JUDGMENT :

1. Heard Sri A.K. Mishra, Sri Sati Shanker Tripathi, learned counsel for the appellants and learned A.G.A. for the State and perused the record.

2. Learned AGA submits that he has filed counter affidavit on 30.01.2023.

3. Learned counsel for the appellants candidly declined to file any rejoinder affidavit to the counter affidavit filed by the State and requested the Court to decide the case on merits.

4. This appeal is preferred by the appellants, namely,(i) Chhotai son of Panchu, (ii) Yogesh Kumar Son of Rajendra Prasad, (iii) Shivdhari Pasi Son of Panchu, (iv) Budhani Son of Panchu, and (v) Rajendra Prasad Son of Panchu, all resident of village Akorha, P.S. Oonjh, District Bhadohi, who are languishing in jail since 19.11.2022 pursuant to the judgment and order passed by Additional Sessions Judge/ Special Judge (SC/ST Act), Court No.II, Bhadohi, Gyanpur while deciding the S.T. No. 118 of 2017 (State Vs. Chhotai and others) arising out of case crime no.43 of 2016, under Section 302 IPC, Police Station-Oonjh, District-Bhadohi (Gyanpur), convicting and sentencing the appellants under Section 302 IPC for life imprisonment and a fine of Rs.25,000/- each and in case of default, one year additional rigorous imprisonment were awarded to the appellants.

5. Learned counsel for the appellants has raised a purely question of law challenging the legality and authenticity of the impugned judgment & conviction order passed by the learned trial court. Responding to the submissions advanced by learned counsel for the appellant that, the learned trial judge has given complete go by to the established principles of law and the procedure, resulting into a grave miscarriage and failure of justice to the appellants. The procedure adopted by the learned trial judge is not only fallacious and contains number of pit falls, against the principles of natural justice, which is against cardinal principles of Code of Criminal Procedure.

6. Before scrutinizing the legality and validity of the impugned judgment, it is imperative to give a bird’s eye view to the factual aspect of the issue to appreciate the controversy involved in its correct perspective.

FACTUAL MATRIX OF THE CASE

7. The aforesaid trial started rolling after submission of charge sheet by the police in case crime no. 43 of 2016 under Section 306 IPC, P.S. Oonjh, District Bhadohi.

8. Submission advanced by the learned counsel for the appellants is that, one Behari Pasi son of Dev Saran Pasi of P.S. Oonjh, Bhadohi on 20.03.2016 along with his brother Lalloo were going to irrigate his field around 11.00 in the night, all of sudden under the mango tree they heard some unusual noise and in the light of the torch, they have seen that their son Jai Prakash after killing him were trying to hang his dead body over the tree. In this Yogesh Kumar, Rajendra Prasad, Budhani, Chhotai, Shivdhari all are sons Panchu were involved in this transaction. When inquired from them then they told that the deceased was in the love with their daughter Mala and that is why, they have eliminated him. After the incident all of them fled away from the sight. The informant and his brother went to the spot and have seen that Jai Prakash was died and his dead body was taken down from the tree.

9. On this written tehrir, on 21.03.2016 a case crime no. 43 of 2016 was registered under Section 147 and 302 IPC against aforesaid named accused appellants but the police after conducting the thorough probe have submitted a report under Section 173(2) Cr.P.C. in Section 306 IPC against accused-appellants.

10. On 07.07.2017, the learned trial court after committal of the case have framed the charges under Section 306 IPC only. Thereafter inordinate delay of almost more than five years of the trial on 12.10.2022 prosecution woke up and moved an application for amending the charge. An alternative charge under Section 302 IPC was framed against named accused appellants.

It is urged by the learned counsel for the appellants that the entire