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Judgment
Gurpal Singh Ahluwalia, J
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 28/06/2006 passed by Sessions Judge, Bhopal in Sessions Trial No.25/2005, by which appellant has been convicted and sentenced for the following offence:-
Section
Act
Punishment
Fine
In default
324
IPC
1 year R.I.
Rs.1,000/-
3 months R.I
Facts necessary for disposal of present appeal in short are that on 10/12/2004 at about 11:30 in the night, complainant Shailesh Saraswat was going back to his house along with his friends. He stopped near Sadana medical store to chew Paan. At that time, appellant- Manish Bhadoriya, who was already present on the Paan shop, started abusing him and extended a threat that he would abduct his wife and would kill his son and would also kill the complainant. When complainant asked as to what is the difficulty with him, then accused pushed the complainant. When the complainant was about to leave, appellant extended a threat and gave a knife blow in the abdominal region of the complainant. Second knife blow was also made, however he was caught hold by the by-passers. He came back to his house and informed the incident to his wife Shalini (PW-3) and brother-in-law Avinash (PW-5). They took the complainant to 1250 hospital from where he was referred to Hamidia Hospital or Ayushman Hospital. Accordingly, complainant was shifted to Ayushman Hospital where he was treated by Dr. Ashutosh (PW-1). Dehati Nalishi was lodged by Avinash. Statements of witnesses were recorded. Appellant was arrested and a knife was seized vide seizure memo. Accordingly, charge-sheet under Section 307 of IPC read with Section 25/27 of Arms Act was filed.
Trial Court by order dated 13/06/2005 framed the charge under Section 307 of IPC and under Section 25/27 of Arms Act.
Appellant abjured his guilt and pleaded not guilty.
Prosecution examined Dr. Ashutosh (PW-1), Shailesh Saraswat (PW-2), Shalini Saraswat (PW-3), J.P. Rai (PW-4), Avinash (PW-5), Mohan Gaur (PW-6), Mahesh Kumar Jain (PW-7), Rajendra Tiwari (PW-8), Raja Shukla (PW-9), M.L. Gothiya (PW-10) and V.K. Sonwani (PW-11). Appellant abjured his guilt and pleaded not guilty and examined Dr. P.K. Jain (DW-1) in his defence.
Trial Court by the impugned judgment and sentence acquitted the appellant for offence under Section 307 of IPC and under Section 25/27 of Arms Act and convicted the appellant for offence under Section 324 of IPC and sentenced to the period already mentioned above.
Challenging the judgment and sentence passed by the Court below, it is submitted by counsel for the appellant that incident had taken place on 10/12/2004 and 19 long years have passed. No minimum sentence has been provided for offence under Section 324 of IPC. Appellant had already remained in jail for a period of 12 days and appellant may be sentenced to the period already undergone by him.
Per contra, appeal is vehemently opposed by counsel for the State. However, it is fairly conceded by counsel for the State that no appeal against acquittal of appellant for offence under Section 307 of IPC was filed.
Heard learned counsel for the parties.
Dr. Ashutosh (PW-1) had medically examined the injured and had given his medical report, Ex.P-1. Appellant had examined Dr. P.K. Jain (DW-1), who had prepared the MLC of the injured. According to the MLC (Ex.D-1), the depth could not be ascertained due to bleeding.
Dr. Ashutosh (PW-1) has stated that the patient was bleeding profusely, had stabbed injury wound at lower abdomen, vitals were stable. Patient was conscious and well oriented. USG of abdomen was done urgently. Emergency exploratory laprotomy was done. No injury was seen on the internal organs. After surgery, patient was shifted to ICU and the patient had good and satisfactory post-operative recovery. According to this witness, patient had grievous stab injury wound over lower abdomen which was dangerous to life. Dr. Ashutosh (PW-1) in his evidence has specifically stated that no injury to the vital internal organs was found. Blood had accumulated which was removed and the wound was stitched.
Although appellant has relied upon the evidence of Dr. P.K. Jain (DW-1) to suggest that injured had informed that some unknown person had assaulted him by knife but in the MLC, it is not mentioned by Dr. P.K. Jain that aforesaid information was given by injured. Thus, in absence of documentary endorsement in the MLC (Ex.D-1), evidence of Dr. P.K. Jain (DW-1) to the effect that it was the patient who had informed that some unknown person had assaulted him, cannot be accepted. Furthermore, no such question was put to complainant Shailesh Saraswat (PW-2) in his cross-examination. Even the injured Shailesh Saraswat (PW-2) has not stated that his MLC was done in Jai Prakash Hospital, Bhopal. Even Shalini Saraswati (PW-3) has stated that no enquiry was done by Doctor in 1250 hospital.
Shailesh Saraswat (PW-2) is the injured witness. Shalini Saraswat (PW-3) and Avinash (PW-5) are the hearsay witnesses. Raja Shukla (PW-9) is also an eye-witness who has stated that the appellant had assaulted the complainant. V.K. Sonwani (PW-11) has turned hostile.
In view of the evidence of prosecution witnesses, this Court is of the considered opinion that prosecution had successfully established that it was the appellant who caused knife injury to the injured Shailesh Saraswat.
So far as the nature of offence is concerned, Trial Court has held that since the injury was not caused with great force, therefore no offence is made out under Section 307 of IPC.
For ascertaining the fact as to whether an offence under Section 307 of IPC is made out or not, the nature of injury is not material. It is the intention, knowledge and some overt act on the part of the accused are decisive factors.
The Supreme Court in the case of State of Madhya Pradesh Vs. Harjeet Singh and others reported in (2019) 20 SCC 524 has held as under:-
5.6.1. If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307.
5.6.2. This Court in R. Prakash v. State of Karnataka, (2004) 9 SCC 27 : 2004 SCC (Cri) 1408, held that: (SCC p. 30, paras 8-9)
“8. … 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 rigour 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 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.”
(emphasis supplied)
5.6.3. 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 IPC 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 Section 307 IPC. [State of M.P. v. Mohan, (2013) 14 SCC 116 : (2014) 4 SCC (Cri) 119]
5.6.4. This Court in Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425 held that:
(SCC p. 370, para 12)
“12. For the purpose of conviction under Section 307 IPC, 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.”
(emphasis supplied)
5.6.5. This Court in the recent decision of State of M.P. v. Kanha (2019) 3 SCC 605 : (2019) 2 SCC (Cri) 247 held that: (SCC p. 609, para 13)
“13. The above judgments [Ed.: The reference is to State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 : 1983 SCC (Cri) 320; State of M.P. v. Saleem, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329; Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425] 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.”
The Supreme Court in the case of State of Madhya Pradesh Vs. Kanha Alias Omprakash reported in (2019) 3 SCC 605 has held as under:-
“13. The above judgments of this Court lead us to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.”
The Supreme Court in the case of State of M.P. v. Saleem Alias Chamaru and Another reported in (2005) 5 SCC 554 has held as under:-
“12. 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 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 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 : 1983 SCC (Cri) 320], Girija Shankar v. State of U.P. [(2004) 3 SCC 793 : 2004 SCC (Cri) 863] and R. Prakash v. State of Karnataka [(2004) 9 SCC 27 : 2004 SCC (Cri) 1408 : JT (2004) 2 SC 348] .
In Sarju Prasad v. State of Bihar [AIR 1965 SC 843 : (1965) 1 Cri LJ 766] it was observed in para 6 that 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 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. 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.
It is the case of prosecution that appellant had given a knife blow in the abdominal region of the complainant and the second attempt to assault him was foiled by the by-passers. However, since no appeal has been filed against the acquittal of the appellant for offence under Section 307 of IPC and the incident took place about 19 years back, therefore no useful purpose would be served by issuing a show cause notice to the appellant against his acquittal. Thus, conviction of appellant for offence under Section 324 of IPC is hereby affirmed.
So far as the question of sentence is concerned, appellant was 25 years of age on the date of incident. It is not the case of prosecutor that appellant had any criminal history. Since the incident took place on 10/12/2004 and more than 19 years have passed thereafter and the appellant had already remained in jail for a period of 12 days and in absence of any minimum sentence for offence under Section 324 of IPC, this Court is of the considered opinion that by enhancing the fine amount, appellant can be punished with the jail sentence already undergone by him.
Accordingly, by affirming the conviction of appellant under Section 324 of IPC, it is directed that jail sentence already undergone by the appellant is sufficient to meet the ends of justice. However, fine amount is enhanced to Rs.15,000/- (Rupees Fifteen Thousand Only).
Let the fine amount be deposited latest by 29/02/2024, failing which jail sentence awarded by the Trial Court shall automatically stand revived.
With aforesaid modification, judgment and sentence dated 28/06/2006 passed by Sessions Judge, Bhopal in Sessions Trial No.25/2005, is hereby affirmed.
The bail bonds and surety bonds are hereby cancelled.
Let a copy of this judgment be sent to the Trial Court along with record for necessary information and compliance.
Appeal succeeds and is hereby allowed to the extent mentioned above.