High Court
Case Details
Neutral Citation No. - 2023:AHC:151318 Court No. - 90 Case :- APPLICATION U/S 482 No. - 6105 of 2023 Applicant :- Sudama Prasad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shashi Kant Shukla Counsel for Opposite Party :- G.A.,Arimardan Yadav,Jadu Nandan Yadav Hon'ble Dinesh Pathak,J. 1. Rejoinder affidavit filed today is taken on record.
Legal Reasoning
If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307. This Court in R. Prakash v. State of Karnataka, MANU/SC/0110/2004 : (2004) 9 SCC 27 held that: ...The first blow was on a vital part, that is on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigor of Section 307 Indian Penal Code...... 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. 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 Sections 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. If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 Indian Penal Code would be applicable. There is no requirement for the injury to be on a "vital part" of the body, merely causing 'hurt' is Code. sufficient Section 307 Indian Penal to attract This Court in Jage Ram v. State of Haryana MANU/SC/0074/2015 : (2015) 11 SCC 366 held that: 12. For the purpose of conviction under Section 307 Indian Penal Code, 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 Indian Penal Code, 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. This Court in the recent decision of State of M.P. v. Kanha @ Omprakash held that: The above judgments of this Court lead us 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. 8. Learned counsel for the applicant has raised all disputed question of fact with respect to incident allegedly took place on 1.3.2022 at about 8.20 pm wherein both the brothers of the informant were injured. Considering the averment made in the First Information Report, the medico-legal report and other material on record as well as the surrounding circumstances, prima facie, the complicity of the present applicant in the commission of offence cannot be ruled out. To prove the innocence of the present applicant qua his complicity in the commission of offence under Section 307 IPC is a matter of trial and, at this juncture, innocence of the accused under said section considering the facts and circumstances of the present case cannot be inferred. In exercise of inherent jurisdiction under Section 482 CrPC, this Court is not expected to examine the veracity of the incident took place on the date of occurrence in the light of the material available on record, which is a subject matter of trial and the same can more appropriately be adjudicated upon by the trial court concerned after appraisal of evidence to be adduced by the parties concerned. At this juncture, it is relevant to quote paragraph No. 4.1 of the judgment passed by Hon'ble Supreme Court in the case of Central Bureau of Investigation (supra) hereinbelow: "4.1 From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not". 9. In this conspectus, as above, I do not find any justifiable ground to quash the entire criminal proceeding in exercise of inherent jurisdiction under Section 482 CrPC nor did I find any abuse of the process of law or any ground to entertain the instant application in order to secure the ends of justice. 10. Resultantly, instant application under Section 482 CrPC, being misconceived and devoid of merits, is dismissed. 11. However, it is provided that in case applicants move an appropriate application for discharge along with a certified copy of this order before the concerned Court below, the same shall be considered and decided by the Court below as expeditiously as possible in accordance with law, without being prejudiced by the order passed by this Court. 12. If the concerned Court feels persuaded to have the view that accused ought not to have been summoned and charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the Court below holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits. Order Date :- 28.7.2023 vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad
Arguments
2. Heard learned counsel for the applicant, learned counsel for the opposite party No. 2, learned AGA and perused the record on board at the admission stage. 3. The present applicant has invoked the inherent power of this Court under Section 482 CrPC beseeching the quashing of entire proceeding of case No. 425 of 2022 (State Vs. Sudama Prasad) arising out of the case crime No. 64 of 2022, under Sections 323, 504, 307 and 325 IPC, Police Station Kotwali Tirwa, District Kannauj pending before Additional Chief Judicial Magistrate, Kannauj. 4. As per FIR, being case crime No. 64 of 2022 dated 1.3.2022, the informant namely Sudhir Kumar runs a grocery shop. On the date of incident i.e. 4.3.2022 at 8.20 a.m., the goods of the shop of the informant came loaded on a pickup. While driver of pick-up took a turn near the house of Sudama Prasad, he started abusing brothers of the informant. When his brothers protested, the accused Sudama Prasad thrashed his brother Umashankar alias Anshu with a stick. While another brother namely Kamal Kishore resisted, the accused Sudama Prasad brought a country made pistol from his house and, with an intention to kill, fired at him, due to which Kamal Kishore was seriously injured. The informant caught the accused on the spot along with pistol. On information, police came on the place of occurrence and, after arresting the accused, brought him at the police station with pistol. 