# Devi Harijan & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 780
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-20
- **Case number:** Criminal Appeal No 242 of 2002
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-harijan-anr-in-jail-v-state-of-u-p-47309
- **Pages:** 10

## Headnote

(A) Indian Penal Code (45 of 1860) -
Sections 307 &323 - Attempt to murder -
Court
has
to
see
whether
the
act
irrespective of its result was done with the
intention or knowledge - intention or
knowledge of the accused must be such as
is necessary to commit murder - intention
to cause death is essential element to
attract the offence of attempt to murder.
intention is to be gathered from all
circumstances and no merely from the
consequences that ensue - nature of
weapon, motive of the crime, severity of
the blow etc. are some of the relevant
factors (Para 20)

Altercation took place between the accused and
P.W.1 over pity matter regarding digging of
some onion planted just outside the house of
the injured P.W.2- Bansilal - this motive cannot
be said to have persuaded the appellants to
commit murder of the injured P.W.2-Bansilal -
no evidence adduced to show that the injury
received was grievous in nature - intention of
the accused was only to inflict injury and that
too on PW1 and not on PW2 - Conviction u/S.
307 cannot be sustained - Accused instead
convicted u/s 324 IPC (Para 21, 22, 27)

Code Of Criminal Procedure, 1973 -
Section 360
-
Order to
release
on
probation
of
good
conduct
or
after
admonition - Probation of Offenders Act
(20 of 1958) , Section 4 - Power of court
to release offenders on probation of good
conduct - One of the accused died other
appellants aged about 70 years & about
75
years
of
age
-
Appellant
''first
offender', hence benefit of Section 4 of
the Probation of Offenders Act given to
the appellant. (Para 28)

Allowed. (E-4)

List of Cases cited :

## Text

780 INDIAN LAW REPORTS ALLAHABAD SERIES
applying the provisions of this Section is also
required to consider the circumstances of the
case, character of the offender and nature of
the offence before exercising its discretion.

16. A perusal of the aforesaid provisions
of the Probation of Offenders Act, 1958 thus
clearly indicate that Section 4 of the 1958 Act
does not create any distinction between the
category of offenders and the provision of the
said Section can be made applicable in any case
where the offender is found guilty for
committing an offence which is not punishable
with death or imprisonment for life. Incidentally
certain exceptions have been indicated by the
Hon'ble Supreme Court as in the case of Smt.
Devki Versus State of Harayana reported in
1979, (3) SCC 760 where the Hon'ble Supreme
Court has held that benefit of Section 4 of 1958
Act could not be extended to a culprit who was
found guilty of abducting a teenaged girl and
forcing her to sexual submission with criminal
motive. Similarly in the case reported in 1980
(4) SCC 669 in Re: State of Maharashtra
Versus Natwar Lal Damodar Das Soni the
Hon'ble Supreme Court declined to extend the
benefit of the Probation of Offenders Act, 1958
to an accused found guilty of gold smuggling.

17. Considering the above submissions
advanced on behalf of the appellant, the instant
case was registered against the appellant about
28 years back and conviction was awarded on
21.01.2000.
The
conviction
against
the
appellant neither involved life sentence nor
punishable
more
than
seven
years
imprisonment and it is also submitted that out
of 3 months awarded sentence he remain in
detention of jail about 12 days. It is also stated
that this is the first offence against the appellant.
Further submission is that there are several
contradictions and exaggeration made in the
statement of the witnesses examined before the
trial court. It is also submitted that there is no
minimum sentence under Section 452, 354 IPC.
So in the opinion of this Court, it would be
appropriate to grant the benefit of Section 4 of
the Probation of Offenders Act, 1958 to the
accused-appellant.

18. Consequently, the instant appeal is
partly allowed only on point of sentence
instead sending him in jail. The accusedappellant shall get the benefit of Section 4 of the
Probation of Offenders Act, 1958.

