- (1.) J. C. Mishra, J. This revision has been filed by the complainant for setting aside the order dated 9-8-84 passed by III Additional Sessions Judge, Varanasi per mitting the withdrawal of the prosecution and discharging the accused under Section 302/34,i. P. C.-
(2.) THE complainant has filed copy of the application moved by the Assistant Public Prosecutor for withdrawal of the prosecution which indicates that the State Government had permitted withdrawal of the prosecution. It has been alleged in the application that Jhalai had stated that Radhey Shyam was cleaning country-made pistol but accidentally it got fired. He had also stated that Kamal Kumar was also cleaning the country-made pistol and fur ther at the time when Radhey Shyam died Sukhu and his son Lallan were warming themselves at the house of witness Jhalai and Vijai had gone for easing. The application also refers to the statement of Shanker Harijan and Rajju who had also stated that Radhey Shyam was accidentally hi t by the fire. The second ground referred to in the application was the doubt expressed by the CBCID regarding correctness of the investigation made by the local police. In this regard reference has been made to the opinion of Dr. Krishna Kumar Sengar who in his report dated 24th November, 1983 stated that the deceased could not sustain injury in the circumstances stated in the First Information Report.
(3.) THE learned Additional Sessions Judge has not based his order on the first ground viz. some witnesses stated that Radhey Shyam was accidentally hit by the fire. In the impugned order the learned Additional Sessions Judge observed that C. I. D. Inspector examined a number of witnesses out of whom Jhalai Shanker, Rajju, Bhola, Rishimuni, Mangru, Sumeru and Lallu have not supported the prosecution case. He however, clarified that Ram Nihore, the complainant, and his other family members have supported the prosecution case. Thus the learned Addi tional Sessions Judge has not accepted the opinion of the A. P. O. that the withdrawal should be permitted on the ground that of the witnesses have stated that Radhey Shyarn was accidentally hit by the fire. The learned Additional Sessions Judge has also not accepted the contention that C. I. D. Inspector has expressed any doubt on the investigation made by the local police. He observed that the Inspec tor has not expressed any opinion and had left the matter to be decided by the court.;