Code of Criminal Procedure, 1973–Secs. 216(4) & 217–Initially, the trial Court framed the charge u/ss. 306 & 365 r/w. Sec. 34–After examination of 26 witnesses, alternative charge u/s. 302 r/w. 34 was framed–Thereafter, the findings of conviction u/s. 302/34 were recorded–It was incumbent upon the prosecution to recall the witnesses and re-examine them in the context of alternative charge–Thereafter the accuseds were to be allowed to cross-examination them–Only one witness was examined and that too on the same day of framing the alternative charge–Even the case was not adjourned as per mandates of Sec. 216 (4)–Trial was vitiated–Held, appellants could not have been convicted u/s. 302.
