PAVNESH KUMAR ALIAS RAHU Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This criminal revision has been preferred by the accused namely Pavnesh Kumar @ Rahul to challenge the order dated 07.03.2018, passed by the learned Additional Sessions Judge, Ludhiana whereby it has proceeded to allow the application under Section 216 Cr.P.C. for alteration of charge thereby amending the previous charge of offence punishable under Section 306 IPC to the offence punishable under Section 302 IPC. The prosecution arises from case FIR No.193 dated 02.12.2014 registered under Section 307 IPC at Police Station Division No.4, Ludhiana.

(2.) On the basis of statement given by Sunil Kumar an FIR bearing No.193 dated 02.12.2014 was registered and the same is extracted below:-

(3.) The prosecution adduced its evidence and examined complainant-Sunil Kumar as PW-1, who deposed before the Court on 24.05.2016 followed by his cross-examination on 02.08.2016, 23.02.2017, 10.04.2017 and 10.05.2017. His sister namely Reshma Rani, wife of the victim deposed before the Court on 13.12.2016 and her cross-examination was concluded on 10.05.2017; besides the above two material witnesses, prosecution had examined 6 more witnesses out of total 13 witnesses. The prosecution on 05.02.2018, moved an application under Section 216 Cr.P.C. through the Public Prosecutor for amendment of charges. In the said application, it was pleaded that in view of the testimony of PW-1 Sunil Kumar and PW-2 Reshma Rani offence under Section 302 IPC was made out and prayer was made for alteration of the charge. The said application was contested by way of filing the reply primarily on the ground that after framing of charges in February, 2015, prosecution had already examined material witnesses in a period of 3 years. Even twice, the application under Section 311 Cr.P.C. moved by prosecution was also allowed. Further it was highlighted that after thorough investigation, the offence punishable under Section 302 IPC was deleted for lack of evidence. Certain excerpts of the depositions of prosecution witnesses, particularly PW-3 namely Sh. Dhruv Dahiya, IPS were relied upon, who in his report had found that no offence under Section 302 IPC was made out. It was mentioned that there was no evidence of forcible administration of poison to the victim, therefore, offence punishable under Section 302 IPC was not made out. It was also highlighted that witnesses PW-1 and PW-2 who were related to victim went against the medical advice and refused for the treatment to victim as advised by the doctors, and did not give their consent for prescribed treatment, which resulted into the death of Sachida Nand. In the end, it was prayed that application be dismissed as the trial was at the advanced stage. According to the defence, the statements of PW-1 and PW-2 is nothing but a hearsay evidence and insufficient for alteration of charge particularly when their statements under Section 161 Cr.P.C. were not recorded. After hearing the parties, the learned trial Court vide order dated 07.03.2018 proceeded to allow the application. Aggrieved against the same, the present revision petition has been filed.