Shubhendra Gaud vs State of Madhya Pradesh

Mr. P.K. Jaiswal, J.—By these two revision applications, the applicants Shubhendra Gaud and Anshul Panchal who are partly aggrieved by framing charge against them u/s 307/34 of IPC and are praying for setting aside of the order dated 23/05/2012 passed by IVth Additional Sessions Judge, Mhow District-Indore framing charges against them as well as against other co-accused persons u/s 294, 506, 323 and 307/34 of IPC. Brief facts of the case are that on 25/02/2012 Nakul lodged a ''Dehati Nalishi'' to the effect that on 24/0/2012 after annual function of college at about 8:00 p.m.; he along with his friends Afam, Yash, Neel and others had gone to 26 Hills Restaurant for dinner. That after placing order for dinner when they were standing in front of the restaurant, at that time two boys came on black ''Pulsar'' motorcycle bearing Registration No.M.P.09.MY.214. That on passing of remarks on Afam, by them, he asked them as to why they were misbehaving with him. That upon this they started abusing and said that they would return and show him as they were ''Hind Rakshak''. Thereafter at about 10:00 p.m., after dinner when they came out of restaurant, they saw those boys and two others on the Activa scooter and they abused them and addressed Afam and said ''Bauhat tez chalta hai, now they would just show him''. After saying so, they started beating by kicks and fists. On intervention by friends of Afam they were also abused and grappled with them. The injured Afam was beaten with kicks and fists and was lifted and thrown away. During the quarrel, injured Afam Qureshi fell down. On falling of Afam on the ground, the accused persons started beating him. When complainant and his friends tried to intervene the matter, they were also assaulted by the accused persons. After the incident, the accused persons fled away from the place of occurrence. The injured were taken to the hospital where they were treated.

As per M.L.C. report, injured Afam had sustained the following injury

Left eye black, Abrasion below left eye-lid. Advised for X-ray of hands, spine and MRI brain

The injured Nakul had sustained the following injury:-

Linear scratch(abrasion) on right wrist 3 c.m. X 1/6 c.m. X skin deep caused by hard and blunt object.

Treating Doctor S.V. Reje, on 2/03/2012, gave his opinion and stated that the injury sustained by Afam Qureshi is grievous in nature and would be dangerous to life if he developed complications. He also opined that the injuries will not have any adverse effect on the pre-existing disease.

It is submitted by learned counsel for the applicants that as per medical report of injured Nakul he sustained injury which is simple in nature. In respect of injured Afam it is submitted that the medical report do not spell out any of the ingredients of the offence charged, so as to bring the offence of attempt to commit murder. It is further submitted that the assault on the injured was by kicks and fist blows and no deadly weapon was used, neither there was any intention to commit his murder nor the injury of Afam was dangerous to life, the learned trial Court erred in overlooking these facts and also failed to consider that the alleged incidence was a sudden quarrel and also an accidental one, without any motive, therefore, offence of ''attempt to murder'' cannot be inferred. With the aforesaid submissions, it is submitted that no charge u/s 307 of IPC or 307/34 of IPC can be framed against them and prays for quashment of the said charge.

On the other hand, learned counsel for the complainant as well as learned counsel for the injured, vehemently opposed the prayer and drew my attention to the M.L.C. Report, opinion given by the doctor so also the statements of injured Nakul and Afam and submitted that the injured were known to them. He further submitted that at this stage, all these questions cannot be decided and it is a matter of evidence and prays for dismissal of both these criminal revisions.

As per record, there is no previous history or enmity between the parties. The occurrence was the outcome of a sudden flare up. u/s 307, IPC 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 that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". u/s 307, IPC, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

In the case in hand, in the course of a quarrel accused party inflicted injuries to injured Nakul and Afam by fists and kicks. They suffered injuries. It is true that accused mercilessly and in a cruel manner alleged to have assaulted victim Nakul with kicks and fists, causing serious injuries which in opinion of doctor are grievous in nature if he developed complications. Similarly, as per opinion of the doctor, injuries sustained by Afam would be dangerous to life if he developed complications. There is no material on record to show that injured Afam developed any complications.

For charge u/s 307, IPC, it is not essential that bodily injury capable of causing death should have been inflicted. What Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307, IPC. Accused charged u/s 307 IPC cannot be discharged merely because injuries inflicted on victims were in the nature of a simple hurt. 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.

In the instant case, accused persons mercilessly and in a cruel manner alleged to have assaulted the victims by kicks an fists and caused serious injuries which in opinion of doctor were grievous in nature and if any complications arise therein, would enough to cause death of the victim Afam.

Considering these facts and material available in the case dairy, it cannot be said that the accused persons had any intention to commit murder.

In view of the aforesaid facts and circumstances, the impugned order by which charges framed against the applicants u/s 307 or 307/34 of IPC are hereby set aside with a direction to the learned trial Court to rehear the arguments of the learned counsel for the applicants on the said charge and pass an appropriate order by passing a speaking order within a period of six weeks from the date of filing of certified copy of this order. It is made clear that I have not expressed any opinion on the merits of the case. With the aforesaid, both these criminal revisions are disposed of.