- (1.) HEARD learned counsel appearing for the petitioners and learned counsel appearing for the Informant as well as learned counsel appearing for the State.
(2.) THIS application is directed against the order dated 13.02.2013 passed in Sessions Trial No.07 of 2000, whereby and whereunder the court after making alteration in the charge denied the opportunity to the defence to cross -examine the witnesses examined earlier on behalf of the prosecution. Mr. Anil Kumar, learned counsel appearing for the petitioners submits that both the petitioners were put on trial on the charge that they did not commit murder intentionally of one Vinod Singh and on framing of charge, the witnesses were examined and after examination of all the prosecution witnesses, the statements of the accused persons were recorded and then the matter was fixed for argument and then at that stage, charge was altered, whereby, it was charged that the petitioners also did commit murder of one Manu Ansari. After the charge was altered, the court did not find fit to give opportunity to defence to recall the witnesses for cross -examination as according to the court, the accused persons had cross -examined the witnesses by taking that it is a case of double murder, but here, the court did commit illegality for the reason that once the charge has been altered, the court was duty bound to recall or re -examine the witnesses examined on behalf of the prosecution for their cross - examination, in view of the provision as contained in Sub -Clause (a) of Section 217 of the Cr.P.C., but the court did not consider this aspect of the matter rather placed reliance on the provision as contained in Sub -Section (3) and (4) of Section 216 of the Criminal Procedure Code only and thereby, the court did commit illegality in refusing to summon the witnesses for cross -examination.
(3.) MR . Rajan Raj, learned counsel appearing for the informant submits that the trial proceeded right from beginning by taking that it is a case of double murder, which would be evident from the fact that the prosecution did examine P.Ws.1, 2, 6, 10, 11, 17, and 18 and also adduced documentary evidences such as Exhibits 2/1, 2/3, 4, 6, 11 which evidences are related to murder of Manu Ansari and those witnesses had even been cross -examined by the defence and, therefore, the court did not consider it fit in the light of the provision as contained in Sub -Section (3) of Section 216 of the Cr.P.C. to allow the defence to summon or recall the witnesses and thereby, the court never committed any illegality.;