State Of Madhya Pradesh vs Imrat And Anr

State of Madhya Pradesh ....Appellant

Versus

Imrat and Anr. .... Respondents

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Madhya Pradesh High Court, Gwalior

Bench partially allowing the appeal filed by the respondents.

The Additional Sessions Judge, Pichhore, District Shivpuri found the respondents guilty of having committed offence

punishable under Section 307 read with Section 34 of the

Indian Penal Code, 1860 (in short the `IPC') and sentenced

each to undergo seven years RI with fine of Rs.1,000/-.

3. The High Court by the impugned judgment held that the

proper conviction would be under Section 326 read with

Section 34 IPC and the sentences were to be reduced to the

period already undergone.

4. Background facts in a nutshell are as follows:

On 7.2.1997 daughter of the complainant was married to

Sitaram and the complainant wanted to give his property to

his daughter. Respondent-Imrat who is one of the close

relatives of the complainant, objected to this and, therefore, on

2.3.1997 accused persons caused injuries to the complainant.

At the time of the incident accused Imrat had a lathi in his

hand and accused Komal had a farsa with him. They caused

six injuries on the complainant. On the basis of the

2 information lodged in the Police Station, investigation was

undertaken and challan was filed against the accused persons

for committing offence punishable under Sections 307, 324

and 506(2) IPC. However, as noted above, the trial Court

convicted the accused for commission of offence punishable

under Section 307 read with Section 34 IPC. The trial Court

noted that as per the evidence of the complainant Bhajan

while he was going towards his house near the well accused

persons armed with lathi and farsa obstructed his way. Imrat

told the co-accused that complainant has to be killed. On

hearing this Komal hit the head of the complainant with farsa.

Imrat gave lathi blow on the wrist of right hand and left hand

and left foot. Komal hit him once more with farsa which struck

him on the head. The trial Court found the evidence of the

witnesses credible and cogent and on the evidence of the

doctor found the accused persons guilty and convicted them

as afore-noted.

Before the High Court the only plea taken was that all

the six injuries except injury Nos.1 and 2 are simple in

3 nature. Injury Nos.1 and 2 were caused by sharp edged

weapons and were grievous in nature. It was urged that there

was no material to show that these two injuries were

dangerous to life or were sufficient in the ordinary course of

nature to cause death. According to them at the most the

offence under Section 326 IPC was made out. This plea found

acceptance of the High Court.

5. In support of the appeal, learned counsel for the

appellant-State submitted that the injuries were on the head

and were caused by sharp cutting weapons and the force with

which the blows were given can be seen from the nature of the

injuries on the head.

6. No one appears for the respondents in spite of service of

notice.

7. The injuries which were noticed by the doctor are as

follows:

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"No.1 One cut wound on the back of head on the left side admeasuring 3.5 x 1 x 1 c.m.

No. 2. One cut wound on the right side of the head admeasuring 1 x 1 x 1.5 c.m.

No. 3. One abrasion mark on the left hand, rounded admeasuring 5 x 5 c.m.

No. 4. One crushed wound on the right elbow of 1 x 1 c.m.

No. 5. One crushed wound with swelling on the back side of right hand admeasuring 3 x 2 c.m.

No. 6. One crushed wound on the let feet measuring 4 x 5 c.m."

8. The doctor has categorically stated that injury Nos. 1 and

2 were caused by sharp edged weapons. The dying

declaration of the injured was recorded on the request of the

police.

9. It is to be noted that the alleged offences are of very

serious nature. Section 307 relates to attempt to murder. It

reads as follows:

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"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."

10. 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

6 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.

11. 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. 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, an accused charged under Section 307 7 IPC cannot be acquitted merely because the injuries inflicted

on the victim were in the nature of a simple hurt.

12. This position was highlighted in State of Maharashtra v.

Balram Bama Patil and Ors. (1983 (2) SCC 28), Girija Shanker

v. State of Uttar Pradesh (2004 (3) SCC 793), R. Parkash v.

State of Karnataka (JT 2004 (2) SC 348) and State of M.P. v.

Saleem @ Chamaru and Anr. (2005 (5) SCC 554).

13. In Sarju Prasad v. State of Bihar (AIR 1965 SC 843) 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.

14. 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

8 question is intention or knowledge, as the case may be, and

not nature of the injury. The basic differences between

Sections 333 and 325 IPC are that Section 325 gets attracted

where grievous hurt is caused whereas Section 333 gets

attracted if such hurt is caused to a public servant.

15. Section 307 deals with two situations so far as the

sentence is concerned. Firstly, 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 secondly 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 indicated in

the first part i.e. 10 years. The maximum punishment

provided for Section 333 is imprisonment of either description

for a term which may extend to 10 years with a liability to pay

fine.

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16. It is seen that the High Court had arrived at erroneous

hypothetical conclusions ignoring the fact that the nature of

injuries were grievous and were caused by use of sufficient

force by sharp edged weapons. The injuries were so serious

that both the investigating agency and the doctor felt that

dying declaration was to be recorded. That being so, the High

Court's conclusion that the offence under Section 307 was not

made out is clearly indefensible. The order of the High Court

is set aside and that of the trial Court is restored.

17. The appeal is allowed.

...............................J. (Dr. ARIJIT PASAYAT)

...............................J. (P. SATHASIVAM)

New Delhi, July 11, 2008

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