Mohd. Waseem v. State of U.P. Thru. Prin. Secy. Lko and 4 Others

Page No. 1 of 17 Court No. - 12 Case :- APPLICATION U/S 482 No. - 9767 of 2024 Applicant :- Mohd. Waseem Opposite Party :- State Of U.P. Thru. Prin. Secy. Lko And 4 Others Counsel for Applicant :- Anand Dubey Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.

¶1Heard Shri Anand Dubey, learned counsel for the applicant assisted by Ms. Saumya Tiwari, Advocate and Shri Alok Kumar Tiwari, learned A.G.A. for the State-opposite party.

¶2By means of the present application under Section 528 B.N.S.S., the applicant has assailed the order dated 30.08.2024 passed by Additional Sessions Judge/F.T.C.-I, Pratapgarh (in short "trial Court") in Session Trial No. 1031 of 2023 (State Vs. Mahfooj & others) arising out of Case Crime No. 141 of 2020, under Sections 323, 506 Indian Penal Code, 1860 (in short "IPC"), Police Station - Raniganj, District - Pratapgarh.

¶3Vide order under challenge dated 30.08.2024, trial Court has rejected the application (6Kha) preferred under Section 228 Code of Criminal Procedure, 1973 (in short "Cr.P.C.") by the informant/applicant/prosecution. This application was preferred for framing of charge under Section 307 Cr.P.C..

¶4The trial Court, based upon relevant material available on record and the pronouncements on the issue rejected the application of the applicant vide the order dated 30.08.2024. Page No. 2 of 17 Relevant portion of the impugned order dated 30.08.2024 reads as under: "

पत्रावलीपरमौजूदसी०डी०नम्बर10

कागजसंख्या8 अ/15

बयानडॉक्टर

मेडिकोलीगलडॉक्टरओमप्रकाशपटेलचिकित्साधिकारीकेअनुसारमजरूब

सोहराबपुत्रशमशादकामेडिकलपरीक्षणउनकेद्वारादिनांक12.04.2020 को

समय08:54AM

परकियागया।मजरूबकोएकचोटLacerated wound from oxipital area in mid

अंकितकियाहैतथासिरकेएक्सरेकेलिये

भीलिखाहैतथादिनांक15.04.2020

कोहुएएक्सरेरिपोर्टकेआधारपर

अपनाओपिनियनदिनांक26.04.2020

कोcaused by hard and blunt object, simple in nature

अंकितहै।कोईभीफागरआर्म्सइंजरीनहींपायी

गयीहै।किसीफायरआर्म्सइंजरीकाअंकननहींकियाहै,

अंकितहै।सी०डी०

नम्बर11

कागजसंख्या8 अ/16

केअनुसार"