19. The accused-appellant is hereby
directed to file a bond to the tune of Rs.20,000/-
to the effect that he shall not commit any
offence and shall maintain good behaviour and
peace. If there is breach of any of the condition,
he will undergo sentence as indicated by the
trial court. The bond aforesaid be filed by the
accused appellant within one month from the
date of judgement. Since the appellant is on
bail, so he need not surrender. Thus, the appeal
is dismissed on point of conviction but partly
allowed on point of sentence as aforesaid.

20. Office is directed to communicate this
order to the learned trial court for necessary
compliance.

21. Lower court record, if any, shall also
be sent back to the district court concerned.
----------
(2021)08ILR A780
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.07.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 242 of 2002

Devi Harijan & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
8 All. Devi Harijan & Anr. Vs. State of U.P.
781
Prem Singh, Sushil Kumar Singh

Counsel for the Opposite Party:
Govt. Advocate

(A) Indian Penal Code (45 of 1860) -
Sections 307 &323 - Attempt to murder -
Court
has
to
see
whether
the
act
irrespective of its result was done with the
intention or knowledge - intention or
knowledge of the accused must be such as
is necessary to commit murder - intention
to cause death is essential element to
attract the offence of attempt to murder.
intention is to be gathered from all
circumstances and no merely from the
consequences that ensue - nature of
weapon, motive of the crime, severity of
the blow etc. are some of the relevant
factors (Para 20)

Altercation took place between the accused and
P.W.1 over pity matter regarding digging of
some onion planted just outside the house of
the injured P.W.2- Bansilal - this motive cannot
be said to have persuaded the appellants to
commit murder of the injured P.W.2-Bansilal -
no evidence adduced to show that the injury
received was grievous in nature - intention of
the accused was only to inflict injury and that
too on PW1 and not on PW2 - Conviction u/S.
307 cannot be sustained - Accused instead
convicted u/s 324 IPC (Para 21, 22, 27)

Code Of Criminal Procedure, 1973 -
Section 360
-
Order to
release
on
probation
of
good
conduct
or
after
admonition - Probation of Offenders Act
(20 of 1958) , Section 4 - Power of court
to release offenders on probation of good
conduct - One of the accused died other
appellants aged about 70 years & about
75
years
of
age
-
Appellant
''first
offender', hence benefit of Section 4 of
the Probation of Offenders Act given to
the appellant. (Para 28)

Allowed. (E-4)

List of Cases cited :

1. Sarju Prasad Vs St. of Bihar AIR 1965 SC 843
2. Hari Kishan & anr. Vs Sukhbir Singh & ors.
1988 AIR 2127

3. Ramesh Vs St. of U. P. AIR 1992 SC 664

4. Merambhai Punjabhai Khachar & ors. Vs St.
of Guj. AIR 1996 SC 3236

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

 1. Heard learned counsel for the
appellants, learned A.G.A. for the State and
perused the record.

2. The present criminal appeal under
Section 374 (2) of the Code of Criminal
Procedure, 1973 has been filed against the
judgment and order dated 8.2.2002 passed
by II Additional Sessions Judge, Sultanpur
in Sessions Trial No. 134 of 1994 arising
out of Case Crime No. 209 of 1993, under
Sections 324, 307 and 504 I.P.C., Police
Station
Lambhua,
District
Sultanpur,
whereby the appellant no.1-Devi Harijan
was convicted under Section 307 I.P.C. and
sentenced to undergo five years rigorous
imprisonment with a fine of Rs.2000/- and
in default of payment to undergo three
months
additional
imprisonment;
and
appellant
no.2-Chauthi
Harijan
was
convicted under Section 307/34 I.P.C. and
sentenced to undergo five years rigorous
imprisonment with a fine of Rs.2000/- and
in default of payment to undergo three
months additional imprisonment.

3. It transpires from the record that
the instant appeal filed by appellant no.1Devi Harijan has been abated vide order
dated 17.04.2018 passed by Co-ordinate
Bench of this Court.

