1997 ALL MR (Cri) 951
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHNU SAHAI AND R.P. DESAI, JJ.
Shri Vasant Vithu Jadhav Vs. The State Of Maharashtra
Criminal Appeal No.335 of 1984
31st January, 1997
Petitioner Counsel: Ms. V. R. BHOSALE
Respondent Counsel: Ms. POURNIMA KANTHARIA
(A) Evidence Act (1872), S.3 - Interested witness - His testimony cannot be mechanically rejected - It must be scrutinised with caution. AIR 1965 SC 202 Rel. On. (Para 15)
(B) Evidence Act (1872), S.3 - Criminal trial - appreciation of evidence - Bullet hitting iron cot - Some of the pieces may hit a person standing nearby. (Para 17)
(C) Penal Code (1860), Ss.307, 324 - Offence under - Accused threatening his cousin that he would kill him - After two days accused from a very close range of 6 to 8 feet firing a rifle shot on the victim who was sleeping on the cot - Said shot, however, struck the iron strips of the cot, the bullet broke and three pieces struck the victim - Held accused had both the intention to kill and the knowledge that he was likely to kill him and he was liable to be convicted not under S.324 but under S.307. (Paras 27, 28)
(D) Penal Code (1860), S.307 - Sentence - Police constable firing a shot at his cousin who was sleeping on a cot in guard room situated in District Police Headquarters - Bullet hitting the cot and pieces of bullet causing simple injuries to victim - Held accused being a member of police force a deterrent sentence was called for - 10 Years R.I. awarded. (Para 31)
2. Vide Judgment and Order dated 31-3-1984, passed in Sessions Case No.92 of 1983, the Additional Sessions Judge, Sangli, acquitted the accused for a charge under Section 307 IPC and instead, convicted and sentenced him to undergo a separate sentence of 1 years R.I. under Sections 324 IPC and 27 of the Arms Act. The said sentences were directed to run concurrently.
The accused aggrieved by the said conviction and sentence has preferred Criminal Appeal No.335 of 1984.
The appellant-The State of Maharashtra, in Criminal Appeal No.525 of 1984, aggrieved by the acquittal of the respondent for the offence under Section 307 IPC, has impugned the said acquittal by preferring an appeal under Section 378(1) Cr.P.C.
The victim Vilas Jadhav, P.W.2 was cousin of the accused Vasant Jadhav. Both of them at the time of the incident, were serving as Police Constables in Sangli.
It is alleged that there was a long standing enmity between them. The evidence of Vilas Jadhav is that he and his family members on the one hand and the accused and his family members on the other were not on talking terms since 1975. On 2-7-1983, Vilas's brother Bhagwan was married. In the said marriage, family members of the accused were not invited. It appears that they took afront to this. It is said that about 2 1/2 months prior to the incident, father of the accused had given a feast in the name of the deity, wherein despite being invited Vilas's family members, did not join. This appears to further soured the relationship. It is further alleged that on 16-7-1983, when Vilas and his relation Shankar Kikade P.W.9, were returning from roll call to their rooms, the accused came from behind on a cycle and sought an explanation from Vilas for not calling him at his brother's marriage and for not attending the feast which, he (accused) had given in the honour of the deity. He threatened to kill Vilas in two days. Thereafter, he went away on a bicycle.