शाहरूखखांकेएक्सरेकेबावत

वमेडिकोलीगलकेबारेमेंवार्ताकीगयीमौखिकरूपसेएसपीओमहोदयद्वारा

बतायागयाकि मेडिकोलीगलतथाएक्सरेरिपोर्टमेंविरोधाभाषहैमजरूबकेसिर

मेंमेटलिकसैडोपायागयाहैपरन्तुवहकिसप्रकारकासैडोहैक्यावह12

बोरकेछरेहैअथवाऔरकिसीप्रकारकेमेटलहैं,

इसकेबाबतसमीक्षाकरना

नितान्तआवश्यकहैतथामेडिकोलीगलडॉक्टरद्वाराकोईभीफायरआर्म्सइंजरी

नलिखनातथामेडिकोरलीगलमेंडॉक्टरद्वारामेडिकोलीगलमेंनीचेअपने

हस्तलेखमेंएक्सरेरिपोर्टकोदर्शतेहुएयहलिखनाकि उक्तचोटसिम्पलइन

नेचरकाज्डबाईहार्डएण्डब्लन्टआब्जेक्टअपनेआपमेंकाफीविरोधाभासपैदा

करताहैऐसेमेंआपकोएक्सरेरिपोर्टपुनःदिखातेहुएपूछताछकरेतथाहो

सकेतोएफएसएलकीरायलेजोअति आवश्यकहैतथापूर्वविवेककाभी

बयानले,

होसकेतोमेडिकलबोर्डकागठनकराकरपुनःमेडिकोलीगलकराये

अंकितकियाहै।सी०डी०नम्बर14

कागजसंख्या8 अ/19

केअनुसारमुकदमा

उपरोक्तमेंमजरूबशाहरूखसुतमो०शमसादकाप्रारम्भि कमेडोकोलीगलCHC

रानीगंजजनपदप्रतापगढ़केडॉक्टरओमप्रकाशपटेलद्वारादिनांक12.04.2020

कोकियागयाथाजिसमेंमजरूबकोसिरमेंलगीचोटकेएक्सरेहेतुएडवाइस

कियागयाथापरन्तुमेडीकोलीगलरिपोर्टमेंउक्तमजरूबकोलगीउक्तचोट

फायरआर्म्सइंजरीसेआनानहींअंकितकियागयाथा।

जबकि दिनांक

15.04.2020

कोजिलाअस्पतालजनपदप्रतापगढ़केरेडियोलाजिस्टविभागके

डॉक्टरएम०डी०कलीमअकमलद्वारामजरूबशाहरूखउपरोक्तकेसिरका

एक्सरेकियागयातथाएक्सरेरिपोर्टमेंदोराउंडेडशेडोऑफमेटेलिकडेन्सि टी

पायाजानाअंकितकियागयाहैतथायहभीअंकितकियागयाहैकि

मेडिकोलीगलमेंफायरआर्म्सइंजरीअंकितनहींकियागयाहै।जबकि दिनांक

26.04.2020

कोउक्तएक्सरेरिपोर्टवप्लेटकेआधारपरमेडीकोलीगलडॉक्टर

ओमप्रकाशपटेलद्वारापृष्ठकेनीचेमजरूबकीचोटकोसाधारणप्रकृति कीतथा

हार्डएंडब्लंटऑब्जेक्टसेआनाअंकितकियाहै।इसप्रकारमेडिकोलीगल

रिपोर्टतथाएक्सरेरिपोर्टमेंविरोधाभासहैतथाउक्तडॉक्टरोंकेबयानसेभी

आपसमेंअपनेकोसहीबतायागयाहै।ऐसेमेंविधि विज्ञानप्रयोगशालामहानगर

लखनऊसेकि क्याउक्तमेटेलिकशेडोफायरआर्म्सद्वाराकारितकियागयाहै

तथायहमेटेलिकशेडोकिसकेफायरकाहैज्ञातकरनाअति आवश्यकहै।इस Page No. 3 of 17

संबंधमेंविधि विज्ञानप्रयोगशालाभेजाजारहाहै।"

अंकितहै।

सी०डी०नम्बर

केअनुसार"

मुकदमाउपरोक्तमेंमुख्यचिकित्साधिकारीप्रतापगढ़द्वारा

मेडिकलबोर्डकागठनकियागया।जिसमेंकुल3

डॉक्टरोंकीटीमद्वारामजरूब

शाहरूखसुतशमशादकापुनःमेडिकलपरीक्षणकियागयाहै।डा०एम०डी०

कलीमअकमलद्वारामजरूबउपरोक्तकापुनःएक्सरेदिनांक24.02.2021 को

ईयरलीनं०357/2021

कोकियागयाहै।जिसमेंमजरूबको02 round radio apaire shadow of metallic deurity seen in mid of oceipitre region. Reffered to FSL for final opinion

अंकितहै।मेडिकोलीगल

रिपोर्टडॉ०अभिषेकसिंहनेतैयारकियाहै।जिसमेंमजयबशाहरूखउपरोक्तको Headed liver seen on upper part of mid ociputed region no headerws seen K.U.O.

अंकितहै।सी.डी.

नम्बर28

कागजसंख्या8 अ/33

केअनुसार"

विधि विज्ञानप्रयोगशालाराजगढ़झांसी281435 Part N 105647

प्रेषकउपनिदेशकविधिविज्ञानप्रयोगशालाउ०प्र०राजगढ़झांसी 244135,

सेवामेंक्षेत्राधिकारीरानीगंजप्रतापगढपत्रांकसंख्या97Bal21 अपराध

संख्या141/20

धारा323,507

भा०दं०सं०राज्यबनाममहफूजअलीथाना

रानीगंजदिनांक02.07.2021

कोविशेषवाहकहे०का०अमरेशतिवारीद्वारा

उपरोक्तसेसम्बन्धि तपत्रतथानिम्नप्रदर्शप्राप्तहुए।1.

दोअददनमूनामोहर

प्राप्तहुईजिन्हेंन1

वन2

सेचिन्हि तकियागयाहै।2.

