Karnataka High Court
Jayanth vs The State Of Karnataka By on 11 January, 2021
Bench: B.Veerappa, Hemant Chandangoudar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO.1620/2018
BETWEEN:
1. JAYANTH
S/O KANNAN,
AGED ABOUT 32 YEARS,
UPS SHIPPING WORK,
R/AT NO.563, 1ST CROSS,
ANNIYAMMA TEMPLE, SIDDAPURA,
BANGALORE-560 011.
2. SRI MANI
S/O GOVINDARAJU,
AGED ABOUT 33 YEARS,
R/AT NO.171, DAYANANDA NAGAR,
JAYANAGAR 'T' BLOCK,
BANGALORE-560 011.
3. SRI VETRIVELU
S/O IYENGAR,
AGED ABOUT 33 YEARS,
R/AT INDRAGANDI SLUM,
JAYANAGAR 9TH BLOCK,
JAYANAGAR,
BANGALORE-560 011. ...APPELLANTS
2
(BY SRI MOHAN KUMAR D. ADVOCATE FOR A-1 AND A-2;
SRI RAJESH RAI K., ADVOCATE FOR A-3)
AND:
THE STATE OF KARNATAKA BY
BANNERUGATTA POLICE STATION,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 30.08.2018 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, SIT AT ANEKAL IN S.C.NO.5057/2013 -
CONVICTING THE APPELLANT/ACCUSED NOS.1 TO 3 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 324, 326 AND 307
READ WITH 34 OF IPC AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellants-accused have filed the present Criminal appeal against the impugned judgment of conviction and order of sentence dated 30.08.2018 passed in Sessions Case No.5057/2013, on the file of the III Additional District and Sessions Judge, Bengaluru 3 Rural District sitting at Anekal, convicting the appellants- accused for the offence punishable under Section 307 of IPC and sentencing them to undergo imprisonment for life and pay fine of Rs.10,000/- each and also sentencing them to undergo Rigorous Imprisonment for three years and to pay fine of Rs.5,000/- each for the offence punishable under Section 326 of IPC and to undergo simple imprisonment for a period of One year and to pay fine of Rs.1,000/- each for the offence punishable under Section 324 of IPC.
2. It is the case of the prosecution that, on 24.03.2011, midnight at 12.30 a.m., at Kaggalipura Road, behind Sri Shaneshwara Temple, in view of previous enmity, the accused quarrelled with P.W.6- Complainant-Venkatesha and in order to commit murder took him to the said place wherein accused Nos.1, 2 and 3 stabbed the victim on his chest, left hand and all over his body and thereafter accused No.1 stabbed on victim's 4 left hand 3-4 times by the same knife and thereby caused grievous injuries. The injured got admitted to the Victoria Hospital for treatment and the Police recorded the statement of the injured in the presence of treated doctor and thereafter registered a case against the accused persons for the offences stated supra.
3. After taking cognizance of the aforesaid offences, the learned Judicial Magistrate committed the case to the Sessions Court. The learned Sessions Judge framed the charges against the accused persons and read over the same to the accused, but the accused persons pleaded not guilty and claimed to be tried.
4. In order to prove the case, the prosecution in all examined 12 witnesses as P.W.1 to P.W.12 and got marked documents at Exs.P.1 to P.10 and material objects as M.Os.1 & M.O.2. After completion of the evidence of the prosecution witnesses, the learned 5 Sessions Judge recorded the statement of the accused persons as contemplated under Section 313 of Code of Criminal Procedure, 1973 (for short, Cr.P.C.). The accused persons denied all the incriminating evidence adduced against them and they did not choose to adduce any defence evidence.
5. The learned Sessions Judge upon considering the evidence on record, formulated the following points for consideration:
"1. Whether the Accused No.1 to 3 with a common intention caused bodily injury likely to cause death of P.W.6/Sri Venkatesh?
