Judgment :-

J.M. Panchal, J.

Leave granted.

2. This appeal is directed against judgment dated May 25, 2007, rendered by the learned single Judge of High Court of Judicature at Allahabad in Criminal Revision No. 5819 of 2006, by which the finding recorded by the learned Additional Sessions Judge, Jaunpur in Sessions Trial Case No. 271 of 2000, decided on September 7, 2006 that the appellants are not guilty under Section 308 IPC but are guilty under Section 324/149 IPC and are entitled to be released on probation of good conduct, is set aside and the case is remanded to the Court of learned Additional Sessions Judge with a direction to pass fresh order of conviction of the appellants in the light of observations made in the judgment and impose sentence on them in accordance with law.

3. The facts emerging from the record of the case are as under:-

The respondent No. 1, i.e., Kant Pandey, resides at village Tikara, District Jaunpur. On May 16, 1999, the appellants formed an unlawful assembly, common object of which was to cause injuries to Varun and Manoj, who are sons of Kant Pandey. At about 11.30 a.m., the appellants, in furtherance of their common object, assaulted Varun and Manoj who were ploughing their field with a tractor and caused injuries to them and when Kant Pandey tried to save his sons, he was also assaulted and his licensed gun was broken.

The First Information Report was lodged by Kant Pandey, on the basis of which investigation was conducted. At the conclusion of investigation, the appellants were charge-sheeted in the court of learned Magistrate for commission of offences punishable under Sections 147, 148, 308, 323, 325, 427, 504, 506 read with Section 149 IPC. As offence punishable under Section 308 IPC is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions, Jaunpur, for trial.

4. Since the appellants did not plead guilty, the prosecution examined seven witnesses to prove its case against the appellants. After evidence of the prosecution witnesses was over, the learned Additional Sessions Judge explained to the appellants the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements under Section 313 of the code of Criminal Procedure, 1973. In their further statements, the case of the appellants was that of total denial. They also examined three witnesses in support of their defence.

5. On appreciation of evidence adduced by the parties, the learned Additional Sessions Judge held that no case for commission of offence punishable under Section 308 IPC was made out against the appellants, but it was proved by the prosecution that the appellants had committed offences punishable under Sections 148, 324 read with Section 149 IPC and Section 429 read with Section 149 IPC. Having regard to the age, character, antecedents of the appellants and to the circumstances in which the offences were committed, the learned Judge was of the opinion that it was expedient that the appellants should be released on probation of good conduct. Therefore, instead of sentencing them at once to any punishment, the learned Judge by judgment dated September 7, 2006 directed release of the appellants on each of them entering into a bond for a sum of Rs. 10,000/-with two sureties for the like amount to appear and receive sentence when called upon during the period of two years and in the meantime to keep the peace and be of good behaviour.

6. It is relevant to notice that neither the acquittal of the appellants under Section 308 IPC nor their release on probation after finding them guilty under Section 324 read with Section 149 IPC was challenged by the State of UP before the higher forum. However, acquittal of the appellants under Section 308 IPC and their release on probation after their conviction under Section 324 read with Section 149 IPC was made subject-matter of challenge before the High Court by the original informant by filing Crimina