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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.