Rajasthan High Court - Jodhpur
Sardaru Kha vs State Of Rajasthan (2025:Rj-Jd:40302) on 10 September, 2025
[2025:RJ-JD:40302]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 951/2025
1. Sardaru Kha S/o Shri Ghane Kha, Aged About 60 Years,
R/o 1 Kyd, Rawla, Police Station- Rawla District-
Sriganganagar
2. Makbul Kha S/o Shri Sheru Kha, Aged About 29 Years, R/
o Kyd, Rawla, Police Station- Rawla District-
Sriganganagar (Rajasthan).
3. Rustam Kha S/o Shri Subhan Kha, Aged About 29 Years,
R/o 06 Bd, Police Station- Khajuwala District- Bikaner
4. Mustak Kha S/o Shri Sharif Kha, Aged About 29 Years, R/
o 1 Kyd, Rawla, Police Station- Rawla District-
Sriganganagar
5. Barkat S/o Shri Aahmad Yaar, Aged About 37 Years, R/o 1
Kyd, Rawla, Police Station- Rawla District- Sriganganagar
6. Yakir Kha @ Jakir Hussain S/o Shri Abdul Gafur, Aged
About 29 Years, R/o 1 Kyd, Rawla, Police Station- Rawla
Districtsriganganagar
7. Shyokat Kha S/o Shri Aahmad Yar, Aged About 40 Years,
R/o 1 Kyd, Rawla, Police Station- Rawla District-
Sriganganagar
8. Yusuf Kha S/o Shri Sardaru Kha, Aged About 29 Years, R/
o 1 Kyd, Rawla, Police Station- Rawla District-
Sriganganagar
----Petitioners
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Puna Ram
For Respondent(s) : Mr. Narendra Gehlot, PP with
Mr. Om Prakash Choudhary
HON'BLE MR. JUSTICE SANDEEP SHAH
Order
10/09/2025
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1. The present revision petition has been filed, challenging the
order dated 17.03.2025, passed by the learned Additional
Sessions Judge, Gharsana, in Sessions Case No.45/2020 "State
v. Makbul Kha & Ors" whereby the learned trial Court has
proceeded to frame charges against the petitioners for offences
punishable under Sections 148, 307, 342, 323, 325, 326 and 148
read with Section 149 IPC.
Facts of the case:-
2. Shorn of unnecessary details, the brief facts of the case are
that an FIR No. 188/2020 dated 14.09.2020 was lodged at Police
Station Rawla, District Ganganagar. As per the FIR, the
complainant- Om Prakash, stated that a few days prior, an incident
occurred wherein members of the Muslim community tied a horse
to a tree and assaulted him with an iron pipe, even inserting the
pipe into his nose. He submitted that he had lodged a complaint at
Police Station Rawla, upon which the police and State
administration arrived at the site, released the horse, and a
settlement was arrived at between the parties. He submitted that
the accused were having enmity because of incident in question
and that on 14.09.2020, at around 03:00 AM, his son Pawan
Kumar, along with his cousins namely Nirmal, Vikram, and Sunil,
wereheading to the field for cultivation when the accused
petitioners (specifically named in the FIR) arrived armed with
sharp and blunt weapons and assaulted Pawan Kumar, Vikram,
and Sunil. Upon learning of the incident, the injured were rushed
to the hospital and subsequently referred to a higher medical
center. Based on the FIR, the police initiated an investigation and
recorded the statements of various witnesses, including the
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injured--Pawan, Sunil, Vikram and the complainant, Om Prakash
as well as Nirmal, Akshay Kumar, and others. The injury report
was prepared, and the opinion of the Medical Officer was obtained.
Subsequently, post arrest of the petitioners, based upon
information divulged under Section 27 of the Evidence Act, various
articles were recovered: a lathi from Makbul Kha, a piece of cable
from Rustam Kha, a lathi from Mustak Kha, a gandasi from
Barkat, a lathi from Jakir Kha, an iron pipe from Farukh Kha, a
lathi from Mohammad Noor, and a torch and piece of cable from
Shyokat Kha. Thereafter, the site plan was prepared and
thereafter police submitted the charge-sheet against the
petitoners for the offences punishable under Sections 148, 307,
342, 323, 325, 326 and 148 read with Section 149 IPC. Post
committal of case the cognizance of offences was taken by the
learned court below and thereafter, the charges were framed for
the offences as stated supra. Being aggrieved of the same, the
present revision petition has been filed.
