PATMESHWARI Vs. STATE OF U P

JUDGEMENT

(1.) KHEM Karan, J. Heard Shri Rajat Krishan appearing for the revisionist Pat-meshwari and three others and Sri Brijendra Singh, the learned counsel for the State.

(2.) THE revisionist Patmeshwari, Bish-ma Nand, Ajodhya and Jeotish Prakash were convicted by the learned and Judicial Magistrate, Gonda under Sections 342, 427 and 323 of I. P. C. and sentenced to various terms on each count vide judgment and order dated 19-5-1983. Against this conviction and sentence the convicts preferred an appeal (Criminal Appeal No. 80/83), the learned Sessions Judge, Gonda allowed and directed that the case be com mitted to the Court of Session. It is against this judgment and order dated 3-8-1983 of the learned Sessions Judge that the revisionists have come to this Court in this revision.

(3.) IT is a fact that the occurrence is said to have taken place at a time when the revisionists were trying to tethering their cattle on a land allegedly belonging to Smt. Janak Dulari. No lethal weapons were used for causing the injuries. None of the injuries was reported to be grievous or others dangerous. In the fact and cir cumstances, there was no room for taking the view that the act of the accused fell with in the ambit of Section 307 of I. P. C. and therefore, was not a case triable by the Magistrate. I agree with the learned coun sel for the revisionists on the point that re-trial should not have been ordered in this case. The learned Sessions Judge should have disposed of the appeal on merits, instead of taking such a view and instead of directing the learned Magistrate to commit the case to the Court of Sessions. His judgment does not appear to be legally sound and deserves to be set aside. The learned counsel for the parties do agree that in case the judgment and order of the learned Sessions Judge are set aside. Their ap propriate counsel will be to remanded of the appeal for re-hearing and decision afresh on merits. Since the learned Sessions Judge has not entered into the question whether the finding of guilt recorded by the trial Court is correct or incorrect and since he has allowed the appeal on a technical ground, so the ap propriate counsel seems to be ask him to decide the appeal on merits, after affording the opportunities to the partiesor their counsels.