The State Of Madhya Pradesh vs Kanha @ Omprakash

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1589 OF 2018 (ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 1433 OF 2013)

THE STATE OF MADHYA PRADESH ...APPELLANT

VERSUS

KANHA @ OMPRAKASH ...RESPONDENT

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Delay condoned.

2 This appeal is by the State against the judgment and order dated 2

December 2011 of the High Court of Madhya Pradesh at its Gwalior Bench. The

High Court converted the conviction of the respondent under Section 307 of the

Indian Penal Code („Penal Code‟) to Section 324 of the Indian Penal Code and Signature Not Verified

sentenced him to imprisonment for forty days, undergone by him, with a fine of Rs Digitally signed by SANJAY KUMAR Date: 2019.02.04 15:29:44 IST Reason: 3,000.

2

3 According to the prosecution, on 8 October 2003, an altercation took place

between two parties. The respondent, with an intention to kill one Dashrath Singh,

shot him with a fire-arm and caused bleeding injuries on his right thigh. The

brother of Dashrath Singh filed a complaint on the same day at the Gwalior Police

Station. It was stated in the complaint that there was enmity between the parties

over a love marriage which was opposed by the families as well as a dispute over

a disc cable connection business. The allegation against the accused was that

armed with deadly weapons, they formed an illegal assembly with a common

motive of causing harm to the injured. The charge-sheet was filed under Sections

147 and 307 read with 149 and 323 of the Penal Code. The respondent was

found guilty of the offence under Section 307 of the Penal Code and was

sentenced to undergo rigorous imprisonment for three years along with a fine of

Rs 1,000 by the Trial Court. Seven other co-accused were acquitted of all the

charges levelled against them.

4 The respondent preferred an appeal before the High Court. The High Court

converted the conviction of the respondent from that under Section 307 to Section

324 of the Penal Code and sentenced him to imprisonment for forty days, which

had already been undergone by him, with a fine of Rs 3,000.

5 The State has preferred this appeal, by Special Leave. 3

6 We have heard learned counsel for the State and learned counsel

appearing for the respondent.

7 Learned counsel appearing for the State submitted that the High Court

based its judgment on a manifestly incorrect appreciation of the evidence. Eleven

punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm were found

on the body of the injured by Dr P K Mishra (PW 1). These injuries were stated to

have been caused by a firearm six hours prior to the medical examination. It is

urged by the learned counsel for the State that the High Court has failed to

consider the evidence before it. The nature of injuries as well as the weapon of

offence clearly prove an intention to commit murder and the hurt caused satisfies

the ingredients of Section 307 of the Penal Code. Hence the appeal deserves to

be allowed.

8 On the other hand, learned counsel appearing for the respondent submits

that the nature of the injuries was not explained in the evidence of the

prosecution. Neither Dr PK Mishra (PW1) nor Dr Amar Mukund Tiwari (PW2)

gave their opinion about the nature of the injuries and there was no evidence to

prove that the injuries caused to Dashrath Singh were grievous in nature or life-

threatening. Hence, it is urged by the learned counsel that they are simple

injuries. It was further submitted that since the injuries were caused by an

instrument of shooting, the offence will fall under Section 324 instead of 307 of

the Penal Code.

4

9 The High Court accepted the contention of the respondent that the nature

of injuries was not conclusively proved. The High Court held that in the absence

of evidence that the injuries were grievous or dangerous to life, they were simple

in nature. In the view of the High Court, the offence will fall under Section 324

instead of Section 307 of the Penal Code.

10 Section 307 of the Penal Code reads thus:

“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 it. 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.

(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 in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.” 5

The first part of Section 307 refers to “an act with such intention or knowledge,

and under such circumstances that, if he by that act caused death, he would be

guilty of murder”. The second part of Section 307, which carries a heavier

punishment, refers to „hurt‟ caused in pursuance of such an „act‟.

11 Several judgements of this Court have interpreted Section 307 of the Penal

Code. In State of Maharashtra v Balram Bama Patil1, this Court held that it is

not necessary that a bodily injury sufficient under normal circumstances to cause

death should have been inflicted:

“9...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 this 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.” (Emphasis supplied)

This position in law was followed by subsequent benches of this Court. In State

of M P v Saleem2, this Court held thus:

1 (1983) 2 SCC 28 2 (2005) 5 SCC 554 6

“13. 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 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.” (Emphasis supplied)

In Jage Ram v State of Haryana3, this Court held that to establish the

commission of an offence under Section 307, it is not essential that a fatal injury

capable of causing death should have been inflicted:

“12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.”

