JUDGMENT 1. - In a trial for the offences under sections 307, 326 and 324 I. P. C, the learned Sessions Judge, Bikaner held the appellant Moda Ram guilty for these offences and by the judgment dated August 5, 1974 sentenced him to imprisonment for life on the first count, three years' R. I. on the second count and two years' R. I. on the third count. 2. Being dissatisfied by his conviction and sentence Moda Ram appellant has preferred this appeal in this court. 3. Moda Ram was a previous convict and had suffered imprisonment for life for the charge of murder. Hanuman Prasad Modi, the victim in the case for whose injuries Moda Ram had been convicted and sentenced for the offence under section 307 I.P.C. felt aggrieved because of the Court not pressing into service the law laid down in the proviso to section 307 I.P.C. Hanuman Prasad Modi, therefore, filed revision petition against the judgment of the learned Sessions Judge, Bikaner. 4. As the appeal filed by Moda Ram and the revision petition filed by Hanuman Prasad Modi arise out of the same judgment, we propose to dispose them of by a common judgment. 5. Succinctly narrated the facts of the case giving rise to the appeal and the revision petition are as under : 6. Hanuman Prasad Modi was the Chairman of `Khudra Vyapar Sangh'. Arun Kumar (P.W. 6) one of the injured is the son of H.P. Modi. Asha Ram (P.W. 4) yet another victim in the case and H. P. Parihar (P.W. 1) were the members of that `Sangh'. The relations between H. P. Modi and Moda Ram (hereinafter referred to be as the appellant) were strained. On June 16, 1973 meeting of the `Sangh' had taken place at the shop of Mohan Lal Sethia. At that time Moda Ram, along with Phusa Ram went there and threatened H.P. Modi with knife and asked him to handover all the money to them. The matter was reported to the Police. On June 19, 1973 Phusa Ram and Moda Ram again attempted to kill H.P. Modi and, therefore, report was lodged with the Police. Proceedings under section 107 Cr. P.C. were initiated. Phusaram and Modi Ram were frequently giving threats to kill H. P. Modi. The matter was reported to the Police. On June 19, 1973 Phusa Ram and Moda Ram again attempted to kill H.P. Modi and, therefore, report was lodged with the Police. Proceedings under section 107 Cr. P.C. were initiated. Phusaram and Modi Ram were frequently giving threats to kill H. P. Modi. On July 15, 1973 at about 7.00 P. M. H. P. Modi was sitting at the shop of Asharam (P. W. 4). H. P. Parihar, Asha Ram and Arun Kumar were also there. H. P. Modi was checking the accounts of sale of Jowar-Bajra'. A wooden cash box containing the currency notes and the account register were with H. P. Modi. When H. P. Modi and H. P. Parihar were checking up the accounts, Moda Ram all of a sudden reached there. He put one of his foot on the `Chowki'. He took out some thing from a bottle, poured it into the jug, and threw it over H. P. Modi, telling him that he would do away with him that day. The liquid substance, so sprinkled, fell on the face and other parts of the body of Modi and he felt buring sensation. He started crying. His eyes were shut and he was severely burnt by that liquid substance. He felt the smell and acid in the liquid substance. The clothes he was putting on were also burnt by that substance. Muralidhar son of Asha Ram also sustained burns because of the drops of the liquid substance sprinkled by Moda Ram on his person. H. P. Parihar and Arun Kumar also sustained burns in the same way. All the injured were taken to P. B. M. Hospital, Bikaner and were examined by Dr. M. C. Maroo (P. W. 9), Medical Jurist of that Hospital. Dr. Maroo noticed following injuries on the person of H. P. Modi : 1. Commercial Acid Burn (sulphuric) on face below eyes anteriorly including neck anterior and posterior. Chest anterior up to medullary region. Tongue also lower half right side. 2. Right forearm up to wrist. 3. Left arm middle, forearm anterior lateral. Regarding the nature of first injury no opinion could be expressed till recovery takes place. 7. Injuries Nos. 2 and 3 were simple. All injuries were acid burns. The duration of injuries was between 2 or 3 hours. Injury Report is Ex. P. 14. According to the Doctor injuries Nos. 3. Left arm middle, forearm anterior lateral. Regarding the nature of first injury no opinion could be expressed till recovery takes place. 7. Injuries Nos. 2 and 3 were simple. All injuries were acid burns. The duration of injuries was between 2 or 3 hours. Injury Report is Ex. P. 14. According to the Doctor injuries Nos. 2 and 3 were simple but no opinion could be expressed for injury No. 1 till recovery. 