एकसर्वमोहर

लिफाफाजिसपरन1

केसमानमोहरेलगीहैतथालिफाफेपरमु०अ०सं०

बनाममहफूजआदि लिखाहैकोखोलनेपरएक

एक्सरेप्लेटप्राप्त

हुआजिसेx1

सेचिन्हि तकियागयाहै।निरीक्षणएक्सरेप्लेटचिन्हि तx1 सिर

काएक्सरेप्लेटहैजिसकीलम्बाई30.3

सेमी०वचौड़ाई25.2

सेमी०हैएक्सरे

प्लेटकानिरीक्षणकरनेपरपायागयाकि सम्बन्धि तसिरकेएक्सरेप्लेट(चित्र)

मेंफायरआर्मसेसम्बन्धि तछरेंकीचोटदृष्टिगोचरनहींहुई।परिणामविवाद

एक्सरेप्लेटचिन्हि तX1

परफायरिंगसेसम्बन्धि तकोईचोटदृष्टिगोचरनहीं हुई।"

अंकितकियाहै।विधि विज्ञानप्रयोगशालाकीआख्याकागजसंख्या 9 अ/6

केअनुसार"

एक्सरेप्लेटचिन्हि तX-1

सिरकाएक्सरेप्लेटहैजिसकी

लम्बाई30.3

सेमी०वचौड़ाई25.2

सेमी०हैएक्सरेप्लेटकानिरीक्षणकरने

परपायागयाकि सम्बन्धि तसिरकेएक्सरेप्लेट(चित्र)

मेंफायरआर्मसे

सम्बन्धि तछर्रेकीचोटदृष्टिगोचरनहींहुई।"

ऐसेमेंपत्रावलीकेअवलोकनसेस्पष्टहैकि अभियुक्तगणकेविरूद्धप्रथमदृष्टया

आरोपअन्तर्गतधारा307

भा०दं०सं०बनायेजानेकेआधारपर्याप्तनहींहैंतथा

अभियुक्तगणकेविरूद्धअन्तर्गतधारा-323,506

भा०दं०सं०काआरोपविरचित

करकेउनकाविचारणकियेजानेकापर्याप्तआधारहै। आदेश

प्रार्थनापत्र-6 ख,

अन्तर्गतधारा-228

द०प्र०सं०निरस्तकियाजाताहै।पत्रावली

वास्तेआरोपविरचनदिनांक11.09.2024

कोपेशहो।"

¶5Brief facts of the case, which are relevant, are as under:

(i) On 17.04.2020, One Imran, brother of the applicant/Mohd. Waseem, alleged injured, lodged an Page No. 4 of 17 FIR registered as Case Crime No. 0141 of 2020 dated

17.04.2020, under Sections 307, 323 IPC. According to the FIR on 12.04.2020, for some previous squabble the opposite party nos. 2 to 5 namely Mehfooz, Masouk, Halim and Inamul, respectively, opened fire upon Wasif @ Kallu with a country made pistol and also assaulted him with lathi, danda and saria..

(ii) Further, on hue and cry, the neighbours and others including Shahrukh, Wasim @ Nanhe (Hamid), and Shohrab reached the place of crime to rescue Wafis @ Kallu, brother of the informant, and the Wasim @ Nanhe was assaulted with lathi by the accused and the accused also fired upon Shahrukh. Further, as per FIR the accused Inamul caused fire arm injury to Hamid.

(iii) Thus, except Inamul, to all other accused general role has been assigned.

(iv) After the aforesaid, Investigating Officer recorded the statements of witnesses including the injured witness namely Shahrukh and also obtained medical opinion(s) and recorded the statement of the concerned doctor and thereafter filed the charge-sheet under Sections 323, 506 IPC.

(v) After the aforesaid, an application (6Kha) under Section 228 Cr.P.C. was preferred by the informant/applicant for framing of charge under Page No. 5 of 17 Section 307 IPC. This application was preferred on the basis of allegations levelled in FIR and statements of witnesses of fact, who supported the story narrated in the FIR, as also the alleged gun shot injury sustained by injured Shahrukh. It is for the reason that injuries indicated in the injury report(s) of Shohrab S/o Mohd. Samsad and Wasib S/o Shakir Ali, which are on record, are not fatal/grievous injuries. The paragraphs 2 to 6 of application (6Kha) filed under Section 228 Cr.P.C. being relevant, are reproduced herein-under : "

