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2010 DIGILAW 85 (JHR)

Manoj Shaw @ Manoj Sah v. State of Jharkhand

2010-01-15

D.K.SINHA

body2010
Order This Cr. Revision is directed against the order impugned dated 9.11.2009 assed by the Additional Sessions Judge, F.T.C.-III, Dhanbad in Sessions Trial No. 508 of 2008 arising out of Jharia P.S. Case No. 260 of 2008 by which the petition filed on behalf of the petitioner under Section 228(1)(a) of the Code of Criminal Procedure for the discharge of petitioner under Section 307 I.P.C. and to transfer the record to the C.J.M. for trial of the petitioner as warrant trial case was dismissed. 2. The prosecution story in short was that there was land dispute between the parties when the accused persons were digging out earth from the lane it was objected by the informant Ram Karan Jaiswal which resulted into exchange of words and altercation. In course of altercation, it was alleged that the petitioner Manoj Shaw @ Manoj Sah caught hold the informant and asked his father Ramayan Shaw to assault the informant and pursuant thereof it was alleged that the father of the petitioner Ramayan Shaw brought a "Katta" (heavy sharp cut weapon) and dealt indiscriminate blows causing injuries on the informant at three places. On the alarm there being raised by the informant, the witnesses arrived at the scene and the accused escaped after throwing "Katta" at the land. The informant was removed to hospital where he was treated. 3. Learned Counsel has assailed the order impugned on the ground that it was not the allegation against the petitioner that he had assaulted or had used any sharp cut weapon against the informant except that he had caught hold the informant. The allegation that he asked his father to assault and kill the informant was super addition except that there held altercation only. It would be evident from the injury report that all the three injuries that were found on the person of the informant were lacerated in nature of small dimension viz.- (i) Lacerated wound over left fore- arm 3" x %" X 1/2". (ii) Lacerated wound over left side of the abdomen 1" x 1." X 1/2". (iii) Lacerated wound over left side of the chest 1" x 1" X 1/2". 4. In the opinion of the doctor all the three injuries were simple in nature caused by blunt cutting substance which could be possible by falling upon the hard surface also. (ii) Lacerated wound over left side of the abdomen 1" x 1." X 1/2". (iii) Lacerated wound over left side of the chest 1" x 1" X 1/2". 4. In the opinion of the doctor all the three injuries were simple in nature caused by blunt cutting substance which could be possible by falling upon the hard surface also. None of the injuries suggests that the same were caused by " Katta" like weapon used in causing sacrifice or chopping of the heads of the animals like goats. The petition filed under Section 228(1)(a) of the Code of Criminal Procedure could not be appreciated by the learned Trial Judge and that has been dismissed calling upon the petitioner to stand charged for the offence under Sections 342/323/307/504/34 I.P.C. 5. On the other hand, learned A.P.P. appearing on behalf of the State opposed the contention advanced on behalf of the petitioner but conceded that the injuries as found by the medical evidence were simple in nature. 6. Having regard to the facts and circumstances of the case, I find that there was no intervening circumstances to prevent if at all there had been intention of the accused persons to commit murder. Injury report indicates no assault or injury on the head of the informant though according to the prosecution case he was caught hold by the petitioner by his waist. According to the informant, the father of the petitioner had inflicted blow on the abdomen but the informant slipped and got himself released from the grip of the petitioner whereas the father of the petitioner escaped after throwing "Katta" on the earth. 7. I find that there was no seizure of said "Katta" if at all it was thrown on the earth as per prosecution story so as to infer the criminal intention of the assailants. The prima facie case does not suggest that the occurrence took place in the manner presented by, the prosecution or that "Katta" was used. However, keeping in view the injury sustained by the informant which was lacerated in nature. The prima facie case does not suggest that the occurrence took place in the manner presented by, the prosecution or that "Katta" was used. However, keeping in view the injury sustained by the informant which was lacerated in nature. I find that in the given facts and circumstances the appropriate Section would be under Section 324 I.P.C. against the accused persons in place of Section 307 I.P.C. as no prima facie dominant intention of the accused to commit murder could be gathered and that the injuries which were found to be simple on the person of the informant were not caused on his vital part. 8. In view of the above observation, this petition is allowed and the impugned order is set aside with the direction for recording a formal order under Section 228(i)(a) of the Code of Criminal Procedure.