CR.A/46019/1987 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 460 of 1987 With CRIMINAL APPEAL No. 461 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT Versus MANGUBHA K JADEJA ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant MR CHIRAG M PAWAR for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/46019/1987 2/4 JUDGMENT Date : 21/07/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Two appeals have been preferred by the State of Gujarat against the judgment and order dated 8.5.1987 passed by the Additional Sessions Judge, Kutch at Bhuj in Sessions Case No.51 of 1986. Criminal Appeal No.460 of 1987 challenges the acquittal of the respondent – original accused for the offence punishable under Section 307 of the IPC and Criminal Appeal No.461 of 1987 is for enhancement of sentence awarded by the trial Court of six months to the respondent while convicting him under Section 323 of the IPC. The case of the prosecution is that on 22.5.1986, Accused – Mangubha was taking his cousin, Nitin, to the gin for getting him a job. Both left their home together at about 7 AM. On the way, at about 12 noon, accused is alleged to have taken Nitin on the side of the road and throttled him. The accused is further alleged to have pushed Nitin to the wall of a nearby well and thereafter pushed him into the well by giving him a kick on his stomach. The accused is also alleged to have thrown stones inside the well to prevent Nitin from coming out. The accused then left the place leaving Nitin in the well. After about couple of hours, from hearing the shouts for help, Vanka, PW 3 and Sultanji, PW 4 are stated to have pulled him out of the well. A complaint was lodged by Nitin and on completion of the investigation the accused was put on trial for the offence punishable under Section 307 of IPC. Heard Mr Maulik Nanavati, learned Additional Public Prosecutor for the State and Mr Chirag Pawar, learned advocate for the respondent – accused. The trial Court, relying on the evidence of complainant – Nitin, who sustained injuries, Vanka Kana and Sultanji, who brought Nitin out of the well and the evidence of Dr Anil Singh, PW 2, who examined Nitin, found the act of the accused was not such that if not prevented or intercepted, it would be sufficient to cause death of the victim and that the other main ingredients of CR.A/46019/1987 3/4 JUDGMENT offence under Section 307 – an intention of knowledge of committing murder, is absent acquitted the accused of the charge under Section 307 of IPC and considering the nature of the injuries sustained by Nitin convicted the accused under Section 323 of the IPC and sentenced him to six months' imprisonment. An attempt to commit a crime is an act done with intent to commit the crime and forming part of series of acts which would constitute its actual commission if it were not interrupted. The offender may do an act towards the commission of an offence of murder, but may involuntarily fail or be intercepted from consummating the crime. If a person knows that a certain result would ensue from his act, he would be deemed to intend such result by his act. If a man commits an act with such intention and knowledge and under such circumstances that if death had been caused, the offence would have amounted to murder and the act itself is of such a nature as would have caused death in the usual course of events, but for something beyond his control which prevented that result, his act would be punishable as an attempt to murder. What the court is to see whether the act irrespective of its result was done with the intention or knowledge or under the circumstances mentioned in the Section. Intent, which is a state of mind can never be precisely proved by direct evidence as a fact: it can only be deduced or inferred from other facts. Some relevant considerations are the nature of weapon, the place where the injuries were inflicted, the nature of the injuries caused, and the opportunity available which the accused gets. In the present case, it appears from the evidence on record that despite having sufficient time and opportunity, the accused has not caused any grievous hurt or such injury as would have resulted in death of the accused. The doctor who examined injured Nitin noticed only two injuries on his body – a cut on the upper lip and an abrasion on the right forearm. He has opined both the injuries to be simple in nature. These injuries do not disclose any intention on the part of the accused to cause death of Nitin. No other evidence has been led by the prosecution to prove existence of requisite mens rea on the part of the accused. In absence of cogent evidence, we are of the opinion that the learned Sessions Judge was right in not convicting the accused under Section 307 of IPC. CR.A/46019/1987 4/4 JUDGMENT We are informed that no appeal has been preferred by the accused challenging his conviction under Section 323 of IPC. The incident is of the year 1986 and almost two decades have passed since then. Therefore, considering the nature of injuries inflicted by the accused on the victim and the efflux of time, we are not inclined to entertain the appeal for enhancement and interfere with the quantum of punishment awarded by the trial Court. In the result, both the appeals must fail and are accordingly dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd