Andhra Pradesh High Court - Amravati
Pathan Shabbier 3 Others vs The State Of A.P., on 6 December, 2022
Bench: C.Praveen Kumar, B V Chakravarthi
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B V L N CHAKRAVARTHI
Criminal Appeal No. 100 of 2016
And
Criminal Appeal No. 972 of 2017
COMMON JUDGMENT: (Per the Hon'ble Sri Justice C. Praveen Kumar)
1) The Criminal Appeal No. 100 of 2016 is filed by Accused
Nos.1 and 3 to 5, while Criminal Appeal No. 972 of 2017 is
filed by Accused No.2. As both these appeals are arise out of
Judgment, dated 28.01.2016, in Sessions Case No.427 of
2012, the same are disposed of by this Common Judgment.
2) Originally, five [05] accused were charged on 27.02.2013
as under:
i. Accused Nos.1 to 5 for the offence punishable
under Section 498-A of Indian Penal Code ['I.P.C.'];
ii. Accused Nos.1 and 2 for the offence punishable
under Section 302 read with 34 I.P.C.;
iii. Accused Nos.1 to 5 for the offence punishable
under Section 304B I.P.C.;
iv. Accused Nos. 1 to 5 for the offence punishable
under Section 3 of the Dowry Prohibition Act ['D.P.
Act']; and
v. Accused Nos. 1 to 5 for the offence punishable
under Section 4 of the D.P. Act.
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3) On 19.01.2016, i.e., after completion of trial and just
before the pronouncement of judgment, the learned Sessions
Judge, altered the charges, as under:
i. Accused Nos. 1 to 5 for the offence punishable
under Section 498A of I.P.C.;
ii. Accused Nos. 1 and 2 for the offence punishable
under Section 304-B of I.P.C.;
iii. Accused Nos. 1 and 2 for the offence punishable
under Section 3 of D.P. Act; and
iv. Accused Nos. 1 and 2 for the offence punishable
under Section 4 of D.P. Act.
4) Thereafter, on 25.01.2016, the charges were altered, as
under:
i. Accused No.2 for the offence punishable under
Section 302 of I.P.C.;
ii. Accused Nos. 1 to 5 for the offence punishable
under Section 498A of I.P.C.;
iii. Accused Nos. 1 to 5 for the offence punishable
under Section 304B read with 34 of I.P.C.;
iv. Accused Nos. 1 and 2 for the offence punishable
under Section 3 of D.P. Act; and
v. Accused Nos. 1 and 2 for the offence punishable
under Section 4 of D.P. Act.
5) After considering the evidence available on record, the
learned Sessions Judge convicted Accused No. 2 for the
offence punishable under Section 302 of I.P.C. and sentenced
him to suffer imprisonment for life and to pay a fine of
Rs.5,000/- in default to suffer simple imprisonment for a
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period of six months; Accused Nos. 1 to 5 were convicted for
the offence punishable under Section 304B of I.P.C. and each
of them was sentenced to suffer rigorous imprisonment for
ten [10] years and to pay a fine of Rs.1,000/- in default to
suffer simple imprisonment for a period of three months;
Accused Nos. 1 to 5 were also found guilty for the offence
punishable under Section 498A of I.P.C. and sentenced to
suffer imprisonment for a period of three years and to pay a
fine of Rs.1,000/- in default to suffer simple imprisonment for
a period of three months; Accused Nos. 1 and 2 were further
convicted for the offence punishable under Section 3 of D.P.
Act and sentenced to suffer imprisonment for a period of five
years and to pay a fine of Rs.15,000/- in default to suffer
simple imprisonment for a period of one year; Accused Nos. 1
to 5 were also convicted for the offence punishable under
Section 4 of D.P. Act and sentenced to suffer imprisonment
for a period of one year and to pay a fine of Rs.5,000/- in
default to suffer simple imprisonment for a period of six
months.
