IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34809 of 2010 ARBIND KUMAR & ORS Versus STATE OF BIHAR & ANR ----------- 2. 3.11.2010 Heard Shri Madhaurendra Kumar, learned counsel for the petitioners and Shri Dashrath Mehta, learned A.P.P. for the State. The petitioners who are facing trial in Sessions Trial No. 981 of 2007 before the Additional Sessions Judge-3, Motihari, have challenged the order dated 26.7.2010 by which the learned Judge directed the framing of charges, inter alia, under Section 307 of the Indian Penal Code. The foundational fact of framing of charge under Section 307 I.P.C. was that petitioner no. 3 Munna Kumar alias Munna attempt a blow on the informant which attempt he warded off and in that course a cut injury on his little finger was caused and the Doctor found the simple injury caused by hard and blunt substance. These facts are noted in the impugned order. It is well known that the intention to kill could be gathered from many facts of the case and attending circumstances appearing therefrom. So as to discerning the intention of an accused for attempting to kill a person, the nature of the weapon which was used in giving the blow, the part of the body which was struck and the resultant injury appearing from such blows are some of the factual data. Besides, some utterances which could be made by the accused persons at the 2 relevant time are also relevant factors. Besides, the circumstances attending upon the commission of the offence may also aid a court in forming its opinion on the constitution of an offence under Section 307 of the I.P.C. The attending circumstances may be many, like, to choose the hour of the day and a place for assaulting the victim so that the victim could not seek the help of others so as to be saved. Some of the circumstances preceding the occurrence may also be the factors to be considered in coming to a conclusion as regards the constitution of the offence under section 307 I.P.C. These all are illustrative and not exhaustive. After having perused the F.I.R. and the impugned order what appears is that the chief ingredient of the offence under Section 307 I.P.C. of intending to kill a person appears not established. Of course, the weapon, like Chhura was dangerous but the blow was falling admittedly on the little finger of the hand of the injured. But again, that allegation of giving the blow with Chhura appears displaced by the opinion of the Doctor who found the injury caused by hard and blunt substance. In addition to the above, one of the accused Arbind Kumar was also armed with a country made gun. If the accused persons were intending to kill the informant or any one who could be present at the scene of occurrence, they could have very well used the Nlkatua(country made gun) for accomplishing their goals. These were the glaring facts which the learned Additional 3 Sessions Judge missed while passing the order on 26.7.2010 in Sessions Trial No. 981 of 2007. In the opinion of this Court, the facts did not appear constituting an offence under Section 307 I.P.C. It might be the case under other Sections of the I.P.C. under which charges were directed to be framed besides those under the Arms Act. The learned Judge should act under Section 228 Cr. P.C. to pass an appropriate order to transmit the case to a court of competent jurisdiction. The impugned order, above said, is modified and corrected. The petition is dismissed in the above terms. Kanth ( Dharnidhar Jha, J.)