JUDGMENT (1) HAVING ruthlessly assaulted Manak with a sword, having been convicted for offence under Section 307 IPC, having been sentenced to ten years of rigorous imprisonment, having been fined Rs.5,000/- and having been directed to serve a further period of three months of rigorous imprisonment in default therein, and having been convicted for offences under Sections 324, 323, 341 and 427 IPC and having been sentenced to different terms of imprisonment, the appellant has sought mercy from this Court by filing this appeal against the judgment dated 23.7.2008, passed by the Additional Sessions Judge (Fast Track) Nd.1, Jaipur District Jaipur. (2) BRIEFLY the facts of the case are that on 10.12.2006, one Arvind Puri (PW-3) submitted a written report to Om Prakash, ASI (PW-5) at 2:05 a.m. at 2 DE ward of SMS Hospital, Jaipur. According to the complainant, on 09.12.2006, at 9 o'clock at night, he along with Ravi Bhati, Rajesh Sharma, Manak Sharma, Narendra Singh had gone to attend the reception of Ajay Meena's brother, Sanjay Meena, behind the Le Meridian Hotel at Kukas near Jaipur. When they were returning from the reception in their Maruti car, a Qaulis car sped beyond their car and stopped in front. From the back, a Gypsy, being driven by Pooran Meena, the appellant herein, came and collided with the Maruti car. Pooran Meena, Jimmy, Chuchu, Mahesh Saini, Dinesh Vijayvargiya alighted from two cars and pulled the complainant and his companions out of the Maruti car. According to the complainant, the assailants were armed with sword, iron rod, and revolver. Pooran Meena had a sword in his hand, while Jimmy had a revolver in his hand, and Chuchu had an iron rod (Sariya) in his hand. The assailants segregated the party; while Jimmy kept most of the party away from Manak, Manak was separated from the party. The complainant further alleged that Pooran assaulted Manak with a sword on his left hand, on his left thigh, on his neck, on his right hand, on the left side of the stomach. Thinking that Manak had died, they kicked his body and threw him on the side. He further alleged that Jimmy not only took Rs.4,000/-, but also took away the gold chain from Manak. He further alleged that both Chuchu and Jimmy assaulted the rest of the party whereby Ravi Bhati suffered injuries on his hand. Thinking that Manak had died, they kicked his body and threw him on the side. He further alleged that Jimmy not only took Rs.4,000/-, but also took away the gold chain from Manak. He further alleged that both Chuchu and Jimmy assaulted the rest of the party whereby Ravi Bhati suffered injuries on his hand. Lastly, he alleged that one of the assailants, who were running away, threatened the party that in case they were to depose against them, they would meet the same fate as Manak. On the basis of the said report, a FIR, FIR No.548/2006, was chalked out for offences under Sections 143, 427, 323, 341, 307, 379 IPC; the investigation commenced. After a thorough investigation, the police submitted charge-sheet only against three persons, namely the present appellant, Pooran Singh, Vinay Pal Singh alias Jimmy and Chandan Singh Sekhawat alias Gajju for offences under Sections 147, 323, 341, 326, 307, 427 IPC. However, during the course of charge arguments, the learned trial court discharged Chandan Singh of all the offences and continued the trial only against Vinay Pal Singh and the present appellant. In order to buttress its case, the prosecution examined nine witnesses and submitted twenty nine documents. The defence examined two witnesses and submitted seven documents. After going through the oral and documentary evidence, the learned trial court acquitted Vinay Pal Singh of all the offences except for offence under Section 341 IPC and imposed a fine of Rs.500/- upon him. It further directed that in case the fine of Rs.500/- could not be paid, then Vinay Pal Singh was to undergo one month of simple imprisonment. Meanwhile, it convicted the present appellant for offence under Sections 307 and sentenced him as aforementioned. It also convicted him for offence under Section 324 and sentenced him to one year of rigorous imprisonment, for offence under Section 323, and sentenced to six months of simple imprisonment, for offence under Section 341, he was imposed with the fine of Rs.500/-and in default thereof to undergo one month simple imprisonment. Lastly, he was convicted for offence under Section 427 and was sentenced to three months simple imprisonment. Hence, this appeal before this Court. (3) MR. Lastly, he was convicted for offence under Section 427 and was sentenced to three months simple imprisonment. Hence, this appeal before this Court. (3) MR. Suresh Sahni, the learned counsel for the appellant, has raised the following contentions before this Court : firstly, it is a case of over implication as the complainant had implicated seven persons by name in the FIR. However, after a thorough investigation, the Police had filed the charge-sheet only against three persons. Moreover, after hearing the arguments for the charges, the learned trial court had discharged one of the accused- persons. Furthermore, the learned trial court had acquitted the other co-accused for all the offences