JUDGMENT 1. - One Gangaban died on 26th January, 1987. The first information report was lodged about the incident which took place between him and the accused persons and in this it has been mentioned that there was a dispute about the flow of water upon which, the petitioner Manni first started abusing Ganga Bux. The other accused came running Kalu had a Lathi and stones. Chittar had a lathi. The complainant took the lathi, then Manni petitioner caught hold of the neck of Ganga Bux and Nanchu Ram was also holding Ganga Bux open the back and then Manni started giving blows by shoes. During this time, stones were also thrown. By this time, Ganga Bux become unconscious and he was first taken to a Vaidhya but he was not at the home then he was taken to the Govt, hospital. Choumu. where one injunction was given to him. Thereafter, he was advised that Ganga Bux should be taken to Jaipur and when he was brought here, he was declared dead. 2. Post-mortem was conducted and the only injury was found on the body of the deceased was one abrasion 2.5 Cm x 1/2 Cm. with clotted blood seen over it placed obliquely on dorsal aspect of left wrist joint. This injury was anti-mortem and there was no other injuries. The doctor could not ascertained the cause of death so he preserved visceras for chemical analysis but on chemical analysis no poision of any kind was found. 3. The learned Sessions Judge has framed charge for the offence under Section 304 part II IPC against the two petitioners while the other accused were discharged. These petitioners have challenged this order by which charge has been framed. 4. 3. The learned Sessions Judge has framed charge for the offence under Section 304 part II IPC against the two petitioners while the other accused were discharged. These petitioners have challenged this order by which charge has been framed. 4. The learned counsel for the petitioners has contended that there is no material to show that the petitioners have caused death by doing an act with intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that the act done by them is likely to cause death, it is contended that to prosecute the petitioners for the offence of murder, it is not only necessary that it should be shown that the deceased has died a homicidal death but also (illegible) by S. 300 IPC and in this case, medical evidence as well as oral evidence about this is missing. From the post-mortem report it cannot be inferred that the deceased died a homicidal death when the witnesses have stated that the petitioner Manni gave blows by a shoe, while the other petitioner Nanchu Ram caught hold of the deceased. 5. The learned Public Prosecutor has contended that this is not a c wherein the accused petitioners would be discharged completely. Because, in any case they have to be tired for the offence under Section 333 IPC, therefore this court should not interfere in this petition under Section 482 Cr.P.C. 6. Section 228 Cr.P.C. provides of framing of charge in a trial before the court of Sessions. The Sessions Judge has to consider the record of the case and documents submitted, in order to find out whether an offence has been committed which is execlusively triable by the Sessions Judge or an offence has been committed, which is not exclusively triable by the Sessions Judge. In the latter case, the case has to be transferred for trial before the Chief Judicial Magistrate. Hence, in view of this position, the suggestion given by the learned Public Prosecutor that the petitioners should be allowed to be tried for the offence under Section 304 Part II IPC cannot be accepted, because, in any case, they are to be tried for the offence under Section 323 IPC, cannot be accepted. Hence, in view of this position, the suggestion given by the learned Public Prosecutor that the petitioners should be allowed to be tried for the offence under Section 304 Part II IPC cannot be accepted, because, in any case, they are to be tried for the offence under Section 323 IPC, cannot be accepted. On the basis of the material on record it has to be seen that whether the offence which could be said to have been committed is exclusively triable by the Sessions Judge or not. 7. On the basis of the material which could be said to be the post-mortem report, chemical examination report and the statement of witnesses it can be said that the oral evidence consists of statements, according to which, Manni gave blows by a shoe and at the most it can be said that she had caught hold of the neck of the deceased. It will have to be seen her the doctor is examined as to whether shoe injury ought to have left a mark or not. At present the only injury on the wrist cannot suggest that there was intention to cause death of Ganga Bux. The deceased did not die as a result of strangulation as there are no marks and more over, he was first time taken to a Vaidhya then to the Hospital at Choumu and by that time, he was alive and death by strangulation does not take that much time. The prosecution has to place material on record at the initial stage so that the court may arrive at a conclusion about the offence which could be said to be made out. The prosecution cannot be allowed to say that something will come out during the trial so the charge to be framed, should be for the graver offence, unless there is material to show that the charge should be framed for the graver offence. It will not be proper to frame charge for the graver offence simply because, the trial for the lesser offence is to proceed. In these circumstances, the charge framed under Section 304 Part II IPC is quashed. The sessions Judge is directed to proceed under Section 228 (l)(a) Cr.P.C. up for to framing charge u/s. 313 IPC. *******