THE STATE OF MADHYA PRADESH versus KANHA @ OMPRAKASH

[2019] 1 S.C.R.

THE STATE OF MADHYA PRADESH

KANHA @ OMPRAKASH

(Criminal Appeal No. 1589 of 2018)

BFEBRUARY 04, 2019

[DR. DHANANJAYA Y CHANDRACHUDAND M. R. SHAH, JJ.]

Penal Code, 1860 – ss.307 and 324 – Conversion ofconviction u/s.307 to s.324 – When perverse – As per prosecution,Caltercation took place between two parties – Respondent withintention to kill one ‘DS’, shot him with fire-arm and causedbleeding injuries on his right thigh – Respondent convicted u/s.307,IPC – High Court converted the conviction of the respondent fromthat u/s.307 to s.324, IPC – Propriety of – Held: Evidence establishesDthat the injuries were caused by fire-arm – Multiplicity of woundsindicate that the respondent fired at the injured more than once, thefact that hurt has been caused by the respondent is sufficiently proven– Proof of grievous or life-threatening hurt is not sine qua nonfor the offence u/s. 307, IPC – Lack of forensic evidence to provegrievous or life-threatening injury cannot be basis to hold thatEs.307, IPC is inapplicable – In the present case, the nature of theinjuries shows that there were eleven punctured wounds – Weaponof offence was firearm – Presence of 11 punctured and bleedingwounds as well as the use of fire arm leave no doubt that therewas an intention to murder – Thus, the second part of s.307, IPC isattracted in the present case – Judgment of the High Court overlooksFmaterial parts of the evidence and suffers from perversity –Judgement of the High Court set aside and the order of convictionby the Trial court u/s.307, IPC is restored.

Allowing the appeal, the Court

HELD: 1.1 The evidence establishes that the injuries werecaused by fire-arm. The multiplicity of wounds indicates thatthe respondent fired at the injured more than once. The fact thathurt has been caused by the respondent is sufficiently proven.Proof of grievous or life-threatening hurt is not sine qua non forthe offence under Section 307 of the Penal Code. The lack of

forensic evidence to prove grievous or life-threatening injurycannot be basis to hold that Section 307 is inapplicable. Theintention of the accused can be ascertained from the actual injury,if any, as well as from surrounding circumstances. Among otherthings, the nature of the weapon used and the severity of theblows inflicted can be considered to infer intent. [Paras 11,16][1080-D; 1081-D-E]

1.2 In the present case, the nature of the injuries showsthat there were eleven punctured wounds. The weapon of offencewas firearm. The presence of 11 punctured and bleeding woundsas well as the use of fire arm leave no doubt that there was anintention to murder. Thus, the second part of Section 307 of thePenal Code is attracted in the present case. The judgement ofthe High Court overlooks material parts of the evidence andsuffers from perversity. The judgement of the High Court is setaside and the order of conviction by the Trial court under Section307 of the Penal Code is restored. [Paras 17, 18][1082-C-D]

State of Maharashtra v. Balram Bama Patil (1983) 2SCC 28; State of M P v. Saleem (2005) 5 SCC 554 :[2005] 1 Suppl. SCR 562; Jage Ram v. State of Haryana(2015) 11 SCC 366 : [2015] 11 SCR 1004; PasupuletiSiva Ramakrishna Rao v. State of Andhra Pradesh(2014) 5 SCC 369 : [2014] 1 SCR 1139 – relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1589 of 2018.

From the Judgment and Order dated 02.12.2011 of the High Courtof Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 830 of2004

Ms. Bansuri Swaraj, Raghunatha Sethupathy, Gagan Narang,Ms. Arshiya Ghose, B.N. Dubey, Mukesh Kumar, Santanu Singh,

AMrs. Swarupama Chaturvedi, Advs. for the Appellant.

Prashant Shukla, Ms. Anushree Mishra, Digant Kallol Deo,Akshay Kumar, Pashupathi Nath Razdan, Advs. for the Respondent.

The Judgment of the Court was delivered by

BDR. DHANANJAYA Y CHANDRACHUD, J. 1. Delaycondoned.

