2006 ALL MR (Cri) 1358
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

B.R. GAVAI, J.

Balu S/O. Tukaram Kusalkar Vs. State Of Maharashtra & Anr.

Criminal Appeal No. 32 of 2005

12th January, 2006

Petitioner Counsel: Shri. D. R. KALE PATIL
Respondent Counsel: Shri. DEELIP BANKAR PATIL

Penal Code (1860), Ss.326, 307 - Attempt to murder - Conviction u/s.307 - Challenge to - Accused causing injury on abdomen of the complainant with knife - No pre-motive - Only one injury - Prosecution failing to prove that the act was done with an intention of causing such bodily injury which the accused knew to be likely to cause death or in the ordinary course of nature to cause death - Conviction of accused under S.307 converted to conviction u/s.326 of Penal Code.(Para 12)

Cases Cited:
State of Maharashtra Vs. Gulabsingh, AIR 1978 Bombay 367 [Para 10]
Sattan Sahani Vs. State of Bihar, 2002(4) Crimes 402 (SC) [Para 11]
Dharma Pal Vs. State of Punjab, AIR 1993 SC 2484 [Para 11]


JUDGMENT

JUDGMENT :- The present appeal is directed against the finding of conviction as recorded by the learned IInd Ad-hoc Addl. Sessions Judge, Shrirampur, in Sessions Case No.2 of 1998 vide order dated 30th October, 2004 for the offence punishable under Section 307 of the Indian Penal Code and thereby sentencing the appellant to suffer rigorous imprisonment for seven years and to pay fine of Rs.2,000/- and in default to suffer rigorous imprisonment for one year.

2. The prosecution story, in brief, is as under :

That, the accused Nos.1 and 2 are real brothers. The complainant victim (since deceased) Raju Pandurang Kusalkar who is cousin of the accused alongwith his brother-in-law Sanjay (P.W.7) were going to a theatre to watch a movie. It is the prosecution case that in front of hospital of one Dr. Ghavate at about 10.00 p.m. both the accused persons met the complainant and Sanjay and that they were under the influence of liquor. It is alleged that the complainant and the victim had some altercation regarding sending of Rakhis by the sister of the accused to the complainant. It is alleged that at that time, accused No.1 threatened that he would kill all the brothers of complainant and thereafter caught hold the collar of the complainant and stabbed him on his stomach. It is alleged that the complainant shouted. At that time, both the accused persons ran away. Thereafter, the victim complainant was brought by Sanjay in the hospital of Dr. Ghavate. The complainant was in conscious state, he was treated by Dr. Ghavate and thereafter shifted to Civil Hospital, Ahmednagar. Offence under Section 307 and Section 506 of the Indian Penal Code was registered. The accused came to be arrested. On the basis of memorandum of the accused No.1 the knife was seized. After completion of the prosecution, the charge was framed. The accused pleaded not guilty and claimed to be tried.

3. The prosecution in all examined 11 witnesses in addition to producing documentary evidence on record. After considering the evidence and material on record, the learned trial Court vide the impugned Judgment and order dated 30th October, 2004 acquitted accused No.2 and convicted the appellant for the offence punishable under Section 307 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and also to pay fine of Rs.2,000/- and in default of payment to suffer rigorous imprisonment for one year.

4. Being aggrieved thereby, the appellant has approached this court.

5. Heard Shri. D. R. Kale Patil, learned counsel for the appellant and Shri. Deelip Bankar Patil, learned A.P.P. for the respondent No.1.

6. Shri. D. R. Kale Patil, learned counsel for the appellant submits that there were several inconsistencies in the deposition of the various witnesses. He submits that the evidence of the prosecution witnesses was full of omissions and contradictions. He further submits that on the same set of evidence, the learned trial Court had acquitted the accused No.2, and such erred in convicting the present appellant/accused No.1. He therefore, submits that taking into consideration the evidence on record, learned trial court ought to have acquitted the appellant. In the alternative, he submits that neither there was an intention to commit the murder of the complainant, nor from the evidence, it can be seen that the accused knew that injury caused, was likely to cause death. He further submits that from the medical evidence, it can be seen that the injury sustained was not of such a nature which was sufficient in the ordinary course of nature to cause death of the complainant. He, therefore, submits that in that view of the matter, at the most the appellant should have been convicted under Section 326 of the Indian Penal Code.

7. As against this, Shri. Deelip Bankar Patil, learned A.P.P. appearing on behalf of the respondent No.1/State, submits that the learned trial court upon appreciation of the evidence has rightly held that the prosecution has proved beyond reasonable doubt that the appellant had caused an injury by knife on the abdomen of the complainant. He submits that the said injury was on the vital part of the body and was sufficient in the ordinary course of nature to cause death of the complainant. He further submits that the medical evidence corroborates the occular evidence. He further submits that from the evidence of P.W.4 and P.W.7, it can be seen that the appellant was uttering that he would kill the entire members of the family and as such an intention to kill the complainant can be gathered therefrom. He, therefore, submits that the appeal is without merit and as such liable to be dismissed.