4. The evidence is that Vilas was residing in Room no.19, with his family members, in Sangli Police Headquarters. In the same premises, the accused was also residing. It is said that in the police Headquarters, there is a guard room and a Magazine Room which are practically adjoining. On the date of the incident, namely 18-7-1983, at different times, Vilas and the accused are said to have been in the Guard room duty and Magazine Room duty respectively. The evidence on record substantiated by the documentary evidence is that the victim Vilas was on Guard Room duty from 12 a.m. to 2 a.m. and the accused was on Magazine Room duty from 2 a.m. to 4 a.m. A perusal of the site plan Exhibit 13 shows that the guard room and the magazine room were more or less contiguous. In the said plan, guard room is shown by D and Magazine Room is shown by E. The evidence is that on 18-7-1983, after 2 A.M. the victim Vilas and Head constable Pundalik Jadhav, P.W.1, were sleeping on two separate cots in the guard room. Some tube-lights were burning outside the guard room and the same resulted in visibility therein. It is said that at about 3.30 A.M. the accused came in the band room where constable Vishnu Bansode was sleeping; woke him up; and enquired from him where his bullets were. He told him that he had returned them to Pundalik Jadhav, P.W.1. The accused went away. It is alleged that 25 minutes later i.e. at 3.55 A.M. Vilas and Pundalik heard sound of firing and when they got up, they discovered that the accused was standing near Vilas's cot in the guard room with a 303 rifle. Seeing them, he threw the rifle and ran away. The evidence is that the rifle which he had used was of police constable Bansode, P.W.3. It is also alleged that police constables Jagannath Whaval, P.W.4; Police Jamadar Madhukar Jadhav, P.W.6; Police Naik Rajan Kamble, P.W.7 and Police constable Kisan Mali P.W.8 who were sleeping in the immediate proximity of the victim Vilas saw the accused coming out from the guard room and running towards east.
5. The victim Vilas discovered that he was precariously injured. Pundalik Jadhav who was sleeping in the same room, Madhukar Jadhav P.W.6 and some others reached the guard room. P.W.6 Madhukar Jadhav gave a phone call to Dy. S. P. Malsure. He thereafter, took the victim to the Civil Hospital, Sangli.
Injuries of Vilas were medically examined, same night at 4.20 a.m. at the Civil Hospital, Sangli by Dr. Mukund Kulkarni P.W.5. The doctor found the following injuries on Vilas's person :-
1. Fire arm injury over rt.axilla at nipple level, 3/4 x 1/2 cm oval, red clotted blood seen. Injury directed upwards and laterally 2 cm. deep blackening around the wound.
2. Fire arm injury over rt.axilla just below above would 1/2 x 1/2 cm red, blackening around the wound.
3. Fire arm injury over rt.axilla just below above wound 1/2 x 1/2 cm red, blackening round wound.
Pellet palpable subcutaneously in oblique and posterior direction of wound of entry.
Evidence of Dr. toof locate the foreign bodies. The same shows three foreign bodies. He further stated that those foreign bodies were extracted during operation. Two pieces of pellets measuring about 4 milimeters x 1.5 milimeters were extracted from the wounds of the victim. One piece of pellet of the dimensions of 2 milimeters x 1 milimeters having irregular shape was also extracted.
At 9 p.m. on 18-7-1983, P.W.12 Dr. Narayan Chavan, a Surgeon attached to Civil Hospital, Sangli confirmed the findings of Dr. Kulkarni. He also stated that some foreign bodies had entered the body of the victim and in his presence, under his directions, Dr. Pardeshi removed them. The said foreign bodies were kept in sealed bottle.
Dr. Chavan also stated that the injuries suffered by the victim could have been caused after the bullet hit a hard object near the victim; thereafter broke into parts; and some of its parts entered his body. During his cross-examination, in para 3, he categorically denied the defence suggestion that such type of injuries will not be caused by hitting against iron strip of a cot. He denied a further suggestion, in the said para, namely, that bullet will not break by hitting against iron strips.
6. The evidence of Inspector Ramchandra Patil, P.W.11 of Market Yard Police Station, within whose jurisdiction the police Headquarters fell, is that at about 4.15 a.m. police constable Patil who was on phone duty came to his house and informed him that the accused had fired a shot at Vilas. Inspector Patil immediately went to the spot. He made inquiries with P.W.1 Pundalik Jadhav and recorded his complaint Exhibit 20, between 5.20 to 5.45 a.m. Thereafter, an offence was registered as Crime No.70 of 1983 at 6 a.m. After registering the case, Inspector Patil immediately commenced the investigation. He drew a panchanama of the scene of the incident Exhibit 6. On the place of the incident, (guard room) he found the following articles lying :-
(a) Rifle bearing Butt no.265 which was issued in the name of Constable Bansode, which the accused is said to have used;
(b) A carpet, bed sheet bearing hole marks, on the cot on which the victim was sleeping and a gunny cloth spread on the same cot;
(c) A iron strips near the cot having a aperture.
