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Judgment
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 28-6-1996 passed by Vth A.S.J.,
Bhopal in S.T. No.491 of 1994, by which the appellant has been convicted under Section 307 of I.P.C. and has been sentenced to undergo the
rigorous imprisonment of 5 years and a fine of Rs.500/- with default imprisonment.
The necessary facts for the disposal of the present appeal in short are that on 17-6-1994, at about 10:30 P.M., the appellant gave a knife blow
to the injured Sunil Shrivastava and thereby caused an injury, which was dangerous to life. The admitted facts of the case are that the appellant as
well as the injured Sunil Shrivastava and Sanjay Saini, Manokant Shrivastava and Gaya Prasad were invited in the reception of marriage of one
Pramod Shrivastava. The daughter of Gaya Prasad asked for water. The injured Sunil Shrivastava requested the appellant to bring water, which
was refused by the appellant. On this issue, there was a hot talk between the parties and all of a sudden, the appellant took out a knife and gave a
knife blow in the abdomen of the injured Sunil Shrivastava. Gaya Prasad tried to snatch the knife from the appellant, as a result of which, he too
sustained injury. Manokant and Sanjay took the injured to the hospital in an auto and the police was informed. The Sub-Inspector J.P. Khare
reached Hamidia Hospital and recorded Dehati Nalishi. The injured was got medically examined. His bloodstained clothes were seized. The spot
map was prepared. The appellant was arrested and a knife was seized from his possession. After completing the investigation, the police filed the
charge sheet for offence under Section 307 of I.P.C. and under Section 27 of Arms Act. The Trial Court by order dated 30-3-1995 framed
charges under Sections 307 and 324 of I.P.C. The appellant abjured his guilt and pleaded not guilty.
The prosecution in order to prove its case, examined Sunil Shrivastava (P.W.1), Ku. Mamta Shrivastava (P.W.2), Sanjay Sen (P.W.3), Anil
Kumar Shrivastava (P.W.4), Manokant Shrivastava (P.W.5), Suresh Singh (P.W.6), Jagdish Prasad Khare (P.W.7), Dr. Anup Dave (P.W.8),
S.K. Shukla (P.W.9), Dr. Rajkumar Patidar (P.W.10) and Gayaprasad (P.W.11). The appellant did not examine any witness in his defence.
The Trial Court after recording evidence and hearing both the parties, convicted the appellant for offence under Section 307 of I.P.C. and
sentenced him to undergo the rigorous imprisonment of 5 years and a fine of Rs.500/- with default imprisonment.
Challenging the correctness and proprietary of the judgment and sentence passed by the Court below, it is submitted by the Counsel for the
appellant that the injured had sustained the injury because of his fall on the broken piece of glass and none of independent witnesses have been
examined and it is not established that the knife seized from the possession of the appellant was used in commission of offence, therefore, the
incident alleged against the appellant is doubtful and thus, he is entitled to be acquitted. It is further submitted that since the incident is alleged to
have taken place without any premeditation and in a heat of passion, therefore, the appellant cannot be said to be guilty of committing offence
under Section 307 of I.P.C.
Per contra, it is submitted by the Counsel for the State that the injured Sunil Shrivastava (P.W.1), Ku. Mamta Shrivastava (P.W.2), Sanjay Sen
(P.W.3) and Manokant Shrivastava (P.W.5) have specifically supported the prosecution story and thus, on a trivial issue, the appellant took out a
knife, which he was already carrying with him, and gave a knife blow in the abdominal region of the injured Sunil Shrivastava. Thus, it is clear that
the appellant is guilty of committing offence under Section 307 of I.P.C. Heard the learned Counsel for the parties.
The first question for determination is that whether the injured Sunil Shrivastava and injured Gaya Prasad had sustained any injury or not?
Dr. Anup Dave (P.W.8) had medically examined the injured Sunil Shrivastava (P.W.1) and had found the following injury : Stab wound on left
side of abdomen.The M.L.C. report of the injured Sunil Shrivastava (P.W.1) is Ex. P.8.
The following injury was found on the body of Gaya Prasad : Linear abrasion on right palm vertical aspect linear 1 cm. The M.L.C. report is
Ex.P.9
Thus, it is clear that a stab wound was found in the abdomen of the injured Sunil Shrivastava, whereas a linear abrasion was found on the right
palm of Gaya Prasad.
Dr. Anup Dave (P.W.8) was cross-examined and only one question was asked in the cross-examination, in reply of which it was clarified by
this witness that the condition of the injured Sunil Shrivastava was serious, however, he was conscious.