4. The prosecution case, as per the
written report, is that on 13.5.1993, at about
6:00 a.m., the cousin brother of the
782 INDIAN LAW REPORTS ALLAHABAD SERIES
informant, namely, Devi, was digging
onion on the abadi land of the informant
and the informant reached there and asked
him not to dig his onion but he did not
listen him and after abusing him, went to
his house and threatened him that I will see
you just now. Thereafter, he gone to home
and returned with scissor along with
appellant no.2-Chauthi with intention to
kill him. By that time father of the
informant had also reached on the spot,
upon
which
appellant
no.2-Chauthi
exhorted to kill the informant and caught
hold his father while exhorting and
appellant no.1-Devi Harijan with intention
to kill started hitting his father with scissor,
as a consequence of which, his father
suffered with lot of wounds from scissor
and scissor broke inside the body of his
father and his father fell down. On alarm
being raised, Jhagai and several other
persons of the village reached there and
saw the incident and also mediated.
Thereafter, the informant took his injured
father to the police station, where his report
was not lodged and he was asked to first
get the medical examination of the injured,
then, the report will be lodged. The injured
was thereafter medically examined.

5. The injuries of P.W.2 Bansilal was
medically examined by Dr. R.P. Singh
(P.W.5) of Community Health Center,
Lambhua, Sultanpur on 19.5.1993 at 10.20
a.m. Dr. Singh found following injuries on
the person of injured Bansilal:-

"(1) Incised wound at Rt. side of
the scalp 3cm x 0.5cm deep x scalp deep
fresh bleeding from the wound is present.
11 cm above the Rt. ear margins are sharp
fresh bleeding from the wound is present.

(2) Incised wound at Rt. side of
the back of chest 1cm x .5cm x muscle deep
margins are sharp fresh bleeding from the
wound is present.

(3) Incised wound at Rt. side of
the back corresponding to medial border of
scapula 1cm x (sic) x muscle deep fresh
bleeding is present".

6. P.W.5 Dr.R.P.Singh, in his
statement has stated that the injuries could
be caused by the scissor on the date and
time of the incident. He had advised the
injured Bansilal to get the x-ray of his chest
be done. Whereupon the injured Bansilal
did his x-ray of chest from Radiologist Dr.
Subodh
Kumar,
District
Hospital
Sultanpur. PW 3 Dr. Subodh Kumar, in his
statement has deposed that the x-ray of
chest of injured Bansilal was done under
his supervision, wherein it has been opined
that two radio opaque, metallic triangular
seen in chest wall at level of thoralei 2, 3
and 4th spin. It was also found that both
christopher angles clear and no bone injury
seen. The report of x-ray has been marked
as Exhibit Ka 2.

7. It appears that after the incident the
informant PW1 Pappu went along with his
injured father to police station Lambhua for
lodging the First Information Report but
instead of lodging the First Information
Report the Inspector told the informant
PW1 Pappu to first get his father admitted
in hospital then First Information Report
could be lodged. As the First Information
Report
was
not
lodged
even
after
hospitalizing the father of the complainant
in Lambhua Hospital in a serious condition,
hence, the informant Pappu P.W.1 had
moved an application (Exhibit Ka1) before
Superintendent of Police, Sultanpur on
18.5.1993,
on
which
the
Additional
Superintendent of Police directed the
Station Officer Lambhua Police Station on
the date itself i.e. on 18.5.1993 to register a
8 All. Devi Harijan & Anr. Vs. State of U.P.
783
case. In pursuance thereof, an F.I.R.
(Exhibit Ka 4) was registered as Case
Crime No. 209 of 1993 under Section 324,
307, 504 Indian Penal Code, Police Station
Lambhua, District Sultanpur on 29.5.1993
at 15.30 hours.

