Badam And Others vs State Of Madhya Pradesh And Another

This application under Section 482 of Cr.P.C. has been filed against the order dated 5/10/2017 passed by the Additional Sessions Judge to the Court of

Additional Sessions Judge, Ashoknagar in S.T. No.181/2015, by which the application filed by the applicants under Section 227 of Cr.P.C. has been

rejected.

It is submitted by the counsel for the applicants that although this application under Section 227 of Cr.P.C. was dismissed by order dated 5/10/2017,

but charges have not been framed so far. It is submitted by the counsel for the applicants that the police has filed the charge-sheet against the

applicants for offence under Sections 307, 147, 148, 294 and 506/34 of IPC in Crime No.21/2015. According to the prosecution case, the complainant

and his brother had gone to cast their votes. They found that Bhagwat Singh was involved in fake voting. When the complainant objected to it, then

the son of Bhagwat Singh replied that they would continue to cast fake votes. When the complainant told him that he would call the police and the

moment he took out the phone from his pocket, then all the applicants armed with Lathi and Farsa started exhorting each other that the complainant be

killed and accordingly, Badam gave a Lathi blow on the head of Indrabhan Singh and all the applicants started assaulting the complainant and others,

as a result of which, they sustained injuries. By referring to the MLC report, it is submitted by the counsel for the applicants that from the nature of

injuries sustained by the injured persons, it is clear that none of the injuries was dangerous to life, therefore, it cannot be said that the applicants have

prima facie committed an offence under Section 307 of IPC warranting framing of charge. It is further submitted that the intention of the applicants

can be ascertained from the fact that multiple injuries were not caused to the complainant party, thus, it can be said that the applicants have not

committed an offence under Section 307 of IPC. So far as the other offences are concerned, it is submitted that the applicants do not challenge

rejection of their application under Section 227 of Cr.P.C. in respect of other offences.

Heard learned counsel for the parties. Section 307 of IPC reads as under:-

“307. Attempt to murder.â€"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused

death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also

be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as

is hereinbefore mentioned.

Attempts by life convicts.â€"[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be

punished with death.]â€​

Under Section 307 of IPC the word “hurt†has been mentioned. Thus, it is clear that even if hurt is caused with an intention or knowledge to

cause death, then the said act of the accused may amount to murder. It is nowhere provided under Section 307 of IPC that the injury must be

sufficient in natural course to cause death or should be dangerous to life. Even otherwise, it is well established principle of law that the nature of

injuries is irrelevant for determining that whether the offence under Section 307 of IPC would be made out or not. The decisive factor for making out

an offence under Section 307 of IPC is the intention or knowledge. Whether the applicants had any intention to kill the injured or had any knowledge

to kill the injured, is a highly disputed question of fact, which is to be decided by the trial court after recording the evidence and considering the

surrounding circumstances. It is well established principle of law that while exercising the power under Section 482 of Cr.P.C. this Court cannot

adjudicate the disputed question of fact.  Â

It is well settled principle of law that in order to prima facie make out an offence under Section 307 of IPC, the nature of the injuries is not the sole

criteria. The Supreme Court in the case of Anjani Kumar Choudhary Vs. State of Bihar, reported in (2014) 12 SCC 286 has held as under:-

''10. The scope of Section 307 IPC has elaborately been dealt with by this Court in Mohan case [(2013) 14 SCC 116] (SCC pp. 12122, para 14),

wherein this Court has taken the view that if anybody does any act with intention or knowledge that by his act he might cause death and hurt is

caused, that is sufficient to attract Section 307 IPC. Further, this Court has also taken the view that, in order to attract Section 307 IPC, the injury

need not be on the vital part of the body.

   * * * *

The statements of the witnesses Baiju andManoj Chaudhary are also in the same lines. What is discernible from the above statements is that the

first accused and others, while committing the alleged offence, had exhorted that they would kill the appellant if the money was not paid. Open

announcement by the accused and others that the appellant would not be alive to practise in the High Court, would prima facie indicate that the

intention of the accused was, what he had spoken, followed by the infliction of injuries. Further, when several persons attack an unarmed person with

deadly weapons, it is reasonable to presume that they had knowledge or intention that such an attack would result in death. In the instant case, as per

the statements, the weapons used were lathi, rod, farsa, talwar, etc. and when we look at the nature of the injuries, it is clear that the injuries were

caused by using sharp-cutting weapons and also with hard blunt substance. Injuries were inflicted on the right temporal region of scalp at the base of

the right ear, right side of occipital region of scalp, left side of occipital region of scalp, etc. Open declaration by the accused that a person would be

killed, indicates his intention and, as held by this Court in Vasant Vithu Jadhav v. State of Maharashtra [(2004) 9 SCC 31], the question as to whether

there was an intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case which has to

be attributed on evidence by the trial court. The above facts would indicate that the ingredients of Section 307 IPC are made out.

We make it clear that this is only a prima facie view to decide as to whether the FIR and the statements of the witnesses contain averments so as

to charge-sheet the accused under Section 307 IPC and ultimately it is for the trial court to decide whether the offence under Section 307 IPC has

been made during trial, which ought to be ultimately decided on the basis of evidence tendered before the criminal court.â€​

In the case of Jage Ram Vs. State of Haryana reported in (2015) 11 SCC 366 , the Supreme Court has held as under :''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 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.

In State of M.P. v. Kashiram [(2009) 4 SCC 26], the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was

held as under: (SCC pp. 29-30, paras 12-13) “12. … ‘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 cannot be

acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

This position was highlighted in State of Maharashtra v. Balram Bama Patil [(1983) 2 SCC 28], Girija Shankar v. State of U.P. [ (2004) 3 SCC

793] and R. Prakash v. State of Karnataka [(2004) 9 SCC 27].

