Punjab-Haryana High Court
Surinder Kumar vs Sunil Kumar And Others on 22 February, 2012
Author: S.S. Saron
Bench: S.S. Saron
CRM No.16008 of 2011 and [1]
CRM No. A-289-MA of 2011 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANAT AT
CHANDIGARH
CRM No.16008 of 2011 and
CRM No. A-289-MA of 2011 (O&M)
Date of decision : February 22, 2012
Surinder Kumar
..... Appellant
Versus
Sunil Kumar and Others
..... Respondents
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE M. JEYAPAUL.
Present : Mr. Sunil Polist, Advocate for the applicant.
***
S.S. SARON, J.
CRM No.16008 of 2011 The Crl. Misc. application has been filed seeking condonation of 113 days in filing the application seeking leave to appeal against the acquittal of respondents No.1 to 9 for the offence under Section 307 Indian Penal Code ("IPC" - for short).
It is submitted that delay in filing the application seeking leave to appeal is that the clerk of the counsel for the applicant/appellant misplaced the paper-book and for this reason a delay of 113 days in filing the application for grant of leave to appeal has occurred.
After giving our thoughtful consideration to the matter, we find sufficient cause to condone the delay in filing the application for grant of leave to appeal.
CRM No.16008 of 2011 and [2]CRM No. A-289-MA of 2011 (O&M) Accordingly, the Crl. Misc. application seeking condonation of delay is allowed and a delay of 113 days in filing the application for grant of leave to appeal is condoned. CRM No. A-289-MA of 2011 (O&M) The Crl. Misc. application has been filed under Section 378 (4) read with Section 482 of the Code of Criminal Procedure for grant of leave to appeal against the acquittal of respondents No.1 to 9 for the offence under Section 307 IPC.
The application seeking leave to appeal has been filed by Surinder Kumar who is the complainant and injured in the case. The FIR in the case was registered on the statement (Ex.PA) of the applicant Surinder Kumar made before ASI Udeyvir Singh (PW7). It is alleged by the complainant Surinder Kumar (applicant) that on 26.1.2008 he along with his friend Suresh had obtained earnest money to the tune of Rs.4.5 lacs for sale of land. They closed their office at about 9.00 p.m. and were carrying the cash and returning to their house in a Maruti car. When they reached at the crossing (chowk) outside their houses Suresh Kumar got down from his car while Surinder Kumar complainant kept sitting in the car. In the meantime, Pardeep alias Mota (respondent No.5) armed with a sword gave a blow on the forehead of the complainant Surinder Kumar. He exhorted that a lesson be taught to him (Surinder Kumar) for conducting the business of property dealing. Shyama (who has not been apprehended) and Sunil (respondent No.1) pulled the complainant Surinder Kumar out of the car and caused CRM No.16008 of 2011 and [3] CRM No. A-289-MA of 2011 (O&M) injuries on his head with spears. Anil Kumar (respondent No.2) and Parveen (respondent No.7) as also Om Parkash (respondent No.3) caused injuries on the arms and legs of the complainant with spears. Minti (respondent No.4) caused injuries on the abdomen and thighs of the complainant with a 'trishool'. Nobat (respondent No.9), Rakesh (respondent No.6) and Anil (respondent No.8) caused injuries on the head as well as chest and leg of the complainant with rods. Thereafter, the assailants caused injuries on the person of Suresh Kumar, friend of the complainant who sustained injuries on his back, arms and thighs. When Surinder Kumar, complainant and his friend Suresh Kumar raised a hue and cry then the brother-in-law of Suresh Kumar namely Kulbir rescued the injured from the assailants. On seeing him, the assailants fled away from the scene of occurrence and while leaving they criminally intimidated the complainant that they had been saved but on the next available opportunity they would be eliminated. The cash of Rs.4.5 lacs which was being carried by the complainant was missing. Kuldeep got the complainant Surinder Kumar admitted in General Hospital, Kaithal from where he was referred to PGI, Chandigarh for treatment.
The learned Additional Sessions Judge, Kaithal after considering the evidence and material on record held that the offence under Section 307 read with Section 149 IPC was not made out and respondents No.1 to 9 were acquitted of the said charge. They were, however, held guilty for committing offences punishable under Sections 323, 325 and 506 read with Section 149 IPC as also for the offence under Section 148 IPC. CRM No.16008 of 2011 and [4] CRM No. A-289-MA of 2011 (O&M) They were accordingly convicted for the said offences and sentenced to undergo varying terms of imprisonment, the maximum being two years. The sentences of imprisonment were ordered to run concurrently.
The grievance of the applicant is that respondents No.1 to 9 have been erroneously acquitted of the offence under Section 307 read with Section 149 IPC.
Learned counsel for the applicant/appellant has submitted that Surinder Kumar-injured received an injury on his head and Dr. R.D. Chawla (PW8) had opined that the injury could be dangerous to life. It is submitted that a fracture was detected on the frontal occipital region of the skull of the complainant. Therefore, it is submitted that respondents No.1 to 9 have wrongly been acquitted for the offence under Section 307 read with Section 149 IPC. It is also submitted that co-injured of the applicant namely Suresh Kumar received 24 injuries.
