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2005 DIGILAW 1175 (ALL)

AMRISH ALIAS CHHUNNU v. STATE OF U P

2005-07-07

ABDUL MATEEN

body2005
A. MATEEN, J. Heard Sri Kunwar Mridul Rakesh, learned Counsel for the revisionist and Sri H. A. Alvi, learned Additional Government Advocate for the State. 2. This revision has been preferred by the revisionists against an order dated 5-4-2005 passed by learned Additional Sessions Judge, Lucknow under Section 216 Cr. P. C. whereby passing the order for altering the charge from Section 304 IPC to Section 302 IPC. 3. I have gone through the impugned order and the F. I. R. as well as other documents annexed hereto. 4. As it emerges out that an F. I. R. was lodged by one Baij Nath (respondent No. 2) against the revisionists of an incident dated 9-6-1998 vide case crime No. 109/1998 under Section 307 IPC at police station Malihabad, District Lucknow. The police investigated the matter but since during the course of investigation injured Manoj Kumar had died, as such, charge-sheet was submitted against the revisionists under Section 304 IPC. 5. An application was moved by the prosecution before the prosecution could led its evidence that the revisionists should be tried under Section 302 IPC and charge be framed accordingly against them under Section 302 IPC and not under Section 304 IPC. Learned Additional Sessions Judge on 18-1-2002 rejected the said application of the prosecution and ordered for continuance of prosecution against the revisionists. 6. Subsequently it seems that again the prosecution moved an application since revisionist have been charged only under Section 304 IPC but the prosecution witnesses are deposing with respect to commission of the crime by the revisionists under Section 302 IPC, as such, the charge be altered from Section 304 IPC to Section 302 IPC under garb and powers vested under Section 216 Cr. P. C. which was allowed by the learned Additional Sessions Judge, Lucknow vide order dated 5-4-2005. Hence this revision. 7. P. C. which was allowed by the learned Additional Sessions Judge, Lucknow vide order dated 5-4-2005. Hence this revision. 7. I have carefully gone through the impugned order and as it comes out and also as indicated above that at very initial stage an F. I. R. was lodged against the revisionists only under Section 307 IPC but after the death of the injured and after investigation charge-sheet was submitted by the investigating agency the revisionists under Section 304 IPC and charges were framed against them under Section 304 IPC but the application so moved by the prosecution for altering the charges from Section 304 to Section 302 IPC was rejected on 18-1-2002 on the basis of the evidence collected by the investing agency at that stage but subsequently when the prosecution case proceeded and when its witnesses and the evidence had come to the effect with respect to commission of the crime by the accused persons under Section 302 IPC, as such, the prosecution has moved an application for altering the charges from Section 304 IPC to Section 302 IPC which was allowed while giving cogent reasons by learned Additional Sessions Judge, Lucknow and ordered for altering the charges against the revisionists from Section 304 IPC to Section 302 IPC. 8. Learned Counsel for the revisionists submits that once when the application of the prosecution has already been rejected by the learned Additional Sessions Judge as far back as in the month of January, 2002 and thus there being nothing new before learned Additional Sessions Judge to pass the impugned order, as such, the order is bad in the eyes of law. 9. This Court finds that in the month of January, 2002 the evidence of prosecution witnesses were never recorded and their evidence was not before the Court and also Section 216 Cr. P. C. provides and gives ample power to the Court to alter or add to any charge at any time before judgment is pronounced. 9. This Court finds that in the month of January, 2002 the evidence of prosecution witnesses were never recorded and their evidence was not before the Court and also Section 216 Cr. P. C. provides and gives ample power to the Court to alter or add to any charge at any time before judgment is pronounced. Learned Sessions Judge while giving cogent reasons and while going through the evidence of the prosecution witnesses which were recorded after January, 2002 to April, 2005 almost PW 1 to PW 5, came to the conclusion that the charge against the revisionists be altered from Section 304 IPC to Section 302 IPC, as such, it is clear that during the trial the Court below on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so and there can be no legal bar to appropriately act as the exigencies of the case warrant of necessitate as already held by the apex Court in the case reported in AIR 2004 Supreme Court 2078, Hasanbhai Valibhai Qureshi v. State of Gujarat & Ors. 10. In view of the law laid settled by the apex Court and the powers vested in the Court of Sessions under Section 216 Cr. P. C. , I find no illegality in the said impugned order which is a reasoned one and also since January, 2002 upto 5-4-2005 (the date of impugned order), much water has flown, as such, the impugned order is perfectly justified. I do not find any illegality or irregularity in the said order. This revision thus fails and is accordingly dismissed in limine. Revision dismissed. .