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2020 DIGILAW 221 (MP)

Salman v. State of M. P.

2020-02-11

G.S.AHLUWALIA

body2020
JUDGMENT : This Criminal Revision under Section 397/401 of CrPC has been filed against the order dated 19/06/2018 passed by First Additional Sessions Judge, Ashok Nagar in ST No.162/2017 by which the charges under Section 307/34 (two counts), 452, 294, 506-B of IPC and under Section 25(1-B)(B) of the Arms Act, have been framed. 2. The necessary facts for disposal of the present revision in short are that complainant Subham Yadav lodged a report on 18/05/2007 at 00.28 on the allegation that he is residing near Old Kacheri. His elder brother Rahul Yadav came from the market and instructed him to park the vehicle. While the complainant was parking the vehicle, at that time, the accused persons, namely, Sanu Bagula, Salman, Sanu Musalman Younger brother of Salman and Akhtar came there and instructed him to remove the vehicle. When it was replied by the complainant that he is merely parking the vehicle, then all the four accused persons started scolding him and went back. Thereafter, four accused persons came back. Sanu Bagula was armed with a sword, Salman was armed with a knife, Sanu Musalman and Akhtar were armed with iron rods and by that time, the complainant and his elder brother had already gone inside the house. Sanu Bagula, Salman and Akhtar entered in the house and Sanu Bagula instructed that both of them should be dragged out and should be killed and accordingly, Sanu, Salman and Akhtar dragged the complainant and his elder brother outside the house and Sanu Bagula with intention to kill the complainant assaulted on his head by means of sword. Salman Musalman and Akhtar assaulted the complainant by means of iron rods. Salman gave a knife blow to his elder brother Rahul Yadav which landed on the right side of head and another blow was given which landed on the left side of hand. The third blow landed on the wrist of left hand of his elder brother. When Sanu Bagula tried to repeat the blow by means of sword, then the elder brother of the complainant saved him, as a result of which he sustained injuries on his three fingers. At that time, Sanu called Ubesh on phone, who came there along with an iron rod and Ubesh also assaulted both the brothers. After hearing the shouts of the complainant and his brother, the witnesses came there and the accused persons ran away. At that time, Sanu called Ubesh on phone, who came there along with an iron rod and Ubesh also assaulted both the brothers. After hearing the shouts of the complainant and his brother, the witnesses came there and the accused persons ran away. 3. The police after completing the investigation, filed the charge sheet and the Trial Court by order dated 19/06/2018 has framed the charges as mentioned above. 3. Challenging the order framing charges, it is submitted by the counsel for the applicants that so far as the injuries sustained by the victims are concerned, as none of them had sustained any bony injury, therefore, no offence under Section 307 of IPC is made out. It is further submitted that so far as the co-accused Ubesh is concerned, since he was not present on the spot right from the initiation of incident and it is alleged that he came on the spot at a later stage after receiving the telephonic call from Sanu, therefore, neither he was the member of unlawful assembly nor was sharing any common object. 4. Heard the learned counsel for the parties. 5. So far as the role played by each of the applicants is concerned, the FIR is very clear and according to which, all the accused persons had played an active role. Whether they were the members of unlawful assembly or they were sharing any common object, cannot be decided at this stage. It is for the trial Court to consider this aspect after recording the evidence. So far as the nature of injury for offence under Section 302 of IPC is concerned, it is well-established principle of law that the intention or knowledge on the part of the accused persons is the only ingredient to make out an offence under Section 307 of IPC. 6. Section 307 of the Penal Code reads as under:- “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 in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (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 in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.” 7. The Supreme Court in the case of State of MP vs. Harjeet Singh and Another by order dated 19/02/2019 passed in Cr.A.No.1190 of 2009 has held as under:- ''5.6 Section 307 uses the term “hurt” which has been explained in Section 319, I.P.C., and not “grievous hurt” within the meaning of Section 320 I.P.C. If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307. This Court in R. Prakash v. State of Karnataka, (2004) 9 SCC 27 held that : “…The first blow was on a vital part, that is on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigor of Section 307 IPC……. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Even though other blows were on non-vital parts, that does not take away the rigor of Section 307 IPC……. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section.” (emphasis supplied) If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 I.P.C. would be applicable. There is no requirement for the injury to be on a “vital part” of the body, merely causing ‘hurt’ is sufficient to attract S. 307 I.P.C., State of Madhya Pradesh v. Mohan & Ors, (2013) 14 SCC 116 This Court in Jage Ram v. State of Haryana, (2015) 11 SCC 366 held that: “12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder and (ii) the act done by the accused. The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc.” (emphasis supplied) This Court in the recent decision of State of M.P. v. Kanha @ Omprakash., Criminal Appeal No. 1589/2018, decided on 04.02.2019 held that: “The above judgements of this Court lead us to the conclusion that proof of grievous or life threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.”(emphasis supplied) 8. Thus, it is held that the nature of injury is not the decisive factor for ascertaining as to whether the offence under Section 307 of IPC is made out or not, but the knowledge or intention of the accused is the decisive factor which can be inferred from the role played by the accused persons. In the present case, all the accused persons were armed with sword, knife and iron rods and all of them played an active role. Thus, it is held that the Trial Court did not commit any mistake by framing the charge under Section 307 r/w Section 34 of IPC. 9. So far as the allegations made against Ubesh are concerned, it is the case of the applicants that since he reached on the spot at a later stage, therefore, no offence is made out against him. In the FIR, it is specifically mentioned that the accused Sanu called Ubesh on telephone who came there along with an iron rod and assaulted both the brothers. In the FIR, it is specifically mentioned that the accused Sanu called Ubesh on telephone who came there along with an iron rod and assaulted both the brothers. Thus, if the active role of Ubesh is considered, then it is clear from the FIR that he came on the spot after receiving call from the co-accused Sanu. Thus, whether he was sharing any common intention or not, is yet to be considered by the Trial Court. Although the trial Court has framed the charge under Section 307 with the aid of Section 34 of IPC, but according to the prosecution case, five persons had assaulted the injured persons. Under these circumstances, the Trial Court is directed to reconsider the aspect as to whether the charges under Section 147, 148, 149 of IPC will be made out or the charge with the aid of Section 34 of IPC has been rightly framed. 10. With the aforesaid observations, this criminal revision is dismissed. 11. The Office is directed to send a copy of this order to the Trial Court for information and compliance.