(d) Some portion of the western wall having fallen down;
(e) Pieces of lead lying near the cot and near the broken portion of wall.
On unloading the rifle, he found that there was a empty cartridge inside it. He took the same into possession. He also cut the strip from the cot in which aperture was caused under a panchanama.
Inspector Patil seized all the articles which he found on the place of the incident. He recorded the statement of Police constables, Bansode, Vithal, and Kikade. He returned to the police station at 11.45 a.m.
7. The evidence of P.W.10 Mohan Patole, who was also attached to Police Headquarters at the time of the incident, is that he had been asked to produce the respondent. At about 9.30 a.m. he saw him coming to his room and informed R. S. Pawar about it. Evidence is that some investigation was carried out also by PSI Bhosale. However, nothing eventful seems to have been done by him. On 21-7-1983. Inspector Patil again took over the investigation, and interrogated some witnesses. He sent the attached property, including rifle, empty cartridges, two sealed bottles and pellets to the Assistant Chemical Analyser (Ballistics) Forensic Science Laboratory, Bombay. After completing the investigation, he submitted a charge sheet against the accused on 13-9-1983.
8. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the accused was charged for the offence punishable under Section 307 IPC. To the said charge, he pleaded not guilty and claimed to be tried. His defence was that of denial. He filed a written statement in which, he attributed his false implication to Head constable Pundalik Jadhav who, according to him, nursed a grudge against him.
During the trial, in all the prosecution examined 12 witnesses.
Technically speaking, there are no eye witnesses of the incident for none deposed about the accused firing on Vilas. However, two of them namely head constable Pundalik Jadhav P.W.1 and the victim Vilas, P.W.2 are as good as eye-witnesses in as much as their statements are that on the date, time and place of the incident, they heard sound of firing, immediately woke up, saw the accused standing with a 303 rifle and thereafter he threw the rifle and ran away.
Four witnesses namely Jagannath Whaval P.W.4, Madhukar Jadhav P.W.6, Rajan Kamble, P.W.7 and Kisan Mali P.W.8, all police constables, who are said to have been sleeping contiguous to the place of the incident deposed that they saw the respondent coming out from the guard room and running away.
Other witnesses examined by the prosecution included two doctors, Investigating Officer and one Shankar Kikade, P.W.9 a relative of the victim and the accused who deposed about the immediate motive for the crime.
In evidence, the prosecution also tendered a large number of Exhibits.
In defence, no witness was examined.
9. After recording :- the evidence adduced by the prosecution; statement of the respondent under Section 313 Cr.P.C., and hearing the learned counsel for the parties, the learned trial Judge acquitted the respondent of the charge under Section 307 IPC, and instead convicted him under Section 324 IPC. In addition, he also convicted him under Section 27 of the Arms Act.
As said earlier, Criminal Appeal No.335 of 1984 has been preferred by the appellant Vasant Jadhav against his said convictions and sentences and Criminal Appeal No.525 of 1984 has been preferred by the State of Maharashtra against acquittal of respondent Vasant Jadhav, for an offence under Section 307 IPC.
10. We have heard Mrs. V. R. Bhosale, for the appellant and Ms. Purnima Kantharia for respondent in Criminal Appeal No.335 of 1984 and we have heard Ms. Pournima Kantharia, Additional Public Prosecutor for the Appellant-State of Maharashtra and Ms. V. R. Bhosale for the respondent in Criminal Appeal No.525 of 1984.
i) Whether the prosecution has succeeded in proving beyond the pale of reasonable doubt the involvement of the appellant in the incident;
ii) Once if the involvement of the appellant Vasant Jadhav (Respondent in Criminal Appeal No.525 of 1984) is accepted, did the trial Judge commit an error in convicting him under Section 324 IPC and should he have convicted him for an offence under Section 307 IPC.
12. We take up the first question, first. In out view, the prosecution through cogent, reliable and unimpeachable evidence has clinchingly proved the involvement of the appellant (Vasant Jadhav) in the instant crime.
