The court upheld the dismissal of a discharge application under Section 227 Cr.P.C., deliberating on the applicability of Section 308 IPC based on the nature of injuries sustained.

O R D E R

This Revision Petition is filed against the order dated 07.03.2025 in Crl.MP No.346/2023 in SC No.805/2023 on the file of the Assistant Sessions Judge, Kochi, by which an application filed by the petitioners for discharge under Section 227 of Cr.PC is dismissed.

2. The petitioners are accused in SC No.805/2023 on the file of Assistant Sessions Judge, Kochi. The above case is charge sheeted alleging offences punishable under Sections 143 , 146, 147, 324 and 308 r/w Section 149 of IPC . The prosecution case is that, on 23.11.2022, at about 08.00 PM, the accused Nos.1 to 7 formed themselves into an unlawful assembly at Maruvakkadu Padasekharam, in furtherance of their common object, in order to commit murder of the defacto complainant and attacked the defacto complainant with glass bottles, stones, knifes and iron rod with an intention and knowledge that it would have caused death of the defacto complainant and thereby causing injury on his head. The petitioner filed a discharge petition. The same is dismissed as per the impugned order. Aggrieved by the same, this revision petition is filed.

3. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor.

4. Adv. Sri. C.S. Ajith Prakash who appeared for the petitioners argued the matter in detail. The counsel submitted that he is aggrieved mainly because the offence under Section 308 IPC is alleged. According to the counsel, the injured sustained only minor injury. It is also submitted that this Court granted anticipatory bail to the petitioners mainly for the reason that the offence under is not made out. It is further contented that there is no intention or knowledge to the petitioners that the alleged act would have caused death of the defacto complainant. Therefore, the offence under is not made out. The counsel for the petitioners takes me through Annexure-A1 wound certificate of the injured and also the 161 statement of the defacto complainant which is produced as Annexure- A2. The counsel also relied the judgment of the Apex Court inAbdul Ansar v. State of Kerala [ 2023 KHC 6678 ] and the judgment of the Allahabad High Court in Pati Ram and Others v. State of U.P. [1994 KHC 2682]. The Public Prosecutor submitted that, prima facie the offence under is made out, and this Court may not interfere with the impugned order.

5. This Court considered the contentions of the petitioners and the Public Prosecutor. The short point raised by the petitioners is that the offence under Section 308 IPC is not made out. According to the petitioners, no serious injury is sustained. But this Court perused the wound certificate. The defacto complainant sustained lacerations two in number on the left forehead and side of occipital region. The allegation is that the defacto complainant was attacked with a stone. At this stage, I am not in a position to conclude that the offence under S. 308 is not made out. The trial court considered this point in detail in the impugned order. It will be better to extract the relevant portion of the impugned order:

“7. Considering the rival contentions and the documents produced before the court it can be seen that the offences alleged against the accused herein are serious in nature. The danger and impact of using weapons and co-related injuries etc. can be analysed at the time of evidence only. In this case, the Learned Counsel for the petitioner had produced photographs and CCTV Footages and also relied on 2023 KHC 6678 Abdul Ansar vs.State of Kerala, in which it is already stated that "in the absence of intention and knowledge the conviction of the accused for the offences punishable u/s.308 not sustained". It is to be noted that the dictum laid down by the Hon'ble High Court of Keral