SRIKUMAR BHADRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under Section 492 Cr.P.C. has been filed challenging the order dated 15-1-1996 passed by learned J.M.F.C., Sohella taking cognizance of offences alleged to have been committed U/Ss. 294/341/224/392/307/34 of the Penal Code. The informant Arakhita Mohapatra a constable lodged the F.I.R. alleging therein that on 8-10-1995 at about 4.30 P.M. he had taken the petitioner for production in the court of the learned J.M.F.C., Sohella in connection with a case and the prayer for bail of the said petitioner was rejected. After rejection of the bail he was required to take the petitioner to Bargarh Jail. At that time he found a private Jeep going towards Bargarh and on hire he boarded the Jeep along with the petitioner. There were three other occupants in the Jeep including an Advocate. Near Haladipalli Petrol Pump the said Jeep had a break down and the same was taken to a garage for repair. At about 9 TQT clock in the night when the vehicle was repaired he asked the petitioner to board the Jeep but the Petitioner abused him in filthy language. Thereafter, they travelled in the Jeep but on the way the driver of the Jeep expressed his inability to drive the vehicle further and stopped near a Dhaba and slept there. Having no other way the informant remained in guard. At about 10.00 P.M. the petitioner and another abused the informant and the Grama Rjakhi accompanying them and also started assaulting. When the petitioner was trying to run away the informant chased him. At that point of time, it is alleged that the petitioner pressed the neck of the informant but left him immediately and fled with the Jeep.

(2.) Shri Dhal, learned counsel appearing for the petitioner submits that even accepting the prosecution allegations made in the, F.I.R. to be correct no offence under Section 307 of the Penal Code is made out. Reliance is placed on a decision of this Court reported in (Raghunath Sahu v. Sankara Behera). In the aforesaid decision a complaint was filed alleging therein that in a village meeting the accused pressed the neck of the complainant and abused him in filthy language. Due to such pressing of neck the complainant suffered death like pain but the accused suddenly left him. On these facts, this Court held that the essence of an, offence of attempt to murder consists of the fact that the act committed, if went unrestricted, would have resulted in the offence being committed but could not be achieved because of certain other supervening actions or circumstances not within the control of the assailant. What is important to find out is the intention of the assailant and the accompanying actions in execution of the intention. Considering the conduct of the accused in leaving the complainant this Court was of the view that offence under Section 307 was not made out.

(3.) It is worthwhile to refer to Kennys Outlines of Criminal Law on the question of attempt while discussing the following has been observed: It is true that the criminality of the attempt lies in the intention, the mens rea, but this mens rea must be evidenced by what the accused has actually done towards, the attainment of his ultimate objective. Thus the actus reus of attempt is reached in such act of performance as first gives clear prima facie evidence of the mens rea. It must be noted that a man may well desire to produce more than one result by his adopted course of action; but provided he has done enough to make manifest his purpose to achieve the particular result which the prosecution has chosen as the basis of the charge brought against him, this is enough; and so long as his course of action does clearly indicate this one it is immaterial that his conduct points to another him also.' In the present facts of the case it is very clear that though the petitioner initially pressed the neck of the informant but mentioning after the informant fell down he fled away in the Jeep. In my view there was no intention to commit murder of the informant.