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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.