8. With the assistance of learned counsel for the appellant and learned A.P.P. for respondent State, I have carefully examined the evidence of prosecution witnesses. Though there are minor contradictions and omissions in the evidence of the prosecution witnesses, the prosecution story is consistent in so far as the assault by the appellant on the victim is concerned. P.W.7 Sanjay Dhanwadekar who was accompanying the deceased, has clearly stated that when they were proceeding towards the theatre, appellant accompanied by accused No.2 apprehended them and there was altercation on account of sending of Rakhis. He has also deposed regarding the appellant catching the collar of the complainant and stabbing him in his stomach. The testimony of this witness, in so far as this incident is concerned, has gone unchallenged though he was thoroughly cross-examined. The version of Sanjay is corroborated by evidence of Dr. Ghavate (P.W.5) in whose hospital he was immediately taken for treatment. Evidence of P.W.7 and P.W.5 clearly shows that the complainant had narrated about the incident and the present appellant causing the injury. The evidence, in this respect is also supported from the deposition of P.W.4 Bapu who is the brother of the complainant who was informed immediately about the incident by P.W.7. I, therefore, find that the prosecution has proved beyond reasonable doubt that on the date of incident, the appellant had caused an injury on the abdomen of the complainant by use of knife. One more corroborating factor is the discovery of knife at the hands of this appellant.

9. Now, the only question that remains for consideration is as to whether the learned trial Court has rightly convicted the appellant for the offence punishable under Section 307 of the Indian Penal code or not ?

10. The Division Bench of this court in the case of State of Maharashtra Vs. Gulabsingh & Ors. (AIR 1978 Bombay 367) has observed thus :-

"5. It is well established that the prosecution must prove :

(1) that the death of a human being was attempted;

(2) that such death was attempted to be caused by, or in consequence of, the act of the accused;

(3) that such act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as

(a) the accused knew to be likely to cause death; or

(b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."

11. The Apex Court in the case of Sattan Sahani Vs. State of Bihar & Ors. (2002(4) Crimes 402 (SC)) has upheld the Judgment of the High Court wherein the conviction from Section 307 of the Indian Penal Code was converted to Section 326 of the Indian Penal Code. The accused therein had caused a penetrating wound by "Bhala" on the victim. The accused therein had given only one blow. A similar view has been taken by Apex Court in the case of Dharma Pal & Ors. Vs. State of Punjab (AIR 1993 Supreme Court 2484), wherein the Apex Court found that though the injuries were of somewhat serious nature since there was no attempt to murder, the accused was entitled to be convicted under Section 326 and not under Section 307 of the Indian Penal Code.

12. From the facts of the present case, it can be seen that there was no pre motive. The victim alongwith his brother-in-law were going to the theatre to watch movie and they happened to meet the appellant and his brother on the way. There was some altercation and out of the said altercation, the appellant caused the injury by knife on the abdomen of the complainant. It can be seen that there was only one injury. It can further be seen from the evidence of P.W.5 that the injury was sufficient to cause death of patient if it remained untreated for a long time. In his cross-examination, he has given the period of long time, to be within 24 hours to 48 hours. The evidence of P.W.6 Dr. Popat Sonwane is also to the same effect. From the medical evidence it can be seen that the injury was of such a nature that if it was treated within reasonable time, it was not likely to cause the death of the complainant. I, therefore, find that the prosecution has failed to prove that the appellant had an intention to cause death of the complainant. So also the prosecution has failed to prove that the death of the victim was attempted. The prosecution has also failed to prove that the act was done with an intention of causing such bodily injury which the appellant knew to be likely to cause death or in the ordinary course of nature to cause death. In that view of the matter, the conviction under Section 307 of the Indian Penal Code needs to be converted to conviction under Section 326 of the Indian Penal Code.

13. Hence, the conviction as recorded by the learned 2nd Ad-hoc Addl. Sessions Judge, Shrirampur in Sessions Case No.2 of 1998 dated 30th October, 2004 under Section 307 of the Indian Penal Code, is hereby converted under Section 326 of the Indian Penal Code. So far as the sentence is concerned, it is pointed out that the appellant has already undergone the sentence of 19 months and 20 days. It is also pointed out by the learned counsel for the appellant that appellant is the only bread earning member in the family and he has already shifted his residence to another place. There are no criminal antecedents against the appellant. In that view of the matter, the appellant is sentenced to suffer Rigorous Imprisonment for the period already undergone.

14. The amount of fine which was imposed by the trial court at Rs.2,000/- (Rs.Two Thousand) is enhanced to Rs.5,000/- (Rs.Five Thousand). The fine amount so recovered be paid to the father/wife of the victim. In default of payment of fine amount, the appellant will be required to undergo further Rigorous Imprisonment for three months.

15. The appeal is partly allowed in the aforesaid terms.

Appeal partly allowed.