JAIBIR SINGH Vs. SURAJ BHAN AND OTHERS

JUDGEMENT

(1.) JAI Bir Singh, the complainant, on whose statement case was registered at the police station, filed this revision petition against order dated January 28, 1988 passed by the Additional Sessions Judge, Hissar dismissing his application for amendment of the charge framed in the case.

(2.) THE contents of the first information report are reproduced in the grounds of revision. The occurrence took place on July 4, 1987 at about 7 A.M. in the plot of land belonging to Ram Sarup (accused). Jai Bir Singh was returning after easing himself. When he reached in the plot of Ram Sarup, he objected. Jai Bir Singh's father Dewan Singh told Ram Sarup that he should raise a boundary wall to prevent his plot being used as a thoroughfare. Ram Sarup remarked that if any -body would trespass into his plot, he would break his legs. In the meantime, brother of Jai Bir Singh, his uncle Inder Singh, Balbir Singh and Ved Parkash reached the spot. There was exchange of hot words From the other side were Ram Sarup, his brother Suraj Bhan and Vinod Some women folk also reached there. Inder Singh tried to fuse the situation Ram Sarup, who was armed with a bahi (support of a cot) gave a blow with it hitting Inder Singh on his head. The skull of Inder Singh opened and he fell down on a peg fixed on the earth A brickbat hit him on his left hand. Suraj Bhan gave iron rod blow to Balbir Singh hitting him near his left ear. Vinod gave a tooth bite on the left hand of Balbir. Ved Parkash received a brickbat injury near his right hand. Har Sarup gave a stick blow hitting Sat Pal on his right thumb. Some other persons also reached there. The accused persons ran away with their weapons. Inder Singh was taken to the Civil Hospital, Tohana from where he was referred to Medical College, Rohtak After investigation, the police presented a report under sections 304, (sic) and 323 read with section 34, Indian Penal Code, against Suraj Bhan, Ram Sarup and Vinod accused. They were accordingly charged. The complainant Jai Bir Singh moved an application for amendment of the charge inter alia alleging that charge under section (sic) and (sic)/34, Indian Penal Code, should have been framed against Ram Sarup and other co accused. This application was declined by the Additional Sessions Judge.

(3.) THE proposition put forth by the learned counsel for the petitioner that in all cases where culpable homicide had taken place, charge under section 302, Indian Penal Code should be framed is not acceptable. Each case is to be considered taking into consideration its own facts and if the facts as alleged by the prosecution witnesses as well as taking into consideration the first information report and the medical evidence produced suggests commission of an offence under section 304, Indian Penal Code, there is no bar that charge under section 304, Indian Penal Code, should not be framed but charge under section 302, Indian Penal Code, should be framed. A perusal of the facts as incorporated in the first information report indicates that the occurrence had tallen place in the plot of Ram Sarup accused when the deceased and other injured had gone there and were trying to use the said plot for passage Furthermore, there is no material that there was any previous animus existing between the parties. It was all of a sudden that the occurrence took place when the complainant and the deceased wanted to use the plot of Ram Sarup as a passage Furthermore, only one blow was given by Ram Sarup accused on the head of Inder Singh deceased with a bahi (support of a cot) which cannot be considered as a weapon of offence. No intention can be gathered from the facts, as stated above, that there was any intention on the part of Ram Sarup to cause the death of Inder Singh or he intended to cause such bodily injury which would have resulted in causing the death of Inder Singh When suddenly the occurrence had taken place, it was not expected of Ram Sarup to measure the strength with which he inflicted the solitary blow. No attempt was made by Ram Sarup to repeat the blows. In such circumstances, charge was correctly framed under section 304, Indian Penal Code, and prima facie offence under section 302, Indian Penal Code, was not made out. The trial Court rightly observed that at that stage evidence had not been recorded and on the material produced, offence under section 302, Indian Penal Code, was not made out. This indicates that if during the course of the trial, some evidence is produced, the charge could be amended.