2. Whether there are any reasonable doubts existing in the case of Prosecution ?
3. If so, whether the Prosecution has removed the said reasonable doubts ?
4. What Order?"6
6. After considering the oral and the documentary evidence, the learned Sessions Judge recorded a finding that the prosecution proved beyond all reasonable doubt that the accused Nos.1 to 3 shared common intention to cause bodily injuries and likely to cause the death of P.W.6 Venkatesha and came to the conclusion that the accused persons were involved in the attack made on P.W.6-Venkatesha who sustained grievous injuries and accordingly, the learned Sessions Judge by the impugned judgment of conviction and order, convicted the accused persons and sentenced them for the aforesaid offences. Hence, the present appeal.
7. We have heard the learned counsel for the parties.
8. Sri Mohan Kumar D., learned counsel for the appellant-accused Nos.1 and 2 contended that the 7 impugned judgment of conviction and order of sentence passed by the Trial Court convicting the accused for the offences punishable under Sections 307, 326, and 324 of IPC is erroneous and cannot be sustained in law. He would further contend that though the charge was made under the provision of Section 307 of IPC, the Trial Court erred in convicting the accused persons under the provisions of Sections 326 and 324 of IPC. He would further contend that prosecution has failed to prove the seizer mahazar and recovery of material objects M.O.1 and M.O.2. Independent eye witnesses, P.W.3 to P.W.5 have not supported the prosecution's case. In the chief examination, P.W.6, who is the complainant and P.W.7, eyewitness have supported the prosecution , but in the cross-examination they have turned hostile. Therefore, the learned Sessions Judge ought to have given the benefit of acquittal instead of conviction to the accused persons. He would contend that evidence of P.Ws.1, 2 8 and 9 is contrary to the evidence of other prosecution witnesses. Hence, the benefit of doubt should have been given to the accused persons. He would further contend that the prosecution has failed to prove beyond all reasonable doubts, the motive, common intention, preparation and conspiracy of the accused persons to commit the alleged offence against P.W.6. Therefore, he sought to allow the appeal.
9. In support of his contentions, the learned counsel has relied upon the following judgments of the Hon'ble Supreme Court as under:
i. In the case of Murali Vs. State rep. by the Inspector of Police in Criminal Appeal No.24/2021(arising out of SLP (Crl.) 10813 of 2019), wherein the Hon'ble Supreme Court has reduced the sentence to One year Eight months;
ii. In the case of Fireman Ghulam
Mustafa Vs.State of Uttaranchal
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(Now Uttarakhand) in Criminal Appeal No.1105 of 2015 (@SLP (Crl.) No.7451 of 2014 wherein the Hon'ble Supreme Court modified the sentence under the provisions of Section 307 of IPC to 325 of IPC and to undergo punishment for a period of three years rigorous imprisonment with a fine of Rs.5,000/- each.
10. Sri Rajesh Rai K., learned counsel for the appellant-accused No.3 adopted the arguments advanced by the learned counsel for the appellant Nos.1 and 2 and contended that in Ex.P.1, the complaint, it is stated that accused Nos.1, 2 ,3 and other accused persons with an intention to kill the complainant-P.W.6 assaulted with knife and accused No.1 assaulted to the chest and on hand, whereas, in the evidence of P.W.6, he has only deposed against accused Nos.1 and 2 and thereafter against accused No.3. He would further contend that P.W.7 who is the eyewitness to the incident 10 had deposed alleged offence against accused Nos.1, 2, 3 and others. Therefore, the prosecution is not specific in proving the alleged offence as against the accused persons and injuries sustained by the injured as deposed by the doctor that the injuries No.1 and 2 are simple in nature. Therefore, he sought to allow the appeal filed by the accused.
11. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence contended that in the complaint, it is specifically stated that all the accused persons with an intention to commit the murder of P.W.6 made an attempt to assault the victim with knife and the same is reiterated by P.W.6-the complainant and as well as by P.W.7 the eyewitness in the chief examination. After three years, in the cross- examination, they have turned hostile which clearly indicates that either the accused persons might have 11 threatened them or they were allured by the accused. He would further contend that Wound Certificate at Ex.P.2 issued by P.W.2-the doctor it is specifically stated that there are three stab injuries and injury Nos.1 and 2 are simple in nature and injury No.3(c) is grievous in nature. Therefore, it is a clear case of attempt to murder on the complainant. Hence, he sought to dismiss the appeal.
