RAJ MANI CHAUHAN, J. - (1.) HEARD learned counsel for the petitioners and learned A.G.A. as well as perused the documents available on record.
(2.) THIS petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the petitioners for setting aside the order dated 25.08.2010, passed by the learned Additional District and Sessions Judge, Court No. 13, Lucknow in Sessions Trial No. 442 of 2009, State Vs Dinesh Kumar and others, under Sections 498 -A, 304 -B I.P.C. and Section 3/4 D.P.Act, Police Station Gosainganj, District Lucknow whereby the learned Additional Sessions Judge has rejected the application moved by the accused -petitioners under Section 260 of the Code for alteration of charge from 304 -B to 306 I.P.C. From a perusal of the record, it appears that accused are facing trial in Sessions Trial No. 442 of 2009 pending against them. The trial court framed charges against the accused under sections 498 -A, 304 -B I.P.C. and Section ¾ Dowry Prohibition Act on the basis of document submitted by the prosecution and hearing the prosecution and defence in this behalf. The prosecution at the trial examined Shiv Mangal (complainant) as PW -1 who was cross examined by the accused. Thereafter, prosecution examined Shyama Devi (PW -2) wife of complainant, but her cross examination was continued. During the pendency of trial, accused -petitioners moved an application under Section 216 of the Code for alteration of charge from 304 -B to 306 I.P.C. on the ground that as per statements of witnesses, deceased Sunita was earlier married with one Sukhmi Lal. She without seeking any divorce from him is said to have remarried with accused petitioner No.1 Dinesh Kumar Rawat, who was already married with one Shanti. There was no legal marriage between the petitioner No.1 and the deceased Sunita. Petitioner No.1 too had not sought any divorce from his wife Shanti. The witnesses admitted this fact that the deceased without seeking divorce from Sukhmi Lal had remarried with petitioner No.1. Therefore, the deceased could not be treated as the wife of Dinesh Kumar Rawat (petitioner No.1). In this way, it was not a case of dowry death; rather it was a case under Section 306 I.P.C. Therefore, charge framed by the trial court against the accused be altered from Section 304 -B to 306 I.P.C. The learned Additional Sessions Judge after hearing the counsel for the parties at length rejected the application with the observation that he had framed charges against the accused on the basis of document produced by the prosecution and hearing the prosecution and the defence in this behalf. The prosecution has examined Shiv Mangal (PW -1) who has been cross examined by the accused. The prosecution has examined Shyama Devi (PW -2) but she has not been cross examined by the accused. The other witnesses are also to be examined. At this stage, it will be not proper to record the finding as to whether the offence under Section 304 -B I.P.C. is made out or not; rather this question will be decided at the appropriate stage.
(3.) LEARNED counsel for the petitioner submits that Section 216 of the Code provides for alteration of charge. Accused moved an application for alteration of charge on the ground that prosecution witnesses in their statements recorded by the Investigating Officer under Section 161 of the Code as well as Shiv Mangal (PW -1) in his statement given before the trial court has specifically admitted that the deceased was married with petitioner No.1 without following any ceremony who was already having wife. The witnesses have also admitted that the deceased was earlier married with one Sukhmi Lal and she without seeking any divorce from him has remarried with petitioner No.1. Therefore, it was not a valid marriage in the eyes of law. The relation of the deceased with accused -petitioner was not better than kept or concubine. Since the deceased was not legally wedded wife of accused Dinesh Kumar Gupta, therefore, it was not a case of dowry death. Learned counsel submits that the trial court overlooking this aspect has rejected the application without dealing with the statements of PW -1 and PW -2. The impugned order is, therefore, illegal and is liable to be set aside.;