The amalgamation of distinct trials is illegal, violating the accused's right to a fair trial and resulting in a failure of justice.

JUDGMENT :

Ramesh Chand Malviya, J.

Heard Mr. Krishna Prasad Singh, learned Senior counsel for the appellant assisted by Ms. Meena Singh, Advocate and Mr. Z. Hooda, APP for the State.

2. The present appeal arising out of the judgment and order dated 19.12.2012 passed by learned Adhoc Additional Session Judge-III, Munger whereby and where under the appellant has been sentenced to undergo rigorous imprisonment of 10 years for the offence punishable under Section 304 B of the Indian Penal Code (hereinafter referred as “IPC”) and rigorous imprisonment for 2 years and fine of Rs. 1,000, in default of payment of fine, rigorous imprisonment for 30 days for the offence punishable under Section 498A of the IPC.

3. Learned counsel for the appellant submits that the impugned judgement of conviction and order of sentence are not sustainable in the eye of law or on facts. Learned trial Court has not applied its judicial mind and erroneously passed the judgement of conviction and order of sentence. Learned counsel for the appellant submitted that order dated 21.01.2009 of case record shows that after recording the statement of accused under Section 313 of the Cr.P.C. in both Session Trial, the defence filed an application for seeking permission to examine DWs in S. Tr. No. 504 of 2006 and on 12.02.2009 prosecution prayed to amalgamate both Session Trials. So, on 05.03.2009 the learned Trial Court ordered to amalgamate both Session Trials bearing S. Tr. No. 504 of 2006 and S. Tr. No. 592 of 2001 (arising from Kotwali P.S. Case No. 272 of 2000) which was not in accordance with law.

4. Learned counsel further submitted that an order of amalgamation was passed at belated stage which was not according to law as in both cases many witnesses were already examined and it is also clear from para-6/page-4 of judgment that during course of argument, the learned Trial Court found that amalgamation of both cases was not in accordance with law. Therefore by the order dated 12.09.2012 both the cases were separated with this order that "the evidence recorded against accused persons of both the cases in S. Tr. No. 592 of 2001 shall be considered while deciding the instant case i.e. S. Tr. No. 504 of 2006 and both the cases shall be disposed off simultaneously but separately.

5. Learned counsel further submitted that section 465 (1) Cr.P.C. clearly states that no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation of revision on account of any error, omission or irregularity in the complain summons, warrant, proclamation, order, judgment or other proceedings under this code, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. Therefor these record can be considered for the ends of justice so that appellant may not be prejudiced.

6. On deeply studied and scrutinized the facts of the present case and the materials available on record, it has come to my notice that on 20.09.2007, charges against 15 accused persons were framed under Section 498A, 304B read with 34 of the IPC and Section 3 and 4 of the Dowry Prohibition Act. Further, charges were read over and explained to the accused persons in hindi to which they pleaded not guilty and claimed to be tried. On 05.03.2009, the learned Sessions Judge has ordered to amalgamate the S.T. No. 504 of 2006 with S.T. No. 592 of 2001 which was the original Sessions trial in which two accused persons were facing trial and conducted the trial as S.T. No. 592 of 2001. This record was received to learned Sessions Court file at the stage of defence evidence. One defence witness (DW-5) was examined by learn