Full Judgment Text
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CASE NO.:
Appeal (crl.) 522 of 1997
PETITIONER:
Vasant Vithu Jadhav
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 09/03/2004
BENCH:
Y.K. SABHARWAL & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
When member of a disciplined force like police force is
accused of having shot his colleague with a gun, it
naturally raises eyebrows and the case at hand is one such
case. The victim Vilas (PW-2) was a relative of the
accused.
According to the prosecution, over a petty family
matter, accused took exception and on 18.7.1983 fired a gun
from a very close range aiming at the victim lying on a cot.
Luckily, the shot did not hit the victim, it hit springs of
the cot, the bullet broke into pieces and the splinters
entered into his leg. Information was lodged with the
police, investigation was undertaken and charge sheet was
filed for alleged commission of offence punishable under
Section 307 of the Indian Penal Code, 1860 (for short ’the
IPC’) and Section 27 of the Arms Act, 1959 (for short ’the
Arms Act’).
The Trial Court placing reliance on the evidence of the
witnesses including victim found the accused guilty of the
offence punishable under Section 324 IPC and sentenced him
to undergo RI for one year. Similar sentence was imposed
for the offence under the Arms Act. It was held that the
factual background did not warrant conviction under Section
307 IPC. The State of Maharashtra filed an appeal
questioning acquittal of charge under Section 307 IPC, while
the accused questioned the conviction. Both the appeals
were heard together by the Division Bench which by the
impugned judgment held that case under Section 307 was
clearly made out, and the Trial Court was not justified in
holding that the accused was guilty of offence punishable
under Section 324 IPC. Taking into account the fact that the
accused was supposed to be a guardian of law on the date of
the occurrence and at a public place i.e. the guard room in
the District Head Police headquarters, he took law in his
hands, custodial sentence of 10 years RI was imposed. The
sentence under the Arms Act was maintained. The appeal filed
by the accused was dismissed.
In support of the appeal, learned counsel for the
accused appellant submitted that both the Trial Court and
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the High Court have fallen into grave error by holding that
the prosecution evidence established commission of an
offence and consequently holding accused appellant guilty.
Material evidence which would have shown that the appellant
could not have committed the crime was suppressed. It was
further submitted that even if the prosecution version is
accepted in toto, offence under Section 307 IPC is not made
out, as was rightly held by the Trial Court. Strong Reliance
was placed on few decisions of this Court. Ram Prasad and
Anr. v. State of Uttar Pradesh (1982 (2) SCC 149) and Kundan
Singh v. State of Punjab (1982 (3) SCC 213). In any event,
sentence imposed is harsh.
Learned counsel for the respondent-State supported the
judgment of the High Court stating that well reasoned
judgment of the High Court needs no interference.
Before dealing with the rival stands, it would be
necessary to take note of the few factual aspects
highlighted.
On 2.7.1983, victim Vilas’s brother Bhagwan was
married. In the said marriage, family members of the
accused were not invited. It appears that they took
exception 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 a deity, wherein despite being invited Vilas’s
family members did not join. This appears to have further
soured the relationship. On 16.7.1983, when Vilas and his
relative Shankar Kikade (PW-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 to his
brother’s marriage and for not attending the feast which, he
(accused) had given in honour of the deity. He threatened
to kill Vilas in two days. Thereafter, he went away on a
bicycle.
The evidence is that Vilas (PW-2) was residing in room
no.19 with his family members in Sangli Police Headquarters.
In the same premises, the accused was also residing. In the
police Headquarters, there is a guard room and a magazine
Room which are practically adjoining. On the date of
incident, i.e. 18.7.1983, at different times, Vilas and the
accused were on guard room duty and magazine Room duty
respectively. The victim Vilas was on guard Room duty from
12 midnight to 2 a.m. and the accused was on magazine Room
duty from 2 a.m. to 4 a.m. It is not in dispute that the
guard room and the magazine room were more or less
contiguous. After 2 a.m. the victim Vilas and Head
Constable Pundalik Jadhav (PW-1) were sleeping on two
separate cots in the guard room. Some tubelights were
lighting outside the guard room and the same resulted in
visibility therein. At about 3.30 a.m., the accused came to
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
(PW-1). The accused went away. After about 25 minutes i.e.