2. This appeal is by the State against the judgment and orderdated 2 December 2011 of the High Court of Madhya Pradesh at itsGwalior Bench. The High Court converted the conviction of theCrespondent under Section 307 of the Indian Penal Code (‘Penal Code’)to Section 324 of the Indian Penal Code and sentenced him toimprisonment for forty days, undergone by him, with fine of Rs 3,000.

3. According to the prosecution, on 8 October 2003, analtercation took place between two parties. The respondent, with anDintention to kill one Dashrath Singh, shot him with fire-arm and causedbleeding injuries on his right thigh. The brother of Dashrath Singh filed acomplaint on the same day at the Gwalior Police Station. It was stated inthe complaint that there was enmity between the parties over lovemarriage which was opposed by the families as well as dispute over adisc cable connection business. The allegation against the accused wasEthat armed with deadly weapons, they formed an illegal assembly with acommon motive of causing harm to the injured. The charge-sheet wasfiled under Sections 147 and 307 read with 149 and 323 of the PenalCode. The respondent was found guilty of the offence under Section307 of the Penal Code and was sentenced to undergo rigorousimprisonment for three years along with fine of Rs 1,000 by the TrialFCourt. Seven other co-accused were acquitted of all the charges levelledagainst them.

4. The respondent preferred an appeal before the High Court.The High Court converted the conviction of the respondent from thatunder Section 307 to Section 324 of the Penal Code and sentenced himGto imprisonment for forty days, which had already been undergone byhim, with fine of Rs 3,000.

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

6. We have heard learned counsel for the State and learnedHcounsel appearing for the respondent.

7. Learned counsel appearing for the State submitted that theHigh Court based its judgment on manifestly incorrect appreciation ofthe evidence. Eleven punctured wounds of sizes varying from 0.4 x 0.5cm to 0.4 x 0.6 cm were found on the body of the injured by Dr P KMishra (PW 1). These injuries were stated to have been caused by afirearm six hours prior to the medical examination. It is urged by thelearned counsel for the State that the High Court has failed to considerthe evidence before it. The nature of injuries as well as the weapon ofoffence clearly prove an intention to commit murder and the hurt causedsatisfies the ingredients of Section 307 of the Penal Code. Hence theappeal deserves to be allowed.

8. On the other hand, learned counsel appearing for the respondentsubmits that the nature of the injuries was not explained in the evidenceof the prosecution. Neither Dr PK Mishra (PW1) nor Dr Amar MukundTiwari (PW2) gave their opinion about the nature of the injuries andthere was no evidence to prove that the injuries caused to DashrathSingh were grievous in nature or life-threatening. Hence, it is urged bythe learned counsel that they are simple injuries. It was further submittedthat since the injuries were caused by an instrument of shooting, theoffence will fall under Section 324 instead of 307 of the Penal Code.

9. The High Court accepted the contention of the respondent thatthe nature of injuries was not conclusively proved. The High Court heldthat in the absence of evidence that the injuries were grievous ordangerous to life, they were simple in nature. In the view of the HighCourt, the offence will fall under Section 324 instead of Section 307 ofthe Penal Code.

10. Section 307 of the Penal Code reads thus:

“307.Attempt to murder.—Whoever does any act with suchintention or knowledge, and under such circumstances that, if heby that act caused death, he would be guilty of murder, shall bepunished with imprisonment of either description for term whichmay extend to ten years, and shall also be liable to fine; and ifhurt is caused to any person by such act, the offender shall beliable either to imprisonment for life, or to such punishment as ishereinbefore mentioned.

Attempts by life convicts.—When any person offending underthis section is under sentence of imprisonment for life, he may, if

Ahurt is caused, be punished with death.

Illustrations

(a) shoots at Z with intention to kill him, under suchcircumstances that, if death ensued, would be guilty ofmurder. is liable to punishment under this section.

(b) A, with the intention of causing the death of child of tenderyears, exposes it in desert place. has committed the offencedefined by this section, though the death of the child does notensue.

C(c) A, intending to murder Z, buys gun and loads it. has notyet committed the offence. fires the gun at Z. He has committedthe offence defined in this section, and, if by such firing hewounds Z, he is liable to the punishment provided by the latterpart of the first paragraph of this section.

