Rajasthan High Court - Jodhpur

Jaishankar Sharma vs State Of Rajasthan on 4 September, 2025

[2025:RJ-JD:38699]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
              S.B. Criminal Revision Petition No. 48/2024

1.        Jaishankar Sharma S/o Shri Sita Ram Sharma, Aged
          About 23 Years, R/o Bhansha Ka Khera, P.s. Banera Dist.
          Bhilwara.
2.        Shiva Alias Shivraj S/o Nshri Dharmendra Gujar, Aged
          About 22 Years, R/o Near Nobel School, Shiv Sagar,
          Bhilwara.
3.        Rahul Bairagi S/o Pappu Das Bairagi, Aged About 21
          Years, R/o Aargiya, P.s. Mandal Dist. Bhilwara.
4.        Monu Suthar S/o Shri Shanar Lal Suthar, Aged About 22
          Years, R/o Near Nobel School, Shiv Sagar, Bhilwara.
5.        Himanshu Sen S/o Shri Ram Prasad Sen, Aged About 22
          Years, R/o Nehru Vihar, Bhilwara.
6.        Sattu Mali S/o Bheru Lal Mali, Aged About 22 Years, R/o
          Ward No. 41, Near Shiv Mandir, Vijay Singh Pathik Nagar,
          Bhilwara.
                                                                      ----Petitioners
                                     Versus
1.        State Of Rajasthan, Through Pp
2.        Mustak S/o Zakir Silawat, R/o Ward No. 41, Near Shiv
          Mandir, Vijay Singh Pathik Nagr, Bhilwara.
                                                                    ----Respondents


For Petitioner(s)          :     Mr. Raghuveer Singh Chundawat
For Respondent(s)          :     Mr. Narendra Gehlot, PP
                                 Mr. OP Choudhary



              HON'BLE MR. JUSTICE SANDEEP SHAH

Order

Reportable Reserved On- 26/08/2025 Pronounced On- 04/09/2025

1. The present revision petition has been filed, challenging the

order dated 10.10.2023, passed by the learned Additional

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Sessions Judge No.2, Bhilwara, in Sessions Case No.117/2022

"State v. Jaishankar Sharma & Ors" whereby the learned trial

Court has proceeded to frame charges against the petitioners for

offences punishable under Sections 143, 341, 323, 336 and 307

IPC.

Facts of the case:-

2. Shorn of unnecessary details, the brief facts of the case are

that, based upon the statement given by one Mustak, son of Zakir

Silawat, an FIR No.197/2022 of Police Station Subhash Nagar,

District Bhilwara, came to be lodged on 29.04.2022. As per the

contents of the FIR and the statement given by Mustak, on

29.04.2022, at around 01:30 AM, complainant-Mustak, his brother

Shamir and his friend Avesh were travelling on a motorcycle from

Krishna Hospital towards Bagar Hospital, when they saw at the

cross-road that 15-20 persons were assaulting 2-3 personss who,

were the residents of Maruti Colony. He stated that he was going

towards Gulnagri and these 15-20 people stopped him and started

assaulting him with stick and stones upon his head and left leg

and shoulders. He stated that certain other persons disentangled

them and, in the meanwhile, Rehan, resident of Maruti Nagar,

along with his friends came to the site, upon which, 15-20 people

started assaulting him also. The police after investigation,

recorded statement of injured Mustak Silawat, Mohammad Avesh,

Mohammad Rehan, Sameer Silawat, Rehan Silawat, Sahid Nilgar,

Shahrukh Silawat, Mohammad Sadab and Ayan Rangrej. All the

witnesses stated that they were not aware as who had assaulted

Mustak, however, they stated that they later came to know that

the persons, who assaulted were the present petitioners, along

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with few other persons. However, nobody was examined to show

how the witnesses came to know as to who all were the persons

who assaulted them. The injury report was prepared, as far as

injury upon Mustak and Rehan was concerned. A recovery of a

lathi was made from petitioner no.1-Jayshankar, based upon his

information given under Section 27 of the Indian Evidence Act,

1872. The police officials thereafter, proceeded to file the charge-

sheet against the present petitioners for offence punishable under

Sections 143, 341, 323, 336 and 307 IPC. The learned trial Court,

after committal of case, proceeded to frame the charges against

the present petitioners for the offences as specified above, and

therefore, being aggrieved against the same, the present revision

petition has been filed.