except for offence under Section 341 IPC. This clearly proves that people have been implicated falsely in the present case. (4) SECONDLY, according to Om Prakash, ASI (PW-5), when Manak was assaulted, a person had rushed into the Police Station and informed the Police that Manak and others were being assaulted. The person had requested for the Police for help. According to the learned counsel, this information should have been recorded as the First Information Report. The Investigating Agency has not recorded the said information as the FIR, and in fact, has suppressed the information from the perusal of the trial court. Thirdly, relying on the case of Tori Singh and Anr. v. State of Uttar Pradesh [ AIR 1962 SC 399 ] : (1962 (1) Cri LJ 469), the learned counsel has contended that in case the site plan is prepared at the instance of the prosecution witnesses, then the site plan is not admissible in evidence as it is hit by Section 162 Cr.P.C. Moreover, according to Section 7 of the Evidence Act, the Investigating Officer is duty bound to go to the scene of the crime by himself and to record in the site plan exactly what he saw at the scene of the occurrence. Since in the present case, the Investigating Officer was accompanied by the prosecution witnesses, while preparing the site plan, Section 7 of the Evidence Act has been grossly and crassly violated. (5) FOURTHLY, according to the learned counsel, while intent professes the state of mind, motive forms the action. The motive as spelt out by the prosecution is too weak, for it to generate sufficient intention to kill Manak. Therefore, the intention to kill Manak is conspicuously missing. (5) FOURTHLY, according to the learned counsel, while intent professes the state of mind, motive forms the action. The motive as spelt out by the prosecution is too weak, for it to generate sufficient intention to kill Manak. Therefore, the intention to kill Manak is conspicuously missing. (6) FIFTHLY, according to the site plan (Ex- P/8), the place of occurrence is behind Le Meridian Hotel and in front of the Erickson Company Office. However, the said site plan belies the testimonies of the prosecution witnesses as it is difficult to reconcile the testimonies of the prosecution witnesses with the said site plan. Moreover, both according to the site plan and according to I.O., no blood was discovered at the scene of the crime, although both according to Manak (PW-1) and Arvind Puri (PW-3), the appellant had brutally assaulted Manak with, a sword. Thus, a grave doubt is created about the genuineness of the prosecution case. Sixthly, in the alternative, the learned counsel has submitted that the case would not travel beyond Section 326 IPC, as the case falls in the eighth category contained in Section 320 IPC, which defines the words "grievous hurt". Moreover, according to Dr. Sanjay Pareek (PW-6), who saw Manak, "injury No.1 would have been dangerous to life in case Manak had not received any medical assistance". According to the learned counsel, since Manak had received medical assistance and has survived, obviously, the said injury is "not dangerous to life". (7) LASTLY, according to the learned counsel, a sentence of ten years is too severe and is disproportionate to the alleged offence committed by the appellant. Since the appellant has already undergone a sentence of six years, including remission, the sentence ought to be reduced to the period undergone by the appellant. (8) ON the other hand, Mr. Rinesh Gupta, the learned counsel for the complainant, has vociferously contended that it is only due to a very fair investigation that other named co- accused persons were not charge-sheeted by the Police. Since the Investigation Agency was convinced that the appellant had committed the offence under different provisions of IPC, it had filed the charge-sheet against him. Secondly, Manak (PW-1) has graphically described the attack upon him by the appellant. It is highly unlikely that the injured would let go of the real culprits, and would falsely implicate the appellant. Since the Investigation Agency was convinced that the appellant had committed the offence under different provisions of IPC, it had filed the charge-sheet against him. Secondly, Manak (PW-1) has graphically described the attack upon him by the appellant. It is highly unlikely that the injured would let go of the real culprits, and would falsely implicate the appellant. Moreover, the prosecution has clearly established the motive for the brutal attack in the dead of the night. According to the prosecution, the injured had testified against the appellant and his gang in another case. Therefore in order to wreak personal vengeance upon him, Manak was mercilessly assaulted. (9) THIRDLY, according to the learned counsel, a bare perusal of the testimony of Om Prakash, ASI (PW-5), clearly reveals that a sketchy information Was given to the Police. The said information was not sufficient, as the person rushed into the Police Station, and had merely sought the intervention of the Police at the scene of the crime. Moreover, merely because thePolice had failed to record the said information as a FIR, the omission on the part of the Investigation Agency