3. Learned counsel for the petitioners submits that omnibus
allegations have been levelled against the petitioners, with no
specific allegation attributed to any individual. He further submits
that a compromise has been arrived at between the parties,
therefore, there was no question of commission of the alleged
offence by the petitioners and they have been falsely implicated.
He also submits that the nature and location of the injuries clearly
indicate that there was neither intention nor knowledge to commit
murder, and hence, the charge under Section 307 of the IPC is not
sustainable. He, therefore, prays for allowing the revision petition
and quashing the charges levelled against the petitioners.
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4. Per contra, learned Public Prosecutor opposes the revision
petition and submits that the manner in which the petitioners used
weapons, as well as the nature of the injuries, clearly
demonstrates the presence of all the elements under Section 307
IPC, inasmuch as both the intention and knowledge to commit
murder were present. He further submits that the injury report,
along with the opinion of the doctor, fortifies the fact that there
were as many as seven grievous injuries on the bodies of Pawan
Kumar and Sunil Kumar collectively, which further shows the
petitioners' intent. He also submits that the injured witnesses
have specifically attributed the injuries to the petitioners, and
therefore, the arguments raised by the petitioners are without
substance. Accordingly, he prays for dismissal of the revision
petition.
Analysis & Reasoning:-
5. Heard the counsel for both the sides and perused the record
of case. As far as the offence under 307 IPC is concerned the
same provides 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.]
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.
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(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. 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 defined in this
section. A places the food on Z's table or delivers it to Z's
servant to place it on Z's table. A has committed the offence
defined in this section."
6. A bare perusal of the same will reveal that for bringing home
the offence under Section 307 IPC, the intention and knowledge
on the part of the assailants that the act under such
circumstances, if done, would cause death, is necessary. Thus,
there may be circumstances under which no injury is caused, then
too, an offence under Section 307 IPC would be made out and on
the contrary, there may be cases where even if injury is caused
still the offence under Section 307 IPC will not be made out. The
knowledge & intention are very important and relevant for
consideration as to whether the alleged act would fall under the
ambit of Section 307 IPC or not.
7. The Hon'ble Apex Court way back in the year 1964 in the
case of "Sarju Prasad v. State of Bihar" 1964 SCC Online SC
236 while referring to the necessary intention and knowledge of
the assailant has held as under:-
"5. Thus according to the learned Chief Justice the act to fall
within Section 307 must be such that but for the intervention of
some circumstance it would, if completed, have resulted in death.
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There is no evidence in this case that a fatal injury or an injury to
a vital organ was prevented by any intervening circumstance.
6. All these decisions were considered by this Court in Om
Prakash v. State of Punjab, and though Cassidy case, was not
expressly dissented from the actual view taken by this Court is
more in consonance with the view taken by Beaumont, C.J. in
Geogte case and the view taken by the Allahabad High Court in
Niddha case than that taken in Cassidy case no injury was in fact
occasioned to the victim Sir Earnest Hotson, the then acting
Governor, due to a certain obstruction. Even so, the assailant
Gogte was held by the Court to be jointly under Section 307
because his act of firing a shot was committed with a guilty
intention and knowledge and in such circumstances that but for
the intervening fact it would have amounted to murder in the
normal course of events. This view was approved by this Court.
Therefore, the mere fact that the injury actually inflicted by the
appellant did not cut any vital organ of Shankar Prasad is not by
itself sufficient to take the act out of the purview of Section 307.
