Attempt to murder - Offence governed, not by the injury alone, but by the intention of assailant.

Rajive Bhalla, J.

1. Prayer in this petition filed under Section 401 of the Cr.P.C. is for setting aside the order dated 14.3.2006 passed by the Additional Sessions Judge, Ludhiana, framing charges against the petitioner under Sections 452, 307, 34, 467 of the IPC.

2. Counsel for the petitioner contends that the learned trial Court erred in framing charges under Section 307 of the IPC. A perusal of the evidence collected by the prosecution and the allegations levelled in the FIR do not disclose the commission of an offence punishable under Section 307 of the IPC. It is further contended that as no injury was inflicted, no offence under Section 307 of the IPC was made out. It is further argued that in the absence of an injury suffered by the complainant the petitioners act would be a mere attempt to commit an offence therefore, the learned trial Court erred in framing charges under Section 307 of the IPC against the petitioner. Reliance is placed upon a judgment titled as Sagayam v. State of Karnataka, 2000(2) RCR(Criminal) 840.

3. Counsel for the State of Punjab, on the other hand, submits that the existence of an injury is not necessary for the commission of offence under Section 307 of the IPC. The nature of the offence under Section 307 of the IPC is governed not by the injury alone but by the intention of the assailant. The nature of the injury or the absence thereof is only a circumstance, for or against the commission of an offence under Section 307 of the IPC. The absence of an injury, cannot by itself be the sole circumstance, to hold that petitioner could not be charged for the commission of an offence under Section 307 of the IPC.

4. I have heard learned counsel for the parties and perused the paper book.

5. As per the evidence, collected by the prosecution, the petitioner picked up a sword and attempted to inflict a blow upon the complainants head. At the opportune moment, the complainant bent down and the sword hit the ground. On the basis of the evidence collected by the prosecution, the learned trial Court held that there was sufficient material on record to frame charges against the petitioner under Section 307 of the IPC.

6. I express my inability to accept the contentions raised by counsel for the petitioner. The absence of an injury cannot be the sole circumstance to conclude that charges cannot be framed under Section 307 of the IPC.

7. Section 307 of the IPC titled as "Attempt to murder" reads as follows :-

"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."

Illustration (d) to Section 307 reads thus :-

"(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in As keeping. A has not yet committed the offence defined in this section. A places the food on Zs table or delivers it to Zs servants to place it on Zs table. A has committed the offence defined in this section."

7.Section 307 of IPC, requires the commission of an overt act with intention or knowledge that if his act had caused death it would amount to murder. The second part of Section 307 of IPC prescribes punishment, if hurt is caused.

8. Para 6 of the judgment relied upon by counsel for the petitioner namely Sagayam v. State of Karnataka, 2000(2) RCR(Criminal) 840, reads as follows :-

"To justify conviction under this Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution t