JUDGMENT [ENTITY], J.
1. The accused have filed this revision petition against the order dated 5.10.1999, passed by Additional Sessions, Judge, Hisar, whereby charge Under [SECTION] [ACT] and in alternative Under Section [SECTION] [ACT] has been ordered to be framed against the accused.
2. The brief facts of the case are that deceased [ENTITY] was working as an Accountant in Firm M/s [ENTITY], Grain Market, Ratia. Accused [ENTITY] (now expired during the pendency of this petition) was one of the partners of the said firm. Accused [ENTITY], relative of accused [ENTITY], was also working as Accountant in the said firm. As per the prosecution version, on 19.5.1998, one [ENTITY], who was working in a different factory, had a telephonic conversation with [ENTITY] deceased. He enquired about sister of accused [ENTITY]. The said conversation was over-heard by accused [ENTITY] on parallel line. He felt aggrieved. He summoned deceased [ENTITY] and his father [ENTITY] (complainant) in the premises of Jindal Cotton Factory on 20.5.1998 at about 6 P.M. As per the prosecution version, accused [ENTITY] and [ENTITY] gave beatings to deceased [ENTITY] and thereafter asked the deceased and his father to leave the factory premises. Subsequently, on the next day, on 21.5.1998, the dead body of deceased [ENTITY] was found near a petrol pump. Thereupon, on a complaint made by father of the deceased, the police registered the case Under [SECTION] [ACT] against the accused.
3. During investigation, statements of various persons were recorded by the police. The complainant stated that his son had committed suicide because he felt humiliated, when he was given beatings by the accused. The other witnesses also stated that accused [ENTITY] and [ENTITY] gave beatings to [ENTITY], who later on committed suicide. On the basis of the evidence collected during the investigation, the police submitted challan against the accused Under [SECTION], [SECTION] read with [SECTION] [ACT] Subsequently, report of the chemical examiner was received, which shows presence of aluminium phosphide in the viscera. The trial Court, after taking into consideration the said chemical examiner's report, framed the charge against the accused Under [SECTION] [ACT] and in alternative Under Section [SECTION] [ACT] Against the said order, the instant revision petition has been filed.
4. Learned Counsel for the petitioners submitted that there is absolutely no material on the record justifying the framing of charge Under [SECTION] [ACT] All the prosecution witnesses, in their statements before the police Under [SECTION] [ACT], have stated that the accused gave beatings to [ENTITY] on account of bad conversation between him and one [ENTITY] on telephone, because of which he felt humiliated and committed suicide. Merely because aluminium phosphide was found in the viscera of the deceased, it cannot be said that it was homicidal death. They further contended that in this case, no homicidal or other injury has been found on the person of the deceased to bring the case within the four comers of murder, as defined Under [SECTION] [ACT] and punishable Under [SECTION] [ACT] Secondly, learned Counsel submitted that no alternative charge Under [SECTION] and [SECTION] [ACT] can be framed. They submitted that the prosecution has to make up its mind whether the facts which can be proved justify framing of charge Under [SECTION] or Under [SECTION] [ACT] They submitted that both the offences are distinct offences and are diametrically opposite to each other, therefore, alternative charge cannot be framed in respect of these distinct offences. It is not permissible for the prosecution to say that the accused have committed murder and at the same time taking the alternative position that they have abetted the commission of suicide. Learned Counsel for the petitioners submitted that the framing of charge in the alternative is permissible only within the parameters of [SECTION] of the [ACT] (hereinafter referred to as 'the Code') and the facts of the instant case do not justify the faming of the alternative charge Under [SECTION] and [SECTION] [ACT] In support of their contention, learned Counsel relied upon a decision of Delhi High Court in [PRECEDENT].
5. On the other hand, learned Counsel for the complainant submitted that in the facts and circumstances of the case and in view of the circumstantial evidence against the accused, the trial Court has rightly framed charge against the accused Under [SECTION] [ACT] and in the alternative Under Section [SECTION] [ACT] He submitted that [SECTION] of the Code empowers the Court to frame the charge in alternative and the said power has been rightly exercised by the trial Court in the instant case.
6. [SECTION] of the Code provides that for every distinct offence, there should be a separate charge and every charge should be tried separately. [SECTION] which provides for framing the charge in alternative is an exception to [SECTION] which reads as under:
221. Where it is doubtful what offence has been committed: (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
A bare reading of the aforesaid Section shows that it applies to a case only when from the evidence led by the prosecution, it is doubtful which of several offences has been committed by the accused. The Supreme Court in [PRECEDENT] has observed that there must not be any doubt as to 'a single act or series of acts' which constitutes the transaction, that is to say, there must not be any doubt as to the facts. The doubt must be as to the inference to be deduced from these facts, thus making it 'doubtful' which of several offences the facts which can be proved will constitute. Thus [SECTION] of the Code is not intended to be applied to a case where facts are in doubt. It only applies to a situation, if in a given case, on the facts, which can be proved by the prosecution, it is doubtful which of the offences the said offence will constitute the framing of charge and in that situation, the framing of charge in alternative is permissible. It is well settled, as held by the Delhi High Court in [PRECEDENT]'s case (supra) that ordinarily an alternative charge cannot be framed in respect of distinctive offences. The offence Under [SECTION] [ACT] and the offence Under [SECTION] [ACT] are distinct. The ingredients of two sections are altogether different. The prosecution has to take stand whether it is a case of murder or suicide. The prosecution cannot say that the accused have murdered the deceased and if the deceased has committed suicide, the accused have abetted the commission of suicide. The offences Under [SECTION] and [SECTION] [ACT] are diametrically opposite to each other. The ingredients of two Sections are different. Even the offence Under [SECTION] [ACT] is not a minor offence in relation to offence Under [SECTION] [ACT] within the meaning [SECTION] of the Code. Therefore, in my opinion, the framing of charge in alternative, as directed in the impugned order, is likely to prejudice the accused. Therefore, the framing of an alternative charge is not permissible in the instant case as there is a doubt about the facts which can be proved an in that eventuality, [SECTION] of the Code is not applicable.
7. Even the facts of the instant case, in my opinion, do not justify framing of charge Under [SECTION] [ACT] Merely because the aluminium phosphide was found in the viscera of the deceased, it cannot be assumed that the poison was administered by force to the deceased. The material available on record do not justify the conclusion drawn by the trial Court that there exists a suspicion that the petitioners-accused have committed an offence Under [SECTION] [ACT] All the prosecution witnesses, including the complainant, have categorically stated, in their statements that accused [ENTITY] and [ENTITY] gave beatings to [ENTITY], who later on committed suicide. Keeping in view the said material collected during the investigation, the police submitted challan Under Section [SECTION] [ACT], though F.I.R. was registered Under [SECTION] [ACT] In my opinion, the trial Court is not at all justified in framing the charge in alternative Under [SECTION] [ACT] However, there is sufficient material on record, which justify framing of charge against the accused Under Section [SECTION] [ACT]
8. In view of the above, this revision petition is partly allowed. The impugned order dated 5.10.1999, passed by Additional Sessions Judge, Hisar, is set aside, only to the extent of framing of charge in alternative Under [SECTION] [ACT] However, it is made clear that in case any evidence comes during the trial, which discloses the commission of offence Under [SECTION] [ACT], it will be open for the prosecution to get the charge modified or altered Under [SECTION] of the Code.