IMPORTANT POINTS
Inflicting bodily injury capable of causing death is not necessary for invoking section 307.
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.

JUDGMENT :

Rohinton Fali Nariman, J.

1. This is an appeal filed by Accused No.4 – appellant herein who was convicted under Section 34 read with Section 307 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 8th January, 1990. In an appeal preferred to the High Court of Madhya Pradesh at Jabalpur, the 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 1, the informant, Man Singh was sitting in a Bettle Shop, and the appellant came there with 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 1'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 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.

3. The deposition of injured eye-witness PW 1 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. PWs 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 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 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 of all, according 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 not 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 in any case, even if conviction be sustained, be sentenced to the period already undergone, which we are 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 witnesses, has made it clear that both the Judgments are correct. Indeed, the appellant appears to have got away lightly.

7. 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 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 law has been laid down as follows :-

“For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done