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Thursday, January 29, 2015

Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 92/2015


JAGE RAM & ORS.                                       ..Appellants

                                   Versus

STATE OF HARYANA                                ..Respondent


                               J U D G M E N T


R. BANUMATHI, J.

            This appeal is preferred against the judgment  dated   19.8.2011
passed by the High Court of Punjab and Haryana in Criminal Appeal No.181  SB
of 2000,  whereby the High Court partly allowed  the  appeal  filed  by  the
appellants thereby confirming the conviction of the appellants with  certain
modifications.
2.          Briefly stated, case of the prosecution is that on  the  fateful
day i.e. 18.11.1994, at about 8.00  A.M.  in  the  morning  the  complainant
Jagdish (PW-5) along with his two sons namely Sukhbir and Mange  Ram  (PW-6)
were busy in cutting pullas (reeds) from the dola of their field.   At  that
time, Jage Ram (A-1) and his sons Rajbir Singh @ Raju  (A-2),  Rakesh  (A-3)
and Madan (A-4) armed with jaily,  pharsi and lathis  respectively,  entered
the land where  the complainant  was working with his sons  and  asked  them
not to cut the pullas  as it was jointly held by both  the  parties.   Wordy
altercations ensued between the parties and Jage Ram insisted that he  would
take away the entire pullas.   In the fight,  the  accused  persons  started
inflicting injuries to the complainant, and his sons  Rajbir  @  Raju  (A-2)
gave a pharsi blow on the head of Sukhbir, Jage Ram (A-1) caused  injury  to
Jagdish  (PW-5)  with  two  jaily  blows.  Additionally,  Madan  and  Rakesh
attacked the complainant  with  lathi  blows  on  shoulder  and  left  elbow
respectively and caused several other injuries  to  the  complainant  party.
Jagdish and his injured sons raised alarm, hearing  which  Rajesh  and  Usha
came to rescue them and on seeing them, the accused persons fled away.
3.          The injured witnesses were taken to the Primary  Health  Centre,
Taoru where Dr. Pardeep  Kumar,  Medical  Officer,  medically  examined  the
injured persons.  Injured Sukhbir was vomiting in the hospital and later  on
he was referred to General Hospital, Gurgaon as his condition  deteriorated.
 A CT scan disclosed that large  extra-dural  haematoma  was  found  in  the
frontal region with mass effect and Sukhbir needed  urgent  surgery  and  he
was operated upon and the large extra-dural  haematoma  was  removed.    Dr.
Pardeep Kumar (PW-2) also examined the other injured persons,  PW  5-Jagdish
and PW 6- Mange Ram.
4.          Statement of Jagdish was recorded, based  on  which  F.I.R.  was
registered at Police Station Taoru, Gurgaon under  Sections  323,  324,  325
and 307 read with Section 34 IPC.            PW  8-Ramesh  Kumar  (ASI)  had
taken up the investigation.  He examined the witnesses and after  completion
of investigation, challan was filed under Sections 307, 325, 324  read  with
Section 34 IPC.  In the trial court,  prosecution  examined  nine  witnesses
including Jagdish-PW5, Mange Ram-PW6 and Dr. Prem        Kumar-PW2  and  Dr.
HiIol Kanti Pal-PW9, Neuro Surgeon,          PW8-investigating  officer  and
other witnesses.  The accused were examined under Section 313 Cr.P.C.  about
the incriminating  evidence  and  circumstances.   First  accused  Jage  Ram
pleaded that on the date of occurrence-complainant  party  Jagdish  and  his
sons Mange Ram and Sukhbir forcibly trespassed into the  land  belonging  to
the accused and attempted to  forcibly  cut  the  pullas.   Jagdish  further
claims that he along with Rakesh caused injuries to  the  complainant  party
in exercise of right of private defence of property.   He  has  denied  that
Rajesh and Usha had seen the incident.   Raju (A-2) and Madan  (A-3)  stated
that they  were  not  present  on  the  spot  and  they  have  been  falsely
implicated.  Rakesh (A-4) adopted the stand of his father Jage Ram.
5.           Upon  consideration  of  oral  and  documentary  evidence,  the
learned Additional Sessions Judge vide judgment  dated  17.2.2000  convicted
all the accused persons under Sections 307 and 325 IPC  and  sentenced  them
to undergo rigorous imprisonment  for five years and one  year  respectively
and a fine of Rs. 500/- each with default clause.   Aggrieved  by  the  said
judgment, the accused-appellants  filed  criminal  appeal  before  the  High
Court of Punjab and Haryana.  The High Court vide  impugned  judgment  dated
19.8.2011 modified the judgment of the trial court  thereby  convicted  Jage
Ram (A-1) under Section 325  IPC  and  sentenced  him  to  undergo  rigorous
imprisonment for one year, convicted second  accused  Rajbir  @  Raju  under
Section 307 IPC and imposed sentence of imprisonment for five years as  well
the fine of Rs.500/- was confirmed  by  the  High  Court.    Sentence  under
Section 325 IPC (two counts) was modified as the sentence under Section  323
IPC and he was sentenced to undergo six months rigorous  imprisonment.  Both
the sentences were ordered to run concurrently.   High  Court  modified  the
sentence of Madan (A-3) Rakesh (A-4) under Section  323  IPC  and  sentenced
them  to  undergo  rigorous  imprisonment  for  six  months   (two   counts)
respectively.   In this appeal, the appellants  assail  the  correctness  of
the impugned judgment.
6.          Ms. Vibha Datta Makhija, learned Senior  Counsel  appearing  for
the appellants contended that the evidence of  the  witnesses  suffers  from
material discrepancy and is  self-contradictory.    It  was  submitted  that