8. It transpires from the impugned
order passed by the trial court that the
Investigating Officer, who made the site
plan, was not produced in the witness box
and the Investigating Officer, who is said to
have proved the site plan, has stated that he
was not present at the time of preparation
of site plan. The trial court, after going
through
the
record,
found
that
the
investigation of the case was partly
conducted by two Investigating Officers.
First of all, S.I. Rajnath Rai had conducted
the investigation of the case and after his
transfer, the rest of the investigation was
conducted by S.I. Mangla Prasad Singh
(P.W.4), who, in his statement, has stated
that
on
24.6.1993
both
the
accused/appellants
namely
Devi
and
Chauthi was arrested. He also stated that
after the death of erstwhile Investigating
Officer Rajnath Rai the investigation of the
case was entrusted to him. He had proved
the site plan prepared by the then
Investigating Officer Rajnath Rai, chik
First Information Report prepared by the
then Head Moharrir Ram Surat Paswan and
carbon copy of G.D. which was prepared in
original.
Finally,
on
11.7.1993,
he
submitted the charge-sheet (Exhibit Ka 3)
against the appellants.

9. The case was committed to the
court of Sessions in usual manner. There
charges under Section 307/34 and 506
Indian Penal Code were framed against the
appellants, to which they pleaded not guilty
and claimed to be tried. His defence was
that of denial.

10. In the trial, the prosecution, apart
from tendering and proving a large number
of exhibits, namely, written report (Exhibit
Ka.1), Xray report (Exhibit Ka.2), chargesheet
(Exhibit
Ka.
3),
Chik
First
Information Report (Exhibit ka 4), report of
record keeper (Exhibit Ka.5), General
Diary (Exhibit Ka.6) and site plan (Exhibit
Ka.7) as well as the injury report of injured
Banshi (Ext. Ka. 7A), examined as many as
5 witnesses, namely, P.W.1-Papu alias
Umesh, who is the complainant, P.W.2Banshi, who is the injured witness, P.W.3Dr. Subodh Kumar, who has proved the xray report, P.W.4-S.I. Mangla Prasad
Singh, who has proved the site plan and
other documents relating to investigation
and also filed charge-sheet, Chik report,
report of record keeper and site plan and
P.W.5- Dr. R.P. Singh, who has medically
examined the injured P.W.2 Bansilal. In
defence, no witness was examined. In the
statement recorded under Section 313
Cr.P.C., the accused/appellants have denied
the incident and pleaded that they have
falsely been implicated in the instant case.
The trial court believed the evidence
adduced by the prosecution and passed the
impugned order, referred in para no.2
hereinabove.

11. PW.1-Pappu alias Umesh is
almost repeated the prosecution version as
has been mentioned in the written report
and has stated that Devi (appellant no.1) is
his cousin brother and appellant no.2 is the
uncle of co-accused Devi. The incident
took place around more than one and a half
year ago. In the morning at sunrise while he
was brooming at his door, he saw that
accused Devi was digging onion belonging
to him which was planted in the abadi land
in front of his house. He asked Devi not to
dig onion. On that Devi abused him and
threatened to see him then he went away
784 INDIAN LAW REPORTS ALLAHABAD SERIES
and immediately came back with scissor
along with co-accused Chauthi. Chauthi
exhorted to kill him. The father of the PW1
at that time came to rescue him at that
moment the Chauthi caught hold his father
from behind and accused Devi with an
intent to kill has assaulted him with scissor
around 1 inch scissor point was left in his
back
thereafter
accused
Devi
again
assaulted his father on his head upon
receiving injury his father fell down Jhagai
also saw this incident thereafter he took his
father to Police Station Lambhua and then
admitted him to Lambhua hospital where
he was given treatment. Since the first
Information Report was not being lodged
by the police at Lambhua station therefore
a written report was given to the
Superintendent of Police after 4-5 days
(exhibit Ka.1).

12. PW.2 Bansilal, who is injured
witness, has also supported the statement of
PW1 Pappu@Umesh and has stated that at
about 6.00, in the morning, while he was at
his own house, he heard noise and came
outside his house. The accused Chauthi
(appellant
no.2)
exhorted
to
kill
Pappu@Umesh (P.W.1), whereupon in
order to save his son he ran towards him,
upon this, the accused Chauthi caught him
from behind and accused Devi Harijjan
assaulted him with scissor on his back
which broke inside his back and thereafter
he was hit by scissor twice he fell after
receiving the injuries. This incident was
seen by Jhangai. He was medically
examined at Lambhua where he was
admitted for more than one month. X-ray
was also conducted.