8. Dr. Maroo examined Asha Ram (P. W. 4) and noted following injuries on his person : 1. Acid sulphuric burns on fore-head including hair lower left chin, and parietal region. 2. Left upper limb from elbow to wrist. 3. Whole anterior abdomen burnt. 4. Right thigh up to knee anteriorly and right foot dorsally. 5. Burns on Left thigh and left foot anteriorly. 9. According to the Doctor except injury No. 1 all were simple. Opinion on the injury No. 1 was reserved till recovery. 10. On the same night Doctor Maroo examined Arun and noted following injuries on his person : 1. Commercial sulphuric acid burns on head right occipital region, right car, right nose, right side of face, right eye laterally including neck anterior and posterior. 2. Right upper limb both anterior and posterior. 3. Left upper limb from elbow to palm medially. 4. Right abdomen wall anteriorly and laterally. 5. Right and left thigh anteriorly and left foot dorsally. 11. The injury report is Ex. P. 16. On examining Murlidhar Dr. Maroo noted following injuries on his person: 1. Acid sulphuric burns on fore-head including hair anterior below lower lip. 2. Acid burns on right foot. Opinion for the first injury was reserved till recovery. 12. The injury report is Ex. P. 17. On that very night the Doctor examined Hanuman Prasad Parihar and noted following injuries on his person : 1. Commercial Sulphuric Acid burns over head, face, including eyes, neck anterior posterior, anterior chest and abdomen right side. 2. Whole right upper limb anterior medially. 3. Acid burn left shoulder and left hand. 4. Acid burn left lower limb (right thigh). 5. Acid burn right leg medially upto foot. In the opinion of the Doctor the first injury was grievous and others were simple. 13. The injury report is Ex. P. 18. According to the Doctor all the injuries noted by him on the above referred persons were acid burns. 4. Acid burn left lower limb (right thigh). 5. Acid burn right leg medially upto foot. In the opinion of the Doctor the first injury was grievous and others were simple. 13. The injury report is Ex. P. 18. According to the Doctor all the injuries noted by him on the above referred persons were acid burns. 14. P W. 10 Jaswant Singh, S. H. O. of Police Station, Kotwali, Bikaner received telephonic information from the hospital about the injured persons reaching hospital. The information recorded in the daily diary (Roznamcha) is Ex. P. 24. The S. IT. O. sent A, S. I. Raravilas (P. W. 8) to the hospital. Ramvilas went to the hospital and took the statement Ex. P. 1 of Hanuman Prasad Parihar admitted in the hospital at 10.15 P. M. Ram Vilas took. that statement to Police Station where formal F.I.R. Ex. P. 13 was chalked out on its basis. Thereafter S.H.O. Jaswant Singh (P.W. 10) went to the hospital. Hanurnan Prasad Modi was unconscious at that time. The S.H.O. then went to the site. It being night, investigation could not be made at the time and a constable was deputed to keep watch. In the same night Phusa Ram, Kishan Lal and Sanwaria were arrested. Modi Ram is said to have absconded and therefore, could be arrested after a long time on August 29, 19'/3 vide Ex. P. 23. On the next morning S.H.O. conducted the investigation at the spot and prepared the site plan Ex. P. 4 and site inspection memo Ex. P. 4A. The glass pieces of bottle were seized vide memo Ex. P. 6 Wooden cash box and registers and currency notes worth Rs. 894/- were taken in possession from the shop of Asha Ram vide memo Ex. P. 5. The articles were suspected to be smelling acid. The clothes of H. P. Parihar, and Arun Kumar were taken in possession. All the articles so seized were sent for chemical examination. The report of the Chemical Examiner Ex. P. 21 speaks of these clothes having extensive acid burns. The acid used was designated as nitric acid. 15. Upon completion of necessary investigation, charge sheet against Moda Ram and three others viz Phusa Ram, Kishan Lal and Sanwaria was presented in the Court of Additional Munsif Magistrate, Bikaner. The report of the Chemical Examiner Ex. P. 21 speaks of these clothes having extensive acid burns. The acid used was designated as nitric acid. 15. Upon completion of necessary investigation, charge sheet against Moda Ram and three others viz Phusa Ram, Kishan Lal and Sanwaria was presented in the Court of Additional Munsif Magistrate, Bikaner. The learned Magistrate committed all the accused to stand their trial in the Court of Sessions Judge, Bikaner. After hearing the arguments before charge, the