Arguments of the counsels for petitioners and

respondents:-

3. Learned counsel for the petitioners submitted that, even if,

all the averments made in the FIR, as well as the statements of

the witnesses are admitted to be correct as it is, then too, the

offence punishable under Section 307 IPC is not made out against

the present petitioners. He submitted that a perusal of the

statements of all the witnesses will reveal that none of them have

named any of the petitioners and has simply stated that they were

not aware as to who had committed the offence and were rather

informed by somebody else that the petitioners had committed

the offence. He further asserts that not a single witness has

identified the petitioners, and neither any witness was produced to

show as to how the petitioners were identified as the assailants.

He further submitted that the only recovery made from the

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petitioners was one lathi, which was shown to have been

recovered from Jaishankar. He submitted that the lathi is available

in almost every house in the village and recovery of the lathi could

not connect the petitioners with the offence in question.

4. He further asserted that a perusal of the injury report of

Rehan will reveal that, except for an abrasion on a knee, there

was no injury whatsoever, and as far as Mustak is concerned,

though nine injuries have been shown, all have been shown to be

simple in nature. Except for injury Nos.1 and 2, none of the

injuries are on the vital part of the body. He thus submitted that

neither the intention nor knowledge about the act being sufficient

to cause death is made out, as provided under Section 307 IPC.

He submitted that, at the maximum, the case in hand, even if the

contents of the FIR and averments of petitioners being assailants

are treated to be true, then too, the case in hand would not travel

beyond Section 323 or 336 IPC (as allegedly stones have been

used).

5. He thus submitted that the learned trial Court has not

considered this aspect of the matter while proceeding to frame

charges against the petitioners under Section 307 IPC. He thus

prayed for quashing of the order impugned dated 10.10.2023 and

complete discharge of the petitioners.

6. Per contra, learned Public Prosecutor while supporting the

order impugned, submitted that a perusal of the injury report of

Mustak and Rehan, as well as the statements of various witnesses,

will prove that the petitioners were the assailants and have been

identified based upon the statement given by Ayan Rangrej with

regard to presence of the petitioners and their assaulting injured

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Mustak and Rehan. He further submitted that the recovery of the

lathi from Jaishankar further fortifies the fact of the petitioners

being involved in the crime in question and further, the manner in

which injured Mustak has been assaulted, it is clear that the

petitioners had the necessary knowledge and the intention to

murder Mustak, and therefore, the trial Court has rightly framed

the charge for the offence punishable under Section 307 IPC.

7. Though notices were issued to the complainant-respondent

no.2, however, nobody had put an appearance on behalf of

respondent no.2. After the revision petition was admitted on

13.05.2024, again notices were issued to the complainant, but

again post service of notice, nobody has appeared on behalf of the

respondent no.2-complainant.

Analysis & Reasoning:-

8. Heard the counsel for both the parties and perused the

record.

9. In the present case, the fact of presence of the petitioners,

or the petitioners involved in the incident in question, cannot be

gone into at this stage, as the material available on record clearly

shows that the presence of the petitioners has been asserted by

all the witnesses, Mustak Silawat, Mohammad Avesh, Mohammad

Rehan, Sameer Silawat, Rehan Silawat, Sahid Nilgar, Shahrukh

Silawat, Mohammad Sadab, Ayan Rangrej. Rather, witness Ayan

Rangrej has specified that they had caught hold of two persons

who had specified the name of all the petitioners.

10. Furthermore, the name of the petitioners finding specific

mention in the statements of witnesses, prima facie, is sufficient

at this stage for the purpose of framing of charges and proceeding

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with the trial against the petitioners. At this stage, i.e. the stage

of framing of charge, the sifting and weighing of evidence is very

limited, and existence of a prima facie case would be sufficient to

frame charges against the accused-petitioners. Thus, as far as

framing of charges by the learned trial Court under Sections 143,

341, 323 and 336 IPC is concerned, the same does not call for any

interference whatsoever. The evidence available on record clearly

establishes voluntary causing hurt, wrongful

restraint/confinement, and doing of an act rashly and negligently

to endanger human life or personal safety by the accused-

petitioners while forming an unlawful assembly.

11. The only issue for consideration is as to whether the trial

Court was justified in framing charge against the petitioners for

offence punishable under Section 307 IPC. As far as Sections 300 &

307 IPC are concerned, the same provides as under:

"300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the

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intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Exception 1.--When culpable homicide is not murder.

