CRIMINAL APPEAL NO. 101 OF 2019

16th July 2019

Petitioner Counsel: Shri A. D. Tote
Respondent Counsel: Shri C. A. Lokhande
Act Name: Indian Penal code, 1860 Code of Criminal Procedure, 1973

Section :
Section 307 Indian Penal code, 1860 Section 324 Indian Penal code, 1860 Section 313 Code of Criminal Procedure, 1973

Cases Cited :
Para 14: Sarju Prasad Vs. State of Bihar reported in AIR 1965 SC 843
Para 14: Reg Vs. F. Cassidy, 4 Bom HC (Cr.) 17
Para 14: Martu Vs. Emperor, 15 Bom LR 991
Para 14: Wasudeo Balwant Gogte Vs. Emperor, ILR 56 Bom 434 : (AIR 1932 Bom 279)
Para 14: Queen Empress Vs. Niddha, ILR 14 All 38
Para 14: Om Prakash Vs. State of Punjab,1962-2 SCR 254 : (AIR 1961 SC 1782)

JUDGEMENT

The appellant is questioning the judgment dated 27-4-2018 rendered by the learned Additional Sessions Judge-2, Amravati in Sessions Trial 150/2017 thereby the appellant-who shall be referred to as the 'accused' hereinafter-is convicted for offence punishable under Section 307 of the Indian Penal code and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.1,000/- and in default, to suffer simple imprisonment for three months.

2. The genesis of the prosecution lies in the statement given by the injured witness PW 1-Ujwala Patil (Exhibit 9) which is treated as First Information Report.

3. The gist of the statement Exhibit 9 is that the injured was residing with the accused in relationship akin to marriage. The injured married one Rajesh Chavan from Haryana ten to twelve years prior to the date of the incident, who, however, deserted the injured. The injured states that the accused used to come home intoxicated and used to assault the injured. It is stated that this mistreatment and quarrel was going on since two to three days prior to the incident. On 23-3-2017 the accused left the house in the morning and did not return till night. The injured apprehended that the accused would come home drunk and quarrel and, therefore, she with her two daughters born from the wedlock with Rajesh Chavan, went to the residence of Chaitali Tayade to spend the night. The residence of Chaitali Tayade is situated on the first floor of the house in which the injured-informant and the accused reside on the ground floor.

4. The accused was seen standing infront of the house at 1-00 a.m. in intoxicated condition and the injured-informant did not come down due to fear and the accused left. On 24-3-2017 at 4-00 a.m. the accused returned home and called the injured-informant on the pretext of having some talk. The accused quarrelled with the injured-informant, whipped out small knife and inflicted several injuries on the stomach and back of the injured. She was also assaulted by fists and blows. Hearing shouts of the injured-informant, Chaitali Tayade and the aunt of the injured Ambika (PW 2) came to the spot and took her to the hospital. The police arrived at the hospital and recorded the statement of the injured which as noted supra is treated as the First Information Report.

5. On the basis of the First Information Report (Exhibit 9) and the printed First Information Report (Exhibit 10), Crime 112/2017 for offence punishable under Section 307 of the Indian Penal Code was registered at Tiosa Police Station, District Amravati. Investigation proceeded on the usual lines and on completion thereof chargesheet under Section 307 of the Indian Penal Code was filed in the Court of the jurisdictional Magistrate who committed the case to the Sessions Court.

6. The learned Sessions Judge framed charge (Exhibit 3) for offence punishable under Section 307 of the Indian Penal Code. The accused abjured guilt and claimed to be tried in accordance with law. The defence is of false implication. In the statement recorded under Section 313 of the Criminal Procedure Code, the answer given in response to question 24 is that the accused is falsely implicated since he refused to marry the injured PW 1. In the cross-examination, the suggestion given to the injured PW 1 is that since the accused refused to marry her, in order to implicate the accused in false prosecution, PW 1 herself inflicted the injuries. In short, the defence is that the injuries sustained are self inflicted.

