Banwari Lodh and Others vs State of U.P.

V.P. Mathur, J.—This criminal revision is directed against the order dated 16-8-1984 passed by Sri K.P. Nigam, the then VI Additional Sessions Judge, Fatehpur in Sessions Trial No. 443 of 1983 pending in his Court and through this order he has charged all the three revisionist u/s 307/34 I.P.C.

The contention of the learned Counsel for the revisionist is that the evidence on the record does not make out any case u/s 307/34 IPC and at the most it can be a case u/s 324 IPC.

Firstly, reliance in this respect is placed upon an order passed by Sri Ramji Lal Incharge Sessions Judge, Fatehpur on 5-10-1983 while granting bail to Jagdeo in which he has made a mention of the fact that the injuries in question are on the non-vital part of the body and at the most the case would fall u/s 324 IPC which is bailable. I am afraid this observation of the learned Sessions Judge is uncalled for and unfortunate. It should not have been made and in any view of the matter it will limit itself to the matter of granting or refusing bail. It cannot be stretched to the merits of the case and an order passed on the application for bail cannot be said to be of any material worthwhile judging the case on merits at the time of trial. Secondly, my attention is drawn to the first information report. This document clearly mentions that there was previous enmity between the parties and that on the date and time of the incident, the accused persons armed with fire-arms and Banwari son of Lodha armed with lathi came and at the exhortation of Banwari and Vijai Pal, which was to the effect that the complainant should be killed, Jagdeo fired with Tamancha. Then the witnesses arrived and the accused persons started running but when they were given a chase Sukuru fired with his Tamancha and it did not hit any one. Since all the accused arrived together, since all of them remained on the spot together, when the firing was made and since all of them ran away from the spot together, prima facie Section 34 IPC will be attracted. The injury report shows that there was a fire-arm wound of entry at the back of the right upper arm 7 cm below the back fold of armpit. This is injury No. 1. Injury No. 3 is connected with it. It is an abrasion with 1st degree burn 5 cm. x 2 cm. on the outer side of right side of chest 10 cm. below the axilla. According to the doctor, it was probably a result of a shot as there were 1st degree burns there. In the light of the first information and this injury report, it cannot, at this stage, be said with certainty that the evidence would not make out a case u/s 307 IPC in any case. The matter will depend upon the evidence that is adduced for decision. At this stage, charging of the accused u/s 307 and 307/34 IPC is neither illegal nor wrong. The observation made by me in this order regarding application of Section 307 or Section 34 IPC are limited to the decision of this revision alone and will not effect the judgment of the learned Sessions Judge who sits down to decide the case on the basis of the evidence that is adduced before him.

No force is found in this revision which is hereby dismissed. The record shall go forthwith to the court below who will expedite the hearing of the case.

Revision dismissed.