--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:--

First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

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(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

Exception 2.--Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due

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discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder."

"307. 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. 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.

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(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."

12. A bare perusal of the same will reveal that for bringing home

the offence under Section 307 IPC, the intention and knowledge

on the part of the assailants that the act under such

circumstances, if done, would cause death, is necessary. Thus,

there may be circumstances under which no injury is caused, then

too, an offence under Section 307 IPC would be made out and on

the contrary, there may be cases where even if injury is caused

still the offence under Section 307 IPC will not be made out. The

knowledge & intention are very important and relevant for

consideration as to whether the alleged act would fall under the

ambit of Section 307 IPC or not.

13. The Hon'ble Apex Court way back in the year 1964 in the

case of "Sarju Prasad v. State of Bihar" 1964 SCC Online SC

236 while referring to the necessary intention and knowledge of

the assailant has held as under:-

"5. Thus according to the learned Chief Justice the act to fall within Section 307 must be such that but for the intervention of some circumstance it would, if completed, have resulted in death. There is no evidence in this case that a fatal injury or an injury to a vital organ was prevented by any intervening circumstance.

6. All these decisions were considered by this Court in Om Prakash v. State of Punjab, and though Cassidy case, was not expressly dissented from the actual view taken by this Court is more in consonance with the view taken by Beaumont, C.J. in Geogte case and the view taken by the Allahabad High Court in Niddha case than that taken in Cassidy case no injury was in fact occasioned to the victim Sir Earnest Hotson, the then acting Governor, due to a certain obstruction. Even so, the assailant

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Gogte was held by the Court to be jointly under Section 307 because his act of firing a shot was committed with a guilty intention and knowledge and in such circumstances that but for the intervening fact it would have amounted to murder in the normal course of events. This view was approved by this Court. Therefore, the mere fact that the injury actually inflicted by the appellant did not cut any vital organ of Shankar Prasad is not by itself sufficient to take the act out of the purview of Section 307.

7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300 of the Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I.P.C. cannot possibly be brought home to the appellant The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were

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accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well- frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment.

8. The only other question then is whether the appellant intended to cause such injury as he knew to be likely to cause death or intended to inflict an injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause

death or cause an injury as is likely to cause death."

14. Subsequently, in the case of "Hari Singh v. Sukhbir Singh

& Ors." (1988) 4 SCC 551, the Hon'ble Apex Court again while

dealing with the intention and knowledge sufficient to constitute

murder, to bring home the necessary ingredients of Section 307

IPC, held as under:-

"7. On the first question as to acquittal of the accused under Sections 307/149 IPC, some significant aspects may be borne in mind. Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it. They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but were not provoked or tempted to use the cutting edge of the weapon. It is very very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed,

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might have been a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under Section 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under Section 307 IPC."

15. In "Vasant Vithu Jadhav v. State of Maharashtra"

(2004) 9 SCC 31, the Hon'ble Apex has held as under:-

"9. In the aforesaid factual scenario it has to be seen whether Section 307 has application. Section 307, IPC reads as follows:

"307. 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."

To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

10. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any.

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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. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.

11. This position was highlighted in State of Maharashtra v. Balram Bama Patil, in Criminal Appeal No. 1034 of 1997 decided on 04.02.2004, and in Criminal Appeal No. 1179 of 1997 decided on 11.02.2004.

12. In Sarju Prasad v. State of Bihar it was observed in para 6 that mere fact that the injury actually inflicted by the accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307.

13. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury."

16. This Court in the case of "Samane Khan v. State of

Rajasthan" in S.B. Criminal Revision Petition No.128/2023

vide judgment dated 10.05.2023 held as under:-

"7. The Penal law has defined and categorized different acts of the accused with distinct quantum of punishment. Voluntarily causing simple hurt; causing voluntarily simple hurt by using a dangerous weapon or means; voluntarily causing grievous hurt; which has further been clarified by a different provision under Section 326 of the IPC with the definition of voluntarily causing grievous hurt by a dangerous weapon and means. Causing or receiving injury is not an integral part of constituting an offence under the first Clause of Section 307 of the IPC which reads as under:-

"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;"

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8. The plain reading of the first limb of Section 307 of the IPC makes it abundantly clear that receiving injury in the course of attempt to kill the victim, is not a condition precedent in this clause. The second Clause of this Section begins with the word which are reproduced as under:-

"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".