at 3.55 a.m. Vishnu 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
rifle which the accused had used was of police constable
Bansode (PW-3). Constable Jagannath Whaval (PW-4) Police
Jamadar Madhukar Jadhav (PW-6), Police Naik Rajan Kamble
(PW-7) and Police constable Kisan Mali (PW-8) who were
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sleeping in the immediate proximity of the victim Vilas saw
the accused coming out from the guard room and running
towards east. The victim Vilas discovered that he was
precariously injured. Pundalik Jadhav who was sleeping in
the same room, Madhukar Jadhav (PW-6) and some others
reached the guard room. PW-6 gave a phone call to Dy. S.P.
Malsure. He thereafter, took the victim to the Civil
Hospital, Sangli.
In the aforesaid factual scenario it has to be seen
whether Section 307 has application. Section 307, IPC reads
as follows:
"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 hereinbefore mentioned."
To justify a conviction under this Section, it is not
essential that bodily injury capable of causing death should
have been inflicted. Although the nature of injury actually
caused may often give considerable assistance in coming to a
finding as to the intention of the accused, such intention
may also be deduced from other circumstances, and may even,
in some cases, be ascertained without any reference at all
to actual wounds. The Section makes a distinction between an
act of the accused and its result, if any. Such an act may
not be attended by any result so far as the person assaulted
is concerned, but still there may be cases in which the
culprit would be liable under this Section. It is not
necessary that the injury actually caused to the victim of
the assault should be sufficient under ordinary
circumstances to cause the death of the person assaulted.
What the Court has to see is whether the act, irrespective
of its result, was done with the intention or knowledge and
under circumstances mentioned in the Section. An attempt in
order to be criminal need not be the penultimate act. It is
sufficient in law, if there is present an intent coupled
with some overt act in execution thereof.
It is sufficient to justify a conviction under Section
307 if there is present an intent coupled with some overt
act in execution thereof. It is not essential that bodily
injury capable of causing death should have been inflicted.
The Section makes a distinction between the act of the
accused and its result, if any. The Court has to see
whether the act, irrespective of its result, was done with
the intention or knowledge and under circumstances mentioned
in the Section. Therefore, it is not correct to acquit an
accused of the charge under Section 307 IPC merely because
the injuries inflicted on the victim were in the nature of a
simple hurt.
This position was highlighted in State of Maharashtra
v. Balram Bama Patil and Ors. (1983 (2) SCC 28) and in
Criminal Appeal No. 1034 of 1997 decided on 4.2.2004, and in
Criminal Appeal No. 1179 of 1997 decided on 11.2.2004.
In Sarju Prasad v. State of Bihar (AIR 1965 SC 843) it
was observed in para 6 that mere fact that the injury
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actually inflicted by the accused did not cut any vital
organ of the victim, is not by itself sufficient to take the
act out of the purview of Section 307.
Whether there was intention to kill or knowledge that
death will be caused is a question of fact and would depend
on the facts of a given case. The circumstances that the
injury inflicted by the accused was simple or minor will not
by itself rule out application of Section 307 IPC. The
determinative question is intention or knowledge, as the
case may be, and not nature of the injury.
In the case at hand the accused fired gun from a very
close range of about 6-8 feet aiming at the victim when he
was sleeping. The bullet broke into pieces and three such
pieces struck the accused. Both intention and knowledge in
terms of Section 307 can be attributed to the accused.
Therefore, the High Court was justified in recording
conviction of the accused-appellant under Section 307 IPC.
The residual question is whether the sentence is harsh.
It is true as noted by the High Court, a guardian of law
took law into his own hands and in a public place fired a
shot. Unless severe punishment is imposed it may provide
impetus to indisciplined persons in disciplined forces.
However, taking into account the peculiar circumstances of
the case and the background facts highlighted above, we feel
custodial sentence of 5 years would have necessarily
chastening and deterrent effect on the accused. We do not
find infirmity in the conviction under Section 27 of the
Arms Act.
The appeal is allowed only in respect of sentence
imposed relating to Section 307 IPC, and for all other
aspects it stands dismissed.