learned Judge discharged Kishan Lal and Sanwaria. Moda Ram appellant was charge sheeted for the offences under sections 307, 326/and 324 I. P. C. whereas co-accused Phusa Ram was charged for the offences under sections 307/109, 326/112, 324/112 I.P.C. Both of them pleaded not guilty and claimed to be tried. Prosecution examined ten witnesses in all to substantiate its case. In their statements under section 313 Cr.P.C. the accused totally denied the allegations levelled against them. Moda Ram took the plea of alibi and stated that two or four days prior to the incident he had gone to Sambhar and Phulera and after ten days of the incident when he returned, he came to know about his being involved in the case. That, he suffered diarrhoea at Phulera and took treatment there. That, he got seized 150 bags of grain of Hanuman Prased Modi and his brother Devi Lal. That, he also got seized 8 bags of wheat when a truck of goods arrived at the shop of H. P. Modi. That H. P. Modi got released them after giving bribe and hatched enmity with him (Moda Ram). That, the witnesses were in collusion and had, therefore, concocted a false case against him. No defence witness was examined. The learned trial Judge did not find the prosecution case established against Phusa Ram and, therefore, acquitted him of the charges levelled against him. The evidence against Moda Ram was however believed by the learned trial Judge and he was convicted and sentenced as stated earlier. 16. The learned counsel for the appellant contended that all the injured persons were inimical to Moda Ram for the alleged previous incident and have therefore falsely implicated him in this case. 17. The evidence against Moda Ram was however believed by the learned trial Judge and he was convicted and sentenced as stated earlier. 16. The learned counsel for the appellant contended that all the injured persons were inimical to Moda Ram for the alleged previous incident and have therefore falsely implicated him in this case. 17. We have carefully looked into the statements of Hanuman Prasad Parihar (P. W. 1), Muralidhar (P. W. 2), Asha Ram (P.W. 4) Hanuman Prasad Modi (P. W. 5) and Arun Kumar (P.W. 6), All of them had sustained acid burns in the incident. All of them have categorically stated that it was Moda Ram who had reached the shop of Arun Kumar and thrown the liquid substance from the jug towards H.P. Modi which caused severe burns to him and others as well. All these I witnesses have been cross-examined at length but nothing could be extracted from them so as to shatter their testimony. There is no reason to disbelieve their version. 18. From the statement of H.P. Modi, it has been duly proved that Moda Ram had hatched enmity towards him for a long time because of his being Chairman of the `Khudra Vyapar Sangh'. His statement to this effect stands corroborated by Jaswant Singh (P.W. 10) who has proved Ex. P. 11. The S.H.O. also substantiated this contention. He has proved Ex. P. 11. the complaint filed by H. P, Modi against Moda Ram and Phusa Ram for the incident of June 16, 1973. After investigation the police filed the report that prima facie it appears to be the offence under section 393/358 I. P. C. From the statements of the injured witnesses, it has also come on record that Moda Ram, while pouring the liquid substance from the glass bottle inti the Jug and throwing it towards H. P. Modi, had exclaimed that he would do away with him that day. The learned counsel for the appellant could not convince us that there is any reason to disbelieve the cogent and convincing evidence appearing on record against the appellant. 19. In this view of the matter, there is no reason to interfere with the finding of the learned trial Judge that the above referred injured persons had received acid burn injuries at the hands of Moda Ram. 20. 19. In this view of the matter, there is no reason to interfere with the finding of the learned trial Judge that the above referred injured persons had received acid burn injuries at the hands of Moda Ram. 20. The learned counsel for the appellant next argued that even if the prosecution case is believed still the case under section 307 I. P. C. is not made out against the appellant for the injuries sustained by H. P. Modi. To substantiate his contention Mr. Arora referred to the statement of H.P. Parihar (P.W. 1) who has stated that Moda Ram on putting his foot on the `Chowki' told H. P. Modi "Aaj Tuje Jalakar Chhodunga". According to Mr. Arora this utterance indicates this intention of causing burns only to H. P. Modi and therefore, intention to commit murder cannot be attributed to the appellant. 