(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1 The appellant was accused before Sessions Court, Nadiad, in Sessions Case No. 31 of 2006. He came to be tried and convicted for the offences punishable under Sections 307 and 324 of the Indian Penal Code and was sentenced to RI for 10 years with a fine of Rs. 25,000/-, in default, RI for two years and RI for three years with fine of Rs. 2,000/-, in default, RI for six months respectively. The Trial Court has given set off to the accused and both the sentences were ordered to run concurrently. The Trial Court has also ordered that if the fine is paid by the accused, an amount of Rs. 25,000/- shall be paid to the complainant by way of compensation.
2 As per the prosecution case, the incident occurred on 8.8.2005 at about 5.30 hours in the morning at village Bhungiya in the house of Badarbhai Shanabhai Parmar, located at Indira Awas. Said first informant Badarbhai Shanabhai Parmar was sleeping in the Osri of his house. His daughter Savita was also sleeping in the Osri. At about 5.30 hours in the morning, the accused - appellant went to the house of the first informant, armed with a dharia and a knife. He took out the dharia and attacked Badarbhai Shanabhai Parmar, causing multiple injuries on vital parts of his body. There was a havoc because of the attack and, therefore, the first informant's daughter – Savita woke up and intervened. Even she was attacked with dharia by the appellant and when she snatched away the dharia from the appellant, the appellant attacked the first informant with knife and caused further injuries to the first informant Badarbhai Shanabhai Parmar. The appellant is alleged to have made nurturing animosity with the first informant because of an incident which had occurred in the past. The said incident was that the appellant had teased the wife of the first informant, because of which, the first informant had given some thrashes to the accused appellant and, therefore, on the relevant day, the appellant allegedly attacked the first informant so also his daughter Savitaben upon her intervention.
3 After the incident, the first informant lodged a complaint with the Kapadwanj Rural Police Station. The offence was registered and investigated. The police filed a charge sheet in the court of learned Judicial Magistrate, First Class, Kapadwanj, who in turn committed the case to the Court of Sessions and Sessions Case No. 31 of 2006 came to be registered.
Charge was framed against the accused at Exhibit-2 for the offences punishable under Sections 307 and 324 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried.
4 The Trial Court after considering the evidence on record, found that the prosecution was successful in proving the charges against the accused – appellant and, therefore, recorded his conviction and sentenced him for life imprisonment, as stated here-in-above, by judgment and order dated 29th May, 2006 passed in Sessions Case No. 31 of 2006. Hence, this appeal.
5 The prosecution has examined both the victims i.e. first informant - Badarbhai Shanabhai Parmar, as PW-1 at Exhibit-6 and Savita as PW-9 at Exhibit-31. Both these witnesses have suffered injury at the hands of the accused and they have struck to their version in their depositions in spite of a thorough cross- examination.
What emerges from their evidence is that both of them were sleeping in the Osri of the house on the relevant day, when in the early morning hours at about 5.30, the appellant came with a dharia and attacked Badarbhai Shanabhai Parmar, who was asleep. There was no dialogue, no altercation, no quarrel, no fight. There is no history of any dispute in the recent past between the first informant and accused. On being attacked, first informant Badarbhai Shanabhai Parmar resisted. There was some commotion which woke up his daughter Savita. Savita is aged about 20 years. She has shown good courage. She immediately resisted the attack and was, ultimately, able to snatch away the dharia from the accused. Of course, in the meantime, several blows were given to Badarbhai Shanabhai Parmar as well as Savita with that dharia. When the dharia was snatched away by Savita from appellant, he attacked Badarbhai Shanabhai Parmar with a knife and injured him further. In the meantime, neighbouring residents Ramanbhai, Babubhai, Rajubhai, Manjulaben, etc came and therefore, the accused – appellant escaped from the place along with the dharia and knife.
6 The prosecution examined Ramanbhai Shankarbhai Parmar as PW-10 at Exhibit-32 and Lalitaben Badarbhai as PW-8 at Exhibit-30. Both these witnesses have supported the prosecution case and, ultimately, the Trial Court recorded conviction of the appellant - accused.
7 Learned Advocate Mr. Pratik B Barot, for the appellant, submitted that the prosecution has attributed a motive in respect of the incident of teasing of the wife of the complainant and the complainant then giving thrashes to the appellant, are more than a year old and, therefore, the motive which is attributed is stale. Mr. Barot submitted further that the injuries which was suffered by the first informant are not opined by the Doctor to be sufficient to cause death in ordinary course of nature. Mr. Barot, in all fairness, has submitted that it may not be possible for the appellant to pray for a clean acquittal on the ground of doubtful involvement in the incident, but even if his involvement in the incident is accepted, he could not have been convicted for the offence punishable under Section-307 of the Indian Penal Code, in light of the fact that the Doctor has not opined that the injuries were sufficient in the ordinary course of nature to cause death.
8 On the other hand, learned APP Mr. L.B. Dabhi has submitted that for recording conviction for an attempt to murder, it is not necessary that an injury could be caused. Mr. Dabhi submitted that the intention has to be culled out from the conduct of the accused and other peripheral material, and if it is found that there was an intention to cause death or to cause bodily injury which is likely to cause death, the offence of attempt to murder could be constituted. Mr. Dabhi relied on two decisions of the Apex Court, viz. in the case of State of Madhya Pradesh vs. Kashiram reported at AIR 2009 SC 1642: 2009 (4) SCC 26 and in the case of State of Madhya Pradesh vs. Kedar Yadav, as reported at 2007 (1) Crimes 315 (SC), to substantiate his submission.
