Jawahar Gond vs State Of Chhattisgarh

The challenge in the present appeal is to the impugned judgment dated 16.10.2001 passed by the Sessions Judge, Ambikapur in Sessions Case No.374 of 1998. Vide the said judgment, the learned trial Court had convicted the appellant for the offence punishable under Section 307 of IPC and have been sentenced to undergo RI for 4 years and with fine of Rs. 7000/- with default stipulation of non payment of fine an additional RI of 6 months.

The case of the prosecution is that on 14.07.1998, PW-1 Vijay Soni who was the vendor of aluminium utensils who used to sell aluminium utensils by taking the utensils on his bicycle and visiting the villages. It is said that on the date of accident i.e. 14.07.1998 the appellant is said to have stopped the said PW-1 with an intention of purchasing some utensils. That in the course of negotiation between the appellant and seller of the utensils PW-1 Vijay Soni, there was some altercation that took place so far as quality and weight of the utensils which the PW-1 intended to sell to the appellant herein. In the course of the altercation the appellant is said to have picked up a spade which was lying nearby and attacked the utensil seller PW-1. On account of which he suffered grievous injuries on his head. An FIR was lodged after two days i.e. on 17.07.1998 at police station Rajpur, District Surguja. An FIR was lodged by one Jamuna Soni, PW-2, the uncle of the injured witness, PW-1. As per the prosecution the injured PW-1 Vijay Soni is said to have been hospitalized and undergone treatment nearly for about a month. In the process he had to be treated by three doctors, PW-3, Sharad Grewal who conducted the MLC, Dr. A. K. Jaiswal, PW-7 who had treated the injured PW-1 and Dr. Ajay Narang PW-10, Neuro Surgeon who conducted the surgery upon PW-1 injured. Subsequently, based upon the investigation conducted by the police an FIR that was lodged, a charge-sheet was filed and matter was put to trial. In all there were 12 witnesses examined on behalf of the prosecution. There was no evidence led by the defence except for recording of the statement under Section 313 of Cr.P.C. Finally the trial Court vide the impugned judgment dated 16.10.2001 found the appellant to be guilty of the said offence under Section 307 and has been sentenced to undergo RI for 4 years with fine of Rs. 7000/-with default stipulation.

Contention of the learned counsel for the appellant herein is that from the plain reading of the evidence of PW-1 itself, it would be reflected that there was no earlier dispute between the appellant and injured PW-1 Vijay Soni. Likewise, there was no premeditation on the part of the appellant for assaulting the injured for any reasons other than the dispute that occurred there itself on the date of accident in respect of sale and purchase of utensils between the appellant and injured PW-1. Further contention of the learned counsel for the appellant is that there was no intention whatsoever on the part of the appellant in causing death of the victim or the assault being made with an intention of causing death of the injured PW-1.

Learned counsel for the appellant submits that the entire incident occurred on account of a sudden altercation that took place between the parties and at the spur of the moment the appellant picked up a spade and assaulted the injured PW-1. Learned counsel for the appellant considering the overall evidences which have come on record and the injuries suffered by the appellant, submits that it is a fit case where it could be safely concluded that evidence under Section 307 is not made out. At best it could be a case of the grievous injury caused by the appellant and for which the appellant could had been prosecuted only for the offence under Section 326. He further submits that by now the appellant has already undergone roughly about 2 years of custody and therefore the appeal may be allowed to the extent of reducing the sentence to the period already undergone.

State counsel on the other hand opposing the appeal submits that the plain reading of the evidence of three doctors would show the gravity of the injuries sustained. Further that the duration of the treatment undertaken by the injured PW-1 would also show that the nature of injuries to be quite serious. The appellant was quite aware of the fact that the assault being made from the blunt side of the spade, particularly on the head of a person there was all likelihood of causing death of the injured. More particularly, taking into consideration the fact that all the assaults made was on the vital parts i.e. around head of the injured PW-1 and therefore the evidence could be said to have been proved under Section 307 and judgment of conviction and the sentence imposed does not warrant interference.

