Justice Purnendu Singh affirms judgement of conviction under Section 323 by Additional Sessions Judge, Kaimur

In Sukhari Ram & Ors. vs. The State of Bihar (2026) which was heard along with Mahipat Ram vs, The State of Bihar (2026), Justice Purnendu Singh of Patna High Court delivered a 19-page long judgement dated April 30, 026, wherein, he concluded:"25. I find that the facts of the present case are squarely covered by the judgment passed by the Apex Court in case of Sivamani (supra) and in view of the aforesaid discussion of factual and legal aspects, it emerges that the alleged occurrence took place in a sudden manner on account of prior enmity between the parties and without any clear premeditation or prior meeting of minds of the accused persons. The nature of the incident, the surrounding circumstances, and the medical evidence, particularly the testimony of P.W.4 –Dr. Vinod Kumar Kashyap, indicate that although the informant sustained a head injury opined to be grievous in nature, the same has been attributed to a hard and blunt substance and the doctor has also admitted the possibility of such injury being caused by a fall on a hard surface, thereby creating doubt regarding the manner of assault. In the backdrop of inconsistent testimonies of the material witnesses, lack of reliable independent corroboration, and infirmities in investigation, tfhe evidence on record does not conclusively establish the requisite intention or knowledge to cause death so as to attract the provisions of Section 307 of the Indian Penal Code. Rather, the materials on record, at best, indicate an act of causing hurt by use of a blunt object, and thus,....this Court is of the considered opinion that the offence under Section 307 IPC is not made out and the conviction, if any, can be sustained only for a lesser offence in accordance with law. The learned trial court has rightly appreciated the evidence in convicting the appellants under Section 323 of the Indian Penal Code, particularly in view of the injury reports showing injuries caused by hard and blunt substance." 

To sustain a conviction under Section 307 IPC, the Supreme Court in paragraph no. 9 of its judgement in Sivamani vs. State, reported in, 2023 SCC OnLine SC 1581,  has held: “ 9. In State of Madhya Pradesh v.  Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that ‘…The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.’ The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v. State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v. Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, ‘The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.”

Before delivering the verdict, Justice Singh examined the case to find out whether the impugned judgment warrants interference by this Court on the charge levelled against the accused/appellants under Sections 307/34 and 323 of IPC. 

Justice Sing observed: "....taking an overall view, the Impugned judgment dated 17-01-2012 and order of sentence dated 21-01-2012 passed in S.T. No. 118/13 of 2003/07 (arising out of Durgawati P.S. Case No. 15/2003) is varied only to the extent that the conviction of the appellants stands modified to that under Sections 323 of the IPC. 27. However, so far as, the sentence is concerned, having regard to the facts and circumstances of the case and the period already undergone by the appellants, the sentence of rigorous imprisonment for one year is modified and reduced to the period already undergone. It is directed that if the appellants have already undergone the modified sentence, they shall be set at liberty forthwith, unless required in connection with any other case. The appellants are discharged from the liabilities of their bail bonds, if any." 

Section 323 reads:"Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

The appellants preferred the criminal appeals against the judgment dated January 17, 2012 and order of sentence dated January 21, 2012 passed in a Sessions Trial of 2013 which arose out of Durgawati P.S. Case 2003 by1st Additional Sessions Judge, Kaimur at Bhabua, whereby, the trial court convicted the appellants under Section 307/34 and 323 of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for 10 years (for section 307 of IPC) and further these three appellants were also sentenced to undergo Rigorous Imprisonment for 1 years (for section 323 of IPC). The appellants assailed the impugned judgment primarily on the ground that the trial court failed to appreciate the evidence available on record in its proper perspective and has erred in recording the conviction of the appellants.

Sections 307 reads:"Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.— When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Illustrations
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.

The case of the prosecution, was that on February 12, 2003 at about 21:30 hours, the informant, Chhabilal Ram, was returning to his house from Durgawati Bazaar. When he reached near a well situated close to the house of Khobhari Ram in village Khaminaura, the accused persons, namely Rajendra Ram, Dularchand Ram, Sukhari Ram and Mahipat Ram, allegedly surrounded him and, on account of previous enmity, formed an unlawful assembly and assaulted him. It was also alleged that during the course of the assault, accused Mahipat Ram dealt a lathi blow on the head of the informant, causing injury as a result of which he fell down and raised alarm. Upon hearing the alarm, nearby persons reached the place of occurrence, whereupon the accused persons fled away. Thereafter, the injured was taken for treatment by his nephew, Om Prakash Ram. 

During the trial, the prosecution examined altogether eight witnesses and relied upon documents exhibited during the course of trial. 

Justice Singh observed: "19. It is well settled that an attempt to commit murder must be clearly distinguished from a mere intention to commit the offence or from acts that amount only to preparation for its commission. The law recognizes that the existence of a guilty intention alone is not sufficient to constitute an attempt. There must be something more than planning or arranging the means to commit the crime. Therefore, in order to secure a conviction under Section 307 of the Indian Penal Code, the prosecution must prove the presence of a definite intention or knowledge to cause death, accompanied by some overt act that directly moves towards the execution of that intention. In other words, the accused must not only possess the intention to commit murder but must also perform an act that clearly demonstrates the commencement of the offence."

The Supreme Court laid down the litmus test for determination of nature of offence in Pulicherla Nagaraju vs. State of A.P. reported in (2007) 1 SCC (Cri) 500. In the facts and circumstances of a particular case, the Court needs to decide the pivotal question of existence of intention with care and caution. The following factors needs to be examined:
"(i) nature of the weapon used;
(ii)whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii)whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual
manner;
(xi) whether the accused dealt a single blow or several blows."

The Supreme Court grappled with a similar question in the case of Joseph vs. State of Kerala, reported in 1995 SCC (Cri) 165. The relevant paragraph reads: “3. In this appeal the learned counsel for the appellant submits that the intention to cause the injury which was found sufficient to cause the death in the ordinary course of the nature was not established. In support of this submission he relied on the circumstances namely that the whole incident took place because of a trivial incident which resulted in a quarrel and that the weapon used was only a lathi and in the circumstances it cannot be said that the accused intended to cause the death by inflicting that particular injury which objectively was proved by the medical evidence to be sufficient in the ordinary course of nature to cause death. In other words he submits that clause 3rdly of Section 300 IPC is not attracted in this case. We find considerable force in the submission. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years' RI.”

In the case of Jugatram vs. State of Chhattisgarh, reported in (2020) 9 SCC 520, Supreme Court drew on its judgment in Joseph case. 

Drawing on these judgements, Justice Singh observed: "24. Admittedly, from the prosecution case itself, it transpires that the alleged occurrence arose out of previous enmity between the parties and is stated to have taken place suddenly at night, without any clear evidence of premeditation or prior meeting of minds, the incident having occurred in the course of a sudden confrontation. Further, the prosecution evidence suffers from material infirmities..." 

Justice Sandeep Kumar quashes cognizance order by Chief Judicial Magistrate, Patna, all consequential proceedings

In Mukesh Kumar & Ors. vs. The State of Bihar & Anr. (2026), Justice Sandeep Kumar delivered a 14-page long judgement dated May 1, 2026, wherein, he concluded: "Therefore, it is clear that the wheel of criminal prosecution cannot be set in motion in a mechanical manner and the Magistrate cannot act as a mere post office while taking cognizance of an offence. In the present case, it appears that the present F.I.R. has been instituted with the sole purpose of settling the personal scores between the parties, who are entangled in a matrimonial discord and the learned Magistrate, has failed to apply judicial mind while taking cognizance since no material has been discussed, based on which cognizance could have been taken against the petitioners. As such, the impugned order taking cognizance is a cryptic and non-speaking one and the same is unsustainable. 23. Accordingly, this application is allowed. Accordingly, the impugned order taking cognizance dated 26.06.2019 passed by the learned Chief Judicial Magistrate, Patna and all consequential proceedings arising therefrom are hereby quashed qua the petitioners."

The criminal miscellaneous application was  filed challenging the order dated June 26, 2019 passed by the Chief Judicial Magistrate, Patna, whereby the Magistrate took cognizance against the petitioners for the offence under sections 341, 323, 504 read with section 34 of the Indian Penal Code in connection with Pirbahore P.S. Case of 2019. The F.I.R. was instituted by the informant - Shailesh Kumar alleging that while the informant was accompanying his daughter and wife for a proceeding before the Patna Civil Court in connection with Shri Krishnapuri P.S. Case of 2018, which was filed by his daughter, against her husband and his family members, his son-in-law and his family members started abusing and assaulting his daughter inside the Court premises. It was alleged by the informant that the accused persons also threatened him to compromise the earlier criminal case or else the they would kill his family members. It was also alleged that the accused Karunesh Kumar, had also snatched Rs.2000/- from the pocket of the informant. Upon completion of investigation, the Police submitted charge-sheet against the petitioners under sections 341, 323, 504 read with section 34 of the Indian Penal Code. Thereafter, the C.J.M., Patna took cognizance against the accused persons under sections 341, 323, 504 read with section 34 of the Indian Penal Code.

The counsel for the petitioners submitted that the informant was the father-in-law of the petitioner no.1 and on the date of occurrence, the petitioner and his family members were present in the Patna Civil Court
for furnishing bail bonds in the Court of the learned S.D.J.M., Patna, and at that time, the daughter of the informant i.e. the wife of the petitioner no.1, started abusing him and his family members. The incident was immediately informed to the Presiding S.D.J.M., Patna. Subsequently, the petitioner no.3 instituted Pirbahore P.S. Case of 2019 on the alleged assault and manhandling at the hands of the informant and his family members. A petition dated January 28, 2019 was submitted before the Senior Superintendent of Police, Patna for securing the CCTV footage installed in the Court premises and conduct an impartial enquiry/ investigation in the matter. 

