1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. REVISION APPLICATION NO. 01 OF 2009 Sopan s/o Vithalrao Shinde, aged 48 years, Occupation Service, Resident of Vivekanand Nagar, Hingoli, District Hingoli Applicant V E R S U S 1. The State of Maharashtra 2. Ramdas s/o Trimbakrao Kawrakhe, aged 40 years, Occupation Teacher, Resident of Yogiraj Gruhnirman Sanstha, Laxminagar, Hingoli, Taluka and District Hingoli. 3. Bhagwat s/o Sogaji Kale, aged 50 years, Occupation Teacher, Resident of as above. Respondents Mr. S.P. Chapalgaonkar, Advocate for the applicant Mr. T.S. Lodhe, APP for the respondent No.1/ State Mr. P.N. Kalani, Advocate for the respondents No.2 and 3 CORAM : A.V. NIRGUDE, J. DATED : 8th October , 2010 2 ORAL JUDGMENT 1. This revision is filed against the concurrent findings recorded by the Courts below that the applicant had committed offence punishable under Section 307 and 324 of the Indian Penal Code. The facts leading to the impugned Judgments, are as under : 2. The incident of assault took place on 17th November, 2003, at about 08.30 p.m., in front of a restaurant. The complainant and his friend, PW 5 Bhagwat, had dinner there, and when they came out, the applicant assaulted them with a knife. Both of them sustained injuries. The complainant and his friend were rushed to a hospital, and due to timely medical treatment, they were saved. The offence was registered under Section 307, 324 of the Indian Penal code against the applicant and the applicant had arrested. After the charge-sheet was filed, the case was committed to the Court of Sessions. 3. The learned Assistant Sessions Judge tried the case. He recorded statements of eight prosecution witnesses. Out of them, PW No. 2 and 5 are important, because they sustained injuries. They gave graphic details as to how the incident took place. In their depositions, reveal following details of the incident. The applicant and his friend were sitting in a restaurant having dinner, the complainant and his friend PW 5 Bhagwat were also having their dinner in the same restaurant. Probably these two groups saw each other in the restaurant. No sooner the complainant and PW 5 Bhagwat came out of the restaurant Bhagwat, went to urinate, leaving the complainant alone in front of the restaurant. At that time, the applicant assaulted the complainant with a knife in his hand. He inflicted several blows of knife on his person. The complainant raised alarm, and hearing him, his friend Bhagwat rushed 3 to his rescue. However, the applicant inflicted a blow of knife on his arm too, which prevented Bhagwat from taking further part in the incident. Bhagwat also sustained bleeding injury on his forearm. Before the other eye witnesses could intervene, the applicant had left the spot. The Courts below believed the case of the prosecution in respect of the assault, and after going through the record, as well as, the Judgments of the Courts below, I am convinced that there is no error in appreciating the evidence of the prosecution in respect of assault. 4. The first question that is required to be answered in this case is, whether the prosecution could prove the case of attempt to commit murder, even if the assault is proved? The prosecution witness No. 7 was examined for proving the injuries sustained by the victims. He stated that on his examination, that the complainant was found to have sustained following injuries : (1) Incised injury, 10 x 2 cms over left side of chest, caused by hard and sharp weapon. (2) Incised injury, 8 x 2 x 0.5 cms over left side of neck, caused by hard and sharp object. (Injury was found fresh). (3) Incised injury, 4 x 1 cms (Horizontal) over right forearm, caused by hard and sharp object. (4) Incised injury, 1 x 0.5 cms (Horizontal) over right forearm, caused by hard and sharp weapon. (5) Incised injury, 5 x 1 x 0.5 cms over left side of forehead, caused by hard and sharp weapon. (6) Incised injury, 4 x 1 x 0.5 cms over left occipital region, caused by hard and sharp weapon. (7) Incised injury, 6 x 0.5 x 0.2 cms over right cheek, caused by hard and sharp weapon. (8) Incised injury, 0.5 x 0.5 cms over right side of chest, caused by 4 hard and sharp weapon. In the cross-examination, this witness admitted that on radiological examination of the complainant, nothing abnormal was found in the region of head and chest. This witness, however, mentioned that all the above mentioned injuries were grievous in nature. Obviously, this witness did not know the definition of the term ‘grievous injury’, mentioned in Section 324 of the Indian Penal code. From the description of the injuries, it is obvious that all these injuries were simple in nature. I am assuming that these injuries were caused by a knife like weapon. The other victim of the applicant was PW 5 Bhagwat, had sustained only one injury on his forearm over his wrist. This injury was incised injury of size 5 x 2 x 3 cm. The witness again described this injury also as grievous one. The witness however added further that due to this injury 'flexer' muscle was found cut, radial artery was injured and tendon was found injured. Although this injury looks more serious in nature than the injury sustained by the complainant, even this injury cannot be said to be grievous one. 5. The prosecution