7. Having said all this we must point out that the burden is still
upon the prosecution to establish that the intention of the
appellant in causing the particular injury to Shankar Prasad was
of any of the three kinds referred to in Section 300 of the Indian
Penal Code. For, unless the prosecution discharges the burden
the offence under Section 307, I.P.C. cannot possibly be brought
home to the appellant The state of the appellant's mind has to be
deduced from the surrounding circumstances and as Mr. Kohli
rightly says the existence of a motive to cause the death of
Shankar Prasad would have been a relevant circumstance. Here,
the prosecution has led no evidence from which it could be
inferred that the appellant had a motive to kill the victim of his
attack. On the other hand he points out that as the appellant had
no enmity with Shankar Prasad that neither of them even knew
each other and that as the appellant inflicted the injury on
Shankar Prasad only to make him release the wrist of Sushil while
Sushil was in the act of stabbing Madan Mohan he cannot be said
to have had the motive to kill Shankar Prasad and, therefore, no
intention to cause murder or to cause any injury which may result
in death could be inferred. Now, it is the prosecution case that
about a week before the incident Sushil, for certain reasons, had
given a threat to Madan Mohan to the effect that he would be
taught a lesson and according to the prosecution Sushil and the
appellant Sarju were lying in wait for Madan Mohan in the chowk
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on the day in question with chhuras with the intention of
murdering him. The prosecution wants us to infer that these two
persons also had the intention of murdering any one who went to
the rescue of Madan Mohan. It seems to us that from the facts
established it cannot be said that the appellant had the intention
of causing the death of Shankar Prasad or of any one who went
to Madan Mohan's rescue. If such were his intention then another
significant fact would have possibly, though not necessarily
deterred him and that is that Madan Mohan and Shankar Prasad
were not the only persons there at that time but were
accompanied by some other persons. Moreover the incident
occurred in broad day light in a chowk which must be a well-
frequented area. It is not easy to assume that in such
circumstances the appellant could have intended to commit a
crime for which the law has provided capital punishment.
8. The only other question then is whether the appellant intended
to cause such injury as he knew to be likely to cause death or
intended to inflict an injury which was sufficient in the ordinary
course of nature to cause death or that he knew that his act was
so imminently dangerous that it must in all probability cause
death or cause an injury as is likely to cause death. "
8. Subsequently, in the case of "Hari Singh v. Sukhbir Singh
& Ors." (1988) 4 SCC 551, the Hon'ble Apex Court again while
dealing with the intention and knowledge sufficient to constitute
murder, to bring home the necessary ingredients of Section 307
IPC, held as under:-
"7. On the first question as to acquittal of the accused under
Sections 307/149 IPC, some significant aspects may be borne in
mind. Under Section 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". Under Section 307 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
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body where the injury is inflicted are some of the factors that
may be taken into consideration to determine the intention. In
this case, two parties in the course of a fight inflicted on each
other injuries both serious and minor. The accused though armed
with ballam never used the sharp edge of it. They used only the
blunt side of it despite they being attacked by the other side.
They suffered injuries but were not provoked or tempted to use
the cutting edge of the weapon. It is very very significant. It
seems to us that they had no intention to commit murder. They
had no motive either. The fight as the High Court has observed,
might have been a sudden flare up. Where the fight is accidental
owing to a sudden quarrel, the conviction under Section 307 is
generally not called for. We, therefore, see no reason to disturb
the acquittal of accused under Section 307 IPC."
9. In "Vasant Vithu Jadhav v. State of Maharashtra"
(2004) 9 SCC 31, the Hon'ble Apex has held as under:-
"9. In the aforesaid factual scenario it has to be seen
whether Section 307 has application. Section 307, IPC reads as
follows:
"307. 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 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
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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.
10. 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, 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.
11. This position was highlighted in State of Maharashtra
v. Balram Bama Patil, in Criminal Appeal No. 1034 of 1997
decided on 04.02.2004, and in Criminal Appeal No. 1179 of 1997
decided on 11.02.2004.
12. In Sarju Prasad v. State of Bihar 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.
13. 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
intention or knowledge, as the case may be, and not nature of
the injury."
10. This Court in the case of "Samane Khan v. State of
Rajasthan" in S.B. Criminal Revision Petition No.128/2023
vide judgment dated 10.05.2023 held as under:-
"7. The Penal law has defined and categorized different acts of the
accused with distinct quantum of punishment. Voluntarily causing
simple hurt; causing voluntarily simple hurt by using a dangerous
weapon or means; voluntarily causing grievous hurt; which has further
been clarified by a different provision under Section 326 of the IPC
with the definition of voluntarily causing grievous hurt by a dangerous
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weapon and means. Causing or receiving injury is not an integral part
of constituting an offence under the first Clause of Section 307 of the
IPC which reads as under:-
"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;"
8. The plain reading of the first limb of Section 307 of the IPC
makes it abundantly clear that receiving injury in the course of
attempt to kill the victim, is not a condition precedent in this clause.