5. Learned counsel for the applicant, in his submissions, has questioned the implication of the present applicant under Section 307 IPC. He submitted that the applicant has falsely been implicated in the instant case for some ulterior motives known to the first informant best. By no stretch of the imagination, crime under Section 307 IPC can be inferred inasmuch as there is no sign of any grievous hurt on the body of both injured-victims which can cause death to them. It is further submitted that there are material contradictions between the version of the FIR and the statements made by the victims under Section 161 CrPC. As per the FIR version, Kamal Kishore was inflicted fire arm injuries whereas in his statement, he changed FIR version and stated that when the accused fired at him, the bullet got passed touching his head. Similar statement was made by another victim namely Anshu (his brother). Learned counsel for the applicant has drawn the attention of the Court towards the medico-legal report wherein no sign of fire arm injury i.e. blackening, tattooing or insertion of pellet in the body of the victim has been found. Learned counsel for the applicant has also drawn attention of court towards the statement of doctor wherein he has stated that no fire arm wound was found on the body of the victims. It is further submitted that the injuries caused are not sufficient to try the case under Section 307 IPC. With respect to same incident in question, cross complaint has been filed on behalf of the present applicant wherein summoning order has been issued. It is next submitted that no offence against present applicant is disclosed and present prosecution has been instituted with a malafide intention for the purposes of harassment. Lastly, it is submitted that the material contradiction in the statements of the injured and the version of the FIR makes the veracity of incident and genesis of the alleged crime doubtful, therefore, chagesheet, summoning order and the entire criminal proceeding initiated on the basis thereof is liable to be quashed. 6. Per contra, learned counsel for the opposite party No. 2 has opposed submission advanced by learned counsel for the the present applicant and contended that complicity of the present applicant, prima facie, in the commission of alleged crime cannot be ruled out. At this stage, in exercise of inherent jurisdiction under Section 482 CrPC, this Court cannot go into the merits of the case for the purpose of mini trial. It is further contended that loading pistol and opening fire towards one of the victim namely Kamal Kishore with an intention to inflict fatal injury is, prima facie, sufficient to try the present applicant under Section 307 IPC. It is further contended that even though there is no fire arm injury on the body of the victims, however, the other inflicted injuries, as per injury report, are sufficient to make out a case as mentioned in the chargesheet for which the present applicant has been summoned. In support of his case, learned counsel for the opposite party No. 2 has cited the case of State of Madhya Pradesh Vs. Harjeet Singh and others reported in AIR 2019 SC 1120 as well as the case of Central Bureau of Investigation Vs. Aryan Singh etc reported in 2023 LiveLaw (SC) 292. Lastly, it is submitted that no legal ground is made out to entertain the instant applicant warranting indulgence of this Court under Section 482 CrPC to quash the entire criminal proceeding. As such, the instant application is liable to be dismissed being misconceived and devoid of merits. 7. Having considered the rival submissions advanced by the learned counsel for the parties and the perusal of the record, prima facie, it is manifested that scuffle had taken place between the parties and cross-complaint case has been filed on behalf of the present applicant. The medico-legal report clearly indicates that injuries are sustained to the victims (brothers of the opposite party No. 2). The submission as raised by the learned counsel for the applicant that no case is made out under Section 307 IPC in the light of the medico-legal report and the statement made by the doctor has got no force and pale into insignificance considering the medico-legal report wherein injury has been shown to be inflicted upon both the victims which might not be the fire arm injury. The arrest of accused from the spot with a pistol is also one of the significant event for the purposes of deciding the offence under Section 307 IPC, wherein intention or knowledge of the accused i.e. his act would cause death to the other side is a paramount consideration to hold the accused guilty, therefore, absence of fire arm injury on the body of the victim is not suffice to prove the innocence of accused. The case of State of Madhya Pradesh (supra) as cited by the learned counsel for the respondent No. 2 is relevant in this matter. In paragraphs No. 5.6 of the aforesaid judgment, Hon'ble Supreme Court has expounded that grievous hurt as required under Section 302 IPC is not required to prove under Section 307 IPC. The relevant paragraphs No. 5.6 of the aforesaid judgment is quoted hereinbelow: "5.6. Section 307 uses the term "hurt" which has been explained in Section 319, Indian Penal Code; and not "grievous hurt" within the Code. 320 meaning Indian Penal Section of