ORDER

1. With consent of the parties heard finally.

2. This criminal revision under section 397/401 of Cr.P.C., 1973 has been filed by the petitioner being aggrieved by the order of framing of charges dated 6.9.2021 passed by the Additional Sessions/Special Judge, Indore (M.P.) in S.T. No.4432021, so also the order dated 24.8.2021 whereby the petitioner's application under section 227 of Cr.P.C praying for his discharge from the offence under section 302 of IPC has been dismissed.

2. Brief facts of the case are that on 17.12.2020 @ 11.15 am a white Verna car bearing Registration No.MP09WB1424 slightly touched with two wheeler vehicle Activa bearing Registration No.MH05DW7825 thereafter both the drivers came out and started quarreling with each other. During the fight present applicant who was driving the Activa vehicle slapped car driver due to which he fell down and came under the rear tyre of rash and negligent driven dumper bearing Registration No.MP09GE1947 and succumbed on the spot. On that basis FIR under section 304/34 of IPC has been registered against the applicant and co-accused Sunil Mujalde, Dumper Dirver. After due investigation, charge-sheet was filed against the accused persons under section 304, 302, 34 of IPC and section 3 and 181 of Motor Vehicles Act, 1988. The present applicant filed an application under section 227 of Cr.P.C for discharge of the aforesaid offences before the trial Court which was dismissed vide the impugned order. Hence the present petition.

3. Learned counsel for the applicant submitted that in this case as per FIR and video recording of the incident happened due to rash driving and on a spur of moment under the effect of sudden provocation the applicant slapped the deceased and as per prosecution case due to slapping of the applicant the deceased fell down and came under the rear tyre of the passing by truck due to which the unfortunate incident happened. It is clear from the video recording that there was no intention of the applicant to cause death or culpable homicide of the deceased. In this case, in addition to FIR and video recording, there are statements of 8 witnesses but their statements appear to be totally cyclostyled as the same spelling mistakes are found in every statement. Since there is no intention of killing of the deceased, it emerged in the act of applicant that offence under section 304 or 302 of IPC cannot be made out. It is further contended that at the most the aforesaid act falls under the purview of section 323 of IPC. Therefore the order of framing of charges is bad in law and not sustainable, hence counsel prayed for setting aside the impugned orders. Learned counsel has placed reliance upon the judgment of Hon'ble Supreme Court in the case of Vijayan vs. State of Kerala and Another reported in (2010) 2 SCC 398 and Virsa Singh v. State of Punjab reported in AIR 1958 SC 465 in support of his submissions.

4. Learned Govt. Advocate as well learned counsel for the respondent/complainant vehemently opposed the prayer by submitting that learned trial Court has framed charges after due consideration of the material available on record, hence the impugned orders does not warrant any interference.

5. In view of the rival submissions I have gone through the record. At the stage of framing of charges the law is well settled that trial Court has to see initially whether sufficient material is available for framing of charge or not and arrive at a conclusion upon consideration of the material available on record and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned.

6. On this aspect, in the case of Chitresh Kumar Chopra v. State (Govt.of NCT of Delhi) (2009) 16 SCC 605, manifesting the concerning provisions of framing charge, the Hon'ble apex Court ordained in para No.25 reads as under:-

"25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record