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2018 DIGILAW 692 (JK)

Showkat Hussain v. State of JK

2018-09-07

M.K.HANJURA

body2018
JUDGMENT : 1. This Criminal revision is directed against the order dated 18th of May, 2012, passed by the Court of the learned Sessions Judge, Poonch, in file No. 58/SESSIONS, titled ‘State v. Nazir Hussain & Ors.’, whereby the accused have been discharged for the commission of an offence punishable under Section 307 of the Ranbir Penal Code (RPC). 2. The petitioner has challenged the order impugned on the grounds, inter alia, that after the investigation of the case in FIR No.173/2010, registered against the respondent Nos. 2 to 8 herein this petition, a charge sheet in terms of Section 173(2) Cr. P.C. was laid against them for the commission of offences punishable under Sections 307/325/323/324/427 of the Ranbir Penal Code (RPC), before the Court of learned Chief Judicial Magistrate, Surankote, which landed into the Court of learned Sessions Judge, Poonch, by an order of committal. The learned Sessions Judge discharged the accused for the commission of an offence punishable under Section 307 of the Ranbir Penal Code (RPC) and sent the case for trial to the learned Judicial Magistrate, Surankote, on the ground that the other offences are triable by the Court of Judicial Magistrate. The petitioner has stated that the said order is liable to be set aside as it is specifically mentioned in the charge sheet that a group of persons, including the accused, armed with sticks and Trowels (Rambis) trespassed into the house of the petitioner and they, in furtherance of a common intention, started beating the petitioner, his wife and his father in law. It is also stated that the order of discharge is bad, perverse and cannot withstand the scrutiny of the law. 3. Heard and considered. 4. What requires to be stated, at the first blush, is that the learned Deputy Advocate General, representing the State, has stated that the impugned order of the discharge, as passed by the learned Sessions Court, is neither based on facts nor does the law support it. To understand the import of this order in the right perspective, it will be expedient to refer to the relevant excerpts of the order passed by the learned Sessions Judge and these read as under: “13. The intention always precedes the act and seldom direct evidence is available to prove the intention. To understand the import of this order in the right perspective, it will be expedient to refer to the relevant excerpts of the order passed by the learned Sessions Judge and these read as under: “13. The intention always precedes the act and seldom direct evidence is available to prove the intention. Intention of the accused while committing assault can be gatherable only from the nature of the weapon used, the force applied at the time of causing injuries and the actually inflicted on the victim. Where the nature of the injuries given by the doctor allegedly caused by deadly weapon is simple in nature, the intention to cause death, cannot be attributed to the accused at the relevant time particularly when none of the injuries were found to be sufficient in the ordinary course of nature to cause the death of the victim. The weapon used, the part of the body aimed at and the violence of the blow may all lead to the inference relating to the intention of the accused at that time. The act, which would amount to an attempt under this section, must be one capable of causing death. 14. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of 'attempt to murder'. Under Section 307 RPC the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and merely from the consequences that ensue. 15. Apart from this, the doctor has nowhere declared in his certificate that the injury inflicted on the person of complainant is found to be dangerous to life. It is well settled proposition of law that if none of the injuries on the person of the victim either singly or cumulatively or found dangerous to life, the requirements of Section 307/RPC are not fulfilled and no prima facie offence under Section 307/RPC is made out. 16. It is well settled proposition of law that if none of the injuries on the person of the victim either singly or cumulatively or found dangerous to life, the requirements of Section 307/RPC are not fulfilled and no prima facie offence under Section 307/RPC is made out. 16. Reference may be made to Sarju Prasad v/s State of Bihar, AIR 1965 SC 843 wherein it has been held that "...to attract the provisions of Section 307, IPC, it is necessary for the prosecution to establish that intention of the accused in causing the injury was of any of the three kinds referred to in Section 300 I.P.C and unless the prosecution discharges the burden, the offence under Section 307, I.P.C cannot possibly be brought home. In the said case, the accused had caused an injury with the knife in a vital region but no vital organ of the injured was cut as a result of injury. However, he was convicted by the Court below for an offence under Section 307 of the I.P. C. “The Hon'ble Supreme Court has also held that the state of mind has to be deduced from the surrounding circumstances. Besides also the existence of a motive to cause death would be a relevant consideration. Taking the totality of the circumstances, it was held that there was no intention of murder or to cause any injury which may result in death