12. In view of the aforesaid rival contentions urged by both the learned counsel for the parties, the point that would arise for our consideration in the present appeal is that:
"Whether, the accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence for reducing the sentence from life in the facts and circumstances of the present case?"12
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including original records carefully.
14. This Court being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and also material documents relied upon, which are as under:
(i) P.W-1 Dr.Raja Reddy, deposed that he had treated the victim on 24.03.2011 at 3.30 a.m. in the early morning and further deposed that he had amputated his hand as his nerve was cut off. He supported the prosecution's case.
(ii) P.W-2 Dr. Manjula also deposed that she has treated the victim on 24.03.2011 and also issued Wound Certificate as per Ex.P.2 and further deposed that the 13 injury was caused on the left side of the chest, back portion of the body and other injuries on the left hand.
She supported the prosecution's case.
(iii) P.W.3-Nagaraj who is the eyewitness to the incident has deposed that on 23.03.2011 at 12.30 a.m., when C.W.1 to C.W.5 were returning back to their home, at that time, accused Nos.1 to 3 assaulted the victim. He has not supported the case of the prosecution and turned hostile.
(iv) P.W.3-Das who is the eyewitness to the incident has deposed that on 23.03.2011 at 12.30 a.m., when C.W.1 to C.W.5 were returning back to their home, at that time, accused Nos.1 to 3 assaulted the victim. He has not supported the case of the prosecution and turned hostile.
(v) P.W.5-Narendra @ Nara who is the eyewitness to the incident has also deposed that on 23.03.2011 at 12.30 a.m., when C.W.1 to C.W.5 were 14 returning back to their home, at that time, accused Nos.1 to 3 assaulted the victim. He has not supported the case of the prosecution and turned hostile.
(vi) P.W.6-Venkatesha who is injured witness has deposed in the Chief examination that C.W.2 to 5 along with him went towards Bannerghatta and when they were returning back to their house at 12.30 a.m., the accused No.1 assaulted him on his left hand, accused No.2 assaulted on left side of his chest and accused No.3 assaulted to his left hand and other parts of the body. Thereafter, the accused persons fled away from the spot. This injured witness supported the case of the prosecution but in the cross-examination he turned hostile.
(vii) P.W.7-Appu @ Venkatesh who is the independent eyewitness has deposed in the Chief- examination that C.W.2 to 5 went to Bannerghatta and when they were returning back to their home at 12.30 15 a.m. the accused No.1 assaulted the victim P.W.6 on his left hand, accused No.2 on left side of victim's chest and accused No.3 also assaulted to victim's left hand and other parts of the body. He further deposed that the accused persons fled away from the spot. This witness supported the case of the prosecution in the chief- examination but in the cross-examination he also turned hostile
(viii) P.W.8-Sharavana, Mahazar witness to Ex.P.6 and material object-M.O.2, deposed that on 25.03.2011, Police called him to Sri Shaneshwara Temple and at that time C.W.2 was also present. Then C.W.2 has shown the spot and M.O.2. This witness did not support the case of the prosecution and he turned hostile.
(ix) P.W.9- K. Vishwanath, Police Inspector deposed that he was working as PSI,on 24.03.2011, at about 01.00 a.m. he received an information from Victoria Hospital and thereafter he went to the Victoria 16 Hospital and recorded the statement of the injured Venkatesha P.W.6 in the presence of the doctor and registered the FIR in Crime No.70/2011 as per Ex.P.1 and thereafter he proceeded with the investigation and seized M.O.2 and on the same day recorded the statements of P.W.2 to P.W.5 and also recorded the statement of accused Nos.1 to 3. After completion of investigation, charge sheet was filed. This official witness supported the case of the prosecution.
(x) P.W.10-Madesh, mahazar witness to Ex.P.10 deposed that, on 24.03.2011, at Kagglipura Road in front of Sri Shaneshwara Temple, the police prepared the mahazar as per Ex.P.10 which discloses that the blood stained T-shirt was seized by the respondent Police and they took the signature of this witness. This witness has not supported the case of the prosecution and he turned hostile.
