1. Heard learned counsel for the petitioner and the State.
2. Respondent Nos.2 and 3 were sent to trial. As per the charge-sheet filed, the offences alleged were 302/323/324/341/34 IPC . Deceased Shiv Singh had made a statement based whereon FIR was registered in which he stated that accused Kallu accompanied by accused Munshi accosted him. Kallu inflicted a single stab wound on his left thigh. The blow was facilitated by Munshi who had come in front of him to see that he cannot escape. The deceased died after five days of the alleged incident and unfortunately died due to septicemia.
3. From the fact that only one stab wound was inflicted and that too on a non-vital part of the body, the learned Court of Sessions has discharged the accused for the offence of murder and has held that as regards other offences, it is the Court of the Magistrate who has to do the needful.
4. As regards the view taken by the learned Court of Sessions that prima-facie offence for murder was not made out, I concur with the view taken on account of the fact that acting in concert, two accused stopped the victim and inflicted one stab wound on a non-vital part of the body. The intention obviously would not be kill the deceased. But, with reference to the length of the blade of the weapon of offence, it had to be considered whether offence punishable under Section 304 Part I or 304 Part II IPC i.e. culpable homicide not amounting to murder was made out. The learned Court of Sessions has acted mechanically.
5. Since the trial Court record is not here, I set aside the impugned order dated February 26, 2002 insofar it remitted the charge-sheet to the Court of the learned Magistrate. Affirming the order insofar it holds that offence punishable under Section 302 IPC is not made out, the learned Court of Sessions would consider after hearing Counsel for the parties whether charge for an offence for culpable homicide not amounting to murder is made out.
6. The revision petition is disposed of.
