Sohrab Ali and Others vs State of U.P.

Anurag Kumar, J.—This criminal appeal is preferred by Soharab All, Mohd. Nazeer and Musharraf Ali, u/s 374(2), Cr.P.C. aggrieved by the judgment and order dated 21.8.1996 passed by the Vth Additional Sessions Judge, Gonda in S.T. No. 159/90, State v. Mohd. Ali and others, convicting and sentencing the appellants Musarraf Ali and Sohrab Ali u/s 148, I.P.C. for a period of two years rigorous imprisonment and appellant Mohd. Nazeer u/s 147, I.P.C. for a period of one and half years rigorous imprisonment and convicting all the appellants under Sections 307/149, I.P.C. for a period of 7 years rigorous imprisonment. During the pendency of appeal appellants Sohrab and Musharraf Ali have died and by order dated 16.5.2008 Soharab''s Ali and order dated 7.12.2012 Musharraf All''s appeals are abated against them. Now this appeal is against Mohd. Nazeer only.

The prosecution case, in brief, is that in the intervening night of 4/5.8.1989 between 11 and 12 hours, complainant Mohd. Safiq''s father Ibrahim and his brother Mohd. Farooque were sleeping outside the house in front of door and complainant and ladles of house were sleeping inside. There was a lantern on the door. Musharraf Ali, Soharab Ali and Soharab''s son Nazeer and 2-3 more persons came with lathi, farsa and ballam and started beating, complainant''s father and brother, hearing the noise complainant came outside the house with torch and saw that Soharab with ballam, Musharraf Ali with farsa and rest with lathi were attacking his father and brother with intention to kill them.

Hearing the noise, many villagers reached there and accused persons ran away from the spot. F.I.R. was lodged at 11.15 a.m. on 5.8.1989 as Crime No. 48/1989, under Sections 147, 148, 307, 504 and 506, I.P.C. Injured persons were medically examined and after investigation, charge-sheet was submitted against accused persons, under Sections 147, 148, 307, 504 and 506, I.P.C. Case was committed to Sessions Court and IIIrd Additional Sessions Judge, Gonda framed charges against Mohd. Ali and Sohrab Ali u/s 148, I.P.C. and u/s 147 against Nazeer and under, Sections 307/149 against Mohd. Ali, Sohrab Ali and Nazeer.

Prosecution examined five witnesses P.W. 1 Mohd. Safiq, complainant P.W. 2 Ibrahim and P.W. 3 Mohd. Farooque injured witnesses, P.W. 4 Dr. G.K. Singh who examined the injuries of Ibrahim and Farooq, P.W. 5 Ramchandra Singh S.I., Investigating Officer of this case. Prosecution papers were proved by witnesses and written report was Ext. Ka-1, inspection report of torch and lantern was Ext. Ka-2, inquiry report of Ibrahim Ext. Ka-3, injury report of Farooque Ext. Ka-4, site plan Ext. Ka-5, charge-sheet Ext. Ka-6, F.I.R. Ka-7 copy of M.C. Ext. Ka-8. The trial court by impugned judgment after hearing the parties convicted Mohd. Ali and Mohd. Nazeer u/s 307/149, I.P.C. for seven years rigorous imprisonment and Mohd. Ali and Soharab Ali u/s 148, I.P.C. for two years rigorous imprisonment and Mohd. Nazeer u/s 147, I.P.C. for one and half years rigorous imprisonment.

Aggrieved by the said judgment, the present appeal was preferred on the ground that there is no injury of ballam and farsa. There is a delay in lodging the F.I.R. and no explanation of delay was given. Injuries are simple in nature and no case u/s 307, I.P.C. is made out utmost a case of u/s 323. I.P.C. is made out.

Heard learned counsel for the appellant Mohd. Nazeer at length and learned A.G.A.

Learned counsel for the appellant Mohd. Nazeer submitted that no case is made out against appellant u/s 307, I.P.C. because all the injuries are simple in nature and from the evidence on record there appears to be no intention to kill the injured persons at all so no case u/s 307, I.P.C. is made out. Against appellant-Nazeer, utmost the case u/s 323, I.P.C. is made out. There is delay in lodging the F.I.R. lathi was assigned to appellant Nazeer. Occurrence is of the year 1989 which is more than 23 years old. Appeal is liable to be allowed.

Learned A.G.A. has opposed the contention and submitted that prosecution fully proved his case and from the evidence on record a clear cut of case u/s 307, I.P.C. is made out against appellant.

Appeal has got no force and is liable to be rejected.

Giving the thoughtful consideration to the submission of the learned counsel for the appellants and learned A.G.A., first of all, it is to be seen that whether any offence u/s 307, I.P.C. is made out or not. For an offence u/s 307, I.P.C, it is necessary that there must be such intention and knowledge, if by that act, death was caused, he would be guilty of murder. For offence u/s 307, I.P.C. there must be intention and knowledge that from the act, death can be caused. In order that it amounts to an attempt to murder the act attempted must be such that if not prevented or intercepted. It would be sufficient to cause death of the victim. To sustain conviction u/s 307, I.P.C. the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in the wait armed with dangerous weapons or declarations made by him that the victim would be killed. The intention is not gatherable merely from the seriousness of resultant injury, it inferences from all circumstances and injuries on the body of the victim.

