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Kamlesh Kumar Alias Vakil Dubey ... vs State Of U.P. And Anr.

High Court Of Judicature at Allahabad|31 March, 2004

JUDGMENT / ORDER

ORDER K.N. Ojha, J.
1. Instant revision has been preferred against orders dated 8-2:2001 and 12-4-2001 passed by 1st Addl. District Judge, Bhadohi in Sessions Trial No. 16 of 1994, State v. Kamlesh Kumar and one another pending under Section 308, I.P.C. Police Station Unja, District Bhadohi, Sant Ravidas Nagar.
2. Heard Sri P.K. Singh, learned counsel for the revisionists and the learned A.G.A. and have gone through the record.
3. It has been submitted by the learned counsel for the revisionists that NCR No. 16 of 1992 under Sections 323 and 504, I.P.C. only was lodged on 19-3-1992 at about 1.30 p.m. at out post Unja Police Station, Koirana, District Varanasi (at present Sant Ravidas Nagar) against revisionists Vakil and Achhey Lal, but the learned Addl. Sessions Judge has wrongly framed charge under Section 308, I.P.C.
4. According to prosecution, revisionists caused injuries with lathis to four persons including Shiv Kant and fracture was caused in parietal bone of Shiv Kant. The Doctor opined that injury was grievous in nature. Considering the number of injured persons, nature of injuries and fracture in the head bone, charge was framed under Section 308, I.P.C.
5. Section 228 of Code of Criminal Procedure contemplates that "if, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court, he shall frame in writing a charge against the accused". At the stage of charge, evidence sufficient to prove the charge is not necessary. If there is evidence to presume that offence would have been committed, charges can be framed under such sections. Hence, there is no illegality if charge has been framed under Section 308, I.P.C.
6. Learned counsel for the revisionists has also submitted that first evidence was closed and a date under Section 313, Cr. P. C. was fixed, but when application was moved, the application was allowed and the witnesses were summoned.
Section 231 of Code of Criminal Procedure contemplates that (1) on the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination."
7. Since the prosecution witnesses had not appeared on 8-2-2001, order for closing prosecution evidence was passed by learned 1st Addl. Sessions Judge, Bhadohi, but when application was moved by D.G.C. (Criminal), it was allowed. The witnesses Pannalal and Shiv Kant appeared on 8-3-2001 and 12-4-2001, but their statement could not be recorded because on both the dates, application was moved by the accused revisionists to adjourn the case. It is always open to Sessions Court to adjourn the evidence in case sufficient ground is found. If in the opinion of the trial Court it was found that there was sufficient ground due to which witnesses could not be examined earlier and prosecution was seeking opportunity to examine the witnesses and application was allowed, no jurisdictional error or illegality has been committed. As far as possible, the case should be decided on merit after recording the evidence of the parties rather than closing evidence and acquitting the accused for want of evidence.
8. Thus, no jurisdictional error, illegality or material irregularity has been committed by learned 1st Additional Sessions Judge, Bhadohi by passing impugned orders dated 8-2-2001 and 12-4-2001.
9. The revision is dismissed.
10. Let a copy of the judgment be sent to the trial Court with the direction that the Sessions trial be decided expeditiously.
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Title

Kamlesh Kumar Alias Vakil Dubey ... vs State Of U.P. And Anr.

Court

High Court Of Judicature at Allahabad

JudgmentDate
31 March, 2004
Judges
  • K Ojha