Criminal Appeal No.600 of 2006

27th February, 2009

Petitioner Counsel: Mr. A. S. BAND
Respondent Counsel: Mr. A. S. FULZELE

JUDGMENT

JUDGMENT :- This is an appeal by accused Shriram Pandurang Neware, who has been convicted for offence punishable under Sections 307 and 398 of Indian Penal Code, and sentenced to suffer Rigorous Imprisonment for five years with a fine of Rs.500/-, in lieu thereof, further Rigorous Imprisonment for three months for the former offence and Rigorous Imprisonment for seven years and a fine of Rs.500/-, on failure to pay the same, Rigorous Imprisonment for three months for the latter offence.

2. Along with the appellant, there were other accused persons, namely Accused No.2-Devidas Nathuji Bolwel, Accused No.4 - Sheikh Chand Sheikh Bashir and Accused No.5 - Soyabkha Yunuskha, who were tried similarly, however, have been acquitted towards the charge for offence punishable under Sections 307 and 398 of Indian Penal Code. Trial of Accused No.3 - Ramesh Bhairu Arkhiya has been separated.

3. The story, as emerges and for which accused were charged, as briefly described in the charge, reads as follows :-

[a] In the night intervening 16th and 17th April, 1999 around 1.30 a.m., near the Railway over bridge at Badnera, the accused persons either individually or in furtherance of their common intention with absconding accused - Dipak Chopade made a sudden violent attack on the ambush party of police with swords and attempted to murder Police Constables [1] Pundlik A. Madavi, and [2] Godode, and thereby alleged to have committed an offence punishable under Section 307 of Indian Penal Code.

[b] Further, at the same place and time, either individually or in furtherance of a common intention, with absconding accused Dipak Chopade, the accused tried to rob the passengers travelling by Ahmedabad-Howrah Express with the help of deadly weapon, namely sword, and thereby are alleged to have committed an offence punishable under Section 398 of Indian Penal Code.

4. Heard learned Advocate Mr. A. S. Band [appointed] for the appellant and learned APP Mr. A. S. Fulzele for the respondent-State.

5. Perused the record.

6. The case is based on oral evidence of PW 2 - Pundlik Adkuji Madavi, Police Constable and PW 3 - Dashrath Govindrao Gondole, Head Constable.

7. Version of PW 2 - Pundlik Madavi on the point of attempt of the accused to commit dacoity and attempt to murder is as follows :-

"1. ..........................................After half an hour Ahamadabad Express came there. It was in the slow speed, due to changing of tracks. I saw 7 to 8 persons while running towards the train which was in the slow speed. Those persons came from the side of locality and they rushed towards General Bogie. 2 to 4 persons entered into bogiee and some of them hanged with it. Those persons were having sword. On given call by me the persons who were climbed on the bogie jumped out and rushed towards me. The persons who were hanged with the bogie also jumped and came towards me. On looking to us they stated as, "Police Wale Hai Maro Sale Ko". One person who was holding sword rushed on the person of Gondadhe, at that time Godhade gave me call and stated save me. I directed that person to stop otherwise I will make fire. In spite of my direction that person was going on the person of Godhade by taking sword. I made a fire by my 9 m.m. Pistol in the air. Therefore, that person rushed towards me by saying (Tum Ko Nahi Chodunga). I made second fire by my pistol but it was disaimed. Thereafter that person rushed towards Gondhode in order to assault him. Therefore, I made fire the bullet was hit to that person. He proceeded ahead and thereafter he fell down. The other persons ran away from the spot. The person who sustained bullet injury falled on the spot, where the light of the focus of railway yard shed was there. We saw that person one sword was lying nearer to him. One Razor was found near to his waist, and there was injury to his forearm, and blood was oozing from his mouth. The companion of the injured person were running towards the direction, where the second group of us was present there. .............."

[Quoted from page nos.90 and 91 of the Appeal Paperbook].

8. PW 3 - Dashrath Gondole, Head Constable, who is another eye-witness, has narrated the incident as follows :-

"2. At about 2.15 a.m. Ahamadabad express came from Bombay side for going towards Nagpur side. It was coming towards the side of Railway Station Badnera. The speed of train was slow, for changing the tracks. At that time 7 to 8 dacoits came from the side of Yard, and they climbed on the train by taking advantage of slow speed. I focused the torch towards them and also given call to them. The dacoits were having weapons with them like sword, with them due to my call some of the dacoits ran away towards the side of yard. Two dacoits came towards my direction. They were having sword with them. They came towards my direction for making assaults on us. P.C. Madhavi who was with me made fires from his revolver towards the dacoits. One of the dacoits sustained injury due to fire. He rushed towards tar road and fell down there. Second dacoit ran away from the spot. We have gone to the spot where the dacoits fallen there, after receiving bullet injury. There was injury near his cheek and blood was oozing from that injury. On sword one weapon like Suri like dagger and one cap was lying near to that dacoit. Police employees who stopped at other places where also gathered there. P.C. Rupnarayan stated that one dacoit ran away from his side and his name is Deepak Chopade. P.C. Ingale, also stated that one dacoit ran away from his side and he identified him as Sk. Chand. He stated me in the light of railway yard he identified the dacoit. The incident had taken place in railway yard. ............."

[Quoted from page nos.104 and 105 of the Appeal Paperbook].

9. From the above narrated incident, it is clear that any of the ingredients of circumstance, namely "any act with such intention or knowledge, and under such circumstances that, if he by that act caused death", is not proved.

10. It is a well mooted doctrine that actual injury to the victim is not necessary for convicting an accused for attempt to murder, however, proximity of the act of the accused with victim has to be inevitably proved.

11. PW-2 - Pundlik Madavi and PW 3 - Dashrath Gondole proved the facts, namely, that :-

[a] accused were about to board the train;

[b] they jumped and marched on the policemen;

[c] the accused uttered the words that they would kill the policemen, or see to them;

[d] in spite of warning, the accused did not stop, and

[e] before the accused actually committed any assault, any further overt act by the accused was prevented by shooting three bullets, out of which two did hit the accused and he suffered injury.

12. All that emerges is that the police was really successful in preventing an assault.

13. It is not shown that the sword or any other weapon was thrown on the police, which could have ordinarily hit them, but did not hit due to preventive effort by them. All that is stated is that the accused had a sword in his hand, and was marching on the police.

14. This limited act on the part of the accused cannot, in any circumstance, answer the description of any of the ingredients of offence of murder defined in Section 300 of Indian Penal Code.

15. In so far as the offence under Section 398 of Indian Penal Code is concerned, in absence of actual attempt of committing a theft or extortion, in isolation, the act of the accused of boarding the train with weapon would not amount to attempt to commit a robbery.

16. Learned APP is not able to come out of the difficulties in the way of the prosecution noted herein above, which were posed to learned APP in the course of hearing.

17. By the trap on the part of police, which has led to the incident, police may have prevented an offence, however, whatever has occurred on the spot of offence, as alleged, does not, in any manner, conform to the ingredients either of attempt to murder, or attempt to commit a robbery.

18. In the result, the evidence on record leads to an irresistible conclusion that neither attempt to murder nor attempt to commit a robbery has been proved. The accused-appellant is, therefore, entitled for acquittal.

19. In the above premises, appeal is allowed, and the appellant is acquitted. He be set at liberty forthwith.

Appeal allowed.