CHHANGA @ MANOJversusSTATE OF M. P.

                         [2017]2 S.C.R. 27


                      CHHANGA @ MANOJ                                   A
                                 v.
                         STATE OF M. P.
                 (Criminal Appeal No. 898 of 2005)
                       FEBRUARY 28, 2017                                B
                [R. F. NARIMAN AND
           MOHAN M. SHANTANAGOUDAR, JJ.]
      Penal Code, 1860 :
      s. 307 r!w. s. 34 - Prosecution under - For attempt to            c
murder - By appellant-accused alongwith three other accused -
Allegation that one of the co-accused hurled two bombs at the
exhortation of the appellant-accused - Courts below convicted all
the accused - On appeal by appellant-accused plea that in view of
simple nature of injuries and in view of his role, offence u!s. 307
                                                                        D
not made out - Held: In order to make out charge uls. 307 an
intention coupled with some common act in execution thereof is
enough - It is not essential that bodily injury capable of causing
death should have been inflicted - In the present case, in view of
nature of weapons, it can be inferred that the intention was to cause
death - Exhortation by the appellant-accused attracted the charge       E
uls. 307 rlw. s. 34 - Conviction affirmed.
      Sentence/Sentencing:
       Conviction uls. 307 rlw s. 34 !PC - Sentenced to three years
imprisonment - Plea to reduce the sentence to the period already
undergone i.e. about 2 years - Held: The accused got away very          F
lightly - Undue sympathy leading to inadequate sentence would do
more harm to the justice system and would undermine public
confidence in the efficacy of law - Sentence upheld.
      Dismissing the appeal, the· Court
                                                                        G
      HELD: 1.1 It is not essential that bodily injury capable of
causing death shonld have been inflicted in order that the charge
under Section 307 IPC be made out. It is enough if there is an
intention coupled with some common act in execution thereof.
[Para 7] (30-E]
                                                                        H
                                 27
28            SUPREME COURT REPORTS                      (2017] 2 S.C.R.



A          1.2 In the present case, the nature of the weapon used pre-
     dominates. Two bombs were hurled, which are lethal weapons,
     from which it can safely be inferred that the intention was to cause
     death. Also, the words uttered by appellant-accused, namely, that
     the complainant ought to be killed, lend further credence to this
     view. The motive of the accused has also been made out, namely,
B
     that the intention was to kill the person in the shop as he was an
     informer. True, the nature of the injuries in the present case was
     stated to be simple, but this is only because of the fortuitous
     circumstance that the bomb exploded at a distance far from PW
     1. Therefore, it is clear that Accused No.4 (appellant) in coming
c    together with the other three accused and going together with
     them, and in shouting the words "kill him" certainly attracted
     the charge under Section 307 read with Section 34 IPC. The
     concurrent judgments of the Courts below do not need to be
     disturbed. [Para 8] [31-B-E]
D          State of MP. v. Kashiram and Others (2009) 4 SCC
           26 : [2009] 1 SCR 806; Jage Ram and Others v. State
           of Haryana (2015) 11 SCC 366 : [2015] 11 SCR 1004;
           Sevaka Perumal and Anr. " State of Tamil Nadu (1991)
           3 SCC 471 : [1991] 2 SCR 711 - relied on.
E          2. Undue sympathy leading to imposition of inadequate
     sentence would do more harm to the justice system and would
     undermine public confidence in the efficacy of law. The appellant
     appears to have got away lightly. Therefore, there is no reason to
     interfere, in the concurrent Judgments, under Article 136 of the
     Constitution of India. [Paras 10, 11, 12] [31-G-H; 32-A]
F
                            Case Law Reference
     f2009J 1 SCR 806               relied on               Para 7
     [2015] 11 SCR 1004             relied on               Para 7
     f1991J 2 SCR 711               relied on               Para 11
G
           CRIMINAL APPELLATE JURISDICTION : Criminal A.ppeal
     No. 898 of2005.
           From the Judgment and Order dated 17.12.2004/29.04.2005 of
     the High Court ofM. P. at Jabalpur in Criminal Appeal No. 37of1990
H    and MCR. Case No. 3142 of2005.
              CHHANGA@ MANOJ v. STATE OF M.P.                                     29


     Dinesh Kumar Garg, Abhishek Garg, Dhananjay Garg, Deepak                     A
Mishra, Advs. for the Appellant.
       Ms. Bansuri Swaraj, Ms. Shreya Bhatnagar, C. D. Singh, Advs.
for the Respondent.
      The Judgment of the Court was delivered by
                                                                                  B
      R. F. NARIMAN, J. I. This is an appeal filed by Accused
No.4- appellant herein who was convicted under Section 307 read with
Section 34 of the Indian Penal Code along with the other accused and
sentenced to imprisonment for a period of three years by the learned
Additional Sessions Judge vide Judgment dated 8'h January, 1990. In an
appeal preferred to the High Court of Madhya Pradesh at Jabalpur, the             c
said Court concurred with the findings of the learned Additional Sessions
Judge and dismissed the appeal of the appellant - herein.
       2. Apparently, the accused were inimical to one Gyan Singh, who
was the younger brother of the informant. PW I, the informant, Man
Singh was sitting in a Bettle Shop, and the app~llant came there with             D
three other persons, one of whom, Rakesh, threw a bomb at him with
intent to kill him. The bomb exploded dashing the back portion of the
bettle shop, which caused injury to PW I's left thigh, after which the
said Rakesh also threw another bomb which dashed against the window
of the said shop and exploded. The role of the present appellant before           E
us is succinctly stated by the learned Additional Sessions Judge, who
said that the accused - Chhanga @ Manoj - the present appellant
specifically stated "kill him, he should not be spared, he habitually reports".
All four accused persons came together and ran away together from
the spot of the incident.
                                                                                  F
      3. The deposition of injured eye-witness PW I was believed by
both the Courts below. He was fully corroborated by PW 6, who was
the father of the injured eye-witness, and PW 7, who was a third
independent eye-witness. PW s 4, 5 and 9 were declared hostile, and in
paragraph 11 of the Judgment of the learned Additional Sessions Judge,
the statements of these witnesses were taken into account and were                G
condemned.
       4. The learned Additional Sessions Judge held that the common
intention under Section 34 was proved not only by the fact that the four
accused came together and left together but that the present accused
shouted the words that have been stated hereinbefore. From this, it was           H
30             SUPREME COURT REPORTS                           [2017] 2 S.C.R.


