Amit Kumar & Others vs Of on 5 January, 2024

[Cites 23, Cited by 0]

Himachal Pradesh High Court

Amit Kumar & Others vs Of on 5 January, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 545 of 2023 Reserved on: 04.12.2023 .

Date of Decision: 05th January, 2024 Amit Kumar & others ....Petitioners Versus of State of Himachal Pradesh& another ....Respondents Coram rt Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? Yes For the Petitioners : Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.

For the Respondents : Mr Prashant Sen, Deputy Advocate General for respondent No.1/State with ASI Raj Pal, Police Station Damtal, District Kangra, H.P. None for respondent No.2.

Rakesh Kainthla,Judge The petitioner has filed the present petition under Section 482 of Cr.P.C. for quashing of F.I.R. 119 of 2022, dated 24.07.2022, registered at Police Station at Damtal, District Kangra, H.P. for the commission of offences punishable under Sections 307, 325 read with Section 34 IPC and 25 of the Indian Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 2 Arms Act. It has been asserted that the matter has been compromised between the parties and the F.I.R. be quashed based on the compromise. The statement of the informant was .

recorded, in which he stated that the matter had been compromised with the intervention of respectable persons of the society and, he has no objection in case F.I.R. is ordered to be of quashedin view of the compromise.

2. I have heard Mr. N.K. Thakur learned Senior Counsel rt assisted by Mr. Divya Raj Singh, learned counsel for the petitioner and Mr. Prashant Sen, Deputy Advocate General, for respondent no.1/State.

3. Mr. N.K.Thakur learned Senior Counsel submitted that the F.I.R. has been registered for the commission of offences punishable under Section 307 of IPC, however, no serious injury was caused in the present case. There is no likelihood of conviction in view of the compromise. Hence, he prayed that the present petition be allowed and F.I.R. be quashed. He relied upon the judgment passed by this Court in Kasim Deen & Ors vs. State of H.P. & Others, Cr.MP (M) under Section 482 Cr.P.C. No. 478 of 2021 decided on 15th July 2022 and Kala & others vs State of H.P. & others, ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 3 in Cr.MP(M) under Section 482 Cr.P.C. No. 175 of 2021, decided on 24th December 2021 in support of his submission.

4. Mr. Parshant Sen, learned Deputy Advocate General submitted that the petitioner had used the firearm to cause injury to the victim. The offence is grave and cannot be quashed based on compromise.

5. I have given considerable thought to the submissions at the bar and have gone through the records carefully.

6. rt It was laid by the Hon'ble Supreme Court in Narinder Singh v. State of Punjab, (2014) 6 SCC 466 that the Court can quash the FIR/criminal proceedings based on the settlement to secure the ends of justice or to prevent the abuse of the process of the Court. Such power is not to be exercised in heinous offences like murder, dacoity, rape etc. which have a serious impact on society.

An offence punishable under Section 307 of the IPC would also fall in the category of heinous and serious offences and is to be treated as a crime against society. However, it will be open to the High Court to go by the nature of the injury, part of the body where the injury was inflicted and the nature of the injury to determine ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 4 whether there is a strong possibility of conviction or the chance of the conviction are remote and bleak. It was observed:-

.

"29.1. The power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with of caution.

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is rt filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, the offences alleged to have been committed under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

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29.5. While exercising its powers, the High Court is to examine whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme .

injustice would be caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crimes against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in of the FIR or the charge is framed under this provision. It would be open to the High Court to examine whether incorporation of Section 307 IPC is there for the sake of it or if the prosecution has collected sufficient evidence, which if proved, would lead to rt proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of the injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, the nature of weapons used, etc. Medical reports in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case, it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case, it would be permissible for the High Court to accept the plea compounding the offence based on a complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, the timings of settlement play a crucial role. In those cases where the settlement is arrived at immediately after the alleged commission of the offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 6 thisreason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, in those cases where the charge is framed but the evidence is yet to start or the evidence is still at the infancy stage, the High .

