Full Judgment
Ram Pal Singh, J.
1. Appellant has preferred this appeal against his conviction in Sessions Trial No. 155 of 1982 dated 15-2-1983 under Section 307, Penal Code, recorded by Sessions Judge, Guna. He has been sentenced to two years' rigorous imprisonment and a fine of Rs. 150/- in default of payment of which, to suffer further rigorous imprisonment for three months. Appellant was tried along with Omprakash and Billu for having committed an offence punishable under Section 307/34, IPC., and both the co-accused were acquitted except the appellant.
2. The case of the prosecution, in brief, was that on 16-8-1982 at at about 6.00 p.m. in Hanuman Gali, Guna, Ravindra Kumar Jain (P.W. 1) was coming down from his home after taking his evening meal, and when he saw the appellant quarrelling with the younger brother of Sumer Chand, he intervened, but the appellant abused and rushed towards him. Ravindra Kumar (P.W. 1), consequently, fled towards his shop but he was overpowered by the appellant and his acquitted companions. The appellant who was holding a screw-driver in his hand, stabbed Ravindra Kumar, with the intention to kill him, in chest and abdomen. On a cry from Ravindra Kumar for help, the assailants fled away. Inderchand (P.W. 2), Rajesh Kumar (P.W. 6) and Ashok Kumar (P.W. 7), who had witnessed the commission of the crime, reached the spot and transported the injured in a Tonga to the police station at Kotwali, Guna, the first information report lodged by Ravindra Kumar (P.W. 1) was recorded at 6.25 p.m. Ravindra Kumar was then taken to the hospital, where he was medically examined, treated and X-rayed. After investigation and arrest of all the three accused, a charge sheet was filed.
3. During the trial, the prosecution examined Ravindra Kumar (P.W. 1) and eyewitnesses Inderchand (P.W. 2), Babulal (P.W. 4), Rajesh Kumar (P.W. 6) and Ashok Kumar (P.W. 7). While Babulal (P.W. 4) turned hostile to the prosecution, rest of the witnesses proved the prosecution case. Dr. N.K. Gupta (P.W. 10) has found following injuries upon the person of Ravindra Kumar :
(i) penetrating wound, rectangular in shape, 6 mm X 6mm, on right side chest anterior aspect 1 lh' away from right border of sternum, 5th intercostal space with bleeding and the depth of the wound was up to thorasic cavity.
(ii) penetrating wound, rectangular in shape, 6 mm X 6 mm on left side chest at anterior axillary line 8th intercostal space with bleeding and the depth of the injury was up to thorasic cavity.
These injuries, according to the doctor, were fresh within six hours' duration and were dangerous to life because both the injuries had penetrated the thorasic cavity.
4. On X-ray examination by Dr. R.K. Jain (P.W. 8), though no bones were found to be factured, yet on left side of chest, pneumo-thorax was found, i.e., air was found inside the chest which could be caused due to these penetrating injuries.
5. Sri Rajeev Gupta, learned Counsel for me. Fthe appellant, has rightly refrained from challenging the conviction of the appellant on merit. He has only contended, that the offence is not made out under Section 307, IPC. He further contended that the offence made out is only under Section 308 of the Penal Code. He also contended that the complainant Ravindra Kumar Jain has compounded and compromised the matter with the appellant on 304-1984 and this Court on that date verified the same. From this Sri Gupta contends that though the offence is punishable under Section 308, IPC and is not compoundable, the fact of compromise between the parties should be kept in view while considering the quantum of sentence.
6. It has to be examined whether this act committed by the appellant comes within the scope and orbit of Section 307 or Section 308 of the Penal Code. If an accused 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, he shall be guilty of committing an offence punishable under Section 307, but if an accused did any act that he would be guilty of culpable homicide not amounting to murder, he shall be guilty of committing an act punishable under Section 308 of the Penal Code. Culpable homicide does not amount to murder (a) if the act is done with the intention or knowledge referred to in Section 300 of the Penal Code but under circumstances which would bring the case within one Of the Exceptions mentioned in that section or (b) if the act is done with the intention or knowledge referred to in Section 299 but not falling under clauses (2), (3) and (4) of Section 300 of the Penal Code. Thus, if an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury as is sufficient, in the ordinary course of nature, to cause death, Section 308 of the Penal Code would apply even if the case is not covered by any of the exceptions mentioned in Section 300 of the Penal Code.
7. But before an act can be said to have been committed under Section 308 of the Penal Code, it is essential to examine the mens rea of the appellant at the time of the incident, because mens rea is one of the two essential elements of the offence of an attempt of murder. To constitute an offence of attempt to murder, there must be an act coupled with mens rea. What inspired the appellant to commit the alleged crime? Had he intention to kill? Intention has been defined to consist of a desire that certain consequence shall follow from the act or omission of the accused. If there is no such intention or knowledge, as is necessary to constitute murder? there can be no attempt to commit it. The intention may be proved by res gestae, by acts or events, previous or subsequent to the incident or occurrence. Various relevant circumstances from which the intention may be gathered are : nature of the weapon used, part of the body where injury was caused, nature of injury and opportunity available to accused.
8. In this case, it is apparent that there was no enmity between the appellant and the victim. There was also no premeditation or planning before the act. The appellant in a sudden flash of anger pierced the sharp edged weapon which was at the time in his hand. He had not gone anywhere to pick up the instrument of assault. Prior to the incident, he was not quarrelling with the injured. As the victim intervened in the quarrel, the appellant gave two quick blows with the sharp edged instrument, i.e., screw driver. But the part of the body which he chose to hit, was a vital part of the body, i.e. the chest. The force he used was not very strong so as to penetrate the lungs. Thus, the intention and knowledge of the appellant seems to be to cause such bodily injury to Ravindra Kumar that he would be guilty of culpable homicide not amounting to murder if the injured had died. His act, therefore, comes within the orbit of Section 308 and not Section 307 of the Penal Code.
9. Undoubtedly, the appellant and the injured Ravindra Kumar (P.W. 1) have filed an application that they have compounded the offence, but the offence punishable under Section 308, I.P.C., is not compoundable. But Hon'ble the Supreme Court in Ram Pujan : 1973 CriLJ1612 has observed that 'the major offence for which the appellants have been convicted is no doubt, non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence.' The trial Court in its wisdom chose to impose two years' R.I. and a fine of Rs. 150/- on the appellant when it convicted him under Section 307 of the Penal Code. As observed hereinabove that the offence under Section 307 IPC is not made out, instead an offence under Section 308, IPC is made out, it has to be seen that the sentence is imposed upon the appellant judicially.
The Penal Code provides maximum sentence of 10 years under Section 307 and 7 years under Section 308, IPC, with fine, or with both. As the conviction of the appellant is being altered to one under Section 308, IPC., the sentence also requires to be proportionately reduced. The prayer for release of the appellant on probation is not tenable.
10. The upshot of the above discussion is that this appeal is partly allowed to the extent that the conviction of the appellant is altered to one under Section 308, IPC. So far as sentence is concerned, the ratio of Ram Pujan's case (supra) is kept in view and the appellant is directed to suffer rigorous imprisonment for six months only and he will also pay a fine of Rs. 100/-. On non payment of the fine, he shall further suffer imprisonment for one month. The conviction and sentence imposed upon the appellant under Section 307, IPC is set aside.