Charges - Joinder of - An alternative charge cannot be framed in respect of distinctive offences.

Satish Kumar Mittal, J.

1. The accused have filed this revision petition against the order dated 5.10.1999, passed by Additional Sessions, Judge, Hisar, whereby charge Under Section 302 read with Section 34 I.P.C. and in alternative Under Section 306 read with Section 34 I.P.C. has been ordered to be framed against the accused.

2. The brief facts of the case are that deceased Manohar Lal was working as an Accountant in Firm M/s Mohan Singh Sucha Singh, Grain Market, Ratia. Accused Om Parkash (now expired during the pendency of this petition) was one of the partners of the said firm. Accused Naresh Kumar, relative of accused Om Parkash, was also working as Accountant in the said firm. As per the prosecution version, on 19.5.1998, one Suresh Kumar, who was working in a different factory, had a telephonic conversation with Manohar Lal deceased. He enquired about sister of accused Naresh Kumar. The said conversation was over-heard by accused Naresh Kumar on parallel line. He felt aggrieved. He summoned deceased Manohar Lal and his father Lekh Raj (complainant) in the premises of Jindal Cotton Factory on 20.5.1998 at about 6 P.M. As per the prosecution version, accused Naresh Kumar and Om Parkash gave beatings to deceased Manohar Lal and thereafter asked the deceased and his father to leave the factory premises. Subsequently, on the next day, on 21.5.1998, the dead body of deceased Manohar Lal was found near a petrol pump. Thereupon, on a complaint made by father of the deceased, the police registered the case Under Section 302 I.P.C. against the accused.

3. During investigation, statements of various persons were recorded by the police. The complainant stated that his son had committed suicide because he felt humiliated, when he was given beatings by the accused. The other witnesses also stated that accused Om Parkash and Naresh gave beatings to Manohar Lal, who later on committed suicide. On the basis of the evidence collected during the investigation, the police submitted challan against the accused Under Section 306, 404 read with Section 34 I.P.C. Subsequently, report of the chemical examiner was received, which shows presence of aluminium phosphide in the viscera. The trial Court, after taking into consideration the said chemical examiners report, framed the charge against the accused Under Section 302 read with Section 34 I.P.C. and in alternative Under Section 306 read with Section 34 I.P.C. Against the said order, the instant revision petition has been filed.

4. Learned Counsel for the petitioners submitted that there is absolutely no material on the record justifying the framing of charge Under Section 302 read with Section 34 I.P.C. All the prosecution witnesses, in their statements before the police Under Section 161 Cr.P.C., have stated that the accused gave beatings to Manohar Lal on account of bad conversation between him and one Suresh Kumar on telephone, because of which he felt humiliated and committed suicide. Merely because aluminium phosphide was found in the viscera of the deceased, it cannot be said that it was homicidal death. They further contended that in this case, no homicidal or other injury has been found on the person of the deceased to bring the case within the four comers of murder, as defined Under Section 300 I.P.C. and punishable Under Section 302 I.P.C. Secondly, learned Counsel submitted that no alternative charge Under Section 302 and 306 I.P.C. can be framed. They submitted that the prosecution has to make up its mind whether the facts which can be proved justify framing of charge Under Section 302 or Under Section 306 I.P.C. They submitted that both the offences are distinct offences and are diametrically opposite to each other, therefore, alternative charge cannot be framed in respect of these distinct offences. It is not permissible for the prosecution to say that the accused have committed murder and at the same time taking the alternative position that they have abetted the commi