AI Structured Summary
Not yet generated for this judgment
Judgment
Sanjay K. Agrawal, J
The appellant herein questions the impugned judgment and order dated 29-6-2022 passed by the Additional Sessions Judge, Kondagaon in Sessions Trial No.23/2020, wherein he has been convicted for offence under Section 307 of the IPC (twice) for causing murderous attack on his brother Sukhnath Korram (PW-2) and on his niece Kum. Kamla Korram (PW-3), and sentenced to undergo rigorous imprisonment for ten years & pay fine of Rs. 1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month, twice and also directed that both the sentences will run consecutively one after the other.
Case of the prosecution, in short, is that the appellant herein firstly assaulted Sukhnath Korram (PW-2) by axe which was noticed by Kum. Kamla Korram (PW-3) – daughter of Sukhnath Korram (PW-2), who immediately came to the field of Sukhnath Korram (PW-2) where Lakheshwar Nag (PW-1) was already performing agricultural operation on 20-6-2020 at 5:30 p.m. and informed that the appellant has assaulted her father by axe and is coming towards the field and meanwhile, the appellant armed with axe and bow & arrow reached to the field of Sukhnath Korram and caused arrow injury to Kum. Kamla Korram (PW-3) on right side of stomach by which she suffered grievous injury and fell down which was noticed by her mother Supai Korram (PW-5) and her mother’s sister Supati Korram (PW-4) on which they intervened and mother Supai Korram (PW-5) has picked-out the arrow from the stomach of her daughter Kum. Kamla Korram (PW-3), but immediately thereafter, the appellant absconded from the spot and thereafter, Sukhnath Korram (PW-2) & Kum. Kamla Korram (PW-3), both, were escorted to hospital at Mardapal through a private vehicle for treatment from where they were referred to Dimrapal Hospital, Jagdalpur for further treatment where they were shifted through 108 Ambulance and got admitted therein. Thereafter, FIR Ex.P-1 for offence under Section 307 of the IPC was registered against the appellant.
On 20-6-2020 at 7:34 p.m., injured Sukhnath Korram (PW-2) was medically examined by Dr. Basant Kumar Tode (PW-10) vide Ex.P-12 who found four injuries on the body of Sukhnath Korram and opined that the injuries were caused by hard, sharp & heavy object and duration was three hours. He further suggested CT scan and X-ray and stated that opinion will be given after report of CT scan and X-ray. Thereafter, on the same day at 7:46 p.m., injured Kum. Kamla Korram (PW-3) was also medically examined by Dr. Basant Kumar Tode (PW-10) vide Ex.P-13 who found one stab wound in the size of 2 cm. x 0.5 cm. x 1 cm. on right side of stomach caused by hard, sharp and pointed object and duration was three hours. She was also further advised for ultrasonography and stated that opinion is subject to result of ultrasonography.
On 22-6-2020, the appellant was taken into custody and his memorandum statement under Section 27 of the Evidence Act was recorded vide Ex.P-6 pursuant to which one axe, one bow and his bloodstained shirt were seized vide Ex.P-8. On 20-8-2020, vide query memos Exs.P-16 & P-18, doctor’s opinion was invited showing the weapons of offence asking the nature of injuries as suffered by Sukhnath Korram (PW-2) & Kum. Kamla Korram (PW-3) which was accorded by Dr. Basant Kumar Tode (PW-10) vide his query reports Exs.P-17 & P-19 in which he opined that considering the injuries on Sukhnath Korram (PW-2) & Kum. Kamla Korram (PW-3), death was possible and further opined that injuries on Sukhnath Korram (PW-2) were possible by the weapon of offence axe seized from the possession of the appellant and injury on Kum. Kamla Korram (PW-3) was also possible with the seized arrow. All articles seized were sent for chemical examination to the FSL and the FSL report Ex.P-27 was brought on record in which human blood was found on axe and towel, whereas blood was found on arrow, soil and shirt of the appellant. Statements of the witnesses were recorded under Section 161 of the CrPC.