6) The docket proceedings dated 18.01.2016 of the Court
below are as under:
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"Except A2 to A5, the petition filed allowed. For framing of
charges, call on 19.01.2016". On 19.01.2016, for framing
of charges, A2 to A5 called present, charges are framed,
read over in Telugu. They denied the same. Call on
21.01.2016. On 21.01.2016, it is posted for arguments. A1
to A5 called present, heard arguments of both sides. For
judgment, call on 25.01.2016."
7) On 25.01.2016, though, the case was posted for
judgment, the learned Sessions Judge altered the charges
stating as under:
"A1 to A5 called present, altered the charges and added
charges, framed and read over to the accused. The
accused denied in one tone. As same charges were
already framed, before altering the charges, and also the
case is purely on dying declaration, no trial is required.
Hence posted for judgment on 27.01.2016."
8) On 27.01.2016 the accused were present, but it was
adjourned to 28.01.2016 as the Stenographer was on medical
leave. On 28.01.2016, the judgment was pronounced, in the
manner indicated above.
9) One of the objections raised before the Court is, whether
the matter requires a remand having regard to the manner in
which the charges are framed, arguments are heard and the
judgment was pronounced?
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10) It is to be noted here that, after the completion of trial
and after the case was reserved for judgment on 18.01.2016,
the case was posted to 19.01.2016 for framing of charges and
a new set of charges were framed on 19.01.2016, to which the
accused pleaded not guilty. In the charges framed on
19.01.2016
, there is no reference to charge under Section 302
read with 34 I.P.C. against Accused No.1 and 2 and for that
matter, any of the accused, and the charge was under Section
304B I.P.C. against Accused No.1 and 2 only. Thereafter, the
charges under Sections 3 and 4 of D.P. Act were framed only
against Accused No.1 and 2, while original charges framed on
27.02.2013 were against all the five accused.
11) A perusal of the docket orders would show that, the
case was posted for arguments on 21.09.2015, on which date,
arguments were heard and it was posted for judgment on
25.01.2016. On that day, another set of charges came to be
framed, whereby Accused No.2 alone was charged for the
offence punishable under Section 302 I.P.C.; Accused No. 1 to
5 for the offence punishable under Section 304B read with 34
of I.P.C. Meaning thereby, that the charge under Section 302
I.P.C. which was not there on 19.01.2016 came to be framed
on 25.01.2016. Similarly, charge under Section 304B of I.P.C.
was framed against all the accused, apart from the charge
under Section 498A I.P.C. against Accused Nos. 1 to 5 and
Sections 3 and 4 of D.P. Act against Accused Nos. 1 and 2.
The reason given by the learned Sessions Judge for not
reopening the case for trial is, that all the witnesses turned
hostile and the entire case rests on dying declaration.
12) Without giving an opportunity of advancing arguments
on the charges framed on 25.01.2016, the learned Sessions
Judge, convicted Accused No. 2 for the offence punishable
under Section 302 I.P.C. and sentenced him to suffer
imprisonment for life, while convicting Accused Nos. 1 to 5 for
the offence punishable under Section 498A I.P.C., Section 4 of
D.P. Act [though there was no charge under Section 4 of the
D.P. Act against Accused Nos. 3 to 5] and under Section 3 of
the D.P. Act, against Accused Nos. 1 and 2.
13) From the above, it is apparent that charges came to be
framed two days before the judgment against Accused No.2
for capital punishment and without giving any opportunity of
advancing arguments, pronounced the judgment convicting
him for the offence punishable under Section 302 I.P.C.
14) Further, the docket proceedings, dated 19.01.20165,
21.01.2016 and 25.01.2016, make it clear that the charges
which were framed on 19.01.2016 are not in addition to the
charges already framed on 27.02.2013. It appears that, a
fresh set of charges came to be framed on 19.01.2016. In the
charges framed on 19.01.2016, for reasons best known, there
was no charge for the offence punishable under Section 302
I.P.C. against any of the accused and also against Accused
Nos. 3 to 5 for the offence punishable under Section 304B
I.P.C. Arguments were heard on 21.01.2016 and, thereafter,
the case was posted for judgment on 25.01.2016. On that
day, the learned Sessions Judge, altered the charges and
framed new charges.
