* 1 * Cri.Appln. 4671.2010 25.11.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4671 OF 2010 IN SESSIONS CASE NO. 33 OF 2009 Samir Ramakant Kavtekar & anr. .......Applicants V/S. State of Maharashtra & anr. .........Respondents * * * * * * Mr. M.G. Shukla i/by. Mr. Girish Kulkarni, Advocate for the applicants Mr. Aniket Nikam, Advocate for the victim. Mr. V.N. Kondedeshmukh, APP for the respondent-State. Coram : Smt. R.P. SondurBaldota, J. 25 November, 2010. P.C. : 1. This Criminal Application seeks to challenge the order dated 14th September, 2010 passed by the Sessions Court, Mumbai on an application filed by the prosecution under Section 216 and 221 Criminal Procedure Code for alteration of the charge framed earlier by adding the offences punishable under Section 347, 387, 506 read with Section 34 Indian Penal Code, 364A read with Section 511 Indian Penal Code. The application was opposed by the applicants who are the accused persons contending that the application for * 2 * Cri.Appln. 4671.2010 25.11.2010 alteration of charge was being made at the fag end of the trial by which time nine witnesses had been examined by the prosecution and only two witnesses apart from the Investigation Officer had remained to be examined. 2. The brief facts of the case are that, on 27th April, 2006 FIR 43 of 2006 came to be registered with Malbar Hill Police Station at the instance of Anil Pratap Veer Bahadur Singh for the offences punishable under Section 306 read with Section 34 Indian Penal Code against the applicant and others. The complainant was working as a driver with Pramod Kumar Sharma, the victim of the incident who is yet to be examined. He stated that on the date of the incident at about 6.30 p.m. Pramod Kumar Sharma had asked him to bring applicant no.1 who was waiting near Shalimar Hotel near Breach Candy Hospital. When Anil Singh went with the vehicle to Shalimar Hotel, he found that there were two more persons alongwith applicant no.1. They claimed to be the friends of applicant no.1. All the three were brought by car to the house of Pramod Sharma. Anil Singh saw that applicant no.1 and Pramod Sharma were sitting on the lawn talking to each other. They were * 3 * Cri.Appln. 4671.2010 25.11.2010 also taking drinks. He could not hear the conversation because of the distance, as well as, the glass partition. He however noticed that Pramod Sharma was under tension and he was in between speaking to somebody over telephone. After some time, Pramod Sharma, applicant no.1 and another person accompanying him suddenly stood up. Anil Singh felt that they may be leaving the house and hence came near the car. Within a short time, he learnt that somebody had fallen from the first floor of the bungalow of Pramod Sharma. He rushed to the place to see that the person was Pramod Sharma. He was injured. He immediately moved Pramod Sharma to Breach Candy Hospital. During the commotion, applicant no.1 and his friends who had come to the house of Pramod Sharma vanished from the scene. On the basis of this statement, FIR came to be registered for the offence punishable under Section 307 read with Section 34 Indian Penal Code. The police, however, subsequently recorded the statement of Pramod Sharma in the hospital on 10th May, 2006. It was recorded in question and answer form. The answers were written down by Pramod Sharma because he was not in a position to speak. * 4 * Cri.Appln. 4671.2010 25.11.2010 Subsequently, detailed statement of Pramod Sharma came to be recorded on 11th June, 2006. In his statement, he had disclosed the facts leading to his wrongful confinement for the purpose of extorting money from him and also keeping him in fear of death and grievous hurt with the help of a firearm. He deposed that applicant no.1 and other persons were carrying revolvers at the relevant time. They were also forcing him to accompany them to Pune. The two statements of Pramod Sharma formed part of the chargesheet. Despite the fact, they were not taken into consideration at the time of framing of charge on 12th November, 2009. The charge was framed based only upon the statement of Anil Singh. 3. It appears that the error in the framing of charge was realised only when the prosecution proposed to examine Pramod Sharma and his wife as witnesses in the Sessions case. Since there was a patent error in the charge, the Sessions Court thought it expedient in the interest of justice to alter the charge by adding Sections 347, 387, 506 read with Section 34 and Section 364-A read with Section 511 Indian Penal Code. It further observed that the * 5 * Cri.Appln. 4671.2010 25.11.2010 victim and his wife were yet to be examined and moreover the defence can be given an opportunity to cross-examine all the witnesses, who had already been examined, by calling them if so desired, for further cross-examination, so that no prejudice is caused to the defence. 4. The view taken by the learned Sessions Judge is a right view. It is obvious from the record that no proper attention was given by the learned Sessions Judge while framing the charge on 12th November, 2009. It was necessary for the Sessions Judge to take into consideration the entire record of the case and the documents submitted therewith to frame the charge. Instead, the statement of Anil Singh alone, was apparently read for framing the charge. In the circumstances, the Sessions Court was justified in altering the charge. As has been rightly held by the Sessions Court, the applicants can be afforded an opportunity to further cross-examine the witnesses already examined, in order to meet the ends of justice. Hence, the application is dismissed. [Smt. R.P. SondurBaldota, J]