After due investigation, the appellant was charge-sheeted before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the Additional Sessions Judge, Kondagaon received the case on transfer for trial and for hearing and disposal in accordance with law. Charges were framed against the appellant on 4-12-2020 under Section 307 of the IPC (twice) for injuring Sukhnath Korram & Kum. Kamla Korram.
The prosecution in order to bring home the offence, examined as many as 14 witnesses PW-1 to PW-14 in support of its case and exhibited 27 documents Exs.P-1 to P-27. Defence has not examined any witness in support of its case, however, exhibited two documents Exs.D-1 & D-2 – statements of Kum. Kamla Korram & Sukhnath Markam recorded under Section 161 of the CrPC, respectively. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication.
The trial Court after completion of trial and upon appreciation of oral and documentary evidence on record, by its impugned judgment, proceeded to convict the appellant for offence under Section 307 of the IPC (twice) and further proceeded to award 10 years’ RI & fine of Rs. 1,000/- with default stipulation, on both counts and the sentences were directed to run consecutively one after the other as mentioned in the opening paragraph of this judgment which is sought to be challenged in this criminal appeal preferred under Section 374(2) of the CrPC by the appellant.
Mr. Amit Singh Chauhan, learned counsel appearing for the appellant, would submit as under: -
Considering the nature of injuries which were allegedly caused by arrow & axe, no offence under Section 307 of the IPC would be made out, at the best, offence under Section 324 of the IPC would be made out against the appellant.
The offence in question is said to have been committed in one transaction one after the other and injuries have been caused to father and daughter – Sukhnath Korram (PW-2) & Kum. Kamla Korram (PW-3), respectively, therefore, in view of the provisions contained in Section 31 CrPC read with Section 71 of the IPC, direction of the trial Court to run the sentences consecutively is contrary to the well settled legal position in this behalf and the same is liable to be set aside.
Mr. Ashish Tiwari and Mr. Avinash Singh, learned State Counsel, would support the impugned judgment and submit that the trial Court has rightly convicted the appellant for offence under Section 307 of the IPC (twice) for attempting to cause murder of his brother Sukhnath Korram and his niece Kum. Kamla Korram. They would further submit that there is sufficient ocular and medical evidence against the appellant and the learned trial Court has rightly exercised the discretionary power under Section 31 of the CrPC and further rightly directed that sentence of RI for ten years will run consecutively by considering the criminal act of the appellant to cause injuries sufficient to cause the death of Sukhnath Korram (PW-2) & Kum. Kamla Korram (PW-3) at separate transaction. They would rely upon the decision of the Supreme Court in the matter of O.M. Cherian alias Thankachan v. State of Kerala and others (2015) 2 SCC 501 (paragraph 11) to demonstrate that Section 31 of the CrPC gives ample discretion to the Court to direct that punishment can run concurrently or consecutively. Therefore, the impugned judgment of conviction and order of sentence is well-merited and the appeal deserves to be dismissed.
We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
On medical examination of Sukhnath Korram (PW-2) by Dr. Basant Kumar Tode (PW-10) vide Ex.P-12, following four injuries were found on his person: -
(i) Incised wound above left eyebrow 4 cm. x 1 cm. x 0.5 cm.
(ii) Incised wound on right chest 8 cm. x 3 cm. x 4 cm.
(iii) Incised wound on left scapula region 7 cm. x 3 cm. x 4 cm.
(iv) Incised wound on right scapula region 2 cm. X 1 cm. x 1 cm.
