IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3663 of 2008 1. AWADHESH MAHTO, SON OF JAMUNA MAHTO. 2. BASUDEO MAHTO, SON OF LATE GOPA CHANDRA MAHTO. BOTH RESIDENT OF VILLAGE-CHURIHARWA TOLA, P.S. BAIRIYA, DISTRICT-WEST CHAMPARAN. …………………………………………………………PETITIONERS. Versus THE STATE OF BIHAR………………………OPPOSITE PARTY. ----------- For the Petitioners : Mr. Dhananjay Kumar, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. --------- O R D E R The two F.I.R. named accused of Sessions Trial No.375 of 2006, arising out of Bairiya P.S. Case No.49 of 2005 registered under Sections 341, 323, 504/34 I.P.C. but wherein chargesheet was submitted under Sections 341, 323, 504, 302/34 I.P.C., have filed this application under Section 482 Cr.P.C. for quashing of the order dated 19.12.2007 passed therein by the learned Presiding Judge, Fast Track Court No.IV, West Champaran at Bettiah, whereby the petition filed by the petitioners for their discharge from the offence under Section 302 I.P.C. has been dismissed. The prosecution case is founded on the fardbeyan of one Mangal Prasad recorded at around 17.45 hours on 11.4.2005 at the M.N. Ward of M.J.K. Hospital, Bettiah in respect of an occurrence which allegedly took place on the previous evening at about 17 hours. According to the informant, co-villager, Awadhesh Mahto was allegedly found constructing a wall by encroaching upon the lands of the informant which was objected to by Kailash Prasad, the brother of the informant, whereupon he was - 2 - abused by Awadhesh who was also adamant to assault him. On hearing hulla the informant arrived at the spot and in the meanwhile accused Basudeo Mahto also arrived and at his instigation both he and Awadhesh started assaulting the informant and his brother Kailash with fists and slaps as a result whereof the informant became unconscious and fell to the ground. It is said that on hearing hulla co-villagers, Mangal Prasad, Mahabir Prasad etc. arrived and saved them from further assault. It appears that although the case was registered under Sections 341, 323 and 504/34 I.P.C. the police after due investigation submitted a charge sheet curiously under Sections 341, 323, 504 and 302/34 I.P.C. The submission on behalf of the petitioners is that by reason of land dispute and village politics the petitioners were falsely implicated in this case taking advantage of the death of the informant on 25.5.2005, i.e., almost 45 days after the occurrence. In this connection, it was submitted that no post-mortem report was submitted by the police alongwith the chargesheet which by itself would create doubt as to the cause of death of the informant moreso in the background of his suffering from the dreaded ailment of cancer, his being admitted in the hospital after the occurrence on 11.04.2005 and being discharged on 15.04.2005, his death taking place on 25.5.2005, being stealthily cremated on the same day and information of his death being given to the police after 11 days by the son of the informant. It was further sought to be submitted that in the absence of any injury report or post mortem report of the informant being available before the court it was virtually impossible and highly impracticale to co-relate or attribute the death of the informant as a direct consequence of the alleged - 3 - assault with slaps and fists resorted to by the petitioners and that too when the death had occurred after 45 days of the occurrence and 42 days after the informant had been discharged from the hospital. I have had the occasion to peruse the impugned order which apart from being a matter of plaintive surprise in my estimation appears to be based primarily on misrepresented facts. True it is that as per the fardbeyan, the informant fell to the ground unconscious as a result of the assault with slaps and fists as resorted to by the petitioners and the fardbeyan was itself recorded at the hospital. But the observation of the trial court, as appearing in the impugned order, that the informant died in course of treatment does not appear to be correct. In addition thereto in the absence of the injury report or the post mortem report it would be a speculative entry into fool’s paradise since the very cause of death would not be available before the court. Admittedly, to prove the factum of death as a consequence of the alleged assault, the prosecution would be required to establish quite objectively that a bodily injury is present, prove the nature of the injury and that there was an intention to inflict that particular bodily injury, i.e. it was not accidental or unintentional or that other kind of injury was intended. The prosecution was also required to establish objectively what the nature of that injury in the ordinary course of nature is and if the injury is sufficient to cause death. In the absence of such evidence to hold a person guilty of the offence under Section 302 I.P.C. does not appear to be a sound proposal. Then again as the law remains well settled at the stage of Sections 227 and 228 Cr.P.C. which are to be read in juxtaposition with - 4 - each other the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to conclude whether the materials produced are sufficient or not for convicting the accused. At the same time, materials produced by the accused at the stage of framing of the charge should not be refused only on the ground that the same may be considered at the time of trial. If it is almost certain that the trial would only be an exercise in futility then it is advisable to truncate or snipe the proceedings at the stage of framing of charge. Admittedly, in the instant case, no injury or post-mortem report of the deceased appears to be available on the record and to base a conviction under Section 302 I.P.C. merely on the basis of occular evidence does not appear to be a sound proposition in view of the discussions made in the foregoing paragraphs. In the result, the action of the trial court, in my opinion, amounts to an abuse of the process of the court which is neither permissible nor warranted in law. Accordingly, the application succeeds and the impugned order is hereby set aside. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 5th day of May, 2009. Pradeep Srivastava/A.F.R.