Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 403 (MP)

Poshram Patel v. State Of M. P.

2000-04-19

S.P.KHARE

body2000
JUDGMENT S.P. Khare, J. 1. Appellant Poshram Patel has been convicted under Sections 307 and 354, IPC and sentenced to rigorous imprisonment for five years and two years respectively. 2. After hearing the learned counsel for both the sides and after carefully considering the evidence on record, this Court is of the opinion that the conviction of the appellant for the aforesaid offences is unassailable. Ku. Janki Jangade (P.W. 1) is a school teacher and aged about 24 years. She has deposed that on 7-10-1996 at 10.00 A.M. she was going to the school in village Bhanetara. She was walking and when she reached between village Amoda and Hasaud she saw accused Poshram Patel emerging from a paddy field. He caught hold of her hand and started dragging her towards the field. He pressed her breast and wanted to commit rape on her. She shouted 'Bachao Bachao'. Thereupon the accused dealt a 'Hathaura' (Hammer) blow on her head. The injury on the head started bleeding profusely. On hearing her noise a lady known as Kartikmati came there and took her to some distance. She called Arvind (P.W. 2) and Dojram (P.W. 3). They took her to Malkharoda Police Station. She lodged the report (Ex. P-1). She was then sent for medical examination. Her dying declaration was recorded by a Magistrate when she was in the hospital. Arvind (P.W. 2) and Dojram (P.W. 3) have deposed that they were told by Janaki (P.W. 1) that accused Poshram tried to outrage her modesty and assaulted her with a hammer. These two witnesses have tried to make themselves as eye witnesses to the incident, but it is clear from the evidence of Janaki (P.W. 1) that they reached near the place of incident after the assault. 3. Dr. R.S. Mishra (P.W. 7) has deposed that he had examined Janaki (P.W. 1) on 7-10-1996 and found a lacerated wound 6 cm x 1 cm x 1 cm bone deep on her right parietal region. It was caused by a hard and blunt object. It was a grievous injury. The brain matter was visible from the injury. His report is Ex. P-8. There was fracture of the parietal bone. Dr. S. Chatterji (P.W. 6) has deposed that on 9-10-1996 he had taken X-ray of the skull of Janaki (P.W. 1) and found fracture of the right parietal bone. His report is Ex. It was a grievous injury. The brain matter was visible from the injury. His report is Ex. P-8. There was fracture of the parietal bone. Dr. S. Chatterji (P.W. 6) has deposed that on 9-10-1996 he had taken X-ray of the skull of Janaki (P.W. 1) and found fracture of the right parietal bone. His report is Ex. P-7 and X-ray plate is Ex. P-7-A. From the evidence discussed above, it is found that the testimony of Janaki (P.W. 1) finds sufficient corroboration from the prompt FIR (Ex. P-1) and the medical evidence. It is established that the accused outraged the modesty of Janaki (P.W. 1) and when she resisted and shouted the accused dealt a hammer blow on her head causing fracture of the parietal bone from which the brain matter was visible. The conviction of the appellant under Sections 354 and 307, IPC is well merited. 4. The main argument of the learned counsel for the appellant is that the offence under Section 307, IPC is not made out as there was no attempt to commit the murder of Janaki (P.W. 1). It is contended that at the most the offence under Section 325, IPC alone is established and therefore the appellant who has already suffered imprisonment for about one year and four months should now be let-off. It has been found that the accused dealt a hammer blow on the head of the prosecutrix when she tried to wriggle out of the onslaught on her modesty. She was a school teacher. She was going alone to her school. The accused was hiding himself in a field. He was armed with a Hathaura. It was a lethal weapon when it was used on the head of the prosecutrix. Even clinically the fracture could be seen and the brain matter was visible to the doctor. The head is a vital part of the body. Sufficient force was used by the accused. Therefore, it cannot be said that the offence under Section 307, IPC is not established. The learned counsel for the appellant has relied upon the decisions of the Supreme Court in Sarju Prasad v. State of Bihar ( AIR 1965 SC 843 ), Jainarain v. State of Bihar ( AIR 1972 SC 1764 ) and Pashora Singh v. State of Punjab ( AIR 1993 SC 1256 ). The learned counsel for the appellant has relied upon the decisions of the Supreme Court in Sarju Prasad v. State of Bihar ( AIR 1965 SC 843 ), Jainarain v. State of Bihar ( AIR 1972 SC 1764 ) and Pashora Singh v. State of Punjab ( AIR 1993 SC 1256 ). Reference has also been made to the decision of Nagpur High Court in Provincial Government v. Abdul Rahman (AIR 1943 Nagpur 145). The principle which was applied in these cases is not different from that which was laid down by the Supreme Court in State v. Balram ( AIR 1983 SC 305 ). In this case it has been held by the Supreme Court that to justify a conviction under Section 307, Indian Penal Code, 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. 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. It was held that the High Court was not correct in acquitting the accused of the charge under Section 307, IPC merely because the injuries inflicted were in the nature of simple hurt. 5. In the present case from the nature of the weapon used, the motive for commission of the offence, the nature and size of the injury, the part of the body of the victim on which it was inflicted and the severity of the blow are important factors which have been taken into consideration in coming to a finding whether the case under Section 307, IPC is made out or it is limited to the offence under Section 325, IPC. On a consideration of all these circumstances, this Court is of the opinion that the offence under Section 307, IPC is made out. In any case even if the argument of the learned counsel for the appellant is accepted that the offence under Section 325 alone is established, the sentence for this offence keeping in view the facts and circumstances of the case should not be less than four years of rigorous imprisonment. It is well settled and it has been recently reiterated in State of U.P. v. Chandrika ( AIR 2000 SC 164 ) that the sentence commensurate with the crime committed by the accused is required to be imposed upon him. The accused molested a school teacher on way to her school by emerging from a field and wanted to satisfy his lust. The degree of his criminality is enhanced when he attacked the teacher with a hammer on her head when she shouted for her rescue. It has been emphasised time and again by the Supreme Court that the Court must deal with such crime against a woman with utmost sensitivity. The conviction under Sections 307 and 354, IPC is maintained. Keeping in view all the aspects of the case, the sentence of rigorous imprisonment of five years for the offence under Section 307, IPC is reduced to four years. With this modification in the sentence, the appeal is dismissed.