IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9029 of 2010 Manoj Kumar Yadav, Son of Asharfi Yadav, Resident of Village Gora, Police Station Kusheshwar Asthan, District Darbhanga. --------- Petitioner Versus 1. State of Bihar. 2. Mithilesh Yadav. 3. Hari Lal Yadav. 4. Brahmdeo Yadav, All sons of Hirdeo Yadav. 5. Ganeshi Yadav. 6. Basudeo Yadav. 7. Triveni Yadav, All sons of Misri Yadav. 8. Madan Yadav, Son of Parikshan Yadav. 9. Parikshan Yadav, Son of late Baujan Yadav. 10. Kailash yadav, Son of Nakchhedi Yadav. 11. Arvind Yadav. 12. Bijay Yadav, Both sons of Triveni Yadav. 13. Sita Ram Yadav. 14. Khurkhur Yadav, Both sons of Ganeshi Yadav, All residents of Village Gora, Police Statioin Kusheshwar Asthan, District Darbhanga. 15. Uttim Yadav, Son of Garmu Yadav. 16. Nageena Yadav, Both sons of Late Adhik Lal Yadav. 17. Yogendra Yadav, Son of Nakchhedi Yadav. All residents of Village Bijulia, Police Station Biraul, District Darbhanga. ------- Opp. Parties ----------- 2 16.04.2010 Heard learned counsel for the petitioner and counsel for the State. By the impugned order dated 27.1.2010, the court below has held that from the materials collected in course of investigation, no offence under Section 307 of the Indian Penal Code was made out. For reaching to such conclusion, the Sessions Judge has primarily been guided by the fact that even when the accused persons were armed with gun, they had only used the butt portion 2 which would be indicative of the fact that they did not want to take away the life of the injured person. In the opinion of this Court, the whole approach of the court of Sessions Judge is based on surmises and conjectures and beyond the scope of ambit of Section 307 of the Indian Penal Code. At the stage of framing charge, the allegation made in the First Information Report with the connected materials as gathered in the Case Diary along with document filed by the police being only relevant material has to be looked into for the purpose of finding out the prima-facie nature of allegation for offence. Section 307 of the Indian Penal Code in fact does not require presence of any injury, inasmuch as, the intention to kill a person by itself is an offence under Section 307 of the Indian Penal Code. Judged in this back ground when the allegation made in the First Information Report is taken into consideration, it is found that three is clear assertion of the informant of the intention to do away with the life of the injured person. 3 Counsel for the State, however, while making his effort to save the impugned order has submitted that as because there was only simple injury on the person of the injured, the court was justified that no materials were available for framing charge under Section 307 of the Indian Penal Code. In the opinion of this Court, the nature of injury whether simple or grievous by itself alone would not be a deciding factor for constituting the offence under Section 307 of the Indian Penal Code. If that was not so, every case of Section 307 I.P.C. could be held to either offence under Section 323 or Section 321 or 326 of the Indian Penal Code depending on the nature of injury alone. Thus, when the court below has not taken into account, the statement of the witnesses supporting the allegation and has proceeded only on the premise of nature of injury, this Court would find it difficult to sustain the impugned order dropping the charge under Section 307 and remitting the matter for trial to the Sub-Divisional Judicial Magistrate. 4 That being so, while this Court would set aside the impugned order dated 27.1.2010, it would still direct the District & Sessions Judge, Darbhanga to re-consider all the materials on record for recording his conclusive findings as with regard to the availability of the materials under Section 307 of the Indian Penal Code. With the aforementioned observations and direction, this application is allowed. Rsh (Mihir Kumar Jha, J.)