SURENDRANATH PANDA AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) CRIMINAL Misc. Case No. 407 has been filed under Section 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 under Section 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.

(2.) 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 under Section 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 under Section 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 under Section 307 of the Penal Code can never be made out.

(3.) 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 Anr. v. State of Orissa reported in : 57 (1984) CLT 305. 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 under Section 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 under Section 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 under Section 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.