Having heard the contentions put forth on either side and on perusal of records, what is necessary to be taken into account is the fact that the incident in the instant case is of 1998 i.e. around 25 years back. The appellant at the time of incident was around 28-29 years of age and by efflux of time, he has now reached the age of around 54-55 years. The appellant meanwhile has undergone total sentence of around 1 year and 10 months time. PW-1 the main injured witness is a vendor of utensils selling his products in the villages by carrying them on a bicycle. It is said that the appellant herein had stopped the injured PW-1 with an intention of buying the utensils and in the course of negotiation there was some heated arguments that took place and suddenly the appellant picked up a spade that was lying nearby and assaulted the injured PW-1 on his head causing injuries and the injured became unconscious. He was taken to the hospital by his uncle PW-2 Jamuna Soni. From the evidence of injured PW-1, it also reflects that the injured in the course of discussion, he realized that the appellant herein was in an inebriated condition and so was the person named Basant who was also standing along with the appellant at the time of incident. Though, the said Basant was not made an accused in the entire case, nor was his name reflected by any person at the time of lodging of FIR. The statement of PW-2 Jamuna Soni would also reflect that there was ample evidences which would reveal that immediately after the incident, it was the appellant who picked up the bicycle of the injured PW-1 Vijay Soni along with utensils that were tied to it and roamed around the village. It was in that circumstances that the incident stood proved about the assault on PW-1 was by the present appellant alone and on the basis of which the FIR and subsequent investigations were conducted. During the course of trial PW-1 Vijay Soni has given detailed description of the entire transactions that transpired on the date of incident i.e. on 14.07.1998. In his deposition, the PW-1 injured has clearly named the present appellant and have identified him also. He knew him earlier. The injured witness has also specifically narrated the fact as regards the assault made by the appellant herein with a spade on the head of the injured PW-1.

In view of the categorical consistent stand of PW- 1 before the trial Court in respect of the entire incident, there is no hesitation for this Court in reaching to the conclusion of the prosecution having proved the incident that occurred on 14.07.1998. The nature of injuries suffered by the PW-1 also stands established from the evidence of three doctors PW-3, PW-7 & PW-10 namely, Dr. Sharad Grewal, Dr. A. K. Jaiswal & Mr. Ajay Narang respectively. It is also evident from the deposition of the PW-1 that there was no previous enmity between the appellant and PW-1. Further the incident occurred only on account of the altercation that took place on the date of incident which would further show that the appellant never was premeditated for the assault that was made on the said date and it only occurred at the spur of the moment in the course of altercation that took place between the two persons.

It would be relevant at this juncture to take note of the judgment of Division Bench of this Court in CRA No.867 of 2010 wherein dealing with the offence under Section 307 and ingredients required for making out an offence under Section 307 the Division Bench in paragraph 13 to 17 has held as under :-

“13.The Supreme Court in the matter of Hari Singh v.Sukhbir Singh and others, (1988) 4 SCC 551 has held that under Section 307 of the IPC 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 provision. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. It has been further held that the nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

Similarly, in the matter of State of Maharashtra v. Kashirao and others, (2003) 10 SCC 434 their Lordships of the Supreme Court have held that for the application of Section 307 of the IPC, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 of the IPC. It has been observed by their Lordships in para 21 of the report as under:

“21. In offence under Section 307 all the ingredients of the offence of murder are present except the death of the victim. For the application of Section 307, it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained, alteration of conviction notwithstanding no modification of sentence need be made. ...”

15.The Supreme Court in the matter of Parsuram Pandey and others v. State of Bihar, (2004) 13 SCC 189 has also held that to constitute an offence under Section 307 of the IPC, two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. It has been held in paragraph 15 of the report as under:

“15. To constitute an offence under Section 307 two ingredients of the offence must be present: (a) an intention of or knowledge relating to commission of murder; and (b) the doing of an act towards it. For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence “of attempt to murder”. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors....”

Similarly, the Supreme Court in the matter of Jage Ram and others v. State of Haryana, 4 (2015) 11 SCC 366 has laid down the ingredients of the offence under Section 307 of the IPC and held as under:

“12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.

Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, the courts below recorded concurrent findings convicting the second appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable.”

