A.S.Bains, J. - (1.) THIS petition is directed against the order of the learned Additional Sessions Judge, Bhatinda, dated May 2, 1980, vide which he has found prima facie case under sections 458, 323/34 and 336 of the Indian Penal Code against the respondents. Since these offences are triable by a Judicial Magistrate 1st Class, the learned Additional Sessions Judge directed the accused to be sent to the Court of the Chief Judicial Magistrate for proceeding with the case in accordance with law.
(2.) SHRI Mittal, learned counsel for the complainant contended that the charge is made out under section 307 of the Indian Penal Code as there is a firearm injury on the left thumb of the petitioner caused by the respondents and that they entered his house during night time. According to the medical evidence, the injury on the left thumb of Smt. Tulsa Devi was simple and it did not seem to be a firearm injury. Precisely, for this reason, the learned Additional Sessions Judge did not frame a charge under section 307 of the Indian Penal Code. Although offence under section 307 of the Code can be made out even if there is no injury. What has to be seen for framing the charge under section 307 of the Code is whether the accused had he intention to cause the murder of the victim or atleast had the knowledge that such an injury would cause death of the victim. In Sarvinder Singh alias Chinda and another v. The State : (1976) 78 P.L.R. 867:, (1976) 3 Cri. L.T. 588, Full Bench of this Court has observed as under: - In our opinion intention or knowledge is not to be measured by the consequence, it has to be gathered from all the surrounding facts and circumstances. If an act is done with the intention or knowledge requisite for the commission of the offence of murder and, if there are no circumstances introducing a defence to a charge of murder either by why of a general or special exception the offence would be attempt to murder, if the act does not result in death, whatever be the reason for the act not resulting in death whatever be the nature of the injuries and even if no injuries are caused The requisite intention, or knowledge is not to be excluded from the mere fact that death is not the consequence of the act Such an act may not result in death for a variety of reasons such as, the ineffectiveness of the weapon the ineffectiveness of the assailant the movement of the victim, the intervention of a sudden obstruction etc. It is true that the mere act of firing a gun need not necessarily had to the inference of the requisite intention or knowledge necessary to make the offence one of murder A person may fire a gun in the air intending to frighten some one, a person may aim and shot at some one's leg, intending to cause injury to the leg, a person may discharge a gun from a distance of 300 yards knowing that the maximum range of the gun in 30 yards. In such or similar situations, one may not draw the inference of the requisite intentions or knowledge for the commission of the offence of murder. But, if a person shoots at another at a sufficiently close range of if a person fires a loaded canon at a crowd of persons the requisite intention or knowledge can be readily inferred. Such an intention or knowledge cannot be refused to be inferred merely because the act does not result in the death of any one either because the weapon is defective or because the powder is or the pellets too small or because only a few pellets strike the victim, the aim of the assailants being poor, or because the victim is so lucky that no vital portion of the body is injured or expert medical attention available on the spot saves his life and so on................. I have persued the First Information Report lodged by the complainant's husband. It is alleged that the respondents entered the house and one of them fired at the complainant and then they ran away. If they had any intention to commit the murder of the complainant, they would have fired at some vital part of the body or if they missed the vital part in the first shot, they would have fired more shots than one. In the circumstances, I am of the opinion that prima facie, the case does not come within the ambit of section 307 of the Indian Penal Code and the learned Additional Sessions Judge has rightly not charged them under section 307 of the Indian Penal Code. The medico legal report runs as under: - One lacerated wound on the distal phalanx of the thumb 1" x 1" in size. The part of the limb along with the overlying nail is cut. Fresh bleeding from the wound present. In view of the medical report, it is open to the trial Court to reframe the charge whether the offence comes under section 325, 323 or 326 of Indian Penal Code.
(3.) WITH the foregoing observations, the petition is dismissed.;