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2013 DIGILAW 181 (BOM)

Dinkar Namdeo Sawant v. State of Maharahstra

2013-01-22

ABHAY M.THIPSAY

body2013
JUDGMENT This appeal is directed against the judgment and order delivered by the Additional Sessions Judge, Karad, in Sessions Case No.7 of 2011, convicting the appellant, who was an accused in the said case, of an offence punishable under Section 307 of the Indian Penal Code (IPC), and sentencing him to suffer Rigorous Imprisonment for Ten years and to pay a fine of Rs.5,000/-, in default, to suffer Simple Imprisonment for Three months. 2. The prosecution case as put forth before the trial court was as follows: The first informant Shamrao Bandu Sawant (PW3), a retired Assistant Sub Inspector of Police, had some ancestral agricultural land at Sawantwadi, and on 22.10.2010 he had come to his village for harvesting of crops. That, on 24.10.2010, he came from Kalgaon to Kolewadi for some personal work. That, at about 12.30 p.m., he came at Talmawale for returning to Kalgaon. However, he could not get the bus and therefore, was looking for the availability of a jeep for going to Kalgaon. While he was making inquiries about the jeep, a blow was inflicted on his neck from backside. He turned around and saw the appellant. The appellant gave two more blows on his head. Shamrao tried to avoid the blows by raising his hand, but in that process, he sustained an injury on his left palm. Shamrao knew the appellant, and therefore, asked him as to why he had assaulted Shamrao, on which the appellant replied that he (Shamrao) had spoiled the life of his (appellant's) sister, and that, therefore, the appellant had assaulted Shamrao. The appellant's sister Balabai Achare (PW7) - who had met him earlier, but who was not present at the time of assault having gone elsewhere - came there. The appellant and Balabai went to a doctor, who advised Shamrao to go to Karad immediately. Accordingly, Shamrao went to Karad and got admitted in Krishna hospital. His statement was recorded by the police from Karad City Police Station (Exhibit 25). Thereafter, police from Dhebewadi Police Station came there and they also recorded his statement (Exhibit 26), which was treated as First Information Report (FIR). Shamrao was admitted in hospital for about eight days. 3. After completion of investigation, charge-sheet was filed against the appellant, who, as aforesaid, came to be convicted on holding a trial. 4. I have heard Mr. Thereafter, police from Dhebewadi Police Station came there and they also recorded his statement (Exhibit 26), which was treated as First Information Report (FIR). Shamrao was admitted in hospital for about eight days. 3. After completion of investigation, charge-sheet was filed against the appellant, who, as aforesaid, came to be convicted on holding a trial. 4. I have heard Mr. K.S. Patil, the learned counsel for the appellant, and Mr. J.P. Kharge, the learned APP for the State. With their assistance, I have gone through the entire evidence adduced before the trial court. 5. Totally eight witnesses were examined by the prosecution during the trial. The first witness is Dr. Hemlata Joshi (PW1), Medical Officer at Krishna Hospital, who had examined the appellant. The second witness Sachin Taigade (PW2) is a panch, in respect of the disclosure statement allegedly made by the appellant before the police, leading to recovery of a sickle. He, however, did not support the prosecution and was declared hostile. The third witness is Shamrao Bandu Sawant (PW3) - the first informant and the injured himself. He narrated the incident in his evidence and also identified the appellant as the culprit. The fourth witness is Jagannath @ Raghu Mahadeo Yadav (PW4). He had seen Shamrao bleeding after the incident and had taken him to Dr. Botre's hospital, from where Shamrao was taken to the hospital at Karad. The fifth witness Adhikrao Pawar (PW5), A.S.I., who was working at Dhebewadi Police Station at the material time, is the one who had recorded the statement of Shamrao (Exhibit 26), that was treated as FIR. The sixth witness Sadashiv Sawant (PW6), who was supposed to have seen the incident and thus an eye witness, but he did not support the prosecution case and was declared hostile. The seventh witness Balabai Achare (PW7) is the sister of the appellant. But admittedly, she has not seen the actual incident. The eighth and the last witness is A.P.I. Hemant Shedge (PW8), who is the Investigating Officer in the matter. He speaks of seizure of the clothes of the appellant in the presence of panchas and the recovery of sickle - which is stated to be the weapon of assault, pursuant to the information disclosed by the appellant to the police. 6. In the course of arguments and while reading the evidence on record, Mr. He speaks of seizure of the clothes of the appellant in the presence of panchas and the recovery of sickle - which is stated to be the weapon of assault, pursuant to the information disclosed by the appellant to the police. 6. In the course of arguments and while reading the evidence on record, Mr. K.S. Patil, the learned counsel for the appellant, submitted that he was not disputing the fact that the appellant had indeed attacked the said Shamrao, and caused injuries to him. He submitted that it was not possible to challenge that finding in the light of the evidence that has been adduced before the trial court. He, however, submitted that he was emphatically contending that there was no case of an offence punishable under Section 307 of the IPC, on the facts proved before the trial court. He also contended that Shamrao could not be relied upon as an absolutely truthful witness, in as much as, the account of the assault and of the injuries as given by him, does not match with the medical evidence with respect to such injuries. 7. In view of the concession made by the learned counsel for the appellant, I do not intend to discuss the evidence showing that the appellant had indeed assaulted Shamrao with a sickle. It is sufficient to observe that the evidence of Shamrao, which is corroborated by the evidence of other witnesses, does not leave any doubt in that regard. 