VINOD GOEL, J.

1. This Criminal Revision Petition impugns an order dated 29.08.2016 passed by the Court of Additional Sessions Judge, Fast Track Court, Patiala House Courts, New Delhi (in short ‘ASJ’) whereby an application of the prosecution under Section 216 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) for framing additional/alternate charge under Section 302 of the Indian Penal Code, 1860 (in short ‘IPC’) besides the charges framed under Sections 376A/392/201 read with Section 411 of the IPC against the respondent/accused was dismissed.

2. The prosecution charge-sheeted the accused/respondent under Sections 302/201/376A/ 377/392 read with Section 411 of the IPC. The ASJ vide order dated 09.09.2015 framed charges under Sections 201/376A/392/411 of the IPC stating that there was no material for framing charges against the accused under Section 377 of the IPC and that the offence under Section 376A was a graver offence than the offence under Section 302 of the IPC as the cause of death of the deceased was due to the combined effect of strangulation and shock due to visceral injuries and blood loss due to insertion of wooden objects in both the private parts as per the post-mortem report and therefore there was no question of framing an alternate charge under Section 302 of the IPC.

3. This order dated 09.09.2015 of the ASJ was assailed by the State in Criminal Revision Petition 254/2016. It was argued by the State that the charge under Section 302 of the IPC has not been framed by the ASJ even though there was ample medical evidence on record. This petition was disposed of on 23.08.2016 with liberty to the State to approach the ASJ for framing a charge on the basis of the material before the Court.

4. The petitioner exercised the liberty so granted by this Court and moved an application before the ASJ for framing an additional/alternative charge under Section 302 of the IPC. This application was dismissed of vide impugned order dated 29.08.2016 whereby the ASJ surprisingly concluded that this application was filed beyond the scope of liberty granted by this Court wherein the State had prayed for amendment of the charge and particularly for framing of charge under Section 302 of the IPC. The ASJ also observed that the application was devoid of any merit in view of his earlier order dated 09.09.2015. He reiterated that the court has the power to convict the accused for offences which are minor in relation to the offences with which the accused has been charged with after conclusion of trial if the evidence already led proves the commission of the minor offence.

5. Learned APP for the State argued that the ASJ had committed a grave error in law by holding that the offence under Section 302 is a minor offence in relation to the offence under Section 376A of the IPC. He argued that the two offences do not belong to the same genus and species and therefore cannot be treated as a minor and major offence. He argued that the offence of rape is distinct in comparison of the offence of murder and hence cannot be considered as being minor or major and at the time of framing of charge, offences cannot be compared particularly when both the offences are extremely grave and serious.

6. He further argued that the ASJ committed an error in not appreciating the spirit of the order passed by this Court on 23.08.2016 whereby liberty was granted to move the Trial Court with an application under Section 216 of the Code for framing a charge as per the material available on record.

7. He further argued that there was ample evidence on record to bring home the guilt of the accused under Section 302 of the IPC and therefore after going through the evidence prima facie, an additional or alternative charge under Section 302 should have been framed by the ASJ.

8. He further argued that in view of the fact that the victim was the only eye witness and since she was murdered, it might be difficult for the prosecution to prove the offence o