Ravi Shankar Kumar Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 727 of 2023

Ravi Shankar Kumar, aged 38 years, S/o Late Jugal Sahu, resident of Deo Nagar, Janta Market, P.O.- Chhota Govindpur, P.S.- Govindpur, Town- Jamshedpur, DistrictEast Singhbhum …... Petitioner

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Versus

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The State of Jharkhand

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Shiv Shankar Sahu @ Siv Shankar Kumar, S/o Rajendra Sahu,

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Uma Devi, W/o Shiv Shankar Kumar

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Nishu Kumari, D/o Shiv Shankar Kumar, All opp. party nos. 2 to 4 are resident of Govindpur, Deo Nagar, P.O.- Chhota Govindpur, P.S.- Govindpur, Dist.- East Singhbhum

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..... Opposite Parties

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For the Petitioners : Mr. Awnish Shankar ,Adv. For the State : Mr. Manoj Kr. Mishra, Addl. PP For the Opp. Party no. 2 : Mr. J.N.Upadhyay ,Adv.

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of CrPC with a prayer for quashing the order dated 25.11.2022 passed by learned Additional Sessions Judge-II, East Singhbhum, Jamshedpur in Cr. Revision no. 190 of 2022 affirming the part of the order dated 02.07.2022 passed by learned JMFC, Jamshedpur arising out of Govindpur P.S. Case no. 99 of 2021 corresponding to G.R. Case no. 1038 of 2022 whereby and where under, learned Magistrate upon submission of the charge sheet by police, intimating upon the investigation of the case, that the offence punishable under Section 447, 341, 323, 504 and 34 was found to be true, has taken cognizance of the said offences. In the impugned order dated 25.11.2022 in Cr. Rev. 190 of 2022, learned Additional Sessions Judge-II, East

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Singhbhum, Jamshedpur has observed that in order to attract the offence under Section 307 of IPC, the act must be such that if not prevented or interrupted, it would be sufficient to cause is death of the victim as in the instant case, the assault caused only a simple injury and so from such injury, the intention of the accused to cause the death of the victim is not made out. Learned Additional Sessions Judge-II, East Singhbhum, Jamshedpur also observed that there is no repeated assault on the vital part of the victim hence, learned Additional Sessions Judge-II, East Singhbhum, Jamshedpur did not find any illegality or impropriety in the order taking cognizance by learned Magistrate, and dismissed the Criminal Revision.

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It is submitted by learned counsel for the petitioner that the petitioner has suffered head injury due to assault made by the opp. parties and the same is on the vital part of the body hence, learned Magistrate has erred by not taking cognizance of the offence punishable under Section 307 of IPC. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of

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the State of M.P. vs. Saleem @ Chamaru and Anr. reported in (2005) 5 SCC 554, para 16 of which of reads as under :

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“16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury. The basic difference between Sections 333 and 325 IPC is that Section 325 gets attracted where grievous hurt is caused whereas Section 333 gets attracted if such hurt is caused to a public servant.”

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It is submitted by learned counsel for the petitioner that the Hon’ble Supreme Court of India in that case, has observed that the circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC, hence, learned Additional Sessions Judge-II, East Singhbhum, Jamshedpur has committed an illegality by inter alia considering that if the intention to assault was to do away with the life of the victim, then the accused would not

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have assaulted in order to cause simple injury, hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed.

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Learned Addl. PP and learned counsel for the opp. parties on the other hand vehemently opposes the prayer of the petitioner and submits that no illegality has been committed by learned Magistrate in taking cognizance of the offences nor is there any illegality in the order passed by learned Additional Sessions Judge-II, East Singhbhum, Jamshedpur, hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

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Having heard the submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that in order to constitute the offence punishable section 307 of IPC, it has to be seen whether the act, irrespective of the result was done with the intention or knowledge and under circumstances, as mentioned therein. The intention or knowledge of the accused must be such as is necessary to constitute murder and without this ingredient being established, there can be no offence punishable under Section 307 of IPC made out and since intention precedes the act, such intention has to be gathered from all circumstances, as has been observed by the Hon’ble Supreme Court of India in the case of Hari Kishan & Another vs. Sukhbir Singh & Others. reported in AIR 1988 SC 2127 . The intention has to be deduced or inferred form other facts, some relevant facts illustratively though not exhaustively are as follows:-

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(i) the nature of weapon used,

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(ii) the place where the injuries were inflicted,

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(iii) the nature of injuries caused, opportunity available to the accused, if the accused having a dangerous weapon inflict minor injury, then the ingredients of Section 307 of IPC cannot be said to have been made out. Thus, what the court has to see

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is whether the act irrespective of the result was done with the intention or knowledge as under circumstances, mentioned in this Section.

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It is needless to mention that no straight jacket formula can be made out to ascertain whether under certain facts of a case, the offence under Section 307 of IPC is made out.

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So far as the judgment in the case of State of M.P. vs. Saleem @ Chamaru and Another (supra) is concerned, therein the Hon’ble Supreme Court of India has only observed that the circumstances, that the injury inflicted by accused was simple or minor, will not be itself will rule out application of Section 307 of IPC and this observation is in consonance with the settled principle of law as already discussed above in this judgment; hence the offence punishable under section 307 of the petitioner can be made out, even if there is no injury sustained by anybody. The plain reading of section 307 of the IPC, which provides different sentences for the offence caused without any injury sustained and when injury caused to the victim, makes it abundantly clear that even without injury to anybody, still the offence punishable under section 307 of the IPC can be made out. Take for example, when a person fires at somebody but misses the target.

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Now coming to the facts of the case, this case is at the stage of taking cognizance only and the trial is yet to begin and there is provision in the Code of Criminal Procedure regarding alternation of charge, if evidence comes in the record during the trial.

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Under such circumstances, as the trial is yet to begin, this Court restrains itself delving into the facts of the case, in detail. But because of the discussions this Court do not find any justifiable reason to interfere with the impugned order dated 25.11.2022 passed by Additional Sessions Judge-II, East Singhbhum, Jamshedpur in in Cr. Revision no. 190 of 2022.

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