JUDGMENT
Ranjit Singh, J.
1. Aggrieved against the action of the trial Court in framing a charge against the petitioners under Section 302 IPC at the fag end of the trial, the petitioners have impugned the same by way of present revision petition. FIR No. 151 dated 11.8.2005 was registered against the petitioners under Sections 307/34 IPC and 25/54/59 of Arms Act at Police Station Ganaur. On completion of investigation, the prosecution presented a challan against the petitioners. Having framed a charge under the afore-mentioned offences against the petitioners, the recording of the prosecution evidence commenced. Prosecution closed its evidence on 17.1.2006 and the case was fixed for defence evidence.
2. On 18.3.2006, however, the trial Court observed that a perusal of the FIR reveals that Sandeep was allegedly fired upon and as such, the trial was in progress for an offence under Section 307 IPC. Father of the injured-complainant Sandeep appeared in the witness box as PW1 to say that Sandeep had expired on 12.9.2005 i.e. after about a month of the day of occurrence. The trial Court, however, noticed that from the evidence on the file, it was not clear if the death of Sandeep could be related to the injuries that were caused to him by the petitioners and further that it was not clear whether this was a case of a natural death. The Court justifiably observed that in case Sandeep had expired on account of injuries sustained by him in the alleged occurrence, then the petitioners were liable to be charged for an offence under Section 302 IPC. The Court accordingly directed SHO concerned to appear before the Court and give a report about the cause of death of Sandeep, as may have revealed from the post mortem examination. On 20.4.2006, State moved an application for altering the charge against the petitioner from Section 307 IPC to Section 302 IPC. It is mentioned in this application that victim Sandeep Rana had suffered a gun shot injury at the hands of the petitioners. He had accordingly been admitted to various hospitals for treatment. It is further mentioned that during the course of treatment, complainant Sandeep Rana succumbed to his injuries on 17.9.2005. As per the opinion of Senior Consultant, Dr.J.C.Vig, the complainant had died due to multi organs failure on account of several complications such as septicaemia, malaria, dengue fever, hepatitis. All this has followed the gun shot injury suffered by the victim. It is urged that this opinion would clearly show that the complainant had died because of the complications arising out of a gun shot injury and, thus, relatable to the action of the petitioners. Accordingly a prayer was made to alter the charge framed against the petitioners from Section 307 to Section 302 IPC. It is in this background that the trial Court vide its order dated 23.5.2006 allowed this application and held that petitioner, Ashok, is required to be charge-sheeted under Section 302 IPC and petitioner Pawan @ Pona is liable for the said offence with the aid of Section 34 IPC. Aggrieved against this order, the present revision is filed.
3. I have heard learned Counsel for the parties.
4. The counsel for the petitioners has made submissions in detail by giving background of the case to say that the petitioners were not named in the FIR. However, their names were mentioned in the supplementary statement. The main submission of the counsel is that death of the victim in this case is not connected with the act of the petitioners in any manner and, thus, to burden them with the charge of Section 302 IPC, at this stage, when recording of entire prosecution evidence is over, would not be justified in law or otherwise. As per the counsel, there is no evidence connecting the petitioner with the offence, as can be seen from the testimony of witnesses produced by the prosecution. The counsel, as such, has prayed for quashing the impugned order, directing framing of a charge against the petitioners for an offence under Section 302 IPC.
5. It is seen that the petitioners are facing prosecution for an offence under Section 307/34 IPC for having made an attempt on the life of late Sandeep. Till date, they did not raise any challenge in regard to their trial for an attempt to murder Sandeep. It is also not disputed before me that Sandeep had died on 12.9.2005. This fact has also been disclosed before the trial Court by the father of the victim while appearing as a witness. So the factum of death of the victim is available before the Court in the form of an evidence. Ideally, the Court should have taken immediate notice about this death on the day this evidence was produced before the Court. Still, the Court can not be faulted for acting in the manner it has done. Having learnt about the death of a victim, the Court was justified in seeking information and report from the police in regard to the cause of death. Obviously, if the death of Sandeep is related to the act of the petitioners in causing fire arm injury or if the cause of death is the bullet injury that he had received from the hands of the petitioners, then certainly the petitioners can be held liable for an offence under Section 302 IPC.
