IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8805 of 2009 1. VIJAY KUMAR, SON OF LATE RAMJI PRASAD. 2. NAVIN KUMAR, SON OF VIJAY KUMAR. 3. PRAVIN KUMAR, SON OF VIJAY KUMAR. ALL RESIDENTS OF PACHANA ROAD, NAAP-TOOL GALI, WARD NO.17, P.S.-LAKHISARAI, DISTRICT- LAKHISARAI. ......PETITIONERS. VERSUS THE STATE OF BIHAR .....OPPOSITE PARTY. ----------- For the petitioner : Mr. Ashwani Kumar Singh, Sr. Adv. Jai Prakash Singh, Advocate. For the informant : Sudha Ambastha, Advocate. For the State : Ajay Kumar- I, A.P.P. ----------- 5 05.01.2011 Heard. This is petition for quashing the order dated 23.01.2009 passed in Sessions Case No.592 of 2007 arisng out of Lakhisarai P.S. Case No.316 of 2005 by which the petition dated 15.12.2008 under Section 228 of the Cr.P.C. has been dismissed. The prosecution as alleged in the fardbeyan that on the order of Vijay Kumar, the petitioner assaulted by Khanti, brick to the informant upon head and hands and even alleged that the HMT watch was snatched by Pravin Kumar and the left hand of the informant got fractured. The police lodged the FIR and after investigation submitted the charge sheet under Section 323, 325, 337 and 504/34. However, the cognizance was 2 taken against all the accused persons for offence under Section 323, 325, 337, 504, 379 and 307/34. The learned counsel for the petitioner contended that the order of taking cognizance for offence under Section 379 and 307 was challegned before the Hon’ble Court but the same was rejected with a liberty to agitate the matter at the time of commitment or framing of the charge. At the stage of framing of the charge a fresh petition filed under Section 228 and the same has been rejected by the impugned order. The learned counsel for the petitioner however contend that there are six injuries found on the person of the Gyan Chandra @ Gyan Chandra Arya. One lacerated wound on front of forehead of size about ½”x½”, second injury is abrasion and bruses on left side of Cheek size about ½”x½”. Third injury is also abrasion and burn on right side of cheek ½”x½”. The fourth injury is multiple abrasion on left shoulder and the fifth injury is swelling and bruises on Rt forearm ½”x½”. Sixth is bruses on right hand 2”x1”, however the injury no.1,2,3,4 and 6 has been found to be simple in nature where as injury no.5 found to be grievous. Hence it is submitted that except injury no.5 3 all are simple in nature and hence on these allegations and this injury it cannot be inferred that the injury was inflicted with intention to kill to make an offence under Section 307. The learned counsel for the opposite party however opposed and submit that these injuries are on the vital part of the body and one of the injury no.5 is grievous. However, for decide whether the allegation make out an offence under Section 307. The only factors are required to be taken into consideration is the weapon used on the part of the body on which the injury is inflicted and the impact by which the injury has been leveled and the intention of the party can be derived on these basis. However here the allegation is that the injury inflicted by Khanti and the part of the body used in injury no.1, 2, 3 and 4 like head, cheek and other parts of the body. However the injury no.1 to 3 and 4 are simple in nature but on vital part of body, though, the injury no.5 shows a grievous injury but on non-vital part. However, at the stage of framing of the charge the matrix applied is quiet different from that applied at fag end and a charge can be framed even on strong suspicion. Hence under the 4 fact that injury no.1,2,3 and 4 are on the vital part of the body and the weapons used is Khanti and at the stage of framing of charge can be framed even on strong suspicion and since the injury, though, not on the vital part of the body, but shows the impact by which the injury was made and hence having regard to the fact and circumstance without expressing any opinion I do not feel to incline to interfere with the impugned order at the stage of framing of the charge . It is the opinion of the Judge which prevails if there is ground to infer that the accused has committed an offence and hence at this stage the satisfaction of the judge at the stage of framing of the charge requires to be prevail extremely arbitrary but that is not the case under the fact and circumstance of the case. Hence having regard to the facts and circumstance, I do not find any merit in this petition. Hence the petitioner is dismissed. PN (Gopal Prasad, J.)