(a) The account furnished by Pundalik Jadhav, P.W.1 and the victim Vilas, P.W.2, which is almost ocular in nature;
(b) The medical evidence and the report of the Assistant Chemical Analyser to Government (Ballistics) Forensic Science Laboratory, Bombay;
(c) Evidence of constable Bansode, P.W.3 who is alleged to be sleeping contiguous to the place of the incident to the effect that at about 3.30 a.m. on 18-7-1983 i.e. half an hour before the incident, the accused came to him and asked him where his bullets were;
(d) Evidence of constables Jagannath Whaval, Madhukar Jadhav, Rajan Kamble, and Kisan Mali, P.Ws.4, 6, 7 and 8 respectively, who were sleeping near the guard room, and who are said to have seen the accused coming out from the guard room and running away;
(e) A very strong motive on the part of the accused to have committed the crime;
(f) The conduct of the accused in not being available till 9 a.m., next morning.
14. We would first like to take up the evidence of Pundalik Jadhav and Vilas. Their evidence shows that on the date of the incident i.e. on 18-7-1983, after 2 a.m. they were sleeping in the guard room. The accused was on picketing duty at the Magazine room which was practically adjoining the guard room. At about 3.55 a.m. they heard sound of fire. They got up. They saw the accused standing near the cot of Vilas with a rifle. Thereafter, he threw the rifle and ran away.
That both of them should have been in the guard room at the time of the incident is established by the evidence on record. Evidence of Pundalik Jadhav is that after alloting the duties he slept in the guard room and that of Vilas is that after finishing duty at 2 a.m. he slept there. Their presence is clinched by documentary evidence. That the respondent was on picketing duty in the Magazine room is also clinched by documentary evidence.
We have gone through the evidence of Pundalik Jadhav and Vilas and we find that it inspires implicit confidence. Their evidence that they heard the sound of firing and saw the accused standing there with a rifle in his hand is corroborated by the presence of injuries attributable to rifle on the person of the victim Vilas. Evidence of Dr. Narayan Chavan, to which, we have referred earlier is categorically to the effect that if the bullet hits a hard object near the victim, then some of its pieces could enter his body. In his cross-examination, he has categorically denied a suggestion to the contrary. On one of the iron strips of the cot (on which the victim was sleeping) Inspector Patil, the Investigating Officer, found a aperture, and he took the said strip in his possession under a panchanama. This circumstance shows that the shot fired by the accused first hit the iron strip, thereafter, the bullet was broken in some pieces, and three such pieces entered into the body of the victim.
15. It is true that the victim Vilas being the victim himself is an interested witness but the law is that on this score, testimony of a witness cannot be mechanically rejected. It has to be only scrutinised with caution. Way back as 1965, in the decision reported in AIR 1965 Supreme Court, page 202 Masalti and others V/s State of U.P. and AIR 1965 Supreme Court, page 328, Dariya Singh V/s State of Punjab, the Supreme Court has laid down this principle of appreciation of interested evidence. We have exercised the necessary caution while evaluating the testimony of Vilas. We find that even thereafter, it is implicitly reliable.
16. P.W.1 Pundalik Jadhav cannot be described even as an interested witness. Although, in his Written Statement, the accused has tried to allege that he was enmical to him but, no documentary evidence is forthcoming. In the absence of the same, we are not inclined to believe this averment in the Written Statement. We feel that it has been stated therein by the accused to make a defence for himself.
In our view, Pundalik Jadhav is a wholly independent witness and had no axe to grind against the accused. In its absence he would not have falsely implicated him. His evidence inspires implicit confidence.
17. We next come to the circumstance (b) the medical evidence and the report of the Assistant Chemical Analyser. In paras 5 and 14, of our Judgment, we have extensively set out the evidence of Dr. Narayan Chavan, P.W.12. His evidence shows that if a bullet hits a hard object near the victim and breaks then some of its pieces may enter his body. In his cross-examination he denied the twin suggestion (a) that bullet will be crushed into pieces after hitting the iron cot; and (b) such type of injuries would not be caused by bullet striking the iron-strips of cot. To us, it appears that the bullet did hit the iron strips of the cot and this is evident from the circumstance that a mark of aperture was found on one of the iron-strips of the cot and the same was taken into possession under a panchanama by the Investigating Officer. Thus, the medical evidence corroborates the circumstance that the injuries were caused by a rifle shot.
