Jayanth vs The State Of Karnataka By
2021 Latest Caselaw 554 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JANUARY, 2021

                        PRESENT

           THE HON'BLE MR. JUSTICE B. VEERAPPA

                          AND

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              CRIMINAL APPEAL NO.1620/2018

BETWEEN:

1.     JAYANTH
       S/O KANNAN,
       AGED ABOUT 32 YEARS,
       UPS SHIPPING WORK,
       R/AT NO.563, 1ST CROSS,
       ANNIYAMMA TEMPLE, SIDDAPURA,
       BANGALORE-560 011.

2.     SRI MANI
       S/O GOVINDARAJU,
       AGED ABOUT 33 YEARS,
       R/AT NO.171, DAYANANDA NAGAR,
       JAYANAGAR 'T' BLOCK,
       BANGALORE-560 011.

3.     SRI VETRIVELU
       S/O IYENGAR,
       AGED ABOUT 33 YEARS,
       R/AT INDRAGANDI SLUM,
       JAYANAGAR 9TH BLOCK,
       JAYANAGAR,
       BANGALORE-560 011.                 ...APPELLANTS
                            2




(BY SRI MOHAN KUMAR D. ADVOCATE FOR A-1 AND A-2;
    SRI RAJESH RAI K., ADVOCATE FOR A-3)

AND:

THE STATE OF KARNATAKA BY
BANNERUGATTA POLICE STATION,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.                    ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 30.08.2018 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, SIT AT ANEKAL IN S.C.NO.5057/2013 -
CONVICTING THE APPELLANT/ACCUSED NOS.1 TO 3 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 324, 326 AND 307
READ WITH 34 OF IPC AND ETC.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:

                      JUDGMENT

The appellants-accused have filed the present

Criminal appeal against the impugned judgment of

conviction and order of sentence dated 30.08.2018

passed in Sessions Case No.5057/2013, on the file of the

III Additional District and Sessions Judge, Bengaluru

Rural District sitting at Anekal, convicting the appellants-

accused for the offence punishable under Section 307 of

IPC and sentencing them to undergo imprisonment for

life and pay fine of Rs.10,000/- each and also sentencing

them to undergo Rigorous Imprisonment for three years

and to pay fine of Rs.5,000/- each for the offence

punishable under Section 326 of IPC and to undergo

simple imprisonment for a period of One year and to pay

fine of Rs.1,000/- each for the offence punishable under

Section 324 of IPC.

2. It is the case of the prosecution that, on

24.03.2011, midnight at 12.30 a.m., at Kaggalipura

Road, behind Sri Shaneshwara Temple, in view of

previous enmity, the accused quarrelled with P.W.6-

Complainant-Venkatesha and in order to commit murder

took him to the said place wherein accused Nos.1, 2 and

3 stabbed the victim on his chest, left hand and all over

his body and thereafter accused No.1 stabbed on victim's

left hand 3-4 times by the same knife and thereby

caused grievous injuries. The injured got admitted to

the Victoria Hospital for treatment and the Police

recorded the statement of the injured in the presence of

treated doctor and thereafter registered a case against

the accused persons for the offences stated supra.

3. After taking cognizance of the aforesaid

offences, the learned Judicial Magistrate committed the

case to the Sessions Court. The learned Sessions Judge

framed the charges against the accused persons and

read over the same to the accused, but the accused

persons pleaded not guilty and claimed to be tried.

4. In order to prove the case, the prosecution in

all examined 12 witnesses as P.W.1 to P.W.12 and got

marked documents at Exs.P.1 to P.10 and material

objects as M.Os.1 & M.O.2. After completion of the

evidence of the prosecution witnesses, the learned

Sessions Judge recorded the statement of the accused

persons as contemplated under Section 313 of Code of

Criminal Procedure, 1973 (for short, Cr.P.C.). The

accused persons denied all the incriminating evidence

adduced against them and they did not choose to adduce

any defence evidence.

5. The learned Sessions Judge upon considering

the evidence on record, formulated the following points

for consideration:

"1. Whether the Accused No.1 to 3 with a common intention caused bodily injury likely to cause death of P.W.6/Sri Venkatesh?