The Supreme Court in the matter of Jai Narain Mishra and others v. State of Bihar, 1971(3) SCC 762 where four to five persons attacked a man with deadly weapons but causing only three simple and one grievous hurt to the injured by farsa, their Lordships held that offence under 326 of the IPC would be made out and held as under in paragraph 11 of the report:

“11. Taking the case of appellant Suraj Mishra, we find that he has been convicted under Section 307 I.P.C. and sentenced to 5 years rigorous imprisonment. According to the evidence Suraj was responsible for the chest injury which is described by Dr. Mishra P.W. 6 as a penetrating wound 1½" x ½” x chest wall deep (wound not probed) on the side of the right side of the chest. Margins were clean cut. Suraj, according to the evidence, had thrust a bhala into the chest when Shyamdutt had fallen as a result of the blow given by Mandeo with the farsa on his head. According to the Doctor the wound in the chest was of a grievous nature as the patient developed surgical emphysema on the right side of the chest. There was profuse bleeding and, according to the Medical Officer the condition of the patient at the time of the admission was low and serious and the injury was dangerous to life. Out of the four injuries which the Medical Officer noted, this injury was of a grievous nature while the other three injuries were simple in nature. Where four or five persons attack a man with deadly weapons it may well be presumed that the intention is to cause death. In the present case, however, three injuries are of a simple nature though deadly weapons were used and the fourth injury caused by Suraj, though endangering life could not be deemed to be an injury which would have necessarily caused death but for timely medical aid. The benefit of doubt must, therefore, be given to Suraj with regard to the injury intended to be caused and, in our opinion, the offence is not one under Section 307, I.P.C., but Section 326, I.P.C. His conviction, therefore, under Section 307, I.P.C. is set aside and we convict him under Section 326, I.P.C. His sentence of 5 years rigorous imprisonment will have to be reduced accordingly to 3 years rigorous imprisonment.”

The judicial pronouncements referred to by the Division Bench in the aforesaid matters would clearly give an indication that mere injuries on the vital part of body by itself would not be sufficient so as to attract the offence under Section 307 of IPC is concerned. It is also the intention or knowledge of the appellant or the accused which would be more necessary to be available at the time of assault being made. Under Section 307, the precedes the act attributed to the accused, the intention is to be gathered from the circumstances under which the assault was made. As has been discussed in the preceding paragraphs, the incident in the instant case occurred during the course of negotiation being made between the appellant and PW-1 so far as purchase of utensils by the appellant from PW-1.

Again as has been reflected, there was no previous enmity between them. Nor was the appellant already in possession of a weapon kept with him with a clear intention of attacking the injured PW-1. The entire incident occurred at the spur of the moment. Further PW-1 himself accepted the appellant to be in an inebriated condition at the time of incident though there is no medical evidence in this regard available. Nonetheless, the conduct of the appellant before the incident and also immediately preceding the incident would reveal that he perhaps was in inebriated condition as would be reflected by his subsequent act of picking up the bicycle of the injured PW-1 along with the utensils which were tied to it and roaming around the village on the said bicycle.

Section 320 of the IPC defines grievous hurt. For ready reference Section 320 is reproduced hereinunder :-

“320. Grievous hurt.—The following kinds of hurt only are designated as “grievous”:—

(First) — Emasculation.

(Secondly) —Permanent privation of the sight of either eye. (Thirdly) — Permanent privation of the hearing of either ear, (Fourthly) —Privation of any member or joint.

(Fifthly) — Destruction or permanent impairing of the powers of any member or joint.

(Sixthly) — Permanent disfiguration of the head or face.

(Seventhly) —Fracture or dislocation of a bone or tooth.

(Eighthly) —Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.”

Considering the evidences of Doctors PW-3 , Sharad Grewal, this Court has no hesitation in reaching to the conclusion that nature of injuries suffered by the victim PW-1 is one which could be safely brought in within the definition of grievous hurt under Section 320. The offence levelled against the appellant could be safely brought within Section 326 of the IPC instead of Section 307 that was levelled and as the appellant was charged for and held guilty.

The appellant in the instant case has already remained in custody for a period of 1 year and 10 months. The appeal is almost about 25 years old. Under the circumstances, this Court at this juncture in the larger interest of justice would only like to affirm the conviction of the appellant and to hold the appellant guilty of offence under Section 326 of the IPC instead of Section 307 of the IPC. The sentence part would however stand reduced to the period already undergone. However, as regards the fine that has been imposed, this Court is inclined to enhance the same considering the nature of injuries and the period of treatment undergone by the injured PW-1 Vijay Soni. This Court therefore enhances the fine amount of Rs.7000/- to Rs. 15000 with a direction to that the remaining amount of penalty should be paid by the appellant within a period of two months, failing which the default stipulation imposed by the Trial Court would stand.

Accordingly, the appeal stands partly allowed.