1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Ramdev & Ors. Vs. State of Rajasthan (S.B. Criminal Revision Petition No.1208/2010) S.B. Criminal Revision Petition Under Section 397 read with Section 401 Cr.P.C. Date of Judgment: December 07, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.S.S. Hora, for the petitioners. Mr.Javed Chaudhay, Public Prosecutor. BY THE COURT: Aggrieved by the order dated 26.03.2010, passed by the learned Additional Sessions Judge (Fast Track) No.2, Bundi, whereby the learned Judge has framed the charges for offences under Sections 148, 341, 323, 324, 325 & 307 read with Section 149 IPC, the petitioners have approached this Court. Mr. S.S. Hora, the learned counsel for the petitioners, has vehemently contended that according to the prosecution, Gopal is the most injured person. However, according to his injury report, he has sustained merely three injuries, namely (1) incised wound on parital region, (2) 2 swelling on the back of the scalp and (3) swelling on the right wrist. According to his x-ray report, although injury Nos.1 and 2 are simple, it is only injury No.3 i.e. on the right wrist, which is said to be grievous in nature. Therefore, according to the learned counsel, Gopal has not sustained any injury which is dangerous or sufficient in the ordinary course of nature to cause death. Hence, the offence under Section 307 IPC is not made out. According to the learned counsel, the case would not travel beyond the offences under Sections 324 and 325 IPC. Therefore, the learned Judge was not justified in framing a charge for offence under Section 307 IPC. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has strenuously contended that Section 307 IPC also deals with causing hurt while doing an act, with an intention and knowledge to cause death. According to the learned Public Prosecutor, the petitioners had wielded an axe on the head of Gopal. Therefore, the knowledge that by such an act, they are likely to cause death can be inferred. Even if a simple injury has been caused, a simple injury does lead to the causing of hurt as defined in Section 319 IPC. Once hurt has been caused, ipso facto the case will fall under Section 307 IPC and not within the ambit of Sections 324 and 325 IPC. 3 Moreover, the learned Judge after recording the evidence of the prosecution as well as the defence can always convict the person for Section 325 IPC for which he has already been charged. Therefore, there is nothing illegal about the framing of the charge under Section 307 IPC. Heard the learned counsel for the parties and perused the impugned order as well as the charge-sheet. According to the prosecution, Gopal had suffered only three injuries, mentioned above. According to the x-ray report, the injury No.1, i.e. incised wound on parital region, is said to be simple. However, even a simple injury does cause bodily pain. According to Section 319 IPC, if a bodily pain is caused, then hurt is caused to the injured. As far as the contention with regard to Section 307 IPC is concerned, in order to fully understand the scope and ambit of Section 307 IPC, it is pertinent to look at the illustrations as well. Section 307, IPC along with illustrations, is as under : Section 307. Attempt to murder Whoever does any act with such intention or knowledge, and under such circumstances that, if he by 4 that act caused death, he would be guilty or 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 ensure. (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 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. Illustration (c) deals with the latter part of Section 307 IPC. The said illustration 5 clearly makes a distinction between “preparation” and “attempt”. But most importantly, while the illustration uses the word “wounds” as a verb, it does not differentiate between an injury of “simple nature” or “grievous nature”. All it requires that “hurt”, as defined in Section 319 IPC as merely causing pain, is sufficient to bring the case within the fold of Section 307 IPC. At the time of framing of a charge for offence under Section 307 IPC what the court is concerned about is to decipher if an act was committed with an intention or knowledge under such circumstances that by such an act death would be caused, or not ? Interestingly, the said provision makes intention and knowledge as expressed through a failed act as punishable. For, even if the ultimate act is not achieved, even then the intention and knowledge, as manifested in the attempt, is punishable. Since the act of causing death i.e. murder is the most heinous offence, an act which reveals the intention and knowledge, through an act of attempt to cause death, is punishable under the law. Therefore, the said provision is divided into two parts : the first part, where no hurt has been caused by the act, for which the persons would be liable for imprisonment upto ten years; the second part, where “hurt” is caused, the accused person would be liable to a sentence upto life imprisonment. 6 A further issue arises in this case, if mere causing hurt is covered under Section 307 IPC then, how does one distinguish between Section 307 IPC and 323 IPC, 324 IPC ? In order to understand the distinction between these provisions, it is essential to first notice the definition of word 'hurt' as given under Section 319 IPC. According to Section 319 IPC, “whoever causes bodily pain, disease or infirmity to any person is said to cause 'hurt'.” Sections 323 and 324 IPC are as under : Section 323. Punishment for voluntarily causing hurt : Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Section 324. Voluntarily causing hurt by dangerous weapons or means : Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive 7 into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. There is a clear cut distinction between Section 323 IPC, and Section 324 IPC, on the one hand, and Section 307 IPC, on the other hand. While Sections 323 and 324 IPC do not use the words “under such circumstances”, Section 307 IPC emphatically uses these words. Naturally, these words would refer to firstly the setting of the crime, the scene of the crime, the time of offence was committed, the type of weapon used by the assailant(s), the number of assailants, the nature of injury suffered by the victim, the background of the case, if any. It is these circumstances, which would clearly demarcate whether the case falls under Section 323, or Section 324, or Section 307 IPC. Therefore, the intention and knowledge warranted under Section 307 IPC is to be discovered from “the circumstances of the case”. If the circumstances of the case do not make out that the intention or knowledge was to cause the death of a person, then obviously the case would fall under Section 323 or 324 IPC. However, if the circumstances of the case are so glaring as to clearly reveal that the intention or the knowledge was to cause the death of a person, then causing of “the hurt” would bring the offence under the 8 ambit of Section 307 IPC. Merely because the element of “hurt” is common to offences under Sections 323, 324 and 307 IPC, it cannot lead to the confusion between the three different provisions. Therefore, Section 307 IPC contemplates the causing of a hurt while committing an act where the accused has the knowledge or intention to cause the death of the person. Considering the fact that the accused-persons had come armed with lethal weapons, that too early in the morning, considering the fact that allegedly Mangilal Meena had exhorted the other accused-persons to kill the victims, considering the fact that Gopal had suffered an incised wound on the parital region of the head i.e. an incised wound on a vital part, the learned Court Judge was certainly justified in framing the charge for offence under Section 307 IPC. However, by way of abundant caution, it is clarified that the observations made by this Court, mentioned above, should not influence the final decision of the trial court. The trial court is expected to objectively assess the evidence which is produced before it, both by the prosecution as well as by the defence, during the course of trial. 9 Thus, this Court does not find any illegality or perversity in the impugned order. Hence, this petition is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki