D. M. DHARMADHIKARI, J.

( 1 ) THIS is a revision of the complaint against the order dated 25. 8. 1990 passed by the Fourth Additional Judge to the Court of Sessions Judge, Chhatarpur in Sessions Trail No. 50 of 1990 whereby no charge has been framed against Salim Khan, Station Officer, Hardalpur and instead framing charge under section 302 I. P. C. , charges only under section 304 Part-II and section 201 I. P. C. have been framed against other accused (Non-applicants No. 1 to 3)

( 2 ) THE present criminal case was instituted against the non-applicants on the allegation that one Pontu Dhimar was arrested by the police for interrogation on the charge of Commission of theft. According to the allegation of two other prisoners lodged in the police station, deceased Pontu was beaten up by non-applicant Nos. 1 to 4 who were employees in the staff of the police at the police station. The body of the deceased Pontu was recovered from a well and according to the medical opinion, he died of asphyxia.

( 3 ) THE learned counsel appearing for the complainant, who is widow of deceased Puntu, urged that the learned Judge of the trial Court instead of framing charge on the basis of the allegations contained in the police papers and the statements of witnesses recorded by the police made a meticulous exercise of weighing and appreciating the statements on record. The learned Judge of the trial Court thus wrongly discharged to the main accused Salim Khan; Station Officer, and instead of framing charge under section 302 I. P. C. framed only a charge under section 304, Part-II I. P. C. against the accused. Reliance on behalf of the complainant is placed on Radhey Shyam v. Kunj Behari and State of Bihar v. Raj Narain Singh. Non-applicant No. 4 Salim Khan has been duly noticed; but has failed to enter appearance in this Court. There is on record a report dated 23. 9. 1991 submitted by S. P. Chhatarpur informing this Court that non applicant No. 4 Salim Khan was duly served with the notice of the revision and an acknowledgment to that effect was also sent to the Registry by S. P. Chhatarpur. Non-applicant No. 4 in spite of service has avoided to appear in this Court.

( 4 ) THE learned Counsel appearing for other accused (non-applicants 1 to 3) made an effort to support the order of the learned trial judge and submitted that even in exercise of power of discharge under section 227 and for framing charge under section 228 Cr. P. C. , the criminal Court is fully empowered to judicially apply mind to the material on record and may come to the conclusion that no offence under section 302 I. P. C. is made out; but only an offence under section 304, Part-Il I. P. C. is made out. Reliance on behalf of the accused is placed on the following decisions: (1) Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra. (2) State of Karnataka v. Muniswamy. (3) Union of India v. Prafulla Kumar (4) Niranjan Singh and Ors. v. Jitendra Bhimraj. The learned counsel cited State of Andhra Pradesh v. Venugopa, Gauri Shankar Sharma v. State of U. P. , to support his contention that even on the allegation of torture of the deceased for obtaining confession from him, an offence under section 304, Part-li I. P. C. was alone made out It is also argued that there was no evidence that the deceased was thrown into well by the accused.

( 5 ) SO far as the extent of power of the Court while framing charge or is charging the accused in concerned, it is so well-settled that no reiteration of the same is needed in view of several decision of the Apex Court, cited by the learned counsel for parties.

( 6 ) THE question before me is whether in this particular case the learned Judge of the trial Court has rightly exercised his jurisdiction in discharging non-applicant No. 4 Salim Khan and framing

( 7 ) ONLY a charge under section 304, Part-II I. P. C. against the other three accused. I first take-up the question whether non-applicant No. 4 Salim Khan was rightly discharged. It has b

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