JUDGMENT 1. - BY this revision petition, a challenge has been made to an order passed by the learned trial Court framing charge under Section 302 I.P.C. against the accused petitioner vide order dated 6.2.2006. 2. The contention of the, learned counsel for the petitioner is that in the instance case the trial Court committed severe illegality in framing charge against the accused petitioner under Section 302 I.P.C. inasmuch as complainant Gokal Singh, who lodged the First Information Report, has stated that accused petitioner gave a lathi blow on the head. of the deceased whereas there was not even a scratch on head of the deceased. It has also been submitted that in the Post mortem Report there appears no injury of whatsoever nature on the person of deceased Udai Singh and the Medical Board after conducting the Post mortem Examination found that the final opinion could be furnished only after receipt of the Histo-pathological examination of heart and lung tissues. The learned counsel submits that the opinion has been received and same has been filed before the Court by the Public Prosecutor and that confirms the contention of the learned counsel that the death was natural because it suggests that there were aot'ta atheroscierosic changes with dystrophic calcification and both coronaries showed atherosclerosic changes for dystrophic calcification. It has also been contended that in this case in all three statements are there and out of those, two statements are of the eye witnesses and the third statement is of Gokal Singh, who has lodged the First Information Report. He submits that as far as the statements of Bhopal Singh and Lal Singh are concerned, they have stated in their statements that Gokal Singh told them that Veni Ram inflicted lathi blow on the head of the deceased and thereafter ran away. In the statement of Gokal, he has stated that there had been some altercation of words between Veni Ram and deceased Udai Singh and. thereafter accused Veni Ram, who was having lathi in his hand gave a lathi blow on the head of the deceased and on account of that blow the deceased fell down and died. In the statement of Gokal, he has stated that there had been some altercation of words between Veni Ram and deceased Udai Singh and. thereafter accused Veni Ram, who was having lathi in his hand gave a lathi blow on the head of the deceased and on account of that blow the deceased fell down and died. According to the learned counsel, had there been lathi blow on the head of the deceased with pressure or even otherwise because the deceased had fallen down on the ground then there would have been some impact of the lathi blow on the head, which is absolutely not there and if that is so then the two witnesses, alleged to be the eye witnesses, have not stated a word about the incident having been seen by them, then it is only Gokal Singh whose statement cannot be relied on account of enmity between the parties. The learned counsel submits that even if the statements of this witness is taken as it is then also no conviction can be based under Section 302 I.P.C., therefore, the accused be discharged. 3. On the other hand, the learned Public Prosecutor had stated that it is correct that there is only one statement of Gokal, in which he has stated that accused gave a lathi blow. on the head of the deceased and on account of that he fell down and died, therefore, it cannot be said that in the present case there is no evidence to frame charge. The learned Public Prosecutor further did not controvert this aspect of the matter that the visras sent for examination resulted in favourable opinion in favour of the accused petitioner as there was nothing abnormal found in the tissues sent for test in the laboratory. It has further been submitted that if a charge is framed under Section 302 I P.C. then subsequently on the basis of evidence during the course of trial for lesser offence accused can be punished. 4. I have taken into consideration the above submissions made before me. 5. It has further been submitted that if a charge is framed under Section 302 I P.C. then subsequently on the basis of evidence during the course of trial for lesser offence accused can be punished. 4. I have taken into consideration the above submissions made before me. 5. In the case of State of Karnataka v. Muniswamy (1977 Cri.L.J. 1125) , the Hon'ble Apex Court has observed that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. The Para 10 of the judgment reads as under: "On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghandigaorrkar, AIR 1960, SC 1113 and Century Spinning and Manufacturing Co. v. State of Maharashtra (2) show that it is wrong to say that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the farming of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trail. In Vadilal Panchal's case, Section 203 of the old Code was undo consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the Section there was in his judgment no sufficient ground for proceeding with the case. To an extent Section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the result of an enquiry of investigation and that he must apply his judicial mind to the material on which he had to form his judgment. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the result of an enquiry of investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible." It appears from the observations made by the Hon'ble Apex Court that the Court while framing charge, if satisfied that for proceeding against the accused there is absence of material on record, if unrebutted then also recording of conviction is not provided, the accused is liable to be discharged. The facts of the present case reveals that in relation to an incident, it is alleged that accused petitioner gave a lathi blow on the head and that blow was with so much force that the deceased fell down on the ground and died, then, if there is not even a scratch on the head, and the skull after opening was found absolutely intact and no injury whatsoever either external or internal was found, then prima facie on such evidence conclusions to the effect that death was the result of the alleged blow cannot be possible drawn. In the presence case, the Medical Board was of the opinion that no injuries were found on the person of the deceased and for specific opinion heart and lung tissues were examined but nothing abnormal was detected, thus, in my humble opinion there could not be any hesitation in reaching to the conclusion that the death was natural one and it cannot be said that it was a homicidal death. 6. It may now further be seen that in all three witnesses are there. Out of the three witnesses, viz. Gokal Singh lodged the F.I.R. As regards Bhopal Singh and Lal Singh are concerned, they have not seen the incident as per their statements under Section 161 Cr.P.C. recorded by the police. 6. It may now further be seen that in all three witnesses are there. Out of the three witnesses, viz. Gokal Singh lodged the F.I.R. As regards Bhopal Singh and Lal Singh are concerned, they have not seen the incident as per their statements under Section 161 Cr.P.C. recorded by the police. Now, the only witness is Gokal Singh and his version, in the absence of any corroboration from the medical evidence, by any stretch of imagination cannot be considered sufficient to believe that the accused petitioner gave a lathi blow on the head of the deceased with full force, without there being a scratch worth name and even in the post mortem report the skull was found absolutely alright. The report for the heart tissues states aorta atherosclerosic changes with dystrophic calcification and both coronaries showed atherosclerosis changes for dystrophic calcification. 7. In view of the above histopathology report, there remains no doubt that the death was not an unnatural death and the statements, which have been recorded under Section 161 Cr.P.C., even read as it is with the medical report, cannot be said to be prima facie a sufficient evidence to record conviction either under Section 302 or Section 304 of the I.P.C. The learned trial Court framed charge under Section 302 I.P.C for the reason that if a higher charge -under Section 302 is framed then subsequently after recording evidence if it is found that the accused has committed an offence then he can be convicted for lesser offence under Section 304 I.P.C. There cannot be two opinion about the reasoning given by the learned trial Court that if a charge if framed under Section 302 of the I.P.C. then for lesser offence punishment can be imposed but at the same time it cannot be lost sight that it is the duty of the Court examine the material available on record. prima facie satisfy that if unrebutted would it possibly result in conviction. If the answer is in affirmative of the above, the Court is well within its competence to frame the charge but if the answer is in negative then the accused is liable to be discharged. 8. As discussed above, except the statement of Gokal recorded under Section 161 of the Cr.P.C., there is no eye witness. If the answer is in affirmative of the above, the Court is well within its competence to frame the charge but if the answer is in negative then the accused is liable to be discharged. 8. As discussed above, except the statement of Gokal recorded under Section 161 of the Cr.P.C., there is no eye witness. It further appears that in the, Post mortem report neither there is any external injury nor any internal injury on the person of the deceased. It further appears from the histopathology report that the tissues which were sent for test did not give positive report but infact it suggested that there was nothing abnormal, which may suggest anything otherwise to create any doubt, which may even remotely prima facie strengthen the case of the prosecution. The evidence available on record and taken as it is, in my humble opinion, is not sufficient to base conviction either under Section 302 or 304 of the I.P.C. Therefore, I find that in the absence of material available on. record, to frame charge against accused petitioner either under Section 302 or 304 of the I.P.C. is not sustainable and the accused is liable to be discharged. 9. In view of foregoing discussions, I am of the opinion that the present revision petition deserves acceptance and accused is liable to be discharged of the offence under Section 302 I.P.C. Accordingly, the revision petition is hereby allowed and the accused is discharged of the charge framed against him for the offence under Section 302 I.P.C. in Sessions Case No. 1/2006 State v. Beni Ram pending in the Court of learned Additional District and Sessions Judge (Fast Track), Chittorgarh. He is on bail. He need not to surrender the bail bonds.Revision petition allowed. *******