18. We now come to the report of the Assistant Chemical Analyser to the Government (Ballastics) Forensic Science Laboratory, Bombay. The same shows that the empty cartridge found in the rifle was fired from the said rifle; three lead pieces (Exh 4A) and four copper jacketted pieces (Exh 4B) could have resulted due to the impact of fired copper jacketted bullet against a hard object. The Assistant Chemical Analyser also reported that on Exhibit 3 an iron piece (may be from cot) lead was detected and the same might have been transferred from the impact of a fired bullet. In other words, this report also shows that the rifle was used.
19. We next come to the evidence of constable Vishnu Bansode, P.W.3. His evidence is that at about 3.30 a.m. on 18-7-1983, i.e. half an hour before the incident, the accused came to him; woke him from his sleep, and asked him as to where his bullets were. This obviously shows that he did not want to use his own bullets, just as he did not use his own rifle. Reading the evidence of Vishnu Bansode in between the lines, it appears to us that it was between this time-lag of 3.30 a.m. to 3.55 a.m., at the latter time when the incident is alleged to have taken place, that the accused picked up the rifle of constable Bansode, which was there in the wooden stand kept in the guard room. The existence of a wooden stand in the guard room wherein those who came back from duty, kept their weapons has been deposed to by P.W.1 Pundalik Jadhav.
In our view, evidence of constable Bansode inspires implicit confidence and is a very strong circumstance fixing the involvement of the accused in the instant crime.
20. We now come to the evidence of constable Bansode, Madhukar Jadhav, Rajan Kambli and Kisan Mali, all police constables who were sleeping in places contiguous to the place of the incident. The said constables have stated that at about 4 a.m. on 18-7-1983, they saw Vasant Jadhav coming out from the guard room and running away. The said witnesses also had no axe to grind against the accused and would not have falsely implicated him. We accept their evidence.
21. We now take up the very strong motive which impelled the accused to commit the crime. There was both distant and immediate motive for the accused to have committed the crime. The informant Vilas, in his statement has stated that relations between his family and that of the accused were strained ever since the year 1975. He has stated that the dispute between them was on account of a common wall and relations became further bad when : (a) his brother Bhagwan was married on 2-7-1983 and the family members of the accused were not invited by them; and (b) when two to two and half months prior to the incident, father of the accused had given a feast in the name of deity and they did not attend. The immediate motive comprises of the threat given by the accused to Vilas, on 16-7-1983 while he was returning with Shankar Kikade, P.W.9. Evidence shows that the accused reprimanded Vilas for not calling them at his brother's marriage and for not attending the feast given by them in honour of the deity. Evidence of Vilas further is that the informant had threatened to kill him in two days. Saying this, he went away. It is true that Vilas may be an interested witness but, certainly P.W.9 Shankar was not such a witness. He was, as his evidence shows, a common relation of both Vilas and the accused and that being so, would not have falsely deposed against the accused. In our view, the prosecution has succeeded in proving the motive for the crime.
22. We now come to the incriminating conduct of the accused namely after the incident, he made himself scarce and could only be traced at 9.30 a.m. that morning. Normally five and a half hours of absence from the police head quarters cannot be stigmatised as an incriminating conduct. There may be many reasons for it. But when the said conduct is viewed in the light of the evidence referred above, it does incriminate the accused.
24. Ms. V. R. Bhosale, learned counsel for the appellant in Criminal Appeal No.335 of 1984, and for the respondent in Criminal Appeal No.525 of 1984, made a number of submissions before us, which we now propose considering.
Firstly, she cried hoarse, that the nature of the injuries found on the victim could not have been caused by a rifle. In her contention, they were caused by a gun. In the earlier part of the Judgment, we have elaborately dealt with this aspect and accepting the evidence of Dr. Narayan Chavan, P.W.12, we have held that they could be caused by a bullet if it struck some hard substance; broke into pieces; and thereafter entered the body of a person. We have also mentioned that he categorically denied the defence suggestion to the contrary. He denied the defence suggestion that the injuries of the type found on the victim could not have been caused if a bullet struck against the iron-strips of the cot as also the suggestion that it will not break by hitting against iron strips.