D(d) A, intending to murder Z, by poison, purchases poison andmixes the same with food which remains in A’s keeping; hasnot yet committed the offence in this section. places the foodon Z’s table or delivers it to Z’s servants to place it on Z’stable. has committed the offence defined in this section.”

The first part of Section 307 refers to “an act with such intentionEor knowledge, and under such circumstances that, if he by that act causeddeath, he would be guilty of murder”. The second part of Section 307,which carries heavier punishment, refers to ‘hurt’ caused in pursuanceof such an ‘act’.

11. Several judgements of this Court have interpreted Section 307ofFthe Penal Code. In State of Maharashtra v Balram Bama Patil[1], thisCourt held that it is not necessary that bodily injury sufficient undernormal circumstances to cause death should have been inflicted:

“9...To justify conviction under this section it is not essential thatbodily injury capable of causing death should have been inflicted.GAlthough the nature of injury actually caused may often giveconsiderable assistance in coming to finding as to the intentionof the accused, such intention may also be deduced from othercircumstances, and may even, in some cases, be ascertained

1 (1983) 2 SCC 28H

without any reference at all to actual wounds. The section makesa distinction between an act of the accused and its result, ifany. Such an act may not be attended by any result so far asthe person assaulted is concerned, but still there may becases in which the culprit would be liable under this section.It is not necessary that the injury actually caused to thevictim of the assault should be sufficient under ordinarycircumstances to cause the death of the person assaulted.What the Court has to see is whether the act, irrespective of itsresult, was done with the intention or knowledge and undercircumstances mentioned in this section. An attempt in order tobe criminal need not be the penultimate act. It is sufficient in law,if there is present an intent coupled with some overt act inexecution thereof.”

(Emphasis supplied)

This position in law was followed by subsequent benches of thisCourt. In State of M P v Saleem[2], this Court held thus:

“13. It is sufficient to justify conviction under Section 307 ifthere is present an intent coupled with some overt act in executionthereof. It is not essential that bodily injury capable of causingdeath should have been inflicted. The section makes distinctionbetween the act of the accused and its result, if any. The courthas to see whether the act, irrespective of its result, wasdone with the intention or knowledge and undercircumstances mentioned in the section. Therefore, anaccused charged under Section 307 IPC cannot be acquittedmerely because the injuries inflicted on the victim were inthe nature of simple hurt.”

(Emphasis supplied)

In Jage Ram v State of Haryana[3], this Court held that to establishthe commission of an offence under Section 307, it is not essential thata fatal injury capable of causing death should have been inflicted:

“12. For the purpose of conviction under Section 307 IPC, theprosecution has to establish (i) the intention to commit murder;and (ii) the act done by the accused. The burden is on the

2 (2005) 5 SCC 554

3 (2015) 11 SCC 366

Aprosecution that the accused had attempted to commit the murderof the prosecution witness. Whether the accused person intendedto commit murder of another person would depend upon the factsand circumstances of each case. To justify conviction underSection 307 IPC, it is not essential that fatal injury capable ofcausing death should have been caused. Although the nature ofBinjury actually caused may be of assistance in coming to findingas to the intention of the accused, such intention may also beadduced from other circumstances. The intention of the accusedis to be gathered from the circumstances like the nature of theweapon used, words used by the accused at the time of the incident,Cmotive of the accused, parts of the body where the injury wascaused and the nature of injury and severity of the blows given,etc.”

The above judgements of this Court lead us to the conclusion thatproof of grievous or life-threatening hurt is not sine qua non for theDoffence under Section 307 of the Penal Code. The intention of the accusedcan be ascertained from the actual injury, if any, as well as fromsurrounding circumstances. Among other things, the nature of the weaponused and the severity of the blows inflicted can be considered to inferintent.E12. The Trial court based its conviction on the evidence adducedat the trial. PW1, Dr P K Mishra had examined the injured on 8 October2003 and found 11 punctured wounds of sizes varying from 0.4 x 0.5 cmto 0.4 x 0.6 cm. The injuries were bleeding, but no blackness was present.He noted that the wounds were caused by fire arm and were inflictedin six hours before the examination. The witness stated that theFconfirmation of the injuries depended on the X-Ray report and expertopinion of the ward doctor. The report of the Radiologist (PW2) statedthat he had observed multiple small rounded radio paque shadows ofmetallic density. This is indicative of the presence of firearm injuries.