cannot come to the rescue of the accused-persons. It is only when a detailed report was given by Arvind Puri (PW-3) that the Police had decided to register the said report as the FIR. (10) FOURTHLY, according to the learned counsel, Manak's testimony is fully corroborated by his injury report (Ex-P/13) and by his operation notes (Ex-P/10A). According to the injury report, he had suffered perforation wound on the stomach, incised wound posterior-later aspect of left thigh, another incised wound on anterior lacerated aspect of left thigh, incised wound on the neck and another incised wound on the upper one-third of the neck. These injuries have been proven by Dr. Sanjay Pareek (PW-6). According to the learned counsel, from the nature of the injuries, the intention of the accused can be inferred. Therefore, the requisite intention for offence under Section 307 IPC is clearly established. Fifthly, according to the learned counsel, a distinction has to be drawn between Section 326 and Section 307 IPC. For the purpose of Section 307 IPC the "circumstances of the case" have to be examined. For, the words "in such circumstances" are present in Section 307 IPC, but are conspicuously missing from Section 326 IPC. Fifthly, according to the learned counsel, a distinction has to be drawn between Section 326 and Section 307 IPC. For the purpose of Section 307 IPC the "circumstances of the case" have to be examined. For, the words "in such circumstances" are present in Section 307 IPC, but are conspicuously missing from Section 326 IPC. Considering the fact that Manak was mercilessly assaulted with a sword at the dead of the night, considering the fact that the assailants had intercepted Manak's car, considering the fact that the appellant was carrying a deadly weapon like sword with him, considering the fact that the appellant had repeatedly assaulted and had dissected Manak's body, his intention to kill him is writ large. Therefore, the appellant was rightly acquitted of offence under Section 326 IPC and was legally convicted for offence under Section 307 IPC. (11) LASTLY, the learned counsel has contended that according to the prosecution evidence, the appellant belongs to a criminal gang. Anti-social elements likely the appellant deserve to be punished in the harshest terms, as they continue to pose a danger to the peace and tranquility of the society at large. When such persons are convicted, the society demands that justice should be done and such persons should be required to undergo their complete sentence. Such a demand is raised not only by the retributive theory of punishment, but is also raised by the deterrent theory of punishment. In case, any mercy is shown to the appellant and in case his sentence were reduced to as undergone, the society's sense of justice would be shaken. In such a scenario, the faith of the people would be undermined in the judiciary. (12) MR. Javed Chaudhary, the learned Public Prosecutor, has echoed and adopted the arguments of MR. Rajnish Gupta. Heard the learned counsel for the parties, perused the record, and examined the impugned judgment. (13) MANAK (PW-1) tells the Court that on 09.12.2006, around 9:00 p.m., he and his friends Arvind Puri, Narendra Singh, Ravi Bhati and Rajesh Sharma had gone, in a Maruti car, to attend the reception of Sanjay Meena behind the Le Meridian Hotel at Amer Road. He further narrates that around 10:30 p.m., as they were returning from the said reception, his car was overtaken by a white Qualis car, being driven by Vijay Pal Singh alias Jimmy. He further narrates that around 10:30 p.m., as they were returning from the said reception, his car was overtaken by a white Qualis car, being driven by Vijay Pal Singh alias Jimmy. After barely scrapping his car, Qualis car stopped in front of the Maruti car. From the back, a black Gypsy, being driven by Pooran Meena, came and hit the Maruti car. Subsequently, Vinay Pal and four and five other persons and Pooran Meena along with four and five other persons came out of their respective vehicles. Out of these persons, he knew Dharmendra Singh alias Chuchu, Mahesh Saini and Dinesh Vijayvargiya. As soon as these people surrounded his car, they pulled out the passengers from the car. While, Vinay Pal alias Jimmy held up the rest of the party with the help of his revolver, Pooran attacked him with a sword. Pooran caused injuries on his left leg, left hand, on his stomach, on his chest, neck and the fingers of the right hand. Taking him to be dead, they kicked his body; before running away from the place of the occurrence, Jimmy took out Rs.4,000/- from his pocket and snatched his gold chain. He further states that he was attacked by Pooran as he had testified against him in another case of offence under Section 307 IPC. His testimony has not been shaken in the cross-examination. In fact, his testimony has further been corroborated by his injury report (ExP/13) and by his operation notes (Ex-P/10A). (14) ACCORDING to the operation notes (Ex- P/10A), there was 4x1 cm stab wound present in the left side of abdomen besides the other injuries noted in the injury report (Ex-P/13). While Dr. Sanjay Pareek (P.W.6) has proven the injury report, Dr. Subhash Chandra Dutt (P.W.4) has proven the operation notes. ACCORDING to Dr.Subhash Chandra Dutt (P.W.4), left of the umbilicus, there was a stab wound. When he opened the stomach, he found free fluid therein. He also discovered that the small intestine was cut. Parts of the intestine, which were cut, were stitched together. ACCORDING to him, it was a major operation. Moreover, according to him, the said injury was sufficient in the ordinary course of nature to cause Manak's death. The same opinion has also been given by Dr. Sanjay Pareek (P.W.6). Thus, Manak's testimony has been corroborated amply by the injury report and by the operation notes. ACCORDING to him, it was a major operation. Moreover, according to him, the said injury was sufficient in the ordinary course of nature to cause Manak's death. The same opinion has also been given by Dr. Sanjay Pareek (P.W.6). Thus, Manak's testimony has been corroborated amply by the injury report and by the operation notes. Although, it is true that the charge- sheet was filed only against three persons, but as far as the present appellant is concerned, his case cannot be deemed to be a case of over implication. For, from the very beginning, the prosecution case is consistently against the present appellant. Both, according to Arvind Puri (PW-3) and Manak (PW-1) and according to another eye-witness, namely, Dinesh Agrawal (PW-2), the appellant had assaulted the injured with a sword. Therefore, as far as the present appellant is concerned, a consistent story has been narrated by the prosecution. Moreover, having suffered a large number of injuries, which had endangered his life, it is highly unlikely that Manak would let go of the real culprits and would falsely implicate the appellant. Therefore, the contention that it is a case of over implication and there is a possibility of false implication of the appellant is unaccepted. (15) ALTHOUGH, it is true that Om Prakash, ASI (PW-5), in his examination-in-chief, claims that one person had rushed into the police station and informed the police that he and his party is being attacked and one of them is severely injured, such an information was too sketchy for the police to record. Moreover, once a person has rushed into the police station seeking the police intervention, the police was duty bound to rush to the rescue of the victims. This is precisely what Om Prakash did. It is only when the police reached the SMS Hospital that Arvind Puri (PW-3) gave a detailed report (Ex-P/7) to the police. Thus, the police was justified in treating the report as the First Information Report. Furthermore, since the first sketchy information received by the police was not recorded, the contention that the Investigation Agency is withholding the material documents is baseless. Further, the omission on the part of the police in not recording the information cannot be used to the advantage of the accused. Furthermore, since the first sketchy information received by the police was not recorded, the contention that the Investigation Agency is withholding the material documents is baseless. Further, the omission on the part of the police in not recording the information cannot be used to the advantage of the accused. For, in catena of the cases, the Hon'ble Supreme Court has held that an omission, committed by the Investigating Agency, does not come to the rescue of the accused-person. Therefore, the contention of the learned counsel for the appellant is without any merit. (16) AS far as the change in the place of occurrence is concerned, the said contention is equally unacceptable. According to Arvind Puri (PW-3), the incident had occurred one kilometer from the place of reception. According to Anil Doriya (PW-8), he had drawn the site plan in accordance with what was stated by Anand Puri (PW-3) and Ravi Bhati. He tells the court that he was told by Arvind Puri (PW-3) that the incident had taken about 100 and 50 meters away from the back of the Le Meridian Hotel, and about 50 meters away from the Erickson factory. A bare perusal of the site plan (Ex-P/8) clearly reveals that this is exactly what has been recorded in the site plan. Merely because no blood was discovered at the scene of the crime, it would not dilute the case of the prosecution. Therefore, the contention that the place of occurrence has been changed is without any basis. According to Manak (PW-1), the appellant had assaulted him as he testified against the appellant in another case of offence under Section 307 IPC. He further states that in the same case, Rakesh Saini, who had also testified against the appellant, was also assaulted by the appellant. Thus, the motive for assaulting Manak has been revealed by the prosecution. Whether the motive is so weak, as to create the intention to kill Manak, is a separate question. He further states that in the same case, Rakesh Saini, who had also testified against the appellant, was also assaulted by the appellant. Thus, the motive for assaulting Manak has been revealed by the prosecution. Whether the motive is so weak, as to create the intention to kill Manak, is a separate question. In the case of Pulicherla Nagaraju v. State of A.P. [ (2006) 11 SCC 444 ] : ( AIR 2006 SC 3010 : 2006 Cri LJ 