Court No. - 89

Case :- CRIMINAL REVISION No. - 4685 of 2022

Revisionist :- Deepesh Sethiya And 7 Others

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Ram Kishor Gupta,Shiv Shankar

Gupta

Counsel for Opposite Party :- G.A.,Arvind Kumar Singh

Hon'ble Syed Aftab Husain Rizvi,J.

Heard learned counsel for the revisionists, learned counsel for

the opposite party no.2 and learned A.G.A. for the State and

perused the record.

This criminal revision is directed against impugned order dated

26.09.2022 passed by learned Additional Sessions Judge, Court

No. 3, Jhansi in Session Trial No.683 of 2021 (State versus

Deepesh Sethiya and others) arising out of Case Crime No.279

of 2021 under Sections 147, 148, 149, 302, 307, 504 I.P.C. and

7 Criminal Law Amendment Act, Police Station Mauranipur,

District Jhansi.

By the impugned order, learned sessions judge has rejected the

discharge application moved by the revisionists-accused.

F.I.R. of this case has been lodged by opposite party no.2 on

14.06.2021 at 04.58 hours. The allegations of the F.I.R. are that

on 13.06.2021 at about 9.00 p.m., Mukesh Agrawal, the uncle

of first informant was sitting on Chabutara in front of his house

and talking to his neighbour Swadesh Birthare alias Manchal.

Deepesh Sethiya came there in Scorpio vehicle. One Subham

Tamrakar came out of the said vehicle and while hurling abuses,

asked to remove the vehicle already parked. Akhilesh

Vishwakarma also started abusing. On hearing noise, first

informant's father Ashok Agrawal came out of his house.

Deepesh Sethiya, Rakesh Kumar, Vinod Kumar, Manish

Kumar, Manoj Sethiya, Kallu alias Sanjeev Sethiya also came

there. Deepesh Sethiya and Rakesh opened fire. Everyone

present there ran to save themselves. Mukesh Agrawal and

Ashok Agrawal received firearm injuries. During course of

treatment, one of the injured, Ashok Agrawal died and Section

302 I.P.C. was added.

It is contended by learned counsel for the revisionists that the

discharge application has been rejected by the Session Court

without application of judicial mind. No offence under Sections

302 and 307 I.P.C. is made out against the revisionists. The

impugned order is bad in the eye of law. It is further contended

that there is an inordinate delay of eight hours in lodging of the

F.I.R. while distance of police station from the place of

occurrence is 2 kilometres. The F.I.R. has been sent to

concerned Magistrate after seven days of its lodging without

any explanation. There is no evidence on record regarding

motive. There is no averment in the F.I.R. that accused persons

started firing with the intention to murder Ashok Agrawal

(deceased). It is clear from the averment of the F.I.R. that the

incident has occurred without prior planning or meeting of

minds and in a spur of moment. There are material

contradictions in the statements of the witnesses recorded under

Section 161 Cr.P.C. with regard to the manner and time of

incident. It is further contended that the injuries on the body of

one of the injured Mukesh is on non-vital part of the body and

simple in nature, hence it does not attract Section 307 I.P.C. As

per the post mortem report of deceased, Ashok Agrawal, the

cause of death is septicemia and its complications following

peritonitis due to multiple jejunal perforations and he has died

during treatment on 16.06.2021. He has received three injuries.

After surgery, complications arose due to lack of proper

treatment. The injured was not properly treated due to lack of

facilities at Medical College, Jhansi which resulted into his

death. Thus Section 302 I.P.C. is not attracted. PW1, Amit

Agrawal has not disclosed the injuries in his statement recorded

under Section 161 Cr.P.C. The prosecution case is falsified by

the medical evidence and absolutely it does not attract Sections

302 and 307 I.P.C. It is further contended that alleged recovery

of weapon