15) It is very much essential to note here that, after
25.01.2016, case was not heard again. As state earlier, a
charge under Section 302 I.P.C. came to be framed against
Accused No.2 on 25.01.2016, which was not there on
19.01.2016 [prior to hearing of arguments]. Hence, an
opportunity of hearing ought to have been given to the
accused. It is no doubt true that no objection was raised by
the accused at the time when the charges were framed, but,
we feel that, there was no opportunity for them to raise an
objection, for the reason that, by then the arguments were
over. Things would have been different had the result is one of
acquittal, but, since, one of the accused is convicted for a
grave offence punishable under Section 302 I.P.C. and
Accused Nos. 3 to 5 were also convicted for the offence
punishable under Section 304B read with 34 I.P.C. and
sentenced to 10 years of imprisonment, though such a charge
was not there on 19.01.2016, we hold that grave prejudice
has been caused to the accused.
16) It is also to be noted here that, the charge under Section
4 of the D.P. Act was framed against Accused Nos. 1 and 2
only on 19.01.2016 and 25.01.2016, but, strangely, the
learned Sessions Judge, convicted all the five accused for the
offence punishable under Section 4 of the D.P. Act. The
reasons given by the leaned Judge that since all the witnesses
have turned hostile and the case rests only on dying
declaration, cannot be an answer to the manner in which the
proceedings were conducted, more so, when the accused are
convicted for grave offences punishable under Sections 302
and 304B I.P.C.
17) Having regard to the manner in which the case has been
dealt with by the trial Court and taking into consideration the
manner in which charges were framed, more particularly, two
days prior to the judgment and without giving an opportunity
to advance arguments in respect of the altered charges and
for the charges on which conviction is given, more
particularly, under Section 302 I.P.C. against Accused No.2,
we deem it proper to remit the matter back to the said Court
with a direction to the said Court to deal with the matter in
accordance with law.
18) At this stage, learned Additional Public Prosecutor
would contend that, since all the witnesses have turned
hostile; as the case is based on dying declaration, and taking
into consideration the nature of charges framed, it would be
desirable if the accused are given an opportunity to cross-
examine the Investigating Officer as well, if required. Hence,
the trial Court shall give an opportunity to the accused, if
required or if an appropriate application is made to examine
the Investigating Officer, and then proceed further in
accordance with law.
19) Accordingly, the Judgment under challenge is set-aside
and the matter is remanded back to trial Court, with a
direction to the trial Court to proceed with the matter from
the stage of examination of Investigating Officer. Further, if
any of the accused wants to examine, any of the official
witnesses, and if any such application is made, the same
shall be dealt with at the earliest in accordance with law. It is
needless to mention that entire process shall be completed
within a period of three [03] months from the date of receipt of
a copy of this Judgment. Since, Accused Nos. 1, 3 and 5 are
on bail and in view of the representation made that Accused
No. 2 has been granted remission and released in terms of
Government Order issued by the Government, the learned
Sessions Judge, shall secure the presence of Accused Nos. 1,
3 and 5 and release them on bail till appropriate orders are
finally passed in the Sessions case. In case of any conviction
and senctence on remand, the period of imprisonment
undergone by the accused and the remission granted by the
Government may also be taken into consideration.
20) We also place on record a word of appreciation to the
assistance rendered by Sri. D. Purnachandra Reddy,
Advocate, and also to Sri. Soora Venkata Sainath, learned
Special Additional Public Prosecutor.
21) Consequently, miscellaneous petitions, if any, pending
shall stand closed.
______________________________
JUSTICE C.PRAVEEN KUMAR
____________________________________
JUSTICE B V L N CHAKRAVARTHI
Date: 06.12.2022
Dmr/psk...-
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B V L N CHAKRAVARTHI
Criminal Appeal No. 100 of 2016
And
Criminal Appeal No. 972 of 2017
(Per the Hon'ble Sri Justice C. Praveen Kumar)
Date: 06.12.2022
Dmr/psk...-