The above judgements of this Court lead us to the conclusion that proof of

grievous or life-threatening hurt is not a sine qua non for the offence under

Section 307 of the Penal Code. The intention of the accused can be ascertained

3 (2015) 11 SCC 366 7

from the actual injury, if any, as well as from surrounding circumstances. Among

other things, the nature of the weapon used and the severity of the blows inflicted

can be considered to infer intent.

12 The Trial court based its conviction on the evidence adduced at the trial.

PW1, Dr P K Mishra had examined the injured on 8 October 2003 and found 11

punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm. The injuries

were bleeding, but no blackness was present. He noted that the wounds were

caused by a fire arm and were inflicted in six hours before the examination. The

witness stated that the confirmation of the injuries depended on the X-Ray report

and expert opinion of the ward doctor. The report of the Radiologist (PW2) stated

that he had observed multiple small rounded radiopaque shadows of metallic

density. This is indicative of the presence of firearm injuries.

13 Based on the evidence of the witnesses, the Trial court came to the

conclusion that the injuries were caused by the respondent. Dashrath Singh

(PW11) deposed that the respondent shot at him in the right thigh with a country

rifle. The complainant (PW12) stated that the respondent fired at PW11 with a

deliberate intention to kill him. The ocular evidence is cogent and corroborated by

the medical evidence.

8

14 Based on the evidence on record, the Trial court held that it could not be

proved that the other accused had a common intention of causing injuries or

death upon Dashrath Singh. Thus, the co-accused were acquitted of charges.

15 The Trial court found that PW4, PW8 and PW13, who were present near

the place of incident, had sustained injuries. The witnesses had admitted that

they were hit by bullet shots. The court concluded that it was established that at

the date, time and venue of the said incident, a fire arm had been used and the

afore-mentioned witnesses had also suffered bullet injuries. The Court held that it

was substantiated that the shots fired by the respondent first hit the injured

Dashrath Singh. The injured Dashrath Singh had stated that the house of the

respondent was 40-50 metres from the spot where the incident took place. It was

held that in such circumstances if a fire arm is shot at such a distance, the shot

gets dispersed and may hit persons in the vicinity. There existed a long standing

dispute between the parties with regard to the business of cable discs and an

altercation took place with regard to it. In the quarrel that ensued, the respondent

fired at Dashrath Singh, injuring him.

16 The evidence establishes that the injuries were caused by a fire-arm. The

multiplicity of wounds indicates that the respondent fired at the injured more than

once. The fact that hurt has been caused by the respondent is sufficiently proven.

The lack of forensic evidence to prove grievous or a life-threatening injury cannot

be a basis to hold that Section 307 is inapplicable. This proposition of law has 9

been elucidated by a two-judge bench of this Court in Pasupuleti Siva

Ramakrishna Rao v State of Andhra Pradesh4 :

“18. There is no merit in the contention that the statement of medical officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this section since the act resulted in Injury 5 which is a ligature mark of 34 cm × 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes “hurt”. It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him that he should die. We also do not find any merit in the contention on behalf of the accused that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums up bottle and a telephone wire used, as weapons. That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused.” (Emphasis supplied)

17 In the present case, the nature of the injuries shows that there were eleven

punctured wounds. The weapon of offence was a firearm. The circumstances of

the case clearly indicate that there was an intention to murder. The presence of

11 punctured and bleeding wounds as well as the use of a fire arm leave no

doubt that there was an intention to murder. Thus, the second part of Section 307

of the Penal Code is attracted in the present case. The judgement of the High

Court overlooks material parts of the evidence and suffers from perversity.

4 (2014) 5 SCC 369 10

18 Hence, we set aside the judgement of the High Court and restore the order

of conviction by the Trial court under Section 307 of the Penal Code as well as

the sentence awarded of rigorous imprisonment of 3 years and a fine of Rs 1000.

The appeal is, accordingly allowed. The respondent shall forthwith surrender to

serve out the sentence. A copy of the judgment shall be forwarded by the

Registry to the Chief Judicial Magistrate concerned to secure compliance.

…….............................................................J [Dr Dhananjaya Y Chandrachud]

….…….………….......................................J [MR Shah]

New Delhi;

February 04, 2019.