ASHARFI Vs. STATE OF U P

JUDGEMENT

(1.) Asharfi, Ashok, Lakhan and Hari Krishan have filed this revision against judgment and order dated 29th June, 1990 passed by VIII Additional Sessions Judge, Kanpur Dehat, dismissing their appeal and confirming their conviction and sentence of six years each under Sections 307 and 307/149 I. P. C. and conviction and sentence of one year under Section 148 I. P. C. The prosecution story was that on 15th May, 1979 at about 8. 00 p. m. revisionist and one other person were hiding behind grain heap. At soon as the victim came near the heap revisionists came out and shouted for kill. Then revisionists Asharfi and Lakhan fired pistols. One of the shorts hit the victim while the other went whizzing near the ear. The two lower courts upheld the prosecution story and convicted and sentenced the re visionists as stated earlier. 2. So far as the prosecution story is concerned i: is not possible to re-appraise the evidence at this stage. But it is evident from the judgments of the lower courts that the Doctor found four injuries on the person of the victim. But there is no evidence that the injuries comulatively or individually were sufficient to cause death in ordinary course of nature. There is also no evidence that these injuries were dangerous to life and could thus bf-; grievous injuries under Clause VIII-ly of Section 320. Merely shouting for kill cannot be enough for drawing the inference that the assailants had intention to cause death. It is always more desirable to draw inference from the injuries caused. I hold that the lower corut judgments only show simple injuries caused by firm arm. Thus the prosecu tion story believed by the two lower courts can make out a case of Section 148 I. P. C. against revisionists Asharfi and Lakhan, a case of Section 324 read with 14/89 I. P. C. against nil the revisionists and a case of Section 147 I. P. C. against revisionists Ashok and Hari Krishan. 3. Thus the perusal of lower court judgments itself requires that conviction of the revisionists should be properly altered. Incident in guestion took place more than 11 years ago. Revisionists faced protracted trial in two courts below. Now keeping them in jail shall not serve any useful purpose, deterrent or reformatory. Hence, after hearing the learned counsel 'or the revisionists and the learned A. G. A. and after perusing tie lower court judgments admitting the revision. I allow this revision in part. Conviction of revisionists Asharfi iand Lakhan under Section 148 I. P. C, is confirmed. Conviction of revisionists Ashok and Hari Krishan under Section 148 I. P. C, is altered into Section 147 I. P. C, conviction of all the revisionists Ashok and Hari Krishan under Section 148 I. P. C. is altered into Section 147 I. P. C. Conviction of all the revisionists with offence under Section 307 or 307/149 I. P. C. is altered into Section 324/149 I. P. C. 4. Revisionists are granted first offenders benefit under Section 4 of the U. P. First Offender's Probation Act. They shall be released on probation on oath of them furnishing his personal bond and two sureties to the satisfaction of C. J. M. Kanpur Dehat for his good behaviours and maintaining peace for one year. In default of furnishing bonds or in default of any term of their bonds they shall be liable to appear before the Sessions Judge, Kaopur Dehat and receive sentences. Since they are all grown up they shall not be under the supervisions of the probation officer. 5. A copy of the order be issued to the learned counsel for the revisionists on payment of usual charges within 48 hours. .