IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No.128 of 2007 Judgment reserved on:26.03.2008. Decided on:March 31, 2008. State of H.P. …Petitioner. Versus Deepak Raj & Anr. …Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner: Mr A.K.Bansal, Addl.A.G. For the respondents: Mr J.R.Poswal, Advocate. Kuldip Singh, Judge The State has come in revision against the order dated 31.7.2007 passed by learned Additional Sessions Judge, (Fast Track Court), Ghumarwin, District Bilaspur in Sessions Trial No.11/7 of 2006/04 arising out of F.I.R. No.216/03 dated 1.12.2003 registered at Police Station, Barmana whereby charge has been ordered to be framed against respondents under Sections 323, 506 read with Section 34 IPC and they have been discharged under Section 302 read with Section 34 I.P.C. 2. The facts, in brief, are that on the statement under Section 154 Cr.P.C. of Jagdish Kumar, F.I.R. No.216 dated 1.12.2003 was registered at Police Station, Barmana. According to the statement of Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… Jagdish Kumar, a cricket match of their team was played with Sundernagar team at ACC Ground on 1.12.2003, Neelu, Deepak and Ramesh had also come to see the match. After the match was over, these boys of Dhar Tatoh were standing near ACC Canteen. Neelu asked Ajay Kumar whether he wanted to compromise with Deepak or not. Ajay Kumar and Deepak were talking but in the meantime Neelu gave bat blow on the head of Ajay. Deepak, Raju and Ramesh gave beatings to Ajay Kumar with dandas. Thereafter, Neelu, Deepak, Raju and Ramesh ran away from the spot and Ajay Kumar became unconscious due to injuries sustained by him. Blood oozed out from his head and ears. Ajay Kumar was taken to ACC Hospital and from there to Zonal Hospital, Bilaspur on the advice of ACC doctor. Suman, Golu, Shashi Pal, Chander Shekhar and Santosh were also there on the spot. Ajay Kumar was medically examined. Ajay Kumar was taken to Chandigarh but he died on the way. The post-mortem of the deceased was got conducted. On conclusion of investigation, it was found that Sunil alias Neelu, Deepak Raj, Ramesh Kumar and Raj Tilak have committed offence under Sections 302, 34 IPC. Accordingly, challan was presented. It has also been submitted that Raj Tilak is juvenile and, therefore, a separate challan would be filed before Juvenile Justice Court at Una. The learned Additional Sessions Judge on 31.7.2007 has passed the following order:- “From a perusal of entire record I am satisfied that a prima facie case against accused Suneel Kumar U/s 302 I.P.C. is made out and U/s 323, 506/34 I.P.C. against the remaining accused. No case is made out U/s 302/34 I.P.C. against accused Deepak Raj and Ramesh Kumar. They …3… are thus discharged U/s 302/34 I.P.C. charge accordingly framed against the accused to which they pleaded not guilty and claimed trial. Let PWs 1 and 4 be called for 25.8.2007.” 3. The perusal of order dated 31.7.2007 would show that learned Additional Sessions Judge, except observing that against Deepak Raj and Ramesh Kumar no case is made out under Sections 302/34 I.P.C., has recorded no reasons in support of the observations that no case is made out against Deepak Raj and Ramesh Kumar under Sections 302/34 I.P.C. At the time of framing of charge, only the case of the prosecution on the basis of evidence collected during investigation is to be seen. In the present case, Jagdish Kumar in his statement under Section 154 Cr.P.C. has stated that Neelu hit Ajay on his head with bat. Deepak, Raju and Ramesh also gave beatings to Ajay with dandas. He has also stated that Neelu, Deepak, Raju and Ramesh had common intention to kill Ajay Kumar. Shashi Pal in his statement has also stated that Neelu gave bat blow on the head of Ajay. Deepak, Raju and Ramesh attacked Ajay with dandas. Similar are the statements of witnesses, namely, Golu and Suman. In the MLC of Ajay, the doctor has noticed oozing of blood from the right ear, swelling near head. In the post mortem report of Ajay, bleeding from nostrils, right ear, swelling and bluish discolouration over the right eye brow, swelling bluish discolouration over right side of tempro parietal region of head were found and as per the opinion given on the post mortem report by the doctors, deceased died due to head injury (fracture skull with extradural haem.) leading to excessive bleeding and respiratory depression and death. It has also been …4… mentioned that the final opinion will be given after visceral examination report and after receipt of report in the final opinion, no poison or alcohol found in the examined viscera, therefore, deceased died due to head injury. 4. The witnesses have stated about the involvement of all the accused. It is yet to be seen during trial what is the effect of danda blows which were allegedly given by some of the accused on the person of deceased Ajay at the time of occurrence. There is allegation that all accused had common intention to kill Ajay, therefore, in my view, charge under Section 302 read with Section 34 I.P.C. is liable to be framed against all the accused. The learned Additional Sessions Judge has erred in discharging respondents under Sections 302/34 I.P.C. and framing charge against them only under Sections 323, 506/34 I.P.C. 5. The result of the above discussion, the revision petition is allowed and discharge of respondents under Section 302 read with Section 34 I.P.C. is set aside. It is held that charge is to be framed under Section 302 read with Section 34 I.P.C. against respondents as well as against Suneel Kumar accused. The learned trial Judge is accordingly directed to frame the charge. The record of the learned trial Judge be sent forthwith. March 31, 2008. ( Kuldip Singh ), J. (soni) …5…