BAPPA ALIAS BAPU

THE STATE OF MAHARASHTRA AND ANR.

AUGUST 5, 2004

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

Penal Code, 1860-Section 307-Prosecution under--Conviction by Courts below on the basis of evidence of the injured-On appeal, heid: Conviction justified--Conviction under the Section can be justified if an C intent complied with some overt act in execution thereof is present-It is not essential that the injury capable of causing death should' have been inflicted-There is distinction between the act of the accused and its result-However, sentence reduced to 5 years.

It was alleged that appellant-accused, alongwith PW-10 had gone D to watch cinema and while returning, he, all of a sudden stabbed PW-

10 on his stomach and back and started pressing his neck. On cry for help villagers gathered and caught hold of the appellant-accused. He was found guilty of offence punishable under Section 307 IPC and was sentenced for 10 years RI and fine. His appeal was dismissed by High E Court.

On appeal, appellant contended that in view of the nature of injuries, offence could not be relatable to Section 307; and that sentence of 10 years was harsh.

Partly allowing the appeal, the Court

HELD : I.I. Accused appellant has been rightly convicted for offence punishable under Section 307 IPC. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with G some overt act in execution thereof. 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 H cases, be ascertained without any reference at all to actual wounds. The

BAPPA ALIAS BAPU v. STATE OF MAHARASHTRA [PASAYAT, J.]353

Section makes a distinction between the act of the accused and its A 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. An attempt in order to be criminal need not be the penultimate act. [355-A-C)

Sarju Prasad v. State of Bihar, AIR (1965) SC 843; State of B Maharashtra v. Bairam Barna Patil and Ors., (1983] 2 SCC 28; Girija Shankar v. State of UP., JT (2004) 2 SC 140 and Vasant Vithu Jadhav

v. State of Maharashtra, (2004) AIR SCW 1523, relied on.

2. Though the injuries inflicted on the victim were of serious C nature. But considering the background facts and peculiar features of the case, custodial sentence of 5 years rigorous imprisonment would meet the ends of justice. (355-G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. D 798 of 2004.

From the Judgment and Order dated 4.6.2002 of the Bombay High Court in Cr!. A. No. 94 of 1990.

Makarand D. Adkar, Vijay Kumar, Anurag Kishor and Vishwajit E Singh for the Appellants.

Ravinder Keshavrao Adsure for the Respondents.

The Judgment of the Court was delivered by F ARIJIT PASAYAT, J.: Leave granted.

The appellant was convicted for offence punishable under Section 307 of the Indian Penal Code, 1860 (in short the 'IPC') and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000 with default stipulation. It was further directed that in case the fine was G deposited, an amount of Rs. 2,000 was to be paid to the injured person as compensation One Rao Saheb Nagorao Khose also faced trial under Section 307 read with Section I 09 IPC. He was acquitted by the Trial Court. But appellant's appeal before the Bombay High Court, Aurangabad Bench did not bring any relief to the appellant.

SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A Prosecution version as unfolded during trial is as follows :

Accused Bappa alias Bapu (A-1) alongwith Bibhishan (PW-10) had gone to cinema to witness a movie and were coming back by bicycle.

Suddenly the appellant got down from the bicycle and stabbed Bibhishan B on his stomach and back and started to press his neck. Hearing his cries for help some villagers came running. The accused tried to run away from the spot but was caught by the villagers and handed over to the police.

Victim was taken to the hospital. Two other persons, one of whom, namely, Rajabhau, as noted above, was charged for commission of offence punishable under Section 307 read with Section 109 IPC. On the basis of C the first information report lodged, investigation was undertaken and charge-sheet was placed. On consideration of the evidence on record, more particularly that of the victim, learned Assistant Sessions Judge found the appellant guilty of offence punishable under Section 307 IPC, and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of D Rs. 5,000 with default stipulation. The accused preferred an appeal before the Bombay High Court, Aurangabad Bench. The same was dismissed by the impugned judgment.

According to the learned counsel for the appellant, keeping in view the nature of the injuries sustained, the offence cannot be said to be one E covered by Section 307 !PC but one relatable to Section 324 or Section

326 !PC. Alternatively it was submitted-titatthe custodial sentence of 10 years as has been imposed is harsh.

Learned counsel for the State on the other hand submitted that the trial Court and the High Court have analysed the factual position in detail, F and the accused has been rightly convicted for offence punishable under

Section 307 !PC. Keeping in view the nature of the injuries sustained, it cannot be said that the sentence is excessive.

Section 307 !PC reads :

"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 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

SAPPA ALIAS BAPU v. STATE OF MAHARASHTRA [PASAYAT, J.]355

either to imprisonment for life, or to such punishment as is A hereinbefore mentioned;"

It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overtact in execution thereof. It is not essential that bodily injury capable of causing death should have been B 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 Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, C 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.

In Sarju Prasad v. State of Bihar, AIR (1965) SC 843 it was observed D that the mere fact that the injury actually inflicted by the accuseg did not cut any vital organ of the victim, is not itself sufficient to take the act out of the purview of Section 307 !PC.

The above position was highlighted in State of Maharashtra v. E Bairam Barna Patil and Ors .. [1983] 2 SCC 28, Girija Shankar v. State of U.P., JT (2004) 2 SC 140 and Vasant Vithu Jadhav v. State of Maharashtra, (2004) AIR SCW 1523.

In view of the aforesaid analysis the accused appellant has been rightly convicted for offence punishable under Section 307 !PC.

The residual question is whether a sentence of 10 years rigorous imprisonment is justified. No. doubt, as noticed by the trial court and the

I High Court injuries inflicted on the victim were of serious nature. But considering the background facts and peculiar features of the case, G custodial sentence of 5 years rigorous imprisonment would meet the ends of justice.

Appeal is partly allowed to the extent as noted above,

K.K.T.

Appeal partly allowed.