A    held that the charge under Section 307 read with Section 34 of the I.P.C.
     was made out against all the accused, and they were sentenced to three
     years imprisonment.
            5. Shri Dinesh Kumar Garg, learned counsel appearing for the
     appellant, has raised two points in appeal before us. First ofall, according
'B   to him, the injuries were simple in nature and, therefore, it should be
     inferred that the idea was not to kill, and the charge therefor of Section
     307 has no( been made out on facts. Further, since the role of the present
     accused was not an active one, inasmuch as he only shouted what he
     has supposed to have said, he should)n any case, even if conviction be
     sustained, be sentenced to the period already undergone, which we are
c    informed is roughly almost two years in jail.
            6. Ms. Bansuri Swaraj, learned counsel appearing on behalf of
     the respondent - State of M.P. has, on the other hand, stated that the
     concurrent findings on common intention as well as the evidence,
     particularly of the injured eye-witness, as corroborated by the other
D    witnesses, has made it clear that both the Judgments are correct. Indeed,
     the appellant appears to have got away lightly.
           }. Neither of the points raised by Shri Garg appeal to us. First
     and foremost, it is not essential that bodily injury capable of causing
     death should have been inflicted in order that the charge under Section
E    307 be made out. It is enough if there is an intention coupled with some
     common act in execution thereof. This position has been repeatedly laid
     down by this Court in "State of M.P. vs. Kashiram and Others" (2009)
     4 SCC 26 at paragraphs 12 to 16. In addition, in a recent Judgment in
     'Jage Ram and Others vs. State of Haryana' (2015) 11 SCC 366, the
F    law has been laid down as follows :-
             "For the purpose .of conviction under Section 307 !PC, the
             prosecution has to establish (i) the intention to commit murder;
             and (ii) the act done by the accused. The burden is on the
             prosecution that the accused had attempted to commit the murder
G
             of the prosecution witness. Whether the accused person intended
             to commit murder of another person would depend upon the facts
             and circumstances of each case. To justify a conviction under
             Section 307 !PC, it is not essential that fatal injury capable of
             causing death should have been caused. Although the nature of
             injury actually caused may be of assistance in coming to a finding
H            as to the intention of the accused, such intention may also be
 CHHANGA@ MANOJ v. STATE OF M.P. [R. F. NARlMAN, J.]                          31


        adduced from other circumstances. The intention of the accused        A
        is to be gathered from the circumstances like the nature of the
        weapon used, words used by the accused at the time of the
      · incident, motive of the accused, parts of the body where the
        injury was caused and the nature of injury and severity of the
        blows given, etc."
                                                                              B
         8. On the facts, in the present case, the nature of the weapon
used pre-dominates. Two bombs were hurled, which are lethal weapons,
from which it can safely be inferred that the intention was to cause
death. Also, the words uttered by Accused No.4, namely, that the
complainant ought to be killed, also lend further credence to this view.
The motive of the accused has also been made out, namely, that the
                                                                              c
intention was to kill the person in the shop as he was an informer. True,
the nature of the injuries in the present case was stated to be simple, but
,this is only because of the fortuitous circumstance that the bomb exploded
at a distance far from PW I. In our opinion, therefore, it is clear that
Accused No.4 in coming together with the other three accused and              D
going together with them, and in shouting the words "kill him" certainly
attracted the charge under Section 307 read with Section 34 of the Code.
The concurrent Judgments of the Courts below do not need to be
disturbed.
        9. Shri Garg also exhorted us to allow the present appeal to          E
conclude with the sentence already undergone. According to him, the
appellant is on bail since 2006, and at this distance of time, there is no
point in sending him back for incarceration for a period of one year and
a little over.
       I 0. We are unable to agree with this argument. The crime              F
committed is heinous in nature, and we agree with the learned counsel
for the respondent - State that the appellant - herein appears to have
got ~way lightly.
       11. We also advert to a Judgment in 'Sevaka Perumal and Anr.
vs. State of Tamil Nadu' (1991) 3 SCC 471, in paragraph I 0 of which it
                                                                              G
has been high lighted that undue sympathy leading to imposition of
inadequate sentence would do more harm to the justice system and would
undermine public confidence in the efficacy of law.
      12. Having regard to the above, and further taking into
consideration the fact that the appellant appears to have got off lightly,
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32              SUPREME COURT REPORTS                         [2017] 2 S.C.R.


A    we see no reason to interfere in the concurrent Judgments under Article
     136 of the Constitution oflndia.
            13. The appeal stands dismissed.
            14. Needless to say the appellant who was granted bail pursuant
     to Order dated 20-3-2006 of this Court, stands cancelled and he is directed
B    to surrender within a period of two weeks from today to serve out the
     remaining period of sentence.             ·


     Kalpana K. Tripathy                                         Appeal dismissed.