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Pappu & Others v. State Of U.P. & Another - APPLICATION U/s 482 No. 1171 of 2007  RD-AH 1186 (18 January 2007)
Court No. 49
Crl. Misc. Application no. 1171 of 2007
Pappu and others . . . . . . . . . . . . . . . . . . . . . . . . . . Applicants.
State of U.P. and another . . . . . . .. . . . . . . . . . . . . . . . Opp.Parties.
This is an application under section 482 Cr.P.C. for quashing the order dated 5.9.2006 passed by the learned Addl. Sessions Judge, Court No. 1, Budaun in S.T. no.157 of 1999 ( State Vs. Pappu and others ) whereby he has amended the charge against the accused from section 304/34 to section 302/34 I.P.C.
I have heard learned counsel for the applicants and learned A.G.A. for the State and perused the papers on record.
Since the point involved in this application is a legal one, I have heard learned counsel for the parties on merits of the application at the stage of admission and the case is being decided finally.
The facts relevant for disposal of this application are that on 29.5.1998 at 6.45 A.M. a F.I.R. was lodged by Suraj Pal Singh against accused Pappu, Kishan Pal, Charan Singh and Billu under sections 308, 323 and 504 I.P.C. and on the basis of the said F.I.R. case crime no. 246 of 1998 was registered against the accused persons. It was stated in the said F.I.R. that on the aforesaid date at about 5 A.M. accused Pappu and Charan Singh having private guns in their hands, Kishan Pal having licensed gun of his father in his hand and Billu having small gun in his hand reached near Jhajan Singh and the accused abused him and beat him from the buts and barrels of the guns. Consequently , Jhajan Singh received serious injuries upon his body. This incident was witnessed by Suraj Pal Singh, Kuber Sen and Ratibhan etc.
Jhajan Singh died the same day at the hospital and then the charge under section 304 I.P.C. was added in the case. The police after investigation submitted charge sheet in the case against the accused persons under aforesaid sections.
The accused were charged under sections 304, 308, 323 and 504 I.P.C. by the trial court. During pendency of the trial an application was moved from the side of the prosecution for amendment of the charge from section 304/34 I.P.C. to 302./34 I.P.C. The learned Presiding Officer of the court heard learned counsel for both the parties on this application and then he observed that there was no allegation to this effect in evidence that accused had any intention to kill Jhajan Singh but since Jhajan Singh had died within a period of 2 ½ hours from the time of incident, it could be inferred that injuries caused by the accused persons were sufficient to cause his death in ordinary course of nature and so he amended the charge to section 302/34 I.P.C. Aggrieved with that order the accused have filed this application under section 482 Cr.P.C.
I have perused the order passed by the Magistrate as well as copies of statements of the witness . It is to be seen that in the present case prosecution allegations were that all the four accused persons were armed with fire arms, but they did not fire at the deceased from their fire arms and the only allegation against them is that they beat the deceased from buts and barrels of the guns in their hands. It was contended by the learned counsel for the applicants that when all the accused, who were armed with fire arm did not fire upon the deceased but simply beat him by buts and barrels of the fire arms. It is clear that the accused had no intention to kill the deceased but they simply wanted to cause hurt to him and so there was no justification for amending the charge from section 304/34 to 302/34 I.P.C. It is also to be seen that there is no such allegation in the F.I.R. nor any evidence of the complainant that the accused had any intention to kill Jhajan Singh. Under these circumstances, I am of the view that there was no justification for amending the charge from section 304/34 I.P.C. to section 302/24 I.P.C. The application under section 482 Cr.P.C., therefore, deserves to be allowed to this extent only that the order amending charge from section 304/34 I.P.C. to 302/24 I.P.C. is set aside. However, in case there comes any evidence to this effect during trial to justify the charge under section 302/34 I.P.C., the Presiding Officer of the court concerned will be at liberty to entertain the application for amendment of charge and pass suitable order thereon.
The application is allowed as observed above and the order amending the charge from section 304/34 I.P.C. to 302/34 I.P.C. is set aside.
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