Rajeshwar Singh And Ors vs State Of Bihar And Anr

Heard learned counsel for the petitioners and learned APP for the State.

Despite service of notice on the opposite party no. 2, nobody appeared when the matter was taken up and heard.

The petitioners have moved the Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the

‘Code’) for quashing the judgment and order dated 08.12.2017 passed in Sessions Trial No. 353 of 2012/ Reg. No. 720 of 2014, by which the

5th Additional Sessions Judge, Darbhanga has dismissed the application filed by the petitioners under Section 228(1) of the Code for discharging them

under Section 307 of the Indian Penal Code.

The petitioners are accused in Jamalpur PS Case No. 36 of 2008 dated 04.12.2008, filed by the opposite party no. 2 under Sections 341, 323, 324

and 504/34 of the Indian Penal Code on the basis of Sanha lodged on 01.11.2008, which was converted into an FIR on 04.12.2008.

The allegation against the petitioners is of general and omnibus assault by lathi and danda.

Learned counsel for the petitioners submitted that though after investigation, the police has submitted charge sheet under Sections 448, 341, 323,

324, 307 and 504/34 of the Indian Penal Code and the cognizance was also taken under the aforesaid sections, they filed petition under Section 228(1)

of the Code praying that charge be framed against them only under Sections 323, 324 and 504/34 of the Indian Penal Code. The same was rejected

and the Court has proceeded to frame charge under all sections under which cognizance was taken.

Learned counsel submitted that they are aggrieved only with framing of charge under Section 307 of the Indian Penal Code which is totally

unjustified in the facts and circumstances of the present case. It was submitted that the allegation is general and omnibus and the incident even as per

the FIR took place on the spur of the moment between the two sides due to land dispute. It was further submitted that even the allegation is of general

assault by lathi and danda and the injury report discloses simply injuries. It was submitted that for making out offence under Section 307 of the Indian

Penal Code, the foremost requirement of law is that the blow should be given with the intention and with the knowledge that such blow would lead to

death of the person on whom it is inflicted. It was submitted that in the present case, there was no intention as the incident occurred on the spur of the

moment and that too with the intention, at best, only to cause some bodily harm as the blows were given by lathi and danda. Learned counsel

submitted that neither there is specific allegation with regard to assault on any vital part of the body nor the report discloses any such injury.

Learned APP, on the basis of the case diary submitted that though the informant suffered one wound on the right side of the forehead but the

doctor has opined that the same is simple in nature.

Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that the petitioners

undergoing trial under Section 307 of the Indian Penal Code is not justified. As Section 307 of the Indian Penal Code carries stringent punishment, trial

under such section has to be based on there existing at least some justifiable material. Criminal jurisprudence requires that behind any act for which a

person is charged or punished, the first and foremost mandatory requirement is mens rea. In the present case, from the allegation itself and the

conduct of the petitioners, as alleged by the informant, the incident took place on the spur of the moment and the blows were by lathi and danda. This

coupled with the fact that had there being any real intention to kill the informant, three persons were enough to ensure that death was caused of the

person who was attacked.

In the present case, even the doctor in his report has opined that the injuries were simple and there was only one wound on the head, that too,

simple in nature. The Court finds that the basic ingredients of charging a person under Section 307 i.e., of the blow being inflicted with the intention

and knowledge that it could result in death, is not reflected from such conduct.

For reasons aforesaid, the application stands disposed off with interfering in the order of charge which stands modified and restricted to Sections

448, 341, 323, 324, 504/34 of the Indian Penal Code.

Accordingly, the matter be tried by the Court of the Magistrate where it shall be transferred for proceeding with the trial, in accordance with law.

The documents/papers received from the Court below be returned forthwith.