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CASE NO.: Appeal (crl.)  986 of 2006

PETITIONER: Bipin Bihari                                                     

RESPONDENT: State of M.P.                                                    

DATE OF JUDGMENT: 20/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  (Arising out of SLP (Crl.) NO. 1028/2006)

ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Madhya Pradesh High Court, Jabalpur  Bench confirming the conviction of the appellant in terms of  Section 307 of the Indian Penal Code, 1860 (in short the ’IPC’)  as done by the trial Court. However, the custodial sentence of  imprisonment for life imposed  was reduced, quantum of fine  was increased from Rs.5,000/- to Rs.30,000/- and in default   sentence was stipulated.  The custodial sentence of two years  was imposed. It was held that in case the fine is not paid  within four months, the accused shall undergo further  rigorous imprisonment for four years. The fine amount on  deposit was to be paid as compensation to the victim.    

       The factual background in a nutshell is as under:

       Complainant Mahabali on 18.11.2002 at about 5.00 p.m.  was grazing his ox in his field. His sister-in-law Jamuni Bai  was cutting the crop. On hearing her cry for help, the  complainant rushed towards her and found that the appellant  had entered into an altercation with her. He found that the  appellant was carrying a gun and was restraining his sister-in- law from cutting the crop. On seeing the complainant,  appellant brandished the gun and gave threat of dire  consequences. Despite the threat, the complainant caught  hold of the gun of appellant as a result of which appellant  hurled abuses and threatened to kill him. Thereafter the  accused fired the gun and the bullet struck the right calf of  the complainant, as a consequence of which the flesh of that  region was ripped open. In spite of the aforesaid injury  complainant continued to grapple with the appellant, as he  wanted to load the gun again. But he failed because  complainant was grappling with him. At that juncture, Lav  Kush, Ram Kripal and Motilal arrived at the spot. On seeing  these persons, the appellant fled away and left the gun at the  spot. The incident was witnessed by sister-in-law of  complainant, who had testified that the appellant was making  threatening utterances.

The incident was reported at the police station by the  injured complainant, Mahabali. On the basis of FIR lodged by

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the complainant, the criminal law was set in motion. The  investigating agency sent the complainant for medical  examination; recorded the statements of witnesses; prepared  the spot map; seized necessary articles and after completing  the investigation submitted the charge-sheet in the concerned   court from where it was received by the trial Court for trial.

The learned trial Judge framed charge for commission of  offence punishable under Section 307 IPC. The appellant  denied the indictment and requested for trial. The prosecution  examined 12 witnesses and placed Ex.P-1 to P-19  documents  on record. As noted above, the trial Court found the accused  guilty, convicted and sentenced him. High Court in appeal, as  noted above, maintained the conviction, but modified the  sentence.   

       In support of the appeal, learned counsel for the accused  appellant submitted that the High Court was not justified in  holding that the conviction has to be made in terms of Section  307 IPC. The fine as imposed is harsh and unreasonable.  

       In response, learned counsel for the respondent-State  submitted that the High Court’s judgment does not suffer from  any infirmity to warrant interference.  

       Section 307 IPC reads as follows: "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 overt act 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

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1523) and Bappa @ Bapu v. State of Maharashtra and Anr.  (2004 (6) SCC 485).  The conviction as done is in order.  

       Coming to the custodial sentence imposed, the  imprisonment cannot be termed to be in any way harsh  considering the nature of the injury inflicted by the accused on  the victim. However, the fine appears to be on higher side. The  same is reduced to Rs.15,000/- and shall be paid within a  period of 6 months. In case it is not paid,  default custodial  sentence would be one and a half years  imprisonment. If the  payment is made, an amount of Rs.10,000/- shall be paid to  the victim.  

       The appeal is disposed of accordingly.