21. The learned Public Prosecutor submitted that the term "Jala Kar Chhodunga" may very well be interpreted to end the life of the victim. In this regard statements of H. P. Modi (P.W. 5), Asha Ram (P. W. 4) and Arun Kumar (P.W. 6) carry importance. Asha Ram (P. W. 4) has stated that Moda Ram toll H. P. Modi "Saale Ko Maarke Chhodunga". H.P. Modi (P. W. 5) has stated the while throwing the liquid substance towards him Moda Ram shouted "Aaj Tuje Maar Ke Chhodunga" Arun Kumar has stated that while throwing the liquid substance towards his father Moda Ram uttered the words "Aaj Saale Ko Maar Ke Chhodunga". The witnesses have also stated that it was with a intention to cause the death of H. P. Modi that Moda Ram had thrown the liquid substance towards him. We, therefore, are in agreement with the learned trial Judge that the act was done by Moda Ram with an intention to commit the murder c H.P. Modi. 22. The learned counsel for the appellant next contended that so far as injuries of H. P. Modi are concerned, the case at the most may fall within the ambit of section 308 I. P. O. and not under section 307 I. P. C. Section 307 I. P. C. deals with the cases of attempt to murder. 22. The learned counsel for the appellant next contended that so far as injuries of H. P. Modi are concerned, the case at the most may fall within the ambit of section 308 I. P. O. and not under section 307 I. P. C. Section 307 I. P. C. deals with the cases of attempt to murder. A person is held guilty under this section when he does any act with such intention or knowledge and under such circumstances that if he b) that act causes death, he would be guilty of murder. "Murder" has been defined (II) section 300 I. P. C. If the act of a person falls within any of the four clauses of that section he is guilty of committing murder. If the act of the culprit falls within any of the five exceptions given in section 300 I. P. C. the case would be covered by the definition of culpable homicide not amounting to murder punishable under section 304 I.P.C. if any exception provided in section 300 I.P.C. is attracted and the death is not the result then alone the case may fall within section 308 I.P.C. The learned counsel for the appellant could not point out as to under which exception the act of the appellant falls. 23. The gravity of the offence is evident from the burns sustains by H.P. Modi. The argument of the learned counsel for the appellant that this wait not a fit case in which imprisonment for the life should have been awarded to the appellant for the offence of attempt to murder, has no force. We agree that it is only in exceptional circumstances that imprisonment for life should be awarded for an offence under section 307 I. P. C. The second part of section 307 I. P. C. provides that if hurt is caused to any person by the act referred to in the opening part of the section, the offender shall be liable either to imprisonment for life or to such punishment as referred to in the earlier part of the section. It is only when in cases of heinous type the life of the victim is saved by sheer chance, that imprisonment for life should be awarded for the offence under section 307 I. P. C. 24. It is only when in cases of heinous type the life of the victim is saved by sheer chance, that imprisonment for life should be awarded for the offence under section 307 I. P. C. 24. In order to arrive at a conclusion as to whether in the facts and circumstances of the case sentence for imprisonment for life is justified, the nature of the injuries sustained by H. P. Modi and the agony be had to undergo on account of those injuries will have to be taken into consideration. 25. While narrating the facts of the case we have mentioned the injuries sustained by H. P. Modi and others and their nature as noted by Doctor M. C. Maroo (P.W. 9) who had examined the victims on July 15, 1973. H.P. Modi (P. W. 5) has stated about his condition on account of the burns sustained by him. According to him he had lost his right ear, his nose and lips had disappeared. He had to undergo plastic surgery over his lips, nose and neck. That, his ear and part of the neck became permanently senseless. He permanently lost his left eye. He had also been deprived of movements of the wrists of both hands and the little finger of the right hand had taken permanent curve. At the time of his statement in the Court on June 20, 1974, he was still feeling burning sensation on the part of the chest where acid had fallen and that part had become