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CR.RA/804/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 804 of
2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
ASHISH
ASHOKBHAI MALHOTRA & 4 - Respondent(s)
=========================================================
Appearance
:
MR
JS SHAH, ASST. PUBLIC PROSECUTOR
for
Applicant(s) : 1,
MR SHAKEEL A QURESHI for Respondent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 07/10/2010
ORAL
ORDER
1.0 State has preferred
this revision application against an order dated 27.07.2009, passed
by the learned 3rd Additional Sessions Judge, Surat, below
application Exhibit-44 in Sessions Case Nos.7 and 143 of 2005.
2.0 Briefly stated
facts are as follows:
2.1 Respondents are
original accused. Against them above-mentioned Sessions cases are
going on. The charge framed is one punishable under Sections 306,
342, 330, 201 read with Sections 120(B) and 34 of the Indian Penal
Code. In the said trial, the State filed application Exhibit-44,
seeking to add charge under Section 302 of the Indian Penal Code.
The Session Court was requested to alter the charge, accordingly. At
one stage, such request was granted, by an order dated 30.11.2006.
That order was challenged by the accused before the High Court. The
learned Single Judge, by an order dated 05.05.2009, passed in
Criminal Miscellaneous Application No. 807 of 2006, challenging the
order of the Sessions Court, remanded the proceedings for fresh
consideration, in accordance with law, without being influenced by
the said order.
2.2 In the second
round, by the impugned order dated 27.07.2009, the Sessions Court
rejected the said application and, thus, maintained the charge
framed, previously.
3.0 I have heard
learned Advocates appearing for the parties and perused the documents
on record.
3.1 Substantial trial
is already conducted, depositions of witnesses are recorded. The
case of the prosecution is that the deceased Shantilal @ Utamji died
due to asphyxia(Strangulation). The deceased was employed in the
establishment of the accused. For some alleged irregularity in the
accounts, he was detained, abused and tortured for over two days.
His family members were not alleged to visit him. Ultimately, he was
brought to a hospital and was abandoned, and was found dead.
3.2 Above allegations
are required to be established on record, with respect to which I
express absolutely no opinion. However, above allegations have made
on the basis of other evidences sought to be produced on record,
which would suggest that, as per the medical evidence there were
injury marks on several parts of the body of the deceased. These
injuries were found ante-mortem. Certain internal injuries were also
noticed during post-mortem. It is, however, true that the cause of
death, as opined by the Doctor, is due to suffocation due to
strangulation. Whether the deceased hanged himself or whether he was
strangulated is a question, which the Sessions Court shall have to
decide, while conducting the trial. At this stage, it cannot be
conclusively held that, there is no case for proceeding against the
accused under Section 302 of the Indian Penal Code. I have noticed
that majority of the witnesses have turned hostile. However, there
are certain circumstantial factors, which need to be taken into
account, before coming to the final conclusion. In other words, upon
alteration of the charge, as I propose, there shall be further
examination of the witnesses. They shall also be re-examined, if so
desired, by the accused.
3.3 At this stage,
however, the application of the State for alteration of charge, could
not be and should not be disallowed.
4.0 In
the result, the impugned order 27.07.2009, passed by the learned 3rd
Additional Sessions Judge, Surat, below application Exhibit-44 in
Sessions Case Nos.7 and 143 of 2005, is QUASHED. The
learned trial Judge shall frame the charge under Section 302 or, in
the alternative, under Section 306 of the Indian Penal Code and
shall, thereafter, take further steps, under the provisions of Code
of Criminal Procedure. The other charges shall STAND.
4.1 I
have expressed no opinion, whatsoever on the evidence on record or
culpability of the accused, which shall be judged by the trial Court,
on the basis of the evidence that may come on record. This petition
is disposed of, in the above terms.
(AKIL
KURESHI, J.)
Umesh/
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