The second Clause of this Section begins with the word which are
reproduced as under:-
"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".
9. The main difference between the first and second Clause is with
regard to quantum of punishment only, which is categorized as "if in
the course of making an attempt to murder, any injury is received by
the victim then, the punishment would be graver than to the first
clause". Here, it is also pertinent to mention that no particular kind
and nature of injury has been described even in the second limb of
Section 307 IPC. It may be a simple or grievous or life endangering
injury, it matters not. The only fact would be needed for the second
part of Section 307 IPC is that in the course of attempt to kill, an
injury is received by the victim.
10. Having element of an intent to bring the matter within the ambit
of Section 307 of the IPC is a condition precedent. Intention is the
state of mind of an offender and there could be no physical evidence
which can be produced as a thing, object or fact to establish the same
in a concrete manner. It has to be inferred from the circumjacent
circumstances of the case and the evidence available on record.
Intention can be adduced from the act itself as well as from
consequences of the fact. Some of the prominent aspects that may be
taken into consideration to draw an inference regarding the mental
state of the accused are as under:-
(i) the number of injuries;
(ii) the nature of injuries received by the victim;
(iii) the kind of weapon used by the accused for inflicting injury;
(iv) the part of body which the accused chosen to inflict the injury;
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(v) the other surrounding circumstances like time and place of incident
whether it was crime place belonged to the accused or it belonged to
the victim or a random public place;
(vi) previous animosity between the accused and victim which must be
of such a degree which would indicate itself strong reason or motive of
the accused so as to show the intent to cause death of the victim. It
should not be just a discord acrimony or bitter relationship or strife of
an ordinary nature or of common petulance.
(vii) the position of the accused and the victim at the place of crime; if
the accused is in dominating position or rather more in number than to
the victim; the victim is in helpless or hapless condition; not hopeful of
being rescued or getting assistance from anyone and still if the
accused does not take undue advantage of his position by not inflicting
more injuries or by not using much force upon the victim, is a strong
circumstance to draw an inference regarding the criminal intent of the
accused. Not taking undue advantage of his dominating position is a
significant sign to show the intent.
11. There may be some other factors which may be taken into
consideration for the purpose of drawing an inference regarding intent
of the accused so as to know whether the accused wanted to
kill/murder the victim or he only wanted to harm and cause some
simple or grievous injuries to the victim.
12. Though, a straight jacket formula cannot be made as
determinable factor and the above mentioned factors are illustrative
not exhaustive."
11. Thus, taking guidance from the aforementioned judgments
as well as the language of Section 307 IPC, it is clear that the
prima facie intention is evident from the fact that the petitioners
collectively gathered at the place where the injured persons were
assaulted using both sharp-edged and blunt weapons. The injuries
were inflicted on vital parts of the body and were repetitive in
nature. Furthermore, considering the fact that there are four
grievous injuries on the bodies of Pawan Kumar and three
grievous injuries on the bodies of Sunil Kumar, and also taking
into account that the entire act was well-planned, the intention
and knowledge of causing such injuries--knowing that they could
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result in the death of the injured persons are clearly fortified
prima facie. Thus, all the ingredients of Section 307 IPC are prima
facie made out. The law in this regard is no longer res integra,
that at the stage of framing of charge, the power of weighing and
sifting the evidence is limited to assess whether a prima facie case
is made out against the petitioners-accused. If the material placed
before the Court discloses grave suspicion, which has not been
properly explained, the Court would be justified in framing charges
and proceeding with the trial. It is also well settled that, at the
stage of framing charges, the probative value of the material on
record cannot be examined by the Court. The trial Court was
therefore justified in framing charges against the petitioners for
the offences punishable under Sections 148, 307, 342, 323, 325,
326, and 148 read with Section 149 IPC.
12. It is, however, made clear that any observations made by
this Court while deciding the present revision petition are only
prima facie in nature, and the learned trial Court shall not be
influenced by the same. The trial Court shall proceed to determine
the outcome of the trial based solely on the material available on
record.
13. Accordingly, the present revision petition, being bereft of any
merit, is dismissed.
(SANDEEP SHAH),J
46-mohit/-
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