In case, evidence of witnesses shows that all the accused persons had assaulted injury with lathi and farsa, but serious injury was not caused then it shows the intention of assault. If intention of assault was to do away with the life of Injured they would not assaulted to cause a simple injury only.

In order that a person may be guilty of attempt to murder, the following two ingredients of the offence must be present: (1) an intention or knowledge of committing murder; (2) the doing of an act towards it. For the purpose of Section 307, I.P.C., what is material is the intention or knowledge, and not the consequence of the actual act done for the purpose of carrying out the intention. For the purpose of Section 307, I.P.C. what is material that is the intention or knowledge, not the consequence of the actual act done. To determine whether an act falls within the ambit of Section 307, on the wording of this section, three considerations appear to be essential (i) the nature of the act done, (ii) the intention or knowledge of the agent, and (iii) the circumstances under which the act is done.

In this case, there are only two injuries on the body of Ibrahim, i.e., Injury No. (1) lacerated wound of 5.5 c.m. x 1 c.m. x scalp deep on top of head and the Injury No. (2) Contusion of 5-c.m. x 4 c.m. on right side of chest at 6 c.m. below right the nipple.

And on the body of Farooque, there are 10 injuries, i.e. Injury No. (1) lacerated wound 3 c.m. x .5 c.m. x scalp deep on left side of forehead; injury No. (2) incised wound 2.5 c.m. x 1 c.m. x skin deep on left side of chest at 4 c.m. below left nipple at 7 O''clock position; injury No. (3) abrasion 1 c.m. x .2 c.m. on right upper arm; injury No. (4) lacerated wound 1/2 c.m. x .2 c.m. on top of right shoulder; injury No. (5) abrasion and traumatic swelling 16 c.m. x 2 c.m. on left forearm and hand; injury No. (6) contusion 11 c.m. x 5 c.m. on left side back in scapular region; injury No. (7) contusion 13 c.m. x 2 c.m. on left side back; injury No. (8) abrasion 8 c.m. x 0.1 c.m. on left side back; injury No. (9) contusion 18 c.m. x 1.5 c.m. on right side back; injury No. (10) abrasion 5 c.m. x 0.5 c.m. on right side face.

In the opinion of doctor P.W. 4, who has proved the injury report, all injuries of both injured persons were simple in nature. Definite opinion of doctor regarding the nature of injuries are that injuries are simple and the death is not possible from these injuries. Thus, it is clear from the evidence of doctor that injuries are simple in nature and in the ordinary course, death cannot be caused due to infection of such injuries. Where there is no specific opinion of the medical jurists to the effect that injuries in question were sufficient in the ordinary course of nature to cause death, offence of murderous assault was not made out.

Hon''ble Supreme Court in the case of Sarju Prasad Vs. State of Bihar, , has held as under:

Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence u/s 307, I.P.C. cannot possibly be brought home to the appellant. The state of the appellant''s mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack.

Now, I have to look into this aspect of the matter that whether there is any intention of accused persons to kill the injured Farooque and Ibrahim. All injuries on the body of Farooque and Ibrahim are not on vital part. There is only one injury on the body of Farooque and Ibrahim, which are on vital part. If there is any intention of accused persons to kill the injured, there must be several blows on vital part, but on head, there is only one blow on each of the injured. It also shows that there is no intention of the accused persons to kill the injured. P.W. 2 Ibrahim who is the injured witness and the father of P.W. 1 Mohd. Safiq complainant and P.W. 3 Mohd. Farooque not uttered even a single word in his examination-in-chief or cross-examination that there is any intention of accused persons to kill them. As per prosecution evidence, appellant Nazeer has lathi in his hand and as per statement of witnesses he has inflicted lathi blows to Ibrahim and Farooq. On the body of Ibrahim, there are only two injuries and on the body of Farooque there are 10 injuries and five persons attacked him. Seeing the nature of injuries and evidence of witnesses and all other circumstances, it is clear that no case u/s 307, I.P.C. is made out. Utmost, a case u/s 323, I.P.C. against appellant Nazeer, is made out.

In this state of the evidence, it must be held that prosecution has not established; that the offence committed by the appellant falls squarely u/s 307, I.P.C. In my opinion, it amounts only to an offence u/s 323, I.P.C.

From the above, it is clear that the conviction of appellant u/s 307, I.P.C. is liable to be set aside and he is liable to be convicted u/s 323, I.P.C. only. The incident is of the year 1989 and more than 23 years have lapsed and seeing all these circumstances in my opinion a punishment of three months with a fine of Rs. 1,000 is sufficient.

Appeal is allowed in part. Conviction of appellant Nazeer u/s 307/149, I.P.C. is hereby set aside and instead he is convicted u/s 323, I.P.C. for three months simple imprisonment and a fine of Rs. 1,000. In default of payment of fine, he will have to undergo one month''s simple imprisonment. Copy of the judgment and record be sent back to lower court for complying the order.