Manjhi & Others vs The State
This criminal appeal challenges the conviction and sentencing of the appellants by the Sessions Judge, Tharparkar at Mithi, for murder and causing injuries. The core legal question concerns the procedural validity of the trial court's decision to copy and paste previously recorded evidence after amending the charge to include newly joined accused persons, rather than recording the evidence afresh in the presence of all accused. The High Court held that this procedure violated the mandatory requirement under Section 353 of the Code of Criminal Procedure 1898, which necessitates that evidence be taken in the presence of the accused. Furthermore, the court noted the failure to examine a key injured witness without establishing incapacity through medical evidence, causing prejudice to both the defense and the prosecution. Consequently, the High Court set aside the impugned judgment, remanded the case for a fresh trial, and directed the trial court to record evidence on the amended charge de novo, ensuring compliance with legal procedures within a specified timeframe.
- Can a trial court copy and paste evidence recorded before the amendment of a charge to use against newly joined accused persons?
- Does the failure to record evidence in the presence of the accused violate the requirements of the Code of Criminal Procedure 1898?
- Is it mandatory to medically ascertain the incapacity of an injured witness before dispensing with their examination at trial?
- Section 353, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
IRSHAD ALI SHAH, J. The facts in brief necessary for disposal of instant appeals are that the appellants and co- accused Muhammad Ali allegedly after having formed an unlawful assembly and in prosecution of their common object not only committed murder of Mumtaz Ali but caused injuries to Ahmed, Pat Bhario, Hakim, Javed and Muhammad Ali with hatchet and lathies with intention to commit their murder too and then went away by insulting complainant Akbar Ali and his witnesses, for that the present case was registered.
2. On conclusion of the trial, co-accused Muhammad Ali was acquitted while the appellants were found guilty for the said offence and were convicted and sentenced to undergo various terms of imprisonment spreading over life including fine/compensation/Diyat with benefit of Section 382-B Cr.PC, by learned Sessions Judge Tharparkar at Mithi, vide judgment dated 03rd April 2019, which is impugned by the appellants before this Court by preferring two separate criminal appeals.
3. Heard arguments and perused the record.
4. It is noticed that after examination of complainant Akbar Ali and PW Ahmed, on application so moved accused Muhammad Ali and Zaman were joined by learned Trial Court and charge was amended accordingly , after amendment of the charge, the evidence already recorded by learned trial Court was copied and pasted with simple change, with chance to the newly joined accused to make cross examination to the complainant and PW Ahmed.
Such act, obviously has prejudiced the appellants in their defence seriously for the reason that evidence is to be taken in presence of the accused as is prescribed by section 353 Cr.P.C. Making copy and use of evidence of witnesses already recorded could not be approved. PW Abdul Hakeem has not been examined by the prosecution without formal proof that he is not capable to make statement. His examination was essential as he was one of the injured witness of the incident. If, he was not able to make statement then such fact was to have been ascertained through a medical examination. His non-examination therefore could not be lost sight off. By such omission, not only the appellants but the State/complainant have been prejudiced in its defence seriously .
5. In view of above, the impugned judgme nt to the extent of the appellants is set-aside with direction to learned trial Court to record evidence of the complainant and PW Ahmed on amended charge afresh, as is prescribed by law and then to make the disposal of the case afresh in accordance with law by consid ering the observations recorded above, expeditiously preferably within period of three months after receipt of copy of this order .
6. The appellants (excepting Mumtaz Ali and Ayoub), are on bail, they together with appellant Ayoub (who was on bail at trial) may enjoy the concession of bail, subject to their furnishing fresh surety in sum of Rs.100,000/- each and P .R bonds in like amount to the satisfaction of learned trial Court.
7. The instant Criminal Appeals are disposed of accordingly .