In this connection, it would also be necessary to refer to the report of the Assistant Chemical Analyser to Government (Ballistics) Forensic Science Laboratory. Bombay, to which we have made a reference in para 18 of our Judgment. The report also show that a rifle was used.
Hence, the first submission of Ms. Bhosale fails.
Ms. Bhosale next contended and with great vehemence too, that the prosecution case that the accused immediately left after firing on the victim is a tissue of lies. She urged that the evidence is that the accused Vasant Jadhav only left after handing over a charge. In this connection, she invited our attention to the cross-examination of P.W.1 Pundalik Jadhav who, admitted in para 5 that the accused had signed the book in the column of giving charge at 4 a.m. Ms. Bhosale contended that Exh.15 is the relevant entry in the book and the same is torn. In her contention, it was torn at the instance of the prosecution because the said entry was not suiting it. We cannot accede to her submission. There is no evidence to warrant this inference. It may been the other way round also. In this connection, it would be necessary to refer to the submission of Ms. Pournima Kantharia, learned Additional Public Prosecutor, that in Para 5 itself, Pundalik Jadhav denies having signed the entry. In her contention there was no reason for him to deny and the accused in order to create a defence for himself, in the commotion which must have ensued after the incident signed the entry and went away.
We have given our anxious consideration to the rival submissions on this aspect. Apart from what we have mentioned above, in our view, weight of this solitary circumstance cannot be strong enough to wash out the impact of the entire evidence adduced by the prosecution. After all, cases are not decided on a stray feature.
Ms. Bhosale next contended that Pundalik Jadhav was enmical towards the accused and it is he who has engineered his false implication. Again, we regret that we cannot accede to her contention. Firstly there is nothing to indicate, apart from a bald averment in the written statement of the accused, to this effect that there was actually any ill will or malice between the respondent and Pundalik Jadhav. Secondly, and equally importantly, what Ms. Bhosale seems to have overlooked is that if the prosecution wanted to create false evidence, it could have very easily made Pundalik Jadhav and Vilas, P.Ws.1 and 2 to depose that in their presence; while they were awake; the respondent fired a shot; and ran away. That they did not do so is a circumstance which strongly suggests that there is no manufactured evidence in the instant case.
25. We now take up Criminal Appeal No.525 of 1984 preferred by The State of Maharashtra against the acquittal of the respondent-Vasant Jadhav and proceed to examine the question as to what offence is made out against him. The trial Judge in para 16 has found that no offence under Section 307 IPC was made out against the respondent and only one under Section 324 IPC was made out against him. The learned trial Judge has given the following reasons for reaching this conclusion :-
(a) The bullet did not hit Vilas and cause injuries to him directly; and
(b) The injuries caused to Vilas were very minor.
Section 307 :
" 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 either to imprisonment for life, or to such punishment as is herein before mentioned."
A perusal of the said section would show that if a person who does an act with intention or knowledge that if he by that act, caused death, he will be guilty of murder, will be guilty of the offence under this section. The learned trial Judge has wholly ignored this element of intention or knowledge, in determining the question whether an offence under Section 307 IPC is made out. In our Judgment, the respondent had both the intention to cause Vilas's death and knowledge of the fact that when he fired on the victim Vilas, he could cause his death. We say this because :- (a) the evidence of Vilas, which we have accepted is that two days before the incident, he had threatened to kill him; and (b) from a very close range 6 to 8 feet in the opinion of Dr. Chavan, he fired a rifle shot on the victim Vilas who was lying on the cot. The said shot however, struck the iron strips of the cot on which Vilas was sleeping. As a consequence thereof, the bullet broke into pieces and three such pieces struck Vilas. This explains the simple injuries sustained by Vilas. They were not caused because he had intended to cause them but because Providence came to the rescue of Vilas.
It can be safely said that persons who fire a rifle shot from a very close distance, have both the intention to cause death of the person who is their target and the knowledge of death of such a person, in terms of Section 307 IPC.