injured witness Sukhbir was not examined in the court and  neither  CT  Scan
nor x-ray nor operational notes of Sukhbir were produced  before  the  court
and in the  absence  of  such  material  evidence,  courts  below  erred  in
convicting the second accused under Section  307  IPC.    Additionally,  the
learned counsel contended that the defence plea of private defence  was  not
considered by the courts below in proper perspective.
7.          Per contra, learned counsel appearing for  the  respondent-State
contended that the evidence of all the witnesses satisfactorily  establishes
the overt act of the accused persons and  Jagdish (PW-5) and Mange Ram  (PW-
6) being the injured witnesses, the veracity of these  witnesses  cannot  be
doubted.   It  was  submitted  that  the   medical   evidence   sufficiently
corroborated the oral evidence  and  the  prosecution  has  established  the
intention of the 2nd accused in causing attempt to commit murder of  Sukhbir
and in appreciation  of  the  evidence,  courts  below  recorded  concurrent
findings convicting the second accused under Section 307 IPC  and  the  same
warrants no interference.
8.          We have carefully considered  the  rival  contentions  and  gone
through the impugned judgment and perused the materials on record.
9.          As it emerges from the evidence, complainant Jagdish (PW-5)  and
his two sons Sukhbir and Mange  Ram  were  cutting    pullas.   The  accused
party went there and asked them not  to  cut  the  pullas.    In  the  wordy
altercation, second accused Rajbir @ Raju gave pharsi blows on the  head  of
Sukhbir.   PWs 5 & 6 have clearly spoken about the overt act of the  accused
that A-1 Jage Ram attacked and caused injury  to  PW-5  Jagdish  with  jaily
blows and that second accused Rajbir @ Raju attacked on the head of  Sukhbir
with pharsi.  They have also stated that Madan and  Rakesh  caused  injuries
to PW5-Jagdish with lathi on shoulder and left elbow respectively.    PW  2-
Dr. Pardeep Kumar in his evidence stated that he has examined PWs  5  and  6
and  noted the injuries on the  body  of  PWs  5  and  6  and  issued  wound
certificates.  Evidence of PWs 5 and 6  is  amply  corroborated  by  medical
evidence.  PWs 5 and 6 being injured witnesses, their evidence  is  entitled
to great weight.   Cogent and convincing grounds  are  required  to  discard
the evidence of injured witnesses.  In the light of the fact that PWs 5  and
6 were injured  witnesses,  courts  below  tested  their  evidence  for  its
credibility  and  recorded  concurrent  findings  that  PWs  5  and  6   are
trustworthy witnesses.  We find no reason to take a different view.
10.         Appellants have  raised  the  contention  that  the  prosecution
failed to adduce evidence that A-2 Rajbir  attempted  to  commit  murder  of
Sukhbir.    It  was  submitted  that  injured  person  Sukhbir  was  neither
examined nor medical evidence like CT Scan, x-ray and operational notes  and
Sukhbir were produced to corroborate the oral evidence and while  so  courts
below erred in convicting second accused Rajbir @  Raju  under  Section  307
IPC.
11.         Dr. Pardeep Kumar-PW-2, who examined Sukhbir  found  during  his
medico-legal examination a lacerated wound in the middle of the top  of  the
skull.  Injured-Sukhkbir was found vomiting  in  the  hospital  and  he  was
examined by a Neuro  Surgeon  Dr.  Hilol  Kanti  Pal  (PW-9)  of  Safdarjung
Hospital, Delhi on 19.11.1994, i.e. the day after the  incident.   PW-9  has
stated that Sukhbir was unconscious since 2.00 P.M. on  18.11.1994  and  was
deeply comatose with irregularity of pupils and a laceration  was  diagnosed
on the right front parietal region.  Further, PW-9 has  stated  that  during
the CT scan,  it  was  revealed  that  a  large  extra-dural  haemotoma  was
present in the frontal  region  with  mass  effect   and  to  avoid  further
deterioration of his condition, he was operated  upon  by  frontal  trephine
craniopmy an haemotoma measuring  about 125 ml was evacuated.   PW-9  stated
that had not the operation been conducted on Sukhbir and had not the  extra-
dural   haemotoma removed by operation urgently, the head injury  caused  to
Sukhbir would have caused his death.  As noted by  the  High  Court,  it  is
thus brought on evidence that had not  surgical  assistance  been  given  to
Sukhbir, he would have   definitely died.
12.          For  the  purpose  of  conviction  under   Section   307   IPC,
prosecution has to establish (i) the intention to  commit  murder  and  (ii)
the act done by the  accused.    The  burden  is  on  the  prosecution  that
accused had attempted to commit  the  murder  of  the  prosecution  witness.
Whether the accused person intended  to  commit  murder  of  another  person
would depend upon the facts and circumstances of each case.   To  justify  a
conviction under Section 307 IPC, it is  not  essential  that  fatal  injury
capable of causing death should have been caused.  Although  the  nature  of
injury actually caused may be of assistance in coming to  a  finding  as  to
the intention of the accused, such intention may also be adduced from  other
circumstances.  The intention of the accused is  to  be  gathered  from  the
circumstances like the nature of the weapon used, words used by the  accused
at the time of the incident, motive of  the  accused,   parts  of  the  body
where the injury was caused and the nature of injury  and  severity  of  the
blows given etc.
13.         In the case of State of M.P. vs. Kashiram & Ors.[1],  the  scope
of intention for attracting conviction under Section 307 IPC was  elaborated
and it was held as under:-

