Full Judgment
Inder Sen Israni, J.
1. This is Criminal Revision under Section 397 read with Section 401, Cr. PC against the order dated 22-8-1986 passed by learned Additional Sessions Judge, Kota, No. 2 in Sessions Case No. 43 of 1984 whereby an application filed by the prosecution for amendment of charge has been accepted and a charge under Section 302, I.P.C. has been ordered to be framed against the petitioner.
2. For the purposes of this petition it will suffice to state that seven accused persons including the petitioner Prabhu are facing trial on account of murder of deceased Bhanwari and charges under various sections have been framed against them. On 12-10-1984 the learned Additional Sessions Judge framed charges against all the accused persons and accused Chandrabhan was charged to have committed offence under Sections 147, 148, 302, 324 and 149 read with Sections 325 and 323, I.P.C. The accused petitioner Prabhu was charged under Sections 147, 148, 302, 324 & 149 read with Sections 325 and 323, I.P.C. The prosecution examined as many as sixteen witnesses in support of their case and the prosecution's evidence was completed on 25-4-1986. Thereafter, the statements of the accused persons under Section 313, Cr. PC were recorded on 2-6-1986. Case was thereafter fixed for defence and final arguments on 27-6-1986, 18-7-1986, but arguments were finally heard on 26-7-1986. Thereafter, the case was fixed for judgment on 31-7-986.
3. An application was filed by the prosecution on 30-7-1986 requesting for amendment in the charge Under Section 302, I.P.C., which was framed against the accused petitioner. It was stated in this application that on the basis of statement of all the witnesses it was fit and proper to amend the charge as prayed in the application. The reply to this application was filed on behalf of the petitioner opposing the amendment of charge. After hearing both the parties the learned Trial Court vide it's order dated 22-8 1986 amended the charge sheet and framed a charge under Section 302 against this petitioner also.
4. I have heard the learned Counsel for the petitioner Shri K.K. Marish and also learned Public Prosecutor Shri Suresh Sharma appearing for the State. The learned Counsel for the petitioner Shri K.K. Marish appearing on behalf of the petitioner, has urged that the trial of the case is proceeding in the lower court since last about two and half years. He has pointed out that the application is belated and filed with malafide intention with a view to fill up the lacuna of the prosecution case after the arguments were heard by the court and the case was fixed up for pronouncement of judgment on 31-7-1986. He has stressed that it amounts to abuse of the process of the court and lower court has erred in accepting the said application. He has also pointed out that the learned Trial Court in its order under revision has. stated that it is proper to amend the charge on the basis of the statements of witnesses Kesri Lal, Ramchandra and Bajrang Lal whose statements were recorded under Section 164, Cr. PC and these witnesses in their above mentioned statements have stated that petitioner Prabhu had hit deceased Bhanwari with 'Cutiya' on her head on account of which, her death took place. He has further pointed out that as per the FIR lodged by eye witness Heera Lal, it was accused Chandrabhan who caused this injury with 'Cutiya' on the head of the deceased and as per post mortem report Ex. P. 9, the death of the deceased Bhanwari took place due to this injury. He has, therefore, contended that the learned court has already framed change under Section 302 I.P.C. against the accused Chandrabhan and now after the final arguments in the case were heard, an amendment in the charge has been made against the accused petitioner charging him to have committed offence under Section 302 I.P.C. He has, therefore, contended that the learned Trial Court has erred in using statements recorded under Section 164 Cr. PC as piece of substantive evidence. The learned Counsel has further stressed that this will cause serious prejudice to the petitioner and if the amended charged is allowed to stand this will virtually amount to reopening of the whole case & the petitioner who has been under going the proceedings for about two and half years in the court will have to undergo the ordeal of going through another few years in this process.
5. The learned Public Prosecutor has supported the order under revision passed by the Trial Court and has urged that the trial court is authorised to amend the charge at any stage, if, it deems fit to do so. He has further stated that PW 10, PW 11 and PW 12 in their statements recorded in the court have stated that it was Prabhu who caused injury on head of the deceased with 'Cutiya'
6. It is clear from the record that the statements recorded under Section 164 Cr. PC were available to the learned Trial Court at the time when the charge against the accused petitioner was framed in the year 1984. However, inspite of these statements the learned Trial Court did not frame any charge against the accused petitioner under Section 302 IPC. When the case was finally heard and was fixed for pronouncement of judgment, the prosecution filed this application for amendment of charge, which they were at liberty to have filed earlier also. It is desirable that an application for alteration and addition to the charge should be made as early as possible. This will avoid any prejudice that may be caused to the accused persons if such amendment applications are filed as such late stage as this application has been filed. The statements recorded under Section 164 Cr. PC were available with the prosecution and if it was thought that the accused petitioner should be charged to have committed offence under Section 302 I.P.C., this could have been done even at the time or soon after the charge was framed in the first instance by the Trial Court.
7. I am, therefore, of the opinion that amendment of the charge at this highly belated stage when the final arguments of the case were heard is likely to cause prejudice to the case of the petitioner who has already undergone ordeal of going through the court proceedings for quite a long time.
8. This revision petition is, therefore, accepted and the order dated 22-8-1986 amending the charge against the petitioner is set aside and the application for amendment filed on behalf of the prosecution is dismissed.