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2008 DIGILAW 82 (JHR)

Fakhruddin Khan v. State of Jharkhand

2008-01-29

D.K.SINHA

body2008
Order The petitioners have preferred this Cr. Rev. for setting aside the impugned order dated 6.4.2004 passed by the 1st Additional Sessions Judge. Garhwa, whereby he permitted the prosecution to add charge under section 3046 lPC against the accused persons exercising the provisions of Section 216 Cr. P.C. in S.T. No.195 of 2001/86 of 2002. 2. The prosecution story, in short, was that the complainant Mustaque Khan presented a complaint Case No. 560 of 1999 in the Court of CJM, Garhwa alleging inter alia against the petitioners and others that he had married his daughter Nausaba Khatoon with the petitioner NO.1 Fakhruddin Khan in the month of May. 1996, according to their personal customs and after marriage she went to her matrimonial home where she lived peacefully for about one and half years. It was further alleged that thereafter the petitioners started putting pressure upon his daughter asking that certain piece of lands be transferred in the name of her husband and when such demand could not be fulfilled. they started perpetrating torture to Nausaba Khatoon in various manner, mentally and physically. It was further alleged that one of the brothers of the complainant was issueless and when he expressed his willingness to dispose of his house of Sarcany, the accused persons finding opportunity mounted pressure upon the deceased Nausaba Khatoon to ask her father to impress his brother to execute such transfer in the name of her husband. When their demand could not be fulfilled. the misery of the deceased multiplied and ultimately, it was alleged, that all the accused persons including the petitioners, with the meeting of their minds committed murder by administering poison to -her. The complainant was informed about the death of his daughter at Ranchi Hospital and he was apprised that she vomitted after taking medicine and she died during her treatment. When the case was not instituted at the police station in spite of the post mortem examination, the complaint case was filed but prior to that. the accused persons had terrorized complainant and one Kashi Khan obtained signatures of the complainant and another on certain document forcibly. 3. Mr. When the case was not instituted at the police station in spite of the post mortem examination, the complaint case was filed but prior to that. the accused persons had terrorized complainant and one Kashi Khan obtained signatures of the complainant and another on certain document forcibly. 3. Mr. Delip Jerath, the learned counsel for the petitioners submitted that the complaint was referred to the police station and accordingly, Mamiawo P.S. Case No. 77 of 1999 was registered on 4.11.1999 for the offence under Sections 498A/3871 1206/3046/201 read with Section 34 of the Indian Penal Code and after investigation the police submitted charge-sheet against the petitioners but only under Sections 498N/306/34 of the Indian Penal Code as the other offence being found not attracted. 4. Mr. Jerath further pointed out that after examination of about 16 witnesses, out of them 13 were unfavorable to the prosecution, a petition was filed by the prosecution under section 216 Cr. P. C. for addition of charge under section 3046 of the Indian Penal Code against• the five accused persons and the same was allowed by the impugned order which is under challenge. 5. Mr. Jerath, the learned counsel stressed by submitting that amongst three, said to be the material prosecution witnesses, none of them is the eye witness and therefore, addition of charge under Section 3046 of the Indian Penal Code by the impugned order would amount to de novo trial of the accused persons which should not have been allowed which immensely caused prejudice to them: The intention of the prosecution was only to lingering the matter. Otherwise also all the examined witnesses, 16 in number would be recalled for their further cross-examination in view of the addition of charge, which would hamper the right of the petitioners of speedy trial. 6. The learned A.P.P. opposed the contention and submitted that the order impugned was well discussed which did not warrant interference in any manner and the same was drawn on the basis of the materials collected in course of trial of the petitioners. 7. Having regard to the facts and circumstances of the case, l find that the learned 1st Additional Sessions Judge by impugned order has allowed the petition filed under Section 216 of Cr. P.C. by a convincing order. Section 216 of Cr. 7. Having regard to the facts and circumstances of the case, l find that the learned 1st Additional Sessions Judge by impugned order has allowed the petition filed under Section 216 of Cr. P.C. by a convincing order. Section 216 of Cr. P.C. empowers the trial court to alter or add any charge at any time before the judgment is pronounced which shall be read and explained to the accused. Similarly Section 217 of Cr. P.C. provides that whenever a charge is altered or added, after 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; (b) also to call any further witness whom the court may think to be material 8. l further find that the Addl. Sessions Judge, Garhwa by discussing the materials on the record has -drawn an appropriate order and has allowed the addition of charge against the accused petitioners for the offence under Section 304B lPC with the opportunity to recall all the 16 prosecution witnesses for their further examination. In my view only those prosecution witnesses may be recalled who supported the prosecution case. 9. With such modification in the order impugned this petition is dismissed with the direction that trial be concluded preferably within three months from the date of receipt of this order.