A.F.R.
Court No. - 89
Case :- CRIMINAL REVISION No. - 137 of 2023
Revisionist :- Ramji Prasad And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Manoj Kumar Chaudhary
Counsel for Opposite Party :- G.A.
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionist, learned AGA for the
State and perused the record.
This criminal revision is directed against the order dated
08.07.2022 passed by Sessions Judge, Varanasi in S.T. No.268
of 2022 (State vs. Brijesh and another) crime no.480 of 2015
under section 147, 148, 149, 308, 323, 504, 506 IPC, P.S. Cantt.
District Varanasi.
The FIR of this case was lodged by opposite party no.2 alleging
therein that today on 19.08.2015 at about 10:00 am, the accused
Brijesh Kumar, Guddu, Rakesh Kumar came at the door of the
revisionists and started to abuse. Meanwhile, Brijesh and other
family members Ramji, Randheer Kumar and Anil Kumar and
Arun Kumar also came at the door of the complainant and
started to assault the complainant and his brother Ravi Kumar
with iron rod, bricks danda and butt of country made pistol
causing serious head injury to Ravi Kumar. The complainant
also suffered injuries on his head, back and waist and became
unconscious on the spot. The accused-persons ran away
presuming that the complainant and his brother are dead. The
injured were medically examined and after investigation,
charge-sheet was submitted against all the named accused
persons. The accused-revisinist moved an application U/s 227
Cr.P.C. alleging therein that the injured have not suffered any
grievous injury. The doctor who has conducted the medical
examination has not stated that injuries of the injured are
grievous in nature which may cause death. Doctor has given the
opinion that injuries are simple in nature. No supplementary
report has been prepared on the basis of X-Ray report and C.T.
Scan. Hence no offence U/s 308 is made out. The learned trial
court by the impugned order, after hearing both the parties has
rejected the aforesaid application. Aggrieved with it, this
revision has been filed.
Learned counsel for the revisionists mainly contended that all
the injuries are simple in nature. No supplementary report on
the basis of X-Ray and C.T. Scan is prepared. The doctor has
also stated that injuries are simple in nature. Hence no offence
U/s 308 IPC is made out. It is also contended that while
considering the bail application, the sessions court has observed
that nature of the injuries is not serious. The medical report
never support to frame the charge U/s 308 IPC. The learned
court below has passed the impugned order without applying
judicial mind, without appreciating the fact and circumstances
of the case and without taking into consideration the evidence
available on record. The order passed by learned court below is
based on conjunctures and surmises and bad in the eye of law.
The court below has misinterpreted section 308 IPC. It has
totally ignored the medical report which is valuable evidence.
Learned AGA opposing the prayer, submitted that the assault
has been made with the intention of causing death. Two persons
have received injuries. There is no illegality in the impugned
summoning order.
Section 308 IPC provides as follows:
"Whoever does any act with such intention or knowledge and under such
circumstances that, if he by that act caused death, he would be guilty of
culpable homicide not amounting to murder, shall be punished with
imprisonment of either description for a term which may extend to three
years, or with fine, or with both; and, if hurt is caused to any person by
such act, shall be punishable with imprisonment of either description for
term which may extend to seven years, or with fine, or with both."
Section 308 IPC consists of two parts. The first is related to no
injury cases while the second part deals where hurt is caused.
So what is the material is intention or knowledge and the
circumstances in which the act has been done and not the
injuries. The intention or knowledge and the circumstances
under which the act has been done is to be gathered from the
allegations of the FIR, the evidence and other material and all
other attending circumstances of the case.There are allegations
in the FIR that accused persons were armed with iron rod,
danda and country made pistol. They assaulted the injured with
lathi, danda and butt of country made pistol causing head injury.
It is also settled that at the stage of framing charge the test of
prima-facie case has to be applied. If there is ground for
presuming that accused has committed the offence, a court can
justifiably say that a prima-facie case against him exists and
framing of charge is justified. If on the basis of materials on
record, the courts comes to the conclusion that commission of
offenc is a probable a case for framing charge exist. An order of
discharge would be warranted only in those cases where the
court is satisfied that there are no chances of conviction and the
trial court would be an exercise infutility.
The learned trial court has considered the entire facts, evidence
and other material available on record and after analyzing it has
come to the conclusion that there is sufficient ground to frame
charge U/s 147, 148, 149, 323, 308, 504 & 506 IPC and thus
has rejected the discharge application. So there is no illegality
in the impugned summoning order.
Accordingly, the revision is devoid of merits and is hereby
dismissed.
Order Date :- 17.1.2023
C. MANI
Digitally signed by :-
CHANDRAMANI VERMA
High Court of Judicature at Allahabad
