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Judgment
Heard learned counsel for the petitioner and the State.
Respondent Nos.2 and 3 were sent to trial. As per the
charge-sheet filed, the offences alleged were 302/323/324/341/34
IPC . Deceased Shiv Singh had made a statement based whereon
FIR was registered in which he stated that accused Kallu
accompanied by accused Munshi accosted him. Kallu inflicted a
single stab wound on his left thigh. The blow was facilitated by
Munshi who had come in front of him to see that he cannot
escape. The deceased died after five days of the alleged incident
and unfortunately died due to septicemia.
From the fact that only one stab wound was inflicted
and that too on a non-vital part of the body, the learned Court of Sessions has discharged the accused for the offence of murder
and has held that as regards other offences, it is the Court of the
Magistrate who has to do the needful.
As regards the view taken by the learned Court of
Sessions that prima-facie offence for murder was not made out, I
concur with the view taken on account of the fact that acting in
concert, two accused stopped the victim and inflicted one stab
wound on a non-vital part of the body. The intention obviously
would not be kill the deceased. But, with reference to the length of
the blade of the weapon of offence, it had to be considered
whether offence punishable under Section 304 Part I or 304 Part II
IPC i.e. culpable homicide not amounting to murder was made
out. The learned Court of Sessions has acted mechanically.
Since the trial Court record is not here, I set aside the
impugned order dated February 26, 2002 insofar it remitted the
charge-sheet to the Court of the learned Magistrate. Affirming the
order insofar it holds that offence punishable under Section 302
IPC is not made out, the learned Court of Sessions would consider
after hearing Counsel for the parties whether charge for an
offence for culpable homicide not amounting to murder is made
out.
The revision petition is disposed of.