1. With the consent of the parties, the matter is heard finally at motion stage.

2. The revision has been preferred by the applicant under Section 397/401 of Code of Criminal Procedure against the order dated 24.9.2009 passed by Sessions Judge, Behind in Sessions Trial No. 193 of 2009 by which, charges under section 304 Indian Penal Code and in alternate under section 302 of Indian Penal Code has been framed against him.

3. It is alleged that on the date of incidence, applicant was cleaning his licence revolver and at-randomly, trigger was pressed and one bullet hit his Grand Daughter Vaishnavi who was sitting there, as a result, she died.

4. It is contended by learned counsel for the applicant that no case under section 304 Part II or 302 of Indian Penal Code is made out against present applicant. It is further contended that as per First Information Report and statements of prosecution witnesses recorded under section 161 Cr.P.C. on that day, present applicant was cleaning his licencee revolver and inadvertently trigger was pressed and one bullet hit his Grand daughter which resulted in her death. So it is apparent that incident occurred all of a sudden only due to negligence of the present applicant and therefore, ingredients of section 304 and in alternate section 302 IPC is not made out. At the most, the case will fall under section 304 A IPC. Hence, order of learned trial Court framing charge under section 304 in alternate under section 302 of IPC be set-aside.

5. Learned PP opposed the revision and urged that the case will fall within the purview of section 304 II IPC, however, he has admitted that ingredient of section 302 IPC is not attracted out and prayed for dismissal of revision.

6. Heard rival contention of both the counsels and perused the documents on record.

7. Section 304 of Indian Penal Code reads as under:

"304. Punishment for culpable homicide not amounting to under:-

Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life); or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

Section 304-A IPC reads as under:

304-A. Causing death by negligence: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of, either description for a term which may extend to two years, or with fine, or with both."

8. So far as part I of Section 304 IPC is concerned, section 304 IPC provides punishment for culpable homicide not amounting to murder. If the act by which death is caused is done (i) with intention of causing death or (ii) such bodily injury as is likely to cause death then offence under section 304-1 is made out and if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, then it will be covered under section 304-11IPC.

9. It is apparent that the act of applicant was neither done with intention of causing death of his grand daughter nor the act was done with intention of causing such bodily injury as is likely to cause death. So necessary ingredients of section 304-1 IPC are not satisfied. So far as Part II of section 304 IPC is concerned, in the present case, whether the applicant was cleaning his licencee revolver with knowledge that it is likely to cause death of his grand daughter is to be examined.

10. Knowledge of applicant that his act is likely to cause death of his grand daughter is to be gathered from First Information Report and statements of witnesses recorded under section 161 Cr.P.C. and surrounding circumstances. Uma Devi daughter of applicant and mother of deceased who was sitting with her daughter one and half year's old (deceased) in cour