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(xi) P.W.11-Pandyan, seizure Mahazar witness had deposed that on 01.06.2011 near Bannerghatta Road, the accused No.1 showed the knife and the same knife was seized by the police which was marked as Ex.P.9. This witness has not supported the case of the prosecution and he turned hostile.
(xii) P.W.12-Arun, seizure Mahazar witness to Ex.P.9 had deposed that on 01.06.2011 near Bannerghatta Road, the accused No.1 showed the knife and the same knife was seized by the police which was marked as Ex.P.9. This witness has not supported the case of the prosecution and he turned hostile.
15. On the basis of the aforesaid materials placed on record and after considering the oral and the documentary evidence, the Learned Sessions Judge proceeded to convict the accused persons for the offences punishable under Sections 307, 324, 326 and imposed punishment accordingly.
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16. On a careful perusal of the complaint, Ex.P.1, lodged by the complainant, P.W-6, it clearly depicts that on 20.03.2011, when he went to Bannerghatta fare along with his friends and while returning from the fare at about 12.30 a.m. near the Bannerghatta Circle, accused Nos.1, 2, 3 and others suddenly with an intention to kill him, the accused No.1 assaulted him on his right chest, accused No.2 assaulted on his left chest and on left hand and accused No.3 assaulted him on his back portion and again accused No.1 assaulted him on his left hand and on two to three places and others also assaulted him with their hands. He further stated that he is not aware as to why these people assaulted him and hence, he sought to take action against them. P.W.6, in his evidence, on 24.08.2015, had deposed that accused Nos.1, 2 and 3 assaulted him along with others. But unfortunately on 07.08.2018, when he was subjected for cross examination, he deposed that, when they were 19 returning from the Bannerghatta fare, at about 12.45 p.m. he and his friends were in drunken state and he became unconscious and does not know how he sustained the bodily injuries and when he was conscious he found himself in the Victoria Hospital.
17. P.W.7, eyewitness to the incident has deposed on par with P.W.6 about the involvement of accused Nos. 1, 2 and 3 and others in the commission of the offence. He supported the case of the prosecution in his Chief examination on 24.08.2015, but when he was subjected for Cross-examination on 07.08.2018, he deposed that he is not educated, but he knows how to read and write Kannada and now he has lost his memory power but he does not have any mental health issues and for the loss of memory he is not taking any treatment. Whatever, he had deposed on 24.08.2015, was deposed in a sound state of mind and correct. He has denied the suggestion that he had compromised with 20 accused persons by receiving the money. In the Cross- examination, he deposed that he saw the accused person for the first time before the Court when they were brought for enquiry and now he could not remember what he had deposed in the Chief-examination, but, virtually he turned hostile.
18. P.W.1-Dr. Raja Reddy, who treated P.W.6 the injured, deposed that on 24.03.2011, the complainant, P.W.6 Venkatesha was brought to the Victoria Hospital by the Police Constable No. 988 and Head Constable No. 638 of Bannerghatta Police Station with a history of assault made by accused No.1 and four other accused persons. When he examined the injured he came to know that the left hand nerve was cut off and it has lost its sense and it was inevitable to amputate the left hand and accordingly, he had recorded the same in the case sheet and he opined that the said injury is very grievous in nature. In the cross examination, doctor has deposed 21 that, if some body falls on a very sharp edged weapon there is every possibility of sustaining these types of injuries. P.W.2-Dr.Manjula, who treated P.W-6 injured Venkatesha deposed that on 24.03.2011 at 3.00 a.m. in the emergency ward, the Head Constable No.638 brought the injured victim Venkatesha with a history of assault made by the accused persons. She specifically deposed that P.W.6-complainant was assaulted on the left chest and there exists a stab injury on the left chest and also on the back side and there are multiple injuries on the body of the injured which are as follows:
1. Injury No.1 9 x 5 c.m incised deep cut injury on middle portion of the left hand. 2. 5 x 1 c.m. deep cut injury on the left upper portion of the left hand. 3. Three injuries on the forearm upper portion of the hand and she denied the suggestion made by the accused that there were no injuries on the injured. In the Wound Certificate issued by P.W.2 Dr. Manjula, as per Ex.P.2, it 22 is specifically stated that following injuries were found on the injured and she opined that injuries (a) and (b) are simple in nature, injury (c) is grievous in nature as per opinion given by Dr.Rajareddy, Senior Specialist, Surgery 3 unit in case sheet Pg.No. 47. It is relevant to state the injuries sustained by PW.6 are as under:
"The injured person was first seen by the undersigned at Causality, Victoria Hospital on the 24.03.2011 and the examination was commenced at 3.00 a.m. when the following injuries were found.
