Decided on March 30,1984

Udalal Appellant


N.M.KASLIWAL, J. - (1.)THIS is a revision against the order of learned Sessions Judge, Bundi, dated November 15, 1983, whereby a charge has been framed against the petitioner under Section 304 Part I, IPC.
(2.)THE facts as alleged by the prosecution are that one Devilal (deceased) who had been admitted in the general hospital, Bundi on February 28, 1983 at about 5.30 p.m. he was going with his bullocks to a pond. A dog was following him. On the way Udalal, accused -petitioner, saw this dog and hit with a stone. The dog turned round and accused Udalal hurled another stone towards the dog which missed the dog and hit the abdomen of Devilal. Devilal sat down as he felt pain in his stomach. The accused and the mother of Devilal come for help and both of them brought Devilal to his house where the mother of Devilal called a compounder who treated him for some days. On the evening of February 28, 1983 Devilal felt much pain and as such his parents got him admitted in the hospital at Bundi. Subsequently Devilal succumbed to the injury and died on March iO,1983 and his post -mortem was conduced on March 11, 1983. Initially on the statement of Devilal recorded on March 1, 1983 a case was registered against the petitioner under Section 336 IPC. However, after the death of Devilal a case was registered under Sections 337 and 304 IPC After investigation a charge -sheet was filed against the petitioner under Sections 337 and 304 IPC and the case was committed to the Court of Sessions Judge, Bundi. In these circumstances the learned Sessions Judge, by his impugned order, dated November 15, 1983 framed a charge under Section 304 Part I, IPC against the accused -petitioner.
It was contended by learned Counsel for the petitioner that even from the admitted facts of the case as stated by the injured Devilal himself no case is made out beyond Section 304A, IPC. It was submitted that though it was a case of pure accident and the petitioner is entitled to be acquitted, but in the alternative it was submitted that even from the admitted facts no case can be found established at this stage beyond Section 304A, IPC.

(3.)I have perused the record and have considered the statement of Devilal recorded on March 1, 1983. Devilal in his statement has clearly stated that he was taking his bullocks to a pond at about 5.30 p.m. A dog was following him. The petitioner Uda Goojar threw a stone on the dog on account of which the dog turned round. Thereafter another stone was thrown at the dog by the accused -petitioner which struck in the stomach of Devilal. Thereafter Devilal started crying and the accused Uda tried to pacify him. On his cry, his mother also came there and thereafter his another and accused Uda brought him at his house and his mother got him treated by a compounder. When his condition became serious then his parents brought him to the general hospital at Bundi on February 28, 1983. At the time when he had received this injury no other person was present there. In view of the above statement. I am clearly of the view that no charge even prima facie can be found against the petitioner under Section 304, Part I, IPC. I see force in the contention of learned Counsel for the petitioner that at the most a charge under Section 304A, IPC is made out against the petitioner at this stage.

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