JUDGMENT :

RAM MANOHAR NARAYAN MISHRA, J.

1. Heard learned counsel for the revisionist, learned counsel for the private respondent and learned A.G.A. for the State and perused the record.

2. Instant criminal revision has been preferred against judgment and order dated 24.3.2023 passed by Special Judge, DAA (Dacoity Affected Area)/Additional District and Sessions Judge, Hamirpur, whereby application 14Kha moved by accused under Section 216 Cr.P.C. for alteration of charge has been dismissed. This case has arisen out of Case Crime No. 87 of 2022, under Section 302/34, 201 IPC, P.S. Kurara, District Hamirpur.

3. From perusal of record it appears that F.I.R. in present case was lodged by respondent no. 2 on 1.4.2022 under Section 364 IPC with averment that his brother Pradeep @ Jwaladeen went missing on 29.3.2022 since 8:00 pm. He was in constant contact with accused Munesh and Chhuttan who were having intimacy with his missing brother. He suspects that Munesh and Chhuttan would be aware of the whereabouts of his missing brother.

4. Police started investigation in the case and recorded statements of the informant Kamta Prasad. Dead body of the missing person was recovered on 2.4.2022 and the information in this regard was entered in G.D. of P.S. concerned on 2.4.2022 at 9:20 hours. Inquest on dead body of the deceased was carried out. Dead body was found on the bank of Yamuna river, near Mauli canal pump, which was in advanced stage of decomposition. Post-mortem of the dead body was conducted by the Dr. Umakant, who opined that time of death was three days prior to post-mortem. Cause of death was asphyxia as a result of ante-mortem drowning. Investigating Officer recorded statements of Ahilya Devi, mother of deceased and Kuldeep, brother of the deceased and Suryapal and on the basis of statement of witnesses, post-mortem report of the deceased and C.D.R. of deceased and accused persons, concluded that deceased was used to converse with neighbour Roshni Yadav, daughter of Chunna Yadav, till the date when he went missing. Shailendra who is brother of Roshni, was very much enraged to this and he went for search of Pradeep (deceased) to his place along with accused Munesh, Chhote and Rakesh and stated to his family members that Pradeep will have to face dire consequences. Deceased got scared about threats given by accused persons. He converted the offence under Section 306 IPC and ultimately chargesheet was filed against revisionist accused persons under Section 306 IPC on the basis of statements of witnesses recorded under Sections 161 Cr.P.C. and the C.D.R. However, at the stage of commencement of trial, learned trial court after hearing submissions of D.G.C. (Criminal) on behalf of State and learned counsel for the accused, found this case under Section 302/34 and 201 IPC and framed charges against accused persons for offence under Section 302/34 and 201 IPC. Accused persons are said to have been enlarged on bail for enhanced penal sections for which they were charged by the trial court. Accused filed a petition before this Court under Section 482 Cr.P.C. against framing of charge against them under Sections 302/34 and 201 IPC which was later on converted into Crl. Revision No. 4428 of 2022. The said criminal revision was disposed of by this Court by order dated 22.12.2022 with observation that applicant has remedy to move an application under Section 216 Cr.P.C. for alteration of charge. Consequent upon said observations of this Court, accused persons moved an application under Section 216 Cr.P.C. before trial court on 23.1.2023 and said application was dismissed by trial court by impugned order.

5. Learned counsel for the revisionist submitted that learned trial court framed charges against accused under Sections 302/34 IPC and 201 IPC without sufficient material, whereas charge-sheet was filed for charge under Sections 306 IPC only by the investigating officer. He next submitted that during investigation no such material could be coll