7. The prosecution examined four witnesses. PW 1-Ujwala Patil is the injured and the informant. PW 2-Ambika Tagde is examined as an eyewitness. PW 3-Sheshrao Meshram is the Doctor who examined the injured PW 1 and proved the medical certificate (Exhibit 21). PW 4-Satish Jadhav is the Investigating Officer. The accused did not step into the witness box nor did the accused examine any witness in defence. The learned Sessions Judge has found the testimony of the injured witness PW 1 truthful and confidence inspiring. The defence of the accused that the injuries are self inflicted is rejected. The evidence of PW 2 Ambika is also considered as corroborating the evidence of the injured witness.

8. I have heard Shri A.D. Tote, learned Counsel for the appellant and Shri C.A. Lokhande, learned Additional Public Prosecutor for the State. The material on record and the reasons recorded by the learned Sessions Judge are minutely scrutinized.

9. P.W.1-Ujwala is an injured witness. It is well settled that the evidence of an injured witness must be given more weight than that of the other witnesses. The evidence of an injured witness is placed on a higher pedestal. The jurisprudential logic is that the injured is not ordinarily expected to falsely implicate the innocent and to exculpate the guilty. The injuries further lend assurance to the presence of the injured witness on the spot. The evidence of PW 1 will have to be considered on the touchstone of the well recognized parameters for appreciating the evidence of such witness.

10. Be it noted, that the accused is not disputing his presence on the spot. It is not disputed that there was a verbal altercation between the accused and the injured. It is clear from the text and tenor of the cross-examination that the accused is not disputing that on the day and time of the incident the accused gave a call to the injured. Indeed, it is suggested to PW 1 in the cross-examination that in the night of the incident the accused had given her a call, which suggestion is accepted. It is then suggested that the accused informed the injured that he would not marry her, that the injured became angry and at 4-00 a.m. she inflicted the injuries on herself. The suggestion given is that the talk between the accused and PW 1 took place at 1-00 a.m. and the injuries which the injured PW 1 sustained at 4-00 a.m. are self inflicting, which suggestion is denied.

I have given anxious consideration to the evidence of the injured witness. Her testimony is broadly consistent with the contents of the statement Exhibit 9. The version of the injured as regards the actual assault concerned is that the accused came home under the influence of liquor at 1.00 a.m. and gave call to the injured. At 4-00 a.m. when the injured came out of the house to have a word with the accused, without saying anything the accused inflicted blows of knife on her abdomen and back. The injured shouted, her aunt PW 2 Ambika, her uncle, daughters and one Chaitali rushed towards the injured and the accused fled. The injured was taken Tiosa Hospital and her statement was recorded by the police while she was undertaking treatment. PW 1 has identified the knife with which she was assaulted.
The suggestion given by the accused in the cross-examination which is to the effect that the injuries are self inflicted are already noted. The cross-examination does not elicit anything which would shake the credibility of the testimony. Bare suggestions are given, which do not take the case of the defence any further.
The learned Sessions Judge has believed PW 1. Her testimony is found to be implicitly reliable. I do not see any reason to disagree.

11. The evidence of PW 1 is sufficient to establish that she was assaulted by the accused by means of knife. No further corroboration is necessary. However, in the instant case, such corroboration is available on record. PW 2-Ambika Tagde is the aunt of PW 1. She has disclosed that at 4-00 a.m. she heard PW 1 shouting, came out of the room and saw the accused inflicting knife blows on PW 1. In the cross-examination, it is elicited that when she came out of the house, the accused was not inflicting the knife blows but was holding the knife. Even if the evidence of PW 2 that she is an eyewitness to the actual assault is disbelieved, her evidence is of corroborative value to the extent she has deposed that immediately after hearing the shouts of the injured PW 1, she came out of the room and saw the accused holding the knife. The witness has also identified the knife shown to her as the knife used in the assault.

12. The evidence of PW 1 and PW 2 is sufficiently cogent and it is proved beyond any reasonable doubt that the injured PW 1 was assaulted by the accused.

13. The next question which falls for consideration is whether the prosecution has proved the offence punishable under Section 307 of the Indian Penal Code. The learned Counsel Shri A.D. Tote would submit that considering the size of the knife, the nature and extent of the injuries and attending circumstances, it cannot be said that the assault was intended to cause death or that the requisite knowledge that death could be caused can be attributed to the accused. The learned Additional Public Prosecutor Shri C.A. Lokhande would submit that the fact that five blows are inflicted, two on the abdomen and three on the back, is sufficient to infer that the accused intended to cause death and at any rate, the accused had the knowledge that death may be caused due to the injuries which he intended to inflict.

14. It would be relevant to note the following observations of the Hon'ble Apex Court in Sarju Prasad v. State of Bihar reported in AIR 1965 SC 843 :

“3. It is common ground that the act for which the appellant has been convicted under Section 307 consisted of causing an injury in the vital region of Shankar Prasad's person but that no vital organ of Shankar Prasad was actually cut as a result of this injury. Learned counsel for the appellant, therefore, contends that the injury was a simple one and that as it was not such as was in the ordinary course of nature likely to result in death the offence falls not under Section 307 but under Section 324, I.P.C. According to learned counsel, before a person can be found guilty of the offence of an attempt to commit murder the prosecution must establish that the actual act which the assailant is shown to have committed was such as would in the ordinary course of nature have resulted in death and that here as the injury was a simple one, no vital organ of Shankar Prasad having been damaged, it does not fall within the purview of Section 307, I.P.C. It was no doubt held in Reg v. F. Cassidy, 4 Bom HC (Cr.) 17 which was followed in Martu v. Emperor, 15 Bom LR 991 that for a person, to be convicted under Section 307, I.P.C. the act done must be an act done under such circumstances that death might be caused if the act took effect, that is to say, the act must be capable of causing death in the natural and ordinary course of things. But these decisions were not followed by the same High Court in Wasudeo Balwant Gogte v. Emperor, ILR 56 Bom 434 : (AIR 1932 Bom 279). There is a large body of decisions of other High Courts to the same effect as the decision in Gogte's case, ILR 56 Bom 434 : (AIR 1932 Bom 279). There, Beaumont C. J. referring to Cassidy's case, 4 Bom HC (Cr.) 17 has observed:
"If the reasoning of the learned Judges in that case be right as to the construction of Section 307 and if the act committed by the accused must be an act capable of causing death in the ordinary course, it seems to me that logically the section could never have any effect at all. If an act is done which in fact does not cause death, it is impossible to say that that precise act might have caused death. There must be some change in the act to produce a different result, and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in Section 307 is merely a question of degree. If a man points at his enemy a gun which he believes to be loaded but which in fact is not loaded intending to commit murder (which is Cassidy's case), it is no doubt certain that no death will result from the act.
But equally certain is it that no death will result if the accused fires a revolver at his enemy in such circumstances that in fact, whether through defect of aim, or the activity of the target, the bullet and the intended victim will not meet. If, however, Section 307 does not cover the case of a man who fires a gun at his enemy with intent to kill him but misses his aim, it is difficult to see how the section can ever have any operation."
4. After pointing out that this decision was not followed by the Allahabad High Court in Queen Empress v. Niddha, ILR 14 All 38 the learned Chief Justice continued:
"The words 'under such circumstances' refer to acts which would introduce a defence to a charge of murder, such as, for instance, that the accused was acting in self-defence or in the course of military duty. But if you have an act done with a sufficiently guilty intention and knowledge and in circumstances which do not from their nature afford a defence to a charge of murder, and if the act is of such a nature as would have caused death in the usual course of events but for something beyond the accused's control which prevented that result, then it seems to me that the case falls within Section 307."
5. Thus according to the learned Chief Justice the act to fall within Section 307 must be such that but for the intervention of some circumstance it would, if completed, have resulted in, death. There is no evidence in this case that a fatal injury or an injury to a vital organ was prevented by any intervening circumstance.
6. All these decisions were considered by this Court in Om Prakash v. State of Punjab,1962-2 SCR 254 : (AIR 1961 SC 1782) and though Cassidy's case, 4 Bom HC (Cr.) 17 was not expressly dissented from the actual view taken by this Court is more in consonance with the view taken by Beaumont C. J. in Gogte's case, ILR 56 Bom 434 : (AIR 1932 Bom 279) and the view taken by the Allahabad High Court in Niddha's Case, ILR 14 All 38 than that taken in Cassidy's case, 4 Bom HC (Cr.) 17. In Gogte's case, ILR 56 Bom 434: (AIR 1932 Bom 219) no injury was in fact occasioned to the victim Sir Earnest Hotson, the then acting Governor, due to a certain obstruction. Even so, the assailant Gogte was held by the court to be jointly (sic) under Section 307 because his act of firing a shot was committed with a guilty intention and knowledge and in such circumstances that but for the intervening fact it would have amounted to murder in the normal course of events. This view was approved by this Court. 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 Section 307.
7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I. P. C. cannot possibly be brought home to the appellant. The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan, Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment.
8. The only other question then is whether the appellant intended to cause such injury as he knew to be likely to cause death or intended to inflict an injury which was sufficient in the ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause death or cause an injury as is likely to cause death.
9. It is true that the witnesses say that the appellant used a chhura. It is also true, that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby. Again, we do not know how big the chhura was and, therefore, it cannot be said that it was sufficiently long to penetrate the abdomen deep enough to cause an injury to a vital organ which would in the ordinary course of nature be fatal. The chhura could not be recovered but the prosecution should at least have elicited from the witnesses particulars about its size. We are, therefore, unable to say with anything near certainty that the appellant had such intention or knowledge. Incidentally we may point out that Shankar Prasad does not say that after he released the wrist of Sushil the appellant inflicted or even tried to inflict any further injury on him.
10. In this state of the evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under Section 307, I. P. C. In our opinion, it amounts only to an offence under Section 324, I. P.C.”