13. P.W.5 Dr. R.P. Singh, in his
statement, has deposed that deep injuries
are possible to have come from scissor,
however, no opinion has been given by him
regarding the nature of the injury whether
they are simple or grievous. PW6 Dr.
subodh Kumar has done x-ray of the
injured and has stated that in the x-ray,
shadow
of
two
multiple
objects
of
triangular shaped has been seen, however,
there is no bone injury. He has also proved
the x-ray report and prints.

14.

Learned
Counsel
for
the
appellants has submitted that the injury was
caused by appellant no.1-Devi Harijan and
appellant no.2-Chauthi Harijan has only
caught hold the injured. He though
admitted the manner of the injury inflicted
upon the injured except the fact that the
appellant no.1-Devi Harijan has caused the
injury with intention to kill but he has
stated that appellant no. 2 and the appellant
no.1 had no prior meeting of mind. He
submitted that the dispute erupted due to
sudden provocation by the son of the
injured Bansilal and upon this provocation,
appellant no.1 went inside the house, took
the scissor only just to teach PW1-Pappu
alias Umesh a lesson, however, in between,
all of a sudden, the injured Bansilal came
on the spot. As per the prosecution case,
injured was caught hold from behind by
appellant no.2 at the initial stage. When the
verbal hot talk is going on between
appellant. No.1 and P.W.1-Umesh alias
Pappu, injured Bansi was not even on the
picture. There was no occasion to have any
prior meeting of mind regarding causing
injury to Bansilal by appellant no.1. If he
had not stepped in to save his son, he
would not have been injured, therefore, it
could not be said that the appellant no.2
who caught hold of Bansi had any prior
meeting of mind with the appellant no.1 or
appellant no.2 could have any chance of
prior meeting of mind to cause injury to the
injured Bansilal. This contingency could
not have been forseen neither by the
8 All. Devi Harijan & Anr. Vs. State of U.P.
785
appellant no.1 nor by appellant no.2.
Therefore common object to cause injury is
missing.

15. Learned A.G.A. has opposed the
appeal and has submitted that from perusal
of the evidence of PW1-Pappu alias Umesh
and PW2-Bansilal, the intention to commit
the murder is clearly corroborated by the xray report, where two shadow of metallic
triangular shaped objects have been found
inside the body of injured Bansilal (P.W.2)
and also corroborated by the statement of
PW5-Dr.R.P. Singh.

16. On due consideration to the
arguments advanced by the learned counsel
for the appellant as well as learned AGA,
particularly the submission of learned
counsel for the appellants that he is not
disputing the incident and the narration of
facts as deposed by PW1-Pappu alias
Umesh and PW2-Bansilal, except the fact
that the injury has been inflicted with an
intent to kill the injured P.W.2-Bansilal, I
find force in submission of learned counsel
for the appellant that there could not have
been any intention to kill the injured PW2Bansilal as the injured PW2-Bansilal was
not even present while the verbal hot talk
between the appellant no.1 and PW.1Umesh alias Pappu was going on. PW2Bansilal
appeared
at
the
place
of
occurrence to save PW1-Pappu alias
Umesh. By that time, the appellant no.1Devi Harijjan had already returned from
home with scissor on the spot, therefore, it
cannot be said that he brought the scissor to
inflict any injury or to kill PW2-Bansilal
rather the intent would have been to teach a
lesson or cause grievous injuries to PW1Pappu alias Umesh not PW2-Bansilal.
Since, PW2-Bansilal steeped in to save
PW1-Pappu alias Umesh, he was caught
hold by the appellant no.2 from behind and
on momentary provocation, three injuries
were inflicted on the injured by the
appellant no.1.

17. Needless to say that injuries
inflicted on the persons of the injured
Bansilal has been proved by PW1-Pappu
alias Umesh and PW2-Bansilal by PW5Dr. R.P. Singh, who has prepared the injury
report and proved it by PW3-Dr. Subodh
Kumar, who has prepared x-ray report and
proved it. However, the intention to cause
death of PW2-Bansilal has not been proved
by the prosecution. As per own case of the
prosecution, PW2-Bansilal was not even
present at the place of occurrence. He came
at the place of occurrence when appellant
no.1 was already there with scissor and
jumped into the fight to save his son.
Therefore, it cannot be said that there was
any intention of the appellants to commit
murder of PW2-Bansilal.