1) Ultrasound scan abdomen-Normal (US.No.406/24.03.11)
2) Colour Doppler- Upper limb arterial system.
Absent left lunar and radial artery flow at the level of wrist. Low resistance flow in beachial artery in cubital fossa.
a) Stab injury on the lateral aspect of left side of thorax.
b) Stab injury on the left side of loin.
c) Multiple stab injuries on the left upper limb.
i. 9 x 5 cm incised wound over medial aspect of left arm.
23ii. 5 x 1 cm incised wound over lateral aspect of left arm.
iii. 3 lacerations seen over upper part of forearm".
19. Though the learned counsel for the accused persons contended that P.Ws.6 and P.W.7, the complainant and the eyewitness to the incident turned hostile, but the fact remains is what they have deposed in their chief examination. Only when they were subjected for cross-examination after three years, P.W.6 turned hostile but P.W.7 has specifically deposed in the cross examination that whatever he has stated in the chief examination is correct and statement made by him runs concurrently and he denies the suggestion that P.W.6 and P.W.7 compromised with the accused persons. Considering the oral and documentary evidence on record the learned Sessions Judge proceeded to convict the accused persons for offence punishable under 24 Section 307 of IPC. Considering the evidence of P.W.1, P.W.2 , P.W.6, P.W.7 and P.W.9 and other material objects M.O. 1 and 2 and Ex.P.2- Wound Certificate issued by P.W.2 it is clearly established that injury No.3 is grievous in nature. Injuries No.1 and 2 are simple in nature and it is also on record that after the incident, complainant's left hand below 3 inches from the shoulder was amputated. The material on record clearly indicates that, though the accused persons attacked P.W.6 and others and caused grievous injuries. Injury No.1 is on the vital part of the left side chest.
20. The very prosecution has not proved the basic ingredients of Section 307 which 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 25 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."
A careful reading of the said provisions it would clearly indicate that 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.
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21. Admittedly, in the present case, according to P.W.6 and P.W.7 that there was an intention of accused Nos. 1 and 2 to kill P.W.6, but unfortunately both the P.W.6, the complainant-victim and the eyewitness have turned hostile in the cross-examination. Though the learned Additional State Public Prosecutor contended that after three years these accused persons might have threatened P.W.6 and P.W.7 therefore they have turned hostile, however, such contention of the learned Addl.S.P.P., cannot be accepted. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Kanha reported in (2019) 3 SCC 605. Paragraphs 9 to 20 of the said judgment read as under:
"9. Section 307 of the Penal Code reads thus:
"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 27 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 28 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."
(emphasis supplied) The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to "hurt" caused in pursuance of such an "act".
10. Several judgments of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v. BalramBamaPatil (1983)2 SCC 28, this Court held that it is not necessary that a bodily injury sufficient under 29 normal circumstances to cause death should have been inflicted: (SCC p.32, para 9) "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. 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 30 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."
(emphasis supplied) This position in law was followed by subsequent Benches of this Court.
11. In State of M P v Saleem (2005)5 SCC 554, this Court held thus:(SCC pp.559-60, para 13) "13. 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. 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 circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC 31 cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."
(emphasis supplied)
12. 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:(SCC p.370 para 12) "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 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 32 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."