2. Whether there are any reasonable doubts existing in the case of Prosecution ?

3. If so, whether the Prosecution has removed the said reasonable doubts ?

4. What Order?"

6. After considering the oral and the

documentary evidence, the learned Sessions Judge

recorded a finding that the prosecution proved beyond all

reasonable doubt that the accused Nos.1 to 3 shared

common intention to cause bodily injuries and likely to

cause the death of P.W.6 Venkatesha and came to the

conclusion that the accused persons were involved in

the attack made on P.W.6-Venkatesha who sustained

grievous injuries and accordingly, the learned Sessions

Judge by the impugned judgment of conviction and

order, convicted the accused persons and sentenced

them for the aforesaid offences. Hence, the present

appeal.

7. We have heard the learned counsel for the

parties.

8. Sri Mohan Kumar D., learned counsel for the

appellant-accused Nos.1 and 2 contended that the

impugned judgment of conviction and order of sentence

passed by the Trial Court convicting the accused for the

offences punishable under Sections 307, 326, and 324 of

IPC is erroneous and cannot be sustained in law. He

would further contend that though the charge was made

under the provision of Section 307 of IPC, the Trial Court

erred in convicting the accused persons under the

provisions of Sections 326 and 324 of IPC. He would

further contend that prosecution has failed to prove the

seizer mahazar and recovery of material objects M.O.1

and M.O.2. Independent eye witnesses, P.W.3 to P.W.5

have not supported the prosecution's case. In the chief

examination, P.W.6, who is the complainant and P.W.7,

eyewitness have supported the prosecution , but in the

cross-examination they have turned hostile. Therefore,

the learned Sessions Judge ought to have given the

benefit of acquittal instead of conviction to the accused

persons. He would contend that evidence of P.Ws.1, 2

and 9 is contrary to the evidence of other prosecution

witnesses. Hence, the benefit of doubt should have been

given to the accused persons. He would further contend

that the prosecution has failed to prove beyond all

reasonable doubts, the motive, common intention,

preparation and conspiracy of the accused persons to

commit the alleged offence against P.W.6. Therefore, he

sought to allow the appeal.

9. In support of his contentions, the learned

counsel has relied upon the following judgments of the

Hon'ble Supreme Court as under:

i. In the case of Murali Vs. State rep. by the Inspector of Police in Criminal Appeal No.24/2021(arising out of SLP (Crl.) 10813 of 2019), wherein the Hon'ble Supreme Court has reduced the sentence to One year Eight months;

     ii. In   the   case   of       Fireman   Ghulam
          Mustafa    Vs.State        of   Uttaranchal

(Now Uttarakhand) in Criminal Appeal No.1105 of 2015 (@SLP (Crl.) No.7451 of 2014 wherein the Hon'ble Supreme Court modified the sentence under the provisions of Section 307 of IPC to 325 of IPC and to undergo punishment for a period of three years rigorous imprisonment with a fine of Rs.5,000/- each.

10. Sri Rajesh Rai K., learned counsel for the

appellant-accused No.3 adopted the arguments

advanced by the learned counsel for the appellant Nos.1

and 2 and contended that in Ex.P.1, the complaint, it is

stated that accused Nos.1, 2 ,3 and other accused

persons with an intention to kill the complainant-P.W.6

assaulted with knife and accused No.1 assaulted to the

chest and on hand, whereas, in the evidence of P.W.6,

he has only deposed against accused Nos.1 and 2 and

thereafter against accused No.3. He would further

contend that P.W.7 who is the eyewitness to the incident

had deposed alleged offence against accused Nos.1, 2, 3

and others. Therefore, the prosecution is not specific in

proving the alleged offence as against the accused

persons and injuries sustained by the injured as deposed

by the doctor that the injuries No.1 and 2 are simple in

nature. Therefore, he sought to allow the appeal filed by

the accused.

11. Per contra, Sri Vijayakumar Majage, learned

Additional State Public Prosecutor, while justifying the

impugned judgment of conviction and order of sentence

contended that in the complaint, it is specifically stated

that all the accused persons with an intention to commit

the murder of P.W.6 made an attempt to assault the

victim with knife and the same is reiterated by P.W.6-the

complainant and as well as by P.W.7 the eyewitness in

the chief examination. After three years, in the cross-

examination, they have turned hostile which clearly

indicates that either the accused persons might have

threatened them or they were allured by the accused. He

would further contend that Wound Certificate at Ex.P.2

issued by P.W.2-the doctor it is specifically stated that

there are three stab injuries and injury Nos.1 and 2 are

simple in nature and injury No.3(c) is grievous in nature.

