Full Judgment Text
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CASE NO.:
Appeal (crl.) 1051 of 2006
PETITIONER:
Ishwarchand Amichand Govadia & Ors
RESPONDENT:
State of Maharashtra and Anr
DATE OF JUDGMENT: 13/10/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) NO. 731 OF 2006)
ARIJIT PASAYAT, J.
Leave granted.
Appellants call in question legality of the judgment
rendered by a learned Single Judge of the Bombay High Court
dismissing the Criminal Writ Petition no. 1770/2004 filed
under Article 227 of the Constitution of India, 1950 (in short
the ’Constitution’).
Background facts in a nutshell are as follows:
Appellants are facing trial for alleged commission of
offences punishable under Sections 306, 498A read with
Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’).
The case of the prosecution is that Sharmila, daughter of the
complainant was married to appellant no.3 and appellant nos.
1, 2 and 4 are her father-in-law, brother-in-law and mother-
in-law respectively. The Sessions Case No. 3791 of 2003 is
pending trial in the Court of IV Additional Sessions Judge,
Thane. An application was filed before the Trial Court by the
complainant through the prosecuting counsel for producing
the death certificate dated 10.4.2004 indicating cause of death
as certified by Dr. R.M. Dhotre. The accused persons opposed
acceptance of the document as evidence on the ground that
along with police papers a certificate of death, dated 18.5.2000
by Dr. R.M. Dhotre, was filed which stated the probable cause
of death to be cardio respiratory failure due to acute
respiratory failure. In the subsequent certificate a different
cause of death was indicated. That being so, it was submitted
that the subsequent certificate should not be taken on record.
The Trial Court held that the production of the certificate
dated 10.4.2004 cannot be decided at that stage as
prosecution has not explained as to how the certificate was
sought to be brought on record after 4 years. Therefore, the
matter relating to production of the certificate was kept in
abeyance to be decided after examination of Dr. R.M. Dhotre.
On the same date another application was filed for adding
charge under Section 304B IPC. The trial Court accepted this
prayer which was affirmed by the High Court. Same is the
subject matter of challenge in this appeal.
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It was submitted that the trial Court having already
decided in the connected application that the question of
accepting the subsequent document would be taken up after
the examination of doctor, should not have altered the charge
primarily based on the same document.
In response, learned counsel for the respondent-State
submitted that the charge can be altered at any time and there
is nothing wrong in the order passed by the Trial Court. It is
submitted that since charge can be altered at any stage, no
prejudice has been caused to the accused.
There is no quarrel with the proposition that the charge
can be altered at any stage. But the question is whether in
view of the order passed on the same date the order relating to
alteration of charge has been passed by the Trial Court. It is
to be noted that the Trial Court itself noted that as per the first
certificate the cause of death was cardio respiratory failure
due to acute respiratory failure. It, however, noted that some
chemicals were noted in the viscera. The effect of the presence
of those chemicals has necessarily to be considered in the
background of both the subsequent certificates, in case the
latter certificate is taken on record. That being so, it would be
proper for the Trial Court to defer the question of framing
charge under Section 304B after examination of Dr. R.M.
Dhotre and relevance of the subsequent certificate and its
acceptability.
The High Court has failed to consider the relevant
aspects and, should not have dismissed the application. The
impugned order is set aside.
The appeal is allowed.