2016 ALL MR (Cri) 389
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A. B. CHAUDHARI, J.
Shrikrushna s/o. Sudam Awachar Vs. The State of Maharashtra
Criminal Appeal No.123 of 2000
11th December, 2015.
Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Ms. N.P. MEHTA
(A) Penal Code (1860), S.324 - Hurt by dangerous weapon - Conviction - Evidence of victim who claimed that he saw accused removing knife from his abdomen and then running away - There is neither any suggestion nor any attempt in his cross-examination that any other person was present at that time - Merely because no blood was found on knife and clothes of accused, direct evidence of victim about assault made on him cannot be ignored - Accused is liable to be convicted for offence u/S.324. (Para 5)
(B) Penal Code (1860), Ss.307, 324 - Attempt to murder or hurt - Determination - Accused was held guilty for offence u/S.307 only for reason that in absence of any medical help, there could be death of victim - However, blow was not given by accused with a view to cause death since victim himself stated that accused took out knife and ran away and there was no attempt to inflict further blows - Medical evidence shows that blow was given on region of abdomen having abdominal cavity only - Depth of injury also is not such as to hold a definite intention of causing severe damage to internal organs - There was no other person at spot except victim and accused and in that event accused could have easily achieved his object of attempt to commit murder - Hence, accused must be held guilty of offence u/S.324 and not one u/S.307. (Para 7)
(C) Penal Code (1860), S.324 - Hurt by dangerous weapon - Sentence - Period of around 17 years has already been passed from date of incident - Victim as well as accused has cordial relations and victim has forgiven accused - Even if victim and appellant have themselves compromised and they are living peacefully, State is required to be compensated by an order of fine - Instead of sentencing imprisonment, imposition of fine would sub-serve interest of justice. (Para 8)
JUDGMENT :- Being aggrieved by judgment and order dated 10.09.1999 in Sessions Case No.141/1998, passed by Sessions Judge, Buldana, by which the appellant-Shrikrushna Sudam Awachar stood convicted for an offence punishable under Section 307 of the IPC and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5000/-, in default to suffer further rigorous imprisonment for one year, the present appeal has been filed.
2. In support of appeal, Mr. Daga, learned counsel for the appellant, vehemently argued that the prosecution case is based on the sole testimony of Arun (PW4), the victim and the trial Judge committed error in believing his testimony. Reading of his evidence so also cross-examination will reveal that there is scope to say that the case could be of mistaken identity by nailing the present appellant as assailant. This will have to be viewed in the context of the fact that in the cross-examination Arun (PW4) admitted that they were having good relations throughout. Therefore, there is total absence of motive and consequently the element of mens rea is also absent. He, therefore, submitted that there is a doubt that the present appellant was correctly identified as the assailant or not. Citing the medical evidence, he submitted that the injury was admitted to be a simple injury and hence the finding that the offence under Section 307 of the IPC was committed cannot, be said to be legal looking to the length and depth of the injury so also the place namely; abdominal cavity where the injury was caused. He, therefore, submitted that the appellant deserves to be acquitted.
3. He then submitted that the period of about 17 years has already passed from the date of the incident and by this time, the victim as well as the appellant have cordial relations and, therefore, the appellant, if found guilty, may be allowed to be at large subject to payment of fine of Rs.5,000/- in addition to the earlier award of fine of Rs.5000/-.
4. Per contra, Ms. Mehta, learned A.P.P. supported that the impugned judgment and submitted that the victim could be saved only because of the medical help given to him and, therefore, offence under Section 307 of the IPC was proved and trial Judge was not wrong in recording conviction accordingly. She then submitted that the knife blow was given in the abdomen which is a vital organ and in the absence of treatment by excessive bleeding, death could have been caused and, therefore, it cannot be said that there was no attempt to commit murder as contended by the learned counsel for the appellant. She, therefore, supported that the impugned judgment and order and prayed for dismissal of this appeal.