The eight petitioners were: 2. Karunesh Kumar @ Karuneshwar Kumar, 3. Sumitra Devi, 4. Ritu Kumari @ Ritu Devi, 5. Rashmi Devi @ Rashmi Kumari, 6. Rubi Devi @ Anjana Rani, 7. Varsha Devi @ Vandana Rani @ Versa Devi, 8. Sahil Raj @ Sahil Kumar and 9. Dilip Kumar @ Dilip Kumar Singh. 
The respondent no. 2. is Shailesh Kumar.

The counsel for the petitioners pointed out the falsehood of the informant was evident from the fact that petitioner no.8, who was arrayed as an accused in the F.I.R. was not even present in the Court premises on the date of occurrence. It was submitted that the petitioner no.9, who was not an accused in the earlier case viz. Shri Krishnapuri P.S. Case No.60 of 2019, was present in the Court merely to assist the other family members. It was submitted on behalf of the petitioners that in retaliation and as a counter blast to the Pirbahore P.S. Case of 2019 which was instituted by the petitioner no.3 against the informant and his family members, the informant had instituted the case.  The counsel for the petitioners submitted that on the date, when alleged incident took place in the Court premises the petitioners were present to furnish their bail bonds before the Court of S.D.J.M., Patna, however, it was pointed out that no date was fixed in the aforesaid trial on January 5, 2019 and therefore, there was no occasion for the  informant and his family members to be present in the Court premises on the aforesaid date. It was also argued that the informant, who was a practicing Advocate, was deliberately planned to attack the petitioners with an intention to harm them. 

The counsel submitted that from the perusal of the F.I.R., it was evident that only vague and bald allegations were made against the petitioners and as such, the prosecution stands vitiated on the strength of the judgment of the Supreme Court in Pritam Ashok Sadabhule vs. the State of Maharasthra & Ors. reported as (2015) 11 SCC 769. He submitted that the impugned order by which the cognizance was taken against the petitioners was a cryptic and non-speaking order as no materials were discussed by the Magistrate based on which the cognizance was taken.

Justice Kumar observed: 13. From the records, it appears that both the parties are entangled in a matrimonial discord and have been litigating extensively for the past several years. The present F.I.R. has been instituted by the informant, who is the father-in-law of petitioner no.1. Pertinently, several criminal cases as well as a Divorce proceeding are pending between the petitioners and informant side. 14. From the reading of the present F.I.R., it appears that a scuffle took place inside the Court premises, when the petitioners were present at the Civil Court, Patna to furnish their bail bonds and for the said incident, two F.I.Rs. have been registered in Pirbahore Police Station, both of even date. Further, the F.I.R. appears to be a motivated one on account of marital discord and bitterness between the parties. The criminal proceeding could not be an instrument of oppression or motivated harassment to settle personal grudge."

Justice Kumar relied on para 102 of the Supreme Court's decision in State of Haryana & Ors vs. Ch. Bhajan Lal & Ors. reported in AIR 1992 604 wherein, it has been held: “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter 14 and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such a power should be exercised. 
(1) Where the allegations made in the first information report or the complaint, even if they are taken at the face value and accepted in their entirety do not prima facie constitute any offence or make out a case again the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

Justice Kumar referred to Supreme Court's judgement in Punjab National Bank vs. Surendra Prasad Sinha reported in AIR 1992 SC 1815, wherein, it has been held that judicial process could not be an instrument of oppression or needless harassment. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it could not be the means to wreak personal vengeance.

Justice Kumar 's judgement reads: "17. It is a settled proposition of law that the inherent powers of this Court under section 482 of the Cr.P.C. (section 528 of the B.N.S.S.) are to be utilized sparingly and cautiously. It is equally settled that the power must also be exercised to do real and substantial justice." noted:"....this Court is of the opinion, the present F.I.R. has maliciously been instituted against the petitioners in retaliation and with an ulterior motive for wreaking vengeance and this kind of malicious prosecution at the instance of the informant should not be allowed to continue. 19. Further, from the perusal of the impugned order taking cognizance, it appears that there is complete lack of application of judicial mind since no material has been discussed, based on which the learned Magistrate has taken cognizance against the petitioners."

The judgement refers to Supreme Court's decision in Pepsi Food Ltd. & Anr. vs. Special Judicial Magistrate & Ors. reported in (1998) 5 SCC 749. The relevant paragraph reads:“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge on to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

Supreme Court's decision in Delhi Race Club (1940) Ltd. & Ors. vs. State of U.P. & Anr. reported in (2024) 10 SCC 690 has held: “30. The aforesaid aspect could be said to have been completely lost sight of by the High Court, while rejecting the application filed by the appellant herein under Section 482 CrPC, seeking quashing of the summoning order."

In Mehmood Ul Rehman vs. Khazir Mohammad Tunda [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124], the Supreme Court held: “22. … The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. …In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction.… To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” 

Justice Kumar drew on the judgment to underline that "the principle of law discernible from the aforesaid decision is that issuance of summons is a serious matter and, therefore, should not be done mechanically and it should be done only upon satisfaction on the ground for proceeding further in the matter against a person concerned based on the materials collected during the inquiry.”