Therefore, it is a clear case of attempt to murder on the

complainant. Hence, he sought to dismiss the appeal.

12. In view of the aforesaid rival contentions

urged by both the learned counsel for the parties, the

point that would arise for our consideration in the

present appeal is that:

"Whether, the accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence for reducing the sentence from life in the facts and circumstances of the present case?"

13. We have given our anxious consideration to

the arguments advanced by the learned counsel for the

parties and perused the entire material including original

records carefully.

14. This Court being the Appellate Court, in order

to re-appreciate the entire material on record, it is

relevant to consider the evidence of the prosecution

witnesses and also material documents relied upon,

which are as under:

(i) P.W-1 Dr.Raja Reddy, deposed that he had

treated the victim on 24.03.2011 at 3.30 a.m. in the

early morning and further deposed that he had

amputated his hand as his nerve was cut off. He

supported the prosecution's case.

(ii) P.W-2 Dr. Manjula also deposed that she has

treated the victim on 24.03.2011 and also issued Wound

Certificate as per Ex.P.2 and further deposed that the

injury was caused on the left side of the chest, back

portion of the body and other injuries on the left hand.

She supported the prosecution's case.

(iii) P.W.3-Nagaraj who is the eyewitness to the

incident has deposed that on 23.03.2011 at 12.30 a.m.,

when C.W.1 to C.W.5 were returning back to their

home, at that time, accused Nos.1 to 3 assaulted the

victim. He has not supported the case of the prosecution

and turned hostile.

(iv) P.W.3-Das who is the eyewitness to the

incident has deposed that on 23.03.2011 at 12.30 a.m.,

when C.W.1 to C.W.5 were returning back to their

home, at that time, accused Nos.1 to 3 assaulted the

victim. He has not supported the case of the prosecution

and turned hostile.

(v) P.W.5-Narendra @ Nara who is the

eyewitness to the incident has also deposed that on

23.03.2011 at 12.30 a.m., when C.W.1 to C.W.5 were

returning back to their home, at that time, accused

Nos.1 to 3 assaulted the victim. He has not supported

the case of the prosecution and turned hostile.

(vi) P.W.6-Venkatesha who is injured witness has

deposed in the Chief examination that C.W.2 to 5 along

with him went towards Bannerghatta and when they

were returning back to their house at 12.30 a.m., the

accused No.1 assaulted him on his left hand, accused

No.2 assaulted on left side of his chest and accused No.3

assaulted to his left hand and other parts of the body.

Thereafter, the accused persons fled away from the spot.

This injured witness supported the case of the

prosecution but in the cross-examination he turned

hostile.

(vii) P.W.7-Appu @ Venkatesh who is the

independent eyewitness has deposed in the Chief-

examination that C.W.2 to 5 went to Bannerghatta and

when they were returning back to their home at 12.30

a.m. the accused No.1 assaulted the victim P.W.6 on his

left hand, accused No.2 on left side of victim's chest and

accused No.3 also assaulted to victim's left hand and

other parts of the body. He further deposed that the

accused persons fled away from the spot. This witness

supported the case of the prosecution in the chief-

examination but in the cross-examination he also turned

hostile

(viii) P.W.8-Sharavana, Mahazar witness to Ex.P.6

and material object-M.O.2, deposed that on 25.03.2011,

Police called him to Sri Shaneshwara Temple and at that

time C.W.2 was also present. Then C.W.2 has shown the

spot and M.O.2. This witness did not support the case

of the prosecution and he turned hostile.

(ix) P.W.9- K. Vishwanath, Police Inspector

deposed that he was working as PSI,on 24.03.2011, at

about 01.00 a.m. he received an information from

Victoria Hospital and thereafter he went to the Victoria

Hospital and recorded the statement of the injured

Venkatesha P.W.6 in the presence of the doctor and

registered the FIR in Crime No.70/2011 as per Ex.P.1

and thereafter he proceeded with the investigation and

seized M.O.2 and on the same day recorded the

statements of P.W.2 to P.W.5 and also recorded the

statement of accused Nos.1 to 3. After completion of

investigation, charge sheet was filed. This official

witness supported the case of the prosecution.

