Surendranath Panda and Others vs State of Orissa

L. Mohapatra, J.—Criminal Misc. Case No. 407 has been filed u/s 482 Code of Criminal Procedure challenging the order dated 3.6.2002 passed by the learned J.M.F.C., Sohella in G.R. Case No. 161 of 2000 taking cognizance of offence under Sections 147, 148, 427, 341, 307, 336 of the Penal Code, Criminal Misc. Case No. 408 of 2002 has been filed u/s 482, Code of Criminal Procedure challenging the order dated 3.6.2000 passed by the learned J.M.F.C., Sohella in G.R. Case No. 165 of 2000 taking cognizance of offence under Sections 147, 148, 323, 341, 294,,427, 307, and 149 of the Penal Code. Since both the G.R. Cases arise out of the same incident, both the Criminal Misc. Cases are taken together and disposed of hereunder.

In Criminal Misc. Case No. 407 of 2002 one Susanta Kumar Das has lodged FIR before the O.I.C., Bargarh Police Station alleging therein that on 9.4.2000 at about 4.45 P.M. when he and Ors. were travelling in the vehicle bearing registration No. OR17-A-8400 near Sohella square some persons named in the FIR being armed started damaging the vehicle by Sahu by means of Bhujali as a result of which said Dilip Sahu sustained bleeding injury on the head. It is further alleged in the FIR that driver of the vehicle somehow managed to leave the place with the vehicle and came to Bargarh. It is also alleged that while coming away some persons started throwing bricks and stones as a result of which glass windows of the vehicle were broken. Learned Counsel for the Petitioners submitted that so far as the present Petitioners are concerned, offence u/s 307 of the Penal Code is not at all made out and therefore the learned Magistrate without applying his mind to the prosecution case as alleged in the FIR has taken cognizance of offence u/s 307 of the Penal Code. Shri Pujhari, learned Counsel for the Petitioners submitted that injury on Dilip Sahu is of such nature that the offence u/s 307 of the Penal Code can never be made out.

Learned Additional Government Advocate, on the other hand, submitted that though the Petitioners are not alleged to have assaulted the injured Dilip Sahu since they were admittedly members of the unlawful assembly they are equally liable as that of accused Pradip Devata and so far as injury on Sri Dilip Sahu is concerned, the same having been found on the head of the injured Dilip Sahu, it will be too early to say that offence u/s 307 of the Penal Code is not made out.

Law is well settled that at the time of taking cognizance Court is only to satisfy itself with regard to existence of prima facie case. If a prima facie case in respect of commission of any offence is made out, this Court also in exercise of jurisdiction u/s 482, Code of Criminal Procedure should not interfere with the order taking cognizance. So far as the present case is concerned, allegations has been made in the FIR to the effect that several persons including the present Petitioners forming an unlawful assembly started damaging the vehicle in which the informant and Ors. were travelling. Their specific allegation is that one Pradip Devata assaulted one of the occupants of the vehicle namely Dilip Sahu by means of Bhujali on the head resulting in a bleeding injury. Said Dilip Sahu was examined on police requisition and the doctor has found lacerated injury on occipital region. Though he has been found to be simple one, I am unable to accept contention of the learned Counsel for the Petitioners that the injury being simple in nature no offence u/s 307 of the Penal Code is made out. Court is to see the circumstances and the manner in which such injury was inflicted as well as the nature of injury. There being specific allegation that Pradip Devata assaulted the injured Dilip Sahu by means of Bhujali on his head and lacerated wound having been found on the occipital region, I am of the view that a prima facie case u/s 307 of the Penal Code is made out. Since all the accused persons including Pradip Devata formed an unlawful assembly and in course of incident the accused Pradip Devata assaulted injured Dilip Sahu, the Petitioners are also liable for commission of offence u/s 307 of the Penal Code being members of such unlawful assembly.

So far as Criminal Misc. Case No. 408 of 2002 is concerned, it appears that on Gokul Debta lodged an FIR before the O.I.C., Bargarh Police Station stating therein that while he and Ors. were travelling in a trecker bearing registration No. OR17-4737 on 9.9.2000 at about 4.40 P.M. the present Petitioners and some other accused persons tried to assault them and in the process damaged the vehicle. It is further alleged that all the accused persons started assaulting, as a result of which one Pramod Gupta got injury in the eye and the informant got injury on the shoulder and back as well as on left knee. It is also alleged that one Ramjee got injury on the left side of the chest and one Venkata Rao got injury on his head. Sri Pujhari, learned Counsel for the Petitioners submitted that except Venkata Rao no other person has sustained injury on the vital parts of the body and injury found on the head of Venkata Rao being simple in nature, no offence u/s 307 of the Penal Code is made out.

Learned Additional Government Advocate, on the other hand; submitted that there being allegation of assault on Venkata Rao and injury having been found on the head of said Venkata Rao, it cannot be said that offence u/s 307 of the Penal Code is not made out.

On perusal of the FIR it appears that allegations have been made against all the accused persons to have assaulted on one Promod Gupta and the informant as well as one Ramjee. So far as injury on Venkata Rao is concerned, it appears from the injury report that he sustained simple lacerated injury on the occipital region. Since allegation is that all the accused persons assaulted other persons including the informant and said Venkata Rao, I am of the view that prima facie offence u/s 307 of the Penal Code is made out, even though the injury sustained by Venkata Rao may be simple in nature.

Shri Pujhari, learned Counsel for the Petitioners referred to two decisions of this Court in support of his contention. Much reliance was placed by the learned Counsel for the Petitioner in the case of Mathew Omalt and Another Vs. State of Orissa, . In the aforesaid reported case the occurrence arose out of a quarrel and blow was given on the spot. Considering the dimension of the injury and the weapon used this Court held that prima facie offence u/s 307 of the Penal Code is not made out. So far as the present cases are concerned, it will be found that the injury sustained by both the injured in both the cases are on the occipital region and the weapon used is a Bhujali. It is also found that there was no quarrel between both the parties and the accused persons are said to be the assailants while the informant and Ors. were moving in a vehicle. Therefore the circumstance in which the offence has been committed in the present cases are completely different than that of the reported case mentioned above and on facts view taken in the said decision is not applicable to the present cases. Law is well settled that in order to find that offence u/s 307 of the Penal Code has been committed, Court is required to look into the nature of offence and size of the injury as well as motive and conduct of the accused. On consideration of the materials as available in the case diary, I am of the view prima facie offence u/s 307 of the Penal Code is made out. The facts of the other decision relied upon by the learned Counsel for the Petitioner in the case of Sri kumar Bhadra v. State of Orissa, reported in (2002) 22 OCR 395 are completely different than that of the present cases and therefore findings of this Court based on facts of that case cannot be applied to the present facts of the cases. However, at the time of framing of charge the Petitioners can also raise this question and it will be open for the trial Court to look into the same and pass necessary orders. The view expressed above will not stand on the way of the trial Court while considering the case of the Petitioners at the time of framing of charge. Accordingly, the Criminal Misc. Case No. 407 of 2000 is dismissed.

I am, therefore, of the view that the Criminal Misc. Cases have no merit and accordingly they are dismissed.

Criminal Misc. Cases dismissed.