The main legal point established in the judgment is the application of common intention in the commission of the offence under section 308 IPC and the need to gather intention from the act, conduct, and relative circumstances.

JUDGMENT :

1. Petitioner impugns order dated 22.02.2017, whereby, Trial Court has dismissed the application filed by the petitioner under section 227 Criminal Procedure Code seeking a discharge and further directing that the a charge is liable to be framed against the petitioner for the offence mentioned in the charge sheet. Charge Sheet has been filed under Sections 308/34 Indian Penal Code.

2. Learned counsel for the petitioner submits that petitioner has been falsely implicated. He submits that there no cogent material on record for trial court to proceed against the petitioner for commission of offence under section 308 IPC. He submits that it is not the case of the prosecution that the petitioner inflicted any injury or incited, exhorted or even provoked the co-accused to commit the subject offence.

3. It is submitted that the allegation is that when the complainant slapped the co-accused Amit Kumar, he asked the petitioner to bring a rod from the car and the petitioner is alleged to have brought the rod and handed it over to co-accused who then hit the complainant with the rod on his forehead. He further submits that the complainant was completely drunk and his version given to the police cannot be relied upon. It is contended that there is absence of mens rea or common intention or conspiracy.

4. As per the FIR, the complainant while he was driving his car hit the car of another person. The person in the car at front came down and started fighting with the complainant. Observing the fight, two boys (petitioner and the co-accused Amit Kumar) stopped their car and intervened. One of the boys berated the complainant for being drunk while driving.

5. It is alleged that in a fit of rage, complainant slapped the co-accused Amit Kumar, who then asked the petitioner to bring a rod from the car stating that lets teach a lesson to the complainant. It is alleged that the petitioner brought the rod from the car and handed it over to co-accused who then hit the complainant with the rod on his forehead.

6. The role ascribed to the petitioner is of handing the rod to co-accused Amit Kumar, when he asked him to bring the same from the car. The co-accused thereafter hit the complainant.

7. It is submitted by learned counsel for petitioner that there was no element of mens-rea or common intention to cause hurt or injury to the complainant as the act done by the petitioner was on the spur of the moment due to grave and sudden provocation. The injury was caused in the course of a sudden quarrel, and there was no proper planning or pre-meditation. Thus it is urged that ingredients required to constitute an offence under section 308 are not attracted.

8. Further it is submitted that as per the MLC, the complainant sustained injuries on his forehead, hand and forearm and sustained fracture on his little finger. He was discharged on the same day after treatment and then was asked to come to OPD after 5 days which shows that the injury sustained by the victim was neither grievous nor life threatening.

9. It is contended that the MLC on record shows that the blood alcohol content of the complainant was 182% and as such his statement could not have even been relied on by the prosecution and it further establishes that he was driving the vehicle in a drunkard state.

10. Per contra, Learned APP for the state submits that there is no illegality or irregularity in the impugned order and the petitioner has been rightly charged under section 308 IPC. It is submitted that petitioner along with co-accused had the common intention to cause death and further that it is a matter of trial and petitioner cannot be discharged without a trial.

11. Further, it is contended that the MLC on record opines that injuries sustained by the complainant are grievous in nature. It is urged that injuries caused by an iron rod impels one to infer the intention to cause death as any prudent man is aware that the injuries inflicted on the head with a rod may lead to fatality.

12. In the