STATE OF MADHYA PRADESH versus IMRAT AND ANR.

[2008] 10 S.C.R. 847

STATE OF MADHYA PRADESH v. IMRAT AND ANR.

(Criminal Appeal No. 1059 of 2008)

JULY 11, 2008

[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Penal Code, 1860- s 307 rlw s. 34 -Attempt to.murder-Conviction under - Essential requisite for - Stated - On facts, over property dispute, accused caused six injuries to com- plainant with lathi and farsa, two of the injuries grievous in na-ture - Conviction uls 307 r/w s. 34 with seven years RI - How-ever, High Court convicting uls 326 · rlw s. 34 and sentence reduced to period already undergone - Held: Not justified -High Court ignored that injuries were grievous in nature and 0 were caused by use of sufficient force by sharp edged weap-ons - Injuries were so serious that both investigating agency and doctor felt that dying declaration was to be recorded -Thus, order of High Court set aside and that of trial Court re-stored.

According to the prosecution case, over property

dispute accused persons armed with lathi and farsa, caused six injuries to the complainant. Respondent told the co-accused that the complainant was to be killed. On hearing this co-accused hit on the head of complainant with farsa twice. Respondent gave lathi blow on the wrist of right hand, left hand and left foot. FIR was lodged. In-vestigation was carried out. Witnesses were examined. The doctor examined the injuries and stated that the in-jury No. 1 and 2 were caused by sharp edged weapons. The dying declaration was recorded. Trial court relying on the evidence of the witnesses, convicted the accused u/s 307 read with s. 34 IPC and imposed seven years rig-orous imprisonment with fine of Rs. 1000/-. High Court

[2008] 10 S.C.R.

held that there being no material to show that injury No. 1 and 2 were dangerous to life or were sufficient in ordi-nary course of nature to cause death, convicted the ac-cused u/s 326 r/w 34 IPC and reduced the sentence to the period already undergone. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1.1 To justify conviction u/s 307 IPC it is not

essential that bodily injury capahle of causing death should have been inflicted. Although .the nature of injury actually caused may often give considerable assistance in coming to finding as to .the inte.ntion of the accused, such intention may also be deduced from other circum-stances, and may even, in some cases, b~ ascertained without any reference at all to actual wounds. The Sec-D tion makes distinction between an ~ct 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 in-E jury 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, irrespeetive of its result, was done with the intention or knowledge anCI under circumstances mentioned in the Section. An attempt in order to be crimi-F nal 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. Therefore, an accused charged u/s 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the natu're of simple hurt. [Paras 10 and 11] [852 F- 853 A-D]

State of Maharashtra v. Bairam Barna 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; State of M.P v. Saleem @ Chamaru and Anr. 2005 (5)

SCC 554; Sarju Prasad v. State of Bihar AIR 1965 SC 843 -relied on.

1.2 Whether there was intention to kill or knowledge

that death will be caused is question of fact and would depend on the facts of given case. The circumstances that the injury inflicted by the accused was simple or mi-nor will not by itself rule out application of s. 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury. The basic dif-ferences between Sections 333 and 325 IPC are that s. 325 gets attracted where grievous hurt is caused whereas [c ]s. 333 gets attracted if such hurt is caused to public ser-vant. [Para 14] [853 G-8]

1.3 Section 307 deals witti two situations so far as

the sentence is concerned. Firstly, whoever does any act with such intention or knowledge, and under such cir· cumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for 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 punish-ment as indicated in the first part i.e. 10 years. The maxi-mum punishment provided for in Section 333 is impris-onment of either description fer term which may extend to 10 years with liability to pay fine. [Para 15] [854-8-D]

2. In the instant case, the High Court arrived at erro-

neous 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, High Court's conclusion that the offence u/s. 307 was not made out is clearly indefensible. The or-der of the High Court is set aside and that of the trial Court

is restored. [Para 16] [854-E]

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal

No. 1059 of 2008

From the final Judgment and Order dated 28.1.2005 of the High Court of Madhya Pradesh, Bench at Gwalior in Crl. Appeal No. 61/1998

Vibha Datta Makhija for the Appellants.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

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

Single Judge of the Madhya Pradesh High Court, Gwalior Bench partially allowing the appeal filed by the respondents. The Addi-D tional 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 Sec-tion 34 IPC and the sentences were to be reduced to the period v, already undergone.

4. Background facts in 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-Im rat 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 lmrat had lathi in his hand and ac-cused Komal had farsa with him. They caused six injuries on the complainant. On the.basis of the information lodged in the Police Station, investigation was undertaken and challan was filed against the accused persons for committing offence pun-

ishable under Sections 307, 324 and 506(2) IPC. However, as noted above, the trial Court convicted the accused for commis-sion of offence punishable under Section 307 read with Sec-tion 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 ob-B structed his way. Im rat told the co-accused that complainant has to be killed. On hearing this Kamal hit the head of the com-plainant with farsa. lmrat 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 evi-dence of the doctor found the accused persons guilty and con-victed them as afore-noted.

Before the High Court the only plea taken was that all the six injuries except injury Nos.1and2 are simple in 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 suf-ficient in the ordinary course of nature to cause death. Accord-ing 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:

"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 1x1 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 o_n the let feet measuring 4 x

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

and 2 were caused by sharp edged weapons. The dying dec-laration of the injured was recorded on the request of the po-lice.

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:

"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 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 conviction under this Section, it is not es-sential 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 finding as to the intention of the accused, such intention may also be de-G duced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes 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 circum-stances 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 circum-. stances mentioned in the Section. An attempt in order to be 8 criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execu:-ti on thereof.

11. It is sufficient to justify conviction under Section 307 Section 307 307 if there is present an intent coupled with some overt act in ex- · [c ]ecution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes 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 cir-cumstances 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 simple hurt.

12. This position was highlighted in State of Maharashtra v. Bairam Barna 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 question of fact and would depend on the facts of given case. The circumstances that the injury in-flicted by the accused was simple or minor will not by itself rule

out application of Section 307 IPC. The determinative ques-tion is intention or knowledge, as the case may be, and not na-ture of the injury. The basic differences between Sections 333 and 325 IPC are that Section 325 gets attracted where griev-ous hurt is caused whereas Section 333 gets attracted if such hurt is caused to 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 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 maxi-0 mum punishment provided for Section 333 is imprisonment of either description for term which may extend to 10 years with

liability to pay fine.

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

hypothetical conclusions ignoring the fact that the nature of inju-E ries 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 declara-tion was to be recorded. That being so, the High Court's con-clusion that the offence under Section 307was 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.

Appeal allowed.