1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Sultan & Ors. Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.1331/2010) S.B. Criminal Revision Petition Under Section 397 read with Section 401 Cr.P.C. Date of Judgment: December 15, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.J.P. Gupta, for the petitioners. Mr.Javed Chaudhary, Public Prosecutor. Aggrieved by the order dated 19.8.2010, passed by the Additional Sessions Judge (Fast Track) No.1, Beawar, whereby the learned Judge has framed the charges for offences under Sections 148, 452/149 323/149, 324/149, 307/149 IPC, the petitioners have approached this Court. In brief, the facts of the case are that on 2.5.2010, the complainant, Abdul Mazid, lodged a written report at Police Station Beawar City, District Ajmer wherein he leveled various allegations against the present petitioners. On the basis of the said report, the Police registered a FIR, FIR No.198/2010, for offences under Sections 147, 148, 149, 323, 307 and 452 IPC 2 and started investigation. On completion of the investigation, the Investigation Agency submitted the charge-sheet before the trial court for the offence punishable under Section 307 IPC. After hearing both the parties, vide order dated 19.08.2010, the learned trial court framed the aforementioned charges against the petitioners. Hence, this petition before this Court. Mr. J.P. Gupta, the learned counsel for the petitioners, has asserted that a bare perusal of the injury reports of Abdul Mazid, Mohammed Salim, Mohammed Hameed, Gajju Kureshi and Hakim clearly reveal that none of the injuries are dangerous to life. In fact all the injuries are said to be simple in nature. Although Hakim has suffered seven injuries, although he has suffered three incised wounds and one lacerated wound, but according to the X-ray report even these injuries are not grievous in nature. Therefore, the case dose not travel farther than Section 326 IPC. Hence, the petitioners cannot be charged for offence under Section 307 IPC. Secondly, there is no evidence to show that the petitioners had a common intention and a common object of causing the death of any of the injured persons. Therefore, the offence under section 149 IPC cannot be framed. Lastly, in the FIR there is no mention that the accused, Salim Kabadi was 3 carrying the knife in his hand. In fact no knife has been recovered from Salim Kabadi. Hence, no charge for offence under Section 307/149 can be framed against Salim Kabadi. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has strenuously contended that Section 307 IPC does not require that the nature of injury should be grievous or should be dangerous to life. He has drawn the attention of this Court to the latter part of the provision and to illustration (c) in order to argue that in case “hurt” is caused, whatever be the nature of injury, simple or grievous, even then looking to the circumstances of the case, the learned Judge would be justified in framing the charge for offence under Section 307 IPC. Secondly, according to the learned Public Prosecutor, the petitioner had formed an unlawful assembly, had invaded the house of the complainant at 7:45 P.M., and carried lethal weapons such as knife, iron rods and swords. Thus, their intention to cause the death of one of the occupant of the house is writ large. In the process of assaulting the injured persons, if “hurt” has been caused to any one of them, then the petitioners are liable to face a charge for offence under Section 307 IPC. Lastly, the FIR is not supposed to be encyclopedic in its contents. Therefore, even if 4 the FIR does not mention that one of the petitioners was carrying a knife, it would not be fatal to the prosecution. Heard the learned counsel for the parties, perused the impugned order, and the charge-sheet. 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 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. 5 (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 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 6 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. 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 : 7 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 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 8 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 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. According to the injury report of Hakim, he has suffered three incised wound on the head and one lacerated wound on the front part of the head. According to his statement, recorded under Section 161 Cr.P.C., Salim Kabadi had allegedly assaulted him with a knife on the head. Obviously, once a person is assaulted with a knife on the head, hurt as defined in Section 319 Cr.P.C. would have been caused to him. Moreover, if we were to look into the circumstances of the case allegedly the accused-petitioners, had formed an unlawful assembly, had carried lethal weapons like iron 9 rods and swords and had invaded the house of the complainant. Using these lethal weapons, they had caused hurt to Hakim and to others. The fact that they were carrying lethal weapons clearly reveals their intention of wanting to commit the death of one of the persons. Further, the fact that knife has been struck on a vital part, like head, also reveals the knowledge of the petitioners. Thus, the learned Judge was certainly justified in framing the charge for offence under Section 307 IPC. It is not essential that the existence of the knife should be mentioned in the FIR. For, it is a settled principle of criminal law that FIR is not encyclopedic in its contents. It is sufficient to say that Hakim in his statement, recorded under Section 161 Cr.P.C., and the other injured witnesses claim that Salim Kabadi had struck Hakim with a knife. Therefore, the contention raised by the learned counsel, that non-mention of knife in the FIR would dilute or would create doubt about the veracity of the prosecution case, is unacceptable. Thus, this Court does not find any illegality or perversity in the impugned order. This petition is devoid of any merit. It is, hereby, dismissed. 10 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. (R.S. CHAUHAN) J. Manoj solanki