Dr. Raj Kumar Patidar (P.W.10) had also examined the injured Sunil Shrivastava and had found the following injury : Stab wound left side of
abdomen, left linear region 4x3 cm omentum protruding from the wound. The medical report is Ex. P.13. This witness was cross-examined and it
was opined by this witness that the injury could have been caused by fall also.
The next question for determination is that whether the appellant is the author of the injury sustained by Sunil Shrivastava or not?
Sunil Shrivastava (P.W.1), Ku. Mamta Shrivastava (P.W.2), Sanjay Sen (P.W.3) and Manokant Shrivastava (P.W.5) have supported the
prosecution case, whereas Gaya Prasad (P.W.11) did not support the prosecution case and was declared hostile.
Sunil Shrivastava (P.W.1) has stated that he had gone along with Sanjay Saini, sister Smt. Mamta Shrivastava, Manokant Shrivastava and
Gaya Prasad to attend the marriage ceremony of Pramod Shrivastava. His sister Mamta and sister-in-law Smt. Urmila Shrivastava were having
their meals. The daughter of Gaya Prasad demanded water, therefore, he requested the appellant, who was standing nearby, to bring water for the
girl. The appellant refused to bring water and started abusing him and grappled with the witness. The appellant all of a sudden took out a knife and
gave a knife blow in the abdomen of this witness. When he tried to repeat the assault, Gayaprasad caught hold of his hand and also sustained injury
in his hand because of the knife. Thereafter, the appellant ran away. He was immediately shifted to Hamidia Hospital by Manokant Shrivastava and
Sanjay Saini where he was operated. The police came to the Hospital where the incident was narrated by this witness and a Dehati Nalishi Ex.P.1
was recorded, which bears his signature at A to A. His cloths were seized. His statement was recorded by the police in the hospital itself. This
witness was cross-examined in short. In cross examination, this witness had admitted that he had no enmity with the appellant and the incident took
place on the question of fetching water. He denied that he was under the influence of liquor. About 20 more persons were present on the spot. He
denied the suggestion that about 2 years back, he had some dispute with the appellant and also denied the suggestion that he has falsely implicated
the appellant. Ku. Mamta Shrivastava (P.W.2), Sanjay Sen (P.W.3) and Manokant Shrivastava (P.W.5) have supported the prosecution case and
have narrated the entire incident.
It is submitted by the Counsel for the appellant that since Gaya Prasad (P.W.11) had stated that the injured Sunil Shrivastava (P.W.1) had
fallen on a piece of a broken glass therefore, he had sustained the injury, therefore, it is a clear case of false implication. So far as the evidence of
Gaya Prasad (P.W.11) is concerned, it is clear that he did not support the prosecution case and was declared hostile and was cross examined by
the prosecution. The evidence of Sunil Shrivastava (P.W.1), Ku. Mamta Shrivastava (P.W.2), Sanjay Sen (P.W.3) and Manokant Shrivastava
(P.W.5) cannot be discarded merely because of the fact that the eyewitness has not supported the prosecution story.
It is next contended by the Counsel for the appellant that since none of the independent witnesses was examined, therefore, the witnesses, who
are either related to the injured Sunil Shrivastava (P.W.1) or are his close associates, should not be relied upon. The submission made by the
Counsel for the appellant cannot be accepted and, hence, liable to be rejected.
It is a matter of experience that nowadays the independent witnesses generally withdraw themselves, as they are not inclined to either depose
in favour of the victim or against the victim. The Supreme Court in the case of Takhatji Hiraji Vs. Thakore Kubersing Chamansingh reported in
(2001) 6 SCC 145 has held as under :
So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent
witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not
convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good
by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of
such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been
examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of
other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be
material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and
circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet
was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses
already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the
factum of non-examination of other witnesses.......
The Supreme Court in the case of Vijendra Singh Vs. State of U.P. Reported in (2017) 11 SCC 129 has held as under :
In Dahari Vs. State of U.P. [2012)10 SCC 256], while discussing about the nonexamination of material witness, the Court expressed the view
that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the
prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be
drawn against the prosecution. Similar view has been expressed in Manjit Singh [(2013) 12 SCC 746], and Joginder Singh Vs. State of Haryana
[(2014) 11 SCC 335].
The Supreme Court in the case of State of H.P. Vs. Gian Chand reported in (2001) 5 SCC 71 has held as under :
14............Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record
howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the
prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for
being examined in the court and were yet withheld by the prosecution. The court has first to assess the trustworthiness of the evidence adduced
and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on
though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence
suffers from some infirmity or cannot be accepted in the absence of other evidence, which though available has been withheld from the court, then
the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well settled that
conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances
such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.
