Kamal Gurjar S/O Gopal Gurjar vs State Of Madhya Pradesh

The appellants have filed this present appeal challenging the judgment dated 08/01/2001 delivered by ASJ, Khachrod, District-Ujjain in S.T. No.121/1999 whereby convicted of the appellant under Section 307/34 of IPC sentencing him to undergo 10 years RI with fine of Rs.1,000/- with default stipulations each, the appellants has preferred the present appeal.

Facts in brief are that on 27/11/1998 at about 07:45 AM when complainant Sanjay going towards Grasim Factory at that time appellants and other persons assaulted him due to illegal money earning by means of Axe, he stopped the attempt of Axe by his both the hands, whereby he sustained injuries. Thereafter, the accused persons fled away from the spot. Police registered the case under Section 307/34 of IPC. After investigation, the charge-sheet was filed before the Court. Prosecution has examined as many as 11 witnesses and the appellants were charged, tried and convicted as stated in para 1 above.

The appellants have preferred this appeal on several grounds but during course of arguments, learned counsel for the appellants submitted that he does not want to press the appeal on merits. His only contention is that the sentence of the appellants be reduced to the period already undergone. It is submitted that appellants are first offender and has no criminal antecedents. Neither prior to the alleged incident nor thereafter any criminal case is ever registered against them. Appellants were in custody for a period of 9 months of jail sentence, out of the sentence awarded to them, therefore, their jail term be reduced to the period already undergone, specially keeping in view the long pendency of the appeal since 2001.

Learned Public Prosecutor has submitted that after due appreciation of the evidence on record, learned Court below has found the appellants guilty of the offence and no illegality has shown against the appellants. In such circumstances, he prayed for dismissal of the appeal.

Learned counsel for the appellants relied on the judgment passed in the case of Dharmendra Singh vs. State of M.P. reported in 2012 Cr.L.R. (M.P.) 232, in which the Court has upheld the conviction, however, as the incident is of 17 years old, the jail sentence of the appellant is reduced from three years to three months. Similarly, in the case of Ratiram and another Vs. State of M.P. reported in 2009 Cr.L.R. (M.P.) 92. In this case also, this Court has held that being 17 years old case, sentence reduced to the period already suffered.

In the present case also, the incident took place on 27/11/1998 i.e. more than 21 years ago. From perusal of the record, it reveals that the appellants were in jail for 9 months.

Intention under Section 307 of IPC

"In order to convict a person under this Section, it is more important to prove the intention of the accused to kill the victim rather than proving the act to kill. In other words, to convict a person under Section 307 of IPC, the attempt to kill the victim must arise out of a specific intention or desire to murder the victim. The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where injury is inflicted is all taken into consideration to determine the intention of the accused under this section. Therefore, in a case where the accused had a dangerous weapon but he inflicted only minor injuries on the victim showing that he had no intention to murder the victim, the accused will not be convicted under section 307 of the Indian Penal Code. Similarly, where the accused stabs the victim in the stomach near the navel region with a big knife blade, the accused would be liable to be punished for attempt to murder.

However, the nature of the injury is not always the basis to ascertain the intention as a very serious injury need not be caused in an attempt to murder. In some cases even if the injury is not grave but has been inflicted with an intention to murder a person, it would be enough to convict the accused under section 307 of the Indian Penal Code. Thus, without intention or knowledge of accused to murder the victim being established, an offence of attempt to murder cannot be framed under the Indian Penal Code.

Under Section 307 of IPC, the offence is complete even though the death of the victim does not take place. It will still be a crime under this Section when no harm is inflicted upon the victim. But the section implies that the act of the accused must be capable of causing death. An accused charged under this section cannot be acquitted merely because the injury inflicted on the victim was in the nature of simple hurt."

Section 326 in the Indian Penal Code

"326. Voluntarily causing grievous hurt by dangerous weapons or means-Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

I have also to consider the fact that there is no evidence of any earlier dispute or any serious scuffle at the time of incident. The incident happened suddenly in a heated and passionate moment. No brutality appears in the act of the appellant. No motive appears for causing injury. There are lot of chances for reformation. In all these circumstances, in my considered opinion, the case of the appellant satisfies the four requirements necessary to invoke the powers namely, (i) it was a sudden moment; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner and therefore, it falls under Section 326 of IPC.

However, considering the fact that the injured has received injuries on non-vital part of the body and appellants have undergone 9 months of the sentence and under the circumstance, considering the judgments cited by the learned counsel for the appellants and also considering the nature of the incident, keeping in view the fact that appeal is pending since 1998 and other facts and circumstances of the case, in my considered opinion, the ends of justice would be sub-served, if the sentence of the appellant is reduced to the period already undergone. Therefore, I partly allow the appeal. The conviction and sentence of the appellant under Section 307 IPC is hereby set aside. I modify the judgment passed by the learned trial Court to the extent that appellants are held guilty for the offence punishable under Section 326 of IPC instead of Section 307 of IPC and having regard to the background facts and all relevant circumstances, I impose sentence of 9 months i.e. the period which has already been suffered by the appellants by enhancing the fine amount from Rs.1,000/- each to Rs.5,000/- each.

The order of the learned trial Court regarding disposal of the case property is hereby confirmed.

With the aforesaid modification, the appeal is partly allowed and disposed off accordingly.

Copy of this judgment be sent to the concerned lower Court alongwith the record for its information and compliance.

C.C. as per rules.