15. Whether the offence attract Section 307 of the Indian Penal Code often raises some difficulty. It is well settled that the extent and nature of the injuries is not necessarily decisive in determining the intention. In a given case, the intention to cause death may be inferred even if there is no injury which is caused, illustratively if the accused fires at intended victim and misses. Several factors are required to be considered in order to ascertain whether the requisite intention or knowledge as would attract Section 307 of the Indian Penal Code can be attributed to the accused. There is no cut and dried formula and indeed there can be none. The nature of the weapon, the force of the blow, number of blows inflicted, whether the accused was carrying the weapon or he could lay his hand on a weapon, the nature and extent of injuries suffered, the organ of the body on which the injury is inflicted, the attending circumstances like prelude to the incident, words spoken and conduct before, at the time of, and after the assault are the circumstances which may assist the Court in determining whether the requisite intention or knowledge can be attributed to the accused. The list is not exhaustive and cannot be exhaustive.

16. The medical evidence is not conclusive in the sense that although five injuries are seen on the person of the injured, inexplicably the nature of the injuries is not mentioned in the certificate. Whether the injuries noticed were simple or grievous is left unsaid. Injury 1 is described as incised injury 1 cm in length on the middle abdomen. The width and depth of the injury is not mentioned. Injury 2 again is described as 1.5 cm. in length. Again the width and depth is not mentioned. Injury 3 is on the back. The size 3.5 cm. x 1 cm. Injury 4 is again on the back and is 1 cm. deep. Injury 5 is on the back and the dimensions are not mentioned. The medical certificate is issued on 24-3-2017. It is only in response to the query of the police that the doctor says that the injuries were dangerous in nature. The injured PW 1 was irrefutably treated in the hospital which is clear from the fact that her statement Exhibit 9 is recorded in the hospital. However, nothing is brought on record to throw light on the treatment received by the injured in the hospital. The statement of the injured in the examination-in-chief that the accused took out a 'small knife' is also significant.

17. Irrefutably, even if the prosecution case is to be believed, the incident is of fall out of some discord in the relationship. It is not necessary to look into the defence that the accused refused to marry PW 1 and enraged by the refusal P.W. 1 herself inflicted the injuries. However, if the entire evidence is holistically considered, it is difficult to come to any conclusion with any degree of certainty that the accused intended to cause death or that the accused did have the knowledge that by inflicting the injuries which he intended to inflict, death is likely to be caused.

18. In my considered opinion, to the extent the accused is held guilty of offence punishable under Section 307 of the Indian Penal Code the judgment impugned will have to be set aside.

19. The conviction of the accused under Section 307 of the Indian Penal Code is set aside and instead the accused is convicted for offence punishable under Section 324 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years. The sentence of fine is maintained.

20. The appeal is partly allowed in the afore stated terms.

21. The fees of the appointed Counsel be paid as per Rules.