D. M. DHARMADHIKARI, J. ( 1 ) THIS is a revision of the complaint against the order dated 25. 8. 1990 passed by the Fourth Additional Judge to the Court of Sessions Judge, Chhatarpur in Sessions Trail No. 50 of 1990 whereby no charge has been framed against Salim Khan, Station Officer, Hardalpur and instead framing charge under section 302 I. P. C. , charges only under section 304 Part-II and section 201 I. P. C. have been framed against other accused (Non-applicants No. 1 to 3) ( 2 ) THE present criminal case was instituted against the non-applicants on the allegation that one Pontu Dhimar was arrested by the police for interrogation on the charge of Commission of theft. According to the allegation of two other prisoners lodged in the police station, deceased Pontu was beaten up by non-applicant Nos. 1 to 4 who were employees in the staff of the police at the police station. The body of the deceased Pontu was recovered from a well and according to the medical opinion, he died of asphyxia. ( 3 ) THE learned counsel appearing for the complainant, who is widow of deceased Puntu, urged that the learned Judge of the trial Court instead of framing charge on the basis of the allegations contained in the police papers and the statements of witnesses recorded by the police made a meticulous exercise of weighing and appreciating the statements on record. The learned Judge of the trial Court thus wrongly discharged to the main accused Salim Khan; Station Officer, and instead of framing charge under section 302 I. P. C. framed only a charge under section 304, Part-II I. P. C. against the accused. Reliance on behalf of the complainant is placed on Radhey Shyam v. Kunj Behari and State of Bihar v. Raj Narain Singh. Non-applicant No. 4 Salim Khan has been duly noticed; but has failed to enter appearance in this Court. There is on record a report dated 23. 9. 1991 submitted by S. P. Chhatarpur informing this Court that non applicant No. 4 Salim Khan was duly served with the notice of the revision and an acknowledgment to that effect was also sent to the Registry by S. P. Chhatarpur. Non-applicant No. 4 in spite of service has avoided to appear in this Court. 9. 1991 submitted by S. P. Chhatarpur informing this Court that non applicant No. 4 Salim Khan was duly served with the notice of the revision and an acknowledgment to that effect was also sent to the Registry by S. P. Chhatarpur. Non-applicant No. 4 in spite of service has avoided to appear in this Court. ( 4 ) THE learned Counsel appearing for other accused (non-applicants 1 to 3) made an effort to support the order of the learned trial judge and submitted that even in exercise of power of discharge under section 227 and for framing charge under section 228 Cr. P. C. , the criminal Court is fully empowered to judicially apply mind to the material on record and may come to the conclusion that no offence under section 302 I. P. C. is made out; but only an offence under section 304, Part-Il I. P. C. is made out. Reliance on behalf of the accused is placed on the following decisions: (1) Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra. (2) State of Karnataka v. Muniswamy. (3) Union of India v. Prafulla Kumar (4) Niranjan Singh and Ors. v. Jitendra Bhimraj. The learned counsel cited State of Andhra Pradesh v. Venugopa, Gauri Shankar Sharma v. State of U. P. , to support his contention that even on the allegation of torture of the deceased for obtaining confession from him, an offence under section 304, Part-li I. P. C. was alone made out It is also argued that there was no evidence that the deceased was thrown into well by the accused. ( 5 ) SO far as the extent of power of the Court while framing charge or is charging the accused in concerned, it is so well-settled that no reiteration of the same is needed in view of several decision of the Apex Court, cited by the learned counsel for parties. ( 6 ) THE question before me is whether in this particular case the learned Judge of the trial Court has rightly exercised his jurisdiction in discharging non-applicant No. 4 Salim Khan and framing ( 7 ) ONLY a charge under section 304, Part-II I. P. C. against the other three accused. I first take-up the question whether non-applicant No. 4 Salim Khan was rightly discharged. I first take-up the question whether non-applicant No. 4 Salim Khan was rightly discharged. It has been brought on record of the case as pointed by the learned counsel for the applicant-complainant that on 12/2/1990, an application was filed under section 319 Cr. P. C. for making Salim Khan as an accused in the case. A copy of the said application has been filed along with the Memo of Revision. In the order passed on 26/6/1990, the learned sessions Judge cam to a definite conclusion that in the light of the statements of witnesses Shivraj Singh, Nand Kishore, Ghanshyam and Babu Dhimar, there is a prima facie case for framing charge against Salim Khan. He even expressed concern as to why the prosecution did not make him as an accused. The learned Judge cited Mahendra Kumar Tiwari v. State of M. P. , to hold that there was sufficient ground to make Salim. Khan as an accused in the case. The learned Sessions Judge, however, later on at the request of the counsel for Salim Khan, after the order was dictated, granted him adjournment for further arguments and deleted the operative part of the said order. A copy of the order dated 26/6/1990 has been filed with the Memo of Revision a Annexure-B amply testifying the above fact. By the subsequent order dated 5/7/1990, the learned Judge held that the application under section 319, Cr. P. C. Salim Khan as accused is premature and the same shall be considered at the time of framing charge. A copy of that order passed on 5/7/1990 is also filed with the Memo of Revision as Annexure - C. The learned Sessions Judge by the impinged order passed on 25/8/1990 has not only refused to take cognizance of the offence alleged against Salim Khan, non-applicant No. 4, but instead of framing charge under section 302, I. P. C. framed, charge against oilier accused only under section 304, Part-I read will sections 201 and 34 I. P. C. In the impugned order, Salim Khan has not been allowed to be joined as accused stating that