Bombay High Court
Prabhu Limbaji Bade & Anr vs State Of Maha on 12 July, 2016
Bench: A.I.S. Cheema
cria384.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.384 OF 2003
1) Prabhu s/o Limbaji Bade,
Aged-67 years, Occu:Agril.,
R/o-Dukadegaon, Tq-Wadvani,
Dist-Beed,
2) Raosaheb s/o Prabhu Bade,
Aged-37 years, Occu:Agril.,
R/o-Dukadegaon, Tq-Wadvani,
Dist-Beed
...APPELLANTS
(orig. Accused)
VERSUS
The State of Maharashtra,
Through Police Station Officer,
Police Station Dindrud,
Tq-Majalgaon, Dist-Beed
...RESPONDENT
...
Shri S.S. Choudhari Advocate for Appellants.
Shri K.D. Mundhe, A.P.P. for Respondent.
Shri B.S. Kudale Advocate assist to A.P.P.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 15TH JUNE,2016
DATE OF PRONOUNCING JUDGMENT: 12TH JULY, 2016
::: Uploaded on - 13/07/2016 ::: Downloaded on - 13/07/2016 23:58:59 :::
cria384.03
2
JUDGMENT :
1. The Appellants, father and son have been
convicted for offence punishable under Section
307, 341, 323, 504, 506 read with 34 of the Indian
Penal Code, 1860 ("IPC" in brief). For offence
under Section 307 of IPC, they have been sentenced
to suffer rigorous imprisonment for five years and
fine of Rs.500/- each and in default to suffer
further rigorous imprisonment for three months.
For the other Sections, different lesser sentences
of imprisonment and fine have been passed.
Sentence of imprisonment for the various Sections
are to run concurrently. The Judgment of
conviction and sentence was passed by IIIrd Ad-hoc
Additional Sessions Judge, Beed on 8th May 2003 in
Sessions Case No.24 of 2002.
2. The case of prosecution, in short, is as
follows:-
(A). On 1st March 2001 complainant Nathoba
cria384.03
Bade (PW-1) along with Vishnu Bade (PW-11) were
admitted in the Civil Hospital, Beed. Police
Official Sukhdeo Landge (PW-13) attached to the
Police Outpost, received M.L.C. letter and he met
the medical officer. The medical officer examined
PW-11 Vishnu but he was unconscious and as PW-1
Nathoba was in conscious condition, PW-13 Sukhdeo
Landge recorded statement of PW-1 Nathoba. PW-1
Nathoba informed the Police that he and his
brother Vishnu reside at Dukdegaon, Tq-Wadvani
Dist-Beed. They do agricultural work and business
in she-goats. He gave particulars of their family
and that he has 12 acres land, out of which 32
Gunthas were purchased about eight years back from
one Asaram Bade (PW-8) and they constructed a Wada
i.e. house at that place. The land has Survey No.1
and since time of purchase they are in possession.
Adjoining that field on the western side, accused
No.1 Prabhu Limbaji Bade and accused No.2 Raosaheb
Prabhu Bade have their field. They have been
asking for way from the field purchased by the
cria384.03
complainant. They filed a case in Civil Court
against the complainant and his brother two months
before the incident. Still, as the complainant and
his brother did not give way, they have been
abusing and threatening to kill. Out of fear
complainant had not taken any action against the
accused. On 1st March 2001 complainant and his
brother Vishnu had gone to Kuppa, Tq. Wadvani,
Dist. Beed for their business and at about
7.30 p.m. they were returning home. They were
proceeding from market towards their house and
reached Hanuman Temple. The accused have their
house near the temple. When complainant and his
brother Vishnu reached near the temple, both the
accused obstructed their way and asked as to why
they had purchased 32 Gunthas land from Asaram
Nana Bade (PW-8) and why from their Wada they were
not giving way to the accused. So saying accused
No.1 Prabhu with the help of knife he had, stabbed
on the head of PW-11 Vishnu on the right side near
ear with the object of killing him causing deep
cria384.03
injury. Vishnu fell down unconscious in a pool of
blood. At that time complainant put himself on the
person of Vishnu. Seeing this, Accused No.2
Raosaheb with the help of stick he had, gave blows
on the left arm and right leg thigh, asking him to
go aside as they want to kill Vishnu. When this
was happening, Asaram Karpe (PW-10), Sukhdeo Karad
(PW-6) Sudhakar Karpe (PW-5), who were nearby,
came on the spot and intervened. They took the
complainant and his brother Vishnu to Police
Station Dindrud and as Vishnu was serious, the
Police immediately sent them, with one constable,
to Civil Hospital Beed where they were taking
treatment. The brother was still unconscious (when
the statement was given by the complainant).