धारा2-

यहकि प्रार्थी मुकदमेकावादीवसाक्षीहै।घटनादिनांक

12.4.2020

को8.30

बजेसुबहकीहै।प्रार्थी काभाईवासिफउर्फ

कल्लूलाकडाउनखुलनेपरघरेलूसामानलेनेपासकीदुकानपरगयाथा

कि तभीपासकीदुकानकेअगलबगलपूर्वकीकहासुनीसेग्रसित

होकरएकरायहोकरमहफूज,

मासूकसुतगणहामिदअली,

हलीमसुत जलील,

इनामुलसुतहबीबमेरेभाईपरजानसेमारनेकीनियतसे

तमंचेसेफायरकरनेलगे।भाईकिसीतरहअ

पनीजानबचाकरभागा।

उक्तलोगोनेलाठी, डन्डा,

सरियासेभाईपरजानलेवाहमलाकिया

भाईकीहल्लागोहारसुनकरपड़ोसकेशाहरूखववसीमउर्फनन्हेबीच

बचावकरनेदौड़ेतोउक्तलोगवसीमकोलाठीसेमारकरघायलकर

दियातथाशाहरूखपरभीफायरकिया।घटनाकेसमयहामिदबीच

बचावकरनेआयेकि तभीइनामुलनेभाईपरजानसेमारनेकेलिए

फायरकियाजोस्थलपरपहुंचाऔरतत्कालथानाध्यक्षरानीगंजको

फोनद्वारासूचितकियातथाभाईवचोटहिलकोप्राथमिकउपचारहेतु

रानीगंजसीएचसीलेआयाजहांसेजिलाअस्पतालरिफरकरदिया।

प्रार्थी की तहरीर पर थाना रानीगंज मे अ.सं. 141/20

पर धारा 307/323 भा.द.वि.

मेंअभियुक्तगणमहफूज,

मासूकहलीमव

इनामुलके

विरुद्धमुकदमापंजीकृतहुआ।

धारा3-

यहकि दौरानविवेचनाकेसडायरीकेपर्चानंबर2 मेंचश्मदीद

साक्षीसैदाबेगमतथापर्चानंबर3

मेंऐजाबानोतथापर्चानंबर9 में

मजरूबशाहरूखखानकाधारा151

सीआरपीसीमेबयानअंकितकिया

गयाहैंउक्तसाक्षीगणनेधारा161

सीआरपीसीकेबयानमेंअभियुक्त

महफूजद्वारागोलीचलानेसेसिरमेंचोटआनाबतायाहै।

धारा4-

यहकि केसडायरीकेपर्चानंबर12

मेंप्रार्थीवादीमुकदमाका

धारा161

सीआरपीसीमेंबयानअंकितकियागयाहै।प्रार्थीनेभीअपने

बयानमेंप्रथमसूचनारिपोर्टकेकथानककापूर्णसमर्थनकियाहै। Page No. 6 of 17

धारा5-

यहकि विवेचकद्वाराकेसडायरीकेपर्चानंबर28 तक

भा०दं०वि०मेंविवेचनाकिया।केसडायरीकेपर्चानंबर29

मेंधारा307

भा०दं०वि०कालोपकरदियाहै।

धारा6-

यहकि केसडायरीकपर्चानंबर31

मेचोटहिलसाक्षीवासिफ

उर्फकल्लूका161

दं०प्र०सं०मेंबयानअंकितकियाहै।उक्तसाक्षीने

कथनकियाहैकि दिनांक12.4.2000

कोसुबह8.30

बजेइमरानके

परिवारसेवमेरेपरिवारसेविवादहोनेलगा।शाहरूखखानबीचबचाव

केलिएगयातोशाहरूखखानकेउपरमहफूजनेगोलीचलादिया

जिससेउसकेसिरमेंचोटआगयीमुझेभीचोटलगीजिसकीडाक्टरी

हुईथी। "

(vi) The statement of Shahrukh Khan recorded in terms of Section 161 Cr.P.C., annexed as Annexure No. 7 to the application, being also relevant, on re-production reads as under: "

बयानमजरूब/

–

चश्मदीदगवाह बदरियाफतशाहरूखखानपुत्रशमशाद

निवासीमानापट्टीथानारानीगंजजनपदप्रतापगढ़उम्रकरीब22 वर्ष

पूछनेपरबतारहेहैंकि दिनांक12.04.2020

कोसुबह08.30

बजेके

आसपासइमरानकेपरिवारसेहलीमकेपरिवारसेविवादहोनेलगा

कि मैंबीचबचावकरनेकेलियेगयातोमेरेऊपरमहफूजनेगोलीचला

दियाजिससेमेरेसिरमेंचोटआगयी।करीब12

फिटसेमहफूजने

गोलीचलायाथा।इमरानवउनकेभाईकल्लूकामहफूजहलीमवगैरहसे

जमीनीविवादहैमेरीडाक्टरीहुयीथीतथामेराएक्सरेभीहुआथा।

इसकेसिवामुझेऔरकुछनहींकहनाहै।जोमेरेसाथहुआआपको

बतादियाहैऔरथानेपहुंचनेपरकुछभीबतानेसेइंकारकिया।"