"13. It is sufficient to justify a conviction under Section 307 if there  is
present an intent coupled with some overt act in execution  thereof.  It  is
not essential that bodily injury capable of causing death should  have  been
inflicted. The section makes a distinction between the act  of  the  accused
and its result, if any. The court has to see whether the  act,  irrespective
of  its  result,  was  done  with  the  intention  or  knowledge  and  under
circumstances mentioned in the section. Therefore, an accused charged  under
Section 307 IPC cannot be acquitted merely because  the  injuries  inflicted
on the victim were in the nature of a simple hurt.
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14. This position was highlighted in State of  Maharashtra  v.  Balram  Bama
Patil, (1983) 2 SCC 28, Girija Shanker v. State of U.P.(2004) 3 SCC 793  and
R. Prakash v. State of Karnataka (2004) 9 SCC 27.
                                *     *     *
16. Whether there was intention to kill or  knowledge  that  death  will  be
caused is a question of fact and would depend on the facts of a given  case.
The circumstances that the injury inflicted by the  accused  was  simple  or
minor will not by itself rule  out  application  of  Section  307  IPC.  The
determinative question is the intention or knowledge, as the  case  may  be,
and not the nature of the injury."
See State of M.P. v. Saleem (2005) 5 SCC  554 pp. 559-60, paras 11-14 and
16.
13. "6. Undue sympathy to impose inadequate sentence would do more  harm  to
the justice system to undermine the public confidence  in  the  efficacy  of
law and society could not long endure under such  serious  threats.  It  is,
therefore, the duty of every court to award proper  sentence  having  regard
to the nature of the offence and the manner in  which  it  was  executed  or
committed, etc. This position was illuminatingly stated  by  this  Court  in
Sevaka Perumal v. State of T.N.(1991) 3 SCC 471."

