JUDGMENT Shiv Shanker, J.
1. This criminal revision has been preferred against impugned order dated 3.7.2006 passed by Special Judge (E.C. Act),. Gorakhpur in Sessions Trial No. 56 of 2006, State v. Paramhans and Ors., under Sections 147, 248, 149, 307, 504, IPC., Police Station Gagaha, district Gorakhpur whereby the discharge application moved by the accused-revisionists was rejected.
2. Shri Mahadev Yadav son of Pathar Yaqdav, informant lodged a first information report against all the 12 accused alleging that on 10.7.1993 at about 3-4 P.M., when the informant was uplifting the thatch with the help of his family members, accused Param singh and Lal Mani Singh, armed with rifles; Bhagwant Singh, Bachcha, Rajjan Singh, armed with guns; Gulab Singh alias Mahanth Singh, Narendra Singh, Babool Singh, Awadh Naraki Singh, Vishwanath Singh Ranveer Shahi, all armed with country made pistols, Ram Dularey Pandey and his sons, who were living at Pandey Par, armed with country made pistols, reached at the place of occurrence. On the exhortation of accused Paramhans Singh and Lalmani Singh, all the accused persons armed with fire-arms started firing upon the complainant and his family members due to which Smt,. Rampati Devi, Smt. Barta Devi, Sita Ram, Aathar Yadav, Hare Ram, Radhey Shyam and others sustained injuries On the fires, made by accused Lalmani and Paramhans, the niece of the complainant and Smt. Ram Pati Devi also sustained injurie.
3. A written report of the occurrence was lodged by the complainant Mahadeo at Police Station Gagaha, district Gorakhpur on 10.7.1993 at 18.10 hours. On the basis of the said report, Case Crime No. 236 of 1993, under Sections 147, 148, 149, 307, 504 I.P.C. was registered at the police station Gagaha, Gorakhpur.
4. After commitment of the case to the Court of Sessions, an application on behalf of the accused persons has been moved for discharging them under Section 227 of the Code of Criminal Procedure. The said application was rejected. Feeling aggrieved by it, this revision has been preferred in this Court.
5. I have heard learned Counsel for the revisionist and the learned A.G.A. on behalf of the State.
6. It is contended of behalf of the accused-revisionists that all the injuries of the injured persons go to show that the same was inflicted by only one weapon as the measurements of all the injuries on all the injured persons are the same. It is further contended that no injury could be caused by a gun. It is further contended that the site plan does not support the prosecution case. From a bare perusal of the site plan, it appears that in between the place of occurrence and the place of standing of assailants, there is a house, Therefore, there is no question arise to commit such incident by the assailants, named in the first information report. It is further contended that no prima facie case was made out after the perusal of the charge sheet. However, the learned court below has rejected the discharge application of the accused-revisionists while it is proved that it is highly doubtful and improbable that how the injuries were caused by fire-arms. The doctor has opined before the Investigating Officer that the injuries on all the injured persons may not be caused by the weapons mentioned in the first information report. There is no prima facie case against the accused -revisionists and in the absence of prima facie case, the learned court below has committed illegality in passing the impugned order by rejecting the discharge application of the accused-revisionists. On the other hand, the learned A.G.A. has submitted that the impugned order passed by the court below in in accordance with law and no interference is called for by this Court.
7. After perusal of the first information report, it appears that the dispute was in existence in between the informant and the above accused-revisionists prior to the alleged occurrence. It also reveals that all the above 12 accused persons, armed with deadly weapons, like, guns, country made pistols etc., reached at the place of occurrence where the complainant and his family members were lifting up the thatch. On their exhortation, all the accused persons opened fires with their respective weapons. Therefore, prima facie, all the accused persons were members of unlawful assembly at the time of alleged occurrence and in prosecution of their common object of such assembly, they all, armed with deadly weapons, reached the place of occurrence and opened fires upon the injured persons. Consequently, they sustained fire-arm injuries. It is immaterial that whose shot was caused firearm injury on which injured person. All the accused persons, being the members of unlawful assembly , with their common object opened fires. It may be that some may not be opened fire. However, they are responsible for the alleged act of other accused persons. There is a limited scope of Sections 226 and 227 of the Code of Criminal Procedure regarding the charge or discharge of accused persons. It has been provided as under:
226. Opening case for prosecution : - When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.
227. Discharge : - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that that is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
8. The guidelines have been provided by the Apex Court regarding Section 227, Cr.P.C. in Union of India v. Prafulla Kumar Samal and Anr. reported in 1979 Cri. L.J. 154 (SC)(DB) wherein it was held that the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out : -(1) whether or not a prima facie case against the accused has been made out ;(2) where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained , the Court will be fully justified in framing a charge and proceeding with the trial ; (3) the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. However, if two views equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused, and (4) In exercising his jurisdiction under Section 227, the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
9. It has also be observed in Rajbir Singh v. State of U.P. and Anr. reported in 2006(55) All. Cri. Case page 318(SC) as under:
Criminal Procedure Code, 1973-Sections 227 and 228(1)(b)- Order of discharge- Whether there is sufficient ground for proceeding against accused or for presuming that accused has committed an offence- If answer is yes, an order of discharge cannot be passed.
10. According to Section 227 of the Code of Criminal Procedure by the concerned Court whether there is ground to presume that the accused person has committed alleged offence. In the present case, the allegation of the case reveals that prima facie case is made out against all the accused person as all the injured persons namely, Ram Jatan, Athar Yadav, Smt. Barti Devi, Hare Ram Yadav, Smt. Rampati Devi, Radhey Shyam, Kanhaya Yadav and Sita Ram, sustained total 17 firearm injuries caused by the accused person in prosecution of their common object of unlawful assembly. Therefore, at the stage of framing of charge it was not to be looked by the court whether he or they caused injuries on the injured persons.
11. On the basis of the F.I.R. statement of the prosecution witnesses and the injury reports of the injured persons, there was sufficient ground to presume that all the accused persons committed the alleged offences, including the offence under Section 307, IPC. Under the circumstances, learned court below has not committed any illegally or irregularity in passing the impugned order and the same has been passed according to law. Therefore, the learned court below has rightly and according to rule, has rejected the discharge application moved on behalf of the accused-revisionists.
12. Considering the facts and circumstances of the case, I do not find any force in the arguments advanced on behalf of the revisionists. Therefore, this revision is liable to be dismissed.
13. Consequently, this revision is dismissed
14. However, the trial court is directed to decide the sessions trial, treating it to be old one, expeditiously according to the provisions of Section 309, Cr.P.C., preferably within six months.