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Rajasthan High Court · body

2018 DIGILAW 1508 (RAJ)

Surendra Panwar v. State of Rajasthan

2018-07-17

MANOJ KUMAR GARG

body2018
JUDGMENT Manoj Kumar Garg, J. - Instant criminal revision petition has been filed under Sections 397 and 401 Cr.P.C. against the order dated 6.7.2016 passed by the learned Additional District and Sessions Judge No. 2, Nagaur in Sessions Case No. 319/2005 (35/2016) by which the learned Judged ordered to frame charges against the petitioner for offences under Sections 323, 307 and 504 I.P.C. 2. Brief facts of the case are that on 13.6.2015, Manju Baagmaar W/o Rugha Ram submitted a written report before the Police Station Sadar, Nagaur in which she has mentioned that she went to her sister-in-law's house on account of some death. At about 10:15 P.M., accused Surendra came there using abusive language and demanded money. When she refused to pay the same, the accused caught hold of the complainant's neck. At that time her husband and other family members intervened and saved her. Thereafter, the accused came with a lathi and tried to hit her but she was saved by the family members. The accused then went away from the spot threatening of dire consequences. 3. On this report, the police registered a case and started investigation. After due investigation, the police filed challan against the present petitioner for the offence under Sections 307, 384, 504 and 323 I.P.C. Thereafter, the case was committed for trial in the Court of Additional Sessions Judge No. 2, Nagaur where the learned Trial Court framed the charges against the present petitioner for the offence under Sections 307, 504, 323 I.P.C. Hence, this present revision petition. 4. Learned Counsel for the petitioner argued that no offence under Section 307 I.P.C. is made out against the petitioner as the complainant did not receive any injury nor any injury report was prepared. As per the statement of the complainant, an attempt was made by the petitioner but no injury was received by the complainant. Other witnesses have also stated that the accused came and used abusive language and tried to inflict injury but no injury was received by the complainant. Therefore, the Trial Court has committed an error in framing charge for offence under Section 307 I.P.C. Learned Counsel for the petitioner placed reliance on the decision of Guahati High Court in the case of Jhumarmal Dudharia v. Mangalal Dhada and others reported in 1976 Cri.L.J. 1355 . 5. Therefore, the Trial Court has committed an error in framing charge for offence under Section 307 I.P.C. Learned Counsel for the petitioner placed reliance on the decision of Guahati High Court in the case of Jhumarmal Dudharia v. Mangalal Dhada and others reported in 1976 Cri.L.J. 1355 . 5. Per contra, learned Public Prosecutor and learned Counsel for the respondent argued that the petitioner had caught hold of the complainant's neck and wanted to cause bodily injury to the complainant, therefore, the Trial Court has not committed any error in framing charge for offence under Section 307 I.P.C. and all other questions raised with regard to the present case are to be considered by the learned Trial Court at the appropriate stage. Further it is settled proposition of law that at the stage of framing of charge, the scope of powers conferred under Section 397 Cr.P.C. is very limited. The Counsel for the complainant has placed reliance on judgment of Hon'ble Apex Court in the case of Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460 . 6. I have thoughtfully considered the arguments advanced on behalf of the parties and perused the material available on record. 7. From the perusal of documents on record, it is evident that the complainant has stated that the accused caught hold of the neck of the complainant but since other persons came to her rescue, the accused ran away from the place. As per the statement of the witnesses, the accused although wanted to inflict injury upon the complainant but no injury was received by the complainant. 8. Section 307 of the I.P.C. titled as "Attempt to murder" 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 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." Section 307 of I.P.C., requires the commission of an overt act with intention or knowledge that if his act had caused death it would amount to murder. The second part of Section 307 of I.P.C. prescribes punishment, if hurt is caused. 9. Hon'ble Apex Court in the case of Parsuram Pandey & Ors. v. State of Bihar, (2004) 13 SCC 189 has held as under: "To constitute an offence under Section 307 two ingredients of the offence must be present:- (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon, used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place." 10. In Guahati High Court in a similar case of Jhumarmal Dudharia (supra) has held as under: "In my view while considering as to whether the essential ingredients of the offence under Section 307, Indian Penal Code has been established or not, the Court is bound to consider the evidence to find out as to whether the prosecution has been able to establish the intention or knowledge as contemplated under the said section. He has also to consider the nature of the act, namely, as to whether the act was so imminently dangerous that it must in all probability cause (a) death or (b) such bodily injury as is likely to cause death." 11. He has also to consider the nature of the act, namely, as to whether the act was so imminently dangerous that it must in all probability cause (a) death or (b) such bodily injury as is likely to cause death." 11. Thus, the intention of or knowledge relating to the commission of murder and the doing of an act towards it, are the two ingredients of the offence under Section 307 of the Indian Penal Code, and the intention is inferred from various considerations i.e. the nature of the weapon, the part of the body chosen for inflicting injuries and the nature of injuries and the circumstances in which incident took place. Since the two ingredients necessary for attracting Section 307 I.P.C. are missing, therefore, the learned Trial Court has committed an error in framing charge for offence under Section 307 I.P.C. As far as the judgment in the case of Amit Kapoor (supra) relied upon by the complainant is concerned, the case related to offence under Section 306 I.P.C. on different set of facts in which the Hon'ble Apex Court held that from the record, the ingredients of Section 306 I.P.C. appears to exist in the case in terms of language of Section 228 of the Code, subject to trial and abetment by the accused cannot be ruled out at that stage whereas, in the present case, from the statement of witnesses it has come on record that the accused although wanted to inflict injury upon the complainant but no injury was caused to the complainant, therefore, the intention or knowledge relating to the commission of murder is missing. 12. Accordingly, the revision petition is partly allowed and the order dated 6.7.2016 passed by the learned Additional District and Sessions Judge No. 2, Nagaur in Sessions Case No. 319/2015 to the extent of framing charge for offence under Section 307 I.P.C. is set aside. The learned Court below shall pass appropriate order for transferring the case to the concerned Judicial Magistrate under Section 228 Cr.P.C. for trial in accordance with law. The record of the Trial Court be sent back forthwith.