Neutral Citation No. - 2025:AHC:9598 Court No. - 71 Case :- APPLICATION U/S 482 No. - 38496 of 2024 Applicant :- Muslim And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ali Hasan,Istiyaq Ali Counsel for Opposite Party :- Amit Kumar Shukla,G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Ali Hasan the learned counsel for applicants, the learned A.G.A. for State and Mr. Amit Kumar Shukla, the learned counsel representing first informant opposite party-2. 2. Perused the record. 3. Applicant-Muslim And 3 Others, who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. challenging the order dated 07.10.2024 passed by Sessions Judge, Jaunpur in Sessions Trial No. 449 of 2003 (State Versus Muslim and others) arising out of Case Crime No.156 of 2003, under Sections 302, 323 I.P.C. Police Station Sureri District Jaunpur, whereby, application under Section 216 Cr.P.C. filed by accused applicants for alteration of charge has been rejected by Court below. 4. Learned counsel for applicants submits that the FIR giving rise to present criminal proceedings was lodged against named/charge sheeted accused under Section 304 I.P.C. The charge sheet/police report was submitted by Investigating Officer against charge sheeted accused under Section 304 I.P.C. However, concerned Sessions Judge proceeded with trial by framing of charge under Section 302 I.P.C. in compliance of under Section 228 Cr.P.C. Learned counsel for applicants then submitted that in the charge sheet/police report submitted against charge sheeted accused, there are as many as 16 prosecution witnesses nominated therein. However, out of the 16 prosecution witnesses so nominated only 7 witnesses are prosecution witnesses of fact. The depositions of the prosecution witnesses of fact have already been recorded before Court below. Perusal of the depositions of the prosecution witnesses will go to show that there is a common threat in the depositions of aforesaid witnesses that occurrence giving rise to present criminal proceedings is on account of grave and sudden provocation and at the spur of the moment. On the above conspectus, it is thus urged by the learned counsel for applicants that the case shall not travel beyond the parameters of Section 304- II I.P.C. it is on account of above, the application under Section 216 Cr.P.C. was filed before Court below. 5. According to the learned counsel for applicants Court below instead of dealing with the aforementioned application in the light of the depositions of the prosecution witnesses has observed as under in the penultimate part of the order dated 07.10.2024. For ready reference, the same is extracted hereinunder:- " पररककत कररयय गयय अकभययजन सरकरगण कय दररर घटनरकम मम अकभययकगण कय दररर मररपरट मम पहहहचरयर गयर चयटट कय फलसवरप ममतक कक ममतयय वर जरनय यमन कय थन ककयर गयर हह। परथरनर पत मम कथथत तथयट कय सनदभर मम यकद अकभययजन दररर धररर 302 भर०दह० सह० कय अनतगरत अपररध ययककसहगत सनदयह सय परय सरकबत न ककयर जर सकय तय धररर 304 भर०दह० सह० कय अनतगरत अपररध कय समबनध मम कवचरर ककयर जर सकतर हह। वतरमरन सतर पर पतरवलर 20 वररह सय भर अथधक समय सय लममबत हह। वतरमरन सतर पर आरयप सहशकत यर पररवकतरत ककयय जरनय कर सनतयरजनक आधरर नहह हह। परथरनर पत कनरसत ककयय जरनय ययगय हह।" 6. With reference to above, the learned counsel for applicants submits that Court below has recorded contrary finding in the aforesaid portion of the order. Once Court below came to the conclusion that the issue regarding alteration of charge under Section 304 I.P.C. can be considered after the prosecution evidence was recorded then Court below ought to have been deferred the disposal of the application itself instead of rejecting the same. He therefore, contends that the conclusion recorded by Court below does not commensurate with the findings returned by Court below itself. As such, the order impugned cannot be sustained. 7. Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant opposite party-2 have vehemently opposed the present application. However, they could not dislodge the factual submissions urged by the learned counsel for applicants, with reference to the record at this stage. 8. Having heard, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant opposite party-2 and upon perusal of record, this Court finds that the observations made by the Court below in the order impugned and the conclusion drawn by Court below by means of the impugned order does not commensurate with the findings returned by Court below in the penultimate party of the impugned order. Once Court below upon evaluation of the material on record itself recorded a finding that the application under Section 216 Cr.P.C. can be considered after the entire prosecution evidence has been recorded therefore, there was no occasion before Court below to reject the application. Court below in such a circumstance ought to have deferred the disposal of the application under Section 216 Cr.P.C. filed by accused applicants as opined by Court below itself. 9. In view of the discussion made above, the present application succeeds and is liable to be allowed. 10. It is, accordingly, allowed. 11. The order impugned dated 07.10.2024 passed by Sessions Judge, Jaunpur in Sessions Trial No. 449 of 2003 (State Versus Muslim and others) arising out of Case Crime No.156 of 2003, under Sections 302, 323 I.P.C. Police Station Sureri District Jaunpur is, hereby, quashed. 12. Court below shall proceed to pass a fresh order but in line with the observations earlier recorded by Court below itself in the penultimate part of the order impugned in present application. Order Date :- 16.1.2025 Imtiyaz Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad