Hon'ble Shri Kant Tripathi - (1.) HEARD Mr. Syed Ali Murtaza, Mr. Pradeep Kumar Rai, Kamal Krishna for the revisionists and Mr. Uma Natha Pandey, learned counsel for the complainant and the learned AGA for the State and perused the record. The aforesaid four revisions have been preferred against the orders rendered in three different session trials arsing out of the same Case Crime No. 437 of 2008, P.S. Kasna, District Gautam Buddh Nagar, therefore, they are being disposed of by this common order.
(2.) IN all the aforesaid revisions, the sole question has arisen for decision is whether the facts and circumstances of the case prima facie make out the charge under section 307 IPC also against the accused persons. The FIR of the instant case was lodged by the complainant Rakesh Verma regarding the incident that took place on 26.7.2008 at about 7.50 a.m. implicating as many as eleven persons as accused. IN ST. No. 861 of 2009 the concerned Additional Sessions Judge framed the charges under sections 147, 148, 149, 323, 325, 307, 452 and 506 IPC and 7 of the Criminal Laws Amendment Act on 13.1.2010 against the accused Yogesh Sharma and Kalu Ram. These two accused preferred Criminal Revision No. 357 of 2010 before this Court, which was allowed and the charges were quashed and the matter was remitted to the learned lower Court for reconsideration. After the reconsideration, the learned Additional Sessions Judge passed the order dated 27.4.2010 and held that no offence under section 307 IPC was made out. The complainant moved the application 37 Kha for recalling the order dated 27.4.2010 but the learned Additional Sessions Judge rejected the recall application vide the order dated 6.8.2010 and accordingly framed the charges against the said two acused on 9.8.2010 and remitted the matter under section 228 of the Code of Criminal Procedure (in short "the Code") to the Court of the Magistrate for trial. IN Criminal Revision No. 4514 of 2010, the orders dated 27.4.2010, and 6.8.2010 and the charges dated 9.8.2010 have been impugned. In ST. No. 88 of 2011 (State v. Mahesh Chandra) the learned Additional Sessions Judge passed the order dated 5.3.2011 rejecting the prayer of the accused for remitting the matter to the Magistrate under section 228 of the Code and decided to frame the charges under sections 147, 323, 452, 325, 307, 504 and 506 IPC and 7 of the Criminal Laws Amendment Act against the accused Mahesh Chandra, Jai Prakash and Manjeet. Criminal Revision No. 1551 of 2011 has been filed against the aforesaid order dated 5.3.2011. In S.T. No. 184 of 2010 (State v Kedar Nath & others) the Additional Sessions Judge passed the order dated 6.9.2010 holding that the charge under section 307 IPC besides the charges under sections 147, 323, 452, 325, 504 and 506 IPC and 7 of the Criminal Laws Amendment Act was made out against the accused persons namely, Kedar, Devendra, Lalit, Rahul, Subey, Mahesh Dutt, Devashish, Gopal Dutt, Kailash Chandra, Bhupendra and accordingly framed the charges against them on 19.10.2010. The order dated 6.9.2010 have been impugned in Criminal Revision No. 4131 of 2010 and the charges dated 19.10.2010 have been impugned in Criminal Revision No. 4762 of 2010.
(3.) IT may not be out of context to mention that the aforesaid sessions trial Nos. 861 of 2009, 184 of 2010 and 88 of 2011 have arisen out of the same incident vide the crime No. 437 of 2008, P.S. Kasna, District Gautam Budh Nagar. But unfortunately, contradictory orders have been passed in the matter. In ST. No. 861 of 2009, the learned Additional Sessions Judge arrived at the conclusion that no offence under section 307 IPC was made out and he accordingly framed the charges against the accused Yogesh Sharma and Kalu Ram in other sections and remitted the matter under section 228 of the Code to the Magistrate for trial but the subsequent Additional Sessions Judges ignored the order dated 27.4.2010 rendered in Session Trial No. 861 of 2009 and passed the order dated 6.9.2010 in ST. No. 184 of 2010 and order dated 5.3.2011 in ST. No. 88 of 2011 holding that the offence under section 307 IPC was also made out. The learned Additional Sessions Judges, who passed the orders dated 5.3.2011 and 6.9.2010 instead of maintaining consistency in the judicial orders passed the orders resulting in absurdity. The effect of the aforesaid orders is that some of the accused are to be tried by the Court of Magistrate and some of them are to be tried by the Court of sessions, though all of them are accused in respect of one incident and the allegations against them are almost common, therefore, it seems to be just and expedient to quash all the impugned orders and remit the matter to the Court of sessions for reconsideration at the stage of charge so that a similar order may be passed in respect of all the accused. Section 307 IPC deals with the offence of attempt to commit murder. To constitute an offence under section 307 IPC it is to be shown that the accused did the act with such intention or knowledge, and in such circumstances that if he by that act had caused death, he would have been guilty of murder. Therefore, there should be relevant material on record to show that the accused had an intention of, or knowledge relating to, commission of murder and he did the entire act towards it In other words for the purpose of section 307 IPC what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section 307 IPC clearly contemplates an act, which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstance. In this view of the matter, the Court of sessions has to keep these principles in mind while considering the question whether or not the offence under section 307 IPC is made out from the facts on record.;