Kolkata, Feb. 16 -- Observing there has been a "mistrial" causing "failure of justice", the Calcutta High Court has ordered a retrial in a 2008 murder case where although the appellants were charged with culpable homicide in the chargesheet, trial court judgement convicted them of murder without altering the charges.

The bench of Justice Joymalya Bagchi and Justice Gaurang Kanth was moved by the appellants (convicts) challenging the trial court judgement.

Appellants' counsel submitted that Section 304 IPC (culpable homicide) was mentioned in the chargesheet along with other sections. There was no charge for murder which attracts a life imprisonment. However, the trial court in its judgement convicted them under Section 302 IPC (murder) in addition to the other sections. Counsel submitted that by not giving the appellants opportunity to recall witnesses for cross examination in respect of the altered case, resulted in a "mistrial" because of the prejudice caused to them. A retrial was prayed for.

The court observed Section 216 CrPC inter alia gives power to a court to add or alter any charge at any time before the judgment is pronounced. Further, if such alteration prejudices the accused or the prosecutor, the court can direct a new trial or adjourn the trial.

Court also observed that Section 217 CrPC allows a prosecutor or an accused to recall and re-examine witnesses and/or examine any new witness if a charge is altered after commencement of trial.

The court said there has been a failure of justice. Such omissions infract the fair trial rights of the accused and amounts to a mistrial. Setting aside the conviction and sentence, the court directed for reframing of charges under Section 302 IPC and giving appellants the opportunity to recall witnesses for further cross-examination. Trial court was directed to take the trial to its logical conclusion in accordance with law.

In 2008, a quarrel ensued between the appellants and the de-facto complainant Tahabina Bibi over a tree that got uprooted in the storm. The next day the appellants along with other accused persons allegedly attacked her family members with sharp weapons. One person with head injuries died in hospital.

Published by HT Digital Content Services with permission from Millennium Post.