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CASE NO.: Appeal (crl.)  798 of 2004

PETITIONER: Bappa alias Bapu

RESPONDENT: The State of Maharashtra & Anr.

DATE OF JUDGMENT: 05/08/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP(CRL) No. 5006/2003)

ARIJIT PASAYAT, J

       Leave granted.

       The appellant was convicted for offence punishable under Section 307 of  the Indian Penal Code, 1860 (in short the ’IPC’)  and sentenced  to undergo  rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- with default  stipulation.  It was further directed that in case the fine was deposited, an amount  of Rs. 2,000/- was to be paid to the injured person as compensation.  One Rao  Saheb Nagorao Khose also faced trial under Section 307 read with Section 109  IPC.  He was acquitted by the Trial Court. But appellant’s appeal before the  Bombay High Court, Aurangabad Bench did not bring any relief to the appellant.

       Prosecution version as unfolded during trial is as follows:

Accused Bappa alias  Bapu (A-1) alongwith  Bibhishan (PW-10) had gone  to cinema to witness a movie and were coming back by bicycle. Suddenly the  appellant got down from the bicycle and stabbed Bibhishan on his stomach and  back and started to press his neck.  Hearing his cries for help some villagers came  running. The accused tried to run away from the spot but was caught by the  villagers and handed over to the police.  Victim was taken to the hospital.  Two  other persons, one of whom, namely, Rajabhau, as noted above, was charged for  commission of offence punishable under Section 307 read with Section 109 IPC.   On the basis of the first information report lodged, investigation was undertaken  and charge-sheet was placed.  On consideration of the evidence on record, more  particularly that of the victim, learned Assistant Sessions Judge found the  appellant guilty of offence punishable under Section 307 IPC, and sentenced him  to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-  with default stipulation.  The accused preferred an appeal before the Bombay  High Court, Aurangabad Bench. The same was dismissed by the impugned  judgment.

       According to the learned counsel for the appellant, keeping in view the  nature of the injuries sustained, the offence cannot be said to be one covered by  Section 307 IPC but one relatable to Section 324 or Section 326 IPC.   Alternatively it was submitted that the custodial sentence of 10 years as has been  imposed is harsh.           Learned counsel for the State on the other hand submitted that the trial  Court and the High Court have analysed the factual position in detail, and the  accused has been rightly convicted for offence punishable under Section 307 IPC.   Keeping in view the nature of the injuries sustained, it cannot be said that the

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sentence is excessive.

       Section 307 IPC reads: "Attempt to murder - 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."  

       It is sufficient to justify a conviction under Section 307 if there is present  an intent coupled with some overtact in execution thereof.  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 Sections 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.  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.   

       In Sarju Prasad v. State of Bihar (AIR 1965 SC 843)  it was observed that  the mere fact that the injury actually inflicted by the accused did not cut any vital  organ of the victim, is not itself sufficient to take the act out of the purview of  Section 307 IPC.        

The above position was highlighted in State of Maharashtra v. Balram  Bama Patil and Ors. (1983 (2) SCC 28), Girija Shankar v. State of U.P. (JT 2004  (2) SC 140) and Vasant Vithu Jadhav  v. State of Maharashtra  (2004 AIR SCW  1523).  

       In view of the aforesaid analysis the accused appellant has been rightly  convicted for offence punishable under Section 307 IPC.    

The residual question is whether a sentence of 10 years rigorous  imprisonment is justified.  No doubt, as noticed by the trial court and the High  Court, injuries inflicted on the victim were of serious nature.  But considering the  background facts and peculiar features of the case, custodial sentence of 5 years  rigorous imprisonment would meet the ends of justice.

Appeal is partly allowed to the extent as noted above.