Court can show benevolence in exercising its powers favourably, but after a prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide of the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the rt appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in the acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime." (Emphasis supplied)

7. It was held in State of M.P. v. Deepak, (2014) 10 SCC 285 :

(2015) 1 SCC (Cri) 89: 2014 SCC OnLine SC 703 that the offence punishable under Section 307 of IPC is not a private offence. It was observed at page 288:

9. After examining the facts of this case and the medical record, we are of the opinion that it was not a case where the High Court should have quashed the proceedings in the exercise of its discretion under Section 482 of the Code. We may, at the outset, refer to the judgment of this Court in Gulab Das v. State of M.P. [(2011) 10 SCC 765 : (2012) 1 SCC ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 7 (Cri) 421] wherein the following view was taken: (SCC p.

767, paras 8-9) "8. In light of the submissions made at the Bar, the only question that falls for determination is whether the .

prayer for the composition of the offence under Section 307 IPC could be allowed having regard to the compromise arrived at between the parties. Our answer is in the negative.

9. This Court has in a long line of decisions ruled that offences which are not compoundable under Section 320 of the Code of Criminal Procedure cannot be allowed to of be compounded even if there is any settlement between the complainant on the one hand and the accused on the other. Reference in this regard may be made to the decisions of this Court in Ram Lal v. State of J&K [(1999) rt 2 SCC 213: 1999 SCC (Cri) 123] and Ishwar Singh v. State of M.P. [(2008) 15 SCC 667 : (2009) 3 SCC (Cri) 1153] We have, therefore, no hesitation in rejecting the prayer for permission to compound the offence for which Appellants 2 and 3 stand convicted."

10. A similar situation, as in the present case, was found to have arisen in State of Rajasthan v. Shambhu Kewat [(2014) 4 SCC 149 : (2014) 4 SCC (Cri) 781]. In that case also, the High Court had accepted the settlement between the parties in an offence under Section 307 read with Section 34 IPC and set the accused at large by acquitting them. The settlement was arrived at during the pendency of the appeal before the High Court against the order of conviction and sentence of the Sessions Judge holding the accused persons guilty of the offence under Sections 307/34 IPC. Some earlier cases of compounding of an offence under Section 307 IPC were taken note of, noticing that under certain circumstances, the Court had approved the compounding whereas in certain other cases, such a course of action was not accepted. In that case, this Court took the view that the High Court was not justified in accepting the compromise and setting aside the conviction. While doing so, the following discussion ensued: (Shambhu Kewat case [(2014) ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 8 4 SCC 149 : (2014) 4 SCC (Cri) 781], SCC pp. 154-56, paras 12-

15) "12. We find in this case, such a situation does not arise. In the instant case, the incident had occurred on 30-10- .

2008. The trial court held that the accused persons, with common intention, went to the shop of the injured Abdul Rashid on that day armed with an iron rod and a strip of iron and, in furtherance of their common intention, had caused serious injuries on the body of Abdul Rashid, of which Injury 4 was on his head, which was of a serious nature.

13. Dr Rakesh Sharma, PW 5, had stated that out of the injuries caused to Abdul Rashid, Injury 4 was an injury on the head and that injury was 'grievous and fatal for life'. PW 8, Dr Uday Bhomik, also opined that a grievous rt injury was caused on the head of Abdul Rashid. Dr Uday conducted the operation on the injuries of Abdul Rashid as a neurosurgeon and fully supported the opinion expressed by PW 5 Dr Rakesh Sharma that Injury 4 was 'grievous and fatal for life'.

14. We notice that the gravity of the injuries was taken note of by the Sessions Court and it had awarded the sentence of 10 years rigorous imprisonment for the offence punishable under Section 307 IPC, but not by the High Court. The High Court has completely overlooked the various principles laid down by this Court in Gian Singh v. State of Punjab [(2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 : (2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988], and has committed a mistake in taking the view that the injuries were caused on the body of Abdul Rashid in a fight occurred on the spur in the heat of the moment. It has been categorically held by this Court in Gian Singh [(2012) 10 SCC 303 : (2012) 4 SCC (Civ) 1188 :

(2013) 1 SCC (Cri) 160 : (2012) 2 SCC (L&S) 988] that the Court, while exercising the power under Section 482 CrPC, must have 'due regard to the nature and gravity of the crime' and 'the societal impact'. Both these aspects were completely overlooked by the High Court. The High ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 9 Court in a cursory manner, without application of mind, blindly accepted the statement of the parties that they had settled their disputes and differences and took the view that it was a crime against 'an individual', rather .

than against 'the society at large'.