9. The main difference between the first and second Clause is with regard to quantum of punishment only, which is categorized as "if in the course of making an attempt to murder, any injury is received by the victim then, the punishment would be graver than to the first clause". Here, it is also pertinent to mention that no particular kind and nature of injury has been described even in the second limb of Section 307 IPC. It may be a simple or grievous or life endangering injury, it matters not. The only fact would be needed for the second part of Section 307 IPC is that in the course of attempt to kill, an injury is received by the victim.

10. Having element of an intent to bring the matter within the ambit of Section 307 of the IPC is a condition precedent. Intention is the state of mind of an offender and there could be no physical evidence which can be produced as a thing, object or fact to establish the same in a concrete manner. It has to be inferred from the circumjacent circumstances of the case and the evidence available on record. Intention can be adduced from the act itself as well as from consequences of the fact. Some of the prominent aspects that may be taken into consideration to draw an inference regarding the mental state of the accused are as under:-

(i) the number of injuries;

(ii) the nature of injuries received by the victim;

(iii) the kind of weapon used by the accused for inflicting injury;

(iv) the part of body which the accused chosen to inflict the injury;

(v) the other surrounding circumstances like time and place of incident whether it was crime place belonged to the accused or it belonged to the victim or a random public place;

(vi) previous animosity between the accused and victim which must be of such a degree which would indicate itself strong reason or motive of the accused so as to show the intent to cause death of the victim. It should not be just a discord acrimony or bitter relationship or strife of an ordinary nature or of common petulance.

(vii) the position of the accused and the victim at the place of crime; if the accused is in dominating position or rather more in number than to

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the victim; the victim is in helpless or hapless condition; not hopeful of being rescued or getting assistance from anyone and still if the accused does not take undue advantage of his position by not inflicting more injuries or by not using much force upon the victim, is a strong circumstance to draw an inference regarding the criminal intent of the accused. Not taking undue advantage of his dominating position is a significant sign to show the intent.

11. There may be some other factors which may be taken into consideration for the purpose of drawing an inference regarding intent of the accused so as to know whether the accused wanted to kill/murder the victim or he only wanted to harm and cause some simple or grievous injuries to the victim.

12. Though, a straight jacket formula cannot be made as determinable factor and the above mentioned factors are illustrative not exhaustive."

17. Thus, taking guidance from the abovementioned judgments

as well as the language of Section 307 IPC, it is clear that the

prosecution has been burdened to ensure that they show the

intention and knowledge of the petitioners in causing injury to

injured Mustak being of such nature that any of the three kinds

specified under Section 300 IPC are made out. Until and unless

that part is done, the offence under Section 307 IPC would not be

made out. Furthermore, the state of mind of offender has to be

determined for the purpose of bringing home the offence under

Section 307 IPC. The conduct of the offender after the incident,

the site and nature of the injury, the weapon used, the motive for

the crime, the presence of mens rea, the manner in which the

incident happened i.e. accidental owing to a sudden fight or

planned etc. are relevant considerations for determining as to

whether the offence would fall under Section 307 IPC or not.

Intention or knowledge is again a state of mind of an offender and

the same is to be inferred from ancillary circumstances as no

physical evidence can be produced with regard to the intention of

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the mind of the offender. The inference can be drawn from the

circumstances, as narrated above i.e. number of injuries, nature

of injuries, weapon used, etc.

18. In the present case, considering the entire record, it is clear

that it is not a case of premeditated offence and rather the

presence of the victim-Mustak, at the site, itself was by chance, as

per his own statement. Thus, one of the things is clear that the

incident was an outcome of sudden fight and not planned act.

Furthermore, there have been omnibus allegations against all the

petitioners and no specific act has been attributed to anyone of

them. The fact that there are so many persons present and still

the injuries upon the body of the victim are all simple in nature

itself is one of the consideration to come to a conclusion that there

was no intention to cause murder on the part of the petitioners.