In the case of Yogesh Singh Vs. Mahabeer Singh and others reported in (2017) 11 SCC 195, the Supreme Court has held as under :
Similarly, in Raghubir Singh Vs. State of U.P. [(1972) 3 SCC 79], it was held that the prosecution is not bound to produce all the witnesses
said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be
produced without unnecessary and redundant mulitplication of witnesses. In this connection, general reluntance of an average villager to appear as
a witness and get himself involved in cases of rival village factions when tempers on both sides are running high has to be borne in mind.
Further, in Appabhai Vs. State of Gujarat [1988 Supp SCC 241], this Court has observed :
11........ Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdraw both
from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between
two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there
everywhere, whether in village life, towns or cities........
Thus, merely because the independent witnesses did not choose to come forward and depose about the incident because of their own fears,
then it cannot be said that the injured and other witnesses should be disbelieved. Hence, the submission made by the Counsel for the appellant is
rejected.
It is next contended by the Counsel for the appellant that Smt. Mamta Shrivastava (P.W.2) is the sister of the injured Sunil Shrivastava
(P.W.1), whereas Sanjay Sen (P.W.3) and Manokant Shrivastava (P.W.5) are his friends, therefore, they are the interested witnesses and thus,
their testimony may not be accepted.
Thus, the important question would be that whether these ""related witnesses"" are merely ""related witnesses"" or they are ""interested witnesses
also. It is also well settled principle of law that the evidence of a witness cannot be rejected or discarded merely because he is ""related"" or
interested witness"". However, their testimony should be scrutinized very cautiously.
The Supreme Court in the case of Raju v. State of T.N., reported in (2012) 12 SCC 701, has held as under :-
''''21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki [(1981)
2 SCC 752]. It was held that: (SCC p. 754, para 7)
... True, it is, she is the wife of the deceased; but she cannot be called an ''interested'' witness. She is related to the deceased. ''Related'' is not
equivalent to ''interested''. A witness may be called ''interested'' only when he or she derives some benefit from the result of a litigation; in the
decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the
circumstances of a case cannot be said to be ''interested''.
In light of the Constitution Bench decision in State of Bihar v. Basawan Singh [AIR 1958 SC 500], the view that a ""natural witness"" or ""the
only possible eyewitness"" cannot be an interested witness may not be, with respect, correct. In Basawan Singh [AIR 1958 SC 500], a trap
witness (who would be a natural eyewitness) was considered an interested witness since he was ""concerned in the success of the trap"". The
Constitution Bench held: (AIR p. 506, para 15)
... The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their
evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are
concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of
diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before
convicting the accused person.
The Supreme Court in the case of Jalpat Rai v. State of Haryana, reported in (2011) 14 SCC 208 has held as under:-
''''42. There cannot be a rule of universal application that if the eyewitnesses to the incident are interested in the prosecution case and/or are
disposed inimically towards the accused persons, there should be corroboration of their evidence. The evidence of eyewitnesses, irrespective of
their interestedness, kinship, standing or enmity with the accused, if found credible and of such a calibre as to be regarded as wholly reliable could
be sufficient and enough to bring home the guilt of the accused. But it is a reality of life, albeit unfortunate and sad, that human failing tends to
exaggerate, over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown
where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the
crime.
In the circumstances of the present case, to obviate any chance of false implication due to enmity of the complainant party with the accused
party and the interestedness of PW 1, PW 4 and PW 8 in the prosecution case, it is prudent to look for corroboration of their evidence by
medical/ballistic evidence and seek adequate assurance from the collateral and surrounding circumstances before acting on their testimony. The
lack of corroboration from medical and ballistic evidence and the circumstances brought out on record may ultimately persuade that in fact their
evidence cannot be safely acted upon.
Besides PW 1, PW 4 and PW 8, who are closely related to the three deceased, no other independent witness has been examined although the
incident occurred in a busy market area. The place of occurrence was visited by PW 20 in the same night after the incident. He found three
twowheelers one bearing No. HR 31 A 5071, the second bearing No. RJ 13 M 7744 and the third without number lying there. One Maruti car
bearing No. HR 20 D 8840 with broken glass was also parked there. The owners of these vehicles have not been examined. At the place of
occurrence, one HMT Quartz wristwatch with black strap, one belcha and four pairs of chappals were also found. There is no explanation at all by
the prosecution with regard to these articles. Nothing has come on record whether four pairs of chappals belonged to the accused party or the
complainant party or some other persons. Whether the HMT Quartz wristwatch that was found at the site was worn by one of the accused or one
of the members of the complainant party or somebody else is not known. Then, the mystery remains about the belcha that was found at the site.