(B). The statement so recorded of the
complainant (PW-1) was forwarded by PW-13 Sukhdeo
Landge to PW-9 Kazi Mujiboddin (Head Constable) at
Police Station and in the same night at about 2.30
a.m. crime came to be registered at 19/2001 in the
cria384.03
date of 2nd March 2001. The investigation was
handed over to P.S.I. Shankar Citikar (PW-14). In
the same night this P.S.I. arrested both the
accused and in the morning went to the spot and
prepared the spot panchnama Exhibit 29 between
7.00 - 7.30 a.m. He recorded statements of
witnesses. On 3rd March 2001 he seized clothes of
both the accused vide Panchnamas Exhibit 31
and 32. The clothes of complainant, injured
Nathoba (PW-1) and his brother Vishnu (PW-11)
which were blood stained, were seized on 4th March
2001 at about 10.00 a.m. vide Panchnama
Exhibit 34. The accused were in custody and PW-14
P.S.I. Citikar interrogated them. In presence of
Panchas they stated that they want to give
discovery of the knife used in the incident as
well as the stick which was used. Memorandum
Exhibit 35 was recorded at about 10.45 a.m. on 4th
March 2001 and the accused persons took the Police
and Panchas to their home. Accused No.1 Prabhu
gave discovery of the knife - cum - kukri hidden
cria384.03
in dung-pit and accused No. 2 gave discovery of
stick which was concealed behind a tin sheet in
his house. Panchnama Exhibit 36 came to be drawn.
The Investigating Officer collected blood samples
of the accused as well as the complainant and
PW-11 Vishnu and the same were sent to C.A. The
reports were received from C.A. and the
examination of the articles which were seized as
well as the blood samples. Completing the
investigation, the Police filed Charge-sheet and
the accused came to be prosecuted.
(C). At the time of trial, in answer to the
charge for offence under above Sections, the
accused pleaded not guilty. Their defence as
appearing from cross-examination of witnesses and
statement under Section 313 of the Code of
Criminal Procedure is that they have old enmity
with the complainant and his brother. It is
claimed that they had strained relations with the
witnesses who came to be examined as eye witnesses
cria384.03
as well as the Panchas. They have strained
relations with one Eknath Avadh who works as human
rights activist and at his instigation the offence
was registered against the accused. The
complainant and his brother were robbed on the way
while coming to the village and took opportunity
to attribute their injuries to the accused.
3. The trial Court, after considering the
evidence discussed the same and has found the
accused persons guilty of the Sections mentioned
above and sentenced them to various imprisonments
and fine.
4. I have heard learned counsel for the
Appellants - accused persons. The learned counsel
referred to the oral evidence of witnesses. It has
been submitted by the learned counsel that there
was long standing enmity between the complainant
and his brother with the accused persons. There
were various cases pending between the accused on
cria384.03
one side and the complainant and other villagers
and witnesses on other side. One Eknath Avadh is
connected with human right movement and he brought
about false case against the accused persons. The
witnesses examined by the prosecution were of the
opposite group of the accused. The injuries
suffered by the complainant and his brother were
simple injuries, but the witnesses exaggerated the
incident. According to the learned counsel, no
independent witness has been examined. It is
argued that PW-12 Dr. Kailas deposed that the
injury suffered by PW-11 Vishnu was not such so as
to cause any abnormality in the body. The counsel
submitted that the accused deserve to be
acquitted.
