IMPORTANT POINT
Cognizance of offence under Sec­tion 302 IPC on supplementary charge ­sheet after the court had already taken cognizance of offence under Section 30.7 [PC and since thereafter victim died there is no illegality as cognizance is not taken of a particular section of offence but is taken on the case.

JUDGMENT

U.S. Tripathi. J, - This applica­tion under Section 482 Cr. P.C. has been filed for quashing the order dated 24-7-2002 passed by Additional Sessions Judge. Court No. 6. Gorakh­pur in S.T. No. 178 of 2002 holding that charges under Section 302 I.P.C. be framed against the applicants.

2. One Nagendra Rai lodged an F.I.R. on 19-8-2001 against the applicants under Sections 308. 323. 504 I.P.C. with the allegation that on 19-8-2001 at about 7.30 P.M. a quarrel was going on between the ladies of the families of the parties and Keshbhan Rai asked the applicant Satish Rai as to why he was not stopping ladies of his family. On it Satish Rai abusing him asked him to go away. In the meantime the applicant Harish Rai also came and then Satish Rai started causing injuries on Kesbhan Rai with sword and Harish Rai to the complainant and Sanjai Rai by hockey stick. Keshbhan Rai became unconscious and fell down while head of Sanjai Rai was broken. The complainant received injuries on his left hand. Keshbhan Rai was shifted to the hospital at Gorakhpur.

3. On medical examination following injuries were found on the person of Keshbhan Rat: -

1. Incised wound 16 cm x 6 cm on left side of skull. 3 cm away to left ear. Advised X ray.

2. Incised wound 26 cm x 10 cm on left arm 10 cm above the left elbow joint. Advised X ray.

3. All the injuries were caused by sharp object and were fresh in duration. Nagendra Rai sustained one lace­rated wound 3 cm x 1 cm x bone deep in between the index and middle fingers and complaint of pain on right hip.

4. After investigation, the police submitted charge-sheet against the applicants under Sections 307, 324, 504 and 323 I.P.C.

5. Subsequently, Keshbhan Rai deceased was admired in B.H.U. Hospital, Varanasi where he died on 3-10-2001 at 3.25 P.M. Post-mortem on his dead body was conducted on 4-10-2001 and following ante-mortem injuries were found by the Doctor:

1. An old healed scar mark 2.0 cm x 0.5 cm on the left arm and 6 cm below left shoulder joint.

2. An old healed scar mark on the left side head on parietal region and on opening skull subdural hematoma and pus were found present with old fracture of left side parietal bone.

The cause of death was coma as a result of head injury.

After death of deceased a supple­mentary charge sheet under Section 302 IPC was submitted against the applicants on 2-1-2002.

The cognizance of the case was taken by the Magistrate and the case was committed to the Court of Sessions.

6. At the stage of charge an application was moved on behalf of the applicants/ accused for discharge under Section 302 IPC on the ground that no offence punishable under Section 302 I.P.C. was made out and at the most an offence punishable under Section 304 I.P.C. was made out.

7. The learned Sessions Judge on hearing learned counsel for the parties held that fatal injuries on the person of the deceased were caused by sword and the Doctor described the injuries as dangerous to life, therefore, in view of the nature of injuries and weapon charge be fra­med under Section 302 I.P.C.

8. The above order of the Sessi­ons Judge has been challenged in this application.

Heard Sri D.S. Mishra, learned counsel for the applicants and the learned A.G.A. and perused the record.

9. The contention of the learned counsel for the applicants was that initially cognizance was taken on the charge-sheet submitted under Section 307 I.P.C., therefore, subsequently cognizance cannot be taken on the supplementary charge sheet under Section 302 I.P.C. That in any case no offence punishable under Section 302 I.P.C. is made out on the allegations contained in the F.I.R. and the injury report. That earlier charge sheet was submitted under Section 307 I.P.C. and the deceased died after about a month of the incident when he was discharged from the hospital and had come to his house. He further contended that occurrence took place suddenly and no motive has been alleged in the F.I.R. From the allegations