(vii) At this stage, on being asked, after considering the offence indicated under Sections 323, 506 IPC, learned counsel for the applicant before this Court has submitted that against the applicant and others, FIR was lodged, registered as Case Crime No. 140 of 2020, under Sections 147, 148, 149, 307, 323, 302, 504, 506 IPC and therefore, the present case is under consideration before the Session Court. Page No. 7 of 17

(viii) The objection (7Kha) to the application (6Kha) was filed by the accused. As per objection (7Kha), in nutshell, with ulterior motive ,the application (6Kha) was filed. To explain the ulterior motives, the accused stated the facts related to Case Crime No. 140 of 2020 (Supra).

(ix) The injuries of Shahrukh have already been indicated in the order impugned dated 30.08.2024, quoted above, as such the same have not been reproduced in this judgment.

¶6The trial Court, after considering the material available on record, as also allegations levelled against the accused-opposite party nos. 2 to 5 rejected the application.

¶7In order to decide the issue involved in the instant case which relates to framing of charge under Section 307 IPC, it would be appropriate to refer Section 307 IPC as also the some pronouncements on the issue.

¶8Section 307 IPC reads as under: '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 of 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 Page No. 8 of 17

(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.

(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 ensue.

(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 in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.'

¶9In State of Maharashtra v. Balram Bama Patil [State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 : 1983 SCC

(Cri) 320], Hon'ble Apex Court held that it is not necessary that a bodily injury sufficient under normal circumstances to cause death should have been inflicted : "9. … To justify a conviction under this section it is not 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 this section. An attempt in order to be criminal need not be the penultimate Page No. 9 of 17 act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. (emphasis supplied)"

¶10In State of M.P. v. Saleem [State of M.P. v. Saleem,

(2005) 5 SCC 554 : 2005 SCC (Cri) 1329], Hon'ble Apex Court held thus : "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. (emphasis supplied)"

¶11In Jage Ram v. State of Haryana [Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425], Hon'ble Apex Court held that to establish the commission of an offence under Section 307, it is not essential that a fatal injury capable of causing death should have been inflicted : "12. For the purpose of conviction under Section 307 IPC, the 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 the 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 Page No. 10 of 17 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."

¶12In State of Maharashtra v. Kashirao, (2003) 10 SCC 434, the Hon'ble Apex Court identified the essential ingredients for the applicability of the section. The relevant extract is as below: "The essential ingredients required to be proved in the case of an offence under Section 307 are:

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and

(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as : (a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."

¶13Hon'ble Apex Court in Om Prakash v. State of Punjab, 1961 SCC OnLine SC 72, as far back as 1961, observed the constituents of the Section, having referred to various judgments of the Privy Council, as under: "a person commits an offence under Section 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do Page No. 11 of 17 certain act with the necessary intention or knowledge mentioned in Section 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression "whoever attempts to commit an offence" in

Section 511, can only mean "whoever : intends to

do a certain act with the intent or knowledge necessary for the commission of that offence". The same is meant by the expression "whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder" in Section 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression "by that act" does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time." (Emphasis supplied)

¶14In Hari Mohan Mandal v. State of Jharkhand, (2004) 12 SCC 220, the Hon'ble Apex Court holds that the nature or extent of injury suffered, are irrelevant factors for the conviction under this section, so long as the injury is inflicted with animus. It has been held: "10. …To justify a conviction under this section, it is not 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. … 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.

¶11It 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. If the injury inflicted has been with the avowed object or intention to cause death, the Page No. 12 of 17 ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. 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, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt."

¶15In the case of State of M.P. vs. Kashiram & Ors. (2009 4 SCC 26), 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.

¶14This 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. * * *

¶16Whether 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." Page No. 13 of 17

¶16In Surinder Singh v. State (UT of Chandigarh), (2021) 20 SCC 24 : 2021 SCC OnLine SC 1135, the Hon'ble Apex Court holds as under: "A. Whether the guilt of the appellant under Section 307 IPC has been proved beyond reasonable doubt?