14.         Having regard to the weapon used for causing the  head  injuries
to Sukhbir,  nature of injures, situs of the injury and the severity of  the
blows,  courts  below  recorded  concurrent  findings  convicting  the   2nd
appellant under Section 307 IPC. In our considered view, the  conviction  of
the second appellant Rajbir @ Raju under Section 307  IPC  is  unassailable.

15.         Learned counsel for the appellants  contended  that  the  second
appellant is in custody for more than three years and since  the  occurrence
was in the year 1994, prayed for reduction of the sentence  imposed  on  the
second appellant to the period already  undergone.   Placing  reliance  upon
the judgment of this Court in  Hari  Singh  vs.  Sukhbir  Singh  &  Ors[2].,
learned counsel for the appellants additionally  submitted that in terms  of
 Section 357 (3)  Cr.P.C. that the  compensation   may  be  awarded  to  the
victim and the sentence be modified to the period already undergone.
16.         For the conviction under Section 307 IPC,  courts below  imposed
upon the 2nd appellant rigorous imprisonment of five years,  while  imposing
punishment, courts have  an  obligation  to  award  appropriate  punishment.
Question of awarding sentence is a matter of discretion and  the   same  has
to be exercised by the courts taking into  consideration  all  the  relevant
circumstances.  What sentence would meet the ends of  justice  would  depend
upon the facts and circumstances of each case and the courts  must  keep  in
mind the gravity of the  offence,  motive  for  the  crime,  nature  of  the
offence and all other attendant  circumstances.   Vide  State  of  M.P.  vs.
Bablu Natt[3]; Alister Anthony  Pareira  vs.  State  of  Maharashtra[4]  and
Soman  vs. State of Kerala[5].
17.         In the light of the above, considering the  case  in  hand,  the
occurrence was of the year 1994  when  the  complainant  party  was  cutting
pullas, the accused asked them not to cut the  pullas    which  resulted  in
the wordy altercation.  In the heat of  passion,  the  accused  have  caused
injuries to the complainant party.  The second accused Rajbir @ Raju  is  in
custody.  He surrendered on 5.1.2012 and is stated to be  in  custody  since
then,  for  more  than  three  years.   Having  regard  to  the  facts   and
circumstances of the case, in our considered view, the  period  of  sentence
of five years may be reduced to three years apart from directing the  second
appellant Rajbir  @  Raju   to  pay  substantial  compensation  to  injured-
Sukhbir.
18.          As  noticed  above,  injured-Sukhbir  sustained  grievous  head
injuries and was deeply comatose and was in a state  of  shock  and  trauma.
Learned counsel for the injured-witness submitted that for quite  some  time
injured-Sukhbir  was  unconscious  and  thereafter  suffering  from   mental
trauma.  Having regard to the nature of injuries sustained  by  Sukhbir  and
the period of treatment  and other circumstances, we are of the  view  that,
it would be appropriate to direct second appellant-accused Rajbir @ Raju  to
pay Rs.7,50,000/- as compensation to the injured-Sukhbir.   When the  matter
came up for hearing  on  14.10.2014,  learned  counsel  for  the  appellants
informed the Court that he had offered Rs.5,00,000/- by way of demand  draft
towards compensation to the injured-Sukhbir in the presence of the  Sarpanch
 of the village which he has refused to receive the same.  The  said  amount
of Rs.5,00,000/- is now kept in fixed deposit in the Registry of        this
Court.
19.         For inflicting blows on PW-5 Jagidsh with  jaily  A-1  Jage  Ram
was convicted under Section  325  IPC  and  sentenced  to  undergo  rigorous
imprisonment for one year.  A-3 and A-4 have also given lathis blows to  PW-
5 and were  convicted  under  Section  323  IPC  and  sentenced  to  undergo
rigorous imprisonment for three months by the High Court.  Having regard  to
the fact that the occurrence was of the year  1994,  considering  the  other
facts and circumstances of the case, the sentence  of  imprisonment  imposed
on  Jage Ram (A-1),  Madan (A-3) and  Rakesh (A-4) is reduced to the  period
already undergone by them.
20.         The conviction of A-1 under Section 325 IPC, A-3 and  A-4  under
Section 323 IPC is confirmed and the  sentence  is  reduced  to  the  period
already undergone by each of them. The conviction of second  accused  Rajbir
@ Raju under Section 307 IPC is confirmed and the sentence  of  imprisonment
of five years is reduced to the period already  undergone  and  additionally
the second accused shall pay a compensation of Rs.7,50,000/- to the  injured
witness-Sukhbir. Compensation amount  of  Rs.5,00,000/-  deposited  in  this
Court by the 2nd appellant shall be paid  to  the  injured  witness-Sukhbir.
The second accused Rajbir @ Raju  shall  deposit  the  balance  compensation
amount of Rs.2,50,000/- before the trial court  within  three  months   from
the date of this judgment and on such deposit, the same shall also  be  paid
to  the  injured  witness-Sukhbir.   On  failure  to  deposit  the   balance
compensation, the second appellant  Rajbir  @  Raju  shall  undergo  default
sentence of one year.
21.         The  appeal  is  allowed  to  the  above  said  extent.   Second
appellant Rajbir @ Raju is ordered to be released forthwith if not  required
in any other case.  Bail  bonds  of  accused  A1,  A3  and  A4  shall  stand
discharged.