8. This brings us to the question as to whether the offence committed by the appellant would be one punishable under Section 307 of the IPC. 9. Section 307 of the IPC defines and provides punishment for the offence of "attempt to murder." It punishes the doing of an act with such intention or knowledge, and under such circumstances, that if death would be caused by that act, the person doing the act would be guilty of murder. Thus, same intention or knowledge that would be an ingredient of an offence of murder, would be required on the part of the offender, for holding him guilty of an offence punishable under Section 307 of the IPC. Thus, it is the intention of the offender or the knowledge that can be attributed to him, would be the crucial aspect in determining whether the case would fall under the penal provisions of Section 307 of the IPC. Thus, it is the intention of the offender or the knowledge that can be attributed to him, would be the crucial aspect in determining whether the case would fall under the penal provisions of Section 307 of the IPC. 10. It is contended by the learned counsel for the appellant that the injuries in this case are minor. His emphasis was on this aspect when he contended that no case of an offence punishable under Section 307 of the IPC was made out against the appellant. 11. The evidence of the Medical Officer Hemlata Joshi (PW1) shows that the victim Shamrao had sustained the following injuries: 1) C.L.W. over left hand involving thumb palm index finger size. 10 X 3 cms. muscle deep with evidence of cut muscle bleeding present. 2) Incise wound 2 in number over left hand palm 3) Incise wound left cheek size - 5 x 0.5 cms. 4) Incise wound right hand over fifth finger 5) C.L.W. right parietal region 6 x 2 cms. This witness has stated that the nature of injury no. 1 above, was “grievous”, and the others were simple. The reason for terming this injury as “grievous” as given by the witness is that muscles were cut. 12. Mr. Kuldeep Patil, the learned counsel for the appellant, contended that this opinion of the Medical Officer cannot be accepted. According to him, merely because muscles were cut, the injury could not be termed as “grievous.” 13. I have considered the matter. 14. In law, there is nothing like a “grievous injury.” What law contemplates is “grievous hurt.” Injuries could be simple, minor, serious or dangerous in medical terminology, but to call an injury as “grievous” does not appear to be very scientific. What is a “grievous hurt” is a matter of law and not of medicine. Section 320 of the IPC defines what “grievous hurt” means. Unless the hurt that has been caused can be shown to be falling under any of the eight categories enlisted in the said section, it may not be possible to term any injury as having caused or amounting to “grievous hurt.” It is true that cutting of muscle does not seem to be falling under any of the eight categories mentioned in Section 320 of the IPC. The medical evidence does not show that the injuries, or any of them, were falling in one or more of the eight categories mentioned in Section 320 of the IPC. 15. It is true that what is significant is the intention and/or knowledge of the offender and not the injuries inflicted by him as such. However, the intention, or even the existence of knowledge, on the part of the offender can be gathered only from various factors, including the nature of injuries caused. It is because intention or knowledge would necessarily be an inference drawn on other facts. If there would be no other evidence of the intention, it has to be gathered basically from the injuries inflicted by the offender. 16. In this case, there are some factors which make it difficult to hold that the appellant possessed the necessary mens rea to bring the act within Section 307 of the IPC. For the offence punishable under Section 307 of the IPC, all the elements or ingredients of the offence for murder must exist, except the fact of death. In the instant case, admittedly, no motive could be suggested on the part of the appellant to do away with the victim Shamrao. There is also no evidence that the appellant knew that Shamrao was likely to be at the place in question, at the material time, and this makes the possibility of the attack to be a planned one difficult to accept. Also, the fact that a crowded place was selected for the assault is prima facie inconsistent with the intention to cause death of Shamrao. Under these circumstances, when from the injuries themselves, no intention of causing the death of Shamrao can be gathered, it would be hazardous to hold the appellant guilty of an offence punishable under Section 307 of the IPC. 17. In my opinion, therefore, on the facts proved, the appellant can be said to be guilty only of an offence punishable under Section 324 of the IPC. 18. 17. In my opinion, therefore, on the facts proved, the appellant can be said to be guilty only of an offence punishable under Section 324 of the IPC. 18. In view of this, though the substantive sentence imposed upon the appellant is liable to be reduced, in the facts and circumstances of the case, I am inclined to impose an appropriate sentence of fine upon him, so that the victim Shamrao can be suitably compensated for the pain and sufferings that must have undergone by him, on account of the injuries, from the amount of fine. 19. The Appeal is partly allowed. 20. The conviction of the appellant with respect to the offence punishable under Section 307 of the IPC and the sentence imposed therefor is set aside. 21. Instead, the appellant is convicted of an offence punishable under Section 324 of the IPC and is sentenced to suffer Rigorous Imprisonment for Eighteen months, and to pay a fine of Rs.30,000/-, in default to suffer Rigorous Imprisonment for Nine months. 22. If fine is recovered, an amount of Rs.25,000/- therefrom, shall be paid to the victim Shamrao, as and by way of compensation. 23. The appeal is disposed of in the aforesaid terms. Appeal partly allowed.