SUPREME COURT OF INDIA
Ishwarchand Amichand Govadia and Others
Vs
State of Maharashtra and Another
Appeal (Crl.) 1051 of 2006 (Arising Out of Slp (Crl.) No. 731 of 2006)
(Arijit Pasayat and L. S. Panta, JJ)
13.10.2006
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.
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.