CRR No.3358 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.3358 of 2010 Date of decision: 15.02.2011 Surender Singh ....Petitioner Versus Virodhi @ Ombir and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Jangvir Singh Hooda, Advocate, for the petitioner. Mr. S.K. Chauhan, Advocate, for respondents No.1 to 3. Mr. Mahendra Singh Tewatia, Advocate, for respondent No.4. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Complainant has invoked the revisional jurisdiction of this Court challenging the order dated 20.9.2010 passed by Additional Sessions Judge, Palwal, thereby not framing charges for the offence punishable under Section 307 of the Indian Penal Code and sending the case back to the learned Magistrate for offence under Section 323/341/34 IPC coupled with Section 25 of the Arms Act. Prosecution story inter alia is that accused Virodhi was armed with a lathi and caused one injury at left shoulder of the complainant. Complainant has caught hold the lathi. In the meanwhile accused Rohtash @ Rodhi, Kaluwa and Lala also came out from the bushes. Accused Lala caused one lathi blow at right hand writ of the complainant and accused Kaluwa caused one fist blow at left eye of the CRR No.3358 of 2010 -2- complainant even then complainant did not let loose the lathi accused Virodhi raised lalkara asking Rohtash @ Rodhi to fire upon the complainant. Accused Rohtash @ Rodhi fired at the complainant which hit him at right thigh and the complainant fell down. After investigation, police has submitted challan for an offence under Sections 323/341/307/34 IPC. Learned Magistrate has committed the trial to the learned Sessions Judge. However, learned Sessions judge vide order dated 20.9.2010 refused to frame charges under Section 307 IPC and has sent back the case to the learned Magistrate. I have heard learned counsel for the parties and have carefully perused the record. From the statement of the accused recorded under Section 161 Cr.P.C., it appears that first of all Virodhi accused stopped the injured and has given lathi blow on the left shoulder of the injured and when injured caught the lathi then other accused Rohtash @ Rodhi, Kaluwa and Lala came out from the bushes. Lala caused one lathi blow on right hand and Kaluwa has given fist blow at his left eye, however, when injured did not let loose the lathi, Virodhi accused raised lalkara asking Rohtash @ Rodhi to fire at him (injured) and thereupon Rohtash @ Rodhi fired at the injured and injured had suffered firearm injury. Asking one of the accused to fire at the victim in the ordinary course of the things would amount to fire with intent to kill. Hon'ble Apex Court in the matter of Girija Shankar Vs. State of U.P., 2004 Crl. L.J., 1388 has held as under: - “To justify a conviction under this Section, it is not CRR No.3358 of 2010 -3- 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 the 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.” In the opinion of this Court, ordinarily nature of injury plays an important role to constitute an offence punishable under Section 307 IPC, however, Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC. Sometime, intention may be deduced from the circumstances without any reference to the actual wounds. If assault was made with intention to kill and with the knowledge and circumstances that firearm injury can cause death in ordinary course, then offence under Section 307 IPC can be said to have been made out. As observed hereinbefore, Rohtash @ Rodhi has fired at the injured on asking of Virodhi co-accused and all the accused in furtherance of the common intention have stopped the injured and caused injury, hence learned trial Court was not justified in discharging CRR No.3358 of 2010 -4- the accused for an offence under Section 307 IPC. Order impugned is set aside. Learned Sessions Judge is directed to proceed with the case in accordance with law. (Alok Singh) Judge February 15, 2011 R.S.