13. The above judgments 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.
14. The trial court based its conviction on the evidence adduced at the trial. PW1, Dr P K Mishra had examined the injured on 8-10-2003 33 and found 11 punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm. The injuries were bleeding, but no blackness was present. He noted that the wounds were caused by a firearm and were inflicted in six hours before the examination. The witness stated that the confirmation of the injuries depended on the X-Ray report and expert opinion of the ward doctor. The report of the Radiologist (PW2) stated that he had observed multiple small rounded radiopaque shadows of metallic density. This is indicative of the presence of firearm injuries.
15. Based on the evidence of the witnesses, the Trial court came to the conclusion that the injuries were caused by the respondent. Dashrath Singh (PW11) deposed that the respondent shot at him in the right thigh with a countrymade rifle. The complainant (PW12) stated that the respondent fired at PW11 with a deliberate intention to kill him. The ocular evidence is cogent and corroborated by the medical evidence.
16. Based on the evidence on record, the Trial court held that it could not be proved that 34 the other accused had a common intention of causing injuries or death upon Dashrath Singh. Thus, the co-accused were acquitted of charges.
17. The trial court found that PW.4, PW.8 and PW.13, who were present near the place of incident, had sustained injuries. The witnesses had admitted that they were hit by bullet shots. The court concluded that it was established that at the date, time and venue of the said incident, a fire arm had been used and the aforementioned witnesses had also suffered bullet injuries. The Court held that it was substantiated that the shots fired by the respondent first hit the injured Dashrath Singh. The injured Dashrath Singh had stated that the house of the respondent was 40-50 m from the spot where the incident took place. It was held that in such circumstances if a fire arm is shot at such a distance, the shot gets dispersed and may hit persons in the vicinity. There existed a long-standing dispute between the parties with regard to the business of cable discs and an altercation took place with regard to it. In the quarrel that ensued, the respondent fired at Dashrath Singh, injuring him.
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18. The evidence establishes that the injuries were caused by a firearm. The multiplicity of wounds indicates that the respondent fired at the injured more than once. The fact that hurt has been caused by the respondent is sufficiently proven. The lack of forensic evidence to prove grievous or a life- threatening injury cannot be a basis to hold that Section 307 is inapplicable. This proposition of law has been elucidated by a two-Judge bench of this Court in Pasupuleti Siva Ramakrishna Rao v. State of A.P. (2014)5 SCC 369: (SCC p.376, para 18) "18. There is no merit in the contention that the statement of medical officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this section since the act resulted in Injury 5 which is a ligature mark of 34 cm × 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act 36 causes "hurt". It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him that he should die. We also do not find any merit in the contention on behalf of the accused that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thumbs up bottle and a telephone wire used, as weapons. That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused."
(emphasis supplied)
19. In the present case, the nature of the injuries shows that there were eleven punctured wounds. The weapon of offence was a firearm. The circumstances of the case clearly indicate that there was an intention to murder. The presence of 11 punctured and bleeding wounds as well as the use of a fire 37 arm leave no doubt that there was an intention to murder. Thus, the second part of Section 307 of the Penal Code is attracted in the present case. The judgment of the High Court overlooks material parts of the evidence and suffers from perversity.
20. Hence, we set aside the judgment of the High Court and restore the order of conviction by the trial court under Section 307 of the Penal Code as well as the sentence awarded of rigorous imprisonment of 3 years and a fine of Rs. 1000. The appeal is, accordingly allowed. The respondent shall forthwith surrender to serve out the sentence. A copy of the judgment shall be forwarded by the Registry to the Chief Judicial Magistrate concerned to secure compliance."
22. Though, the learned Sessions Judge proceeded to convict the accused persons for the offence punishable under Section 307 of IPC, the P.W.3, P.W.4, P.W.5, P.W.6, P.W.7-independent eye-witness and P.W.8 mahazar witness, to Ex.P.6 and M.O.2, P.W.11 38 and P.W.12-seizure Mahazar witness to Ex.P.9 recovery of knife have turned hostile. Except P.W.1 and 2, doctors who have deposed about the grievous injury sustained by P.W.6-complainant and P.W.9- Police Inspector who investigated the case and filed the charge sheet the other prosecution witnesses have not supported the case of the prosecution including P.W.6- complainant, but the fact remains that. unfortunately injuries were inflicted on the vital part and on the left hand and all over the body of P.W.6-complainant, while his left hand was amputated below 3 inches from the shoulder because of the assault made by the accused persons.
