1. The petitioners have challenged the order dated 20.11.2012 passed by the Additional District & Sessions Judge No.3, Bharatpur, whereby he has framed the charges against the petitioners for the offences under Sections 148, 341, 323, 325 or 325/149, 452, 308 or 308/149 Indian Penal Code .
2. Brief facts of the case are that on the statement of one Moolchand, a formal FIR, namely FIR No.945/2011, under Sections 147, 148, 149, 323, 341, 308 and 452 Indian Penal Code was registered at Police Station Mathura Gate, Bharatpur. According to Moolchand, on 24.11.2011, while he was sitting in his house, at 10.30 A.M., the accused-petitioners came armed with iron rods, iron pipes, axe and country made pistol. The accused Subedar Brijendra Singh told the other co-accused persons to catch hold of the complainant and to kill him. Dinesh caught hold of the complainant, Moolchand, Ranveer hit him with an axe on his head; Jagveer hit him with iron pipe; Sonu and Jagpal also hit him with iron pipes; Vishu hit him with iron pipe. Subedar Brijendra Singh hit him with a cane. Due to the assault, Moolchand fell on the floor. When he raised hue and cry, his daughter-in-law, Radha rushed to his rescue, but she too was hit by iron pipes; when the accused petitioners saw the other rescuers coming in, they fled from the scene of crime. According to Moolchand, the accused-petitioners had assaulted him and had come to his house in order to illegally occupy his land.
3. After a thorough investigation, the charge-sheet was submitted for the aforementioned offences; by order dated 20.11.2012, the learned Judge framed charges as aforementioned. Hence, the present petition before this Court.
4. Mr. D.G. Chaturvedi, the learned counsel for the petitioners, has vehemently contended that according to the injury report of Moolchand, he had suffered six injuries, namely (i) Lacerated wound on the mid-parietal region of skull, caused by blunt weapon, (ii) Lacerated wound on the right leg mid 1/3, caused by blunt weapon, (iii) Abrasion on right hand, (iv) Bruise in lumber region, (v) Pain in right forearm and (vi) Lacerated wound on mid-occipital region of skull.
5. According to the X-ray report, the injured had not suffered any bone injury on the skull. However, the right forearm was fractured. According to the report, while injury Nos.1,2 and 6 were simple in nature, injury No.5 was grievous in nature. Therefore, according to the learned counsel, since injuries on the head are simple in nature, the offence under Section 308 Indian Penal Code is not made out against the petitioners. In order to buttress this contention, the learned counsel has further relied upon the cases of Ramlal & Ors. v. State of Raj., 2004 W.L.C.(Raj.) UC 355, (2) Shaitan Singh Gurjar v. State of Rajasthan & Anr., 2012(3) Cr.L.R.(Raj.) 1311, (3) Rajkumar Bohra & Anr. v. State of Rajasthan, 2011(1) Cr.L.R.(Raj.) 132, Kamla Prasad & Ors. v. State of Rajasthan, 1995 Cr.L.R.(Raj.) 139, and on the case of Sutta @ Tejuddin & Ors. v. State of Rajasthan(S.B. Criminal Revision Petition No. 1331/2012), decided on 08.01.2013.
6. On the other hand, the learned Public Prosecutor has contended that according to Section 308 Indian Penal Code , what is to be seen is that the act was done with such intention or knowledge and under such circumstances that if the act caused death, then the person would be guilty of "culpable homicide not amounting to murder". Thus, according to him, it is not merely the nature of the injuries, which is important, but also the circumstance in which the injuries were caused. Moreover, according to him, Section 308 Indian Penal Code is divided in two parts as far as sentence is concerned: in the first part the sentence is three years, but in case hurt is caused, then according to the second part the sentence would increase from 3 years to 7 years. According to him, it is pertinent to note that the accused persons had come armed with lethal weapons, like iron rods, iron pipes and country made pistol. Subedar Brijendra Singh had already called out to the co-accused persons to kill Moolchand. Consequently, Moolchand was assaulted with lethal weapons. Two injuries on his head were caused. Thus, the knowledge that by causing two injuries on the head, they are likely to cause the death of a person is writ large. Therefore, even if the injuries are said to be simple in nature, Section 308 Indian Penal Code punishes the intention and the knowledge. Thus, according to the learned Public Prosecutor, there is ample evidence to show that the offence under Section 308 Indian Penal Code has been committed. Hence, he has supported the impugned order.
7. Heard the learned counsel for the parties, perused the impugned order and considered the case law, cited at the Bar.
Section 299 Indian Penal Code defines culpable homicide and is as under:-
"299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
8. A bare perusal of the provisions clearly reveals that it deals with the intention of causing such bodily injury as is likely to cause death. One of the distinctions between Sections 299 and 300 Indian Penal Code is that for culpable homicide, injury is likely to cause death, whereas for murder, the injury should be sufficient in the ordinary course of nature to cause death. Both Sections 307 and 308 Indian Penal Code , deal with attempt to commit murder and attempt to commit culpable homicide respectively. Both these Sections, not only punish the act of attempt to commit the offence, but most importantly, punish the mens rea, which accompanies the commission of the offence. It is for this reason that mens rea is being punished under both the provisions using the word "under such circumstances". Therefore, the intention or knowledge, has to be culled out from the circumstances of the case. Hence mere nature of injury is not the only criteria, to be considered while dealing with the case under Section 307 or 308 Indian Penal Code. The nature of the injury may be a pointer to the intention or to the knowledge. However, it is not the sole criteria, by which the Court can be guided.
9. In the present case, the circumstances are that according to Moolchand, allegedly all the accused persons came armed with lethal weapons, like iron rods, iron pipes and country made pistol; they invaded his house, and Subedar
Please Login To View The Full Judgment!
said to others "to kill him." The words "kill him" is sufficient enough to show that the intention of the accused persons was to kill Moolchand. Subsequently, he was attacked with iron rods and iron pipes; two injuries were caused on his head. The accused had the knowledge that by using lethal weapons and by causing injuries on the head, which is a vital part, they are likely to cause his death. Thus, prima-facie the offence under Section 308 Indian Penal Code is made out against the petitioners. 10. Therefore, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of any merit, is hereby dismissed. The stay application is also dismissed. Petition Dismissed.