5. Per contra, the learned A.P.P. argued
that the evidence of the various witnesses
examined shows that there were strained relations
between the complainant and his brother with the
accused persons and due to such strained relations
cria384.03
the accused persons were angry and that was the
motive for them to attack the complainant and his
brother. The injury inflicted was on the vital
part of body of PW-11 Vishnu and the same was
inflicted by knife. Because of this, intention and
knowledge can be attributed to the accused persons
that they had intention to kill Vishnu and offence
under Section 307 of IPC was rightly established.
The learned A.P.P. submitted that the Appeal
deserves to be dismissed.
6. Regarding the incident, prosecution
examined the complainant PW-1 Nathoba Bade who
proved the F.I.R. filed by him at Exhibit 26. The
other witnesses examined regarding the incident
are PW-5 Sudhakar Karpe, PW-6 Sukhdeo Karad, PW-7
Baban Avadh, PW-8 Asaram Nana Bade, PW-10 Asaram
Tulshiram Karpe and the injured PW-11 Vishnu
himself.
7. Collectively read, the evidence of PW-1
cria384.03
complainant Nathoba and his brother PW-11 Vishnu
Bade shows that on the day of incident (1st March
2001) they had gone to Kuppa. As per PW-10 Asaram
Karpe this place is about 2½ k.ms. away from their
village Dukdegaon. Complainant and his brother
deposed that after finishing their work at Kuppa,
in the evening they were returning and reached
near the Hanuman Temple. The spot panchnama
Exhibit 29 as well as the evidence of witnesses
shows that the accused persons have a house near
the Hanuman Temple. As per the spot panchnama, to
the west of the spot there is also house of PW-8
Asaram Bade. Even otherwise, the spot panchnama
shows that at short distance there was common well
where villagers fetch water. The evidence of
various witnesses also shows that the villagers
visit Maruti Temple. The time was about 7.30 a.m.
Thus, the presence of various villagers on such
road of the village is natural. As per Spot
Panchnama it was stone and mud road and place of
heavy commuting and no special marks were found.
cria384.03
8. The evidence of complainant and brother
shows that when they reached near Hanuman Temple,
accused person were there on the eastern side of
the road. The evidence of PW-11 Vishnu shows that
both the accused obstructed him and his brother in
front of the temple and at that time Accused No.2
Raosaheb had a stick in his hand and the accused
persons asked them why they had purchased 32
Gunthas land from PW-8 Asaram Bade and why they
were not giving way to the accused from the Wada.
The evidence of these witnesses shows that at such
time Accused No.1 Prabhu took out a knife and gave
a blow on the head of PW-11 Vishnu. PW-11 Vishnu
claims that because of blow he felt giddiness and
fell down. PW-1 Nathoba (complainant) has deposed
that blow was given on the left side of the head
of PW-11 Vishnu, which injury was above the ear
and because of the injury blood started oozing.
According to PW-1 Nathoba, because of the blow
given, PW-11 Vishnu shouted loudly and he went to
cria384.03
rescue of his brother and fell on his body.
According to him at that time Accused No.2
Raosaheb gave two stick blows on his left back
side and on his waist towards back side, which hit
him on the left buttock. According to the
complainant in the course of incident, accused
No.1 Prabhu was saying that these both the
brothers to be finished once for all.
