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TMI Blog2011 (9) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... hen both of them reached near the first street of the government colony, the accused Narinder and Hargobind came across them. Narinder exhorted! Rajesh dushman aa raha hai isko le lo (Rajesh! enemy is coming and he be attacked). At this, Hargobind fired from his country made pistol and thereby causing injuries on the left side of his chest. Narinder also fired from his pistol but it missed the target. The complainant fell down on the ground floor whereas, the accused fled away. The motive behind the occurrence was the old rivalry. After the incident, the complainant was shifted to Civil Hospital, Hisar by Krishan and Joni, where he was medico-legally examined and was referred to P.G.I.M.S. Rohtak for treatment. The shirt worn by the complainant was taken into possession by the doctor and handed over to the Investigating Officer who took the same into possession. The Investigating Officer reached the hospital and recorded statement of Rajesh and sent the same to the police station, on the basis of which FIR was registered. The case was investigated and both the accused were challaned. On commitment, the accused was charged under Section 307 read with Section 34 IPC and under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tried to run away, Hargobind ran behind him and fired a shot in his right plank. It appears that though Hargobind had run behind him, he must have reached near him and in that situation an injury could be caused in the right plank. The learned counsel for the appellants has also contended that since it was night time, therefore, the complainant may have not been able to identify the assailants. In this regard it may be observed that the injured and the accused were acquainted with each other so closely that a case was pending against the complainant for the murder of brother of Narinder Singh. Rajesh (PW13) has further stated that there was a light in the street i.e. place of occurrence. As such, since the parties knew each other and there was a light in the street, as stated by Rajesh (PW13), then the question of mistaken identity does not arise. For the sake of argument, even if there is no light in the street, then in the given circumstances, this case cannot be said to be of mistaken identity. Reliance in this regard could be placed on the judgment delivered by the Apex Court in case Subramani and another vs. State Rep. By Inspector of Police, 2011 (4) RAJ 23. The nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that shots were fired by each of the accused. Dr. Daya Nand (PW6) had also found the corresponding hole in the shirt worn by the injured Rajesh. Blackening on the shirt was also found to be present. The shirt of Rajesh was taken into possession by the police and it was also sent to the Forensic Science Laboratory for analysis. The report Ex.P28 as prepared by the Forensic Science Laboratory indicates that discharge residue and led was detected in the margins of the hole. In the shirt of Rajesh blackening was also present around the hole. Moreover, it is also clear from the report Ex.P29 and Ex.P30 that human blood was present on the shirt of Rajesh. However, it is evident that both the accused had fired from the weapons. Though the complainant escaped the shot fired by Narinder Singh. Learned counsel for the appellants has tried to convince this Court that .12 bore pistol was fired by Hargobind, but recovery of .315 bore pistol was effected from him, therefore, he cannot be connected with the fire arm recovered from him. In this regard it may be observed that the complainant in his complaint Ex.P6 as well as in his statement while appearing as PW-13 has testified that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under :- 6. All these decisions were considered by this Court in Om Prakash v. State of Punjab, 1962-2 SCR 254 and though Cassidy's case, 4 Bom HC (Cr.) 17 was not expressly dissented from the actual view taken by this Court is more in consonance with the view taken by Beaumont C.J. In Gogte's case, and the view taken by the Allahabad High Court in Niddha's case, ILR 14 All 38 than that taken in Cassidy's case, 4 Bom HC (Cr.) 17. In Gogte's case, no injury was in fact occasioned to the victim Sir Earnest Hotsou, the then acting Governor, due to a certain obstruction. Even so, the assailant Gogte was held by the court to be jointly (sic) under Sections 307 because his act of firing a shot was committed with a guilt intention and knowledge and in such circumstances that but for the intervening fact it would have amounted to murder in the normal course of events. This view as approved by this Court. Therefore, the mere fact that the injury actually inflicted by the appellant did not cut any vital organ of Shankar Prasad is not by itself sufficient to take the act out of the purview of Sections 307. 7. xx xx xx 8. The only other question then is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. 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 Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether that act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt. Further, the Apex Court in case Hari Mohan Manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given our thoughtful consideration to the entire matter in the light of the evidence on record, we are of the opinion that both these ingredients of S. 300, I.P.C. are lacking in this case. Now coming to the other argument that Narinder Singh having not caused any injury could not be convicted under Section 307 with the aid of Section 34 IPC. The provisions of Section 34 IPC became the subject of controversy in so many judgments but recently the Apex Court in case Nand Kishore v. State of Madhya Pradesh 2011 (4) Recent Apex Judgments 179 (SC) elaborately explained as under :- 1. Criminal act is done by several persons; 2. Such act is done in furtherance of common intention of all; and 3. Each of such persons is liable for that act in the same manner as if it were done by him alone. 4. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. 5. Once criminal act and common intentions are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. 6. Every individual member of the entire group charged with the aid of Section 34 must, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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