Similarly, Dr. Basant Kumar Tode (PW-10) has also examined Kum. Kamla Korram (PW-3) vide Ex.P-13 and found one stab injury in the size of 2 cm. X 0.5 cm. X 1 cm. on right side of abdomen caused by hard, sharp and pointed object. In the query reports Exs.P-17 & P-19 for Sukhnath Korram (PW-2) & Kum. Kamla Korram (PW-3), respectively, Dr. Basant Kumar Tode (PW-10), on his opinion being invited on the weapons of offence, has clearly opined that considering the injuries suffered by both the injured persons, death was possible and further opined that injuries on Sukhnath Korram (PW-2) are possible by the weapon of offence – axe seized from the appellant and injury on Kum. Kamla Korram (PW-3) is possible with the seized arrow. In his statement before the Court, Dr. Basant Kumar Tode (PW-10), who has medically examined both the injured witnesses vide Exs.P-12 & P-13 and gave query reports Exs.P-17 & P-19, has supported the said reports. Furthermore, in the FSL report Ex.P-27, human blood was found on axe & towel, whereas blood was found on arrow, soil and shirt of the appellant.
Now, the question would be, whether, in this view of the matter, the trial Court is justified in convicting the appellant for offence under Section 307 of the IPC?
At this stage, it would be appropriate to notice Section 307 of the IPC, which states 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.”
The essential ingredients required to be proved in the case of an offence under Section 307 of the IPC 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 excused for incurring the risk of causing such death or injury.
The Supreme Court in the matter of Hari Singh v. Sukhbir Singh and others (1988) 4 SCC 551 has held that under Section 307 of the IPC 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 provision. The intention 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”. Under Section 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. It has been further held that the nature of the weapon used, manner in which it 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.
Similarly, in the matter of State of Maharashtra v. Kashirao and others (2003) 10 SCC 434, their Lordships of the Supreme Court have held that for the application of Section 307 of the IPC, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 of the IPC. It has been observed by their Lordships in paragraph 21 of the report as under: -
“21. In offence under Section 307 all the ingredients of the offence of murder are present except the death of the victim. For the application of Section 307, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained, alteration of conviction notwithstanding no modification of sentence need be made. ...”
The Supreme Court in the matter of Parsuram Pandey and others v. State of Bihar (2004) 13 SCC 189 has also held that to constitute an offence under Section 307 of the IPC, two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. It has been held in paragraph 15 of the report as under: -
“15. To constitute an offence under Section 307 two ingredients of the offence must be present:
(a) an intention of or knowledge relating to commission of murder; and
(b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence “of attempt to murder”. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. ...”
Similarly, the Supreme Court in the matter of Jage Ram and others v. State of Haryana (2015) 11 SCC 366 has laid down the ingredients of the offence under Section 307 of the IPC and held as under: -
“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 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 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.
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, the courts below recorded concurrent findings convicting the second appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable.”
The Supreme Court in the matter of Jai Narain Mishra and others v. State of Bihar 1971(3) SCC 762 where four to five persons attacked a man with deadly weapons but causing only three simple and one grievous hurt to the injured by farsa, their Lordships held that offence under 326 of the IPC would be made out and held as under in paragraph 11 of the report: -
“11. Taking the case of appellant Suraj Mishra, we find that he has been convicted under Section 307 I.P.C. and sentenced to 5 years rigorous imprisonment. According to the evidence Suraj was responsible for the chest injury which is described by Dr. Mishra P.W. 6 as a penetrating wound 1½" x ½” x chest wall deep (wound not probed) on the side of the right side of the chest. Margins were clean cut. Suraj, according to the evidence, had thrust a bhala into the chest when Shyamdutt had fallen as a result of the blow given by Mandeo with the farsa on his head. According to the Doctor the wound in the chest was of a grievous nature as the patient developed surgical emphysema on the right side of the chest. There was profuse bleeding and, according to the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the Medical Officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In the present case, however, three injuries are of a simple nature though deadly weapons were used and the fourth injury caused by Suraj, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion, the offence is not one under Section 307, I.P.C., but Section 326, I.P.C. His conviction, therefore, under Section 307, I.P.C. is set aside and we convict him under Section 326, I.P.C. His sentence of 5 years rigorous imprisonment will have to be reduced accordingly to 3 years rigorous imprisonment.”