9. The evidence of complainant and his
brother shows that the villagers gathered and
intervened. These witnesses have given names of
the persons who intervened. The F.I.R. also has in
it recorded some names. The evidence of
complainant and his brother gets corroboration
from different witnesses. PW-5 Sudhakar Karpe
deposed that he was going so as to buy kerosene
and got attracted due to shouting because of
quarrel and heard the shout "Melo Baba" (i.e. - I
am dying). According to him, he saw both the
accused abusing the complainant and his brother.
cria384.03
His evidence is that he saw that blow of knife had
been given to PW-11 Vishnu and that Vishnu had
fallen down and blood was coming out from his
injury and the complainant had fallen on his body
while Accused No.2 Raosaheb gave stick blows to
the complainant. PW-5 Sudhakar Karpe claimed that
seeing this, he along-with PW-8 Asaram Bade and
PW-6 Sukhdeo Karad intervened in the quarrel. Such
evidence of Sudhakar is corroborated by PW-6
Sukhdeo Karad as well as PW-8 Asaram Bade. There
is corroboration from PW-7 Baban Avadh also. PW-7
Baban has deposed that accused asked complainant
and his brother as to why they were not giving way
from their land. Even PW-7 Baban corroborated the
other witnesses that Accused No.1 did give knife
blow on the head of PW-11 Vishnu and when
complainant tried to protect his brother by
covering him, Accused No.2 Raosaheb had given
stick blows to the complainant. These witnesses
are further corroborated by another person PW-10
Asaram Tulshiram Karpe. He has also given similar
cria384.03
evidence.
10. PW's 5 to 8 and PW-10 were extensively
cross-examined by the counsel for the accused. It
is suggested to PW-5 Sudhakar Karpe that he is
friend of complainant and his brother Vishnu. The
suggestion has been denied by the witness. It was
suggested to PW-6 Sukhdeo Karad and he fairly
accepted that he is son of maternal uncle of the
complainant and his brother. However, his evidence
that he is resident of the said village Dukdegaon
is not denied. I have already referred to the spot
which is road near temple and near public well.
Gathering of villagers at such place in the
evening in a small village is not surprising. PW's
5, 6 and PW-10's presence on spot is recorded in
F.I.R. also. It was suggested to PW-7 Baban Avadh
and he accepted that he is a worker of Human
Rights Abhiyan in Beed District and that one
Eknath Avadh is their leader. He denies that he
and Eknath Avadh are the directors of the said
cria384.03
Abhiyan. He accepted that earlier he had filed a
case against both the accused persons. It was
suggested to PW-8 Asaram Bade that accused had
filed suit against him regarding the way. This
witness appears to be vendor of 32 Gunthas land to
the complainant and his brother, which appears to
be bone of contention between the complainant and
the accused persons. It was suggested to PW-10
Asaram Tulshiram Karpe that in the disputes
between the complainant and his brother at one
side and the accused in other, in various
Panchnamas he has signed the same. The witness,
however, denied such suggestion.
. Going through the cross-examination of
these various witnesses, although the accused
tried to show that some of the witnesses had
strained relations with them, it does not appear
that the witnesses were giving evidence of some
imaginary incident. Although cross-examined, no
material contradictions or omissions appeared to
cria384.03
have been proved so as to discard evidence of so
many witnesses. The Investigating Officer was not
asked about any omissions or contradictions in
statements of witnesses. Evidence of these
witnesses shows that when due to interventions the
assault was stopped, some of these witnesses
started taking the victim Vishnu, who was
unconscious, towards village Kuppa so that
complainant and his brother could be taken to
hospital. PW-6 Sukhdeo Karad rushed by cycle to
Kuppa and brought a Jeep by which time the
witnesses had brought PW-11 Vishnu to some
distance and then put him in Jeep. The evidence
shows that the complainant and his brother, who
was not conscious, were taken to some hospital at
Kuppa but doctor was not there and so they went
ahead to Police Station Dindrud. Evidence of these
witnesses shows that on seeing the condition of
PW-11 Vishnu, Police first asked them to proceed
to the Civil Hospital and after they were admitted
at the Hospital, PW-13 Sukhdeo Landge recorded the
cria384.03
statement which was converted into F.I.R. In the
cross-examination of witnesses, it has been tried
to show that these people had first gone to the
Police Station before they were sent to the
hospital and they had some talk with the police. I
find that when the citizens after becoming victim
of such incident rush to the Police Station and
have at hand a person who appears to be seriously
injured, if the police instead of first sitting
down to write F.I.R., advices the persons to first
go to hospital and save life of the injured, that
by itself can not be subject of criticism or fact
good enough for raising doubts. The evidence shows
that incident had occurred at about 7.30 p.m. in
the village Dukdegaon and after trying a hospital
at Kuppa, the complainant and injured had reached
the Civil Hospital Beed after knocking the door of
the Police Station. The statement of complainant
was recorded, as per the evidence of PW-13 Sukhdeo
Landge, at about 10.30 p.m. at the hospital.