the important witnesses Geyadin and Mullu Joshi do not state that Salim Khan was present at the time of Marpeet with deceased Puntu. The learned Judge then says that Shivraj Singh and Babu ( 8 ) 1987 J. L. J 373. The learned Judge then says that Shivraj Singh and Babu ( 8 ) 1987 J. L. J 373. Dhimar do implicate Salim Khan as the person who not only beat the deceased in the police- lockup; but when in the night at 8 Oclock he was asked abouts the where about of Puntu, he had said that Puntu had run away from the police station. According to the learned trial Judge, there was variance between the statements of Geyadin and Mullu Joshi on the one side and Shivraj Singh and Babu Dhimar on the other. The legal position is not in dispute that at the time of framing charge, the trial Judge had to examine the challan papers to find out whether prima facie case for framing charge is made out against accused. The provisions of sections 227 or 228 Cr. P. C. however, do not empower the trial Judge at the stage of framing charge to appreciate and weigh the evidence and accept the one or the other version of the witnesses. As has been stated above, the learned trial Judge has orderly committed a serious mistake of jurisdiction in making an exercise of appreciating and weighing evidence of witnesses who had deposed before the police. He has described the version of Shivraj Singh and Babu Dhimar as in variance with the version of Geyand in and Mullu Joshi who were in police custody. This is what is impermissible while framing charge. This is a fit case, therefore, where the learned Judge of the trial Court should have added Salim Khan as an accused and framed charge against him on the basis of the allegation to be found in the challan. 7. The second question that needs consideration is whether the charge under section 302 I. P. C. was prima facie made out against the accused or charge under section 304, Part-II read with sections 201 and 34 I. P. C. was rightly framed against the accused person. In support of his order directing framing of charge under section 304 Part-II, the learned Judge has given the following reasoning (rendered into English): Puntu at the time of incident was employed with Shivraj Singh. He was called to the police station through Shivraj Singh. In support of his order directing framing of charge under section 304 Part-II, the learned Judge has given the following reasoning (rendered into English): Puntu at the time of incident was employed with Shivraj Singh. He was called to the police station through Shivraj Singh. According to the statement of witness, in the police station in order to extract me relevant fact from Puntu about the alleged theft, he was tortured and beaten U. P. At that time, there were two more persons in custody in the police station i. e. Geyadin and Mullu Joshi. According to them, as a result of beating, Puntu had fainted. There after his dead body was recovered from a well near Idgah Masjid. According to the postmortem report, there were no marks of injuries on the body of Puntu. The cause of death was shown as asphyxia. TI In these circumstances, looking to the above fact, it may be presumed that Puntu died as a result of beating given by the accused persons. It may also be presumed that the circumstances are such that his dead body was thrown into well. From the evidence available, the deceased was called to the police station for interrogation and to extract the fact about the theft, he was beaten. Therefore, it can definitely be said that the accused persons had no intention to commit murder. According to the medical report, there are no in juries on the person of the deceased. Therefore, the act of the accused was not so dangerous that it was likely to result in death there were such injuries which to the knowledge of the accused were in the ordinary course likely to cause death. According to the circumstances and facts, there are no ingredients of the offence under section 300 I. P. C. in existence and no offence under section 302 I. P. C. prima facie is made out. 8. From the above resume and the gist of reasoning of the trial court, it may be seen that against an attempt or exercise has been made to maticulously scan and appreciate or weigh the evidence on record of the police of papers. There are conjectures and surmises made with regard to the cause of death of the deceased. There could be no presumption drawn that the deceased died of beating and thereafter thrown in the well. There are conjectures and surmises made with regard to the cause of death of the deceased. There could be no presumption drawn that the deceased died of beating and thereafter thrown in the well. The post mortem shows the cause of death as asphyxia which could be a matter of evidence as towhether the deceased was thrown in the well in an unconscious state and died as a result of drowning or he died of beating and then thrown into well. It is well-settled that at the time of framing charge, the trial Judge has not to pre-judge the evidence which has yet to come in trial. At this stage, all direct and circumstantial evidence have to be prima facie seen to find out whether an offence, if any or what offence was committed. The learned Judge of the trial Court has clearly transgressed the limit of power in this case by making surmises and conjectures by overlooking completely the circumstantial evidence. There is evidence on record that the deceased was called to the police station, was beaten and immediately after that incident was found dead in a well. This was a fit case in which the trial judge should have framed charge under section 302 I. P. C. against all the four accused persons. ( 9 ) IN view of the discussion aforesaid, this revision succeeds and is hereby allowed. The application filed under section 319 Cr. P. C. by the complainant against Salim Khan non-applicant No. 4 is hereby allowed. It is directed that Salim Khan non-applicant No. 4 be added as an accused to the case. It is further directed that a charge under section 302 I. P. C. read with section 34 I. P. C. be framed against all the accused persons and the trial proceed expeditiously. The order of stay granted by this Court on 9/11/1990 is hereby vacated. Petition allowed. .