6. In a detailed order passed by the trial Court, a mention to the facts alleged is made. A reference is also made to the statement of Raj Kumar and Punjaba, who claim themselves to be the eye witnesses of the occurrence. These two witnesses alongwith petitioners, Ashok and Pawan and late Sandeep were present in the room of Cable Centre. They have testified about the altercation between Ashok and Sandeep and the fact that in a rage, Ashok took out his pistol and fired a shot at Sandeep, hitting in his chest. Nothing much can be made out from the fact that the petitioners were not named because the record reveals that the injured Sandeep was obviously in state of shock and daze when his initial statement was recorded. ASI Om Parkash then recorded his supplementary statement at Post Graduate Institute of Medical Sciences, Rohtak on the day following the incident i.e. on 11.8.2005. Injured Sandeep had given reasons for disclosing these names in the supplementary statement. As per the victim, Ashok and Pawan, petitioners, had told him not to name them with the threat that otherwise he would not be taken for admission to P.G.I.M.S., Rohtak. It is under these circumstances that they are being proceeded against.
7. It appears that the case was transferred to the present Court, when it noted the aspect of death of complainant, Sandeep. Accordingly, the S.H.O. was required to disclose the cause of death. The prosecution, thus, came to file the application as already noted. It is in this background that report of Senior Consultant, Dr.J.C.Vig, in regard to the cause of death came on record. Noticing the contents of Section 216 Cr.P.C., the Court has observed that this Section confers jurisdiction of all Courts to alter or add any charge framed earlier at any time before the judgment is pronounced. It was further noticed that even the defence counsel appearing before the trial Court had conceded that such a power is available with the Court to amend or add any charge. The Court was conscious of the fact that there should be material before it either in the complaint or in the evidence for altering or adding charge. Thereafter, the Court went on to notice that for framing of charge or for altering the same, only prima-facie material is to be seen. Obviously, the Court is not required to see the evidence minutely to find if ultimately the accused would be convicted of the proposed charge or not. The Court has made reference to the treatment received by the deceased in various hospitals and has observed that if the death is related to the gun shot injury or not, it will be a matter of evidence required to be determined by holding the trial. Notice is taken of the opinion of the doctor given in regard to the cause of death, which prima-facie shows that one of the cause of death of Sandeep, was septicaemia on account of bullet injury. The Court further noticed the fact that two of the eye witnesses had not supported the case of the prosecution and were declared hostile but went on to observe that statement of deceased Sandeep, after his death, may take the shape of dying declaration and, thus, admissible under Section 32 of the Indian Evidence Act. The Court accordingly directed framing of a charge under Section 302 IPC against the petitioner.
8. The submission made by counsel for the petitioner that evidence led before the Court would not link the petitioners with the commission of offence and as such, a charge under Section 302 IPC could not have been framed, can not be accepted. Even if the evidence, which has been recorded is taken into consideration and the fact that eye witnesses had turned hostile, still, in my view, material is available on record, which would show that prima-facie case still can be seen against the petitioners for an offence under Section 302 IPC. The opinion of the doctor in regard to cause of death, which is relatable to septicaemia and the statement made by the deceased, victim, which may ultimately take the shape of dying declaration, would be enough to frame the charge. The trial Court has rightly observed that at the time of framing charge, only prima facie nature of the evidence is to be seen. Whether the statement of the victim, prima-facie, can be read as a dying declaration would ultimately be decided by the Court depending upon the evidence that would be produced before it by the parties and the submissions that may be made in this regard during the course of trial, I do not see any infirmity in the order passed by the trial Court in framing a charge under Section 302 IPC against the petitioner.
9. The present revision, as such, is dismissed.