' It is a case that the accused-respondent was granted bail by the Court of Magistrate on grounds of unexplained delay of one and a half hours in lodging F.I.R., non-availability of disinterested witnesses; rule of consistency in having earlier granted bail to the co-accused and the injuries sustained by the complainant to be on non-vital part of the body. The learned Sessions Judge did not cancel the bail of the accused-respondent under observations that the injuries caused to the complainant were on non-vital part of the body which would mean that the case did not fall within the purview of prohibitory clause of section 497, Cr.P.C.
2. Complainant-petitioner was at last to file an application for the cancellation of the bail of the accused-respondent in this Court.
3. Learned counsel for the parties were heard and record was thoroughly scrutinized. Herein the occurrence has taken place at a distance of 14/15 kilometres from the police station at 15-00 hours on 17-2-1992 and the report was lodged at 16-20 hours the same day but still the complainant side was condemned by the Magistrate for the unexplained delay in lodging of F.I.R. Further the occurrence took place in the fields and not in village `Abadi' and the complainant reported only his brother present at the scence of occurrence who was also fired at by the accused which, however, proved ineffective and as such the complainant side cannot be apparently condemned for non- procuring disinterested evidence in the case. Accused-petitioner, his brother and one other were charged for firing, however, only the firing of accused-petitioner was stated to be effective that as a result the complainant sustained injuries and he fell on the ground. In case the other two accused charged for ineffective firing have been released on bail, the rule of consistency would not apply to entitle the accused to bail since he is charged for effective firing.
4. Again the grant of bail on ground that the complainant sustained firearm injuries on non-vital part of his body does not stand to reason. One fails to appreciate as how grievous injuries sustained by the complainant with bone pieces protruding out of the wound and rupture of muscles tendens on posterior aspect of right lower leg would be termed injuries on non-vital part of the body and for that reason the case would not be covered by the prohibitory clause contained in subsection (1) of section 497, Cr. P. C. As observed by the learned Sessions Judge. Now what if the injuries to have caused 'Itlaf-i-Udw' or `Itlaf-i-Salahiyyat-i-Udw' wherefor the punishment is prescribed upto ten years imprisonment as Tazir whether the offence would still be out of the purview of the prohibitory clause.
5. Section 324, P.P.C. Read in juxtaposition to old section 307, P.P.C. Reports that under the first part of old section 307, P.P.C. The punishment was ten years' imprisonment and fine and under the second part the punishment was enhanced to imprisonment for life. In present section 324, P.P.C.
Under the first part the punishment prescribed is ten years' imprisonment in case of ineffective murderous assault and in case of hurt caused the offender has been made liable to the punishment provided for the hurt under the Qisas and Diyat law. There has been also added a proviso to the section that where the punishment for the hurt is `Qisas' which is not executable the offender shall be liable to `Arch' and also imprisonment up to seven years. The legislature must have considered the punishment in `Qisas' and in the alternative in `Arsh' and seven years' imprisonment as greater punishment in case of murderous assault followed by hurt vis-a-vis the ineffective murderous assault. The offence provided in the second part of section 324, P.P.C. Has definitely been acknowledged and classified as a graver offence than the offence provided in the first part of section 324, P.P.C.
6. In the instant case the Courts below also did not appreciate that the accused-respondent was charged along with his co-accused for murderous assault by ineffective firing at Abdur Rahim P.W.
And offence relating to him to fall in Part I of section 324, P.P.C. Was punishable with imprisonment up to ten years and shall thus be covered by the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. Further the complainant sustained firearm grievous injuries on his leg resulting in protruding of pieces of bone from one wound and rupturing the muscles tendons by the second wound. Accused-respondent was also saddled with motive of dispute over land. He also remained in abscondence for 8/9 months after the occurrence. Resultantly this Court would cancel the bail of the accused-respondent who is present in Court and delivered into the police custody for judgment in jail as under-trial prisoner.
Bail cancelled.