could be inferred. Accordingly, it was held that the prosecution had not established that the offence committed fell squarely under Section 307 I.P.C. and that in its opinion it amounted to offence under Section 324 of the I.P.C. and the case of Kundan Singh v State of Punjab, AIR SC: (1982 Cri. LJ 626 (2), the victim received simple injuries from gunshots fired by the accused. The injured were in the courtyard of their house. When the accused fired the gun shots. It was held that accused could not have intended to injure them. The conviction of the appellant for the offence under Section 307, I.P. C. was held to be not justified and it was altered to that of an offence under Section 324 of the I. P.C, since the victim received simple injuries. When the accused fired the gun shots. It was held that accused could not have intended to injure them. The conviction of the appellant for the offence under Section 307, I.P. C. was held to be not justified and it was altered to that of an offence under Section 324 of the I. P.C, since the victim received simple injuries. Keeping in view of the totality of the circumstances and shifting and weighing the material for the limited purposes of charge, I am of the view that charge framed by the learned Additional Sessions Judge, for offence under Section 307, I. P.C. is not sustainable. The state of mind of the petitioners and the surrounding circumstances do not make out a case that there was an intention on their part to murder the complainant. Neither are the injuries of the kinds referred to in Section 300 of the I. P. C. The charge framed for the offence under Section 307 I. P. C. is not commensurate but rather disproportionate to the gravity of situation and the offence." 5. It is trite in law that a rowing inquiry has not to be made at the time of charge and discharge of the accused. The baseline of the order of the learned trial Court is a judgment of the Apex Court of the country reported in ‘ AIR 1965 SC 843 ’, on which he has put explicit reliance in carving out a case in favour of the accused. However, what is palpable from the perusal of the said judgment is that the observations therein were made after a full-fledged trial and not at the initial stage of framing the charge. 6. The law is that to justify conviction, under Section 307, IPC, it is not essential that bodily injury, capable of causing death, should have been inflicted. An attempt, in order to be criminal in nature, need not to be the penultimate act foreboding death. It is sufficient, in law, if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete, but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, intention to commit it; second, preparation to commit it; and third, an attempt to commit it. There are different stages in a crime. First, intention to commit it; second, preparation to commit it; and third, an attempt to commit it. If at the third stage, the attempt falls, the crime is not complete, but law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission. 7. In ‘Virsa Singh v. State of Punjab & Ors.’, reported in ‘1958 AIR (SC) 465’, the Supreme Court has held as under: “12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 “thirdly”; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 “thirdly”. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.” 8. Applying the ratio of the law laid down above to the facts of the case on hand, the learned trial Court has linked up the intent required with the seriousness of the injury and not what the Section requires. The question is not whether Nazir Ahmad or others/respondent Nos. 2 to 8 herein, wielding Lathis and using fists, blows as also a Trowel (Rambi) in causing injuries to the petitioner, his wife and his father-in-law, intended to inflict a serious injury or a trivial one, but whether they intended to inflict the injury and the others by lathis as also by using fists and blows. The question is whether they intended to inflict injuries on the trio and that is what has to be seen by the prima facie evidence and once the question of the extent of the injury is prima facie proved, intention to cause it will be presumed unless the facts and circumstances warrant an opposite conclusion. There is ample evidence on record, from the analysis of which it can, prima facie, be concluded that the accused caught hold of Lal Hussain and Iqbal Khan, and inflicted a blow on the head of Showkat Hussain, petitioner herein, with a Trowel (Rambi). The learned trial Court has based his opinion on the report of the medical expert which has stated that the injuries were simple in nature and not likely to cause the death and, therefore, the case under Section 307 is not made out against the accused/ respondent Nos. 2 to 8 herein this petition, which is not in consonance with the law. 9. 2 to 8 herein this petition, which is not in consonance with the law. 9. For all that has been said and done above, this revision petition is allowed and the order of discharge, as passed by the learned Sessions Judge, Poonch, is set aside and, as a sequel thereto, the case is remanded to the learned Sessions Judge, Poonch, for accord of fresh consideration to it in accordance with the facts and the law governing the subject. 10. Registry to send down the record of the Court below with utmost dispatch along with a copy of this order. 11. Criminal Revision, along with connected MPs, disposed of as above.