MATHEW OMALT Vs. STATE OF ORISSA

JUDGEMENT

(1.) With consent of the counsel for both sides the revision is heard. Admit.

(2.) THIS revision is directed against an order taking cognizance of offences under Sections 342/323/506/307|34 of the Indian Penal Code. Mr. Behera, the learned counsel for the petitioners, vehemently urges that in the facts and circumstances of the case the learned Magistrate fell into an error in taking cognizance of an offence under Section 307 of the Indian Penal Code. He submits that in order to find that an offence under Section 307 I. P. C. was committed, the nature of the offence, the size of the injury, the motive of the accused and his attendant conduct are relevant factors. Though in this case a knife was used and a blow was given on the head, having regard to the nature of the injury caused and the genesis of the occurrence, it is difficult to . hold that the intention of the petitioners was to attempt to cause death. I have gone through the F. I. R. and the statements of witnesses. The occurrence arose out of a quarrel and the blow was given on the spot. Having regard to the nature of the injury, it is indisputable that the blow was not a severe one, the dimension of the injury being 5 c. m. 1/2 c. m. 1/2 cm. I am, therefore, of the opinion that no prima facie case under Section 307 I. P. C. was made out against the petitioners. I, therefore, quash the order taking Cognizance under Section 307 I. P. C. Instead I direct the Magistrate to take cognizance of offence under Section 324/34 I. P. C. and proceed with the case in accordance with law.