(x) P.W.10-Madesh, mahazar witness to Ex.P.10

deposed that, on 24.03.2011, at Kagglipura Road in

front of Sri Shaneshwara Temple, the police prepared the

mahazar as per Ex.P.10 which discloses that the blood

stained T-shirt was seized by the respondent Police and

they took the signature of this witness. This witness has

not supported the case of the prosecution and he turned

hostile.

(xi) P.W.11-Pandyan, seizure Mahazar witness had

deposed that on 01.06.2011 near Bannerghatta Road,

the accused No.1 showed the knife and the same knife

was seized by the police which was marked as Ex.P.9.

This witness has not supported the case of the

prosecution and he turned hostile.

(xii) P.W.12-Arun, seizure Mahazar witness to

Ex.P.9 had deposed that on 01.06.2011 near

Bannerghatta Road, the accused No.1 showed the knife

and the same knife was seized by the police which was

marked as Ex.P.9. This witness has not supported the

case of the prosecution and he turned hostile.

15. On the basis of the aforesaid materials placed

on record and after considering the oral and the

documentary evidence, the Learned Sessions Judge

proceeded to convict the accused persons for the

offences punishable under Sections 307, 324, 326 and

imposed punishment accordingly.

16. On a careful perusal of the complaint, Ex.P.1,

lodged by the complainant, P.W-6, it clearly depicts

that on 20.03.2011, when he went to Bannerghatta fare

along with his friends and while returning from the fare

at about 12.30 a.m. near the Bannerghatta Circle,

accused Nos.1, 2, 3 and others suddenly with an

intention to kill him, the accused No.1 assaulted him on

his right chest, accused No.2 assaulted on his left chest

and on left hand and accused No.3 assaulted him on his

back portion and again accused No.1 assaulted him on

his left hand and on two to three places and others also

assaulted him with their hands. He further stated that he

is not aware as to why these people assaulted him and

hence, he sought to take action against them. P.W.6, in

his evidence, on 24.08.2015, had deposed that accused

Nos.1, 2 and 3 assaulted him along with others. But

unfortunately on 07.08.2018, when he was subjected for

cross examination, he deposed that, when they were

returning from the Bannerghatta fare, at about 12.45

p.m. he and his friends were in drunken state and he

became unconscious and does not know how he

sustained the bodily injuries and when he was conscious

he found himself in the Victoria Hospital.

17. P.W.7, eyewitness to the incident has deposed

on par with P.W.6 about the involvement of accused

Nos. 1, 2 and 3 and others in the commission of the

offence. He supported the case of the prosecution in his

Chief examination on 24.08.2015, but when he was

subjected for Cross-examination on 07.08.2018, he

deposed that he is not educated, but he knows how to

read and write Kannada and now he has lost his memory

power but he does not have any mental health issues

and for the loss of memory he is not taking any

treatment. Whatever, he had deposed on 24.08.2015,

was deposed in a sound state of mind and correct. He

has denied the suggestion that he had compromised with

accused persons by receiving the money. In the Cross-

examination, he deposed that he saw the accused person

for the first time before the Court when they were

brought for enquiry and now he could not remember

what he had deposed in the Chief-examination, but,

virtually he turned hostile.

18. P.W.1-Dr. Raja Reddy, who treated P.W.6 the

injured, deposed that on 24.03.2011, the complainant,

P.W.6 Venkatesha was brought to the Victoria Hospital

by the Police Constable No. 988 and Head Constable No.

638 of Bannerghatta Police Station with a history of

assault made by accused No.1 and four other accused

persons. When he examined the injured he came to

know that the left hand nerve was cut off and it has lost

its sense and it was inevitable to amputate the left hand

and accordingly, he had recorded the same in the case

sheet and he opined that the said injury is very grievous

in nature. In the cross examination, doctor has deposed

that, if some body falls on a very sharp edged weapon

there is every possibility of sustaining these types of

injuries. P.W.2-Dr.Manjula, who treated P.W-6 injured

Venkatesha deposed that on 24.03.2011 at 3.00 a.m. in

the emergency ward, the Head Constable No.638

brought the injured victim Venkatesha with a history of

assault made by the accused persons. She specifically

deposed that P.W.6-complainant was assaulted on the

left chest and there exists a stab injury on the left chest

and also on the back side and there are multiple injuries

on the body of the injured which are as follows:

1. Injury No.1 9 x 5 c.m incised deep cut injury on

middle portion of the left hand. 2. 5 x 1 c.m. deep cut

injury on the left upper portion of the left hand. 3. Three

injuries on the forearm upper portion of the hand and

she denied the suggestion made by the accused that

there were no injuries on the injured. In the Wound

Certificate issued by P.W.2 Dr. Manjula, as per Ex.P.2, it

is specifically stated that following injuries were found on

the injured and she opined that injuries (a) and (b) are

simple in nature, injury (c) is grievous in nature as per

opinion given by Dr.Rajareddy, Senior Specialist, Surgery

3 unit in case sheet Pg.No. 47. It is relevant to state the

injuries sustained by PW.6 are as under:

"The injured person was first seen by the undersigned at Causality, Victoria Hospital on the 24.03.2011 and the examination was commenced at 3.00 a.m. when the following injuries were found.

1) Ultrasound scan abdomen-Normal (US.No.406/24.03.11)

2) Colour Doppler- Upper limb arterial system.

Absent left lunar and radial artery flow at the level of wrist. Low resistance flow in beachial artery in cubital fossa.

a) Stab injury on the lateral aspect of left side of thorax.

b) Stab injury on the left side of loin.

c) Multiple stab injuries on the left upper limb.

i. 9 x 5 cm incised wound over medial aspect of left arm.

ii. 5 x 1 cm incised wound over lateral aspect of left arm.

iii. 3 lacerations seen over upper part of forearm".

19. Though the learned counsel for the accused

persons contended that P.Ws.6 and P.W.7, the

complainant and the eyewitness to the incident turned

hostile, but the fact remains is what they have deposed

in their chief examination. Only when they were

subjected for cross-examination after three years, P.W.6

turned hostile but P.W.7 has specifically deposed in the

cross examination that whatever he has stated in the

chief examination is correct and statement made by him

runs concurrently and he denies the suggestion that

P.W.6 and P.W.7 compromised with the accused persons.

Considering the oral and documentary evidence on

record the learned Sessions Judge proceeded to convict

the accused persons for offence punishable under

Section 307 of IPC. Considering the evidence of P.W.1,

P.W.2 , P.W.6, P.W.7 and P.W.9 and other material

objects M.O. 1 and 2 and Ex.P.2- Wound Certificate

issued by P.W.2 it is clearly established that injury No.3

is grievous in nature. Injuries No.1 and 2 are simple in

nature and it is also on record that after the incident,

complainant's left hand below 3 inches from the shoulder

was amputated. The material on record clearly indicates

that, though the accused persons attacked P.W.6 and

others and caused grievous injuries. Injury No.1 is on

the vital part of the left side chest.

20. The very prosecution has not proved the basic

ingredients of Section 307 which reads as under:

"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.

"Attempts by life convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."

A careful reading of the said provisions it would

clearly indicate that 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.

21. Admittedly, in the present case, according to

P.W.6 and P.W.7 that there was an intention of accused

Nos. 1 and 2 to kill P.W.6, but unfortunately both the

P.W.6, the complainant-victim and the eyewitness have

turned hostile in the cross-examination. Though the

learned Additional State Public Prosecutor contended that

after three years these accused persons might have

threatened P.W.6 and P.W.7 therefore they have turned

hostile, however, such contention of the learned

Addl.S.P.P., cannot be accepted. Our view is fortified by

the judgment of the Hon'ble Supreme Court in the case

of State of Madhya Pradesh v. Kanha reported in

(2019) 3 SCC 605. Paragraphs 9 to 20 of the said

judgment read as under:

"9. Section 307 of the Penal Code reads thus:

"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.

Attempts by life convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has

committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.

(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section."

(emphasis supplied)

The first part of Section 307 refers to "an act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder". The second part of Section 307, which carries a heavier punishment, refers to "hurt" caused in pursuance of such an "act".

10. Several judgments of this Court have interpreted Section 307 of the Penal Code. In State of Maharashtra v. BalramBamaPatil (1983)2 SCC 28, this Court held that it is not necessary that a bodily injury sufficient under

normal circumstances to cause death should have been inflicted: (SCC p.32, para 9)

"9...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."

(emphasis supplied)

This position in law was followed by subsequent Benches of this Court.