The injury being simple in nature, is fortified from the injury

report and the opinion of Dr. Anupam Bansal. Furthermore, all the

injuries are from a blunt weapon and except for injury nos.1 and

2, none of the injuries are on vital part of the body. As regards the

injury nos.1 and 2, there is no repeated injury on the site in

question and as per the version of the prosecution itself, stones

were pelted, which clearly shows that the offence would definitely

fall within the purview of Section 336 IPC, however, for travelling

beyond that and bring home the offence under Section 307 IPC,

the necessary ingredients of knowledge and intention are

conspicuously missing in the present case. This, coupled with the

facts that neither sharp edged weapons were used nor the

severity of blow upon the injured victim has been asserted and

also no motive for committing the crime has been pointed out by

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the prosecution, provides further relevant yardsticks to come to a

conclusion that the case in hand does not fall within the ambit of

Section 307 IPC. Neither the prosecution has been able to show

that the injury caused was with an intention to kill or knowledge

that the death will be caused if such injury is inflicted. Thus, it is

clear that presence of none of the ingredients of offence under

Section 307 IPC have been made out by the prosecution, even if

the entire version of the prosecution is accepted as true as it is.

The trial Court has failed to consider this aspect of the matter

while framing the charges against the petitioners under Section

307 IPC.

19. The Hon'ble Supreme Court has, time and again, dealt with

the powers of the Court while framing charges and the relevant

considerations qua the same. In the case of Sajjan Kumar v.

Central Bureau of Investigation: 2010 9 SCC 368, the

Hon'ble Apex Court has held as under:-

"Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.

21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-

(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

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iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

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24. At the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision one way or the other."

20. In the case of M.E. Shivalingamurthy v. Central Bureau

of Investigation: 2020 2 SCC 768, the Hon'ble Apex Court,

while dealing with the considerations to be undertaken at the

stage of framing of charge, held as under:-

"LEGAL PRINCIPLES APPLICABLE IN REGARD TO AN APPLICATION SEEKING DISCHARGE

17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and discern the following principles:-

17.1 If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.

17.2 The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.

17.3 The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.

17.4 If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".

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17.5 It is open to the accused to explain away the materials giving rise to the grave suspicion.

17.6 The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

17.7 At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

17.8 There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.P.C. (See State of J & K v. Sudershan Chakkar). The expression, "the record of the case", used in Section 227 of the Cr.P.C., is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (See State of Orissa v. Debendra Nath Padhi)."

21. Recently, in the case of Captain Manjit Singh Virdi v.

Hussain Mohammed Shattaf & Ors.: 2023 7 SCC 633, the

Hon'ble Apex Court, held as under:-

"11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of charge sheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of

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the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court."

22. Thus, it is clear that at the stage of framing of charge,

though the power of weighing and sifting of evidence is limited

only to extent of assessing whether a prima facie case is made out

against the petitioner-accused or not and, even if, there is a case

of mere suspicion, the Court is required to frame charge and

proceed with the trial. However, it is also clear that there has to be

proper application of mind by the learned trial Court with regard to

the charges it is framing and, that too, after consideration of the

entire record. Even after accepting the version of the prosecution

and consideration of the entire record, if the prosecution fails to

establish that the petitioner-accused has committed a particular

offence, then there exists no sufficient ground for the trial Court to

proceed with the trial for that particular offence and the learned

trial Court ought to discharge the petitioner-accused for the

offence in question at the stage of framing charge itself.

23. Considering the present case, as pointed out above, the

necessary ingredients including the mens rea, knowledge,

intention, the ancillary circumstances in which the incident

happened, the same being a sudden fight, the nature of injury, the

weapon used, the repetition of injury, the site of injury etc.

collectively points out to only one conclusion that though prima

facie offences under Sections 323, 336, 341 and 143 IPC are

made out, however, no offence under Section 307 IPC was made

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out, even prima facie as against the petitioners. The trial Court

has failed to consider this aspect of the matter while proceeding to

frame charges against the petitioners for offence under Section

307 IPC also.

Conclusion:-

24. The upshot of the above is that the order impugned dated

10.10.2023 passed by learned Additional Session Judge No.2,

Bhilwara in Sessions Case No. 117/2022 is quashed and set aside

only to the extent of framing of charge under Section 307 IPC

against the petitioners and the petitioners are discharged to that

extent only. The residual order i.e. the order framing charges for

offences punishable under Sections 143, 341, 323 and 336 IPC is

upheld. The offences punishable are exclusively triable by the

Court of Magistrate, therefore, it is deemed appropriate to transfer

the case for conducting trial to the Court of Chief Judicial

Magistrate, Bhilwara. The accused-petitioners are directed to

appear before the learned Chief Judicial Magistrate, Bhilwara, on

24.09.2025 whereupon the learned Magistrate shall try the

offences in accordance with the procedure for the trial of warrant

cases instituted on a police report.