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2005 DIGILAW 621 (RAJ)

Ganesh v. Ratan Lal

2005-02-23

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-Heard Counsel for the parties. The accused respondents are facing trial for offence under Sections 247 and 323, IPC and Section 3(1)(10) of the SC/ST (Prevention of Atrocities) Act. In the course of trial, the petitioner moved an application under Section 216, CrPC, to amend the charge and prayed that charges under Sections 302 and 302/149, IPC, may also be framed against the accused respondents. The prayer to amend the charge was made on the basis of statement of PW. 11 Dr. Vivekanand Goswami who has deposed that cause of death of the deceased was septicsemia schok as a result of peritonitis brought about by traumatic lesion over interior wall of stomack. Further lesions as a result of perforation or tear of anterior wall of stomach is always of a traumatic origin and not as a disease. According to him, tear of anterior wall of stomach is confirmed by clinical condition of the deceased and post-mortem description. On this strength, it was submitted that cause of death was the result of injuries caused to deceased Phooma by the accused respondents. The learned trial Court considering the evidence and material and record available before it refused to frame charges under Sections 302 or 302/149, IPC and dismissed the application vide its order impugned in this petition. 2. Having gone through the impugned order and the record of the case it appears that charge-sheet was filed against the respondents for offence under Sections 147, 323, IPC and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act. It further appears that earlier while disposing of two applications dated 010.1995 and 20.12.1995 moved on behalf of the prosecution, the learned trial Court vide its detailed order dated 07.07.1999 declined to accept the prayer of the Special Public Prosecutor that prima facie the offence under Section 302, IPC or in the alternative, offence under Section 304, IPC, is made out against the respondents. It is evident that while passing the aforesaid order dated 07.07.1979 the medical evidence was very much available before the trial Court and the same was critically analysed. It may also be noted that statement of deceased herself that accused did only pushing and jostling was also taken note of by the trial Court. This order was not challenged by the petitioner and that has attained finality. The same position is perpetuating till date. 3. It may also be noted that statement of deceased herself that accused did only pushing and jostling was also taken note of by the trial Court. This order was not challenged by the petitioner and that has attained finality. The same position is perpetuating till date. 3. The date of incident is 11.06.1995 and the deceased died on 27.06.1995. The dead-body was subjected to post-mortem on 27.06.1995. It appears that when PW. 3 Dr. S.P. Kothari examined the injuries of Phooma on 11.06.1995, he noticed only 3 abraisons on the person of deceased and there was no injury on the stomach of the deceased. That apart, none of the prosecution witness says that any of the accused inflicted injury on the stomach of deceased. I do not find any evidence to show that injuries were the result of death of deceased. In this view of the matter, the impugned order does not call for any interference by this Court. It must be held that the trial Court has rightly dismissed the application of the petitioner filed under Section 216, CrPC. 4. Consequently, this petition being devoid of merit is hereby dismissed.