The court has the power to alter or add to any charge at any time before judgment is pronounced, and such alteration should be made to ensure a fair trial to the accused persons as well as to the victim and prosecution.

JUDGMENT

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.

3. In this writ petition, the petitioners who are the accused Nos. 3, 4 and 5 respectively, in Sessions Trial No. 77 of 2013 pending on the file on the learned Sessions Judge, Yavatmal, have challenged the order dated 18.11.2022 passed by the learned Sessions Judge, Yavatmal whereby the learned Sessions Judge has altered the 5th head of the charge.

4. The facts giving rise to this petition may be stated in brief:

The accused persons are facing trial with two more accused for the offences punishable under Sections 302, 120-B, 143, 147, 148, 149 of the Indian Penal Code and Section 4 read with Section 25 of the Arms Act, 1959 and Section 135 of the Maharashtra Police Act, 1951. The chargesheet in the crime was filed on 01.11.2012. On 25.07.2016, the charge was framed against the three accused vide Exh. 133. After arrest of the remaining two accused, the composite charge was framed against five accused on 04.11.2017 vide Exh. 175. The prosecution has examined the witnesses to prove the charge. After recording statement of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 (For short 'the Cr.P.C.), the matter was fixed for argument on 27.07.2022. The argument of both sides was over on 13.09.2022 and the matter was adjourned for judgment.

5. It appears that after studying the matter, the learned Sessions Judge found slight error in the 5th head of the charge. The learned Judge found that the word 'prior to' preceding the date 03.08.2012 remained to be stated in the charge. Learned Sessions Judge found that this 5th head of the charge was not in consonance with the case of the prosecution. Learned Sessions Judge, therefore, proposed to alter the charge in the manner set out in the order below Exh. 1 dated 06.10.2022. The learned Sessions Judge granted an opportunity to the accused persons to file their say to the proposed alternation of charge.

6. The accused persons accordingly filed their say to the proposed alteration in the charge. They opposed the proposed alteration of charge on the ground that alternation of charge, at that stage, would cause grave prejudice to them and ultimately result into miscarriage of justice. They further contended that this exercise is initiated at the behest of the prosecution to fill up the lacuna in the case of the prosecution.

7. Learned Sessions Judge granted an opportunity of hearing to the prosecution and to the accused persons before making the alteration in the charge, as proposed by him. Learned Sessions Judge found that 5th head of the charge was not in consonance with the case of the prosecution. Learned Sessions Judge observed that from the date of lodging of First Information Report it is the case of the prosecution that the accused persons committed murder of Umesh Khandwe pursuant to the criminal conspiracy hatched by them prior to the date of the incident i.e. 03.08.2022. Learned Sessions Judge in order to take care of the grievance, with regard to the prejudice or likely prejudice, to the parties granted liberty to the accused persons to recall or re-summon the witnesses already examined by the prosecution for further cross examination with reference to the altered charge.

8. Being aggrieved by this order passed by the learned Sessions Judge, the accused Nos. 3, 4 and 5 have challenged this order of alteration of charge. I have heard Mr P. W. Mirza, learned Advocate for the petitioners/accused and Ms M. H. Deshmukh, learned APP for the State. Perused the record and proceedings.

9. Learned Advocate Mr Mirza for the petitioners submitted that there was inordinate delay in making alteration in the charge. Learned Advocate submitted that after framing the initial charge, recording of the evidence commenced on 17.01.2018. Learned Advocate pointed out that the accused persons have disclosed their defence during the course of cross examination of