1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Gopilal & Ors. Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.1327/2010) S.B. Criminal Revision Petition Under Section 397 read with Section 401 Cr.P.C. Date of Judgment: December 21, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Rajesh Sharma, for the petitioners. Mr.Javed Chaudhay, Public Prosecutor. BY THE COURT: Aggrieved by the order dated 13.8.2010, passed by the Additional District and Sessions Judge, Fast Track No.3, Ajmer Camp Kishangarh, whereby the learned Judge has dismissed the petitioners' application under Section 216 Cr.P.C. for altering the charge under Section 308 IPC, the petitioners have approached this Court. Mr. Rajesh Sharma, the learned counsel for the petitioners, has vehemently contended that Krishna Devi is the most injured of the witnesses. However, according to her injury report, she has suffered a single lacerated wound on the head. Although she claims that she was hit by a Kulhari, 2 a sharp edged weapon, according to the injury report, the said injury was caused by a blunt weapon. Secondly, according to the x-ray report, the said injury is simple in nature. Therefore, it is not even sufficient to cause her death. Thus, the charge for offence under Section 308 IPC is not made out. Section 308 IPC consists of the following elements that there should be intention or knowledge that any act done under such circumstances by which death can be caused, the person would be guilty of culpable homicide not amounting to murder. In such a case, he would be punishable with imprisonment of three years, or with fine, or with both. Moreover, if hurt is caused by doing of such an act, the person would be punishable with an imprisonment upto seven years, or with fine, or with both. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has strenuously contended that the accused-persons had trespassed the house of the complainant at 9 O'clock at night. Despite the fact that Krishna Devi had locked the door, they had broken through the door. They were armed with lethal weapon and they assaulted Krishna Devi and others with the lethal weapon. As a consequence of their assault, “hurt” was caused to Krishna Devi and others. Therefore, considering the circumstances in which the assault 3 was committed, clearly the case falls under Section 308 IPC. Hence, he has supported the impugned order. Heard the learned counsel for the parties and perused the impugned order. Section 308 IPC is as under : Section 308. Attempt to commit culpable homicide 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 culpable homicide not amount to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and if hurt is caused to any person by such Act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section. Sections 324 and 326 IPC are as under : Section 324. Voluntarily causing hurt by dangerous weapons or means Whoever, except in the case provided for by section 334, voluntarily causes 4 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 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. Section 326. Voluntarily causing grievous hurt by dangerous weapons or means Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a 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 inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. A distinction has to be made between Sections 308, 324 and 326 IPC. 5 A bare perusal of these sections clearly reveals that the words “under such circumstances” are conspicuously missing from Sections 324 and 326 IPC. Therefore, while noticing the nature of the injuries, the nature of the weapon used, the court is also to concern itself with the other circumstances of the case. In the present case, according to Krishna Devi, the accused-persons had come armed with lethal weapon at the dead of the night. When she tried to bolt the door, they broke through the door and invaded the room. They assaulted the injured persons with lethal weapons. They had caused injuries to the extent that “hurt” was caused to them as defined under Section 319 IPC. Therefore, prima facie a strong case does exist that the petitioners had committed the offence under Section 308 IPC. Hence, the learned Judge was certainly justified in framing the said charge against the petitioners. 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