JUDGMENT :

1. Heard Sri Ajay Kumar Mishra, learned counsel for the appellants and learned A.G.A. for the State. Sri Lokesh Kumar Mishra, learned counsel for the informant has absented himself.

2. This appeal challenges the judgment and order dated 5.8.2010 passed by Additional Sessions Judge Fast Track Court No.1, Meerut in Sessions Trial No. 735 of 1997 (State vs. Anees and others) convicting accused-appellants under Section 302/149 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellants to undergo imprisonment for life with fine of Rs.2,000/- each and in case of default of payment of fine, further to undergo imprisonment for a period of two years.

3. The five accused were alleged to have committed an offence, on 15.4.1997 when all of them pursuant to their common intention to do away with Ajeej s/o Ahmad Majeed, who had borrowed the sum of Rs.50,000/- from one Anees @ Gama. On 15.4.1997 at about 6:00 PM, when informant and his brother went the residence of Anees @ Gama for getting back the money. At that time, Anees @ Gama holding an iron rod, Nasreen also had an iron rod, Firoz was having a brick, Nafees had stick in his hand and Hafeez Khurshid, Ujer and Anees @ Gama tried to assault the persons and exalted that as the deceased and his brother were daily demanding money, they be done to death. A quarrel ensued between the parties. Anees @ Gama did away with Ajeej on F.I.R. being lodged, the prosecution was moved into motion and accused were alleged to have committed an offence under Section 147, 148 read with section 302 I.P.C.

4. On investigation being put into motion, the investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate summoned the accused and committed to them to Court of Sessions as prima facie charges were for offences under Sections 302 I.P.C.

5. On being summoned, the accused-persons pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 6 witnesses who are as follows :

6. In support of ocular version following documents were filed :

7. After prosecution witness were over and the documents being exhibited, the accused-appellants examined D.W.-1 & 2 namely, Mohd. Yamin and Mohd. Nausad. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid.

8. The main assailant Anees @ Gama has passed away during the pendency of this appeal. The other co-accused, who is assigned the role and portrayed as Nasreen @ Naseem, Firoz and Uzair. The three accused, who have been assigned the role of doing away with the deceased, the accused have been tried for commission of offence under Section 302 read with section 149 I.P.C. and have been convicted for the same.

9. Learned counsel for the appellants has submitted that the alteration of charge, after the trial was over, could not have been framed and this is bad in the eye of law. In support of this submission he has relied on the decision of the Division Bench of this Court penned by one of us (Dr. K.J. Thaker) in Criminal Appeal No. 5657 of 2011 (Santosh vs. State of U.P.) decided on 22.2.2021. Charges could not have been re-framed so as to take it to the higher charge.

10.