These circumstances instead of lending any corroboration to the evidence of those three key witnesses, rather suggest that they have not come out
with the true and complete disclosure of the incident.''''
The Supreme Court in the case of Rohtash Kumar v. State of Haryana, reported in (2013) 14 SCC 434, has held as under :-
''''35. The term witness, means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral
statement, or a statement in writing, made or given in the court, or otherwise. In Pradeep Narayan Madgaonkar v. State of Maharashtra [(1995) 4
SCC 255] this Court examined the issue of the requirement of the examination of an independent witness, and whether the evidence of a police
witness requires corroboration. The Court therein held that the same must be subject to strict scrutiny. However, the evidence of police officials
cannot be discarded merely on the ground that they belonged to the police force, and are either interested in the investigating or the prosecuting
agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought. (See also Paras Ram v. State of
Haryana [(1992) 4 SCC 662], Balbir Singh v. State [(1996) 11 SCC 139], Kalpnath Rai v. State [(1997) 8 SCC 732], M. Prabhulal v.
Directorate of Revenue Intelligence [(2003) 8 SCC 449 ] and Ravindran v. Supt. of Customs [(2007) 6 SCC 410].)
Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that
the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition
to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.''''
The Supreme Court in the case of State of Rajasthan Vs. Chandgi Ram reported in (2014) 14 SCC 596 has held as under :-
It was contended that all the witnesses were family members of the deceased and being interested witnesses, their version cannot
be relied upon in toto. When we consider the same, we fail to understand as to why the evidence of the witnesses should be
discarded solely on the ground that the said witnesses are related to the deceased. It is well settled that the credibility of a witness and
his/her version should be tested based on his/her testimony vis-?-vis the occurrence with reference to which the testimonies are
deposed before the court. As the evidence is tendered invariably before the court, the court will be in the position to assess the
truthfulness or otherwise of the witness while deposing about the evidence and the persons on whom any such evidence is tendered.
As every witness is bound to face the cross-examination by the defence side, the falsity, if any, deposed by the witness can be easily
exposed in that process. The trial court will be able to assess the quality of witnesses irrespective of the fact whether the witness is
related or not. Pithily stated, if the version of the witness is credible, reliable, trustworthy, admissible and the veracity of the statement
does not give scope to any doubt, there is no reason to reject the testimony of the said witness, simply because the witness is related
to the deceased or any of the parties. In this context, reference can be made to the decision of this Court in Mano Dutt v. State of
U.P. [(2012) 4 SCC 79] Para 24 is relevant which reads as under: (SCC p. 88)
Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as
witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent
witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without
much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not,
in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those
alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides,
when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy,
admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would
hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an
interested witness or a person known to the affected party."" (emphasis added)
Reliance can also be placed upon Dinesh Kumar v. State of Rajasthan [(2008)8 SCC 270], wherein in para 12, the law has been
succinctly laid down as under: (SCC p. 273)
In law, testimony of an injured witness is given importance. When the eyewitnesses are stated to be interested and inimically
disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and
rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to
analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful
analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason
to discard the same. Conviction can be made on the basis of such evidence.
(emphasis supplied)
The Supreme Court in the case of Nagappan Vs. State reported in (2013) 15 SCC 252 has held as under :-
''''10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the
deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and
have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the
High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without
considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of ""interested
witnesses"" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were
interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. (Vide Dalip Singh v. State of Punjab [ AIR
1953 SC 364], Guli Chand v. State of Rajasthan [(1974) 3 SCC 698], Vadivelu Thevar v. State of Madras[AIR 1957 SC 614], Masalti v. State
of U.P. [AIR 1965 SC 202], State of Punjab v. Jagir Singh [(1974) 3 SCC 277], Lehna v. State of Haryana [(2002) 3 SCC 76], Sucha Singh v.