Initially it appears to have been recorded as if
cria384.03
it was a dying declaration taking endorsement of
doctor, which does not appear to have been
necessary looking to the fact that the complainant
was not seriously injured. However, looking to
this, it does not appear that it could be said
that there was delayed F.I.R.
11. Regarding the injury of PW-11 Vishnu,
there is evidence of PW-12 Dr. Kailash Dudhal read
with the medical certificate Exhibit 54 which was
issued by him. It appears that the doctor examined
PW-11 Vishnu in the same evening of 1st March 2001
at about 10.00 p.m. and found one incised wound at
right side of the occipital region. It was injury
which was 7 X 2 c.m. The doctor deposed that he
had found incise wound at the right side of
occipital region and the X-ray was required to be
taken of the skull of PW-11 Vishnu. As per the
doctor, injury was possible by sharp edged weapon
like knife. The doctor, of course, has deposed
that by the injury of Vishnu, death was not
cria384.03
possible.
12. PW-12 Dr. Kailash deposed that he
examined the complainant Nathoba also and found
that he had a contusion to his left elbow.
Complainant deposed that he was hit on his left
back side. Then he deposed of a blow which fell on
his buttock. May be, it did not show on his
buttock or he did not show it to the Doctor.
13. There is evidence of PW-3 Panch
Vijaykumar Shinde and the evidence of
Investigating Officer PW-14 Citikar which shows
that the clothes of both the accused persons were
seized on 2nd March 2001 vide Panchnamas Exhibit
31 and 32. Blood stained clothes of complainant
and PW-11 Vishnu were seized on 4th March 2001
vide Panchnama Exhibit 34, which is proved by PW-4
Sheshrao Avadh as well as PW-14 P.S.I. Citikar.
Evidence of PW-14 P.S.I. Citikar shows that seized
articles as well as blood samples were sent to
cria384.03
C.A. The C.A. report Exhibit 64 shows that the
clothes of the injured PW-11 Vishnu had various
blood stains. The oral evidence of witnesses is
that the complainant had tried to cover his
brother at the time of assault and in the process
his own clothes suffered blood stains. The C.A.
report Exhibit 64 shows blood stains also to the
clothes of the complainant. The kukri-cum-knife or
dagger sent to the C.A. also had blood stains
which was human blood but the group could not be
deciphered. The clothes of the complainant and his
brother had blood group "O" and C.A. report
Exhibit 67 shows that the blood group of PW-11
Vishnu was "O". Thus, there is evidence showing
that in the incident, PW-11 Vishnu suffered
bleeding injury and his blood fell on his own
clothes as well as on the clothes of his brother,
complainant Nathoba.
14. The evidence of PW-4 Sheshrao and the
evidence of PW-14 P.S.I. Citikar shows that the
cria384.03
accused persons while in custody, gave statement
Exhibit 35 to show where concerned knife and stick
were. The evidence of these witnesses shows that
the accused took Panchas and Police to their house
and as per the evidence of PW-14 P.S.I. Citikar
the knife - cum - kukri was seized from dung-pit
from where it was taken out by accused No.1 Prabhu
and accused No.2 Raosaheb produced the stick which
was concealed behind tin sheet. In this regard,
Panchnama Exhibit 36 came to be recorded.
15. The trial Court considered all this
evidence and found the witnesses examined to be
reliable. Trial Court dealt with the defence put
up by the accused persons and discarded the claim
that the complainant had constructed the house on
Government road. It found that there were strained
relations due to the complainant and his brother
purchasing 32 Gunthas land from PW-8 Asaram Bade.