has further amply proved that the applicant had used a knife while committing the offence. This knife was recovered at his instance. It was sent for medical examination, and, it was found stained with the blood of victim’s blood group. Thus, it is clear that the prosecution has successfully proved that the applicant had caused as many as eight injuries on the person of the complainant and one injury on the person of PW 5 Bhagwat. In view of this material against the applicant, both the Courts below unequivocally held that this was a case of attempted murder. Both the Courts below held that since the injuries were inflicted on chest, neck and head, which are vital parts of the body, and, the intention to cause death was eminent on the part of the applicant, and so, the 5 offence punishable under Section 307 of the Indian Penal Code is made out. In order to explore this question further, one has to first read the provisions of Section 307 of the Indian Penal Code. Section 307 of the Indian Penal Code reads as under : Section 307- Attempt to murder : 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 or 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 is 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. 6. In this case, as said above, it is proved that the applicant had used a weapon like knife for the assault. So, the nature of knife would certainly go against him and user of such weapon would go to suggest that the applicant had either intention to cause death of the victim or had knowledge that an injury caused by such weapon would likely to cause death of his victim. However, the nature of injuries that the victims suffered would not support the prosecution case if they intent to prove the offence of attempted murder against the applicant. As observed above, all the injuries sustained by the complainant are of superficial nature. There were two injuries on the head of the victim. Both were simple in nature. They were cuts only of muscle depth. The third injury is on chest. The other injuries were on non- vital parts and were also superficial in nature. Had the assailant intended to cause death of the victim, he would have stabbed the 6 victim on the vital parts of his body. It has come in the evidence that the complainant, the victim of the applicant, was completely unaware of the assault when the applicant pounced on him from the backside. If the victim was so vulnerable, the applicant could have certainly stabbed him on the back or on the neck. Assuming, the victim turned to the assailant suddenly, the applicant could have stabbed him from the front side in his chest. Despite of these opportunities, if the applicant could not inflict piercing blows on the person of the victim, it cannot be said that he had intention to cause his death. The learned Advocate appearing for the applicant rightly placed reliance on the Judgment of Supreme Court in the case of Parsuram Pandey v. State of Bihar (AIR 2004 S.C. 5068). In this Judgment, the Supreme Court discussed as to what would constitute an offence under Section 307 of the Indian Penal Code. The Supreme Court observed as under : “14. To constitute an offence under Section 307 two ingredients of the offence must be present :- (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. 15.For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence ‘of attempt to murder’. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact. It can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries 7 and the circumstances in which the incident took place.....” 7. On the other hand, the learned Advocate appearing for the original complainant placed reliance on the Judgment of Supreme Court in the case of Hari Mohan Mandal v. State of Jharkhand (2004 AIR SCW 3621). Even in this Judgment, the Supreme Court considered as to when an offence under Section 307 would be constituted. The Supreme Court held as under : “To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. 11. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing 8 death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 8. I have discussed above, how the nature of injuries, the circumstances in which the incident took place and the nature of weapon used by the applicant, would not make out a case of his intention to cause death of the victim. The applicant thus is entitled to acquittal for the offence punishable under Section 307 of the Indian Penal Code. I am not inclined to disturb his conviction under Section 324 of the Indian Penal Code and the sentence of Rigorous imprisonment of one year and fine amount of Rs.500/- looking to the nature of injuries and nature of weapon used by the applicant. Hence, the order : ORDER 1. The Criminal Revision Application is partly allowed. 2. The conviction and sentence of the applicant under Section 307 of the Indian Penal Code is set aside. 3. The impugned Judgment and order of conviction and sentence of the applicant under Section 324 of the Indian Penal Code is confirmed. 9 4. The applicant is present in person before this Court. He be taken in custody and sent to Jail. 5. The amount of fine deposited by the applicant for the offence punishable under Section 307 of the Indian Penal Code be refunded to him. ( A.V. NIRGUDE, J. ) SRM/CRA/1/09/81010/ok