11. In State of M P v Saleem (2005)5 SCC 554, this Court held thus:(SCC pp.559-60, para 13)

"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."

(emphasis supplied)

12. In Jage Ram v. State of Haryana (2015)11 SCC 366, this Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted:(SCC p.370 para 12)

"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."

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.

14. The trial court based its conviction on the evidence adduced at the trial. PW1, Dr P K Mishra had examined the injured on 8-10-2003

and found 11 punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm. The injuries were bleeding, but no blackness was present. He noted that the wounds were caused by a firearm and were inflicted in six hours before the examination. The witness stated that the confirmation of the injuries depended on the X-Ray report and expert opinion of the ward doctor. The report of the Radiologist (PW2) stated that he had observed multiple small rounded radiopaque shadows of metallic density. This is indicative of the presence of firearm injuries.

15. Based on the evidence of the witnesses, the Trial court came to the conclusion that the injuries were caused by the respondent. Dashrath Singh (PW11) deposed that the respondent shot at him in the right thigh with a countrymade rifle. The complainant (PW12) stated that the respondent fired at PW11 with a deliberate intention to kill him. The ocular evidence is cogent and corroborated by the medical evidence.

16. Based on the evidence on record, the Trial court held that it could not be proved that

the other accused had a common intention of causing injuries or death upon Dashrath Singh. Thus, the co-accused were acquitted of charges.

17. The trial court found that PW.4, PW.8 and PW.13, who were present near the place of incident, had sustained injuries. The witnesses had admitted that they were hit by bullet shots. The court concluded that it was established that at the date, time and venue of the said incident, a fire arm had been used and the aforementioned witnesses had also suffered bullet injuries. The Court held that it was substantiated that the shots fired by the respondent first hit the injured Dashrath Singh. The injured Dashrath Singh had stated that the house of the respondent was 40-50 m from the spot where the incident took place. It was held that in such circumstances if a fire arm is shot at such a distance, the shot gets dispersed and may hit persons in the vicinity. There existed a long-standing dispute between the parties with regard to the business of cable discs and an altercation took place with regard to it. In the quarrel that ensued, the respondent fired at Dashrath Singh, injuring him.

18. The evidence establishes that the injuries were caused by a firearm. The multiplicity of wounds indicates that the respondent fired at the injured more than once. The fact that hurt has been caused by the respondent is sufficiently proven. The lack of forensic evidence to prove grievous or a life- threatening injury cannot be a basis to hold that Section 307 is inapplicable. This proposition of law has been elucidated by a two-Judge bench of this Court in Pasupuleti Siva Ramakrishna Rao v. State of A.P. (2014)5 SCC 369: (SCC p.376, para 18)

"18. There is no merit in the contention that the statement of medical officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this section since the act resulted in Injury 5 which is a ligature mark of 34 cm × 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act

causes "hurt". It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him that he should die. We also do not find any merit in the contention on behalf of the accused that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thumbs up bottle and a telephone wire used, as weapons. That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused."

(emphasis supplied)

19. In the present case, the nature of the injuries shows that there were eleven punctured wounds. The weapon of offence was a firearm. The circumstances of the case clearly indicate that there was an intention to murder. The presence of 11 punctured and bleeding wounds as well as the use of a fire

arm leave no doubt that there was an intention to murder. Thus, the second part of Section 307 of the Penal Code is attracted in the present case. The judgment of the High Court overlooks material parts of the evidence and suffers from perversity.

20. Hence, we set aside the judgment of the High Court and restore the order of conviction by the trial court under Section 307 of the Penal Code as well as the sentence awarded of rigorous imprisonment of 3 years and a fine of Rs. 1000. The appeal is, accordingly allowed. The respondent shall forthwith surrender to serve out the sentence. A copy of the judgment shall be forwarded by the Registry to the Chief Judicial Magistrate concerned to secure compliance."