hard like stone. Dr. R.N. Jhanjhi (P.W. 7) who had treated H. P. Modi for his injuries had supported his version. Dr. Jhanjhi was working as Reader in Surgery in P. B. M. Hospital, Bikaner where H. P. Modi (admitted as Indoor Patient in the Male Surgical Ward from July 15, 1973 up to October 19, 1973 and there after was shifted in Cottage Ward. Dr. Jhanjhi had examined H. P. Modi on the date of admission itself. According to the Doctor he had burns on face, neck, chest, right forearm, head, part of right thigh and right leg and lift forearm. In the opinion of the Doctor the burns could have been caused by acid nitric and sulphuric. As stated earlier, the clothes burnt in the incident by the acid were sent for Chemical examination. The Chemical Examiner opined as per report Ex. In the opinion of the Doctor the burns could have been caused by acid nitric and sulphuric. As stated earlier, the clothes burnt in the incident by the acid were sent for Chemical examination. The Chemical Examiner opined as per report Ex. P. 21 that all the clothes were having extensive acid burns and the acid used was strong nitric acid. 26. Dr. Jhajhi stated that extensive burns by nitric and sulphuric acid are dangerous to life. According to him the cumulative effect of the burns sustained by H. P. Modi would have caused death by shock and complications like toxaemia, infection, respiratory complications. He has also stated that the patient could not see at all at that time and was restless. That, he had fever for several days which could not be controlled by most of the antibiotics. That while in hospital his B. P. had fallen to 92/70. Fever rose up to 103 Degrees. Pulse rate was high. According to the Doctor, he felt necessity of operation and operated 'H. P. Modi on October 19, 1973. He was operated for skin grafting and ectropion correction. He was operated upon second time on October 15, 1973 by Dr. Jhanjhi for skin grafting and tarsorraphy. According to the Doctor patient could not see and write and, therefore, even consent for operation had taken from the relatives intimating them the risk involved in it. In the opinion of the Doctor because of his low condition the anaesthetic and operative trauma could have been dangerous to his life but operation was at the same time necessary. The Doctor further stated that the condition of the patient was such that without medical aid patient could not have survived. Dr. Jhanjhi after looking at the patient in the Court stated that plastic surgery had been made on eyes, lips, neck and nose. Regarding the permanent disfiguration and loss of organs, the Doctor stated at the trial as under: "There is complete loss of the right ear and there is permanent disfiguration of the face. In both the wrist joints there is keloid formation with contracture. Because of such deformity, he cannot have a normal function of the wrist joints. There is a limitation of the movement of the chest wall. There is marked deformity in the eye lids of the eyes. In both the wrist joints there is keloid formation with contracture. Because of such deformity, he cannot have a normal function of the wrist joints. There is a limitation of the movement of the chest wall. There is marked deformity in the eye lids of the eyes. There is marked deformity of the right angle of the mouth and both the nostrils are stenosed. There is deformity of the scalp." The Doctor also proved the Bed Head Ticket of the patient and stated that1 he was discharged from the hospital on November 3, 1973.From the above discussion, in the light of the statement of H. P. Modi and the opinion of the Doctor treating him, it is evident that the burns sustained by H. P. Modi were very severe. There was every possibility of his life coming to an end on account of those burns. Though he had survived, the permanent disfiguration, loss of eye etc. have caused him permanent torture. It would not be wrong to say that the life had not remained worth living for H. P. Modi. This being the position, the learned trial Judge in our opinion has rightly exercised the discretion in imposing imprisonment for life to the appellant. 27. The learned counsel for the complainant stated that Moda Ram was a previous convict and had undergone sentence for imprisonment for life, and therefore, as provided in section 307 I. P. C., he should have been punished with death. The relevant provision in section 307 I. P. C. for sentence for attempt to commit murder by life convict reads as under: "When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. 