Brajesh Kumar Mishra vs State Of Madhya Pradesh

By way of present revision, the applicant seeks following reliefs :

(i) call for the record of Session Trial No.60/2018 pending before First Additional Sessions Judge, Jatara District Tikamgarh.

(ii) quash impugned order dated 07.01.2019 passed by First Additional Sessions Judge, Jatara District Tikamgarh in Session Trial No.60/2018 whereby charges for the offence punishable under Sections 294, 325, 323/34 and 506 Part II of the IPC have been levelled against the respondents No.2 and 3.

(iii) to frame additional charges under Section 307 of the IPC or in the alternative and without prejudice under Section 326 of IPC.

As per the prosecution case, on 20.09.2018 at about 6.30 p.m., when the complainant Suresh Prasad Mishra was sitting in front of his house at a kirana store, the respondents No.2 and 3 came there and assaulted him by means of lathies owing to some land dispute pertaining to Temple and when his son Brajesh Kumar Mishra, the present applicant, came forward to save him, respondent No.3 dealt a lathi blow on his head and other parts of the body and also threatened them with dire consequences. Thereafter, both the injured were sent to CHC Jatara and from where they were referred to District Hospital. Upon a report lodged by the complainant Suresh Prasad Mishra, an offence under Sections 323, 294, 324, 506 read with 34 of the IPC was registered against the respondents No.2 and 3. However, considering the nature and situs of injuries received by the complainant and his son Brajesh Kumar Mishra, Sections 325 and 326 IPC were added in the charge sheet. Learned Court below vide impugned order discharged the respondents No.2 and 3 from the charge under Section 326 IPC as there is possibility that the injury sustained by the applicant could be dangerous to life.

Learned counsel for the applicant submits that learned First Additional Sessions Judge, Jatara District Tikamgarh committed grave error in law in discharging the respondents No.2 and 3 from the charge under Section 326 IPC inasmuch as there is sufficient material on record to show that the accused persons had caused grievous injuries to the applicant. It is also contended that looking into the nature of injuries sustained by the applicant, additional charge under Section 307 IPC ought to be framed by the learned trial Court as the blow was on a vital part. Reference has also been made to the decisions of the Apex Court in the cases of State of M.P. vs Harjeet Singh 2019 SCC Online SC 231, State of M.P. vs Kanha @ Omprakash 2019 SCC Online SC 120, State of M.P. vs Mohan (2013) 14 SCC 116, Jage Ram vs State of Haryana (2015) 11 SCC 366 and R. Prakash vs State of Karnataka (2004) 9 SCC 27. Attention has also been invited to the fact that the bail application filed by respondents No.2 and 3 was dismissed by the trial Court in view of the fact that in X-ray report, it was found that the applicant had sustained fracture in head and the injuries received by him could be dangerous to life. On these grounds, prayer is made to frame additional charge under Section 307 IPC or in the alternative, under Section 326 IPC ought to be framed.

Learned counsel for the respondents No.2 and 3 opposes the prayer made by the applicant on the ground that neither any weapon is used in causing assault nor the Doctor has specifically stated that the said injury is dangerous to life. Hence, the trial Court at the time of framing of charge has rightly framed the charge under Section 325 IPC instead of Section 307 IPC.

I have considered the rival submissions of learned counsel for the parties and perused the entire record as well as the documents filed along with the case diary, this Court is of the view that at the outset, we should have a look upon the provisions of Section 307 IPC. The relevant portion of Section 307 IPC reads as follows :

"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 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."

In R. Prakash's case (supra), the Supreme Court has held :

"8. Therefore, the only question which needs to be dealt with relates to the applicability of Section 307 IPC. The evidence of the eyewitnesses goes to show that they tried to intervene and save PW-3 from being assaulted by the appellant A-1, but he continued to assault PW-3. The first blow was on a vital part, that is on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigor of Section 307 IPC. It is to be noted that in spite of interference by five persons, appellant continued to assault PW-3. This clearly indicates the intention of the appellant A-1.

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 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. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt."

In Jage Ram's case (supra), it has been observed :

"12. ..... 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.

.......

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.

......"

In a recent judgment of the Apex Court in the case of State of Madhya Pradesh vs Harjeet Singh (supra), it has been held :

"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 non vital 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 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."

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 2 State of Madhya Pradesh v. Mohan & Ors, (2013) 14 SCC 116 3 (2015) 11 SCC 366 16 has to establish (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."

This Court in the recent decision of State of M.P. v. Kanha @ Omprakash held that:

"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."

After taking guidance from the aforesaid pronouncements of the Apex Court, in the present case, it is evident that the accused gave two blows on the head of the injured, it means that both the blows were given on the head of the injured which is on vital part of the body resulting in fracture of the skull bone. Hence, there is no doubt that the injuries caused to the injured are on the vital part and grievous in nature. Hence, opinion of the Doctor that due to the injury, death might have been caused cannot be ruled out. The blow of lathi on the head of injured was so forceful that the fracture has been caused. So, knowledge of the accused that by causing such bodily injury death may be caused may be inferred because the intention is deduced from the act of the accused and other circumstances and it may in some other cases be deducible without any reference to the actual injury caused. It is not necessary that the injury actually caused to the injured of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. It is sufficient to constitute the offence under Section 307 IPC if there is present an intent coupled with some overt act in execution thereof.

Taking into consideration the above citations and on the basis of aforesaid discussion, this Court is of the view that the trial Court erred in not framing the charge under Section 307 IPC, instead, the trial Court gave a finding that the charge under Section 325 IPC would be framed and on that ground, remanded the matter to the Judicial Magistrate First Class, Jatara for further proceedings. In this view of the matter, the impugned order dated 07.01.2019 is not as per law and deserves to be quashed.

On the aforesaid findings, the impugned order dated 07.01.2019 is hereby quashed, so far as it relates to framing of charge under Section 325 IPC vis-a-vis Section 307 IPC. Learned First Additional Sessions Judge, Jatara Distt. Tikamgarh is, accordingly, directed that, in the instant case, charge under Section 307 IPC be framed, instead of Section 325 IPC.

In the result, the criminal revision stands allowed in above terms.