22. Though, the learned Sessions Judge

proceeded to convict the accused persons for the offence

punishable under Section 307 of IPC, the P.W.3, P.W.4,

P.W.5, P.W.6, P.W.7-independent eye-witness and

P.W.8 mahazar witness, to Ex.P.6 and M.O.2, P.W.11

and P.W.12-seizure Mahazar witness to Ex.P.9 recovery

of knife have turned hostile. Except P.W.1 and 2,

doctors who have deposed about the grievous injury

sustained by P.W.6-complainant and P.W.9- Police

Inspector who investigated the case and filed the charge

sheet the other prosecution witnesses have not

supported the case of the prosecution including P.W.6-

complainant, but the fact remains that. unfortunately

injuries were inflicted on the vital part and on the left

hand and all over the body of P.W.6-complainant, while

his left hand was amputated below 3 inches from the

shoulder because of the assault made by the accused

persons.

23. Taking into consideration the peculiar facts

and circumstances of the case, we are of the considered

opinion that the accused persons have made out a case

for reduction of sentence under the provisions of Section

307 of IPC instead of life imprisonment. The Hon'ble

Supreme Court while considering the provision of Section

307 of IPC in the case of State of Madhya Pradesh vs.

Harjeet Singh and another reported in AIR 2019 SC 1120

at paragraph 5.6 reads as under:

5.6 Section 307 uses the term "hurt" which has been explained in Section 319, I.P.C.; and not "grievous hurt" within the meaning of Section 320 I.P.C.

If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307.

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 nonvital 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."

(emphasis supplied)

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 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."

(emphasis supplied)

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 lifethreatening 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".

(emphasis supplied)

The order passed by the High Court under the provisions

of Section 324 of IPC was set aside and imposed

punishment for a period of 5 years.

24. The Hon'ble Supreme Court in the case of

Murali vs. State rep. by the Inspector of Police made in

Criminal Appeal No.24/2021 (Arising out of SLP (Crl.)

10813 of 2019) dated 5.1.2021 taking into consideration

the age of the accused and complainant has proceeded

to reduce the quantum of sentence to 1 year 8 months

instead of 5 years and in the case of Fireman Ghulam

Mustafa vs. State of Uttaranchal (Now Uttarakhand)

made in Criminal Appeal No.1105/2015 (@SLP (Crl.)

No.7451 of 2014) wherein the Hon'ble Supreme Court

converted the offence under Section 307 of IPC into

Section 325 of IPC and sentenced to undergo 3 years

rigorous imprisonment and to pay a fine of Rs.5,000/-

and in default to undergo rigorous imprisonment for one

month.

25. Taking into consideration the principles laid

down by the Hon'ble Supreme Court, stated supra and

also taking into consideration the peculiar facts and

circumstances of the present case, that all the

prosecution witnesses including P.W.6-complainant-

injured victim and P.W.7-eye witness to the incident

have turned hostile, we are of the considered view that

in the interest of justice, the punishment imposed on the

accused for the offence punishable under Section 307 of

IPC has to reduced for a period of 4 years instead of Life

Imprisonment with a fine of Rs.50,000/- each which will

meet the ends of justice.

26. For the reasons stated above, the point raised

in the present appeal is answered in the affirmative

holding that the accused-persons have made out a case

to interfere with impugned judgment of conviction and

order of sentence by reducing the sentence and fine

imposed by the learned Sessions Judge under the

provision of Section 307 of IPC.

27. In view of the above, we pass the following:

ORDER

1. The Criminal Appeal is allowed in part;

2. The impugned judgment of conviction and order of sentence dated 30.08.2018 passed in Sessions Case No.5057/2013 sentencing the accused Nos. 1 to 3 to undergo imprisonment for life for the

offence punishable under Section 307 of IPC is modified and appellants-accused Nos.1 to 3 are convicted for a period of four years with a fine of Rs.50,000/- each and in default of depositing of fine amount to undergo imprisonment for a period of one year;

3. The impugned judgment of conviction and order of sentence imposed for a period of 3 years and one year with a fine of Rs.5,000/-each and Rs.1,000/- each under for the offences punishable under Sections 326 and 324 of IPC passed by the learned Sessions Judge is hereby confirmed;

4. All the sentences are ordered to be run concurrently.

5. Needless to add that the accused Nos.1 and 3 shall be entitled to benefit of set off as contemplated under the provisions of Section 428 of the Criminal Procedure Code;

6. In exercise of powers under Section 357 (3) of Code of Criminal Procedure, we direct that, if the fine amount of Rs.1,50,000/- is deposited by Accused Nos.1 to 3, the same shall be paid to the complainant as compensation after proper identification.

Sd/-

JUDGE

Sd/-

JUDGE

HR