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Anonymus (Sr Manager)     10 June 2013

Can an assault be charged under section 307?

My sister was assaulted by a man (one of her client's son) who had been stalking her, sending her unsolicited messages and pestering her for marriage for the last 2.5 years. She is married since Jan 2012.

He attacked her with a sickle (knife used to cut grass) in broad daylight. Luckily her Assistant saw him charge towards her and pulled her away just in time to save her life. She escaped this attack with 3 minor cuts on her neck and shoulder, while the assaulter calmly climbed his motorcycle and rode away.

The assaulter was arrested on basis of the FIR that we lodged and the Police pressed 3 charges against him under Section 354 (assault or criminal force to woman with intent to outrage her modesty), 324 (Voluntarily causing hurt by dangerous weapons or means) and 506 (2) (Punishment for Criminal Intimidation - threat be to cause death or grievous hurt, etc.). He was arrested, and presented in front of the Magistrate on Sunday, 2nd June 2013.  He as later released on Bail. 

The man is obsessive and we are very scared to have him moving free.

Ironically we've been told that the law does not allow us to file an “Attempt to Murder” case (under Section 307) against him considering that her injuries are minor. I’m surprised that a person who has confessed to the police that he had come with an intent to murder, cannot be charged with an “attempt to murder” only because the victim escaped!

I need some advise on the below:

- Can he be Charged for “Attempt to Murder” considering that he had a weapon in his hand and there are witnesses to the incident?

- Can his bail be revoked and he be put in Judicial Custody considering that he is a threat to my sister's life?

- If yes, how can we challenge the charges that have been pressed against him (someone said we could appeal to the High court, but the 1st hearing could take anywhere between 1-2 years)

- Can we procure a Restraining order to not allow the person around my sister's office and Residence.

-  Recommending that he be put through a Medical test and if proven unstable, he be sent to a Mental Asylum.

Please guide- since it's getting to be very difficult to live in peace having him move around free.
 



Learning

 5 Replies

Advocate Deepak Gupta (Lawyer)     11 June 2013

Generally assulted crime section based on doctor report ( PMLC ) ,if in report mention " dengerous to life " then section 307 of the IPC applicable , but INTENTION is main aspect in crime ,  Court having power to amended the charge after seen the chargesheet . If prima facie court think sec 307 of the IPC not applicable , then its a matter of evidence . Appoint lawyer to assist the prosecution case on the behalf of you , and move application through prosecution  for amneding the charge on the basis of INTENTION ( Depend of the chargesheet )  . Rare chance for sec 307 .

If accused violate the condition of bail file complaint to police , on the basis of complaint move to court . bail may be cancelled .

If accused prove medical unstable , he shifted to Mental Asylum. , and court proceeding will stop .

Sonia Dhamija (Advocate)     11 June 2013

Relevant part of Section 307 of IPC (Attempt to murder) is reproduced below:


"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 descripttion 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."

 

Above provision clearly shows that Section 307 may be applicable EVEN IF hurt is not caused, since the section provides for more severe punishment IF HURT is caused. Thus, it is NOT necessary that for Section 307 to be made applicable, there should be a grievous or serious hurt caused to victim. What is needed is the INTENTION or KNOWLEDGE and the CIRCUMSTANCES of the attack. In this case, you've mentioned that there are injuries caused on the neck, which is a vital part of the body. Secondly, the attack and the injuries caused are with a deadly weapon which could have caused death if attack was fully successful. Thirdly, the intention of the person appears to be to cause death. Therefore, it appears to be a case of Attempt to Murder under Section 307 IPC.

 

You may perhaps ask your lawyer to press for modification / alteration of the charges under Section 216 of Cr.P.C., if the charges are already framed. Make an application before the trial court. If need be, thereafter, you can go to High Court with an application under Section 482 of Cr.P.C. for modification of charges.

 

Of course, this process may take time. Meanwhile, if the accused comes out on bail and tries to stalk again or attack again, apply for cancellation of bail.

 

Also know that recently, with effect from 3rd February, 2013, IPC and Cr.P.C. have been amended and a new Section 354D has been inserted in IPC for making Stalking a separate cognizable offence, with a very wide definition of stalking. So, use this section in future, if needed.

Anonymus (Sr Manager)     11 June 2013

Thank you for the advise Sir. Does this mean that even though the injury is not deep, he may still get charged under this section? 

Anonymus (Sr Manager)     11 June 2013

Thank you madam. Appreciate the detailed response.

Sonia Dhamija (Advocate)     12 June 2013

Yes, as I mentioned earlier, the section makes it quite clear. It is clear that Section 307 IPC provides for two different types of punishments. One punishment when NO HURT is caused, and the second (more severe) punishment when HURT IS CAUSED. Thus, it is clear that Section 307 may apply even when there is NOT HURT (though in that case, the punishment will be less as mentioned in the seciton). This being the law, it goes without saying that it can definitely apply when there is a hurt but not so deep. As I mentioned earlier, what is to be seen is the intention (or knowledge) and the circumstances in which the attack is made. For example, when the attack is made with a deadly weapon with an intention to kill and the injury is caused on a vital part of the body (such as head, neck or chest), Section 307 IPC may apply even if the the injury is not deep. Ultimately, of course, evidence will have to be led to prove all this. But, prima facie, it may be applied in such a case. The police may be reluctant in many such cases because they do not want to show that many serious cases are happening in their police station. They want to burk crime. But, as I mentioned earlier, you can try to convince the court for modification of charges in your case.


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