3899), the Hon'ble Supreme Court has observed that "The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v)whether the act was in the course of sudden quarrel or sudden fight or free for all fight ; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.". The said view has recently been reiterated in the case of Mangesh v. State of Maharashtra [ (2011) 2 SCC 123 ] : ( AIR 2011 SC 637 : 2011 Cri LJ 1166). (17) ACCORDING to the prosecution, at the dead of the night, while Manak was travelling with his friends, the Maruti car was intercepted by two vehicles. One of which was driven by the appellant. The appellant was carrying a deadly weapon - a sword - along with him. ACCORDING to the prosecution witnesses, Manak was separated from the rest of his friends. One of which was driven by the appellant. The appellant was carrying a deadly weapon - a sword - along with him. ACCORDING to the prosecution witnesses, Manak was separated from the rest of his friends. While others were kept at bay, the appellant mercilessly assaulted Manak with a sword at different parts of his body including his stomach, a vital part of the body. The sword was not only thrust into the stomach, but according to Manak, it was twisted. Consequently, his small intestine came out. ACCORDING to Dr. Subhash Chandra Dutt (PW-4), when Manak was operated upon, it was discovered that his intestine had been cut and needed to be stitched. It is not as though Manak was assaulted due to grave and sudden provocation or in the heat of passion. Considering the fact that the appellant had come along with other companions armed with deadly weapons, considering the fact that he had caused injuries on a vital part of the body, considering the fact that he had separated the victim from his protector, considering the fact that a number of injuries were caused, the intention to kill is, indeed, writ large in the present case. (18) SECTION 307 IPC reads as under : SECTION 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 is a desert place. A has committed the offence defined by this section, though the death of the child does not ensure. (b) A, with the intention of causing the death of a child of tender years, exposes it is a desert place. A has committed the offence defined by this section, though the death of the child does not ensure. (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 defined in this section. A places the food on Z' s table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section. Section 326 IPC reads as under : Section 326. Voluntarily causing grievous hurt by dangerous weapons or means : Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (19) A bare perusal of these two provisions clearly reveals that while Section 307 IPC uses the words "under such circumstances", these words are conspicuously missing from Section 326 IPC. Therefore, while deciding whether the case falls under Section 307 IPC or under Section 326 IPC, the Court must necessarily examine the circumstances in which the assault was made. (19) A bare perusal of these two provisions clearly reveals that while Section 307 IPC uses the words "under such circumstances", these words are conspicuously missing from Section 326 IPC. Therefore, while deciding whether the case falls under Section 307 IPC or under Section 326 IPC, the Court must necessarily examine the circumstances in which the assault was made. Considering the fact that the assault was made after some premeditation and pre-planning, considering the fact that assault was carried out in the dead of the night, considering, the nature of the weapon used, nature of the injuries caused, obviously, the present case falls under the ambit of Section 307 IPC. and not under Section 326 IPC. Therefore the learned trial court was certainly justifted in acquitting the appellant for offence under Section 326 IPC I and in convicting him for offence under Section 307 IPC. (20) THERE are different theories of punishment prevalent in the country : from the retributive to the deterrent to the reformative theory. Since a crime is an offence against the society, the society has a right to demand that the culprit be punished in accordance with law. The society also expects that its fragile existence would be protected from the anti-social activities of the culprit. THEREfore, the society's sense of justice demands and dictates that the culprit be required to undergo his entire sentence. A pre-planned, brutal attack perpetuated by the appellant, that, too, to wreck personal vengeance on Manak for his testifying against him, calls for both a deterrent and a retributive punishment. In case any sympathy were to be shown by this Court by reducing the sentence as already undergone, it would not only shock the conscience of the society, but most importantly it will motivate others to carry out a similar dastardly act. Those who take the law in their own hands, those who prevent witnesses from testifying against them, those who ruthlessly assault a person in the silence of the night, after pre-meditation and pre-planning, such persons do not deserve the mercy of this Court. For the reasons stated above, this appeal is devoid of any merit. It is, hereby, dismissed. Appeal dismissed.