9 We have examined the record and proceedings in the context of rival submissions. We found that Badarbhai Shanabhai Parmar and Savita, both have deposed about the accused attacking Badarbhai at 5.30 hours in the morning on 8.8.2005 while they were sleeping in the Osri of their house, with a dharia and caused number of injuries. Badarbhai resisted the attack. There was some commotion, because of which, Savita woke up. She boldly intervened and the appellant attacked her with dharia and caused injuries to her as well. She was, however, successful in snatching away the dharia when the appellant attacked Badarbhai with a knife and caused further hurt. This havoc brought about neighbouring residents Ramanbhai, Babubhai, Rajubhai, Manjulaben, etc. Ramanbhai has deposed at Exhibit-32 that he heard shouts from the house of Badarbhai and, therefore, he went there at 5.30 in the morning on the day of the incident. He saw the appellant Mukeshbhai Ramtubhai Parmar escaping with a dharia and a knife in his hand. He also saw Badarbhai bleeding profusely. He noticed injuries on the back, chest and other parts of the body.
10 Mr. Barot has also fairly considered that involvement of the appellant is not possible to be disputed. The only argument that he is able to make is that the offence punishable under Section 307 of the Indian Penal Code, namely, attempt to murder, is not constituted and in support of the argument, he has placed reliance on the evidence of Dr. Umeshbhai Punjalal Shah, examined at Exhibit12, who had examined both the injured persons and had described injuries. This Doctor has not opined anywhere that the injuries were sufficient to cause death of a human-being in ordinary course of nature. Mr. Barot, therefore, submitted that the offence of murder would not be constituted, so also attempt to murder. This aspect is overlooked by the learned Trial Court and, therefore, the conviction may be altered from the one under Section 307 to 326 of the IPC as the muscles and ribs of the victim Badarbhai were found to have been cut.
11 Having taken a close look at the evidence of Dr.
Umeshbhai Punjalal Shah, he has stated that the muscles and ribs were cut; there were injuries on left hand which went deep into muscles on the left hand and on the left hand another injury of 6 cm x 0.5 cm size. Several other muscles were found to have been cut. The Doctor has also opined that these injuries were grievous in nature but this has not been challenged by the defence.
12 Another Dr. Ashokbhai Mohanlal Jat, examined at Exhibit-16, had also examined Badarbhai. He found injuries on the chest and back side of Badarbhai and there was a perforated antimasentric.
13 It is thus clear that Badarbhai was attacked with dharia and knife and the injuries caused to him by the appellant was at least of grievous nature. Similarly, Savitaben also had simple injuries caused to her by the appellant with dharia and knife.
14. It sets this Court to think for a moment when Mr. Barot argued that the injuries caused to Badarbhai are not sufficient to cause death in ordinary course of nature and it is essential to establish a murder and, therefore, the offence of attempt to murder punishable under Sections 307 of the Indian Penal Code would not be constituted. However, this argument was countenanced by learned APP Mr. Dabhi by saying that it is the intention which is relevant and for that purpose the conduct of the accused would also be one of the relevant factors.
15 We have given our thoughtful consideration to the aforesaid rival submissions. We have also examined the judgments relied by the learned Additional Public Prosecutor and in our opinion, the arguments advanced by Mr. Barot, learned Advocate of the appellant cannot be accepted.
16 To justify a conviction under Section 307 of the IPC, it is not essential that bodily injury capable of causing death should have been inflicted. What is important is the mental process and the mindset of the assailant. This can be deduced from his conduct and other surrounding circumstances. In the instant case, the appellant attacked Badarbhai in the early morning hours without any rhyme or reasons. Further, he attacked Badarbhai with deadly weapons and caused multiple injuries. It is also very important to note that the appellant attacked Badarbhai while he was asleep. The intention of the appellant is reflected also from the fact that upon resistance by Savita, she is also attacked by the appellant and then he attacked Badarbhai with a knife. Meaning thereby that, he was carrying two weapons, namely, a dharia and a knife, with him when he went to the house of the victims.
17 If the medical evidence is seen, the injuries which are caused to Badarbhai are on the vital parts of the body. It is fortunate that Badarbhai is survived with these injuries otherwise they are on the vital parts of the body.
18 All these above factors would reflect the mindset and intention on the part of the appellant that he was determined to attack Badarbhai, come what may, and he was determined not to leave Badarbhai and, therefore, when he was stopped from further attack by dharia, he attacked Badarbhai with knife.
19. The Apex Court in the case of State of Madhya Pradesh vs. Kashira, as reported in AIR 2009 SC 1642 : 2009 (4) SCC 26, has observed thus:
“9 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 deducted from other circumstances, as may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between the 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.
10 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, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt. “ 20 Similarly, in the case of State of Madhya Pradesh vs.
Kedar Yadav, as reported ind 2007(1) Crimes 315 (SC), it is observed that it is not essential that bodily injury capable of causing death should have been inflicted for convicting an accused under Section 307 of the IPC.
21. Having examined the factual aspects and legal position, as discussed here-in-above, we are of the view that the Trial Court cannot be said to have committed any error in convicting the appellant for the offences punishable under Sections 307 and 324 of the Indian Penal Code, the appeal must fail.
22 In the result, Appeal is dismissed. The impugned judgment and order dated 29.5.2006, rendered in Session Case No.31 of 2006, by the learned Addl. Sessions Judge and Presiding Officer, Fast Track Court No.5, Nadiad, is confirmed.
(A.L. DAVE, J.) pnnair (A.J. DESAI, J.)