The trial Court referred to the Regular Civil Suit
No.230 of 2000(Exhibit 85) filed by the accused
cria384.03
persons against the complainant and his family
raising dispute of way. The dispute between the
parties shows that the accused persons did have a
motive to assault the complainant and his brother
as they found that inspite of long standing
dispute raised and even filing of suit, the
complainant and his brother were not conceding.
Trial Court discussed the copies of various other
litigations filed, to discuss and discard them as
not linked to the complainant and his brother. The
trial Court also found that there was no material
to show that the complainant and his family had
taken part in "Manav Hakk Abhiyan". Trial Court
found that the evidence of various witnesses
corroborated the complainant and injured PW-11
Vishnu. The argument that PW-5 Sudhakar Karpe had
friendly relations with the complainant and Vishnu
and so he was deposing, was discarded. Trial Court
reasoned that evidence of PW-5 Sudhakar appears to
be natural. Although it was suggested that PW-6
Sukhdeo Karad was relative of complainant, the
cria384.03
trial Court found the witness to be reliable. The
argument that PW-7 Baban had filed criminal case
against the accused was also considered by the
trial Court, but the trial Court still found that
the witness could have been present at the time of
incident. Trial Court found the testimony of PW-7
Baban to be natural and that he was trustworthy
and could not be discarded only because he has
filed some case against the accused. Similarly,
the trial Court discarded the argument that PW-8
Asaram Bade deserved to be disbelieved as he had
sold land to the complainant. Trial Court had
found that various witnesses had referred to the
presence of PW-8 Asaram Bade. (Even otherwise,
this witness had a house at the spot concerned and
his presence at that place was most natural,
looking to the place and time.) Trial Court found
that there was nothing on record to show why the
evidence of PW-10 Asaram Karpe could be said to be
not trustworthy, believable and acceptable. Trial
Court thus, discussed the witnesses and accepted
cria384.03
their evidence rejecting defences raised. Trial
Court further accepted the other evidence and
recorded various reasons to discard the defence.
It also found that there was no delay in filing of
the F.I.R. and concluded that the offence had been
proved.
16. Going through the evidence of witnesses,
I also find that the prosecution has duly proved
that the accused persons, due to earlier strained
relations, did wrongfully restrain PW-1 and PW-11
on their way home and cause bleeding injury to
PW-11 Vishnu and the complainant was also given
stick blow.
17. The evidence shows that the accused
persons wrongfully restrained the complainant and
his brother and voluntarily caused hurt by means
of knife - cum - kukri to PW-11 Vishnu and by
stick to the complainant. However, regarding
holding the accused guilty for offence under
cria384.03
Section 504 and 506 of IPC, as has been done by
the trial Court, I do not find that there is much
material. Although the complainant PW-1 Nathoba
deposed in his evidence that accused No.1 Prabhu,
at the time of incident stated that both these
brothers need to be finished of once for all, the
F.I.R. claims that when the complainant tried to
cover his brother, he was told to go aside as
Vishnu is to be killed, there is no clear
corroboration regarding what exact criminal
intimidation was committed. The trial Court while
recording reasons, took up all the Sections
together for discussion and does not appear to
have shown as to how Section 504 of IPC was made
out. There is no clear evidence regarding how the
accused persons provocatively insulted the
complainant and his brother so as to prove Section
504 of IPC. Thus the accused need to be acquitted
for the offence punishable under Sections 504 and
506 of IPC.
cria384.03
18. Coming to the main Section of 307 of IPC,
it is necessary to consider the evidence of PW-12
Kailash. This witness, no doubt, deposed that
PW-11 Vishnu had incise wound to the right side of
occipital region and the X-ray of the skull was
required to be taken, but he clearly deposed in
the examination-in-chief itself that after
perusing the injury of Vishnu, he found that there
was no possibility of death due to the said
injury. In the cross-examination he accepted that
the injury of PW-1 Nathoba was simple. In fact he
accepted that the injury of PW-11 Vishnu was
superficial and would not even cause any
abnormality in the body. Inspite of such evidence,
the trial Court found that there was intention to
commit murder of PW-11 Vishnu. It relied on the
case of State of Maharashtra vs. Balram Bama Patil
and others, reported in A.I.R. 1983 Supreme Court
305 to observe that to prove offence under Section
307 of IPC, it is not necessary that bodily injury
capable of causing death should have been
cria384.03
inflicted. Trial Court observed that it was not
necessary that the injury caused by the accused to
the injured should be sufficient to cause death of
the person assaulted. Thus, the trial Court found
that Section 307 of IPC was made out.
. Trial Court appears to have kept in view
only the head-note. It would be proper to note
observations of Hon'ble Supreme Court in Para 9 of
the Judgment in the case of State of Maharashtra
vs. Balram Bama Patil and others, cited supra,
which are reproduced:-
"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
cria384.03
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
this 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."
. I find that the less gravity of injury
would not by itself be decisive when the relevant
fact is that with knife the assault was made on
the head. But the question is whether there was
intention to kill. Assault on the head with the
knife would, no doubt, indicate intention to cause
injury on the vital part of body, but then it
would be a matter of consideration in each matter
cria384.03
to see what are the facts and the impact of facts
collectively. In the present matter, although
there is evidence of accused No.1 Prabhu giving
knife blow near the head of PW-11 Vishnu, it was
only a superficial injury which was caused and
there is no evidence to show that accused No.1
Prabhu made any other or repeated attempt to cause
injury against PW-11 Vishnu. No doubt the
complainant did intervene to save his brother, but
still there is no further act of assault
attributed to accused No.1 Prabhu. Even if other
villagers got attracted due to the shout of PW-11
Vishnu when he was injured, it is not a case that
instantly after the first assault the accused was
physically obstructed and held and stopped from
making any further attack. Thus, collectively
seeing these facts, it is difficult to calculate
that the accused No.1 Prabhu and accused No.2
Raosaheb had intention to kill PW-11 Vishnu. Thus,
I do not concur with the trial Court that offence
under Section 307 of IPC was established.
cria384.03
19. Thus, it would be necessary to scale down
the Sections proved. As it was only a simple
injury which had been caused with the help of
instrument like knife which was recovered from the
accused and has been identified by various
witnesses, looking to the cutting instrument, as
only simple injury was caused to PW-11 Vishnu, the
offence proved must be held to be under Section
324 of IPC. Offence under Section 323 read with 34
of IPC must be also held to be proved looking to
the assault by stick at the hands of accused No.2
against the complainant.
20. For above reasons, I pass the following
order:-
O R D E R
(I) The Criminal Appeal is partly
allowed.
cria384.03
(II) The conviction of the Accused No.1
Prabhu and Accused No.2 Raosaheb under
Section 307 read with 34 of the Indian
Penal Code is converted into conviction
under Section 324 read with 34 of the
Indian Penal Code, 1860 and both the
accused are sentenced to suffer rigorous
imprisonment for three years and to pay
fine of Rs.5000/- (Rupees Five Thousand)
each and in default, to suffer further
rigorous imprisonment for three months by
such of the accused who does not deposit
fine.
(III) The conviction and sentence
against both the accused persons under
Section 341 and 323 read with 34 of the
Indian Penal Code, 1860 as imposed by the
trial Court, is maintained.
cria384.03
(IV) The conviction and sentence against
both the accused persons under Section
504 and 506 read with 34 of the Indian
Penal Code, 1860 as imposed by the trial
Court is quashed and set aside.
(V) Both the accused are acquitted of
the offence punishable under Section 504,
506 read with 34 of the Indian Penal
Code, 1860. Fine, if paid on this count,
shall be considered while calculating
fine imposed supra.
(VI) Sentences of imprisonment to run
concurrently.
(VII) The Criminal Appeal is accordingly
disposed of.
[A.I.S. CHEEMA, J.]
asb/JUN16
