Allahabad High Court
Boby And Others vs State Of U.P. And Another on 8 January, 2020
Author: Ali Zamin
Bench: Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 86 Case :- CRIMINAL REVISION No. - 2848 of 2010 Revisionist :- Boby And Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- S.M.A. Abdy Counsel for Opposite Party :- Govt. Advocate Hon'ble Ali Zamin,J.
Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record.
This revision has been preferred against the summoning order dated 03.05.2010 by which learned Special Judge (Dacoity affected area, Jhansi) has summoned the revisionists, under Sections 392, 323, 504, 506, 147 and 148 I.P.C., Police Station Sipri Bazar, District Jhansi on the complaint filed by opposite party no.2.
As per order dated 15.07.2019, revisionist no.2 Mubin has died. Therefore, the complaint case against Mubin is dismissed as abated.
As per office report, notice upon the opposite party no.2 Smt. Nafisa Begum was served on 20.08.2010 but no one appears on behalf of opposite party no.2.
Learned counsel for the revisionists submits that according to complaint case on 10.03.2009 at about 7:30 p.m. the revisionists beat complainant and her husband Iqbal with fists and legs as well as by a sharp weapon and revisionist no.2 Mausim Khan snatched her golden chain. Her husband had received several injuries, he was admitted in hospital on 11.03.2009 and remained admitted till 17.03.2009. His contention is that according to complainant sharp weapon was also used in order to cause injury to her husband but as per medical report annexed with revision at page-33, a lacerated wound of 2.5 c.m. x 0.5 c.m. bone deep over left side at the back of skull, 6 c.m. behind left ear has been found. The injury was kept under observation. He further contends that as per complaint incident had occurred on 10.03.2009 at 7:30 p.m. Iqbal husband of the complainant was examined on 11.03.2009 at 9:00 p.m. who was brought by Home-guard No.385 Munna Lal and according to the Doctor the duration of the injury was found fresh while he was examined after more than 24 hours. In that case duration of the injury cannot be fresh which indicates that without proper appreciation of the matter the learned Special Judge has summoned the revisionists for the offence as alleged by the complainant, therefore, he prays that the summoning order is liable to be set aside.
Learned A.G.A. opposed the submissions of learned counsel for the revisionists and submitted that there was a dispute with regard to a tempo regarding which the incident was caused and complaint was filed. Learned Special Judge, Jhansi considering the complaint version and evidences adduced in support of the complaint, revisionists have been summoned.
As per complaint version a sharp edge weapon was used in the incident but as per medical report of Sri Iqbal Khan, no any sharp injury has been found by the Medical Officer. So, the complaint version is not supported with the medical report. Further as per complaint case incident had occurred on 10.03.2009 at 7:30 p.m. and Iqbal Khan was examined on 11.03.2009 at 9:00 p.m. while examining, Sri Iqbal Khan the Doctor found duration of injury as fresh. According to medical jurisprudence within 6 hours of the injury caused, duration can be fresh, therefore, the duration of the injury disclosed in medical report also does not support the complaint version.
The learned Special Judge, Jhansi while passing the impugned order has observed that the witnesses have supported the incident with their oral testimony and summoned the revisionists for the offence under Sections 392, 323, 504, 506, 147 and 148 I.P.C. From the material available on record, it appears that the learned Special Judge without properly appreciating the contents of medical report as well as complaint version has summoned the revisionists which does not appear in accordance with law. Accordingly, impugned order is not sustainable in the eye of law.
In view of the above, the impugned summoning order dated 03.05.2010 passed by learned Special Judge, Jhansi, under Sections 392, 323, 504, 506, 147 and 148 I.P.C. against the revisionists is set aside.
The revision is allowed.
The Special Judge (Dacoity affected area, Jhansi) is directed to pass a fresh order on the point of summoning in accordance with law by providing opportunity of hearing to the complainant, considering the observation made in the body of the revision without granting unnecessary adjournments to either of the parties as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order, if there is no legal impediment.
Copy of order be sent to court concerned for compliance.
Order Date :- 8.1.2020/Jitendra