                                               ...........................J.
                                                           (V. Gopala Gowda)


                                               ...........................J.
                                                                         (R.
                                                                  Banumathi)

New Delhi;
January 28, 2015

ITEM NO.1A-For JUDGMENT     COURT NO.12            SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  92/2015 arising from SLP(Crl.) No. 488/2012

JAGE RAM & ORS.                                    Appellant(s)

                                VERSUS

STATE OF HARYANA & ANR.                            Respondent(s)

Date : 28/01/2015 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)     Mr. Gagan Gupta,Adv.

For Respondent(s)       Mr. Ajay Bansal, AAG
                     Mr. Kamal Mohan Gupta,Adv.
                        Mr. Gaurav Yadav, Adv.

                     Mr. Akshat Goel,Adv.

            Hon'ble Mrs. Justice R. Banumathi  pronounced  the  judgment  of
the Bench comprising of Hon'ble Mr. Justice  V.  Gopala  Gowda  and  Hon'ble
Mrs. Justice R. Banumathi.
            The appeal is allowed  in  terms  of  the  signed     reportable
judgment.  Second  appellant  Rajbir  @  Raju  is  ordered  to  be  released
forthwith if not required in any other case.  Bail bonds of accused  A1,  A3
and A4 shall stand discharged.

    (VINOD KR. JHA)                             (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Reportable judgment is placed on the file)

-----------------------
[1]   [2] AIR 2009 SC 1642 = (2009) 4 SCC 26

[3]   [4] (1988) 4 SCC 551

[5]   [6] (2009)  2 SCC 272
[7]   [8] (2012) 2 SCC 648
[9]   [10] (2013) 11 SCC 382

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