18. From the perusal of the injury
report and also the statements of PW5 -Dr.
R.P. Singh and PW3-Dr. Subodh Kumar, it
is not clear whether the injury is grievous.
No opinion in this regard has been given by
the PW5-Dr. Subodh Kumar, nor any
attempt has been made by the prosecution
to prove that the injury sustained by the
injured P.W.2-Bansilal is grievous. Also,
no record has been gathered by the
prosecution from the hospital so as to
ascertain as to how much time the PW2Bansilal had spent in the hospital. Although
PW2-Bansilal, in his statement, has stated
that he remained admitted in Lambhua
Hospital for about one month.

19. Looking to the injuries suffered
by PW2-Bansilal and the statement of
PW5-Dr. R.P. Singh, in which he has stated
that bleeding in such wound stops after five
to ten minutes, I find that the statement of
786 INDIAN LAW REPORTS ALLAHABAD SERIES
PW2-Bansilal that he remained admitted
more than one month, seems to be
improbable.

20. Learned counsel for the appellants
has relied upon the judgements of Hon'ble
Supreme Court in Sarju Prasad vs. State
of Bihar : AIR 1965 SC 843 and Hari
Kishan and another vs Sukhbir Singh
and others :1988 AIR 2127, wherein it has
been held that in a case under Section 307
Indian Penal Code, the Court has to see
whether the act irrespective of its result was
done with the intention or knowledge and
under circumstances mentioned in that
section. The intention or knowledge of the
accused must be such as is necessary to
commit murder. Without this ingredient
being established there can be no offence of
"attempt to murder". The intention is to be
gathered from all circumstances and no
merely from the consequences that ensue.
The nature of weapon, motive of the crime,
severity of the blow etc. are some of the
relevant factors. The relevant part of Hari
Kishan and another Vs. Sukhbir Singh
and others (supra) is reproduced as
under:-

"On the first question as to
acquittal
of
the
accused
under
s.3O7/149 IPC, some significant aspects
may
be
borne
in
mind.
Under
s.307 IPC 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 that
section. The intention or knowledge or the
accused must be such as is necessary
constitute' murder. Without this ingredient
being established, there can be no offence
of "attempt to murder". Under s. 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.
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 it,determine the intention. In
this case, two parties in the course of a
fight inflicted on each other injuries both
serious and minor. The accused though
armed with ballam never used the sharp
edge of it."

21. In the instant case, the motive of
the crime is not such rather altercation took
place between the accused and P.W.1Pappu alias Umesh for such a pity matter
regarding digging of some onion planted
just outside the house of the injured P.W.2Bansilal. Therefore, this motive cannot be
said to have persuaded the appellants to
commit murder of the injured P.W.2Bansilal. Severity of the blow is also
relevant as no evidence has been adduced
by the prosecution to show that the injury
received was grievous in nature. Most
importantly, the intention of the appellant
no.1 was to assault PW1-Pappu alias
Umesh and PW2-Bansilal was not even in
the picture at that time. When P.W.2Bansilal heard the noise/alarm, he came
outside the house and when he saw that his
son was in danger, he jumped into the fight
to save his son and thus received injuries.
Thus, from the consequence of the event,
which took place in the presence of PW2Bansilal at the spot, appears to be all of
sudden and, definitely, appellant no.1 did
not went inside his house but he returned
with the scissor to make an assault on
PW2-Bansilal rather the intention was to
hit PW1-Pappu alias Umesh, therefore, it
cannot be said that the appellant had the
intention to commit murder of injured
P.W.2.
8 All. Devi Harijan & Anr. Vs. State of U.P.
787

22. From careful evaluation of
evidence adduced by the prosecution and
the material on record, I find that the
intention of the accused/appellant no.1 was
only to inflict the injury and that too on
PW1-Pappu alias Umesh and not on PW2Bansilal, therefore, it cannot be said that
there was any common intention to commit
murder. The weapon i.e. the scissor has
also been recovered. The size and the shape
of the scissor is also not known. In these
circumstances, considering the time of
attack, the fight which erupted for a trivial
issue all of a sudden, as well as the severity
of the blow, it is apparent that the accused
persons committed the offence punishable
under Section 324 alone.

