Dr Dhananjaya Y Chandrachud, J
1 Delay condoned.
2 This appeal is by the State against the judgment and order dated 2
December 2011 of the High Court of Madhya Pradesh at its Gwalior Bench. The
High Court converted the conviction of the respondent under Section 307 of the
Indian Penal Code („Penal Code‟) to Section 324 of the Indian Penal Code and
Digitally signedsentencedby him to imprisonment for forty days, undergone by him, with a fine of Rs SANJAY KUMAR
3 According to the prosecution, on 8 October 2003, an altercation took place
between two parties. The respondent, with an intention to kill one Dashrath Singh,
shot him with a fire-arm and caused bleeding injuries on his right thigh. The
brother of Dashrath Singh filed a complaint on the same day at the Gwalior Police
Station. It was stated in the complaint that there was enmity between the parties
over a love marriage which was opposed by the families as well as a dispute over
a disc cable connection business. The allegation against the accused was that
armed with deadly weapons, they formed an illegal assembly with a common
motive of causing harm to the injured. The charge-sheet was filed under Sections
147 and 307 read with 149 and 323 of the Penal Code. The respondent was
found guilty of the offence under Section 307 of the Penal Code and was
sentenced to undergo rigorous imprisonment for three years along with a fine of
Rs 1,000 by the Trial Court. Seven other co-accused were acquitted of all the
charges levelled against them.
4 The respondent preferred an appeal before the High Court. The High Court
converted the conviction of the respondent from that under Section 307 to Section
324 of the Penal Code and sentenced him to imprisonment for forty days, which
had already been undergone by him, with a fine of Rs 3,000.
5 The State has preferred this appeal, by Special Leave.
6 We have heard learned counsel for the State and learned counsel
appearing for the respondent.
7 Learned counsel appearing for the State submitted that the High Court
based its judgment on a manifestly incorrect appreciation of the evidence. Eleven
punctured wounds of sizes varying from 0.4 x 0.5 cm to 0.4 x 0.6 cm were found
on the body of the injured by Dr P K Mishra (PW 1). These injuries were stated to
have been caused by a firearm six hours prior to the medical examination. It is
urged by the learned counsel for the State that the High Court has failed to
consider the evidence before it. The nature of injuries as well as the weapon of
offence clearly prove an intention to commit murder and the hurt caused satisfies
the ingredients of Section 307 of the Penal Code. Hence the appeal deserves to
be allowed.
8 On the other hand, learned counsel appearing for the respondent submits
that the nature of the injuries was not explained in the evidence of the
prosecution. Neither Dr PK Mishra (PW1) nor Dr Amar Mukund Tiwari (PW2)
gave their opinion about the nature of the injuries and there was no evidence to
prove that the injuries caused to Dashrath Singh were grievous in nature or life-
threatening. Hence, it is urged by the learned counsel that they are simple
injuries. It was further submitted that since the injuries were caused by an
instrument of shooting, the offence will fall under Section 324 instead of 307 of
the Penal Code.
9 The High Court accepted the contention of the respondent that the nature
of injuries was not conclusively proved. The High Court held that in the absence
of evidence that the injuries were grievous or dangerous to life, they were simple
in nature. In the view of the High Court, the offence will fall under Section 324
instead of Section 307 of the Penal Code.
10 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.”
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‟.
11 Several judgements of this Court have interpreted Section 307 of the Penal
Code. In State of Maharashtra v Balram Bama Patil1, this Court held that it is
not necessary that a bodily injury sufficient under normal circumstances to cause
death should have been inflicted:
“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. In State
of M P v Saleem2, this Court held thus:
“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)
In Jage Ram v State of Haryana3, 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:
“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.”
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.
12 The Trial court based its conviction on the evidence adduced at the trial.
PW1, Dr P K Mishra had examined the injured on 8 October 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 fire arm 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.
13 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 country
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.
14 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.
15 The Trial court found that PW4, PW8 and PW13, 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
afore-mentioned 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 metres 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.
16 The evidence establishes that the injuries were caused by a fire-arm. 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 Andhra Pradesh4 :
“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
Thums 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)
17 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 judgement of the High
Court overlooks material parts of the evidence and suffers from perversity.
18 Hence, we set aside the judgement 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.
[Dr Dhananjaya Y Chandrachud]
[MR Shah]
New Delhi; February 04, 2019.