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Pappu & Others v. State Of U.P. & Another - APPLICATION U/s 482 No. 1171 of 2007 [2007] RD-AH 1186 (18 January 2007)


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 Court No. 49

                    Crl. Misc. Application no. 1171 of 2007

Pappu and others . . .   . .  . . . . .  . . . . . . . .  . . .  . . .   . .  Applicants.


State of U.P. and another  . . . . .  . .. .  . . . .  . . . . . .  . . . . Opp.Parties.                                                                                                                                                                                                                                                


Hon'ble R.KRastogi,J.

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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