We have given our thoughtful consideration to the matter. It may be noticed that the learned trial Court has convicted respondents No.1 to 9 and sentenced them to imprisonment for the offences other than Section 307 read with Section 149 IPC. It is the intention of the accused which is to be seen in order to determine whether the offence is one, which makes out a case of attempt to murder. In order to establish a case for the offence under Section 307 IPC where an injury is caused it is necessary for the prosecution to establish that the intention of the accused in causing the injury was of any of the three kinds mentioned in Section 300 IPC and unless the said burden is discharged by the prosecution, a charge CRM No.16008 of 2011 and [5] CRM No. A-289-MA of 2011 (O&M) for the offence under Section 307 IPC cannot be said to be brought home. To constitute the offence of attempt to murder in terms of Section 307 IPC it is to be established where injuries are inflicted that the accused caused the injuries with the intention to cause death or had the knowledge that injuries would cause death but the death actually does not occur. The injury which can be said to be one making out an offence of Section 307 IPC is the injury on the frontal occipital region on the skull of the complainant Surinder Kumar in which fracture was detected. Dr. Kailash Garg (PW9) who was posted as Medical Officer PHC Dhand on 26. 01.2008 had medico legally examined the complainant Surinder Kumar at 10.30 p.m. Injuries No.1 and 2 on the person of Surinder Kumar are as follows:-
"1. There was a lacerated wound 4 cm x 1 cm irregular margin. Fresh bleeding was present. On exploration, depression was present in bone broken edges felt over right side of fore head 3 cm above the eye brow. C.T. Scan of head was advised and neurologist opinion was sought.
2. There was a lacerated wound 4 cm. X 1 cm. over left side of forehead 1 cm, above the eye brow. Irregular margins were CRM No.16008 of 2011 and [6] CRM No. A-289-MA of 2011 (O&M) present. Fresh bleeding was present. It was bond deep. No depression was present in the bond.
X-Ray skull A.P. Lateral was
advised Surgeon's opinion was
sought."
The injuries were kept under observations and were subjected to CT scan and X-ray reports. All the injuries were the result of infliction of blunt weapons. Duration of the injuries was within six hours. On 30.1.2008 Dr. Kailash Garg (PW9) again medico-legally examined the complainant Surinder Kumar and he found seven injuries on his person. Injuries No.1, 2, 4, 5, 6 & 7 out of the said injuries were simple in nature and were caused by blunt weapons. Injury No.3 which was a bruise 12 x 7 cm purplish over anterior aspect of left thigh extending up to pubic region and genetile, was also the result of inflicting a blunt weapon. It was, however, kept under observation and was subjected to surgeon's opinion. Dr. Vijay Kumar, Radiologist (PW11) conducted CT scan of brain of the complainant Surinder Kumar on 29.1.2008. After CT scan the patient was found to be having multiple depressed fracture of right frontal bone and he (PW11) gave his report (Ex.PJ/1). CT scan film was proved as Ex.PJ/2.
From the nature of the injuries and, the intention of the assailants i.e. respondents No.1 to 9 it is to be seen wether the offence under Section 307 IPC can be said to be made out.
In Atma Singh v. The State of Punjab, 1982 (2) CLR 496 a CRM No.16008 of 2011 and [7] CRM No. A-289-MA of 2011 (O&M) Division Bench of this Court held that when the doctor is required to carry out medico-legal examination of the injury suffered in a criminal assault, he is required to examine the injury from two stand points i.e. 1) for the purpose of opining the kind of weapon used to inflict the injury in question and (2ndly) to form an opinion regarding the degree of seriousness of the injury in question. The Indian Penal Code recognises from the stand point of seriousness only four types of injuries (1) simple injuries (2) grievous injuries (3) injuries of the kind inflicted with intent to commit murder described in clause Firstly and 2ndly of Section 300 IPC (4) injury sufficient to cause death in the ordinary course of nature envisaged by clause Thirdly of Section 300 IPC. It was observed that there was no provision in the Indian Penal Code which envisages or refers to an injury described as "dangerous to life". The medico-legal examination of the injured is intended to enable the Investigating Agency and the Court to find out the nature of the offence and, therefore, the doctor examining an injured person has to opine that the injury in question is one or the other of the type recognised in the Indian Penal Code for the purposes of a given offence. When a doctor describes an injury as "dangerous to life", one has to see what had the doctor intended to convey thereby. Is it one to hold that since injury has not been described by the doctor as one which "endangered life", so the concerned injury cannot be held to be grievous on the specious ground that an injury described as "dangerous to life" is not as serious an injury which "endagers life". The following observations of the Division Bench are apposite:-
CRM No.16008 of 2011 and [8]
CRM No. A-289-MA of 2011 (O&M) " It appears that the doctors who had been conducting the medico-legal examination have been using the term 'dangerous to life' as synonymous with an injury which 'endangers life'. Even the Courts at times have considered an injury described as dangerous to life as an injury envisaged in clause Eighthly of Section 320 of the Indian Penal Code. In this rgard reference can be made to Muhammad Rafi v. Emperor, AIR 1930 Lahore 305. In that case the injury was on the right side of the neck about 2-1/2" x 3/4" in dimension inflicted with a sharp edged weapon. The doctor had, in fact, in that case deposed that there was every possibility of the deceased surviving but for the wound becoming septic apparently as a result of it being pressed with hands and bandaged with dirty cloth in the initial stages before the deceased was taken to the hospital. The Court held that though a finding that the appellant knew that his act was likely to cause death, was not justified but at the same time, a wound on the neck, must at least be CRM No.16008 of 2011 and [9] CRM No. A-289-MA of 2011 (O&M) considered to be 'dangerous to life' within the meaning of Clause 8 Section 320 Indian Penal Code, and therefore, 'grievous'.
Palekar, J, too in Jai Narain Mishra & Others v. State of Bihar, 1972 CAR 19 (SC) held, a penetrating would 1-1/2" x ½" x chest wall deep on the right side of the chest caused with a bhala and described as 'dangerous to life' as grievous injury and in the later part of paragraph 11 called this injury as one endangering life.
The expression 'dangerous' is an adjective and the expression 'endanger' is verb. An injury which can put life in immediate danger of death would be an injury which can be termed as 'dangerous to life' and, therefore, when a doctor describes an injury as 'dangerous to life', he means an injury which endangers life in terms of clause 8 of Section 320, Indian Penal Code, for, it describes the injury 'dangerous to life' only for the purpose of the said clause. He instead of using the expression that this was an injury which 'endangered life', described it that the CRM No.16008 of 2011 and [10] CRM No. A-289-MA of 2011 (O&M) injury was 'dangerous to life', meaning both the time the same thing."
In Sarju Prasad v. State of Bihar, AIR 1965 Supreme Court 843, it was held that to attract the provisions of Section 307 IPC, it is necessary for the prosecution to establish that intention of the accused in causing the injury was of any of the three kinds referred to in Section 300 IPC and unless the prosecution discharges the burden, the offence under Section 307 IPC cannot possibly be brought home. In the said case, the accused had caused an injury with the knife in a vital region but no vital organ of the injured was cut as a result of injury. However, he was convicted by the Court below for an offence under Section 307 IPC. The Hon'ble Supreme Court held that the state of mind has to be deduced from the surrounding circumstances. Besides also the existence of a motive to cause death would be a relevant consideration. Taking the totality of the circumstances, it was held that there was no intention of murder or to cause any injury which may result in death could be inferred. Accordingly, it was held that the prosecution had not established that the offence committed fell squarely under Section 307 IPC and that in its opinion, it amounted to an offence under Section 324 of the IPC.
Therefore, in order to appreciate whether in the circumstances, offence under Section 307 IPC is made out, the injuries are to be of kind as mentioned in Section 300 IPC except that death has not occurred. The injury which has been mentioned by Dr. R.D. Chawla (PW8) as dangerous to life would not by itself make out an offence under Section 307 IPC. The CRM No.16008 of 2011 and [11] CRM No. A-289-MA of 2011 (O&M) injury which has been described as dangerous to life may be a 'grievous injury' as defined in terms of Clause Eighthly to Section 320 IPC. Clause Eighthly to Section 320 IPC envisages that any hurt which endangerous life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Respondents No.1 to 9 have been convicted and sentenced for causing grievous injuries in terms of Section 325 IPC. The intention of respondents No.1 to 9 is to be gathered from the nature of injuries inflicted and the other attending circumstances. Respondents No.1 to 9 inflicted the injuries to the complainant Surinder Kumar and his friend Suresh Kumar as they had started the business of property dealing. For the same it cannot be said that their intention was to commit his murder but was only to cause injuries so as to stop the complainant side from carrying on with the business of property dealing or that they may be having jealousy from them of having started the business, but the motive for inflicting the injuries cannot be said to be one where they intended to murder him. Therefore, an offence under Section 307 IPC was not made out. In the circumstances, we find no infirmity in the order of the learned trial Court insofar as respondents No.1 to 9 have not been convicted and sentenced for the offence under Section 307 read with Section 149 IPC and merely because another view may be possible, the acquittal of respondent No.1 to 9 is not liable to be interfered with.
Accordingly, there is no merit in the Crl. Misc.
application seeking leave to appeal against the acquittal of respondents No. 1 to 9 for the offence under Section 307 read with Section 149 IPC and the CRM No.16008 of 2011 and [12] CRM No. A-289-MA of 2011 (O&M) same is dismissed. However, nothing stated herein shall be construed as an expression of opinion on the merits of the case in the appeal that may have been filed by respondents No.1 to 9 against their conviction and sentence for the offences under Sections 323, 325, 506 read with Section 149 IPC and also for the offence under Section 148 IPC.
(S.S. SARON) JUDGE (M. JEYAPAUL) JUDGE February 22, 2012 amit