1 IN THE HIGH COURT OF BOMBAY BENCH AT PANAJI, GOA. CRIMINAL REVISION NO.81 OF 2008. PETITIONER: Tony Milagres Luis, s/o Milagres Luis, 40 years, Occu: Business, r/o H.No.156, Condy, Quepem, Goa. ..VERSUS.. RESPONDENT: STATE, through P.P. CRIMINAL REVISION NO.84 OF 2008. PETITIONER: David Pobri Fernandes s/o Pobri Fernandes, aged 29 years, Occu: Business, r/o H.No.129 Amona, ` Quepem, Goa. ..VERSUS.. RESPONDENT: STATE, (P.I.Quepem Police Station.) =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.Arun Bras De Sa, Advocate for the petitioners. Mr.C.A.Ferreira, Public Prosecutor for the respondent/State. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : C.L.PANGARKAR,J. DATE : 20/01/2009. 2 ORAL JUDGMENT : 1. Both these revisions can be decided by a common order, since they arise out of the order passed by the Additional Sessions Judge whereby he refused to discharge the accused of the offence under section 307 of the Indian Penal Code. 2. The facts giving rise to these revisions are as follows- On 6/7/2007, the complainant Prachin was driving his own Car. He was proceeding from Madgaon to his own house. When he reached near Kushawati bridge, it is alleged that the accused who was also travelling in the car over took the car of the complainant and came across his car. The complainant, therefore, stopped his car. Both the accused i.e. the present petitioner/accused came out of the car and started assaulting the complainant with slaps and fists blows. The complainant fell down. After he fell down, he was given kick blows and fists blows. He fell unconscious. He was 3 removed to the hospital where his statement was recorded. The complainant was examined by the Medical Officer and offence under Section 307 of the Indian Penal Code came to be registered against both accused/ petitioners. 3. A charge sheet came to be filed against them. While learned Sessions Judge was framing the charge, the accused contended that the case does not fall under Section 307 of the Indian Penal Code and they should be discharged of offence under Section 307 of the Indian Penal Code. The learned Sessions Judge refused to discharge the accused under Section 307 and being aggrieved by that order, these revisions are preferred. 4. I have heard the learned counsel for the petitioners/accused and learned A.P.P. for the State. 5. Learned counsel for the petitioners/accused contends before me that even if the prosecution story is 4 accepted as true, that does not make out the case under Section 307 of the Indian Penal Code at all. He submits that the injured person was merely allegedly assaulted with fists blows and no weapon whatsoever was used in the commission of crime. The F.I.R., copy of which is placed before me, discloses that the complainant was given slaps on face by the accused. The complainant fell down and after felling down also, he was given fists and kick blows. These allegations even if taken as true and correct, certainly do not make out the case that the accused intended to cause such injury which was likely to cause death and that they have had any such intention. What is necessary to be seen prima facie is whether the act was such which was capable of causing death. There should also be prima facie proof of intention or knowledge. If mere slaps and kick blows was given, prima facie it could not be said that the accused had an intention at all. The learned Sessions Judge has no doubt dealt with this aspect but says that the fact that the blood was oozing out of the ear was sufficient and it was not proper to conclude at 5 that stage that it would not have caused death in ordinary course of nature. The injury certificate is placed before me. Simply because blood was coming out of ear does not suggest that the accused intended to cause death or suggest any seriousness of the injury at all. The injury certificate does not disclose that it was in any way serious. The learned Sessions Judge was not justified in framing the charge under Section 307 of I.P.Code since prima no intention or knowledge could be attributed to the accused. The order framing charge under Section 307 of I.P.Code is, therefore, liable to be set aside. Accordingly the order is set aside. The matters stand remitted to the learned Sessions Judge, who shall now frame an appropriate charge (other than under Section 307 of I.P.C and pass an appropriate order as envisaged by Section 228(a) of Cr.P.C. Revisions are allowed. Rule is made absolute. JUDGE. chute