23. Hon'ble Supreme Court in Sarju
Prasad Vs. State of Bihar (Supra) has
held as under:-

 "In this state of the evidence we
must hold that the prosecution has not
established that the offence committed by
the appellant falls squarely under Section
307, I. P. C. In our opinion, it amounts only
to an offence under Section 324, I. P. C".

24. Thus, in order to attract
punishable offence under Section 307
Indian Penal Code, the prosecution is
required
to
prove
the
intention
or
knowledge to commit the murder and the
actual act of trying to commit murder. The
words "such intention" as described under
Section 307 Indian Penal Code refers to the
meaning "intention" referred under Section
300 Indian penal Code. Thus, intention to
cause death, intention to cause such bodily
injury which the offender knows it as likely
to cause death. The intention to cause such
bodily injury, which is sufficient in order to
cross the ordinary course of nature to cause
death. Therefore, the intention to cause
death is essential element to attract the
offence of attempt to murder.

25. In the case of Ramesh Vs. State
of U. P. : AIR 1992 SC Page 664, where a
single injury was found on the back of the
injured, the appeal of accused-appellants
who was tried along with two others was
convicted u/s 307/34 IPC and sentenced to
undergo rigorous imprisonment for four
years, while the two others were acquitted,
was partly allowed by the Apex Court. His
conviction was altered into section 324 IPC
and the sentence was reduced to the period
already undergone with fine of Rs. 3000/-,
which was to be paid to the complainant as
compensation.

26 . In the case of Merambhai
Punjabhai Khachar and others Vs. State
of Gujarat : AIR 1996 SC Page 3236,
there was an attempt to commit murder by
fire arm and a pellet hit the victim,
however, the Apex Court held that Section
307 IPC cannot be held to have been
satisfied and the conviction was altered to
Section 324 IPC.

27. In the instant case, as regards the
injuries are concerned, there is no evidence
on record to show that these injuries could
have been fatal for life of the injured or that
the injuries were caused by the appellants
with intention to kill the injured. Thus, it
clearly shows that there was no intention of
the accused appellants to kill the injured.
Thus, I am of the view that conviction of
the appellants under Section 307 read with
Section 34 IPC cannot be sustained. But, in
fact, the appellants are liable to be
convicted for the offence punishable under
Section 324 IPC.

28. At this juncture, learned Counsel
for the appellants has contended that the
788 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant no.1-Devi alias Harijan died and
his instant appeal has been abated,
however, appellant no.2-Chauthi Harijjan is
alive and is aged about 70 years presently,
whereas the injured P.W.2-Bansilal is also
alive and is aged about 75 years of age
presently. He prays that appellant no.2Chauthi Harijan has not committed any
crime prior to the said incident and,
therefore, he is ''first offender', hence the
benefit of Section 4 of the Probation of
Offenders Act may be given to the
appellant no.2.

29. Learned AGA, on the other hand,
does not dispute the fact that the appellant
no.2 is the first offender but he vehemently
submitted that if the benefit of Section 4 of
the Probation of Offenders Act be given to
the appellant no.2, some restrictions may
be provided so that appellant no.2 may not
repeat such a crime in future.

