- (1.) MRS. Saroj Bala, J. This application under Section 482, Cr. P. C. moved for quashing of impugned order dated 23-11-2006 passed by the Special Judge (S. C. and S. T.) Act, District Banda in sessions trial No. III of 2005, State v. Ashok Singh and Ors. under Sections 323/34, 325/34, 302/34, 504 and 506, I. P. C. and Section 3 (2) (5) of S. C. /s. T. Act whereby framing the charges against the applicants for the offences under Sections 302/34, 323/34, 325, 504, 506, I. P. C and 3 (2) (5) of S. C. and S. T. Act.
(2.) HEARD Shri Rajeev Lochan Shukla holding brief of Shri Mohit Singh, learned Counsel for the applicants, learned A. G. A. and have perused the record. The essential facts of the prosecution case are : On 2-6-2005 at about 6 p. m. the applicants were putting soil in front of the door of Ram Ashery father of first informant. When the informant's father protested to the throwing of soil, the applicants hurling abuses subjected the informant and his father to assault by wielding of lathis. The First Information Report of the incident was lodged the same day at 9. 10 p. m. The injured Ram Ashery was medically examined on 2-6-2005 at 10 a. m. and L. W. in left temporal part of scalp 6 cm. x 1/2 cm. 9 cm. above left ear, L. W. in front of left side of scalp 3 cm. x 1/2 cm. 3 cm. above left eyebrow and contused abrasion in right hand 5 cm. x 1/2 cm. at wrist joint were found. The injuries were caused by hard and blunt object and duration was fresh, X-ray of scalp was advised and injuries were kept under observation. In the X- ray fractures of scalp bone were seen. The injured succumbed to the injuries on 6-6-2005 at 3. 30 p. m. while he was being brought home from district hospital Kanpur due to critical condition. The injured was referred on 5-6-2005 to Lucknow for further treatment. The post-mortem certificate indicates fracture of left parietal and temporal bones, memberances were found injured and huge hamotoma was present on left side. In the opinion of autopsy surgeon cause of death was haemorrhage and shock due to ante- mortem injuries. After hearing both the parties and going through the material on record and case diary learned Additional Sessions Judge charged the applicants-accused for the offence under Sections 302/34, I. P. C. together with other offences.
(3.) THE learned Counsel for the applicants submitted that no case under Section 302, I. P. C. is made out against the applicants even if the entire prosecution case is taken on its face value the prosecution case does not travel beyond Section 304, I. P. C. THE learned Counsel convassed that no intention to cause death is attributable to applicants. THE submission of the learned Counsel was that the incident had taken place all of a sudden and there was no premeditation. According to the learned Counsel the injured Ram Ashery an old man died as proper medical treatment was not provided to him. THE learned Counsel argued that there is cross version the First Information Report of which was registered as N. C. R. No. 57 of 2005 under Section 323, 504 and 506 I. P. C and persons on the side of applicants also suffered injuries. Another argument pressed into service was that under Section 221, Cr. P. C. the learned trial Court had jurisdiction to frame alternate charge under Section 304, I. P. C. THE contention of the learned Counsel was that the burden of proving that the case is covered within the exceptions as specified under Section 300, I. P. C. lies on the applicants by virtue of Section 105 of the Evidence Act. According to the learned Counsel the provisions of fourth exception of Section 300, I. P. C. are applicable to the present case and charge under Section 304, I. P. C. should have been framed instead of Section 302, I. P. C. The learned A. G. A submitted that lot of confusion has been created by the learned Counsel for the applicants without understanding the true scope and meaning of terms used in various clauses of Sections 299, I. P. C. and 300, I. P. C. The learned Counsel argued that there is appreciable distinction between the two offences. The learned Counsel pointed out that Clause (b) of Section 299, I. P. C. corresponds to Clauses (2) and (3) of Section 300, I. P. C. The learned Counsel urged that Clause (b) of Section 299, I. P. C. does not postulate any knowledge on the part of the offender. The learned Counsel pointed out that in Clause (3) of Section 300, I. P. C. instead of words likely to cause death occurring in corresponding Clause (b) of Section 299, I. P. C. , the words 'sufficient in the ordinary course of nature have been used'. The contention of the learned Counsel was that the distinction lies between a bodily injury likely to cause death and a boldly injury sufficient in the ordinary course of nature to cause death.;