SIMARJIT KAUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS petition is directed against the order dated May 17, 2002 passed by the Additional Sessions Judge, Hoshiarpur, vide which the application of the petitioner for conversion of the charge under Section 304, Indian Penal Code, framed against respondent Nos. 2 to 5, to that under Section 302, Indian Penal Code, was declined.

(2.) THE occurrence in this case is alleged to have taken placed on June 11, 2001 and Balbir Singh (husband of the petitioner) died on June 23, 2001. All the injuries, which were 8 in number, were allegedly caused with Lathis on non-vital parts of the body. Dr. N.K. Singh (P.W.4), Medical Officer, Civil Hospital, Dasuya, who medically examined Balbir Singh deceased on June 11, 2002, found following injuries on his body :-

(3.) A look at the injuries would show that all the injuries were on non-vital parts of the body and the weapon of offence used by the accused was Dang. Thus, the seat of the injuries suffered by Balbir singh deceased and the weapon of offence used by the accused go to show that the accused never intended to cause his death. For framing a charge under Section 302, Indian Penal Code, mens area to kill the deceased is one of the essential ingredients, which is altogether missing in the present case. In the case reported as Kapur Singh v. State of Pepsu, AIR 1956 S.C. 654, it was held by their Lordships of the Supreme Court that "the fact that no injury was inflicted on any vital part of the body of the deceased, goes to show that in the circumstances of the case, the intention of the appellant was not to kill the deceased outright.." Ultimately, it was held that the appellant in the said case should have been convicted under Section 304(1) and not under Section 302, Indian Penal Code. On the same footing are the facts of the present case. In case the accused intended to kill the deceased they would have caused injuries on the vital part of the body and some deadly weapon would have been used by them for inflicting the injuries, which go to show that the accused, who were four in number, never intended to take the life of the deceased. Rather their intention was only to incapacitate him.