 * * *

Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case.

The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The

determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.’ See State of M.P. v. Saleem [(2005) 5

SCC 554], SCC pp. 559-60, paras 13-14 and 16.

‘6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of

law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to

the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka

Perumal v. State of T.N. [ (1991) 3 SCC 471 ] ’ (Saleem case [(2005) 5 SCC 554], SCC p. 558, para 6)â€​

The Supreme Court in the case of State of Maharashtra vs. Balram Bama Patil and Others, reported in (1983) 2 SCC 28 has held as under:-

''9. Shri Rana appearing for the State strenuously contended that the High Court has committed a grave error in holding that the offence under Section

307 IPC was not made out merely because the injuries inflicted on the witnesses were in the nature of a simple hurt and in these circumstances it is

not possible to hold any of the accused persons guilty in respect of that offence. We find considerable force in this contention. A bare perusal of

Section 307 IPC would show that the reasons given by the High Court for acquitting the accused of the offence under Section 307 were not tenable.

Section 307 IPC reads:

“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.â€

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 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.''

The Supreme Court in the case of Ratan Singh vs. State of Madhya Pradesh and Another, reported in (2009) 12 SCC 585 has held as under:-

''4. ''11. It is to be noted that the alleged offences are of very serious nature. Section 307 IPC relates to attempt to murder. It reads as follows:

‘307. Attempt to murder.â€"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.’

To justify a conviction under this section, it isnot 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 circumstances mentioned in the 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.

It is sufficient to justify a conviction underSection 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 cannot be acquitted merely because the injuries inflicted on the victim

were in the nature of a simple hurt.

This position was highlighted in State of Maharashtra v. Balram Bama Patil(1983) 2 SCC 28 , Girija Shankar v. State of U.P. (2004) 3 SCC 793

and R. Prakash v. State of Karnataka (2004) 9 SCC 27â€​ See State of M.P. v. Saleem (2005) 5 SCC 554 (SCC pp. 559-60, paras 11-14) and State of

M.P. v. Imrat (2008) 11 SCC 523.

“15. In Sarju Prasad v. State of Bihar AIR 1965 SC 843 it was observed in para 6 that [the] mere fact that the injury actually inflicted by the

accused did not cut any vital organ of the victim, is not by itself sufficient to take the act out of the purview of Section 307.

Whether there was intention to kill or knowledgethat death will be caused is a question of fact and would depend on the facts of a given case. The

circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative

question is the intention or knowledge, as the case may be, and not the nature of the injury. The basic difference between Sections 333 and 325 IPC is

that Section 325 gets attracted where grievous hurt is caused whereas Section 333 gets attracted if such hurt is caused to a public servant.

Section 307 deals with two situations so far asthe sentence is concerned. Firstly, 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 secondly 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 indicated in the first part i.e. 10 years. The maximum punishment provided for Section

333 is imprisonment of either description for a term which may extend to 10 years with a liability to pay fine.â€​

In view of what has been stated above, theimpugned order of the High Court is clearly unsustainable. The scope of interference under Section 482

of the Code at the present juncture as was done by the High Court is clearly unsustainable.''

Thus, for framing of charge under Section 307 of IPC, nature of injury is not material. The material aspect is the intention or knowledge and some

overt act in furtherance of that intention or knowledge.

The Supreme Court in the case of CBI vs. K.M. Sharan reported in (2008) 4 SCC 471 has held as under:-

At this stage, the High Court in its jurisdiction under Section 482 CrPC was not called upon to embark upon the inquiry whether the allegations in

the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are

matters which can be examined only by the court concerned after the entire material is produced before it on a thorough investigation and evidence is

led.

In the impugned judgment, according to the settled legal position, the High Court ought to have critically examined whether the allegations made in

the first information report and the charge-sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for

making out a case against the accused (the respondent herein).

The Supreme Court in the case of State of Orissa v. Ujjal KumarBurdhan reported in (2012) 4 SCC 547 has held as under :

“8. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide. Nevertheless, inherent powers do not

confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with

circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value

and accepted in their entirety do not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out

against those in charge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.

In State of W.B. v. Swapan Kumar Guha, emphasising that the Court will not normally interfere with an investigation and will permit the inquiry into

the alleged offence, to be completed, this Court highlighted the necessity of a proper investigation observing thus: (SCC pp. 597-98, paras 65-66)

“65. … An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed.

When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and

for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in

escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires

that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper

investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and

the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an

offence has been disclosed. … 66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each

particular case. … If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not

interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for

proving the offence.â€​

(emphasis supplied)

On a similar issue under consideration, inJeffrey J. Diermeier v. State of W.B., while explaining the scope and ambit of the inherent powers of the

High Court under Section 482 of the Code, one of us (D.K. Jain, J.) speaking for the Bench, has observed as follows: (SCC p. 251, para 20)

“20. … The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an

order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible

nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed

by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito

justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an

arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.â€​

Thus, while exercising the power under Section 482 of Cr.P.C. the High Court has to take the allegations in its entirety as true and cannot consider the

defence of the accused persons. Under these circumstances, this Court is of the considered opinion that since the submissions made by the counsel

for the applicants involve highly disputed questions of facts, which can be proved by the applicants only after leading their defence in the trial,

therefore, the trial court did not commit any mistake in rejecting the application filed by the applicants under Section 227 of Cr.P.C. Accordingly, the

order dated 5/10/2017 passed by the Additional Sessions Judge to the Court of Additional Sessions Judge, Ashoknagar in S.T. No.181/2015 is hereby

affirmed.

Accordingly, the application fails and is hereby dismissed.