15. We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual, on the other hand, it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, is of because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant just to protect the individual but the society as a whole. The High Court rt was not right in thinking that it was only an injury to the person and since the accused persons (sic victims) had received the monetary compensation and settled the matter, the crime against them was wiped off. The criminal justice system has a larger objective to achieve, that is, the safety and protection of the people at large and it would be a lesson not only to the offender but to the individuals at large so that such crimes would not be committed by anyone and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present one will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful coexistence and welfare of the society at large."

(emphasis supplied)

11. We would like to mention at this stage that in some cases the offences under Section 307 IPC are allowed to be compounded, whereas in some other cases, it is held to be contrary. This dichotomy was taken note of by referring to those judgments, in Narinder Singh v. State of Punjab[(2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54], and by reconciling those ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 10 judgments, situations and circumstances were discerned where compounding is to be allowed or refused. To put it simply, it was pointed out as to under what circumstances the Courts had quashed the proceedings acting upon the .

settlement arrived at between the parties on the one hand and what were the reasons which had persuaded the Court not to exercise such discretion. After thorough and detailed discussion on various facets and after revisiting the entire law on the subject, the following principles have been culled out in the said decision: (SCC pp. 482-84, para 29) "29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High of Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to rt accept the settlement with direction to continue with the criminal proceedings:

29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 11 rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statutes like the Prevention of Corruption Act or .

the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationships of or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to rt examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crimes against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or if the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of the injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, the nature of weapons used, etc. Medical reports in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 12 chances of conviction are remote and bleak. In the former case, it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case, it would be permissible for the High Court to accept the plea .

compounding the offence based on a complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, the timings of settlement play a crucial role. In those cases where the settlement is of arrived at immediately after the alleged commission of an offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal rt proceedings/investigation. It is because of this reason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, in those cases where the charge is framed but the evidence is yet to start or the evidence is still at the infancy stage, the High Court can show benevolence in exercising its powers favourably, but after a prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in the acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 13 recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

(emphasis supplied) .

12. It is clear from the reading of the passages extracted above, that the offence under Section 307 is not treated as a private dispute between the parties inter se but is held to be a crime against the society. Further, guidelines are laid down for the Courts to deal with such matters when an application for quashing of proceedings is filed after the parties have settled the issues between themselves.

8. This position was reiterated in State of M.P. v. Kalyan Singh, (2019) 4 SCC 268 : (2019) 2 SCC (Cri) 57: 2019 SCC OnLine SC rt 7, wherein it was observed:

5. It is required to be noted that the original accused was facing criminal proceedings under Sections 307, and 294 read with Section 34 IPC. It is not in dispute that as per Section 320 CrPC offences under Sections 307, 294 read with Section 34 IPC are non-compoundable. It is also required to be noted that the allegations in the complaint for the offences under Sections 307, and 294 read with Section 34 IPC are, as such, very serious. It is alleged that the accused fired twice on the complainant with a countrymade pistol. From the material on record, it appears that one of the accused persons was reported to be a hardcore criminal having criminal antecedents. Be that as it may, the fact remains that the accused was facing criminal proceedings for the offences under Sections 307, 294 read with Section 34 IPC and that the offences under these sections are non-compoundable offences and, looking to the serious allegations against the accused, we are of the opinion that the High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 IPC ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 14 solely on the ground that the original complainant and the accused have settled the dispute.

6. At this stage, the decision of this Court in Gulab Das v. State of M.P. [Gulab Das v. State of M.P., (2011) 10 SCC .

765 : (2012) 1 SCC (Cri) 421] is required to be referred to. In the said decision, this Court has specifically observed and held that, despite any settlement between the complainant on the one hand and the accused on the other, the criminal proceedings for the offences under Section 307 IPC cannot be quashed, as the offence under Section 307 is a non-

compoundable offence. Under the circumstance, the impugned judgment and order passed by the High Court of quashing the criminal proceedings against the original accused for the offences under Sections 307, 294 read with Section 34 IPC cannot be sustained and the same deserves to be quashed and set aside.

9. rt A similar view was taken in State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688 : (2019) 2 SCC (Cri) 706: 2019 SCC OnLine SC 320, wherein it was observed at page 704

15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

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15.3. Similarly, such power is not to be exercised for the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that .

capacity are not to be quashed merely on the basis of compromise between the victim and the offender; 15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crimes against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC of and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute rt amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or if the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of the injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, the nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the chargesheet is filed/the charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 16 harmoniously and to be read as a whole and in the circumstances stated hereinabove;

15.5 While exercising the power under Section 482 of the Code to quash the criminal proceedings in .

respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had of managed with the complainant to enter into a compromise, etc.

16. Insofar as the present case is concerned, the High Court rt has quashed the criminal proceedings for the offences under Sections 307 and 34 IPC mechanically and even when the investigation was under progress. Somehow, the accused managed to enter into a compromise with the complainant and sought quashing of the FIR on the basis of a settlement. The allegations are serious in nature. He used a firearm also in the commission of the offence. Therefore, the gravity of the offence and the conduct of the accused is not at all considered by the High Court and solely on the basis of a settlement between the accused and the complainant, the High Court has mechanically quashed the FIR, in the exercise of power under Section 482 of the Code, which is not sustainable in the eye of the law. The High Court has also failed to note the antecedents of the accused.

10. Thus, it is not permissible to quash the FIR in an offence punishable 307 of IPC based on the compromise.

11. The F.I.R. reads that the informant was going to his office on 23.07.2022 at 6:40-6:45 p.m. Two vehicles were parked at some distance from the office. 3 to 4 persons got down from ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 17 the vehicle, who were armed with pistols. He identified Raj Kumar and Amit Kumar. Amit Kumar shot the informant. The informant sustained an injury on his right arm. Raj Kumar also shot at the .

informant but the bullet did not injure the informant. They shot towards the office and the windowpane was damaged. The informant ran towards his home. The person accompanying the of petitioner was armed with a long Darat-like weapon. The police registered the F.I.R. The injured was subjected to medical examination and the nature of the injury was stated to be grievous rt blunt. The accused did not produce any pistol. The Challan was prepared and it was presented before the learned Trial Court.

12 It is apparent from the contents of the F.I.R. that petitioners had fired gun shot at the informant. It was submitted that no fatal injury was sustained by the informant and no offence punishable under Section 307 of IPC is made out.

13. 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.

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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 of 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 rt 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 ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 19 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 of 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 rt 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."

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14. 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 of recent Judgment in `Jage Ram and Others vs. State of Haryana' (2015) 11 SCC 366, the law has been laid down as follows:

rt "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."

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15. 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-

of appreciating the true import of Section 307 IPC held as follows:

"12. To justify a conviction under this section, it is not rt 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 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 ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 22 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 of & 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 rt 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."

16. Therefore, merely because the injury was found on the wrist of the informant, it cannot be said that no case for the ::: Downloaded on - 06/01/2024 20:33:06 :::CIS 23 commission of an offence punishable under Section 307 of IPC is made out against the petitioner.

17. The pistol is a deadly weapon. Had the death been caused, the petitioners would have been guilty of committing the murder because the injury caused by the firearm can lead to an inference that the person using the firearm intended to cause of death, therefore, the offence punishable under Section 307 of IPC is made out.

18. rt In Kasim Deen'scase, this Court held in para 12 that the offences committed by the petitioners were not grave/heinous crimes but rather the same were petty offences, which is not the case here. In Kala's case, this Court found that the firearm was not aimed at the informant. In the present case, the pistol was aimed at the informant and he had sustained injury. Therefore, the ratio of both cases does not apply to the present case.

19. Since in the present case, FIR discloses the commission of an offence punishable under Section 307 of IPC;hence, the F.I.R. cannot be quashed as per the judgment of the Hon'ble Supreme Court.

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20. Consequently, the present petition fails and the same is dismissed.

21. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

(Rakesh Kainthla) Judge of 05th January, 2024 (Ravinder) rt ::: Downloaded on - 06/01/2024 20:33:06 :::CIS

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