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2023 DIGILAW 499 (HP)

Bhutto v. State of Himachal Pradesh

2023-12-08

RAKESH KAINTHLA

body2023
JUDGMENT : (Rakesh Kainthla, J.) The petitioner has filed the present petition for seeking the pre-arrest bail. It has been asserted that FIR No. 188 of 2023, dated 22.10.2023 was registered against the petitioner at Police Station, Ghumarwin for the commission of offences punishable under Sections 323, 504 and 506 read with Section 34 of IPC, which was converted into Sections 325, 307 and 109 of IPC. It is asserted that the petitioner is working as a driver in the office of Deputy Commissioner, Taxation and Excise, Bilaspur. His father filed a civil suit for permanent prohibitory injunction against the informant in 2018 which was decided in favour of the petitioner’s father on 20.6.2022. The informant was restrained from changing nature, cutting the trees or causing any kind of interference with the land in dispute. Possession of land was handed over to the petitioner in the presence of Police officials, Gram Panchayat Pradhan, Up-Pradhan etc. The informant used to pick up quarrels repeatedly with the petitioner. The petitioner’s father and his wife were fencing the land on 22.10.2023. The informant and his family members came to the spot and restrained them. They abused the petitioner and pelted stones at them. FIR was lodged against the informant and his family members. The petitioner was not present on the spot but he was wrongly mentioned in the FIR. The custodial interrogation is not required. The petitioner is a Government servant and there is no chance of his absconding. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The respondent-State filed a status report asserting that the informant Safiq Mohammad was working in the courtyard of his house on 22.10.2023 at 8.30-9.00 AM. His brother Aslam and sister-in-law Parveen were also present near the house. Noor Deen, petitioner and petitioner’s son came to the field. Noor Deen told them to bring a stick and give beatings to Aslam and Parveen. Nadeem and the petitioner brought an iron rod used for removing the nails. They gave beatings to Aslam and Parveen, who sustained injuries. The police registered the FIR and conducted the investigation. The police seized the clothes. As per the medical evidence, the nature of the injury was grievous (hemorrhagic contusion) and could be fatal. Hence, the offences punishable under Sections 325, 307 and 109 were added. They gave beatings to Aslam and Parveen, who sustained injuries. The police registered the FIR and conducted the investigation. The police seized the clothes. As per the medical evidence, the nature of the injury was grievous (hemorrhagic contusion) and could be fatal. Hence, the offences punishable under Sections 325, 307 and 109 were added. Noor Deen produced two iron rods which were seized by the police. The petitioner had also filed a complaint against the informant party. FIR No. 190 of 2023 was registered which is being investigated. The custodial interrogation is required. Hence, it was prayed that the present petition be dismissed. 3. I have heard Ms. Veena Sharma, learned Counsel for the petitioner, and Ms. Avni Kochhar learned Deputy Advocate General for respondent-State. 4. Ms Veena Sharma, learned counsel for the petitioner submitted that as per the MLC, the nature of injuries was stated to be simple, however, they were changed to grievous. This shows that the prosecution has tampered with the evidence. The petitioner is a Government servant and he is not likely to abscond. Therefore, she prayed that the present petition be dismissed. 5. Ms. Avni Kochhar, learned Deputy Advocate General submitted that the petitioner had used an iron bar to cause hurt to the victim’s head. The Medical Officer had found the injury to be grievous, which could have been fatal. Therefore, she prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 7. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed: “67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 8. As per the status report, the petitioner had used an iron bar. Aslam sustained grievous injury on his head. It is true that there is an overwriting in the MLC but the same is initialed by the Medical Officer. Therefore, not much can be made out of the overwriting. The injury was caused on the parietal region with a deadly weapon. Therefore, the injury was caused in such circumstances that if the death had been caused, the petitioner would have been guilty of the commission of an offence punishable under Section 302 of IPC. It was laid down by the Hon’ble Supreme Court in State of Madhya Pradesh Versus Kanha @ Om Parkash (2019) 3 SCC 605 that causing bodily injury is not necessary to attract Section 307. It was observed:- “11. Several judgements of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 , this Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted: "9...To justify a conviction under this section 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 section makes a distinction between an act of the accused and its result, if any. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still, there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof." This position in law was followed by subsequent benches of this Court. In State of M.P. v. Saleem, (2005) 5 SCC 554 , this Court held thus: "13. It is sufficient to justify a conviction under Section 307 if there is present intent coupled with some overt act in the execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section 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 the circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." In Jage Ram v. State of Haryana, (2015) 11 SCC 366 , this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted: "12. For the purpose of conviction under Section 307 IPC, the 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 the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit the murder of another person would depend upon the facts and circumstances of each case. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit the 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 a fatal injury capable of causing death should have been caused. Although the nature of the 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, the 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." 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.” 9. Similar is the judgment in Chhanga @ Manoj Versus State of M.P. (2017) 11 SCC 115 , wherein it was observed: “7. Neither of the points raised by Shri Garg appeals to us. First and foremost, it is not essential that bodily injury capable of causing death should have been inflicted in order that the charge under Section 307 be made out. It is enough if there is an intention coupled with some common act in execution thereof. This position has been repeatedly laid down by this Court in “State of M.P. vs. Kashiram and Others” (2009) 4 SCC 26 at paragraphs 12 to 16. In addition, in a recent Judgment in 'Jage Ram and Others vs. State of Haryana' (2015) 11 SCC 366 , the law has been laid down as follows: “For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. In addition, in a recent Judgment in 'Jage Ram and Others vs. State of Haryana' (2015) 11 SCC 366 , the law has been laid down as follows: “For the purpose of conviction under Section 307 IPC, the 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 the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit the 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 a fatal injury capable of causing death should have been caused. Although the nature of the 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, the 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.” 10. It was laid down by the Hon’ble Supreme Court in Surinder Singh Versus State, 2022 (1) Crimes 133, that causing injury is not necessary to attract Section 307 of IPC. It was observed:- “18. Before we advert to the factual matrix or gauge the trustworthiness of the witnesses, it will be beneficial to brace ourselves of the case-law qua the essential conditions, requisite for bringing home a conviction under Section 307 IPC. In State of Madhya Pradesh vs. Saleem @ Chamaru & Anr., (2005) 5 SCC 554 , this Court, while re-appreciating the true import of Section 307 IPC held as follows: "12. To justify a conviction under this section, 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. 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 section makes a distinction between an act of the accused and its result if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still, there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section. An attempt in order to be criminal need not be a penultimate act. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in the execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section 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 the circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." (Emphasis Applied) 19. These very ingredients have been accentuated in some of the later decisions, including in State of M.P. vs. Kashiram & Ors., (2009) 4 SCC 26 , Jage Ram & Ors. vs. State of Haryana, (2015) 11 SCC 366 and State of M.P. vs. Kanha @ Om Prakash, (2019) 3 SCC 605 . 20. These very ingredients have been accentuated in some of the later decisions, including in State of M.P. vs. Kashiram & Ors., (2009) 4 SCC 26 , Jage Ram & Ors. vs. State of Haryana, (2015) 11 SCC 366 and State of M.P. vs. Kanha @ Om Prakash, (2019) 3 SCC 605 . 20. It is by now a lucid dictum that for the purpose of constituting an offence under Section 307 IPC, there are two ingredients that a Court must consider, first, whether there was any intention or knowledge on the part of the accused to cause the death of the victim, and, second, such intent or knowledge was followed by some overt actus rea in the execution thereof, irrespective of the consequential result as to whether or not any injury is inflicted upon the victim. The Courts may deduce such intent from the conduct of the accused and surrounding circumstances of the offence, including the nature of the weapon used or the nature of the injury if any. The manner in which occurrence took place may enlighten more than the prudential escape of a victim. It is thus not necessary that a victim shall have to suffer an injury dangerous to his life, for attracting Section 307 IPC. 21. It would also be fruitful at this stage, to appraise whether the requirement of 'motive' is indispensable for proving the charge of attempt to murder under Section 307 IPC.” 11. Therefore, merely because the Medical Officer found only one injury, it cannot be said that no case for the commission of an offence punishable under Section 307 of IPC is made out against the petitioner. 12. It is admitted that the parties have a dispute over the land. The petitioner himself stated in the bail petition that litigation is pending over the land. As per the status report, the petitioner had taken law in his land to settle the dispute between the parties, which is impermissible. 13. Keeping in view the circumstances in which the offences were committed and the manner in which the injury was caused, the petitioner is not entitled to pre-arrest bail. 14. Hence, the present petition fails and the same is dismissed. 15. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.