¶19Before we advert to the factual matrix or gauge the trustworthiness of the witnesses, it will be beneficial to brace ourselves of the case law qua the essential conditions, requisite for bringing home a conviction under Section 307 IPC. In State of M.P. v. Saleem [State of M.P. v. Saleem, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329] , this Court, while re-appreciating the true import of Section 307 IPC held as follows : (SCC pp. 559-60, paras 12-13) "12. To justify a conviction under this section, it is not 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.

¶13It 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 Page No. 14 of 17 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." (emphasis supplied)

¶20These very ingredients have been accentuated in some of the later decisions, including in State of M.P. v. Kashiram [State of M.P. v. Kashiram, (2009) 4 SCC 26 : (2009) 2 SCC

(Cri) 40] , Jage Ram v. State of Haryana [Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425] and State of M.P. v. Kanha [State of M.P. v. Kanha, (2019) 3 SCC 605 : (2019) 2 SCC (Cri) 247] .

¶21It is by now a lucid dictum that for the purpose of constituting an offence under Section 307 IPC, there are two ingredients that a court must consider, first, whether there was any intention or knowledge on the part of the accused to cause death of the victim, and, second, such intent or knowledge was followed by some overt actus rea in execution thereof, irrespective of the consequential result as to whether or not any injury is inflicted upon the victim. The courts may deduce such intent from the conduct of the accused and surrounding circumstances of the offence, including the nature of weapon used or the nature of injury, if any. The manner in which occurrence took place may enlighten more than the prudential escape of a victim. It is thus not necessary that a victim shall have to suffer an injury dangerous to his life, for attracting Section 307 IPC.

¶22It would also be fruitful at this stage, to appraise whether the requirement of "motive" is indispensable for proving the charge of attempt to murder under Section 307 IPC.

¶23It is significant to note that "motive" is distinct from "object and means" which innervates or provokes an action. Unlike "intention", "motive" is not the yardstick of a crime. A lawful act with an ill motive would not constitute an offence but it may not be true when an unlawful act is committed with best of the motive. Unearthing "motive" is akin to an exercise of manual brain-mapping. At times, it becomes Herculean task to ascertain the traces of a "motive".

¶24This Court has time and again ruled : (Bipin Kumar Mondal case [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150] , SCC p. 97, para 23) Page No. 15 of 17 "23. … that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy." (emphasis supplied) [See : Shivaji Genu Mohite v. State of Maharashtra [Shivaji Genu Mohite v. State of Maharashtra, (1973) 3 SCC 219 : 1973 SCC (Cri) 214] and Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150] ]

¶25We are thus of the considered opinion that whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the accused and testaments of eyewitnesses to the occurrence of a malfeasance are on record."

¶17The above judgments of Hon'ble Apex Court leads to the conclusion that proof of grievous or life-threatening hurt is not a sine qua non for the offence under Section 307 of the Penal Code. The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent. Page No. 16 of 17

¶18The Apex Court has held that for conviction under Section 307 IPC the intention to cause death is also required to be proved along with the injuries inflicted.

¶19For 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.

¶20For the conviction under Section 307 IPC more importance has been given to mens rea or the intention than the actus reus or the actual act itself. The attempt should arise out of a specific intention or desire to murder the victim. The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted is all taken into consideration to determine the intention. Page No. 17 of 17

¶21Considered the aforesaid including the case set up by the prosecution, indicated in FIR, as also the relevant portion of the application (6Kha), quoted in para 5(iv) of this judgment, as also the statement of the injured Shahrukh, quoted in para 5(v) of this judgment, and unrefuted injuries indicated in the order impugned sustained by injured(s) including Shahrukh and the statements of witnesses on record namely Imran (Annexure No. 4), Saida Begum (Annexure no. 5), Aija Begum (Annexure No. 6).

¶22Upon due consideration, this Court finds that intention or motive or element of planning or premeditation is not apparent which indicates that the offence could have committed by the accused on impulse.

¶23For the aforesaid, this Court is of the view that the trial Court has rightly rejected the application for framing of charge under Section 307 IPC. The order, to the view of this Court, is just and proper.

¶24The instant application is accordingly rejected. Cost made easy.

¶25It is clarified that observations made in this judgment shall have no bearing on the merits of the trial and the trial Court shall not be influenced by any observation made in this judgment. Order Date :- 18.11.2024 Mohit Singh/- High Court of Judicature at Allahabad, Lucknow Bench