28. There is no dispute on the point that Moda Ram appellant was a previous convict when the offence under section 307 I.P.C. was committed by him. H. P. Modi has stated that in 1956,57 Moda Ram was sentenced to imprisonment for life in connection with the murder of Megh Raj Murlia. He further stated that the appeal filed in that case by the accused was rejected by the High Court. The copy of that judgment is Ex. P. 8 He also proved Ex. P. 9 and Ex. P. 10 copies of the warrants showing that Moda Ram has suffered that sentence. Moda Ram hat also admitted that fact. 29. He further stated that the appeal filed in that case by the accused was rejected by the High Court. The copy of that judgment is Ex. P. 8 He also proved Ex. P. 9 and Ex. P. 10 copies of the warrants showing that Moda Ram has suffered that sentence. Moda Ram hat also admitted that fact. 29. The point emerging for determination is whether the aforesaid provisions of section 307 I.P.C. are mandatory in nature or discretionary. The word: used in the aforesaid provision is `may' and therefore it is not always obligatory for the Court to award death punishment in the cases where the person offending under section 307 I.P.C. is sentenced to imprisonment for life. 30. The trend of legislature for awarding extreme penalty of death ever for the offence of murder has undergone a serious change and it is only in rarest of rare cases that capital punishment is awarded to the culprits in murder cases. Apart from it, the term used in section 307 I.P.C. in the aforesaid provision (II) "When any person offending under this section is under sentence of imprisonment for life. The appellant was not under sentence of imprisonment for life at the time of the commission of the crime concerning the cases on hand. He had already suffered that sentence. Guidance in this connection may be taken from the principles enunciated in the case of Shaik Abdul Azeez v. State of Karnataka, AIR 1677 S.C. 1485 . The pointed involvement in the case was the interpretation of the `term' being under sentence of imprisonment for life' appearing in section 303 I.P.C. Their Lordships notice the distinction between section 75 I.P.C. and section 303 I.P.C. and were pleased to observe that as in the case of section 75 I.P.C., section 303 I.P.C. does not contemplate a mere enhanced punishment for a convict with a past criminal history of the same offence. Their Lordships were of the opinion that section 303 I.P.C. creates a most aggravated form of offence when committed by a person under sentence imprisonment for life to be punished only with death, the maximum penalty under the law. Their Lordships were of the opinion that section 303 I.P.C. creates a most aggravated form of offence when committed by a person under sentence imprisonment for life to be punished only with death, the maximum penalty under the law. However, according to their Lordships a person must be actually and irrevocably a lifer, beyond the pale of judicial controversy at the time of commission of the second offence of murder to be visited with the penalty of death under section 303 I.P.C. It was further observed that if the sentence of a convict had already been remitted at the time of commission of the second murder he would cease to be an actual lifer to come within the lethal clamp of section 393 I.P.C. The principle inundated in the case, therefore, was that if the accused is not actually undergoing I the sentence of imprisonment for life at the time of the commission of the second offence, provisions of section 303 I.P.C. are not attracted. The Provisions of section 1 303 I.P.C. are mandatory while those of section 307 I P.C. in this regard are discretionary. Apart from it, even according to the principle propounded in the ^aforesaid decision of the Supreme Court, the appellant Moda Ram was not a lifer at the time of the commission of the offence under section 307 I.P C. and, therefore the provisions of second part of section 307 I.P.C, were not attracted. In this view of the matter there is no illegality or impropriety on the part of the learned trial Judge in not awarding death sentence to Moda Ram. 31. As a result of the above discussion, the appeal filed by Moda Ram and the revision petition filed by the complainant, both have no merits and are thereby dismissed. Appellant Moda Ram is on bail. His bail bonds are cancelled. The Chief Judicial Magistrate, Bikaner is directed to issue warrant of arrest against Moda Ram appellant to effect his arrest and sent him to Jail to undergo the sentence awarded to him by the trial Court,Appeal and Revision dismissed. *******