- (1.) REJOINDER affidavit filed by the revisionist is taken on record. Heard Sri A.N. Mishra, learned counsel for the revisionist and Sri N.S. Gupta, learned counsel for the opposite party no.2 and learned A.G.A. for the State. This criminal revision has been preferred against the judgment and order dated 3.12.2008 passed by the Sessions Judge, Lalitpur framing charges against the revisionist under Sections 308, 504, 506 I.P.C.
(2.) IT has been contended by the learned counsel for the revisionist that from a perusal of the medical examination report as well as other materials collected during investigation, no offence under Section 308 I.P.C. is made out against the revisionist and the trial court has committed gross illegality in framing charges against the revisionist for the said offence. He further submitted that the ingredients of offence under Section 308 I.P.C. is not fulfilled, hence the trial of the revisionist for the aforesaid offence is wholly unwarranted. In support of his contention, learned counsel for the revisionist has placed reliance on a judgment of the Apex Court in the case of Bishan Singh & another v. State reported in 2008 (1) JIC 973 (SC) as well as a judgment of this Court in the case of Banwari Lal & others v. State of U.P. reported in 2012 (2) JIC 218 (All.). On the strength of aforesaid two cases, learned counsel for the revisionist has submitted that the impugned order framing charges against the revisionist should be quashed. On the other hand, learned counsel for the complainant has submitted that the order framing charges against the revisionist by the trial does not suffer from any illegality and at the stage of framing of charges the trial court has only to see whether a prima facie offence is disclosed against the accused person charged of an offence and not to appreciate the evidence minutely, hence the trial court is right in framing charges against the revisionist. Having considered the submissions advanced by learned counsel for the parties, I am of the opinion that from a perusal of the record it transpires that the trial court after going through the evidence and material on record and specially the medical report prima facie found that a cognizable offence under Section 308 I.P.C. is made out against the revisionist along with other offence and the injuries found on the skull for which x-ray was also performed. Though from a perusal of the x-ray report, the doctor found that there was no internal damage caused to the skull or left arm. The question whether the offence under Section 308 I.P.C. is made out or not, it is for the trial court to adjudicate during the course of trial on basis of the evidence adduced by the prosecution and if there is no evidence before the trial court, it is always open for the trial court to alter the charge and pass orders on the basis of material found during the course of trial in view of the provisions contained under Section 216 Cr.P.C. At the stage of framing of charge, the trial court has only to see whether there was sufficient material available against the revisionist for framing of charge under Section 308 I.P.C. or not for which the charges have also been framed against the revisionist and it is always open for the revisionist to cross examine the prosecution witnesses in order to show that there was no evidence against him for being tried for an offence under Section 308 I.P.C. on the basis of which the trial court can pass suitable orders accordingly.
(3.) THE case laws cited by the learned counsel for the revisionist clearly show that in both the cases, offence under Section 308 I.P.C. was made out or not was adjudicated after the trial had concluded and when the court, on the basis of material available before it, found that the offence under Section 308 I.P.C. could not be made out against the accused persons, altered the charge and convicted the accused accordingly. Hence the revisionist cannot be given benefit of said judgments at the time of framing of charges. Thus, the order framing charge at this stage cannot be said to be illegal and no interference is called for by this Court in the present revision. The revision lacks merit and is accordingly dismissed. Interim order, if any, granted earlier stands vacated.;