27. We would like to emphasise that the question of intention to kill or the knowledge of death in terms of Sec.307 IPC is a question of fact and not one of law. It would all depend on the facts of a given case. The circumstance that the injury inflicted by the accused is simple or minor in nature is by itself not sufficient to take out the case from the ambit of Section 307 IPC. The important thing to be borne in mind in determining the question whether an offence under Section 307 IPC is made out is the intention and not the injury.
In this connection, it would be pertinent to refer to the decision of the Apex Court reported in AIR 1965 Supreme Court P.843 (Sarju Prasad V/s State of Bihar). In para 6 of the said decision, Their Lordships of the Apex Court have observed as follows :-
" Therefore, the mere fact that the injury actually inflicted by the appellant did not cut any vital organ of Shankar Prasad is not by itself sufficient to take the act out of the purview of S.307."
In para 7 of the said Judgment, the Apex Court has observed that in determining the intention, existence of motive assumes importance.
28. In our view, on the facts and circumstances, referred to in paragraphs 26 and 27, by us, it can safely be said that when the respondent Vasant Jadhav fired on Vilas Jadhav with a rifle from a distance of 6 to 8 ft he both had the intention to kill him as also the knowledge that he was likely to kill him.
29. We may also mention that the decisions referred to in the impugned Judgment, are on different facts and have no application so far as this case is concerned. A fetish for authorities can cause gross miscarriage of justice and the instant case affords an apt illustration. The trial Judge mechanically applied Supreme Court decisions which have no bearing on the facts of this case to reach the conclusion that the respondent was only guilty of an offence punishable under Section 324 IPC.
31. The only question which remains is the quantum of sentence to be awarded to the respondent for the said offence. The respondent at the time of the incident was a Police constable. In his statement under Section 313 Cr.P.C., which was recorded on 31st March, 1984, he has given out his age as 35 years. This means that at the time of the incident he was aged about 34 years. He was thus a fully grown up person and was possessed of sufficient understanding. His written statement shows that at the time of the incident he had put in 15 years of service. If persons like him who are meant to be guardians of law violate the same and that too stealthily in the dead of night, in a public place like the guard room situated in the District Police headquarters, a very stringent view has to be taken. If the sternest punishment is not handed out to the likes of the respondent, we would be providing an impetus to indiscipline in forces like the police and that indeed would be fraught with ominous consequences for the country. As it is, there is no dearth of indiscipline in the country. The same has to be curbed with a very heavy hand particularly in the case members of police. We are not impressed with Ms. Bhosale's submission that since the injuries of the victim were simple in nature, a lenient sentence should be awarded to the respondent. It was the destiny of the victim that the bullet fired by the respondent first struck the strip of the cot on which he was sleeping; thereafter broke into pieces; and then hit him. This explains for the simple injuries which he had sustained. Had the bullet struck him directly perhaps he may not have been alive. Hence, we reject this submission of Ms. Bhosale.
After thoughtfully reflecting over the quantum of sentence, we feel that the ends of justice would be squarely satisfied if the respondent Vasant Vithu Jadhav is awarded a sentence of 10 years RI under Section 307 IPC. We award him the said sentence with the hope and trust that it would both have a chastening and deterrent effect on him and deter people in services like the police from committing crimes in public places.
Criminal Appeal no.335 of 1984 preferred by the appellant Vasant Vithu Jadhav stands dismissed.
Criminal Appeal no.525 of 1984 preferred by the State of Maharashtra against acquittal of the respondent Vasant Vithu Jadhav for the offence under Section 307 IPC is allowed. The acquittal of the said respondent for the offence under Section 307 IPC is set aside. He is convicted for the offence under Section 307 IPC and is sentenced to undergo 10 years RI. He is on bail. He shall be taken into custody forthwith to serve out his sentence.
His various sentences shall run concurrently.
In case an application for a certified copy of this Judgment is made, the same shall be issued on an expedited basis.
Before parting with this Judgment, we would like to record our appreciation for the thoroughness and competence with which Ms. V. R. Bhosale has argued this appeal.