the charges under Sections 304-B and 498A r/w. Section 34 of the Indian Penal Code were framed against the accused-appellants and the trial proceeded in its entirety against both the charges. However, on the date of arguments, the learned prosecutor before the Trial Court filed an application for framing additional charge under Section 302 of the Indian Penal Code. The learned Sessions Judge allowed that application and framed additional charge under Section 302 r/w. Section 34 of the Indian Penal Code and recorded plea of the accused and, thereafter, prosecution filed a pursis vide Exh. 91 that the prosecution does not want to lead any further evidence after framing of the additional charge. Thereafter, the Counsel for the accused i.e., defence Counsel also filed its pursis vide Exh. 92 to the effect that the accused does not want to lead any defence evidence after framing additional charge under Section 302 r/w Section 34 of the Indian Penal Code. Then the learned Sessions Judge heard arguments of both the Advocates on merits and on the next date i.e., on 15th September, 1999, delivered the judgment covicting the accused under Section 302 r/w Section 34 of the Indian Penal Code and acquitted them under Sections 498A and 304-B r/w Section 34 of the Indian Penal Code.

4. It is in this background that Mr. Daga, Advocate submitted that conviction of the accused-appellants for the offence under Section 302 r/w Section 34 of the Indian Fatal Code at the fag end of the trial, without giving any opportunity to the accused to cross-examine the witnesses, has resulted in serious miscarriage of justice and has caused great prejudice to the accused. He drew our attention to the pursis filed by the defence Advocate vide Exh. 92, wherein defence Advocate merely stated that the defence does not want to lead defence evidence after framing of the Additional charge under Section 302 of the Indian Penal Code. Mr. Daga, Advocate submitted that nowhere defence Advocate has submitted in his pursis that he does not want to cross-examine the witnesses with reference to the newly added charge. He, therefore, prays that the judgment and order of the Court be set aside and the matter be remanded back for enabling the prosecution and the accused-appellants to face the trial under Section 302 r/w Section 34 of the Indian Penal Code.

5. Mr. Daga, Advocate also relied on the judgment of the Supreme Court reported in I (2001) CCR 172 (SC)=I (2001) SLT 682=2001 (2) SCJ 99, Shamnasaheb M. Multtani v. State of Karnataka, wherein, in a case under Section 302 of the Indian Penal Code, the Trial Court has convicted the accused under Section 304-B of the Indian Penal Code as an alternative to charge without the said offence being specifically put in the charge. The Supreme Court held that this could not be done and if at all it was to be done, the accused was required to be put to notice. Therefore, the Supreme Court sent the matter for re-trial from the stage of defence evidence.

6. Mr. Mirza, the learned A.P.P., though has not quarrelled with the legal proposition of Mr. Daga, Advocate he stated that if the judgment and order of the Sessions Judge is to be set aside, then the trial has to be both on the newly added charge under Section 302 r/w Section 34 of the Indian Penal Code and under Sections 498-A and 304-B of the Indian Penal Code because the judgment if set aside, it will have the effect of setting aside the sentence ordered under Section 302 of the Indian Penal Code and also setting aside acquittal of the accused under Sections 498-A and 304-B of the Indian Penal Code. We find considerable force in the submission. Therefore, in view of the fact that the alternate charge under Section 302 r/w Section 34 of the Indian Penal Code was framed at the last stage with no opportunity to the accused-appellant to cross-examine the witnesses, we pass the following order.

ORDER

The order of the IInd Additional Sessions Judge and Special Judge, Amravati dated 15.9.1999 convicting the appellants-accused under Section 302 r/w Section 34 of the Indian Penal Code and acquitting them under Sections 498-A and 304-B r/w. Section 34 of the Indian Penal Code is set aside in its entirety.

The matter is remanded back to the Court which will give an opportunity to prosecution to lead evidence, if any in support of the charge under Section 302 r/w Section 34 of the Indian Penal Code and also give an opportunity to the defence to cross-examine the witnesses already examined or who may be examined after remand and also to examine defence witness, if any. Thereafter, the judgment will be delivered after hearing both the sides in respect of the three charges.

We direct the Sessions Judge, Amravati to finish the trial in the aforesaid manner by 30th April, 2004 in any case. The defence lawyer will give full cooperation in that regard.

Accused-appellant No. 2 Sau. Sarubai Ramji Surjuse shall be released because of this order of remand on her furnishing PR. bond of Rs. 7,500/- with one solvent surety in the like amount before the Sessions Judge, Amravati.

The record and proceedings and the order be immediately sent to the concerned Sessions Judge, Amravati.

Appellant Nos. 1 and 3 to be produced before the Sessions Judge, Amravati and appellant No. 2 to remain present before the Sessions Judge, Amravati on 20th January, 2004.

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