State of Punjab[(2003) 7 SCC 643], Israr v. State of U.P. [(2005) 9 SCC 616], S. Sudershan Reddy v. State of A.P. [(2006) 10 SCC 163],
Abdul Rashid Abdul Rahiman Patel v. State of Maharashtra [2007) 9 SCC 1], Waman v. State of Maharashtra [(2011) 7 SCC 295], State of
Haryana v. Shakuntla [(2012) 5 SCC 171], Raju v. State of T.N. [(2012) 12 SCC 701] and Subal Ghorai v. State of W.B. [(2013) 4 SCC
607])''''
Thus, it is clear that where the evidence of the witnesses is consistent and is in conformity with the medical evidence, then their evidence cannot
be discarded. In the present case, the Dehati Nalishi, Ex. P.1, was lodged by the complainant Sunil Shrivastava (P.W.1) in which specific
allegations have been made. The ocular evidence is supported by the medical evidence. Thus, this Court is of the considered opinion that the
evidence of Sunil Shrivastava (P.W.1), Smt. Mamta Shrivastava (P.W.2), Sanjay Sen (P.W.3) and Manokant Shrivastava (P.W.5) are reliable
and, hence, it is held that the prosecution has succeeded in establishing the fact that on the issue of bringing water for the daughter of Gaya Prasad
(P.W.11), the appellant had given a knife blow in the abdomen of the injured Sunil Shrivastava (P.W.1). The next question for determination is that
what offence has been committed by the appellant.
It is submitted by the Counsel for the appellant that it is prosecution story that the injured Sunil Shrivastava (P.W.1) had asked the appellant to
bring water for the daughter of Gaya Prasad and on this issue, there was some hot talk between the appellant and injured and in a heat of passion,
the appellant had given a knife blow in the abdomen of the injured, therefore, the act of the appellant would not be an offence under Section 307 of
I.P.C. and at the most, it would be an offence under Section 308 of I.P.C.
Considered the submissions made by the Counsel for the appellant. In the present case, the appellant and the injured had gone to attend a
marriage function. As the appellant had gone to attend a marriage ceremony, then he was not expected to carry a knife with him. It is not the case
of the prosecution that the appellant in a heat of passion, picked up a knife lying on the spot and assaulted the injured. The appellant was already
carrying a knife with him for no reason to do so. Thus, it shows the tendency of the appellant to use the knife without any provocation. In the
present case, although the injured had requested him to bring water for a girl, but it appears that the appellant got furious and during scuffle gave a
knife blow. It is the case of the prosecution that when the appellant tried to repeat the blow, his hand was caught hold by Gaya Prasad (P.W.11).
Although Gaya Prasad (P.W.11) has not supported the prosecution story, but it is clear that the appellant had caused hurt to the injured Sunil
Shrivastava. Section 307 of I.P.C. reads as under :
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
Thus, it is clear that the word ""hurt"" has been used in Section 307 of I.P.C. The Supreme Court in the case of State of M.P. Vs. Mohan
reported in (2013) 14 SCC 116 has held as under :
The High Court, in our view, while reducing the sentence, has not properly appreciated the scope of Section 307 IPC under which the
respondents were found guilty. The relevant portion of Section 307 reads as follows:
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.
The High Court was of the opinion that the injuries have not been caused on the vital parts of the body. In order to attract Section 307, the
injury need not be on the vital parts of the body. In order to attract Section 307, causing of hurt is sufficient. If anybody does any act with intention
or knowledge that by his act he might cause death and hurt is caused, that is sufficient to attract life imprisonment. Section 307 uses the word ""hurt
which has been explained in Section 319 IPC and not ""grievous hurt"" within the meaning of Section 320 IPC. Therefore, in order to attract Section
307, the injury need not be on the vital part of the body. A gunshot, as in the present case, may miss the vital part of the body, may result in a
lacerated wound, that itself is sufficient to attract Section 307.
Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the appellant is guilty of making
an attempt to commit murder of the injured Sunil Shrivastava. It is next contended by the Counsel for the appellant that the appellant has already
undergone the actual jail sentence of 122 days and, therefore, in the light of the facts and circumstances of the case, the period already undergone
by the appellant would serve the ends of justice.
The submission made by the Counsel for the appellant cannot be accepted, because where a hurt is caused, then the maximum sentence is life
imprisonment. However, considering the fact that the incident took place all of a sudden and that too because the complainant had instructed/asked
the appellant to bring water for the daughter of Gaya Prasad (P.W.11), the sentence of rigorous imprisonment of 5 years appears to be on a higher
side. Accordingly, the jail sentence of rigorous imprisonment of 5 years awarded by the Trial Court is modified and it is directed that the appellant
shall undergo the rigorous imprisonment of 3 years and a fine of Rs.500/- with default sentence of rigorous imprisonment of 6 months. With
aforesaid modification, the judgment and sentence dated 28-6-1996 passed by Vth A.S.J., Bhopal in Sessions Trial No. 491 of 1994 is hereby
affirmed.
The appellant is on bail. His bail bonds are hereby cancelled. The appellant is directed to immediately surrender before the Trial Court for
undergoing the remaining jail sentence. The appeal is partly allowed to the extent mentioned above.