.;!:^,,ti:tti--K3ii HIGH^QURT OF CHHATTISGARH. BJLASPUR 1259 Qf 2003 ON'BLE SUNSLKUMARSINHA Nathoo son of Peelan Ram Dhobi, aged about 30 years, resldent of vili.age Seoni Gudipara, P.S. Bhanpuri, Dlstrict Bastar The Stateof M.P. (Now State of Chhattisgarh) Procedure) Mr. Avlnash K. Mishra, Counsel forthe appellant. Mr. G.D. Waswani, Government Advocate and Mr. S.K. Mishra, Panel Lawyer'for She State. W? ttfl [1) This appea! is directed against the judgment dated 03.12.1993 passed in S.T. Ng.156/89 by the Second Additionai Sessions Judge, Jagdatpur, Bastar. By the impugned judgment, the appellant nas been convicted under Section 307 IPC and sentenced/'to undergo R.l. for 7 years and to pay fine of Rs.SQO/, in default of payment of finffrto further undergo R.I. for 6 months. 1) The facts, briefly stated, are as under:- Victim IVIeghnath (PW-5) and appellant Nathooare • ,.the members of .the same family. A partition has taken ^" .•\ X/' ua .i,ai...ntw ..TB; 2 place in their family, therefore, the appellant and the victim, both were residing separateiy. There was a Sulfi tree in front of the house of the victim. The appeiiant was getting the juice of that tree since many years. In fact, he had deputed „ one Dalpati for extracting the juice from the said tree. The juice of Su/fftree is consumed as intoxicant. On 16.03.1988, the victim obstructed the appellant from taking the julce of Sulfitree. In fact, he said to the appellant to give juice to him aiso as he too clairried his rights over the tree. The allegations are that on account of all this, a quarrel took place between the appeilant and victim and the appejlant brought an arrow' and caused an Incised wound on the right portion of the chest of victim Meghnath by the said arrow .Meghnath (RA/-5). lodged tne First information Report- Ex.P/2 in Police Station Bhanpuri. He was sent for medlcat examination and was examined by Dr. Virendra Kumar Jha (RA/-12), who noticed an arrow injury on the chest of Meghnath. He advised X-Ray examination. He did not mention the nature of injury in the injury report. The injury report is Ex.P/15. Meghnath was admitted in the hospital snd a surgery was performed by Dr. J.S. Shende (PW-10), who also noticed an inju-y of 1" x 7t "x 3" on his chest. The Sessions Judge he!d that the appellant caused the above injury to the victim with an intention to cause his death; therefore, he y^as liable for punishment under Section 307 IPC. Accordingly, the appeilant was convicted under Section 307 IPC and was sentenced to undergo R.l. for 7/years and to pay fine of Rs.500/- wlth default sentence as aforementioned. '-— '.(3) Wr. Avinash K. Mishra, learned counsel appearing on behalf of-the appellant, argues that in a petty quarrel, the appellant caused the above injury on the chest of victim by hands using the CriminaS ADpeal No. 1259 of 2003 pointed portion of an arrow; therefore, there was no intention of the appellant to cause his death. His submission is that the act of the appdlant, therefore, wou!d not be punishabte under Section 307 IPC and the appeilant wouid be liable for punishment under Section 324 IPC. (4) On the other hand, Mr. G.D. Waswani, learned Government Advocate appearing on behslf of the State, opposes these arguments and supports the judgment and order passed by the Sessions Court. >) 1 have heard learned counsel forthe parties at length and have also perused the records of the sessions case. (6) In Sariu Prasad -vs- State of Bihar. AIR f965 S.C. 843.. the Supreme Court held that in order to bring the offence home to accused, the prosecution must establish that his intention was one ofthe three kinds mentioned In section 300 !PC. The state ofmind of the accused has to be dedueed from surrounding circumstances and motive woeild be a retevant circumstance and. v/here the evidence is not sufficient to esiabilsh with certainty, eXistence of requisite Intention or knowiedge of accused, the / accusedp6n be convicted only u/s 324 and not u/s 307 IPC-. '-— _ . (7j !n Hari Kfshan & State of Harvana - Vs- Siikhblr S'mah and others.AIR 198B C.S. 2127., the Supreme Court further held that u/s.307 IPC, what the court has to see is, whether the acf .irrespective 6'fits result, was done with the InteRtion or knowledge Criminal Appeal No. 1259 of 2003 and under circumstances mentioned in that section. The inteniion 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". U./s 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 if is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. ?) in case on hand, 1 flnd that it was a petty quarrel between the uncle and nephew on account of ctaiming their rights over a Suffi tree. Admittedly, this Sy/ff tree was in possession of the appellant since many years and the appellant was extracting the juice of the Sulfi tree. On the fateful day, a quarrel took place, because, the victim was also demanding the juice. It is in these circumstances; the appellant brought an arrow and gave a blow on the rlght portion ofthe che^Eofthe victim by using the pointed pertion of the arrow by hands. Had there been.an intention to cause death/of the victim, the appellant would have shot the arrow / by using the bow, which he did not do.. Besides the above, v/e find '-»- that Dr, Virendra. Kumar.Jha, who has firstly examined the victim, did not mention the nature of injury jn his injury report. The second Do'ctor,'who performed surgery i.e. Dr. J.S. Shende (PV>/-10) [9- .\' admitted in the cross-examination that the arrow had not penetrated into the wall of the thoracic cavity, He however admitted that had it penetrated into the wall of the thoracic cavity, then, it would have been endangerous to life, because, in that case, there was a chance of perforation In the thoraclc cavity, which would have aiiowed the external air to go inside. (9) After going througFt the entire facts and circumstances of the case, particularly the reason tbr quarrel, which s.hows the motive, and the weapon used and the manner in which it was used , 1 am of the opinion that present is not a fit case In which it can be said that the appellant had an intention to commit murder of the victim. Therefore, in the facts and circumstances, an offence under Section 307 IPC would not be made out and the act ofthe appejlant would be punishabie under Section 324 IPC. [10) In the result, the appeal is partly a!!owed. The conviction and sentence av/arded to the appeliant under Section 307 IPC are set aside. Instead thereof, he is convicted under Section 324 IPC and is sentenced for the£period already undergone, which -comes about 3 % months. [11) Ordered accordingly. ^ / Sd/- Sunil Kumar Sinha Judge