5. I have perused the reasons recorded by the learned trial Judge for recording order of conviction under Section 307 of the IPC and compared the same with the evidence of Arun (PW4) so also medical evidence to find out the correctness of statement made by counsel for the parties. Upon perusal of the evidence of Arun (PW4), it is clear that he had taken appellant Shrikrushna along with him to the field upon payment of Rs.25/- towards wages and the incident then occurred in the field at about 10.00 p.m. in the night. There is neither any suggestion nor any attempt int eh cros-sexamination that any other person was present at that time. Not only that Arun (PW4) claimed that he saw the appellant removing knife from his abdomen and then running away. In my opinion, his evidence is sufficient to hold that the appellant had struck a blow of knife on the abdomen of the victim and, therefore, it is not possible to accept the submission made by Mr. Daga, leaned counsel for the appellant that the appellant had not inflicted blow of knife. Further, merely because no blood was found on the knife and on the clothes of the appellant, the direct evidence of Arun (PW4) about the assault made on him cannot be ignored particularly because there is no challenge in the cross-examination to that part of the evidence about the assault by means of knife on the abdomen. I, therefore, hold that it was the appellant who had assaulted him victim by knife on his abdomen.
6. The next question is about what offence the appellant has committed. The learned trial Judge has held that the appellant is guilty of offence under Section 307 of the IPC and the only reason for holding him guilty of the offence under Section 307 is that in the absence of any medical help, there could be death of the victim.
7. In this context, looking to the evidence of Arun (PW4) and medical evidence, what I find is that the blow was given on the region of abdomen having abdominal cavity only and then depth of the injury also is not such as to hold a definite intention of causing severe damage to the internal organs. That means, the blow was not given with any specific force to infer about mens rea of attempt to commit murder. Therefore, it is seen from the evidence that the blow was not given by the appellant with a view to cause death since Arun (PW4) himself stated that the appellant took out the knife and ran away and there was no attempt to inflict further blows. Admittedly, there was no other person at the spot and had there been mens rea to commit murder there was nobody in the field except Arun (PW4) and the appellant and in that event the appellant could have easily achieved his object of attempt to commit murder. It is, therefore, clear to me, looking to the depth of the injury and nature of blow given that an offence under Section 324 of the IPC would be said to have been proved but not the one under Section 307 of the IPC. I, therefore, hold that the trial Judge committed error in holding him guilty of the offence under Section 307 of the IPC and that the appellant must be held guilty of the offence punishable under Section 324 of the IPC.
8. The next question is about award of sentence for commission of offence under Section 324 of the IPC. Section 324 of IPC permits sentence of three years or with fine. Thus, there is discretion left with the Court to award sentence of fine instead of imprisonment. In this case, the victim as well as appellant both are present before the Court with the villagers and a statement is made that they have cordial relations and the victim has forgiven the appellant. In such a situation, there is merit in the submission made by Mr. Daga, that the period of around 17 years has already passed from the date of incident. Therefore, instead of sentencing imprisonment, particularly because the appellant had already undergone the sentence of one year, imposition of fine would subserve the interest of justice. I, therefore, find that the appellant having already undergone sentence of one year during the trial, there is no point in pushing him in jail again after so may years. But then even if the victim and appellant have themselves compromised and they are living peacefully, the fact remains that the State is required to be compensated by an order of fine in addition to the one already imposed by the trial Judge since the entire machinery was set into motion.
(i) Criminal Appeal No.123/2000 is partly allowed.
(ii) Judgment and order dated 10.09.1999 in Sessions Case No.141/1998, passed by Sessions Judge, Buldana convicting the appellant for an offence punishable under Section 307 of the IPC is set aside and is modified by convicting the appellant for an offence punishable under Section 324 of the IPC.
(iii) The appellant is sentenced to undergo rigorous imprisonment for the period which he has already undergone for commission of an offence under Section 324 of the IPC but in addition, he shall pay fine of Rs.5000/- i.e. total Rs.10,000/- to the State Government within a period of four months from today. Fine of Rs.5000/-, if already paid, shall be given credit. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a period of one year.
(iv) Bail bonds of the accused shall stand cancelled.