307 IPC | Non-Examination Of Injured Victim Deprives Accused Right To Cross Examination; Fatal To Prosecution Case: Chhattisgarh High Court

The Chhattisgarh High Court recently held that non-examination of the injured is fatal to the prosecution case in a matter involving Section 307 of the Indian Penal Code (attempt to murder) since it deprives the accused their right to cross-examination. 

A Division Bench of Justice Sanjay K. Agrawal and Justice Rakesh Mohan Pandey said that examination of the injured is essential to prove if the accused is the one who assaulted him and if his injuries were grave enough to likely cause his death. 

"... the said injured was not examined by the prosecution for the reasons well known to the prosecution, the appellant was deprived to cross examining said Ganiram that he was not present on the spot and the injuries which were allegedly caused to him were not sufficient to cause death, due to non-examination of Ganiram, the appellant has been deprived of the opportunity to cross-examine him which is fatal to the prosecution."

The Court added:

"The prosecution was obliged to examine Ganiram to prove whether he was assaulted by the appellant and whether he has suffered injuries which were sufficient to cause death in terms of Section 307 of the IPC. In that case, the appellant could have an opportunity to cross-examine injured Ganiram qua his presence and his injuries which were sufficient to cause death."

The appellant and eight other accused persons were alleged to be members of the banned Naxalite organization and convicted for constituting an unlawful assembly armed with deadly weapons and assaulting a police constable. All the accused were tried but only the appellant was convicted. 

Aggrieved by the trial court's decision, the appellant moved the High Court.

Advocate Suresh Kumar Verma appearing for the appellant submitted that injured constable himself was not examined and it has not been proved beyond reasonable doubt if he had suffered serious injuries.

Government Advocate Ashish Tiwari, Deputy Government Advocate Sudeep Verma and Panel Lawyer Advocate Arjit Tiwari appeared for the State and resisted the appeal. 

The Court found that the doctor who examined the injured had given contradictory statements. Initially, he said that the injuries were fresh and serious in nature. However, in the cross-examination, he admitted that the injuries were simple but thereafter, he denied the same. 

It was further observed that the injured had not been examined by the prosecution to prove his injuries. The Court added that the prosecution was obliged to conduct such examination and offer the appellant an opportunity to cross-examine injured.

The Division Bench then examined the essential ingredients required to establish an offence under Section 307 of IPC:

(i) the death of a human being was attempted;

(ii) such death was attempted to be caused by, or in consequence of the act of the accused; and

(iii) such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death

The Supreme Court in Hari Singh v. Sukhbir Singh & Ors has held that under Section 307, what the court has to see is, whether the act was done with the intention or knowledge and under circumstances mentioned in the provision. The intention or knowledge of the accused must be such as is necessary to constitute murder without which there can be no offence of "attempt to murder".

The Bench added that the intention should be gathered from all circumstances, and not merely from the consequences that follow.

"Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. It has been further held that the nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention."

Apart from the fact that the appellant was apprehended while found hiding after the incident, no incriminating article was seized from the appellant. He was not apprehended from the spot, the court noted.

Therefore, the Court took the view that the prosecution had failed to prove that the appellant had intention or knowledge relating to commission of murder or towards it and therefore failed to bring home the offence under Section 307 IPC against him.

Accordingly, the appeal was allowed. The conviction and sentences imposed upon the appellant were set aside and he was acquitted.  

Case Title: Sannu Kudami v. State of Chhattisgarh

Citation: 2022 LiveLaw (Chh) 86  

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