13. Based on the evidence of the witnesses, the Trial court cameGto the conclusion that the injuries were caused by the respondent.Dashrath Singh (PW11) deposed that the respondent shot at him in theright thigh with country rifle. The complainant (PW12) stated that therespondent fired at PW11 with deliberate intention to kill him. Theocular evidence is cogent and corroborated by the medical evidence.H

14. Based on the evidence on record, the Trial court held that itcould not be proved that the other accusedhad common intention ofcausing injuries or death upon Dashrath Singh. Thus, the co-accusedwere acquitted of charges.

15. The Trial court found that PW4, PW8 and PW13, who werepresent near the place of incident, had sustained injuries. The witnesseshad admitted that they were hit by bullet shots. The court concluded thatit was established that at the date, time and venue of the said incident, afire arm had been used and the afore-mentioned witnesses had alsosuffered bullet injuries. The Court held that it was substantiated that theshots fired by the respondent first hit the injured Dashrath Singh. Theinjured Dashrath Singh had stated that the house of the respondent was40-50 metres from the spot where the incident took place. It was heldthat in such circumstances if fire arm is shot at such distance, theshot gets dispersed and may hit persons in the vicinity. There existed alongstanding dispute between the parties with regard to the business ofcable discs and an altercation took place with regard to it. In the quarrelthat ensued, the respondent fired at Dashrath Singh, injuring him.

16. The evidence establishes that the injuries were caused by afire-arm. The multiplicity of wounds indicates that the respondent firedat the injured more than once. The fact that hurt has been caused by therespondent is sufficiently proven. The lack of forensic evidence to provegrievous or life-threatening injury cannot be basis to hold that Section307 is inapplicable. This proposition of law has been elucidated by atwo-judge bench of this Court in Pasupuleti Siva Ramakrishna Rao vState of Andhra Pradesh[4]:

“18. There is no merit in the contention that the statement ofmedical officer that there is no danger to life unless there isdislocation or rupture of the thyroid bone due to strangulationmeans that the accused did not intend, or have the knowledge,that their act would cause death. The circumstances of this caseclearly attract the second part of this section since the act resultedin Injury 5 which is ligature mark of 34 cm × 0.5 cm. It must benoted that Section 307 IPC provides for imprisonment forlife if the act causes “hurt”. It does not require that thehurt should be grievous or of any particular degree. Theintention to cause death is clearly attributable to the accused since 4 (2014) 5 SCC 369

Athe victim was strangulated after throwing telephone wire aroundhis neck and telling him that he should die. We also do not find anymerit in the contention on behalf of the accused that there was nointention to cause death because the victim admitted that theaccused were not armed with weapons. Very few persons wouldnormally describe the Thums up bottle and telephone wire used,Bas weapons. That the victim honestly admitted that the accuseddid not have any weapons cannot be held against him and in favourof the accused.” (Emphasis supplied)

17. In the present case, the nature of the injuries shows that therewere eleven punctured wounds. The weapon of offence was firearm.CThe circumstances of the case clearly indicate that there was an intentionto murder. The presence of 11 punctured and bleeding wounds as wellas the use of fire arm leave no doubt that there was an intention tomurder. Thus, the second part of Section 307 of the Penal Code isattracted in the present case. The judgement of the High Court overlooksDmaterial parts of the evidence and suffers from perversity.

18. Hence, we set aside the judgement of the High Court andrestore the order of conviction by the Trial court under Section 307 ofthe Penal Code as well as the sentence awarded of rigorous imprisonmentof 3 years and fine of Rs 1000. The appeal is, accordingly allowed.EThe respondent shall forthwith surrender to serve out the sentence. Acopy of the judgment shall be forwarded by the Registry to the ChiefJudicial Magistrate concerned to secure compliance.

Divya Pandey

Appeal allowed.