IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.34809 of 2010
ARBIND KUMAR & ORS
Versus
STATE OF BIHAR & ANR
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2. 3.11.2010 Heard Shri Madhaurendra Kumar, learned counsel
for the petitioners and Shri Dashrath Mehta, learned A.P.P. for
the State.
The petitioners who are facing trial in Sessions
Trial No. 981 of 2007 before the Additional Sessions Judge-3,
Motihari, have challenged the order dated 26.7.2010 by which
the learned Judge directed the framing of charges, inter alia,
under Section 307 of the Indian Penal Code. The foundational
fact of framing of charge under Section 307 I.P.C. was that
petitioner no. 3 Munna Kumar alias Munna attempt a blow on
the informant which attempt he warded off and in that course a
cut injury on his little finger was caused and the Doctor found
the simple injury caused by hard and blunt substance. These
facts are noted in the impugned order.
It is well known that the intention to kill could be
gathered from many facts of the case and attending
circumstances appearing therefrom. So as to discerning the
intention of an accused for attempting to kill a person, the nature
of the weapon which was used in giving the blow, the part of the
body which was struck and the resultant injury appearing from
such blows are some of the factual data. Besides, some
utterances which could be made by the accused persons at the
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relevant time are also relevant factors. Besides, the
circumstances attending upon the commission of the offence
may also aid a court in forming its opinion on the constitution of
an offence under Section 307 of the I.P.C. The attending
circumstances may be many, like, to choose the hour of the day
and a place for assaulting the victim so that the victim could not
seek the help of others so as to be saved. Some of the
circumstances preceding the occurrence may also be the factors
to be considered in coming to a conclusion as regards the
constitution of the offence under section 307 I.P.C. These all are
illustrative and not exhaustive.
After having perused the F.I.R. and the impugned
order what appears is that the chief ingredient of the offence
under Section 307 I.P.C. of intending to kill a person appears not
established. Of course, the weapon, like Chhura was dangerous
but the blow was falling admittedly on the little finger of the
hand of the injured. But again, that allegation of giving the blow
with Chhura appears displaced by the opinion of the Doctor who
found the injury caused by hard and blunt substance. In addition
to the above, one of the accused Arbind Kumar was also armed
with a country made gun. If the accused persons were intending
to kill the informant or any one who could be present at the
scene of occurrence, they could have very well used the
Nlkatua(country made gun) for accomplishing their goals.
These were the glaring facts which the learned Additional
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Sessions Judge missed while passing the order on 26.7.2010 in
Sessions Trial No. 981 of 2007. In the opinion of this Court, the
facts did not appear constituting an offence under Section 307
I.P.C. It might be the case under other Sections of the I.P.C.
under which charges were directed to be framed besides those
under the Arms Act. The learned Judge should act under Section
228 Cr. P.C. to pass an appropriate order to transmit the case to a
court of competent jurisdiction.
The impugned order, above said, is modified and
corrected.
The petition is dismissed in the above terms.
Kanth ( Dharnidhar Jha, J.)