Reverting to the facts of the present case in light of the aforesaid principles of law laid down by the Supreme Court in respect of offence under Section 307 of the IPC, it is quite vivid that in the instant case, the appellant has assaulted Sukhnath Korram by axe on his back, head & chest and also assaulted Kum. Kamla Korram by arrow on her stomach by which they suffered grievous injuries which has been proved by Dr. Basant Kumar Tode (PW-10) who has also proved his medical reports qua both the victims. Considering the nature of injuries and considering the relationship between the appellant and injured Sukhnath Korram (PW-2) & Kum. Kamla Korram (PW-3) – brother & niece of the appellant, respectively, offence under Section 307 of the IPC would not be made out against the appellant. In Jai Narain Mishra (supra) wherein three injuries of simple nature with deadly weapons were caused and the fourth injury caused, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid, their Lordships of the Supreme Court have altered the conviction from Section 307 to Section 326 of the IPC, as such, conviction is altered under Section 326 of the IPC.
The next contention of learned counsel for the appellant is that the sentence awarded by the learned trial Court two times for offence under Section 307 of the IPC is equally bad and in teeth of the provision contained in Section 31(1) of the CrPC.
True it is that the trial Court has convicted the appellant for offence under Section 307 of the IPC two times and sentenced to undergo RI for ten years two times and directed the sentences to run consecutively. In order to consider the plea raised at the Bar, it would be appropriate to notice the charge framed against the appellant on 4-12-2020 which states as under: -
A careful perusal of the charge would show that on 20-6-2020 at 5:30 p.m., at Village Ranapal, Police Station Mardapal, the appellant assaulted Sukhnath Korram by axe and Kum. Kamla Korram by bow & arrow. As it appears, though charge has been framed for offence under Section 307 of the IPC two times, but the appellant is said to have committed the offence in one and same transaction.
The Supreme Court in the matter of Roshan Lal and others v. State of Punjab AIR 1965 SC 1413 has held that normally no court should award two separate punishments for same act constituting two offences under Section 201 of the IPC, by observing in paragraph 15 as under:-
“15. Mr. Sachthey next contended that the appellants having caused the evidence of the two offences under Ss. 330 and 348 to disappear, committed two separate offences under S. 201 and are punishable accordingly. Now, by the same Act, namely, burning of the dead body of Raja Ram, the appellant caused the evidence of two offences to disappear. Taking a strict view of the matter, it must be said that by the same act the appellants committed two offences under S. 201. The case is not covered either by S. 71 of the Indian Penal Code or by S. 26 of the General Clauses Act, and the punishment for the two offences cannot be limited under those sections. But, normally, no Court should award two separate punishments for the same act constituting two offences under S. 201. The appropriate sentence under S. 201 for causing the evidence of the offence under S. 330 to disappear should be passed, and no separate sentence need be passed under S. 201 for causing the evidence of the offence under S. 348 to disappear. The maximum sentence for the offence under S. 330 is imprisonment for seven years, and under the para 4 to S. 201, the appellants are liable to be sentenced to a maximum of one-fourth of seven years of imprisonment. The facts of the case call for the maximum sentence. Accordingly, the sentence passed on the appellants for the offence under S. 201 should be reduced to a sentence of one year and nine months. Mr. Girish Chandra attempted to argue that the entire conviction of Roshan Lal under S. 201 was illegal. But it is not open to him to argue this point, as the special leave is limited to the question of the legality of the sentence only. We are also not disposed to grant him leave to challenge the legality of the conviction at this stage.”
Since the offence under Section 307 of the IPC, now converted to Section 326 of the IPC, has been committed in one transaction, though it is committed one after the other, the appellant’s conviction and sentence, particularly, sentencing the appellant two times is bad in light of the decision of the Supreme Court in Roshan Lal (supra) and the appellant is awarded the sentence of RI for three years, one time only.
In that view of the matter, conviction of the appellant under Section 307 of the IPC (twice) is set aside, instead thereof he is convicted under Section 326 of the IPC and sentenced to undergo rigorous imprisonment for three years, however, the fine sentence imposed by the trial Court is enhanced to Rs. 5,000/-, which shall be paid to both the victims.
The criminal appeal is partly allowed.