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CASE NO.: Appeal (crl.)  1051 of 2006

PETITIONER: Ishwarchand Amichand Govadia & Ors

RESPONDENT: State of Maharashtra and Anr

DATE OF JUDGMENT: 13/10/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT:

J U D G M E N T    (Arising out of SLP (Crl.) NO. 731 OF 2006)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellants call in question legality of the judgment  rendered by a learned Single Judge of the Bombay High Court  dismissing the Criminal Writ Petition no. 1770/2004 filed  under Article 227 of the Constitution of India, 1950 (in short  the ’Constitution’).

       Background facts in a nutshell are as follows:

       Appellants are facing trial for alleged commission of  offences punishable under Sections 306, 498A read with  Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’).   The case of the prosecution is that Sharmila, daughter of the  complainant was married to appellant no.3 and appellant nos.  1, 2 and 4 are her father-in-law, brother-in-law and mother- in-law respectively.  The Sessions Case No. 3791 of 2003 is  pending trial in the Court of IV Additional Sessions Judge,  Thane.  An application was filed before the Trial Court by the  complainant through the prosecuting counsel for producing  the death certificate dated 10.4.2004 indicating cause of death  as certified by Dr. R.M. Dhotre.  The accused persons opposed  acceptance of the document as evidence on the ground that  along with police papers a certificate of death, dated 18.5.2000  by Dr. R.M. Dhotre, was filed which stated the probable cause  of death to be cardio respiratory failure due to acute  respiratory failure. In the subsequent certificate a different  cause of death was indicated.  That being so, it was submitted  that the subsequent certificate should not be taken on record.             The Trial Court held that the production of the certificate  dated 10.4.2004 cannot be decided at that stage as  prosecution has not explained as to how the certificate was  sought to be brought on record after 4 years.  Therefore, the  matter relating to production of the certificate was kept in  abeyance to be decided after examination of Dr. R.M. Dhotre.  On the same date another application was filed for adding  charge under Section 304B IPC. The trial Court accepted this  prayer which was affirmed by the High Court. Same is the  subject matter of challenge in this appeal.

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       It was submitted that the trial Court having already  decided in the connected application that the question of  accepting the subsequent document would be taken up after  the examination of doctor, should not have altered the charge  primarily based on the same document.   

       In response, learned counsel for the respondent-State  submitted that the charge can be altered at any time and there  is nothing wrong in the order passed by the Trial Court.  It is  submitted that since charge can be altered at any stage,  no  prejudice has been caused to the accused.

       There is no quarrel with the proposition that the charge  can be altered at any stage. But the question is whether in  view of the order passed on the same date the order relating to  alteration of charge has been passed by the Trial Court.  It is  to be noted that the Trial Court itself noted that as per the first  certificate the cause of death was cardio respiratory failure  due to acute respiratory failure. It, however, noted that some  chemicals were noted in the viscera.  The effect of the presence  of those chemicals has necessarily to be considered in the  background of both the subsequent certificates, in case the  latter certificate is taken on record.  That being so, it would be  proper for the Trial Court to defer the question of framing  charge under Section 304B after examination of Dr. R.M.  Dhotre and relevance of the subsequent certificate and its  acceptability.   

       The High Court has failed to consider the relevant   aspects and, should not have dismissed the application. The  impugned order is set aside.    

       The appeal is allowed.