Sandeep vs The State Of Madhya Pradesh
2022 Latest Caselaw 3915 MP

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       IN THE HIGH COURT OF MADHYA PRADESH AT
                    GWALIOR
                         CRR No. 991of 2022
          (SANDEEP AND ANOTHER Vs THE STATE OF MADHYA PRADESH )

Gwalior, Dated 22.03.2022

       Shri P.K. Kulshreshtra with Sonam Sharma, learned counsel for

the petitioners.

       Shri Ramadhar Choubey, learned Public Prosecutor for the

respondent/State.

This revision has been filed against the impugned order passed on

07.03.2022 by which prayer of the petitioners to recalls the witnesses

already examined has been rejected.

In brief, facts of the case are that wife of the petitioner Neetu died

due to drowning within 6-7 years of her marriage. After marg enquiry

Crime under Sections 304-B/34 of IPC was registered against him and

his mother Anguri. After investigation charge-sheet has been filed under

the aforesaid offence and charges were framed. During trial, at lateral

stage, trial Court amended the charge on 07.07.2022 and framed charge

under Section 306 IPC in addition to 304-B IPC. Petitioner denied the

aforesaid charge. On questioning from prosecution whether they want to

adduce any further evidence, they denied but from asking the

petitioners/accused persons, their advocate expressed that they want to

re-cross the witnesses Narendra(PW-1), Bhagwanlal Dhakad (PW-2),

Gangaram (PW-5), Vimla (PW-6), Hemant Singh Sisodiya (PW-7) and

Dhanpal (PW-9). But this was not allowed and it was rejected on the

ground that witnesses have been previously cross examined at length.

Sections 216 and 217 of Cr.P.C.are reproduced as under:-

216. Court may alter charge.

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

Section 217 of Cr.P.C. Whenever a charge is altered or added to by the Court

after the commencement of the trial, the prosecutor and the accused shall be

allowed-

(a) to recall or re- summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re- examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

Normally application should be allowed to recross examining the

witnesses already examined at the wish of accused persons. By

dismissing the request of accused to re-examine the witnesses already

examined is debarring them to cross examination for witnesses on alter

charge.

On the combined reading of Sections 216 and 217 of Cr.P.C., it is

therefore, evident that after an alteration or addition or the charge the

interest of the prosecution and the accused has to be safeguarded by

permitting them to further examine or cross-examine the witness already

examined, as the case may be, and by affording them an opportunity to

call other witnesses.

With the aforesaid discussion, this Court is of the opinion that the

learned trial Court by rejecting the prayer of the petitioners to recross the

witnesses Narendra(PW-1), Bhagwanlal Dhakad (PW-2), Gangaram

(PW-5), Vimla (PW-6), Hemant Singh Sisodiya (PW-7) and Dhanpal

(PW-9) is not according to law and facts and circumstances of the case.

Petition is hereby allowed. Learned trial Court is directed to issue

summons aforesaid witnesses for re-cross examination by the petitioners.

                                                 (Deepak Kumar Agarwal)
mani                                                    Judge


SUBASRI MANI
2022.03.24
11:23:34 -07'00'