23. Taking into consideration the peculiar facts and circumstances of the case, we are of the considered opinion that the accused persons have made out a case for reduction of sentence under the provisions of Section 307 of IPC instead of life imprisonment. The Hon'ble 39 Supreme Court while considering the provision of Section 307 of IPC in the case of State of Madhya Pradesh vs. Harjeet Singh and another reported in AIR 2019 SC 1120 at paragraph 5.6 reads 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, held that :
"...The first blow was on a vital part, that is on the temporal region. Even though other blows were on nonvital 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 40 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.
This Court in Jage Ram v. State of Haryana held that:
"12. For the purpose of conviction under Section 307 IPC, prosecution has to establish 41
(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. 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 held that: 42
"The above judgements of this Court lead us to the conclusion that proof of grievous or lifethreatening 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) The order passed by the High Court under the provisions of Section 324 of IPC was set aside and imposed punishment for a period of 5 years.
24. The Hon'ble Supreme Court in the case of Murali vs. State rep. by the Inspector of Police made in Criminal Appeal No.24/2021 (Arising out of SLP (Crl.) 10813 of 2019) dated 5.1.2021 taking into consideration the age of the accused and complainant has proceeded to reduce the quantum of sentence to 1 year 8 months 43 instead of 5 years and in the case of Fireman Ghulam Mustafa vs. State of Uttaranchal (Now Uttarakhand) made in Criminal Appeal No.1105/2015 (@SLP (Crl.) No.7451 of 2014) wherein the Hon'ble Supreme Court converted the offence under Section 307 of IPC into Section 325 of IPC and sentenced to undergo 3 years rigorous imprisonment and to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for one month.
25. Taking into consideration the principles laid down by the Hon'ble Supreme Court, stated supra and also taking into consideration the peculiar facts and circumstances of the present case, that all the prosecution witnesses including P.W.6-complainant- injured victim and P.W.7-eye witness to the incident have turned hostile, we are of the considered view that in the interest of justice, the punishment imposed on the accused for the offence punishable under Section 307 of 44 IPC has to reduced for a period of 4 years instead of Life Imprisonment with a fine of Rs.50,000/- each which will meet the ends of justice.
26. For the reasons stated above, the point raised in the present appeal is answered in the affirmative holding that the accused-persons have made out a case to interfere with impugned judgment of conviction and order of sentence by reducing the sentence and fine imposed by the learned Sessions Judge under the provision of Section 307 of IPC.
27. In view of the above, we pass the following:
ORDER
1. The Criminal Appeal is allowed in part;
2. The impugned judgment of conviction and order of sentence dated 30.08.2018 passed in Sessions Case No.5057/2013 sentencing the accused Nos. 1 to 3 to undergo imprisonment for life for the 45 offence punishable under Section 307 of IPC is modified and appellants-accused Nos.1 to 3 are convicted for a period of four years with a fine of Rs.50,000/-
each and in default of depositing of fine amount to undergo imprisonment for a period of one year;
3. The impugned judgment of conviction and order of sentence imposed for a period of 3 years and one year with a fine of Rs.5,000/-each and Rs.1,000/- each under for the offences punishable under Sections 326 and 324 of IPC passed by the learned Sessions Judge is hereby confirmed;
4. All the sentences are ordered to be run concurrently.
5. Needless to add that the accused Nos.1 and 3 shall be entitled to benefit of set off as contemplated under the provisions of Section 428 of the Criminal Procedure Code;
46
6. In exercise of powers under Section 357 (3) of Code of Criminal Procedure, we direct that, if the fine amount of Rs.1,50,000/- is deposited by Accused Nos.1 to 3, the same shall be paid to the complainant as compensation after proper identification.
Sd/-
JUDGE Sd/-
JUDGE HR