30. As to whether the appellant no.2
is entitled to get the benefit of Section 4 of
the Probation of Offenders Act or not, I
deem it appropriate to reproduce Section 4
of the Probation of Offenders Act, which
reads as under :-

"4. Power of court to release
certain offenders on probation of good
conduct.-(1) When any person is found
guilty of having committed an offence not
punishable with death or imprisonment for
life and the court by which the person is
found guilty is of opinion that, having
regard to the circumstances of the case
including the nature of the offence and the
character of the offender, it is expedient to
release him on probation of good conduct,
then, notwithstanding anything contained
in any other law for the time being in force,
the court may, instead of sentencing him at
once to any punishment direct that he be
released on his entering into a bond, with
or without sureties, to appear and receive
sentence when called upon during such
period, not exceeding three years, as the
court may direct, and in the meantime to
keep the peace and be of good behaviour:

Provided that the court shall not
direct such release of an offender unless it
is satisfied that the offender or his surety, if
any, has a fixed place of abode or regular
occupation in the place over which the
court exercises jurisdiction or in which the
offender is likely to live during the period
for which he enters into the bond.

(2) Before making any order
under sub-section (1), the court shall take
into consideration the report, if any, of the
probation officer concerned in relation to
the case.

(3) When an order under subsection (1) is made, the court may, if it is of
opinion that in the interests of the offender
and of the public it is expedient so to do, in
addition pass a supervision order directing
that the offender shall remain under the
supervision of a probation officer named in
the order during such period, not being less
than one year, as may be specified therein,
and may in such supervision order, impose
such conditions as it deems necessary for
the due supervision of the offender.

(4)
The
court
making
a
supervision order under sub-section (3)
shall require the offender, before he is
released, to enter into a bond, with or
without sureties, to observe the conditions
specified in such order and such additional
conditions with respect to residence,
abstention from intoxicants or any other
matter as the court may, having regard to
the particular circumstances, consider fit to
8 All. Smt. Kunwari & Ors. Vs. State of U.P.
789
impose for preventing a repetition of the
same offence or a commission of other
offences by the offender.

(5)
The
court
making
a
supervision order under sub-section (3)
shall explain to the offender the terms and
conditions of the order and shall forthwith
furnish one copy of the supervision order to
each of the offenders, the sureties, if any,
and the probation officer concerned."

31. It is relevant to mention here that
Section 360 Cr.P.C. also confers the
powers on the Court to release the accused
on probation for good conduct or after
admonition.

32. For the reasons aforesaid, the
appeal filed by the appellant no.2-Chauthi
Harijan is partly allowed.

The conviction of appellant no. 2,
namely, Chauthi Harijan under Section
307 read with Section 34 IPC and sentence
awarded to him is set aside. However,
appellant no.2 is found guilty for the
offence punishable under Section 324 read
with Section 34 IPC and is convicted
thereunder.

He shall get benefit of Section
4 of Probation of Offenders Act.

He shall file two bonds to the
tune of Rs.20,000/- each coupled with
personal bonds to the effect that he shall
not commit any offence and shall be of
good behaviour and shall maintain peace
during the period of one year. If he is in
breach of any of the conditions, he shall
subject himself to undergo one year
rigorous
imprisonment.
The
bonds
aforesaid
shall
be
filed
by
the
accused/appellant no.2 within two months
from the date of judgement. The time for
submitting the bail bonds shall not be
extended on any ground whatsoever.

33. Let a copy of this judgment along
with original lower Court record be sent to
the
Court
concerned
for
compliance
forthwith.
----------
(2021)08ILR A789
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No 461 of 1992

Smt. Kunwari & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R.B, Sahai, Sri Indra Deo Mishra, Sri
Shri Ram (Rawat), Sri Vishnu Pandey (A.C.)

Counsel for the Opposite Party:
A.G.A.

Indian Penal Code (45 of 1860) - Section
304B
-
Dowry
death
-No
specific
allegation against the appellant no. 2
regarding
demand
of
dowry
and
harassment - PW2 specifically stated in
his cross examination that appellant no. 2
used to oppose the alleged demand of
dowry by husband - Held - prosecution
failed to prove that soon before her death
deceased was subjected to cruelty or
harassment
by
appellant
no.
2
in
pursuance of demand of dowry - appellant
no. 2 entitled to benefit of doubt - Appeal,
allowed (Para 28, 29, 30, 31)

Allowed. (E-4)

List of Cases cited: